Rouse v. City of Pascagoula, 45564

• Decision Date: 12 January 1970
• Docket Number: No. 45564,45564
• Citation: 230 So.2d 543
• Parties: Vernon O. ROUSE and Citizens of Gautier, Petitioners-Appellants, v. CITY OF PASCAGOULA and E. C. Harris, et al., Respondents-Appellees.
• Court: Mississippi Supreme Court

Page 543

230 So.2d 543

Vernon O. ROUSE and Citizens of Gautier, Petitioners-Appellants, v. CITY OF PASCAGOULA and E. C. Harris, et al., Respondents-Appellees.

No. 45564.

Supreme Court of Mississippi.

Jan. 12, 1970.

John D. Gautier, Pascagoula, for appellants.

Edmund A. Wilson, Pascagoula, for appellees.

PATTERSON, Justice.

This is an appeal by Vernon O. Rouse and other citizens of the community of Gautier requesting this Court to reverse the decision of the Chancery Court of Jackson County and order that the appellants' petition for incorporation of the Gautier area be held valid and that a charter of incorporation be directed to issue in accord therewith.

In support of their request for a reversal the appellants contend the trial court erred in denying their petition for incorporation in that the chancellor exercised more than a mere legal discretion in rejecting the petition and such discretion was not conferred upon the chancellor by Mississippi Code 1942 Annotated section 3374-01 et seq. (1956). It is further assigned as error that the opinion of the trial court was contrary to the overwhelming weight of the evidence.

The record reflects that the petitioners below, appellants here, prepared their petition and filed the same in accord with the requirements listed in Mississippi Code 1942 Annotated section 3374-03 (1956). The requisites of the section are:

(1) It shall describe accurately the metes and bounds of the territory proposed to be incorporated and there shall be attached to such petition a map or plat of the boundaries of the proposed municipality.

(2) It shall set forth the corporate name which is desired.

(3) It shall be signed by at least two-thirds of the qualified electors residing in the territory proposed to be incorporated.

(4) It shall set forth the number of inhabitants of such territory.

(5) It shall set forth the assessed valuation of the real property in such territory according to the latest available assessments thereof.

(6) It shall state the aims of the petitioners in seeking said incorporation, and shall set forth the municipal and public services which said municipal corporation proposes to render and the reasons why the public convenience and necessity would be served by the creation of such municipal corporation.

(7) It shall contain a statement of the names of the persons the petitioners desire appointed as officers of the municipality.

(8) It shall be sworn to by one or more of the petitioners.

The petition concluded with a prayer for incorporation as well as for notice to issue to the City of Pascagoula and the City of Moss Point, these municipalities being within three miles of the proposed municipal incorporation, as well as to all interested persons. The City of Moss Point did not respond to the petition. However, the City of Pascagoula, as well as E. C. Harris of the unincorporated territory and others in a capacity similar to his, filed answers contesting the incorporation. The gist of their answers was a denial that two-thirds of the qualified electors residing in the area signed the petition for incorporation. They also denied that the assessed valuation of the real property within the area was in excess of $1,350,000 as alleged. The main thrust of the answers, however, is that the respondents denied the reasonableness of the petitioners' abilities to perform the salutary proposals alleged in the petition which are required by Mississippi Code 1942 Annotated section 3374-03(6) (1956), including the health and sanitation proposals and police protection. The respondents denied that incorporation would encourage the location of new industry and other businesses in the area and also denied that it is practicable or reasonable for the petitioners to open and maintain streets and alleyways, to install drainage systems, or to build and maintain municipal water and sewerage systems or other public utilities. They averred that the cost of providing these services or any of them would be prohibitive for the proposed area of incorporation as it is thinly populated and its expanse prohibits the supplying of public utilities as mentioned since it would not be economically sound.

They also averred by the answer that Jackson County is presently developing a workable program in coordination with other levels of government. The prime function of this program is to arrange long-range plans for the orderly development of the non-city areas of the county, including the proposed area. Specific steps, it was asserted, implementing this program have already been taken as follows:

(a) Adoption of a zoning ordinance.

(b) Establishment of a County Planning Commission.

(c) Drainage of low lands.

(d) Mosquito Control.

(e) Road planning and development.

(f) Establishment of water and severage utility districts.

(g) Regular garbage pick-up.

(h) Adoption of Southern Codes for-Electrical, Plumbing, Heating, Fire.

County programs which are already in the planning stage for non-city areas of Jackson County, Mississippi, including the proposed area, include the following:

(a) Subdivision regulations.

(b) Major thoroughfare and road plans.

(c) Completion of comprehensive drainage program.

(d) Bridge replacement and renewal program.

(e) Updating of Zoning Ordinance and adoption of a zoning map.

(f) Highway and road traffic study.

The respondents also denied that the incorporation of the proposed area will serve the public convenience or necessity and that the petition should therefore be rejected.

The area sought to incorporated is described in general terms as being just west of the West Pascagoula River, its northern boundary being Mary Walker Bayou, its southern boundary the Mississippi Sound and a portion of Graveline Bayou, its western boundary being the east line of Claim Section Sixteen and Claim Section Three and by the Gautier-Van Cleave Road north of Old Highway 90, the area containing approximately 4,000 acres.

The evidence adduced in support of the petition was primarily that of H. C. Malchow, a consulting engineer who had made a study of the area and who testified with respect to the proposed municipal government from the adoption of the budget to the bond requirements for the establishment of the water and sewer systems. It was his opinion that the proposals of the petition were reasonable and that they could be funded. Much of his testimony was based upon his thought that the municipality would receive revenue from the state sales tax once it was incorporated and that this said when coupled with a bond issue, which he thought reasonable, would enable the municipality to begin its functions as a city in a modest way and to expand these functions as the future economic situation would warrant.

There was also the testimony of the county health officer with regard to the public need for a sewerage disposal system since most of the septic tanks in the area do not function properly and are no longer approved by the health department or by the Federal Housing Authority. The testimony of other witnesses for the petitioners was generally directed to the desirability of incorporation and the public need therefor in view of the lamentable condition of the streets and bridges in the community. The need for a fire department was also expressed.

The testimony of the defendants is largely to the contrary. It reflects that the area is more heavily populated in its southern portion adjacent to the Mississippi Sound and in the northern and eastern portions adjacent to Mary Walker Bayou, with large areas of sparse population in between, and that it is bisected by the L & N Railroad. The difficulty resulting therefrom, in the opinion of these witnesses, is that it would be extremely expensive to establish and maintain water and sewerage systems between the several densely populated areas within the 4,000-acre tract. There is also evidence that part of the services proposed by the petitioners is now being furnished by the county, particularly the maintenance of the roads and garbage pickups. The City of Pascagoula introduced evidence to the effect that the existence of several independent municipalities within a small area acts as a deterrent to the attraction of industry.

From this conflicting evidence the chancellor found that the petition was signed by the requisite number of qualified electors of the area and that the petitioners had met the statutory requirements by describing the area to be incorporated and setting forth the services proposed to be rendered, as well as the other statutory requirements. It was his opinion, however, that the evidence failed to show the proposed incorporation to be reasonable and required by public convenience and necessity. The petition was therefore denied.

The appellants state with reference to their first assignment of error that it is not the intention of the appellants to attack the constitutionality of Mississippi Code 1942 Annotated Section 3374-05 (1956), but rather to point out that in conferring upon the chancellor the duty of validating petitions for incorporation, the legislature intended to limit the authority of the chancellor to a mere legal discretion of discerning whether the requirements set forth by the statute as conditions precedent to incorporation had been complied with. They argue that to delegate to the judiciary a greater discretion would be a violation of the edict requiring the separation of the powers of government, Mississippi Constitution...