Fabric Fire Hose Co. v. Mayor of Vicksburg

Stevens, J., delivered the opinion of the court. • Appellant is a judgment creditor of the, defunct town of Walters, in Warren county, Mississippi. . It exhibited its bill of complaint against the city of Vicksburg in an effort to require the defendant city to pay this judgment. The claim is based upon the following state of facts: On December 6, 1900, while the town of Walters was in existence, the city of Vicksburg, under assumed — 99 — statutory power, extended its limits to take in wliat is referred to as “Fort Iiill,” a strip of territory lying between 'Fort Hill road on the east, National, Cemetery road on the west2 ánd Mint Springs bayou on the north. The territory attempted to be embraced was, as a matter of fact, part of the town of Walters, but the mayor and aldermen of the city of Vicksburg did not know at the time that the ordinance extending the limits of Vicksburg was trespassing upon or taking in territory belonging to the town of Walters. On May 12, 1910, some four months after the ordinance attempting to embrace Fort Hill within the limits of Vicksburg, the town of Walters voluntarily surrendered its charter, and was by proclamation of the Governor abolished. In 1911, and again in 1915, ordinances were passed by the city of Vicksburg, altering its boundaries, and each time the entire boundaries of the city, as changed, including Fort Hill, were described with particularity. During all of this time the authorities of the city of Vicksburg appeared to have been without actual notice that Fort Hill was a part of the town of Walters when the first ordinance of December, 1909, was passed. Upon detecting that the ordinance of 1909 was probably void, and on January 1, 1917, the mayor and board of aldermen of the city of Vicksburg again passed an ordinance, taking in Fort Hill territory by proper description. The bill has proper averments to show that the complainant is the owner of an unsatisfied judgment against the town of Walters; charges that the territory formerly embraced in the town of Walters, but now taken in by Vicksburg, amounts in taxable area to eighty-three and one-third per cent, of the whole taxable area formerly embraced in the town of Walters; that the city of Vicksburg has continuously collected taxes, on the area so taken in, from the year 1910 to date; and that the property thus appropriated from the town of Walters was liable for the debts of the said town; and that the complainant has a lien thereon for its debt. — 100 — The prayer of the bill is that complainant be awarded a personal decree against the city of Vicksburg for the full amount of said judgment, with interest and costs, or, if mistaken in this, that a master be appointed to ascertain and report the proportional part of the taxable lands formerly embraced in the town of Walters, now situated in the city of Vicksburg, and that a decree be awarded complainant for such part of its judgment as shall be found to be in proportion to the territory so taken in by Vicksburg, and that the mayor and board of aldermen be required to levy and collect a special tax upon the property now' in the defendant city that was formerly a part of the town of Walters; and for general relief. A general demurrer was interposed to the bill, and by the court sustained. From the decree dismissing the bill, appellant brings this appeal. It is the contention of appellee that the first ordinance of December, 1909, was utterly void because it undertook to incorporate into the city of Vicksburg a strip of territory wholly incorporated in the town of Walters; that no statute authorizes such a proceeding, and that the effort to appropriate a part of the territory of Walters falls under the condemnation of a prior decision of this court. Gandsi v. Seminary, 95 Miss. 315, 48 So. 908, In this case our court, construing section 3301, Code of 1906, as aménded by the Laws of 1908, chapter 186, said: “Section 3301 of the Code, and the other cognate sections in said chapter 99 on municipalities, provide alone for power in a municipality to incorporate, by extension of its limits, adjacent unincorporated territory. Those sections. nowhere look in any of their provisions to any grant of power to an existing municipality to extend its territory over the territory of another municipality and thus absorb it. . . . The result is that the ordinance of Seminary is void, the absorption of Grandsi by Seminary is a nullity, and the judgment is reversed and the suit dismissed.” — 101 — Appellant, on the contrary, attempts to discriminate the present case from, the case of Gandsi v. Seminary, on "the ground that the inhabitants of Gandsi were unwilling to be annexed to the town of Seminary; that in the present case the inhabitants of Walters have raised no objection to the first ordinance of the city of Vicksburg, but, on the contrary, the taxpayers interested in the territory taken in by Vicksburg have paid all taxes imposed by the municipal authorities of Vicksburg; and that the city of Vicksburg is now estopped to question the validity of its own ordinance. In determining the rights of complainant, 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. The proceeding here under review is therefore not in .accordance with that portion of section 3301, Code of 1906, outlining the method whereby two or more cities or towns may “combine into or become one municipality.” Our court, in the Gandsi Case, expressly ruled that the latter portion of section 3312, Code of 1906, as amended by the Laws of 1908, chapter 187, wholly failed to give power to one municipality to reach out and appropriate the territory embraced in another municipality, “as a simple inspection of section 3312 clearly demonstrates.” It could not be said that the city of Vicksburg intended to take in a strip of incorporated territory, because in the caption of the very ordinance it is declared to be one “to enlarge the boundaries of the city of Vicksburg by adding thereto adjacent unincorporated territory.” 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. It is true that an ordinance was passed January 1, 1917, to make effective that which had been merely an abortive attempt to embrace the Fort Hill territory, but when this last ordinhnce was passed the Fort Hill territory had been — 102 — released from the town of Walters nearly seven years. This, then, is not a case of consolidation. 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. How, then, can the defendant city be held personally liable for the complainant’s judgment? The case of Horner v. Coffey, 25 Miss. 434, expressly held that the inhabitants of a municipality were not parties to a cause .of action against the municipal corporation, and that the only jurisdiction which the corporation had to compel the inhabitants to discharge the obligations of the corporate authorities was to impose and collect such taxes as are expressly authorized by the charter under which the town is incorporated. Vicksburg operates under a special charter, but whether under a special charter or under the Code chapter on municipalities, it has not been delegated with the authority to impose a tax for the town of .Walters, or for payment of the obligations of the town of Walters. It is elementary that taxes must be equal and uniform. How could the mayor and board of alderman of the city of Vicksburg impose a tax on the Fort Hill territory and not upon all of the taxable property of the city of Vicksburg? The case here must fail for want of power in the municipal authorities of the defendant city. The argument that the last clause of section 3310, Code of 1906, gives to the complainant a lien upon the property heretofore embraced in the town of Walters, is persuasive. The statute says: “But such dissolution shall not relieve the property theretofore liable from the debts of the municipality.” But the statute' makes no provision for enforcing the claims of creditors, and it may be that the complainant has no remedy except in a court of equity. This is not a suit by the complainant against the former officers or inhabitants of the town of Walters to impress a lien upon the taxable property heretofore liable for the — 103 — debts of said town. This is not a challenge to a court of equity to supply a remedy for an acknowledged right, under circumstances where • there is no remedy at law. This is a straight suit against the city of Vicksburg, and an offort to hold the municipal corporation of Vicksburg personally liable. If this were a suit against a corporation rechartered and reconstructed upon the old site of the town of Walters, the case would probably be ruled by Ross v. Wimberly, 60 Miss. 345. In the case last named, the town was “reincorporated with the same name and substantially the same powers as before.” It is a matter of regret that our statutes authorize the abolition of a municipal corporation without exacting the payment of its debts as a condition precedent, or without making adequate provision for the levying of a tax to pay the remaining debts of the defunct corporation. If such proceeding is to be tolerated, what will become of of the large bonded indebtedness of the municipality that prefers repudiation and surrender of its charter in preference to a long and hard struggle to free itself, from debt? But this is a subject more for the legislature than for the courts. Confining this opinion strictly to the case made by the bill, the demurrer was properly sustained. Affirmed. ■