Black v. Brinkley

1. Parti necessary certiorari p ] ceeding. e s roThe order of annexation which the appellant seeks to quash upon certiorari was made by the county court upon the petition of owners of the annexed territory. They were parties in interest and parties to the record which the appellant sought to annul. There could be no legal determination therefore of their right to annexation without making them parties to the proceeding, or at least without making the person a party whom they had selected, in accordance with the statute governing such cases, to prosecute the petition for annexation in their behalf. As none of the petitioners nor the agent was a party to the proceedings for certiorari, the court did not err in refusing to quash the order of annexation. Haines v. Freeholders of Camden, 47 N. J. L., 454; see Smith v. Parker, 25 Ark., 518, 522.

2. Laches. Moreover, the appellant delayed for more than eight months after the order of annexation was made before filing the petition to annul it. No excuse is offered for the delay. If the circuit court had acted upon the petition at the next term after its presentation, the lapse of time would have been such that it is fair to presume that jurisdiction had been assumed by the municipality over the annexed territory with whatever of expense is necessarily incident thereto, that taxes had been assessed and paid for municipal purposes, and that the citizens residing within the annexed territory had participated in electing town officers. Great confusion would have arisen from a quashal of the order. It is now nearly four years since the territory was declared a part of the town, and the causes for confusion have multiplied as time has elapsed. We should therefore be slow to hold that the circuit court had abused its discretion in withholding the use of the writ, and slower in exercising that discretion ourselves at this time. The rule is to refuse the writ where the party seeking it fails to show that he has proceeded with expedition after discovering that it was necessary to resort to it, and especially where great public inconvenience will result from its use. Burgett v. Apperson, 52 Ark., 221; Fractional School Dist. v. Inspectors, 27 Mich., 3.

The State itself by acquiescence may be debarred of the right to question the legality of the origin of a municipality, even when it was organized under an order of court that is void for want of jurisdiction of the subject matter. State v. Leatherman, 38 Ark., 81. The reasons which uphold the right of municipal existence in such a case are a sufficient answer to the petitioners’ arguments to cast out the territory annexed by the order of the county court in this case.

Affirm.