Sanders v. City of Starkville, 91 So. 422

Sanders v. City of Starkville

91 So. 422 | Miss. | 1922

Cook, J.,

delivered the opinion of the court.

This appeal presents a suit against the city of Stark-ville seeking to enjoin it from collecting taxes on property included in an ordinance extending the corporate limits of the municipality. From a decree of the court below dissolving the temporary injunction and awarding damages, this appeal Avas prosecuted.

*747On the 17th day of December, 1917, the city of Starkville, Miss., through its mayor and board of aldermen, adopted an ordinance extending the corporate limits of the municipality in an easterly direction so as to include within the municipal limits a large amount of improved property, including the John M. Stone Cotton Mill property which was oivned by appellant. This ordinance was duly published as required by statute, and no protests or objections to the ordinance having been made, and no appeal therefrom having been prosecuted, on the 1st day of October, 1918, the mayor and board of aldermen passed an ordinance levying taxes on all property within the corporate limits as extended. Thereafter appellant filed his bill of complaint alleging that the ordinance extending the corporate limits of the municipality is invalid, and seeking to restrain the city from collecting the taxes assessed against his property.

Section 3 of the ordinance, extending the limits of the municipality, provides “that, for good reasons shown and because of urgent necessity, this ordinance shall take effect from and after its passage,” and appellant’s attack on the validity of the ordinance is directed principally at this section. Section 3301, Code of 1906 (section 5797, Hemingway’s Code), provides the manner in which property may be added to an existing municipality; and the succeeding section 3302, Code of 1906 (section 5798', Hemingway’s Code), provides:

“The ordinance provided for in the preceding section 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 neivspaper therein, and if none, then a newspaper having a general circulation therein for that time, and in other events by posting a written or printed copy of the ordinance or 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.”

Section 3305, Code of 1906 (section 5801, Hemingway’s Code), provides that:

*748“II appeal be not prosecuted from the ordinances or ordinance, the municipal authorities shall, at the expiration of the time therefor, inquire into the fact of the publication and the notice, and adjudge Avhether the same has been made according to law, and such finding, if made in good faith, shall be conclusive, and if adjudged to have been made and given the same shall thereupon, after the expiration of one month from the passage thereof, become operative.”

Appellant contends that, since section 8 of the ordinance here in question is in conflict with the statutes providing that such ordinances shall not take effect until the expiration of one month after their passage, the entire ordinance is thereby rendered invalid. We do not agree with this contention. The statutes regulating the enactment of ordinances extending the corporate limits of municipalities definitely fix the time when such ordinances shall take effect, and prescribe exactly what shall be done by the municipal authorities before such ordinances shall 'become operative, and the municipal authorities have no authority to put such ordinances into effect at a date earlier than that prescribed by these statutes. The statute fixing the time when such ordinances shall take effect must control, and, since section 8 of the ordinance here involved is in direct conflict with the positive mandate of the statute, it is invalid, but this does not render the entire ordinance invalid. The municipal authorities having complied with the mandatory requirements in the enactment, publication, and promulgation of the ordinance, it became operative at the expiration of the time prescribed by statute, and, since appellant failed to exercise his statutory right of appeal before the ordinance took effect, he cannot now attack it in this collateral proceeding.

The next contention presented by appellant is that the ordinance is not valid and will not bind him, because the record does not show that the municipal authorities inquired into the fact of the publication of the ordinance and notice thereof, and adjudged that the same was made ac*749cording to law, as provided in section 3305, Code of 1906 (section 5801, Hemingway’s Code). The appellant had the right of appeal from the action of the municipal authorities in passing the ordinance, and, having waived that right, he cannot now collaterally attack the ordinance upon the ground that the municipal authorities have not, as provided by section 3305, Code of 1906 (section 5801, Hemingway’s Code), inquired into the fact of publication and notice of the ordinance of extension, and adjudged that the same was made according to law. Adams v. Lamb-Fish Lumber Co., 103 Miss. 491, 60 So. 645.

Affirmed.