Fabric Fire Hose Company v. Mayor And Board of Aldermen of City of Vicksburg

• Decision Date: 04 March 1918
• Citation: 77 So. 911,117 Miss. 89
• Court: Mississippi Supreme Court
• Parties: FABRIC FIRE HOSE COMPANY v. MAYOR AND BOARD OF ALDERMEN OF CITY OF VICKSBURG

77 So. 911

117 Miss. 89

FABRIC FIRE HOSE COMPANY v. MAYOR AND BOARD OF ALDERMEN OF CITY OF VICKSBURG

Supreme Court of Mississippi

March 4, 1918

March 1918

Division B

APPEAL from the chancery court of Warren county, HON. E. N. THOMAS Chancellor.

Bill by the Fabric Fire Hose Company against the Mayor and Board of Aldermen of the City of Vicksburg. Decree for defendant, and plaintiff appeals.

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

Affirmed.

J. B Dabney, for appellant.

Counsel for appellee rely upon the case of Village of Gandsi v. Town of Seminary, 49 So. 908, in support of the contention that this attempt on the part of the city to annex the greater part of Walters was void. In that case it is held that while the purpose of the legislature was clearly to prevent the concurrent existence of two adjacent municipalities where one had more than five hundred inhabitants, yet, there was no way prescribed whereby one municipality could absorb another without the consent of the latter.

It occurs to us that the two cases are not necessarily parallel, for in the Gandsi case the inhabitants were unwilling to be annexed to Seminary and opposed being absorbed, while in the instant case there was not only no objection raised at the time, but a few months afterwards the people of Walters surrendered their charter and submitted quietly to being taxed by the city of Vicksburg, which they have been ever since. Why was this not a full compliance with the statutes? Its language is that such smaller municipality "shall be abolished" when the said existing city or town shall extend their limits to take in said territory. It does not say "shall stand abolished." The people of Walters almost immediately proceeded to act under the command of the statute and surrender their charter.

But even tho it be conceded that the first attempt of the defendant city to annex this territory was invalid, it will be admitted by appellee that the last ordinance adopted by Vicksburg (January 1, 1917) in that regard was valid and accomplished the purpose attempted by the first, the town of Walters having, long before this last ordinance ceased to exist and the territory formerly embraced in same having become "adjacent unincorporated territory." This last ordinance was adopted to make the matter certain and leave no doubt as to said territory having been properly annexed.

If, then, the former attempt was valid, under the statute itself the defendant city became liable for the debts of Walters, for the statute provides that when so taken in "all legal debts and liabilities shall be assumed by the city or town and they shall be legally responsible for same as if they had been contracted by the said city or town."

If said first attempt was not valid, then the city is still liable for said debts, for by our own statutes and by the decisions of all the courts, the land formerly in Walters is impressed with a lien for their payment; the debt of appellant was a valid and subsisting obligation on which a judgment had been procured and was duly enrolled, and the defendant city annexed said lands with full notice and cum onere.

Our own supreme court once held that the annullment of the charter of a municipality extinguished its debts (Port Gibson v. Moore, 13 S. & M. 157), but this decision was afterwards overruled in the case of Ross v. Wimberly, 60 Miss. 345, in which Judge CHALMERS delivered the opinion of the court and said: "On the 20th of January, 1880, the charter of the town of Coffeeville was repealed by the legislature. One month thereafter the town was reincorporated by the same name, with substantially the same powers with some excision of territory and population. The legal effect of this was, not to extinguish the debts of the original corporation, but to leave them subsisting as valid obligations against the new one. 1 Dill. on Mun. Corp., sec. 170; Broughton v. Pensacola, 93 U.S. 266; Girard v. Philadelphia, 7 Wall. 1.

"The case of Port Gibson v. Moore, 13 S. & M. announcing a different view, is contrary to the whole current of modern authority and is overruled."

Here we see that the new corporation created out of a part of the same land was held liable for the debts of the old town, the charter of which had been surrendered. The old town was abolished, as in the instant case, the territory remained unincorporated for a time, a new town was formed out a part of this territory. In effect, these exact steps were taken in the instant case, the only difference being that the territory was made part of an existing city instead of being formed into a new town. The point is that liability for the debts followed the property and we can see no real difference between the Coffeeville case and that of Vicksburg and Walters. In the former it might have been and doubtless was urged that there was no statute exactly covering the case.

The property of the individual inhabitants cannot be levied upon under the judgment but can be reached only through taxation by some power authorized to levy and collect a tax. Horner v. Coffee, 25 Miss. 434; Jefferson City Gas Light Co. v. Creeman Clark and City of New Orleans, 95 U.S. 644, 24 L.Ed. 523; State v. Hamilton, 40 Kans. 323; The Saphire, 78 U.S. 11 Wall. 164; 20 Wall. 127; Broughton v. Pensacola, 93 U.S. 266; 23 U.S. 896; Mount Pleasant v. Beckwith, 100 U.S. 514; 25 U.S. 699; State of Kansas v. Charles Edward Lewis, 133 U.S. 198, 33 L.Ed. 604; Mount Pleasant and Caledonia v. Beckwith, 100 U.S. 414; Colchester v. Seaber, 3 Burr. 1866.

"Municipal debts cannot be paid by an act of the legislature annulling the charter of the municipality, and, if not, then the creditors of such a political division must have some remedy after the annullment takes place. Without officers, or the power of electing such agents, a municipal corporation if it can be called, would be an entity very difficult to be subjected to judicial process or to legal responsibility; but when the entity itself is extinguished, and the inhabitants with its territory and other property are transferred to other municipalities, the suggestion that creditors may pursue their remedy against the original contracting party is little less than a mockery. Public property with the inhabitants and their estates, and the power of taxation, having been transferred by the authority of the legislature to the appellants, the principles of equity and good conscience require that, inasmuch as they are and have been for nearly twenty years in the enjoyment of the benefits resulting from the annexation, they shall in due proportions also bear the burdens. New Orleans v. Clark, 95 U.S. 644, 654, 24 L.Ed. 521, 522; Beckwith v. Racine, 7 Biss. 142, 149. Where the legislature has repealed a municipal charter, or superseded a municipality by dissolving it or destroying its indentity without making provision for its debts, one of three results must follow: 1. Either the act which does this is wholly void and inoperative, from which it would result that the legal existence and identity of the indebted municipality will remain; or, 2. The creditor is without remedy except by an appeal to the legislature; or 3. Equity will assume jurisdiction, treating the property subject to taxation as a fund out of which the creditor is entitled to payment, and will order the officers of the new organizations within which such property is situate, to levy thereon the necessary taxes to pay the creditor. This last result, although supposed by some to be inconsistent with views expressed by the supreme court, in cases where the precise question now under consideration was not in judgment, has been judicially sanctioned by the United States court for Wisconsin; and where the circumstances are such as that equity can clearly afford a practicable remedy without doing injustice to others, it is based upon considerations which commend themselves to the sense of universal justice. This view, since the foregoing was written, has received the sanction of the supreme court of the United States." Dillon's Municipal Corporations, 173, 186.

Beginning with the year 1910, the City of Vicksburg has, each year, collected taxes on eighty-three and one-third per cent. of the property formerly embraced in the town of Walters. Many times over has the amount of the debt been paid into the city treasury from this source. At the time of the annexation, whether it was in 1909 or in 1917, the judgment in appellant's favor against the town of Walters was on the judgment roll of Warren county. The annexation was made with full knowledge of the facts. We cannot but believe that, under all the circumstances of this case, this honorable court will hold the city of Vicksburg liable for this entire debt.

Anderson, Vollor & Kelly, for appellee.

Appellant's bill is many barrelled, and each barrel loaded with different kinds of ammunition. It is intended to shoot almost any kind of game that may present itself. The prayer is divided into four parts: 1. For a decree against appellee for the full amount due it under its judgment, with interest and costs. 2. If mistaken in this, for that proportion of said judgment as the territory taken in bears to the whole territory of Walters. 3. For mandamus to compel appellee to levy and collect a special tax from the property of this territory sufficient to pay said debt; and, 4. For anything that the court under the facts chooses to give it.

We will consider the first two of these prayers together, and in doing so will follow appellant's brief and review its authorities. We desire to say, however, that under no circumstances, we apprehend, will the city of Vicksburg be required to pay all of the indebtedness of the whole town of Walters. While appellant claims in...