Town of Crystal Springs v. Moreton

95 So. 242 | Miss. | 1922

Ethridge, J.,

delivered the opinion of the court.

On May 5, 1921, the mayor and board of aldermen of the town of Crystal Springs, Miss., passed an ordinance extending the corporate limits of the said town; an election was ordered resulting in a vote in favor of the extension. The appellee Moreton and others living within the territory proposed to be included filed an appeal to the circuit court, where the c'ase was tried, resulting in a judgment against the proposed extension. When the case Avas called for trial the toAvn of Crystal Springs, through its attorney, tendered to the complainant parties an issue, to-wit, “that the extension of the corporate limits as contained in the ordinance complained of is reasonable,” and claimed the right of plaintiff on said issue. The complaining parties or protestants declined to accept the issue, but tendered an issue themselves that the ordinance was unreasonable. The court held that the protestants were plaintiffs, and the cause went to trial on that theory.’ The protestants or plaintiffs offered much evidence upon the character of the territory proposed to be added to the town of Crystal Springs, the number of people living therein, and concerning the territorial limits of the toAvn as already existing, its situation and condition.

It appears that the toAvn of Crystal Springs Avithout the added territory was a mile square, measuring one-half mile each Avay from the depot. The territory proposed to be added extends the corporate limits approximately one-quarter of a mile each Avay from the boundary of the old corporate lines, Avith the exception that on the northwest the extension is less than one-quarter of a mile, and on the southeast the extension is increased beyond the one-quarter of a mile about as much as it lacked being a quarter of a mile on the northwest, resulting in making the town approximately four square miles of territory.

There were something over six hundred people living in the proposed territory to be added, of which more than one-half lived in a negro settlement known as “Freedman’s Town” lying southeast of the corporate limits. The proof shows that between 1910 and 1920 there was. but little growth in the town of Crystal Springs proper, and that the population actually declined in 'the early part of that period. But it shows that at the time of the proposed extension the town ivas building rapidly. The failure of growth and the loss of the population in the early part of the decennial period between the censuses was occasioned by the boll weevil situation in the state; but the town had organized a truck growing business in the territory surrounding it, and had become noted as a truck and vegetable point. Many of the people living in the proposed extension were engaged in truck farming, having a small acreage. Some of the people living in the proposed addition did business in Crystal Springs, living outside the limits of the town, and others worked in Crystal Springs at various industries, living outside the old corporate limits. There was proof showing that vacant property within the corporate limits was hard to obtain for building purposes, and that prices were very high. It is also shown that in Freedman’s Town there were frequent disturbances, and that the town had no control over the police or sanitary conditions therein. It was also shoAvn that Crystal Springs had improved its fire department, and had waterAVorks Avhich it OAvned, and from its plugs or stations with its fire hose it could reach property at a considerable distance over the boundary line. It Avas further shoAvn that Crystal Springs has fine public schools, and that the levy for supporting the schools Avas less than the levy outside of the corporate limits, and that the schools ran longer, had better facilities, and had the privilege of entering its graduates in all colleges without examination. It Avas also shown that the proposed extension would cheapen insurance in the territory proposed to be added. There is also proof to show that some parts of the territory proposed to be added Avere hilly and unsuitable for residences, that other parts-were Ioav, and contained practically no population. Other parts contained more or less thickly populated territory, and on account of the truck-growing business the country generally around about was well settled, being cut up into small farms as a rule.

The appellants contend that they were entitled to open and close the case before the jury, and that the denial of this right was prejudicial to them. We think that in such contests the burden of proof would be upon the parties contesting the extension. When the town passed its ordinance proposing the extension, the presumption should be indulged that the extension was reasonable and proper. Those who contest the right to so extend ought to have the burden of proving that the ordinance is unreasonable, and the burden of proof gives the right to open and close the case. It is difficult, however, to see how the appellant could complain because the ruling was favorable to it, as it would prevail under the rule adopted unless the other parties made out their proof to the reasonable satisfaction of the jury. In the trial the court gave-instruction No. 8, reading as follows:

“The court instructs the jury for the plaintiffs that municipalities are not created for the purpose solely of raising revenue, and the power of extending the corporate limits granted to a municipality is not to be' resorted to solely for the purpose of increasing the income of the municipality, but in order that the benefits incident to city government may be extended to those residents in the territory adjacent to the municipality and included in the extension; and, further, that the municipality by extending its police government, its sanitary and its more adequate fire protection, and other municipal benefits, thereby conserves the best interests of the inhabitants within its boundaries, and also to give to those living in its territory included in the extension more efficient protection against devastation by fire, and by the enforcement of necessary sanitary regulations to the public health decrease the danger of disease and pestilence; that these are the paramount circumstances; and, incidental to these, the citizens included in the extension are entitled to share in common with the other inhabitants of the municipality the conveniences of sidewalks and lighted streets, fire protection, and all the other advantages of municipal life; and, unless the jury believe from the evidence that the territory proposed to be included is necessary to be included in the corporate limits for some other purpose than taxation and revenue arising therefrom, then your verdict should be against the extension.”

The giving of this instruction to the appellees is assigned for error, the complaint being that the latter part of the instruction, to wit, “and unless the jury believe from the evidence that the territory proposed to be included is necessary to be included in the corporate limits for some other purpose than taxation and revenue arising therefrom, then your verdict should be against the extension,” was erroneous, and placed too high a test upon the question at issue. Under section 3303, Code of 1906 (section 5799, Hemingway’s Code), an appeal from an ordinance is provided. Under section 3304, Code of 1906 (section 5800, Hemingway’s Code), it is provided that in the circuit court the issue shall be made up and tried, and the question shall be whether the proposed consolidation, extension, or contraction of the municipality or municipalities be or be not reasonable. The test is whether the ordinance is reasonable, and not whether it is necessary. Of course there is a considerable margin of difference between reasonable and necessary. Most extensions would be prevented if necessity be the test. See Forbes v. City of Meridian, 86 Miss. 243, 38 So. 676, where the question is discussed as to the test of reasonableness in such cases.

We think that it Avas error to grant the instruction complained of, and the judgment will be reversed, and the cause remanded.

Reversed and remanded.