City of Greenwood v. Humphreys

ON SUGGESTION OF ERROR. The effect of the decision of the court in State ex rel. Jordan v. Mayor and Commissioners of City of Greenwood (Miss.),127 So. 704, was to hold that the ordinance of annexation of North Greenwood is, for all practical purposes, now valid, not invalid, and necessarily that its validity, so far as all practical purposes are concerned, related back to the date of its passage. It is true that the court held that the ordinance was invalid at the time it was passed, but that at this late day, for the reasons set out in the opinion, the state would not be permitted to question its validity. Certainly, for a greater reason taxpayers of the municipality will not now be permitted to question the validity of the ordinance.

Under section 3303 of the Code of 1906, section 6734, Hemingway's 1927 Code, taxpayers were given the right of appeal from such an ordinance. No appeal was prosecuted either by appellee or any one else. Appellee's attack on the ordinance is a collateral attack. Having failed to prosecute an appeal from the ordinance, appellee is estopped to question its validity in this proceeding. Adams, Revenue Agent, v. Lamb-Fish Lumber Co.,103 Miss. 491, 60 So. 645.

The case principally relied on by appellee as authorizing her attack on the ordinance is City of Pascagoula v. Krebs, 151 Miss. 676,118 So. 286. In that case the city of Pascagoula by ordinance undertook to extend its limits, including therein territory within the corporate limits of the town of Eastside, which latter municipality was then in existence, functioning as such, and continued to function for years after the ordinance of annexation. The town of Eastside took no part in the annexation proceedings, and neither the city of Pascagoula nor the town of Eastside knew until shortly before the bringing of the action in that case that the territory involved had been by ordinance attempted to be incorporated into the former. The proceedings were held to be void, and that a taxpayer in the territory involved could question the legality of the ordinance of annexation.

We have no such case as that here. When the ordinance of annexation was adopted, North Greenwood had ceased to function as a separate municipality. That ordinance was passed in 1922. North Greenwood has not functioned as a municipality since.

We hold that at this late day, for the reasons set out in the opinion in the Jordan case, that neither the state nor any taxpayer of the city of Greenwood can question the legality of the ordinance. If there is no one entitled to question the legality of the ordinance now, that means that the ordinance is, for all practical purposes, valid, and its validity, as a practical proposition, relates back from the time of its adoption. In other words, conditions have arisen which make that which was void to begin with valid from its inception.

Suggestion of error overruled.