Ritchie v. City of Brookhaven, 38916

Citation217 Miss. 860,65 So.2d 436
Decision Date08 June 1953
Docket NumberNo. 38916,38916
PartiesRITCHIE et al. v. CITY OF BROOKHAVEN.
CourtUnited States State Supreme Court of Mississippi

William P. Cassedy, Brookhaven, Henley, Jones & Woodliff, Hazlehurst, for appellants.

Jones & Stratton, Brookhaven, for appellee.

HOLMES, Justice.

This appeal presents the question of the validity of proceedings undertaken by the City of Brookhaven, an existing municipality, to extend its corporate limits under the authority of Chap. 491 of the Miss. Laws of 1950, and particularly in accordance with the provisions of Secs. 10 to 16, both inclusive, of said legislative act. The act in question provides a scheme for both extending and contracting the limits and boundaries of existing municipalities, but we are concerned here only with the provisions of the act applicable to the extension of such limits and boundaries.

The ordinance here under attack and by which it was provided to extend the corporate limits of the City of Brookhaven was adopted by the board of mayor and aldermen of said city on July 19, 1952. On August 6, 1952, the city, acting under the provisions of Chap. 491 of the Laws of 1950, filed a petition in the Chancery Court of Lincoln County, wherein the said city is located, exhibiting thereto a certified copy of the said ordinance and a map or plat of the municipal boundaries as they will exist as changed by the enlargement, and praying a hearing thereon and that the court enter a decree ratifying, approving, and confirming the enlargement as provided in the ordinance.

Certain residents of the territory to be annexed appeared to said petition and filed objection to the enlargement and presented a demurrer to said petition. On the hearing of the demurrer, the chancellor rendered a decree overruling the same, and granting to the objectors, appellants here, an appeal to this Court to settle the controlling principles of the cause, and it is from this decree that this appeal is prosecuted.

The appellants contend on this appeal (1) that Chap. 491 of the Laws of 1950 is unconstitutional in that it attempts to confer legislative authority upon the judiciary in violation of Secs. 1 and 2, Art. 1, of the Constitution of the State of Mississippi, and (2) that the ordinance fails to meet the requirements of Sec. 10 of said Chap. 491 in that it fails to describe the proposed improvements to be made in the annexed territory and the manner of making said improvements and the extent thereof, and (3) that the ordinance was not adopted and published in the manner required by law.

In considering the question raised as to the constitutionality of Chap. 491 of the Laws of 1950, we call attention to our statutes providing for the enlargement of municipal boundaries prior to the enactment of said Chap. 491 of the Laws of 1950, as well as call attention to the changes effected in such proceedings by said Chap. 491. Under the statutes in force prior to the enactment of said Chap. 491, it was necessary in order to enlarge the boundaries of an existing municipality that the municipal authorities pass an ordinance defining with certainty the territory proposed to be included, and also the entire boundaries as changed. It was further provided that the ordinance should not become operative until one month after the passage thereof and until the publication thereof for a prescribed time. The right of appeal to the circuit court from the order of adoption was accorded to any person interested, and on the hearing on appeal, the only issue for determination by the circuit court was whether the extension be or be not reasonable.

Chap. 491 of the Laws of 1950 changed this procedure in several particulars. Under Secs. 10 to 16, both inclusive, of said Chap. 491, it is provided that if an existing municipality desires to enlarge its boundaries, the governing authorities of such municipality shall pass an ordinance defining with certainty the territory to be included and also defining the entire boundaries as changed. It is further provided by these sections of the act that said 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 shall contain a statement of the municipal or public services which such municipality proposes to render in the annexed territory. After the passage of said ordinances, the municipal authorities are required to file a petition in the chancery court of the county in which such municipality is located, reciting the fact of the adoption of said ordinance and praying that the enlargement of the municipal boundaries be ratified, approved, and confirmed, and praying a hearing on said petition. It is further provided that if the chancellor finds from the evidence presented at such hearing that the enlargement provided for in the ordinance is reasonable and is required by the public convenience and necessity, and that reasonable public and municipal services will be rendered in the annexed territory within a reasonable time, the chancellor shall enter a decree approving, ratifying, and confirming the proposed enlargement, and it is further provided that the chancellor shall have the right and power to modify the proposed enlargement. It is further provided that the decree of the chancellor shall become effective after the passage of ten days from the date thereof, or in the event an appeal is taken therefrom, within ten days from the final determination of such appeal. The act further provides the right of appeal from the decree of the chancellor.

It is to be noted that under the procedure under former statutes, the ordinance becomes operative thirty days after its passage and after requisite publication thereof, subject to the right of appeal to the circuit court, whereas under the 1950 act, the ordinance becomes operative after the passage of ten days from the date of the decree of the chancellor ratifying and approving the same, or within ten days from the final determination of an appeal if an appeal be taken. Under either procedure, however, the power to determine the reasonableness of the ordinance is conferred upon the court. In the 1950 act, the power is conferred upon the chancellor to find from the evidence whether or not the enlargement is reasonable and is required by the public convenience and necessity. Thus it is noted that in either instance, that is to say, under the former statutes or under the 1950 act, the question of the reasonableness of the ordinance is an issue to be determined by the court. It is argued by the appellants that these provisions of the act of 1950 confer legislative power upon the judiciary in contravention of our State Constitution.

We need not review the many authorities cited by counsel on both sides in their very excellent briefs, dealing with the subject matter of legislative or judicial functions. This court, in its prior decisions, has definitely decided that the question of the reasonableness of municipal ordinances is a judicial question and that the determination of the reasonableness of such ordinances is the exercise of a judicial function. Bradley v. City of Jackson, 153 Miss. 136, 119 So. 811; Jones v. City of Hattiesburg, 207 Miss. 491, 42 So.2d 717. It is argued, however, that since the 1950 act provides that the chancellor shall find from the evidence whether or not the proposed enlargement is reasonable and is required by the public convenience and necessity, such provisions of the act confer upon the chancellor legislative functions. It is particularly stressed by the appellants that the determination of the question of public convenience and necessity is a legislative and not a judicial function. Without determining whether or not the public convenience and necessity is to be considered by the chancellor as an element in the determination of the reasonableness of the ordinance, we think that this provision of the act relative to the...

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30 cases
  • Extension of Boundaries of City of Jackson, Matter of, 58267
    • United States
    • United States State Supreme Court of Mississippi
    • May 31, 1989
    ...the annexation is reasonable. City of Jackson v. Town of Flowood, 331 So.2d 909, 911 (Miss.1976); Ritchie v. City of Brookhaven, 217 Miss. 860, 870-73, 878, 65 So.2d 436, 439-40, 833 (1953). That question is presented first to the Chancery Court, Miss.Code Ann. Sec. 21-1-33 (1972), and invo......
  • In re Extension of Boundaries of City of Winona
    • United States
    • United States State Supreme Court of Mississippi
    • June 24, 2004
    ...the discretion, based on convenience and necessity, to choose between various paths of growth by annexation." Ritchie v. City of Brookhaven, 217 Miss. 860, 65 So.2d 436, 439 (1953). The law is clear that the annexation area must be in "a" path of growth not "the" path or "only" path of City......
  • Enlargement of Corporate Limits of City of Hattiesburg, Matter of
    • United States
    • United States State Supreme Court of Mississippi
    • May 29, 1991
    ...(1990 Recompiled). See also, In re Boundaries of City of Vicksburg, 560 So.2d 713, 715 (Miss.1990); Ritchie v. City of Brookhaven, 217 Miss. 860, 872, 65 So.2d 436, 440 (1953). Over the years the judicial eye has seen eleven indicia of reasonableness, plus a catch-all "any other," and the m......
  • IN RE EXTENSION OF BOUND. OF BATESVILLE
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 2000
    ...annexation was reasonable.2 See City of Jackson v. Town of Flowood, 331 So.2d 909, 911 (Miss.1976); Ritchie v. City of Brookhaven, 217 Miss. 860, 870-873, 878, 65 So.2d 436, 439-40 (1953). The annexation trial lasted over four days, often going late into the evening, involved hundreds of ex......
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