Gregory v. City of Amory

Etheridge, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Monroe county dismissing the appeals of the appellants in said court from an 'ordinance extending the limits .of the city of Amory. The city of Amory formerly operated under chapter 99 of the Code of 1906, but after the passage of the commission government act ('chapter 120, Laws of 1912) adopted the commission form of government, 'and after coming under commission form of government proceeded to extend the limits of the city of Amory under section 3301 of the Code. *613Chapter 120, Laws of 1912, provided no scheme for extending corporate limits. From the ordinance making this extension the appellants appealed to the circuit court, complying with section 3303, but' motion was made to dismiss said appeals on the theory that section 18 of chapter 120, Laws of 1912, suspended or superseded sections 3303 and 3304 as to cities under commission form of' government, and that the referendum provided for in section 18 of chapter 120, Laws of 1912, was an exclusive method of testing the adoption of ordinances extending the city limits, or, if not exclusive, was at least a condition precedent, and that a petition for a referendum must first be resorted to before appeal. We think the circuit court was in error in dismissing the appeals ;■ that sections 3303 and 3304 are a part of the scheme provided for in section 3301 for extending the city limits, and a city having resorted to this section to extend the limits-must be burdened with the right of appeal provided for in sections 3303 and 3304. The referendum provision contained in chapter 120, Laws of 1912, and chapter 158, Laws of 1914, do not effect the above section. The referendum is not a proceeding to test the reasonableness of an ordinance, hut is a part of a legislative scheme for enacting municipal ordinances, and the voters may vote for or against an ordinance under these provisions for any reason he thinks proper, whether it he reasonable or unreasonable. One or more persons affected may appeal under the Code provisions, while it takes twenty-five per cent, under the commission government act and twenty per cent, under the initiative and referendum act (chapter 158, Laws of 1S>14) to secure an election. The provisions are entirely separate, and the right of appeal is not affected by the right of the referendum.

We think the learned judge below committed error in sustaining the motion to dismiss, and the cause is reversed and remanded.

Reversed and remanded.