Opinion
No. 30320.
January 16, 1933.
JUDGMENT. Decrees validating street improvement bonds held res judicata in subsequent suit by abutting owner to enjoin enforcement of assessment ( Code 1930, section 312 et seq.; Laws 1924, chapter 194).
The decrees of validation were res judicata as against abutting property owner's suit to enjoin assessment for street improvement on ground that no original resolution of necessity was adopted; that no notice was given to complainant that such work had been declared necessary; that no valid meeting was held by board for purpose of hearing protests of improvement; and that proceedings had not been validly made part of minutes of municipal board, because not written out on original pages of minute book, but typewritten on separate sheets which were glued or bradded to pages of minutes, because any objections on those grounds should have been presented in validation proceedings, to which complainant was as fully a party as if he had been specifically named therein as defendant and had been personally served with summons.
APPEAL from chancery court of Clay county. HON. JAS. A. FINLEY, Chancellor.
McClellan Tubb, of West Point, for appellants.
The appellee or his privies was a party to the proceedings validating the bonds.
Love v. Mayor and Board of Aldermen of Yazoo City, 138 So. 600; Parker v. Grenada County, 88 So. 172; Jackson E. Railway Company v. Burns, 113 So. 908; Williams v. Board of Supervisors, 103 So. 812; Von Zondt et al. v. Town of Braxton, 115 So. 557; Dean v. Board of Supervisors, 135 Miss. 268.
The decree validating the bond issue in this case by virtue of Section 314, Code of 1930 is res adjudicata of every question presented here.
Love v. Mayor et al., 138 So. 600.
A decree validating bond of a separate school district is conclusive against a collateral attack on the validity of the order creating the district.
Von Zondt v. Braxton, 115 So. 557.
We think the notice sufficient to bring the taxpayer's attention to the proposed scheme, and to authorize him to appear and make objections to the proposed improvements and also to the assessment against him. His failure to appear at that time and contest the improvements and his liability for the cost thereof, and to take an appeal to the circuit court in the manner provided by the statute, forecloses his right to test the legality of the assessment. The appeal granted is an appropriate and efficient remedy, and it is competent for the Legislature to provide that an appeal shall be the exclusive remedy for reviewing the judgment of the city authorities, where the notices are sufficient to bring the taxpayer notice of his right and duty to appear and present such objection as he may have thereto.
Moore v. Town of Duck Hill, 119 So. 324.
The statute was careful to guard the right of the property owner by providing that he should be given notice of the intended improvement and a time within which to enter his protest. This notice was given and there was no protest. The safe time for the property owner to object, if he intends to object, is at the time the law was designated for this, when the machinery of government is first put in motion, and not wait until the improvement has been made and the benefits accrued, and then seek to defeat the assessment by finding some irregularity in the proceeding leading up to it that would invalidate it.
Edwards House Company v. City of Jackson, 45 So. 14.
Magruder, Walker Magruder, of Starkville, for appellee.
No jurisdictional steps were taken by the city to create an assessment against appellee's lot, the board can only speak through its minutes, and in so far as such assessment is concerned there is nothing to validate.
Granting that an ordinance ordering a street improved is in the nature of an ordinance creating a separate assessment district. The case now before the court is a suit between the property owner and the city to determine whether the lot assessed by the city shall be liable for the payment of admittedly valid bonds or whether the city shall pay such bonds by general taxation, the city having taken no steps to subject such lot to the payment of such bonds and the right to contest the validity of the bonds having been lost through the validation proceedings. There is no question but that the bonds are valid obligations of the City of West Point and that no taxpayer could question the right and duty of the City of West Point to make a general levy to pay such bonds.
It is one thing to attack the creation of a school district and another thing to attack the acts done by the district after its creation and unless the act creating the district is void it cannot be brought in question in a subsequent proceeding, unless some positive statute is violated.
Liddell v. Municipality of Noxapater et al., 129 Miss. 513, 92 So. 631.
The court has no power to initiate a street paving project and levy assessments against the lot of appellee where no steps were taken by the board in the adoption of the jurisdictional requisite, a resolution of necessity.
Borrum v. Purdy Road District, 131 Miss. 778, 95 So. 677.
Argued orally by T. McClellan, for the appellant, and by W.W. Magruder, for appellee.
Appellee, as the owner of lot 11, block 98, in ward 4, in the city of West Point, which lot abuts on Calhoun street, filed his bill to enjoin the city from enforcing a special assessment against said lot for paving improvements. Acting under the provisions of chapter 194, Laws 1924, the city had proceeded to take the steps, and all the steps, necessary to make certain special improvements on Calhoun street, including the pavement, and had determined to apportion the costs thereof in part to the city and the remainder to the abutting property on each side of the street; and accordingly an assessment of the proper share of the costs in proportion to the frontage of appellee's lot was made against said lot. It was necessary to issue and sell the bonds of the city to procure the money to do this work, both for the city's share of the expense and for that to be charged against the abutting property. And when all the necessary steps had been taken and all the precedent resolutions and ordinances had been passed, the city instituted validation proceedings under what is now chapter 10, Code 1930; there being two such proceedings, one to cover the bonds for the city's part of the costs, and the other to cover the bonds to be issued against the assessments upon abutting property.
Certified copies of the records of the proceedings were duly made and forwarded to the state's bond attorney, his opinion was received that the proposed bonds were valid, the causes were duly docketed in the chancery court, a day was fixed for the hearing of objections, and the statutory notice was given to all persons interested to appear and object, if desired. No objections were filed, and in each of the causes a decree was made and entered adjudging that all the necessary steps had been duly and properly taken, and that the bonds were valid in every respect; no appeal was taken from the decrees or either of them; and the bonds were sold and the work of improvement was done.
The main objections now urged by appellee in his bill, filed long after the validation proceedings, after the bonds were sold and the work done, are: (1) That no original resolution of necessity was adopted by the governing authorities of the city; (2) that no notice was given to complainant, appellee, that such work had been declared necessary; and (3) that no valid meeting was held by the board for the purpose of hearing protests and objections to such improvements. The present record shows that the said objections now advanced by appellee are based upon the fact that the resolutions and orders and ordinances of the municipal board dealing with these matters were not written out upon the original pages of the minute book, but were typewritten on separate sheets and these sheets were glued or pasted to the pages of the minutes or were bradded thereto, and that in one case the typewritten sheets had come loose, and at the time of the institution of the suit were simply lying unattached between the leaves of the minute book. It is the contention of appellee that these proceedings had not, as a matter of law under the facts, been validly made a part of the minutes of the municipal board, and that, since the board could speak only by its minutes duly kept and recorded, there was no foundation upon which the proceedings could rest in so far as any special charge against the property of appellee was concerned, although appellee admits that, as a result of the validation proceedings, the bonds have, as such, become unassailable and must be paid; but, as he insists, only through general and ad valorem taxation.
There can be no doubt that during the times when these proceedings were in fieri appellee could have appeared before the municipal board and there presented the objections now urged by him. But leaving this point aside, there is no doubt that every one of the objections above mentioned could have been made by appellee and would have been heard by the court if made in the validation proceedings. Appellee was as fully a party defendant to those validation proceedings as if he had been specifically named therein as a defendant and had been personally served with a summons to appear and defend against them. Appellee could then have appeared and objected that the resolutions, orders, and ordinances certified as having been passed and entered by the municipal board, and which were exhibited as a part of the record in the validation proceedings, had not in fact been passed and duly entered on the minutes; and it may be that the court would properly have held that the objections were well taken, as to which, however, we express no definite opinion. But appellee made no such objections, and the effect of the decree of validation was to adjudicate that every one of the steps mentioned had been validly taken and validly entered of record; and since appellee was a party defendant to those proceedings, the further effect is that the adjudication was final against appellee upon every material issue presented by the validation record, and this finality precludes him from objection subsequently made after the bonds have been sold and the work has been done. It was his duty to make the objections when the validation proceedings were up for issue and hearing, and not having then made them, it was thereafter too late; it not being charged or proved that there was any actual fraud in the proceedings. There is presented simply another case for the application of that ancient maxim that "he who does not object when he should, will not be heard later to object when he would;" and more than that: The case has advanced, because of the finality of the decree in the validation proceedings, to the point where the above-mentioned issues now sought to be reopened by appellee have become res adjudicata as to him and as to all others and beyond the reach of any such attack as is here attempted. Jackson E.R. Co. v. Burns, 148 Miss. 7, 113 So. 908; Love v. Mayor Board of Aldermen of Yazoo City, 162 Miss. 65, 138 So. 600.
Other points were raised by appellee, and these have been examined, but we are of opinion that none of them are sustained by this record.
Reversed, and bill dismissed.