Opinion
No. 30162.
January 2, 1933.
1. MUNICIPAL CORPORATIONS.
Railroad right of way held, under circumstances, subject to improvement assessment for city's ornamental white way lighting system.
2. MUNICIPAL CORPORATIONS. Improvement resolution need not conform to statutory style governing ordinances as to title and numbering of sections ( Code 1930, sections 2542-2544).
A resolution is not required to contain formalities of an ordinance because resolution generally is merely declaration of will or mind of municipal council, and no set form or arrangement of words is essential to that declaration so long as it may be fairly found from language used that there has been actual expression of will or mind of council.
3. MUNICIPAL CORPORATIONS. Declaration of necessity for improvement, even if contained only in title or caption of resolution, held sufficient.
The minutes recited that named alderman introduced and moved for adoption of resolution reciting: "A resolution declaring the construction of an ornamental white way lighting system on following streets and avenues in the City of Picayune necessary, to-wit." This was followed by a detailed description of streets and avenues to be improved, followed by sections numbered 1 to 9, in none of which sections was there a declaration that improvement was or had been adjudged by the board to be necessary.
APPEAL from circuit court of Pearl River county. HON. J.Q. LANGSTON, Judge.
Stevens Heidelberg, of Hattiesburg, for appellant.
The right of way of the railroad, and certainly that portion thereof devoted exclusively to railroad business, is not subject to assessment on account of the cost of constructing an ornamental white way system.
The only theory upon which any property can be assessed for the cost of local improvements is upon the theory that such property has been benefited thereby to the extent of the cost of such local improvement, and such assessments cannot be upheld where the nature of the property is such that there can be no corresponding benefit to the property involved.
25 R.C.L., page 95, section 11.
Even where the property involved receives some special benefit over property generally, yet where the benefit received is small as compared with the cost assessed against property, such assessment is invalid and cannot be sustained, and violates the constitutional rights of the property owner.
Standard Pipe Line Co. v. Miller County Highway Bridge District, 48 S.Ct. 441, 72 L.Ed. 831.
If the benefits to be received by the property assessed to one property owner are out of proportion to the benefits received from property assessed to other property owners, as compared to the assessments made, then such an assessment is arbitrary and discriminatory, and in this respect violates both the equal protection clause and the due process clause of the Federal Constitution, as guaranteed by the Fourteenth Amendment thereto.
Road Improvement District No. 1 v. Missouri, Pacific Railroad Co., 274 U.S. 188, 71 L.Ed. 992; In Re Chicago R.I. P. Ry. Co., 28 Fed. 56.
In the absence of statute to the contrary, a railroad road bed or right of way is subject to assessment for local improvement when benefited thereby, and is not liable in the absence of such benefit.
25 R.C.L. 117.
Likewise, in case of land permanently devoted to railroad purposes, the rule for ascertaining whether the land is benefited by the improvement is not the same as when land is so held that the owner may change the use at pleasure. Then the benefits are not to be determined alone by the increased value of the property for its present use, but its probable future use may be considered. The principle deducible from the cases is that, while there may be unusual conditions under which a railroad right of way can be benefited by local improvements, as a general rule it is apparent as matter of law that it cannot be.
City of Barre v. Barre C.R. Co., 123 A. 427, 37 A.L.R. 207; Chicago, Milwaukee St. Paul Railroad Co. v. Milwaukee, 28 L.R.A. 249; City of San Diego v. Atchison, Topeka Santa Fe Ry. Co., 45 Fed. 11; Rich v. Chicago, 152 Ill. 18, 38 N.E. 255.
The rule as to the basis of an assessment for public improvements is the benefit to the land in its use as a right of way, and not the enhancement of the market value, inasmuch as such property is, for the purposes of assessments, regarded as property permanently devoted to public uses.
Erie Ry. Co. v. Paterson, 72 N.J.L. 83, 59 A. 1031; New York Bay R. Co. v. Newark, 77 N.J.L. 270, 72 A. 455; Lehigh Valley R. Co. v. Jersey City, 81 N.J.L. 290, 80 A. 228; New York Bay R. Co. v. Newark, 82 N.J.L. 591, 83 A. 962; Erie R. Co. v. Passiac, 91 N.J.L. 504, 103 A. 855; Erie R. Co. v. Newark, 93 N.J.L. 90, 107 A. 406; Decatur v. Southern Ry. Co., 183 Ala. 531, 48 L.R.A. (N.S.) 231, 62 So. 855.
True, it is that the resolution has as its heading "A Resolution Declaring the Construction of an Ornamental White Way Lighting System on the Following Streets and Avenues in the City of Picayune, Mississippi, necessary to-wit" but this is the mere title to the resolution, and no part of the resolution itself.
In no part of the resolution is there any adjudication that the construction of the ornamental white way system is necessary. Until this was first adjudicated by the Board, there could be no basis for the assessment. Parker Shivers, of Poplarville, and Grayson B. Keaton, of Picayune, for appellee.
The particular improvements provided for in the resolution of the appellee and from which assessment the appellant in this case has appealed, has been approved by the Supreme Court.
McArthur v. City of Picayune, 156 Miss. 456, 125 So. 813.
In the court below no question was raised as to the validity of the resolutions providing for the improvements made by the city.
The contention of the appellant that the ordinances did not declare the proposed improvements necessary is ruled by Dean v. Town of Senatobia, 142 Miss. 815, 108 So. 174; McArthur v. City of Picayune, 156 Miss. 465, 125 So. 813.
This case involves the same improvement and the same proceedings therefor which were considered by the court in McArthur v. City of Picayune, 156 Miss. 456, 125 So. 813. Additional points are, however, raised by this appeal, and principally the appellant railroad company contends that a railroad right of way is not subject to assessment for the construction of an ornamental white way lighting system. We have maturely considered the contention, and, while we do not commit ourselves to the general proposition that a railroad right of way is subject to an improvement assessment for the construction of an ornamental white way lighting system, and expressly reserve decision on that general question, we think that the situation in this particular case was and is such that the assessment could be validly laid upon the particular railroad property here involved.
A more difficult question has been raised by appellant in respect to the resolution which is required by the statute to be adopted by the governing authorities of the municipality declaring the proposed improvement to be necessary. The minutes on this point recite as follows:
"Alderman N.B. Lane introduced the following resolution and moved its adoption, which was seconded by Alderman Edward Rowlands:
"RESOLUTION
"A resolution declaring the construction of an ornamental white way lighting system on the following streets and avenues in the City of Picayune, necessary, to-wit: [And here follows the detailed description of the streets and avenues to be improved.]"
After the completion of the description aforesaid, the resolution then proceeds with what is termed "Section 1," which declares that it will be necessary to purchase certain material and equipment, etc., and section 2 is to a similar effect, and the resolution proceeds on through nine separately numbered sections, in none of which sections, however, is there a declaration that the said improvement is or has been adjudged by the board to be necessary. If, then, the quoted recitals in what appellant contends is a mere title or caption to the resolution is not of sufficient evidence as a minute book entry of an adjudication that the said improvement was necessary, no such adjudication appears, and the entire proceeding falls for failure to take a precedent step essential to the jurisdiction.
As stated, appellant contends that that portion of the resolution above quoted is a mere title or caption to the resolution, and is no effective part of it. Appellant cites no authority on the point, and appellee relies on McArthur v. City of Picayune, supra, and also on Dean v. Senatobia, 142 Miss. 815, 108 So. 178. If the declaration of necessity were required to be made by an ordinance, we think the position of appellant would be well taken, because an ordinance must have a title which shall clearly express the one subject with which the ordinance deals, must conform to a statutory style, and shall be read and considered by sections. Sections 2542-2544, Code 1930. But of a resolution none of these features is required. A resolution is not required to contain the formalities of an ordinance, for, generally speaking, a resolution is merely a declaration of the will or mind of the municipal council, and no set form or arrangement of words is essential to that declaration so long as it may be fairly found from the language used that there has been an actual expression of the will or mind of the council. 43 C.J., p. 519; Sawyer v. Lorenzen, 149 Iowa, 87, 127 N.W. 1091, Ann. Cas. 1912C, 940, 942.
Applying this statement of the rule to the facts in respect to the resolution here in question, we think that there is enough to be found in the resolution for the court to be able to say with confidence that the municipal authorities did by the resolution make the declaration of necessity and in a manner sufficiently evidenced on the minutes to form the legal basis of the subsequent proceedings.
Several other questions are raised in the briefs of appellant, but, because not made a part of the objections in the trial court, we are not authorized to consider them, urged, as they are, for the first time on appeal.
Affirmed.