Cross References —

Constitutional authority for laws providing for city charters and their amendment, see Miss. Const. Art. 4, § 88.

Municipalities being classified according to the federal census, see §21-1-3.

Judicial notice of municipality’s classification, see §21-1-11.

Municipality’s general powers, see §21-17-1.

Creation of civil service system in certain municipalities and details thereof, see §§21-31-1 et seq.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

The chancellor cannot pass upon question of public convenience and necessity of enlargement of municipality, inasmuch as that is a legislative question for municipal board in adopting the extension ordinance. In re Extension of Boundaries, 217 Miss. 860, 217 Miss. 876, 65 So. 2d 832, 1953 Miss. LEXIS 503 (Miss. 1953).

Where a petition for adoption of city ordinance seeking enlargement of municipal boundaries literally complied with the statute, it was not necessary to allege in the petition that the ordinance was published as required by law. In re Extension of Boundaries, 217 Miss. 860, 217 Miss. 876, 65 So. 2d 832, 1953 Miss. LEXIS 503 (Miss. 1953).

Question of reasonableness of enlargement of municipality is a judicial question and determination is a proper exercise of judicial function. In re Extension of Boundaries, 217 Miss. 860, 217 Miss. 876, 65 So. 2d 832, 1953 Miss. LEXIS 503 (Miss. 1953).

City ordinance which sets forth the improvements to be made in the annexed territory, describing them in general terms, and providing that they would be made when necessary and economically feasible, sufficiently complied with statutory requirement that ordinance shall in general terms describe improvements to be made in manner and extent thereof. In re Extension of Boundaries, 217 Miss. 860, 217 Miss. 876, 65 So. 2d 832, 1953 Miss. LEXIS 503 (Miss. 1953).

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

A Mississippi municipality acting under the commission form of government has all the powers possessed by other municipalities, except as otherwise provided by statute. Independent Paving Co. v. Bay St. Louis, 74 F.2d 961, 1935 U.S. App. LEXIS 3576 (5th Cir. Miss. 1935).

Where a municipality comes under the operation of this chapter, all of its powers under its original charter cease except such as are kept alive by the provisions of this chapter. Harris v. Water Valley, 78 Miss. 659, 29 So. 401, 1900 Miss. LEXIS 152 (Miss. 1900).

The manifest purpose of this chapter was that all municipalities should come under it and thus have uniformity in the charter powers of municipalities according to their several classes, but the right of election was given the municipalities then existing not to come under the provisions of the chapter by resolution of corporate authority to be certified to the secretary of state. Resolution without certification as directed is insufficient. State ex rel. Shields v. Govan, 70 Miss. 535, 12 So. 959, 1893 Miss. LEXIS 46 (Miss. 1893).

When a statute primarily refers to matters foreign to the ordinary functions of public corporations and imposes burdens or liabilities on persons without any corresponding benefits, the word “persons” will not be held to embrace municipal corporations exercising a part of the state’s sovereignty. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

Where a municipality against which as garnishee, a decree has been rendered in an attachment suit against a non-resident, fails to object to the garnishment, the objection not being jurisdictional cannot be made by the defendant in attachment on appeal. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 26 et seq.

51, 52 et seq.

91-104.

13A Am. Jur. Legal Forms 2d, Forms 180:11 et seq. (Charters, generally).

CJS.

62 C.J.S., Municipal Corporations §§ 15, 16 et seq.

57 et seq.

Cross References —

Classification of municipalities, see §21-1-1.

Judicial notice of municipality’s classification, see §21-1-11.

RESEARCH REFERENCES

ALR.

Propriety of using census data as basis for governmental regulations or activities – state cases. 56 A.L.R.5th 1.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 109.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 32 (petition for advancement of city or town to higher classification).

Cross References —

Suits by and against municipality, see §§11-45-1 et seq.

Changing corporate name of municipality, see §21-1-7.

JUDICIAL DECISIONS

1. In general.

A municipal corporation cannot enjoin the use of its name for designating another place and the inconveniences resulting to its citizens therefrom do not give it a right to complain. Gulf & S. I. R. Co. v. Seminary, 81 Miss. 237, 32 So. 953, 1902 Miss. LEXIS 135 (Miss. 1902).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Corporations, § 26.

CJS.

62 C.J.S., Municipal Corporations § 19.

Cross References —

Prescribed corporate names of municipalities, see §21-1-5.

OPINIONS OF THE ATTORNEY GENERAL

The provisions of §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, only mandate the use of tax assessment rolls and the avails to be collected from levies thereon in calculating the amount of the bonds therein required. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation of a bond pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all assessment rolls upon which a board of supervisors may levy ad valorem taxes. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all ad valorem tax levies listed on the certified levy sheet, including school district levies. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all classes of property upon which ad valorem taxes are levied and collected. Bryant, January 29, 1999, A.G. Op. #99-0011.

In calculating the amount of a bond pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, the total amount of ad valorem taxes to be collected, rather than the actual amount collected, must be used. Bryant, January 29, 1999, A.G. Op. #99-0011.

Cross References —

Changing corporate name of municipality, see §21-1-7.

JUDICIAL DECISIONS

1. In general.

City was authorized under statutory law to operate under a special charter, and, thus, the mayor was not authorized to vote regarding the city council’s appointment of a particular person as a city attorney; the city attorney was not a municipal officer under the city’s special charter and the mayor was thus only authorized to vote on such an issue if the city council had a tie vote, which did not occur since the city council voted in favor of the person’s appointment. Tisdale v. City Council of Aberdeen, 856 So. 2d 323, 2003 Miss. LEXIS 489 (Miss. 2003).

The municipal charter should be so construed as to carry out the legislative intent, and effect if possible must be given to every part thereof. City of Greenville v. Laurent, 75 Miss. 456, 23 So. 185, 1897 Miss. LEXIS 139 (Miss. 1897).

Cross References —

Classification of municipalities, see §21-1-1.

General powers of municipality, see §21-17-1.

Cross References —

Judicial definitions and illustrations generally, see §§1-3-1 et seq.

Prescribed corporate names of municipalities, see §21-1-5.

Amending existing municipal charter, see §21-17-9.

Filing of real property assessment rolls, see §21-33-23.

JUDICIAL DECISIONS

1. In general.

2. Sufficiency of petition.

3. Sufficiency of signatures.

1. In general.

Section21-1-33, rather than §21-1-13, is a controlling statute where a petition is filed to confirm the annexation of territory to a municipality. McElhaney v. Horn Lake, 501 So. 2d 401, 1987 Miss. LEXIS 2272 (Miss. 1987).

Some factors to be considered in determining whether public convenience and necessity require incorporation are: the governmental services presently provided; the quality and adequacy of all services provided; the services expected from other sources; the impairment of an immediate vested right in an adjoining city; the substantial or obvious need justifying incorporation. City of Pascagoula v. Scheffler, 487 So. 2d 196, 1986 Miss. LEXIS 3105 (Miss. 1986).

The determination as to whether the incorporation of a new municipality is reasonable is for the trial court. City of Pascagoula v. Scheffler, 487 So. 2d 196, 1986 Miss. LEXIS 3105 (Miss. 1986).

The requirements for a petition to incorporate are not necessarily the same as the requirements for an ordinance extending the boundaries of an existing municipality, the legislature having dealt with the two situations in separate statutes. Boling v. Jackson, 258 So. 2d 443, 1972 Miss. LEXIS 1504 (Miss. 1972).

2. Sufficiency of petition.

Failure of incorporators to include page three when they filed a first petition for incorporation was a clerical error and not a failure to comply with the specific requirements of Miss. Code Ann. §21-1-13; incorporation pleadings were amendable pursuant to Miss. R. Civ. P. 15. City of Jackson v. Byram Incorporators, 16 So.3d 662, 2009 Miss. LEXIS 145 (Miss. 2009).

Petitioners for incorporation were in substantial compliance in showing the assessed valuation of real property in the area sought to be incorporated, and contradiction between the pleading, showing an assessment of $17,755,488, and the proof, showing $13,362,275 assessed valuation, was decided by the chancellor who was not in manifest error. City of Pascagoula v. Scheffler, 487 So. 2d 196, 1986 Miss. LEXIS 3105 (Miss. 1986).

Mississippi Code §21-9-15(2) was inapplicable to render defective a petition seeking to establish in Jackson County a new municipality, with a form of government consisting of a mayor and five council members. City of Pascagoula v. Scheffler, 487 So. 2d 196, 1986 Miss. LEXIS 3105 (Miss. 1986).

Petitioners for municipal incorporation have burden of proving the sufficiency of their petition. Boling v. City of Jackson, 279 So. 2d 590 (Miss. 1973); City of Pascagoula v. Scheffler, 487 So. 2d 196, 1986 Miss. LEXIS 3105 (Miss. 1986).

A petition for incorporation which stated, inter alia, that such incorporation would permit the providing of fire and police protection, that the proposed municipal corporation would enact ordinances to correct health problems created by inferior sewer systems, that other ordinances would be enacted relating to electrical standards, plumbing standards, and building code standards, and that improved sanitation and garbage disposal within the incorporated territory would be provided, fully met the requirement of the statute that the petition set forth the municipal and public services which the municipal corporation proposed to render. Boling v. Jackson, 258 So. 2d 443, 1972 Miss. LEXIS 1504 (Miss. 1972).

A petition by qualified electors for incorporation of a new municipality failed to comply with the requirements of the statute and would be dismissed where it consisted of a so-called extended petition containing the required allegations, and numerous so-called short petitions which the extended petition undertook to incorporate and which, while they contained the signatures of an alleged two-thirds of the territory’s qualified electors, failed to comply with other statutory requirements such as setting forth the number of inhabitants of the territory, stating with reasonable definiteness the petitioners’ aims in seeking incorporation, and describing the territory to be incorporated in metes and bounds. City of Jackson v. Boling, 241 So. 2d 359, 1970 Miss. LEXIS 1336 (Miss. 1970).

3. Sufficiency of signatures.

In determining the number of qualified electors in area sought to be incorporated to ascertain that requisite percentage thereof have signed petition, resort to registration and poll books is permissible but, since these records require updating to reflect changes, resort to other sources to supplement them is not impermissible. City of Pascagoula v. Scheffler, 487 So. 2d 196, 1986 Miss. LEXIS 3105 (Miss. 1986).

In determining whether two thirds of the qualified electors were in favor of a proposed incorporation, the chancellor should have considered the fact that a number of the signers of the original petition had asked to have their names withdrawn; one can withdraw from a petition at any time prior to the determination of the hearing. Myrick v. Incorporation of a Designated Area into Municipal Corp. to be Named Stringer, 336 So. 2d 209, 1976 Miss. LEXIS 1501 (Miss. 1976).

In seeking the incorporation as a municipality of an unincorporated area, it is essential under subdivision (3) that the petition be signed by at least two-thirds of the qualified electors residing in the territory proposed to be incorporated, and where the original petition contains less than the required number of petitioners, this defect cannot be remedied by amendments thereafter filed including the names of additional petitioners. Bridges v. Biloxi, 250 Miss. 717, 168 So. 2d 40, 1964 Miss. LEXIS 492 (Miss. 1964).

The testimony of an attorney for the respondent that he had investigated all of the pertinent records necessary to determine whether the required number of qualified electors as provided in subdivision (3) of this section [Code 1942, § 3374-03] had signed a petition for the incorporation of a theretofore unincorporated area was admissible, where the records themselves were available to opposing counsel and the attorney was also available for cross-examination. Bridges v. Biloxi, 250 Miss. 717, 168 So. 2d 40, 1964 Miss. LEXIS 492 (Miss. 1964).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 25, 26, 27.

CJS.

62 C.J.S., Municipal Corporations §§ 34-37.

Law Reviews.

1979 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 833, December 1979.

Cross References —

Publication of notice of proposed enlargement or contraction of corporate boundaries, see §21-1-31.

Application of this section to the giving of notice of referendum on the question of inclusion in municipal school district, see §21-1-59.

Methods of publishing notice of special improvement, see §21-41-51.

JUDICIAL DECISIONS

1. In general.

2. Construction.

1. In general.

Circuit Court properly granted summary judgment in favor of a city because a lessee was not entitled to compensation where the city notified the lessee that it could no longer sell fireworks on newly annexed land, the regulation of fireworks sales was considered a police power, and the pre-existing-use doctrine and/or grandfathering was not applicable to ordinances relating to police powers, and the regulation of fireworks sales was considered a police power. Pearson's Fireworks, Inc. v. City of Hattiesburg, 212 So.3d 778, 2014 Miss. LEXIS 391 (Miss. 2014).

Objectors to the annexation contended that the city failed to prove that adequate notice was given. However, in the affidavit filed by the city, the affiant specifically stated the exact locations and dates of his postings of notice of the hearings in his affidavit as required by Miss. R. Civ. P. 4(f) and Miss. Code Ann. §21-1-15 and Miss. Code Ann. §21-1-31; the chancellor did not commit manifest error by allowing the detailed affidavit to constitute adequate proof of notice. Weeks v. City of Clinton (In re City of Clinton), 920 So. 2d 452, 2006 Miss. LEXIS 63 (Miss. 2006).

Town’s late filing of proof of publication of hearing into proposed annexation was not fatal to chancery court’s approval of annexation. Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996).

Since notice to a nearby existing municipality is statutorily required before incorporation, and statute further provides that all persons interested in, affected by, or objecting to an incorporation, shall be noticed, city of Pascagoula was a “person” entitled to object to all facets of a hearing to incorporate a nearby unincorporated area. City of Pascagoula v. Scheffler, 487 So. 2d 196, 1986 Miss. LEXIS 3105 (Miss. 1986).

Proper notice was not posted in the territory annexed, as required by §21-1-15, where notice was posted only within the already existing corporate boundaries of the municipality that initiated the annexation process, and not within the territory sought to be annexed, notwithstanding assertions that notice was posted in three public places within the existing municipality, and that there were no public places located within the territory to be annexed other than a public school, which was in vacation when the notices were posted. Wiley v. Corporate Boundaries of Iuka, 441 So. 2d 116, 1983 Miss. LEXIS 3017 (Miss. 1983).

In an action to confirm a city’s proposed annexation of territory, the returns of the deputy sheriff who posted the notices thereof were sufficient to comply with the statute regarding proof of posting of notice, even though there was no affidavit attesting to the posting. In re Extension of Boundaries, 365 So. 2d 952, 1978 Miss. LEXIS 2431 (Miss. 1978), cert. denied, 441 U.S. 946, 99 S. Ct. 2167, 60 L. Ed. 2d 1049, 1979 U.S. LEXIS 1858 (U.S. 1979).

Notice requirements of this statute, being in lieu of personal service and thus necessitating strict compliance, were not shown to have been met where there was no affidavit or attempted other proof that notices had been posted, and provisions of §13-1-145 [Repealed] that, when posting of notice is required, such may be proved by affidavit, was thus not satisfied; since notice requirements of §21-1-15 are mandatory and jurisdictional, failure to comply required dismissal of petition for incorporation. 336 So. 2d 209. Myrick v. Incorporation of a Designated Area into Mun. Corp. to be Named Stringer, 336 So. 2d 209 (Miss. 1976).

Where the statutes providing for a hearing on a petition to create a municipal corporation, and to objections to such petition, extend the right to objectors to personally appear at the hearing on the merits and to present their objections orally, the published notice of the hearing could not limit such right. Boling v. Jackson, 258 So. 2d 443, 1972 Miss. LEXIS 1504 (Miss. 1972).

2. Construction.

Addition of two parties in a revised petition for incorporation did not render the petition jurisdictionally fatal, pursuant to Miss. Code Ann. §21-1-15 because Miss. R. Civ. P. 21 applied to petitions of incorporation where the parties had received timely service of process and neither party objected to the proposed incorporation. City of Jackson v. Byram Incorporators, 16 So.3d 662, 2009 Miss. LEXIS 145 (Miss. 2009).

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms, 21 et seq. (affidavit of service of notice by posting or publication).

CJS.

62 C.J.S., Municipal Corporations § 38.

Law Reviews.

1978 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 11, March 1979.

Cross References —

Copy of decree approving municipal incorporation being sent to secretary of state, see §21-1-23.

Appropriations to aid in the control and eradication of insect pests, rodents, fire ants and the like, see §69-25-33.

Federal Aspects—

Housing and Community Development Act of 1974 (Public Law 93-383) is codified as 42 USCS §§ 5301 et seq.

JUDICIAL DECISIONS

1. In general.

Supreme Court, in reviewing chancellor’s findings about whether proposed municipal incorporation is required by considerations of public convenience and necessity and is reasonable, must merely determine whether the findings were supported by substantial credible evidence, and should reverse only if findings are manifestly in error. Incorporation of Oak Grove v. City of Hattiesburg, 684 So. 2d 1274, 1996 Miss. LEXIS 679 (Miss. 1996).

Substantial evidence regarding police protection, traffic control, sewage systems, fire service, and business owners’ concerns supported chancellor’s finding that considerations of public convenience and necessity did not require granting petition for municipal incorporation of semirural residential area that petitioners brought after nearby city unsuccessfully attempted to annex the area, especially considering that area was large and sparsely populated, that incorporation effort was largely defensive measure against annexation, and that chancellor’s findings were consistent with findings made in prior proceeding concerning the annexation attempt. Incorporation of Oak Grove v. City of Hattiesburg, 684 So. 2d 1274, 1996 Miss. LEXIS 679 (Miss. 1996).

Size and population density of semirural residential area whose land mass measured 40 square miles but whose population was only around 10,000 citizens presented logistical problems of such enormity as to make it unreasonable to grant petition for municipal incorporation of the area, within meaning of statute governing municipal incorporation, which requires that such incorporation be “reasonable.” Incorporation of Oak Grove v. City of Hattiesburg, 684 So. 2d 1274, 1996 Miss. LEXIS 679 (Miss. 1996).

Chancellor ruling on petition for municipal incorporation of semirural residential area whose land mass measured 40 square miles but whose population was only around 10,000 citizens did not abuse his discretion in denying petition rather than “narrowing down” the proposed incorporation area, where testimony at trial was more than sufficient to indicate that there was no real public necessity to incorporate the area even assuming that reasonable, smaller municipality could be carved out, especially considering that petitioners failed to present proposal for viable municipality. Incorporation of Oak Grove v. City of Hattiesburg, 684 So. 2d 1274, 1996 Miss. LEXIS 679 (Miss. 1996).

Proceeding on petition for municipal incorporation of semirural residential area was not proper forum for school district to argue that denial of petition would adversely affect district by leading to future annexation of area by nearby city and concomitant inclusion of annexed area in the nearby city’s own school district; rather, proper forum would be proceeding on any future annexation petition filed by the nearby city. Incorporation of Oak Grove v. City of Hattiesburg, 684 So. 2d 1274, 1996 Miss. LEXIS 679 (Miss. 1996).

In determining whether two thirds of the qualified electors were in favor of a proposed incorporation, the chancellor should have considered the fact that a number of the signers of the original petition had asked to have their names withdrawn; one can withdraw from a petition at any time prior to the determination of the hearing. Myrick v. Incorporation of a Designated Area into Mun. Corp. to be Named Stringer, 336 So. 2d 209 (Miss. 1976).

Legislation authorizing creation of utility district did not encroach upon or restrict trial court’s discretion so that it was in any way prevented from decreasing the size of the incorporated territory if it were determined that public convenience and necessity dictated a smaller area. Hamilton v. Incorporation of Petal, 291 So. 2d 190, 1974 Miss. LEXIS 1725 (Miss. 1974).

Incorporation was justified pursuant to §21-1-17 where parties stipulated that citizens of area would be convenienced thereby, and circumstances disclosed were more than sufficient to establish public necessity, particularly in view of need for police and fire protection, public health and education, in a burgeoning area. Hamilton v. Incorporation of Petal, 291 So. 2d 190, 1974 Miss. LEXIS 1725 (Miss. 1974).

Argument that trial court in assuming jurisdiction of annexation proceedings by municipality and consolidating them with incorporation proceedings of residents of community placed an undue burden upon the would-be incorporators causing them to not only prove the reasonableness of the incorporation pursuant to statutory requirements, but also burdened them with refuting the reasonableness of the city’s annexation proceedings, thereby confusing the issue by combining causes of action which were the antithesis of each other, was technically well-founded; however since under the statutes appertaining to either incorporation or annexation the issue basic to each was whether it was reasonable and required by public convenience and necessity, and since the trial court’s opinion conclusively indicated that it was formulated from the evidence before it with the statutory issues clearly in mind, the consolidation, under the circumstances was not prejudicial error. In re Incorporation of Forest Hill, 280 So. 2d 837, 1973 Miss. LEXIS 1496 (Miss. 1973), cert. denied, 414 U.S. 1130, 94 S. Ct. 869, 38 L. Ed. 2d 755, 1974 U.S. LEXIS 1446 (U.S. 1974).

Where there was an urgent need for the incorporation of the Pearl area into a municipality so that the community could cope with the problems of police protection, garbage, fire protection, drug control, health hazards, recreation, sanitation, street improvement and zoning, and the City of Jackson could not lawfully incorporate or annex the area inasmuch as the Rankin County board of supervisors had refused consent to do so and there was no indication that there would be any change on the part of the board, the chancellor erred in holding that incorporation would be unreasonable because the costs of operating the proposed municipality would be prohibitive. Boling v. City of Jackson, 279 So. 2d 590 (Miss. 1973).

The chancellor correctly permitted two individuals to intervene as objectors to a petition to create a municipality by incorporation. Boling v. Jackson, 258 So. 2d 443, 1972 Miss. LEXIS 1504 (Miss. 1972).

Where the statutes providing for a hearing on a petition to create a municipal corporation, and to objections to such petition, extend the right to objectors to personally appear at the hearing on the merits and to present their objections orally, the published notice of the hearing could not limit such right. Boling v. Jackson, 258 So. 2d 443, 1972 Miss. LEXIS 1504 (Miss. 1972).

Evidence that a city would not extend its corporate limits so as to afford water and sewer facilities to the territory in question for at least 15 years, supported a finding that incorporation of an area one-half mile from the city, which would aid in constructing and maintaining a municipal water and sewer system, was necessary in the interest of public convenience and necessity. Meridian v. Marion, 255 So. 2d 906, 1971 Miss. LEXIS 1299 (Miss. 1971).

The commingling of powers in the chancellor to determine the question of the existence of public convenience and necessity for the incorporation of a new municipality, as well as that of the reasonableness of the incorporation, does not violate the prohibition against unlawful delegation of governmental powers, since a finding by the chancellor of the existence of specified requirements for such incorporation is largely ministerial, affording little if any discretion on the part of the chancellor. Rouse v. Pascagoula, 230 So. 2d 543, 1970 Miss. LEXIS 1549 (Miss. 1970).

Where, for reasons of public policy, the legislature has limited the time for appeal from a decree creating a municipality to 10 days from the date of the decree, and the appeal bond was not filed within that period, the appeal must be dismissed. Wood v. Warren, 193 So. 2d 123, 1966 Miss. LEXIS 1274 (Miss. 1966).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 26 et seq.

CJS.

62 C.J.S., Municipal Corporations §§ 43, 44.

Cross References —

Hearing on petition for municipal incorporation and decree awarded, see §21-1-17.

Copy of decree approving municipal incorporation being sent to Secretary of State, see §21-1-23.

Same restrictions applying to any appeal from decree enlarging or contracting municipality, see §21-1-37.

JUDICIAL DECISIONS

1. In general.

2. Time limitations.

1. In general.

The right of appeal given by the statute is not limited to those parties who actively participated in the proceedings in chancery court, but, to fulfill the requirements of due process, since the statute provides for publication of notice to all owners of property within the area proposed to be annexed, the notice having been given, property owners within that classification became “parties to the proceedings” in the chancery court, and this status continued through the final decree which became conclusive and binding upon such owners unless reversed or modified on appeal. Sperry Rand Corp. v. Jackson, 245 So. 2d 574, 1971 Miss. LEXIS 1366 (Miss. 1971).

Where, for reasons of public policy, the legislature has limited the time for appeal from a decree creating a municipality to 10 days from the date of the decree, and the appeal bond was not filed within that period, the appeal must be dismissed. Wood v. Warren, 193 So. 2d 123, 1966 Miss. LEXIS 1274 (Miss. 1966).

The filing of a $500 cost bond by a party appealing to the Supreme Court of Mississippi from a decree confirming a municipal ordinance extending the city limits does not operate as a supersedeas where, following an unsuccessful appeal to that court, the appellant filed a petition for certiorari in the Supreme Court of the United States. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

Since the statutes give an interested party a right to appeal in annexation proceeding on his furnishing a good bond in the sum of $500, and to have such bond operate as a supersedeas, the chancellor had no authority to require bonds in excess of that amount, notwithstanding that such bonds were insufficient to assure the payment of accrued costs on appeal. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

Since the two $500 bonds were sufficient to perfect an appeal in an annexation proceeding, the $5,000 bond, erroneously required by the chancellor, would be treated as surplusage and discharged, thereby releasing the sureties thereon. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

2. Time limitations.

It was error for a chancellor to order a city to file a supplemental preclearance request with the United States Attorney General under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.S. § 1973c, because whether and how to initiate or to continue litigation was a matter of discretion for any governmental body, but, because, under both Miss. Code Ann. §21-1-33 and Miss. Code Ann. §21-1-21, a chancellor’s decree went into effect 10 days after an appeal was decided, and the city had not requested supersedeas, the city’s notice of appeal did not stay the judgment of the chancery court and prevent the city from being held in contempt. The judgment was not automatically stayed by Miss. Code Ann. §21-1-33. City of Grenada v. Marascalco (In re Contraction, Exclusion & Deannexation of Certain Areas), 876 So. 2d 995, 2004 Miss. LEXIS 804 (Miss. 2004).

Cross References —

Hearing on petition and decree’s award and appeal, see §§21-1-17,21-1-21.

JUDICIAL DECISIONS

1. In general.

Where, for reasons of public policy, the legislature has limited the time for appeal from a decree creating a municipality to 10 days from the date of the decree, and the appeal bond was not filed within that period, the appeal must be dismissed. Wood v. Warren, 193 So. 2d 123, 1966 Miss. LEXIS 1274 (Miss. 1966).

Amendment Notes —

The 2016 amendment added (2) and (3).

Cross References —

Combining of municipalities, see §21-1-43.

Incorporation into municipality of islands in Gulf of Mexico or Mississippi Sound, see §55-7-53.

Incorporation of municipal airport into corporate boundaries, see §§61-9-1 et seq.

Applicability of Mississippi Rules of Civil Procedure to proceedings relative to creation or alteration of municipal boundaries, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Annexation of territory.

3. —Proposed improvements.

4. —Public convenience and necessity served.

5. —Tax liability.

6. Judicial review.

7. Under former law.

1. In general.

In granting a proposed incorporation, a chancery court properly considered that the incorporation would not impair an immediate right to annex of an adjoining city; although the incorporation might substantially hinder the city’s future growth, the city did not have an unfettered right to annexation. City of Jackson v. Byram Incorporators, 16 So.3d 662, 2009 Miss. LEXIS 145 (Miss. 2009).

Fair reading of the annexation statutes, Miss. R. Civ. P. 15(a), Miss. R. Civ. P. 81(a)(11), and applicable case law leaves no doubt that, in most instances, annexation pleadings are amendable pursuant to Miss. R. Civ. P. 15; in annexations proceedings, when errors appear in the legal description of the territory proposed to be annexed and/or in the legal description of the entire boundary as changed after enlargement/annexation, such errors may be amended pursuant to the Mississippi Rules of Civil Procedure and case law. Lamar County v. City of Hattiesburg (In re Extension of the Boundaries of Hattiesburg ), 840 So. 2d 69, 2003 Miss. LEXIS 41 (Miss. 2003).

Miss. Code Ann. §21-1-27 is not unconstitutionally vague. Lamar County v. City of Hattiesburg (In re Extension of the Boundaries of Hattiesburg ), 840 So. 2d 69, 2003 Miss. LEXIS 41 (Miss. 2003).

Section 21-1-27 does not specifically state that the “entire boundary as changed” must be defined with certainty in an annexation ordinance, and therefore the failure of an original annexation ordinance to correctly define the city’s existing corporate boundaries was not a critical error which should have deprived the chancery court of jurisdiction to grant an annexation; thus, the chancellor did not err in allowing the city to amend the annexation ordinance to correctly describe the entire boundary of the city. City of Southaven v. City of Lake Horn (In re City of Horn Lake), 630 So. 2d 10, 1993 Miss. LEXIS 392 (Miss. 1993).

This statute is constitutional despite its lack of a requirement that inhabitants of an area proposed for annexation be allowed to vote on the issue, and it does not deny equal protection despite the fact that inhabitants do, by statute, vote on proposed incorporations and on citizen-sought annexations to or exclusions from areas already incorporated, incorporation and annexation being fundamentally different legal processes. Lowe v. Jackson, 336 So. 2d 490, 1976 Miss. LEXIS 1508 (Miss.), cert. denied, 429 U.S. 980, 97 S. Ct. 493, 50 L. Ed. 2d 589, 1976 U.S. LEXIS 3698 (U.S. 1976).

A municipality is not required to hold a public hearing or to give notice prior to adopting an ordinance expressing its intent to expand its boundaries. Jackson v. Flowood, 331 So. 2d 909, 1976 Miss. LEXIS 1886 (Miss. 1976).

The special statutes dealing with annexation ordinances control over statutes dealing with municipal ordinances generally. City of Biloxi v. Cawley, 278 So. 2d 389, 1973 Miss. LEXIS 1427 (Miss. 1973).

The requirements for a petition to incorporate are not necessarily the same as the requirements for an ordinance extending the boundaries of an existing municipality, the legislature having dealt with the two situations in separate statutes. Boling v. Jackson, 258 So. 2d 443, 1972 Miss. LEXIS 1504 (Miss. 1972).

A city could not escape its federal constitutional and statutory duties by use of the deannexation procedure, and what might be regarded as a routine municipal ordinance or proceeding in state law may be subjected to a thorough examination in federal law when the effect of the ordinance or proceeding is to deprive citizens of federally protected rights. Franklin v. Marks, 439 F.2d 665, 1971 U.S. App. LEXIS 11585 (5th Cir. Miss. 1971).

The general criteria for determining whether an annexation ordinance is reasonable are: (1) the city’s need for expansion; (2) whether the area sought to be annexed is reasonably within the path of such expansion; (3) the potential health hazard from sewage and waste disposal in the annexed area; and (4) the city’s financial ability to make the improvements and furnish municipal services as promised. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

The power conferred on municipalities to extend their boundaries is subject to legislative control. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

The title to an ordinance, under which a city sought to alter its boundaries by adding certain adjacent territory and excluding certain territory already included within the existing corporate limits, was clearly expressed in a title reading “An ordinance to be enlarged, extend, modify and define the corporate limits and boundaries” of the city. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

Notwithstanding the mandatory requirement of Code 1942, § 3374-74 that an ordinance shall not contain more than one subject, a city seeking to alter its boundaries by adding certain adjacent territory and excluding certain territory already included within the existing limits is not required to adopt two different ordinances, and thus initiate at the same time two different proceedings in a chancery court. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

The annexation of lands to a city over the objection of their owners is not a taking of property without compensation. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

Provisions of the statute dealing with the manner, procedure and the right of the municipal authorities to enlarge or contract the corporate limits do not contain any restriction or limitation on the right of the municipal authorities to proceed under the statute as often as they may think that the proposed enlargement or contraction is reasonable and is required by the then public convenience and necessity. In re Extension of Boundaries of Indianola, 226 Miss. 760, 85 So. 2d 212, 1956 Miss. LEXIS 460 (Miss. 1956).

2. Annexation of territory.

Approval of a proposed annexation in favor of the city was proper, in part because the city was in a strong financial condition and was well-equipped to implement the services and facilities plan and the objectors conceded that the city had the financial ability to provide municipal services to the proposed annexation area. Additionally, trash pickup in the proposed annexation area occurred only once a week, which contributed to uncollected waste and the spread of disease in the area; the city presented evidence that it planned to provide garbage collection twice per week. Russell v. City of Madison (In re City of Madison), 983 So. 2d 1035, 2008 Miss. LEXIS 173 (Miss. 2008).

Chancery court has a duty to conduct a full evidentiary hearing to determine the reasonableness of a proposed annexation; therefore, the denial of a city’s petition to annex a piece of land and a right-of-way without hearing any evidence was erroneous. In re Extension & Enlarging of the Boundaries of Laurel, 863 So. 2d 968, 2004 Miss. LEXIS 17 (Miss. 2004).

When a city proposing the annexation of certain real property had previously agreed with a neighboring city that this property was in the neighboring city’s path of growth, the city proposing the annexation was not equitably estopped from annexing the property because equitable estoppel could not be applied to the annexing city as it was not shown that this would not be inconsistent with the public interest. In re Enlargement & Extension of the Municipal Boundaries v. City of Southaven, 864 So. 2d 912, 2003 Miss. LEXIS 692 (Miss. 2003).

When a city proposing the annexation of certain real property had previously agreed with a neighboring city that this property was in the neighboring city’s path of growth, the city proposing the annexation was not judicially estopped from annexing the property because the prior agreement was not in the form of a consent decree, and, even if it had been, the city proposing the annexation would, most likely, have been relieved of its prior agreement, under Miss. R. Civ. P. 60(b)(5), because a prior city administration entered into the agreement, and one city administration could not bind its successor. In re Enlargement & Extension of the Municipal Boundaries v. City of Southaven, 864 So. 2d 912, 2003 Miss. LEXIS 692 (Miss. 2003).

Substantial and credible evidence supported trial court’s decision that a city’s proposed annexation of certain real estate was reasonable because (1) the annexing city needed to expand; (2) the proposed annexation area (PAA) was in the annexing city’s path of growth; (3) the proposed annexation created no health hazards; (4) the annexing city could serve the PAA; (5) the PAA needed the city’s zoning and planning services; (6) the PAA would need the city’s other municipal services; (7) no natural barriers existed between the PAA and the city; (8) the city could serve its residents; (9) the PAA’s owner sought annexation; (10) there was no impact on minority voting strength; and (11) the city’s relationship with the holder of the right to provide water and sewer services to the PAA favored annexation, but it was not shown that the PAA benefitted from the city’s provision of services as it was pasture land. In re Enlargement & Extension of the Municipal Boundaries v. City of Southaven, 864 So. 2d 912, 2003 Miss. LEXIS 692 (Miss. 2003).

City’s proposed annexation was approved as being fair to all parties, with fairness being the proper focus of a reasonableness inquiry under Miss. Code Ann. §21-1-33, as a complaint of higher taxes, which appeared to be minimal, could not by itself defeat the proposed annexation, where there were various benefits, including savings on fire insurance, as well as a decrease in water and sewer rates, and improved police protection, fire protection, public works, streets and drainage maintenance, paving of streets, street lighting, zoning, building codes, planning and enforcement, water, and sewer services; these benefits were well worth the additional taxes residents would be forced to pay, and when the equities were balanced, the evidence showed that the proposed annexation was reasonable. In re Enlargement & Extension of the Boundaries of the City of Macon v. City of Macon, 854 So. 2d 1029, 2003 Miss. LEXIS 474 (Miss. 2003).

Municipalities must demonstrate through plans and otherwise, that residents of annexed areas will receive something of value in return for their tax dollars in order to carry the burden of showing reasonableness. Lamar County v. City of Hattiesburg (In re Extension of the Boundaries of Hattiesburg ), 840 So. 2d 69, 2003 Miss. LEXIS 41 (Miss. 2003).

While the court may be approaching a need to employ a timetable approach and implementing a procedural remedy in the nature as discussed by Justice Sullivan and Justice Pittman in the Vicksburg and Columbus decisions, respectively, “the balancing of equity, fairness and determination of what is reasonable in the annexation process” was best accomplished in the instant matter by utilizing the well-established indicia of reasonableness. Lamar County v. City of Hattiesburg (In re Extension of the Boundaries of Hattiesburg ), 840 So. 2d 69, 2003 Miss. LEXIS 41 (Miss. 2003).

While a general statement of proposed improvements is sufficient in the ordinance that begins the annexation process, reliable cost estimates and assurances that promised services will be provided are necessary to establish reasonableness; thus, a city did not satisfy its burden as to reasonableness, and therefore the lower court properly limited the annexation, where the city failed to provide adequate evidence that residents of the entire proposed annexation area would receive anything of value in return for their municipal tax dollars. Robinson v. City of Columbus (In re Extension of the Boundaries of the City of Columbus), 644 So. 2d 1168, 1994 Miss. LEXIS 332 (Miss. 1994).

A chancellor erred in refusing to allow a city to annex part of the territory it sought where the city’s need for expansion was documented by numerous expert and lay witnesses, the constraints upon development within the current boundaries were substantiated, the city was experiencing a rapid rate of growth, and the chancellor failed to consider all of the city’s potential paths of growth when he ruled out the area sought to be annexed as within the normal path of the city’s growth. City of Southaven v. City of Lake Horn (In re City of Horn Lake), 630 So. 2d 10, 1993 Miss. LEXIS 392 (Miss. 1993).

The Chancery Court is charged to determine whether under the totality of the circumstances the annexation (or any part thereof) is reasonable, having due deference to the interests of the municipality and, as well, the interests of the parties affected. Bassett v. Taylorsville, 542 So. 2d 918, 1989 Miss. LEXIS 222 (Miss. 1989).

Municipality’s efforts to annex were denied upon findings by the chancery court, supported by substantial evidence, that the municipality lacked financial ability to make improvements and furnish municipal services to the area sought to be annexed, and that it had failed to provide adequate services to the residents of a community within its present boundaries. Extension of Boundaries v. Sherman, 492 So. 2d 289, 1986 Miss. LEXIS 2559 (Miss. 1986).

An expansion proceeding was valid where, although the annexing city failed to present evidence as to the reasonableness of annexing two areas and the court accordingly deleted those two areas, such action did not constitute an unlawful amendment to the annexation ordinance; the city was not required to go forward with evidence regarding these areas, and the court, pursuant to §21-1-33, had the authority to omit them from the proposed annexation area. Jackson v. Flowood, 331 So. 2d 909, 1976 Miss. LEXIS 1886 (Miss. 1976).

Where city met the burden of establishing that proposed annexation was feasible and reasonable and that it was financially able to provide the services it proposed to furnish residents of the annexed area, the annexation was approved. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

The fact that a municipal corporation would like to install a sanitary sewerage system in the territory to be added at the same time such a sewerage system is being installed within the present corporate limits is not a sufficient ground for expanding the city boundaries. In re Extension of Boundaries of Indianola, 226 Miss. 760, 85 So. 2d 212, 1956 Miss. LEXIS 460 (Miss. 1956).

3. —Proposed improvements.

The requirement of this section [Code 1942, § 3374-10] that an annexation ordinance shall describe, in general terms, the proposed improvements to be made in the annexed territory, and shall also contain a statement of the municipal services which the municipality proposes to render in the annexed territory, is mandatory, and the city, in its ordinance must comply therewith. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

The omission from the title of an annexation ordinance of the city’s promises as to the improvements and services to be rendered in the territory proposed to be annexed did not render the ordinance void. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

City ordinance which sets forth the improvements to be made in the annexed territory, describing them in general terms, and providing that they would be made when necessary and economically feasible, sufficiently complied with statutory requirement that ordinance shall in general terms describe improvements to be made in manner and extent thereof. In re Extension of Boundaries, 217 Miss. 860, 217 Miss. 876, 65 So. 2d 832, 1953 Miss. LEXIS 503 (Miss. 1953).

This section [Code 1942, § 3374-10] does not require a municipality prior to executing its ordinance of extension to ascertain the precise cost of improvements and the sources from which town will obtain water and sewage pipes and other materials. Parker Gin Corp. v. Drew, 214 Miss. 147, 58 So. 2d 372, 1952 Miss. LEXIS 454 (Miss. 1952).

The use of the phrases “approximate time” and “reasonable time” indicates a legislative intent to vest a broad area of discretion in the governing body, however availability of materials, their costs and the financial ability of the town to meet that cost are relevant on whether the services can be rendered within a reasonable time. Parker Gin Corp. v. Drew, 214 Miss. 147, 58 So. 2d 372, 1952 Miss. LEXIS 454 (Miss. 1952).

4. —Public convenience and necessity served.

Evidence supported chancellor’s conclusion that public convenience and necessity would be served by annexing an area where, inter alia, the annexing city had adequate facilities to take care of the area’s sewage and waste water disposal, which were currently a potential health hazard, and where police service and better fire protection could be provided through annexation; though there was opposing testimony that much of the area was open or swamp land not justifying annexation, since the area was likely to become a part of the city within a reasonable period of time, annexation was appropriate so as to permit orderly development. Lowe v. Jackson, 336 So. 2d 490, 1976 Miss. LEXIS 1508 (Miss.), cert. denied, 429 U.S. 980, 97 S. Ct. 493, 50 L. Ed. 2d 589, 1976 U.S. LEXIS 3698 (U.S. 1976).

When the municipal governing authorities adopted an ordinance seeking an extension of the municipal limits, they, by that act, determined that the extension was required by the public convenience and necessity. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

5. —Tax liability.

The mere fact that residents and landowners in an area proposed to be annexed will have to start paying city property taxes is not sufficient to show unreasonableness of the proposed annexation. In re Extension of Boundaries of Jackson, 551 So. 2d 861, 1989 Miss. LEXIS 291 (Miss. 1989).

Property brought into a municipality by annexation is subject to taxation to discharge municipal indebtedness previously incurred and existing at the time of annexation. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

6. Judicial review.

Where, in a deannexation proceeding, a City relied on only one of the 12 indicia of reasonableness applicable to either annexation or deannexation under Miss. Code Ann. §§21-1-45,21-1-47, and objectors presented evidence on all 12, under its limited standard of review of such proceedings, the Supreme Court of Mississippi determined that the chancellor’s finding on deannexation was correct. City of Grenada v. Marascalco (In re Contraction, Exclusion & Deannexation of Certain Areas), 876 So. 2d 995, 2004 Miss. LEXIS 804 (Miss. 2004).

A trial court decree approving an ordinance enlarging a city’s boundaries, as provided by this section, would be affirmed as modified where the trial court’s finding that the annexation was reasonable and required by the public convenience and necessity was not manifestly wrong or clearly against the overwhelming weight of the evidence. Extension of Boundaries v. Biloxi, 361 So. 2d 1372, 1978 Miss. LEXIS 2396 (Miss. 1978).

Evidence as to the city’s alleged need for expansion, whether the specified area was reasonably within the path of such expansion, the potential health and the hazard from sewage and waste disposal, and the city’s financial ability to make the improvements and furnish municipal services as promised, sustained chancellor’s finding that annexation of the specified territory was reasonable. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

When proceeding for enlargement or contraction of the corporate limits of a municipality is initiated by city authorities, the burden of proof is upon them to establish that the proposal is reasonable and that the public convenience and necessity requires that the proposal be approved. In re Extension of Boundaries of Indianola, 226 Miss. 760, 85 So. 2d 212, 1956 Miss. LEXIS 460 (Miss. 1956).

Question of reasonableness of enlargement of municipality is a judicial question and determination is a proper exercise of judicial function. In re Extension of Boundaries, 217 Miss. 860, 217 Miss. 876, 65 So. 2d 832, 1953 Miss. LEXIS 503 (Miss. 1953).

7. Under former law.

Where the mayor and aldermen of the city of Louisville by adoption of an ordinance proposing to add new territory to the city of Louisville, adjudicated that the extension was reasonable, the burden was upon the objectors to overturn such adjudication and show the extension to be unreasonable. Ball v. Louisville, 218 Miss. 867, 56 So. 2d 4, 1952 Miss. LEXIS 602 (Miss. 1952).

Proof of publication held not requisite part of record on appeal from ordinance extending city limits. Pass Christian v. Long Beach, 157 Miss. 778, 128 So. 554, 1930 Miss. LEXIS 321 (Miss. 1930).

That rural territory was in some municipal school district did not preclude city from including within its borders the unincorporated rural territory. Pass Christian v. Long Beach, 157 Miss. 778, 128 So. 554, 1930 Miss. LEXIS 321 (Miss. 1930).

The question of changing corporate limits may be re-litigated after expiration of two years from ordinance fixing limits. Wheat v. Poplarville, 144 Miss. 684, 110 So. 434, 1926 Miss. LEXIS 403 (Miss. 1926).

Evidence as to reasonableness of exclusion of land from town thereof held to require peremptory instruction for petitioners. Wheat v. Poplarville, 144 Miss. 684, 110 So. 434, 1926 Miss. LEXIS 403 (Miss. 1926).

The extension of provisions relating to the change of boundaries of municipalities so as to make it applicable to all municipalities necessarily carried with it the limitation contained in Code 1942, in § 3377. Planters' Gin & Milling Co. v. Greenville, 138 Miss. 876, 103 So. 796, 1925 Miss. LEXIS 96 (Miss. 1925).

The application of this section to a commission form of government as to extending boundaries of the municipality also carries the limitations on the power of municipality to adopt ordinances as contained herein. Planters' Gin & Milling Co. v. Greenville, 138 Miss. 876, 103 So. 796, 1925 Miss. LEXIS 96 (Miss. 1925).

The issue to be tried on an appeal from an ordinance under this section extending the limits of the municipality is whether the ordinance is reasonable. Town of Crystal Springs v. Moreton, 131 Miss. 77, 95 So. 242, 1922 Miss. LEXIS 276 (Miss. 1922).

On such trial the burden of proof is on the contestant who has the right to open and close the case. Town of Crystal Springs v. Moreton, 131 Miss. 77, 95 So. 242, 1922 Miss. LEXIS 276 (Miss. 1922).

This case also furnishes an example of an erroneous instruction as to the burden of proof. Town of Crystal Springs v. Moreton, 131 Miss. 77, 95 So. 242, 1922 Miss. LEXIS 276 (Miss. 1922).

Under this section a provision in the ordinance extending the limits of a municipality that the ordinance shall take effect at once is void; An ordinance properly passed under this section will take effect only as provided for by law. Sanders v. Starkville, 128 Miss. 742, 91 So. 422, 1922 Miss. LEXIS 162 (Miss. 1922).

Under Laws 1912 ch. 120 (§ 3635, Code of 1942), authorizing a commission form of government, a municipality acting under said chapter and having no authority to extend its boundaries cannot supersede an appeal by providing for referendum of such ordinance. Gregory v. Amory, 112 Miss. 604, 73 So. 614, 1916 Miss. LEXIS 152 (Miss. 1916).

In determining whether an ordinance to extend the limits of a municipality be or be not reasonable, upon an issue made up to try that question in the circuit court as provided by this section, the extension must be considered as an entirety, the question not being whether each and every portion of the territory included in the extension should, if considered separately, have been included. Forbes v. Mayor, etc., of Meridian, 86 Miss. 243, 38 So. 676, 1905 Miss. LEXIS 71 (Miss. 1905).

Whether a city is entitled to annex unincorporated adjacent territory or whether the inhabitants of the territory are entitled to incorporate as a town, depends on the priority of the initial step taken by the respective side. City of Jackson v. Whiting, 84 Miss. 163, 36 So. 611, 1904 Miss. LEXIS 76 (Miss. 1904).

A municipal corporation having no other powers than those granted to towns by the provisions of this chapter cannot enjoin the use of its name by designating another place and the inconvenience resulting to its citizens therefrom does not give the municipality a right to complain. Gulf & S. I. R. Co. v. Seminary, 81 Miss. 237, 32 So. 953, 1902 Miss. LEXIS 135 (Miss. 1902).

In such case the grievances complained of are not grievances of the municipality. Gulf & S. I. R. Co. v. Seminary, 81 Miss. 237, 32 So. 953, 1902 Miss. LEXIS 135 (Miss. 1902).

Upon appeal to the circuit court from the judgment of the municipal authorities changing the boundaries of a municipality under this and the next succeeding section, the trial is de novo and there is no necessity for a bill of exceptions. Yerger v. Greenwood, 77 Miss. 378, 27 So. 620, 1899 Miss. LEXIS 89 (Miss. 1899).

RESEARCH REFERENCES

ALR.

Refusal of municipality to annex impoverished area as violative of federal law. 22 A.L.R. Fed. 272.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 55-85.

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 180:56 (ordinance extending and increasing corporate limits of city).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 11, 12 (annexing adjoining territory).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 15, 16 (ordinance extending city limits invalid).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 18 (notice of hearing on petition to exclude property from annexation).

11 Am. Jur. Proof of Facts 2d, Contiguity of Land Annexed by Municipality, §§ 8 et seq. (proof of lack of contiguity).

CJS.

62 C.J.S., Municipal Corporations § 57.

Law Reviews.

1978 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 11, March 1979.

Cross References —

Judicial definitions and illustrations generally, see §§1-3-1 et seq.

JUDICIAL DECISIONS

1. In general.

2. Evidence.

1. In general.

City’s proposed annexation was approved as being fair to all parties, with fairness being the proper focus of a reasonableness inquiry under Miss. Code Ann. §21-1-33, as a complaint of higher taxes, which appeared to be minimal, could not by itself defeat the proposed annexation, where there were various benefits, including savings on fire insurance, as well as a decrease in water and sewer rates, and improved police protection, fire protection, public works, streets and drainage maintenance, paving of streets, street lighting, zoning, building codes, planning and enforcement, water, and sewer services; these benefits were well worth the additional taxes residents would be forced to pay, and when the equities were balanced, the evidence showed that the proposed annexation was reasonable. In re Enlargement & Extension of the Boundaries of the City of Macon v. City of Macon, 854 So. 2d 1029, 2003 Miss. LEXIS 474 (Miss. 2003).

The Chancery Court is charged to determine whether under the totality of the circumstances the annexation (or any part thereof) is reasonable, having due deference to the interests of the municipality and, as well, the interests of the parties affected. Bassett v. Taylorsville, 542 So. 2d 918, 1989 Miss. LEXIS 222 (Miss. 1989).

Under §21-1-29, a city can confirm an annexation only through formal judicial proceedings instituted in the Chancery Court where the city or land is located. Vicksburg v. Vicksburg Printing & Pub. Co., 434 So. 2d 1333, 1983 Miss. LEXIS 2726 (Miss. 1983).

The alleged failure of a city to comply with a requirement that an ordinance expanding city limits be approved pursuant to the Federal Voting Rights Act before it can become effective, was not ground for reversal of a decree ratifying, approving, and confirming the city ordinance expanding the city’s limits, since the Mississippi statute does not require the city to have its ordinance approved or confirmed by anyone other than the chancery court, and the Voting Rights Act requires compliance only in order to have the ordinance enforced. Sperry Rand Corp. v. Jackson, 248 So. 2d 810, 1971 Miss. LEXIS 1495 (Miss. 1971).

Where city met the burden of establishing that proposed annexation was feasible and reasonable and that it was financially able to provide the services it proposed to furnish residents of the annexed area, the annexation was approved. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

The contention of property owners in a new area annexed to a city that they are thereby denied due process and equal protection of the laws because their property will be subject to taxation to pay general obligation bonds issued by the city before the annexation ordinance was passed is not supported either by reason or by authority. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

The burden of proof of public convenience and necessity for the expansion of the corporate limits is upon the city seeking court approval of its actions in that respect. Walker v. Moss Point, 252 Miss. 511, 175 So. 2d 173, 1965 Miss. LEXIS 1128 (Miss. 1965).

On an application to obtain the court’s approval of a proposed annexation, the city has the burden of showing it to be reasonable, and if the chancellor’s finding of reasonableness or unreasonableness is supported by substantial evidence, the supreme court will not disturb it. In re Forest, 247 Miss. 340, 153 So. 2d 688, 1963 Miss. LEXIS 306 (Miss. 1963).

The annexation ordinance need not be introduced into evidence where a certified copy was attached to the petition as an exhibit. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

2. Evidence.

Court upheld an order that a city’s proposed annexation of a convenience store/gas station was unreasonable because the evidence was clear that the only individual to benefit from the proposed annexation would be the owner of the convenience store/gas station; the owner testified that he could increase revenues by being allowed to sell beer from his convenience store. In re Extension & Enlarging of Boundaries of the City of Laurel, 922 So. 2d 791, 2006 Miss. LEXIS 101 (Miss. 2006).

OPINIONS OF THE ATTORNEY GENERAL

An annexation is final and effective for all purposes 10 days after issuance of the decree by the chancery court, or 10 days after final determination of an appeal, except that citizens residing in an annexed area may not participate in future municipal elections as electors or as candidates, unless and until pre-clearance by the U.S. Department of Justice is obtained pursuant to Section 5 of the Voting Rights Act. Mallette, March 2, 2007, A.G. Op. #07-00096, 2007 Miss. AG LEXIS 72, modifying Rafferty, November 27, 2006, A.G. Op. #06-00598, 2006 Miss. AG LEXIS 428, as to the effective date of annexation for all purposes other than voting and candidacy.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 76.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 1 (municipal incorporation of intercounty area).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Form 45 (Petition or application – To disconnect property from municipality).

CJS.

62 C.J.S., Municipal Corporations § 80.

Law Reviews.

1978 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 11, March 1979.

Cross References —

Methods of publishing notice of special improvement, see §21-41-51.

JUDICIAL DECISIONS

1. In general.

Objectors to the annexation contended that the city failed to prove that adequate notice was given. However, in the affidavit filed by the city, the affiant specifically stated the exact locations and dates of his postings of notice of the hearings in his affidavit as required by Miss. R. Civ. P. 4(f) and Miss. Code Ann. §21-1-15 and Miss. Code Ann. §21-1-31; the chancellor did not commit manifest error by allowing the detailed affidavit to constitute adequate proof of notice. Weeks v. City of Clinton (In re City of Clinton), 920 So. 2d 452, 2006 Miss. LEXIS 63 (Miss. 2006).

Burden of proof that a city posted notices pursuant to Miss. Code Ann. §21-1-15 of a proposed annexation of land before an annexation hearing was on the city, and when the city failed to present sufficient evidence that it met this burden, the chancery court was without jurisdiction to consider the city’s annexation petition. Norwood v. In re Extension of the Boundaries of Itta Bena, 788 So. 2d 747, 2001 Miss. LEXIS 172 (Miss. 2001).

A county board of education was an agent of the State, and therefore had the authority to object to a proposed annexation. The board of education was a party interested in, affected by or aggrieved by the proposed annexation within the meaning of §21-1-31, where the territory sought to be annexed was served by schools administered by the county board of education. Additionally, the school board had the authority to exercise its standing and to employ counsel and participate fully in the annexation confirmation proceeding. Harrison County v. Gulfport, 557 So. 2d 780, 1990 Miss. LEXIS 44 (Miss. 1990).

A county had standing under §21-1-31 to object to the annexation of county territory by a city since it was a party interested in, affected by or aggrieved by the annexations. Furthermore, a combined reading of §§11-45-17,11-45-19, and19-3-47(1)(b) vested 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. Harrison County v. Gulfport, 557 So. 2d 780, 1990 Miss. LEXIS 44 (Miss. 1990).

A party’s assertion of an interest or effect goes a long way toward establishing that it has an interest in, or will likely be affected by, an annexation. Harrison County v. Gulfport, 557 So. 2d 780, 1990 Miss. LEXIS 44 (Miss. 1990).

In an action by objectors to the proposed annexation of property by a municipality, the determination of the reasonableness of the annexation was a judicial function, and thus, the chancellor’s failure to recognize his role as a judicial officer, rather than as a ministerial one, would require remand for a new hearing. Western Line Consol. School Dist. v. Greenville, 465 So. 2d 1057, 1985 Miss. LEXIS 1970 (Miss. 1985).

In an action to confirm a city’s proposed annexation of territory, the returns of the deputy sheriff who posted the notices thereof were sufficient to comply with the statute regarding proof of posting of notice, even though there was no affidavit attesting to the posting. In re Extension of Boundaries, 365 So. 2d 952, 1978 Miss. LEXIS 2431 (Miss. 1978), cert. denied, 441 U.S. 946, 99 S. Ct. 2167, 60 L. Ed. 2d 1049, 1979 U.S. LEXIS 1858 (U.S. 1979).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 51, 52 et seq.

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 24, 25 (affidavit of notice by posting or publication).

1 Am. Jur. Proof of Facts, Advertisements, Proof Nos. 1, 2 (posting and publication of advertisements).

CJS.

62 C.J.S., Municipal Corporations § 79.

Law Reviews.

1978 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 11, March 1979.

Amendment Notes —

The 2016 amendment designated the former first and second sentences as (1), the former third sentence as (2), and the former fourth and last sentences as (3); inserted “and that the…Section 21-1-27” in (1); inserted “or in the event…Section 21-1-27” in (2); inserted “(10)” both times it appears in (3); and made minor stylistic changes throughout.

Cross References —

Applicability of Mississippi Rules of Civil Procedure to proceedings relative to creation or alteration of municipal boundaries, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Construction.

3. Constitutionality.

4. Scope of hearing.

5. Burden of proof.

6. Objections by residents.

7. Evidence.

8. Decree.

9. Judicial review.

10. Time limitations.

11. Under former law.

1. In general.

Chancellor erred in its denial of the parties’ motion in that it put forth as the effective date of the decree of annexation the date of entry instead of ten days after determination of appeal, Miss. Code Ann. §21-1-33, and usurped the exclusively legislative function of the city’s determining whether to pursue annexation procedures. In re Extension of the Boundaries of Sardis, 954 So. 2d 434, 2007 Miss. LEXIS 228 (Miss. 2007).

Annexation is reasonable only if it is fair; in making this determination, annexation must be viewed from perspective of both city and landowners of proposed annexation area. Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

Court asked to approve municipality’s annexation request must determine whether annexation is reasonable under totality of circumstances. Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996).

The 12 indicia of reasonableness of an annexation are: (1) the municipality’s need to expand; (2) whether the area sought to be annexed is reasonably within a path of growth of the city; (3) potential health hazards from sewage and waste disposal in the annexed areas; (4) the municipality’s financial ability to make the improvements and furnish municipal services promised; (5) the need for zoning and overall planning in the area; (6) the need for municipal services in the area sought to be annexed; (7) whether there are natural barriers between the city and the proposed annexation area; (8) past performance and the time element involved in the city’s provision of services to its present residents; (9) economic or other impact of the annexation upon those who live in or own property in the proposed annexation area; (10) the impact of the annexation upon the voting strength of protected minority groups; (11) whether the property owners and other inhabitants of the areas sought to be annexed have in the past, and in the foreseeable future unless annexed will, because of their reasonable proximity to the corporate limits of the municipality, enjoy economic and social benefits of the municipality without paying their fair share of taxes; and (12) any other factors that may suggest reasonableness; these 12 factors are not separate, independent tests which are conclusive as to reasonableness, but rather are “mere indicia of reasonableness.” Perry v. Guion, 650 So. 2d 490, 1995 Miss. LEXIS 77 (Miss. 1995); Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996); Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

The factors enumerated in Dodd v. City Jackson (Miss. 1960) 118 So. 2d 319, 330, as expanded over the years in later decisions, are not separate and independent tests but mere indicia of reasonableness, and the court’s determination in the end must be whether, under the totality of the circumstances, the annexation, or any part thereof, is reasonable. In re Boundaries of Vicksburg, 560 So. 2d 713, 1990 Miss. LEXIS 191 (Miss. 1990).

The Chancery Court is charged to determine whether under the totality of the circumstances the annexation (or any part thereof) is reasonable, having due deference to the interests of the municipality and, as well, the interests of the parties affected. Bassett v. Taylorsville, 542 So. 2d 918, 1989 Miss. LEXIS 222 (Miss. 1989).

Section21-1-33, rather than §21-1-13, is a controlling statute where a petition is filed to confirm the annexation of territory to a municipality. McElhaney v. Horn Lake, 501 So. 2d 401, 1987 Miss. LEXIS 2272 (Miss. 1987).

An expansion proceeding was valid where, although the annexing city failed to present evidence as to the reasonableness of annexing two areas and the court accordingly deleted those two areas, such action did not constitute an unlawful amendment to the annexation ordinance; the city was not required to go forward with evidence regarding these areas, and the court, pursuant to this section, had the authority to omit them from the proposed annexation area. Jackson v. Flowood, 331 So. 2d 909, 1976 Miss. LEXIS 1886 (Miss. 1976).

Argument that trial court in assuming jurisdiction of annexation proceedings by municipality and consolidating them with incorporation proceedings of residents of community placed an undue burden upon the would-be incorporaters causing them to not only prove the reasonableness of the incorporation pursuant to statutory requirements, but also burdened them with refuting the reasonableness of the city’s annexation proceedings, thereby confusing the issue by combining causes of action which were the antithesis of each other, was technically well-founded; however since under the statutes appertaining to either incorporation or annexation the issue basic to each was whether it was reasonable and required by public convenience and necessity, and since the trial court’s opinion conclusively indicated that it was formulated from the evidence before it with the statutory issues clearly in mind, the consolidation, under the circumstances was not prejudicial error. In re Incorporation of Forest Hill, 280 So. 2d 837, 1973 Miss. LEXIS 1496 (Miss. 1973), cert. denied, 414 U.S. 1130, 94 S. Ct. 869, 38 L. Ed. 2d 755, 1974 U.S. LEXIS 1446 (U.S. 1974).

The contention of property owners in a new area annexed to a city that they are thereby denied due process and equal protection of the laws because their property will be subject to taxation to pay general obligation bonds issued by the city before the annexation ordinance was passed is not supported either by reason or by authority. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

In a proceeding under this section [Code 1942, § 3374-13], there is no constitutional right to trial by jury. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

2. Construction.

Mississippi Supreme Court declares as antiquated the prior jurisdiction doctrine as it relates to annexation litigation, and to the extent that any of its prior cases have recognized and applied this doctrine, these prior cases are to that limited extent overruled. City of D'Iberville v. City of Biloxi (In re Enlargement & Extension of the Municipal Boundaries), 867 So. 2d 241, 2004 Miss. LEXIS 242 (Miss. 2004).

3. Constitutionality.

The requirement that the chancery court determine the issue of public convenience and necessity is unconstitutional, since the issue is a legislative one to be decided by the municipality’s governing board. Jackson v. Flowood, 331 So. 2d 909, 1976 Miss. LEXIS 1886 (Miss. 1976).

4. Scope of hearing.

Chancery court has a duty to conduct a full evidentiary hearing to determine the reasonableness of a proposed annexation; therefore, the denial of a city’s petition to annex a piece of land and a right-of-way without hearing any evidence was erroneous. In re Extension & Enlarging of the Boundaries of Laurel, 863 So. 2d 968, 2004 Miss. LEXIS 17 (Miss. 2004).

Ultimate determination in annexation case must be whether annexation is reasonable under totality of circumstances. Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

Role of judiciary in annexations is limited to determining whether annexation is reasonable. In re Extension of Boundaries, 238 Miss. 405, 117 So. 2d 199, 1960 Miss. LEXIS 419 (Miss. 1960); McElhaney v. Horn Lake, 501 So. 2d 401, 1987 Miss. LEXIS 2272 (Miss. 1987); Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

In determining reasonableness of city’s annexation proposal, court must consider proposal in light of area as a whole, considering concern of both city and landowners. Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996).

Chancellor’s determination of reasonableness of proposed annexation is judicial function, not ministerial one. Western Line Consol. School Dist. v. Greenville, 465 So. 2d 1057, 1985 Miss. LEXIS 1970 (Miss. 1985).

A cross-petition by residents of a town seeking to be excluded from the existing corporate limits, filed in a proceeding to confirm an ordinance extending city boundaries, was properly dismissed because the powers of the chancery court in such a proceeding are limited to approving, modifying, or denying the proposed ordinance, and the court cannot consider matters not concerning the ordinance. Ferguson v. Vaiden, 242 So. 2d 124, 1970 Miss. LEXIS 1372 (Miss. 1970).

The chancery court, in a proceeding under this section [Code 1942, § 3374-13], is governed entirely by statute and it may (1) ratify and approve the ordinance if found to be reasonable, (2) modify the proposed enlargement or contraction by decreasing the territory to be included or excluded, or (3) deny in toto the proposed enlargement or contraction. Lippian v. Ros, 253 Miss. 325, 175 So. 2d 138, 1965 Miss. LEXIS 990 (Miss. 1965).

The chancery court does not have the power under this section [Code 1942, § 3374-13] to defer the effective date of an ordinance enlarging the boundaries of a municipality. Lippian v. Ros, 253 Miss. 325, 175 So. 2d 138, 1965 Miss. LEXIS 990 (Miss. 1965).

5. Burden of proof.

To show reasonableness of annexation, municipalities must demonstrate, through plans and otherwise, that residents of annexed areas will receive something of value in return for their tax dollars. Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996); Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

In a proceeding for confirmation of a city’s proposed annexation of adjoining land, any detriment to a nearby city was only required to be given “great weight” under the twelfth “other factors” indicium of reasonableness, and therefore the annexing city was not required to show “clear, strong proof” on the 12 indicia of reasonableness merely because the nearby city claimed that the proposed annexation would have a detrimental impact on it by limiting its northern path of growth. Perry v. Guion, 650 So. 2d 490, 1995 Miss. LEXIS 77 (Miss. 1995).

While a general statement of proposed improvements is sufficient in the ordinance that begins the annexation process, reliable cost estimates and assurances that promised services will be provided are necessary to establish reasonableness; thus, a city did not satisfy its burden as to reasonableness, and therefore the lower court properly limited the annexation, where the city failed to provide adequate evidence that residents of the entire proposed annexation area would receive anything of value in return for their municipal tax dollars. Robinson v. City of Columbus (In re Extension of the Boundaries of the City of Columbus), 644 So. 2d 1168, 1994 Miss. LEXIS 332 (Miss. 1994).

The burden of proving reasonableness of annexation is upon the petitioner, the city seeking to accomplish the annexation. In re Extension of Boundaries of Indianola, 226 Miss. 760, 85 So. 2d 212, 1956 Miss. LEXIS 460 (Miss. 1956); Spears v. Oxford, 227 Miss. 801, 87 So. 2d 61, 1956 Miss. LEXIS 755 (Miss. 1956); McElhaney v. Horn Lake, 501 So. 2d 401, 1987 Miss. LEXIS 2272 (Miss. 1987).

Where city met the burden of establishing that proposed annexation was feasible and reasonable and that it was financially able to provide the services it proposed to furnish residents of the annexed area, the annexation was approved. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

The burden of proof of public convenience and necessity for the expansion of the corporate limits is upon the city seeking court approval of its actions in that respect. Walker v. Moss Point, 252 Miss. 511, 175 So. 2d 173, 1965 Miss. LEXIS 1128 (Miss. 1965).

In a proceeding by a city for the ratification, approval and confirmation of an ordinance extending the city’s corporate limits, the burden of proof is on the city to establish that its proposal is reasonable and required by the public convenience and necessity. In re Extention of Boundaries of Philadelphia, 232 Miss. 582, 100 So. 2d 100, 1958 Miss. LEXIS 306 (Miss. 1958).

Where a petition for adoption of city ordinance seeking enlargement of municipal boundaries literally complied with the statute, it was not necessary to allege in the petition that the ordinance was published as required by law. In re Extension of Boundaries, 217 Miss. 860, 217 Miss. 876, 65 So. 2d 832, 1953 Miss. LEXIS 503 (Miss. 1953).

6. Objections by residents.

City’s proposed annexation was approved as being fair to all parties, with fairness being the proper focus of a reasonableness inquiry under Miss. Code Ann. §21-1-33, as a complaint of higher taxes, which appeared to be minimal, could not by itself defeat the proposed annexation, where there were various benefits, including savings on fire insurance, as well as a decrease in water and sewer rates, and improved police protection, fire protection, public works, streets and drainage maintenance, paving of streets, street lighting, zoning, building codes, planning and enforcement, and water, and sewer services; these benefits were well worth the additional taxes residents would be forced to pay, and when the equities were balanced, the evidence showed that the proposed annexation was reasonable. In re Enlargement & Extension of the Boundaries of the City of Macon v. City of Macon, 854 So. 2d 1029, 2003 Miss. LEXIS 474 (Miss. 2003).

The mere fact that residents and landowners in an area proposed to be annexed will have to start paying city property taxes is not sufficient to show unreasonableness of the proposed annexation. In re Extension of Boundaries of Jackson, 551 So. 2d 861, 1989 Miss. LEXIS 291 (Miss. 1989).

A cross-petition by residents of a town, seeking to be excluded from the existing corporate limits, filed in a proceeding to confirm an ordinance extending city boundaries was properly dismissed because the powers of the chancery court in such a proceeding are limited to approving, modifying, or denying the proposed ordinance, and the court cannot consider matters not concerning the ordinance. Ferguson v. Vaiden, 242 So. 2d 124, 1970 Miss. LEXIS 1372 (Miss. 1970).

The contention of property owners in a new area annexed to a city that they were denied due process and equal protection of the laws because their property was subject to taxation to pay general obligation bonds issued by the city before the annexation ordinance was passed was not supported either by reason or by authority. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

7. Evidence.

Chancery court properly determined that a city’s annexation of its neighbors into its boundaries was reasonable and supported by the evidence where the city had spilled over into the proposed annexation area (PAA) and was continuing to expand into the county; unregulated development in the PAA was putting a strain on utilities and other municipal services. In re Enlarging City of Brookhaven, 957 So. 2d 382, 2007 Miss. LEXIS 345 (Miss. 2007).

Chancellor’s finding of reasonableness in a city’s annexation petition for the proposed annexation area (PAA) was affirmed given the factors shown, such as population increase, the city’s growth path toward the PAA, and the city’s spillover. Also, the city had zoning ordinances to assist in planning, and the city had substantially fulfilled past annexation promises. Poole v. City of Pearl (In re Extension of the Boundaries), 908 So. 2d 728, 2005 Miss. LEXIS 490 (Miss. 2005).

Chancellor’s finding that two cities each had a reasonable need for expansion but were limited in the direction in which they could expand, that it would be premature to award a certain portion of the proposed annexation area to either city because it was largely undeveloped, and that the area awarded to each was sufficient to meet its needs, were all reasonable contentions and supported by the evidence; therefore, the chancellor’s decision to partially grant and partially deny the cities’ petitions was reasonable City of D'Iberville v. City of Biloxi (In re Enlargement & Extension of the Municipal Boundaries), 867 So. 2d 241, 2004 Miss. LEXIS 242 (Miss. 2004).

Trial court properly found that the proposed annexation of an area was reasonable because (1) the city had a need for expansion, (2) the area was in the path of the city’s growth, (3) there were no natural boundaries between the city and the area, (4) there were potential health hazards in the area, (5) the city had a financial ability to provide services to the area, (6) the area needed zoning, (7) the city’s municipal services were of benefit to the area, (8) the city provided adequate services to its citizens, (9) there was no adverse impact, other than the raising of taxes, on the area residents, (10) minority voting strength was not going to be negatively affected, and (11) area residents were receiving benefits from the city and it was appropriate that they shared in the tax responsibility for such services. Prestridge v. City of Petal, 841 So. 2d 1048, 2003 Miss. LEXIS 53 (Miss. 2003).

Evidence supported the reasonableness of a proposed annexation where (1) the city established a need to expand due to it’s population increase, economic growth, limited areas in which to grow, traffic congestion, and need for access to an interstate highway, (2) the area that the city sought to annex was in the city’s path of growth, (3) over 85 percent of the people in the area the city sought to annex were without public water or sewer and thus presented a potential health hazard, (4) the city had the financial ability to make improvements and pay the necessary increase in operating expenses caused by the annexation, (5) there was a need for overall planning and zoning, (6) the area that the city sought to annex was in need of municipal services, (7) the natural barriers were not sufficient to prohibit the annexation, (8) the city had provided in a timely fashion the capital improvements and municipal services to the area as provided in an earlier annexation, (9) the residents of the area that the city sought to annex would receive capital improvements and municipal services that would outweigh the impact of additional taxes, (10) the annexation would not cause any dilution of minority voting strength, and (11) many of the residents of the area that the city sought to annex worked in the city and used city facilities. In re Enlargement & Extension of the Municipal Boundaries v. City of Biloxi, 744 So. 2d 270, 1999 Miss. LEXIS 237 (Miss. 1999).

Record did not support finding that state capital’s proposed annexation of 24.25 square miles of territory outside of its existing corporate limits was reasonable; city’s population was decreasing, commercial building permits had decreased considerably despite availability of considerable vacant, developable land within city, city admitted that it wanted revenues that annexation would provide by expanding city’s tax base, city failed to prove that current services in proposed annexation area were inadequate, and city school official testified that, with exception of possibly two schools, all city schools were operating at or above capacity, and that no thought had been given to where annexed students would attend school. Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

Facts that there had been no significant population growth and/or that there was relatively high percentage of undeveloped land within existing city limits, should, at very least, be impediment to annexation. Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

Although it has been held that city’s need to maintain or expand its tax base, especially as growth and development occurs on its perimeters, is factor to be considered when determining reasonableness of proposed annexation, Supreme Court has been very critical of annexations which are in effect “tax grabs.” Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

When current services in proposed annexation area are adequate, fact that annexation may enhance municipal services should not be given much relevance, especially where evidence of likelihood of enhanced service is greatly conflicting. Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

Chancellor’s decision that town’s annexation request was reasonable was supported by evidence that town population was growing, no good residential building locations were left, proposed area was in path of growth, lack of sewer hookups in proposed area created health hazard, town had plan and financial ability to provide services to area, garbage collection costs would be lowered, and annexation would make industrial development possible. Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996).

Plans that call for extension of services into annexation areas when economically feasible are not per se unreasonable, but if there is evidence of lack of commitment, such as general failure to estimate costs and plan for implementation of municipal services, then reasonableness of annexation proposal can fairly be questioned. Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996).

Town’s promise to provide sewer improvement when economically feasible did not render annexation request unreasonable where town had made preliminary cost estimates and plans. Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996).

Evidence was not sufficient to justify chancellor’s finding that city accountant testified that without MP & L plant, annexation was not feasible, where record revealed that city accountant only admitted that loss of MP & L would adversely affect city’s bonding capacity and would significantly affect feasibility of annexation. City of Greenville v. Farmers, Inc., 513 So. 2d 932, 1987 Miss. LEXIS 2835 (Miss. 1987).

Municipality’s efforts to annex were denied upon findings by the chancery court, supported by substantial evidence, that the municipality lacked financial ability to make improvements and furnish municipal services to the area sought to be annexed, and that it had failed to provide adequate services to the residents of a community within its present boundaries. Extension of Boundaries v. Sherman, 492 So. 2d 289, 1986 Miss. LEXIS 2559 (Miss. 1986).

The annexation ordinance need not be introduced into evidence where a certified copy was attached to the petition as an exhibit. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

Opinion evidence that a majority of the qualified electors, both in the city proper and in the added territory, would vote both now and in the future against a bond issue to provide municipal services was too speculative and conjectural to amount to proof. In re Extention of Boundaries of Philadelphia, 232 Miss. 582, 100 So. 2d 100, 1958 Miss. LEXIS 306 (Miss. 1958).

In a proceeding by a city for the ratification, approval and confirmation of an ordinance extending the city’s corporate limits, a witness, who had BS and MS degrees from Mississippi State College, passed the state department of public accountant’s examination for certified public accountants, and had been certified under Code 1942, § 8908 and had made an audit of the city’s records himself, was properly permitted to testify as to the assessed valuation of the property within the city and the amount of bonds which could be issued, without further qualification of his evidence. In re Extention of Boundaries of Philadelphia, 232 Miss. 582, 100 So. 2d 100, 1958 Miss. LEXIS 306 (Miss. 1958).

In a proceeding by a city for a decree adjudging an enlargement of the city limits, although the chancellor is not bound by the adjudication of the mayor and board of aldermen that the proposed extension was reasonable, and had the right to determine for himself whether the extension was reasonable and was required by the public convenience and necessity, the chancellor was entitled to give some weight to the opinion of the city authorities. In re Extension of Boundaries of Indianola, 226 Miss. 760, 85 So. 2d 212, 1956 Miss. LEXIS 460 (Miss. 1956).

8. Decree.

In a consolidated suit, the City of Ridgeland, Mississippi, prevailed on its petition to annex land in Madision County, Mississippi; the chancellor erred by removing a business park from Ridgeland and awarding it to Jackson, Mississippi, because Ridgeland had less land available for development and a far greater need to expand its borders. The chancery court was directed to enter a judgment with the new boundaries of the municipalities, pursuant to Miss. Code Ann. §21-1-33. In re Enlargement & Extension of City of Jackson v. City of Ridgeland, 912 So. 2d 961, 2005 Miss. LEXIS 675 (Miss. 2005).

A chancery court sitting in an annexation confirmation proceeding may confirm the annexation of an area less than all the municipality seeks to annex. In re Boundaries of Vicksburg, 560 So. 2d 713, 1990 Miss. LEXIS 191 (Miss. 1990).

An annexation ordinance becomes effective, when, and not before, it is approved by a decree of the chancery court, and neither recording nor signing of such an ordinance in the ordinance book will render it effective without such approval. City of Biloxi v. Cawley, 278 So. 2d 389, 1973 Miss. LEXIS 1427 (Miss. 1973).

A decree which ratified, approved, and confirmed a city ordinance expanding the city’s limits, as modified by the trial court to exclude the property of objectors pursuant to an agreement between the city and objectors, was not a “consent decree” insofar as modification was concerned, and the decree which recited that the trial court had heard testimony and that the ordinance as modified was reasonable did not amount to an amendment of the ordinance by the city without a proper amendatory ordinance. Sperry Rand Corp. v. Jackson, 248 So. 2d 810, 1971 Miss. LEXIS 1495 (Miss. 1971).

While it is better form for the decree in a proceeding to confirm the extension of city boundaries to state that the chancellor has found that reasonable municipal services will be rendered in the annexed territory within a reasonable time, failure to so state does not render the decree invalid, it being apparent that this section [Code 1942, § 3374-13] requires only that the chancellor enter a decree approving, ratifying, and confirming the proposed enlargement if he finds that the proposed enlargement is reasonable and that the proper municipal services will be rendered within a reasonable time. Ferguson v. Vaiden, 242 So. 2d 124, 1970 Miss. LEXIS 1372 (Miss. 1970).

A decree ratifying and approving an ordinance extending city limits which described the boundaries of the entire city as altered by the annexation, rather than describing the newly annexed area alone, sufficiently complied with the requirements of this section. In re Extension of Boundaries of Gulfport, 253 Miss. 738, 179 So. 2d 3, 1965 Miss. LEXIS 1041 (Miss. 1965).

The fact that an appeal from a decision of city board of election commissioners involved construction of a decree of the chancery court approving an ordinance that extended city limits was not a sufficient reason for transferring the cause to the chancery court. Lippian v. Ros, 253 Miss. 325, 175 So. 2d 138, 1965 Miss. LEXIS 990 (Miss. 1965).

Where chancery court was without authority, in a decree approving an ordinance enlarging the boundaries of a municipality, to defer the effective date of the ordinance, the invalid portion of the decree may be collaterally attacked by one who relies upon the valid portions of the same decree. Lippian v. Ros, 253 Miss. 325, 175 So. 2d 138, 1965 Miss. LEXIS 990 (Miss. 1965).

The court may not enlarge, but may reduce the area sought to be annexed, to the extent it is found to be unreasonable. In re Extension of Boundaries, 237 Miss. 486, 115 So. 2d 323, 1959 Miss. LEXIS 495 (Miss. 1959).

In a proceeding by a city for the ratification, approval and confirmation of an ordinance extending the city’s corporate limits, the court had the power to decrease the territory to be included, and was amply justified from the evidence in finding that the enlarged limit, as modified, was reasonable and was required by the public convenience and necessity. In re Extention of Boundaries of Philadelphia, 232 Miss. 582, 100 So. 2d 100, 1958 Miss. LEXIS 306 (Miss. 1958).

9. Judicial review.

Chancellor’s partial grant of a town’s annexation petition was appropriate because the chancellor considered all of the evidence presented and balanced the town’s annexation request against objectors’ concerns. Furthermore, the chancellor’s findings were based on substantial, credible evidence, were not manifestly wrong, and were within the chancellor’s discretion. Wilson v. Town of Terry (In re Enlargement & Extension of the Mun. Boundaries of the Town of Terry), 227 So.3d 917, 2017 Miss. LEXIS 132 (Miss. 2017).

City’s proposed annexation, viewed through the lens of totality, was reasonable under Miss. Code Ann. §21-1-33 because, in addition to indicia of reasonableness that objectors had conceded, it had long been providing many services to portions of the proposed annexation area, and annexation power was legislative, not judicial, so that the state supreme court declined an invitation to add yet another factor in its consideration; the area sought to be annexed was reasonably within a part of growth of the city, which needed to expand, and there was a need for zoning, overall planning, and municipal services in the proposed area. In re City of Brookhaven, 2007 Miss. LEXIS 204 (Miss. Apr. 5, 2007).

If chancellor employed correct legal standards in determining reasonableness of annexation, Supreme Court’s standard of review is limited; reversal of chancellor’s findings is warranted only if chancellor is manifestly wrong and his findings are not supported by substantial credible evidence. Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

Although it has been held that city’s need to maintain or expand its tax base, especially as growth and development occurs on its perimeters, is factor to be considered when determining reasonableness of proposed annexation, Supreme Court has been very critical of annexations which are in effect “tax grabs.” Bunch v. City of Jackson (In re Enlargement & Extension of the Mun. Boundaries), 691 So. 2d 978, 1997 Miss. LEXIS 97 (Miss. 1997).

Chancellor’s findings in annexation case are reviewed to determine whether they are supported by substantial, credible evidence; if there is credible, conflicting evidence, Supreme Court defers to Chancery Court’s findings. Burch v. Town of Mantachie (In re Extension of Corporate Boundaries), 685 So. 2d 724, 1996 Miss. LEXIS 685 (Miss. 1996).

A failure of proof on 6 of the 12 factors for determining reasonableness of an annexation would not mandate reversal as a matter of law of the chancellor’s finding of reasonableness; the chancellor was required to determine reasonableness under the totality of the circumstances, employing the 12 applicable indicia of reasonableness merely as an aid to this determination. Perry v. Guion, 650 So. 2d 490, 1995 Miss. LEXIS 77 (Miss. 1995).

A chancellor’s approval of an annexation was correct where he made a finding of reasonableness regarding each of the 12 factors for determining reasonableness, and there was a showing of benefits to be gained by the residents of the proposed annexation area in exchange for their city taxes. Perry v. Guion, 650 So. 2d 490, 1995 Miss. LEXIS 77 (Miss. 1995).

Chancellor was manifestly wrong in finding entire annexation to be unreasonable, and should have denied annexation of those areas for which annexation would be unreasonable, and allowed annexation of remaining areas, where chancellor relied too heavily on highly speculative evidence when he included an 8.3 million dollar contingent bond liability in computing city’s financial ability to fund annexation. City of Greenville v. Farmers, Inc., 513 So. 2d 932, 1987 Miss. LEXIS 2835 (Miss. 1987).

Evidence was not sufficient to justify chancellor’s finding that city accountant testified that without MP & L plant, annexation was not feasible, where record revealed that city accountant only admitted that loss of MP & L would adversely affect city’s bonding capacity and would significantly affect feasibility of annexation. City of Greenville v. Farmers, Inc., 513 So. 2d 932, 1987 Miss. LEXIS 2835 (Miss. 1987).

Supreme Court has authority, in appropriate case on appeal, to modify chancellor’s order concerning annexation. City of Greenville v. Farmers, Inc., 513 So. 2d 932, 1987 Miss. LEXIS 2835 (Miss. 1987).

As a reviewing court, the Supreme Court is limited to a determination of whether the chancellors finding on the question of reasonableness is manifestly wrong, and, where there is conflicting evidence, it will give great deference to the chancellor’s findings. McElhaney v. Horn Lake, 501 So. 2d 401, 1987 Miss. LEXIS 2272 (Miss. 1987).

In an action by a city to annex a utility district, the trial court properly found that the city had failed to prove that the annexation was reasonable where the evidence was sufficient to support the trial court’s findings that the city had no existing need for expansion, that a flood plain was a natural barrier between the city and the area sought to be annexed, and that the area proposed to be annexed had adequate public services. Extension of Boundaries of Horn Lake v. Renfro, 365 So. 2d 623, 1978 Miss. LEXIS 2419 (Miss. 1978).

On an application to obtain the court’s approval of a proposed annexation, the city has the burden of showing it to be reasonable, and if the chancellor’s finding of reasonableness or unreasonableness is supported by substantial evidence, the supreme court will not disturb it. In re Forest, 247 Miss. 340, 153 So. 2d 688, 1963 Miss. LEXIS 306 (Miss. 1963).

Question of reasonableness of enlargement of municipality is a judicial question and determination is a proper exercise of judicial function. In re Extension of Boundaries, 217 Miss. 860, 217 Miss. 876, 65 So. 2d 832, 1953 Miss. LEXIS 503 (Miss. 1953).

10. Time limitations.

It was error for a chancellor to order a city to file a supplemental preclearance request with the United States Attorney General under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.S. § 1973c, because whether and how to initiate or to continue litigation was a matter of discretion for any governmental body, but because, under both Miss. Code Ann. §21-1-33 and Miss. Code Ann. §21-1-21, a chancellor’s decree went into effect 10 days after an appeal was decided, and the city had not requested supersedeas, the city’s notice of appeal did not stay the judgment of the chancery court and prevent the city from being held in contempt. The judgment was not automatically stayed by Miss. Code Ann. §21-1-33. City of Grenada v. Marascalco (In re Contraction, Exclusion & Deannexation of Certain Areas), 876 So. 2d 995, 2004 Miss. LEXIS 804 (Miss. 2004).

11. Under former law.

Where the mayor and aldermen of the city of Louisville by adoption of an ordinance proposing to add new territory to the city of Louisville, adjudicated that the extension was reasonable, the burden was upon the objectors to overturn such adjudication and show the extension to be unreasonable. Ball v. Louisville, 218 Miss. 867, 56 So. 2d 4, 1952 Miss. LEXIS 602 (Miss. 1952).

Testimony that acquisition of new industries would, by furnishing employment to substantial number of workers, increase both population and extent of additional services is relevant and competent to issue of relative advantage and disadvantage upon which issue of reasonableness is to be resolved. Nicholson v. Booneville, 208 Miss. 800, 45 So. 2d 594, 1950 Miss. LEXIS 301 (Miss. 1950).

On the issue of ability of town to furnish improvements, jury may assume that proper municipal assessment will greatly exceed average of assessment of property in new area as shown on state and county assessment rolls prior to its annexation to town. Nicholson v. Booneville, 208 Miss. 800, 45 So. 2d 594, 1950 Miss. LEXIS 301 (Miss. 1950).

One who challenges validity of ordinance of extension of city boundaries has duty of supporting his pleading with preponderating evidence establishing ground of challenge to be true in fact as stated in plea. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

On the issue whether a proposed extension is reasonable or unreasonable, the burden of proof is upon the contestants. Walker v. Waynesboro, 202 Miss. 830, 32 So. 2d 455, 1947 Miss. LEXIS 346 (Miss. 1947).

That some part of such territory is low and marshy and other parts vacant, and that many persons living thereon have not consented to the extension, is not of consequence. Forbes v. Mayor, etc., of Meridian, 86 Miss. 243, 38 So. 676, 1905 Miss. LEXIS 71 (Miss. 1905).

The taxing of property proposed to be taken into municipal limits by an extension thereof is not the taking or damaging of property without due process of law. Forbes v. Mayor, etc., of Meridian, 86 Miss. 243, 38 So. 676, 1905 Miss. LEXIS 71 (Miss. 1905).

An extension of the limits of a municipality is reasonable where it is necessary for the protection of health that the territory in question should be included within the municipal limits. Forbes v. Mayor, etc., of Meridian, 86 Miss. 243, 38 So. 676, 1905 Miss. LEXIS 71 (Miss. 1905).

The fact that property owners would have to pay additional taxes if their property is included in such extension is no reason why the property should not be included where it would derive benefits from the municipality in the way of lower insurance rates, etc. Forbes v. Mayor, etc., of Meridian, 86 Miss. 243, 38 So. 676, 1905 Miss. LEXIS 71 (Miss. 1905).

OPINIONS OF THE ATTORNEY GENERAL

Although Miss. Code Section 21-1-33 provides that effective date of annexation ordinance is ten days from final determination of appeal from decree approving ordinance, under federal law annexations are not effective for election or voting purposes until federal preclearance is obtained under Section 5 of Voting Rights Act of 1965. Hewes, Mar. 5, 1993, A.G. Op. #92-0969.

Municipality is obligated under Miss. Code Section 21-1-33 to spend public funds to provide reasonable public and municipal services within reasonable time to citizens in annexed area. Keenum, Mar. 10, 1993, A.G. Op. #93-0121.

An annexation is final and effective for all purposes 10 days after issuance of the decree by the chancery court, or 10 days after final determination of an appeal, except that citizens residing in an annexed area may not participate in future municipal elections as electors or as candidates, unless and until pre-clearance by the U.S. Department of Justice is obtained pursuant to Section 5 of the Voting Rights Act. Mallette, March 2, 2007, A.G. Op. #07-00096, 2007 Miss. AG LEXIS 72, modifying Rafferty, November 27, 2006, A.G. Op. #06-00598, 2006 Miss. AG LEXIS 428, as to the effective date of annexation for all purposes other than voting and candidacy.

RESEARCH REFERENCES

ALR.

Right of one governmental subdivision to challenge annexation proceedings by another such subdivision. 17 A.L.R.5th 195.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 51, 52 et seq.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 14 (annexation, petition to confirm).

2 Am. Jur. Proof of Facts, Boundaries, Proof No. 2 (location of boundaries generally).

7 Am. Jur. Proof of Facts, Maps, etc., Proof No. 1 (foundation for admission of map or diagram).

Law Reviews.

1978 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 11, March 1979.

1989 Mississippi Supreme Court Review: Annexation. 59 Miss. L. J. 930, Winter, 1989.

Cross References —

Imposition of costs pursuant to the Mississippi Rules of Civil Procedure, see Miss. R. Civ. P. 54.

JUDICIAL DECISIONS

1. In general.

Upon affirmance, the cost in an annexation appeal would be taxed against the appellants. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

Cross References —

Right of appeal to circuit court in all matters except bond issuance or sale, see §11-51-75.

Appeal with regard to the creation of a municipal corporation, see §21-1-21.

Applicability of Mississippi Rules of Civil Procedure to proceedings relative to creation or alteration of municipal boundaries, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2. Time limitations.

3.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

The statutory 10-day period for appeal from a chancery decree deannexing territory from a city was not a true statute of limitations in the sense that such a statute fixes the interval between the time of accrual of a right and the time allowed for commencement of an action to enforce the right. As the brevity of the period in itself showed, it was instead merely a procedural limitation on the parties’ use of appellate process in a municipal deannexation proceeding, and it was not a limitation on the right to bring a civil rights action in federal court based on an alleged abuse of the statutory deannexation procedure. Franklin v. Marks, 439 F.2d 665, 1971 U.S. App. LEXIS 11585 (5th Cir. Miss. 1971).

The filing of a $500 cost bond by a party appealing to the Supreme Court of Mississippi from a decree confirming a municipal ordinance extending the city limits does not operate as a supersedeas where, following an unsuccessful appeal to that court, the appellant filed a petition for certiorari in the Supreme Court of the United States. Bridges v. Biloxi, 253 Miss. 812, 178 So. 2d 683, 180 So. 2d 154, 180 So. 2d 641, 1965 Miss. LEXIS 1054, 1965 Miss. LEXIS 1055, 1965 Miss. LEXIS 1056 (Miss. 1965).

Since the statutes give an interested party a right to appeal in annexation proceeding upon furnishing a good bond in the sum of $500, and to have such bond operate as a supersedeas, the chancellor had no authority to require bonds in excess of that amount, notwithstanding that such bonds were insufficient to assure the payment of accrued costs on appeal. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

Since the two $500 bonds were sufficient to perfect an appeal in an annexation proceeding, the $5,000 bond, erroneously required by the chancellor, would be treated as surplusage and discharged, thereby releasing the sureties thereon. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

In a proceeding to approve an ordinance extending the corporate limits of a city, where the final decree was dated Nov. 12, 1955, in vacation, and it was not entered upon the minutes of the court until November 16, 1955, and it was not shown upon the docket of the court until November 16, 1955, an appeal bond which was filed on November 25, 1955, was within the ten days provided for appeal by the statute. Spears v. Oxford, 227 Miss. 801, 87 So. 2d 61, 1956 Miss. LEXIS 755 (Miss. 1956).

2. Time limitations.

It was error for a chancellor to order a city to file a supplemental preclearance request with the United States Attorney General under § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.S. § 1973c, because whether and how to initiate or to continue litigation was a matter of discretion for any governmental body, but because, under both Miss. Code Ann. §21-1-33 and Miss. Code Ann. §21-1-21, a chancellor’s decree went into effect 10 days after an appeal was decided, and the city had not requested supersedeas, the city’s notice of appeal did not stay the judgment of the chancery court and prevent the city from being held in contempt. The judgment was not automatically stayed by Miss. Code Ann. §21-1-33. City of Grenada v. Marascalco (In re Contraction, Exclusion & Deannexation of Certain Areas), 876 So. 2d 995, 2004 Miss. LEXIS 804 (Miss. 2004).

3.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Code 1942, § 1163 had no application in an appeal in an annexation proceeding. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

Where the board of mayor and aldermen of city of Louisville, by passage of the ordinance proposing to add the new territory, adjudicated that the extension was reasonable and also where the chancellor held that the objectors failed to show the extension to be unreasonable, the Supreme Court will not overrule this action without clear ground or reason of justification. Ball v. Louisville, 218 Miss. 867, 56 So. 2d 4, 1952 Miss. LEXIS 602 (Miss. 1952).

On appeal from ordinance enlarging geographical area of town from 800 acres to 1237 acres, issue of reasonableness of ordinance is for jury and its verdict upholding ordinance is not without substantial support where record on behalf of objectors relates chiefly to disinclination of citizens in added area to be burdened with additional taxes and their doubts that city will furnish benefits commensurate with burdens placed upon them, and testimony on behalf of city shows purpose and ability to furnish new area with street improvements, water and sewerage facilities, police and fire protection, and garbage disposal. Nicholson v. Booneville, 208 Miss. 800, 45 So. 2d 594, 1950 Miss. LEXIS 301 (Miss. 1950).

On appeal from ordinance enlarging geographical area of town, jury has right to take into account practical necessity of extending new improvements gradually and probability that existing bond issues will be reduced during reasonable period of extension so that ultimately entire new area will be supplied reasonably. Nicholson v. Booneville, 208 Miss. 800, 45 So. 2d 594, 1950 Miss. LEXIS 301 (Miss. 1950).

On appeal from ordinance enlarging geographical area of town, light and water utilities furnished by private corporations but in conjunction with aid rendered by town and under its supervision, can be credited to town as showing ability of town to furnish these improvements. Nicholson v. Booneville, 208 Miss. 800, 45 So. 2d 594, 1950 Miss. LEXIS 301 (Miss. 1950).

Purpose and intent of this section is for speedy disposition of appeal involving municipal expansion and Code 1942, § 1519, providing that no issue of fact shall be tried before next succeeding term after issue is made up unless defendant has been personally served with process for thirty days before return-date, has no application to appeals under this section. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

Proposed extension that is prohibited by this section for one year is extension by ordinance that is adjudged unreasonable, and this section does not prohibit within year new extension ordinance that is in no way similar to that found unreasonable; and city may include in subsequent ordinance any part of lands included in ordinance previously declared invalid. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

On appeal to circuit court from ordinance extending municipal boundaries, reasonableness of ordinance is issue to be determined and need of streets, if any, is only one circumstance among many to be considered by jury in arriving at conclusion upon whether or not ordinance is reasonable. Neely v. Charleston, 204 Miss. 360, 37 So. 2d 495, 1948 Miss. LEXIS 374 (Miss. 1948).

The necessary and inevitable increase in taxation on the property in the new area within extended municipal limits is not a proper subject of testimony on appeal where the actual or probable city assessments are not shown so that it can be determined whether the increase would be so disproportionate to the compensating benefits as to become unreasonable. Kennedy v. Kosciusko, 203 Miss. 4, 33 So. 2d 285, 1948 Miss. LEXIS 222 (Miss. 1948).

Tender by the contestants of the issue of reasonableness vel non is sufficiently met by a general issue plea. Walker v. Waynesboro, 202 Miss. 830, 32 So. 2d 455, 1947 Miss. LEXIS 346 (Miss. 1947).

Extension of the limits of a municipality was sustained where the testimony of contestants disclosed chiefly their personal reactions and their opinions that no substantial benefits would probably accrue to them, whereas the entire record sufficiently revealed a purpose toward and a probability of benefit both to the citizens of the old and of the new areas. Walker v. Waynesboro, 202 Miss. 830, 32 So. 2d 455, 1947 Miss. LEXIS 346 (Miss. 1947).

On appeal from ordinance, court could not consider question of loss of power to tax, on part of school district, territory included in municipality under ordinance. Pass Christian v. Long Beach, 157 Miss. 778, 128 So. 554, 1930 Miss. LEXIS 321 (Miss. 1930).

Proof of publication held not requisite part of record on appeal from ordinance extending city limits. Pass Christian v. Long Beach, 157 Miss. 778, 128 So. 554, 1930 Miss. LEXIS 321 (Miss. 1930).

Taxpayer failing to appeal from ordinance of annexation was estopped to question validity of ordinance in collateral proceeding. City of Greenwood v. Humphreys, 157 Miss. 879, 127 So. 694, 1930 Miss. LEXIS 268 (Miss. 1930).

An ordinance extending the territory of a town cannot be collaterally attacked by one who has waived his rights of appeal. Sanders v. Starkville, 128 Miss. 742, 91 So. 422, 1922 Miss. LEXIS 162 (Miss. 1922).

Where on appeal there was no conflict in the evidence which conclusively showed the reasonableness of the ordinance, a peremptory instruction for the city was correct. Kraetzer Cured Lumber Co. v. Moorhead, 118 Miss. 736, 80 So. 4, 1918 Miss. LEXIS 128 (Miss. 1918); Gregory v. Amory, 112 Miss. 604, 73 So. 614, 1916 Miss. LEXIS 152 (Miss. 1916).

A municipality operating under a commission form of government ordering a referendum is held not to supersede an appeal from such ordinance. Gregory v. Amory, 112 Miss. 604, 73 So. 614, 1916 Miss. LEXIS 152 (Miss. 1916).

The question of the return of revenue which the municipality may receive from the territory proposed to be annexed is not a criterion by which to determine the reasonableness or unreasonableness of the ordinance. Forbes v. Mayor, etc., of Meridian, 86 Miss. 243, 38 So. 676, 1905 Miss. LEXIS 71 (Miss. 1905).

Appeal under § 3380, Code of 1942 is tried de novo. Yerger v. Greenwood, 77 Miss. 378, 27 So. 620, 1899 Miss. LEXIS 89 (Miss. 1899).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 70, 83, 84.

Law Reviews.

1978 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 11, March 1979.

Cross References —

Appeal, see §21-1-37.

Filing of decree enlarging or contracting boundaries of municipality, see §21-1-47.

Cross References —

Filing of map or plat showing altered boundaries, see §21-1-47.

Cross References —

Judicial definitions and illustrations generally, see §§1-3-1 et seq.

Classification of municipalities, see §21-1-1.

Naming or renaming municipal corporations, see §§21-1-5,21-1-7.

Extension or contraction of corporate boundaries, see §§21-1-27 et seq.

Applicability of Mississippi Rules of Civil Procedure to proceedings relative to creation or alteration of municipal boundaries, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

Municipal ordinance extending limits to include territory of existing town without its consent is subject to collateral attack. City of Pascagoula v. Krebs, 151 Miss. 676, 118 So. 286, 1928 Miss. LEXIS 321 (Miss. 1928).

A former statutory provision (§ 3312, Code of 1906, as amended by Laws of 1908, Ch. 187), gave no authority for one municipality to absorb another municipality, but merely provided a time when, if the absorption should occur, the absorbed municipality should stand abolished, and Code 1906, § 3301 (Code 1942, § 3376) and the other cognate sections of the chapter on municipalities provided alone for power in a municipality to incorporate, by extension of its limits, adjacent unincorporated territory. Gandsi v. Seminary, 95 Miss. 315, 48 So. 908, 1909 Miss. LEXIS 248 (Miss. 1909).

RESEARCH REFERENCES

ALR.

Validity of municipal bond issue as against owners of property annexation of which to municipality became effective after date of election at which issue was approved by voters. 10 A.L.R.2d 559.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 84, 85.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 31 (petition for consolidation of cities).

CJS.

62 C.J.S., Municipal Corporations §§ 87-99.

JUDICIAL DECISIONS

1. In general.

2. Review.

1. In general.

Although Mississippi Code §21-1-45 contains no dispositive definition for the term “qualified electors,” it would be inappropriate to adopt the definition of that term found in Mississippi Code §23-5-85 [Repealed], and to employ the entire panoply of rules applicable to public elections to a proceeding to obtain annexation of unincorporated area by an adjacent existing municipality. Schmidt v. City of Jackson, 494 So. 2d 348 (Miss. 1986).

The legislature has prescribed means by which persons residing in an unincorporated area may obtain annexation to a municipality adjacent to the area in which they live. Schmidt v. City of Jackson, 494 So. 2d 348 (Miss. 1986).

Persons living within an incorporated territory at the time of petitioning, as well as persons living within an unincorporated area, may upon a proper showing enjoy the remedy afforded by Mississippi Code §21-1-45. Schmidt v. City of Jackson, 494 So. 2d 348 (Miss. 1986).

Citizens living in an unincorporated area which is a territory contiguous to and adjoining an existing municipality may proceed under Mississippi Code §§21-1-45 and21-1-47 to obtain annexation by the municipality. Schmidt v. City of Jackson, 494 So. 2d 348 (Miss. 1986).

The allegations of a complaint filed by residents of an unincorporated area seeking to obtain annexation by an adjacent existing municipality were sufficient to confer upon the chancery court authority to proceed in the matter. Schmidt v. City of Jackson, 494 So. 2d 348 (Miss. 1986).

For the purposes of an action to obtain annexation of an unincorporated area by an adjacent existing municipality, the question of whether the two-thirds requirement has been met must be determined by ascertaining the number of persons living in the area to be annexed who, on the date the complaint was filed, were registered voters in the area, and then determining whether two-thirds of that number have signed the complaint. Schmidt v. City of Jackson, 494 So. 2d 348 (Miss. 1986).

Where town residents filed a cross-petition seeking to be excluded from the existing corporate limits in a proceeding for confirmation of an ordinance extending the city boundaries, the cross-petition was properly dismissed; a proceeding by inhabitants of any territory which is part of an existing municipality to be excluded therefrom is entirely separate, apart from, and not germane to the proceeding of a municipality to enlarge or contract its boundaries. Ferguson v. Vaiden, 242 So. 2d 124, 1970 Miss. LEXIS 1372 (Miss. 1970).

2. Review.

Because petitioner was the only qualified elector residing within the proposed inclusion area at the time petitions for inclusion were filed, the chancellor was correct in finding the two-thirds requirement for qualified electors of any area adjacent to an existing municipality to file a petition for inclusion, as set out in Miss. Code Ann. §21-1-45, was met. Farrell v. Babb (In re Inclusion into Oxford), 142 So.3d 401, 2014 Miss. LEXIS 323 (Miss. 2014).

Where, in a deannexation proceeding, a city relied on only one of the 12 indicia of reasonableness applicable to either annexation or deannexation under Miss. Code Ann. §§21-1-45,21-1-47, and objectors presented evidence on all 12, under its limited standard of review of such proceedings, the Supreme Court of Mississippi determined that the chancellor’s finding on deannexation was correct. City of Grenada v. Marascalco (In re Contraction, Exclusion & Deannexation of Certain Areas), 876 So. 2d 995, 2004 Miss. LEXIS 804 (Miss. 2004).

RESEARCH REFERENCES

ALR.

Right of one governmental subdivision to challenge annexation proceedings by another such subdivision. 17 A.L.R.5th 195.

Refusal of municipality to annex impoverished area as violative of federal law. 22 A.L.R. Fed. 272.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 86-90.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 15, 16 (ordinance extending city limits invalid, petition).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 18 (notice of hearing on petition to exclude property from annexation).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Form 45.1 (Petition or application – To disconnect property from municipality – Multiple tracts and owners).

CJS.

62 C.J.S., Municipal Corporations § 100-103.

Cross References —

Applicability of Mississippi Rules of Civil Procedure to proceedings relative to creation or alteration of municipal boundaries, see Miss. R. Civ. P. 81.

JUDICIAL DECISIONS

1. In general.

2. Review.

1. In general.

The legislature has prescribed means by which persons residing in an unincorporated area may obtain annexation to a municipality adjacent to the area in which they live. Schmidt v. City of Jackson, 494 So. 2d 348 (Miss. 1986).

Citizens living in an unincorporated area which is a territory contiguous to and adjoining an existing municipality may proceed under Mississippi Code §§21-1-45 and21-1-47 to obtain annexation by the municipality. Schmidt v. City of Jackson, 494 So. 2d 348 (Miss. 1986).

2. Review.

Where, in a deannexation proceeding, a City relied on only one of the 12 indicia of reasonableness applicable to either annexation or deannexation under Miss. Code Ann. §§21-1-45,21-1-47, and objectors presented evidence on all 12, under its limited standard of review of such proceedings, the Supreme Court of Mississippi determined that the chancellor’s finding on deannexation was correct. City of Grenada v. Marascalco (In re Contraction, Exclusion & Deannexation of Certain Areas), 876 So. 2d 995, 2004 Miss. LEXIS 804 (Miss. 2004).

RESEARCH REFERENCES

ALR.

Right of one governmental subdivision to challenge annexation proceedings by another such subdivision. 17 A.L.R.5th 195.

Am. Jur.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, Counties, and Other Political Subdivisions, Form 45.1 (Petition or application – To disconnect property from municipality – Multiple tracts and owners).

Cross References —

Definition of “municipality” for purpose of ad valorem taxes and homestead exemptions, see §27-33-11.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 93-95.

CJS.

62 C.J.S., Municipal Corporations §§ 131-138.

Cross References —

Definition of “municipality” for purpose of ad valorem taxes and homestead exemptions, see §27-33-11.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 95.

CJS.

62 C.J.S., Municipal Corporations §§ 134-136.

Cross References —

Judicial definitions and illustrations generally, see §§1-3-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Guardian ad litem is not one of the positions specifically listed in this section and therefore does not fall under the nepotism prohibitions. Webster, Dec. 12, 2002, A.G. Op. #02-0710.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 94, 95.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 41 (petition for disincorporation of city or town).

CJS.

62 C.J.S., Municipal Corporations §§ 132, 133.

Cross References —

Removal and return of chancery court’s files and documents, see §9-5-165.

Cross References —

Removal and return of chancery court’s files and documents, see §9-5-165.

Chancery court clerk keeping general docket, see §9-5-201.

Tax liability in cases of creation, enlargement of exclusion of territory, see §§21-1-61,21-1-63.

RESEARCH REFERENCES

Am. Jur.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 42 (municipal disincorporation, appointment of receiver).

Amendment Notes —

The 2000 amendment designated the previously undesignated provisions as present (1) and added (2).

The 2007 amendment inserted “or Section 57-75-5(f)(xxi)” following “Section 57-75-5(f)(iv)1” in the first sentence of (2).

The 2013 amendment inserted “or Section 57-75-5(f)(xxviii)” in the first sentence of (2).

The 2016 1st Extraordinary Session amendment inserted “or Section 57-75-5(f)(xxix)” in the first sentence of (2), and made a related stylistic change.

Cross References —

Powers and duties of the board of trustees of state institutions of higher learning, see §37-101-15.

JUDICIAL DECISIONS

1. In general.

The chancellor properly refused to rule on the constitutionality of §21-1-59, where the portions of the statute alleged to be unconstitutional were those portions pertaining to a county which was not part of the present lawsuit. Western Line Consol. School Dist. v. Greenville Municipal Separate School Dist., 433 So. 2d 954, 1983 Miss. LEXIS 2690 (Miss. 1983).

This requirement does not apply to a state armory or to land on which transportation vehicles for county schools are stored and repaired. In re Hazlehurst, 247 Miss. 527, 153 So. 2d 809, 1963 Miss. LEXIS 320 (Miss. 1963).

When there are no buildings or grounds of any state institution in area proposed to be added under extension ordinance of city, there is no reason why ordinance of city should contain adjudication that consent of state institutions within city had been obtained through their governing authorities. Vail v. City of Jackson, 206 Miss. 299, 40 So. 2d 151, 1949 Miss. LEXIS 263 (Miss. 1949).

RESEARCH REFERENCES

ALR.

Applicability of zoning regulations to governmental projects or activities. 53 A.L.R.5th 1.

Cross References —

Tax liability in case of contraction of territory, see §21-1-63.

Assessor’s recapitulation for added territory being kept separate from municipality generally, see §21-33-17.

Assessment of property in added territory, see §21-33-21.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

A city was without authority to exempt from taxation for a term of years a corporation, already established, in consideration of the corporation’s agreement not to resist the extension of the boundaries of the city so as to include the property of the corporation. Robertson v. Southern Paper Co., 119 Miss. 113, 80 So. 384, 1918 Miss. LEXIS 9 (Miss. 1918).

Under code provisions authorizing a municipality to levy taxes on the property within the corporate limits, “taxable according to the laws of the state,” and providing that all taxable property acquired before the first day of February shall be assessed for the current year, etc., a city which, by ordinance adopted in April of a year, enlarges its corporate limits and thereby takes into the limits real estate, has no power to levy taxes on such real estate for the current year. City of Gulfport v. Todd, 92 Miss. 428, 46 So. 541, 1908 Miss. LEXIS 239 (Miss. 1908).

OPINIONS OF THE ATTORNEY GENERAL

An annexation is final and effective for all purposes 10 days after issuance of the decree by the chancery court, or 10 days after final determination of an appeal, except that citizens residing in an annexed area may not participate in future municipal elections as electors or as candidates, unless and until pre-clearance by the U.S. Department of Justice is obtained pursuant to Section 5 of the Voting Rights Act. Mallette, March 2, 2007, A.G. Op. #07-00096, 2007 Miss. AG LEXIS 72, modifying Rafferty, November 27, 2006, A.G. Op. #06-00598, 2006 Miss. AG LEXIS 428, as to the effective date of annexation for all purposes other than voting and candidacy.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 96-100.

CJS.

62 C.J.S., Municipal Corporations § 108.

Cross References —

Tax liability in cases of creation or enlargement of territory, see §21-1-61.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

The city of Vicksburg extended its boundaries in ignorance of the fact that the new boundaries included the town of “Walters” and its ordinance was therefore void and Vicksburg did not thereby become liable for the debts of said town. Fabric Fire Hose Co. v. Vicksburg, 117 Miss. 89, 77 So. 911, 1918 Miss. LEXIS 152 (Miss. 1918).

After a dissolution of the town of “Walters” the city of Vicksburg made a valid extension to include the same territory constituting at one time the town of Walters, but this did not make Vicksburg liable for the debt of Walters. Fabric Fire Hose Co. v. Vicksburg, 117 Miss. 89, 77 So. 911, 1918 Miss. LEXIS 152 (Miss. 1918).

Nor does the city of Vicksburg have authority to tax the property formerly in the town of Walters to pay debts of the latter. Fabric Fire Hose Co. v. Vicksburg, 117 Miss. 89, 77 So. 911, 1918 Miss. LEXIS 152 (Miss. 1918).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 96-100.

CJS.

62 C.J.S., Municipal Corporations § 99.

Cross References —

Municipalities operating under various forms of government, see §§21-3-1 et seq. (code charter);21-5-1 et seq. (commission form);21-7-1 et seq. (council form);21-8-1 et seq. (mayor-council form); and21-9-1 et seq. (council-manager form).

Editor’s Notes —

Former §21-1-67 authorized an alternative procedure for the incorporation of unincorporated territory having a population of 15,000 or more.

Former §21-1-69 related to the preparation and filing of a petition for incorporation with the board of supervisors.

Former §21-1-71 provided for the publication of notice of the proposed incorporation.

Former §21-1-73 provided for a hearing by the board of supervisors on the petition for incorporation, the adoption of a resolution calling for an election on the question, the form of ballots to be used, and required the filing of a map or plat of any municipal corporation so created.

Former §21-1-75 related to the percentage of votes required to approve the proposed incorporation, when existence of the corporation commenced, the adoption of a resolution by the board of supervisors calling for the election of municipal officers, and notice and procedure of the election.

Former §21-1-77 provided for the election commissioner to certify to the secretary of state the creation of the municipal corporation.

Former §21-1-79 related to the issuance of official commissions to the newly elected municipal officers, their first meeting, oaths of office, official bonds, and terms.

Cross References —

Classification of municipalities, see §21-1-1.

Designation of municipalities, see §21-1-9.

For comparable provisions under various other forms of government, see §§21-5-1 et seq. (commission);21-7-1 et seq. (council);21-8-1 et seq. (mayor-council); and21-9-1 et seq. (council-manager).

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

Where the city charter of the city gives the board of mayor and aldermen authority to prohibit the keeping of pool and billiard rooms within the city, they may prohibit the same. City of Corinth v. Crittenden, 94 Miss. 41, 47 So. 525, 1908 Miss. LEXIS 13 (Miss. 1908).

Miss. Const. 1890, §§ 80, 88, providing for general laws to create and govern municipal corporations are prospective in operation and do not repeal existing municipal charters. Therefore, section recognizing the continued existence of such charters is not unconstitutional. Lum v. Mayor, etc., of Vicksburg, 72 Miss. 590, 72 Miss. 950, 18 So. 476, 1895 Miss. LEXIS 62 (Miss. 1895).

Its corporate authorities having formally accepted the provisions of the Code Chapter, the city of Jackson became bound thereby, and subsequent action of the authorities purporting to rescind the resolution of acceptance, though within 12 months, was ineffectual. State ex rel. Shields v. Govan, 70 Miss. 535, 12 So. 959, 1893 Miss. LEXIS 46 (Miss. 1893).

Under this section declaring that after the chapter became operative, every municipality shall be governed by its provisions but that any municipality might within 12 months, “elect not to come under the provisions hereof,” power was given municipalities affirmatively to accept the provisions of the chapter and be governed thereby. Ex parte Shlomberg, 70 Miss. 47, 11 So. 721, 1892 Miss. LEXIS 73 (Miss. 1892).

OPINIONS OF THE ATTORNEY GENERAL

In a municipality operating under a Mayor-Board of Alderman form of government governed by Sections 21-3-1 et seq., there is no prohibition against increasing the salary of the elected officials during a term of office. Beckett, Jan. 31, 2003, A.G. Op. #03-0038.

Under a mayor/alderman form of municipal government the day-to-day operations of the municipal police department lies with the duly appointed or elected chief of police. Redmond, Aug. 26, 2005, A.G. Op. 05-0447.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 27.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 64, 65 (allegations of capacity of plaintiff as taxpayer, and of exercise of official functions by municipal officers).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 131 et seq. (claims, notice and presentation).

CJS.

62 C.J.S., Municipal Corporations §§ 28, 29.

Joint Legislative Committee Note —

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected a typographical error in this section. The word “such” was deleted so that “...appointed by the such governing authorities” would read as “... appointed by the governing authorities” in the fourth sentence. The Joint Committee ratified the correction at its August 5, 2016, meeting.

Amendment Notes —

The 2016 amendment, effective July 1, 2017, substituted “collector and the tax assessor” for “collector, the tax assessor, and the city or town clerk” at the end of the first sentence; added the second sentence; and made a minor stylistic change.

Cross References —

Officers appointed by governing authorities, see §21-3-5.

Surety bond required for certain appointed municipal officers, see §21-15-38.

Oaths of office, see §§25-1-9,25-1-11.

Civil liability of officers failing to perform duty, see §25-1-45.

Nepotism being forbidden, see §25-1-53.

Penalty for municipal officers failing to perform their duty, see §97-11-37.

JUDICIAL DECISIONS

1. In general.

2.-5. [Reserved for future use.]

6. Under former law.

1. In general.

Mayor of a city was entitled to terminate a former municipal judge, with or without cause at any time, because the judge, who was an appointed municipal judge, was an at-will employee. Moreover, an employee handbook which stated in its introduction that nothing in the handbook implied or assured employment or created an employment contract did not alter the at-will status of the employment relationship. Jones v. City of Hattiesburg, 228 So.3d 816, 2017 Miss. App. LEXIS 14 (Miss. Ct. App.), cert. denied, 229 So.3d 118, 2017 Miss. LEXIS 372 (Miss. 2017).

2.-5. [Reserved for future use.]

6. Under former law.

This section is not inconsistent but provides that in towns and villages, the marshal shall be tax collector, and that in cities, the marshal or the clerk may be tax collector if the mayor and board of aldermen so order. Coker v. Wilkinson, 142 Miss. 1, 106 So. 886, 1926 Miss. LEXIS 52 (Miss. 1926).

A marshal who is ex-officio tax collector is required to take separate oath of office and give a separate bond for each office. Coker v. Wilkinson, 142 Miss. 1, 106 So. 886, 1926 Miss. LEXIS 52 (Miss. 1926).

Municipal officers have the right to hold office until the election and qualification of their successors. State ex rel. Booze v. Cresswell, 117 Miss. 795, 78 So. 770, 1918 Miss. LEXIS 223 (Miss. 1918).

The office of assessor of a municipality is within the provisions of Const. 1890, § 266, providing with certain exceptions, that no person holding any office of honor or profit in his own right or as deputy under any foreign government or that of the United States, shall hold any office of honor or profit under the laws of this state. State ex rel. Kiersky v. Kelly, 80 Miss. 803, 31 So. 901, 1902 Miss. LEXIS 268 (Miss. 1902).

The mayor of a municipality is not a member of the board of aldermen and under the provisions of this section has no right to vote unless there be a tie in the votes of the aldermen. Bousquet v. State, 78 Miss. 478, 29 So. 399, 1900 Miss. LEXIS 150 (Miss. 1900).

It is unnecessary for a relator to have taken oath and executed bond or have offered to do so on or before the beginning of the term in order to maintain by quo warranto a contest for a municipal office with one usurping the same. State ex rel. Bourgeois v. Laizer, 77 Miss. 146, 25 So. 153, 1899 Miss. LEXIS 44 (Miss. 1899).

OPINIONS OF THE ATTORNEY GENERAL

Board of aldermen appoints required and necessary officers and employees subject to mayor’s veto; these appointments are non-delegable and must be made by board as whole, or quorum thereof, in regular meeting or special meeting lawfully called for that purpose. Cates, August 8, 1990, A.G. Op. #90-0585.

No cases have held that Miss. Code Section 21-3-3 is unconstitutional, and statute is therefore valid and enforceable. Hilbun, May 12, 1993, A.G. Op. #93-0325.

Miss. Code Section 21-3-3 provides that appointed police chief serves at the will and pleasure of governing authorities. Hilbun, May 12, 1993, A.G. Op. #93-0325.

If city’s civil service commission, by rule or regulation, provided procedure for covered positions to be changed to non-covered positions and that procedure was followed in enactment of 1985 amending ordinance in question, position of police chief would be an “at will” position. Perkins, March 17, 1994, A.G. Op. #94-0117.

Where a municipal judge is appointed pursuant to Section 21-23-5 at the discretion of the governing authorities, he serves at the pleasure of such governing authorities and may be discharged at any time, with or without cause. Logan, March 6, 1998, A.G. Op. #98-0079.

A member of a board of aldermen may serve without compensation. Null, January 22, 1999, A.G. Op. #99-0019.

The governing authorities of a code charter municipality may hire an individual to serve as a police chaplain and perform specific duties, such as supporting the police department, providing ministry and counsel to criminal defendants in municipal court, and providing assistance to officers in notifying next of kin when motor vehicle accidents result in death. Snyder, March 5, 1999, A.G. Op. #99-0098.

A person cannot be a qualified elector of a municipality if he or she resides outside the corporate limits. Lowe, Nov. 3, 2000, A.G. Op. #2000-0643.

A town is required to have a town marshal. Berry, Oct. 19, 2001, A.G. Op. #01-0639.

It is discretionary with the governing authorities whether or not to require an appointed clerk to reside within the corporate limits of the municipality in order to hold the position, and this also applies to an appointed police chief. Collins, Nov. 9, 2001, A.G. Op. #01-0682.

The governing authorities of a code charter municipality have the authority to make the office of police chief appointive by ordinance. Littleton, III, Nov. 30, 2001, A.G. Op. #01-0706.

A mayor may suspend employees with pay, but only the board of aldermen by official action in the minutes may suspend employees without pay. Gerhart, Mar. 8, 2002, A.G. Op. #02-0056.

Police chiefs in code charter municipalities are elected, and the governing authorities have the authority to provide by ordinance that the police chief will be appointed; the board of aldermen has the statutory duty to hire and fire police officers and may review the personnel files of police officers in code charter municipalities, whether the police chief is elected or appointed. Davis, July 19, 2002, A.G. Op. #02-0396.

The separation of powers doctrine prohibits a person from serving simultaneously as a justice court judge and as a city clerk. Byrd, Mar. 28, 2003, A.G. Op. #03-0119.

The next succeeding Board of Aldermen following a regular general election would have the full authority to hire an individual of their choosing as city clerk. There is no general prohibition against hiring the individual who previously held that position by virtue of being elected. Carter, July 30, 2003, A.G. Op. 03-0400.

There are no statutory qualifications to hold the position of appointed municipal police chief. Bankston, Aug. 27, 2004, A.G. Op. 04-0427.

All code charter municipalities with the mayor-aldermen form of government are required to have a chief of police or marshall. Davis, Oct. 29, 2004, A.G. Op. 04-0522.

Governing authorities of a municipality may not enter into an employment contract for a specified period of time. Rule, Apr. 8, 2005, A.G. Op. 05-0156.

Pursuant to Miss. Code Ann. §21-3-3, the Chief of Police is an elected position unless a municipality makes it an appointive position. An elected Chief of Police must be a qualified elector of the municipality and is therefore required by statute to reside within the corporate limits. A municipality that has made the Chief of Police an appointive position has the discretion to require or not require the Chief of Police to reside within the corporate limits. Noble, February 9, 2007, A.G. Op. #07-00043, 2007 Miss. AG LEXIS 16.

There is no authority for municipal governing authorities to remove or suspend an elected police chief based on an indictment. A municipal governing authority may make the police chief or other municipal officers appointive, rather than elective, by adopting an ordnance, not within 90 days of an election, that will become effective when the current officer’s term expires. If an elected Chief of Police resigns or is disqualified from his position and the remainder of the term is over 6 months, the City must hold a special election to fill the vacancy pursuant to Miss. Code Ann. §23-15-857. Elliott, March 23, 2007, A.G. Op. #07-00137, 2007 Miss. AG LEXIS 116.

The Chief of Police must be included in the civil service system of the city of Ocean Springs because the more specific provisions of Miss. Code Ann. §21-31-13, concerning civil service systems in a handful of described municipalities, control over the more general provisions of Miss. Code Ann. §21-3-3, which applies to all code charter municipalities in Mississippi. Edwards, March 30, 2007, A.G. Op. #07-00152, 2007 Miss. AG LEXIS 134.

Authority to hire, fire, set compensation, and define duties of municipal employees rests solely with the board of aldermen, subject to mayoral veto power. Whether a part-time police chief is sufficient to satisfy the municipality’s statutory duty to provide police protection is a factual determination to be made by the governing authority. If a municipality does not have a police chief, the board of aldermen must appoint one. An untrained part-time police officer is a law enforcement trainee who must be supervised by a certified officer and has two years from hiring to become certified. McLain, March 2, 2007, A.G. Op. #07-00069, 2007 Miss. AG LEXIS 82.

Authority to hire and fire municipal employees rests solely with the Board of Aldermen, subject to mayoral veto power. The mayor may not instruct employees to disregard the official actions of the Board, and may not hire or fire municipal employees. A Board of Aldermen may adopt uniformly applied work schedule policies providing for overtime pay and such pay may only be made when there is a policy authorizing it. Reynolds, March 30, 2007, A.G. Op. #07-00155, 2007 Miss. AG LEXIS 68.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of regulation regarding outside employment of governmental employees or officers. 94 A.L.R.3d 1230.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 227 et seq.

CJS.

62 C.J.S., Municipal Corporations §§ 403, 407 et seq.

Amendment Notes —

The 2009 amendment substituted “Fifty Thousand Dollars ($50,000.00)” for “Ten Thousand Dollars ($10,000.00)” in the next-to-last sentence.

The 2018 amendment added the last sentence.

Cross References —

Surety bond required for certain appointed municipal officers, see §21-15-38.

Oaths of office, see §§25-1-9,25-1-11.

Civil liability of officers failing to perform duty, see §25-1-45.

Nepotism being forbidden, see §25-1-53.

Penalty for municipal officers failing to perform their duty, see §97-11-37.

JUDICIAL DECISIONS

1. In general.

2. Discharge of officers.

1. In general.

Grant of defendants’ summary judgment in an action for, inter alia, wrongful termination/suspension and intentional infliction of emotional distress by an individual was affirmed, as the individual was an at-will employee under Miss. Code Ann. §21-3-5, the employee manual did not create an exception to his at-will employment, and his termination was not so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency. Starks v. City of Fayette, 911 So. 2d 1030, 2005 Miss. App. LEXIS 668 (Miss. Ct. App. 2005).

In civil rights action filed by plaintiff as a class action on behalf of all municipal employees subjected to summary dismissal and alleging a property interest in continued employment, city was not liable for the summary termination of officer in violation of his due process rights, notwithstanding city ordinance which established certain rules of conduct for police officers and, providing in part, that “any member of the department guilty of violating these rules and regulations will be subject to reprimand, suspension or dismissal”; such ordinance did not give city police employees protected property interest in their employment by limiting right of the city to discharge for violations of such rules and regulations, nor did the rules and regulations dealing with police conduct create a mutually explicit understanding, independent of §21-3-5, which provides that employees of municipalities serve at the pleasure of governing authorities and could be terminated with or without cause. McMillian v. Hazlehurst, 620 F.2d 484, 1980 U.S. App. LEXIS 16145 (5th Cir. Miss. 1980).

The governing authorities of municipalities operating under a code charter have the lawful authority to raise the salaries during their term of office. Alexander v. Edwards, 220 Miss. 699, 71 So. 2d 785, 1954 Miss. LEXIS 485 (Miss. 1954).

If the governing authorities of a municipality operating under code charter have acted in bad faith, or if the salary increase had been an arbitrary or unreasonable one in relation to the resources of the town and duties of the officers, then the court would exercise supervisory power to correct such abuse. Alexander v. Edwards, 220 Miss. 699, 71 So. 2d 785, 1954 Miss. LEXIS 485 (Miss. 1954).

2. Discharge of officers.

Mayor of a city was entitled to terminate a former municipal judge, with or without cause at any time, because the judge, who was an appointed municipal judge, was an at-will employee. Moreover, an employee handbook which stated in its introduction that nothing in the handbook implied or assured employment or created an employment contract did not alter the at-will status of the employment relationship. Jones v. City of Hattiesburg, 228 So.3d 816, 2017 Miss. App. LEXIS 14 (Miss. Ct. App.), cert. denied, 229 So.3d 118, 2017 Miss. LEXIS 372 (Miss. 2017).

Even if the plaintiff had an impeccable work record in the town maintenance department, the board of aldermen had authority to discharge him as he served at the pleasure of the mayor and board of aldermen. Shelton v. Town of Hickory Flat, 724 So. 2d 1075, 1998 Miss. App. LEXIS 1007 (Miss. Ct. App. 1998).

OPINIONS OF THE ATTORNEY GENERAL

Board of aldermen hires and fires subject to mayor’s veto; as chief executive officer of municipality, mayor has superintending control of municipal officers and employees; daily operation of municipal government would be supervised by mayor to insure that proper services are provided. Hardin, May 10, 1990, A.G. Op. #90-0301.

Governing authorities of a municipality may pay laborers a salary or pay them an hourly rate, and they may pay salaried employees and hourly rate employees by the week, by the month or according to any other schedule as they see fit. Pittman, Feb. 14, 1992, A.G. Op. #92-0051.

Miss. Code Section 21-3-5 provides for duties and compensation of appointive municipal officers by Mayor and Board. Edens, May 12, 1993, A.G. Op. #93-0263.

Compensation of municipal clerk of code charter municipality is set by governing authorities pursuant to Miss. Code Section 21-3-5. Edens, May 12, 1993, A.G. Op. #93-0263.

Governing authorities may establish all reasonable policies relative to compensation of mayor and board of aldermen, including any compensation for attendance at recess meetings of board of aldermen. Greer, Jan. 12, 1994, A.G. Op. #93-0786.

If governing authorities decide to add collection of water bills to duties of municipal clerk, they are authorized to do so. Harvey, Jan. 12, 1994, A.G. Op. #93-0871.

Section 21-3-5 states that the mayor and board of aldermen have the authority to appoint employees as may be necessary and to prescribe their duties and fix their compensation. The governing authorities may terminate employees and hire other people for those positions at the same meeting. Taylor, October 11, 1996, A.G. Op. #96-0681.

Section 21-3-5 authorizes the mayor and board of aldermen to appoint a police chief and to fix his or her compensation. While the governing authorities have authority to set the salary of the police chief, they do not have authority to pay the moving expenses of the police chief or other officers or employees. McCreary, November 1, 1996, A.G. Op. #96-0770.

Where a municipality adopts a formal police officer personnel manual pertaining to dismissal procedures, the question whether such officers are still at-will employees of the municipality or have acquired a property interest in their continued employment is a determination to be made by a court of competent jurisdiction. Donald, July 25, 1997, A.G. Op. #97-0416.

Municipal governing authorities must require officers and employees handling public funds to obtain bonds for at least $10,000 each, but there is no statutory requirement that a mayor or aldermen obtain bonds. Hill, Aug. 8, 1997, A.G. Op. #97-0401.

A mayor may not appoint himself or anyone else to be the police chief of a municipality as the board of aldermen has statutory authority pursuant to this section to appoint municipal officers and employees with the specific responsibility of appointing the police chief. Bell-Martin, Nov. 7, 1997, A.G. Op. #97-0703.

It is within the discretion of the governing authorities to appoint persons of their choosing to fill positions they deem necessary to the operation of the municipality. Young, July 17, 1998, A.G. Op. #98-0300.

A member of a board of aldermen may serve without compensation. Null, January 22, 1999, A.G. Op. #99-0019.

The governing authorities of a code charter municipality may hire an individual to serve as a police chaplain and perform specific duties, such as supporting the police department, providing ministry and counsel to criminal defendants in municipal court, and providing assistance to officers in notifying next of kin when motor vehicle accidents result in death. Snyder, March 5, 1999, A.G. Op. #99-0098.

The statutory duty to fix the compensation of all municipal officers and employees may not be delegated to a third party arbitrator; any such delegation could unlawfully obligate the governing authorities to pay salaries that are excessive in relation to the financial resources of the municipality. Perkins, Oct. 20, 2000, A.G. Op. #2000-0603.

Municipal governing authorities may allow an employee who has been suspended without pay for a specific time period to substitute accumulated compensatory time for the time in which he or she would be uncompensated and then to continue working during that time; further, municipal governing authorities may adopt a policy in which the employee must request the substitution and in which the board in its discretion may grant the authority for the substitution in appropriate circumstances. Simpson, Jr., Oct. 27, 2000, A.G. Op. #2000-0628.

The board of aldermen has the authority to appoint a police chief, subject to the veto power of the mayor. Littleton, III, Nov. 30, 2001, A.G. Op. #01-0706.

The board of aldermen of a code charter municipality has the authority to terminate an appointed police chief, subject to the veto power of the mayor. Littleton, III, Nov. 30, 2001, A.G. Op. #01-0706.

The board of aldermen, subject to the veto of the mayor, has the authority to promote and demote employees in the police and fire departments, and the police chief and fire chief may make recommendations to the board on promotions and demotions within their respective departments. Brown, Feb. 1, 2002, A.G. Op. #01-0787.

The governing authorities have the discretion to prescribe the duties of police officers, including the duties of assisting the fire department or driving an ambulance if they are needed in those capacities, and such officers may not be paid extra compensation for performing such duties. Brown, Feb. 1, 2002, A.G. Op. #01-0787.

If the board of aldermen determines and establishes by lawful order that the duties of the head of maintenance require access to all municipal buildings, and the mayor does not veto that order, it is the duty of the mayor to see that this order is lawfully carried out; if the mayor refuses to follow the lawful orders of the board, the board may file suit against the mayor in a court of competent jurisdiction. Freeman and Daily, Mar. 15, 2002, A.G. Op. #02-0078.

If a municipality is considering authorizing a police officer to deliver municipal deposits to the municipal depository, the officer should be bonded prior to handling any municipal funds. Freeman and Daily, Mar. 15, 2002, A.G. Op. #02-0078.

Police chiefs in code charter municipalities are elected, and the governing authorities have the authority to provide by ordinance that the police chief will be appointed; the board of aldermen has the statutory duty to hire and fire police officers and may review the personnel files of police officers in code charter municipalities, whether the police chief is elected or appointed. Davis, July 19, 2002, A.G. Op. #02-0396.

The board of aldermen may reprimand a police officer over the objection of the chief of police after seeking information from the chief of police. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

The board of aldermen does not have authority to make daily decisions which arise in the management of the police department, such as decisions concerning an individual officer’s shift, duties or assignments. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

All school district employees, both instructional and noninstructional, are entitled to elect to receive equal monthly payments for a twelve-month period. Adams, Jan. 17, 2003, A.G. Op. #02-0750.

City clerk who was working full time and who accumulated annual and/or sick leave with the approval of the employer may use that leave while working in a part time capacity subject to any restrictions on use of leave contained in the city’s leave policies. Spinks, July 7, 2003, A.G. Op. 03-0310.

The board of aldermen in a code-charter municipality is empowered with setting personnel policies for municipal employees. There is no state agency or other entity which is required to approve those policies. However, should any policies adopted by the municipal governing authorities impact the ability of individuals to run for or hold elective office, approval by the U.S. Department of Justice would be required pursuant to Section 5 of the Voting Rights Act of 1965. Young, July 1, 2004, A.G. Op. 04-0263.

Municipal governing authorities have the authority to implement a policy requiring that the shifts of all employees of the police department be rotated. Davis, Oct. 29, 2004, A.G. Op. 04-0522.

Upon proper findings by the municipal governing authorities that a certain level of physical fitness is required in order for a police officer to perform his/her job duties established by the governing authorities, physical fitness standards may be enacted as a prerequisite to obtaining or maintaining a position as a police officer. Sorrell, Jan. 28, 2005, A.G. Op. 05-0028.

The power given to municipal governing authorities to appoint officers and employees applies to changing wages for employees, either increasing or decreasing, and may be exercised at any time by the governing authorities. If the governing authorities have authorized a pay increase, they may also eliminate that pay increase, or may reduce employee wages. Young, Feb. 14, 2005, A.G. Op. 05-0051.

A town has the authority to hire an experienced contractor and each of his employees as municipal employees for the purpose of constructing a sewage collection system, or for any other construction project to be undertaken by the town. Such a scheme, however, may not be utilized for the purpose of circumventing the state public construction laws. Hatcher, Feb 18, 2005, A.G. Op. 05-0057.

Although a city chief of police can be both an employee of the municipality and employed by the state as a conservation officer, the employee/officer cannot work and be paid by both entities for the same time. Rule, Apr. 8, 2005, A.G. Op. 05-0156.

Unless an appointee resigns or otherwise disqualifies himself, he is entitled to serve out the remainder of his term. Cardin, Aug. 26, 2005, A.G. Op. 05-0428.

An individual may serve as alderman without compensation and it is within the power of the municipal governing authority to amend its ordinance to allow for such voluntary service. Baum, Aug. 26, 2005, A.G. Op. 05-0434.

In order to comply with the provisions of Section 21-3-23, the street commissioner has the authority to direct “maintenance personnel” or other municipal employees only to the extent that such employees have been assigned by the mayor or by the mayor and board of alderman to duties relating to the maintenance of streets, alleys, avenues and sidewalks. Oct. 28, 2005, A.G. Op. 05-0528.

A duly appointed city engineer continues to serve until the board of aldermen either overrides the mayor’s veto of the aldermen’s vote to replace the engineer or makes an appointment that is not vetoed. Smith, Dec. 16, 2005, A.G. Op. 05-0594.

A Board of Aldermen is the legislative body of the city and may adopt personnel policies and procedures which govern departmental employees and equipment, including limits on the number of hours worked in a week, so long as they are applied uniformly. The Mayor is the chief executive officer of the municipality and has superintending control of the officers and affairs of the municipality as well as the responsibility of enforcing the laws and ordinances of the municipality. Taylor, February 23, 2007, A.G. Op. #07-00078, 2007 Miss. AG LEXIS 31.

Both the mayor and the aldermen have the authority to place items on the agenda, but only the board of aldermen may remove matters from the agenda, establish the order of the agenda, control the manner in which the agenda is developed, and determine who is allowed to be present during an executive session. Sullivan, March 16, 2007, A.G. Op. #07-00115, 2007 Miss. AG LEXIS 111.

Neither the mayor nor the board of aldermen may become involved in the daily operations of the police department, supervise officers, or direct the police chief’s supervision of law enforcement. The board of aldermen has authority to appoint, hire, and fire municipal officers and employees, fix their compensation, prescribe their duties, and adopt personnel policies and procedures, subject to the mayor’s veto. Sullivan, March 16, 2007, A.G. Op. #07-00115, 2007 Miss. AG LEXIS 111.

Authority to hire, fire, set compensation, and define duties of municipal employees rests solely with the board of aldermen, subject to mayoral veto power. Whether a part-time police chief is sufficient to satisfy the municipality’s statutory duty to provide police protection is a factual determination to be made by the governing authority. If a municipality does not have a police chief, the board of aldermen must appoint one. An untrained part-time police officer is a law enforcement trainee who must be supervised by a certified officer and has two years from hiring to become certified. McLain, March 2, 2007, A.G. Op. #07-00069, 2007 Miss. AG LEXIS 82.

Authority to hire and fire municipal employees rests solely with the Board of Aldermen, subject to mayoral veto power. The mayor may not instruct employees to disregard the official actions of the Board, and may not hire or fire municipal employees. A Board of Aldermen may adopt uniformly applied work schedule policies providing for overtime pay and such pay may only be made when there is a policy authorizing it. Reynolds, March 30, 2007, A.G. Op. #07-00155, 2007 Miss. AG LEXIS 68.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of regulation regarding outside employment of governmental employees or officers. 94 A.L.R.3d 1230.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 229.

CJS.

62 C.J.S., Municipal Corporations §§ 409, 441, 442,445, 447, 449, 450.

Editor’s Notes —

This section, as enacted by Section 1 of Chapter 537, Laws of 1962, was held unconstitutional in Stewart v. Waller, 404 F. Supp. 206 (N.D. Miss. 1975), and a prior version of the section, enacted by Section 36 of Chapter 491, Laws of 1950 and codified as § 3374-36, Mississippi Code of 1942, was given full force and effect by the court. The section as adopted in 1962 is published here as there has been no legislative action taken to change the law since the court’s decision. The text of the section in effect prior to the 1962 amendment is printed below.

Amendment Notes —

The 2016 amendment designated the previously undesignated first and second paragraphs as (1) and (2), respectively, and therein inserted parenthetical numbers, made minor stylistic changes, and added the exception at the beginning of (1); and added (3).

The 2018 amendment added the exception at the beginning of (2); and added (4).

Cross References —

For comparable provisions under various forms of government, see §§21-5-5 (commission);21-7-7 (council);21-8-7 (mayor-council); and21-9-15 and21-9-17 (council-manger).

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

1. In general.

A change by the City of Canton, Mississippi from ward to at-large elections of city aldermen constituted a change in a voting standard, practice, or procedure after November 1, 1964, within the federal approval requirement of § 5 of the Voting Rights Act of 1965 (42 USC § 1973c), notwithstanding that the 1962 state statute, Code 1942, § 3374-36, required such at-large elections, where the city had ignored the state statute by electing aldermen by wards in 1965 elections, and where there was no change between November 1, 1964 and the 1965 elections to suggest that a different procedure would have been in effect on the earlier date, thus establishing that the procedure in fact “in force or effect” in the city on November 1, 1964, was to elect aldermen by wards. Perkins v. Matthews, 400 U.S. 379, 91 S. Ct. 431, 27 L. Ed. 2d 476, 1971 U.S. LEXIS 93 (U.S. 1971).

2. Constitutionality.

Code 1972, §21-3-7 is a purposeful device conceived and operated to further racial discrimination in the voting process, and is therefore violative of the Fourteenth and Fifteenth Amendments to the United States Constitution. The statute law of Mississippi relating to aldermanic elections which existed prior to the passage of Code 1972, §21-3-7, and which was modified or repealed by Code 1972, § 21-3-7, is declared to be in full force and effect as if it had never been repealed; Members of the defendant class are restrained from conducting at-large aldermanic elections pursuant to Code 1972, § 21-3-7 or local ordinances implementing the section. Stewart v. Waller, 404 F. Supp. 206, 1975 U.S. Dist. LEXIS 11446 (N.D. Miss. 1975).

OPINIONS OF THE ATTORNEY GENERAL

Aldermen have the authority to observe municipal department operations for the purpose of reporting back to the entire board, but they may not supervise departments or direct the daily activities of department employees. Davies, Aug. 15, 1997, A.G. Op. #97-0510.

The legislative power in a code charter municipality, including the authority to adopt a budget and spend funds, is vested in the board of aldermen; thus, the board may appropriate funds for one or more vehicles for the police department but assignment of the vehicles is in the the discretion of the police chief. Brown, Feb. 1, 2002, A.G. Op. #01-0787.

A mayor may suspend employees with pay, but only the board of aldermen by official action in the minutes may suspend employees without pay. Gerhart, Mar. 8, 2002, A.G. Op. #02-0056.

Regardless of whether the city board is or is not in official session, individual members of a board of aldermen have no authority to direct the daily activities of municipal employees. Hurt, Oct. 13, 2006, A.G. Op. 06-0499.

Cross References —

For comparable provisions under various other forms of government, see §§21-5-5 (commission);21-7-7 (council);21-8-21 (mayor-council); and21-9-15 (council-manger).

JUDICIAL DECISIONS

3. Relation to other laws.

Black chairman of a county political party executive committee was guilty of racial discrimination under § 2 of the Voting Rights Act because, inter alia, he urged nonresident black candidates to run for office against white incumbents, when he knew they were not qualified based on the residency requirements in Miss. Code Ann. §21-3-9. United States v. Brown, 494 F. Supp. 2d 440, 2007 U.S. Dist. LEXIS 47255 (S.D. Miss. 2007), aff'd, 561 F.3d 420, 2009 U.S. App. LEXIS 4030 (5th Cir. Miss. 2009).

OPINIONS OF THE ATTORNEY GENERAL

Pay raises for county prosecuting attorneys, sheriffs and justice court justices may be made retroactively effective to April 1, 1997, once Laws, 1997, Chapter 570 becomes effectuated under Section 5 of the Voting Rights Act. Dulaney, July 25, 1997, A.G. Op. #97-0403.

An individual who is otherwise qualified to be a candidate for the office of alderman of a code charter municipality may qualify for the office of alderman if the city employs his or her spouse as a firefighter. Quillen, Feb. 9, 2001, A.G. Op. #2001-0039.

A municipal civil service commission does not have the authority to mandate an employee be given “light duty” assignments in contravention of lawfully adopted municipal personnel policies. Bowman, Feb. 7, 2003, A.G. Op. #03-0771.

If a board of aldermen determines, consistent with the facts, that a member is no longer a resident of the ward he was elected to serve and is not merely temporarily residing outside his ward but has abandoned same, a vacancy would have to be declared and a special election set in accordance with Section 23-15-857. Skellie, Aug. 18, 2006, A.G. Op. 06-0377.

Cross References —

Vacating office by leaving local area or by failing to account for public funds, see §25-1-59.

Cross References —

Duties of mayor, see §21-3-15.

For comparable provisions under various other forms of government, see §§21-5-7 (commission);21-7-13 (council);21-8-19 (mayor-council); and21-9-37 (council-manager).

OPINIONS OF THE ATTORNEY GENERAL

A person elected as a mayor pro tempore by a board of aldermen remains in that office for the remainder of the term for which he or she was elected as an alderman unless such person resigns from the position of mayor pro tempore or vacates the office of alderman during such term. Perkins, Aug. 8, 1997, A.G. Op. #97-0448.

Although the statute does not provide for a penalty for failure to comply with its provisions, under commonly accepted rules of statutory construction a statute providing that certain things “shall” be done is mandatory, while a recitation that specific acts “may” be done is directory only. Jordan, July 31, 1998, A.G. Op. #98-0442.

Once the board has appointed a mayor pro tempore pursuant to the statute, the appointee remains in that office for the duration of the term of office to which he was elected as an alderman unless such appointee resigns from the office of mayor pro tempore or vacates the office of alderman during such term. Jordan, July 31, 1998, A.G. Op. #98-0442.

When acting as mayor pro tem, an alderman in a code-charter municipality may only exercise the authority of the mayor to vote, that is, in the case of a tie. Brooks, Feb. 3, 2006, A.G. Op. 06-0029.

A mayor’s mere physical absence from the jurisdiction does not trigger the powers of the mayor pro tempore. A mayor must be absent from a jurisdiction in such a manner so as to prevent the mayor from performing the duties of the office. Bryan, Aug. 11, 2006, A.G. Op. 06-0012.

Amendment Notes —

The 2006 amendment substituted “The mayor’s authority is executive, and the mayor” for “He” in the second sentence of (1); added (2)(a), and redesignated the existing provisions of (2) as present (2)(b); and made a gender-neutralization change.

The 2008 amendment substituted “executive power of the municipality shall be exercised by the mayor” for “mayor’s authority is executive” in (1); in (2)(a), substituted the present first sentence for the former first sentence, which read: “The authority of the board of aldermen is legislative and is executed by a vote within a legally called meeting.”

Cross References —

Selection of mayor pro tempore, see §21-3-13.

For comparable provisions under various other forms of government, see §§21-5-7,21-5-9 (commission);21-7-7,21-7-11,21-7-13 (council);21-8-13 through21-8-17 and21-8-27 (mayor-council); and21-9-31,21-9-35,21-9-37 (council-manager).

Other specific powers and duties of mayor, see §§21-15-7 through21-15-15.

Powers of governing authorities, see §21-17-5.

Duty of mayor to notify governor whenever local resources inadequate to cope with emergencies, see §33-7-301.

Authority to lease lands to the United States for the purpose of securing construction of air national guard armories, see §33-11-15.

Emergency powers under civil defense law, see §§33-15-1 et seq.

Appointment of extra deputies and police officers, see §45-5-9.

Conditions by which tenant holding-over may be removed by order of mayor, see §§89-7-27 et seq.

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

3. Veto power.

4. Liability.

1. In general.

The action of a mayor in removing a captain of police is a judicial or quasi judicial act and a writ of prohibition would lie to prohibit him from wrongfully exercising such judicial discretion. Glover v. City Council of Columbus, 132 Miss. 776, 96 So. 521, 1923 Miss. LEXIS 65 (Miss. 1923).

A mayor having signed an ordinance without having taken oath of office is a de facto officer and his title to office cannot be attacked in prosecution for violation of speed ordinance by a plea that the ordinance is invalid because signed before the mayor took oath of office. Town of Sumrall v. Polk, 118 Miss. 687, 79 So. 847, 1918 Miss. LEXIS 120 (Miss. 1918).

Under Const. 1890, § 2, a justice of the peace vacates his office by accepting the office of mayor, which belongs to the executive department, the judicial powers of that office being incidental, and not primary. State ex rel. Attorney Gen. v. Armstrong, 91 Miss. 513, 44 So. 809, 1907 Miss. LEXIS 144 (Miss. 1907).

2. Constitutionality.

Where the mayor and board of aldermen held a special session without giving notice and overturned the decision of the board of zoning appeals affirming a building permit in favor of an ice company, the mayor exceeded his authority under Miss. Code Ann. §21-3-15. The company’s right to due process was violated. City of Petal v. Dixie Peanut Co., 994 So. 2d 835, 2008 Miss. App. LEXIS 318 (Miss. Ct. App.), cert. dismissed, 998 So. 2d 1010, 2008 Miss. LEXIS 683 (Miss. 2008).

A law making the mayor of a town ex-officio justice of the peace does not violate § 2 of the Const. 1890. Poplarville Sawmill Co. v. A. Marx & Sons, 117 Miss. 10, 77 So. 815, 1917 Miss. LEXIS 163 (Miss. 1917).

3. Veto power.

Under §21-3-15, the mayor of a town operating under a code charter had the authority to veto an order of its board of aldermen appointing a town attorney. Edwards v. Weeks, 633 So. 2d 1035, 1994 Miss. LEXIS 125 (Miss. 1994).

While the mayor may veto any measure, yet he cannot veto the election of a police justice, an election not being a measure within the meaning of the statute. Rich v. McLauren, 83 Miss. 95, 35 So. 337, 1903 Miss. LEXIS 14 (Miss. 1903) but see Edwards v. Weeks, 633 So. 2d 1035, 1994 Miss. LEXIS 125 (Miss. 1994).

4. Liability.

Although the mayor may make an arrest without a warrant for an offense committed in his presence he is liable on his official bond for damages resulting from a brutal and wrongful assault in making it. Carlisle v. Silver Creek, 85 Miss. 380, 37 So. 1015, 1904 Miss. LEXIS 172 (Miss. 1904).

The sureties on the bond of a mayor are liable for injurious acts done by him colore officii in the line of his official duty although such acts be illegal. State use of McLaurin v. McDaniel, 78 Miss. 1, 27 So. 994, 1900 Miss. LEXIS 73 (Miss. 1900).

A mayor who causes to be arrested, fines and commits to prison without affidavit one who has committed no offense in his presence is liable in action for false imprisonment. State use of McLaurin v. McDaniel, 78 Miss. 1, 27 So. 994, 1900 Miss. LEXIS 73 (Miss. 1900).

OPINIONS OF THE ATTORNEY GENERAL

While mayor in code charter municipality has authority to observe activities of police chief and policemen and to report to board of aldermen on activities of department, mayor does not have authority to supervise law enforcement by police chief on daily basis. Gorrell, Sept. 26, 1990, A.G. Op. #90-0591.

Mayor of code charter municipality may request that police chief instruct radio dispatcher to call mayor if there has been serious crime committed. Gorrell, Sept. 26, 1990, A.G. Op. #90-0591.

When mayor pro tempore is presiding at meeting of municipal governing authorities in temporary absence of mayor, mayor pro tempore is acting as mayor with duties and powers of code charter mayor and not as alderman; when alderman is serving as mayor pro tempore, he has only voting powers of mayor set forth in statute and may not vote as alderman; two-thirds vote of five member board of aldermen necessary to override code charter mayor’s veto requires votes of four aldermen voting as aldermen, exclusive of one alderman serving as mayor pro tempore. Bailey, Sept. 26, 1990, A.G. Op. #90-0728.

Ten day period within which mayor must either approve or object to ordinance starts running when clerk presents minutes to mayor. Childre, Sept. 10, 1992, A.G. Op. #92-0656.

Under Miss. Code Section 21-3-15(2), if mayor fails to return ordinance to board of aldermen prior to next meeting of board, but no later than fifteen days after it has been presented to him, measure becomes effective. Warren, June 3, 1993, A.G. Op. #93-0401.

Generally, statutes governing Mayor/Aldermen or “code charter” form of government, empower board of aldermen to set policy through enactment of ordinances, orders and resolutions, all subject to Mayor’s veto; mayor, as chief executive officer, oversees daily operation of municipal government and makes recommendations to board. Mayor does not have right to appoint police chief; mayor may recommend person to Board of Aldermen. Lee Sept. 15, 1993, A.G. Op. #93-0666.

If order approving new budget provides for change in salary in question, mayor of code charter municipality would not be authorized to “line item” veto portion of that order; pursuant to Section 21-3-15 mayor of code charter municipality does have authority to veto any ordinance, order or resolution in its entirety. Austin Oct. 6, 1993, A.G. Op. #93-0697.

A mayor has the authority to test the emergency services of a municipality for the purpose of evaluating the readiness and effectiveness of the services in the event of an actual emergency and so that necessary changes can be recommended. Ellis, Aug. 1, 1997, A.G. Op. #97-0363.

A mayor has the power to veto an order by a board of aldermen appointing a city attorney. Lee, Aug. 8, 1997, A.G. Op. #97-0459.

Generally, abstentions from city council member votes are counted with the side casting the majority vote. Spann, Aug. 22, 1997, A.G. Op. #97-0519.

A mayor may not appoint aldermen as municipal department heads. Bell-Martin, Nov. 7, 1997, A.G. Op. #97-0703.

A mayor did not have authority to veto a decision of the board to reinstate a fireman who the mayor had demoted without a change in compensation; “superintending control” in subsection (1) means that the mayor, as the chief executive officer, has general supervisory oversight of municipal government, but department heads, such as the police and fire chief, have authority and responsibility to make decisions concerning the daily operations of their departments. Fernald, February 19, 1999, A.G. Op. #99-0085.

A county may provide equipment, materials, such as dirt and gravel, and labor for constructing a playground on city owned property as long as the playground is available to all of the citizens of the county. Gary, March 12, 1999, A.G. Op. #99-0118.

The board of aldermen of a code charter municipality has the authority to terminate an appointed police chief, subject to the veto power of the mayor. Littleton, III, Nov. 30, 2001, A.G. Op. #01-0706.

The board of aldermen has the authority to appoint a police chief, subject to the veto power of the mayor. Littleton, III, Nov. 30, 2001, A.G. Op. #01-0706.

A mayor of a code charter municipality has the authority to veto the appointment of a police chief as well as any ordinance, resolution, or order of the board; however, the mayor does not have authority to terminate an appointed police chief or declare the office of police chief open, thereby relieving the appointed police chief of his duties. Littleton, III, Nov. 30, 2001, A.G. Op. #01-0706.

A mayor may suspend employees with pay, but only the board of aldermen by official action in the minutes may suspend employees without pay. Gerhart, Mar. 8, 2002, A.G. Op. #02-0056.

If the board of aldermen determines and establishes by lawful order that the duties of the head of maintenance require access to all municipal buildings, and the mayor does not veto that order, it is the duty of the mayor to see that this order is lawfully carried out; if the mayor refuses to follow the lawful orders of the board, the board may file suit against the mayor in a court of competent jurisdiction. Freeman and Daily, Mar. 15, 2002, A.G. Op. #02-0078.

Municipal governing authorities do not have authority to assign an unmarked police car to a mayor for use in performing duties for the municipality, as §25-1-87 makes apparent that unmarked police cars must be used for police purposes. Gregory, Oct. 18, 2002, A.G. Op. #02-0575.

The mayor may request attendance but may not force attendance at a weekly staff meeting of an elected police chief. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

A weekly staff meeting of the mayor and departments heads, including the police chief, does not conflict with the doctrine of separation of powers set forth in Article 1 and 2 of the Mississippi Constitution. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

Residents of a municipality may meet with the mayor to discuss any matter pertaining to the operation of the municipality, including police protection, and the mayor may meet with the police chief or police officers to gather information concerning operation of the police department and may also direct residents to communicate with the police chief concerning police protection generally or specific ongoing situations in law enforcement. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

The mayor may meet with police officers to obtain information concerning the operation of the police department, but the mayor does not have authority to become involved in the day to day operation of the police department or to make law enforcement decisions. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

The board of aldermen may reprimand a police officer over the objection of the chief of police after seeking information from the chief of police. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

The board of aldermen does not have authority to make daily decisions which arise in the management of the police department, such as decisions concerning an individual officer’s shift, duties or assignments. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

All school district employees, both instructional and noninstructional, are entitled to elect to receive equal monthly payments for a twelve-month period. Adams, Jan. 17, 2003, A.G. Op. #02-0750.

If the board of aldermen adopts an ordinance at a meeting with the mayor pro tempore presiding and if the mayor pro tempore does not either veto or approve the ordinance, then the mayor may veto the ordinance upon his or her return within the statutory period. The statutory period commences at the time whoever is acting as mayor receives the ordinance from the board. Baker, July 18, 2003, A.G. Op. 03-0320.

Where a mayor’s handwritten veto message containing the reasons for a veto was delivered within the ten day deadline for doing so, the lack of a signature on a subsequently filed typed veto message was not fatal to the validity of the veto. Hudson, Aug. 29, 2003, A.G. Op. 03-0465.

If the member of a municipal governing body seeking to review personnel records has need, in the course and scope of his or her duties on behalf of the municipality, to review them, he or she should be entitled to such a review. Stovall, Jan. 6, 2004, A.G. Op. 03-0683.

To override a mayor’s veto in a code charter municipality having a seven member board, five of the seven members must vote to override. When one of those seven members is serving as mayor pro tempore, the five votes needed must come from the remaining six voting members of the board. Rutledge, Jan. 6, 2004, A.G. Op. 03-0690.

A mayor can cast the deciding vote in a tie, but he can also veto an ordinance, order or resolution regardless of how many aldermen initially vote in favor. In the case of a five member board of aldermen, in order to override the mayor’s veto, four aldermen must vote in favor of overriding the mayor in order for the ordinance, order or resolution to take effect. Edwards, Apr. 16, 2004, A.G. Op. 04-0154.

The mayor of a code-charter municipality would have the authority to veto an order of the board of aldermen to enter into a contract or to terminate a contract. The mayor would not have the authority to veto the decision of the board not to enter into a contract. Further, if a contract is due to expire on its own terms, and the board decides not to renew that contract, that decision is not appropriate for mayoral veto. A municipal board of aldermen can override the mayor’s veto with a 2/3 vote of all members (4 out of 5). Brown, July 1, 2004, A.G. Op. 04-0280.

A resolution of the board of aldermen to conduct a referendum on the question of naming the city hall is an affirmative action of the board, and thus is subject to veto by the mayor. McLaurin, July 16 2004, A.G. Op. 04-0356.

The mayor does not have the sole right to remove matters from the agenda, or to establish the order of the agenda, or to control the manner in which the agenda is developed, in that a majority of the board of aldermen control the agenda. Young, Aug. 6, 2004, A.G. Op. 04-0390.

As a department head, the city clerk is subject to the supervision of the mayor. If the clerk refuses to provide to the mayor information related to the agenda, after being asked to do so, the clerk may be disciplined in accordance with policies adopted by the governing authorities. Young, Aug. 6, 2004, A.G. Op. 04-0390.

Unless the charter of a special charter municipality provides otherwise, both the mayor and aldermen are entitled to place matters on the agenda for meetings. Cook, Oct. 29, 2004, A.G. Op. 04-0526.

A mayor in a municipality operating under a mayor/alderman form of government has 10 days after receiving any ordinance in which to exercise his or her right to veto. The fifteen 15 day period referenced in the statute only comes into play where a mayor has not exercised his or her veto power within the ten day period, and also fails to sign the ordinance and return it to the board within that time period. In that instance, the ordinance may become effective without the mayor’s signature. Young, Feb. 14, 2005, A.G. Op. 05-0051.

Pursuant to Section 21-3-15, action to override a veto cannot occur sooner than three days after the delivery of the veto message to the board by the mayor. It is suggested that override of a mayoral veto is a proper subject for a special meeting to avoid undue delay in finalizing any ordinances, orders or resolutions which may have been the subject of the veto. Wiggins, July 29, 2005, A.G. Op. 05-0385.

In municipalities in which the mayor has been given no role in the approval of the minutes of the governing authority, “receipt” for purposes of Section 21-3-15 is the meeting in which the minutes are presented for approval by the board of aldermen. The 10 days would begin to run from the date of the meeting at which the minutes are approved. In municipalities in which the authority to approve the minutes has been delegated to the mayor, the 10-day period begins to run at the time the clerk presents the minutes to the mayor. Wiggins, July 29, 2005, A.G. Op. 05-0385.

The authority of the mayor of a code charter municipality to veto ordinances, resolutions and orders includes the appointment of municipal officials. Cole, July 29, 2005, A.G. Op. 05-0374.

In a code charter municipality with five aldermen, four aldermen may hold a meeting and may take official action without the presence of the mayor or the mayor pro tempore. Four aldermen may meet and may take official action with three aldermen constituting a quorum and one aldermen serving as mayor pro tempore for the meeting. Brown, Aug. 11, 2005, A.G. Op. 05-0399.

Although the statute prescribes no time frame in which the board of aldermen is to act to override a veto, a board must act to override not later than the next lawfully convened regular or special meeting of the governing authority. Brown, Aug. 11, 2005, A.G. Op. 05-0400.

The person appointed by the board of aldermen is not entitled to continue to serve after a mayoral veto of that appointment. If the veto is overridden, the appointment is valid. Brown, Aug. 11, 2005, A.G. Op. 05-0400.

The municipal clerk has no authority to preside over a meeting of the governing authorities. Brown, Aug. 11, 2005, A.G. Op. 05-0400.

When acting as mayor pro tem, an alderman in a code-charter municipality may only exercise the authority of the mayor to vote, that is, in the case of a tie. Brooks, Feb. 3, 2006, A.G. Op. 06-0029.

A mayor has the authority to enact policies related to the overall supervision of employees and department heads and to give directives to the employees or department heads regarding their duties. To the extent, however, that a policy or directive adversely impacts the ability of the legislative branch to obtain information necessary to make decisions and to carry out the business of the city, such policies would be contrary to the statutory scheme set out for the mayor/alderman form of government. Goddard, June 16, 2006, A.G. Op. 06-0248.

Regardless of whether the city board is or is not in official session, individual members of a board of aldermen have no authority to direct the daily activities of municipal employees. Hurt, Oct. 13, 2006, A.G. Op. 06-0499.

A Board of Aldermen is the legislative body of the city and may adopt personnel policies and procedures which govern departmental employees and equipment, including limits on the number of hours worked in a week, so long as they are applied uniformly. The Mayor is the chief executive officer of the municipality and has superintending control of the officers and affairs of the municipality as well as the responsibility of enforcing the laws and ordinances of the municipality. Taylor, February 23, 2007, A.G. Op. #07-00078, 2007 Miss. AG LEXIS 31.

Both the mayor and the aldermen have the authority to place items on the agenda, but only the board of aldermen may remove matters from the agenda, establish the order of the agenda, control the manner in which the agenda is developed, and determine who is allowed to be present during an executive session. Sullivan, March 16, 2007, A.G. Op. #07-00115, 2007 Miss. AG LEXIS 111.

Neither the mayor nor the board of aldermen may become involved in the daily operations of the police department, supervise officers, or direct the police chief’s supervision of law enforcement. The board of aldermen has authority to appoint, hire, and fire municipal officers and employees, fix their compensation, prescribe their duties, and adopt personnel policies and procedures, subject to the mayor’s veto. Sullivan, March 16, 2007, A.G. Op. #07-00115, 2007 Miss. AG LEXIS 111.

Authority to hire and fire municipal employees rests solely with the Board of Aldermen, subject to mayoral veto power. The mayor may not instruct employees to disregard the official actions of the Board, and may not hire or fire municipal employees. A Board of Aldermen may adopt uniformly applied work schedule policies providing for overtime pay and such pay may only be made when there is a policy authorizing it. Reynolds, March 30, 2007, A.G. Op. #07-00155, 2007 Miss. AG LEXIS 68.

Cross References —

Approval of bonds of county officers, see §25-1-19.

Officers giving bond and taking oath as conditions precedent to acting, see §25-1-35.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

A defaulting treasurer and his sureties cannot escape liability because his official bond was approved by resolution instead of ordinance. Town of Gloster v. Harrell, 77 Miss. 793, 23 So. 520, 27 So. 609, 1900 Miss. LEXIS 13 (Miss. 1900).

Editor’s Notes —

By letter dated September 20, 2012, the United States Attorney General determined that the amendments to this section by Chapter 442, Laws of 2012, were not subject to preclearance under Section 5 of the Voting Rights Act of 1965, as amended and extended.

Amendment Notes —

The 2012 amendment added the last sentence in (1).

The 2017 amendment substituted “Section 25-41-5(2)” for “Section 25-41-5(2)(b)” at the end of (1); deleted “Mississippi Code of 1972” following “Section 21-17-17” in (2); and made minor stylistic changes.

Cross References —

Moving municipality’s site of government in emergency resulting from enemy attack, see §§17-7-1 et seq.

Special meetings of the board of alderman, see §21-3-21.

Meetings of governing authorities under various forms of government, see §§21-5-13 (commission);21-7-9 (council);21-8-11 (mayor-council);21-9-39 (council-manager).

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

The mayor and board of aldermen at a regular meeting held under this section after an election and before the organization of the new board has no power to elect inferior municipal officers referred to in § 3389; They must be elected by the new board. Ott v. State, 78 Miss. 487, 29 So. 520 (Miss. 1900).

OPINIONS OF THE ATTORNEY GENERAL

Three aldermen meeting without presence of mayor or mayor pro tempore may not pass binding municipal resolutions, orders or ordinances. Buck, Nov. 12, 1992, A.G. Op. #92-0865.

Where there is no newspaper located in or published in a town, a newspaper within the county having general circulation in the municipality (or if there is none, a newspaper having general circulation within the county) must be used for publication of an ordinance to change the date of board meetings, as is required for the publication of all other ordinances of the municipality pursuant to Section 21-13-11. Thomas, May 30, 2003, A.G. Op. 03-0268.

In a code charter municipality with five aldermen, four aldermen may hold a meeting and may take official action without the presence of the mayor or mayor pro tempore. Clark, June 20, 2003, A.G. Op. 03-0296.

In a code charter municipality with a five member board of aldermen, if three members fail to appear for any meeting, a quorum does not exist and no official business can legally be conducted. Young, Aug. 27, 2004, A.G. Op. 04-0421.

This section authorizes the mayor and board of aldermen to set a day other than Tuesday for the holding of their regular monthly meeting in accordance with §21-17-17 which requires that such change be made by the adoption of an ordinance and three weeks publication of said ordinance prior to implementing the change. This necessarily means that, in order to revert back to the current meeting date, the same procedure would have to be repeated. Stratton, Feb. 4, 2005, A.G. Op. 05-0041.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 156 et seq.

Amendment Notes —

The 2004 amendment rewrote the second through fourth sentences.

JUDICIAL DECISIONS

1. In general.

2. Jurisdiction.

3. Notice of meeting.

1. In general.

Provisions of statute as to calling special meeting of mayor and aldermen are mandatory. Wilson v. Lexington, 153 Miss. 212, 121 So. 859, 1929 Miss. LEXIS 96 (Miss. 1929).

Statute must be strictly construed. Wilson v. Lexington, 153 Miss. 212, 121 So. 859, 1929 Miss. LEXIS 96 (Miss. 1929).

Where statute was not complied with in calling special meeting to adopt ordinance levying special assessments and providing for notice thereof, assessment was nullity. Wilson v. Lexington, 153 Miss. 212, 121 So. 859, 1929 Miss. LEXIS 96 (Miss. 1929).

Minutes must show compliance with statute relating to calling special meeting of mayor and aldermen in order for them to transact business. Wilson v. Lexington, 153 Miss. 212, 121 So. 859, 1929 Miss. LEXIS 96 (Miss. 1929).

2. Jurisdiction.

Where proceeding for levying special assessments was void for failure to comply with the requirements of this section [Code 1942, § 3374-44], taxpayer’s appearance for purpose of protest did not confer jurisdiction upon board. Wilson v. Lexington, 153 Miss. 212, 121 So. 859, 1929 Miss. LEXIS 96 (Miss. 1929).

3. Notice of meeting.

Where notice of a special meeting of the Board of Aldermen was served upon an alderman elect after his right to the office had fully accrued but before he had qualified by taking the oath of office, such service was not defective where he did qualify and participate in the meeting. In re Validation of Municipal Bonds, 188 Miss. 817, 196 So. 258, 1940 Miss. LEXIS 75 (Miss. 1940).

Supreme Court can indulge no presumption in favor of officer’s return on notice of special meeting of mayor and aldermen, where return is unsigned and contains no statement showing compliance with statute. Wilson v. Lexington, 153 Miss. 212, 121 So. 859, 1929 Miss. LEXIS 96 (Miss. 1929).

This section requiring that notice of a special meeting shall be served three hours before the time fixed for the meeting is mandatory and jurisdictional and without a compliance therewith proceedings are void. Kidder v. McClanahan, 126 Miss. 179, 88 So. 508, 1921 Miss. LEXIS 18 (Miss. 1921).

OPINIONS OF THE ATTORNEY GENERAL

Notice requirements of Section 21-3-21 are jurisdictional, and failure to strictly comply with these requirements when calling a special meeting renders any actions taken during that meeting null and void. Rule, Apr. 8, 2005, A.G. Op. 05-0156.

Cross References —

Duties under council form of government, see §21-7-15.

OPINIONS OF THE ATTORNEY GENERAL

In order to comply with the provisions of Section 21-3-23, the street commissioner has the authority to direct “maintenance personnel” or other municipal employees only to the extent that such employees have been assigned by the mayor or by the mayor and board of alderman to duties relating to the maintenance of streets, alleys, avenues and sidewalks. King, Oct. 28, 2005, A.G. Op. 05-0528.

Cross References —

For comparable provisions under various forms of government, see §§21-8-25 (mayor-council); and21-9-25 (council-manager).

Surety bond required for certain appointed municipal officers, see §21-15-38.

OPINIONS OF THE ATTORNEY GENERAL

The governing authorities of a code charter municipality in their discretion may appoint an overall supervisor and prescribe his or her duties, which may include supervision of the certified operator in the water/wastewater department. Pittman, June 19, 1998, A.G. Op. #98-0334.

Creation by a city of a new position of “city administrator” by adoption of a resolution giving the individual broad administrative powers would be inconsistent with the provisions of this section and therefore prohibited. Stark, Sept. 6, 2002, A.G. Op. #02-0522.

Cross References —

Judicial definitions and illustrations generally, see §§1-3-1 et seq.

Classification of municipalities, see §21-1-1.

Designation of municipalities, see §21-1-9.

Various other forms of municipal government, see §§21-3-1 et seq. (code charter);21-7-1 et seq. (council);21-8-1 et seq. (mayor-council); and21-9-1 et seq. (council-manager).

Commission form laws of 1908 not being repealed, see §21-5-23.

Governing authorities of municipality operating under commission form of government to create and maintain City Employees Retirement Fund, see §21-29-5.

Effect of change in form of government on authorized retirement system, see §21-29-55.

Establishment of civil service system in municipalities having commission form of government, see §§21-31-1 et seq.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

The City of Greenwood’s commission form of government with three council members elected at large violates Section 2 of the Voting Rights Act of 1965, as amended in 1982, 42 U.S.C.S. § 1973 (Supp. 1983); evidence establishes almost every element of proof delineated by Congress as probative of a Section 2 violation, and from a totality of the circumstances, it is inescapably clear that the black voters of Greenwood have less opportunity than whites to participate in the political process and to elect representatives of their choice; the court therefore must require the establishment of single-member districts for the City of Greenwood. Jordan v. Greenwood, 599 F. Supp. 397, 1984 U.S. Dist. LEXIS 24822 (N.D. Miss. 1984).

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Provision for election in December next after adoption of commission form of government, and every four years thereafter, held applicable only to municipalities adopting commission form after Code became effective. State ex rel. Colmer v. Benvenutti, 162 Miss. 313, 137 So. 537, 1931 Miss. LEXIS 109 (Miss. 1931).

As to appeals from extension of limits of city under commission form of government, see Gregory v. Amory, 112 Miss. 604, 73 So. 614, 1916 Miss. LEXIS 152 (Miss. 1916).

The commission form of government act for municipalities is constitutional. Mayor & Board of Aldermen of Jackson v. State, 102 Miss. 663, 59 So. 873, 1912 Miss. LEXIS 105 (Miss. 1912).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 180 et seq.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 64, 65 (allegations of capacity of plaintiff as taxpayer, and of exercise of official functions by municipal officers).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 131 et seq. (claims, notice and presentation).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 14, 15 (affidavit of notice by posting or publication).

CJS.

62 C.J.S., Municipal Corporations § 268 et seq.

Law Reviews.

Mississippi and the Voting Rights Act: 1965-1982. 52 Miss. L. J. 803, December 1982.

Cross References —

Corporate names generally, see §21-1-5.

For comparable provisions under various other forms of government, see §§21-7-7 (council);21-8-7,21-8-37 (mayor-council); and21-9-15 through21-9-19, and21-9-35 (council-manager).

RESEARCH REFERENCES

ALR.

What constitutes requisite majority of members of municipal council voting on issue. 43 A.L.R.2d 698.

Abstention from voting of member of municipal council present at session as affecting requisite voting majority. 63 A.L.R.3d 1072.

Cross References —

When the governor may fill vacancies in municipal elective offices, see §7-1-39.

For comparable provisions under various forms of government, see §§21-3-7 (code charter);21-7-7 (council);21-8-7,21-8-21 (mayor-council); and21-9-15 and21-9-17 (council-manager).

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

Elected person’s failure to qualify, see §25-1-7.

Taking of oaths and filing of bonds, see §§25-1-9 et seq.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

Where city councilman’s term expired two days after resignation and remaining city officers constituted a quorum for transaction of municipal affairs, vacancy created was not such an “emergency” as to justify an appointment by governor on failure of remaining city officers to name a successor. State ex rel. Parks v. Tucei, 175 Miss. 218, 166 So. 370, 1936 Miss. LEXIS 20 (Miss. 1936).

Proceeding to try right to office of councilman instituted in name of state on relation of claimant is in the nature of a private action, in which claimant must succeed on strength of his own claim. State ex rel. Parks v. Tucei, 175 Miss. 218, 166 So. 370, 1936 Miss. LEXIS 20 (Miss. 1936).

Provision for election in December next after adoption of commission form of government, and every four years thereafter, held applicable only to municipalities adopting commission form after Code became effective. State ex rel. Colmer v. Benvenutti, 162 Miss. 313, 137 So. 537, 1931 Miss. LEXIS 109 (Miss. 1931).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions § 181.

CJS.

62 C.J.S., Municipal Corporations §§ 273-280.

Cross References —

For comparable provisions under various forms of government, see §§21-3-13,21-3-15 (code charter);21-7-7,21-7-13 (council);21-8-15,21-8-17,21-8-21 (mayor-council); and21-9-15 and21-9-37 (council-manager).

Other specific powers and duties of mayor, see §§21-15-7 through21-15-15.

Powers of governing authorities, see §21-17-5.

Duty of mayor to notify governor whenever local resources inadequate to cope with emergencies, see §33-7-301.

Emergency powers under civil defense law, see §§33-15-1 et seq.

Appointment of extra deputies and police officers, see §45-5-9.

Cross References —

For comparable provisions under various forms of government, see §§21-3-15 (code charter);21-7-11 (council);21-8-13,21-8-23 (mayor-council); and21-9-21 and21-9-35 (council-manager).

Surety bond required for certain appointed municipal officers, see §21-15-38.

Powers of governing authorities generally, see §21-17-5.

Civil liability of officers failing to perform duty, see §25-1-45.

Authority to lease lands to the United States for the purpose of securing construction of air national guard armories, see §33-11-15.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

A city ordinance which required members of fire and police departments and other civil service employees to maintain their domicile and place of residence within the corporate limits of the city, was not in conflict with a state statute requiring civil service applicants to be citizens of the United States and electors of the county in which they reside, with 3 years’ residence, but was instead an additional regulation within the power of municipalities operating under the commission form of government by virtue of statutes authorizing such municipalities to make necessary rules and regulations for the government of the officers and employees of the city and for the efficient and economical conduct of the city’s business. Hattiesburg Firefighters Local v. Hattiesburg, 263 So. 2d 767, 1972 Miss. LEXIS 1345 (Miss. 1972).

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

An earlier charter provision in the charter of the city of Meridian, imposing personal liability upon municipal officers for appropriating money to any object not authorized by the charter, was carried forward when the city assumed the commission form of government. Paine v. Matthews, 213 Miss. 506, 57 So. 2d 148, 1952 Miss. LEXIS 391 (Miss. 1952).

Where money was paid out of the treasury with no authorization or appropriation by the council, the mayor and members of the council were not liable for the unauthorized act of the city manager and city treasurer in unlawfully paying out the city funds and an ordinance could be effective as a ratification only if the funds could have been lawfully appropriated in the first instance. Paine v. Matthews, 213 Miss. 506, 57 So. 2d 148, 1952 Miss. LEXIS 391 (Miss. 1952).

Laws 1944, ch. 208 (§§ 3825-01 et seq., Supp to 1942 Code), do not withdraw from municipalities any of the powers conferred by this section, but, where a fireman’s position has been abolished, determine only his rights. City of Laurel v. Reddoch, 200 Miss. 259, 26 So. 2d 465, 1946 Miss. LEXIS 289 (Miss. 1946).

Under this section, a municipality acting under the commission form of government has all the powers possessed by other municipalities except as otherwise provided by statute. Independent Paving Co. v. Bay St. Louis, 74 F.2d 961, 1935 U.S. App. LEXIS 3576 (5th Cir. Miss. 1935).

Cross References —

Councilmen’s posts being separated for election purposes, see §21-5-5.

For comparable provisions under various forms of government, see §§21-7-11 (council);21-8-23 (mayor-council); and21-9-21 (council-manager).

Editor’s Notes —

By letter dated July 22, 2010, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 2010, ch. 319, § 4.

By letter dated September 20, 2012, the United States Attorney General determined that the amendments to this section by Chapter 442, Laws of 2012, were not subject to preclearance under Section 5 of the Voting Rights Act of 1965, as amended and extended.

Amendment Notes —

The 2010 amendment, in the first sentence of the first paragraph of (1), substituted “first day of July” for “first Monday in July” and inserted “that is not on a weekend.”

The 2012 amendment added the third sentence in the second paragraph of (1).

The 2017 amendment substituted “Section 25-41-5(2)” for “Section 25-41-5(2)(b)” at the end of the second sentence of the second paragraph of (1).

Cross References —

Moving municipality’s site of government in emergency resulting from enemy attack, see §§17-7-1 et seq.

Meetings of governing authorities under various forms of government, see §§21-3-19 (code charter);21-7-9 (council);21-8-11 (mayor-council); and21-9-39 (council-manager).

Requirement of open and public meetings, see §§25-41-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

In a special charter municipality, where the mayor is counted for purposes of establishing a quorum, but does not have the power to vote except to break a tie, a majority of the quorum is sufficient to adopt a measure, and a majority of the voting members of the commission is not required. Twiford, Feb. 21, 2003, A.G. Op. #03-0044.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

The action of the mayor and councilmen of a municipality in placing the order on the minutes of the city council, signifying their desire and purpose to exercise the power conferred by statute of reducing their salaries to a certain sum per month, and in their answer evidencing such intention by accepting a warrant each month for such reduced amount over a considerable period of time, constituted a substantial compliance with the provisions of the statute and was sufficient to effectuate the reduction of their salaries. Chinn v. Biloxi, 183 Miss. 27, 183 So. 375, 1938 Miss. LEXIS 213 (Miss. 1938).

The word “ordinance” as used in the statute does not contemplate an ordinance to be published and then enrolled in the ordinance book, and the act of recording a reduction in salary of the mayor and councilmen of a municipality on the minutes of the civic council was a sufficient “ordinance” within the meaning of the statute. Chinn v. Biloxi, 183 Miss. 27, 183 So. 375, 1938 Miss. LEXIS 213 (Miss. 1938).

It is the duty of the commissioners to fix the salary of the mayor and councilmen permanently and they have no power to bind the salary to one year, and the ordinance fixing salaries shall not be altered or repealed unless approved by the qualified electors of the city. Lewis v. Jane, 129 Miss. 475, 92 So. 625, 1922 Miss. LEXIS 67 (Miss. 1922).

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 24, 25 (affidavit of notice of posting or publication).

Cross References —

For comparable provisions under various forms of government, see §§21-7-17 (council);21-8-33 and21-8-35 (mayor-council); and21-9-75 and21-9-77 (council-manager).

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

An earlier charter provision in the charter of the city of Meridian, imposing personal liability upon municipal officers for appropriating money to any object not authorized by the charter, was carried forward when the city assumed the commission form of government. Paine v. Matthews, 213 Miss. 506, 57 So. 2d 148, 1952 Miss. LEXIS 391 (Miss. 1952).

Cross References —

Election offenses in connection with other forms of government, see §21-8-31 (mayor-council); and21-9-71 (council-manager).

Conservation officers prohibited from engaging in political campaigns, see §49-1-19.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

ALR.

Reviewability before trial of order denying qualified immunity to defendant sued in state court under 42 USCS § 1983. 49 A.L.R.5th 717.

Actionability, under 42 USCS § 1983, of claim arising out of maladministration of election. 66 A.L.R. Fed. 750.

Am. Jur.

26 Am. Jur. 2d, Elections §§ 459, 464.

CJS.

29 C.J.S., Elections §§ 540 et seq.

Editor’s Notes —

By letter dated July 22, 2010, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 2010, ch. 319, § 1.

Amendment Notes —

The 2010 amendment, in the last sentence, substituted “first day of July” for “first Monday of July” and inserted “that is not on a weekend.”

JUDICIAL DECISIONS

1. In general.

Provision for election in 1932, and every four years thereafter, held applicable to municipalities which had adopted commission form of government before Code became effective. State ex rel. Colmer v. Benvenutti, 162 Miss. 313, 137 So. 537, 1931 Miss. LEXIS 109 (Miss. 1931).

Cross References —

Classification of municipalities, see §21-1-1.

Designation of municipalities, see §21-1-9.

Various other forms of municipal government, see §§21-3-1 et seq. (code charter);21-5-1 et seq. (commission);21-8-1 et seq. (mayor-council); and21-9-1 et seq. (council-manager).

Procedure by which municipality may change to council form of government, see §21-7-5.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 141 et seq.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 64, 65 (allegations of capacity of plaintiff as a taxpayer, and of exercise of official functions by municipal officers).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 131 et seq. (claims, notice and presentation).

CJS.

62 C.J.S., Municipal Corporations § 268 et seq.

Cross References —

For comparable provisions under council-manager plan of government, see §21-9-77.

Cross References —

Proceedings for adoption of various other forms of government, see §§21-3-1 (code charter);21-5-1 (commission);21-8-3 and21-8-5 (mayor-council); and21-9-3,21-9-5, and21-9-9 (council-manager).

RESEARCH REFERENCES

Am. Jur.

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 24, 25 (affidavit of notice by posting or publication).

Editor’s Notes —

Section21-11-7 referred to in this section was repealed by Laws, 1986, ch. 495, § 329, eff from and after January 1, 1987. For comparable provisions, see §23-15-173.

Laws, 1979, ch. 452, § 26, amended this section, contingent on being effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended. Chapter 452 never became effective and was repealed by Laws, 1982, ch. 477, § 7, effective from and after April 22, 1982.

Cross References —

Procedure by which municipality may change to council form of government, see §21-7-5.

Election of councilmen and mayor under various other forms of government, see §§21-3-7 (code charter);21-5-5 (commission);21-8-7 and21-8-21 (mayor-council); and21-9-15 through21-9-19,21-9-61 (council-manager).

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

JUDICIAL DECISIONS

1. In general.

2. Relationship to other laws.

1. In general.

Under this section, a member of a city’s board of aldermen who was defeated in his bid for reelection was nevertheless entitled to retain his position until another election could be held where the election resulting in his defeat had been declared null and void due to election fraud. Crowe v. Lucas, 595 F.2d 985, 1979 U.S. App. LEXIS 14497 (5th Cir. Miss. 1979), disapproved, Hernandez v. Lafayette, 643 F.2d 1188, 1981 U.S. App. LEXIS 13680 (5th Cir. La. 1981).

2. Relationship to other laws.

In a 42 U.S.C.S. § 1983 case in which a contractor and its assignee sued a city following the cancellation of a contract which had been extended for 24 months by the former mayor and board of alderman (board) and cancelled by the new mayor and board, the contractor and its assignee unsuccessfully argued that Miss. Code Ann. §21-7-7 authorized the original board to agree to the term extension. Under Miss. Code Ann. §31-7-13(n)(i), the contract extension was an ultra vires act in the sense that the former mayor and board could not legally agree to bind the new mayor and board to the contract. ECO Res., Inc. v. City of Horn Lake, 640 F. Supp. 2d 826, 2009 U.S. Dist. LEXIS 55280 (N.D. Miss. 2009), aff'd, 379 Fed. Appx. 326, 2010 U.S. App. LEXIS 10183 (5th Cir. Miss. 2010).

OPINIONS OF THE ATTORNEY GENERAL

Because city’s Tourism Commission is part of executive branch of government and city council member is member of legislative branch of government, separation of powers doctrine prohibits such council member from serving on Tourism Commission. Criss, August 26, 1992, A.G. Op. #92-0563.

RESEARCH REFERENCES

ALR.

“At-Large” elections as violation of § 2 of Voting Rights Act of 1965 (42 USCS § 1973). 92 A.L.R. Fed. 824.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 151-153.

CJS.

62 C.J.S., Municipal Corporations §§ 273-280.

Editor’s Notes —

By letter dated September 20, 2012, the United States Attorney General determined that the amendments to this section by Chapter 442, Laws of 2012, were not subject to preclearance under Section 5 of the Voting Rights Act of 1965, as amended and extended.

Amendment Notes —

The 2012 amendment added the fifth sentence in (1).

The 2017 amendment substituted “Section 25-41-5(2)” for “Section 25-41-5(2)(b)” at the end of the fifth sentence of (1).

Cross References —

Moving municipality’s site of government in emergency resulting from enemy attack, see §§17-7-1 et seq.

Meetings of governing authorities under various forms of government, see §§21-3-19 (code charter);21-5-13 (commission);21-8-11 (mayor-council); and21-9-39 (council-manager).

Requirement of open and public meetings, see §§25-41-1 et seq.

RESEARCH REFERENCES

ALR.

Abstention from voting of member of municipal council present at session as affecting requisite voting majority. 63 A.L.R.3d 1072.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 156 et seq.

CJS.

62 C.J.S., Municipal Corporations §§ 248, 296 et seq., 308-312 et seq.

Cross References —

For comparable provisions under various other forms of government see §§21-3-15 (code charter);21-5-9 (commission);21-8-13 and21-8-23 (mayor-council); and21-9-21,21-9-31 and21-9-35 (council manager).

Surety bond required for certain appointed municipal officers, see §21-15-38.

General powers of governing authorities, see §21-17-5.

Authority to lease lands to the United States for the purpose of securing construction of air national guard armories, see §33-11-15.

RESEARCH REFERENCES

ALR.

Payment of attorneys’ services in defending action brought against officials individually as within power or obligation of public body. 47 A.L.R.5th 553.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 154, 155.

CJS.

62 C.J.S., Municipal Corporations §§ 150-184.

Cross References —

Function of mayor under various other forms of government, see §§21-3-15 (code charter);21-5-7 (commission);21-8-15 through21-8-19 (mayor-council); and21-9-37 (council-manager).

Other specific powers and duties of the mayor, see §§21-15-7 through21-15-15.

Reciprocal law enforcement between municipalities during civil emergencies, see §§21-21-31 et seq.

Duty of mayor to notify governor whenever local resources inadequate to cope with emergencies, see §33-7-301.

Emergency powers under civil defense law, see §§33-15-1 et seq.

Appointment of extra deputies and police officers, see §45-5-9.

Editor’s Notes —

Section 21-23-1 provides that wherever the words “police justice” appear in the laws of this state they shall mean municipal judge.

Cross References —

Powers of the council under various other forms of government, see §§21-3-15 (code charter);21-5-9 (commission);21-8-13 (mayor-council); and21-9-35 (council-manager).

Duties of street commissioner under code charter form of government, see §21-3-23.

Other duties of municipal clerk, see §§21-15-21 (auditor);21-33-27,21-33-41 (regarding property assessment rolls);21-33-47,21-33-67 (concerning municipal taxes);21-35-11,21-35-13 (keeping and reporting accounts);21-39-5,21-39-13 (regarding claims);21-39-19 (ex officio treasurer);21-41-13,21-41-21 (concerning special assessments).

Oath, tenure, compensation and bonding of deputy clerks, see §21-15-23.

Appointment and compensation of municipal attorney generally, see §21-15-25.

Compensation of building inspector, see §21-15-31.

Surety bond required for certain appointed municipal officers, see §21-15-38.

Duties, in part, of municipal assessor, see §21-33-9 to §21-33-23, inclusive.

Duty of tax assessor to notify state railroad assessors of certain property escaping assessment and taxation, see §21-33-55.

Duties of tax assessor, see §§27-1-1 et seq.

RESEARCH REFERENCES

ALR.

Validity, construction, and application of regulation regarding outside employment of governmental employees or officers. 94 A.L.R.3d 1230.

Cross References —

For comparable provisions under various other forms of government, see §§21-5-19 (commission);21-8-33 and21-8-35 (mayor-council); and21-9-75 and21-9-77 (council-manager).

Cross References —

Classification of municipalities, see §21-1-1.

Designation of municipalities, see §21-1-9.

Various other forms of municipal government, see §§21-3-1 et seq. (code charter);21-5-1 et seq. (commission);21-7-1 et seq. (council); and21-9-1 et seq. (council-manager).

OPINIONS OF THE ATTORNEY GENERAL

The governing authorities of a City may change the form of government to a mayor council form of government by amending the special charter in accordance with Section 21-17-9 and create a mayor council municipality similar to the mayor council form of government set forth in Section 21-8-1 et seq. Hutcherson, October 11, 1996, A.G. Op. #96-0651.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 141 et seq., 180 et seq.

CJS.

62 C.J.S., Municipal Corporations § 268 et seq.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-1 (code charter);21-5-1 (commission);21-7-5 (council);21-9-3,21-9-5, and21-9-9 (council-manager).

JUDICIAL DECISIONS

1. In general.

There is no basis for a constitutional challenge to a referendum which does not question procedures set forth in §§21-8-1 and21-8-3 but merely alleges that the majority of voters was racially motivated. Kirksey v. Jackson, 506 F. Supp. 491, 1981 U.S. Dist. LEXIS 11663 (S.D. Miss.), aff'd, 663 F.2d 659, 1981 U.S. App. LEXIS 15275 (5th Cir. Miss. 1981).

OPINIONS OF THE ATTORNEY GENERAL

In order for the City of Tupelo to change from a seven ward, two at-large system to a seven ward, no at-large system, an election must be held in accordance with this section. Mitchell, May 14, 2004, A.G. Op. 04-0205.

RESEARCH REFERENCES

Am. Jur.

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 24, 25 (affidavit of notice by posting or publication).

Editor's Notes —

Sections21-11-5 and 21-11-7, referred to in this section, were repealed by Laws of 1986, ch. 495, § 329, eff from and after January 1, 1987. For comparable provisions see §§23-15-171 and 23-15-173.

The United States Attorney General, by letter dated July 1, 1994, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 1994, ch. 358, § 1.

Laws of 2001, ch. 302, § 1, amended this section to conform redistricting provisions for the Mayor-Council form of government to the Council-Manager form of government.

The United States Attorney General, by letter dated April 9, 2001, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2001, ch. 360, § 2.

By letter dated July 22, 2010, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 2010, ch. 319, § 2.

This section was brought forward without change by Laws of 2019, ch. 340, § 5, effective from and after July 1, 2019. Since the language of the section as it appears in the main volume is unaffected by the bringing forward of the section, it is not reprinted in this supplement.

Amendment Notes —

The 2001 amendment, in (4), substituted “subparagraph (c)(ii)” for “subparagraphs (c)(ii) and (iii)” in the last sentence of (a), added (c)(ii) and deleted (e).

The 2010 amendment, in (2), substituted “first day of July” for “first Monday of July” and added “that is not on a weekend”; and substituted “paragraph (c)(ii)” for “subparagraph (c)(ii)” in the next-to-last sentence of (4)(a).

The 2011 substituted “council members” for “councilmen” throughout; in (6), substituted “however, in a municipality having a population of one hundred thousand (100,000) and above according to the latest federal decennial census” for “provided, however, that in municipalities with populations of one hundred ninety thousand (190,000) and above”; and made minor stylistic changes.

The 2019 amendment brought the section forward without change.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-7 (code charter);21-5-3,21-5-5 (commission); 21-7-7 (council); and21-9-15 through21-9-19 (council-manager).

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

JUDICIAL DECISIONS

1. In general.

2. Residency.

1. In general.

There is no basis for a constitutional challenge to a referendum which does not question procedures set forth in §§21-8-1 and21-8-3 but merely alleges that the majority of voters was racially motivated. Kirksey v. Jackson, 506 F. Supp. 491, 1981 U.S. Dist. LEXIS 11663 (S.D. Miss.), aff'd, 663 F.2d 659, 1981 U.S. App. LEXIS 15275 (5th Cir. Miss. 1981).

2. Residency.

Circuit court properly set aside the results of a primary election because the nominee was disqualified where she did not maintain a residence in the ward. Glenn v. Powell, 149 So.3d 480, 2014 Miss. LEXIS 516 (Miss. 2014).

OPINIONS OF THE ATTORNEY GENERAL

Since annexation would be effective less than six months prior to first primary of 1993 general municipal election, provisions of Miss. Code Section21-8-7(4)(d) are controlling; under this section, where annexation occurs within such time frame, redistricting required by Miss. Code Section21-8-7(4)(c)(i) would not become effective for election purposes until 1997 municipal election; in such situations, Miss Code §21-8-7(4)(d) requires that governing authorities merely assign annexed areas to adjacent ward or wards for purposes of upcoming municipal elections; phrase “any subsequent redistricting of the municipality by ordinance as required by this chapter shall not serve as the basis for representation until the next regularly scheduled election for municipal councilmen” within Miss. Code Section 21-8-7(4)(d) pertains to subsequent redistricting required by Miss. Code Section21-8-7(4)(c)(i), and not to assignment of annexed area and voters of annexed area to adjacent wards. Hewes, Mar. 5, 1993, A.G. Op. #92-0969.

Miss. Code Section 21-8-7(4)(a) is part of specific statute that is applicable only to mayor-council form of municipal government and has no general application. Cummings, Apr. 21, 1993, A.G. Op. #93-0199.

Miss. Code Section 21-8-7(4) allows candidate to use existing residence or change residence not less than fifteen days prior to first primary and to become candidate in any ward which allows incumbent council member to move out of geographical area from which incumbent was previously elected following redistricting, without vacating office. Cummings, Apr. 21, 1993, A.G. Op. #93-0199.

Miss. Code Section 21-8-7 (4)(a) specifically allows any person to qualify as candidate for city council in any ward contingent upon said person moving into appropriate ward not less than fifteen days from day of first primary; if such person does not make legitimate move establishing legal domicile in such ward by statutory deadline, candidate would not be qualified to be party’s nominee or receive any votes, even though candidate’s name may appear on primary ballot; any votes cast for said candidate would be void. Cummings, Apr. 21, 1993, A.G. Op. #93-0199.

Since the special charter creating the city of McComb is silent on the question of districting newly annexed territory for municipal elections, general statutory law governs; Subsection 4(d) apportions territory annexed within six months before an election. Myers, March 20, 1998, A.G. Op. #98-0162.

Councilmen of a municipality are public officers in the legislative department of government. Evans, May 7, 1999, A.G. Op. #99-0507.

Notwithstanding that compliance with the statute appeared to be impossible, a municipality could not disregard the statute for the general election scheduled in June 2001 and hold the 2001 municipal elections for members of the council from the current ward using the existing timetable and deadlines for qualifying, primary, and general elections. Bowman, Oct. 6, 2000, A.G. Op. #2000-0598.

RESEARCH REFERENCES

ALR.

Payment of attorneys’ services in defending action brought against officials individually as within power or obligation of public body. 47 A.L.R.5th 553.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 151-153.

CJS.

62 C.J.S., Municipal Corporations §§ 273-280.

Cross References —

Legislative power vested in council under council-manager plan of government, see §21-9-15.

Appointment, removal, qualifications, and term of office of civil service commissioners, see §§21-31-5 and21-31-53.

JUDICIAL DECISIONS

1. Council as final policymaker.

City council held the power of the purse, and the obvious conclusion was that the city was likewise the final policymaker for funding decisions; the council could override a veto, thus giving the council ultimate say, and because the council had the right of final review, it was the final policymaker. Advanced Tech. Bldg. Solutions, L.L.C. v. City of Jackson, 817 F.3d 163, 2016 U.S. App. LEXIS 4750 (5th Cir. Miss.), cert. denied, — U.S. —, 137 S. Ct. 297, 196 L. Ed. 2d 216, 2016 U.S. LEXIS 6071 (U.S. 2016).

OPINIONS OF THE ATTORNEY GENERAL

Mere budget resolution does not authorize Mayor to raise employee salaries or, in fact, to expend any municipal funds, without more explicit authorization from Council; governing authority of municipality under Mayor-Council form of government, at least with regards to establishing budget and authorizing expenditure of municipal funds, is City Council. McNeil, Feb. 8, 1990, A.G. Op. #90-0068.

City Council in Mayor-Council form of government is not required to include in budget funding for position of public defender in new budget year regardless of whether municipality currently employs public defender. Crowe, August 5, 1993, A.G. Op. #93-0516.

Council in mayor/council municipality did not have authority to direct mayor to allocate $100,000 to unspecified streets and capital projects in each ward or to direct mayor to allocate $200,000 for improvements to city buildings and recreational facilities; council could revise budget to increase appropriations for specific projects but council must make appropriations and cannot delegate that authority to mayor because power to appropriate funds through budget is fundamental legislative power. Cochran, March 9, 1994, A.G. Op. #94-0048.

Editor’s Notes —

By letter dated July 22, 2010, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 2010, ch. 319, § 5.

By letter dated September 20, 2012, the United States Attorney General determined that the amendments to this section by Chapter 442, Laws of 2012, were not subject to preclearance under Section 5 of the Voting Rights Act of 1965, as amended and extended.

Amendment Notes —

The 2010 amendment, in (2), substituted “first day of July” for “first Monday of July” and inserted “that is not on a weekend.”

The 2012 amendment in (2), substituted “quorum” for “members present” preceding “at any meeting shall be necessary to adopt” in the third sentence, and added the fourth sentence.

The 2017 amendment substituted “Section 25-41-5(2)” for “Section 25-41-5(2)(b)” at the end of the fourth sentence of (2).

Cross References —

Moving municipality’s site of government in emergency resulting from enemy attack, see §§17-7-1 et seq.

For comparable provisions under various other forms of government, see §§ 21-3-19 (code charter);21-5-13 (commission);21-7-9 (council); and21-9-39 (council-manager).

Appointment, removal, qualifications, and term of office of civil service commissioners, see §§21-31-5 and21-31-53.

Advisory park and recreation commission for certain mayor-council municipalities, see §21-37-33.

Requirement of open and public meetings, see §§25-41-1 et seq.

JUDICIAL DECISIONS

1. In general.

Circuit court properly concluded that a city council’s vote did not constitute a majority of the quorum under Miss. Code Ann. 21-8-11, where only two of the four members present at the city council meeting voted to adopt the rezoning ordinance on the property. City of Jackson v. Allen, 242 So.3d 8, 2018 Miss. LEXIS 53 (Miss. 2018).

City council members did not have the authority to pursue an appeal from an order of the circuit court which limited the appointment powers of the council and held certain actions taken by the council to be void, and the council members were without standing to maintain the appeal on behalf of the council, where the council did not authorize the appeal by the council members in their official capacity and the record showed that the council was affirmatively against any such action. Gaddy v. Bucklew, 580 So. 2d 1180, 1990 Miss. LEXIS 811 (Miss. 1990).

OPINIONS OF THE ATTORNEY GENERAL

Motions pertaining to procedural actions governing the conduct of a city council’s meeting are not required to be in writing. Scott, June 17, 1992, A.G. Op. #92-0415.

In the continuing absence of an elected council president, the vice-president is the “acting president” of the council. Evans, May 7, 1999, A.G. Op. #99-0507.

Whether an election will be held to fill the position of president a city council vacated because he was called to active duty in the Mississippi National Guard is a matter which must be determined by the council. The council may choose to do nothing, and thereby allow the vice-president to continue to serve as “acting president.” Alternatively, the council may choose to elect a new president by majority vote. Neville, Dec. 30, 2003, A.G. Op. 03-0702.

The notice requirements of this section are not binding upon a city is governed by a special charter, and failure to comply with the provisions of this section has no affect on the conduct of a special meeting in the city or the validity of any actions taken at such a meeting. This is assuming the governing authorities of the city have not adopted the special meeting notice requirements contained in this section by official policy. Stovall, Mar. 12, 2004, A.G. Op. 0069.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 156 et seq.

CJS.

62 C.J.S., Municipal Corporations §§ 284, 296 et seq., 308-312 et seq.

Amendment Notes —

The 2006 amendment rewrote (4) to clarify the executive authority of the mayor and the legislative authority of the council in the mayor-council form of government.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-15 (code charter);21-5-9 (commission);21-7-11 through21-7-15 (council); and21-9-31,21-9-35 and21-9-53 (council-manager).

Limits of the definition of “ordinance” with respect to council’s investigative function under this section, see §21-8-47.

General powers of governing authorities, see §21-17-5.

Appointment, removal, qualifications, and term of office of civil service commissioners, see §§21-31-5 and21-31-53.

Advisory park and recreation commission for certain mayor-council municipalities, see §21-37-33.

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 21-8-13(4), city council may require any municipal officer, which would include city clerk, to investigate conduct of any department, office or agency of municipal government. Hewes, Apr. 7, 1993, A.G. Op. #93-0131.

Employment of internal auditor does not meet Miss. Code Section 21-8-13(2) requirement for examination of books, accounts and vouchers by independent accountant. Hewes, Apr. 7, 1993, A.G. Op. #93-0131.

Council in mayor/council municipality did not have authority to direct mayor to allocate $100,000 to unspecified streets and capital projects in each ward or to direct mayor to allocate $200,000 for improvements to city buildings and recreational facilities; council could revise budget to increase appropriations for specific projects but council must make appropriations and cannot delegate that authority to mayor. Cochran, March 9, 1994, A.G. Op. #94-0048.

There is no authority for the city council to appoint or employ a council attorney or attorneys to advise or render legal assistance to the city council. Stokes, March 5, 1999, A.G. Op. #99-0063.

A city council has no “investigative powers” over a public school district and is without authority to hire an outside auditor to investigate the district. Campbell, Sept. 16, 2005, A.G. Op. 05-0468.

Reading Sections 21-8-13(4) and 21-8-27 in pari materia, individual city council members can legally request information and advice from any municipal employee, and if such employee refuses to voluntarily supply the requested information, the council as a whole can compel a response. Crisler, Mar. 24, 2006, A.G. Op. 06-0073.

There is no conflict between Sections 21-8-13 and 21-8-27 since the two statutes address different types of communications by the city council with municipal employees. Magee, June 30, 2006, A.G. Op. 06-0274.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 154-156.

CJS.

62 C.J.S., Municipal Corporations §§ 150-154.

Amendment Notes —

The 2006 amendment rewrote the section to clarify the executive authority of the mayor and the legislative authority of the council in the mayor-council form of government.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-15 (code charter) and21-5-7 (commission).

Appointment, removal, qualifications, and term of office of civil service commissioners, see §§21-31-5 and21-31-53.

JUDICIAL DECISIONS

1. In general.

In an election contest filed by a mayor’s opponent, the mayor’s appeal did not have to be dismissed for the city council’s failure to authorize an appeal because (1) no statute required such authorization, and (2) it was not shown that the city council expressly prohibited the appeal. McAdams v. Perkins, 204 So.3d 1257, 2016 Miss. LEXIS 506 (Miss. 2016).

Even if the mayor could direct the executive director of the Joint Redevelopment Authority (JRA), it was the JRA commissioners, not its executive director, who made the actual decisions regarding which projects to support; the mayor’s statutory authority to influence the JRA was constrained, and because the city council had policymaking authority over funding, the city was not liable for the mayor’s actions. Advanced Tech. Bldg. Solutions, L.L.C. v. City of Jackson, 817 F.3d 163, 2016 U.S. App. LEXIS 4750 (5th Cir. Miss.), cert. denied, — U.S. —, 137 S. Ct. 297, 196 L. Ed. 2d 216, 2016 U.S. LEXIS 6071 (U.S. 2016).

Ordinances requiring city council approval for mayor’s appointment of city attorney, municipal judges, and prosecutors are consistent with statutory requirement that executive authority be vested with mayor in mayor-council form of government. Jordan v. Smith, 669 So. 2d 752, 1996 Miss. LEXIS 8 (Miss. 1996).

“Claims docket” method of handling municipal expenditures-appropriate department must bring properly docketed claim, before council for approval-is statutorily required although facially incompatible with statutory mayor-council form of government. Jordan v. Smith, 669 So. 2d 752, 1996 Miss. LEXIS 8 (Miss. 1996).

OPINIONS OF THE ATTORNEY GENERAL

In certain circumstances, such as a vacancy, the mayor may designate an individual to perform the core duties of department director on a temporary basis to ensure that the functions of that department are maintained in the interest of the health and welfare of the citizens; however, as there is no distinction in the statutes between temporary and permanent directors, all appointments to the position of department director whether interim or permanent must receive council approval pursuant to Section 21-8-23(2). Doty, Feb. 4, 2000, A.G. Op. #2000-0014.

A town that collects it own garbage fees is advised to provide any persons delinquent in payment of fees procedural due process, including notice and an opportunity for a hearing, prior to submitting their names to the county tax collector. Childers, Mar. 24, 2006, A.G. Op. 06-0038.

Nothing in state law would prohibit a mayor from initiating or proposing the formation of an advisory body to advise the mayor in post-Hurricane Katrina rebuilding efforts. Fitzpatrick, Mar. 24, 2006, A.G. Op. 06-0032.

Amendment Notes —

The 2006 amendment added the last sentence in (1).

Cross References —

For comparable provisions under various other forms of government, see §§21-3-15 (code charter);21-5-7 (commission);21-7-13 (council); and21-9-37 (council-manager).

Other specific powers and duties of the mayor, see §§21-15-7 through21-15-15.

Reciprocal law enforcement between municipalities during civil emergencies, see §§21-21-31 et seq.

Appointment, removal, qualifications, and term of office of civil service commissioners, see §§21-31-5 and21-31-53.

Advisory park and recreation commission for certain mayor-council municipalities, see §21-37-33.

Duty of mayor to notify governor whenever local resources inadequate to cope with emergency, see §33-7-301.

Authority to lease lands to the United States for the purpose of securing construction of air national guard armories, see §33-11-15.

Emergency powers under civil defense law, see §§33-15-1 et seq.

Appointment of extra deputies and police officers, see §45-5-9.

JUDICIAL DECISIONS

1. Council as final policymaker.

City council held the power of the purse, and the obvious conclusion was that the city was likewise the final policymaker for funding decisions; the council could override a veto, thus giving the council ultimate say, and because the council had the right of final review, it was the final policymaker. Advanced Tech. Bldg. Solutions, L.L.C. v. City of Jackson, 817 F.3d 163, 2016 U.S. App. LEXIS 4750 (5th Cir. Miss.), cert. denied, — U.S. —, 137 S. Ct. 297, 196 L. Ed. 2d 216, 2016 U.S. LEXIS 6071 (U.S. 2016).

OPINIONS OF THE ATTORNEY GENERAL

In certain circumstances, such as a vacancy, the mayor may designate an individual to perform the core duties of department director on a temporary basis to ensure that the functions of that department are maintained in the interest of the health and welfare of the citizens; however, as there is no distinction in the statutes between temporary and permanent directors, all appointments to the position of department director whether interim or permanent must receive council approval pursuant to Section 21-8-23(2). Doty, Feb. 4, 2000, A.G. Op. #2000-0014.

In a strong mayor form of government, if the mayor refuses to enforce an ordinance or policy adopted by the council on legislative matters, the city council may seek judicial relief in a court of competent jurisdiction. Holmes-Hines, Mar. 7, 2003, A.G. Op. #03-0072.

A mayor’s authority to make other recommendations to the city council, includes recommending proposed ordinances. Fitzpatrick, Mar. 24, 2006, A.G. Op. 06-0032.

Nothing in Section 21-8-17 or any other legal authority can be interpreted to grant the mayor of a mayor-council municipality the authority to ban gun shows by the issuance of an executive order or otherwise. White, June 2, 2006, A.G. Op. 06-0220.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-13 (code charter);21-5-7 (commission);21-7-13 (council); and21-9-37 (council-manager).

OPINIONS OF THE ATTORNEY GENERAL

Pursuant to Miss. Code Section 21-8-19, Mayor may choose Acting Mayor when Mayor will be absent from office for longer than sixty days. Schissel, Apr. 28, 1993, A.G. Op. #93-0289.

As the provisions contained in the special charter of a city are specific in nature with regard to the powers of the mayor pro tempore and the president of the council, this section is not applicable. Carouthers, Aug. 29, 2003, A.G. Op. 03-0452.

Miss. Code Ann. §21-8-19 requires a mayor who is unable to serve due to absence, disability or other causes to appoint a member of the city council to assume the duties of the mayor. The appointee cannot be a city employee or a group of city employees, however a mayor may delegate certain powers to city employees in the ordinary course of business. When a mayor is unable to serve for sixty consecutive days, the city council is required to appoint one of its members as acting mayor and may be forced to do so by a writ of mandamus. McLemore, February 23, 2007, A.G. Op. #07-00087, 2007 Miss. AG LEXIS 32.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-9 (code charter);21-5-5 (commission);21-7-7,21-7-13 (council); and21-9-15,21-9-61 and21-9-63 (council-manager).

Police departments generally, see §§21-21-1 et seq.

Fire departments generally, see §§21-25-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Notwithstanding any provision of Comprehensive Personnel Ordinance to contrary, council must ultimately set salary and compensation levels of all municipal employees. Halat, Oct. 26, 1990, A.G. Op. #90-0137.

A police officer may work for two different municipalities, but must fulfill responsibilities of both positions and cannot be paid by both municipalities for the same hours. Scott, July 11, 1997, A.G. Op. #97-0383.

A city council has the power to set salaries and to raise or reduce the salaries of department heads and all municipal employees pursuant to subsection (2). McLemore, Jan. 25, 2002, A.G. Op. #02-0004.

Only the city council in a mayor/council form of government has the authority to issue employee pay increases. Taylor, Sept. 15, 2006, A.G. Op. 06-0437.

Amendment Notes —

The 2009 amendment substituted “Fifty Thousand Dollars ($50,000.00)” for “Ten Thousand Dollars ($10,000.00)” in (6).

The 2017 amendment deleted “and until the appointment and qualification of his successor” from the end of (2).

The 2018 amendment added "and until the appointment…Section 21-15-41" at the end of (2).

Cross References —

For comparable provisions under various other forms of government, see §§21-3-5 (code charter);21-5-9 and21-5-11 (commission);21-7-11 (council); and21-9-21 (council-manager).

Surety bond required for certain appointed municipal officers, see §21-15-38.

JUDICIAL DECISIONS

1.-2. [Reserved for future use.]

3. Department directors.

1.-2. [Reserved for future use.]

3. Department directors.

Trial court properly granted council members’ petition for a writ of mandamus directing a reelected mayor to resubmit department directors for approval to the council pursuant to Miss. Code Ann. §21-8-23(2) where §21-8-23(2) required that the mayor resubmit directors for approval by the council at the beginning of the new term of office, even if a director was a holdover from the previous term and had been previously approved by the council. DuPree v. Carroll, 967 So. 2d 27, 2007 Miss. LEXIS 589 (Miss. 2007).

OPINIONS OF THE ATTORNEY GENERAL

While there is no specific statutory procedure for reconsideration of matter previously voted on by city council, nothing would prohibit mayor from appointing qualified individual second time after council failed to confirm that individual following his first appointment. Jones, Feb. 21, 1990, A.G. Op. #90-0118.

Refusal of city council to confirm Mayor’s appointee is not subject to Mayor’s veto; to say otherwise would have effect of allowing Mayor to use his veto power to obtain confirmation without affirmative vote of majority of council as required by statute. Jones, Feb. 28, 1990, A.G. Op. #90-0156.

Statute requires city council confirmation of appointment of Acting Departmental Director whether it is expected to be temporary appointment or otherwise; such appointment which is made and confirmed would then be subject to removal in accordance to statute. Jones, March 16, 1990, A.G. Op. #90-0202.

Under Miss. Code Section 21-8-23, city council may establish municipal departments and mayor may appoint director of such departments, subject to confirmation by council; subsection (3) provides that such directors of departments shall be excluded from coverage of any civil service system; there is no requirement that Chief City Attorney be department director appointed by mayor; attorney could simply be staff member of particular department appointed by director of that department under Miss. Code Section 21-8-23(4); as such, attorney could be covered by civil service. Hewes, Mar. 29, 1993, A.G. Op. #92-0952.

When mayor of mayor-council city is re-elected to office, mayor should submit his appointments for department directors to city council for confirmation each term, even if those named are current directors. Lawrence, March 9, 1994, A.G. Op. #94-0046.

After a majority of the city council members present and voting at a meeting have confirmed an appointment to a board, authority or commission authorized by general legislation, the council members are not empowered to withdraw that confirmation. Doty, May 1, 1998, A.G. Op. #98-0228.

The city council may amend the ordinance establishing the salary for every municipal employee from time to time as, in the council’s discretion, occasion may demand; further, the salary of every municipal employee must be fixed by such ordinance. Wansley, July 10, 1998, A. G. Op. #98-0283.

In certain circumstances, such as a vacancy, the mayor may designate an individual to perform the core duties of department director on a temporary basis to ensure that the functions of that department are maintained in the interest of the health and welfare of the citizens; however, as there is no distinction in the statutes between temporary and permanent directors, all appointments to the position of department director whether interim or permanent must receive council approval pursuant to Section 21-8-23(2). Doty, Feb. 4, 2000, A.G. Op. #2000-0014.

If a mayor does not fulfill his term and resigns or leaves for some other reason and a new mayor comes in to fill the unexpired term of the former mayor, the new mayor must resubmit names of the department heads to the city council for reconfirmation. Doty, Feb. 18, 2000, A.G. Op. #2000-0070.

The statute requires the mayor to present appointments to the city council for confirmation, but does not specifically state what alternatives the city council may pursue if the mayor does not present appointments to the city council for confirmation. McLemore, Jan. 25, 2002, A.G. Op. #02-0004.

As there is no distinction in the statutes between temporary and permanent directors, all appointments to the position of department director, whether interim or permanent, must receive city council approval pursuant to subsection (2). McLemore, Jan. 25, 2002, A.G. Op. #02-0004.

Seminar or conference registration fees may be paid for members of appointed boards and commissions, provided those expenses are found to be necessary for the members’ board or commission responsibilities. Myers, Feb. 21, 2003, A.G. Op. #03-0078.

A city may pay travel expenses in connection with the attendance at a necessary seminar, conference or workshop. Myers, Feb. 21, 2003, A.G. Op. #03-0078.

A city may pay membership dues or fees for an appointed board or commission member to become a member of an organization which provides information, training, etc. for the board or commission on which they serve. Myers, Feb. 21, 2003, A.G. Op. #03-0078.

If the expense of a publication is found to be reasonable and necessary to the performance of an officer’s duties, and the benefits thereof will inure to the benefit of the municipality with any personal benefit being incidental, the municipality may pay for subscriptions. Myers, Feb. 21, 2003, A.G. Op. #03-0078.

In a city with a Mayor-Council form of government, the Mayor does not have the discretion to approve expenditures for travel, membership dues, seminar fees or professional publications or professional publications; they must be approved by the City Council. Myers, Feb. 21, 2003, A.G. Op. #03-0078.

If the a city has a duly enacted ordinance establishing the fire department as a municipal department and the fire chief as the director of that department, then only the mayor has the authority to remove that individual from the position. Bailey, Feb. 2, 2004, A.G. Op. 04-0017.

An “acting” or interim director must meet the same qualifications and be confirmed in the same manner as a permanent director. Campbell, Oct. 17, 2005, A.G. Op. 05-0467.

The intent of Section 21-8-23 is that a mayor shall appoint department directors within a reasonable time after taking office. Carroll, Feb. 24, 2006, A.G. Op. 06-0013.

In a mayor/council form of municipal government, a mayor, including one who is re-elected to a new four-year term of office, must submit his appointees to director positions to the city council for confirmation, even if the appointees are the same individuals who served as department directors during the prior term. DuPree, Feb. 24, 2006, A.G. Op. 06-0058.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-25 (code charter); and21-9-25 (council-manager).

Surety bond required for certain appointed municipal officers, see §21-15-38.

OPINIONS OF THE ATTORNEY GENERAL

A municipal civil service commission would have no authority with regard to benefits to be provided to municipal employees by the governing authority. Bowman, Feb. 7, 2003, A.G. Op. #03-0771.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-15 (code charter); and21-9-31 (council-manager).

Definition of “ordinance” with respect to council’s investigative function, see §21-8-47.

OPINIONS OF THE ATTORNEY GENERAL

Individual council members can legally request information and advice from any municipal employee, and if such employee refuses to voluntarily supply requested information, council as whole can compel response; council as whole may decide to limit inquiry in some fashion, but no other entity of municipal government has any authority to limit or circumscribe council member’s inquiry. Halat, May 18, 1990, A.G. Op. #90-0352.

A city council member in a mayor-council municipality may inquire and receive information and advice directly from department heads and employees without dealing with the mayor. Jones, Sept. 19, 2003. A.G. Op. 03-0470.

There are no deadlines for architects and engineers who provide professional services to municipalities to respond to requests for information from the governing authorities or individual council members apart from any contractual duties that exist. However, architects and engineers should comply in a timely manner with reasonable requests for information from council members or the council as a whole. Jones, Sept. 19, 2003. A.G. Op. 03-0470.

Reading Sections 21-8-13(4) and 21-8-27 in pari materia, individual city council members can legally request information and advice from any municipal employee, and if such employee refuses to voluntarily supply the requested information, the council as a whole can compel a response. Crisler, Mar. 24, 2006, A.G. Op. 06-0073.

There is no conflict between Sections 21-8-13 and 21-8-27 since the two statutes address different types of communications by the city council with municipal employees. Magee, June 30, 2006, A.G. Op. 06-0274.

Editor’s Notes —

Former §21-8-29 made it a misdemeanor for municipal officers and employees to have certain prohibited interests.

Cross References —

For comparable provisions under various other forms of government, see §§21-5-21 (commission); and21-9-71 (council-manager).

Conservation officers prohibited from engaging in political campaigns, see §49-1-19.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

Am. Jur.

26 Am. Jur. 2d, Elections §§ 459, 464.

CJS.

29 C.J.S., Elections §§ 540 et seq.

Cross References —

For comparable provisions under various other forms of government, see §§21-5-19 (commission);21-7-17 (council); and21-9-75 and21-9-77 (council-manager).

Civil service laws generally, see §§21-31-1 et seq.

Editor’s Notes —

Section 21-23-1 provides that wherever the words “police court” and “police justice” appear in the laws of this state they shall mean municipal court and municipal judge, respectively.

Cross References —

For comparable provisions under various other forms of government, see §§21-5-19 (commission);21-7-17 (council); and21-9-75 and21-9-77 (council-manager).

Municipal courts generally, see §§21-23-1 et seq.

Cross References —

Corporate names in general, see §21-1-5.

For comparable provisions under various forms of government, see §§21-5-3 (commission); and21-9-35 (council-manager).

Cross References —

Creation and operation of firemen’s and policemen’s disability and relief funds, see §§21-29-101 et seq.,21-29-201 et seq.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 151-152.

CJS.

62 C.J.S., Municipal Corporations § 273-280.

Cross References —

Municipal ordinances generally, see §§21-13-1 et seq.

Cross References —

Classification of municipalities, see §21-1-1.

Designation of municipalities, see §21-1-9.

Various other forms of municipal government, see §§21-3-1 et seq. (code charter);21-5-1 et seq. (commission);21-7-1 et seq. (council); and21-8-1 et seq. (mayor-council).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 141 et seq.

180 et seq.

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 180:20 (municipal corporation charter for council-manager form of government).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 64, 65 (allegations of capacity of plaintiff as taxpayer, and of exercise of official functions by municipal officers).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 131 et seq. (claims, notice and presentation).

CJS.

62 C.J.S. Municipal Corporations §§ 268 et seq.

Cross References —

For comparable provisions under various forms of government, see §§21-3-1 (code charter);21-5-1 (commission);21-7-5 (council); and21-8-3 and21-8-5 (mayor-council).

Results of election, see §21-9-5.

Transition to council-manager plan, §21-9-7.

Repeal of council-manager plan, see §21-9-9.

Conduct of elections, see §21-9-11.

JUDICIAL DECISIONS

1. In general.

Where, following the entry of an order granting petition and directing an election on the proposition of whether to retain the present form of city government or to adopt the council-manager form, all in conformity with this section [Code 1942, § 3825.5-02], the city clerk thereafter caused a false and fictitious order to be entered on the minutes adding a second proposition to be voted on with respect to the election of councilmen, the election held under the second order was invalid and the order of the city council adopting and filing the report of the election commission and changing the form of city government was void. City of Pascagoula v. May, 254 Miss. 208, 176 So. 2d 892, 1965 Miss. LEXIS 943 (Miss. 1965).

RESEARCH REFERENCES

Am. Jur.

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18 Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 24, 25 (affidavit of notice by posting or publication).

Cross References —

For comparable provisions under various forms of government, see §§21-3-1 (code charter);21-5-1 (commission);21-7-5 (council); and21-8-3 and21-8-5 (mayor-council).

Transition to council-manager plan, see §21-9-7.

Conduct of elections, see §21-9-11.

JUDICIAL DECISIONS

1. In general.

Where the entire proceedings to change to a council-manager form of government were based upon a false and fictitious order calling the election, and a false certificate to the notice of election, there was no duty and no power to adopt or approve such proceedings or to certify to the secretary of state that the council-manager form of government had been adopted. City of Pascagoula v. May, 254 Miss. 208, 176 So. 2d 892, 1965 Miss. LEXIS 943 (Miss. 1965).

Cross References —

Results of election and effective date of change, see §21-9-5.

Conduct of elections, see §21-9-11.

Transition from council-manager plan, see §21-9-13.

JUDICIAL DECISIONS

1. In general.

The purpose of this section [Code 1942, § 3825.5-04] was to provide for an orderly transition from mayor-councilman or alderman form of government to council-manager plan of government, and it was not the legislative purpose by enacting this section [Code 1942, § 3825.5-04] to legislate out of office a mayor and commissioners who had been previously elected. Krebs v. Bradley, 190 So. 2d 886, 1966 Miss. LEXIS 1418 (Miss. 1966).

Cross References —

Judicial definitions and illustrations generally, see §§1-3-1 et seq.

Results of election and effective date of change, see §21-9-5.

Conduct of elections, see §21-9-11.

Transition from council-manager plan, see §21-9-13.

OPINIONS OF THE ATTORNEY GENERAL

A municipality not having a shelter for animals may not take custody of animals running at large unless it makes other arrangements for impounding the animals, such as contracting with a non-profit entity or another municipality to provide shelter services. Redmond, Aug. 26, 2005, A.G. Op. 05-0447.

Cross References —

Results of election and effective date of change, see §21-9-5.

Transition to council-manager plan, see §21-9-7.

Procedure for repeal of council-manager plan, see §21-9-9.

Transition from council-manager plan, see §21-9-13.

Ordering special elections and conducting elections in council-manager cities, see §§21-9-67,21-9-69.

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

Cross References —

Transition to council-manager plan, see §21-9-7.

Repeal of council-manager plan, see §21-9-9.

Conduct of elections, see §21-9-11.

Editor's Note —

This section was brought forward without change by Laws of 2019, ch. 340, § 6, effective from and after July 1, 2019. Since the language of the section as it appears in the main volume is unaffected by the bringing forward of the section, it is not reprinted in this supplement.

Amendment Notes —

The 2019 amendment brought the section forward without change.

Cross References —

For comparable provisions under various forms of government, see §§21-3-7 (code charter);21-5-5 (commission);21-7-7 (council); and21-8-7 and21-8-9 (mayor-council).

Primary elections for mayor and councilmen, see §21-9-17.

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

JUDICIAL DECISIONS

1. In general.

Mississippi Code §21-9-15(2) was inapplicable to render defective a petition seeking to establish in Jackson County a new municipality, with a form of government consisting of a mayor and five council members. City of Pascagoula v. Scheffler, 487 So. 2d 196, 1986 Miss. LEXIS 3105 (Miss. 1986).

The Legislature may provide by general laws for the change of the form of government of a municipal corporation and its act in so doing is valid even though it may result in legislating office holders out of office. Krebs v. Bradley, 190 So. 2d 886, 1966 Miss. LEXIS 1418 (Miss. 1966).

OPINIONS OF THE ATTORNEY GENERAL

For purposes of application of the separation of powers doctrine, under a council-manager form of government, a council member is an officer in the legislature branch of government. Tynes, July 27, 2006, A.G. Op. 06-0277.

Cross References —

Conduct of municipal council election, see §21-9-19.

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

Amendment Notes —

The 2017 amendment, effective April 18, 2017, deleted the second sentence of the first paragraph, which read: “In all cases in which two or more persons are to be elected to the same office, the failure on the part of any elector to indicate his choice for as many candidates as there are officers to be elected to such office, shall render his ballot void as to any candidate voted for by him for such office”; in the second paragraph, substituted “poll managers” for “managers of election” in the first sentence, in the second sentence, substituted “municipal election” for “said election” and “six (6) business days” for “five days,” and in the third sentence, inserted “(2)” and “a toss of a coin or by” and substituted “drawn under the direction of the election” for “drawn by the election”; and in the last paragraph, substituted “ten (10) business days” for “five days.”

Cross References —

For comparable provisions under various forms of government, see §§21-5-3 (commission);21-7-7 (council); and21-8-7 (mayor-council).

Primary election for candidates for mayor and councilmen, see §21-9-17.

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

OPINIONS OF THE ATTORNEY GENERAL

For appointments made under §21-9-29(d), under the city manager’s administrative authority in subsection (a) of this section, the city manager may reassign non-statutory duties except he may not do so where such reassignment would conflict with an ordinance adopted by the city council establishing the duties of an office or department pursuant to §21-9-45. Ramsey, Nov. 30, 2004, A.G. Op. 04-0583.

Amendment Notes —

The 2009 amendment substituted “Fifty Thousand Dollars ($50,000.00)” for “Ten Thousand Dollars ($10,000.00)” near the end of the second paragraph.

Cross References —

For comparable provisions under various other forms of government, see §§21-5-9,21-5-11 (commission);25-7-11 (council); and21-8-23 (mayor-council).

Surety bond required for certain appointed municipal officers, see §21-15-38.

Amendment Notes —

The 2011 amendment in the first paragraph, rewrote the former second and third sentences as the second sentence; rewrote the third sentence; added the fourth sentence; and made minor stylistic changes.

Cross References —

Chief administrative officers under other forms of government, see §§21-3-25 (code charter); and21-8-25 (mayor-council).

Term of office and removal of city manager, see §21-9-27.

Duties of city manager, see §21-9-29.

City manager excluded from civil service laws, see §21-9-79.

Cross References —

Choosing a city manager, see §21-9-25.

Duties of city manager, see §21-9-29.

City manager excluded from civil service laws, see §21-9-79.

OPINIONS OF THE ATTORNEY GENERAL

The city manager, not the city council, appoints police officers. The police chief may but need not recommend that the city manager hire a certain police officer. Walker, Aug. 1, 2003, A.G. Op. 03-0285.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 182, 183.

CJS.

62 C.J.S., Municipal Corporations §§ 467-470.

Editor’s Notes —

Section 21-23-1 provides that wherever the words “police justice” appear in the laws of this state they shall mean municipal judge.

Cross References —

Choosing city manager, see §21-9-25.

Term of office and removal of city manager, see §21-9-27.

City manager excluded from civil service laws, see §21-9-79.

Surety bond required for certain appointed municipal officers, see §21-15-38.

General powers of a municipality, see §§21-17-1 et seq.

Police department and municipal court, see §§21-21-1 et seq.,21-23-1 et seq.

Fire department, see §§21-25-1 et seq.

Public utilities and transportation, see §§21-27-1 et seq.

Municipal employees’ retirement and disability systems, see §§21-29-1 et seq.

Appointment and removal of civil service employees of municipality, see §§21-31-1 et seq.

Municipal bond issues and other tax and fiscal matters, see §§21-33-1 et seq.

Municipal budgets generally, see §§21-35-1 et seq.

Municipal contracts and claims, see §§21-39-3 et seq.

Authority to lease lands to the United States for the purpose of securing construction of air national guard armories, see §33-11-15.

JUDICIAL DECISIONS

1. In general.

2. Leases.

1. In general.

Since this section [Code 1942, § 3825.5-17] confers upon the manager of a city operating under a council-manager plan of government the power to employ a city engineer and to supervise and control him in the performance of his duties, the court could not interfere with the exercise of such powers of the city manager, or prohibit the city engineer from accepting employment with the performance of engineering services for private individuals upon his own time, since neither the legislature nor the city council had seen fit to impose such restrictions. Damon v. Slaughter, 233 Miss. 117, 101 So. 2d 342, 1958 Miss. LEXIS 363 (Miss. 1958).

2. Leases.

A city manager may not enter into leases or negotiate regarding them, although a city council perhaps could delegate specific authority. JLG Concrete Prods. Co. v. City of Grenada, 722 So. 2d 1283, 1998 Miss. App. LEXIS 916 (Miss. Ct. App. 1998).

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 21-9-29, city manager has general oversight responsibility as to police department, but does not have responsibility for daily operations of department. Ramsay, Mar. 10, 1993, A.G. Op. #93-0155.

The police chief serves at the will and pleasure of the city manager and is subject to his direction and control. Johnson, Nov. 5, 2004, A.G. Op. 04-0547.

A city manager may reorganize city government and realign job responsibilities of the employment positions and offices reporting to him, except that in those cases where the city council creates an office or department, and assigns those offices or departments specific powers and duties in accordance with §21-9-45, the city manager is bound by the provisions of that ordinance. Ramsey, Nov. 30, 2004, A.G. Op. 04-0583.

In the council-manager form of government neither the city attorney nor the municipal judge are administrative positions, therefore they are not subject to the administrative control of the city manager. Ramsey, Nov. 30, 2004, A.G. Op. 04-0583.

For those appointments made by the city council under subsection (d) of this section, the city council has the authority to determine to whom those appointees report; however, the city attorney and municipal judge, as non-administrative positions, must be assigned to the city council. Ramsey, Nov. 30, 2004, A.G. Op. 04-0583.

For appointments made under subsection (d) of this section, under the city manager’s administrative authority in §21-9-19 (a), the city manager may reassign non-statutory duties except he may not do so where such reassignment would conflict with an ordinance adopted by the city council establishing the duties of an office or department pursuant to §21-9-45. Ramsey, Nov. 30, 2004, A.G. Op. 04-0583.

Once a municipality establishes a civil service system in accordance with state law, the municipality is required to act in accordance with those lawfully adopted rules, regulation and procedures governing the municipality’s civil service system. Ramsey, Nov. 30, 2004, A.G. Op. 04-0583.

A city manager must choose a new employee from the list of those eligible candidates or applicants who have completed the requirements and meet the criteria set forth by the civil service commission rules and regulations. Tynes, Aug. 4, 2006, A.G. Op. 06-0314.

The city manager holds the authority to set and approve minimum job qualifications, requirements and job descriptions for municipal jobs other than those created by the council under Miss. Code Ann. §21-9-45. A city manager may reject a job candidate list and form a new one using new job requirements, provided that the new job requirements are appropriate and consistent with state law, the proposed action does not violate the Civil Service Commission regulation, and the new list contains candidates that meet the criteria set forth by the Civil Service Commission. Tynes, March 9, 2007, A.G. Op. #07-00092, 2007 Miss. AG LEXIS 97.

Cross References —

For comparable provisions under various other forms of government, see §§21-3-15 (code charter); and21-8-13 (mayor-council).

Cross References —

Council meetings, see §21-9-39.

Cross References —

Naming or renaming municipality, see §§21-1-5,21-1-7.

Powers of council under various other forms of government, see §§21-3-15 (code charter);21-5-9 (commission);21-7-11 (council); and21-8-13 (mayor-council).

Corporate names under various other forms of government, see §§21-5-3 (commission) and21-8-37 (mayor-council).

General powers of governing authorities, see §21-17-5.

JUDICIAL DECISIONS

1. In general.

A provision in the charter of the city of Meridian under Laws of 1888, ch 228, § 15, imposing personal liability upon municipal officers for appropriating money to any object not authorized by the charter, was carried forward when the city subsequently adopted the council-manager form of government. Paine v. Matthews, 213 Miss. 506, 57 So. 2d 148, 1952 Miss. LEXIS 391 (Miss. 1952).

OPINIONS OF THE ATTORNEY GENERAL

The city manager, not the city council, appoints police officers. The police chief may but need not recommend that the city manager hire a certain police officer. Walker, Aug. 1, 2003, A.G. Op. 03-0285.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 141 et seq.

154 et seq.

CJS.

62 C.J.S., Municipal Corporations, §§ 269, 270.

Cross References —

Acting mayor, vacancy in office under other forms of government, see §§21-3-13 (code charter);21-5-7 (commission);21-7-13 (council); and21-8-19 (mayor-council).

Powers and duties of mayor under other forms government, see §§21-3-15 (code charter);21-5-7 (commission);21-7-13 (council); and21-8-15 and21-8-17 (mayor-council).

Other specific powers and duties of mayor, see §§21-15-7 through21-15-15.

Duty of mayor to notify governor whenever local resources inadequate to cope with emergencies, see §33-7-301.

Emergency powers under civil defense law, see §§33-15-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

The city manager, not the city council, appoints police officers. The police chief may but need not recommend that the city manager hire a certain police officer. Walker, Aug. 1, 2003, A.G. Op. 03-0285.

Editor’s Notes —

By letter dated September 20, 2012, the United States Attorney General determined that the amendments to this section by Chapter 442, Laws of 2012, were not subject to preclearance under Section 5 of the Voting Rights Act of 1965, as amended and extended.

Amendment Notes —

The 2012 amendment added the sixth sentence in (1).

The 2017 amendment substituted “Section 25-41-5(2)” for “Section 25-41-5(2)(b)” at the end of the sixth sentence of (1).

Cross References —

Moving municipality’s site of government in emergency resulting from enemy attack, see §§17-7-1 et seq.

Meetings of governing authorities under various forms of government, see §§21-3-19 (code charter);21-5-13 (commission);21-7-9 (council); and21-8-11 (mayor-council).

Requirement of open and public meetings, see §§25-41-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

A municipal ordinance, be it related to zoning of property or any other subject, may not be adopted or amended without affirmative action of the governing authorities. Cruthird, Nov. 19, 1999, A.G. Op. #99-0619.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 156 et seq.

CJS.

62 C.J.S., Municipal Corporations §§ 284 et seq, 287 et seq.

Cross References —

Hours of service of city officers and employees, see §21-9-47.

Cross References —

Transfer of administrative functions from city council to city manager, see §21-9-23.

OPINIONS OF THE ATTORNEY GENERAL

A city manager may reorganize city government and realign job responsibilities of the employment positions and offices reporting to him, except that in those cases where the city council creates an office or department, and assigns those offices or departments specific powers and duties in accordance with this section, the city manager is bound by the provisions of that ordinance. Ramsey, Nov. 30, 2004, A.G. Op. 04-0583.

For appointments made under §21-9-29(d), under the city manager’s administrative authority in §21-9-19(a), the city manager may reassign non-statutory duties except he may not do so where such reassignment would conflict with an ordinance adopted by the city council establishing the duties of an office or department pursuant to this section. Ramsey, Nov. 30, 2004, A.G. Op. 04-0583.

Under this section, the city manager in the council-manager form of government may create a new employment position only by recommending such new position to the city council and the city council approving it. Ramsay, Feb. 4, 2005, A.G. Op. 05-0006.

Under this section and §21-9-63, the city council must fix the salary set for employees in new employment positions, and it must approve salary increases for employees in existing employment positions. Ramsay, Feb. 4, 2005, A.G. Op. 05-0006.

The city manager holds the authority to set and approve minimum job qualifications, requirements and job descriptions for municipal jobs other than those created by the council under Miss. Code Ann. §21-9-45. A city manager may reject a job candidate list and form a new one using new job requirements, provided that the new job requirements are appropriate and consistent with state law, the proposed action does not violate the Civil Service Commission regulation, and the new list contains candidates that meet the criteria set forth by the Civil Service Commission. Tynes, March 9, 2007, A.G. Op. #07-00092, 2007 Miss. AG LEXIS 97.

Cross References —

Mayor and councilmen not required to have office hours, see §21-9-41.

Editor’s Notes —

Former §21-9-49 provided for the limitation of the power of council as to certain orders, resolutions, and ordinances.

Former §21-9-51 provided for the effective date of ordinances.

Cross References —

Comparable provision under mayor-council form of government, see §21-8-13.

Cross References —

Municipal budget generally, see §§21-35-1 et seq.

Cross References —

Municipal taxation and finance, see §§21-33-1 et seq.

Municipal bond issues generally, see §§21-33-301 et seq.

Cross References —

For comparable provisions under various forms of government, see §§21-3-9 (code charter);21-5-5 (commission);21-7-7,21-7-13 (council); and21-8-21 (mayor-council).

Cross References —

For comparable provisions under various other forms of government, see §§21-3-9 (code charter);21-5-5 (commission);21-7-7,21-7-13 (council);21-8-21 (mayor-council).

Police departments generally, see §§21-21-1 et seq.

Fire departments generally, see §§21-25-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Under §21-9-45 and this section, the city council must fix the salary set for employees in new employment positions, and it must approve salary increases for employees in existing employment positions. Ramsay, Feb. 4, 2005, A.G. Op. 05-0006.

Cross References —

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857, and23-15-859.

Cross References —

Conduct of elections generally concerning the council-manager plan of government, see §§21-9-11,21-9-69.

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857, and23-15-859.

Cross References —

Conduct of elections for adopting or discontinuing the council-manager plan of government, see §21-9-11.

Municipal elections generally, see §§23-15-13,23-15-35,23-15-171,23-15-173,23-15-559,23-15-857 and23-15-859.

Cross References —

Election offenses in connection with other forms of government, see §§21-5-21 (commission); and21-8-31 (mayor-council).

Conservation officers prohibited from engaging in political campaigns, see §49-1-19.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

Am. Jur.

26 Am. Jur. 2d, Elections §§ 459, 464.

CJS.

29 C.J.S., Elections §§ 540 et seq.

Editor’s Notes —

Former §21-9-73 specified prohibited interests of officers and employees and the penalties for violations.

Editor’s Notes —

Section 21-23-1 provides that wherever the words “police court” appear in the laws of this state they shall mean municipal court.

Cross References —

Police court and public schools unaffected by reorganization under mayor-council form of government, see §21-8-35.

Municipal courts generally, see §§21-23-1 et seq.

Cross References —

For comparable provisions under various forms of government, see §§21-5-19 (commission);21-7-17 (council);21-8-33 and21-8-35 (mayor-council).

JUDICIAL DECISIONS

1. In general.

A provision in the charter of the city of Meridian under Laws of 1888, ch. 228, § 15, imposing personal liability upon municipal officers for appropriating money to any object not authorized by the charter, was carried forward when the city subsequently adopted the council-manager form of government. Paine v. Matthews, 213 Miss. 506, 57 So. 2d 148, 1952 Miss. LEXIS 391 (Miss. 1952).

Cross References —

Civil service laws generally, see §§21-31-1 et seq.

Cross References —

Creation and operation of firemen’s and policemen’s disability and relief funds, see §§21-29-101 et seq.,21-29-201 et seq.

Editor’s Notes —

Former §21-11-1 provided for the qualifications to vote. For similar provisions, see §23-15-13.

Former §21-11-3 provided for the registration of voters. For similar provisions, see §23-15-35.

Former §21-11-5 provided for primary elections, and specified the time for holding such elections. For similar provisions, see §23-15-171.

Former §21-11-7 specified the time for holding general elections. For similar provisions, see §23-15-173.

Former §21-11-8 provided for expenses of municipal elections paid for by a municipality.

Former §21-11-9 provided for elections to fill vacancies in elective offices, and the time for holding such elections. For similar provisions, see §23-15-857.

Former §21-11-11 provided for the time for holding special elections. For similar provisions, see §23-15-859.

Former §21-11-13 provided for the appointment of election commissioners and election managers, and provided for the determining of results of elections. For similar provisions, see §§23-15-211 et seq.

Former §21-11-15 provided for the marking of ballots. For similar provisions, see §23-15-551.

Former §21-11-17 specified the duties of the marshal or police chief. For similar provisions, see §23-15-257.

Former §21-11-19 authorized certain municipalities to designate corporate limits as one voting precinct. For similar provisions, see §23-15-557.

Former §21-11-21 authorized certain municipalities to designate precincts and establish polling places without regard to precinct lines. For similar provisions, see §23-15-557.

Former §21-11-23 provided for the applicability of chapter 11.

Cross References —

Ordinances under various forms of government, see §§21-3-15 (code-charter);21-5-9 (commission); and21-8-13,21-8-17, and21-8-47 (mayor-council).

Power of council as to tax rates or bond issuances under council-manager form of government, see §21-9-57.

Misdemeanors under state law being criminal offenses against municipalities, see §21-13-19.

Municipalities enacting police regulations, see §21-19-15.

Municipalities being without power to change Sunday laws, see §21-19-39.

Penalty for violation of municipal health ordinances, see §41-3-59.

Authority of municipality or board of supervisors to adopt ordinances relating to individual onsite wastewater disposal systems, see §41-67-15.

Municipal ordinances and Mississippi Check Cashers Act, see §75-67-535.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

Judgment upholding the adoption of Mendenhall, Miss., Ord. 244, which closed and vacated a portion of a street, was reversed and the case was remanded with instructions to the City to provide reasons for the ordinance as no reason was given for the adoption of the ordinance and the matter could not be reviewed; while the City had the authority under Miss. Code Ann. §21-37-7 to close and vacate a street, it had to find the closing was for the public good under Miss. Code. Ann. §§21-13-1,21-13-3 and21-37-7. Hopkins v. City of Mendenhall, 116 So.3d 166, 2013 Miss. App. LEXIS 42 (Miss. Ct. App. 2013).

Municipality may enforce municipal ordinance regarding sale of beer within 1500 feet of church against convenience stores notwithstanding fact that owner of one store has located store on basis of mayor’s assurance that location complied with ordinance and that municipality has allowed sale of beer at another convenience store for some 12 years; furthermore renewal of permits for stores to sell beer may be denied on basis of noncompliance with ordinance. Suggs v. Caledonia, 470 So. 2d 1055, 1985 Miss. LEXIS 2112 (Miss. 1985).

Where a city passed an ordinance making it unlawful for transient vendors to go in and upon private residences, and in and upon private property and buildings other than residences, without first having been requested or invited to do so by the owner or occupant, for the purpose of soliciting orders for the sale of goods or selling the same, the ordinance was valid as it applies to soliciting in private residences but was invalid as to the property and buildings other than residences, which includes primarily business offices and stores. Day v. Klein, 225 Miss. 191, 82 So. 2d 831, 1955 Miss. LEXIS 573 (Miss. 1955).

Presumption prevails in favor of correctness of judgment fixing penalty pursuant to agreement for considering ordinance without production thereof. Mask v. Pontotoc, 152 Miss. 148, 119 So. 156, 1928 Miss. LEXIS 237 (Miss. 1928).

Under a prosecution brought before a mayor of a municipality the affidavit must charge that the offense alleged was committed within the territorial limit of the municipality in order to show venue. Mc alister v. Moss Point, 96 Miss. 686, 51 So. 403, 1910 Miss. LEXIS 172 (Miss. 1910).

The legislature can constitutionally confer on municipalities the power by ordinances to punish as an offense against the municipality an act which constitutes a crime against the state. Town of Ocean Springs v. Green, 77 Miss. 472, 27 So. 743, 1899 Miss. LEXIS 98 (Miss. 1899).

The court will not take judicial notice of town ordinances; Hence in a prosecution for the violation of an alleged ordinance a conviction will not be sustained if the evidence fails to show its existence. Naul v. State, 70 Miss. 699, 12 So. 903 (Miss. 1893); Spears v. Osyka, 92 Miss. 790, 46 So. 558, 1908 Miss. LEXIS 243 (Miss. 1908).

2-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Where the record in a criminal proceeding charging the defendant with the unlawful sale of intoxicating liquors showed a confusion of jurisdiction as to whether the trial magistrate acted as a police justice or as an ex officio justice of the peace, the conviction could not be sustained, since because of such confusion the defendant would not be in a position to make a plea of former conviction or former acquittal against a further prosecution for violation either of the city ordinance or of the state laws. Wright v. Belzoni, 188 Miss. 334, 194 So. 919, 1940 Miss. LEXIS 33 (Miss. 1940).

Municipal corporation could not impose penalty of ninety days in jail for violation of ordinances. Bohannan v. Louisville, 164 Miss. 97, 144 So. 44, 1932 Miss. LEXIS 232 (Miss. 1932).

The city of Greenville had a charter right to impose a maximum penalty of $25.00 and three months’ imprisonment for violating an ordinance requiring a license to operate motor vehicles upon the streets of the city. Wasson v. Greenville, 123 Miss. 642, 86 So. 450, 1920 Miss. LEXIS 65 (Miss. 1920).

Where a defendant was convicted of a misdemeanor under a municipal ordinance, that part of the judgment requiring him to stand committed to the county farm until all costs were paid was not authorized. Webb v. Vicksburg, 112 Miss. 53, 72 So. 852, 1916 Miss. LEXIS 62 (Miss. 1916).

A fine of $250.00 imposed under a city ordinance was void as to the excess above $100.00, and if such excess amount was paid under duress it may be recovered from the municipality. Town of Belzoni v. Luckett, 109 Miss. 261, 68 So. 171, 1915 Miss. LEXIS 144 (Miss. 1915).

OPINIONS OF THE ATTORNEY GENERAL

A municipal ordinance may not restrict the Mississippi Coast Coliseum Commission, a legislatively created political subdivision of the state, in the conduct of its statutory duties. Byrd, Oct. 16, 1991, A.G. Op. #91-0785.

The Mississippi Coast Coliseum, controlled by a legislatively created political subdivision of the state, which is within the corporate limits of the City of Biloxi, and the promoter which would be using the Coliseum’s premises during the Easter Arts and Crafts Fair and Show, is not subject to the City of Biloxi’s Ordinance banning baby chick giveaways. Byrd, Oct. 16, 1991, A.G. Op. #91-0785.

If mayor’s salary is set by ordinance lawfully adopted pursuant to Mississippi Code Annotated Section 21-13-1 et seq. (Revised 1990), any change in that salary must be by amendment of said ordinance in accordance with statutes; if salary in question is set by order or resolution, subsequent order or resolution changing said salary would operate to repeal prior order or resolution. Austin Oct. 6, 1993, A.G. Op. #93-0697.

Leasing or permitting space on municipal light poles for the location of transmitters for wireless internet service is not the granting of a franchise within the meaning of Sections 21-27-1 et seq. or Section 21-13-1(3). A municipality leasing that space would still be required to receive fair value for the lease to ensure it did not result in an unlawful donation, but upon a finding by the governing authorities that it would be in the best interests of the municipality, would not be required to advertise and solicit bids. Hedglin, June 30, 2006, A.G. Op. 06-0242.

Cross References —

Limitations on municipality’s granting franchise, see §21-27-1.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2. Reason for closing street required.

3.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

An ordinance under which licenses were granted to operate 10 additional taxicabs was improperly adopted as an emergency measure and declared to be immediately effective where, contrary to statutory requirements, there was no indication of how the immediate preservation of the public health, safety and general welfare of the city’s citizens required the ordinance to take effect immediately and where no other good cause was set forth; nor was there compliance with the statute requiring that ordinances granting any right to use the streets remain on file with the municipal clerk for two weeks before passage. Thus, the licenses at issue were a nullity. Yellow Cab Co. v. Biloxi, 372 So. 2d 1274, 1979 Miss. LEXIS 2270 (Miss. 1979).

A public utility, part of whose certificated area has been annexed to a city, may continue to serve the annexed area without obtaining a franchise from the city subject to the right of the city to regulate reasonably the manner in which its lines and appliances are constructed and maintained. Capital Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 514, 150 So. 2d 534, 1963 Miss. LEXIS 538 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

The power given municipalities to grant utility franchises and the right to use their streets and public places are subject to legislative control. Delta Electric Power Asso. v. Mississippi Power & Light Co., 250 Miss. 482, 149 So. 2d 504, 1963 Miss. LEXIS 537 (Miss.), cert. denied, 375 U.S. 77, 84 S. Ct. 196, 11 L. Ed. 2d 142, 1963 U.S. LEXIS 237 (U.S. 1963).

A nonexclusive franchise of a common carrier for passengers for hire is a valuable property right, and the carrier is entitled to relief by way of an injunction against a threatened or actual injury to his property rights through illegal competition of another common carrier of passengers for hire. Payne v. Jackson City Lines, Inc., 220 Miss. 180, 70 So. 2d 520, 1954 Miss. LEXIS 424 (Miss. 1954).

A commercial carrier of passengers for hire in a municipality must obtain a franchise before the carrier can operate for those purposes. Payne v. Jackson City Lines, Inc., 220 Miss. 180, 70 So. 2d 520, 1954 Miss. LEXIS 424 (Miss. 1954).

2. Reason for closing street required.

Judgment upholding the adoption of Mendenhall, Miss., Ord. 244, which closed and vacated a portion of a street, was reversed and the case was remanded with instructions to the City to provide reasons for the ordinance as no reason was given for the adoption of the ordinance and the matter could not be reviewed; while the City had the authority under Miss. Code Ann. §21-37-7 to close and vacate a street, it had to find the closing was for the public good under Miss. Code. Ann. §§21-13-1,21-13-3 and21-37-7. Hopkins v. City of Mendenhall, 116 So.3d 166, 2013 Miss. App. LEXIS 42 (Miss. Ct. App. 2013).

3.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Where the board of aldermen passed an ordinance granting a power company a franchise, the board acted in its governmental capacity and within the powers conferred by the statute, and the ordinance is therefore not vulnerable to the objection that it is ultra vires, that it was irregularly enacted, or that it is invalid as a usurpation of the prerogatives of successor boards. City of Picayune v. Mississippi Power Co., 197 F.2d 444, 1952 U.S. App. LEXIS 4001 (5th Cir. Miss. 1952).

The requirement that every contract of a municipality in excess of $500 shall be made or authorized by ordinance, is met where the authorization is in the form of a resolution. Independent Paving Co. v. Bay St. Louis, 74 F.2d 961, 1935 U.S. App. LEXIS 3576 (5th Cir. Miss. 1935).

A resolution, as distinguished from an ordinance, is not subject to the requirement that it be read and considered by sections. New Orleans & N. E. R. Co. v. Picayune, 164 Miss. 737, 145 So. 101, 1933 Miss. LEXIS 224 (Miss. 1933).

Sections 55 and 71 of the Constitution apply to acts of the legislature and have no application to municipal ordinances. City of Corinth v. Sharp, 107 Miss. 696, 65 So. 888, 1914 Miss. LEXIS 135 (Miss. 1914).

A municipality may adopt an ordinance on any day except Sunday, although the day may be a holiday. Griffith v. Mayor & Board of Aldermen, 102 Miss. 1, 58 So. 781, 1912 Miss. LEXIS 33 (Miss. 1912).

Municipal bonds were not invalid because the resolutions, other than the ordinance adjudging that the election had been properly held, were not passed in the manner provided by this section. Kemp v. Hazlehurst, 80 Miss. 443, 31 So. 908, 1902 Miss. LEXIS 273 (Miss. 1902).

Municipal ordinances cannot be avoided by the imputation of bad faith in their passage. State ex rel. Vicksburg v. Washington Steam Fire Co., 76 Miss. 449, 24 So. 877, 1898 Miss. LEXIS 109 (Miss. 1898).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 333 et seq.

8 Am. Jur. Legal Forms 2d, Franchises from Public Entities § 124:42 (ordinance granting franchise).

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 180:27 (initiative and referendum – procedure).

Law Reviews.

1979 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 833, December 1979.

Editor’s Notes —

Former §21-13-5 provided for the passage of ordinances.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

Municipalities have only such authority to adopt ordinances as is granted them by the State; and in every power given municipality to pass bylaws or ordinances there is an implied restriction that the ordinances shall be reasonable, consistent with the general law, and not destructive of a lawful business. King v. Louisville, 207 Miss. 612, 42 So. 2d 813, 1949 Miss. LEXIS 374 (Miss. 1949).

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Where an ordinance granting power company 25-year franchise was enacted on May 13, 1947, and reciting that it should take effect immediately because public interests so demanded, it became effective immediately on May 13, 1947, and under the then applicable statutes it would have been effective within thirty days after its enactment. City of Picayune v. Mississippi Power Co., 197 F.2d 444, 1952 U.S. App. LEXIS 4001 (5th Cir. Miss. 1952).

Ordinance is enacted to regulate continuing conditions and constitutes permanent rule of government, generally continuing to operate until formally repealed; while resolution is merely declaratory of will of corporation in given matter and in nature of ministerial act. City of Natchez v. Henderson, 207 Miss. 14, 41 So. 2d 41, 1949 Miss. LEXIS 313 (Miss. 1949).

Improvement resolution need not conform to statutory style governing ordinances as to title and numbering of sections. New Orleans & N. E. R. Co. v. Picayune, 164 Miss. 737, 145 So. 101, 1933 Miss. LEXIS 224 (Miss. 1933).

Where the charter of a municipality does not require the publication of an ordinance, it need not be published. City of Corinth v. Sharp, 107 Miss. 696, 65 So. 888, 1914 Miss. LEXIS 135 (Miss. 1914).

The bonds of a municipality issued under the provisions of this chapter are not invalid because (a) the resolutions, other than an ordinance adjudging that the election had been properly held resulting in favor of the issuance of the municipal authorities, providing for their issuance do not conform to the provisions of this section requiring the style of all ordinances to be “Be it ordained, etc.” nor because (b) the resolutions, other than the one declaring an intention to issue the bonds, were not published as ordinances are required to be published by this section, a notice of the election having been duly given by election commissioners. Kemp v. Hazlehurst, 80 Miss. 443, 31 So. 908, 1902 Miss. LEXIS 273 (Miss. 1902).

RESEARCH REFERENCES

ALR.

Right of labor union or other organization for protection or promotion of interests of members, to challenge validity of statute or ordinance on behalf of members. 2 A.L.R.2d 917.

Conclusiveness of declaration of emergency in ordinance. 35 A.L.R.2d 586.

Am. Jur.

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 180:41 (general form of ordinance).

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 180:42 (amendment to existing ordinance).

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 180:101 (general repealer of conflicting ordinances).

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 180:102 (specific repealer of conflicting ordinances).

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2. Scope restricted to one subject.

3. Title to reflect subject.

4.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

City of Vicksburg Ordinance 93-37, entitled “Ordinance Establishing Zoning Regulations For Adult Entertainment Businesses Thereby Amending The Zoning Ordinance of the City of Vicksburg, Establishing Licensing Provisions and Other Regulations,” did not violate §21-13-9, which provides that ordinances cannot contain more than one subject and that such subject must be clearly expressed in the title of the ordinance. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

Where owners of land divided it into lots and streets and filed plat with chancery clerk, attempted acceptance of dedication by mayor and board of aldermen of town of New Hebron by ordinance without proper title was void. Maxwell v. New Hebron, 176 So. 127 (Miss. 1937).

Statute providing that ordinance shall contain only one subject which shall be clearly expressed in title is mandatory. Home Ins. Co. v. Dahmer, 167 Miss. 893, 150 So. 650, 1933 Miss. LEXIS 154 (Miss. 1933).

Definition of a preamble to an ordinance. Dean v. Senatobia, 142 Miss. 815, 108 So. 178, 1926 Miss. LEXIS 142 (Miss. 1926).

An ordinance must have a title or it will be invalid. Sample v. Verona, 94 Miss. 264, 48 So. 2, 1908 Miss. LEXIS 1 (Miss. 1908).

2. Scope restricted to one subject.

A zoning ordinance which established six use classifications and placed various areas within the city in one or the other of these classifications, and, at the same time, rezoned a particular area into a new classification was not void under the provisions of this section [Code 1942, § 3374-74], for containing two subject matters; for the proper method of enacting a zoning ordinance not only requires the municipal authorities to designate the classifications felt to be necessary, but the area affected by the classification should also be described in the ordinance. Blacklidge v. Gulfport, 223 So. 2d 530, 1969 Miss. LEXIS 1274 (Miss. 1969).

Notwithstanding the mandatory requirement of this section [Code 1942, § 3374-74] that an ordinance shall not contain more than one subject, a city seeking to alter its boundaries by adding certain adjacent territory and excluding certain territory already included within the existing limits is not required to adopt two different ordinances, and thus initiate at the same time two different proceedings in a chancery court. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

An ordinance may provide that all offenses constituting misdemeanors against the state shall be violations of the ordinance and this is not violative of the ordinance and this is violative of this section forbidding more than one subject to be contained in an ordinance. Richards v. Magnolia, 100 Miss. 249, 56 So. 386 (Miss. 1911).

3. Title to reflect subject.

The omission from the title of an annexation ordinance of the city’s promises as to the improvements and services to be rendered in the territory proposed to be annexed did not render the ordinance void. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

An ordinance, by which a city sought to alter its boundaries by adding certain adjacent territory and excluding certain territory already included within the existing limits was sufficiently expressed in the title reading “an ordinance to enlarge, extend, modify and define the corporate limits and boundaries” of the city. Dodd v. Jackson, 238 Miss. 372, 118 So. 2d 319, 1960 Miss. LEXIS 417 (Miss. 1960).

This section [Code 1942, § 3374-74] requires that the title so express the subject of the ordinance that the lawmakers and the people may not be left in doubt as to matters treated. Home Ins. Co. v. Dahmer, 167 Miss. 893, 150 So. 650, 1933 Miss. LEXIS 154 (Miss. 1933).

Ordinance establishing fire limits and relating to construction of buildings therein held void for insufficiency of title, where title referred to use of fire protection equipment. Home Ins. Co. v. Dahmer, 167 Miss. 893, 150 So. 650, 1933 Miss. LEXIS 154 (Miss. 1933).

4.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Improvement resolution need not conform to statutory style governing ordinances as to title and numbering of sections. New Orleans & N. E. R. Co. v. Picayune, 164 Miss. 737, 145 So. 101, 1933 Miss. LEXIS 224 (Miss. 1933).

An ordinance of the municipality entitled “An ordinance to prohibit the carrying of deadly weapons,” and which in its body makes it an offense against the municipality to carry concealed or exhibit in an angry or rude manner, is not void under this section providing that an ordinance shall not contain more than one subject to be clearly expressed in its title. Kemp v. Hazlehurst, 80 Miss. 443, 31 So. 908, 1902 Miss. LEXIS 273 (Miss. 1902).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions § 394 et seq.

CJS.

62 C.J.S., Municipal Corporations §§ 365-367.

Cross References —

Revision and publication of ordinances, see §21-13-15.

Contracting with newspapers for publication of legal notices, see §21-39-3.

Method of publishing notice of special improvement, see §21-41-51.

Inapplicability of publishing fee schedule to publication of municipal ordinances, see §25-7-65.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

A bill of exceptions filed on June 13, 1980, to challenge a rezoning of certain property was not untimely where, although the Mayor and Board of Aldermen voted on May 6, 1980, to reclassify the property, the rezoning ordinance did not become effective until written, signed and formally adopted on June 3, 1980, at which time the ten-day appeal period commenced to run. City of Oxford v. Inman, 405 So. 2d 111, 1981 Miss. LEXIS 2242 (Miss. 1981).

In an action by a city to permanently enjoin a landowner from operating a motor repair business in an area zoned as a single-family residential district, the trial court properly denied the requested relief, even though the zoning ordinance was adopted almost one year before defendant moved his business to the location at issue, where the ordinance did not take effect until its publication more than six years later; nor did the ordinance take effect immediately as an emergency measure where it merely contained a general statement that its immediate implementation was necessary for the preservation of the public peace, health and safety, without stating the facts constituting the emergency that was declared to exist. Thus, at the time the ordinance took effect, defendant’s business was a preexisting nonconforming use not prohibited thereby. City of Carthage v. Walters, 375 So. 2d 228, 1979 Miss. LEXIS 2426 (Miss. 1979).

An annexation ordinance attached to a bill of complaint seeking to annex property was invalid where the exhibit did not show that it had been signed by the mayor or by a majority of the members of the governing body of a municipality, and the signatures or facsimilies thereof appeared nowhere upon the exhibit. City of Biloxi v. Cawley, 264 So. 2d 888, 1972 Miss. LEXIS 1375 (Miss. 1972).

The absence of certification by the city clerk does not render publication of an ordinance inoperative to put it into effect. In re Hazlehurst, 247 Miss. 527, 153 So. 2d 809, 1963 Miss. LEXIS 320 (Miss. 1963).

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Prior to July 1950, city operating under the aldermanic form of government was not subject to statutory requirements which provided that ordinances be unanimously passed, that they remain on file for public inspection prior to passage or that they be ratified by popular vote. City of Picayune v. Mississippi Power Co., 197 F.2d 444, 1952 U.S. App. LEXIS 4001 (5th Cir. Miss. 1952).

When an ordinance granting power company 25-year franchise was enacted on May 13, 1947, and reciting that it should take effect immediately because public interests so demanded, it became effective immediately on May 13, 1947, and under the then applicable statutes it would have been effective within thirty days after its enactment. City of Picayune v. Mississippi Power Co., 197 F.2d 444, 1952 U.S. App. LEXIS 4001 (5th Cir. Miss. 1952).

As used in this statute, the word “resolution” takes on the nature of an “ordinance” which is enacted to regulate continuing conditions and constitutes a permanent rule of government, as distinct from an “order” which deals with temporary powers and ceases to have further potentiality after accomplishment of its purpose. Evans v. Jackson, 202 Miss. 9, 30 So. 2d 315, 1947 Miss. LEXIS 234 (Miss. 1947).

Publication of a “resolution or ordinance,” as required by this section, does not apply to an “order or resolution” adopted for the sale of unredeemed tax forfeited lands. Evans v. Jackson, 202 Miss. 9, 30 So. 2d 315, 1947 Miss. LEXIS 234 (Miss. 1947).

Attempt to make ordinance effective prior to its passage did not render ordinance void, but merely rendered it unenforceable until lapse of one month after its passage. Streckfus Steamers, Inc. v. Kiersky, 174 Miss. 125, 163 So. 830, 1935 Miss. LEXIS 46 (Miss. 1935).

Failure of ordinance to assign cause for immediate enforcement thereof caused it to become effective not earlier than one month after its passage. Streckfus Steamers, Inc. v. Kiersky, 174 Miss. 125, 163 So. 830, 1935 Miss. LEXIS 46 (Miss. 1935).

Where city charter made specific provision for adoption of ordinance without formal approval of mayor, mayor’s formal approval of ordinance held unnecessary, since statute providing for adoption of ordinances by municipalities under common statutory charter was inapplicable. Streckfus Steamers, Inc. v. Kiersky, 174 Miss. 125, 163 So. 830, 1935 Miss. LEXIS 46 (Miss. 1935).

OPINIONS OF THE ATTORNEY GENERAL

Ordinance or revised ordinance must meet publication requirements of Mississippi Code Annotated Section 21-13-11 prior to being effective. Schissel, Feb. 9, 1994, A.G. Op. #94-0032.

A person employed by the Department of Corrections may continue to serve in elected office as a city alderman as long as he waives all salary and compensation for office and elects to receive a retirement allowance in lieu thereof; such a person may also continue to serve as a city alderman, retire from the Department of Corrections, and begin to receive a retirement allowance without the required forty-five day separation period as long as he elects and waives as required. Touchton, January 20, 1998, A.G. Op. #97-0753.

A municipality may publish the substance of a zoning ordinance, i.e., an explanatory statement summarizing the full text of the ordinance, in which the chief purpose is explained in clear and unambiguous language; in such case, the clerk must post a copy of the full text of the zoning ordinance, along with the maps, charts, diagrams and sketches, at the city hall, main public library or courthouse, and at another public place in the municipality; further, the publication should also specify when and where the full text of the ordinance and any maps are available for review. Donald, August 5, 1999, A.G. Op. #99-0390.

Governing authorities should publish an amended zoning ordinance in accordance with statutory procedures, since any zoning ordinance will not be legally effective until it is published; if the governing authorities decide to consider amending an ordinance legally adopted to change a zoning classification, they must follow the statutory procedures to amend the ordinance. Mantel, March 24, 2000, A.G. Op. #2000-0146.

Where a county is amending its zoning ordinance, but the proposed amendments do not change any actual existing zoning of property in the county, the portions that are being amended and the proposed amendments may be published in lieu of publishing the entire ordinance, and the publication should refer to the full text of the proposed amendments on file in the city clerk’s office. Evans, Oct. 20, 2000, A.G. Op. #2000-0584.

Where there is no newspaper located in or published in a town, a newspaper within the county having general circulation in the municipality (or if there is none, a newspaper having general circulation within the county) must be used for publication of an ordinance to change the date of board meetings, as is required for the publication of all other ordinances of the municipality pursuant to Section 21-13-11. Thomas, May 30, 2003, A.G. Op. 03-0268.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 338, 340, 341.

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 180:43 (certification of posting and publication of ordinance).

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 180:43 (declaration of emergency).

13C Am. Jur. Legal Forms 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 180:104 (effective date of ordinance).

13C Am. Jur. Legal Forms 2d (Rev), Municipal Corporations, Counties, and Other Political Subdivisions § 180:105 (effective date of ordinance-declaration of emergency).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 24, 25 (affidavit of notice by posting or publication).

Law Reviews.

1979 Mississippi Supreme Court Review: Miscellaneous. 50 Miss. L. J. 833, December 1979.

Cross References —

Municipal clerk’s duty to keep minute book and municipal seal, see §21-15-17.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2. Effect of noncompliance.

3. Presumptions and evidence.

4.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

This section [Code 1942, § 3374-75] providing for the record of ordinances in an ordinance book relates to measures which are “in their nature laws of the municipality,” and not to “mere orders or decrees temporary in their nature.” Rich v. McLauren, 83 Miss. 95, 35 So. 337, 1903 Miss. LEXIS 14 (Miss. 1903) but see Edwards v. Weeks, 633 So. 2d 1035, 1994 Miss. LEXIS 125 (Miss. 1994).

An annexation order, which is ineffective until it is approved by the court, is not required to be recorded in a city’s ordinance book until final approval of it by the court. In re Extension of Boundaries, 365 So. 2d 952, 1978 Miss. LEXIS 2431 (Miss. 1978), cert. denied, 441 U.S. 946, 99 S. Ct. 2167, 60 L. Ed. 2d 1049, 1979 U.S. LEXIS 1858 (U.S. 1979).

The statutes make it essential to the validity of a municipal ordinance that the minutes of the mayor and board of aldermen for the period of its enactment be signed by the mayor and attested by the city clerk. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

2. Effect of noncompliance.

1953 zoning ordinances enacted by the city of Tupelo were invalid where the minutes of the mayor and board of aldermen for the period in which the ordinance was enacted were not signed by the mayor and attested by the city clerk. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

The requirement hereunder that the municipal clerk append to the ordinance “a note stating the date of its passage, and cite therein the book and page of the minutes containing the record of its passage,” is merely directory and for convenience in finding the ordinance in the minutes of the city’s governing body, and a failure to comply therewith has no effect on the ordinance or on the copy thereof in the ordinance book. Jimmerson v. Oxford, 190 Miss. 884, 2 So. 2d 152, 1941 Miss. LEXIS 107 (Miss. 1941).

3. Presumptions and evidence.

An ordinance found in a book identified as the ordinance book of the municipality and in which all ordinances are kept and recorded in the absence of proof to the contrary is presumed to be a valid ordinance. Bugg v. Houlka, 122 Miss. 400, 84 So. 387, 1920 Miss. LEXIS 442 (Miss. 1920).

A clerk authorized under the charter to register the proceedings and ordinances of the municipality is presumed to have done so and an ordinance found registered in the proper book by such clerk is presumed to be valid, where entry in the book clearly shows its adoption. City of Corinth v. Sharp, 107 Miss. 696, 65 So. 888, 1914 Miss. LEXIS 135 (Miss. 1914).

4.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

A printed proof of the publication of a municipal ordinance setting forth the ordinance at length and the date of its passage securely pasted to one of the pages of the municipal ordinance book will satisfy the requirements of this section, so that it is not error to admit in evidence the ordinance book in which such ordinance appeared in a prosecution for possession of intoxicating liquor in violation of the ordinance in question. Jimmerson v. Oxford, 190 Miss. 884, 2 So. 2d 152, 1941 Miss. LEXIS 107 (Miss. 1941).

This section is directed to the clerk with reference to transcribing ordinances in the ordinance book, and the clerk’s failure to transcribe an ordinance does not invalidate the ordinance. City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161, 1907 Miss. LEXIS 212 (Miss. 1907).

RESEARCH REFERENCES

Law Reviews.

1978 Mississippi Supreme Court Review: Administrative Law. 50 Miss. L. J. 11, March 1979.

Cross References —

Contracting with newspapers for publication of legal notices, see §21-39-3.

Cross References —

Custodians of books and other records certifying copies admissible in evidence, see §13-1-77.

RESEARCH REFERENCES

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 19:19, 22:11.

JUDICIAL DECISIONS

1. In general.

2. Presumptions.

3. Waiver.

1. In general.

Municipal ordinances, to be admissible in evidence, must be verified by certificate of the clerk and by seal of the municipality. In re Hazlehurst, 247 Miss. 527, 153 So. 2d 809, 1963 Miss. LEXIS 320 (Miss. 1963).

In suit to recover privilege tax imposed by ordinance, where certified copies of ordinances, and city ordinance books in which they were entered, were introduced in evidence, ordinances held sufficiently proved. Streckfus Steamers, Inc. v. Kiersky, 174 Miss. 125, 163 So. 830, 1935 Miss. LEXIS 46 (Miss. 1935).

In prosecution for violating ordinance, ordinance, to be admissible, must be verified by certificate of clerk and by seal of town. Dennis v. Walnut Grove, 157 Miss. 797, 128 So. 557, 1930 Miss. LEXIS 323 (Miss. 1930).

A court does not take judicial notice of municipal ordinances and they must be introduced in evidence or their existence proven. Watkins v. Brookhaven, 134 Miss. 556, 99 So. 363, 1924 Miss. LEXIS 300 (Miss. 1924).

2. Presumptions.

Presumption prevails in favor of correctness of judgment fixing penalty pursuant to agreement for considering ordinance without production thereof. Mask v. Pontotoc, 152 Miss. 148, 119 So. 156, 1928 Miss. LEXIS 237 (Miss. 1928).

The presumption is that an ordinance was passed at a meeting held at the proper time and place when there is no evidence to the contrary. City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161, 1907 Miss. LEXIS 212 (Miss. 1907).

3. Waiver.

Parties who in a prosecution for violating a city ordinance agree before entering the trial that the city has a valid ordinance covering the offense charged the defendant cannot afterwards on a motion in arrest of judgment show that the ordinance is void. Lee v. Oxford, 134 Miss. 647, 99 So. 509, 1924 Miss. LEXIS 318 (Miss. 1924).

Where an ordinance is offered as evidence in a criminal trial without objection, it is too late to make the objection for the first time in the Supreme Court; failure to object in the court below was a waiver of the obligation on the town to make proof thereof. Morris v. Greenwood, 73 Miss. 430, 19 So. 105, 1895 Miss. LEXIS 137 (Miss. 1895).

Cross References —

Sentencing powers of municipal courts, see §21-23-7.

Duty of police to arrest person violating bird and animal preserves, see §49-5-43.

What constitutes various crimes and misdemeanors, see §§97-1-1 et seq.

Procedure in criminal cases generally, see §§99-11-1 et seq.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2.-10. [Reserved for future use.]

II. Under Former Law.

11. In general.

12. Construction and application.

13. Adoption of state law by municipality.

14. —Limitation on power of municipality.

15. —Prospective or retrospective operation.

16. Particular offenses.

I. Under Current Law.

1. In general.

Section21-13-19, which gives a municipal court the authority to try misdemeanors and allows municipalities to incorporate all state misdemeanors as municipal violations, does not bar the State from prosecuting misdemeanors committed within municipal boundaries; the effect of §21-13-19 is to allow more than one governmental entity to prosecute misdemeanors, as the statute simply grants municipalities the authority to make use of the legislature’s classifications of misdemeanors; thus, a county circuit court had original jurisdiction over a prosecution for malicious mischief under §97-17-67 in spite of the defendant’s argument that his violation constituted a municipal offense and that the case should have been heard by a municipal court. Collins v. State, 594 So. 2d 29, 1992 Miss. LEXIS 64 (Miss. 1992).

In a prosecution for driving under the influence, enhanced 9-month sentences received by the defendants after they sought a trial de novo in the circuit court were not improper, even though the defendants were originally tried and sentenced in municipal court under §21-13-19, which provides for a maximum penalty of 6 months’ incarceration; when the defendants filed their appeals for trial de novo in the circuit court, they took the chance that the penalties would be greater than allowed by §21-13-19, since the actions were brought under §63-11-30(1)(c). Fisher v. Eupora, 587 So. 2d 878, 1991 Miss. LEXIS 669 (Miss. 1991).

This statute [Code 1942, § 3374-78] makes self-executing, and applicable in a municipality, misdemeanor statutes of the state. Walton v. Tupelo, 241 Miss. 894, 133 So. 2d 531, 1961 Miss. LEXIS 418 (Miss. 1961).

In prosecution for unlawfully exhibiting a deadly weapon, it was not necessary for the city to introduce into evidence a certified copy of the city ordinance making all offenses under the penal laws of this state which are misdemeanors, criminal offenses against the city within whose corporate limits the offense was committed. Sykes v. Crystal Springs, 216 Miss. 18, 61 So. 2d 387, 1952 Miss. LEXIS 609 (Miss. 1952).

By virtue of this statute [Code 1942, § 3374-78] it is not necessary that the ordinance of a town declaring all offenses under the Penal Laws of the state amounting to a misdemeanor offenses against the municipality be introduced in evidence in a prosecution for unlawful possession of intoxicating liquor; moreover, testimony of the municipal clerk and the mayor was sufficient to identify the ordinance of the town and to make it a part of the record in the trial. Simmons v. Louin, 213 Miss. 482, 57 So. 2d 133, 1952 Miss. LEXIS 388 (Miss. 1952).

2.-10. [Reserved for future use.]

II. Under Former Law.

11. In general.

Section is not in conflict with section in this chapter prohibiting an ordinance from containing more than one subject. Richards v. Magnolia, 100 Miss. 249, 56 So. 386 (Miss. 1911).

Section providing that all offenses made misdemeanors under the state laws may be by ordinance declared violations of municipal laws, is not violative of section requiring that an ordinance shall not contain more than one subject. Winfield v. Jackson, 89 Miss. 272, 42 So. 183, 1906 Miss. LEXIS 18 (Miss. 1906).

12. Construction and application.

Statute stating that the maximum penalty for each violation in any case tried without a jury was incarceration limited to no more than six months in jail, and any fine also imposed was limited to a certain amount, was not relevant to the municipal court’s jurisdiction, and thus, defendant was not entitled to reversal of his simple domestic violence conviction. Murrell v. City of Indianola, 858 So. 2d 183, 2003 Miss. App. LEXIS 1005 (Miss. Ct. App. 2003).

Section authorizes the enactment of a blanket ordinance making misdemeanors only offenses against a city when committed within the territorial limits of the city. Watkins v. Brookhaven, 134 Miss. 556, 99 So. 363, 1924 Miss. LEXIS 300 (Miss. 1924).

An ordinance under section which provides for a maximum penalty of $100.00 or imprisonment in jail not to exceed one year or both is void as undertaking to impose a penalty which in some cases would be in excess of the penalty provided by the state laws for the same offense. Cook v. Pascagoula, 121 Miss. 5, 83 So. 305, 1919 Miss. LEXIS 143 (Miss. 1919).

13. Adoption of state law by municipality.

By virtue of section, a city may validly enact an ordinance adopting provisions of state law (§ 8176) pertaining to lawful rates of speed, and state law (§ 8275) making violation of latter section a misdemeanor. White v. Philadelphia, 197 Miss. 166, 19 So. 2d 493, 1944 Miss. LEXIS 287 (Miss. 1944).

The city of Pascagoula operates under the code chapter on municipalities, and it has a general ordinance making all misdemeanors, which are such under state statutes, offenses also against the city. City of Pascagoula v. Nolan, 183 Miss. 164, 184 So. 165, 1938 Miss. LEXIS 229 (Miss. 1938).

Whether words “all you ladies that smoke cigarettes throw your butts in here” painted on the hood of an automobile left in a public place violated an ordinance making all misdemeanors, which are such under state statutes, offenses also against the city, was a question for the jury. City of Pascagoula v. Nolan, 183 Miss. 164, 184 So. 165, 1938 Miss. LEXIS 229 (Miss. 1938).

Ordinance making all offenses amounting to misdemeanors under state laws offenses against municipality when committed within its limits includes offenses which legislature may subsequently declare misdemeanors. City of Lumberton v. Frederick, 165 Miss. 456, 143 So. 488, 1932 Miss. LEXIS 275 (Miss. 1932).

14. —Limitation on power of municipality.

A municipality cannot pass a criminal ordinance on a subject more severe or comprehensive than the state statute dealing with that subject. City of Amory v. Yielding, 203 Miss. 265, 34 So. 2d 726, 1948 Miss. LEXIS 261 (Miss. 1948).

All ordinances under this section must be restricted to misdemeanors as defined by the state laws and if made to embrace felonies will be void. City of Oxford v. Buford, 134 Miss. 635, 99 So. 498, 1924 Miss. LEXIS 313 (Miss. 1924).

Such an ordinance must be restricted in its application to misdemeanors against the state, for an ordinance which provides that all crimes under the chapter on crimes and misdemeanors, which embraces felonies as well as misdemeanors is void. Dismukes v. Louisville, 101 Miss. 104, 57 So. 547, 1911 Miss. LEXIS 110 (Miss. 1911).

But notwithstanding the title of the ordinance appears to embrace all violations of the penal laws of the state of Mississippi, the ordinance itself is not invalid where it deals only with offenses amounting to misdemeanors. Richards v. Magnolia, 100 Miss. 249, 56 So. 386 (Miss. 1911).

Such an ordinance must also be restricted to misdemeanors committed within the corporate limits of the municipality to which the ordinance applies. Smothers v. Jackson, 92 Miss. 327, 45 So. 982, 1908 Miss. LEXIS 193 (Miss. 1908).

15. —Prospective or retrospective operation.

Ordinance seeking to make all misdemeanors against State offenses against town in whose corporate limits offenses “may have been committed” held not void as to one subsequently arrested on theory that it referred only to past acts, since language of ordinance follows language of statute authorizing municipalities to adopt misdemeanors under State law as offenses against municipalities. Basham v. Sebastopol, 172 Miss. 194, 159 So. 847, 1935 Miss. LEXIS 134 (Miss. 1935).

Ordinance making misdemeanor under state law violations of town ordinances when committed within corporate limits was prospective in its operation. Lindsey v. Louisville, 156 Miss. 66, 125 So. 558, 1930 Miss. LEXIS 144 (Miss. 1930).

An ordinance providing that all offenses constituting misdemeanors against the state shall be violations of the ordinance would not only make all acts that are misdemeanors under the law then existing violations of the ordinance but would apply to all laws thereafter passed by the state defining misdemeanors. Smothers v. Jackson, 92 Miss. 327, 45 So. 982, 1908 Miss. LEXIS 193 (Miss. 1908).

16. Particular offenses.

Affidavit that defendant wilfully and unlawfully drove automobile over public street or highway in city at rate of more than fifty-five miles per hour, contrary to laws and ordinances of city, sufficiently charges offense of violating ordinance adopting provisions of statute (§ 8176), regulating spe ed of motor vehicles. White v. Philadelphia, 197 Miss. 166, 19 So. 2d 493, 1944 Miss. LEXIS 287 (Miss. 1944).

Evidence that defendant was driving at greater speed than that prescribed by this section, or by city ordinances adopting provisions thereof, establishes defendant’s guilt beyond a reasonable doubt, where defendant fails to offer any evidence in justification thereof. White v. Philadelphia, 197 Miss. 166, 19 So. 2d 493, 1944 Miss. LEXIS 287 (Miss. 1944).

Instruction authorizing jury to find defendant guilty of violating city ordinance adopting provisions of § 8176, if jury believed from the evidence beyond reasonable doubt that defendant unlawfully drove automobile on city street more than 55 miles per hour, was proper, where defendant made no attempt to overcome prima facie case. White v. Philadelphia, 197 Miss. 166, 19 So. 2d 493, 1944 Miss. LEXIS 287 (Miss. 1944).

Traveler carrying concealed weapon ten miles from home, and who was unacquainted with people living between home and place to which he was traveling, and who was carrying weapon for purpose of protection, held not guilty of offense of carrying concealed weapon. Basham v. Sebastopol, 172 Miss. 194, 159 So. 847, 1935 Miss. LEXIS 134 (Miss. 1935).

OPINIONS OF THE ATTORNEY GENERAL

All state law violations are automatically violations of municipal ordinance under Miss. Code Section 21-13-19. Carroll, Mar. 31, 1993, A.G. Op. #93-0165.

Miss. Code Section 21-13-19 provides that all obscene phone call offenses that are misdemeanors under state law are automatically criminal offenses against municipality over which municipal court would have jurisdiction under Miss. Code Section 21-23-7; such violations may also be prosecuted in municipal courts. Gentry, June 7, 1993, A.G. Op. #93-0362.

Pursuant to Miss. Code Section 21-13-19, state misdemeanors are violations of municipal ordinance when committed within municipality; punishment for violation of state law misdemeanors is limited to six months in jail and $1000. Evans, June 9, 1993, A.G. Op. #93-0296.

Under Miss. Code Section 21-13-19, it is violation of municipal ordinance to commit simple assault within boundaries of municipality; as violator of municipal ordinance, offender is municipal prisoner and, in absence of agreement between city and county as to housing of prisoners, should be housed in municipal jail. Evans, June 9, 1993, A.G. Op. #93-0296.

A municipal court has jurisdiction to hear and decide, without a jury, an alleged violation of Miss. Code Ann. §97-5-39(1)(a), and to punish offenders as prescribed by law. The penalty for state misdemeanors tried in a municipal court is limited to six months incarceration and/or a $1,000 fine pursuant to Miss Code Ann. §21-13-19. Boutwell, March 16, 2007, A.G. Op. #07-00124, 2007 Miss. AG LEXIS 113.

RESEARCH REFERENCES

Law Reviews.

1979 Mississippi Supreme Court Review: Civil Procedure. 50 Miss. L. J. 719, December 1979.

Cross References —

Various forms of municipal government, see §§21-3-1 et seq. (code charter);21-5-1 et seq. (commission);21-7-1 et seq. (council);21-8-1 et seq. (mayor-council); and21-9-1 et seq. (council-manager).

Editor’s Notes —

Laws of 1979, ch. 452, § 30, amended this section, contingent on being effectuated under section 5 of the Voting Rights Act of 1965, as amended and extended. Chapter 452 never became effective and was repealed by Laws of 1982, ch. 477, § 7, effective from and after April 22, 1982.

By letter dated July 22, 2010, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws of 2010, ch. 319, § 3.

Amendment Notes —

The 2010 amendment substituted “Section 23-15-173” for “Section 21-11-7”; substituted “first day of July” for “first Monday of July”; and inserted “that is not on a weekend.”

Cross References —

Applicability of particular sections to various municipalities, see §21-15-39.

Timing of primary and general elections for municipal offices, see §§23-15-171 and23-15-173.

Nominations for municipal offices which are elective, see §23-15-309.

Provisions for filling vacancies in city, town, or village offices which are elective, see §§23-15-857 and23-15-859.

When terms of district and county officers begin, see §25-1-5.

Nepotism being forbidden, see §25-1-53.

Vacating office by leaving local area or by failing to account for public funds, see §25-1-59.

OPINIONS OF THE ATTORNEY GENERAL

A mayor served two separate terms, the first from July, 1993 to July, 1997 and the second from July, 1997 to July, 2001. King, May 24, 2002, A.G. Op. #02-0272.

An incumbent alderman who served for the preceding term in an office for which no candidate has filed a valid qualifying petition for the upcoming term could “hold over” in accordance with Sections 21-15-1 and 25-1-7, until a special election to fill a vacancy is held as required by Section 23-15-857, assuming his bond remains in effect. Wiggins, May 6, 2005, A.G. Op. 05-0216.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 250.

63C Am. Jur. 2d, Public Officers and Employees §§ 163 et seq.

15A Am. Jur. Legal Forms 2d, Public Officers § 213:26 (statement of election contributions and expenses).

15A Am. Jur. Legal Forms 2d, Public Officers §§ 213:59-213:60 (oath or affirmation of public officer).

20A Am. Jur. Pl & Pr Forms (Rev), Public Officers and Employees, Form 1 (complaint, petition, or declaration by public officer to enjoin violation or threatened violation of criminal statute).

20A Am. Jur. Pl & Pr Forms (Rev), Public Officers and Employees, Form 3 (notion to substitute public officer’s successor as plaintiff).

20A Am. Jur. Pl & Pr Forms (Rev), Public Officers and Employees, Form 4 (order substituting public officer’s successor as plaintiff).

20A Am. Jur. Pl & Pr Forms (Rev), Public Officers and Employees, Form 21 (petition or application for writ of mandamus to compel surrender of property, records, and insignia of office to successor).

20A Am. Jur. Pl & Pr Forms (Rev), Public Officers and Employees, Form 114 (complaint, petition, or declaration against municipal officer and sureties).

21 Am. Jur. Pl & Pr Forms (Rev), Quo Warranto, Form 41 (complaint or information to oust usurper from elective office).

CJS.

62 C.J.S., Municipal Corporations §§ 456 et seq.

67 C.J.S., Officers and Public Employees §§ 136-142 et seq., 209.

Editor’s Notes —

The United States Attorney General, by letter dated July 22, 2002, interposed no objection under Section 5 of the Voting Rights Act of 1965 to the addition of this section by Laws, 2002, ch. 590, § 3.

The United States Attorney General, by letter dated June 9, 2003, interposed no objection under Section 5 of the Voting Rights Act of 1965 to the amendment of this section by Laws, 2003, ch. 455, § 1.

Amendment Notes —

The 2003 amendment inserted “including municipalities operating under a charter city, code charter or special charter” following “No municipality.”

Editor’s Notes —

Section 48, Chapter 458, Laws of 1986, provided that §21-15-3 would stand repealed from and after October 1, 1989. Subsequently, three 1989 chapters (341, 342, and 343) amended Section 48, Chapter 458, Laws of 1986, by deleting the date for repeal.

Cross References —

Application of particular sections to various municipalities, see §21-15-39.

Nepotism being forbidden, see §25-1-53.

Duty of municipal health officer in case of public health nuisance, see §41-23-13.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

This section (§ 2992, Code of 1892) must be construed in the light and as part of the entire chapter on municipalities. Ott v. State, 78 Miss. 487, 29 So. 520 (Miss. 1900).

Under this section (§ 2992, Code of 1892) providing that at the first regular meeting of the mayor and board of aldermen succeeding each regular election they shall elect inferior officers, the new or incoming mayor and board of aldermen alone have the right to elect such officers, and this is true even when a regular meeting under § 2989, Code 1892, be held by the old board after the election and before the organization of the new one as provided in § 3030, Code of 1892. Ott v. State, 78 Miss. 487, 29 So. 520 (Miss. 1900).

OPINIONS OF THE ATTORNEY GENERAL

When mayor of mayor-council city is re-elected to office, mayor should submit his appointments for department directors to city council for confirmation each term, even if those named are current directors. Lawrence, March 9, 1994, A.G. Op. #94-0046.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 245-247.

63A Am. Jur. 2d, Public Officers and Employees § 92.

15 Am. Jur. Legal Forms 2d, Public Officers §§ 213:59-213:60 (oath or affirmation of public officer); § 213:74 (application for official bond; §§ 213:75-213:77 (official bond); § 213:97 (acknowledge-ment of receipt of funds and records on succession to public office); § 213:103 (oath or affirmation taken before official compensation is allowed); § 213:122 (notice of removal of public officer); §§ 213:133 et seq. (recall).

20A Am. Jur. Pl & Pr Forms (Rev), Public Officers and Employees, Form 1 (complaint, petition, or declaration by public officer to enjoin violation or threatened violation of criminal statute); Form 3 (notion to substitute public officer’s successor as plaintiff); Form 4 (order substituting public officer’s successor as plaintiff); Form 21 (petition or application for writ of mandamus to compel surrender of property, records, and insignia of office to successor); Form 114 (complaint, petition, or declaration against municipal officer and sureties).

CJS.

62 C.J.S., Municipal Corporations § 408, 409.

67 C.J.S., Officers and Public Employees § 59, 65.

Editor’s Notes —

Former §21-15-5 provided for an appointment to fill a vacancy in public office. Similar provisions may be found at §§23-15-831 et seq.

Cross References —

Insuring of municipal property generally, see §21-37-45.

Defense of public officers and employees generally, see §25-1-47.

JUDICIAL DECISIONS

1. In general.

2. Constitutionality.

1. In general.

City’s sovereign immunity is not waived through self-insurance. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

The Mississippi Municipal Liability Plan does not fit within the definition of insurance under §83-5-5, which is general liability insurance sufficient to waive sovereign immunity pursuant to §21-15-6, but instead is self-insurance insufficient to waive sovereign immunity. Morgan v. City of Ruleville, 627 So. 2d 275, 1993 Miss. LEXIS 372 (Miss. 1993).

City’s membership in Mississippi Municipal Liabilities Plan was not equivalent to purchase by city of general liability insurance and thus did not waive city’s sovereign immunity, in action brought by person alleging he was beaten by city police officer in course of arrest. McGee v. Parker, 772 F. Supp. 308, 1991 U.S. Dist. LEXIS 12657 (S.D. Miss. 1991).

Court concluded that Mississippi Supreme Court would probably conclude that city’s membership in Mississippi Municipal Liability Plan did not waive city’s sovereign immunity as to plaintiffs’ state law claims, inasmuch as reserves were not premium payments and were not intended to cover claims such as plaintiffs’ claim. Therefore, city was not liable for alleged state law violations. White v. Taylor, 775 F. Supp. 962, 1990 U.S. Dist. LEXIS 19346 (S.D. Miss. 1990), rev'd, 959 F.2d 539, 1992 U.S. App. LEXIS 8466 (5th Cir. Miss. 1992); C-1 v. Horn Lake, 775 F. Supp. 940 (N.D. Miss. 1990).

Homeowner’s complaint seeking damages from city as result of negligence by city fire department should not have been dismissed where homeowner charged that city maintained general liability insurance which covered loss caused by negligence of fire department employees; court should have permitted development of allegation that city maintained general liability insurance, though not in presence of jury. Davis v. Lexington, 509 So. 2d 1049, 1987 Miss. LEXIS 2625 (Miss. 1987).

Injury resulting from failure of municipality to properly instruct and train police officers in practice of high speed chase is not covered by liability insurance provision providing coverage for damages caused by accident and resulting from ownership, maintenance, or use of insured automobile where injury results when automobile driven by misdemeanant fleeing from police strikes house; however provision does cover damage resulting from police officer’s negligence during high speed chase which results in misdemeanant striking house. Smith v. West Point, 475 So. 2d 816, 1985 Miss. LEXIS 2239 (Miss. 1985).

Party suing municipality pursuant to conditional waiver of immunity found in §21-15-6 may not name municipality’s liability insurance carrier as party defendant. Smith v. West Point, 475 So. 2d 816, 1985 Miss. LEXIS 2239 (Miss. 1985).

2. Constitutionality.

This section is rationally related to the legitimate purpose of protecting the public treasury and, therefore, does not violate equal protection. Mosby v. Moore, 716 So. 2d 551, 1998 Miss. LEXIS 276 (Miss. 1998), limited, Gale v. Thomas, 759 So. 2d 1150, 1999 Miss. LEXIS 379 (Miss. 1999).

RESEARCH REFERENCES

ALR.

Payment of attorneys’ services in defending action brought against officials individually as within power or obligation of public body. 47 A.L.R.5th 553.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 202.

Cross References —

Duty to notify governor whenever local resources inadequate to cope with emergencies, see §33-7-301.

Emergency powers under civil defense law, see §§33-15-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

A mayor has the authority to test the emergency services of a municipality for the purpose of evaluating the readiness and effectiveness of the services in the event of an actual emergency and so that necessary changes can be recommended. Ellis, Aug. 1, 1997, A.G. Op. #97-0363.

An incumbent alderman who served for the preceding term in an office for which no candidate has filed a valid qualifying petition for the upcoming term could “hold over” in accordance with Sections 21-15-1 and 25-1-7, until a special election to fill a vacancy is held as required by Section 23-15-857, assuming his bond remains in effect. Wiggins, May 6, 2005, A.G. Op. 05-0216.

Cross References —

Limited application of section to various municipalities, see §21-15-39.

Officers enforcing law being prohibited from acquiring confiscated property, see §25-1-51.

Revocation of driver’s license, see §63-1-51.

OPINIONS OF THE ATTORNEY GENERAL

If the board of aldermen determines and establishes by lawful order that the duties of the head of maintenance require access to all municipal buildings, and the mayor does not veto that order, it is the duty of the mayor to see that this order is lawfully carried out; if the mayor refuses to follow the lawful orders of the board, the board may file suit against the mayor in a court of competent jurisdiction. Freeman and Daily, Mar. 15, 2002, A.G. Op. #02-0078.

The mayor may request attendance but may not force attendance at a weekly staff meeting of an elected police chief. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

A weekly staff meeting of the mayor and departments heads, including the police chief, does not conflict with the doctrine of separation of powers set forth in Article 1 and 2 of the Mississippi Constitution. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

Residents of a municipality may meet with the mayor to discuss any matter pertaining to the operation of the municipality, including police protection, and the mayor may meet with the police chief or police officers to gather information concerning operation of the police department and may also direct residents to communicate with the police chief concerning police protection generally or specific ongoing situations in law enforcement. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

The mayor may meet with police officers to obtain information concerning the operation of the police department, but the mayor does not have authority to become involved in the day to day operation of the police department or to make law enforcement decisions. Lee, Jan. 3, 2003, A.G. Op. #02-0749.

The mayor does not have the sole right to remove matters from the agenda, or to establish the order of the agenda, or to control the manner in which the agenda is developed, in that a majority of the board of aldermen control the agenda. Young, Aug. 6, 2004, A.G. Op. 04-0390.

Cross References —

Limited application of this section to various municipalities, see §21-15-39.

Cross References —

Sheriff’s employing power of the county in executing process, see §19-25-39.

Limited application of this section to municipalities, see §21-15-39.

Reciprocal law enforcement between municipalities during civil emergencies, see §§21-21-31 et seq.

Governor’s authority to order into active state duty the organized and unorganized militia, see §§33-5-9,33-7-301.

Duty to notify governor whenever local resources inadequate to meet emergencies, see §33-7-301.

Municipalities establishing local organizations for civil defense, see §33-15-17.

Appointment of extra deputies and police officers, see §45-5-9.

Cross References —

Governor’s authority to pardon and notice to community, see Miss. Const. Art. 5, § 124.

Limited application of this section to various municipalities, see §21-15-39.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

The authority given for the mayor with the consent of the board of aldermen to remit fines imposed in violation of municipal ordinances is not invalid as interfering with the constitutional power of pardon committed to the governor of the state. Allen v. McGuire, 100 Miss. 781, 57 So. 217, 1911 Miss. LEXIS 71 (Miss. 1911).

A municipality is without power under the Const. 1890, § 100, to refund money deposited with it, which has been forfeited by the depositor’s breach of contract in respect to public work and is equally without power under § 183 of the same instrument, to donate the fund to another association which has completed the work. Jackson E. R. L. & P. Co. v. Adams, 79 Miss. 408, 30 So. 694, 1901 Miss. LEXIS 63 (Miss. 1901).

The authority conferred upon municipalities to remit forfeitures relates only to such forfeitures as accrue in criminal proceedings. Jackson E. R. L. & P. Co. v. Adams, 79 Miss. 408, 30 So. 694, 1901 Miss. LEXIS 63 (Miss. 1901).

Cross References —

Foregoing being portion of clerk’s duties under council form of government, see §21-7-15.

Municipal clerk’s duty to keep record of ordinances, see §21-13-13.

Other duties of municipal clerks, see §§21-15-19 and21-15-21.

Provision that the clerk of a municipality shall be the custodian of optical mark reading equipment acquired by the municipality as part of a voting system, see §23-15-515.

Responsibilities of municipal clerks relative to provisions requiring disclosure of campaign finances, see §§23-15-805 and23-15-815.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2. Effect of noncompliance.

3. Presumptions and evidence.

4.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

City could convey to developer land which it had reserved for drainage, and since the transaction in which the conveyance had been made was entered into the city’s minute book, the conveyance was valid. Modling v. Bailey Homes & Ins., 490 So. 2d 887, 1986 Miss. LEXIS 2495 (Miss. 1986).

The statutes make it essential to the validity of a municipal ordinance that the minutes of the mayor and board of aldermen for the period of its enactment be signed by the mayor and attested by the city clerk. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

2. Effect of noncompliance.

1953 zoning ordinances enacted by the city of Tupelo were invalid where the minutes of the mayor and board of aldermen for the period in which the ordinance was enacted were not signed by the mayor and attested by the city clerk. Ballard v. Smith, 234 Miss. 531, 107 So. 2d 580, 1958 Miss. LEXIS 528 (Miss. 1958).

The requirement hereunder that the municipal clerk append to the ordinance “a note stating the date of its passage, and cite therein the book and page of the minutes containing the record of its passage,” is merely directory and for convenience in finding the ordinance in the minutes of the city’s governing body, and a failure to comply therewith has no effect on the ordinance or on the copy thereof in the ordinance book. Jimmerson v. Oxford, 190 Miss. 884, 2 So. 2d 152, 1941 Miss. LEXIS 107 (Miss. 1941).

3. Presumptions and evidence.

A clerk authorized under the charter to register the proceedings and ordinances of the municipality is presumed to have done so and an ordinance found registered in the proper book by such clerk is presumed to be valid, where entry in the book clearly shows its adoption. City of Corinth v. Sharp, 107 Miss. 696, 65 So. 888, 1914 Miss. LEXIS 135 (Miss. 1914).

4.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

A recital in subsequent minutes that an order had been made at a previous meeting fixing a time for hearing objections to a tax assessment imports such verity that, although the records fail to disclose any such order, it is presumed that the order was made but failed to be recorded. Hawkins v. West Point, 200 Miss. 616, 27 So. 2d 549, 1946 Miss. LEXIS 332 (Miss. 1946).

A printed proof of the publication of a municipal ordinance setting forth the ordinance at length and the date of its passage securely pasted to one of the pages of the municipal ordinance book will satisfy the requirements of this section, so that it is not error to admit in evidence the ordinance book in which such ordinance appeared in a prosecution for possession of intoxicating liquor in violation of the ordinance in question. Jimmerson v. Oxford, 190 Miss. 884, 2 So. 2d 152, 1941 Miss. LEXIS 107 (Miss. 1941).

Statute requiring municipal clerk to keep well-bound book to record proceedings and orders, ordinances, and judgments, is mandatory. Town of Ackerman v. Choctaw County, 157 Miss. 594, 128 So. 757, 1930 Miss. LEXIS 341 (Miss. 1930).

In prosecution for violating ordinance, ordinance, to be admissible, must be verified by certificate of clerk and by seal of town. Dennis v. Walnut Grove, 157 Miss. 797, 128 So. 557, 1930 Miss. LEXIS 323 (Miss. 1930).

This section is directed to the clerk with reference to transcribing ordinances in the ordinance book, and the clerk’s failure to transcribe an ordinance does not invalidate the ordinance. City of Greenwood v. Jones, 91 Miss. 728, 46 So. 161, 1907 Miss. LEXIS 212 (Miss. 1907).

OPINIONS OF THE ATTORNEY GENERAL

Official record is written record required to be kept by municipal clerk, pursuant to Section 21-15-17 but tape recording and transcripts are public records subject to disclosure under open records law; reasonable access to tape recordings or transcripts cannot be denied to mayor or alderman. DeMetz, Feb. 9, 1994, A.G. Op. #93-0842.

In a municipality with a claims docket, the governing authorities must record in the minutes the approval of the claims docket and must refer to the claim numbers in the claims docket; in a municipality without a claims docket, the governing authorities must record in the minutes the approval of the claims and the names of the claimants, the dates the claims were presented, the amounts and the nature of the claims. Donald, August 13, 1999, A.G. Op. #99-0392.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 176 et seq.

66 Am. Jur. 2d, Records and Recording Laws §§ 1-7, 54-70, 149.

CJS.

76 C.J.S., Records §§ 1, 8, 9, 10-20, 33-36 .

Cross References —

Foregoing being portion of clerk’s duties under council form of government, see §21-7-15.

Other duties of municipal clerks, see §§21-15-17 and21-15-21.

Limited application to various municipalities, see §21-15-39.

Clerk’s keeping books and records of municipal funds, see §21-35-11.

Maintaining claims docket, see §21-39-7.

JUDICIAL DECISIONS

1. In general.

2. Authority to act.

1. In general.

When a city’s intoxilyzer has been inspected and a certificate of accuracy issued, the municipal clerk’s office is fairly seen as the statutorily authorized location for the certificate to be filed. Callahan v. State, 811 So. 2d 420, 2001 Miss. App. LEXIS 91 (Miss. Ct. App. 2001).

2. Authority to act.

Where the mayor and board of aldermen held a special session without giving notice and overturned the decision of the board of zoning appeals affirming a building permit in favor of an ice company, the mayor exceeded his authority under Miss. Code Ann. §21-15-9. The company’s right to due process was violated. City of Petal v. Dixie Peanut Co., 994 So. 2d 835, 2008 Miss. App. LEXIS 318 (Miss. Ct. App.), cert. dismissed, 998 So. 2d 1010, 2008 Miss. LEXIS 683 (Miss. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Town’s records should be kept at clerk’s office in City Hall rather than at his home and records must be available to public during regular business hours. Harvey, Jan. 12, 1994, A.G. Op. #93-0871.

The records of a municipality must be maintained in a manner and at a location that provides access to the taxpayers during regular business hours. Hatcher, Dec. 28, 1999, A.G. Op. #99-0660.

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Records and Recording Laws §§ 54-70, 149.

21 Am. Jur. Pl & Pr Forms (Rev), Records and Recording Laws, Forms 13-16 (certificates).

2 Am. Jur. Trials 409, Locating Public Records.

CJS.

76 C.J.S., Records §§ 8, 11-20.

Cross References —

Board of supervisors’ clerk being county auditor, see §19-17-1.

Other duties of municipal clerks, see §§21-15-17 and21-15-21.

Applicability to certain municipalities, see §21-15-39.

JUDICIAL DECISIONS

1. In general.

A superintendent of a separate school district may compel the clerk of the municipality to issue a warrant in payment for his services as superintendent of the school by mandamus. Ladner v. Talbert, 121 Miss. 592, 83 So. 748 (Miss. 1920).

The receipt warrant is a part of the fiscal machinery devised to be followed to keep proper record of the town’s money intended for the convenience and protection of the municipality; But it is not the exclusive evidence of the reception of money by the treasurer. Town of Gloster v. Harrell, 77 Miss. 793, 23 So. 520, 27 So. 609, 1900 Miss. LEXIS 13 (Miss. 1900).

It is not for the treasurer or his sureties, the money of the town being traced to his hands by other competent evidence, to find shelter under the absence of a mere receipt warrant or the fact that his bond was approved by resolution instead of ordinance. Town of Gloster v. Harrell, 77 Miss. 793, 23 So. 520, 27 So. 609, 1900 Miss. LEXIS 13 (Miss. 1900).

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 21-15-21, city clerk is responsible to council and is auditor of municipality; clerk keeps accounting records which are necessary for preparing financial statements; therefore, mayor-council municipality may hire internal auditor who is deputy clerk to make studies of bookkeeping system and to prepare financial statements of municipality, but there is no authority for mayor of mayor-council municipality to appoint internal auditor, unless department has been created by ordinance of council. Hewes, Apr. 7, 1993, A.G. Op. #93-0131.

Town’s records should be kept at clerk’s office in City Hall rather than at his home and records must be available to public during regular business hours. Harvey, Jan. 12, 1994, A.G. Op. #93-0871.

The records of a municipality must be maintained in a manner and at a location that provides access to the taxpayers during regular business hours. Hatcher, Dec. 28, 1999, A.G. Op. #99-0660.

RESEARCH REFERENCES

Am. Jur.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc. Form 96 (complaint, petition, or declaration, by resident and taxpayer, to restrain city from unlawfully expending funds to employ auditor to establish accounting system).

Amendment Notes —

The 2009 amendment substituted “Fifty Thousand Dollars ($50,000.00)” for “Ten Thousand Dollars ($10,000.00)” at the end of the last paragraph.

Cross References —

Summary of clerk’s duties, see §21-7-15.

Limited application to various municipalities, see §21-15-39.

Cross References —

County’s employing attorney, see §19-3-47.

Employment of firm of attorneys, see §21-15-27.

Limited application to various municipalities, see §21-15-39.

Municipal attorney’s bringing suit if clerk fails to keep books as prescribed, see §21-35-11.

Municipal attorney’s bringing action when expenditures made in excess of budget limitations, see §21-35-17.

Officers enforcing law being prohibited from acquiring confiscated property, see §25-1-51.

Duty of municipal attorney in case of public health nuisance, see §41-23-13.

JUDICIAL DECISIONS

1. In general.

2. Employment of counsel.

3. Use of additional counsel.

4. Unauthorized expenditures.

5. Under former law.

1. In general.

Since city charter was silent on method for selecting a city attorney, statutory law applied and permitted the “governing authorities” to appoint an attorney for the municipality, which meant the mayor and board of alderman; however, since the city’s charter expressly stated that the mayor could only vote in the event of a tie and the city council’s vote in favor of appointing the particular person did not end in a tie, the mayor was not authorized to vote on that matter. Tisdale v. City Council of Aberdeen, 856 So. 2d 323, 2003 Miss. LEXIS 489 (Miss. 2003).

Ordinances requiring city council approval for mayor’s appointment of city attorney, municipal judges, and prosecutors are consistent with statutory requirement that executive authority be vested with mayor in mayor-council form of government. Jordan v. Smith, 669 So. 2d 752, 1996 Miss. LEXIS 8 (Miss. 1996).

An admission of counsel for a defendant county in a suit for damages for abandoning a highway is binding on the county. Noxubee County v. Long, 141 Miss. 72, 106 So. 83, 1925 Miss. LEXIS 209 (Miss. 1925).

Where the revenue agent brought a suit in behalf of the county against a depository the court had the discretion to permit an attorney for the Board of Supervisors to co-operate with the revenue agent in the suit. Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318, 1917 Miss. LEXIS 335 (Miss. 1917).

This section [Code 1942, § 3374-95] must be construed in the light and as part of the entire chapter on municipalities. Ott v. State, 78 Miss. 487, 29 So. 520 (Miss. 1900).

2. Employment of counsel.

Under §21-3-15, the mayor of a town operating under a code charter had the authority to veto an order of its board of aldermen appointing a town attorney. Edwards v. Weeks, 633 So. 2d 1035, 1994 Miss. LEXIS 125 (Miss. 1994).

Resolution of municipal governing board for the employment of counsel in certain cases held sufficiently definite to constitute a contract. Smith v. Ballard, 241 Miss. 194, 129 So. 2d 635, 1961 Miss. LEXIS 331 (Miss. 1961).

Where a board of supervisors in issuing refunding bonds as provided by law, engaged in connection therewith the services of an attorney, who on declining to proceed further without increased compensation received a settlement for his work done and expenses incurred, and new attorneys were engaged to complete the work, and the Board of Supervisors made appropriations for the payment of such attorney’s fees under their authority to appropriate money for the payment of the expenses incurred in issuing the bonds, no liability accrued against the Board of Supervisors, notwithstanding that such appropriation for attorney’s fees may have exceeded the amount authorized or that they were in violation of constitutional provisions prohibiting extra compensation to public officers, agents, servants or contractors after service rendered or contract made or part payment of any claim under a contract not authorized by law, and against relief of any obligation or liability owing to any county, etc. Causey v. Gilbert, 193 Miss. 756, 10 So. 2d 451, 1942 Miss. LEXIS 148 (Miss. 1942).

A city may employ associate counsel to assist its city attorney in any case where its authorities deem it necessary. Vicksburg Waterworks Co. v. Vicksburg, 99 Miss. 132, 54 So. 852, 1910 Miss. LEXIS 26 (Miss. 1910).

3. Use of additional counsel.

Orders of city council employing outside counsel to assist city attorney in pending litigation held to authorize such counsel to assist in prosecuting litigation to conclusion or to effect. Gwin v. Greenwood, 159 Miss. 110, 131 So. 821, 1931 Miss. LEXIS 18 (Miss. 1931).

The employment by the board of supervisors of counsel by the year as authorized by this section [Code 1942, § 2958] does not deprive it of power to employ a competent person, although he be a lawyer, other than the one previously employed, to investigate the titles to the sixteenth section school lands and to bring suits to confirm titles thereto. Warren County v. Dabney, 81 Miss. 273, 32 So. 908, 1902 Miss. LEXIS 116 (Miss. 1902).

4. Unauthorized expenditures.

Board of supervisors is not authorized to pay traveling expenses of its attorney in performance of his duties except those while representing board before State Tax Collector. Gully v. Bridges, 170 Miss. 891, 156 So. 511, 1934 Miss. LEXIS 182 (Miss. 1934).

Bill against board of supervisors and its attorney, alleging illegal payment of attorney’s traveling expenses, held not subject to general demurrer. Gully v. Bridges, 170 Miss. 891, 156 So. 511, 1934 Miss. LEXIS 182 (Miss. 1934).

The statute does not authorize the board to pay an attorney for procuring to be done what is its duty to have done, such as requiring officers to give new bonds in certain cases. Marion County v. Taylor, 55 Miss. 184, 1877 Miss. LEXIS 120 (Miss. 1877).

5. Under former law.

The board of supervisors, under Code 1892, § 293 may employ advisory counsel by the year at an annual salary, and during the employment of such counsel, may employ other counsel in civil cases in which the county is interested and in criminal cases mentioned in the code section. Board of Sup'rs v. Booth, 81 Miss. 267, 32 So. 1000 (Miss. 1902).

Under this section (§ 2992, Code of 1892) providing that at the first regular meeting of the mayor and board of aldermen succeeding each regular election they shall elect inferior officers, the new or incoming mayor and board of aldermen alone have the right to elect such officers, and this is true even when a regular meeting under § 2989, Code 1892, be held by the old board after the election and before the organization of the new one as provided in § 3030, Code of 1892. Ott v. State, 78 Miss. 487, 29 So. 520 (Miss. 1900).

OPINIONS OF THE ATTORNEY GENERAL

Mayor’s veto power extends to selection of school trustee, but this veto is subject to override by two-thirds vote of Board; following same logic, this veto authority extends to selection of municipal attorney. Sessums, March 14, 1990, A.G. Op. #90-0142.

Miss. Code Section 21-15-25, which provides in pertinent part that “governing authorities may annually appoint an attorney at law for the municipality, prescribe his duties and fix his compensation, and/or they may employ counsel to represent the interest of the municipality, should the occasion require”, is discretionary, not mandatory, and city need not appoint attorney under this section. Hewes, Mar. 29, 1993, A.G. Op. #92-0952.

Municipal governing authorities may employ an attorney to represent the civil service commission for a specific dispute that the commission has with the governing authorities, including a dispute concerning whether the city is providing services, facilities or personnel required by statute, and the attorney may be compensated for such services. Jordan, July 11, 1997, A.G. Op. #97-0350.

A mayor has the power to veto an order by a board of aldermen appointing a city attorney. Lee, Aug. 8, 1997, A.G. Op. #97-0459.

Municipal governing authorities may annually appoint an attorney to represent the interests of the municipality and to prescribe the duties and compensation of the position, but where the discretionary authority to appoint an attorney is not exercised, it is within the authority of the governing authorities to include the duty to prosecute cases in the municipal court among the prescribed duties of the regular municipal attorney along with such additional duties as may be specified in the municipal attorney’s employment contract. Creekmore, January 9, 1998, A.G. Op. #97-0780.

In situation where there was no appointment of another city attorney in the period to and throughout the litigation over the authority to appoint the city attorney, the former city attorney whose term had expired could continue to perform the duties of the position until such time as his successor was appointed; for these services the former city attorney would be entitled to compensation according to the terms of his prior appointment. Tisdale, January 16, 1998, A.G. Op. #97-0688.

There is no authority for the city council to appoint or employ a council attorney or attorneys to advise or render legal assistance to the city council. Stokes, March 5, 1999, A.G. Op. #99-0063.

There is no authority under the statute for the city council to appoint or employ an attorney. McLemore, Jan. 25, 2002, A.G. Op. #02-0004.

The board of aldermen of a town may hire the grandson-in-law of the mayor as the municipal attorney. Fielding, Jan. 24, 2003, A.G. Op. #03-0019.

Governing authorities may only enter into a contract for legal services or other professional services by order in the minutes, and the governing authorities should clearly set forth in the minutes the scope of legal services which the city attorney will perform on a routine basis as well as additional authority to represent the city in litigation as the need arises. Moton, Mar. 14, 2003, A.G. Op. #03-0115.

In a mayor-council municipality the city council has the authority to enact an ordinance requiring the mayor to submit any appointee to the position of municipal attorney to the council for advice and consent. Magee, July 29, 2005, A.G. Op. 05-0390.

Section 21-15-25 does not authorize a municipality to hire additional counsel to represent municipal officers who are in disagreement with a decision of the governing authority. The municipal attorney appointed pursuant to Section 21-15-25 represents the municipality, not one or more officers. Lawrence, July 26, 2006, A.G. Op. 06-0257.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 275.

Cross References —

County’s employing attorney, see §19-3-47.

Appointment and compensation of municipal attorney, see §21-15-25.

Limited application to all municipalities, see §21-15-39.

OPINIONS OF THE ATTORNEY GENERAL

Governing authorities may only enter into a contract for legal services or other professional services by order in the minutes, and the governing authorities should clearly set forth in the minutes the scope of legal services which the city attorney will perform on a routine basis as well as additional authority to represent the city in litigation as the need arises. Moton, Mar. 14, 2003, A.G. Op. #03-0115.

A law firm retained by a municipality in accordance with this section is not an “employee” of the municipality and therefore members of the firm and their dependents are not eligible for the health insurance coverage specified in §§25-15-101 and25-15-103. Campbell, Sept. 3, 2004, A.G. Op. 04-0440.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 215 et seq.

3 Am. Jur. Legal Forms 2d, Attorneys at Law § 30:35 (contract with attorney performing special services).

Editor’s Notes —

Former §21-15-29 prohibited certain acts of municipal attorneys.

Cross References —

Limited application to various municipalities, see §21-15-39.

RESEARCH REFERENCES

ALR.

Liability of municipal corporation for negligent performance of building inspector’s duties. 41 A.L.R.3d 567.

Cross References —

Applicability to various municipalities, see §21-15-39.

Contracting with newspapers for publication of legal notices, see §21-39-3.

JUDICIAL DECISIONS

1. In general.

Buyer’s appeal of the city’s decision not to sign his bill of exceptions was filed outside the ten-day period allowed by Miss. Code Ann. §11-51-75; pursuant to Miss. Code Ann. §21-15-33, the ten-day time period for appeal began when the city adjourned the meeting on September 11, 2007, after making a decision about the property. Rankin Group, Inc. v. City of Richland, 8 So.3d 259, 2009 Miss. App. LEXIS 142 (Miss. Ct. App. 2009).

It was the legislative intent to provide latitude in the signing of minutes in order that official actions should not be invalidated, even if not signed in 10 days. City of Biloxi v. Cawley, 278 So. 2d 389, 1973 Miss. LEXIS 1427 (Miss. 1973).

Where a city commission convened its regular session on May 17, and by appropriate recessing orders, it continued in regular session on May 18, 24, 26, and June 2, and an annexation ordinance was duly adopted on May 18, and the regular meeting was not finally adjourned until June 2, the 10 days contemplated by Code 1942 § 3374-72 began to run from June 2, and the proceedings of the commission in adopting the annexation ordinance were valid. City of Biloxi v. Cawley, 278 So. 2d 389, 1973 Miss. LEXIS 1427 (Miss. 1973).

The certificate of the city clerk, certifying as true and correct a copy of the minutes of various meetings of the mayor and board of aldermen, offered by objectors to show that the minutes had not been signed, and the testimony of the deputy chancery clerk that he had photostated the minute book in connection with the preparation of the certificate, should have been admitted and considered by the chancellor, together with the original minute book and all other evidence, in determining if the minutes were valid. Stephens v. Natchez, 261 So. 2d 486, 1972 Miss. LEXIS 1298 (Miss. 1972).

OPINIONS OF THE ATTORNEY GENERAL

In a municipality with a claims docket, the governing authorities must record in the minutes the approval of the claims docket and must refer to the claim numbers in the claims docket; in a municipality without a claims docket, the governing authorities must record in the minutes the approval of the claims and the names of the claimants, the dates the claims were presented, the amounts and the nature of the claims. Donald, August 13, 1999, A.G. Op. #99-0392.

The mayor of a code charter municipality does not have authority to veto the official action of the board adopting the minutes when the board has made the factual finding that the minutes accurately reflect all actions taken at the meeting and has adopted the minutes by majority vote pursuant to the statute. Gary, August 20, 1999, A.G. Op. #99-0435.

There are no provisions clearly specifying what occurs upon failure of municipal governing authorities to comply with the requirement to approve minutes within 30 days of the meeting. Wiggins, July 29, 2005, A.G. Op. 05-0385.

The approval of minutes is an act which is effective immediately at the time of the meeting, without the necessity of awaiting the approval of the official minutes of that meeting. Wiggins, Apr. 21, 2006, A.G. Op. 06-0135.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 176 et seq.

66 Am. Jur. 2d, Records and Recording Laws §§ 54-70.

CJS.

76 C.J.S., Records §§ 8, 9, 11-20, 33-36.

Cross References —

Preservation of essential public records of county government, see §19-15-1.

Reproducing county records on film and destroying originals, see §19-15-3.

Authority for county purchasing photorecording equipment, see §19-15-5.

Reproduction of essential public records of municipal governments, see §21-15-37.

Preservation, reproduction and destruction of records under the Archives and Records Management Law of 1981, see §§25-59-1 et seq.

RESEARCH REFERENCES

Am. Jur.

66 Am. Jur. 2d, Records and Recording Laws §§ 60-63.

2 Am. Jur. Trials 409, Locating Public Records.

CJS.

76 C.J.S., Records §§ 13, 15.

Cross References —

Admission into evidence of copies certified by public officers, see §13-1-77.

Preservation of essential public records of county government, see §19-15-1.

Preservation of public records, see §21-15-35.

Preservation, reproduction and destruction of records under the Archives and Records Management Law of 1981, see §§25-59-1 et seq.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

66 Am. Jur. 2d, Records and Recording Laws § 60.

21 Am. Jur. Pl & Pr Forms (Rev), Records and Recording Laws, Forms 13-16 (certificates).

CJS.

76 C.J.S., Records § 13.

Cross References —

Surety bond of officers and employees of various forms of government, see §§21-5-9 (commission);21-7-11 (council);21-8-23 (mayor-council); and21-9-21 (council-manager).

Editor’s Notes —

Section 21-15-5, referred to in this section, was repealed by Laws, 1986, ch. 495, § 329, eff. from and after January 1, 1987.

Cross References —

Various forms of municipal government, see §§21-3-1 et seq. (code charter);21-5-1 et seq. (commission);21-7-1 et seq. (council);21-8-1 et seq. (mayor-council); and21-9-1 et seq. (council-manager).

JUDICIAL DECISIONS

I. Under Current Law.

1. Conflict between statute and city charter.

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. Conflict between statute and city charter.

Since city charter was silent on method for selecting a city attorney, statutory law applied and permitted the “governing authorities” to appoint an attorney for the municipality, which meant the mayor and board of alderman; however, since the city’s charter expressly stated that the mayor could only vote in the event of a tie and the city council’s vote in favor of appointing the particular person did not end in a tie, the mayor was not authorized to vote on that matter. Tisdale v. City Council of Aberdeen, 856 So. 2d 323, 2003 Miss. LEXIS 489 (Miss. 2003).

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Const. 1890, §§ 80, 88, among other things providing for general laws to create and govern municipal corporations are prospective in operation and do not repeal existing municipal charters. Therefore this section recognizing the continued existence of such charters is not unconstitutional. Lum v. Mayor, etc., of Vicksburg, 72 Miss. 590, 72 Miss. 950, 18 So. 476, 1895 Miss. LEXIS 62 (Miss. 1895).

Its corporate authorities having formally accepted the provisions of the Code Chapter, the city of Jackson became bound thereby, and subsequent action of the authorities purporting to rescind the resolution of acceptance, though within twelve months, was ineffectual. Ex parte Shlomberg, 70 Miss. 47, 11 So. 721, 1892 Miss. LEXIS 73 (Miss. 1892); State ex rel. Shields v. Govan, 70 Miss. 535, 12 So. 959, 1893 Miss. LEXIS 46 (Miss. 1893).

Under this section declaring that after the chapter became operative, every municipality shall be governed by its provisions but that any municipality might within twelve months, “elect not to come under the provisions hereof,” power was given municipalities affirmatively to accept the provisions of the chapter and be governed thereby. Ex parte Shlomberg, 70 Miss. 47, 11 So. 721, 1892 Miss. LEXIS 73 (Miss. 1892).

Amendment Notes —

The 2017 amendment, in (1), rewrote the first two sentences, which read: “No person shall serve in an interim or hold-over capacity for longer than one hundred eighty (180) days after the expiration of the term to which he or she was appointed in a position that is required by law to be filled by appointment of the governing body of a municipality, or by mayoral appointment with the advice and consent of the council or aldermen, including positions on boards, commissions or authorities,” and added the last two sentences; and added (2).

The 2018 amendment substituted “ninety (90) days” for “one hundred eighty (180) days” everywhere it appears in (1), and substituted “ninety-day period” for “one hundred eighty-day period”; rewrote (2), which read: “It is the intent of the Legislature that the provisions of this section shall apply retroactively to all appointees serving in a hold-over or interim capacity on July 1, 2017, and for such appointees, the one hundred eighty-day limitation period shall commence to run on July 1, 2017”; and added (3).

Joint Legislative Committee Note —

Section 1 of ch. 440 Laws of 2004, effective from and after July 1, 2004 (approved April 28, 2004), amended this section. Section 2 of ch. 560, Laws of 2004, effective from and after July 1, 2004 (approved May 14, 2004), also amended this section. As set out above, this section reflects the language of Section 2 of ch. 560, Laws of 2004, pursuant to Section 1-3-79, which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Section 1 of ch. 487 Laws of 2007, effective from and after July 1, 2007 (approved March 27, 2007), amended this section. Section 1 of ch. 538, Laws of 2007, effective July 1, 2007 (approved April 18, 2007), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 538, Laws of 2007, pursuant to Section 1-3-79, which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation inserted the word “and” following the semi-colon in the last item in the list of municipal powers in subsection (1). The Joint Committee ratified the correction at its July 22, 2010, meeting.

Section 4 of Chapter 517, Laws of 2010, effective July 1, 2010 (approved April 14, 2010), amended this section. Section 1 of Chapter 415, Laws of 2010, effective upon passage (approved March 17, 2010), and Section 1 of Chapter 433, Laws of 2010, effective July 1, 2010 (approved March 25, 2010), also amended this section. As set out above, this section reflects the language of Section 4 of Chapter 517, Laws of 2010, which contains language that specifically provides that it supersedes §21-17-1 as amended by Laws of 2010, chs. 415 and 433.

Section 1 of Chapter 402, Laws of 2012, effective July 1, 2012 (approved April 18, 2012) amended this section. Section 3 of Chapter 497, Laws of 2012, effective July 1, 2012 (approved April 30, 2012) also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109, which gives the Joint Legislative Committee on Compilation, Revision and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at the August 16, 2012, meeting of the Committee.

Section 1 of ch. 370, Laws of 2014, effective July 1, 2014, amended this section. Section 2 of ch. 432, Laws of 2014, effective from and after July 1, 2014, also amended this section. As set out above, this section reflects the language of both amendments pursuant to Section 1-1-109 which gives the Joint Legislative Committee on Compilation, Revision, and Publication of Legislation authority to integrate amendments so that all versions of the same code section enacted within the same legislative session may become effective. The Joint Committee on Compilation, Revision, and Publication of Legislation ratified the integration of these amendments as consistent with the legislative intent at the July 24, 2014, meeting of the Committee.

Pursuant to Section 1-1-109, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation corrected typographical errors in (3)(a)(ii) and (b)(ii) by, in (3)(a)(ii), deleting the comma following “donates real property,” substituting “shall revert 1. to the bona fide not-for-profit civic or eleemosynary corporation, if a certain state institution of higher learning ceases to use the property for the purposes required by this paragraph (a) for donated lands, or 2.” for “shall revert (1) to the bona fide not-for-profit civic or eleemosynary corporation, if a certain state institution of higher learning ceases to use the property for the purposes required by this paragraph (a) for donated lands or (2),” and substituting the semicolon for a period at the end, and in (3)(b)(ii), inserting “this paragraph” following “described in paragraph (a) or.” The Joint Committee ratified these corrections at its July 24, 2014, meeting.

Amendment Notes —

The 1999 amendment added (c).

The 2000 amendment inserted “civic” in (c); and added the last four sentences in the second undesignated paragraph of (c).

The 2001 amendment added the last sentence in the fifth undesignated paragraph; and added the next to last paragraph.

The 2003 amendment designated the formerly undesignated paragraphs as present (1) through (9); added (3)(d); and substituted “subsection ” for “paragraph ” throughout (5).

The first 2004 amendment, ch. 440, effective July 1, 2004, rewrote this section.

The second 2004 amendment, ch. 560, § 2, effective July 1, 2004, rewrote (2); substituted “as set forth in subsection (2) of this section ” for “as set forth hereinabove ” at the end of the introductory paragraph of (3); inserted (5) and redesignated the remaining subsections accordingly; substituted “governing authority ” for “governing authorities ” throughout; and made minor stylistic changes throughout.

The first 2007 amendment (ch. 487) added (11) and redesignated former (11) as present (12).

The second 2007 amendment (ch. 538), in (3), added (c) and redesignated former (b) as present (b)(i) and former (c) as present (b)(ii); added (11) and (12); and redesignated former (11) as present (13).

The first 2010 amendment (ch. 415) deleted (12)(b), which formerly read: “All costs associated with a conveyance under this subsection shall be paid by the person or entity to whom the conveyance is made”; and redesignated former (12)(c) and (12)(d) as (12)(b) and (12)(c), respectively.

The second 2010 amendment (ch. 433) added (13) and (15); and redesignated former (13) as (14).

The third 2010 amendment (ch. 517), in (6), in the first sentence, added the language beginning “and other assessments, or with the district attorney of the circuit court district” through to the end, and made a related change, and in the ninth sentence, substituted “twenty-five percent (25%)” for “fifteen percent (15%)” and “fifty percent (50%)” for “twenty-five percent (25%)”; deleted former (12)(b), which read: “All costs associated with a conveyance under this subsection shall be paid by the person or entity to whom the conveyance is made”; redesignated former (12)(c) and (12)(d) as (12)(b) and (12)(c) respectively; added (13); and redesignated former (13) as (14).

The 2011 amendment added “(i) Except as otherwise provided in subparagraph (ii) of this paragraph (a)” at the beginning of (3)(a)(i); added (3)(a)(ii); and substituted “July 1, 2014” for “July 1, 2011” at the end of (13); and made a minor stylistic change.

The first 2012 amendment (ch. 402), substituted “at least two (2)” for “three (3)” in (2)(b)(i); and added (2)(b)(iii).

The second 2012 amendment (ch. 499), added “to sell or dispose of personal property owned by it consistent with Section 17-25-25” preceding “to acquire equipment and machinery” in (1); deleted former (8), which read: “The governing authority of any municipality may, in its discretion, donate personal property or funds to the public school district or districts located in the municipality for the promotion of educational programs of the district or districts within the municipality,” and redesignated the remaining subsections accordingly; and made minor stylistic changes.

The 2013 amendment added “or real property” following “to sell or dispose of personal property” in the first sentence of (1); and made minor stylistic changes.

The first 2014 amendment (ch. 370) deleted the last sentence in (12), which read, “This subsection shall stand repealed from and after July 1, 2014.”

The second 2014 amendment (ch. 432) added (13), and redesignated former (13) as (14).

Cross References —

Suits against municipalities, see §§11-45-1 et seq.

Statutes of limitation being in favor of state and when running commences against plaintiff, see §15-1-51.

Authority in zoning matters, see §§17-1-3,17-1-5.

Uniformity and consistency in zoning regulations of county and municipality, see §17-1-3.

Municipality approving a vacation or alteration of map or plat pursuant to the provisions of §17-1-23 is exempt from sale of surplus real property provisions of this section, see §17-1-23.

Accepting subdivision street before subdivision completed, see §17-1-25.

Advertising resources, see §§17-3-1 et seq.

Establishing convention centers, see §§17-3-9 through17-3-19.

Leasing municipal lands for oil, gas and mineral exploration and development, see §§17-9-1 et seq.

Uniform system for issuance of negotiable notes or certificates of indebtedness, see §§17-21-51 et seq.

Governing authorities of municipalities authorized to enter into collection agreements with private attorney, collection agency or others to collect cash appearance bonds from certain defendants, see §17-25-21.

Prescribed corporate names of municipalities, see §21-1-5.

Judicial notice being taken of the powers of municipality, see §21-1-11.

Authorities appropriating funds for municipal expenses, see §21-17-7.

Collection and disposal of garbage and rubbish, see §21-19-1.

Power to establish hospitals, workhouses, and houses of correction, see §21-19-5.

Municipal authorities enacting police regulations, see §21-19-15.

Enacting fire regulations, see §21-19-21.

Municipalities not having the power to change Sunday laws, see §21-19-39.

Contributing to federal food stamp program, see §21-19-41.

Expenditures for recreational and industrial development, see §21-19-45.

Municipal police and police departments, see §§21-21-1 et seq.

Establishment and maintenance of fire departments, see §§21-25-3 et seq.

Establishment, maintenance and operation of waterworks, see §21-27-7.

Leasing or selling land on which redemption from municipal tax sale has expired, see §21-33-75.

Powers of municipalities over harbors and wharves, see §21-37-15.

Exercise of eminent domain by municipalities, see §21-37-47.

Granting of lands to state by municipalities, see §29-1-15.

Requirement that resident labor be used on public works, see §31-5-17.

Resident contractors being preferred by school and water supply district authorities, see §31-7-47.

Acquisition of public buildings, facilities, and equipment through rental contracts, see §§31-8-1 et seq.

Support of national guard located in municipality, see §33-1-3.

Civil defense law, see §§33-15-1 et seq.

Donating land to United States for veterans’ hospital or soldiers’ home, see §35-3-1.

Purchasing land for United States for use as veterans’ hospital or soldiers’ home, see §35-3-3.

Providing quarters for veterans’ organizations, see §35-3-5.

Establishment of community hospitals and health centers, see §41-13-15.

Joint operation with county of public ambulance service, see §§41-55-1 et seq.

Authority to adopt ordinances relating to individual onsite wastewater disposal systems, see §41-67-15.

Powers under urban renewal law, see §43-35-15.

Delegation to urban renewal agency of authority concerning municipal parking, see §§43-35-201 et seq.

Designation by municipalities of areas for development and redevelopment, see §§43-35-301 et seq.

Authority of municipalities relating to community development grants, see §43-35-503.

Organization of flood and drainage control districts, see §§51-35-301 et seq.

Cooperative development and operation with county of oil and gas accumulations, see §53-3-51.

Additional powers of municipalities to acquire, own and lease projects for the purpose of promoting industry and trade, see §57-3-9.

Authority to establish standard industrial parks and districts, see §57-5-17.

Right of eminent domain in acquisition of land for standard industrial park, see §57-5-21.

Sale or development of airport lands or other lands for industrial purposes, see §§57-7-1 et seq.

Authorization to acquire land for port and terminal facilities, see §59-1-37.

Powers of municipality with harbor that is a port of entry, see §59-3-1.

Airport authorities law, see §§61-3-1 et seq.

Municipal airport law, see §§61-5-1 et seq.

Support of airport facilities for state university and colleges, see §61-5-71.

Procuring airports, see §61-5-75.

Local parking and traffic regulations, see §63-3-211.

Contributing funds to aid construction of state highways, see §65-1-81.

Prohibiting construction of any public work not supervised by registered professional engineer, see §73-13-45.

Illegality of combination to prevent bidding on public works’ contracts, see §§75-21-15 et seq.

Definitions in public utilities’ regulations, see §§77-3-1 et seq.

Authority to engage in power development, see §§77-5-301 et seq. and77-5-401 et seq.

Establishment of municipal fire protection fund by state for use by municipalities to improve fire departments, see §83-1-37.

Conditions when quitclaim deed issued by municipality, see §89-1-25.

Federal Aspects—

Housing and Community Development Act of 1974 (Public Law 93-383), see § 42 USCS § 5301 et seq.

JUDICIAL DECISIONS

1. In general.

2. Tort liability.

3. Property rights.

4. Contracts.

5. Suits by or against municipal corporation.

6. Under former law.

1. In general.

H.B. 1671, Reg. Sess. (Miss. 2006), was a private law which enabled the city to obtain municipal parking facilities in exchange for the conveyance of air and development rights; the last sentences of sections 3 and 4 were unconstitutional under Miss. Const. Art. IV, § 87, as exempting the bill from compliance with Miss. Code Ann. §§21-17-1 and31-7-13 and were not merely procedural and minor. Oxford Asset Partners, LLC v. City of Oxford, 970 So. 2d 116, 2007 Miss. LEXIS 575 (Miss. 2007).

City could convey to developer land which it had reserved for drainage, and since the transaction in which the conveyance had been made was entered into the city’s minute book, the conveyance was valid. Modling v. Bailey Homes & Ins., 490 So. 2d 887, 1986 Miss. LEXIS 2495 (Miss. 1986).

The governing body of a municipality possesses only such authority as is conferred upon it by its charter or by general statutes, together with such powers as are necessary to give effect to the powers granted. Mayor & Bd. of Aldermen v. Engle, 211 Miss. 380, 51 So. 2d 564 (1951).

A city can do and perform all acts for which it has authority under its charter from the State from which it derives its existence, except such as may be in conflict with the Constitution. City of Indianola v. Sunflower County, 209 Miss. 116, 46 So. 2d 81, 1950 Miss. LEXIS 367 (Miss. 1950).

Powers delegated by the Legislature to municipalities are intended to be exercised in conformity to, and consistent with the general laws of the State, and are to be construed most strongly against a power or right claimed but not clearly given. King v. Louisville, 207 Miss. 612, 42 So. 2d 813, 1949 Miss. LEXIS 374 (Miss. 1949).

Municipal powers are only those expressly conferred by statute, and necessarily implied. Such powers belong to the municipality and not to its officers. Tullos v. Magee, 181 Miss. 288, 179 So. 557, 1938 Miss. LEXIS 70 (Miss. 1938).

Municipalities can exercise no powers except such as are delegated to them by the state expressly or by necessary implication. Steitenroth v. Jackson, 99 Miss. 354, 54 So. 955, 1911 Miss. LEXIS 212 (Miss. 1911).

A municipality operating under the Code Chapter on municipalities is restricted in its powers to those conferred by said chapter. City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890, 1910 Miss. LEXIS 199 (Miss. 1910).

Individuals dealing with a municipality are required to take notice of its charter limitations. Edwards H. & C. R. Co. v. Jackson, 96 Miss. 547, 51 So. 802, 1910 Miss. LEXIS 193 (Miss. 1910).

A municipality cannot be allowed to exercise powers not clearly given it by its charter. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 1908 Miss. LEXIS 177 (Miss. 1908).

2. Tort liability.

The owner of a business which was destroyed by fire was not collaterally estopped from bringing a negligence action against the city by a previous judgment in favor of the city in a negligence action brought by another business which was destroyed in the same fire. Weaver v. Pascagoula, 527 So. 2d 651, 1988 Miss. LEXIS 261 (Miss. 1988).

A municipality is not authorized to require written notice to the city of a defect in a sidewalk prior to an accident as a condition precedent to liability. City of Meridian v. Raley, 238 Miss. 304, 118 So. 2d 342, 1960 Miss. LEXIS 406 (Miss. 1960).

A city is liable for injuries resulting from negligence in the maintenance of a public park or playground which it has established under the authority of the statute. Harllee v. Gulfport, 120 F.2d 41, 1941 U.S. App. LEXIS 3411, 1941 U.S. App. LEXIS 3412 (5th Cir. Miss. 1941).

A city fireman engaged in the performance of a governmental duty of the city and who is injured cannot recover from the city for an injury caused by the negligence of his superior in the same service. City of Hattiesburg v. Geigor, 118 Miss. 676, 79 So. 846, 1918 Miss. LEXIS 119 (Miss. 1918) but see White v. City of Tupelo, 462 So. 2d 707, 1984 Miss. LEXIS 2068 (Miss. 1984).

3. Property rights.

City did not improperly use Miss. Code Ann. §57-7-1 to bypass the bid process in Miss. Code Ann. §21-17-1 because the powers in §21-17-1(13) were supplemental to other laws. Ball v. Mayor & Bd. of Aldermen, 983 So. 2d 295, 2008 Miss. LEXIS 184 (Miss. 2008).

City’s sale of property for $500,000 was reasonable because the goal of economic development was not to receive the highest price; a sale or lease under Miss. Code Ann. §57-7-1 was for good and valuable consideration, but not necessarily for fair market value. Ball v. Mayor & Bd. of Aldermen, 983 So. 2d 295, 2008 Miss. LEXIS 184 (Miss. 2008).

The plaintiff association did not have a vested property interest in opening and closing graves at a cemetery owned by the defendant city and, therefore, the city acted within its authority when it chose to rescind the order which created the association and to open and close graves at the cemetery itself. Hollywood Cemetery Ass'n v. Board of Mayor & Selectmen, 760 So. 2d 715, 2000 Miss. LEXIS 72 (Miss. 2000).

In a suit by taxpayers and landowners against the city to enjoin construction of a municipal building on property theretofore purchased by the city, proof that the property was a public park by common-law dedication was not clear, satisfactory and unequivocal where the city had used parts of the tract for purposes inconsistent with park purposes, leased parts of the property to private interests, sold one of the lots, and only a fraction of the original tract was still in use as a park; rather, it was as reasonable to infer that the city intended to use the tract for park purposes only for so long as it was not needed for other municipal purposes or only for so long as the land was suitable for park purposes. Thomas v. State, 292 So. 2d 177, 1974 Miss. LEXIS 1766 (Miss. 1974).

Land gratuitously conveyed to a municipal corporation with the restriction that it “shall be used for public purposes” may not be leased to a private individual for use for non-public purposes. Spears v. Spears, 266 So. 2d 910, 1972 Miss. LEXIS 1403 (Miss. 1972).

The definitions of municipal authority set forth in this section [Code 1942, § 3374-112] constitute the equivalent of an express grant of power to purchase equipment necessary to mix paving materials to be used on the city streets. Webb v. Meridian, 195 So. 2d 832, 1967 Miss. LEXIS 1456 (Miss. 1967).

This section gives the broad power to a municipality to purchase and hold real estate and personal property; under such a broad power, it is a general rule of interpretation that there is embraced and included the lesser power to lease, unless there is in the very nature of the use and control of the property an implied inhibition against a lease. Accordingly, a municipality was held liable for the reasonable use of a fire engine where the contract of sale thereof was invalid for failure to follow statutory requirements. American-Lafrance, Inc. v. Philadelphia, 183 Miss. 207, 184 So. 620, 1938 Miss. LEXIS 234 (Miss. 1938).

It is not improper for a municipality to construct or permit to be constructed in a park a statue of one of the donors who gave the park to the municipality. Brahan v. Meridian, 111 Miss. 30, 71 So. 170, 1916 Miss. LEXIS 234 (Miss. 1916).

A city is not authorized under this section [Code 1942, § 3374-112] to issue bonds to purchase real estate. City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890, 1910 Miss. LEXIS 199 (Miss. 1910).

The use of a ditch by a city for more than ten years to carry off water falling upon a certain area acquires by prescription a right to maintain the ditch for the same character of service, but the city will not be thereafter allowed to change the character of service by increasing the flow of the water or enlarging the ditch. Sturges v. Meridian, 95 Miss. 35, 48 So. 620, 1909 Miss. LEXIS 229 (Miss. 1909).

The legislature has authority and may confer power on a municipal corporation to own and operate an electric railway. Love v. Holmes, 91 Miss. 535, 44 So. 835 (Miss. 1907).

4. Contracts.

The power of a municipality to contract with reference to any subject matter must either be expressly covered by its charter or by general statute, or necessarily implied therefrom. Mayor & Bd. of Aldermen v. Engle, 211 Miss. 380, 51 So. 2d 564 (1951).

This section [Code 1942, § 3374-112] does not authorize a municipality to establish an automobile testing station and engage in the business of testing automobiles, and consequently a municipality had no authority to contract for the purchase of equipment for such purpose. Davenport v. Blackmur, 184 Miss. 836, 186 So. 321, 1939 Miss. LEXIS 59 (Miss. 1939).

This section [Code 1942, § 3374-112] does not authorize a municipality to employ a tax assessor in addition to the one provided by law; accordingly one who had allegedly contracted with a municipality to receive 50 per cent of all back taxes collected by him as a result of discovering and placing on the municipality’s tax assessment roll any real estate due to be thereon but which had escaped assessment and taxation in the past, could not recover against a municipality since such contract was void and unenforceable. Fitzgerald v. Magnolia, 183 Miss. 334, 184 So. 59, 1938 Miss. LEXIS 248 (Miss. 1938).

Municipalities may make all contracts reasonably necessary and expedient to installation and maintenance of waterworks systems. Tullos v. Magee, 181 Miss. 288, 179 So. 557, 1938 Miss. LEXIS 70 (Miss. 1938).

Town could make contract for employment of operator of water pump for stipulated compensation, if reasonably necessary and expedient to waterworks system. Tullos v. Magee, 181 Miss. 288, 179 So. 557, 1938 Miss. LEXIS 70 (Miss. 1938).

Employment of operator of pump for life with right of succession in operator’s lineal heirs, held enforceable only during term of officers who made contract. Tullos v. Magee, 181 Miss. 288, 179 So. 557, 1938 Miss. LEXIS 70 (Miss. 1938).

An instance where a city depository executed a bond not signed by the surety company as the law provided, in which it is held that the depository and surety on its bond cannot avail themselves of the fact that the bond was illegal. Perkins v. State, 130 Miss. 512, 94 So. 460, 1922 Miss. LEXIS 229 (Miss. 1922).

A city operating a public service in electric lights, water, etc., cannot require an applicant for such service to pay an account of another at the place applied for. Ginnings v. Meridian Waterworks Co., 100 Miss. 507, 56 So. 450, 1911 Miss. LEXIS 39 (Miss. 1911).

5. Suits by or against municipal corporation.

Where the officers of a municipality had proper notice of an application for a writ of mandamus to compel the payment of a judgment and the levy of taxes in the town and the judgment by default is taken against the town, a mere impression in the minds of the officers that the suit was for the purpose of making a judgment final which had been previously recovered is no reason for opening the case. Town of Jonestown v. Ganong, 97 Miss. 67, 52 So. 579, 1910 Miss. LEXIS 247 (Miss. 1910).

It is not necessary that the claim should first be presented to a municipality for allowance or rejection before suit may be instituted thereon. Pylant v. Purvis, 87 Miss. 433, 40 So. 7, 1905 Miss. LEXIS 165 (Miss. 1905).

Where a claim against a municipality is barred by limitation it ceases to be a debt and it is the duty of the municipality to plead the statute of limitations. Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84, 1903 Miss. LEXIS 137 (Miss. 1903).

An allowance by municipal authorities of a demand barred by limitation is without consideration and ultra vires, and mandamus will not lie to compel the issuance of a warrant or to complete an imperfect one made on such an allowance. Trowbridge v. Schmidt, 82 Miss. 475, 34 So. 84, 1903 Miss. LEXIS 137 (Miss. 1903).

A municipality cannot against its objection be proceeded against by attachment in chancery so as to bind its indebtedness to a non-resident defendant. Clarksdale Compress & Storage Co. v. W. R. Caldwell Co., 80 Miss. 343, 31 So. 790, 1902 Miss. LEXIS 254 (Miss. 1902).

6. Under former law.

An instance under a former statute where a state revenue agent might sue a county for the use and benefit of a city therein. Robertson v. Monroe County, 118 Miss. 541, 79 So. 187, 1918 Miss. LEXIS 85 (Miss. 1918).

A city is liable for the negligence of a driver of a city cart engaged in clearing trash and filth for the city. City of Pass Christian v. Fernandez, 100 Miss. 76, 56 So. 329, 1911 Miss. LEXIS 18 (Miss. 1911), but see White v. City of Tupelo, 462 So. 2d 707, 1984 Miss. LEXIS 2068 (Miss. 1984).

If a municipality pays a judgment against it as garnishee and takes an assignment of the judgment, it is nevertheless liable to the judgment debt, or if the debt garnished was exempt, as monthly wages of the head of a family, and the municipality has failed to suggest the claim of exemption, by which the judgment debtor was deprived of the opportunity to interplead. City of Laurel v. Turner, 80 Miss. 530, 31 So. 965, 1902 Miss. LEXIS 281 (Miss. 1902).

Unless subjected thereto by statute, it is not liable to suit by garnishment or otherwise for debts arising from its exercise of governmental functions. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

A plaintiff or complainant seeking to garnish a municipality must show that its debt to defendant was contracted in its private capacity, and must establish the nature of the transaction and the facts which render it amenable to the process. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

OPINIONS OF THE ATTORNEY GENERAL

Municipal Home Rule Act did not apply where City of Hernando, Mississippi planned to purchase existing building and land, to be subsequently leased to industrial prospect with lease containing option to purchase, as acquisition of property for industrial development had been provided for by general law. Douglas, March 2, 1990, A.G. Op. #89-950.

Municipal governing authorities may in their discretion reject all bids for sale of surplus property after it has been advertised for sale; as additional precaution, city may insert language in bid advertisements reserving right to reject any and all bids, but such is not required. May, Oct. 4, 1990, A.G. Op. #90-0735.

Statute expressly authorizes donation of municipally owned real property to nonprofit civic organization provided proper factual determinations are made by governing authorities; municipality may lease real property to civic not for profit group for nominal amount for community events. May, Oct. 31, 1990, A.G. Op. #90-0814.

The manufacture and sale of Christmas ornaments to other cities and individuals is a business venture, and the use of free labor provided by prison inmates to manufacture items gives a municipal subsidized venture an unfair advantage in the private sector. Shepard, Dec. 18, 1991, A.G. Op. #91-0943.

Governing authorities of municipalities may donate property which has ceased to be used for municipal purposes to bona fide not for profit civic or eleemosynary corporation; deed or instrument of conveyance for transaction must contain clause of reverter providing that property will revert to municipality in event of cessation of use for purposes set forth in statute for period of two years, and city may not subordinate reversionary interest to bank lien. Belk, July 8, 1992, A.G. Op. #92-0525.

Municipalities have no authority to require private businesses or developers to post performance or surety bond to assure completion of project in which City has no financial interest. Rafferty, August 27, 1992, A.G. Op. #92-0161.

Section does not apply to sale or disposal of property in urban renewal area. Galloway, Sept. 10, 1992, A.G. Op. #92-0670.

There is no apparent general authority empowering city to regulate eating and nonalcoholic drinking on public streets except to extent such is related to public health and/or safety concerns. Williams, Sept. 23, 1992, A.G. Op. #92-0629.

Municipality may abandon easement for utility lines and drainage by order spread upon minutes, and property will no longer be burdened by easement. Mitchell, Nov. 17, 1992, A.G. Op. #92-0849.

Municipality must comply with requirements of Miss. Code Section 21-17-1 to either lease or sell property which had ceased to be used for municipal purposes; before any lease, deed or conveyance is executed, governing authorities must advertise and accept bids in accordance with this section, and must award lease or sale to highest bidder in manner provided by law; governing authorities must make factual determinations set forth in this section in order to sell or lease municipal property without advertising and accepting competitive bids; consideration that municipality receives for sale or lease of property must be not less than average of fair market price as determined by three professional property appraisers; in case of sale on credit, municipality must charge appropriate interest and shall have lien on property for purchase money until paid. Horan, Jan. 14, 1993, A.G. Op. #92-0996.

Primary touchstone for municipal authority regarding sale, lease or conveyance of municipal real property is set out at Miss. Code Section 21-17-1. Ellis, Jan. 15, 1993, A.G. Op. #92-0986.

Since Miss. Code Section 21-17-1 contemplates payment of interest if purchase is made on credit, city will need to make finding that consideration it is to receive constitutes equivalent of sale on credit for fair market value of properties including interest. Ellis, Jan. 15, 1993, A.G. Op. #92-0986.

Governing authorities of municipality must comply with Miss. Code Section 21-17-1 to rent municipally owned land; therefore, governing authorities of municipality must advertise and accept bids to rent above described land when current lease ends; however, governing authorities may lease municipal property without advertising and accepting bids whenever governing authorities make and spread upon minutes factual findings set forth in statute, and then property may be leased for average of fair market price as determined by three property appraisers. Cossar, Apr. 14, 1993, A.G. Op. #93-0216.

Governing municipal authorities could lease municipally owned property to bona fide not for profit civic organization if governing authorities made factual determinations set forth in statute. Bardwell, June 30, 1993, A.G. Op. #93-0469.

Town may lease excess capacity of pipeline for its fair market value subject to future needs but should not lease pipeline for period to exceed four year term of Town’s governing board. Rosenblatt Oct. 22, 1993, A.G. Op. #93-0646.

As matter of policy, there was no reason for Section 57-1-45 to be inapplicable to leasing or sale of Project that was initiated and financed pursuant to industrial development bond statutes where purchase of leasehold by city (utilizing proceeds of General Obligation Note) was consummated in order to market Project to an industrial user so that Project could fulfill statutory purpose of industrial development statutes; therefore, it was not necessary to comply with 21-17-1. Collins, Jan. 5, 1994, A.G. Op. #93-0991.

Section 21-17-1 was not applicable to proposed transaction where municipality has been made whole by recouping any amount previously expended. Collins, Jan. 5, 1994, A.G. Op. #93-0991.

In accordance with general grant of powers to municipality by Section 21-17-1, and authority to manage and control municipal property in its charge, City may contract with vendors for installation of ATM in city jail or any other city building. Mitchell, Jan. 12, 1994, A.G. Op. #93-0874.

Private attorney, collection agent or agency with whom municipality contracts to collect delinquent payments owed to municipality may assume full responsibility for collection of debt, including, but not limited to, initiation of legal action against debtor, as long as legal action is taken in name of municipality, debt is not assigned to collecting agency and monies collected are not reduced by any fee owed. Collins, Jan. 12, 1994, A.G. Op. #93-0913.

If 1969 lease in question was lawfully entered and fully complied with statutes in effect at time of execution of lease, any subsequent amendments to authorizing statutes would not affect validity of lease. Ellis, March 9, 1994, A.G. Op. #94-0073.

If property is no longer being used or is no longer needed for municipal purposes, city must comply with Section 21-17-1 to accomplish lease of property. Ellis, March 31, 1994, A.G. Op. #94-0177.

A municipality does not have authority to rent equipment, such as a backhoe, to private persons as a profit making venture. Odom, Aug. 15, 1997, A.G. Op. #97-0505.

While there are no specific statutory procedures for a municipality to sell its surplus personal property, it must receive fair market value for the property, and it may sell such property at a public auction. Davies, Aug. 15, 1997, A.G. Op. #97-0510.

A municipality does not have the authority to expend funds for a market research study to ascertain the feasibility of a nonprofit corporation such as the YMCA. Stockton, March 6, 1998, A.G. Op. #98-0110.

A city may not donate real property directly to a church. Brabham, May 1, 1998, A.G. Op. #98-0198.

Assuming that the proper factual determinations can be made, a city can dispose of property by sale or lease for the average fair market price as determined by three professional property appraisers without advertising or competitive bidding; in such manner, a city can sell or lease the property directly to the purchaser or lessee of its choosing. Brabham, May 1, 1998, A.G. Op. #98-0198.

Providing banking services to the public is not a proper municipal purpose, and there is no authority for the purchase or lease-purchase of an automatic teller machine to be owned and serviced by a municipality. Horne, August 28, 1998, A.G. Op. #98-0511.

In view of the fact that surplus property owned by a city was a protected Mississippi landmark, the city could place covenants on the property restricting the use of the property to the uses set out in the notice of sale and such covenants could continue forever; further, the city could take into consideration, in awarding the bid for the sale of the property, the proposed use of the property, the scope of the proposed rehabilitation of the structure, and the time period for beginning and completing rehabilitation efforts as well as the monetary bid offered. Thomas, August 28, 1998, A.G. Op. #98-0517.

There is no authority which would authorize a municipality to dispose of real property, by sale or lease, for less than fair market value for use by the United States Army Corps of Engineers. Thomas, September 10, 1998, A.G. Op. #98-0518.

Municipal governing authorities must follow the procedures set forth in this section to lease surplus real property which was donated to the municipality. Campbell, November 6, 1998, A.G. Op. #98-0659.

The city may lease space in a municipal building to private businesses if the city finds that the office space is not needed for municipal purposes; however, the municipality must follow the procedures in the statute to lease office space in a municipal building and, therefore, must either follow the first procedure in the statute and advertise the property or the second procedure and lease the property for the average of three appraisals if the city makes the three factual findings in the statute. Campbell, November 6, 1998, A.G. Op. #98-0659.

A municipality may convey property through a lease/purchase agreement pursuant to the statute. However, a lease/purchase agreement pursuant to the statute must be for the term of the board since the statute does not authorize the governing authorities to enter into a long term lease/purchase, and such a lease/purchase agreement is voidable at the option of a subsequent board. Campbell, November 6, 1998, A.G. Op. #98-0659.

A municipality may purchase property if it is determined that the city needs such property for a proper municipal purpose. Prichard, November 13, 1998, A.G. Op. #98-0685.

The statute contains no “buy back” provision which would authorize a municipality to repurchase property which was declared surplus, consistent with fact, and sold, based on changed plans or intentions of the purchaser. Prichard, November 13, 1998, A.G. Op. #98-0685.

The statute does not address specific additional findings which must be made in the event a municipality determines it will purchase property it previously declared and sold as surplus; however, it is clear that the determination that property is needed for a proper municipal purpose must be made by the governing authorities consistent with fact, and by resolution duly and lawfully adopted and spread upon the minutes, and it is difficult to imagine that such a finding could be made, consistent with fact, without the occurrence of some events or conditions which have arisen since the same property was sold as surplus since the governing authorities were required to find, consistent with fact, that the property was no longer needed for municipal or related purposes prior to declaring it surplus. Prichard, November 13, 1998, A.G. Op. #98-0685.

There is no authority for a municipality to donate property to a church for use as a public cemetery. LeFlore, November 20, 1998, A.G. Op. #98-0644.

The governing authorities of a town may exchange real property owned by the town for real property owned by a church or a combination of real property and cash if the governing authorities follow the procedures in the statute and receive consideration which constitutes fair market value for the municipal property. LeFlore, November 20, 1998, A.G. Op. #98-0644.

A city had the authority to enter into a management contract for the operation and maintenance of a city-owned multi-educational complex since the operation of the complex was in furtherance of a proper municipal purpose. Thomas, November 25, 1998, A.G. Op. #98-0723.

The City of Jackson was authorized to proceed with a proposed sale of property to the state based on two appraisals obtained as required under state law for the purchase of property by the state. Horne, January 22, 1999, A.G. Op. #98-0806.

The governing authorities of a city could not donate a building to the Trustees of the Episcopal Diocese of Mississippi; however, if the governing authorities were to find consistent with fact and spread upon the minutes the three factual findings required by this section, they could sell the building to the Episcopal Diocese for fair market value as determined by three appraisals. Mitchell, February 12, 1999, A.G. Op. #99-0049.

There is no authority for a municipality to contract with a developer to construct a recreational park or make improvements on property in circumvention of the statutory procedures for public construction. Campbell, February 12, 1999, A.G. Op. #99-0020.

If the governing authorities follow the procedures in this section, they may award a bid to demolish a structure to a group that plans to remove and relocate the structure rather than demolish it. Thomas, March 19, 1999, A.G. Op. #99-0096.

This section applies to property where the permanent building is sold separately from the land. Thomas, March 19, 1999, A.G. Op. #99-0096.

A home in a flood plain, which the city buys through a federal grant, is real property and not personal property. Thomas, March 19, 1999, A.G. Op. #99-0096.

Even though a city intended to demolish a structure, the city could not determine that the fair market value of the structure was the estimated cost to demolish it; the fair market value was required to be determined by the appraisal process set out in this section. Thomas, March 19, 1999, A.G. Op. #99-0096.

There is no authority in this section for a city to negotiate with a buyer without following the procedures in this section to sell the property. Thomas, March 19, 1999, A.G. Op. #99-0096.

A municipality may contract with a firm to analyze the city’s utility bills for improper charges and to compensate the contractor by a contingent fee based upon refunds or rebates actually received by the city pursuant to this section so long as the contract complies with the requirements of this section and any additional rules and regulations established by the Mississippi Department of Audit. Hewes, April 9, 1999, A.G. Op. #99-0137.

A city may not use funds donated by a non-profit housing development corporation to purchase an apartment complex to be used to provide public housing. Belk, May 28, 1999, A.G. Op. #99-0224.

This section did not provide authority for a city to purchase an apartment complex from HUD and to donate the property to a non-profit housing development corporation. Belk, May 28, 1999, A.G. Op. #99-0224.

The governing authorities of the City of Olive Branch may grant a franchise to the area electric power association to construct and maintain utility poles, wires and other facilities on a strip of land near the fire station on such terms and conditions as the governing authorities may elect. Snyder, August 27, 1999, A.G. Op. #99-0402.

The statute does not exclude an organization that has a religious purpose included in its mission statement, but provides that the governing authorities may donate property to an organization that is nonprofit and civic. Power, Nov. 5, 1999, A.G. Op. #99-0592.

A city could not donate municipal property to a local nonprofit Mississippi corporation by the name of Christians United of Leland for use as a recreational center, notwithstanding that the corporation had been granted tax exempt status by the Internal Revenue Service. Power, Nov. 5, 1999, A.G. Op. #99-0592.

Subsection (c) authorizes governing authorities to donate funds to the public school district for educational programs; whether a particular program is an educational program included within the curriculum of the school or is an extracurricular activity that takes place at the school is a factual question to be determined by the municipal governing authorities. Power, Nov. 5, 1999, A.G. Op. #99-0592.

A city may make a donation of funds to the city public school district, but only to the extent that such funds will be for the promotion of educational programs of the district. Reno, Dec. 10, 1999, A.G. Op. #99-0642

The governing authorities of a municipality do not have authority to donate funds to a public school district for athletic lockers. Gabriel, Jan. 7, 2000, A.G. Op. #99-0701.

The owners of a community hospital could not convey a hospital parking lot to a nonprofit corporation as it could not be found as a matter of fact that the parking lot had ceased to be used for county purposes. Galloway, March 17, 2000, A.G. Op. #2000-0114.

The home rule statute does not allow governing authorities to create an independent commission because it provides that governing authorities may not change the form or structure of municipal government; that area of the law has been preempted by state statutes. Kimble, March 17, 2000, A.G. Op. #2000-0127.

A municipality, by and through its utility commission, may enter into contracts with parties for use of city property for antennaes, provided that the commission determines, consistent with the facts, that to do so would be in the best interest of the municipality; and, although the city may contract with a third party to solicit and manage/oversee such contracts, the final contracts must be between the city and the users. Flanagan, Jr., April 14, 2000, A.G. Op. #2000-0164.

The governing authorities of a town must comply with the statute to sell or convey property which is used as a municipal cemetery to a nonprofit organization or a church. Null, May 12, 2000, A.G. Op. #2000-0224.

There is no authority for a municipality to expend funds in order to “hold” a certain piece of property for the future benefit of a private, nonprofit organization which does not yet have other funds with which to purchase the property. Thomas, Mar. 2, 2001, A.G. Op. #01-0113.

A city could grant to a church an easement for ingress and egress across city property from one parcel of its property to another pursuant to the statute. Baum, Sept. 14, 2001, A.G. Op. #01-0551.

A municipality has authority to sell property on a credit basis, but does not have authority to jointly share a priority lien on the property with a bank. Stark, Oct. 12, 2001, A.G. Op. #01-0642.

A municipality may convey property, such as motor vehicles, to a local dealer or individual without advertising for bids, provided fair market value is received for the vehicles and may then proceed with the acquisition of property which is more suited to the needs of the municipality where the municipality has advertised for the vehicles to be traded at fair market value but all bids were refused. Gunn, Feb. 15, 2002, A.G. Op. #02-0051.

A city may hire employees to perform functions relating to the youth court with the approval of the youth court judge, if the city governing authority finds that the performance of those functions will benefit the public health, safety and welfare, pursuant to its police power and the statute. Thomas, Mar. 4, 2002, A.G. Op. #02-0095.

The governing authorities of municipalities do not have authority to donate funds to any nonprofit corporation by virtue of the fact that it is exempt under 26 USCS § 501(c)(3) from paying federal income taxes; rather, the governing authorities of municipalities may only donate funds to match other funds to specific social and community service programs of the same type and nature as those listed in the statute. Thomas, Mar. 15, 2002, A.G. Op. #02-0074.

There is no authority for the governing authorities of a municipality to make an unrestricted donation to a nonprofit corporation, such as the United Way, or for the governing authorities of a municipality to donate funds to the United Way for a computer service which will be a data base for keeping records on clients who have been helped by area churches and agencies. Thomas, Mar. 15, 2002, A.G. Op. #02-0074.

A town does not have authority pursuant to §21-17-1 to donate real property and associated personal property to a hospital which is a 501(c)(3) not-for-profit corporation. Davies, Sept. 13, 2002, A.G. Op. #02-0351.

A town may sell property to a non-profit hospital for fair market value, following the procedures in §21-17-1 over a period of several years so long as the town charges appropriate interest and retains a first priority lien on the property for the purchase price. Davies, Sept. 13, 2002, A.G. Op. #02-0351.

Section 21-17-1 does not apply to the sale of a public utility system under Section 21-27-33. Perkins, Nov. 1, 2002, A.G. Op. #02-0637.

A municipality may lease space in a municipal building to a nonprofit corporation pursuant to Section 21-17-1. Farmer, Dec. 20, 2002, A.G. Op. #02-0603.

A municipality had the authority to modify a purchase contract in consideration of getting a lump sum payment immediately, rather than monthly installments. Hilbun, Jan. 17, 2003, A.G. Op. #03-0013.

Although there is no authority for the governing authorities of a municipality to donate real property to nonprofit environmental organizations, governing authorities of a city may establish and create a park, including a greenway or recreational area, within municipal property and, further, the city may contract with a nonprofit organization for the operation and management of the park or greenway. Johnson, May 30, 2003, A.G. Op. 03-0272.

Prior to taking action, whether it be entering into a contract on behalf of the municipality or filing a lawsuit on behalf of the city, authorization must be given to the Mayor to take such action. Carroll, July 14, 2003, A.G. Op. 03-0325.

Municipal governing authorities should ensure that “fair value” is received for surplus real property which is sold or conveyed by the municipality. Phillips, Aug 1, 2003, A.G. Op. 03-0389.

A municipality is not prohibited from contracting with a collection agency and paying the collection agency a contingency fee based on the amount of delinquent fines collected by the agency. The contract may provide for a staggered contingency fee based on the amount collected. It should be noted that the entire amount of all delinquent payments collected shall be remitted to the municipality and shall not be reduced by any collection costs or fees. Thompson, Aug. 8, 2003, A.G. Op. 03-0385.

A city may enter into a lease purchase agreement in which it leases and eventually purchases all or part of a private utility system. However, the current board of aldermen of the city may not bind their successors in office by a lease purchase contract. Campbell, Sept. 26, 2003, A.G. Op. 03-0491.

A city may lease its uplands for use by the private, for-profit marine developer and so may allow use of the city’s riparian and littoral rights. However, the developer would also have to obtain the right to occupy and use the tidelands by obtaining a lease from the State of Mississippi. Lynn, Oct. 16, 2003, A.G. Op. 03-0327.

A municipality has the authority to donate real property which has been declared surplus to bona fide not-for-profit civic or eleemosynary corporations organized and existing under the laws of the State of Mississippi which are recognized 501(c)(3) corporations for tax purposes. Hammack, Oct. 31, 2003, A.G. Op. 03-0374.

A city had the authority to lease property acquired by virtue of a grant under the Mississippi Rural Impact Act to a private business. The city must comply with any rules and regulations promulgated by the Mississippi Development Authority and with the terms of the grant. Carnathan, Nov. 21, 2003, A.G. Op. 03-0611.

Municipal employees may be authorized and encouraged to volunteer in a mentoring program envisioned between a City and public school system, benefitting school-age children who are residents of the municipality. DuPree, Jan. 5, 2004, A.G. Op. 03-0658.

The board of aldermen of a town may avoid the bidding process, and enter into a lease of property for use by a private company as a provided the board makes the findings, consistent with fact, required by this section. Null, Feb. 6, 2004, A.G. Op. 04-0018.

Whether the use of a portion of a parcel of surplus property or the part of a surplus building for charitable purposes is sufficient to satisfy the requirements of subsection (2) of this section is a decision for the municipal governing authorities, taking into consideration all of the relevant facts and circumstances. Thomas, May 14, 2004, A.G. Op. 04-0201.

The opinion of this office is that the sales of cemetery plots in a municipally owned cemetery are not subject to the requirements for sales of real property found in this section. Jordan, May 28, 2004, A.G. Op. 04-0204.

The authority granted by this section to expend municipal funds to match available grants is applicable to programs in which the municipality was participating, and not to the provision of municipal funds as a match for a purely private endeavor, such as the improvement and/or development of private property, albeit for a use which will be enjoyed by the public. There is no prohibition against the use of purely private funds to serve as a match for such a project, depending upon the terms of the grant being sought. Whites, July 23, 2004, A.G. Op. 04-0264.

This section contemplates that municipal property may be found to be surplus for less than a permanent period of time and may be leased out until once again needed for municipal purposes. If a majority of the members of the board of aldermen, after proper consideration of all factors, makes the finding that a piece of property is surplus, that determination should be by resolution duly recorded in the minutes. Wood, July 23, 2004, A.G. Op. 04-0346.

Assuming a deed of conveyance of property to a city does not contain suitable reverter language, no statutory authority can be found which would permit reconveying the real property back to the person who donated it to the city without following the procedures in this section. Sorrell, Aug. 20, 2004, A.G. Op. 04-0396.

A town should not enter into a lease of an unused city building with a group of local high school alumni for the purpose of storing and displaying awards and memorabilia without first resorting to either the bid or appraisal process. However, the town may donate municipally owned real property to a bona fide not-for-profit civic or eleemosynary corporation provided the proper factual determinations are made by the governing authorities. Further, pursuant to §§17-3-1 and17-3-3 the town may appropriate and expend municipal funds to advertise the resources of the municipality. Null, Nov. 9, 2004, A.G. Op. 04-0482.

Subdivision (3)(c) of this section authorizes municipal governing authorities to lease property for less than fair market value to qualified non-profit civic or eleemosynary organizations. Whether an organization is a qualified entity is a factual determination which must be made by the municipal governing authorities and spread upon their minutes. Bogen, Nov. 15, 2004, A.G. Op. 04-0557.

A city has the authority to waive a building permit fee for the Humane Society to obtain a city building permit to construct an extensive animal shelter facility in the city. Hewes, Jan. 28, 2005, A.G. Op. 05-0018.

Disposition of property donated to a municipality by a cemetery committee. Eubanks, Apr. 15, 2005, A.G. Op. 05-0178.

A city has the authority to convey or lease to a non-profit corporation a building and the land on which it is located. Collins, Apr. 29, 2005, A.G. Op. 05-0209.

If a city’s partnership with a county educational enhancement program would entail participation by the municipality in the programs of the organization and would not simply entail putting up the matching funds for a federal grant, Section 21-17-1 provides the authority to provide those matching funds. Montgomery, May 27, 2005, A.G. Op. 05-0236.

If a town decides not to operate a municipally owned water system, its governing authorities may contract with a private nonprofit water association to operate, maintain and make repairs to the system pursuant to Section 21-27-7; additionally, Section 21-17-1 (1972) would permit the town to sell or lease the improvements. Helmert, Oct. 28, 2005, A.G. Op. 05-0518.

Where a city advertised for bids on property and one of the bidders offered real property instead of a cash payment, the city could accept the property offered, if it makes a finding that the bid offering the property is the highest bid and that such bid is in compliance with the requirements stated in the advertisement by the city. Phillips, Dec. 27, 2005, A.G. Op. 05-0613.

Under the authority of Section 57-7-1, a town may lease surplus real property to a local industry without complying with the provisions of Section 21-17-1. Sennett, Feb. 10, 2006, A.G. Op. 06-0024.

A policy of a municipality establishing a lower fee for use of municipal facilities for charitable benefits than charged for other private uses would be impermissible. As an alternative, however, certain statutes authorize municipal donations to certain types of qualified organizations. Baum, Feb. 17, 2006, A.G. Op. 06-0048.

Governing authorities need not comply with the provisions of Section 21-17-1 for the disposal of surplus real property. Montgomery, Mar. 31, 2006, A.G. Op. 06-0075.

Nothing in the language of Section 21-17-1 prohibits a municipality from dividing a large parcel of surplus real property into smaller tracts so that the sale of each tract may be handled as separate transactions to achieve the highest price for the taxpayer. Shoemake, May 5, 2006, A.G. Op. 06-0164.

A municipality may re-convey real property to an original donor without cost only if the instrument by which the property was originally conveyed to the municipality contained a proper reverter clause. Lawrence, June 9, 2006, A.G. Op. 06-0236.

It is not legally required to follow the procedure set forth in Section 21-17-1 in order to lease space on a municipally owned water tank. Bishop, June 19, 2006, A.G. Op. 06-0221.

A town may, in its discretion, contract to pay a reasonable fee or commission to a licensed real estate broker in consideration for services rendered in connection with the lawful sale of the town’s real property. Tach, June 30, 2006, A.G. Op. 06-0273.

Leasing or permitting space on municipal light poles for the location of transmitters for wireless internet service is not the granting of a franchise within the meaning of Sections 21-27-1 et seq. or Section 21-13-1(3). A municipality leasing that space would still be required to receive fair value for the lease to ensure it did not result in an unlawful donation, but upon a finding by the governing authorities that it would be in the best interests of the municipality, would not be required to advertise and solicit bids. Hedglin, June 30, 2006, A.G. Op. 06-0242.

A city must comply with Section 21-17-1 should it decide to dispose of the fee underlying a dedicated street. Herring, Sept. 11, 2006, A.G. Op. 06-0419.

For purposes of disposing of real property, a natural gas district must follow the provisions of Section 21-17-1. Bates, Nov. 3, 2006, A.G. Op. 06-0557.

When acquiring real property, a governing authority must comply with the provisions of Section 43-37-3 and may, within its discretion, establish a purchase price which exceeds the appraised value of the property when the determined purchase price is commensurate with the fair market value of the property. Shoemake, Nov. 17, 2006, A.G. Op. 06-0570.

Pursuant to Miss. Code Ann. §21-17-1, a municipality no longer using surplus municipal property but desiring to retain title to it may, instead of donating it, lease the property to a bona fide not-for-profit corporation for less than fair market value without having to comply with competitive-bid requirements, so long as it makes the required factual determinations. Jones, February 16, 2007, A.G. Op. #07-00050, 2007 Miss. AG LEXIS 24.

Under Miss. Code Ann. §61-5-39, the Tunica County Airport Commission, a joint venture of the Town of Tunica and Tunica County, may dispose of its unused real property by leasing or selling it to a nonprofit organization for use as a homeless shelter, with the consent of the governing authorities of both the town and the county, and using the procedures outlined in Miss. Code Ann. §§19-7-3,21-17-1 or57-7-1. Dulaney, March 16, 2007, A.G. Op. #07-00125, 2007 Miss. AG LEXIS 107.

RESEARCH REFERENCES

ALR.

Municipal establishment or operation of off-street public parking facilities. 8 A.L.R.2d 373.

Granting or taking of lease of property by municipality as within authorization of purchase or acquisition thereof. 11 A.L.R.2d 168.

Power of city, town, or county or their officials to compromise of claim. 15 A.L.R.2d 1359.

Liability of municipal corporation for injury or death occurring from defects in, or negligence in construction, operation, or maintenance of its electric street-lighting equipment, apparatus, and the like. 19 A.L.R.2d 344.

Maintenance or regulation by public authorities of tourist or trailer camps, motor courts, or motels. 22 A.L.R.2d 774.

Municipal operation of sewage disposal plant as governmental or proprietary function. 57 A.L.R.2d 1336.

Municipality’s liability arising from wrongful act in constructing and repairing sewers and drains. 61 A.L.R.2d 874.

Sufficiency of notice of claim against municipality as regards description of personal injury or property damage. 63 A.L.R.2d 863.

Sufficiency of notice of claim against municipality as regards time of accident. 63 A.L.R.2d 888.

Sufficiency of notice of claim against municipality as regards identity, name, and residence of claimant. 63 A.L.R.2d 911.

Power of municipal corporation to lease or sublet property owned or leased by it. 47 A.L.R.3d 19.

Validity of governmental borrowing or expenditure for purposes of acquiring, maintaining or improving stadium for use of professional athletic team. 67 A.L.R.3d 1186.

Plaintiff’s right to bring tort action against municipality prior to expiration of statutory waiting period. 73 A.L.R.3d 1019.

Liability of municipal corporation for shooting of bystander by law enforcement officer attempting to enforce law. 76 A.L.R.3d 1176.

Maintenance of class action against governmental entity as affected by requirement of notice of claim. 76 A.L.R.3d 1244.

Liability of local government entity for injury resulting from use of outdoor playground equipment at municipally owned park or recreation area. 73 A.L.R.4th 496.

Laches as defense in suit by governmental entity to enjoin zoning violation. 73 A.L.R.4th 870.

Complaint as satisfying requirement of notice of claim upon states, municipalities, and other political subdivisions. 45 A.L.R.5th 109.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties and Other Political Subdivisions §§ 189 et seq., 407 et seq.

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 96 (complaint, employment of auditor, restraining expenditure as illegal).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 113 (real estate, setting aside purchase).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 116 (public property, restraining private lease).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 117 (vehicle rental concession, injunction by high bidder).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Forms 131 et seq. (claim, notice and presentation).

18 Am. Jur. Pl & Pr Forms (Rev), Municipal Corporations, etc., Form 151 (complaint against municipality on claim or demand).

8 Am. Jur. Trials 57, Condemnation of Rural Property for Highway Purposes.

11 Am. Jur. Trials 189, Condemnation of Urban Property.

CJS.

62 C.J.S., Municipal Corporations §§ 139 et seq., 164 et seq.

Cross References —

Uniform system for issuance of negotiable notes or certificates of indebtedness, see §§17-21-51 et seq.

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 222-227.

CJS.

62 C.J.S., Municipal Corporations § 175 et seq.

Joint Legislative Committee Note —

Section 2 of ch. 363, Laws of 2000, effective from and after July 1, 2000 (approved March 17, 2000), amended this section. Section 2 of ch. 515, Laws of 2000, effective from and after July 1, 2000 (approved March 30, 2000), also amended this section. As set out above, this section reflects the language of Section 1 of ch. 515, Laws of 2000, pursuant to Section 1-3-79, which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the sections are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Editor’s Notes —

On June 12, 1998, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the amendment of this section by Laws, 1998, ch. 315, § 1.

Laws, 1989, ch. 526, § 3, effective from and after July 1, 1989, removed the provision for the repeal of this section effective October 1, 1989.

Amendment Notes —

The first 2000 amendment (ch. 363) had inserted a subsection (2) and redesignated the remaining subsections accordingly.

The second 2000 amendment (ch. 515) added (4).

The 2006 amendment substituted “municipalities” for “a municipality” following “governing authorities of” in (2); added the second sentence in (3); and in (4), substituted “governing authority” for “governing authorities,” and made a minor stylistic change.

The 2007 amendment, in (3), substituted the present last sentence for the former last sentence, which read: “The governing authority of any municipality, in its discretion, may enact leave policies to ensure that public safety employees receive the same holiday benefits as other municipal employees when the public safety employee’s regular day off occurs on a legal holiday.”

The 2009 amendment in (1), deleted “the amount of” preceding “One Hundred Thousand Dollars ($100,000.00)” and added the second-to-last sentence.

The 2016 amendment added (5).

Cross References —

Moving municipality’s site of government in emergency resulting from enemy attack, see §§17-7-1 et seq.

Uniform system for issuance of negotiable notes or certificates of indebtedness, see §17-21-51.

Jurisdiction and powers of boards of supervisors, see §19-3-41.

Duties of mayors under various forms of government, see §§21-3-15 (code-charter);21-5-7 (commission);21-7-13 (council);21-8-15 (mayor-council);21-9-37 and (council-manager).

Duty of mayor generally, see §§21-15-7 et seq.

Authority to lease lands to the United States for the purpose of securing construction of air national guard armories, see §33-11-15.

Establishing bridge and park commission and related matters, see §§55-7-1 et seq.

Airport authorities law, see §§61-3-1 et seq.

Provisions of municipal airport law, see §§61-5-1 et seq.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2. Power to adopt particular order, resolution or ordinance.

3. Judicial review.

4.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

City council was within its discretion to discharge a police chief because the chief allowed public property to be used for private employment in violation of Miss. Code Ann. §21-17-5(2)(g) and the instructions of a city council and vice mayor, and the chief was provided with notice and a hearing in accordance with the city code. Patterson v. City of Greenville, 117 So.3d 630, 2013 Miss. App. LEXIS 74 (Miss. Ct. App. 2013).

City was not authorized to make challenged expenditures for volunteer appreciation dinners, travel advances, police dinners, or City Beautiful Commission meeting absent entry approving expenditures in minutes of the Board of Alderman, regardless of whether expenditures were for lawful purpose; public board speaks and acts only through its minutes. Nichols v. Patterson, 678 So. 2d 673, 1996 Miss. LEXIS 299 (Miss. 1996).

Payment of extra checks to city employees at end of year was prohibited donation which city was not authorized to make. Nichols v. Patterson, 678 So. 2d 673, 1996 Miss. LEXIS 299 (Miss. 1996).

Home rule statute gives municipalities discretion in managing municipal affairs. Nichols v. Patterson, 678 So. 2d 673, 1996 Miss. LEXIS 299 (Miss. 1996).

Expenditures made by city are unlawful when made without express authorization in minutes of city’s board, resulting in actual loss to public body. Nichols v. Patterson, 678 So. 2d 673, 1996 Miss. LEXIS 299 (Miss. 1996).

The duties of municipal officers cannot be extended by implication to acts not authorized by law. City of Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890, 1910 Miss. LEXIS 199 (Miss. 1910).

A municipality has a right to pass all authorized ordinances that are reasonable, not inconsistent with the general and not destructive to lawful business. Johnson v. Philadelphia, 94 Miss. 34, 47 So. 526, 1908 Miss. LEXIS 14 (Miss. 1908).

The powers of a municipality are to be exercised in conformity to and consistent with the general laws of the state. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 1908 Miss. LEXIS 177 (Miss. 1908).

The action of a de facto officer of a municipal corporation is valid. Greene v. Rienzi, 87 Miss. 463, 40 So. 17, 1905 Miss. LEXIS 172 (Miss. 1905).

Municipal ordinances cannot be avoided by the imputation of bad faith in their passage. State ex rel. Vicksburg v. Washington Steam Fire Co., 76 Miss. 449, 24 So. 877, 1898 Miss. LEXIS 109 (Miss. 1898).

2. Power to adopt particular order, resolution or ordinance.

In an election contest filed by a mayor’s opponent, the city council was authorized to hire counsel because the city council did so to represent the city’s interests, even if counsel’s representation of the city and the mayor might overlap. McAdams v. Perkins, 204 So.3d 1257, 2016 Miss. LEXIS 506 (Miss. 2016).

Madison, Mississippi, Rental Inspection and Property Licensing Act (RIPLA), providing for the licensing and inspection of rental properties, did not violate Miss. Code Ann. §21-17-5(2)(h) because RIPLA did not directly or indirectly regulate rent, as (1) RIPLA did not set a minimum or maximum rental rate, establish a formula to aid in establishing rental rates, or require the landlord to submit rental rates, and (2) Mississippi statutory law supported RIPLA’s surety requirements. Crook v. City of Madison, 168 So.3d 1169, 2014 Miss. App. LEXIS 536 (Miss. Ct. App. 2014), rev'd, 168 So.3d 930, 2015 Miss. LEXIS 352 (Miss. 2015).

Development impact fees constituted a tax that a city had no authority to assess; the state’s home rule statute, Miss. Code Ann. §21-17-5, did not authorize the city to impose a tax unless such tax was specifically authorized by another statute or state law. Mayor & Bd. of Aldermen v. Homebuilders Ass'n of Miss., Inc., 932 So. 2d 44, 2006 Miss. LEXIS 319 (Miss. 2006).

Ordinance prohibiting commercial establishments from allowing consumption of alcoholic beverages between midnight and 7:00 a.m., which defined “consumption” to include possession in open containers as well as ingestion, was not preempted by statute expressly permitting possession of alcoholic beverages in “wet” municipalities absent clear expression of legislative intent to permit consumption, as opposed to mere possession, without limitation in wet areas, given broad grant of authority to municipalities to regulate impact of alcoholic beverages upon public health, morals, and safety and public policy favoring prevention of alcohol-related altercations and motor vehicle accidents, as limiting possession of opened containers was reasonable and necessary to enforce limitations on consumption. Maynard v. City of Tupelo, 691 So. 2d 385, 1997 Miss. LEXIS 94 (Miss. 1997).

“Brown bag” ordinance prohibiting commercial establishments from allowing consumption of alcoholic beverages between midnight and 7:00 a.m. was valid exercise of police power, as object of ordinance was promotion of public safety and welfare and manner in which ordinance promoted those objectives was not oppressive, arbitrary, or discriminatory. Maynard v. City of Tupelo, 691 So. 2d 385, 1997 Miss. LEXIS 94 (Miss. 1997).

Municipality’s powers are limited to those expressly delegated, and cannot be extended by mere implication; municipal enactment of comprehensive obscenity legislation is beyond municipality’s power in absence of specific statutory authorization enabling municipality to enact obscenity ordinance; municipal obscenity ordinance which is inconsistent with state statute exceeds municipality’s statutory authority even though changes were allegedly made by city to correct possible constitutional flaws. Videophile, Inc. v. Hattiesburg, 601 F. Supp. 552, 1985 U.S. Dist. LEXIS 23425 (S.D. Miss. 1985).

A city cannot be estopped by an ultra vires contract. Edwards H. & C. R. Co. v. Jackson, 96 Miss. 547, 51 So. 802, 1910 Miss. LEXIS 193 (Miss. 1910).

Municipal authorities have the power to order the closing of a street where the public safety requires it, and a private citizen cannot interfere therewith, for the reason that he has recourse against the municipality for his damages. Poythress v. Mobile & O. R. Co., 92 Miss. 638, 46 So. 139, 1908 Miss. LEXIS 217 (Miss. 1908).

Yazoo City has the authority to own and operate an electric railway and to issue bonds therefor under legislative authority. Love v. Holmes, 91 Miss. 535, 44 So. 835 (Miss. 1907).

3. Judicial review.

Exemptions under a city ordinance before they can be allowed must be made in the clearest and most unambiguous terms. Edwards H. & C. R. Co. v. Jackson, 96 Miss. 547, 51 So. 802, 1910 Miss. LEXIS 193 (Miss. 1910).

The court itself should construe a municipal ordinance and not submit it to a jury for construction. Town of Pass Christian v. Washington, 81 Miss. 470, 34 So. 225, 1902 Miss. LEXIS 211 (Miss. 1902).

Contemporaneous construction by municipal authorities may be considered in cases of doubtful ordinances, but not when they are clear. Town of Wesson v. Collins, 72 Miss. 844, 18 So. 360, 1895 Miss. LEXIS 36 (Miss. 1895).

The Supreme Court will not take judicial notice of town ordinances. Naul v. State, 70 Miss. 699, 12 So. 903 (Miss. 1893).

4.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Where a statute authorizing municipalities to issue bonds for the purpose of locating a state normal college was constitutional, a municipality had power to issue bonds to induce the location of the State Normal College. Turner v. Hattiesburg, 98 Miss. 337, 53 So. 681, 1910 Miss. LEXIS 66 (Miss. 1910); Turner v. County of Forrest, 53 So. 684 (Miss. 1910).

The establishment and maintenance by municipalities are for municipal purposes. Turner v. Hattiesburg, 98 Miss. 337, 53 So. 681, 1910 Miss. LEXIS 66 (Miss. 1910); Turner v. County of Forrest, 53 So. 684 (Miss. 1910).

A mandamus cannot be issued against a municipality to compel the levy of a tax therein beyond the statutory limit. Town of Jonestown v. Ganong, 97 Miss. 67, 52 So. 579, 1910 Miss. LEXIS 247 (Miss. 1910).

Under this section the mayor and board of aldermen of a city have full care, management and control of the property and finances thereof, but such powers must be exercised consistent with the laws of the state for the best interest of the inhabitants of the municipality. Montgomery v. State, 97 Miss. 292, 52 So. 357, 1910 Miss. LEXIS 230 (Miss. 1910).

In such exercise of authority a city has power to pass an ordinance providing for the establishment of city depositories fixing rate of interest thereon and securities therefor. Montgomery v. State, 97 Miss. 292, 52 So. 357, 1910 Miss. LEXIS 230 (Miss. 1910).

A treasurer depositing funds in a depository provided, and in the manner required for him, cannot be longer held responsible. Montgomery v. State, 97 Miss. 292, 52 So. 357, 1910 Miss. LEXIS 230 (Miss. 1910).

Powers delegated to a city operating under this section are to be exercised by the mayor and board of aldermen in power at the time, but their actions cannot bind their successors in office. Edwards H. & C. R. Co. v. Jackson, 96 Miss. 547, 51 So. 802, 1910 Miss. LEXIS 193 (Miss. 1910).

A municipality coming under this chapter is not required to republish its ordinances. Chrisman v. Jackson, 84 Miss. 787, 37 So. 1015, 1904 Miss. LEXIS 100 (Miss. 1904).

Where an ordinance creating an offense uses the common-law definition of a misdemeanor, an accessory before the fact to its violation may be punished as a principal. Reed v. State, 83 Miss. 192, 35 So. 178 (Miss. 1903).

A municipal ordinance fixing in its first section a rate of taxation on all property except banks and solvent credits and by its second section fixing a lower rate on banks and solvent credits, cannot be held to impose the greater rate on banks. The exception in the first section and the second section cannot be treated as surplusage. Adams v. Capital State Bank, 74 Miss. 307, 20 So. 881, 1896 Miss. LEXIS 130 (Miss. 1896).

A levy of a tax is indispensable to create a legal obligation to pay it. A taxpayer who has paid all taxes undertaken to be imposed upon his property is not in default for not having paid thereon. Adams v. Capital State Bank, 74 Miss. 307, 20 So. 881, 1896 Miss. LEXIS 130 (Miss. 1896).

OPINIONS OF THE ATTORNEY GENERAL

Municipality may contract with private corporation to provide necessary equipment and monitoring services in order to operate Home Confinement Program. Haque, Jan. 31, 1990, A.G. Op. #90-0084.

Governing authorities of City of Biloxi have discretionary authority to continue agreement as contract for use of private organization’s property for polling places, etc., for consideration called for in agreement, assuming that consideration is reasonable; continuation of agreement would not be considered donation prescribed by statute. Carter, Feb. 7, 1990, A.G. Op. #90-0069.

Where agency of federal government, which by guideline or regulation prohibits private entities from engaging in enterprise without involvement of local governmental entity, and further where no municipal funds will be expended for construction, operation and maintenance of park and marina facility and no income will be used for general municipal purposes, such involvement by City of Sardis is not inconsistent with existing state law. Shuler, March 15, 1990, A.G. Op. #90-0136.

There is no statute that requires bidders to post bid bonds when submitting bids to city for public construction works or public purchases; however, governing authorities of city may require bidders to post bid bonds on public construction works and/or public purchases. Johnson, April 18, 1990, A.G. Op. #90-0277.

Governing authorities in Okolona may not impose personal income tax on employees working in City. Gregory, May 14, 1990, A.G. Op. #90-0335.

City of Philadelphia may bid at public auction on parcel of real estate offered for sale by United States Postal Authority; municipal governing authorities may adopt order or resolution authorizing offer of up to specified dollar amount of municipal funds, consistent with value of property, for purpose of acquiring property at auction. Thomas, May 15, 1990, A.G. Op. #90-0321.

Statute prohibits city from adding fee to city water/osewer bill to be used exclusively for police protection and services, as such fee would in actuality be tax. Hancock, Oct. 4, 1990, A.G. Op. #90-0729.

Any use of municipal equipment or labor to maintain private cemetery would constitute illegal donation of public property for private benefit; there is no significant difference between maintaining private cemetery with public money and using county equipment to dig graves, using county equipment to dig graves has been declared illegal. Lawrence, Oct. 26, 1990, A.G. Op. #90-0230.

Salary bonuses constitute unauthorized donations, and are therefore prohibited. Clements, Oct. 26, 1990, A.G. Op. #90-0363.

Municipalities possess home rule authority to enter contracts of employment and provide corresponding employee compensation and work schedule policies that are tailored to meet the special circumstances of certain groups of employees, such as garbage collection workers. Primeaux, Feb. 12, 1992, A.G. Op. #91-0978.

Individual who is not employed by municipality and who lives free of charge on municipal property constitutes impermissible donation; however, governing authorities may hire retired policeman in part time capacity as custodian or maintenance supervisor of municipal park and allow him to live rent free on municipal property adjacent to park as part of his compensation. Woods, August 5, 1992, A.G. Op. #92-0576.

Use of municipal funds to buy property and build parking lot for the benefit of private industry would constitute impermissible donation, although municipality is authorized to buy property and engage in enterprise if municipality has certificate from the Dept. of Economic Development. Shepard, Sept. 16, 1992, A.G. Op. #92-0729.

City may adopt ordinance prohibiting parking on square and providing penalties therefore when businesses and offices are closed. Williams, Sept. 23, 1992, A.G. Op. #92-0629.

Statutes do not authorize municipality to give financial assistance to nursing students to enable these students to come back to municipality after graduation to work as nurses or nurse practitioners. James, Oct. 28, 1992, A.G. Op. #92-0818.

Municipality may not adopt policy in which employees may pool vacation and sick leave benefits or donate vacation and/or sick leave benefits to other employees. Criss, Oct. 28, 1992, A.G. Op. #92-0837.

Monetary rewards or granting time off with pay to municipal employees for suggestions that are implemented constitute unauthorized donations. Spell, Nov., 4, 1992, A.G. Op. #92-0820.

Municipalities may adopt policies in which employees may be compensated at end of year for unused sick leave; however, municipality must not include any such compensation for purposes of retirement benefits or credit, and may not report such compensation to PERS for credit as either compensation or credit for time. Spell, Nov., 4, 1992, A.G. Op. #92-0820.

Municipality may by ordinance prohibit political signs on city property and rights-of-way. Ellis, Nov. 25, 1992, A.G. Op. #92-0893.

Payment of extra compensation to municipal employees in recognition of excellent service constitutes impermissible “donation” pursuant to Miss. Code §21-17-5(2)(g). Hicks, Jan. 20, 1993, A.G. Op. #92-1006.

Payment of travel expenses for individual who is not city employee or representative of city to attend meetings of nonprofit organization or corporation would constitute impermissible donation pursuant to Miss. Code Section 21-17-5(2)(g). Wansley, Feb. 25, 1993, A.G. Op. #93-0104.

Pursuant to Miss. Code Section 21-17-5(2)(a), municipalities may not levy taxes unless specifically authorized by another statute. Self, Mar. 3, 1993, A.G. Op. #93-0066.

Under Miss. Code Section 21-17-5, municipality could not pass ordinance upon matter which state has preempted, either through express language or through regulation of particular topic; most traffic regulations have been so preempted by state laws. Baker, Mar. 31, 1993, A.G. Op. #93-0036.

Legislative grant of home rule to municipalities, codified at Miss. Code Section 21-17-5, expressly empowers cities to adopt any orders, resolutions or ordinances with respect to municipal affairs which are not inconsistent with or preempted by state law. Mitchell, Apr. 23, 1993, A.G. Op. #93-0007.

Miss. Code Section 21-17-5 provides sufficient authority for municipality to adopt and implement ordinances regulating cable television service rates, but only to extent and in manner authorized under federal law which requires, among other things, prior FCC approval and certification of any local assertion of regulatory authority. Mitchell, Apr. 23, 1993, A.G. Op. #93-0007.

Although Miss. Code Section 21-17-5, commonly known as “home rule” statute, grants broad authority to municipalities, such authority may not be exercised in manner not consistent with Mississippi Constitution or existing statutes or laws. Gex, May 19, 1993, A.G. Op. #93-0332.

Miss. Code Section 21-17-5 provides sufficient flexibility and authority to conduct elections to determine will of electorate regarding issues falling within city’s jurisdiction and on which legislature is silent, provided governing authorities determine that appropriation of public monies for such purposes is in city’s best interest. Graves, May 26, 1993, A.G. Op. #93-0290.

Non-binding referenda concerning matters under jurisdiction of municipal governing authorities maybe placed on general election ballot pursuant to Miss. Code Section 21-17-5. Graves, May 26, 1993, A.G. Op. #93-0290.

Miss. Code Section 21-17-5 gives municipalities responsibility for the care, management and control of municipal property; therefore, municipality may, by ordinance, impose weight limit on trucks being driven on municipal streets. Clark, June 9, 1993, A.G. Op. #93-0348.

Miss. Code Section 21-17-5(2) provides that municipality must have specific authority to grant donation. McFatter, June 9, 1993, A.G. Op. #93-0405.

Donation either directly to public school system or indirectly to public school system through nonprofit organization for purpose of funding study of public school system is not donation to social and community service program, as contemplated by Miss. Code Section 21-17-5; there is no other statutory authority for municipality to make a donation to nonprofit organization for purpose of studying programs of public schools. McFatter, June 9, 1993, A.G. Op. #93-0405.

Municipal governing authority could authorize employment of legal counsel for purpose of intervening in election contest in order to protect city’s interest. Ellis, July 14, 1993, A.G. Op. #93-0499.

In accordance with general grant of powers to municipality by Section 21-17-1, and authority to manage and control municipal property in its charge, City may contract with vendors for installation of ATM in city jail or any other city building. Mitchell, Jan. 12, 1994, A.G. Op. #93-0874.

City may establish new policy of paying employees for working on holiday instead of awarding compensatory time and city may pay employees for compensatory time accumulated prior to effective date of policy or accumulated prior to effective date of Section 21-17-5(3) as amended. Kerby, March 2, 1994, A.G. Op. #94-0047.

Although Miss. Code Sections 25-3-91 and 25-3-95, which permit state employees to donate a certain portion of their earned personal leave or major medical leave to another employee under some circumstances, do not apply to municipal employees, municipalities may adopt ordinances or resolutions providing for a similar program in a municipality in the absence of a state statute governing a similar municipal employee leave program. Stark, July 18, 1997, A.G. Op. #97-0361.

Municipal wastewater treatment systems may be operated by long-term contracts with private firms, provided the term of contract does not extend beyond the terms in office of the current governing authorities. Reno, March 6, 1998, A.G. Op. #98-0069.

Municipal governing authorities may authorize a police chief to take a police vehicle home outside the city limits at nights and on weekends only if they determine that such use would benefit and be in the best interest of the municipality; the police chief would not be authorized to use the vehicle for his own benefit, as in running personal errands or as transportation to part-time employment. Walker, March 6, 1998, A.G. Op. #98-0102.

A municipality does not have the authority to expend funds for a market research study to ascertain the feasibility of a nonprofit corporation such as the YMCA. Stockton, March 6, 1998, A.G. Op. #98-0110.

Term limits for city council members cannot be imposed by municipalities as Subsection 2(e) prohibits legislative acts that change the form or structure of government. Allen, March 27, 1998, A.G. Op. #98-0150.

A municipality is limited to paying an employee not to exceed double his ordinary rate of pay for working on a legal holiday. Aston, April 10, 1998, A.G. Op. #98-0091.

The language of the statute is prospective only and, therefore, applies only to aldermen and councilmen who take office after July 1, 1998, the effective date of the statute, and does not apply to officers who are already in office. Wise, April 10, 1998, A.G. Op. #98-0178.

Notwithstanding that a baseball park owned by a baseball association is located in a town, the town can not provide for the hauling of the dirt and/or the maintenance of the baseball park. Lanford, April 24, 1998, A.G. Op. #98-0189.

A county board of supervisors can not legally provide dirt for the use of a baseball association and/or provide for maintenance of any kind to the baseball field owned by the association. Lanford, April 24, 1998, A.G. Op. #98-0189.

The governing authorities may accept a donation for unspecified purposes for the police and/or fire department, and may place the funds in the municipal treasury and then appropriate the funds to the police or fire department in accordance with the intent of the donor(s) as long as the funds are used for statutorily authorized purposes; however, the governing authorities may not accept a donation and place the funds in a special account designated as a benevolent fund to be used for purposes beyond those authorized by statute for police and fire departments. Bruni, May 15, 1998, A.G. Op. #98-0264.

Police and fire departments do not have authority to enter into a contract or accept donations, but the governing authorities may accept donations for the police or fire department and may place the funds in an appropriate fund, whether general or special, and use them for the designated purpose as long as the purpose is authorized by statute. Bruni, May 15, 1998, A.G. Op. #98-0264.

Municipal governing authorities do not have authority to create an independent board, authority, or commission which can take official action pursuant to the home rule statute because the statute does not allow governing authorities to change the form or structure of municipal government and because the area of the law has been preempted by state statutes. McDonald, May 22, 1998, A.G. Op. #98-0275.

Local governmental units may individually contract with a private entity to provide the services enumerated pursuant to the Home Rule statute. Thompson, June 5, 1998, A.G. Op. #98-0270.

A municipal vehicle may not be used for the personal use of an employee since such use would constitute an impermissible donation; accordingly, if an employee is to be permitted to take a vehicle to his home for nights and/or weekends, the governing authorities of the municipality may authorize such use only if, in their determination, the duties of the employee necessitate such use and such use of the vehicle would benefit and be in the best interest of the municipality. Ferguson, August 7, 1998, A.G. Op. #98-0374.

Police officers may not ride their family around in the police car when off duty. Doty, August 28, 1998, A.G. Op. #98-0392.

Police officers may not use a police car for personal business when off duty, such as going to a grocery store, church, shopping, and things of that nature. Doty, August 28, 1998, A.G. Op. #98-0392.

Municipal governing authorities may permit police officers to use police cars to travel to their residences outside the city limits if they determine that such use of the vehicle would benefit and be in the best interest of the municipality. Doty, August 28, 1998, A.G. Op. #98-0392.

Municipal governing authorities may permit a police officer who is not the chief to use a police car to travel outside the county to his residence if they determine consistent with fact that his duties necessitate such use and that such use of the vehicle would benefit and be in the best interest of the municipality. Doty, August 28, 1998, A.G. Op. #98-0392.

Providing banking services to the public is not a proper municipal purpose, and there is no authority for the purchase or lease-purchase of an automatic teller machine to be owned and serviced by a municipality. Horne, August 28, 1998, A.G. Op. #98-0511

A municipality may not lease a building and surrounding land in an industrial park for nominal consideration. Jones, September 4, 1998, A.G. Op. #98-0481.

While an individual may make a donation to a volunteer fire department, there is no authority for the governing authorities of a municipality to include a specific fee as a line item on water/sewer bills sent to municipal residents for the support of the volunteer fire department, even if payment of the fee is voluntary. Threatt, November 25, 1998, A.G. Op. #97-0068.

A city had the authority to enter into a management contract for the operation and maintenance of a city-owned multi-educational complex since the operation of the complex was in furtherance of a proper municipal purpose. Thomas, November 25, 1998, A.G. Op. #98-0723.

The provisions of §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, only mandate the use of tax assessment rolls and the avails to be collected from levies thereon in calculating the amount of the bonds therein required. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation of a bond pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all assessment rolls upon which a board of supervisors may levy ad valorem taxes. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all ad valorem tax levies listed on the certified levy sheet, including school district levies. Bryant, January 29, 1999, A.G. Op. #99-0011.

The calculation pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, includes all classes of property upon which ad valorem taxes are levied and collected. Bryant, January 29, 1999, A.G. Op. #99-0011.

In calculating the amount of a bond pursuant to §§9-5-131,9-7-121,19-3-5,19-4-9,21-1-7,21-17-5(1), and27-1-13, the total amount of ad valorem taxes to be collected, rather than the actual amount collected, must be used. Bryant, January 29, 1999, A.G. Op. #99-0011.

There is no authority for a municipality to donate funds to the Southern Poison Control Center. Snyder, April 23, 1999, A.G. Op. #99-0193.

No violation of this section is presented where a municipality provides funds to an economic development authority pursuant to local and private act specifically authorizing such contributions. Dorrill, May 14, 1999, A.G. Op. #99-0208.

A municipality may own and operate a historical museum and may lease the museum property to a nonprofit historical society to maintain and operate the museum on behalf of the city with a lease and management agreement. Carter, July 23, 1999, A.G. Op. #99-0284.

In the absence of any provision under state law for a municipal leave donation program, a municipality under the authority of home rule may adopt or enact a program similar to the one applicable to state employees under §25-3-95(8). Mitchell, August 6, 1999, A.G. Op. #99-0372.

Pursuant to home rule, a municipality may advertise the fact that a particular business or other organization has donated a vehicle to the municipal police department by placing the name of the donating entity upon the vehicle; however, the donor’s name must not be distracting and must be small enough so that the general public can readily and easily identify the vehicle as an official municipal police vehicle. Kinsey, August 6, 1999, A.G. Op. #99-0401.

City governing authorities did not have authority to donate funds to a foundation for scholarships for county residents at Jackson State University and Alcorn State University, make donations to churches, or give financial assistance to elderly county residents and did not have authority to donate funds to a foundation to administer a random drawing to give away ten air conditioning window units donated by the manufacturer to ten people. Rohman, May 19, 2000, A.G. Op. #2000-0245.

Counties and municipalities may sell advertising on their public web sites and may regulate the content, subject, and identity of its advertisers to promote the public safety, health, or welfare. McLeod, June 12, 2000, A.G. Op. #2000-0278.

Governing authorities do not have authority to create an independent board, authority, or commission which can take official action pursuant to the home rule statute, because this statute does not allow governing authorities to change the form or structure of municipal government and because the area of the law has been preempted by state statutes. Lynn, Mar. 29, 2002, A.G. Op. #02-0139.

There is no authority for a mayor or the governing authorities of a code charter municipality to appoint aldermen as commissioners over municipal departments. McKenzie, Aug. 30, 2002, A.G. Op. #02-0507.

An ordinance which prohibits potential contractors from the bidding process would be inconsistent with Section 31-7-13, which sets forth specific requirements for advertising and soliciting bids. McKissack, Dec. 13, 2002, A.G. Op. #02-0119.

Municipalities may donate to a Main Street Project and to local economic development organizations office space and in-kind services, however, there is no authority for a municipality to donate the time of a full-time or part-time employee who receives compensation and benefits from the municipality, but works for a Main Street Project or economic development organization, or to contract to provide a full-time or part-time municipal employee to a Main Street Project or local economic development organization for consideration. Farmer, Dec. 20, 2002, A.G. Op. #02-0603.

A municipality may lease space in a municipal building to a nonprofit corporation pursuant to Section 21-17-1. Farmer, Dec. 20, 2002, A.G. Op. #02-0603.

Local governing authorities may not pay for holidays when no work is performed, but are limited to allowing additional leave. Mitchell, Jan. 30, 2003, A.G. Op. #03-0008.

A municipal judge may file a criminal affidavit with the municipal court and must then recuse himself from the case; another municipal judge may hear the case, or the municipal judge may transfer the case to the justice court. Thomas, Jan. 17, 2003, A.G. Op. #03-0007.

Pursuant to Section 21-17-5, a Board of Aldermen has the authority to hold a nonbinding referendum on whether the Mayor’s job should be full time or part time. Beckett, Jan. 31, 2003, A.G. Op. #03-0038.

A municipality, pursuant to its authority to establish salaries and benefits, may enlarge upon the amount of family and medical leave available to municipal employees. Bowman, Feb. 7, 2003, A.G. Op. #03-0771.

A city may not allow holiday pay for public safety employees who do not work on the holiday and, accordingly, may not allow holiday pay to accumulate through the year to be paid in a lump sum annually. Hewes, Feb. 14, 2003, A.G. Op. #03-0002.

Governing authorities have the authority to make the determination not to use radar speed detection devices to enforce municipal speed limits and to remove radar devices that have already been installed in municipal vehicles. Stuart, May 30, 2003, A.G. Op. 03-0245.

Section 21-17-5(2)(c) does not prohibit a municipality operating under a special charter having its own provisions for conducting municipal elections from following appropriate statutory authority (Section 21-17-11) in seeking to amend its charter with regard to those election provisions. McFatter, May 30, 2003, A.G. Op. 03-0247.

A municipal governing body may name a municipal building after a person that body wishes to recognize and honor. Brown, Oct. 23, 2003, A.G. Op. 03-0587.

Employees who work on a Saturday or Sunday may not receive compensatory time or compensatory pay regardless of the fact that the day is an “actual holiday.” These employees should receive ordinary pay for work performed on an “actual holiday.” Compensatory time or compensatory pay may be given for work performed on a “legal holiday,” as long as there exists a policy providing for such at the time the work was performed. Hammack, Jan. 23, 2004, A.G. Op. 02-0605.

It is within the authority of the governing authorities of a city to enact a policy which authorizes the payment of up to double a police officer’s regular rate of pay for the hours worked on a legal holiday. Likewise, a policy could be established authorizing the accrual of compensatory time at double the regular accrual rate for compensatory time for hours worked on a legal holiday. James, Mar. 12, 2004, A.G. Op. 04-0098.

Municipal governing authorities are not mandated by subsection (3) of this section to provide additional pay or leave for employees working on legal holidays. However, if they do, the manner of payment or accrual of leave is to be calculated on an hour for hour basis. James, Mar. 12, 2004, A.G. Op. 04-0098.

A legal holiday begins at 12:00 a.m. and ends at 11:59 p.m. James, Mar. 12, 2004, A.G. Op. 04-0098.

If municipal employees having a work schedule of 8:00 a.m. to 5:00 p.m. work a full regular work schedule on a legal holiday, then for pay purposes they are entitled to “holiday pay” or extra leave for working that eight hour period, if the municipal governing authorities have enacted policies providing for such extra pay or extra leave. If employees only work a portion of their regular work schedule on a holiday, they are only entitled to “holiday pay” or extra leave commensurate with the actual time. James, Mar. 12, 2004, A.G. Op. 04-0098.

If municipal employees having a work schedule from 7:00 a.m. to 7:00 p.m. work that regular work schedule on a legal holiday, then for pay purposes they are entitled to “holiday pay” or extra leave for working that twelve hour period, if the municipal governing authorities have enacted policies providing for such extra pay or extra leave. For employees having a work schedule of 7:00 p.m. to 7:00 a.m., the amount of “holiday pay” or extra leave earned would depend upon that portion of the legal holiday worked. James, Mar. 12, 2004, A.G. Op. 04-0098.

If a vehicle has been offered (donated) to the municipality, and there has been no acceptance of that vehicle, the vehicle should not be included in the city’s inventory, and no duties exist with regard to that vehicle. McLaurin, July 16 2004, A.G. Op. 04-0356.

Authority for the donation of city funds to a voluntary relief organization for the benefit of those who suffered from Hurricane Katrina may be found in a number of provisions of the Mississippi Code. Trotter, Sept. 23, 2005, A.G. Op. 05-0484.

The authority of a city council to enact orders, ordinances and resolutions, as established by Section 21-17-5, applies to matters which are properly within the jurisdiction of the legislative branch. As such, a council may not lawfully enact policies with regard to the daily operations of municipal departments, a power which is firmly rooted in the executive branch of government. Smith, Oct. 21, 2005, A.G. Op. 05-0519.

A town may not donate water system improvements to a private community water association. Helmert, Oct. 28, 2005, A.G. Op. 05-0518.

Municipalities are prohibited from making donations absent specific statutory authority to do so. Thomas, Jan. 27, 2006, A.G. Op. 06-0014.

The award of compensatory time or “holiday pay” to employees not actually working on a holiday would constitute an unlawful donation. Kohnke, Apr. 7, 2006, A.G. Op. 06-0123.

As long as the provisions of a municipal ordinance requiring the registration of sex offenders supplement, and do not conflict, with the provisions of Section 45-33-21, a municipality is within the authority granted it by Section 21-17-5 to enact such an ordinance. Gibson, Apr. 21, 2006, A.G. Op. 05-0382.

A municipality may conduct a non-binding referendum on the adoption of zoning. Beckett, Sept. 29, 2006, A.G. Op. 06-0481.

A municipality may adopt an ordinance, consistent with its authority under Section 21-17-5, that permits payroll deduction of union membership dues. Evans, Dec. 13, 2006, A.G. Op. 06-0543.

Although Sections 63-3-201 and 63-9-11 provide that a violation of the rules of the road is a criminal violation, a city is not prohibited from enacting additional ordinances also making disobedience or disregard of a traffic control signal a civil offense. Mitchell, Dec. 13, 2006, A.G. Op. 06-0170.

A County Board of Supervisors can hold a non-binding referendum to ascertain the opinion of citizens of the county concerning a casino proposed by an Indian tribe on lands owned by the tribe in the county, and does not have to wait until the next regular election year. The issue is within the jurisdiction of the Board and justifies the use of the county’s home rule powers to call for the referendum, but the Board must first make a finding that the use of public funds for such a referendum is in the county’s best interest. Guice, March 7, 2007, A.G. Op. #07-00108, 2007 Miss. AG LEXIS 104.

For the Tunica County Utility District, which is county-owned, to fund the construction of connecting water lines to a privately owned utility company would constitute an unlawful donation under Miss. Code Ann. §19-3-40 and Miss. Const. of 1890, Art. 4 § 66, unless the private utility gives adequate consideration, which may take into account the value of and cost to replicate the backup service that would be provided to the private utility. Dulaney, March 15, 2007, A.G. Op. #07-00123, 2007 Miss. AG LEXIS 62.

A County Board of Supervisors can hold a non-binding referendum to ascertain the opinion of citizens of the county concerning proposed gaming operations by an Indian tribe on lands owned by the tribe in the county. The issue is within the jurisdiction of the Board and justifies the use of the county’s home rule powers to call for the referendum, but the Board must first make a finding that the use of public funds for such a referendum is in the county’s best interest. Yancey, March 26, 2007, A.G. Op. #07-00178, 2007 Miss. AG LEXIS 123.

RESEARCH REFERENCES

ALR.

Validity of municipal regulation of storage or accumulation of lumber, straw, trash, or similar inflammable material. 64 A.L.R.2d 1040.

Am. Jur.

23 Am. Jur. Pl & Pr Forms (Rev), Taxpayers’ Actions, Form 1 (complaint, petition, or declaration to enjoin illegal expenditure of public funds).

Cross References —

Authority of counties and municipalities to expend monies to advertise resources, see §17-3-1.

County and municipal appropriations to planning and development districts, see §17-19-1.

Uniform system for issuance of negotiable notes or certificates of indebtedness, see §§17-21-51 et seq.

How monies are appropriated for municipality’s operations, see §21-13-3.

Provisions of municipal budget law, see §§21-35-1 et seq.

Penalty for unauthorized appropriations, see §21-39-15.

Penalty for wrongfully issuing, signing or attesting to warrant, see §21-39-17.

Authority of a municipality to expend general fund monies to match funds available to support the arts, see §39-15-1.

Municipal donations for planning development of the Pearl River, see §51-9-11.

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

A city may not create a municipal debt for money furnished to a separate school district which includes the municipality. Stevens v. Brookhaven, 64 F.2d 659, 1933 U.S. App. LEXIS 4185 (5th Cir. Miss. 1933).

This section applies to voluntary municipal actions, but a court of competent jurisdiction has power to make effective its judgment against municipality. Town of Jonestown v. Ganong, 97 Miss. 67, 52 So. 579, 1910 Miss. LEXIS 247 (Miss. 1910).

Under Const. 1890 § 183, a municipality cannot appropriate money in aid of a corporation, whether it belongs to it in its public or private capacity. Adams v. Jackson E. R., L. & P. Co., 78 Miss. 887, 30 So. 58, 1901 Miss. LEXIS 156 (Miss. 1901).

If a municipality wrongfully appropriates money in aid of a corporation, the state revenue agent may sue for and recover it for the use of the municipality. Adams v. Jackson E. R., L. & P. Co., 78 Miss. 887, 30 So. 58, 1901 Miss. LEXIS 156 (Miss. 1901).

RESEARCH REFERENCES

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 553-561.

23 Am. Jur. Pl & Pr Forms (Rev), Taxpayers’ Actions, Form 31 (complaint, petition, or declaration to enjoin payment of drafts of municipal corporation exceeding authorized debt limit).

CJS.

63 C.J.S., Municipal Corporations §§ 2071-2076, 2096-2105.

Cross References —

Powers of governor generally, see §7-1-5.

Requesting attorney general’s opinion, see §7-5-25.

Amendment of charter at behest of electorate, see §21-17-11.

Limited application of this section to various municipalities, see §21-17-13.

JUDICIAL DECISIONS

I. Under Current Law.

1. In general.

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

I. Under Current Law.

1. In general.

The Election Commission had an official duty to see to it that the elections in a city were carried out in compliance with state law and, as such, the circuit court had the power and jurisdiction to enjoin the elections until the city could amend its charter in compliance with the statute. City of Grenada v. Harrelson, 725 So. 2d 770, 1998 Miss. LEXIS 187 (Miss. 1998).

The legislature has granted each municipality power to amend its special charter, but when municipality undertakes to make this amendment whether as to substance or form, it must follow the statute as to manner and method by which such amendment may be made. Bishop v. City of Meridian, 223 Miss. 703, 79 So. 2d 815, 1955 Miss. LEXIS 427 (Miss. 1955).

The legislature, by granting municipalities the power to amend a private or special charter, did not give a municipality authority to declare that all functions exercised by the city are public governmental functions. Bishop v. City of Meridian, 223 Miss. 703, 79 So. 2d 815, 1955 Miss. LEXIS 427 (Miss. 1955).

The mere power to amend a private or special charter does not have the effect of vesting in the city authorities the power to abolish all actions for damages based upon the negligent failure of the city authorities to maintain the street in a proper and safe condition. Bishop v. City of Meridian, 223 Miss. 703, 79 So. 2d 815, 1955 Miss. LEXIS 427 (Miss. 1955).

The recording of amendments to municipal charters is necessary to give the amendments any effect. Williams v. Vicksburg, 116 Miss. 79, 76 So. 838, 1917 Miss. LEXIS 300 (Miss. 1917).

2.-5. [Reserved for future use.]

II. Under Former Law.

6. In general.

Where a city has first adopted an amendment to its charter it need not be readopted after its publication and approval by the governor and attorney-general. Sick v. Bay St. Louis, 113 Miss. 175, 74 So. 272, 1916 Miss. LEXIS 45 (Miss. 1916).

The legislature is prohibited by § 88 Const. 1890 to pass a special act amending the charter of a city. Monette v. State, 91 Miss. 662, 44 So. 989 (Miss. 1907), overruled in part, Glover v. Columbus, 197 Miss. 467, 19 So. 2d 756, 1944 Miss. LEXIS 313 (Miss. 1944).

An amendment to the charter of a city which created the office of police justice did not create a new court, but merely provided a different presiding officer for the court already in existence. Ex parte Dickson, 89 Miss. 778, 42 So. 233, 1906 Miss. LEXIS 20 (Miss. 1906).

This section as amended, Laws 1905 p. 79, authorizing the amendment of the charters of the municipalities which have not adopted the Code Chapter on “municipalities,” and allowing amendments inconsistent with said Code Chapter, is not violative of Const. 1890, § 88. Yazoo City v. Lightcap, 82 Miss. 148, 33 So. 949, 1903 Miss. LEXIS 122 (Miss. 1903).

OPINIONS OF THE ATTORNEY GENERAL

Since city is governed by its own private charter which prescribes length of terms that its elected officials serve, and since Miss. Code Section 21-17-9 prescribes procedure whereby municipal charters may be amended, section of charter that prescribes length of terms of elected municipal official could be amended to include provision to limit terms of said officials, provided said amendment is adopted in accordance with Miss. Code Section 21-17-9. Hicks, Jan. 5, 1993, A.G. Op. #92-0980.

The governing authorities of a City may change the form of government to a mayor council form of government by amending the special charter in accordance with Section 21-17-9 and create a mayor council municipality similar to the mayor council form of government set forth in Section 21-8-1 et seq. Hutcherson, October 11, 1996, A.G. Op. #96-0651.

If an amendment is submitted, after proper notification, and no protests are filed at the time of submission to the Governor’s Office, but less that 1/10th of the protests are filed at the time of the Governor’s signing of the amendment, the protestors do not have more time to secure signatures. Criss, May 15, 1998, A.G. Op. #98-0210.

As between qualified newspapers, a newspaper with a known office of publication within the municipality must be selected to publish the legal notices of that municipality. Edens, July 23, 1999, A.G. Op. #99-0289.

The City of McComb could not pass an ordinance to institute changes to the required qualifications of candidates to municipal elective office; instead, the city was required to amend its Special Charter. White, July 3, 2002, A.G. Op. #02-0134.

In addition to approval by the Attorney General, a proposed amendment to the Special Charter of the City of Greenville also requires approval of the U.S. Department of Justice because it changes voting districts within the municipality. Prospere, Feb. 5, 2003, A.G. Op. #03-0050.

Proposed amendments to the special charter of a city to alter the corporate limits to reflect boundaries approved in a prior annexation, and change the organization of municipal government to provide for an additional alderman to be elected at large should be approved. The municipality must submit any changes which may affect voting to the U.S. Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965 for preclearance prior to enforcing any such changes. Musgrove, Sept. 5, 2003, A.G. Op. 03-0466.

RESEARCH REFERENCES

ALR.

Doctrine of de facto existence or powers of municipal corporation as applicable to amendment or revision of charter. 7 A.L.R.2d 1407.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 53-55.

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form 1 (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 24, 25 (affidavit of notice by posting or publication).

Cross References —

Amendment of municipal charter at behest of governmental authority, see §21-17-9.

Limited application of this section to various municipalities, see §21-17-13.

OPINIONS OF THE ATTORNEY GENERAL

General policy or ordinance allowing city firemen to unlock any vehicle upon demand and upon payment of $10.00 fee would constitute private business venture and is not proper governmental purpose; city firemen or other personnel may provide such assistance without charge as accommodation and service to general public. Doty, Jan. 12, 1994, A.G. Op. #93-0953.

As between qualified newspapers, a newspaper with a known office of publication within the municipality must be selected to publish the legal notices of that municipality. Edens, July 23, 1999, A.G. Op. #99-0289.

Section 21-17-5(2)(c) does not prohibit a municipality operating under a special charter having its own provisions for conducting municipal elections from following appropriate statutory authority (Section 21-17-11) in seeking to amend its charter with regard to those election provisions. McFatter, May 30, 2003, A.G. Op. 03-0247.

A town is required by law to use separate ballots, separate ballot boxes and/or separate ballot receipt books for a special election regarding a proposed amendment to the municipal charter. McFatter, Oct. 24, 2003, A.G. Op. 03-0525.

If a proposed amendment to the municipal charter is passed by the voters on November 11, 2003, and if the amendment is approved by the Governor prior to December 2, 2003, the amendment would apply to the town’s general election held on December 2, 2003. McFatter, Oct. 24, 2003, A.G. Op. 03-0525.

RESEARCH REFERENCES

ALR.

Application of requirement that newspaper be locally published for official notice publication. 85 A.L.R.4th 581.

Am. Jur.

56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 53-55.

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Form (notice, general form).

18A Am. Jur. Pl & Pr Forms (Rev), Notice, Forms 24, 25 (affidavit of notice by posting or publication).

Cross References —

Various forms of municipal government, see §§21-3-1 et seq. (code-charter);21-5-1 et seq. (commission);21-7-1 et seq. (council);21-8-1 et seq. (mayor-council); and21-9-1 et seq. (council-manager).

JUDICIAL DECISIONS

1.-5. [Reserved for future use.]

6. Under former law.

1.-5. [Reserved for future use.]

6. Under former law.

Const. 1890, § 80, 88, among other things providing for general laws to create and govern municipal corporations are prospective in operation and do not repeal existing municipal charters. Therefore this section recognizing the continued existence of such charters is not unconstitutional. Lum v. Mayor, etc., of Vicksburg, 72 Miss. 590, 72 Miss. 950, 18 So. 476, 1895 Miss. LEXIS 62 (Miss. 1895).

Under this section declaring that after the chapter became operative, every municipality shall be governed by its provisions but that any municipality might within twelve months, “elect not to come under the provisions hereof,” power was given municipalities affirmatively to accept the provisions of the chapter and be governed thereby. Ex parte Shlomberg, 70 Miss. 47, 11 So. 721, 1892 Miss. LEXIS 73 (Miss. 1892).

Its corporate authorities having formally accepted the provisions of the Code Chapter, the city of Jackson became bound thereby, and subsequent action of the authorities purporting to rescind the resolution of acceptance, though within twelve months, was ineffectual. Ex parte Shlomberg, 70 Miss. 47, 11 So. 721, 1892 Miss. LEXIS 73 (Miss. 1892).

OPINIONS OF THE ATTORNEY GENERAL

Municipal wastewater treatment systems may be operated by long-term contracts with private firms, provided the term of contract does not extend beyond the terms in office of the current governing authorities. Reno, March 6, 1998, A.G. Op. #98-0069.

Public utility commissions and park commissions whose members are appointed officers and do not serve in an advisory capacity alone have the power to manage and control the facilities, including the authority to determine whether the state flag is to be flown at those utilities. Clark, Mar. 21, 2003, A.G. Op. #03-0127.