Stingily v. City of Jackson , 140 Miss. 19 ( 1925 )

^* Headnotes 1. Statutes, 36 Cyc., p. 1074; 2. Municipal Corporations, 28 Cyc., p. 1106; 3. Statutes, 36 Cyc., p. 1073; 4. Municipal Corporations, 28 Cyc., p. 1105 (1926 Anno); 5. Constitutional Law, 12 C.J., sections 881, 892; 6. Municipal Corporations, 28 Cyc., p. 1122; 7. Municipal Corporations, 28 Cyc., pp. 1123, 1126; 8. Constitutional Law, 12 C.J., section 892; Municipal Corporations, 28 Cyc., p. 1157; On assessment for improvements by the front foot rule, see notes in 17 L.R.A. 330; 28 L.R.A. (N.S.) 1124, L.R.A. 1917D, 372; 25 R.C.L., pp. 144-152; 3 R.C.L. Supp. 1406, 4 R.C.L. Supp. 1573; 9. Constitutional Law, 12 C.J., section 177. The question presented for decision in these cases is the validity vel non of two ordinances of the city of Jackson, providing, in the Stingily case, for the paving of one of its streets, and in the Central Cotton Oil Company Case for the repaving and resurfacing of a portion of another of its streets, and apportioning the entire cost thereof, including the cost of street intersections, to the lots abutting thereon according to the front-foot rule.

Prior to the adoption of these ordinances the city had paid the entire cost of repaving and resurfacing its streets, and had assessed only two-thirds of the cost of paving its streets against the lots abutting thereon, the remaining one-third, together with the entire cost of paving the street intersections, being borne by the city. The city obtained the money with which to pay its portion of the cost of paving, repaving, and resurfacing its streets, either by general taxation or by the sale of bonds to be paid when due by money derived from general taxation.

The objections raised to these ordinances are that they violate section 4, chapter 260, Laws of 1912, sections 61 and 112 of our state Constitution, and the Fourteenth Amendment to the Federal Constitution. Under section 4, chapter 260, Laws of 1912, the city was without power to change from its former method of paying for paving its streets to that here adopted. City of Jackson v.Doxey, 128 Miss. 618, 91 So. 348; Firm Lumber Co. v. City ofHattiesburg, 132 Miss. 1, 95 So. 250.

At the session in 1924, the legislature enacted chapter 194 of the Laws of that session, which seems to provide a complete scheme for the paving, maintenance, and repair of streets, and while section 12 thereof provides: "This act shall not repeal any other statute relating to the subject-matter hereof, but shall be deemed to provide a supplemental, additional or alternative method of procedure for the benefit of all municipal corporations in the state of Mississippi," — the section further provides: "Said municipalities operating under the said provisions of this act shall have authority to make special improvements and assess the cost thereof, either in whole or in part against the property abutting on the streets to be improved, said method of assessment to be determined upon as hereinabove provided, regardless of whether or not said municipalities may have been making said improvements under former laws and assessing the cost thereof in a manner different from that determined upon under this act, or paying for same out of the general improvement fund of said municipalities."

This last provision of the statute is unambiguous, clearly grants to municipalities the right which the appellee here seeks to exercise, and must be enforced although it may be in conflict with prior laws which the legislature did not intend to thereby repeal. Where statutes conflict the one last enacted controls. Conceding that this provision of chapter 194, Laws of 1924, repeals, as it seems to do, that portion of section 4, chapter 260, Laws of 1912, with which it conflicts, section 61 of our state Constitution which provides, "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length," is not violated thereby. The latter statute is complete on its face, can be understood and applied without reference to the former, and repeals or modifies the former only by implication; and such repeals are not within the purview of section 61 of the Constitution.

The ground of the objection that these ordinances violate section 112 of our Constitution, and the Fourteenth Amendment to the Federal Constitution, is that they impose a greater burden on property abutting on the street here to be paved than was imposed on property abutting on the streets that have been heretofore paved.

The appellants admit that section 112 applies only to taxation for general purposes, and not to assessments for local improvements, but their contention is that the uniformity and equality clause of the section will be violated if the city, after having paid or obligated itself to pay a portion of the cost of paving other streets out of money raised or to be raised by general taxation, should assess the entire cost of paving and repaving the streets here in question against the property abutting thereon.

The inequality in taxation complained of is brought about, according to the appellants' contention, by the fact that the property abutting on the streets here in question has been or will be taxed for the payment of a portion of the cost of paving and repaving the streets that have been heretofore paved and repaved, while the property abutting on such other streets will not be taxed to pay any part of the expense of paving and repaving of the streets here to be paved and repaved.

There is no merit in this contention, or, to express it differently, we are unable to perceive any merit therein. There is no complaint that either the rate of taxation is not uniform throughout the city, or that all property is not assessed under uniform rules according to value. The inequality that here results, if such there be, does not result from the method by which taxes have or will be levied and collected, but from the disposition made or to be made of money that has been or will be raised by taxation, a matter not within the purview of section 112 of the Constitution.

The equal protection of the law clause of the Fourteenth Amendment to the Federal Constitution does not prevent a state from changing from one system of taxation or of assessment for local improvements to another (Bell's Gap R.R. Co. v. Pennsylvania, 134 U.S. 232, 10 S. Ct. 533, 33 L. Ed. 892; Michigan Central R.R. Co. v. Powers,201 U.S. 245, 26 S. Ct. 459, 50 L. Ed. 744), nor restrain a state legislature in the exercise of its discretion in the creation of local assessment districts (Spencer v. Merchant,125 U.S. 345, 8 S. Ct. 921, 31 L. Ed. 763; Walston v. Nevin,128 U.S. 578, 9 S. Ct. 192, 32 L. Ed. 544; Gray's Limitation on Taxing Power, section 414, et seq.), and is complied with if all property throughout the assessment district is dealt with alike.

"The legislature, in the exercise of its power of taxation, has the right to direct the whole or a part of the expense of a public improvement, such as the laying out, grading or repairing of a street, to be assessed upon the owners of lands benefited thereby; and the determination of the territorial district which should be taxed for a local improvement is within the province of legislative discretion." Spencer v. Merchant, 125 U.S. at page 355, 8 S. Ct. 926, 31 L.Ed. at page 767.

Local assessment districts may be created directly by the legislature, or the power so to do may be delegated to a subordinate agency (Spencer v. Merchant, supra), such as a municipality, and the determination of this subordinate agency, within the limits of the power delegated to it, of the territorial district which should be taxed for local improvement, is conclusive in the absence of fraud, oppression, or some wrong constituting a plain abuse of discretion (Nugent v. City ofJackson, 72 Miss. 1040, 18 So. 493; Smith v. Aberdeen,25 Miss. 461; Alcorn v. Hamer, 38 Miss. 653; Daily v. Swope,47 Miss. 367; Vasser v. George, 47 Miss. 721; Macon v.Patty, 57 Miss. 378, 34 Am. Rep. 451; 2 Elliott, Roads and Streets (3d Ed.) section 694, 25 R.C.L. 108). As property can be assessed for the payment of a local improvement only because of benefit thereto from the improvement, property abutting on one street cannot ordinarily be assessed for the payment of the cost of paving other streets, and consequently, each street not only can, but ordinarily should, constitute a separate assessment district for street paving purposes. 28 Cyc. 1123; Hamilton's Law of Special Assessments, section 393.

It has been suggested that the assessment here is against each lot of the cost of the paving immediately in front of it, and that such an assessment is of such an arbitrary nature as to constitute the taking of property without due process of law (Macon v. Patty, 57 Miss. 378, 34 Am. Rep. 451; Gray's Limitation on Taxing Power, section 1978), but the ordinance does not so provide. The assessment is not against each lot of the cost of the paving immediately in front of it, but is of the entire cost of paying the street against all of the lots abutting there on by the "front-foot" rule, each lot to pay in proportion to its frontage on the street; and that power to so assess abutting property may be delegated by the legislature to a municipality, as does the statute here under consideration, is settled in Wilzinski v. Greenville, 85 Miss. 393, 37 So. 807, and French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S. Ct. 625, 45 L. Ed. 879.

The provision of section 6 of the statute, that "all engineering and inspection costs, including a proper proportion of the compensation, salaries and expenses of the engineering staff of the municipality, properly chargeable to any improvement, shall be deemed a part of the cost of the improvement," is objected to by the appellants, but the record presents no question relative thereto, for the reason that it does not appear from the record that the appellee intends to charge the appellants with any engineering and inspection costs, and until it attempts to charge such cost against the abutting property, no question of its power so to do arises.

No complaint is here made that the paving and repair of the streets is not of benefit to the property of the appellants abutting thereon, consequently, no question that could arise from such a complaint is here presented.

Affirmed.