Marshall v. Mayor and Board of Selectmen of McComb City, 43276

• Decision Date: 01 February 1965
• Docket Number: No. 43276,43276
• Citation: 251 Miss. 750,171 So.2d 347
• Parties: Thomas J. MARSHALL et al. v. MAYOR AND BOARD OF SELECTMEN OF the City of McCOMB CITY, Mississippi.
• Court: Mississippi Supreme Court

Page 347

171 So.2d 347

251 Miss. 750

Thomas J. MARSHALL et al. v. MAYOR AND BOARD OF SELECTMEN OF the City of McCOMB CITY, Mississippi.

No. 43276.

Supreme Court of Mississippi.

Feb. 1, 1965.

Jack H. Young, Carsie A. Hall, Jackson, Robert L. Carter, Maria L. Marcus, Barbara A. Morris, New York City, for appellants.

William A. Wiltshire, Louis Alford, McComb, for appellee.

ETHRIDGE, Justice:

The Mayor and Board of Selectmen of the City of McComb City, Mississippi adopted an ordinance to contract the corporate boundaries, by excluding and detaching certain parts of territory incorporated in 1961. As required by statute, they filed a petition with the Chancery Court of Pike County for approval of such contraction. Thomas J. Marshall and others, appellants, filed objections, and after a hearing the trial court entered a decree finding that the proposed detachment was reasonable, and was required by the public convenience and necessity. The pertinent statutes make these the criteria for an enlargement or contraction of city limits. Miss.Code Ann. Secs. 3374-10 to 3374-13 (1956). The questions here are (1) whether this finding is supported by the evidence, and (2) whether the contraction was based on racial discrimination and thus is violative of the fourteenth and fifteenth amendments to the United States Constitution. We answer (1) in the affirmative, and (2) in the negative, and affirm the decree.

Essentially, extension or contraction of municipal boundaries is a legislative action, reviewable by the courts under certain tests but delegated by the legislature to the municipal governing authorities. In contrast with the general requirements of the Mississippi act, many other states, in providing for detachment of a territory from a municipality, prescribe certain facts or conditions which must exist in order to authorize detachment. 2 McQuillin, Municipal Corporations Sec. 7.27 (1949); 62 C.J.S. Municipal Corporations Sec. 48b (1949).

I.

The City of McComb City, situated in Pike County, has a population according to the 1960 census of 12,000. In April 1961, it expanded its municipal boundaries by adding 1150 acres on its south and southwest sides. The ordinance, passed in September 1960, stated that the city proposed to furnish water and sewage facilities within the added territory, when required by its occupants, and fire and police protection, garbage collection, school facilities, and other municipal facilities 'now being furnished to occupants of property within the corporate limits.' This expansion was approved in April 1961.

In August 1963 the city by ordinance contracted the municipal bondaries by detaching a portion of the new territory, added in 1961, removing from it approximately 350 acres on the extreme south side of the added territory, sough of Highways 24 and 98. The ordinance stated:

'The City of McComb City proposes to contract the City limits as herein proposed because it has become evident that the facilities offered the residents of this excluded area cannot be furnished within a reasonable time as was indicated when this area was incorporated within the City, April 29, 1961. That if the said City attempted to provide water and sewer facilities in addition to fire, police protection, garbage collection, and other municipal facilities, all of the citizens of the City would be unduly burdened, and that public convenience and necessity is required and would be served by the contraction of the City limits as proposed herein.'

After the city filed its petition for approval of the contraction, appellants, Thomas J. Marshall and forty-five others, objected. They denied that McComb could not furnish within a reasonable time the facilities described in the 1961 ordinance, and that public convenience and necessity would be served by the contraction. They made these claims: They had a vested interest in the city, because they had been paying taxes since the incorporation. The proposed contraction was discriminatory, since 'most of the residents' proposed to be detached were Negroes, and most of the others who were incorporated but remained in the city are white. It discriminated against appellants, who are Negroes, because of their race, contrary to the equal protection and due process clauses of the fourteenth amendment, United States Constitution. Some of the objectors at great expense had made improvements to their properties in anticipation of eventually receiving all city services. Police protection and zoning regulations would be withdrawn from them, they would be without sewage and sanitation facilities, and would be deprived of effective participation in municipal affairs of the city, in violation of the fifteenth amendment.

The chancery court found that it would take a bond issue of $454,000 to bring city facilities, such as water and sewerage into this area. The city received only $3400 a year in taxes out of this 350-acre area. The ordinance was reasonable and required by the public convenience and necessity. The governing authorities of a city have the duty to consider the welfare of all of its citizens, and the evidence showed that it 'cannot extend water and sewage to the area in question without jeopardizing the duty and obligations the city owes to other areas of the city which have been a part of the city for many years.'

The trial court said that, although an attempt had been made to inject the race issue, 'the proof shows there is no foundation for that attempt. My decision would be the same regardless of who the objectors may have been.' The objections filed by appellants 'were not supported by the evidence and should be overruled.' The detached area will not suffer any unreasonable or substantial loss, will be provided adequate police and fire protection by the sheriff's office, and the school children will not be affected. The detached area is not needed for expansion, and is not in the path of expansion. The city does not have the financial resources for expenditures of $454,000 and will not have them in the foreseeable future. Providing the facilities in the excluded area would be more expensive than in other parts of the city containing a like amount of area. They cannot be provided in the foreseeable future without unduly burdening all of the inhabitants of the municipality. Hence the decree approved the ordinance.

The virtually uncontradicted evidence offered by appellee supports the finding of the trial court that the detachment of the 350-acre tract was reasonable and was required by the public convenience and necessity. The objectors failed to offer any tangible evidence that the city was either motivated by racial considerations or that it in fact acted for reasons of race. The evidence not only fails to support but contradicts this argument made by appellants.

Gordon Burt, Jr. had been mayor of McComb since January 1963. Before enactment of the ordinance, he and the board of selectmen studied the matter for six months. The city engineer, J. E. Carruth, was directed to make cost estimates for extending full city facilities to the detached area. After this study, the mayor and board concluded that the financial condition of the city and the projected cost prevented extension of city facilities to this area within the foreseeable future. The north boundary follows the natural physical boundaries of the streets as lines of demarcation. the detached area is not needed for growth of the city. Other areas are available and needed for growth. The city has been expanding in a westerly direction, not south, and it is ample for future expansion.

Of the 350 acres, the city owns 50 acres, containing a sewage lagoon. The McComb Separate School District has 20 acres upon which a school was located before the 1961 annexation, and to which the district built a water line before 1961. In the west portion and the extreme south edge, there is additional open land, aggregating 70 to 80 acres. They city can extend full services to those remaining in the city after detachment without substantial cost. The detachment will not interfere with school children participating in schools of the separate school district. No changes would be made, except that when children are outside of the city limits they are entitled to bus transportation to school, if over one mile away. The mayor said that the only question considered was the economic feasibility of extending municipal services to the detached area. The city would continue to furnish fire protection to it. Before annexation, law enforcement by the sheriff was adequate.

The city does not have financial resources, the mayor said, to spend on the detached area. It is under an obligation to make improvements where there is a definite expansion. Provision of water and sewerage would be difficult and expensive, because construction of long pipelines to serve a few people would be uneconomical, and the elevation of the land would render sewage pipes disproportionately expensive. In the preceding year the detached area produced only $3400 in taxes. It contains persons of both races. The annexed part remaining in the city contains 119 Negro property owners and 103 white property owners. The area known as Algiers, to be retained, is predominantly Negro. Part of the detached land is predominantly white. The mayor and board concluded that within a reasonable time the city could not supply the tract with facilities. The detachment does not withdraw any sewer or water services, because they are not now being rendered. It will not affect any zoning ordinance, since it has not been enforced in this area. The millage rate of the city was reduced from 47 to 37 mills, because the electorate voted to impose a sales tax of 1/2%, which replaced the reduction in ad valorem millage.

In the middle 1950's, the city issued bonds of $850.000. As of September 1963, $723,000 were outstanding. Annual retirement payments on them increase every year by...