City of Pearl, In re

• Decision Date: 05 June 1973
• Docket Number: No. 47488,47488
• Citation: 279 So.2d 590
• Parties: In re Incorporation of the CITY OF PEARL, Mississippi. L. D. BOLING and John Mohr v. The CITY OF JACKSON et al.
• Court: Mississippi Supreme Court

Page 590

279 So.2d 590

In re Incorporation of the CITY OF PEARL, Mississippi L. D. BOLING and John Mohr v. The CITY OF JACKSON et al.

No. 47488.

Supreme Court of Mississippi.

June 5, 1973.

Rehearing Denied June 25, 1973.

Bacon & Smith, Jackson, W. E. McIntyre, Jr., Brandon, for appellants.

John E. Stone, Jackson, O. B. Triplett, Jr., Forest, for appellees.

GILLESPIE, Chief Justice:

This appeal is from a decree of the Chancery Court of Rankin County, Mississippi, which dismissed the petition filed by certain citizens of Rankin County (Incorporators) seeking to incorporate the community known as Pearl into a municipality proposed to be named the City of Pearl. This is the third appearance of the case in this Court. City of Jackson v. Boling, 241 So.2d 359 (Miss.1970); Boling v. City of Jackson, 258 So.2d 443 (Miss.1972). Following the last remand to the trial court, a hearing was had on the merits and the chancellor dismissed the petition. In his opinion he stated that (1) the Incorporators failed to prove the petition was signed by at least two-thirds of the qualified voters residing in the territory proposed to be incorporated, and (2) the proposed incorporation was unreasonable because the cost of operating the proposed municipality would be prohibitive.

The proceedings were brought under the provisions of Mississippi Code 1942 Annotated section 3374-03, which sets out the necessary requirements for the incorporation of a municipality.

The first question is whether the Incorporators met the burden of proving that the petition was signed by two-thirds of the qualified electors residing in the territory proposed to be incorporated. The principal testimony offered by the Incorporators consisted of the testimony of James E. Netherland and Phillip Warren, Circuit Clerk of Rankin County. Netherland has resided in the Pearl area for about sixteen years, is an accountant, and has been nominated to serve as an alderman if the city is organized. An office was set up of which he was in charge. A map was prepared showing the perimeter of the proposed area and this map, kept in Netherland's office, was used to determine if a person who came in to sign the petition was within or without the boundaries of the proposed city. A listing of the rural box numbers was obtained from the post office showing which of the boxes were in the area, and none of the persons living outside of the area were permitted to sign the incorporation petition. The books of registered voters in each precinct, furnished by the Circuit Clerk of Rankin County, were used in determining was a registered voter. Using the official records of the circuit clerk's office, the witness determined that there were 4572 qualified electors in the various voting precincts which were entirely or partially included in the proposed area to be incorporated and 591 of the qualified electors lived outside the area, leaving 3981 qualified electors in the area, of which number 2792 of the qualified electors, or more than two-thirds, signed the petition.

Mr. Netherland worked in cooperation with the circuit clerk in checking the records. During the time the people were coming in to sign the petition, Mr. Netherland kept the petition on his person or in his office most of the time. Only one petition was used, the original of which was filed in this cause. He reviewed the petition with the circuit clerk in order to determine that the signers were qualified electors. When Netherland was out of the office, a Mrs. Martin, new deceased, was present, but when Netherland returned to the office he checked those signatures that had been added in his absence so that all signatures were verified as to their qualification. He kept a copy of the poll books prepared by the circuit clerk in his office.

While Mr. Netherland was on cross-examination, the objectors sought to go over the poll books to count those names that were excluded because they lived outside the area in question. Upon objection by Incorporators to making this calculation in detail, the attorney for objectors agreed, in order to save time, to make the count outside the court with the understanding that the witness would be recalled 'if we find a discrepancy between his tabulation and what we find.' The records were tendered the attorney for Objectors but he did not recall the witness.

The Incorporators had the burden of proving the sufficiency of the petition. Bridges v. City of Biloxi, 250 Miss. 717, 168 So.2d 40 (1964).

Before this case came on for hearing on the merits the court ordered the Objectors to file with the court and to mail to the Incorporators the names of all persons appearing on the petition whom the Objectors challenged as not being qualified electors. However, the Objectors did not comply with that decree and did not designate any person or persons whom they claimed were not qualified electors. Nor did the Objectors offer any proof that any of the signatures on the petition were not genuine or were not qualified electors. We hold that the testimony offered by the Incorporators met the burden of proving that...