State ex rel. Jordan v. Mayor and Commissioners of City of Greenwood

• Decision Date: 31 March 1930
• Docket Number: 28339
• Court: Mississippi Supreme Court
• Parties: STATE ex rel. JORDAN, DIST. ATTY., v. MAYOR AND COMMISSIONERS OF CITY OF GREENWOOD

127 So. 704

157 Miss. 836

STATE ex rel. JORDAN, DIST. ATTY., v. MAYOR AND COMMISSIONERS OF CITY OF GREENWOOD

No. 28339

Supreme Court of Mississippi

March 31, 1930

(In Banc.)

1. APPEAL AND ERROR. Pleas and demurrer. Treating facts as true. Where case is in supreme court on pleas and demurrer thereto overruled, facts stated in pleas are treated as true.

2. MUNICIPAL CORPORATIONS. Annexation of territory. Void proceedings. Debarring exercise of jurisdiction. State could not debar city officers from exercising jurisdiction over annexed territory where annexation proceedings were void, but city, as constituted, had functioned nearly seven years and annexed municipality had been abolished by statute (Hemingway's Code 1927, section 3216; Laws 1926, chapter 268).

Code 1906, section 4017 (Hemingway's Code 1927, section 3216) relates to remedy by information in the nature of quo warranto, and Laws 1926, chapter 268, provides that municipalities containing less than one thousand inhabitants which have not functioned for two years shall be abolished and thereafter cease to exist.

ETHRIDGE J., SMITH, C. J., and McGOWEN, J., dissent.

APPEAL from circuit court of Leflore county HON. S. F. DAVIS, Judge.

On suggestion of error. 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.

An ordinance of a city adding additional unincorporated 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. 908; Borrom v. Purdy Road District, 131 Miss. 778, 93 So. 679; Bryant v. Board of Supervisors, 133 Miss. 714, 98 So. 148; City of Gutherie v. Wylie, 55 P. 103; State ex rel. Clancy v. Porter, 169 P. 471; State v. Wofford, 39 S.W. 920; Atty.-Gen. v. Marr, 21 N.W. 883; State ex rel. Rosenberger v. Town of Bellflower, 108 S.W. 117; Angel v. Town of Spring City, 53 S.W. 191; State ex rel. Harms v. Alexander (Iowa), 105 N.W. 1021.

The village of North Greenwood, and the Town of North Greenwood 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, 101 U.S. 755, 25 Law Ed. 915; Wood v. Beach, 156 U.S. 548, 15 S.Ct. R. 410, 39 Law Ed. 528; 6 Words & Phrases, p. 652.

Chapter 268 of the Laws of 1926 did not have the effect of making the void order of annexation of December 5, 1922, a de facto annexation.

28 Cyc. 172; Snyder Sons Co. v. Troy, 91 Ala. 234, 24 Am. St. R. 887, 8 So. 658, 11 L.R.A. 518; Marshall v. Keach, 118 Am. St. Rep. 253; American Trust Co. v. Minnesota, etc., R. R. Co., 42 N.E. 153; Sanders v. Starkville, 128 Miss. 742, 91 So. 422; Adams, St. Rev. Agt., v. Lamb-Fish Lbr. Co., 103 Miss. 491, 60 So. 645; Dye v. Sardis, 119 Miss. 359, 80 So. 761; Morgan v. Wood, 140 Miss. 137, 106 So. 435; Liddell v. Noxapater, 129 Miss. 513, 92 So. 631.

It is a universally recognized rule that no laches is to be imputed to the state and against her; that no time runs so as to bar her rights.

Josselyn v. Stone & Mathews, 28 Miss. 753; Aetna Ins. Co. et al. v. Robertson, State Revenue Agent, 131 Miss. 377, 94 So. 7; State ex rel. Averett et al. v. Wofford et al., 39 S.W. 921; Rhode Island v. Pawtucket Turnpike Co., 8 R. I. 521; Hill v. Nash, 73 Miss. 849; Section 104, Constitution of 1890; Section 2634, Hemingway's Code of 1927; 10 R. C. L., page 401, sec. 148; Eastman Oil Co. v. State, 130 Miss. 65, 63 So. 484; Edwards Hotel Co. v. City of Jackson, 96 Miss. 547, 51 So. 802; Cleveland State Bank v. Cotton Exchange Bank, 119 Miss. 868, 81 So. 170; Bank of Commerce v. City of Gulfport, 117 Miss. 591, 78 So. 519; Witherspoon v. City of Meridian, 69 Miss. 288, 13 So. 843; Waterworks Co. v. Meridian, 85 Miss. 515, 37 So. 927; Woodruff v. Okolona, 57 Miss. 806; Jefferson County v. Amghi, 54 Miss. 668.

If the doctrine of laches could be imputed to the state in the case at bar, it would have the effect of overruling the following decisions.

Gandsi v. Seminary, 95 Miss. 315, 48 So. 908; Fabric Fire Hose Co. v. Vicksburg, 117 Miss. 89; City of Pascagoula v. Krebs, 151 Miss. 675, 118 So. 286; Josselyn v. Stone & Mathews, 28 Miss. 753.

The doctrine of laches and estoppel does not apply, as against the state of Mississippi, in a court of law, but is purely an equitable doctrine, applicable only to courts of chancery.

Secs. 152, 156, 157, 159, 162, Constitution of Mississippi; Sec. 3217, Hemingway's Code 1927; Josselyn v. Stone & Mathews, 28 Miss. 753; Aetna Ins. Co. et al. v. Robertson, State Revenue Agent, 131 Miss. 377, 94 So. 7; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Ann. Cases, 1914B, 307; 21 Corpus Juris, pp. 212, 217; 1 Pomeroy Equitable Remedies, p. 21; 2 Decennial Digest (3 Ed.), par. 2.

The doctrine of laches and estoppel is applied against the state in suits brought by the state on the relation of private parties, for the reason the state is nominal party, but does not apply as against the state in suits brought by the state on relation of its public officers to assert public rights.

United States v. Barbee, 32 L.Ed. 121.

The doctrine of laches is not applicable to the United States, when asserting sovereign or governmental rights.

U. S. v. Kirkpatric, 9 Wheat. 720, 6 L.Ed. 199; Bristline v. U.S. 229 F. 546, 144 C. C. A. 6; U. S. v. Kendall, 262 F. 126; Steel v. U.S. 113 U.S. 128, 28 L.Ed. 952, 5 S.Ct. 396; U. S. v. Barbee, 127 U.S. 338, 32 L.Ed. 121, 8 S.Ct. R. 1083; U. S. v. Insley, 130 U.S. 262, 265, 266, 32 L.Ed. 968, 9 S.Ct. R. 485; U. S. v. Dallas Military Road Co., 140 U.S. 599, 632, 35 L.Ed. 560, 571, 11 S.Ct. R. 988; U. S. v. Michigan, 190 U.S. 379, 405, 47 L.Ed. 1103, 1112, 23 S.Ct. 742; Utah Power & Light Co. v. U.S. 243 U.S. 389, 37 St. Ct. R. 387, 61 L.Ed. 791; Chesapeake & Delaware Co. v. U.S. 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889; State ex rel. Lott v. Brewer, 64 Ala. 287, 298; Den. ex Dem. Candler v. Lunsford, 20 N.C. 542; Board of Supervisors v. Norfolk & W. R. Co., 119 Va. 763, 91 S.E. 124.

The ancient common-law writ of quo warranto was a writ of right for the king and issued as of course at the instance of the attorney-general. He is not required to ask leave of the court. When the attorney-general institutes public proceedings he does so without the advice or discretion of court. It is for him to determine whether the public interest requires their institution and prosecution, and the courts should entertain the proceedings and determine them according to law.

22 R. C. L., sec. 29, pages 698-699.

The above rule prevails in our state.

Section 3217, Hemingway's Code of 1927.

Lapse of time is no bar to filing all information by the attorney-general, where the writ issued as a matter of right, and where the filing of the information is a matter within the sound discretion of the court no definite time is fixed beyond which an information will not lie.

22 R. C. L., page 702.

This is the rule that prevails in this state.

Section 3217, Hemingway's Code 1927.

A. H. Bell and Alfred Stoner, both of Greenwood, for appellee.

Although the general rule of law is that the state cannot be estopped by laches, nevertheless there is an expressly recognized exception that the state can be estopped in two instances:

First: where the state has no pecuniary interest in the subject of litigation.

Secondly: Where it is shown that the proceeding is one brought for the purpose of opening up a conduit through which a private individual might bring a suit to serve his private ends.

People ex rel. Atty.-Gen. v. Alturas County, 6 Idaho 418, 44 L.R.A. 122; State v. Leatherman, 38 Ark. 81; Jemison v. People, 16 Ill. 257; People ex rel. Gridley v. Farnham, 35 Ill. 562; Soule v. People, 205 Ill. 618, 69 N.E. 22; State ex rel. Brown v. Westport, 116 Mo. 582, 22 S.W. 888; State ex rel. Jackson v. Mansfield, 99 Mo.App. 146, 72 S.W. 471; People v. Maynard, 15 Mich. 463; State ex rel. Douglas v. School Dist., 85 Minn. 230, 88 N.W. 751; State ex rel. Walker v. McLean County, 11 N. Dak. 356, 92 N.W. 385; People ex rel. Misner v. Hanker, 197 Ill. 409, 64 N.E. 253; People ex rel. Howard v. Schnepp, 179 Ill. 305, 53 N.E. 632; State ex rel. Strimple v. Bingham, 14 Ohio C. C. 245; Waldrop v. Kansas City S. R. Co., L.R.A. 1918B, 1081; Aetna Ins. Co. v. Robertson, 131 Miss. 377, 94 So. 7.

The state may in quo warranto proceedings oust it from the exercise of corporate privileges, unless it is estopped or barred by laches, or unless the order or decree of corporation is conclusive.

28 Cyc. 173.

At common law estoppel is found on deeds and judicial records, but in equity estoppel arises from matters in pais. At common law matter in pais was mere evidence. It is now, however, generally held that an equitable estoppel or estoppel in pais may be enforced in a court of law as well as in equity.

10 R. C. L. 841; 21 C. J. 1061-1118-1119.

A party may set up laches at law if that be the only equitable ground in the case.

Dickerson v. Colgrove, 100 U.S. 578, 25 L.Ed. 618; Dexrel v. Berny, 122 U.S. 241, 30 L.Ed. 1219.

Argued orally by Means Johnston and Simon Rosenthal, for appellant, and by A. H. Bell, for appellee.

Anderson, J. Ethridge, J., dissenting. SMITH, C. J., and MCGOWEN, J., concur in this opinion. Griffith, J.

OPINION

Anderson, J.

The state, on the relation of Arthur Jordan, district attorney for the Fourth judicial district of this state, in which the city...