Opinion
No. 33342.
October 31, 1938.
MUNICIPAL CORPORATIONS.
Where the municipal board of city was engaged at a regular meeting in the preliminary work of reviewing and revising the assessment rolls preparatory to giving the taxpayers notice of date when they might appear and be formally heard, and board adjourned to meet from day to day and time to time to revise the assessment rolls, but did not meet again until the third day thereafter, the meeting on the third day thereafter at which all members of the board were present and acting on the stated subject was valid for the purpose of the business then in hand, as against contention that failure to meet on succeeding day after adjournment exhausted the adjournment order, and that to resume on third day thereafter required a written call for a special meeting.
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
R.M. Kelly and Chaney Culkin, all of Vicksburg, for appellant.
We contend that when all of the members of the board are present and participating in a meeting for consideration of matters within the jurisdiction of the board that such meeting is as valid as any meeting that could be held under the procedure provided for holding "special meetings." Especially should this be true when the meeting was being held under a resolution of the board "to meet from day to day" for completion of work the board had undertaken to do. We can find nothing in conclusions reached by our Mississippi courts to refute such view.
19 R.C.L., sec. 184; 2 McQuillin Municipal Corporations, sec. 603.
Mayor and all aldermen being present, meeting held a valid and "called" meeting, though notice was not given.
Ryan v. Tuscaloosa, 155 Ala. 479, 46 So. 638; Sommercamp v. Kelly, 8 Idaho 712, 71 P. 147.
A meeting of a council not on a regular meeting day though held without notice, is valid if all the members are present and consent to the holding of the meeting.
Nelson v. South Omaha, 84 Neb. 434, 121 N.W. 453; Moore v. Perry, 119 Iowa 423, 93 N.W. 510.
Meeting pursuant to adjournment of regular meeting, is regular, not special meeting, and continuation of regular meeting, and any business permissible to be transacted at regular, of course, may take place at adjourned.
Docket v. Old Forge Borough, 240 Pa. 98, 87 A. 421; Commonwealth v. Fleming, 23 Pa. Super. 404; 2 Dillon, Municipal Corporations, page 866, sec. 534.
The presumption of regularity which attaches to the acts of public officers extend to and includes corporate meetings. Thus, if it appears that a special meeting of the city council has been held, it will be presumed, in the absence of proof to the contrary, that it was regularly called. A similar presumption attaches to the proceedings of adjourned meetings. To support the proceedings thereat, it will be presumed that the stated or original meeting was rightly adjourned and the adjourned meeting duly convened.
2 Dillon, Municipal Corporations, page 870, sec. 538; Lander v. Mercantile National Bank, 186 U.S. 459, 46 L.Ed. 1252.
From syllabus of Lum v. City of Vicksburg, 72 Miss. 950, 18 So. 476, "A city charter required notice of the meeting of the board for the revision of assessment rolls to be given property owners and required all committees of the board to report matters referred to them for confirmation by the board, and authorized adjournment of any meeting from time to time. Held, that the proceedings at an adjourned meeting were binding on one who had notice of the first meeting but did not attend."
Cato v. Gordon, 63 Miss. 320; Natchez v. Cotton Oil Mills Co., 155 Miss. 533, 124 So. 759; Wolfe v. Murphy, 60 Miss. 1.
Proof of publication was made, the charter and ordinances provide for delay in filing of the rolls (illness of city assessor). Appellee was notified not only by publication as required, but by being served personally with notice of raise in his assessment by the city marshal and everything was done that was required to be done, and more, for the protection of this taxpayer.
Brunini, Wright Brunini, of Vicksburg, for appellee.
Since a municipal council can speak only through its records, it should keep an accurate record of its proceedings, and the statutes imposing this duty are mandatory. If we were to classify the minutes of the meeting of January 7th, as set out therein, as being a special meeting, the record is silent as to how said special meeting was called, and upon what authority the call was made, and being classified as a special meeting, all statutory requirements must be clearly shown on the minutes in order to effect a legal meeting, and to give the Mayor and Aldermen of the City of Vicksburg jurisdictional authority.
The Supreme Court of the State of Mississippi, speaking through Mr. Justice McGowen in Wilson v. City of Lexington, 153 Miss. 212, 121 So. 859, has the following to say: "The Mayor and Aldermen of Lexington is a body of limited and special jurisdiction, and the minutes of this board must show a compliance with the statute in order to transact any business at a special meeting . . . These statutes are to be strictly construed and must be complied with. Especially is this true where the most important action in the whole proceeding under this chapter, so far as the taxpayer is concerned, is taken, to-wit, what the improvement is to cost and the amount of the lien to be declared upon his property. It may be said that opportunity at the next meeting was given the property owner, the appellant, to make complaint and defense of any irregularity. But he was not presented with a valid notice of assessment. The assessment was a mere scrap of paper, a nullity. It was a void proceeding. . . ."
We do not therefore conceive that if the court would have taken the contention of appellant in the instant case, and called the meeting of January 7, 1937, a special meeting, the court would have found any other decision than that which was arrived at by the court in the announcement that the meeting of January 7th was declared void and illegal, because (1) it was not a special meeting, and (2) if it was an adjourned meeting it was irregularly held, because nothing is shown in the minutes of the meeting of January 4th calling for a meeting on January 7th. The language of the minutes of January 4th provides that the Mayor and Aldermen were to meet from day to day and from time to time. Perhaps it would be advisable to define the language of the minutes of January 4th. The courts have uniformly held that meetings "from day to day" mean "from one day to the next succeeding day."
27 C.J. 909; Burns v. Lyons, 4 Watts 363; 2 Words Phrases (2d Series), 671; Wood v. Meyer, 36 Wisc. 308; Collins v. Sherwood, 50 W. Va. 133, 40 S.E. 603.
We are of the opinion that the Honorable Circuit Judge is eminently correct in determining that the meeting of January 7th was void and illegal and that all actions made thereunder were of no effect.
No proof of publication of notice to taxpayers was legally filed.
Austin-Western Road Machinery Co. v. Webster County, 154 So. 723; Meridian National Bank v. Hoyt Bros. Co., 74 Miss. 221.
No land roll for the year 1936 was filed by the assessor within the time prescribed by law. No notice to the board was given by the assessor of the completion of his rolls within the time prescribed by law.
We are of the opinion from reading Section 5 of the Assessment Ordinance that it is mandatory upon the city assessor to have his roll presented on or before the First Monday of October, but that the board may fix a later time when the rolls will be accepted. In the absence of a fixing by the board of the time when the roll could be presented, no roll subsequently presented could be validly approved by said board.
The Board of Mayor Aldermen reviewed the rolls, and without notice to this taxpayer. The committee of the whole reviewed the rolls without notice to the taxpayer.
In addition to the argument with reference to the adjournment from day to day and from time to time, the record does not show the compliance with the statute of any notice having been served upon the taxpayer herein.
The raise in the assessment from $1000 to $4325 was made by the board after the time permitted by law.
The proof does not disclose that the proof of publication was published in the official newspaper of the City of Vicksburg.
Section 4 of the Assessment Ordinance.
ON SUGGESTION OF ERROR.We are firmly of the opinion that this honorable court should remedy this injustice and re-write its opinion, affirming the lower court because of the fact that the Mayor and Aldermen of the City of Vicksburg have not complied with its own charter, as shown by the evidence, which re-writing of the opinion would give this taxpayer the justice to which he is entitled. Failing to agree with this expression, we again submit the only order that can be entered is that this case be reversed and remanded for a new trial in the lower court.
Argued orally by R.M. Kelly, for appellant, and by Alex Brunini, for appellee.
The governing authorities of appellant City raised the assessment of appellee above the valuation returned by him to the city assessor, and an appeal having been taken to the circuit court, a directed verdict was there ordered against the City, and an appeal to this court has followed.
The City of Vicksburg is governed under an ancient special legislative charter, but the scheme therein for the assessment of municipal ad valorem taxes is, in its general principles, in accord with the plan for the assessment of such taxes under the Code chapters on municipalities, and on revenue, although the time for doing so is different.
In the case here in hand, the city assessor submitted his assessment rolls to the municipal board at its regular meeting on December 7, 1936; and it was ordered that the rolls be received and that the board, as a committee of the whole, would meet "from day to day and time to time for the purpose of revising and considering said rolls."
The revision had not been entirely completed when the regular meeting came on to be held on the first Monday, the 4th day of January, 1937, at which meeting, after attending to other matters, the board concluded its minutes with the recital: "On motion the board adjourned to meet from day to day and time to time to revise the assessment rolls." There was, however, no meeting on the following day, January 5th, nor on January 6th, but the next meeting was on January 7th, there being, therefore, an elapse of two days.
At the meeting of January 7th, steps were taken, vital to the validity of the assessment, so that if this meeting was without authority of law, there was no completed assessment — hence no legal assessment at all.
It is the contention of appellee that when the board adjourned on January 4th to meet again from day to day thereafter, the failure to meet on the succeeding day exhausted the adjournment order and that to resume on January 7th, a written call for a special meeting became necessary, which call was not made; in brief, that all that was done on January 7, 1937, was of no legal effect and void; and the trial court held to that view.
To the above contention appellant City has replied that in respect to the prolonged examinations and sessions required in the preliminary equalization of ad valorem assessments, the opinion in Wolfe v. Murphy, 60 Miss. 1, 15, is applicable and is decisive in appellant's favor. Without addressing ourselves to that decision, we prefer to rest our conclusion upon the fact that all members of the governing board were present and acting on the stated subject at the meeting of January 7th, and that it is immaterial, a mere clerical matter, that the meeting of said date was denominated in the minutes thereof as "an adjourned regular meeting," since, in any event, it was a valid meeting, all members being present.
It is laid down by the weight of authority, in fact there is but little dissent from it, that a special meeting of a municipal board, — which means, of course, a meeting held at any time other than that fixed for regular meetings, or by reason of valid adjournments therefrom, — is legal when all the members are present and acting although no notice of the meeting was issued or served. It is said that when all are present and acting, everything has been accomplished which a notice would have secured. 19 R.C.L., p. 885; 43 C.J., p. 501; 2 Dillon Munic. Corp. (5 Ed.), p. 886; 2 McQuillan Munic. Corp. (2 Ed.), p. 45.
Without committing ourselves to the foregoing statement as a general rule in this state, we do hold that the announcement is good as to those meetings wherein the board is engaged in the preliminary work of reviewing and revising the assessment rolls, preparatory to giving the taxpayers notice of a date when they may appear and be formally heard. The work at those preliminary meetings has no finality as to the taxpayer, — it is no more than to prepare the rolls into what are, in effect, completed proposals by the board in regard to the assessments, as against which proposals the taxpayer has a right to be heard later and before the proposals can become final. The work of preliminary review and revision may properly be termed a mere matter of administrative detail. It is not contemplated, and certainly it is not essential, that the taxpayer is to be heard or is even to be present at those prolonged examinations. As already mentioned, the taxpayer's time to be present and to be heard is later, after notice has been given him of the day when he will be heard.
For these reasons we conclude that the meeting on January 7, 1937, for, and to the extent of, the purpose and business then in hand, was valid. We have examined the other objections raised by appellee, but do not find them sufficient to avoid the assessment.
Reversed and judgment here for appellant.
ON SUGGESTION OF ERROR.
The suggestion of error filed herein will be overruled except in so far as it seeks to set aside the final judgment rendered here and procure a remand of the case to the court below for further proceedings. To that extent the suggestion of error will be sustained, the final judgments will be set aside, and one remanding the case to the court below will be entered.
So ordered.