Opinion
No. 38355.
October 15, 1951.
1. Municipalities — special improvements including pavements — failure of abutting owners to object.
In an injunction suit by alleged abutting owners to prohibit proposed special improvements, including paving on a designated street, the contention by complainants that the street involved was in reality two streets is not sustainable when none of the complainants filed any protest against the proposal at or within the time required for such protests. Secs. 3673 et seq. Code 1942.
2. Municipalities — special improvements, including pavement — absence of plans on file.
The contention in the suit aforesaid that no plans and specifications were on file at the time for filing protests, is not well taken when no objections on that ground or any other ground were made by any of the complainants, and their failure to so object amounted to a waiver thereof. Secs. 3673, et seq. Code 1942.
3. Municipalities — special improvements including pavements — action by municipal authorities at adjourned meeting.
The contention in the suit aforesaid that the municipal council did not enter its order for the improvements at the meeting at which the property owners were notified as the time for filing their protests, if any, but adjourned the meeting and acted at a subsequent meeting is not well taken since the city council was entitled to take such time as it deemed reasonably necessary to consider the protests by other property owners and did not lose jurisdiction to pass upon said objections at a subsequent meeting. Secs. 3673 et seq. Code 1942.
4. Municipalities — special improvements — protest filed out of time.
The contention in the suit aforesaid that a protest filed by the complainants on May 5, 1951, was in due time is not well taken when property owners had been duly notified, as provided by statute, that their protests, if any, must be filed on or before September 12, 1949. Secs. 3673 et seq. Code 1942.
5. Equity procedure — interlocutory appeals — not to settle principles already settled.
When upon reading the bill of complaint for an injunction and the exhibits and the sustained demurrer thereto, it clearly appears that all the controlling principles of law involved have already been fully settled, an interlocutory appeal to settle the controlling principles will be dismissed as improvidently granted, but with leave to amend the bill as to any additional averments supplemented by additional exhibits, in view of the fact that the bill was not dismissed on the ground that the complainants declined or failed to amend.
Headnotes as approved by McGehee, C.J.
APPEAL from the chancery court of Lauderdale County; THOS. Y. MINNIECE, Chancellor.
Wilbourn Wilbourn, and Dunn Singley, for the motion.
It will be noted that the contentions of appellants as shown by their bill are:
1. That the street here involved was in reality two streets.
2. That in point of fact, no plans and specifications dealing with the improvements had been prepared, adopted and placed on file in the office of the City Engineer prior to their belated protest, Exhibit D, or at any time, and that there was not a sufficient designation as to the proposed pavement nor the materials to be used.
3. That the City Council did not enter an order as to nor determine at the meeting of September 12, 1949, whether such improvements should be made and how paid for, but adjourned the meeting of September 12, 1949, sine die; and then on November 12, 1949, entered its order relative thereto; and that thereby the City lost jurisdiction of the proceedings and its order of November 12, 1949, was void.
4. That the protest, Exhibit D, was in time and should have been sustained.
It is believed and submitted that the foregoing is a statement of all of appellants' contentions.
The points here raised are fully covered and decided against the contentions of the complainant in the case of McClure v. City of Natchez, 151 Miss. 718, 118 So. 615.
No interlocutory appeal from amendable bill.
We submit that appellants cannot lawfully by the expedient of declining to amend as they did at the time the demurrer was sustained, and asking for an interlocutory appeal, merely postpone determining whether or not they have an amendable bill. In effect, they are awaiting word from this Court as to whether or not they may amend and how. If the bill is amendable, no interlocutory appeal is allowable. Carothers v. Bank of Baldwin, 158 Miss. 602, 131 So. 111.
If the bill be not amendable so as to state a case for relief, then the appeal should be treated as an appeal from a final decree and affirmed. Parker v. Board of Supervisors, 125 Miss. 617, 88 So. 172.
Further authorities from which error of court in allowing appeal will appear:
1. Procedure when a demurrer is sustained.
(a) Griffith, Mississippi Chancery Practice, Sec. 311, p. 298; (b) Bishop v. Chickasaw County, 182 Miss. 147, 180 So. 395; (c) City of McComb v. Barron, 147 Miss. 465, 112 So. 875.
2. Propriety of granting interlocutory appeal.
(a) Griffith, Mississippi Chancery Practice, Secs. 680, 681, 682, 683, 684, pp. 753-761.
(b) Russell v. Crumpton, 208 Miss. 433, 44 So.2d 527. Holding that interlocutory appeal was improperly granted, but reversing decree dismissing petition, because no showing was made by the record that petitioner declined to plead further upon sustaining of demurrer.
(c) Hardy v. Candelain, 204 Miss. 328, 37 So.2d 360. Dismissing appeal because chancellor improperly granted interlocutory appeal after overruling demurrer.
(d) Jones v. Hickson, 204 Miss. 373, 37 So.2d 625. Approving the granting of an interlocutory appeal to settle all of the controlling principles where there was patent confusion among decided authorities.
(e) City of Biloxi v. Gully, 182 Miss. 723, 180 So. 821. Affirming decision of chancery court sustaining demurrer, but declining to remand case with reference to filing amended bill.
(f) Stirling v. Whitney National Bank, 170 Miss. 674, 150 So. 654. Dismissal of interlocutory appeal from overruling of demurrer for reason that entertainment of appeal would not settle all controlling principles of case.
(g) Federal Land Bank of New Orleans v. Fidelity and Guaranty Co. of Maryland, 165 Miss. 715, 147 So. 917. Entertainment of interlocutory appeal from sustaining of demurrer in what the Supreme Court described as an exceptional case.
(h) Carothers v. Bank of Baldwin, 158 Miss. 602, 131 So. 111. Dismissal of interlocutory appeal from decree sustaining demurrer.
(i) Liberty Trust Co. v. Planters Bank, 155 Miss. 721, 124 So. 341. Case in which Supreme Court dismissed interlocutory appeal of its own motion because appeal would settle only a part of the principles. Case contains exhaustive discussion of interlocutory appeals by Judge Griffith.
(j) Turner v. Carter, 159 Miss. 496, 132 So. 333. Dismissal of interlocutory appeal from decree sustaining demurrer where complainant had applied for additional time in which to plead. Note that this case cites cases decided by the Supreme Court before the enactment of Chap. 151, Laws 1924, indicating an intent on the part of the Court to hold that amendment including interlocutory appeals from decrees sustaining and overruling demurrers, had no effect on such appeals.
(k) Parker v. Board of Supervisors of Grenada County, 125 Miss. 617, 88 So. 172. Case in which complainant appealed from decree sustaining demurrer to settle principles, and Supreme Court treated interlocutory appeal as if it were appeal from final decree, for reason that Supreme Court concluded that no amendment could be made to the original bill of complaint.
(l) Armstrong v. Moore, 112 Miss. 511, 73 So. 566. Dismissal of interlocutory appeal from decree sustaining demurrer where complainant also obtained leave to amend original bill.
(m) Yazoo and Mississippi Valley Railroad Company v. James, 108 Miss. 656, 67 So. 152. Approval of the granting of an interlocutory appeal from decree dissolving injunction where the Supreme Court held that the question of the jurisdiction of the Court presented proper grounds for interlocutory appeal.
(n) Bierce v. Grant, 91 Miss. 791, 45 So. 876. Dismissal of interlocutory appeal from decree sustaining demurrer to cross bill, in which Court expresses rule that discretion of chancellor in granting interlocutory appeals is to be exercised with utmost caution.
(o) Barrier v. Kelly, 91 Miss. 166, 32 So. 999. Dismissal of interlocutory appeal from decree sustaining demurrer where complainant also obtained leave to amend bill.
(p) Clay County v. Chickasaw County, 63 Miss. 289. Dismissal of interlocutory appeal from decree of chancery court on exceptions to answer because such appeal did not settle the principles of the cause.
(q) Norris v. Burnett, 108 Miss. 378, 66 So. 748. Holding that interlocutory appeal from decree sustaining demurrer was properly granted and that, although Supreme Court affirmed decree sustaining demurrer, case was remanded to give complainant opportunity to amend.
The principles to be reviewed by this Court are the principles arising from the facts alleged by appellants in their original bill of complaint. But the appellants are not entitled to an interlocutory appeal to settle already settled principles.
There is no confusion in the applicable authorities. The applicable principles have heretofore been well settled by this Court.
Appellee submits that the tool of the interlocutory appeal was not designed to work delay, nor to again review already well-settled principles of law.
Geo. M. Ethridge, Jr., and Lyle V. Corey, contra.
It is our contention that the consideration to be given by the Court to this case on the pending motion should be confined to the propriety of the interlocutory appeal, and should not extend to the merits of the case. We are supported on this point by the decision of this Court in the case of Y. M.V.R. Co. v. James, et al., 108 Miss. 656, 67 So. 152.
On the question of the propriety of the appeal in this matter, counsel for appellee have cited numerous decisions of this Court. We have no quarrel with any of these decisions. A careful examination of these cases will reveal many which have no applicability to the case at bar. Such examination will also reveal some which furnish ample authority for the appeal in this case. For instance, Jones v. Hickson, 204 Miss. 373, 37 So.2d 625, wherein the Court said: "This demurrer was overruled and an interlocutory appeal was granted to settle all the general controlling principles of the cause, and to save expense and delay. We have retained the appeal because of some apparent confusion in the opinions of the Court, and because expense and delay will be avoided by decision of the issue on this appeal".
Opposing counsel have cited the case of McClure v. City of Natchez, 151 Miss. 718, 118 So. 616, as controlling this case. At the appropriate time for argument of this case of the merits, we will try to point out several distinctions between the McClure case and the case at bar. A careful examination of that case brings forth the conclusion that, because of a different state of facts, it can have no application to the present case. However, for the purpose of the consideration to be given to this motion, we believe it sufficient to point out that, at most, the McClure case can be compared to the present case in only one particular, the matter of plans and specifications, a detailed discussion of which would necessarily be included in a brief on the merits. There are a number of other questions involved in the case at bar, any one of which, if our reasoning should be correct, could easily reverse the course of this litigation. For instance,
1. Is a property owner precluded from making objections to a special improvement after the date fixed in the initial notice, or does the door remain open for objections so long as no steps have been taken or costs incurred in connection with the proposed improvement?
2. What constitutes a sufficient protest under the statute?
3. Does the governing authority or an interested property owner have the right to combine two or more streets into a single project in order to obtain the required majority of favorable owners?
4. Did the City Council have the right to adjourn the September 12, 1949, meeting sine die (thus requiring a property owner to attend council meetings day by day thereafter to know how his rights are being affected) or are the requirements of Sec. 3676 of the Code of 1942 jurisdictional?
And, on the one question of the plans and specifications, there are other decisions by this court which need to be considered in this case, as well as the McClure case. Any attempt to discuss and analyze such cases on this hearing would entail a detailed and lengthy discussion of the merits. See City of Jackson v. Tucker, 101 So. 708, 136 Miss. 787; City of Jackson v. Greaves, 134 Miss. 63, 98 So. 337; City of Jackson v. Hart, 117 Miss. 871, 78 So. 780; City of McComb v. Barron, 147 Miss. 465, 112 So. 875. The distinction which the McClure case makes as to some of these cases is not applicable to the case at bar.
The City Council of Meridian on August 12, 1949, proceeded under Chapter 194, Laws of 1924, as amended by Sections 3673-4-5-6-7 et seq., Code of 1942, to provide for the paving and other improvements of a thoroughfare designated as "Dogwood Drive, from South 22nd Avenue to street through Block B, Lakemont, thence westerly to and including the turn-around." In other words, the route proposed to be paved was to extend from 22nd Avenue along Dogwood Drive for a considerable distance and then follow a thoroughfare through a residential sub-division on which the lots in the sub-division abutted, and including that part of this extension of the route which constituted a "turn-around" on which some of the lots abutted, and so as to afford a paved thoroughfare from the lots abutting thereon out to the said 22nd Avenue and into the downtown section of the city.
Pursuant to its proposal to do this improvement, the City Council gave notice as provided for by Section 3675, Code of 1942, that on September 12, 1949, it would meet in the Council Chamber of the City Hall in the City of Meridian at 10 o'clock a.m. to hear and consider any and all protests of property owners whose lots abutted on the streets and avenues or parts thereof mentioned in a resolution published along with the notice, against the making of said improvements on any of such streets and avenues, and would determine whether or not said improvement should be made in whole or in part, and would also determine the proportionate costs to be assessed against any abutting property. The hearing of any protests "At said meeting or at a time or place to which same may be adjourned * * *" is provided for by Section 3676, Code of 1942, which declares, among other things, that "The determination of such governing authority shall be final and conclusive; provided, however, that if a majority of property owners actually residing on property owned by them and included within that part of any street, avenue, etc., ordered to be specially improved, or otherwise actually occupying property owned by them and included within that area shall file a protest, then the improvement shall not be made."
None of the appellants, Dr. C. Earle Johnson, Jr., and others, appeared at the meeting on September 12, 1949, to make objection, or otherwise then protested against the proposed improvement. In fact, the appellants, Dr. C. Earle Johnson, Jr., and his wife, Mrs. Kathleen Johnson, did not then own any of the abutting property, but subsequently acquired from Mr. and Mrs. M.J.L. Hoye, the major portion of the area as to which they and the Hoyes filed a protest on May 5, 1951, against being assessed with any part of the cost of such improvements.
In the meantime, the City Council had on November 14, 1949, adopted its resolution referring to its initial resolution of August 12, 1949, wherein it was adjudicated that the City Council deemed it necessary for the public good that such improvements should be made, and also reciting the publishing of the notice prior to September 12, 1949, as to the date for the hearng of protests on the part of the abutting property owners, the fact that the proof of publication was on file showing that the same had been published in the manner and for the time required by law, and that the City Council "would then and there hear all objections and protests made either in person, by petition, or by attorney." This resolution of November 14, 1949, adjudicated what streets and drives, including Dogwood Drive, should be included in the pavement program, and also the avenues that were to be included therein, and specified what streets and avenues were to be eliminated from the list mentioned in the initial resolution on the basis of the protests which had been heard and considered. This last mentioned resolution also adjudged that a majority of those property owners abutting on the streets which the City Council had determined to improve, under the provisions of Chapter 194 of Laws of 1924, as amended, had not protested against the making of said improvements, and the City Council therefore determined and declared that it would proceed with the said improvements along the several streets and avenues not eliminated from the initial resolution.
The appellants, the Johnsons and the Hoyes, filed their bill of complaint in June 1951, making all of the proceedings of the City Council, hereinbefore mentioned, as exhibits thereto, and sought a temporary injunction against the making of such improvements. A general demurrer was interposed by the City of Meridian, which was sustained by the trial court. Thereupon, the complainants failed to ask leave to amend their bill of complaint but asked for and obtained an interlocutory appeal to this Court from the interlocutory decree of the chancellor sustaining the demurrer, and without supersedeas, and such appeal was granted to the order sustaining the demurrer "to settle the controlling principles of the case." Insofar as the record discloses it was not then contended, nor is it contended now, that the appeal was granted to save expenses and delay.
No appeal was ever taken from any of the actions of the City Council on any matter adjudicated by it in the proceedings. And as we understand the contention of the appellants, they are (1) that the street or thoroughfare here involved was in reality two streets and that a majority of the property owners owning as much as 50% of the property abutting on either link thereof would have been entitled to protest; (2) that no plans and specifications dealing with the improvements had been prepared, adopted and placed on file in the office of the city engineer prior to the time of their filing the protest on May 5, 1951, and when the improvements had not been begun; (3) that the City Council did not enter an order at the meeting of September 12, 1949, determining whether such improvements should be made and how paid for, but adjourned that meeting sine die, and that not until November 14, 1949, did it enter its order relative thereto, the adjudications in which have been heretofore mentioned; and (4) that their protest of May 5, 1951, was in due time and should have been sustained.
The answer to the first contention is that (Hn 1) no protest was filed by any of the complainants, and that there was not a majority of the property owners owning as much as 50% of the property on either link of the proposed route who had filed a protest. The answer to the second contention is that (Hn 2) the City Council by its resolution of November 14, 1949, then adjudicated that the plans and specifications were on file, and we are of the opinion that otherwise this failure, if any there was, could have been cured if the complainants had made such an objection either on September 12, 1949, or on November 14, 1949, although they were required to file their protest on or before September 12, 1949, as required in the published notice, and as required by the statutes in question, as construed in the case of McClure v. City of Natchez, 151 Miss. 718, 118 So. 616, 618. In that case the Court said: "Section 4 of chapter 194, Laws of 1924, provides that, when the governing authority of a municipality considers objections of interested persons to a proposed improvement, it `may confirm, amend, modify or rescind the resolution of necessity.' One of the obvious purposes which this provision of the statute seeks to accomplish is that the governing authority of the municipality may have an opportunity to correct amendable defects in a resolution declaring a proposed improvement necessary; and its necessary implication is that the failure on the part of the persons interested in the improvement to object to such defects in the resolution is a waiver thereof. Failure to object is equivalent to consent; and `consent cures error.'" The answer to the third contention is that the (Hn 3) City Council was entitled to take such time as it deemed reasonably necessary within which to consider the protests by other property owners that were made on September 12, 1949, and did not lose jurisdiction to pass upon the said objections at a subsequent meeting. And the answer to the (Hn 4) fourth objection, as well as to the first and second, is that the controlling principles of law which govern their determination are fully settled in the case of McClure v. City of Natchez, supra, and other decisions of this Court.
(Hn 5) We are therefore of the opinion that the interlocutory appeal was improvidently granted and that the same should be dismissed, with the right of the complainants to amend their bill of complaint, as to any additional averments and to be supplemented by any additional exhibits that they may desire to make or file, since the bill was not dismissed on the ground that the complainants declined or failed to amend.
This is not a case where we are required to read a record of testimony on a plea and consider the merits of the case thereon on the question of whether or not the appeal should be dismissed. The question of whether or not the controlling principles of law have been fully settled can be determined, as we have done, by looking to the bill of complaint and the exhibits thereto, to which the demurrer was sustained, and it now clearly appears that all of the controlling principles of law as to the validity of the proceedings are fully settled.
It is therefore ordered that the appeal should be, and the same is, hereby dismissed.