City of Pascagoula v. Krebs

Citation118 So. 286,151 Miss. 676
Decision Date01 October 1928
Docket Number26500
CourtUnited States State Supreme Court of Mississippi
PartiesCITY OF PASCAGOULA et al. v. KREBS et al. [*]

(In Banc.)

1. MUNICIPAL CORPORATIONS. Municipal ordinance, undertaking to extend its limits to include territory of existing town without its consent, held void.

Ordinance whereby municipality undertook to extend its limits to include therein a considerable portion of territory of another existing town, functioning as such, and continuing to function for many years thereafter without consent or any action on part of such town, held void, since one municipality cannot so extend its boundaries so as to include another municipality without its consent.

2. MUNICIPAL CORPORATION. Municipal ordinance, extending limits to include territory of existing town without its consent, is subject to collateral attack (Code 1906, section 3301).

Municipal ordinance, pursuant to Laws 1902, chapter 103 (Code 1906 section 3301), attempting to extend municipal limits so as to include territory of another existing town without its consent, is subject to collateral attack by proceedings to enjoin collection of taxes, as being void and of no effect.

3 JUDGMENT. Motions. Void decree, order, or judgment, sought to be imposed on one injured thereby, may be assailed anywhere.

A decree, order or judgment absolutely null and void may be assailed anywhere, when it is sought to impose such void order or decree upon one who is injured thereby.

4 STATUTES. Local laws attempting to validate ordinance extending municipal limits to include territory of existing town held invalid (Laws 1912, chapter 393; Loc. & Priv. Laws 1926, chapter 505; Const. 1890, section 88).

Laws 1912, chapter 393, and Loc. & Priv. Laws 1926, chapter 505, undertaking to validate ordinance of municipality attempting to extend its limits to include territory of existing town without its consent, held invalid, under Const. 1890, section 88, as an attempt to amend charter of municipality by local act.

HON. V. A. GRIFFITH, Chancellor.

APPEAL from chancery court of Jackson county, HON. V. A. GRIFFITH, Chancellor.

Two separate suits by E. E. Krebs and another against the city of Pascagoula and others; both cases being tried together. From the decree, defendants appeal, and complainants cross-appeal. Affirmed on direct appeal, and reversed and rendered on cross-appeal.

Affirmed on direct appeal, and reversed on cross-appeal.

H. B. Everitt, for appellants.

Cited: Thompson on Real Property, section 3101; Bowers v. Andrews, 52 Miss. 603; Doe v. Jackson S. & M. 494; Peacher v. Strauss, 47 Miss. 353; Gex v. Dill, 86 Miss. 21; Tucker v. Field, 51 Miss. 193; Doe v. King's Heirs, 3 Howard 125, at page 144; 4 R. C. L. 110, sections 47 and 48; 28 Cyc. 214; Feemster v. City of Tupelo, 121 Miss. 733.

The ordinances and acts involved here were not the enlargement of the boundaries of the municipality confined by the statute to unincorporated territories, but was a proceeding under a different section authorizing a consolidation of the boundaries of two municipalities into one. Under this section and authority the statute provides that when the boundaries of the two municipalities are brought together, they shall constitute the boundary and become one municipality and that was what was done here. But in doing this in the manner pointed out by the statute, there was inadvertently taken in a part of the territory of a third municipality.

If the description of the boundary of the city is sufficiently certain or is made certain by the assumption and exercise of jurisdiction within certain lines, then the individual complainants in this case are challenging the right to exercise such franchise by proceedings in the nature of quo warranto. The universal rule is that the right of a municipality to exercise such franchise cannot be challenged by the individual citizen. The right to be a municipal corporation is a franchise which the state may grant or withhold at its pleasure and the right to institute proceedings against an existing de facto municipal corporation to arrest the usurpation of such franchise by filing an information in the nature of quo warranto, a substitute for the ancient writ, is in the discretion of the attorney-general alone. Dillon on Municipal Corporations (5 Ed.), section 1560; 32 Cyc. 1424; State v. City of Sarasota (Fla.), 109 So. 473.

It was argued in this case and may yet be contended that the legislation involved in the establishment of this corporation boundary was local legislation in violation of sections 87 and 88 of the Constitution. It is sufficient to reply to this argument that section 89 of Eastside has not, nor has the attorney-general on its behalf, challenged that right. This being the case and the town of Eastside having gone out of existence, can these individuals be heard to call the consolidated city to account after said consolidated city has functioned as a municipality under such proceedings and boundary limits for more than fifteen years?

H. P. Heidelberg, for appellees.

Cited: Goff v. Avent, 122 Miss. 86, and 129 Miss. 782; Lumber Co. v. Strayhand, 128 Miss. 54; Griffith v. Vicksburg, 102 Miss. 1, 58 So. 781; Sykes v. Columbus, 55 Miss. 115; Bolles v. Brimfield, 30 L.Ed. 786, 8 Cyc. 1023; Cole v. Door (Kan.), 22 L. R. A. (N. S.) 534; Town of Enterprise v. State (Fla.), 10 So. 740; Strange v. Dubuque, 62 Iowa 303, 12 C. J. 1091; Munette v. State, 91 Miss. 662, 44 So. 989; Feemster v. Tupelo, 121 Miss. 733, 83 So. 804; Lumber Yard v. Railroad Co., 96 Miss. 116, 50 So. 445; State v. Marshfield, 100 Miss. 626, 50 So. 892; Atchinson v. Feldor, 78 Miss. 83, 29 So. 767; Boom Co. v. Dixon, 77 Miss. 587, 28 So. 724; Ball v. Merriday, 67 Miss. 86, 6 So. 619.

In conclusion we desire to say that it seems to us that the appellees have in this case suffered a grievous legal wrong. This record disclosed the condition of affairs that they in no wise or manner brought upon themselves; they were inhabitants and citizens of Eastside until that municipality was abolished; they did not know that immediately upon the abolishing of that municipality they became citizens of Pascagoula and apparently the appellant did not consider them such, yet, when the appellant attempted to throw out its tentacles and draw them within its limits they resisted; they went to the court where they had a right to go and their cause was heard; the chancellor who then stated that the case was brought with such grave consequences that he would not decide but pointed the appellant to the legislature, the legislature acted by an act that we submit if not unconstitutional and of no effect is to say the least a most remarkable statute and then the court comes along and says that everything previous to that was invalid and illegal but that legislative act cured everything and now the appellees by proceedings that, if not unconstitutional and invalid, is a remarkable demonstration of justice delayed and legislative enactment curing what was heretofore invalid and imposing upon the appellees a burden by legislation that, to say the least, is local in its nature, pernicious in its results, and burdensome to those that it affects most directly.

Ford, White, Graham & Gautier, for appellees.

The case resolves itself into the following questions: Can property lying within a township, divided according to the certified township plat, into sections, numbered one to eleven inclusive, be described definitely and with certainty if described with reference, to regular sections, as though the lines of the said regular section could be seen by looking at the certified township plat, when in fact no regular sections exist?

Can parol testimony be introduced in an effort to make description in reference to nonexisting regular sections definite and certain when applied to actually platted sections?

Can a municipality legally extend its boundaries so as to embrace therein, territory then lying wholly within another then existing and functioning municipality?

Can a legislative enactment in the nature of a curative act, give validity to a municipal ordinance establishing a boundary, when the ordinance which it attempts to validate was void because of ambiguous and uncertain description and was also void because it attempted to take into a municipality, property then lying wholly within another existing municipality? In other words, can the legislature ratify and validate that which it could not authorize in the first instance?

Can the legislature, by enactment subsequent to the trial of a case, establish and define the boundaries of a municipality by special act, in utter disregard of the general laws extant for the extension of and the defining of municipal boundaries?

Does such a legislative act violate sections 87 and 88 of the Constitution of the state of Mississippi?

Can such an act, curative in nature, relate back and validate former void ordinances and legislative enactments?

We submit that the lower court properly held that a boundary line could not be established definitely and with certainty in township 8 South, range 6 West, when such line was described with reference to regular sections which did not exist, and that parol evidence could not be resorted to in an effort to establish such boundary lines; and that the certified township plat was controlling and could not be gone behind or disregarded.

This answers the first question and subquestion, and the decision of the chancellor cannot be assailed in the face of the opinions of this court in the following cases: Goff v Avent, 122 Miss. 86; 129 Miss. 782; H. Weston Lbr. Co. v. Straham et al., 128 Miss. 54; Lott v. Rouse, 111 So. 838; Fabric Firehouse Co. v. City of Vicksburg, 117 Miss. 89; ...

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9 cases
  • State ex rel. Jordan v. Mayor and Commissioners of City of Greenwood
    • United States
    • United States State Supreme Court of Mississippi
    • March 31, 1930
    ...... territory is void where it embraces another incorporated. municipality. . . City of. Pascagoula v. Krebs, 151 Miss. 675, 118 So. 286;. Fabric Fire Hose Co. v. Vicksburg, 117 Miss. 89, 77. So. 911; Gandsi v. Seminary, 95 Miss. 315, 48 So. ......
  • City of Lexington v. Wilson's Estate
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    • United States State Supreme Court of Mississippi
    • November 20, 1933
    ......787; Chester v. Black, 6 L. R. A. 804. . . No. appeal is requisite from a void judgment. . . Pascagoula. v. Krebs, 118 So. 290, 151 Miss. 676; Paepcke-Leight Lbr. Co. v. Savage, 101 So. 711, 136 Miss. 742; Theobald. v. Deslonde, 93 Miss. 214; 34 ......
  • City of Greenwood v. Humphreys
    • United States
    • United States State Supreme Court of Mississippi
    • April 14, 1930
    ...... jurisdictional requirements of the statute, they are subject. to collateral attack. . . City of. Pascagoula v. Krebs et al., 151 Miss. 675, 118 So. 286; Fabric Fire Hose Co. v. Vicksburg, 117 Miss. 89, 77 So. 911; Gandsi v. Seminary, 95 Miss. 315, 48. ......
  • State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 40216
    • United States
    • United States State Supreme Court of Missouri
    • February 23, 1950
    ...... In support of their above contention we are cited to City of Pascagoula v. Krebs, 151 Miss. 677, 118 So. 286, and other like cases. The rule of those cases was applicable under the facts of those cases. But in the ......
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