City of Pascagoula v. Scheffler

• Decision Date: 19 March 1986
• Docket Number: No. 55402,55402
• Parties: CITY OF PASCAGOULA v. William D. SCHEFFLER, Glynn Cox, et al, Petitioners for Incorporation of the City of Gautier, MS.
• Court: Mississippi Supreme Court

Page 196

487 So.2d 196

CITY OF PASCAGOULA v. William D. SCHEFFLER, Glynn Cox, et al, Petitioners for

Incorporation of the City of Gautier, MS.

No. 55402.

Supreme Court of Mississippi.

March 19, 1986.

Rehearing Denied May 14, 1986.

John G. Corlew, Watkins & Eager, Jackson, Melvin Mitchell, Pascagoula, for appellant.

Robert A. Pritchard, Pritchard & Chapman, Pascagoula, for appellees.

Before WALKER, P.J., and DAN M. LEE and PRATHER, JJ.

PRATHER, Justice, for the Court:

A challenge to the sufficiency of a petition seeking municipal incorporation is the subject of this opinion. A petition filed by area residents for incorporation of the area known as Gautier, was filed in Jackson County Chancery Court. This area was also the subject of an appeal denying incorporation in 1970, Rouse v. City of Pascagoula, 230 So.2d 543 (Miss.1970).

The incorporation attempt was opposed by the City of Pascagoula, an existing municipality within three miles of the proposed area seeking incorporation. The chancellor found the proposed incorporators had met the jurisdictional statutory requirements, that public convenience and necessity required the proposed incorporation and that incorporation was reasonable.

The City of Pascagoula filed this appeal assigning as error: The lower court erred in not directing a verdict against the petitioners for incorporation because: (1) the petition for incorporation was defective as a matter of law for the petitioners' failure to meet the burden of proving the necessary joinder of two-thirds of the qualified electors residing in the area proposed to be incorporated; (2) findings of public convenience and necessity do not require incorporation; (3) the proposed incorporation is not reasonable; (4) the court erred in accepting petitioners' witness, Steven Wages, as an expert in municipal matters and in allowing that witness to offer opinion testimony outside his discipline.

I.

The petitioners for incorporation of Gautier allege that two-thirds or more of the qualified electors residing within the geographical area sought to be incorporated as a municipality join in this request, and that incorporation is warranted by public convenience and necessity and is reasonable. The area contains approximately twelve (12) square miles and has a population of approximately 10,431. Geographically, the property is separated from Pascagoula on the east by the West Pascagoula River, and is bounded on the south by the Mississippi Sound. Assessed valuation was alleged to be in excess of seventeen million dollars. Services, not provided by other governmental bodies, were sought for the area residents, namely, a fire department, adequate law enforcement, public recreational facilities, and a sewage system. No change in the separate school district was sought. Pascagoula objected to the legal sufficiency of the petition and asserted that area services were adequately provided by Jackson County and other government entities. Additionally, Pascagoula contended that incorporation would deter future development to the area.

Seven individual objectors filed disagreements, and numerous individuals from outside the geographical area testified expressing objection to exclusion of their property from the boundaries.

Other pertinent facts will be enumerated as the assignments of error are addressed.

II.

Did the lower court err in not directing a verdict against the petitioners for incorporation because the petition for incorporation was defective as a matter of law?

Miss.Code Ann. Sec. 21-1-13 (1972) ¹ sets forth the statutory requirements for a petition for incorporation. Miss.Code Ann. Sec. 21-1-15 requires that notice be given to (1) "all persons interested in, affected by, or having objections to the proposed incorporation," and to (2) any existing municipality within three miles of the territory proposed to be incorporated. Pascagoula is such an existing municipality. Upon hearing of such a petition after proper notice, the petitioners for incorporation have the burden of proving the sufficiency of this petition. In Re City of Pearls, 279 So.2d 590 (Miss.1973).

Although generally speaking, protests are limited to objections from residents of the affected area, this statutory procedure provides that notice be given to persons interested in, affected by, or objecting to incorporation. Miss.Code Ann. Sec. 21-1-15 (1972) Contra; C. Rhyne, The Law of Local Government Operations Sec. 2.17 (1980); 62 C.J.S. Municipal Corporations, Sec. 11 (1949); 56 Am.Jur. Sec. 50 (1971). This case questions the prerogative of an adjacent existing city to challenge the incorporation of a nearby unincorporated area: may the objecting municipality attack the technical jurisdictional compliance of the petition, or merely the reasonableness, convenience and necessity? To answer this question, this Court concludes that since notice to a nearby existing municipality is statutorily required before incorporation, and since the statute further provides that "persons" interested in, affected by, or objecting to an incorporation shall be noticed, the statute may be reasonably construed to mean that the municipality is such a "person" entitled to object to all facets of the hearing.

A.

Having concluded that Pascagoula may challenge the technical compliance of the petition, this Court now looks to its arguments.

First, the appellants contend that the petition for incorporation was defective in that Miss.Code Ann. Sec. 21-9-15(2) (1972) ² requires that any municipality in a class 1 county bordering on the Mississippi sound and the State of Alabama, traversed by U.S. Hwy. 90 shall have a mayor and six council members, whereas the petition filed named only a mayor and five council members. Appellees argued that this statute set forth by appellant is a "private" statute and was intended to apply only to the City of Pascagoula and that whenever public statutes conflict with private statutes, the public statutes must prevail.

Additionally, this statute applies to "'any municipality ..." whereas this petition affects an unincorporated area not yet a municipality. This Court agrees with the appellees that this section has no application to this case.

B.

The appellants also contend that the petition failed to allege the assessed value of real property in the area proposed for incorporation and failed to use the latest available property assessment.

Miss.Code Ann. Sec. 21-1-13(5) states that the petition "shall set forth the assessed valuation of the real property in such territory according to the latest available assessments thereof...." Petitioners' witness testified he used the 1980 tax rolls, the latest available assessments at time of filing petition in 1981, which showed an assessment of $17,755,488; the proof showed an assessed valuation of $13,362,275.

It appears from the record that the petition for incorporation was in substantial compliance with the statute and any contradictions arising between the pleading and proof for incorporation were decided by the chancellor hearing the petition. Only upon manifest error of the trial court will this Court reverse the chancellor's findings. See Culbreath v. Johnson, 427 So.2d 705 (Miss.1983); Cotton v. McConnell, 435 So.2d 683 (Miss.1983). This Court finds no merit to this argument.

C.

The municipal objector also challenged the defectiveness of the petition as a matter of law for failure to include signatures of sixty-six (66) and two-thirds ( 2/3rds) percent of the qualified electors residing in the area proposed to be incorporated.

Miss.Code Ann. Sec. 21-1-13(3) (1972) prescribes that a petition for incorporation "shall be signed by at least two-thirds of the qualified electors residing in the territory proposed to be incorporated." This assignment questions the validity and method of determining the number of qualified electors. See Miss.Code Ann. Sec. 21-11-1 (Supp.1985) (Designates a municipal voter as "every person who ... has resided within the corporate limits for thirty (30) days before he offers to vote ... if properly registered as provided by law ..."); Miss.Code Ann. Sec. 23-5-85 (1972).

Miss.Code Ann. Sec. 23-5-31 (Supp.1985) provides that "every person entitled to be registered as an elector ... and who has signed his name on the application for registration to vote shall be registered by the registrar on the registration books of the election district of the residence of the person." Miss.Code Ann. Sec. 23-5-73 (Supp.1985) provides "the poll book of each election district shall have printed or written ..." the "names of electors ..." and further states, "[w]hen election commissioners determine that any elector is disqualified from voting, by reason of removal from the district, or other cause, that fact shall be noted on the registration book and his name shall be erased from the poll book." Procedures for the purging of the registration books and the poll books statutorily mandate the five commissioners of election to remove names of "persons erroneously thereon, or who have died, removed or become disqualified as electors from any cause." Miss.Code Ann. Secs. 23-5-79 through 23-5-82 (Supp.1985). Thus, county registration and poll books most accurately reflect the number of qualified electors. However, these records do not remain static, but must be corrected to reflect changes of residences, etc.

In this case, petitioners used the voter rolls of Jackson county and canvassed the affected area. Additionally, telephone books, postal lists, and utility consumer rolls were reviewed. Gautier citizens proposing incorporation also wrote personal letters and made telephone calls to contact electors. Their investigation compiled a list of some four hundred people who had moved from Gautier ³ for various reasons. The proponents for incorporation then requested the removal of those names. It is charged by the objecting municipality that less than a quorum of three commissioners...