Myrick v. Incorporation of a Designated Area Into a Municipal Corp. to Be Named Stringer
| Decision Date | 10 August 1976 |
| Docket Number | No. 48802,48802 |
| Citation | 336 So.2d 209 |
| Parties | Doyle V. MYRICK v. INCORPORATION OF A DESIGNATED AREA INTO A MUNICIPAL CORPORATION TO BE NAMED STRINGER. |
| Court | Mississippi Supreme Court |
Tom Roberts, Bay Springs, for appellant.
Oates & Houston, Bay Springs, for appellee.
Before INZER, P.J., and SUGG and LEE, JJ.
This is an appeal by Doyle V. Myrick from a decree of the Chancery Court of Jasper County granting a petition to incorporate the community of Stringer. It involves the question of whether the requirements relative to notice as provided in Section 21-1-15, Mississippi Code 1972 Annotated, are mandatory and jurisdictional. Holding that such provisions are mandatory and jurisdictional and the failure to comply with the requirements of said section can be raised for the first time in this Court, we reverse and dismiss the petition for incorporation.
The privilege of incorporation of a municipality can be granted only by the legislature and the procedure must be strictly complied with which grants to the chancery court the duty to determine whether public convenience and necessity will be served by the proposed incorporation. City of Jackson v. Boling, 241 So.2d 359 (Miss.1970); Bridges v. City of Biloxi, 250 Miss. 717, 168 So.2d 40 (1964).
On December 16, 1974, the proponents of the incorporation of Stringer filed four identical petitions signed by a total of 190 persons describing the area to be incorporated, alleging that 404 inhabitants resided in this territory and the assessed valuation of the real estate in the area was $107,587. Petitioners also averred that their aim in seeking incorporation was the betterment of public service to be rendered to the inhabitants of the territory, particularly by providing fire and policy protection which was at the present time not adequate. The petition as filed met the requirements of Section 21-1-13, Mississippi Code 1972 Annotated, and the chancellor set the cause for hearing on January 28, 1975. Prior to the date of the hearing a number of the inhabitants of the area sought to be incorporated filed objections, and among other things questioned the jurisdiction of the court alleging that the petition was not signed by two-thirds of the qualified electors residing in the territory proposed to be incorporated.
The burden of proof was upon the petitioners to show that they had met the statutory requirements to give the court jurisdiction to hear their petition. Section 21-1-15, Mississippi Code 1972 Annotated, provides in part as follows:
The said notice shall be given by publication thereof in some newspaper published or having a general circulation in the territory proposed to be incorporated once each week for three consecutive weeks, and by posting a copy of such notice in three or more public places in such territory. The first publication of such notice and the posted notice shall be made at least thirty days prior to the day fixed for the hearing of said petition, and such notice shall contain a full description of the territory proposed to be incorporated. . . .
The notice required by this statute is in lieu of personal service and it is well settled that a statute providing for notice in lieu of personal service must be strictly complied with and where the statute requires the posting of notices, the notices must be so posted and the record must show that they were posted as required by the statute. Langstaff v. Town of Durant,122 Miss. 471, 84 So. 459 (1920).
The record in this case shows that the notice was published as required in a newspaper, but does not show that copies of the notice were posted as required by statute. Section 13-1-145, Mississippi Code 1972 Annotated, provides as follows:
The posting of any notice required by law or the order of any court may be proved by filing a copy of the notice, with an affidavit of posting, in the court in which the proceeding was had in which the notice was required. Such affidavit shall be competent evidence in all courts, and shall be prima facie evidence of what it states.
No affidavit was filed as provided for in this section and no...
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In re Enlarging, Extending & Defining the Corporate Limits & Boundaries of Canton Madison Cnty.
...592 (Miss. 1973) ). The requirements of Mississippi Code Section 21-1-13 "must be strictly complied with." Myrick v Incorporation of Stringer , 336 So. 2d 209, 210 (Miss. 1976) (citing City of Jackson v. Boling , 241 So. 2d 359 (Miss. 1970) ).Whether the Gluckstadt Incorporators’ petition c......
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City of Saltillo v. City of Tupelo
...¶ 7. The notice required by Section 21–1–15 is in lieu of personal service and must be strictly complied with. Myrick v. Stringer, 336 So.2d 209, 210 (1976). “[F]ailure to give proper notice in annexation cases renders a chancery court without jurisdiction to hear the case....” In re Enlarg......
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City of Jackson v. Byram Incorporators
...can withdraw from a petition at any time prior to the determination of the hearing." Myrick v. Incorporation of a Designated Area into Municipal Corp. to be Named Stringer, 336 So.2d 209, 211 (Miss.1976). Because each petitioner had the right to withdraw from the petition and Jackson never ......
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In re City of Clinton
...and may be raised for the first time on appeal. Norwood v. City of Itta Bena, 788 So.2d 747, 751 (Miss.2001) (citing Myrick v. Stringer, 336 So.2d 209, 210-11 (Miss.1976)). ¶ 9. Turning to the Hales' contention that inadequate notice was provided, we note that Miss.Code Ann. Section 21-1-31......