Summary
In Vail v. City of Jackson, 206 Miss. 299, 40 So.2d 151, 41 So.2d 357, one of the objections to the extension of the corporate limits of the City of Jackson was that two state institutions, the Blind Institute and the Institute for the Deaf, with grounds and buildings appurtenant thereto, were in the territory proposed to be annexed; that the governing authorities thereof had not consented to the inclusion; and that the proposal was therefore void under the then Sec. 3383 of the Code, now Sec. 3374-18, supra.
Summary of this case from Extension of Boundaries, HazlehurstOpinion
April 25, 1949. June 13, 1949.
1. Appeal — municipalities — annexation additional territory — appeal returnable, when.
An appeal from a judgment affirming the reasonableness of a municipal ordinance annexing additional territory, and not involving any issue of taxes is not returnable forthwith, but is returnable as in ordinary cases.
2. Appeal — municipalities — annexation additional territory — appeal returnable, when.
Appeals to the Supreme Court in ordinary cases are returnable to the first return day that is more than ten days after the appeal bond is filed, so that when the appeal bond has been filed on March 24, the appeal is returnable to the first Monday in May.
3. Appeal — advancing on docket.
The Supreme Court has inherent power to control the disposition of cases on its docket, and will advance an appeal involving the reasonableness of a municipal ordinance annexing additional territory when because of the size of area and its dense population the case is such that a delay will embarrass the operations of both city and county government and when there is a public as well as a governmental need that the matter be determined at the earliest convenient time.
On the Merits.1. Appeal — assignment of error not argued.
Assignments of error not argued in appellant's brief are waived.
2. Municipalities — extension of municipal boundaries — burden of proof on person challenging validity of ordinance.
When a party has challenged by plea the validity of the ordinance of extension of the municipal boundaries, he has the burden to establish the plea in point of fact with preponderating evidence in support thereof.
3. Municipal corporations — extension of municipal boundaries — plea that state institutions had been included without their consent.
Under a plea that two state institutions had been included within the area of the proposed extension of the city boundaries without the consent of the said institutions, proof must be made by the pleader that the said institutions owned property within the proposed extension and without such proof the plea will fail. Sec. 3383, Code 1942.
4. Municipalities — appeal from ordinance extending municipal boundaries, when triable.
An appeal to the circuit court from an ordinance extending the municipal boundaries, under Sec. 3379, Code 1942, is to be disposed of speedily and Sec. 1519, Code 1942, providing generally that a case is not triable in the circuit court unless the defendant has been personally served with process for thirty days has no application to such an appeal.
5. Municipalities — ordinance extending municipal boundaries — statute prohibiting another ordinance within one year.
The statute, Sec. 3379, Code 1942, which prohibits the enactment of an ordinance extending municipal boundaries within one year next after a previous extension ordinance had been adjudged to be unreasonable, does not prohibit a new ordinance within the year when the new ordinance contains far less territory than the old, even though some of the lands may have been included in each of the ordinances.
6. Trial — remarks of trial court protesting delay.
Counsel may properly be directed to refrain from delay, or to go on with the trial, or the judge may comment upon a waste or excessive consumption of time in the trial so long as counsel is not unduly restricted or his knowledge challenged or his motives impugned; and remarks expressing impatience with counsel, even though perhaps unwarranted are not fatal when not such as to cause material prejudice.
7. Trial — time for preparation — when ample, no continuance.
When the nature of the case and the facts surrounding it are such as to disclose that the parties had had adequate time and opportunity, in the exercise of diligence to prepare for trial, the refusal of the court to grant delays or a continuance to give further time for preparation will not be reversed.
Headnotes as approved by Montgomery, J.
APPEAL from the circuit court of Hinds County; H.B. GILLESPIE, J.
E.W. Stennett, H.V. Watkins, and Tom H. Watkins, for the Motion.
This is a case for advancement under the provisions of Section 1956 of the Mississippi Code of 1942, as involving taxes claimed by a county or municipality.
We respectfully submit that this case clearly involves the question of municipal and county taxation. The judgment from which the appeals were perfected permits the City of Jackson to immediately assess and levy taxes upon the area included within the proposed annexation to the city limits.
The reason for the statutory provision for the advancement of this type of case is clear. The case at hand furnishes a typical example. The City of Jackson stands ready to furnish most of the above mentioned benefits to the areas to be annexed immediately at the time the ordinance becomes effective. Furnishing these benefits will impose additional financial burdens upon the city. If this case were not advanced so that a final adjudication could be obtained prior to July 1, 1949, the city could not assess and levy taxes on the areas to be taken in under Section 9745 of the Mississippi Code of 1942. Compare Williams et al v. Board of Supervisors of Rankin County, 108 Miss. 746, 67 So. 186.
The court may in its discretion advance this cause, and it is submitted that the same is a proper case for the exercise of such discretion.
Every court, in the exercise of its judicial function, has control of its dockets. The Supreme Court of Mississippi has on numerous occasions advanced cases on its docket in order to promote the public welfare. The reported cases are not numerous for the apparent reason that the court has not written opinions on many of those motions to advance. However, in the case of Weston v. Hancock County, 98 Miss. 800, 54 So. 307, the court expressly recognized its power to so control its docket.
The Supreme Court of the United States, in the case of Landis v. North American Company, 299 U.S. 248, 81 L.Ed. 153, expressly recognized that every court has an inherent power to control the disposition of causes on its docket. The opinion written by Justice Cardozo stated in part as follows:
". . . the power to stay proceedings in incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance. Kansas City S.R. Co. v. United States, 282 U.S. 760, 763, 75 L.Ed. 684, 689, 51 S.Ct. 304; Enelow v. New York L. Ins. Co., 293 U.S. 379, 382, 79 L.Ed. 440, 442, 55 S.Ct. 310. . . . We must be on our guard against depriving the processes of justice of their suppleness of adaptation to varying conditions. Especially in cases of extraordinary public moment, the individual may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted." W.E. Gore and Ney M. Gore, contra.
The adoption of Section 1956, Code 1942, operated as a limitation upon the power to advance cases. Only four classes of cases may be advanced, under the statute. This court has no power to advance any case not embraced in the class. The same rule of construction applies in the construction of a statute as in the construction of a constitution.
This court, in State Ex Rel Greaves v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340, held this: "Another principle is that where the constitution deals with a subject, its words must be the sole boundary, and sacred from the legislatures, except where it permits expressly or by necessary implication. Another is that, where the constitution schedules powers, giving or taking away, it must be presumed to have scheduled all, and it only must be looked to, with its necessary implications, for a limitation of authority or restriction." See also, Lacey v. State, 187 Miss. 292 at page 299, 192 So. 576.
Bearing in mind the provision of Section 4902, Code of 1906, the decision in Weston v. Hancock County, 98 Miss. 800, 54 So. 307, has no bearing on the question presented here, as the law exists now.
One week after the decision in the Weston case, the same Chief Justice wrote the opinion in Jackson Loan Trust Company v. State, 96 Miss. 347, 54 So. 157, and he there held that, under Section 4907, Code of 1906, the forerunner of Section 1956, Code of 1942, this court had no power to advance any but four classes of cases in preference to other cases, and he listed them in the syllabus as follows: "(a) Habeas corpus cases in which judgments have been rendered against persons deprived of their liberty;
(b) Quo warranto cases involving the right to a public office;
(c) Mandamus cases where the public interest is concerned; and
(d) Cases involving taxes claimed by the state, a county or municipality."
In the opinion in the Jackson Loan case, supra, the court used this language: "It is argued that Section 4907 of the Code applies to all cases where the public interest is concerned. We do not think the statute can be given this interpretation. To so construe it would so subordinate the litigation involving private rights as to make it operate very unjustly on the private citizen. The statute names the character of cases which are given preference by it, and they are comparatively few in number. . . . The above constitute the only causes which may be given preference under the statute. The 'public interest' may be concerned in many other cases, but the above constitute the whole character of such cases which may be given preference. Section 4907 of the code has not been heretofore construed by this court. Many causes have been treated as 'preference clauses', but this is the first time that this motion has been resisted that we now recall. The motion is overruled. . . ."
On the Merits; Affirmed.
W.E. Gore and Ney M. Gore, for appellant, Vail.
The record in this case contains more than one thousand pages. In the time allowed under the special rule made in this court's opinion, no living man can write a brief on the law and facts of this case.
But, one point made at the trial is sufficient to dispose of the whole case and to justify this court in reversing the judgment of the circuit court and entering judgment here for the appellant.
Section 3383 of the Code of 1942 reads as follows: "No municipality shall hereafter change its boundaries so as to include within the limits of such municipality any of the buildings or grounds of any state institution unless and until consent thereto shall have first been obtained in writing from the board of trustees of such institution, or such other governing board or body as may hereafter be created for the control of such institution, provided that any ordinance enlarging the boundaries of any municipality which does not comply with this statute shall be void and of no effect."
The ordinance nowhere adjudicates that the consent of the trustees of the deaf and blind institutes or of the building commission was obtained in writing as provided by the statute and the fact is that no such consent ever was obtained, because the minutes of these two agencies of government were not signed prior to the adoption of the ordinance. Moreover, they had not been signed at the time of the trial.
The ordinance was attacked on these grounds, as appears at page 40 of the transcript.
Unless this court is willing to depart from the law as it has been laid down for one hundred twenty-one years, that we know of, and kill a whole flock of geese to save one crippled gosling, the judgement must be reversed and a judgement must be entered here for the plaintiff.
In December 1827, the Supreme Court of this state held in Grayson v. Williams, Walker 298, that the jurisdictional facts must appear in the record of a court of special and limited jurisdiction or any judgment rendered by it is void. In that case the court said: "I am well aware that where a court of special and limited jurisdiction is created by statute, unless enough appears upon the face of the record to give jurisdiction, it would be bad upon demurrer for such a defect, or perhaps the court itself jealous of its own powers, would ex officio take notice of the same and dismiss the cause."
So far as we know, the last opinion written by Chief Justice Griffith, handed down December 31, 1948, fully recognizes the doctrine.
In Dyer v. Russell, 38 So.2d 104, the former Chief Justice held that a chancery court in a proceeding to remove the disabilities of minority acts as a court of special and limited jurisdiction and all jurisdictional facts must affirmatively appear in the record.
In City of Jackson v. Belhaven College, 195 Miss. 734, the present Chief Justice of this court made this statement: ". . . We deem the citation of authorities to be unnecessary on the proposition that the judgment of a court of limited jurisdiction must adjudicate the necessary jurisdictional facts to sustain the rendition of the same."
This court has adhered to this rule in the following cases: Ballard v. Davis, 31 Miss. 525; Adams v. First National Bank, 103 Miss. 744; Robb v. Postal Telegraph Company, 104 Miss. 165; Pettibone v. Wells, 181 Miss. 475; Martin v. Board of Supervisors, 181 Miss. 250; Sharp v. Smith, 180 Miss. 887; Hayes v. Federal Land Bank, 162 Miss. 877; Robertson v. Bank, 115 Miss. 840; Smythe v. Whitehead, 113 Miss. 184; Cameron v. Whittington, 120 Miss. 593; Henderson Molpus Company v. Gammill, 149 Miss. 576; Gordon v. Smith, 154 Miss. 787; McDevitt v. Walls, 122 So. 766; Tatum v. Smith, 158 Miss. 511; Board v. Allen, 60 Miss. 93; White v. Railroad, 64 Miss. 566; Madden v. Railroad, 66 Miss. 258; Craft v. DeSoto County, 79 Miss. 618; Aden v. Board, 142 Miss. 696; Marks v. McElroy, 67 Miss. 545; Lake v. Perry, 95 Miss. 550; Hard v. Pepper, 128 Miss. 27; Wilson v. McCorkle, 135 Miss. 525; Poole v. Jones, 136 Miss. 645; Dulion v. Folkes, 153 Miss. 21; Root v. McFerrin, 37 Miss. 17; Bolivar County v. Coleman, 71 Miss. 832; Garner v. Webster County, 79 Miss. 565; Henry v. Board, 111 Miss. 434; Lester v. Miller, 76 Miss. 509; Hinton v. Perry County, 84 Miss. 536; Board v. Ottley, 146 Miss. 118; Smith v. Board, 124 Miss. 30; Federal Land Bank of New Orleans v. Cox, 183 Miss. 363.
Title 16, Division 1 of the Code of 1942, provides a complete scheme for the extension of corporate limits and Section 3383, supra, necessarily operates as a limitation upon the powers of municipal officers, vested in them by the provisions of Section 3376 of that code. Municipal authority is created by statute and all power must be expressly conferred or necessarily implied from what is expressed. Section 3383 provides that an extension such as is here involved is void, and the legislature was not satisfied in using that word, but it went further and provided that it shall have no effect whatever.
The proof in this case shows beyond any doubt, that the deaf institute and the blind institute are located within the territory attempted to be annexed. The construction of Section 3383 is not involved in any difficulty. It provides that the ordinance shall not become operative unless consent shall be given in writing, that it shall not become operative until such consent be given and that the consent shall have been first obtained from the board of trustees or other governing body. Nothing can be plainer. This record, although it shows that such consent was given, in that certified copies were introduced, the certificates create a presumption which is rebuttable. This presumption was rebutted by the introduction by the appellant of what purported to be, but was not in fact and in law, valid consent to the incorporation of these institutions, as reflected in the proposed drafts of the minutes, which were not signed.
This appellant introduced drafts of the proposed minutes of the building commission and the minutes of the board of trustees of the two institutions. Neither the minutes of the building commission nor of the board of trustees were signed at the time of the adoption of the ordinance by the city commission. Nor were these minutes signed at the time of the trial, nearly sixty days after the ordinance was adopted.
The statute contemplates more than an order by the boards. A separate instrument of writing was necessary to the validity of the ordinance. This separate instrument of writing should have been incorporated in the ordinance, assuming that the rule laid down in Robb v. Postal Telegraph Company, supra, is still the law. This court held in that case, that a finding that, "The board having heretofore, in accordance with the statute, advertised for bids for the working of the public roads of the county by contract, . . . and the board having considered all of said bids and finding that the lowest bid made in accordance with the specifications on file and the advertisement for the same as follows, . . . ." was not sufficient, but that inasmuch as Section 361 of the Code of 1906 provided two ways of publication, by advertising in a newspaper for three weeks, or if no newspaper is published in the county, by posting written or printed notices at the courthouse door and in each supervisor's district of the county, the failure of the board's minutes to show which method of advertisement was adopted, made the order void.
As we have heretofore stated, the authority of the city commissioners is strictly statutory. The board of supervisors has constitutional jurisdiction over roads, bridges and ferries, but the court held that the order was void, notwithstanding this constitutional jurisdiction.
The point was there made and it is here urged, that thirty days had not elapsed between the time the bond was filed and the time of the trial, the bond having been filed on February 17, and the ordinance having been filed on February 21, the first day of the term of the circuit court.
We maintain that, under the provision of Section 1519 of the Code of 1942, as amended by Chapter 229 of the Laws of 1948, only demurrers or other dilatory pleas filed as a preliminary to joining issue may be tried at the return term, and that, after the court had disposed of matters in abatement and of preliminary nature, the motion of this appellant, Transcript 18, should have been sustained and the case should have been continued to the May term of the circuit court.
This statute provides that such pleas shall be tried at the return term, and the court shall require that the issues of fact shall then be made up and joined, but that such issues of fact shall not be tried before the next succeeding term without the consent of the parties, except where personal service has been had for thirty days before the return day and except in actions to enforce mechanics liens, attachments and replevin, which may be tried at the return term unless continued by consent or on cause shown.
No special procedure with respect to this point is prescribed by the statute relating to trials of this character, and the general law with respect to procedure, and particularly Section 1519, supra, governs the procedure here.
E.L. Shelton, for appellant, Greaves.
On the 9th day of March, 1949, the appellant Vail filed his plea in abatement setting out that the ordinance involved is void and that the court was without jurisdiction to hear the cause for the reason that the ordinance in question was passed by the city authorities within less than one year after the adjudication in Cause No. 12101 and in violation of the prohibition contained in Section 3379 of the Code of 1942. Said motion came on to be heard on the same day and testimony was introduced thereon on said plea and defendant's answer thereto and said plea in abatement was overruled by the court. Thereafter appellant Vail filed his plea of res adjudicata, to which plea the City of Jackson filed its answer, and which said plea of res adjudicata based on the adjudication of Cause No. 12101 was overruled by the court.
The City of Jackson is a municipality operating under a commission form of government, having adopted Chapter 99 of the Code of 1906, as subsequently amended, now appearing as Title 16 on Municipalities of the Mississippi Annotated Code of 1942 and the amendments thereto, and has no other powers than those granted by those provisions of the Code.
The power of a city, town or village to extend its boundaries first appears as Section 2912A and 2913 of the Mississippi Code of 1892.
Section 2912A of the Code of 1892, as amended by Chapter 103, Laws of 1902, Chapter 186, Laws of 1908, and Chapter 230, Laws of 1910, now appears as Section 3376, Division I, Title 16, of Volume 3 of the Mississippi Code of 1942, and as is pertinent to the issue here presented.
Section 2913 of the Code of 1892, as amended by Chapter 103 of the Laws of 1902, now appears as Section 3379 of the Code of 1942 and 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 there, and the question shall be whether the proposed consolidation, extension, or contraction of the municipality or municipalities be or be not unreasonable. If the judgment of the court be that the ordinances or the ordinance is reasonable, the ordinances or ordinance shall go into effect within ten days after final judgment thereon, and ten days shall be allowed for an appeal to the Supreme Court. If judgment be in favor of the reasonableness of the ordinances or ordinance the party or parties taking the appeal from the ordinances or ordinance and the sureties on the appeal-bond, shall be adjudged to pay all cost, but if the said ordinances or ordinance shall be adjudged unreasonable the same shall be vacated, and the proposed consolidation, extension or contraction shall be stayed and prohibited for one year."
The plea in abatement challenging the right of the City of Jackson to adopt the ordinance of January 19, 1949, in less than one year after the prior ordinance of December 1, 1947, had been vacated by a jury of Hinds County on the 9th day of April, 1948, was well taken and should have been sustained by the court and this is apparent from an examination and comparison of Section 2913 of the Code of 1892 and Section 3379 of the Code of 1942. The Code of 1892 provided, "but if it be adjudged unreasonable, the ordinance shall be vacated, and the extension or contraction of limits, and all ordinances proposing practically the same, shall be prohibited for one year." Under this section, the gap was left open for a municipality to extend or contract its city limits so long as the original ordinance or an ordinance proposing practically the same as the original was not adopted within one year.
By the amendment of Chapter 103 of the Laws of 1902, which has been carried forward and is now inserted in the Code as Section 3379 of the Code of 1942, the legislature wished to put a stop to vexatious litigation of this character which keeps the citizens of the municipality and of the adjacent areas in a turmoil and further to prevent a municipality from a series of expensive lawsuits at a high cost to the taxpayers, which could gradually wear down the resistance of those interested citizens of a municipality who have legitimate rights to be protected as against the whims of the city fathers or some powerful favored group. The legislature hoped by the passage of this statute to prevent a municipality from gradually by a series of successful expansions over a short period of year of accomplishing what it had failed to initially accomplish. If in the first instance the proposed expansion was not wise and the jury so found, then the legislature by the enactment of Section 3379 of the Code of 1942 placing a "breathing or cooling off period" of one year in order that thoe citizens who may have legitimate rights might not be worn out and browbeaten into submission.
Thus, it provided, "but if said ordinances or ordinance shall be adjudged unreasonable, then same shall be vacated, and the proposed consolidation, extension or contraction shall be stayed or prohibited for one year." It will be argued that the only consolidation, extension or contraction that is prohibited for a period of one year is the consolidation, extension or contraction originally proposed in the vacated ordinance. A fair and reasonable interpretation of the statute means that when such an ordinance is adjudged unreasonable, the same is vacated and the purpose or intention of the municipality to extend the city limits shall be stayed and prohibited for one year. The statute does not read, "The original proposed consolidation, extension or contraction shall be stayed and prohibited for one year", but the proposed consolidation, extension or contraction. In other words, in the case at bar, the City of Jackson first proposed to extend its city limits. It then passed an ordinance accordingly. This ordinance was declared unreasonable and thus vacated. It is the proposal of the City to consolidate, extend or contract its city limits again in one year that is stayed and prohibited, — not the identical proposal as embodied in the initial vacated ordinance — but any proposed consolidation, extension or contraction.
I submit that it was the intention of the legislature to prohibit for a period of one year any proposed consolidation, extension or contraction of the limits of a municipality, and the lower court erred in not so holding and in overruling the plea in abatement.
E.W. Stennett, H.V. Watkins and Tom H. Watkins, for appellee.
Counsel for appellants attempt to construe Sec. 3379, Code 1942, as prohibiting the passage of any ordinance extending the city limits within a year after any ordinance attempting to extend the city limits has been found to be unreasonable. In our opinion, the statute is perfectly clear. It provides that "the proposed extension" shall be stayed and prohibited for one year. The reason for the provision is obvious. It was to prevent the city from immediately passing an ordinance which had within one year been found to be unreaonable. The extension proposed under the ordinance involved in this case is in no way similar to the extension proposed under the ordinance of December, 1947, which was found to be unreasonable. In brief the ordinance involved in this case is not "the proposed extension" which was found to be unreasonable in cause No. 12,101. The ordinance which was found to be unreasonable would have increased the size of the city from 15.6 square miles to 42.8 square miles, whereas the ordinance in the present case provides an expansion of only 88.9 per cent which would increase the size of the city to only 27.2 square miles. A glance at Exhibit 1 to the testimony of the witness Batson, a map of the City of Jackson and surrounding area which shows the boundaries of the proposed extensions under the two ordnances, will prove that the the proposed extension in this case is not the proposed extension which was litigated in cause No. 12,101.
It is to be observed that this statute does not limit a city from including in a subsequently passed ordinance any part of the lands included in an ordinance previously declared invalid one year prior to such ordinance, as is true in numerous other states. It is respectfully submitted that failure so to do enables a municipality in the State of Mississippi to pass an ordinance subtantially and materially different from a previous ordinance extending the corporate limits within a period of less than one year after the first ordinance has been declared invalid. In order to show the intention of the above cited Mississippi statute in this respect, a comparison of statutes of other states shows that those states which do intend to so limit any new ordinance have done so in specific terms.
Both the appellant Greaves, and the appellant Vail, in their brief, assail the action of the court in overruling their plea challeging the legal sufficiency of the extension ordinance. Their plea raised a number of legal questions, only two of which, however, were in any manner touched upon in their respective briefs.
The first challenge presents two propositions: (1) the existence of two State institutions, namely, the Blind Institute and the Institute for the Deaf, within the territory proposed to be annexed, and (2) said institutions so existing, the ordinance is void for failure to adjudicate that the governing authorities of said institutions have given their consent to the incorporation thereof within the proposed annexed territory.
The other challenge to the validity of the ordinance is as follows: "(2) No valid consent has, in fact, been given by the authorities mentioned in the next preceding paragraph as set forth therein."
This challenge also presupposes the existence of the said institutions within the territory proposed to be annexed.
It is to be noted that no complaint is made in the plea for the failure of the City to obtain the consent of the State Building Commission, but the complaint is based solely upon the failure of the City to obtain the consent of the trustees of the School for the Blind and School for the Deaf.
Counsel for appellant Greaves, on page 12 of his brief, admits that, under the record in this case, and under the provisions of Chapter 302 and Chapter 488, of the Laws of 1948, title to the property alleged to belong to the two state institutions was not in said institutions, but on the contrary, in the State Building Commission. We fully agree with this admission because it states the facts.
Counsel for appellant Vail, on page 14 of his brief, makes the same admission in these words: "Chapter 302, Laws of 1948, Section 1, authorizes the Building Commission to select the site for the buildings to be used by the deaf and blind institutes, and that statute vested the title in the commission until the completion of the buildings. The proof shows that the buildings had not been completed at the time of the trial. Therefore, jurisdiction over these buildings was vested in the building commission and the trustees of the deaf and blind institutes had no jurisdiction over these buildings and will not have any such jurisdiction until after they are completed."
The appellee is in full agreement with this admission for the reason that the same is a correct statement of the law and the facts.
Therefore, there is no controversy as to the fact that the state institutions complained of do not own any land or buildings within the territory proposed to be an nexed to the City of Jackson, under the ordinance complained of, and all parties are in full agreement that the testimony, as shown by the record, and that the law applicable thereto fixes the title to the property in the State Building Commission. It follows, therefore, as a matter of course, that there was no necessity for obtaining the consent of the trustees of the blind institute and the institute for the deaf before the adoption of the ordinance extending the city limits, as set forth in 1 of the appellant's plea challenging the validity of the ordinance, and in 2 of said plea.
Counsel for appellant Vail contends, however, that the extension ordinance should have adjudicated that the consent of the trustees of the deaf and blind institutes, or of the Building Commission, was obtained in writing as provided by the statute set forth above; and that said adjudication being jurisdictional, the ordinance is fatally defective by reason of its failure to so adjudicate. Appellant Greaves, however, does not raise this question, but presents only the question as to the effect of the failure of appellee to obtain the written consent of the state institutions on the validity of the ordinance.
A complete answer to the argument of both appellants is the fact that, under this record, and under the law of this State, no state institutions are situated within the territory proposed to be included within the new boundaries of the City of Jackson, and the ordinance does not include any of the buildings or grounds of any state institution, and this both appellants have frankly admitted in their respective briefs.
Counsel for appellant, Vail, takes the position that this cause was not triable at the February, 1949, term of the circuit court. He takes the position that under Section 1519 of the Mississippi Code of 1942 same would not have been triable unless "the defendant has been personally served with process for 30 days before the return day." We respectfully submit that Section 1519 is not applicable to an action such as this appealed from the City Council to the circuit court under Section 3378 of the Mississippi Code of 1942. This procedure does not call for any service of process on the defendant. Section 3379 provides that the appeal from the ordinance shall be to the circuit court "and shall be tried on an issue to be made up there". The entire purpose and intent of Section 3379 is for a speedy disposition of an appeal involving a municipal expansion. It should be noted that same limits the time for an appeal from the circuit court to the Supreme Court to ten days after judgment which is much shorter than the time allowed for any other appeal from the circuit court, to the Supreme Court. The legislature acted wisely in providing for a speedy determination of this type of litigation because under same one individual with or without valid reason has the legal right with little expense to himself to hold up an expansion involving 125,000 people. The provision for a speedy determination as outlined in Section 3379 is consistent with Section 1195 which provides for other appeals from the municipal authorities or Board of Supervisors to the circuit court which provides that the bill of exceptions shall be transmitted to the circuit court "on or before the first day of the next succeeding term, or at once if the court be in session, and the court shall hear and determine the same."
Section 1519 was clearly intended to govern causes originally instituted in the circuit court with process issued out of said court for the defendant. Counsel for appellants might just as logically argue that under Section 1616 where a case was appealed from a county court to a circuit court and a new trial granted by the circuit court, same could not have been tried at that term of court but would only be triable at the next succeeding term.
Even if Section 1519 were applicable, we submit that the defendant only would be the one entitled to complain of a trial unless there had been thirty days service of process on it. The appellants as plaintiffs in the circuit court were not in a position to complain where the defendant stood ready for trial.
In addition, we call attention to the fact that in his appeal bond filed on February 17, 1949, appellant predicated same upon an appeal "to the next term of the cuicuit court". The next term of the circuit court convened on February 21st. We respectfully submit that the lower court properly held that the case was triable at the February, 1949 term of the court
ON THE MOTION TO ADVANCE.
On January 19, 1949, the City Council of the City of Jackson passed an ordinance extending the city limits so as to annex some twelve square miles of additional area immediately adjacent to the present city limits. Kelly Vail prosecuted an appeal to the Circuit Court of Hinds County and was later joined in his appeal by Elmore D. Greaves.
There was a jury and verdict in the Circuit Court upholding the reasonableness of the ordinance, and from the judgment of that Court the case has been brought here on appeal. However, the case is not before us now on the merits. The City of Jackson has filed a motion to advance and it is now before us only on that motion.
An appeal bond was filed in the Circuit Court by Elmore D. Greaves on March 22, 1949, and two days later an appeal bond was filed by Kelly Vail.
The City of Jackson contends that the appeal in this matter is returnable before this Court forthwith under the provisions of Section 1956 of the Code of 1942, which reads as follows: "Appeals from judgments against persons deprived of their liberty in cases of habeas corpus, and from judgment on informations in the nature of quo warranto to try the right to a public office, whether state, district, county, or municipal, and in actions of mandamus where the public interest is concerned, and in cases at law or in chancery involving taxes claimed by the state, county, or municipality, may be returnable before the Supreme Court immediately, without reference to the return-days for other appeals; and when the transcript of the record of the case shall be filed in the office of the clerk of the Supreme Court, the appellee having been summoned to appear and answer the appeal, ten days after service of the summons on him or his attorney, the court shall consider such cases as entitled to be heard without regard to the district from which they are brought, and in preference to all civil cases, and they shall be heard and disposed of with all convenient speed."
(Hn 1) The appeal does not involve any ordinance levying a tax against the land within the boundaries as extended, nor does it involve any "taxes claimed" by the municipality, as provided in the above-mentioned statute. Hence the appeal is not returnable forthwith, but is returnable as any other case except those specifically provided for in the above cited statute.
The City of Jackson further argues that the Court may, in its discretion, advance this cause.
Section 1942, of the Code of 1942, provides that the terms of this Court shall be held on the second Monday of September and on the first Monday of March in each year. Section 1955 provides that the return-days for appeal shall be the first day of each term and such other day or days as may be designated by a rule or order of Court, except in cases in which an appeal is provided for at any time during the term of the Court.
Rule 35 of this Court provides that except as may be otherwise provided by law, the first day of each term and the first Monday of January, May, and July shall be the return-days for all appeals and all processes in civil cases.
Except in the cases specifically provided for by Section 1956, Code 1942, the return-days for appeals in this Court are the first Monday of January, the first Monday of March, the first Monday of May, the first Monday of July, and the second Monday of September.
(Hn 2) We held in Meridian Coca-Cola Bottling Co. v. Watson, 163 Miss. 486, 138 So. 407, that under our statutes appeals are returnable to the first return-day after the filing of the appeal bond, that is, more than ten days therefrom. See also Weir v. Killian, 59 Miss. 520. Since the appeal bond was filed by Elmore D. Greaves on the 22d day of March and by Kelly Vail on the 24th day of March, the appeal is returnable to the first day of May. The motion does not seek the advancement of the case to a time which is prior to the return-day of the appeal.
The motion to advance is based upon the contention that the questions involved on the merits of the case are of great public interest. It is charged that the area attempted to be added to the City constitutes densely populated, residential, and commercial area immediately adjacent to the present city limits, all of which said areas and the inhabitants thereof are urgently in need of the benefits which will be derived from the annexation of said areas within the City of Jackson, such as police protection, fire protection, lower fire insurance rates, garbage collection, bus service, school facilities, water, pest control, and city building inspection, sanitary sewage, and other benefits. It is alleged that approximately 35,000 people reside in the area proposed to be annexed.
It is necessary that the city and county officers learn as early as possible whether or not the area is to be assessed as within or without the city limits; that the proper school boards be advised in order that they may make the proper contracts with teachers and for the operations of schools; and that the city should be advised in order that it may determine whether or not to purchase necessary additional fire equipment and other municipal facilities to provide services to this additional area.
It is inescapable that questions are involved here that will embarrass the operations of both the city and the county government, unless disposed of, and that there is a public as well as a governmental need for these questions to be determined at the earliest convenient time.
Counsel for Vail argues that this Court has no power or authority to advance any case on the docket except those expressly provided for in Section 1956, Code of 1942, and cites Jackson Loan Trust Co. v. State, 96 Miss. 347, 54 So. 157, in support of his position. But that decision was based on a construction of Section 4902, Code of 1906, limiting the power of the Court to hear a case from a district not then on call, and that Statute, Section 4902, Code of 1906, was repealed by Chapter 163, Laws of 1916. The Court no longer hears cases by districts, and the limitation of the statute, Section 4902, Code of 1906, no longer exists. Hence Jackson Loan Trust Co. v. State, supra, is not now in point.
(Hn 3) This Court now has inherent power to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants, especially in cases of extraordinary public moment. It is true that the individual may be required to submit to a slight delay in order to permit the advancement of this cause, but this delay is not immoderate in extent and not impressive in its consequences. The public welfare and convenience will be thereby promoted, and the right of the individual must yield to this extent. Landis v. North American Company, 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153; Weston v. Hancock County, 98 Miss. 800, 54 So. 307.
It is the judgement of the Court that the motion to advance should be and it is hereby sustained and the case is set for hearing on the 23d day of May, 1949. The appellants shall filed their briefs on or before May 10, 1949. The reply brief for the city shall be filed on or before May 18, 1949.
Motion Sustained.
ON THE MERITS.
On January 19, 1949, the City Council of the City of Jackson passed an ordinance entitled "An Ordinance Enlarging the Boundary of the City of Jackson, Mississippi, and Describing the Land added thereto". The ordinance was published in the Jackson Daily News on January 21, January 28, and February 4, 1949.
On February 17, 1949, appellant Kelly Vail appealed from said ordinance. The February, 1949, term of the Circuit Court of the First Judicial District of Hinds County, in which the City of Jackson is situated, convened on February 21, 1949. On that date the record on appeal was filed in said Court. On March 8, 1949, the appellant Greaves joined in the appeal of Kelly Vail in said cause. The issue of the reasonableness of the ordinance was submitted to a jury and the jury found in favor of its reasonableness. A judgment was entered by the Circuit Court of the First Judicial District of Hinds County adjudicating the ordinance to be reasonable and that said ordinance should go into effect within 10 days from the date of said judgment. From this judgment, Vail and Greaves both appeal.
(Hn 1) The assignment of error assigned some fifty-five separate grounds of error in the proceedings in the lower court. However, only some eleven of these have been argued by the appellants in their respective briefs, and under the rule in this state assignments of error not argued in appellant's brief are waived and will not be considered by the Court. Willie McGee v. State of Mississippi, 40 So.2d 160, not yet reported in State Reports.
The first assignment of error argued is that the court erred in overruling appellants' plea challenging the legal sufficiency of the ordinance. Their plea raised a number of legal questions, only two of which however, were in any manner touched upon in their respective briefs. We will limit our discussion to these two grounds challenging the legal sufficiency of the ordinance. The first of these challenges urged by the appellants appears in the appellants' plea as follows: "Two state institutions, the Blind Institute, and the Institute for the Deaf, with grounds and buildings appurtenant thereto, are located within the territory proposed to be annexed to the City of Jackson, and the ordinance is void for failure to recite and adjudicate that the governing authorities, and the State of Mississippi, having under their jurisdiction and direction the management of said institutions, have given their consent to the incorporation of said institutions within the proposed annexed territory."
This challenge presents two propositions: (1) The existence of two state institutions, namely the Blind Institute and the Institute for the Deaf within the territory proposed to be annexed, and (2) said institutions so existing the ordinance is void for failure to adjudicate that the governing authorities of said institutions have given their consent to the incorporation thereof within the proposed annexed territory. The other challenge to the validity of the ordinance is as follows: "No valid consent has, in fact, been given by the authorities mentioned in the next preceding paragraph, as set forth therein." This challenge also presupposes the existence of the said institutions within the territory proposed to be annexed.
These questions are raised under the provision of Section 3383 of the Mississippi Code of 1942: "Section 3383. Municipalities may not incorporate state institutions without consent. — No municipality shall hereafter change its boundaries so as to include within the limits of such municipality any of the buildings or grounds of any state institution unless and until consent thereto shall have first been obtained in writing from the board of trustees of such institution, or such other governing board or body as may hereafter be created for the control of such institution, provided that any ordinance enlarging the boundaries of any municipality which does not comply with this statute shall be void and of no effect."
Chapter 488 of the Laws of 1948, under Section 2 thereof, divested the title to the old asylum grounds out of the Mineral Lease Commission and into the State Building Commission, and Chapter 302 of the Laws of 1948 authorized the Building Commission to select not exceeding 200 acres of said land and to thereon construct, erect, and equip suitable plants for the use and housing of the Mississippi School for the Blind and the Mississippi School for the Deaf.
Section 2 of said Act provides that immediately after the new building and plants for said institution shall have been constructed on the properties designated therefor and made ready for occupancy the land selected out of the old insane hospital property for the use and housing of the School for the Blind and the School for the Deaf shall be conveyed to the Board of Trustees of the Mississippi School for the Blind and the Mississippi School for the Deaf for use and occupancy of said institution.
After the time of the passage of the ordinance now before us, and even at the date of the trial in the lower court, the facilities for the Mississippi School for the Deaf and the Mississippi School for the Blind had not been completed, and consequently had not been conveyed to the respective schools by the Building Commission, and the respective institutions owned no property in the area sought to be included within the extended boundaries of the city. Let us also notice in passing that the present buildings and grounds belonging to and used by these respective institutions and the title to which is in them are already within the corporate limits of the City of Jackson and are not situated in that area proposed to be added to the city under the extension ordinance.
This being the state of facts, and the title being beyond dispute in the State Building Commission, appelland Vail in his brief said, "We are not idiotic enough to assert that the State Building Commission is an institution, and we do not believe that the Legislature had little enough sense to entertain the idea that a city ordinance could incorporate a board, composed of men, in a city."
(Hn 2) These challenges of the validity of the ordinance of extension were, as aforesaid, set up by plea and it became and was the duty of the parties so pleading said challenge to support same with preponderating evidence establishing the ground to be true in fact as stated in the plea. Here the facts upon which the plea is based have not been proved, but on the contrary it clearly appears beyond dispute that the two state institutions owned no property within the area proposed to be added to the city under the extension ordinance. (Hn 3) Hence the subject matter of the plea was not established by the evidence and it follows that the proof does not show that said institutions owned any property in the area proposed to be added under the extension ordinance, and hence there was no reason why the ordinance of the city should contain an adjudication that the consent of the respective institutions through their governing authorities had been obtained.
It is further assigned as error by appellants and argued in their briefs that the court erred in overruling the motion to stay the proceedings until the May term of Court and erred in overruling the motion to continue the cause until the May term of Court.
Counsel take the position that this cause was not triable at the February 1949 Term of the Circuit Court on the theory that under Section 1519 of the Code of 1942 same could not have been triable unless "the defendant has been personally served with process for thirty days before the return-date."
(Hn 4) Section 1519 is not applicable to an action such as this, appealed from the City Council to the Circuit Court under Section 3378 of the Mississippi Code of 1942. This procedure does not call for any service of process on the defendant. Section 3379 provides that the appeal from the ordinance shall be to the Circuit Court and shall be tried on an issue to be made up there. The entire purpose and intent of Section 3379 is for a speedy disposition of the appeal involving a municipal expansion. It should be noted that the statute limits the time for an appeal from the Circuit Court to the Supreme Court to ten days after judgment which is much shorter than the time allowed for any other appeal from the Circuit Court to the Supreme Court.
Section 1519 was intended to govern causes originally instituted in the Circuit Court with process issued out of said Court for the defendant. It has no application to appeals from a County Court to a Circuit Court nor to appeals such as the one herein involved. The learned trial judge in the lower court was eminently correct in his holding that the case was triable at the February 1949 Term of the Court.
It is also assigned as error and argued that the court erred in overruling the motion of appellant to compel the restoration of the exhibits withdrawn by the appellee in Cause No. 12,101, styled J.B. Sellers, et al. v. City of Jackson, and that the court erred in overruling the plea of res adjudicata. Counsel for appellants attempt to construe the provisions of Section 3379 of the Mississippi Code of 1942, as prohibiting the passage of any ordinance extending the city limits within a year after any ordinance attempting to extend the city limits has been found to be unreasonable. In our opinion the statute is perfectly clear. It provides as follows: "Section 3379. Appeal shall be to circuit court. — 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 unreasonble. If the judgment of the court be that the ordinances of the ordinance is reasonable, the ordinances or ordinance shall go into effect within ten days after final judgment thereon, and ten days shall be allowed for an appeal to the Supreme Court. If judgment be in favor of the reasonableness of the ordinances or ordinance the party or parties taking the appeal from the ordinances or ordinance and the sureties on the appeal-bond, shall be adjudged to pay all cost, but if the said ordinances or ordinance shall be adjudged unreasonable the same shall be vacated, and the proposed consolidation, extension or contraction shall be stayed and prohibited for one year."
(Hn 5) It will be observed from a reading of this statute that "the proposed . . . extension" shall be prohibited for one year. The reason for this provision is obvious. It was to prevent the city from immediately passing an ordinance which had within one year been found to be unreasonable. The extension proposed under the ordinance involved in this case is in no way similar to the extension proposed under the ordinance of December, 1947, which was found to be unreasonable. In brief the ordinance involved in this case is not "the proposed extension" which was found to be unreasonable in Cause No. 12,101. The ordinance which was found to be unreasonable would have increased the size of the city by 197 percent from 15.6 square miles to 42.8 square miles, whereas the ordinance in the present case provides an expansion of only 88.9% which would increase the size of the city to only 27.2 square miles.
From an historical standpoint it is interesting to note that when this section first appeared in the Code of 1892 as Section 2913 thereof, it was provided that "all ordinances proposing practically the same, shall be prohibited for one year." Section 2913 of the Code of 1892, was amended by Chapter 103, of the Laws of 1902, so as to eliminate the above quoted portion of said Section 2913 of the Code of 1892 and substituting therefor "the proposed . . . extension . . . shall be stayed and prohibited for one year".
It is to be observed that this statute does not limit a city from including in a subsequent ordinance any part of the lands included in an ordinance previously declared invalid one year prior to such ordinance as is true in numerous other states.
The former ordinance which was declared to be unreasonable was not the "proposed extension" provided for in the ordinance now before us, and Section 3379 of the Mississippi Code of 1942, which we have set out in this opinion, does not in any way stay or prohibit the passage of the ordinance now before us.
Hence the plea of res adjudicata was not well founded and the motion to compel the restoration of exhibits, withdrawn by the appellee in Cause No. 12,101, styled J.B. Sellers, et al. v. City of Jackson, wherein it was held that the former ordinance of extension was unreasonable, was properly overruled by the trial court and there was no error in the action of the court in so doing.
It is further assigned as error and argued that the trial judge refused to give the appellants a fair and impartial trial as defined by the laws of this state and the United States. The assignment of error is taken only by the appellant Vail. It is significant to note that appellant Greaves makes no such charge against the trial judge. Appellant Vail made no such charge in his motion for a new trial or in any other form in the trial court. He now bases his contention on a few selected rulings of the court taken from a record which contains 1,004 pages and which consumed some eleven days in the trial court.
In view of this assignment of error we have carefully perused every word contained in the record, not only with reference to the particular incidents cited by counsel, but also as to the entire proceeding upon the trial of this case in order to determine the truth as to whether or not any constitutional rights of the appellant Vail had been violated. (Hn 6) It is true that counsel was directed to refrain from delay and to get on with the trial, and the judge on occasion commented upon the excessive consumption of time, but at no time was counsel unduly restricted or his knowledge challenged or his motives impugned. There may have been one or two expressions of impatience with counsel, but these appear to have been warranted by the attitude of counsel in the matter then pending before the court. We mean by this no reflection upon the eminent counsel engaged in the trial of this case. He was performing his duty to his client as he saw it, and was clearly within his legal rights. Nevertheless, there was delay and the docket of the court was crowded. There was no prejudicial impropriety in any of the remarks or comments by the court at any time, regardless of the impatience which the court in some few instances probably felt, though the remarks of the court do not necessarily disclose any feeling of impatience which it may have felt. But counsel in his brief says that "a cold record rarely reflects the heat of a situation", and it is in the light of this statement in the brief of counsel for appellant that we have referred to the incidents in this opinion.
Volume 64 C.J. at page 92, states the rule as follows: "Counsel may properly be directed to refrain from delay, or to get on with the trial, or the judge may comment upon a waste or excessive consumption of time in the trial so long as counsel is not unduly restricted or his knowledge challenged, or his motives impugned; and remarks expressing impatience with counsel, even though perhaps unwarranted, are not fatal where not such as to cause material prejudice. Ordinarily counsel may not complain of slight or not seriously prejudicial impropriety in remarks or comments by the court where they are provoked by himself." A careful reading of this entire record impresses us with the entire absence of any undue restrictions placed by the trial judge upon the acts of counsel for appellant in the trial of the case in the lower court. Causes should not be unfairly prejudiced or unduly delayed through unfound charges of prejudice or unfairness against a judge.
(Hn 7) Counsel for appellant Vail complains because the trial court did not grant every delay requested and because the trial court did not grant a continuance of the cause to the next term of the court. This record shows that counsel for appellant Vail was employed on February 17, 1949, after the passage of the ordinance in question on January 19, 1949. The appeal was perfected from the ordinance on the date of the employment of counsel, to wit: February 17, 1949. An order was entered in the circuit court on February 24, 1949, directing counsel for appellant Vail to tender his issues in the cause on March 8, 1949, and setting the cause for trial on its merits for March 14th. The appellant Vail had from January 19th to March 14th to obtain any information which he desired to prepare for trial. He testified that he had made no attempt whatsoever to gain any of the information which was made the basis for request for delays and continuances during the trial. He testified that he sought no information from the records of the city and made no request of the city officials or employees for information. His testimony disclosed that he made no effort to obtain information from the records of the city. Instead of filing his preliminary motions and request for information between February 21st and March 8th, counsel for Vail waited until March 8th, the date on which he was supposed to tender issue, and then filed, one at a time, a list of motions seeking information which had been available to his client at all times since January 19th and which had been available to his counsel at all times since February 17th. We do not detail these incidents as any reflection whatever upon counsel, but as circumstances which demonstrate that he was by the court allowed ample time in the trial of the case, and that no constitutional right was invaded by any action of the trial judge.
We now have before us the completed record of the trial. It affords a complete picture of all of the bickerings and the struggles incident thereto. On the basis of this completed picture as a whole, it appears that the trial judge accorded to the appellants and each of them the full measure of their rights, and that no constitutional right of the appellants had been invaded.
There are other assignments of error in the record which have been argued in the brief of counsel, but in our judgment they contain no merit and we do not feel justified in prolonging this opinion by a discussion of them. We are satisfied that there is no error in the judgment of the lower court, and that the judgment of the lower court should be affirmed.
Affirmed.