In the Matter of the Enlargement of the Corporate Limits and Boundaries of the City of Gulfport, Mississippi.
HARRISON COUNTY
v.
CITY OF GULFPORT, Mississippi.
In the Matter of the Extension of the Boundaries of the City of Biloxi, Mississippi.
HARRISON COUNTY, Mississippi; Harrison County School District
v.
CITY OF BILOXI, Mississippi; City of D'Iberville; David Sanders Stockholders; Woolmarket Citizens; City of Gulfport Committee for Improvements of Orange Grove; North Gulfport Civic Club, Mississippi Power Company; Harrison County Development Commission; Mississippi Association of Educators.
Supreme Court of Mississippi.
*781 Boyce Holleman, Tim C. Holleman, Albert L. Necaise, Gulfport, Jerry R. Wallace, Montgomery Smith-Vaniz & McGraw, Canton, Larry L. Lenoir, Mize, Ingram, Matthews, Stroud & Lenoir, Gulfport, Charles Victor McTeer, McTeer & Bailey, Greenville, for appellant.
Hugh D. Keating, Dukes Dukes Keating & Faneca, Gulfport, Jerry L. Mills, Pyle Dreher Mills & Woods, Jackson, James K. Wetzel, Gulfport, Charles K. Pringle, Biloxi, for appellee.
En Banc.
ROBERTSON, Justice, for the Court:
I.
The cities of Gulfport and Biloxi have separately brought proceedings for judicial confirmation of annexation ordinances, and our questions are whether Harrison County, acting through its board of supervisors, and as well, the Harrison County Board of Education, can appear in opposition. In each case the Chancery Court dismissed Harrison County as a party, and in the Biloxi annexation case the Court dismissed the Harrison County Board of Education as a party. We granted this interlocutory appeal to settle the important questions of whether a county as a body politic, and, as well, a county school board, (a) have standing to appear and object to these cities' annexations and (b) if so, whether they have legal power to exercise that standing.
II.
A.
On December 15, 1987, the City of Biloxi, Mississippi, filed in the Chancery Court for the Second Judicial District of Harrison County its Petition for Ratification, Approval and Confirmation of Ordinance No. 1509, Adopted by the City of Biloxi, Mississippi, on the day of November 20, 1987, extending and enlarging the corporate limits and boundaries of the City of Biloxi, Mississippi (hereinafter referred to as the "Biloxi Annexation"). Biloxi seeks to expand the land area within its corporate boundaries from its present 24.8 square miles to an area of 37.2 square miles, for an expansion of 12.4 square miles.
The City of Biloxi, Mississippi, lies in the Second Judicial District of Harrison County, Mississippi, and the entire area proposed for expansion is situated in Harrison County, Mississippi.
B.
On February 1, 1988, the City of Gulfport, Mississippi, filed in the Chancery Court for the First Judicial District of Harrison County its Petition for Ratification, Approval and Confirmation of Ordinance No. 1792, Adopted by the City of Gulfport, Mississippi, on the 19th day of January, 1988, enlarging the Corporate Limits and Boundaries of the City of Gulfport, Mississippi (hereinafter referred to as the "Gulfport Annexation").
By virtue of the ordinance, the City of Gulfport seeks to enlarge its corporate limits from its present area of 29.36 square miles to a total area of 83.01 square miles, for an expansion of 53.65 square miles. Gulfport lies in the First Judicial District of Harrison County, Mississippi, and the entire area proposed for annexation is situated in Harrison County, Mississippi.
*782 III.
The legal issues aside, the briefs and argument of counsel make clear that what is at stake is whether a county may finance the opposition to a municipal annexation. Harrison County notes language from our decision in Belhaven Improvement Association, Inc. v. City of Jackson,
A.
We begin with our general rules on standing to sue.[1] Parties may sue or intervene where they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, see Dye v. State ex rel. Hale,
Standing is like any other charge of a party's pleading. Harrison County's well pleaded allegations, where considered on their face, must be taken as true. Common Cause of Mississippi v. Smith,
The Board of Supervisors of Harrison County, Mississippi, on January 25, *783 1988, adopted a resolution finding the proposed annexations by the Cities of Gulfport and Biloxi "inimical to the best interests and general welfare of the people of Harrison County"; that said annexations would adversely affect the areas proposed to be annexed, and that such would seriously affect the operation of the Harrison County School System in these areas; that Harrison County's tax base and its school system would suffer irreparable damage due to loss of taxpayers and students, etc. These findings suggest standing. Moreover, the interest of the county is derived from the interest of the citizens of the county living in or owning property in the areas tabbed for annexation. The board of supervisors is the governmental authority closest to those people and is surely charged to protect their welfare. From these thoughts it is a short step to Miss. Code Ann. § 21-1-31 (1972), which describes those who may appear and object to an annexation as "all parties interested in, affected by or being aggrieved by said proposed enlargement."[3]
Rules regarding standing, statutory or otherwise, import objective standards. Still, common sense suggests the party asserting standing would be more sensitive to whether its interests will be affected by an annexation than would the annexing municipality or even the trial court. Cf. Hentz v. State,
The cities would have us try the merits of the County's "findings" just to decide the standing question. In this context, In the Matter of Enlargement of Corporate Boundaries of the City of Pascagoula,
[w]hat proof the objectors may or may not have been prepared to offer at the hearing bearing upon the question of the reasonableness of the proposed expansion is of course, impossible for us to know or foresee with any degree of accuracy.
Id. at 905. The Pascagoula Court goes on to point out the different parties affected by the city annexation:
Under the circumstances of the proposed expansion, affecting, as it must, the interest of a great many persons and corporations as well as functions and activities of Jackson County and other governmental entities within the area proposed to be annexed, it is impossible to predict at this stage of the proceedings what facts or circumstances may be developed in evidence having a bearing upon the reasonableness or unreasonableness of the proposed expansion. Obviously, the nature of the question is such that many factors may bear upon it and disadvantages as well as advantages will be relevant and properly considered as the expansion hardly could be considered reasonable if it should develop that the former outweigh the latter.
Id. (Interlocutory appeal from chancellor's order overruling city's motion to strike written objections to city's petition for annexation). Rule 56's modification of these views hardly detracts from their force today.
Without belaboring the point, the record is such that we may not say with confidence that Harrison County has no interest in, nor that it would not be affected by, these annexations, should either be confirmed. Within the meaning and contemplation of Section 21-1-31 Harrison County has standing to object to each of those annexations.
B.
It is intuitively apparent that the county as a body politic will experience a legally cognizable effect from annexations such as these and that the general requisites of standing to sue are easily satisfied. *784 Assuming this much, a separate question is presented whether the county is nevertheless disabled to sue, for Harrison County is not an ordinary litigant. The courts below seized upon this juridical reality and upon the familiar proposition that a county board of supervisors has authority to act only as provided by law, citing the early case of Howe v. State,
We review this second question de novo, but for a different reason: it is essentially a question of law. See Cole v. National Life Insurance Company,
Both Gulfport and Biloxi and, as well, the courts below read the rule too strictly. To begin with, the general principle necessarily has common sense limits, for a board of supervisors could hardly function if we held its every act had to be previously authorized specifically and in detail. For one thing, authority not expressly provided may be exercised if "vested by necessary implication." Capital Electric Power Association v. Mississippi Power & Light Co.,
*785 Harrison County is a political subdivision of the State of Mississippi. State v. Board of Supervisors of Grenada County,
Any county may sue and be sued by its name, and suits against the county shall be instituted in any court having jurisdiction of the amount sitting at the county site; but suit shall not be brought by the county without the authority of the board of supervisors, except as otherwise provided by law
We long ago held this statute by necessary implication authorized a county to employ counsel and bring an action, denying that the authority should be limited to suits where the county had a pecuniary interest, for "it is to the interest of the county to maintain the peace and harmony of its inhabitants." Coahoma County v. Knox,
What is implicit in Section 11-45-17 has been expressed in Miss. Code Ann. § 19-3-47(1)(b) (Supp. 1989), which provides that
The board of supervisors shall have the power, in its discretion to employ counsel in all civil cases in which the county is interested... .
Miss. Code Ann. § 11-45-19 (1972) further elaborates a county's authority to sue.
Suit may be brought, in the name of the county, where only a part of the county or of its inhabitants are concerned, and where there is a public right of such part to be vindicated.
No reason is offered why we should afford these several statutes a reading other than as their words and phrasing ordinarily import, and upon reflection we see none. When we give these statutes a common sense reading, we see Harrison County acting by and through its board of supervisors legally empowered to proceed in court regarding matters affecting the county's interest. Section 19-3-47(1)(b) authorizes the county to employ counsel to act for it in all civil actions in which the county is interested. Section 11-45-17 says the county may sue and be sued in its own name, requiring prior authority from the board of supervisors. It is the board of supervisors which decides whether the county is interested in a matter, this Court's authority to intervene being limited to cases where the assertion is seen a sham. That only those Harrison County residents outside the present corporate limits of Gulfport and *786 Biloxi may have rights at stake is no obstacle, as Section 11-45-19 makes clear.
C.
The undercurrent dominating Gulfport and Biloxi's response is that the county shouldn't be allowed to oppose an annexation. We should protect the taxpayers of Harrison County from having public funds expended in this manner, or so the argument goes. The problem is that this day and this forum are inappropriate to that end. The statutes cited above empower the county to pursue litigation regarding matters in which it is interested. No rule of statutory construction would authorize our reading into these statutes "except in annexation cases." As no language in these general authorization statutes precludes Harrison County's opposition to Gulfport and Biloxi's annexation, we regard the supervisors' decision a political one, not subject to judicial review, and for which the supervisors are answerable only at the polls.
All seem to agree that a county should be permitted to oppose invasion from a municipality principally situated in an adjoining county. For example, all assume there was no problem with Madison County's appearance and opposition to Jackson's recent annexation. See City of Jackson v. City of Ridgeland,
The question before us is whether the legislature has enacted that a county may appear and object at all. If an invaded county whose lands are being annexed has authority to object, so may a home county so long as our law is posited in its present form. It may well be that an adjacent invaded county's "interest" or "effect" may differ from that of a home county. This hardly proves a home county has no legally cognizable "interest" or "effect" from annexations such as these, and no inconsiderable difficulty attends the effort to articulate a legally cognizable distinction between the effects of Gulfport's annexation of 53.65 miles of incorporated Harrison County lands and the effect of a like annexation of Hancock or Stone County lands. If the authority exists it surely exists without regard to the particular county interest(s) at stake and without regard to the ground(s) on which the county may oppose the annexation. Put otherwise, if Harrison County has no standing to object to these annexations, this may only be because the law does not permit counties to contest annexations, period. As indicated above, we find that the authority to appear and object does exist and that the matter of whether and when that authority may be exercised is committed wholly to the discrete judgment of the board of supervisors.
We are told litigation between municipalities and counties is unseemly and that we should move to prevent it. The argument belies our history. See, e.g., City of Indianola v. Sunflower Co.,
A further objection is that residents of Gulfport and Biloxi pay taxes to Harrison County and have a right that their tax *787 dollars not be used to thwart their interests in the two annexations. The source of the right is never identified, nor is it apparent on reflection. The point requires a presumption that all taxpayers of Gulfport and Biloxi approve their city's annexation plans. The short answer is found in Section 11-45-19. The county may sue where only a part of its inhabitants have interests at stake. Citizens of Gulfport and Biloxi, unhappy with the actions of any of the governmental bodies litigating today, may find a remedy in the political and not the legal process.
D.
We hold that Harrison County's pleadings and the evidence before us are adequate to establish that it is a party interested in, affected by or aggrieved by each of the pending annexations within Section 21-1-31. As such, the County has standing to intervene and object to each annexation. Beyond that, a combined reading of Sections 11-45-17 and -19, and 19-3-47(1)(b) vests in the county, acting by and through its board of supervisors, authority to exercise its standing and to employ counsel and participate fully in each annexation and confirmation proceeding.
IV.
In the Biloxi case a like question is presented whether the Harrison County Board of Education may intervene and object.[6]
Over the years this Court has heard any number of annexation cases in which a school district appeared as an objector. The earliest of these cases some twenty-four years ago also arose from Harrison County. See In the Matter of the Extension of the Boundaries of the City of Gulfport, Mississippi,
Without question, each of the annexations at issue would, if confirmed, extend the corporate boundaries of Gulfport and/or Biloxi into territories presently served by schools administered by the Harrison County Board of Education. The School Board's reason for believing that it will suffer an adverse effect from these annexations appears largely the product of its fear that much of its territory, students and assessed valuation will be stripped from it and added to the Gulfport Municipal Separate School District and the Biloxi Municipal Separate School District, respectively. There is no question but that prior to 1987 this would have been the case and, indeed, this is the principal basis upon which Western Line Consolidated School District challenged the annexation of the City of Greenville. See Western Line, supra; City of Greenville v. Farmers, Inc.,
Where the corporate limits of any municipality which constitutes a municipal separate school district, either with or without added territory, are extended so as to include the whole or any part of an existing *788 adjacent school district in the county school system or municipal separate school district, then such adjacent school district, or such part thereof as is included within the corporate limits of the municipality by reason of the extension thereof, shall thereby automatically be merged with and become part of such municipal separate school district.
In 1986 the legislature repealed Section 37-7-611, and if that repealer were enforceable, it would go a long way toward removing the objections of the Harrison County School Board, or so it appears from the papers before us. The problem is that this repealer is said to affect voting practices and procedures and may be subject to preclearance by the Attorney General of the United States under Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. On March 31, 1989, the Attorney General entered an objection letter refusing to preclear repeal of Section 37-7-611. In relevant part, the letter states:
Until the objection is withdrawn or a judgment from the District of Columbia court is obtained, the effect of the objection by the Attorney General is to make the repeal of Section 37-7-611 legally unenforceable. 28 C.F.R. 51.10.
As we have noted in two recent cases, the courts of this state have no authority to grant preclearance
which by virtue of Section 5 of the Voting Rights Act of 1965 may only be done by federal authorities. 42 U.S.C. § 1973c; Perkins v. Matthews,400 U.S. 379 , 388-95,91 S.Ct. 431 , 437-39,27 L.Ed.2d 476 , 484-89 (1971); Dotson v. City of Indianola,514 F. Supp. 397 , 399 (N.D.Miss. 1981). Until preclearance is forthcoming, we must enforce the law as it existed before the objected to change.
See City of Jackson,
At present we have no way of knowing whether and when the repeal of Section 37-7-611 may be precleared. Certainly the School Board's position and interest may be affected if preclearance is ultimately forthcoming. For the moment, common sense suggests the School Board remain in this case to protect its interest.
Nothing in our recent Booneville annexation case suggests affirmance of the Chancery Court's dismissal of Harrison County Board of Education from the Biloxi annexation case. In Booneville, we upheld chancery court confirmation of an annexation entered in the face of objection by the Prentiss County Board of Education, notwithstanding the fact that the repeal of Section 37-7-611 had not been precleared. In the first place, the Prentiss County Board of Education took no appeal from the Chancery Court's decision. More to the point, our decision in Booneville upheld the Chancery Court's holding that on the merits the Booneville annexation was reasonable, notwithstanding the School Board's objection. As indicated in Part III above, the fact that an annexation objector may ultimately lose on the merits hardly suggests that it lacks standing to press its objections.
The court below in today's case did not hold that the Harrison County Board of Education was not a party "interested in, affected by, or aggrieved by" the proposed enlargement of the boundaries of the City of Biloxi within the meaning and contemplation of Section 21-1-31. Rather, the sub silentio premise of the court's holding is that the School Board has standing within Section 21-1-31 but may not exercise that standing because, as a creature of the state, it has not been empowered to sue and be sued in this context.
Of relevance is Grenada Municipal Separate School District v. Jesco,
As a general rule, a School District, School Board, or other local school organization is a separate legal entity, and is entirely separate and distinct from a city or town ... . or county; which includes or is included in its territory, whether or not the two are coterminus, and even though they have some officers in common.
Id.
Taken together, Grenada and Harrell stand for the proposition that the school district, being an agent of the state, has within its authority all actions and all remedies to which an individual is entitled. Likewise, in the case sub judice the Harrison County Board of Education, being an agent of the state, has the authority to object to the proposed annexation pursuant to Section 11-45-11.
These things said, we hold that the pleadings of the Harrison County Board of Education are adequate to establish that it is a party interested in, affected by or aggrieved by the pending annexation of the City of Biloxi within Section 21-1-31. Beyond that, we hold that the School Board has the authority to exercise its standing and to employ counsel and to participate fully in the Biloxi annexation confirmation proceeding.
REVERSED AND REMANDED.
ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER and ANDERSON, JJ., concur.
HAWKINS, P.J., dissents by separate written opinion, joined by SULLIVAN, J.
PITTMAN and BLASS, JJ., not participating.
HAWKINS, Presiding Justice, dissenting:
On December 15, 1987, the City of Biloxi filed a petition in the chancery court of the second judicial district of Harrison County to approve its ordinance expanding the city's corporate limits.
On February 2, 1988, the City of Gulfport filed a petition in the chancery court of the first judicial district of Harrison County to approve its ordinance expanding the city's corporate limits.
Different chancery judges were assigned these cases.
On March 14, 1988, pursuant to its own order, and obstensibly for and on behalf of Harrison County, the board of supervisors filed a full blown answer in each court contesting the expansions of both cities.[1]
Upon motion of the City of Gulfport, the chancellor dismissed the county because it was not a party in interest as contemplated by Miss. Code Ann. § 21-1-47. In the City of Biloxi's petition in the second judicial district of Harrison County, the chancellor on his own motion dismissed the County, noting:
Harrison County urges that the provision of Section 21-1-31, Mississippi Code *790 of 1972, which states that "... all parties interested in, affected by, or being aggrieved by said proposed enlargement or contraction, shall have the right to appear at such hearing and present their objection," permits the county to participate as an objector. County governments and county school districts, however, have only limited authority. Such authority as they have must exist either by constitutional provision or by an act of the State Legislature, and no such authority is to be found. Had the legislature intended that counties or any other local agencies of government would be able to object to a municipal annexation proceeding, the legislature would have included not only "another city within three miles" but also the county and other local agencies of government. Significantly, it did not. In this respect, the legislature has exercised its control of this subject an has not delegated to the counties or to county school districts the authority to oppose annexation proceedings.
It is not difficult to understand that the legislature could well have concluded that it did not want local arms of government at war with one another over political turf, and all of this at the expense of the local taxpayers. Confidence in our political system could be severely tested if residents of an annexing city are forced to pay both for the annexation effort by their city government and for the resistance to that effort by their county government. If, indeed, the legislature decides at some point to let local government treasuries be used to fund internecine political warfare, a simple amendment to Section 21-1-32, can provide such authority.
I would affirm the action of both chancellors in dismissing Harrison County as a party.
No one doubts that counties, municipalities, school districts must have a right to go to court for trespasses and injuries to property, to enforce contractual rights, to secure property or funds rightfully belonging to the political subdivision, or even to take legal action to protect themselves from an encroachment by another legal entity which will prevent, diminish or impede their functioning as a legal entity. This clearly would be for a public purpose, and an expenditure upon an "object authorized by law." Howe v. State,
In oral argument this was well demonstrated by counsel for the Harrison County School District, the school district outside the Gulfport and Biloxi municipal school districts. He stated to the Court that if adding to the corporate limits of Biloxi and Gulfport meant inclusion within their respective municipal separate school districts of part of the Harrison County School District, and removal of the territory from the county district's jurisdiction, then the county district was harmed. This would put the county district in the same posture as the county school district in Western Line Consolidated School District v. Greenville,
On the other hand counsel candidly conceded that if Miss. Code Ann. § 37-7-103 (Miss. Code Ann. § 37-7-611 repealed, Ch. 492, § 47, Laws 1986) is in effect, and the Harrison County School District's boundary will not be changed by the corporate expansions, then the county school district's objection vanishes. In re: Enlargement of Booneville,
Even an adjoining county might very well have a right to go into court to object to a proposed annexation of part of its county into a municipality from an adjoining county. We do not have this question in this case, however, and need not address it. This is not such a case as City and County of Denver v. Miller,
Harrison County will neither be enlarged nor diminished by the corporate expansions as finally approved by the chancery court, if indeed they are approved at all. Moreover, its county government will remain the same regardless of the outcome of the cities' chancery court petitions. True, it *791 may very well have some of its expenses lowered by functions taken over by the cities, such as streets, sewerage, garbage collection which in turn will reduce the county's tax burden. And, if there is too much duplication of some services citizen taxpayers may, and should protest. Yet the county government itself will not be impeded in the slightest by any corporate annexation. The same county powers, responsibilities and rights will exist as before the annexation.
Some county supervisors may not desire having their road responsibilities lightened because it will mean they do not employ as many people, and have no need to spend as much money on machinery, concrete, steel, culverts, gravel and lumber. Economic need and power should not be confused with statutory or lawful power, however. Surely courts are not interested in promoting or preserving the political power a particular office holder has because of the people he employs or money he spends. And surely a county supervisor should neither be permitted to nor encouraged to protect his own political power by spending public money. If he wants to do this, spend his own money. Nothing has prevented these supervisors spending their own money to contest these expansions.
This is all this intervention by the county is, an attempt by individual office holders to hold onto more economic power and yet unwilling to spend their own money to do it.
The supervisors say that they are protecting the individual taxpaying citizens (which argument the majority has swallowed). This is specious, as well as no justification whatever to spend public money. If county property owners do not want to be within a city (and if I lived there I might very well not want to either), they should band together and employ counsel and resist it, not ask every taxpayer in Harrison County to pay for their fight. By what right do they have to demand (if indeed the county taxpayers have done so) that the county government pay this expense? Some county property owners in past years have had supervisors build and gravel driveways, field roads and lay out subdivisions for them, too, but public outcry and outrage have radically curtailed such illegal expenditures. Now, thanks to the majority, expenditures which the state auditor might otherwise challenge as being for a private purpose and illegal have been given the highest blessing possible. The Mississippi Supreme Court has endorsed them as perfectly valid and legal.
It should be perfectly plain that the employment by the board of supervisors of Harrison County of lawyers to protect their own political and economic power under the argument that they are "protecting the county taxpayer" is no more valid than laying out and building roads and bridges on private property.
No doubt laying out subdivisions, building driveways, field roads and bridges with public, taxpayers' money helped create in hundreds of instances political bosses. A supervisor rendering such services to taxpayers in his district enormously enhanced his political power. Those days are over. But the Mississippi Supreme Court has told the boards of supervisors you can salvage or re-establish some of your economic and political power by paying disgruntled property owners' legal fees out of the public treasury to fight any municipal expansion.
If this is not illegal, void and against public policy, then what is?
The majority has given a lengthy exposition of authority by political subdivisions generally to go to court, but ignored and missed the point of this case entirely: that the public treasury is funding legal fees to help individual supervisors and private property owners. This should never be classified as an "object authorized by law."
No law book is needed to detect the violation of public policy in this action by the Harrison County board of supervisors. You do not even need to be a lawyer. An unimpaired olfactory sense will suffice.
In St. Louis County v. Village of Peerless Park,
*792 County's only contention that it is adversely affected relate to loss of revenue and loss of power to control development. Neither is adequate to confer standing on the County.
With regard to the issue of loss of revenue County has failed to demonstrate that the loss has led to any adverse impact. The tax revenues formerly received from the annexed area were used to provide services to the annexed area that are now being provided by Peerless Park. The County's loss of revenue is therefore not an actual loss at all because the County has failed to demonstrate that the loss of revenue has not been offset by a decline in the need for County services and a consequent decline in costs to County.
The County also cannot base standing on a loss of power. As noted in Town and Country, supra at 606, governments exist to serve their citizens and not to conserve their own power. The fee owners in the annexed area chose to be governed by Peerless Park. The County's power over the area existed for the benefit of those owners and not for the benefit of the County's power base. We therefore refuse to find that the County's loss of power over the area constituted a sufficient direct adverse effect on its rights, status or other legal relations to constitute a ground for standing.
Neither to me is it much of an answer for this Court to intimate that well, if the people do not approve of this dissipation of public funds they can vote the supervisors out of office at the next election. The same lame answer could be given for any other malfeasance or squandering of public money.
Long ago this Court stated in Howe v. State, supra, at 69:
A board of supervisors has no right to appropriate the money of the county to any object not authorized by law. Such appropriation is void.
* * * * * *
Boards of supervisors are constituted for the protection of the county, and not to swindle it. What they do in accordance with law is valid, and all beyond is void.
The majority has vastly broadened the range of "objects authorized by law." If some citizen in the county will receive financial benefit, then it is an "object authorized by law" in which to pour public funds.
This is another example of the propensity of the Mississippi Supreme Court of late to grant interlocutory appeals. We highlight an issue on this interlocutory appeal which following a full-blown hearing could form a very small piece of a very large mosaic.
Another unfortunate current fact of life is the enormous legal expenses counties and municipalities incur in legal fees defending actions in federal court. In a vast number of federal court cases, the taxpayers in the end are required to pay legal fees on both sides. At least in the federal courts, however, the award of attorney fees to the plaintiffs is a congressional, legislative requirement. 20 U.S.C.A. § 1617; 42 U.S.C.A. § 1973l(e). Here the load on the taxpayers, requiring them to pay the legal fees on both sides, is a judicial mandate.
In City of Jackson v. City of Ridgeland,
I would affirm both chancellors, and I respectfully dissent.
SULLIVAN, J., joins this opinion.
NOTES
[1] Finch v. Mississippi State Medical Association, Inc.,
Notes
[2] In annexation proceedings, the Mississippi Rules of Civil Procedure should be enforced only where they do not conflict with procedural rules provided by statute. See Rule 81(a)(11), Miss.R.Civ.P.; In re City of Ridgeland,
[3] Cf. City of Pascagoula v. Scheffler,
[4] Compare Miss. Code Ann. § 19-3-47(1)(b) (Supp. 1989).
[5] § 19-3-40. Power of board to adopt, modify, alter, or repeal orders, resolutions or ordinances not inconsistent with law.
[Through June 30, 1990, Section 19-3-40 shall read as follows:]
(1) the board of supervisors of any county shall have the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi; and any such board shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances. Except as otherwise provided in subsection (2) of this section, the powers granted to boards of supervisors in this section are complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi.
Such orders, resolutions or ordinances shall apply countywide except when the governing authorities of any municipality situated within a county adopt any order, resolution or ordinance governing the same general subject matter. In such case the municipal order, resolution or ordinance shall govern within the corporate limits of the municipality.
(2) This section shall not authorize the board of supervisors of a county to (a) levy taxes other than those authorized by statute or increase the levy of any authorized tax beyond statutorily established limits, (b) issue bonds of any kind, (c) change the requirements, practices or procedures for county elections or establish any new elective office, (d) use any public funds, equipment, supplies or materials for any private purpose, (e) regulate common carrier railroads, (f) grant any donation, or (g) without prior legislative approval, regulate, directly or indirectly, the amount of rent charged for leasing private residential property in which the county does not have a property interest; unless such actions are specifically authorized by another statute or law of the State of Mississippi.
We hold above that Harrison County has been authorized to proceed in this matter by a combined reading of Miss. Code Ann. §§ 11-45-17, 11-45-19, and 19-3-47(1)(b) (1972 and Supp. 1989). Any possible doubt of the matter has been removed by the enactment of Section 19-3-40.
[6] The Chancery Court's opinion is directed principally to whether Harrison County may appear and object. It appears clear from the opinion that the rationale for dismissing the school district is the same, that is, that there is no legislative authority granting the school board the power to appear and object in annexation proceedings.
[1] Gulfport seeks to expand its present boundaries from 29.36 to 83.01 square miles, almost tripling its present geographical size. One cannot help but wonder if this is a case of sublimated avarice, which encourages the type of reaction it got from the board of supervisors.