Opinion
No. 37152.
June 13, 1949.
1. Eminent domain — municipal corporations — selection of site for public use.
A decision by the governing board of a municipal corporation that a particular site is best adapted to its proposed public use is legislative in character and is not reviewable by the courts, nor may the municipality be restricted in its choice between two or more available sites.
2. Prohibition — eminent domain proceedings.
The statutory prohibition against a proceeding in eminent domain by a municipality may not issue on the ground, there being none other, that suitable sites other than that sought to be condemned were available for the proposed public use.
3. Municipal corporations — eminent domain — resolution, proceedings authorized by.
The determination of the municipal corporation to acquire by eminent domain a specified lot for the purpose of erecting a water tower thereon is properly expressed and the proceedings authorized by resolution of the council, a formal ordinance not being necessary.
4. Municipal corporations — resolutions — ordinances.
A municipal ordinance is enacted to regulate continuing conditions and constitutes a permanent rule of government, while matters of a temporary or ministerial nature are dealt with by resolution or order, and no set form or arrangement of words is essential to a resolution 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 municipal council.
Headnotes as approved by Alexander, J.
APPEAL from the circuit court of Adams County; R.E. BENNETT, Judge.
G.H. Brandon, for appellant.
The determination by the mayor and board of aldermen of the City of Natchez on the question of the public necessity for the anticipated public work and the suitableness of the location selected is a conclusive legislative determination and an exercise of vested discretion not subject to review by court in the absence of bad faith, fraud, oppression or abuse of discretion. Sections 3396, 3420, 3422, Code of 1942; Charter of City of Natchez and Amendments; Section 17, Constitution of 1890; Ham v. Levee Com'rs., 83 Miss. 534, 35 So. 943; Greenwood v. Gwin, 153 Miss. 517, 121 So. 160; City of Jackson v. Craft (Miss.), 36 So.2d 149; 18 Am. Jur., Article VI; Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527, 65 A.L.R. 488; Southern R. Co. v. Memphis, 126 Tenn. 267, 148 S.W. 662, 41 L.R.A. (N.S.) 828. Ann. Cas. 1913E 153; Mississippi R. River Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed. 206; United States v. Carmack, 329 U.S. 230, 91 L.Ed. 209, 67 Sup. Ct. 252.
As to the necessity shown for the taking of the particular piece of land sought to be condemned, etc., Wise v. Yazoo City, 96 Miss. 507, 51 So. 453; Eminent Domain, 18 Am. Jur., Sec. 106, pages 733-734; Annotations, 65 A.L.R. 504; 11 L.R.A. (N.S.) 940, 22 L.R.A. (N.S.) 67; 42 Am. St. Rep. 407; 88 Am. St. Rep. 944; 2 Ann. Cas. 946, Ann. Cas. 1912C 1118.
As to the formality of the proceedings before the mayor and board of aldermen antecedent to the filing of the application for the right of eminent domain. Sections 19, 30, Charter of the City of Natchez; Evans v. City of Jackson, 30 So.2d 315; Hawkins v. City of West Point, 27 So.2d 549, 551; Crowe v. Doyle, 184 Calif. 117, 193 P. 111; Massey v. Bowling Green, 206 Ky. 692, 268 S.W. 348; Wisconsin Gas Electric Co. v. Fort Atkinson, 193 Wis. 232, 213 N.W. 873, 52 A.L.R. 1033, Ann. Cas. 1913C 1321; Municipal Corporations, 37 Am. Jur. Sec. 141, et seq.
Laub, Adams Forman, for appellee.
There was no necessity shown for the taking of the particular piece of land sought to be condemned, and in so doing there was an abuse of discretion by the governing body. Wise v. Yazoo City, 96 Miss. 507, 51 So. 453; Nichols on Eminent Domain, Second Edition, Vol. 1, Sec. 358, 359; Dantzler v. State Highway Commission, 187 Miss. 721, 193 So. 4, 624; Greenwood v. Humphrey Co. 182 Miss. 91, 179 So. 862, 181 So. 517; McElroy v. Kansas City (C. C.), 21 Fed. 260; Ferguson v. Board of Supervisors of Wilkinson County, 149 Miss. 623, 115 So. 779.
The court of eminent domain in the instant case was without jurisdiction to condemn appellee's property, and the City of Natchez while, in character, entitled to exercise the right of eminent domain, in the present case attempted to proceed in an illegal and unauthorized manner.
The City of Natchez had the right to condemn by virtue of the provisions of its Special Charter. However, these charter provisions being silent as to procedure, it was necessary that the City of Natchez look to the general legislative provisions for the mode of exercising the power.
It is not disputed that the City did not proceed by ordinance, made no attempt to enact the prerequisite ordinance, but proceeded by resolution. In so doing, the City of Natchez did not follow the prescribed mode of procedure laid down by the sovereignty, and, therefore, proceeded in a void and illegal manner.
The City of Natchez instituted proceedings in eminent domain against certain lands of appellee constituting approximately one acre as a site for a water tower and accessory equipment in order to enlarge its water supply and sewerage facilities.
Henderson petitioned for writ of prohibition against the eminent domain court, alleging as grounds those mentioned in Code 1942, Section 2782. The issues triable thereunder, and to which our inquiry is limited, are (1) whether appellant is such legal entity as is entitled to exercise the right of eminent domain; and (2) whether there is a public necessity for the taking of the particular property. From a judgment granting the writ, the City appeals.
The record shows that over a period of one and a half years, twenty different sites had been examined by competent engineers. The land of appellee was found to be the most suitable and economical in cost and maintenance. It was located upon the highest ground available. The testimony was overwhelming that a public necessity now exists for the installation of the tower. Much of the testimony for appellee was directed to the availability of other sites.
(Hn 1) A decision by the City that a particular site is best adapted to its proposed public use is legislative and is not reviewable by the courts. It is not to be restricted in its choice between two or more available sites. Ham v. Levee Commissioners, 83 Miss. 534, 35 So. 943; City of Greenwood v. Gwin, 153 Miss. 517, 121 So. 160; 29 C.J.S., Eminent Domain, Secs. 90, 91; 18 Am. Jur., Eminent Domain, Sec. 108. The learned circuit judge found as a fact that a public necessity existed for an additional water tower. The issue whether the contemplated use is public is of course a judicial one. Miss. Constitution 1890, Sec. 17. His (Hn 2) granting of the writ was grounded upon the availability of other suitable sites. As has already been stated, this is not determinative nor controlling, and therefore not a subject of judicial review. The judge was moved in some degree by a consideration for the appellee whose disappointment over the expropriation of his land was repeatedly made manifest.
No serious contention is pressed that the City of Natchez had no right to take the lands for public use in the manner and for the purposes proposed. Certain practical considerations are advanced which are aimed at an asserted unwisdom of the City, interpreted in the light of the time and place involved and alleged economic disadvantages. Such contentions, even if more convincingly supported, as they were not, involve an exercise of legislative discretion.
(Hn 3) It is finally contended that proceedings in eminent domain were authorized and directed by resolution rather than by ordinance. The City of Natchez operates under legislative charter, which provides that the City may exercise the right of eminent domain. It also provides that "all deeds and contracts necessary to be made by said corporation in writing shall be authorized by resolution of the council. . . ." Had the appellant been successful in its private negotiations with appellee, its contract may properly have been authorized by resolution. It is true that proceedings under our statutes are generally by ordinance. But, we do not seek to justify the proceeding by mere reasoning. The distinction between the two devices when applied to a specific act is one of language only. It is the formal attested action of the council expressive of its determination that counts.
It was stated in New Orleans N.E.R. Co. v. City of Picayune, 164 Miss. 737, 145 So. 101, 102: "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."
In Evans v. City of Jackson, Miss., 30 So.2d 315, 317, it was held that: (Hn 4) "An ordinance is enacted to regulate continuing conditions, and constitutes a permanent rule of government. An order deals with temporary powers, and when it has been promulgated and accomplished its purpose, it ceases to have further potentiality. Its usefulness usually ends with the performance of directions. An ordinance generally continues to operate until formally repealed. A resolution `is merely declaratory of the will of the corporation in a given matter, and in the nature of a ministerial act.' 43 C.J. 519, Sec. 798, Municipal Corporations." See also Hawkins v. City of West Point, 200 Miss. 616, 27 So.2d 549.
We are not, in view of our conclusions, required to pass upon the admissibility of certain testimony on behalf of appellee. Since the City was authorized to declare its purpose by resolution on a matter within its competence, and since the facts of a public use and necessity were found by the trial judge to exist, we are led to the result that the writ was improvidently granted.
Reversed and writ of prohibition vacated.