Lepre v. D'Iberville Water and Sewer Dist.
| Citation | 376 So.2d 191 |
| Decision Date | 26 September 1979 |
| Docket Number | No. 51451,51451 |
| Parties | Lyndell LEPRE v. D'IBERVILLE WATER AND SEWER DISTRICT. |
| Court | United States State Supreme Court of Mississippi |
Thomas J. Wiltz, Biloxi, for appellant.
Boyce Holleman, Ben F. Galloway, III, Gulfport, for appellee.
Before ROBERTSON, BROOM and COFER, JJ.
Appellant, Lyndell Lepre, has appealed from an Order of the Chancery Court of the Second Judicial District of Harrison County, mandatorily enjoining him to connect with water lines of appellee, D'Iberville Water and Sewer District, and also ordering him to pay back service charges totaling $181.23 (which accrued at the rate of $7.50 per month).
Chancellor Mike Carr, of the Fifteenth Chancery Court District, sat as a special chancellor to hear this case. He rendered the following excellent opinion, which is adopted as the opinion of this Court in this case:
From the evidence before the Court, it appears that in order to fulfill its need for both water and sewer facilities, the community of D'Iberville created a water and sewer district in November of 1969. The establishment of such a water and sewer district was undertaken pursuant to the statutory procedure provided for in Chapter 50, enacted by an Extraordinary Session of the Mississippi Legislature in 1964. The following steps are reflected in the Minutes of the D'Iberville Water and Sewer District: in July, 1969, a petition was submitted to the Harrison County Board of Supervisors outlining the proposed boundaries and estimated cost of the District; at the same time, resolutions were passed calling for a public meeting, setting the time of the meeting and preparing a notice of said meeting for the general public; in October, 1969, following the public meeting, a resolution was passed stating that public convenience and necessity required such a water and sewer system, but such a system would not be created if 20% Of the qualified voters of the proposed district filed a petition against the creation of such a district; public notice was given as to the above resolution, so that the public could discuss the resolution and consider the necessity for the creation of such a District. Sufficient statutory notice was given to all residents that such a District was being promulgated, and ample time for protest was allowed. Those persons who had their own wells had sufficient remedies to attempt to enjoin the proceedings, if they were so inclined, and they had ample opportunity to voice their opinions and objections by exercising the strongest power they had their own vote. They raised no legal objections. No petition was filed protesting the creation of the District and as shown in the official Minutes of the Board of Supervisors in November, 1969, the D'Iberville Water and Sewer District was formally created, and a Board of Commissioners was duly appointed. It appears to this Court that the Board of Supervisors followed an orderly path of organization for this District, and that all of the prerequisites for its design and intention as set forth in the Legislative enactment were strictly adhered to.
After being duly organized, the District undertook to provide a means for financing its operation, and in so doing took the following steps: a resolution was proposed for the issuance of $1,720,000.00 in revenue bonds, such bonds to be retired solely from the service charge by the D'Iberville Water and Sewer District. Notice of the issuance of these bonds was published, so that all qualified electors could have the opportunity of voting for or against same in an election to ascertain whether or not a majority of the voters approved the issuance of the bonds. The result of the election was 304 qualified voters for the issuance of the bonds and 241 qualified electors against. A majority of the qualified electors having voted for the bond issue, the Board of Supervisors entered an order on its minutes declaring the results of the election in favor of issuing bonds to finance the D'Iberville Water and Sewer District.
Complainant determined that it was necessary to provide first a functional water system, and that sewerage could then adequately be provided at a later date. A resolution issuing water bonds in the amount of $1,575,000.00 was passed, without protest. Subsequently, Section 5, Chapter 50, was amended and appears as Section 1, Chapter 890, Local and Private Laws of 1973. This section was again amended in 1977 and appears as Chapter 962, Local and Private Laws of 1977. As shown by its Minutes, in October, 1974, the D'Iberville Water and Sewer District discussed the conditions for financing set forth in the letter it received from the Farmers Home Administration, and a resolution was adopted, which included the terms and conditions set forth in said letter, and one of those conditions was that there would be a minimum of 1,050 water users, and that all residences and businesses situated in the water system would connect to the system. Evidently, complainant had sensed the necessity for having all persons connect on to the system earlier, because on September 20, 1973, it passed a resolution making mandatory the connection of all water and sewer outlets located within the District, when the system was ready for connections. In January, 1976, the Board of Commissioners of said District passed an ordinance making it mandatory that all residences and businesses within the District connect onto the system. Said Board of Commissioners further determined that all persons would be liable for the minimum rate charge of $7.50 per month, whether they were connected up or not. This action is reflected in the Board's official Minutes. Notice was sent to the Defendant that he would be charged the $7.50 per month minimum rate, whether he connected up or not. The Defendant failed, refused and neglected to connect up and at the time of the filing of this suit, Complainant alleges that the Defendant owed an aggregate amount of $181.23 to the Complainant.
The questions for determination by this Court are whether or not it can by mandatory injunction compel the Defendant to connect up to the water system, and whether or not the Defendant is liable for the $181.23 aggregate monthly service charges, even though he has never connected onto or used the water system.
Whether or not an ordinance (January, 1976) or resolution (September 20, 1973), mandatorily requiring all residences and businesses to connect with the system can be enforced against a Defendant does not appear to have been decided by the Supreme Court of Mississippi.
It appears to me that the overriding consideration here is whether or not the police power of a state and/or its duly legislated creatures and creations allows this type of water...
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