Bridges v. City of Biloxi, 43224

• Decision Date: 19 October 1964
• Docket Number: No. 43224,43224
• Citation: 168 So.2d 40,250 Miss. 717
• Parties: Dorothy E. BRIDGES, Appellant, v. CITY OF BILOXI, Appellee.
• Court: Mississippi Supreme Court

Page 40

168 So.2d 40

250 Miss. 717

Dorothy E. BRIDGES, Appellant, v. CITY OF BILOXI, Appellee.

No. 43224.

Supreme Court of Mississippi.

Oct. 19, 1964.

Upton Sisson, Gulfport, Blass & Smith, Wiggins, Forrest B. Jackson, Jackson, for appellant.

Watkins, Pyle, Edwards & Ludlam, Jackson, Charles K. Pringle, Albert Sidney Johnston, Jr., Biloxi, for appellee.

PATTERSON, Justice.

The petitioners seek the incorporation of an area lying along the Mississippi Sound and west of the City of Biloxi in Harrison County, Mississippi. This area, if incorporated, to be known as the City of West Biloxi Beach.

On March 4, 1961, pursuant to Mississippi Code Annotated section 3374-03 (1942), a petition for incorporation was filed in the Chancery Court of Harrison County. Thereafter amended petitions were filed seeking the same result. This petition was signed by numerous residents of the Handsboro and Beauvoir voting precincts within the area sought to be incorporated. Mississippi Code Annotated section 3374-03(3) (1942) states the requisite number of petitioners necessary to meet the requirements of such statute, 'It shall be signed by at least two-thirds of the qualified electors residing in the territory proposed to be incorporated.' The City of Biloxi, respondent, filed a plea to the jurisdiction of the court alleging therein that two-thirds of the qualified electors residing within the territory sought to be incorporated had not signed the petition for incorporation on March 4, 1961, and neither had the requisite two-thirds of the qualified electors residing within the area signed the subsequent amended petitions. This plea was separately heard by the court below as was proper under the authority of Mississippi Code Annotated section 1290 (1942), the City of Biloxi accepting thereby the burden of proof as to the matters set forth in such plea.

The issues to be determined here are: (1) Whether the petition could be amended after filing to include additional petitioners. (2) Whether the lower court was manifestly in error in adjudicating that two-thirds of the qualified electors residing in the area sought to be incorporated had not signed the petition as required by section 3374-03(3).

In considering the first question, we find section 3374-03 requires, 'Whenever the inhabitants of any unincorporated territory shall desire to incorporate such territory as a city or town, they shall prepare a petition and file same in the chancery court of the county in which such territory is located * * *. Said petition shall meet the following requirements: * * * (3) It shall be signed by at least two-thirds of the qualified electors residing in the territory proposed to be incorporated.' This section is explicit in its terms in that the statutory requirements must be fulfilled at the time the same is filed. In McQuillin, Municipal Corporations, sec. 3.24 (3d ed. 1949), the rule is set forth as follows: 'The right to enjoy and exercise the franchise of a municipal corporation depends upon a compliance with the provisions of the statute which authorize its organization, and failure to observe mandatory provisions of a fundamental and jurisdictional nature will render the attempted incorporation void,' and in sec. 3.26 thereof, the following: 'The petition must recite the existence of the conditions specified by statute to authorize incorporation, and those required by statute to be included in the petition for incorporation.' See also Coleman v. Board of Supervisors of Choctaw County, 216 Miss. 867, 63 So.2d 533, and In the Matter of the Validation of $30,000 Road and Bridge Bonds of 1960, Supervisor's District #3, Neshoba County, Mississippi, 242 Miss. 125, 133 So.2d 267. We are of the opinion and so hold that once the petition is filed, amendments thereafter cannot be made to include the names of additional petitioners.

The second and essential question for determination is whether there was competent evidence to support the court below in its conclusion that two-thirds of the qualified electors residing in the area proposed to be incorporated had not signed the original petition of March 4, 1961. The appellant contends the introduction en masse of the poll books of Beauvoir and Handsboro voting precincts, the registration books appertaining to both precincts, the official list of poll tax payers for the years involved certified by the sheriff and tax collector of the county, the poll tax exemption book and the...