City of Jackson v. Doxey

Smith, C. J., delivered the opinion of the court. This is an appeal to settle the principles of a case from a decree overruling a demurrer to an original bill. The bill alleges in effect that the appellant is about to pave Minerva street, on which the appellee is an abutting property owner, under an ordinance providing for the assessment of the cost of the paving to the abutting property owners, one-lialf to such owners on each side of the street; that prior to the enactment of chapter 260, Laws 1912, the appellant had commenced to pave its streets, its methods for payment therefor being to assess one-third of the cost of each street to the property owners on each side of the street, the remaining one-third being paid out of the appellant’s general improvement fund. The prayer of the bill is that the appellant be restrained from paving Minerva street under this ordinance. Section 4, chapter 260, Laws 1912 (section 5944, Hemingway’s Code), is as follows : “The mayor and board of aldermen shall be the sole judges as to the necessity for the special improvement, and they shall be the sole judges as to whether or not the general improvement fund shall be used for the special improvement, or whether or not the cost shall be assessed against the property-oAvners, as hereinafter directed. But the method adopted by the mayor and board of aldermen for the payment of special improvements must be the same on all streets of the municipality; and, in case any municipality has already commenced any particular kind of special improvement, the municipality must continue to assess the cost on all owners of property in the municipality in the same way that the assessment was made before the passage of this act, to the.end that all persons may be compelled to pay for the same character of special improvements on an equal basis, provided the provisions of this act shall not apply to property owned by the state.” We are of the opinion that, where a municipality had commenced to pave its streets prior to the enactment of this statute, and to pay therefor by assessing a proportion [636] ate part of tbe cost thereof against the abutting property owners, it must continue to assess the cost of street paying thereafter done against the abutting property owners in the same proportion that such owners were assessed on the streets paved prior to the enactment of the statute, as long as the provision thereof so requiring remains in force. Whether or not this provision has been repealed by an act approved March 27, 1922, entitled: “An act to grant additional powers to the governing body of municipalities in the matter of apportioning the cost and making assessments for street improvements”— is not now before us, the ordinance in question having been passed before the enactment of that statute. Affirmed, and remanded, with leave to the appellant to answer within thirty days after the filing of the mandate in the court below. Affirmed and remanded.