Lippian v. Ros, 43517

• Decision Date: 10 May 1965
• Docket Number: No. 43517,43517
• Citation: 175 So.2d 138,253 Miss. 325
• Parties: Charles Joseph LIPPIAN v. Vincent P. ROS, Registrar.
• Court: Mississippi Supreme Court

Page 138

175 So.2d 138

253 Miss. 325

Charles Joseph LIPPIAN v. Vincent P. ROS, Registrar.

No. 43517.

Supreme Court of Mississippi.

May 10, 1965.

Robert H. Oswald, Pascagoula, for appellant.

Merle F. Palmer, Pascagoula, for appellee.

INZER, Justice.

This is an appeal by Charles Joseph Lippian from a decree of the Chancery Court of Jackson County denying him the right to register and qualify as a legal voter and elector of the City of Pascagoula. We hold that appellant was entitled to register and qualify as a legal voter of the city, and that the chancery court was in error in reversing the order of the Board of Election Commissioners for the City of Pascagoula, which order directed appellee, Vincent P. Ros, Registrar of Voters for the city, to register appellant as a voter in said city.

The questions to be here determined arise out of an ordinance of the City of Pascagoula passed on October 15, 1963 enlarging its city limits. The ordinance as adopted extended the city limits so as to take in the property owned by appellant and upon which he resides. After the ordinance was duly adopted, the City filed, as required by law, a petition in the Chancery Court of Jackson County asking that the ordinance be ratified and approved. Objections were filed by some of the residents of the area sought to be included in the city. On December 12, 1963 the chancery court entered a final decree in that cause which was numbered 17424, on the chancery court docket. This decree adjudicated that the ordinance extending the city limits was reasonable and was required by public convenience and necessity. The decree approved, ratified and confirmed the ordinance, and fixed the boundaries of the city to include the entire territory sought to be annexed. The court in its decree approved an agreement by the City and the objectors whereby the court attempted to defer the effective date of annexation of part of the territory to be taken into the city until July 1, 1965. Appellant resides in this area. He was not one of the objectors and was not represented by counsel at the hearing. Under the agreement as approved by the court the City was to begin immediately to furnish certain services to the entire territory to be annexed, including fire protection, police protection insofar as possible, mosquito control service, street lighting and street markers. The final paragraph of the decree provided as follows:

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that notwithstanding the fixing of the effective date of the annexation of the territory as agreed by the parties as set out herein, that this decree on this date shall be final, binding and conclusive in all respects, and that no further proceedings shall be required to be filed by the City of Pascagoula in conjunction with the enlargement of its boundaries as described in Ordinance #9-1963, and approved, ratified and confirmed by this decree.'

No appeal was taken from this decree.

Appellant, after being denied the right to register by appellee, filed a written petition as required by statute asking that he be allowed to register and qualify as a voter in the city. Appellant contended in his petition, as he contends here, that the order of the chancery court was a final order, and the annexation of the entire area became effective ten days after the chancery court approved the ordinance extending the city limits; that the attempt of the chancery court to defer the effective date of the annexation of part of the territory was void and of no effect.

Appellee, by letter dated April 10, 1964, denied appellant the right to register as a voter of the city. Appellee based his denial of the petition upon an opinion of the Attorney General, rendered in response to a request by appellee for a ruling on the issue. The Attorney General construed the decree to mean that part of the territory had not been annexed as of that time, and that the people in that area were not presently citizens of Pascagoula.

Appellant then perfected an appeal to the Board of Election Commissioners of the City of Pascagoula. The facts pertinent to the appeal were stipulated by counsel, and since they are the facts we are concerned with here, they will be set out as stipulated. They are:

'The petitioner, Charles Joseph Lippian, is a white adult resident citizen of Jackson County, Mississippi who has registered, paid the required poll taxes, and is a qualified elector of the county presently registered to vote at the North Bayou Casotte box or precinct.

'The petitioner, by written petition to the City Registrar, which petition is stipulated shall be a part of these proceedings, advised the Registrar of the City of Pascagoula that he desired to register as a qualified elector of the City of Pascagoula, so as to be able to vote in the primary and municipal elections of the City of Pascagoula in June and July of 1965, respectively.

'The City Registrar declined to allow the petitioner Charles Joseph Lippian to register on the grounds set out by him in a letter to petitioner dated April 20th, 1964 and attached thereto the letter of the City Registrar dated February 19, 1964 to the Attorney General of the State of Mississippi, together with the response of the Attorney General of the State of Mississippi thereto dated February 21, 1964, it being stipulated that all of such correspondence shall be made a part of the proceedings.

'It is stipulated that on October 15, 1963, the City of Pascagoula legally adopted and spread upon its minutes Ordinance No. 9-1963 of the City of Pascagoula, a true copy of the same being attached to the petition of Charles Joseph Lippian seeking to register, and made a part of these proceedings.

'It is stipulated that on December 12, 1963 the Chancery Court of Jackson County, Mississippi in Cause No. 17,424 entered a final decree, a true copy of which is attached to the petition of Charles Joseph Lippian and made a part of these proceedings and that such decree approved, ratified and confirmed Ordinance No. 9-1963 with the modifications contained therein. No appeal was taken from such decree.

'It is stipulated that the petitioner, Charles Joseph Lippian, resides in the annexed territory, and did not object to the annexation of the territory embraced in Ordinance No. 9-1963, that he was not represented by counsel in the proceedings in Cause No. 17,424 of the Chancery Court of Jackson County, Mississippi, nor did he consent or agree to the modifications set out in such decree.

'It is stipulated that the sole issue involved in this proceeding is whether, as a matter of law, under the provisions of Ordinance No. 9-1963 as approved, ratified and confirmed by the Chancery Court of Jackson County, Mississippi in Cause No. 17,424 the petitioner is entitled to vote as a qualified elector of the city in municipal elections in the City of Pascagoula, and that no other factual matters are in issue.'

The Election Commissioners heard and considered the appeal, and entered the following order:

'Section 3374-10 of the Mississippi Code of 1942 grants the governing board of the municipality, as a legislative function, the right to enlarge its corporate limits by the adoption of an appropriate ordinance.

'Ordinance No. 9-1963 of the City of Pascagoula was duly and legally adopted in the manner required by law.

'The area annexed by such ordinance includes the territory in which the petitioner Charles Joseph Lippian, a qualified elector resides

'Ordinance No. 9-1963 of the City of Pascagoula was approved, ratified and confirmed by decree of the Chancery Court of Jackson County, Mississippi in Cause No. 17,424 on the docket of such court rendered on December 12, 1963 and no appeal was taken therefrom.

'The decree approving, ratifying and confirming Ordinance No. 9-1963, on its face is a final decree, and no further proceedings are required by the City of Pascagoula in connection therewith.

'That the modifications set out in the decree do not expressly or impliedly prohibit or deny the right of any person in the annexed territory to vote in municipal elections but does provide for the immediate rendering of municipal services to such annexed areas.

'That a serious legal question is presented as to the validity of the modifications set out in the decree of Chancery Court in Cause No. 17,424 on the docket of such court in view of the language of Section 3374-13 of the Mississippi Code of 1942 limiting the power of the Chancellor in such cases to either approving the annexation ordinance as written as reasonable and in the public interest, or to eliminate therefrom such territory as cannot be reasonably annexed, or to find such proposed annexation to be unreasonable.

'That the final decree is valid on its face, and the question of the validity or invalidity of any of the proposed modifications set out in the decree by agreement of the city and the named objectors does not in any manner preclude the petitioner from exercising his right to vote in municipal elections.

'That as a matter of law the petitioner Charles Joseph Lippian is entitled to register as a qualified elector of the City of Pascagoula and that his appeal should be granted, and the Registrar directed to register him as a qualified elector of the City of Pascagoula.'

From this order appellee prosecuted an appeal to the Circuit Court of Jackson County.

When the appeal came on for hearing in the circuit court, the circuit judge on his own motion transferred the cause to the Chancery Court of Jackson County. The circuit judge gave as his reason for the transfer that the appeal involved an interpretation of the decree of the chancery court entered on December 12, 1963 in Cause No. 17,424, and that the interpretation should be made by the chancery court. This action...