City of Jackson v. Whiting

84 Miss. 163

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Truly, J.,

delivered the opinion of the court.

On the 23d day of July, 1903, the board of mayor and aider-men of the city of Jackson at a regularly called meeting adopted an ordinance extending the corporate limits of the city. This ordinance was duly published as required by law, but before the expiration of thirty days after its enactment certain citizens appealed to the circuit court, protesting against said, ordinance becoming operative. At the ensuing term of the circuit court, when the case came on for trial, the citizens who had appealed moved to strike out the tender of issue which had been made by the attorneys for the city. The only material ground assigned by the motion to dismiss the tender of issue was this: “A large pare of the territory included by the ordinance is the incorporated town of Duttoville, which protests against amalgamation, and cannot, by the proceeding, be brought into Jackson. Said territory is that described in paragraph 3 of the ordinance.” After considering this motion, the circuit judge entered the following order: “Game on this day to be heard the motion of the appellants to strike out the tender of issue by the city of Jackson and to dismiss the proceeding, and the same, together with the evidence adduced in support thereof, having, been argued and considered, it is ordered that the motion be sustained, and the proceeding be dismissed; to which order and judgment the city of Jackson excepted.” The evidence on which this order was based, as disclosed by the record herein, was: (1) Charter of the village of Duttoville, with all accompanying papers. (2) The charter of the town of Duttoville, with all accompanying papers. (3) The admission that a part of the territory described in said charters was embraced in the ordinance enlarging the limits of the city of Jackson. Among the papers accompanying the charter of the village of Duttoville and attached to the proclamation of the governor incorporating said village is an affidavit of certain individuals stating that the notice attached thereto “was posted in three conspicuous places for three consecutive weeks.” This affidavit was made on the 13th day of August, 1903. The paper attached to that affidavit, denominated a “notice,” is a petition setting forth the territorial limits of the proposed village of Duttoville, and purporting to be signed by two-thirds of the electors resident therein. It further appears from a recitation in another paper attached to said proclamation that the petition was submitted to the governor on the 13th day of August, 1903, the same day that the affidavit of posting was made. The governor’s proclamation incorporating the village of Duttoville and specifying its boundaries as defined in the petition is dated the 20th of August, 1903. The record also discloses that subsequent to this action, but before the trial in the circuit court, by proper proclamation, the village of Duttoville was by the governor elevated to the rank of a town, but, in our opinion, these subsequent proceedings were not material, and do not affect the question at issue.

The laws hearing on the questions here involved are: § 2921, Code 1892, as amended by ch. 74, p. 90, Acts 1898, which is as follows:

“Sec. 2921. How unincorporated Tillages, Towns, and Cities May Become Incorporated. Whenever a petition, signed by two-thirds of the electors of any unincorporated village, town, or city, shall be presented to the governor setting forth the metes and bounds of their city, town, or village, stating the number of inhabitants therein and praying incorporation, he shall inquire into the facts. If he finds the petition sufficient and sufficiently signed, and it be shown to his satisfaction that it has been published in full for three weeks in some newspaper of the proposed municipality, if there be- one, and if not, by posting in at least three conspicuous places in the village, town, or city, and that the place contains at least one hundred inhabitants, he shall, by proclamation, declare such village, town, or city incorporated, defining its limits and boundaries, and fixing its name as the village, town, or'city of-. Such proclamation shall be filed in the office of the secretary of state, and remain a record thereof.”

And § 2912a and § 2913, Code 1892, as amended by ch. 103, p. 154, Acts 1902, which are, so far as pertinent to this issue, as follows:

“Sec. 2912a. The limits and boundaries of the existing cities or towns shall remain as now established until altered, as herein provided. To enlarge or contract the boundaries of a city or town by adding thereto adjacent unincorporated territory, or excluding therefrom any part of the incorporated territory of such municipality, it shall be necessary for the municipal authorities to pass an ordinance defining with certainty the territory which it is proposed to include in or exclude from the corporate limits and also defining the entire boundary as changed.

“The ordinance herein provided for shall not become operative until one month after the passage thereof, and until the same shall have been published in some newspaper of the city or town for three weeks, if there be a newspaper therein, and if none, then a newspaper having a general circulation therein for that time, and in other events by posting written or printed copy of the ordinances of said city or town in not less than three public places for said time, when it or they shall become operative, unless an appeal be prosecuted.

“Sec. 2913. The appeal from the ordinance shall be to the circuit court, and shall be tried on an issue to be made up there, and the question shall be whether the proposed consolidation, extension, or contraction of the municipality or municipalities be or be not reasonable.”

It is first contended by appellant that § 2921 is unconstitutional, in that it submits to the decision and discretion of the executive department of the state questions which properly belong to the legislative, a co-ordinate branch of government. Without elaborating our views in this regard, or attempting to reply in detail to the ingenious and plausible arguments made, we simply announce as our conclusion that the law is not violative of any of the provisions or of the true intent of the constitution of the state. Sec. 88 of the Constitution of 1890 directs that the legislature “shall pass general laws, . . . under which cities and towns may be chartered and their charters amended, and all such laws shall be subject to repeal or amendment.” In considering a kindred question we have recently decided that sec. 88 of the constitution was a command to the legislature to devise some general plan of easy operation under which municipalities might be chartered, or their charters amended so as to render resort to the law-making power in each instance unnecessary. Yazoo City v. Lightcap, 82 Miss., 148 (33 South., 949); Adams v. Kuykendall, 83 Miss., 571 (35 South., 830). We think § 2921 a valid step taken by the legislature in obedience to the mandate placed upon it by the section cited. It is not an unauthorized blending of the duties of the executive and legislative departments of government. The law in question does not require the governor to do aught more than decide the question of fact as to whether or no the petition presented to him is sufficient and sufficiently signed, and if it has been posted or published as required therein. These questions being determined affirmatively, the- governor shall, not may, issue his proclamation declaring such village incorporated, and “defining its limits and boundaries.” We think the argument of appellant that the governor is vested with the discretionary exercise of legislative power in defining the limits of the proposed municipality is based upon a misinterpretation of the statute. The true construction, as we gather from the context of the section under review, is this: The governor defines the limits of the municipality in his proclamation of incorporation by simply reciting those territorial boundaries which are required to be set out in the petition for a charter., Should he attempt to define the limits in any other manner, or to change the boundaries stated in the petition, his action would always be open to the doubt of whether the electors signing the petition on which he acted comprised the requisite proportion necessary under the terms of the law. And this doubt and uncertainty would exist whether he undertook to extend or contract the territorial boundaries embodied in the petition presented to him. The plan of the legislature, as disclosed by this section, is, to our minds, perfectly plain, simple, and easily followed.

The appellant further contends that the court erred in dismissing the tender of issue which it presented when the case was reached for trial. The provision of law governing this precise question is found in § 2913, before cited. The first clause thereof is as follows: “The appeal from the ordinance shall be to the circuit court and shall be tried on an issue to be made up; and the question shall be whether the proposed extension or contraction of the corporate limits be or be not reasonable.” The city of Jackson insists that the language of the statute limiting the matters to be submitted to the jury to the sole inquiry of whether the proposed ordinance of extension “be or be not reasonable” restricts the consideration also to the time at which the ordinance was first enacted, and that the question of reaspnableness of the action of the municipal board in adopting the proposed ordinance is to be considered in the light of the circumstances which confronted the board at the time the ordinance was adopted. Arguing from this, it is said further that, as the ordinance at the date of its adoption enlarged the boundaries of the city of Jackson only “by adding thereto adjacent unincorporated territory,” no subsequent change of condition as to any of the territory so included could shed light upon the question of whether the action of the board was or was not reasonable. The reply to this argument, as made by appellees, is that, inasmuch as a portion of the territory embraced by the ordinance was incorporated prior to the submission of the cause to a jury for decision, there was no longer any controverted question to be determined, for the reason that a portion of the territory had already, under the provisions of law, been placed beyond the scope of the ordinance adopted; and therefore' the ordinance must necessarily fail because it included territory which was “adjacent,” but which was no longer “unincorporated.” It will be noted that, while an ordinance enlarging the boundaries of a city does not become operative until publication is made and thirty days after its adoption have elapsed, an unincorporated village can procure a charter by posting or publishing legal notices for only three weeks. The conflict between the plans devised by the statutes being considered is apparent, and while it is impossible to reconcile them in all of their terms and provisions, we must still endeavor to so harmonize them as to effectuate as far as practicable the design of the legislature. While this design is presented dimly and uncertainly by the vague and indefinite terms of the two acts, and while the provisions are in some respects irreconcilable, after mature consideration we are of the opinion that it was. the legislative intent to inaugurate a scheme by which the charter should follow the first initiatory step taken in pursuance of either act; otherwise a city could never extend its corporate limits, for the obvious reason that an ordinance of extension only becomes operative thirty days after its passage, while the necessary steps to procure incorporation of an unincorporated village can all be taken in three weeks. Hence, though a city might at any time adopt an ordinance extending its corporate limits, and though such extension might not only be reasonable, but an imperative necessity for the protection and preservation of the public health and general welfare, still the electors of adjacent unincorporated territory, by action subsequently taken, could avoid the extension by the city, and procure a charter before the ordinance became operative. The result of this view would be that the inhabitants of a suburb lying immediately adjacent to a city who share the many conveniences and advantages of city life, including increased railroad facilities, incidental protection against fire, and the enhanced value of property brought about by the enterprise and progress of. the municipal government, could yet refuse to share the burden of taxation which such benefits entail by not procuring a charter for themselves, and yet having the power of defeating any effort, no matter how timely or wise, on the part of the city, to extend its own limits. This is not tbe true view. It is no sufficient answer to say that tbe inhabitants of such suburb have the right to have such territory remain unincorporated, if they prefer. It is the fundamental principle of our form of government that the liberty of the individual must be subordinated to the public good, and cases can easily be imagined where the safety, welfare, and health of the entire city might be imperiled by the location at its very gates of an unincorporated community which would be beyond its police power, and could defy its quarantine and sanitary regulations. The legislature did not contemplate encouraging this condition of affairs, and yet it would be the logical result of a holding that by action subsequent to an ordinance of extension an unincorporated village could defeat the effort to include it within the limits of the city. No city would do the idle thing of adopting an ordinance with full knowledge that its becoming operative and effective was dependent entirely on the wishes of the very persons whose property was thereby subjected to taxation; especially when the parties concerned were already sharing to a large extent the advantages which rendered the imposition of taxes necessary.

Nor can we assent to the opposite view, contended for by appellant, that the charter of incorporation of the village must actually have been issued prior to the adoption by the city of the ordinance of extension in order to prevent the application of the ordinance. This construction would render it impossible, except in rare and improbable cases, for unincorporated territory lying adjacent to a city to procure a charter except by the acquiescence of the municipal authorities of the city. If this view be sound, no matter when or under what circumstances the electors residing in unincorporated territory so situate should, decide to seek incorporation, though they might faithfully comply with every requirement of the law, at any moment before the governor shall by proclamation declare such corporation to be an accomplished and completed act the city authorities may adopt an ordinance which will defeat the ati tempted incorporation and render their efforts unavailing. This construction of the statute is likewise too narrow and restricted, and tends to defeat the object of the legislation.

It is our conclusion that in determining whether an ordinance extending the limits of a municipality be or be not reasonable, the action of the board of mayor and aldermen must be considered solely in the light of the conditions which confronted it at the time the ordinance was adopted, and the reasonableness or validity of the ordinance would in no wise be affected by any action which might be taken by others subsequent to its passage. So in the instant .case the action of the board of mayor and aldermen of the city of Jackson must be judged from the point of view which they occupied at the time the ordinance extending the limits was adopted, and when the cause is submitted to a jury the testimony as to the reasonableness of the ordinance must be confined to the circumstances existing at the time of its enactment. If, therefore, on the 23d of July, 1903, when the ordinance was adopted, it did in fact only embrace “adjacent unincorporated territory” within legal contemplation, the fact that any part of the territory so embraced subsequently procured a charter of incorporation, though in a strictly legal manner, would in no wise affect or bear upon the question of the reasonableness of the proposed extension. It appears from this record, and from the argument of counsel, that the court below held that the mere fact that at the date of the hearing in the circuit court a portion of the territory which was sought to be added to the city of Jackson had become incorporated was of itself sufficient to render the ordinance unreasonable and inoperative. This is not the correct view, and the court erred in dismissing the tender of issue presented by the city and peremptorily rendering judgment against the city. Upon another trial hereof the question to be submitted to the jury, as above indicated, is whether the proposed' ordinance extending the limits of the city of Jackson was or was not reasonable at the date of its adoption. As bearing on this it is, of course, a question of vital and decisive importance whether or not at that date the citizens resident in the territory subsequently incorporated as the village of Duttoville had taken any legal initiatory step necessary to the incorporation which they' subsequently obtained. If, as a matter of fact, it should appear that prior to the passage of the ordinance by the board of mayor and aider-men of the city of Jackson the inhabitants of Duttoville had already taken the initiatory step required by law by preparing a properly signed petition and in posting notices in the manner and places prescribed by law, then the subsequent action of the board of mayor and aldermen could not deprive them of the rights which they had thus acquired under the terms of the law. If, on the contrary, it should appear that this action on the part of the citizens of Duttoville in posting the notices was subsequent to the adoption of the ordinance by the city of Jackson, then they gain nothing by such action, and their subsequent incorporation was ineffective, provided the jury should decide, without regard to this, that the ordinance was otherwise reasonable. The record as presented to us here is barren of any proof more substantial than bare inference on which the trial judge could have based a decision that at the time the ordinance was adopted any but unincorporated territory was included therein; nor can it be assumed that, because the law requires the notice to be posted for three consecutive weeks, this renders it at all certain that the notices were in fact posted, in conformity with the law, prior to the adoption of the ordinance by the city of Jackson. And assuming that this is an inference logically to be deduced from the statement of the dates, there is still no evidence or suggestion to sustain the assumption of the existence of the other necessary facts that the' petition was sufficiently signed, and that the notices, if posted, were posted in the manner and in the number of places required by the law.

Wherefore the judgment of the circuit court is reversed, and the case is remanded for a new trial.