Wheat v. Town of Poplarville

^* Corpus Juris-Cyc. References: Municipal Corporations, 43CJ, p. 121, n. 5 New; p. 132, n. 16. Wheat, and other property owners of Poplarville, Miss., appellants here, filed their petition with the mayor and board of aldermen of the town of Poplarville, praying for the exclusion of about one thousand four hundred forty acres of land from the town of Poplarville, so that the limits of the town be contracted in a manner described in the petition, unnecessary to set out here. This petition was denied by the mayor and board of aldermen, and the petitioners appealed to the circuit court, and there the town filed a plea ofres adjudicata, setting out, in detail, that in 1916 an order of contraction had been entered which was res adjudicata to the proceeding. A demurrer was interposed to this plea by the petitioners, which was overruled by the court. Appeal was then prosecuted to this court, where the judgment of the circuit court was reversed and the cause remanded. Charles Wheat v. Town ofPoplarville, 144 Miss. 684, 110 So. 434. This court held that the demurrer should have been sustained, holding the judgment contracting the limits was not res adjudicata of this petition. The case was again tried in the court below and is sue submitted to the jury as to whether or not the proposed contraction of the boundaries was reasonable or unreasonable, and there was a verdict and judgment for the town of Poplarville, appellee here, from which the petitioners prosecute this appeal.

The main contention of the petitioners is that they were entitled to a peremptory instruction. There was no conflict in the evidence, most of which was directed at the question of taxes, which question is unimportant in the light of the issue to be tried in the lower court — whether the proposed contraction was reasonable or unreasonable.

The facts, briefly stated, show that in 1892 the municipality of Poplarville designated itself as a town, and, in April, 1892, extended its corporate limits so as to include nine full sections of land. In 1915, by judgment of the circuit court, the limits were contracted so as to exclude one thousand two hundred acres of land.

It was further shown by these petitioners that these lands had not been utilized for any urban purpose; that they were unplatted farm lands, pasture lands, and wild, reed brake lands; that, within the territory proposed to be excluded, there were living therein only six families; that from the time of the inclusion of this territory, in 1892, within the city limits until this date, there had been no urban improvements save a public highway, which was maintained at the county's expense. No mutual benefit is shown from the inclusion of these lands, nor to the balance of the community. The petitioners lived from a mile to a mile and a half from the courthouse, the main part of the town, and some of them were not even living on a public road. There were no lights, water, or sanitary improvements of any kind, nor any difference shown during the quarter of a century in which these farm lands had been within the corporate limits of Poplarville from any other rural lands outside the corporate limits.

In 1890 the census discloses that Poplarville was a village with a population of two hundred thirty-two; in 1892, it was a town of more than five hundred inhabitants; in 1900, its population was nine hundred ninety; in 1910, one thousand two hundred seventy-two; and in 1920, its population had grown to one thousand two hundred ninety. It was shown that these lands, if excluded from the municipality, would be, and remain, in the separate school district, and the petitioners would, if the town limits were contracted, continue to pay the school tax, which was shown to be a little more than half the entire tax of the town of Poplarville. It was shown that these occupants of the land used the streets; that one of them had been a marshal of the town; another had kept a meat market in the town; and another was a dairyman, but that their business would be regarded as rural and agricultural in so far as the territory in dispute was concerned.

The town of Poplarville did not offer to show any of the conditions existing in the town, or any reason for this territory remaining within the municipal limits, but, as we view the record, relied upon the presumption of law that the ordinance of extension in 1892 was then reasonable and valid, and continued to be so, and was indulged in the town's favor on the trial of the case. We think the peremptory instruction asked for by the petitioners, appellants here, that the proposed contraction of the town limits was reasonable, should have been granted in the court below; and also that the mere statement of the case shows that the presumption existing in favor of the reasonableness of the 1892 ordinance was overcome.

The petition is based upon section 6738, Hemingway's 1927 Code (section 3307, Code 1906).

In the case of Town of Crystal Springs v. Moreton,131 Miss. 77, 95 So. 242, this court held that the presumption was that an ordinance in force extending the city limits was reasonable and proper, but there is absolutely nothing in this record to sustain the verdict of the jury. Considering the growth of the town, no benefit can be shown to have accrued to the town, save the isolated power of taxation, which cannot be considered as either a benefit to the municipality or a detriment to the taxpayer properly included within the district. These lands are farm lands, and there is no showing that the town is rapidly growing, or that this thinly populated area contributes in any degree to the success of the municipality, or to the extension of urban ideas within those limits. The fact that the people within the proposed area rode upon the streets in that part of town in which they had streets, or at one time had conducted business there, is not persuasive, for the streets of the town, as public highways of the country, are used for public travel, and not for the exclusive benefit of those living within the area having improved streets and other conveniences of a progressive municipality. This case is controlled by Thomas v. Town ofLong Beach, 111 Miss. 329, 71 So. 570, wherein the facts are similar to the facts of the instant case; the difference being that the town of Long Beach was extended in order to prevent the establishment of a saloon, which necessity, when the State Prohibition Law (Laws 1908, chapter 113) went into effect in 1909, no longer existed.

No reason is assigned in the brief of counsel or in this record as to why Poplarville extended its limits so as to include nine sections of land. Slow growth is shown by the figures as to its population, and there is no reason shown for retaining these lands which were not platted nor used for any urban purposes whatever within the last quarter of a century; nor is it shown that such inclusion has been beneficial to the plans of the municipality. In the case of Forbes v. City of Meridian,86 Miss. 243, 38 So. 676, Judge TRULY said:

"Municipalities are not devised for the purpose solely, nor chiefly, of raising revenue. The power of extending corporate limits is granted not to be resorted to for the purpose alone of increasing the income of the municipality, but in order that the benefits incident to civic government may be extended to those resident 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 quarantine regulations, and its more adequate fire protection, may thereby conserve the best interests of the inhabitants within its original borders, and also give to those living in the 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 from disease and pestilence. These are the paramount considerations, 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 other advantages of city life."

It follows that this case must be reversed and remanded to the lower court, and that an order there be entered conforming to this opinion, contracting the limits.

Reversed and remanded.