110 So. 434 | Miss. | 1926
The town filed a plea in the circuit court setting up, in substance, that, in 1893, the limits of the town were extended by the mayor and board of aldermen, and that in October, 1913, Thomas Stewart and others filed a petition praying that the corporate limits of the town be contracted, which petition was denied by the mayor and board of aldermen; that from that order of the mayor *688 and board of aldermen the petitioners appealed to the circuit court, where an issue was made up and a trial had and a judgment rendered by that court, which became final, declaring that the limits of the town were unreasonable, and ordering the mayor and board of aldermen to adopt an ordinance conforming to the judgment of the circuit court; that afterwards this judgment of the circuit court was carried out by an ordinance adopted by the mayor and board of aldermen; that all of said proceedings were legal, and that, since the adoption of that ordinance, there had not been any change in the corporate limits of the town. The plea further set up that judgment of the circuit court was resadjudicata of the question here involved. Appellants demurred to this special plea on the ground of its insufficiency in law. Their demurrer was overruled, and, on their declining to plead further, a final judgment was rendered by the circuit court in favor of the town, dismissing the appellants' petition.
The question involved turns upon the proper construction of section 3307, Code of 1906 (section 5803, Hemingway's Code), which is in this language:
"If the limits of any city, town or village shall be unreasonably extended or contracted, any person interested may, after two years from the time when the limits were fixed, whether fixed under this chapter or heretofore, petition the municipal authorities thereof for a contraction or extension of the limits. In case the prayer of the petition be granted, in whole or in part, the ordinance for that purpose shall be subject to appeal by parties interested, as in other cases; and in case of a refusal to grant the petition, in whole or in part, the petitioner may appeal to the circuit court, by the execution of a bond as provided in other cases, and an issue shall there be made up and tried, and the question shall be whether the existing limits be or be not reasonable. If it be adjudged that the limits are reasonable, the appellant *689 and his sureties shall pay the costs, as in other cases; but if it be adjudged that they are unreasonable, the court shall define the extent of the unreasonabe extension or contraction, direct the municipal authorities to pass an ordinance conforming the limits to the judgment of the court, and shall enforce the directions. Such ordinance shall take effect from its adoption. Reasonable and unreasonable, as used in this section, must be construed as relating to the interests of the entire municipality."
The petition in the present case was filed more than two years after the expiration of the last ordinance of the mayor and board of aldermen of the town fixing its corporate limits. We think that under the plain provisions of the statute the question of changing the corporate limits of a municipality may, at the instance of interested parties, be relitigated after the expiration of every two-year period from the last ordinance fixing its limits; in other words, that the question can only beres adjudicata (if it were proper to use that term) during that two-year period. The language of the statute governing this question is, "If the limits of any city, town or village shall be unreasonably extended or contracted, any person interested may, after two years from the time when the limits were fixed," etc., petition for a contraction or extension of the limits. And, furthermore, the doctrine of res adjudicata as applied to the judgments of courts has no application here except to the judgment of the circuit court on appeal as to the reasonableness of such a contraction or extension, and that lasts for only two years under the statute. The contraction or extension by the municipal authorities of the limits of a municipality under this statute partakes more of the character of legislation than it does of judicial action. It is not the action of a court to whose judgment the doctrine of res adjudicata applies; it is an ordinance or law passed by the municipality notwithstanding it be *690 true that the municipal authorities, in passing such an ordinance, act on their discretion and judgment as to the best interests of the municipality. The same is true of any legislation.
During a two-year period many changes might take place affecting the interests of the inhabitants and property owners of a municipality. During that period its development and growth might be such that its corporate limits ought to be extended. On the other hand, changes might take place which would reasonably call for a contraction of its corporate limits. The legislature, therefore, wisely provided by this statute that the mayor and board of aldermen of a municipality should have the authority, after the expiration of every two-year period from the last ordinance fixing its limits, either to extend or contract such limits, as might appear to the best interests of the entire municipality.
It follows from these views that the court below erred in sustaining the demurrer of the town to appellants' petition.
Reversed and remanded.
