Giles v. City of Biloxi, 41219

• Decision Date: 08 June 1959
• Docket Number: No. 41219,41219
• Citation: 112 So.2d 815,237 Miss. 65
• Parties: Barney M. GILES and Roy Glennan, v. CITY OF BILOXI, Mississippi, et al.
• Court: Mississippi Supreme Court

Page 815

112 So.2d 815

237 Miss. 65

Barney M. GILES and Roy Glennan, v. CITY OF BILOXI, Mississippi, et al.

No. 41219.

Supreme Court of Mississippi.

June 8, 1959.

Suggestion of Error Overruled July 2, 1959.

See 113 So.2d 544.

Howard A. McDonnell, Arnaud O. Lopez, Biloxi, for appellants.

Thomas J. Wiltz, Biloxi, Satterfield, Shell, Williams & Buford, Jackson, for appellees.

GILLESPIE, Justice.

This is an appeal from a decree of the Chancery Court of Harrison County denying the relief prayed for in the bill of complaint. Certain interested taxpayers and property owners filed their bill of complaint against the City of Biloxi and its officials, the Biloxi Bridge and Park Commission and its commissioners, and Aponaug Manufacturing Company, a corporation, in which a decree was sought declaring certain legislative acts unconstitutional and void and adjudging a contract between the Biloxi Bridge and Park Commission, hereinafter called Commission, and Aponaug Manufacturing Company, hereinafter called Aponaug, void, and enjoining the Commission and Aponaug from proceeding with the development of Deer Island in accordance with said statutes and contract. No question is raised regarding the parties or the pleadings, and we shall proceed to state the case accordingly.

The legislative act in question was passed at the Extraordinary Session of 1955, Chapter 265, designated by the legislature and published as a Local and Private Law. This Act was amended by Chapter 814 of the Local and Private Laws of the Regular Session of the Legislature of 1958. When we refer to the Act, such reference shall be to the 1955 Act as amended by the 1958 Act.

Section 1 of the Act provides that the City of Biloxi, Mississippi, shall have the power by ordinance to establish, as a municipal agency of said city, the Biloxi Bridge and Park Commission, composed of three members, and provides for the appointment of the commissioners and their tenure of office.

Section 2 provides that the Commission shall have the power to sue and be sued, contract and be contracted with, and to exercise the power of eminent domain to acquire property for the accomplishment of the purposes for which such Commission was created.

Section 3 provides for the organization of the Commission and other matters not of interest to this suit.

Section 4 of the Act is as follows:

'Said Bridge and Park Commission shall have the following, smong other powers:

'(a) To acquire for park, recreation, (harbor development) and other similar purposes by the exercise of eminent domain or otherwise, and by gift, grant or purchase, for any purpose of this Act, an island or islands in whole or in part, situated in the Gulf of Mexico, or in the Mississippi Sound and lying within Harrison County, Mississippi, and within two (2) leagues of the nearest point in the corporate limits of the City of Biloxi, Mississippi;

'(b) Said Commission shall have the power to acquire by gift, grant or purchase such portion or portions of such island or islands as it may find to be needed for use in financing the public improvements herein set forth. Prior to the acquisition of any such real estate, the commission shall, by resolution spread upon its minutes, find, determine and adjudicate that the property to be so acquired is needed to aid in the financing of the improvements under this Act. Said commission shall have the power to fill in and reclaim submerged lands adjacent to any such island or islands and to develop and utilize the same for any of the purposes set forth in this Act, including the financing of the public improvements herein authorized;

'(c) To construct, build, maintain, operate, reconstruct and repair a bridge or bridges or a causeway or causeways or a tunnel or tunnels or any combination thereof connecting any island in Harrison County, Mississippi, acquired in whole or in part by the commission, with the mainland, the point of connection of any such bridge, causeway or tunnel with the mainland may be within or without the corporate limits of the City of Biloxi, Mississippi. Said commission shall further have the power to acquire by gift, grant, purchase, the exercise of eminent domain, or otherwise, land for approaches to any such bridge, causeway or tunnel, and to construct, build, maintain, operate, reconstruct and repair approaches to any such bridge, causeway or tunnel;

'(d) Said commission shall have power to establish, acquire, complete, enlarge ornament, build, rebuild and improve in, on or about any island acquired by the commission, public parks, boulevards, bridges, viaducts and approaches thereto, wharves, piers, jetties, air landing fields, basins, shore protection works, pleasure grounds and ways, walks, pathways, driveways, roadways, highways and all public works, grounds or improvements, buildings, field houses, stadium, shelters, conservatories, schools, golf courses, museums, service shops, power plants, structures, playground devices, boulevard and building lighting systems and all of the types of permanent improvement and construction necessary to render the property under the control of said commission usable for the enjoyment thereof as public parks, parkways, boulevards and pleasureways or otherwise, as provided in this Act;

'(e) Said commission shall have power to permit private persons or corporations to use any property under the control of the commission for the above purposes for the benefit of the public, and shall have power to lease property acquired by it to private persons or corporations for such purposes upon such terms and for such consideration as it may determine;

'(f) Said commission shall have power to sell or lease to private persons or corporations real estate other than the submerged lands reclaimed by it, whether improved or unimproved, whenever it shall find such real estate is or has become unnecessary for park, recreational or harbor development purposes for the benefit of the public, and to convey to the grantee the fee simple title to such real estate; said commission shall have the power to lease the submerged lands reclaimed by it for a period not exceeding ninety-nine (99) years upon such terms and provisions and for such consideration as it may determine. After any of such lands have been developed, if the commission finds by resolution spread on its minutes that it is impractical to lease the same and that it is more advantageous to the public interest to sell such lands, the commission shall have the power to sell the same in fee simple. Prior to the conveyance or lease of any such real estate, the commission shall, by resolution spread upon its minutes, find, determine and adjudicate that the property so to be conveyed or leased is or has become necessary for park, recreational or harbor development purposes for the benefit of the public;

'(g) The commission shall have power to fix and collect rates, fees, charges, and tolls for the use of any bridge, tunnel or causeway constructed and operated by it and for the use of any service or facility provided by it; and

'(h) The commission shall have power to appoint and employ such officers, agents, attorneys and employees as the commission may find to be necessary to perform the services required and authorized under this Act, and to prescribe the duties and compensation of all such persons.'

Section 5 provides for the handling of the revenues and monies received by the Commission.

Section 6 authorizes the Commission to borrow money and to issue bonds payable solely from income and revenues derived from the operation of the facilities acquired, owned and operated by the Commission, including rates, fees, and tolls charged for the use of any bridge, revenues from concessionaries and lessees, and from the sale, or lease of real estate. It further provides that any bonds so issued shall in no event become an obligation of the City of Biloxi.

The Act provides for the incorporation of said island or islands into the municipality of Biloxi as provided by statute. It provides that if any provision of the Act shall b adjudged invalid, such judgment shall not affect, impair, or invalidate the remainder of the Act. Other provisions of the Act not mentioned are not pertinent to the inquiry.

The Biloxi Bridge and Park Commission was established pursuant to the Act.

The island which is the subject of the proposed development is Deer Island, lying a short distance south of the penninsula on which the City of Biloxi is situated. Deer Island is about six miles long, running generally east and west, and contains 500 or 600 acres of land, 90 percent of which is owned by Aponaug and the remainder by private persons. A part of the island is covered by trees and a small portion is about 16 feet above sea level; the remainder is low and some parts are marshy. The waters surrounding the greater part of this island are shallow, being only a few feet deep extending out for a considerable distance.

On July 22, 1958, the Commission entered into a contract with Aponaug, the pertinent provisions of which are as follows:

Paragraph 1 provides that the Commission is authorized and empowered to acquire by grant, purchase or otherwise an island or islands situated in the Mississippi Sound and to construct a bridge or causeway connecting the island with the mainland, and to construct wharfs, piers, jetties, shore protection and other public works, and aids to navigation, and to improve said island and to fill in submerged lands adjacent thereto.

Paragraph 2 states that it is to the best interest of the people and the City of Biloxi, the County of Harrison, and the State of Mississippi, that the navigable waters between the City of Biloxi and Deer Island and the waters around and adjacent to such island be improved and developed, including the construction of various facilities.

Paragraph 3 provides that in order to obtain funds necessary for such work the Commission desires to...