City of Jackson v. Whiting

Decision Date23 May 1904
Citation84 Miss. 163,36 So. 611
CourtMississippi Supreme Court
PartiesCITY OF JACKSON v. WILLIAM A. WHITING ET AL

March 1904

FROM the circuit court of, first district, Hinds county HON. DAVID M. MILLER, Judge.

The city of Jackson, plaintiff in the circuit court, was the appellant; Whiting and others, defendants in the circuit court, who had appealed to that court the city ordinance proposing to extend the city limits, were appellees in the supreme court.

The facts are fully stated in the opinion of the court.

Judgment reversed and case remanded for new trial.

McWillie & Thompson, for appellant.

At the time of the passage of the ordinance enlarging the boundaries of Jackson, there can be no question but that the municipal authorities of the city had the right to pass it. The ordinance, when passed, was a valid ordinance. It did not take effect at once in the sense of extending the city limits instantly, but it was a valid ordinance, and it invested the city with a right. The right was to have the limits extended as provided in the ordinance, by mere lapse of time, unless an appeal was prosecuted within the time limited therefor and if an appeal were so prosecuted, to have the limits extended unless upon an issue made, as to the reasonableness or unreasonableness of the proposed extension, it should be adjudged by the circuit court that the proposed extension was unreasonable. The right just stated was vested in the city when the ordinance was passed. The right stated could not be defeated by the governor of the state, it could only be defeated in the way provided by the statute for so doing. At the time of the passage of the ordinance, Duttoville was not incorporated, nor was the territory which the city proposed to annex incorporated territory. If there be evidence in the record (and if there be it is slight, too slight to predicate a judgment of it) showing or tending to show that the inhabitants of Duttoville were getting up a petition or publishing one by posting, asking the governor to incorporate that territory, these acts and doings by the inhabitants had no legal effect. The petition was not presented to the governor until long after the passage of the ordinance by the city of Jackson. It is shown of record to have been presented to the governor on the 13th of August, 1903, and the ordinance was passed on the 23d of July, 1903. Duttoville was not chartered as a village until the 20th of August. The acts and doings of the people of Duttoville, before presenting their petition to the governor, had no legal effect whatever on the rights of the city of Jackson. When this case on appeal from the municipal authorities reached the circuit court, the law provided in express terms what should be done with it there. It is provided, § 2913, Code 1892, and by the amendment of 1902, that the case was to be tried on an issue to be made up, "and the question shall be whether the proposed extension of the corporate limits be or be not reasonable." The city of Jackson acted upon the idea that the circuit court would follow the course of procedure laid down in express terms for its guidance by the law of the state. So assuming, it tendered an issue in accordance with and in the very language of the statute. The appellees would not join therein, nor would the circuit court require them to do so. They carried the court away from the positive mandate of the statute for its guidance, and brought into the case the consideration of supposed political or governmental difficulties that might arise from obeying the law.

If the statutes be inconsistent, this was no excuse for the circuit court disobeying direct commands for its government. The provisions of the code about the incorporation of hamlets and unincorporated villages pertains to an entirely different subject-matter. Sec. 2913 of the code, and the amendment thereto, directs what was to be done in the circuit court and by the circuit court. Sec. 2921 may contain directions to the chief executive of the state, but certainly none for the government of the circuit court. The governor of the state undertook to follow, and doubtless thought he was following sec. 2921 when he granted the Duttoville charter, and believed that it laid down the rule for his conduct in the matter then before him. He must have acted upon the idea that his grant of the charter to Duttoville would not and could not be binding upon the circuit court in the trial of the appeal in this case, and no doubt he thought that the circuit court would follow the statute laying down the rule for its guidance.

The only question in this case is this: Shall the circuit court be compelled to obey the statute, or may it, at pleasure, depart from the rules of procedure laid down for its government? This court, we feel assured, will not anticipate political or governmental troubles which may be imagined to result from following a statute, and because thereof ignore the statute. If the court follows the statute, the city of Jackson is entitled to a trial as to whether the proposed extension of its boundaries be reasonable, and if a trial of that issue shall result in its favor, then by the language of the law itself, the boundaries are extended.

How anything that could be done by the governor or by the executive department of the government can defeat positive legislation, we cannot understand. Ita lex scripta est. Upon appeal in a case like this, an issue shall be made up for trial in the circuit court and that issue is whether the proposed extension of the corporate limits be or be not reasonable. Surely the presentation of the petition to the governor for the incorporation of Duttoville does not render wholly ineffectual the ordinance of the city of Jackson passed before the petition was so presented. The ordinance of July 23, 1903, was not a dead thing. The mere lapse of time would have put it into full operation without an appeal. Could the governor repeal that ordinance and wholly destroy it? If so, by what authority? Can any act of the governor control the circuit court in the trial of a case when the statute itself says what the court shall do? If so, by what authority? The circuit court itself could not defeat the ordinance of July 23, 1903, otherwise than by ad-judging, on the verdict of a jury to that effect, that it was unreasonable, and yet in this case the circuit court repudiated the law laid down for its government, became confused and destroyed the ordinance, and it did this upon a mere motion based on a mere conjecture.

Suppose it should result from inconsistent legislation that two municipalities covered the same territory. This would not be the fault of the courts, nor would it be any reason for the courts to disregard a plain statute. It would be a political or governmental complication for legislative correction, this and nothing more. Instances are not wanting of two municipalities covering the same territory, and no great crisis in the affairs of men resulted as a consequence.

Williamson & Wells, on the same side.

With the exception of constitutional limitations, the power of the legislature over public corporations is supreme; it may change, divide, and even abolish them, as it deems best. Dartmouth College v. Woodward, 17 U.S. 518; Girard v. Philadelphia, 74 U.S. 1; 1 Dill. Municipal Corp., 139; Vestal v. Little Rock, 11 L. R. A., 778 and note. This right of the legislature has been fully discussed and adjudicated by this court, and the law in this state is laid down in the following language:

"In their creation or abolishment the legislature is under no legal compulsion to consult the wishes of the inhabitants. . . . Their charters are altered or repealed, and their boundaries are contracted or enlarged, at the will of the general assembly, either with or without the consent of the persons affected thereby, as the legislature may see fit." Martin v. Dix, 52 Miss. 53.

If the lower court was correct in its ruling on the law in this case, no suburb of any city in the state of Mississippi, which contains as many as one hundred inhabitants, can ever be included in the corporate limits of the city, if such action be opposed by two-thirds of the electors residing in the suburb.

It might be desired by a large majority of the inhabitants. It might be desired by all the taxpayers. It might be conceded that the proposed extension of the city limits was entirely reasonable. The law providing for the extension of the city limits may have been strictly complied with, but if two-thirds of the electors, none of whom may be property owners or taxpayers, who learn of the proposed extension, choose to sign a petition praying for separate incorporation, and publish the petition for three weeks, and present it to the governor, the ordinance extending the city limits will be defeated.

The effect of a supersedeas is not to vacate or annul the judgment or decree, but merely to stay further proceedings upon it, and leave matters in the condition in which they were when the supersedeas took effect, and until the appellate court can hear the parties on the questions involved. Powell v. Florida, Co., 26 So. R., 700; Randles v. Randles, 67 Ind., 107; Curtis v. Root, 28 Ill. 367; Gruner v. Westin, 66 Tex., 209; Martin v. Land Co., 94 Va., 28; People v. Stephenson, 98 Mich., 218.

The question which was involved in the appeal of the instant case to the circuit court was whether or not the extension of the corporate limits of the city of Jackson was reasonable or unreasonable, and the appeal from the ordinance and the bond given, only operated as a supersedeas until the appellate court could hear the parties on that issue. But the lower court struck out the tender of this issue and dismissed the case for the reason...

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14 cases
  • State v. Kansas City
    • United States
    • Missouri Supreme Court
    • February 9, 1911
    ...52 Iowa, 460, 3 N. W. 494; Kelly v. Pittsburg, 85 Pa. 170, 27 Am. Rep. 633; Borough of Duquesne, 147 Pa. 58, 23 Atl. 339; City of Jackson v. Whiting, 84 Miss. 163, 36 South. 611; Paul v. Walkerton, 150 Ind. 565, 50 N. E. 725; McCoy v. Trustees of Cloverdale, 31 Ind. App. 331, 67 N. E. 1007;......
  • State ex rel. Jordan v. Mayor and Commissioners of City of Greenwood
    • United States
    • Mississippi Supreme Court
    • March 31, 1930
    ... ... Suggestion of error overruled. For ... former opinion, see 127 So. 704 ... Affirmed ... S ... Rosenthal, of Jackson, Means Johnston and S. L. Gwin, both of ... Greenwood, Chapman, Moody & Johnson, of Indianola, and Arthur ... Jordan, of Greenwood, for appellant ... were de jure corporations and not de facto corporations ... Ch ... 74, Laws of 1898 of Mississippi; Jackson v. Whiting, ... 84 Miss. 163, 36 So. 611; State ex rel. Boone et al. v ... Metts et al., 125 Miss. 819, 88 So. 125; 32 Cyc. 517; ... Wolsey v. Chapman, ... ...
  • State ex inf. Major v. Kansas City
    • United States
    • Missouri Supreme Court
    • March 2, 1911
    ... ... section on the same subject, section 34 of article 18. 26 Am. & Eng. Ency. Law (2 Ed.), 619; City of Westport ex rel ... v. Jackson, 69 Mo.App. 148; Brown v ... Commissioners, 21 Pa. St. 42; Harrington v ... Trustees, 10 Wend. 547. When the language of a statute ... 494; ... Kelly v. Pittsburgh, 85 Pa. 170; Borough of ... Duquesne, 147 Pa. 58, 23 A. 339; City of Jackson v ... Whiting, 84 Miss. 163, 36 So. 611; [233 Mo. 222] ... Paul v. Walkerton, 150 Ind. 565, 50 N.E. 725; ... McCoy v. Trustees of Cloverdale, 31 Ind.App ... ...
  • State ex rel. Boone v. Metts
    • United States
    • Mississippi Supreme Court
    • June 6, 1921
    ... ... the circuit court of Lafayette county, seeking to oust the ... city officials of the municipality of Oxford and obtain ... possession of these offices ... This section of the Code in the case of Jackson v ... Whiting, 84 Miss. 163, 36 So. 611, was held to be ... constitutional. In that case it ... ...
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