Dodd v. City of Jackson, 41491

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: LEE; All Justices concur, except ROBERDS; LEE; All Justices concur except ROBERDS
• Citation: 238 Miss. 372,118 So.2d 319
• Parties: Mrs. V. R. DODD et al. v. CITY OF JACKSON, Mississippi.
• Docket Number: No. 41491,41491
• Decision Date: 07 March 1960

Page 319

118 So.2d 319 238 Miss. 372 Mrs. V. R. DODD et al.
v.
CITY OF JACKSON, Mississippi. No. 41491. Supreme Court of Mississippi. March 7, 1960.

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[238 Miss. 374] Watkins & Eager, Thomas H. Watkins, Jackson, for appellants.

[238 Miss. 376] E. W. Stennett, Wm. Neely, Jackson, Watkins, Pyle, Edwards & Ludlam, Jackson, for appellee.

LEE, Justice.

The governing authorities of the City of Jackson, acting under the provisions of Sec. 3374-10, Code of 1942, Rec., by an ordinance entitled 'An Ordinance to enlarge, extend, modify and define the corporate limits and boundaries of the City of Jackson, Hinds County, Mississippi', on February 14, 1959, sought to annex approximately 23 square miles of territory, adjacent to the existing corporate area of approximately 27 square miles, and exclude therefrom approximately 137 acres, which [238 Miss. 378] was being developed as a part of a lake and recreational facilities on Sixteenth Section land, partly within and partly without the city, under a program which was promoted by Hinds County. Sec. 1 of the ordinance described the territory to be included. Sec. 2 thereof described the territory to be excluded, and the reason therefor, to wit: 'Public convenience and necessity can best be served by not having divided authority between the City of Jackson and Hinds County for safety, health and police protection on the properties utilized by the Sixteenth Section development corporation in the construction of said lake and recreational facilities.' Sec. 3 contained a description of the corporate limits and boundaries as enlarged, modified by the exclusion, and fixed by the ordinance. Sec. 4 set forth the improvements that the city obligated itself to make in the annexed territory, within a reasonable time and not to exceed five years. Sec. 5 enumerated the municipal or public services that the city would render to the annexed territory, beginning on the effective date of the ordinance. Sec. 6 directed the filing of a petition with the Chancery Court of the First Judicial District of Hinds County for the ratification, approval and confirmation of the enlargement and modification of the boundaries as fixed and determined therein.

Pursuant to the command of the ordinance, and in conformity with Sec. 3374-11, Code of 1942, Rec., the petition, with a copy of the ordinance attached, was filed in the said chancery court on March 16, 1959; and the court fixed April 21, 1959, as the date of the hearing. Process was issued, as required by law, and on or before the return date, objections were filed by a number of citizens and taxpayers from several parts of the added territory, classified into 14 separate areas and numbered from 1 to 14, inclusive. These objections raised issues both as to the validity of the ordinance, and as to the reasonableness of the expansion. No objection to the proposed exclusion was filed.

[238 Miss. 379] At the conclusion of the hearing, the court overruled the objections to the validity of the ordinance. There was a finding of fact and an adjudication that Areas 1

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to 11, inclusive, should be annexed, but that there should be excluded from the territory, as proposed in the ordinance, approximately 3.83 square miles, in the northnortheast section, namely, in Areas 12, 13 and 14, thereby fixing the extent of the expansion at approximately 19.17 square miles. The court further adjudicated that the grounds set forth in Sec. 2 of the ordiance for the exclusion of the territory therein described were reasonable, and that public convenience and necessity can best be served by not having those lands within the corporate boundaries of the city. The decree, in all respects, complied strictly with Sec. 3374-13, Code of 1942, Rec., and the corporate boundaries, set forth in the petition and ordinance exhibited thereto, as modified, were found to be reasonable and required by the public convenience and necessity, and were ratified, approved and confirmed, with the description thereof being set out in the final decree. From that action of the court, only R. H. Elliott and Mrs. V. R. Dodd, individually, and as members of Northeast Hinds County Homeowners' Association, appealed.

As a general proposition, the appellants assigned as error, and maintain in their brief and argument that (1) an annexing ordinance may contain only one subject, and that, since the ordinance in this case provides both for the expansion and the contraction of the city limits, it contains two subjects, and is invalid. They say furthermore that (2) the subject of the ordinance is not clearly expressed in its title, as required by Sec. 3374-74, Code of 1942, Rec., in that it gives no indication as to improvements and services to be furnished, and that it is therefore void. In addition, they also say that (3) the ordinance is void because is fails to pass upon the question of public convenience and necessity of the proposed extension.

[238 Miss. 380] It is true that, under Sec. 3374-74, supra: 'An ordinance shall not contain more than one subject, which shall be clearly expressed in its title; * * *'. This statute has existed in its present form since 1892. See Sec. 3008, Code of 1892. The requirement of the statute has been held to be mandatory. Home Insurance Co. of New York v. Dahmer, 167 Miss. 893, 150 So. 650.

But the Legislature, by Chap. 491, Laws of 1950, which embraces seven different Articles and 174 Sections, provided for the creation, enlargement, and abolition of municipalities; prescribed the forms of government and the officers thereof and for the election of such officers; specified the powers and duties thereof; and repealed all laws in conflict therewith. This chapter now appears as Secs. 3374-01 to 3374-174, inclusive, of the Code of 1942, Rec.

Sec. 3374-10 thereof, after declaring in the first sentence that 'The limits and boundaries of existing cities, towns and villages shall remain as now established until altered in the manner hereinafter provided', then proceeds to say in the next sentence: 'When any municipality shall desire to enlarge or contract the boundaries thereof by adding thereto adjacent unincorporated territory or excluding therefrom any part of the incorporated territory of such municipality, the governing authorities of such municipality shall pass an ordinance defining with certainty the territory which it is proposed to include in or exclude from the corporate limits, and also defining the entire boundary as changed.' (Emphasis supplied.)

Obviously the subject with which the above statute deals is that of altering the limits and boundaries of existing cities, towns and villages. It would seem to be an absurdity if a city, in order to accomplish the purpose of altering its boundaries by adding certain adjacent territory and excluding certain territory already included within the existing limits, would be required to [238 Miss. 381] adopt two different ordinances, and thus initiate at the same time two different proceedings in the chancery court.

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In Town of Ocean Springs v. Green, 77 Miss. 472, 27 So. 743, 744, the title to the ordinance under review was 'An ordinance entitled 'An ordinance to prevent the carrying or exhibiting of a deadly weapon," and it was held that the subject of that ordinance was 'deadly weapons, or criminal acts committed with deadly weapons; and any and all acts committed by the use of deadly weapons which the municipality may choose to prohibit might have been properly included under said title.' In other words, while the ordinance did not include the exhibition of a pistol in a rude, angry and threatening manner, not in necessary self-defense, as a violation of the ordinance, the offense for which the appellant had been convicted, it could have done so under that title and would not have been in violation of Sec. 3374-74, supra. It was likewise held in Winfield v. City of Jackson, 89 Miss. 272, 42 So. 183, 184, that: 'An ordinance providing that all offenses made misdemeanors under the state laws shall be violations of the municipal laws contains only one subject, under section 3008, Ann.Code 1892,' now Sec. 3374-74, supra.

The title of the ordinance has been set out hereinabove. It contains the verbs 'enlarge', 'extend', 'modify' and 'define.' The first two clearly authorize the inclusion of adjacent territory. Some of the definitions of 'modify' are 'to limit; to mitigate; to reduce in extent or degree; to moderate; lower; to change somewhat the form or qualities of; to alter somewhat; change.' Webster's New International Dictionary, 2d Ed.

The subject of the ordinance, namely, both the enlargement, to include adjacent territory, and the contraction, to reduce in extent the existing boundaries, is clearly expressed in the title, as hereinabove stated.

[238 Miss. 382] In the third sentence of Sec. 3374-10, supra, it is expressly provided that: 'In the event the municipality desires to enlarge such boundaries, such ordinance shall in general terms describe the proposed improvements to be made in the annexed territory and the manner and extent of such improvements and the approximate time within which such improvements are to be made, and such ordinance shall also contain a statement of the municipal or public services which such municipality proposes to render in such annexed territory.' (Emphasis supplied.) This quoted requirement is clearly mandatory, and the city, in its ordinance, must comply therewith. The promise as to improvements and public services and as to the extent and time within which they are to be made, by operation of law, had to be set forth. This condition precedent to the enlargement was fully met by Secs. 4 and 5 of the ordinance. In other words, it was not necessary to include the city's obligation in the title of the ordinance, as one of the purposes thereof, because if the city expected to extend its corporate limits, the law required it to set forth this...