State Ex Rel. Jordan v. Mayor of Greenwood

The state, on the relation of Arthur Jordan, district attorney for the Fourth judicial district of this state, in which the city of Greenwood, in Leflore county, is situated, filed in the circuit court of that county an information in the nature of a quo warranto against the appellees, John Ashcraft, G.B. Elliot, and J.B. Webb, mayor and councilmen of said city, to oust them from their offices on the ground that they were usurping the duties of their respective offices without warrant of law. In the latter part of the year 1922, and the early part of 1923, the city of Greenwood attempted to incorporate within its limits the territory lying north of the Yazoo river known as North Greenwood. The ground of the petition was that these proceedings were void; that the territory known as North Greenwood, therefore never became a part of the city of Greenwood. When the petition was filed, one of the appellees, John Ashcraft, was the mayor of the city, and was a resident citizen of the territory attempted to be incorporated. The petition set out fully the facts relied on as constituting the void proceedings by which North Greenwood was sought to be annexed, and charged that the appellees, as mayor and councilmen, were unlawfully exercising authority and jurisdiction over the said territory. The prayer of the petition was that the mayor and councilmen be "debarred as councilmen of the city of Greenwood from exercising jurisdiction over said territory described as aforesaid, and that said ordinance of annexation, dated December 5, 1922, be declared null and void, and that all the territory described in said ordinance *Page 843 of annexation be declared outside of and no part of the city of Greenwood. In addition to the general issue, the appellees filed four special pleas to which the appellant demurred on the ground of insufficiency in law, which demurrer was overruled, and the appellant declining to plead further, final judgment was entered in favor of appellees, from which judgment this appeal is prosecuted. The case being here on pleas and demurrer thereto overruled, the facts set out in the pleas are to be treated as true. The first special plea follows: "Now comes John Ashcraft, J.B. Webb, and G.P. Elliott, the defendants in the above-styled cause, by their attorneys, and for a plea in this behalf, says that the plaintiff ought not to have and maintain the aforesaid information in the nature of a quo warranto against them, because the defendant says that the city of Greenwood, Mississippi, was on the first day of January, 1922, a municipality duly organized and existing under the laws of the State of Mississippi, and operating and functioning as such municipality and for a long time theretofore and ever since said date has been, and now is duly operating and functioning as such municipality. That on the 7th day of October, 1922, the then Governor of the State of Mississippi, Lee M. Russell, issued his proclamation abolishing the alleged Town of North Greenwood, Le Flore County, Mississippi, so that if the said town ever existed the same was prior to the time of the extension of the corporate limits of the said city of Greenwood, completely destroyed and annihilated as such municipality. A copy of said proclamation is hereto attached and marked Exhibit `A' to this plea, as a part hereof. That on the 5th day of December, 1922, the council of the said city of Greenwood passed an ordinance extending its limits including the territory theretofore supposed to embrace the limits of the said alleged town of North Greenwood; and that on the 16th day of January, 1929, the said council of the said city of Greenwood *Page 844 passed an ordinance approving the boundaries as described in the said ordinance of December 5, 1922, and adjudicating the publication of the said ordinance as required by law, as shown by Exhibits `D' and `E' to relator's declaration and information. That the said territory so alleged to have been called North Greenwood was at the time of the extension of said city limits, and before, adjacent to territory embraced by the corporate limits of the said City of Greenwood, and being at the time of said extension separated only by the Yazoo River, the corporate limits of the said City of Greenwood extending to the south banks of said River and following and embracing said banks for at least a half a mile, and the said North Greenwood Territory extending to and embracing the north banks of said River and following said banks for at least one quarter of a mile, the boundaries of said territory being shown by the exhibits to relator's declaration and information herein and part of the territory annexed touches and abuts the original territory of the city of Greenwood, and the said territories are also connected by a large iron bridge, and its approach affording free and convenient access and passage between said two territories for pedestrians, automobiles, trucks, tractors, and all manner of traffic, except railroad trains, the said bridge being one of the largest, most magnificent and commodious in the State of Mississippi; that upon and immediately after the issuance of the proclamation signed by said Governor Lee Russell, shown as an exhibit to the said information filed by relator, and as Exhibit `A' to the first special plea to the original complaint herein and hereby made a part hereof, the said alleged municipality of North Greenwood ceased to attempt even to operate as a town or municipality. There were no meetings of any persons styling themselves as mayor, aldermen, council, or by any other nomenclature applicable to municipal officials, that no taxes were levied by any other authorities styling themselves as officials of `Town of North Greenwood,' and *Page 845 no persons whatever purported to act as such officials, and no improvements were made in said alleged North Greenwood territory by any municipality or alleged municipality styling itself as North Greenwood, or by persons styling themselves as officials of North Greenwood, and that the property owners of said North Greenwood territory after the extension of the corporate limits of the city of Greenwood paid taxes to the said City of Greenwood, voted in its elections and generally recognized the said alleged North Greenwood territory as a part of the said City of Greenwood, and which said territory alleged as North Greenwood was at the time of said extension, and is now, very populous; that the officials of said City of Greenwood have, ever since said extension of said corporate limits of said City of Greenwood, treated and recognized the said North Greenwood territory as a part of the said City of Greenwood; that the streets of said added territory have been since said extension worked, drained, graveled and lighted by said city of Greenwood, and said added territory furnished by said City with police protection and public schools, and into said territory have extended water mains, erected fire plugs and furnished most of the inhabitants of said added territory with abundant water supply and fire protection, except as to water supply and fire protection in that part of said added territory known and called Boulevard Addition to North Greenwood, which could not be furnished by reason of reservations reserved by the original owners of said addition, which rights are now being sought by the said City of Greenwood in the Courts; that all of the territory described in said declaration or information has been ever since the said extension of the said corporate limits and is now functioning and operating under the control of and as a part of said City of Greenwood, in which control, functioning and operating the State of Mississippi has for more than six years acquiesced and during which said six years and more, large expenditures of money have been made *Page 846 by the said City of Greenwood in and about the improvement of said territory, and all of its dealings have been upon the faith and confidence that the said added territory was a part of said City, and the defendant has served as Mayor of said City ever since January 3, 1927, and that on account of the said long acquiescence and failure of more than six years to question the said extension, and because of laches, the State is now estopped to question the validity of said extension through this proceedings against the Mayor and Commissioners duly elected by the citizens of said city, the election of the said Ashcraft being shown by a certified copy of the returns of the election commissioners of the said city of Greenwood electing this respondent, Ashcraft, to the office of Mayor of said City, filed as Exhibit `B' to the first special plea to the original complaint herein and made a part hereof. And by this warrant the said John Ashcraft has held and executed during all the time in said information mentioned, and still holds and executes the said office of Mayor of the City of Greenwood, and said Webb and Elliot exercise rights over said added territory as they well might and still may; and that said Ashcraft does not now usurp the said office as by the said information he is above supposed. All of which the said John Ashcraft and said Webb and Elliot are ready to verify." The second plea set out substantially the same facts as the first, and, in addition, that if the town of North Greenwood was not abolished in 1922, it was automatically abolished by chapter 268, Laws of 1926. The third plea set up that no good would be accomplished by upsetting the present status of the city of Greenwood, but that only evil would result; that courts were organized for the purpose of doing justice and not injustice; that the disruption of the unity of the city of Greenwood would bring about incalculable hardships and confusion among the property owners of the entire territory constituting the city. The fourth special plea set up that *Page 847 the organization of the city of Greenwood, as it now exists, and the extension of its municipal boundaries, were, in all respects, legal. Among the exhibits to the petition is a certified copy of a petition from the office of the city clerk of Greenwood dated September 20, 1922, addressed to Governor Russell, asking that the town of North Greenwood be abolished on the ground that its municipal authorities had ceased to function for more than six consecutive months preceding the date of the petition, and reciting that it was signed by a majority of the qualified electors of the town of North Greenwood, and prayed that said town be abolished under the authority of section 3310, Code of 1906. Another exhibit to the petition is a certified copy of the Governor's proclamation abolishing the town of North Greenwood, dated October 7, 1922. Under the law, a municipality cannot extend its boundaries so as to include another municipality. Gandsi v. Seminary, 95 Miss. 315, 48 So. 908; Fire Hose Co. v. Vicksburg, 117 Miss. 89, 77 So. 911; Pascagoula v. Krebs, 151 Miss. 676, 118 So. 286. The appellant contends that under those decisions the proceedings to annex North Greenwood to the city of Greenwood were void, because North Greenwood was, at the time, an existing municipality; while the appellees contend that North Greenwood was not, at the time of its annexation, a separate municipality from the city of Greenwood, because it has been previously abolished as such. We are of the opinion that the proceedings by which it was sought to abolish the municipality of North Greenwood were void; that it was, at the time of its attempted annexation to the city of Greenwood, a separate municipality; and that therefore the annexation proceedings were also void. We do not set out the facts embodied in the pleadings out of which these questions arise, and do not discuss the questions, for two reasons: First, because, in their nature, they are questions that will probably *Page 848 not arise in the future; and, second, the conclusion we have reached results in the affirmance of the judgment appealed from on another ground, which ground we shall now undertake to develop and discuss. As set out in the special pleas, for nearly seven years prior to the beginning of this action, the city of Greenwood, as now constituted, has continued to function. Since the ordinance of annexation of North Greenwood to the city of Greenwood, on December 5, 1922, North Greenwood has ceased to function as a separate municipality. It has had no municipal officers of its own, and has taken no action whatever, of any kind or character, as a separate municipality. Its inhabitants are inhabitants of the enlarged city of Greenwood. Its qualified electors vote in the elections of the city of Greenwood. All municipal taxes against property in North Greenwood are assessed and collected by the municipal authorities of the city of Greenwood. The streets of North Greenwood have been lighted and graveled by the city of Greenwood, and the city of Greenwood furnishes police and fire protection to North Greenwood, and public schools. The city of Greenwood has extended its water mains into North Greenwood, erected fire plugs, and furnished the inhabitants of North Greenwood with water, fire protection, etc., except as to water and fire protection in that part of said territory known as Boulevard addition, which could not be furnished by reason of certain water rights of the original owners of that addition. The pleas also set out that the state had acquiesced in this condition of affairs for nearly seven years before bringing this action. The appellees' position is that, although the city of Greenwood, as now constituted, be only a de facto municipal corporation, on account of the facts and conditions set out in the special pleas, the state is barred from now questioning its legality. Section 4017, Code of 1906, section 3216, Hemingway's 1927 Code, provides that the remedy by information *Page 849 in the nature of quo warranto "shall lie, in the name of the state against any person or corporation offending in the following cases." The statute then sets out eleven different cases in which the remedy shall lie. The first, fourth, and fifth of these are in this language: (1) "Whenever any person unlawfully holds or exercises the functions of any public office, civil or military, or franchise, or any office in any corporation, city, town, or village, and to try the right to any such office." (4) "Whenever any corporation shall be guilty of a misuser or abuse of its powers, or ceases to discharge the duty for which it was created." And (5) "whenever any corporation wilfully exercises powers not conferred by law." In the absence of any statutory period of limitation, it is generally held by the courts of this country that an action in the nature of quo warranto on behalf of the public may be commenced at any time; that lapse of time constitutes no bar to the proceeding; that the maxim, "Nullum tempus occurrit regi," applies in such cases. However, the courts of several of the states of the Union, although recognizing and giving force to that maxim, hold that conditions may arise in the administration of the affairs of a corporation, whether such corporation be public or private, by reason of which the state, on account of its laches in questioning the legality of the corporation, will be barred from so doing. One of the leading cases bearing on this question is that of State v. Des Moines, 96 Iowa, 521, 65 N.W. 818, 821, 31 L.R.A. 186, 59 Am. St. Rep. 381. The city of Des Moines incorporated within its limits some adjacent territory. The act of incorporation was void for reasons unnecessary to state. For four years thereafter, without any question by the state, the enlarged city exercised throughout its entire territory the rights and functions of city government, including the levying and collecting of taxes, establishing, opening, vacating, changing, and improving streets, and making contracts, and creating and paying *Page 850 debts. Four years after the annexation of the territory, the state proceeded, by petition in the nature of quo warranto, to set aside and vacate the annexation proceedings. The case is so well reasoned and supported by authorities referred to in the opinion, that we do not see how we could do better than quote that part of the opinion bearing directly on the question at bar. It follows: "It is hardly possible to contemplate the situation to result from a judgment dissolving the present city organization, and leaving the territory formerly embraced within corporate lines as it would be left. Of all the cases to which we are cited, involving the validity of municipal organizations, where the consequences to result from a judgment of avoidance are considered, not one presents a case of such uncertainty, nor where there are the same grounds for serious apprehension, because of difficulties in adjusting rights in this case. There are many cases where the doctrine of laches has been applied to sustain a municipal government where the organization, as attempted, was illegal. Much importance is attached by appellant to the fact that in this case the act serving as a basis for the annexation is absolutely void, and a distinction is drawn between proceedings where they are irregular, merely, and where they are void. The case of State v. Leatherman, 38 Ark. 81, is perhaps as directly in point on the particular question as any we have noticed. It involved a consideration of the legality of the establishment of Arkansas City, in that state. In Arkansas such corporations are established on the order of court, and it was found that the court making the order had no jurisdiction to make it, and as to that branch of the case the court said, `There was no jurisdiction, and the order was void.' The court then proceeded to the consideration of the question we are now considering, and, after detailing some of the consequences to result from a judgment avoiding the corporation, it is said in the opinion, speaking of that city, with others, probably organized under similar orders, `To declare *Page 851 them all null, after long acquiescence on the part of the state, would open a very Pandora's box of litigation, and produce incalculable hardship and confusion.' In the same connection the court further said, `This impels us to the broader fields of inquiry, whether this court, in view of justice, equity, and the security of titles, can find, in recognized principles of law, sufficient warrant for refusing its aid in opening the floodgates of unmitigable evil.' The question was, in that case, presented on a demurrer to the answer; the action being by information in the nature of quo warranto, as in this case. It may also be said that the information was presented by the attorney-general in behalf of the public, and not on the relation of a private prosecutor, as in this case. The opinion is concluded in these words: `The case made by the answer shows an acquiescence for nearly nine years, and a recognition by the governor, county collector, and the whole of a population now over one thousand. If the answer be true, the corporation of Arkansas City should not now be held null and void.' Barring that of time, the same facts are true in this case; the time here being, before the commencement of the suit, a little more than four years. In connection with the thought as to delay on the part of the public, it may be well to say that our law expressly authorizes such actions to be commenced by the county attorney, in the name of the state, and makes it his duty to do so when directed by the governor, the general assembly, or a court of record. The general assembly has twice convened since the annexation, in the city affected by the act, the seat of government being within its limits; and the validity of the corporation has never been, by it, nor by any public officer, questioned. These suggestions bear on the fact of a public recognition of the present corporation. The Arkansas case cites, and we refer to, Jameson v. People,16 Ill. 257, 63 Am. Dec. 304. That case, also, was quo warranto, in behalf of the state, to oust the officers of the town of Oquaka, because of illegality in the organization of the town. The claimed *Page 852 illegality was an irregularity in the manner of voting on the question of incorporating. The validity of certain bonds issued by the town depended on the existence of the corporation. The question was presented by a demurrer to defendant's pleas, corresponding to our answer, in which it was made to appear that for more than four years the corporation had been recognized by the legislature in its acts; had exercised the powers and franchises conferred on such corporations by law; had levied and collected taxes, made contracts, and incurred liabilities, and passed and enforced ordinances. The supreme court declined to consider the matter of irregularity in voting, and sustained the corporation alone on the grounds of the averments of the answer or pleas; and, while it attached much importance to the subsequent acts of the Legislature in recognition of the corporation, it added, after detailing some consequences to result: `Municipal corporations are created for the public good, — are demanded by the wants of the community; and the law, after long-continued use of corporate powers, and the public acquiescence, will indulge in presumptions in favor of their legal existence. . . . It would seem incompatible with good faith, and against public policy, although irregularities may have intervened in the organization of the town, now to hold that it was not a body corporate. We do not think the law requires us to do so. We realize the dissimilarity of the case, in some respects, from the one under consideration; but at the same time, in its reasoning and conclusion, it sustains the principle that laches may overcome legal defects in such organizations. People v. Maynard, 15 Mich. 463, is quo warranto, and the case involved the validity of a county organization which was held void, as we understand, by a majority of the court, on constitutional grounds. The court in that case says: `Inasmuch as the arrangement there indicated had been acted upon for ten years before the recent legislation, and had been recognized as valid by all parties interested, it cannot now be disturbed. *Page 853 Even in private associations, the acts of parties interested may often estop them from relying on legal objections which might have availed them if not waived. But in public affairs, where the people have organized themselves, under color of law, into ordinary municipal bodies, and go on, year after year, raising taxes, making improvements, and exercising their usual franchises, their rights are properly regarded as depending quite as much on the acquiescence as on the regularity of their origin, and no ex post facto inquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such acquiescence, the corporate standing of the community can be no longer open to question.' The case cites Rumsey v. People, 19 N.Y. 41, and Lanning v. Carpenter, 20 N.Y. 447. Mr. COOLEY, in his work on Constitutional Limitations (page 312, 4th Ed.) says: `In proceedings where the question of whether a corporation exists or not arises collaterally, the courts will not permit its corporate character to be questioned, if it appears to be acting under color of law, and recognized by the state as such. . . . And the rule, we apprehend, would be no different if the constitution itself prescribed the manner of incorporation. Even in such a case, proof that the corporation was acting as such, under legislative action, would be sufficient evidence of right, except as against the state, and private parties could not enter any question of regularity. And the state itself may justly be precluded, on principles of estoppel, from raising any such objection, where there has been long acquiescence and recognition.' This, it is true, is a direct proceeding by the state. And, while the language used is applied in part to collateral proceedings, it seems also to include actions by the state directly. The learned writer sustains this text by a reference to People v. Maynard, 15 Mich. 463; Rumsey v. People, 19 N.Y. 41, and Lanning v. Carpenter, 20 N.Y. 447. It will be seen that importance is given to the fact that the defective organization takes place under color of law. *Page 854 Nothing less can be said of the annexation in this case than that it was made under color of law. `Color of law' does not mean actual law. `Color,' as a modifier, in legal parlance, means `mere semblance of legal right.' Kin. Law Dict. Gloss. In some of the cases the defects as to organization have been spoken of as irregularities, because of which appellant thinks the cases not applicable, because this is a void proceeding. The term `irregularity' is oftener applied to forms or rules of procedure in practice than to a nonobservance of the law in other ways, but it has application to both. It is defined as a `violation or nonobservance of established rules and practices.' The annexation in question was a legal right under the law, independent of the act held void. It was not a void thing, as if prohibited by law. The most that can be said is that the proceeding for annexation was not the one prescribed, but it was a violation or nonobservance of that rule or law. It seems to us that the proceeding is no less an irregularity than in the cases cited." To the same effect are the following cases: State v. Bailey,19 Ind. 542; State v. Gordon, 87 Ind. 171; State v. Alexander,129 Iowa 538, 105 N.W. 1021; State v. Westport, 116 Mo. 593, 22 S.W. 888; State v. Lincoln R.R. Co., 80 Neb. 333, 114 N.W. 422, 14 L.R.A. (N.S.) 336; State v. College View, 88 Neb. 232, 129 N.W. 296; State v. McLean County, 11 N.D. 356, 92 N.W. 385; Commonwealth v. Bala Turnpike Co., 153 Pa. 47, 25 A. 1105; People v. Alturas County, 6 Idaho 418, 55 P. 1067, 44 L.R.A. 122; State v. Mansfield, 99 Mo. App. 146, 72 S.W. 471, and State v. Bingham, 14 Ohio Cir. Ct. R. 245. These cases do not apply the doctrine of laches and estoppel to the state as those terms are ordinarily defined in the decisions of the courts. They are based, rather, on the principle of the public welfare. Laches, however, is one of the elements that enters into the question. The very large question is whether the state, in its sovereign capacity, has the right, in a proceeding of this *Page 855 character, to destroy instead of promote the public welfare. Here, we have a de facto municipal corporation exercising all the functions, and no more, so far as the record shows, of a de jure municipal corporation. The state stands alone upon the position that the city of Greenwood is guilty of breaching a bare legal right of the public. The governing principles in this case apply not only to public corporations — such political subdivisions of the state as counties and municipalities — but apply, as well, to private corporations chartered under the laws of the state. For illustration, take one of the counties of the state. It has been illegally organized as a county, because, in its organization, the law was not pursued. Nevertheless, it is a de facto county. It has functioned for years, issued bonds, built a courthouse, and has all the district and county officers which the law provides for counties legally organized. There have been chartered and organized in the county municipalities which have issued bonds for their various purposes, as provided by law. The board of supervisors has organized and put into operation drainage and road districts, etc., in accordance with the drainage and road laws, and has issued bonds for such taxing districts. Besides the election of its regular county and district officers, it has elected members of the State Legislature and has participated in all other state elections. There has been no abuse by the county of the powers conferred on counties by the law. The only complaint the state has for dissolving the county is the naked fact that the law was not complied with in the organization of the county. The attorney-general, in the name of the state, files a petition in the nature of a quo warranto against all the officers of the county requiring them to show by what warrant they hold their offices, or against the county itself to dissolve it and place it back into its original state. The sole ground for so doing is that, under the law, the organization of the county was void. There is no pretense that the public welfare would be promoted by the proceeding, *Page 856 but, on the contrary, it is shown that incalculable harm will result to the public. Are the courts powerless to prevent such a result? We say not. The rule of reason and justice will be applied here as was applied by this court in construing our anti-trust statute, which was afterwards, by the legislature, embodied in an amendment to the statute. Take another illustration: There is a railroad corporation chartered under the laws of the state. It has been in operation for years, has its railroad lines in the state, is engaged in carrying passengers and freight, and has issued millions of dollars of bonds in its building and betterment. These bonds are held all over the country by purchasers, in good faith, for value. It turns out that, for some reason, the charter of the corporation is void. Nevertheless it is shown that the corporation is guilty of no abuse of the regular corporate powers generally conferred on railroad companies. It is true it is not a legal corporation, but it is a de facto corporation serving the public as if it were a de jure corporation. The only claim the state has for proceeding to vacate its charter and dissolve the corporation is the bare fact that its attempt to become a corporation is void because the law, in some respects, was not pursued. In such case, would the courts be powerless to render a just judgment by denying the state a judgment dissolving the corporation? The purpose of our statute conferring upon the attorney-general and the district attorneys of this state the power to bring quo warranto is to vindicate, not destroy, the rights of the public. This is a new question in this state. The only decisions of our court coming anywise near to it are City of Jackson v. Merchants' Bank, 112 Miss. 537, 73 So. 573, and Ætna Ins. Co. v. Robertson,131 Miss. 377, 94 So. 7, 95 So. 137. In the City of Jackson case the court held that where a city had erroneously run a street line, it would be estopped to change such line to its correct position, if such change necessitated damage to, or destruction of, *Page 857 a building erected in accordance with the line so run. The grant by a state of the powers usually given to counties and municipalities is a grant of just so much of the sovereign power of the state. It would seem, therefore, that the same principles governing the enforcement of public rights by municipalities and counties would govern the state in the enforcement of its public rights. The Ætna Insurance Company case was a suit by the state against the insurance company to recover penalties for violation of the anti-trust statute. There was much conflict in the opinions of the judges as to whether the state could be estopped by laches. The result of the judgment of the court, however, was to estop the state from recovering penalties for more than two years before the action was brought. Appellant refers to the case of Fire Hose Co. v. Mayor and Board of Aldermen, of City of Vicksburg, 117 Miss. 89, 77 So. 911, 913, and Pascagoula v. Krebs, 151 Miss. 676, 118 So. 286, 287, as sustaining its position. We do not think these decisions are in point. The Fire Hose Company case was a suit against the city of Vicksburg for a debt that the village of Walters was due the Fire Hose Company. The village of Walters had been included within an addition to the corporate limits of the city of Vicksburg. When the addition was made, it was not known that any part of the village of Walters was included therein. In the opinion, the court laid stress on that fact, using this language: "It should be observed that there has never been any concerted effort on the part of the city of Vicksburg and the town of Walters to consolidate. . . . While the bill does not expressly so aver, it is manifest that the municipal authorities were ignorant of the fact that the Fort Hill Territory was wholly within the confines of the town of Walters. . . . The city of Vicksburg never intended to trespass upon the territory of the town of Walters, to appropriate any of its territory, or assume any of its debts." *Page 858 In the Krebs case, there was no effort whatever on the part of the city of Pascagoula to exercise jurisdiction over the annexed territory. The inhabitants of the annexed territory sent their children to the county schools; the county, not the city of Pascagoula, maintained their roads and bridges, and furnished such police protection as they had. The court said in the opinion: "In fact, it did not seem that anybody in authority knew that this merger of Eastside into the municipality had been accomplished." How different from the present case, where everybody knew that the merger had taken place, and acquiesced in it for more than six years prior to the bringing of this suit. There is another reason to be added to those already set out (and a potent one it seems to us), why the state ought to be barred from maintaining this action, and that is that by chapter 268, Laws of 1926, the town of North Greenwood was automatically abolished. That act, in substance, provides that all municipalities in the state containing less than one thousand inhabitants as determined by the federal census of 1920, which have not functioned for a period of two years, shall be abolished and thereafter cease to exist. The record in this case shows that, by the census of 1920, North Greenwood contained less than one thousand inhabitants, and the record also shows that it has not functioned as a separate municipality since its territory was annexed to the city of Greenwood in the latter part of 1922. This statute embodies the public policy of this state in reference to municipalities of the character of North Greenwood. If the prayer of this petition in this case is granted, the city of Greenwood can now legally do what it failed to do in 1922, namely, it can incorporate within its boundaries the territory formerly constituting North Greenwood. It appears, therefore, that the whole object of this action is vain and useless. Affirmed. *Page 859