White v. Town of Drew

58 So. 2d 372, 214 Miss. 147, 1952 Miss. LEXIS 454
CourtMississippi Supreme Court
DecidedApril 28, 1952
DocketNo. 38381
StatusPublished
Cited by5 cases

This text of 58 So. 2d 372 (White v. Town of Drew) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Town of Drew, 58 So. 2d 372, 214 Miss. 147, 1952 Miss. LEXIS 454 (Mich. 1952).

Opinion

Ethridge, J.

This case involves the reasonableness of the extension of the municipal limits of the Town of Drew, Mississippi. It was originally chartered as a village in September, 1899. In June, 1910, the village of Drew became the Town of Drew with its boundaries continuing the same up to the proposed extension.

Miss. Laws 1950, Chap. 491, Secs. 10-14, being Miss. Code 1942, Supp., Secs. 3374-10 through 3374-14 provide that the governing authorities of a municipality must pass an ordinance describing with certainty the new territory and the entire boundary of the city as changed. Sec. 10 states: ‘ ‘ In the event the municipality desires to enlarge such boundaries, such ordinance shall in general terms describe the proposed improvements to he made in the annexed territory and the manner and extent of such improvements and the approximate time within which such improvements are to he made, and such ordinance shall [150]*150also contain a statement of the municipal or public services which such municipality proposes to render in such annexed territory. ’ ’

Upon the passage of such ordinance, the City must file a petition in the chancery court asking for confirmation of the extension by the court. Notice must be given and objections can be made. Sec. 13 then provides: “If the chancellor finds from the evidence presented at such hearing that the proposed enlargement or contraction is reasonable and is required by the public convenience and necessity and, in the event of an enlargement of a municipality, 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 or contraction, and describing the boundaries of the municipality as altered. * *

The ordinance in question was passed by the Board of Mayor and Aldermen of the Town of- Drew at a regular meeting on October 3, 1950. The original town as it existed prior to- the passage of this ordinance consisted of approximately 380.5 acres. The new territory proposed to be annexed to the Town is approximately 187.5 acres, constituting somewhat less than a fifty percent increase in size. Oh October 16 the Town filed a petition with the Chancery Court of Sunflower County under the above statute requesting the confirmation by the court of the proposed extension. Notice was given of a hearing on such petition, and appellants, consisting of several property owners and business men in the new territory, filed objections to the extension, denying that it was reasonable and that it was required for the public convenience and necessity. A lengthy hearing was had on these issues, the Town offering five and the appellants nine witnesses. The chancery court did not render any detailed findings of fact, but in its final decree adjudicated “that the said ordinance enlarging the boundaries of the Town of Drew is reasonable, and is required by public convenience and [151]*151necessity, and that reasonable and public municipal services will be rendered in the annexed territory within a reasonable time, and that said proposed enlargement should be ratified, approved and confirmed.” Hence the final decree of February 14,1951, approved the extension.

In considering the issues raised on this appeal, it should be kept in mind that the board of mayor and aldermen, by the passage of the extension ordinance, adjudicated that the extension was reasonable; that “the burden was upon the objectors to overturn this and show such extension to be unreasonable”; and that the chancellor found that they had not done that. Ball v. City of Louisville, Miss. 1952, 56 So. (2d) 4; Kennedy v. City of Kosciusko, 1948, 203 Miss. 4, 33 So. (2d) 285; Forbes v. City of Meridian, 1906, 86 Miss. 243, 38 So. 676. Hence appellants are in error when they say that the burden of proof was upon the Town.

I.

It is argued that there was insufficient evidence to support the finding that the improvements can be made in the new territory within a reasonable time. The requirement of Code Sec. 3374-13 is that the chancery court must find that “reasonable public and municipal services will be rendered in the annexed territory within a reasonable time”. In this connection appellants say that appellee has made no approximately accurate estimate of the cost of the services which it proposes to render to the citizens in the annexed territory; that until such an estimate is made, the court can not properly determine that the proposed improvements will be completed within a reasonable time; and that further, the record shows that appellee has never made any investigation and has no idea as to when it can procure materials for making the improvements and has no knowledge as to how it would obtain such materials.

The statute does not require a municipality prior to executing its ordinance of extension to ascertain the [152]*152precise cost of improvements and the sources from which the Town will obtain water and sewage pipes and other materials. The reason for such an omission is manifest when it is remembered that litigation over municipal extensions often consumes more than a year’s time, that the market, availability and price of such materials vary from week to week, and that as a practical matter the governing authorities of a municipality must have considerable discretion in obtaining such materials and determining the details of new projects. The statutes require the ordinance to set up ‘ ‘ the approximate time within which such improvements are to be made, ” and the chancery court to find that the improvements will be made “within a reasonable time”. The use of the phrases “approximate time ’ ’ and £ £ reasonable time ’ ’ indicate a legislative intent to vest a broad ar'ea of discretion in the governing body. However, the availability of materials, their cost, and the financial ability of the Town to meet that cost are relevant on whether the services can be rendered within a reasonable time.

The ordinance adjudicated that the town would grade and drain streets, install water and sewer lines and street lighting within a reasonable time not to exceed two years from the effective date of the extension £ £ unless delayed by war or military preparedness restrictions”. The ordinance further adjudicated that the Town would furnish to the new territory immediately upon the effective date of the ordinance police and fire protection and garbage disposal. With reference 'to the financial ability of appellee, the record shows that appellee has an assessed valuation of about $2,000,000 with a present general full faith and credit bonded indebtedness of about $6,000. This figure does not include revenue, special improvement, and industrial bonds. Total funds on hand in the Town’s depository at the time of the trial were in excess of $114,675.40. Appellants make no real issue of the financial ability of appellee to make the improvements. Mayor O'. M. Marsalis testified that an engi[153]*153neer had advised with the mayor and board and had made a preliminary investigation of the improvements but that he had no definite figures on the cost of extending water, sewage and street services to the new territory, except that he estimated that it would cost about $2,000 for the Town to extend certain water lines and fire protection facilities north of the Town. The chancellor was amply warranted in finding that the Town’s financial situation would permit the extension of municipal services to the new area.

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Cite This Page — Counsel Stack

Bluebook (online)
58 So. 2d 372, 214 Miss. 147, 1952 Miss. LEXIS 454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-town-of-drew-miss-1952.