Franklin v. City of Marks, 29302.

• Decision Date: 02 March 1971
• Docket Number: No. 29302.,29302.
• Citation: 439 F.2d 665
• Parties: Mr. William FRANKLIN et al., Plaintiffs-Appellants, v. CITY OF MARKS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

439 F.2d 665 (1971)

Mr. William FRANKLIN et al., Plaintiffs-Appellants, v. CITY OF MARKS et al., Defendants-Appellees.

No. 29302.

United States Court of Appeals, Fifth Circuit.

March 2, 1971.

Kent Spriggs, Oxford, Miss., Mose Kincaid, Batesville, Miss., for plaintiffs-appellants.

Ben M. Caldwell, Larry O. Lewis, Marks, Miss., for defendants-appellees.

Before BROWN, Chief Judge, WISDOM and MORGAN, Circuit Judges.

WISDOM, Circuit Judge:

In this Section 1983¹ action the plaintiffs challenge the validity of a de-annexation ordinance adopted May 7, 1963, by the Board of Aldermen of the City of Marks in Quitman County, Mississippi, and approved by the County Chancery Court.

In a municipal annexation or de-annexation proceeding in Mississippi, state law allows citizens of the municipality and residents of the area in question to appear and to object to the ordinance and allows them ten days within which to appeal from the chancery decree approving the ordinance establishing the corporate limits of the municipality. The district court held that this ten-day period for appeal in the de-annexation proceeding should be treated as the statute of limitations applicable to this civil rights action under 42 U.S.C. § 1983. We reverse.

I.

In February 1961 the Board of Aldermen of the City of Marks in Quitman County, Mississippi, adopted an ordinance annexing certain land beyond the corporate limits. Thereafter, the Chancery Court issued an order finding that the proposed annexation was reasonable and required by public convenience and necessity. In its order the court in part stated:

"* * * that the City of Marks will immediately give police and fire protection to the proposed annexed territory as quickly as the same can be placed in the proposed annexed territory already, that fire hydrants will be placed in the newly annexed territory immediately, that the streets and drainage will be improved in the proposed annexed territory and that the streets will be placed in future paving projects had by the City of Marks."

In this suit the plaintiffs allege that none of these improvements were made and none of the services rendered in the annexed area.

On May 7, 1963, the Marks Board of Aldermen adopted an ordinance contracting the corporate boundaries of the city so as to exclude the area annexed two years before. In accordance with Section 3374-10 of the Mississippi Code of 1942, the City filed a petition in the Chancery Court of Quitman County for approval of the de-annexation. The Court fixed August 19, 1963, for the hearing of the petition and gave notice by publication as provided by state law. No person presented himself at the hearing to oppose the de-annexation. The Chancellor then ordered a decree contracting the corporate limits of Marks by eliminating the area in question. No one having appealed the decree within ten days, the decree became final under Section 3374-13 of the Mississippi Code.

In this suit the plaintiffs allege that they are poor, black residents of the de-annexed area who are "a politically active class of persons who constituted an opposition to the governing body of the City". They allege that they and others living in the area are without sewers, paving, adequate street lights, fire hydrants, fire and police protection, and garbage collection, as contemplated by the annexation of 1961 and, importantly, are unable to vote in municipal elections in Marks. They contend that the City discriminated against them in violation of the Equal Protection Clause of the Fourteenth Amendment, infringed upon their right to vote in violation of the Fifteenth Amendment, and abridged their rights to free speech, assembly, and political expression in violation of the First Amendment.

The complaint was filed on August 13, 1969. This is six days short of six years after the entry of the Chancery Court's final decree, and therefore, so the plaintiffs contend, within the Mississippi six year statute of limitation applicable here.

The defendants moved to dismiss on the ground that the ten day statutory period provided for an appeal from the entry of a decree is applicable here and, in the absence of an appeal being timely taken to the Supreme Court of Mississippi, the Chancery Court decree became final. This, they assert, means finality as to all objections to the de-annexation proceeding including that asserted by the plaintiffs.

The district court pointed out that in federal civil rights cases, citing Beard v. Stephens, 5 Cir. 1967, 372 F.2d 685, "where Congress has failed to provide an express statute of limitation, the federal courts look to the State law to determine the applicable period of limitation." Here, the court said:

"* * * it was ten days, as provided by statute. The failure to appeal within that time by these plaintiffs or by their predecessors in interest bar their attacking the judgment at this late date. No good cause has been shown to the Court why these claims now urged could not have been urged at that time and the aid of the federal court, if necessary, invoked to have prevented the entry of a decree violative of their federally protected rights."

The court noted that while laches is ordinarily a matter to be developed on actual prejudice, that "such a doctrine would be peculiarly applicable to this kind of a case where many of the actors, after a lapse of six years, have passed from the scene." Accordingly, the court granted the defendants' motion to dismiss the complaint.

II.

The ten-day period for appeal from the chancery decree was not a true statute of limitations in the proper sense that such a statute fixes the interval between the time of accrual of a right and the time allowed for commencement of an action to enforce the right. Instead, it was, as the brevity of the period in itself showed, simply a procedural limitation on the parties' use of appellate process in a municipal de-annexation proceeding. It was a built-in, conditional limitation inseparable from the Mississippi municipal annexation proceedings.² The right to object to an ordinance establishing municipal boundaries did not exist in common law. Here it was a special right of parties to the proceeding a municipality had to go through in enlarging or contracting the city limits. The notice by publication, the opening of the chancery hearing to aggrieved residents, the appeal within ten days by "the municipality or any other interested person who was a party to the proceeding" (§ 3374-14) all had to do with whether "the proposed enlargement or contraction is reasonable and is required by the public convenience and necessity" (§ 3374-13).

Such a proceeding — where the measure of the law is the length of the chancellor's foot — has no necessary relation to the accrual of a different right of action and the commencement of an entirely different proceeding in a different forum. Least of all can it be said that the ten-day period for appeal provided in a state chancery proceeding to settle a municipality's boundaries is a statute of limitation barring a federal civil rights action based on a congressional enactment which was entitled "An Act to Enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States * * *."³

In Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, the Supreme Court carefully considered the legislative history of Section 1983. The Court found "threads of many thoughts running through the debates," but that "the present section had three main aims." First, "it might, of course override certain kinds of state laws," that is, "invidious legislation by States against the rights or privileges of citizens of the United States." Second, "it provided a remedy where state law was inadequate." "The third aim was to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice." In McNeese v. Board of Education, 1963, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 672, the Court noted a fourth aim: "to provide a remedy in the federal courts supplementary to any remedy any State might have." See Moreno v. G. C. Henckel, Jr., 5 Cir. 1970, 431 F.2d 1299. These aims would be seriously curtailed, if not completely frustrated, when civil rights are imperiled by municipal boundary changes, if a state could, in effect, modify this important act of Congress, by limiting litigants to cour...