City of Laurel v. Fox

This is an appeal from the chancery court of the Second district of Jones county from a decree dismissing the bill of complaint filed by the city of Laurel against D.B. Fox to enforce payment of a paving tax against his property, for paving a street in front of his property on a certain highway street running through the city of Laurel, known as the Ellisville boulevard. The county had maintained this street in the past as one of the county highways through the municipality, but the city desired to pave it, as it was one of the principal thoroughfares of the city, and, not being willing to pay all the expenses of such paving, an agreement was entered between the city and the county, by which the county agreed to pay the city forty per cent. of the cost of such paving *Page 760 out of the county funds available for that purpose. The city thereupon, through its mayor and commissioners, adopted a resolution or ordinance stating that the mayor and commissioners deemed it necessary to pave that part of Ellisville boulevard from Ash street to the north line of the northeast quarter of the southwest quarter of section 7, township 8, range 11 west, in the city of Laurel, and that, in the judgment of the mayor and commissioners, the general improvement fund of the city of Laurel should not be used for the purpose of making such improvement, but that a special tax to make the improvement should be levied to pay the entire cost of said improvement, describing plainly and specifically the improvements to be made. The provisions for notice to property owners, that are contained in the statute, were complied with, and no protest was filed, and the contract was let for the paving of Ellisville boulevard, and the abutting property owners were assessed by the mayor and commissioners with the entire cost of said paving; fifty per cent. of the same being assessed to the abutting property owners on each side of the boulevard. It appears that the Laurel Light Railway Company owned abutting property on one side of this boulevard, and was assessed with one-half of the cost of the improvement, amounting to twenty-eight thousand six hundred twelve dollars and seventy-six cents. After the assessment had been made and the contract let and completed, the county paid the city, either in cash or its obligations, forty per cent, as the county had agreed to do. A petition was signed by all the property owners, except Fox, owning property on the opposite side from the light company, requesting the city to apply the entire amount received from the county to the satisfaction of the assessment against the Laurel Light Railway Company, so as to relieve them of the assessment, and this the city did. Fox, however, did not sign the petition, and refused to pay the assessment against his property, contending *Page 761 that the entire assessment was void, because the city did not apply the forty per cent. paid by the county equally among the abutting property owners, thereby reducing the cost to them. The case was heard before a special chancellor, and this contention of Fox was sustained by the chancellor, and the bill by the city was dismissed, from which holding this appeal is prosecuted. It is insisted by the city that, the assessment having been made on regular notice and in compliance with the statute, and no protest having been filed by the abutting property owners at the time, and no appeal taken, such abutting property owners were validly charged with the entire cost of the construction of improving the street, and that it is no concern of these property owners that the city took the money awarded to it by the county and applied it to the benefit of one of the abutting owners. On the other hand, it is contended by appellee that the city, having made an agreement with the county by which the county agreed to pay forty per cent of the cost of the improvement, should have made an assessment after the application of the funds received from the county for the purpose for which such funds were received. We are of opinion that neither of these contentions is entirely correct. We think the city and the county were authorized to enter into this kind of arrangement by reason of section 8465, Hemingway's 1927 Code (chapter 255, Laws of 1914), and the case of Moore et al. v. Duck Hill (Miss.), 119 So. 324. We think the assessments made by the city were validly made; that is to say, they are not void, and that the failure of the city to first apply the funds received by county did not entirely void these assessments. We think, however, that, when the county paid the city forty per cent for this specific purpose, it became a trust fund in the hands of the city for the benefit of all the abutting property owners, and it was the duty of the city to apply the fund received from the county in *Page 762 the reduction of the assessments of all the abutting property owners in accordance with the apportionment made in the original assessments, and that the city did not have the right, without the consent of the property owners, to apply the entire amount in reduction of one abutting property owner. The defendant, Fox, has a right to have his assessment credited to the amount of forty per cent of the amount assessed against him, but was not entitled to escape the burden imposed by the assessment basis, supposedly upon the equivalent benefit to his property. When the city comes into equity to enfore its demand, it will be required, as any other litigant, to do equity, and equity in the case before us means to credit the assessment of the defendant, Fox, with forty per cent of the amount assessed against him. It follows, from what we have said, that the chancellor erred in dismissing the bill and that he should have entered a decree in accordance with the view herein expressed. The defendant did not offer to pay sixty per cent of the assessment, but litigated the city's right thereto; consequently, both parties should pay part of the costs, so the costs of this appeal, and in the court below, will be taxed equally between the appellants and the appellees, and judgment will be here rendered in favor of the city for sixty per cent of the amount of the original assessment, without interest. Reversed, and judgment here.