Polk v. City of Hattiesburg

Cook, J., delivered the opinion of the court. A petition was filed by a citizen and taxpayer of the city of Hattiesburg with the proper authorities, asking that the city “kill” or close a certain named portion'of an alley which had been dedicated to the use of the public. Appellant, also a citizen and taxpayer of the city, filed objections to the petition to kill the alley, alleging that he owned property adjacent to and abutting on the alley, and further alleging that the effort to have the alley killed was contrary to the interest of the public and especially damaging to his property. The city authorities sustained the original petition and issued an order closing the alley. At the hearing appellant appeared and was sworn as a witness, and the record shows that his-testimony supported the allegations of his petition. During the term of the mayor and commissioners at which the ordinance was passed, and on the same day, appellant, feeling aggrieved by the action of the board, and desiring an appeal therefrom to the circuit court, presented to the mayor and commissioners, for the signature of the mayor, a bill of exceptions, which bill of exceptions embraced all of the facts and decisions at the hearing. The record shows that the bill of exceptions was filed- and considered by the mayor and commissioners, and found to be a correct statement of.the facts and decisions in the premises; but the matter was continued until the next day, in order that the attorney of the city might [874] be consulted. On the next day the mayor stated that the bill of exceptions was correct, but upon the advice of the city attorney declined to sign same, unless he was compelled to do so by mandamus. So, when the appeal came on for hearing in the circuit court, the above facts were made known to the court in the proper manner, and appellant asked the court for a writ of certiorari requiring the board of mayor and commissioners to send up the bill of -exceptions tendered by him to the mayor for his signature, as a part of the record in this appeal. The circuit court refused to issue the certiorari. There are other details in the record, but the foregoing statement will make sufficiently clear the case before us on this appeal. The case was disposed of in the lower court by sustaining a demurrer , to appellant’s petition for certiorari. Boiled down, this record shows that the city of Hattiesburg closed the alley for the benefit of a private person and that the public interest was not considered in the premises. It also appears that appellant’s rights as a citizen were ignored and that .his property rights were damaged by the action of the city authorities. The contention is made, however, that, admitting all these things, the circuit court was without authority to issue the writ of certiorari, and hear the appeal on its merits. If the averments of the petition for certiorari state the facts, the ordinance closing the alley was without warrant of law or fact. The averments of the petition were •admitted by the demurrer, and the only question left for decision is the power of the circuit court to issue the writ in the circumstances. • The right of appeal from 'decisions of this nature is given by section 80, Code 1906, to any person aggrieved thereby, and the statute provides the procedure for making a record of the facts and decisions for the appellate court. When a bill of exceptions embodying the facts and decisions is duly presented, it is made the duty of the [875] presiding officer to sign the same. He has no discretion in the matter. If it is admitted that the bill of exceptions is a correct memorial of the facts and decisions, can the circuit court dispense with the signature of the mayor, and inquire into the merits of the appeal, after having first ascertained that the hill of exceptions stated the facts and' decisions? We believe that McGee v. Beall, 63 Miss. 457, and Robinson v. Mhoon, 68 Miss. 713, 9 So. 887, answer this query in the affirmative. The appellant in this case did all that was in his power to do “by preparing and tendering a proper hill to the proper officer,” and he “ought not to suffer by reason of his (the officer’s) neglect to promptly sign the same.” We see no reason why appellant should be forced to pursue the circuitous route of mandamus proceedings, when the entire controversy can he brought directly before the court of review by sending up the hill of exceptions, which confessedly reflects the entire facts and decisions in the tribunal which tried the matters in dispute. The hill of exceptions, if correct, should have been signed, which signature would have been an indorsement of its correctness. It is admitted that the hill was correct, and there is no reason why resort should be had to mandamus, which could only accomplish what is here admitted. It will he observed that this was not an appeal by certiorari, hut was the use of the writ in aid of a statutory appeal proper, for the purpose of completing the appeal by having the entire record brought into the circuit court. The next point made by appellee is that the killing or vacating of the alley was a legislative act, and not a judicial act, and consequently the action of the city hoard cannot he reviewed by the courts. It seems to us that this view is not sound. Unless the tribunal empowered to open or vacate streets and alleys he of a judicial character, the statute would be in violation of sections 17 and 24 of our Constitution. Section 3336, Code 1906, under [876] which the ordinance in question was passed, expressly provides: “But no street or alley shall he closed or vacated except upon due compensation being first made to the abutting landowners. ” This clause of the statute is not only the expression of the constitutional limitation upon the power of the municipality, but it necessarily implies that the tribunal clothed with the power must judicially determine whether “the contemplated use be public,” and, having so determined this question affirmatively, the damages of abutting owners must be judicially ascertained and paid before the ordinance vacating the alley can be finally adopted. This squares section 3336 with the state Constitution. Elliott on Roads and Streets, par. 315, n. So it is the record discloses that appellant was an abutting owner, and that he was damaged by the order of the commissioners and that his damages were not ascertained or paid. The commissioners seem to have treated appellant as an interloper, without any rights in the premises, and for this reason his remonstrance and evidence were swept aside. Reversed and remanded, with instructions that the circuit court proceed in accordance with this decision. Reversed and remmded.