Opinion
No. 40475.
May 6, 1957.
1. Board of Supervisors — Housing Authority Act — order of Board declaring need in county for Housing Authority — not subject to collateral attack.
Where after published notice of hearing at which no one appeared Board of Supervisors adopted resolution declaring need in county for operation of Housing Authority and no appeal was prosecuted, action of Board which was fair on its face was not subject to collateral attack in subsequent action to restrain Board from proceeding under Housing Authority Act. Secs. 1195, 7295-7342, Code 1942.
2. Counties — Housing Authority Act — order of Board of Supervisors — not subject to collateral attack.
Where it became publicly known that Board of Supervisors and Housing Authority were intending to apply for loan and complainants appeared before Board and asked it to rescind its prior action in declaring need for Housing Authority and its approval of applications for loans, but did not appeal from adverse decision, action of Board could not be collaterally attacked in subsequent proceeding to enjoin Board from proceeding under Housing Authority Act. Secs. 112, 182, Const. 1890; Sec. 2955, Code 1942.
3. Collateral attack — orders of Board of Supervisors void on their face — subject to.
If orders and resolutions of Board of Supervisors respecting need for and desirability of Housing Authority operation in county were null and void on their face, such orders and resolutions would have been subject to attack in a proceeding to enjoin Board from proceeding under Housing Authority Act. Secs. 112, 182, Const. 1890; Sec. 2955, Code 1942.
4. Housing Authority — where need for has been declared by Board of Supervisors — successive like adjudications not required.
Where the need for a Housing Authority has been declared by the Board of Supervisors, and the Housing Authority has been set up, there is no requirement in the Act that like adjudications shall be made from time to time thereafter as new units are constructed.
5. Housing Authority — prior resolution of Board of Supervisors declaring need for operation of Housing Authority — not rendered void by change in economic conditions.
Prior resolution of Board of Supervisors declaring need for operation of Housing Authority in county, did not become void by reason of alleged change in economic conditions supposedly making more private housing available. Secs. 7295-7342, Code 1942.
6. Housing Authority — where need for has been declared by Board of Supervisors — successive like adjudications not required.
Where by prior resolution the need for a Housing Authority had been declared by Board of Supervisors, it was not necessary that Board again call for a hearing and make a like determination before Board could seek preliminary loans.
7. Housing Authority Act — not violative of constitution.
The Housing Authority Act is not violative of Section 112 or Section 182 of Constitution of 1890. Secs. 112, 182, Const. 1890.
Headnotes as approved by Lee, J.
ON MOTION TO REINSTATE APPEAL UPON SUBSTITUTION OF A PROPER APPEAL BONDApril 8, 1957 93 So.2d 856
8. Appeal — motion to reinstate appeal sustained without prejudice to appellee's right to renew their motion to dismiss on other grounds.
Where motion to dismiss appeal was granted on sole ground that appeal bond contained but one surety and subsequently the appellants substituted a sufficient appeal bond containing required number of sureties, their motion to reinstate appeal would be sustained without prejudice to appellee's right to renew their motion to dismiss on other grounds in their original motion not passed on by Supreme Court.
Headnote as approved by McGehee, C.J.
APPEAL from the Chancery Court of Harrison County; THOMAS D. OTT, JR., Chancellor.
Albert Sidney Johnston, Jr., Biloxi; A.C. Dunn, Gulfport, for appellant.
I. The Chancellor erred in refusing to permit complainants to prove the case made by their bill of complaint.
II. The Chancellor erred in excluding the evidence offered by complainants to prove the factual matter alleged in their bill of complaint.
III. The Chancellor erred in sustaining objections of the defendants to questions propounded by complainants of their witnesses, and in refusing to permit complainants to prove the asserted change in the economic conditions of Harrison and Jackson Counties, all of which confirm the position of complainants, that there was no need for low-cost public housing accommodations in Harrison and Jackson Counties, Mississippi and that the conditions necessary to be shown to avail of the Housing Authority Law and the Supplemental Housing Authorities Laws of Mississippi did not exist in February and July, 1956, and did not exist on the date and at the time of the hearing of complainant's bill for injunction and injunctive relief against the defendants.
IV. The decree rendered against complainants and in favor of the defendants is contrary to the law and the evidence, and against the overwhelming weight of the evidence.
V. On the face of their bill of complaint, complainants are entitled to enjoin the action of the defendants; and, hence, they were entitled to prove the allegations of fact in said bill of complaint.
VI. The decree of the Chancellor has no support in the record.
Collation of authorities: Quinn v. City of McComb, 212 Miss. 730, 55 So.2d 479; State v. Board of Suprs. Grenada County, 141 Miss. 701, 195 So. 541; Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; Green v. Alcorn County, 192 Miss. 468, 6 So.2d 130; Monroe County v. Strong, 78 Miss. 565, 29 So. 530; Lee v. Smith, 189 Miss. 636, 198 So. 296; Moore v. Grillis, 205 Miss. 865, 39 So.2d 505, 10 A.L.R. 2d 1425; Findlay v. Board of Supervisors, 72 Ariz. 58, 230 P. 3rd 526, 24 A.L.R. 2d 841; Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070; Payne v. Covington, 276 Ky. 380, 123 S.W.2d 1045, 122 A.L.R. 321; Edmondson v. Board of Suprs. Calhoun County, 185 Miss. 645, 187 So. 538; Yazoo M.V. RR. Co. v. Claiborne County, 191 Miss. 277, 2 So.2d 548; Craig v. Wheat, 212 Miss. 258, 54 So.2d 383; Jackson County Historical Soc. v. Board of Suprs. Jackson County, 214 Miss. 156, 58 So.2d 379; Albritton v. Winona, 181 Miss. 75, 178 So. 799, 115 A.L.R. 1436; Adams v. First Natl. Bank, 103 Miss. 744, 60 So. 770; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Tishomingo County v. Dawson, 208 Miss. 666, 45 So.2d 253; Secs. 7295-7322-06, 7323-7342, Code 1942; 14 Am.Jur., Sec. 62 p. 225. Rushing Guice, Biloxi; Carl A. Megehee, Pascagoula; Jo Drake Arrington, Gulfport, for appellees.
I. The bill of complaint for injunction constitutes a collateral attack on resolutions creating and including Harrison and Jackson Counties in Mississippi Regional Housing Authority No. VIII. Hinton v. Board of Suprs., 84 Miss. 536, 36 So. 565; Wright v. Edwards Hotel, 101 Miss. 470, 58 So. 332; Harvey v. Covington County, 161 Miss. 765, 138 So. 403; In re Holley Case, 141 Miss. 432, 106 So. 644; Brown v. Board of Suprs. Simpson County, 185 Miss. 216, 187 So. 738; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Johnson v. Board of Suprs. Yazoo County, 113 Miss. 435, 74 So. 321; Borroum v. Purdy, 131 Miss. 778, 95 So. 677; Jackson Ry. Co. v. Burns, 148 Miss. 7, 113 So. 907; Bourland v. Hitchcock, 186 Miss. 223, 188 So. 9; Irwin v. Vick (Miss.), 34 So.2d 725; Secs. 7323-7342, Code 1942; Chap. 233, Laws 1942; Chap. 403, Laws 1946.
II. The appellants were without the right, interest, capacity, or authority to file suit against the appellees. McKee v. Hagon, 145 Miss. 747, 110 So. 775; American Oil Co. v. Interstate Wholesale Groc. Co., 138 Miss. 801, 104 So. 70; Donald v. Stauffer, 140 Miss. 752, 106 So. 357; Mississippi Road Supply v. Hester, 185 Miss. 839, 188 So. 281, 124 A.L.R. 574; Weissinger v. Davis, 112 Miss. 625, 73 So. 617; State ex rel. Trahan v. Price, 168 Miss. 818, 151 So. 566; Blakely v. Grenada County, 171 Miss. 652, 158 So. 483; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Lincoln County v. Green, 111 Miss. 32, 71 So. 171; Gully v. Thomas, 171 Miss. 749, 158 So. 465; Paxton v. Baum, 59 Miss. 531; Borroum v. Purdy, supra; Brumfield v. Brock, 169 Miss. 784, 142 So. 745; Panhandle Oil Co. v. Trigg, 148 Miss. 306, 114 So. 625.
III. The appellants have no basis for their suit against Jackson County.
IV. In reply to appellants' argument. Quinn v. City of McComb, 212 Miss. 730, 55 So.2d 479, 130 A.L.R. 1073; Griffith's Miss. Chancery Practice, Sec. 445.
Biloxi-Pascagoula Real Estate Board, Inc., a Mississippi corporation, and others, including citizens of both Harrison and Jackson Counties, filed their bill of complaint in which they sought to obtain a temporary injunction to enjoin Mississippi Regional Housing Authority No. VIII and the Boards of Supervisors of Harrison and Jackson Counties from carrying out the provisions of Article 2, Sections 7295-7322-06, inclusive, the "Housing Authority Act", and Article 3, Sections 7323-7342, inclusive, supplementary thereto, Vol. 5A Recompiled, Code of 1942.
The gravamen of the complaint was that the original attempt to create a Housing Authority in 1944 was void; that since that time however the economic condition has been vastly improved; that there was then no need in that area for public housing accommodations; that there were in excess of three hundred private dwellings in Harrison County vacant for lack of tenants; that for the first time, in 1955, eleven years after the creation, the Housing Authority is attempting to proceed with the erection of housing units; that the threatened action will destroy the property rights of the complainants and other owners; that some of the complainants appeared before the Board of Supervisors of Harrison County at its June 1956 meeting and asked the Board to rescind its action, but that their efforts were without avail; that the Board of Supervisors of Jackson County at that time did rescind its former action; and that the Housing and Supplementary Housing Authority Acts are unconstitutional and violate Sections 112 and 182, and other sections of the Constitution of 1890.
The Board of Supervisors of Jackson County filed a motion, based on Section 2955, Code of 1942, to be dismissed as a party to this proceeding, which motion was overruled.
It was shown at the outset of the trial that the attorneys for the defendants, because of having been engaged during the preceding week in other litigation, had been unable to prepare and file answers. For that reason no answer in fact was filed. But they appeared for all of the defendants and contested the issuance of the injunction. The parties have since treated the decree as a decree after final hearing.
The complainants introduced a number of documentary exhibits in evidence. Exhibit No. 1 showed that the Board of Supervisors of Harrison County, by order at its June 1944 term, directed the publication of notice under the Supplemental Housing Authority Act, that it would hold a public hearing at 10 o'clock A.M. on July 7, 1944, at the Courthouse in the City of Gulfport, Mississippi, at which time all interested parties would be granted an opportunity to be heard as to whether there was a need for the creation of a Regional Housing Authority in Harrison, Jackson and eleven other counties, or any two or more of such counties as are contiguous.
Exhibit No. 2 disclosed that the minutes of the July 1944 term of this Board showed that the foregoing mentioned notice was published, as required by law, and due proof of the same was recorded in the minutes, and "A full opportunity to be heard on the questions set forth in said notice was granted to all residents of the County and to all other interested persons. No witnesses appeared and no evidence was offered on the question set forth in said notice"; and that thereafter a resolution was introduced and adopted which recited that the Board "having considered the testimony and evidence presented at a public hearing duly held on July 7th, 1944", found, determined and declared the need for the Authority, detailing the prerequisites thereto in four instances, namely (a), (b), (c) and (d), in strict conformity to the Housing Statutes, supra.
Exhibit No. 3 showed that the Board, at its September 1952 term, appointed Francis J. Hursey to succeed C.E. Jacobs as Commissioner.
Exhibit No. 4 showed that the Board, at its November 1955 term, adopted a resolution again reciting that "there exists in the County of Harrison a need for such low rent housing at rents within the means of low income families", and approved the application of the local Authority to the Public Housing Administration for a preliminary loan not in excess of $240,000 for the building of not in excess of seven hundred and fifty dwelling units, describing the location, units and amounts thereof.
Exhibit No. 5 showed that, at the same time, Francis J. Hursey was reappointed Commissioner.
Exhibit No. 6 showed that the Board, at the February 1956 term adopted a resolution authorizing the execution of the cooperation agreement between Harrison County and Housing Authority No. VIII.
Exhibit No. 8 showed that a resolution of the Board of Supervisors of Jackson County, filed November 21, 1955, recited that "there exists in the County of Jackson, Mississippi a need for such low rent housing at rents within the means of low income families", and approved a preliminary loan for not in excess of $265,000 for not in excess of seven hundred and fifty dwelling units, as described therein.
Exhibits Nos. 9 and 10 showed that on February 6, 1956, the Board of Supervisors of Jackson County, by resolution, authorized the execution of the cooperation agreement by the county with Housing Authority No. VIII.
Exhibit No. 11 showed that on July 17, 1956, the Board of Supervisors of Jackson County rescinded its action in adopting and approving the cooperative agreement.
The bill of complaint did not assume to say that the foregoing action by the Board of Supervisors of Jackson County constituted all actions taken by that Board on this subject-matter, nor did the proof so show.
Moody E. Grishman offered to testify to a schedule of the statistical data that he had compiled for the period from 1944 through 1955, with particular reference to Harrison and Jackson Counties, and covering taxes of all kinds, spendable income, population, the total number of all dwelling units, the number occupied and the number vacant. The court sustained an objection to this evidence on the ground that it was not, at that time, a subject of inquiry by the court.
John Lee Gainey, Secretary and Executive Director of the Housing Authority, called by the complainants as an adverse witness, testified that an application was filed with the Public Housing Authority in 1952, and was approved; but that the same did not become operative because of a lack of funds. He said that he received an order of the Board of Supervisors of Jackson County of date of August 8, 1956, which rescinded its former order of rescission. He also testified that the previous actions that had been taken by the boards have been approved by the Public Housing Administration. He explained that the preliminary loan comes from that agency, and that it does not cost the county anything.
At the conclusion of the hearing, the learned chancellor dismissed the bill with prejudice, and the complainants appealed.
In the last analysis, the questions for determination are: (1) Whether the original action of the Board of Supervisors of Harrison County, in declaring the necessity for the county to come under the provisions of the Act, was void; and if not, (2) whether its subsequent action, by reason of an alleged change in economic conditions, was void.
(Hn 1) By Section 7297, supra, a public body corporate and politic to be known as the "Housing Authority" was created for each county. Quinn v. City of McComb, 212 Miss. 730, 55 So.2d 479. The determination of the need for the Authority to function was made by the Board of Supervisors on its own motion after notice and the opportunity of all residents and taxpayers of the county to be heard. Nobody appeared and protested against the action. The expression on the minutes, namely, "No witnesses appeared and no evidence was offered on the question set forth in the notice" evidently referred to the lack of opposition to making the Act effective. The notice also stated that: "After such hearing said board of supervisors will determine whether or not there is a need for one Regional Housing Authority to be created for all of such counties." Following the hearing, the board would then determine whether the need existed. Notwithstanding a possible ambiguity as between the minutes and the adopted resolution, the resolution is legal on its face. No appeal was prosecuted under Section 1195, Code of 1942, to the circuit court. Consequently the present action thereon is a collateral attack, and is not maintainable. Hinton v. Board of Supervisors of Perry County, 84 Miss. 536, 36 So. 565; Wolford v. Williams, Tax Collector, 110 Miss. 637, 70 So. 823; Johnson v. Board of Supervisors of Yazoo County, 113 Miss. 435, 74 So. 321; Green v. Hutson, 139 Miss. 471, 104 So. 171; Harvey v. Covington County, 161 Miss. 765, 138 So. 403; In re: Savannah Special Consolidated School District of Pearl River County, 208 Miss. 460, 44 So.2d 545.
(Hn 2) On the second question, the bill alleged that, when it became publicly known that the Board and Housing Authority No. VIII were intending to apply for the loans, the complainants, or some of them, appeared before the Board and asked it to rescind its action in declaring the need for the Authority and its approval of the application for the preliminary loans, but without avail. Presumably they presented their case on this question to the Board — they at least had an opportunity to do so — and the Board rejected their contentions. However they did not appeal to the circuit court under Section 1195, Code of 1942. Consequently the present action, in that regard, constitutes a collateral attack, and again it is not maintainable. See the cases cited above.
(Hn 3) Of course, if the orders and resolutions of the board, on their face, had appeared to be null and void, they would have been subject to attack in this proceeding. Lee v. Hancock County, 181 Miss. 847, 178 So. 790, 179 So. 559; Brown v. Board of Supervisors of Simpson County, 185 Miss. 216, 187 So. 738. But the contrary appears. Such orders and resolutions appear to be regular on their face. The appellants evidently could not, for they did not, show them to be null and void.
(Hn 4) In Quinn v. City of McComb, supra, this Court held that: "When the need has been declared, and the authority has been set up, there is no requirement in the Act that like adjudications shall be made from time to time thereafter as new units are constructed." (Hn 5) But the boards in this case, just as in that case, continued to declare the existence of the need for the benefits provided for under the Housing Acts. (Hn 6) It was not necessary that they should again call for a hearing and determination before they could seek the preliminary loans.
(Hn 7) The Quinn case expressly held that the Housing Authority Act here under question violates neither Section 112 nor Section 182 of the Constitution; and these sections seem to be the constitutional basis from which stem the appellants' grievances, whether real or fancied.
In view of the conclusion already reached, the cross appeal of Jackson County is now moot, and it is unnecessary to pass upon it and the same is therefore not considered.
Obviously the learned chancellor was correct in his decree, and it is affirmed.
Affirmed.
McGehee, C.J., and Roberds, Ethridge and Gillespie, JJ., concur.
ON MOTION TO REINSTATE APPEAL UPON SUBSTITUTION OF A PROPER APPEAL BOND
On a former day of this Court there was presented a motion to dismiss the appeal in the above styled cause for want of a sufficient appeal bond and upon other grounds. We sustained the motion on the sole ground that the appeal bond did not contain but one surety. We did not pass upon the other grounds assigned on that motion to dismiss the appeal.
(Hn 8) It now appears that the appellants have substituted a sufficient appeal bond containing the required number of sureties, and their motion to now reinstate the appeal is sustained, but without prejudice to the appellees to renew their motion to dismiss the appeal upon all or either of the other grounds assigned in their original motion, and which other grounds were not passed upon by the Court, since we deemed that the want of a sufficient appeal bond was a sufficient ground upon which to base our action in sustaining the motion to dismiss the appeal.
Motion to reinstate sustained.
All Justices concur except Kyle and Arrington, JJ., who took no part.