author: SUGG, Justice, BOWLING, Justice,

text:
    JACKSON REDEVELOPMENT AUTHORITY v. KING, INC., James L. Spencer, Trustee, et al.
    No. 50935.
    Supreme Court of Mississippi.
    Nov. 1, 1978.
    Rehearing Denied Dec. 13, 1978.

      Watkins, Pyle, Ludlam, Winter & Stennis, William F. Winter, John E. Stone, Ernest G. Taylor, Jr., Zachary Taylor, III, Jackson, for appellant.
    Robert G. Nichols, Jr., Young, Scanlon & Sessums, Pat H. Scanlon, Perry, Crockett, Morrison & Starling, Robert E. Perry, Jackson, for appellees.
    Before ROBERTSON, SUGG and COF-ER, JJ.
   SUGG, Justice,

for the Court:

The County Court of the First Judicial District of Hinds County, sitting as a special court of eminent domain, dismissed the petition of the Jackson Redevelopment Authority (hereafter JRA), the urban renewal agent for the City of Jackson, to condemn the real property of appellees on motion of the appellees filed under the provisions of section 11-27-15 Mississippi Code Annotated (1972). The trial court held: (1) section 43-35-201 Mississippi Code Annotated (Supp.1977) was unconstitutional; (2) Jackson’s urban renewal election held in June, 1971 was invalid; (3) the JRA was not a legal entity which could take property by eminent domain; (4) the JRA was not a de jure corporation; (5) two of its commissioners were not qualified to serve on the board of directors of JRA; (6) a quorum was not present at the October 28, 1976 meeting at which resolutions were adopted to condemn the property of appellees; and (7) the number of votes cast for the resolutions was insufficient.

JRA argues on appeal that some of the matters relied on by the court in dismissing the petitions were beyond the scope of inquiry authorized by section 11 — 27—15. It further contends that the lower court erred in its ruling on each of the questions. We affirm on the sole ground that a quorum of the commissioners of JRA was not present when the resolutions to condemn appellees’ property were adopted; therefore, no public necessity for taking the property of appel-lees was shown.

Section 43-35 — 201 Mississippi Code Annotated (Supp.1977) was originally enacted as Miss.Gen.Laws Ch. 499 § 1 (1970). The first ten sections of Chapter 499 authorize the governing authorities of certain municipalities to delegate to their urban renewal agencies the authority to establish and construct municipal parking facilities. It also authorizes the governing authorities of any municipality to issue revenue bonds for acquisition and construction of public parking facilities when a municipality has delegated the power to construct public parking facilities to its urban renewal agency. Ch. 499 §§ 11-15 authorize the governing authorities of any municipality of 100,000 population or more to engage in urban renewal or redevelopment projects in its central business district after submitting the proposition to a vote of the qualified electors of the municipality and a majority of those voting vote for the proposition. The last three sections of Ch. 499 provide: (1) the power conferred by the act is cumulative and is in addition to any other power conferred by law; (2) bonds may be issued to carry out the purposes of the act; and (3) two additional members may be appointed to the board of commissioners of urban renewal agencies in any municipality which has delegated to its urban renewal agency the power, duties and responsibilities relating to parking facilities as provided for in section one of the act.

We first address the question of whether section 43-35-201 Mississippi Code Annotated (Supp.1977) is constitutional. The trial court held that the statute was unconstitutional because it was a local, private and special law granting the power to exercise the right of eminent domain contrary to the provisions of Section 90(r) of the Mississippi Constitution of 1890. Section 90(r) provides:

The legislature shall not pass local, private, or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws, viz.:
(r) Conferring the power to exercise the right of eminent domain, .

The first paragraph of section 43-35-201 follows:

The governing authorities of any municipality of one hundred thousand (100,-000) population or more, and the governing authorities of any municipality of twenty-five thousand (25,000) population or more located in any county adjacent to a county in which a municipality of one hundred thousand (100,000) or more is located, and the governing authorities of any municipality in any county having a population in excess of one hundred thirty thousand (130,000) according to the 1970 decennial census, and the governing authorities of any municipality in any county having a population in excess of twenty-seven thousand (27,000) according to the 1970 decennial census and bordering on the State of Tennessee wherein United States Highways 45 and 72 intersect shall have, and may, within their discretion, by resolution duly adopted, delegate to its urban renewal agency or redevelopment authority created pursuant to section 43-35-33, any or all of the following additional powers, duties and responsibilities, as specified in the resolution of the governing authorities of the municipality.

The proof shows that Jackson has a population of more than 100,000 and is the only city in the State of Mississippi falling in this category. We held in Vardaman v. McBee, 198 Miss. 251, 21 So.2d 661 (1945) that where a law is broad enough to reach every portion of the state and to embrace within its provisions every person or thing distinguished by characteristics sufficiently marked and important to make them clearly a class by themselves, it is not a special or local, but a general law even though there may be but one member of the class or one place on which it operates.

In numerous cases we have held that the question of classification is one primarily for the legislature, and in the exercise of this power the legislature possesses a wide discretion. We have also held in view of the presumptions in favor of a legislative judgment as to classification, the legislative judgment will be upheld if any state of facts can reasonably be conceived to sustain it, and can be overthrown by the courts only when it is clearly erroneous. Board of Education v. State Educational Finance Commission, 243 Miss. 782, 138 So.2d 912 (1962). In Loden v. Mississippi Public Service Commission, 279 So.2d 636 (Miss.1973) we stated:

In order to be a general law it is not required in all cases that a statute literally extend to all the people of the state in every geographical part thereof, but it may be constitutionally intended to operate within a limited territory or place. 82 C.J.S. Statutes § 162, pages 270-271 (1953); 50 Am.Jur. Statutes section 12, page 29 (1944). This Court held over a half century ago that a law is general not by reason of the fact that it may be operative upon every citizen of the state but “because every person that can be brought within its predicament becomes subject to its operation.” Drainage Dist. v. Buckner, 108 Miss. 427, 66 So. 784 (1914). See Delta & Pine Land Co. v. Board of Supervisors, 228 So.2d 893 (Miss.1969); Culley v. Pearl River Indus. Comm’n., 234 Miss. 788, 108 So.2d 390 (1959). (279 So.2d at 639).

We have also upheld general legislative acts where the classification was based on population. We reasoned in Clark v. State, 169 Miss. 369, 152 So. 820 (1934) and State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129 (1926) that classification by population is permitted if the classification has a reasonable relation to the purpose sought to be attained and is germane to the subject matter of the legislation.

The first category in section 43-35-201 applies to municipalities of 100,000 population or more and is clearly a general classification because it is based solely on population, is not tied to a particular census and any municipality within the state may come within that classification when its population reaches 100,000. We hold that the legislature’s classification of cities with populations over 100,000 to'meet the parking problems created by their large population is valid, and this classification is reasonable and germane to the subject matter of the legislation. The statute is a general law and is constitutional.

We need not consider the constitutionality of the other categories under section 43-35-201 because if these categories constitute unconstitutional classification it is the Court’s duty to separate the valid from the invalid part if this can be done and to permit the valid part to stand. Wilson v. Jones County Board of Supervisors, 342 So.2d 1293 (Miss.1977).

The trial court relied on, and it is argued here, that our decision in Smith v. Transcontinental Gas Pipeline Corp., 310 So.2d 281 (Miss.1975) controls. Smith is distinguishable because the section of the statute under consideration in Smith sought to exempt the citizens of Jones County from the operation of a general law applicable to citizens of all other counties in the state except Jones County. As such, the law violated Section 87 of the Constitution.

Although not cited, we have considered Rolph v. Board of Trustees of Forrest County General Hospital, 346 So.2d 377 (Miss.1977). However, it is not applicable because the statute under consideration there was an attempt to vest the trustees of the Forrest County General Hospital with authority to waive governmental immunity from negligent, tortious, or unauthorized acts of its agents, servants or employees. We held that the statute in Rolph violated Article 4, Section 87 of the Mississippi Constitution. It was a special law enacted for the benefit of any person who might be injured because of the negligence of the agents or employees of the hospital. It amounted to suspending governmental immunity for the benefit of private individuals injured by employees of one hospital. Although not articulated in Smith, supra, and Rolph, supra, it was implicit in the holding that the statutes under consideration in those cases suspended general laws for the benefit of private individuals.

It is also argued that our decision in Wilson v. Jones County Board of Supervisors, 342 So.2d 1293 (Miss.1977) is controlling. Wilson does not apply because the portion of the statute under consideration in Wilson violated Section 112 of the Constitution of 1890 which requires uniform and equal taxation throughout the state.

It is also argued that the statute violates the Fourteenth Amendment to the United States Constitution. This argument is not well taken because any municipality in the state may establish public parking facilities and may exercise the right of eminent domain to acquire property necessary for such purpose. Sections 21-37-23, 24 and 25 Mississippi Code Annotated (1972). Also, any commission created under legislative act, such as JRA, operating as an agency or any municipality has the power to exercise the right of eminent domain. Section 21-37-47, Mississippi Code Annotated (1972).

The trial court held that Jackson’s urban renewal election held in June, 1971 was invalid because the description of the area to be included within the urban renewal project set forth in the ordinance and in the notice of the election did not close. The urban renewal election was conducted in accordance with Miss.Gen.Laws Ch. 499 §§ 11-15 (1970) [sections 43-35-221 through 43-35-229 Mississippi Code Annotated (Supp.1977)]. The authority of the municipality to delegate its power to establish and construct public parking facilities to its urban renewal agency is not derived from the above sections, but this authority is derived from Miss.Gen.Laws Ch. 499 § 1 [section 43-35-201 Mississippi Code Annotated (Supp.1977)]. Therefore, the validity of the election on the urban renewal project has no bearing on the issues in this case.

The trial court also held that the JRA was not a legal entity which could exercise the power of eminent domain because it had failed to file annual reports required by section 43-35-33(c) Mississippi Code Annotated (Supp.1977). The record shows that JRA was created as an urban renewal agency strictly in accord with the requirements of section 43-35-33. Failure to file annual reports did not destroy the character of the agency. We hold the trial court erred in this holding.

The trial court also held that two of the seven commissioners of the JRA were not qualified to serve on the board of directors because they did not meet the residence requirements of section 43-35-33(c) Mississippi Code Annotated (Supp.1977).

Section 25-1—37 Mississippi Code Annotated (1972) provides:

The official acts of any person in possession of a public office and exercising the functions thereof shall be valid and binding as official acts in regard to all persons interested or affected thereby, whether such person be lawfully entitled to hold the office or not and whether such person be lawfully qualified or not; but such person shall be liable to all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right or without being qualified according to law.

In the case of Cooper v. Moore, 44 Miss. 386 (1870), the Court stated:

It is a very ancient and salutary principle of the common law, where a person claims to hold an office, his title shall not come in question in an action to which he is not a party; but while he holds the office de facto, his acts and doings therein will be deemed good. 7 Bacon Ab., 283; Fowler v. Bebee, 9 Mass., 231; Justices of Jefferson v. Clark, 1 Monroe, 86; ex parte Bolman, [Bollman] 4 Cranch, 75 [2 L.Ed. 554]; People v. Collins, 7 Johns., 549; McKein v. Somers, 2 Penn., 269; 2 Kent’s Com., 330.
Art. 109, Rev.Code, 138, is declaratory of the common law. This makes valid, officials acts in so far as third persons are interested therein, or affected thereby, whether such person be lawfully entitled to hold such office, or whether lawfully qualified or not. For the usurpation, or unlawful holding, or exercising its functions without lawful right, the person may be dealt with, and punished at the suit of the state. Such a rule is essential to the repose of society, and the orderly administration of the functions of public authority. It were impossible, for any practical good, to administer any department or sub-division of the state government, if, at every exertion of authority, the functionary could be challenged to produce the evidence of his right to the office, and the question could be made of his title thereto.
The incumbent cannot be impeached collaterally and indirectly; if he is in possession of the office, discharging its ordinary functions, his official acts are conclusive as to all persons interested or affected by them. If he is a usurper in possession without right, the state, whose authority he abuses, can move directly for his ejection and punishment.
Where a statute makes void the official acts of persons who have not been duly appointed or qualified, the courts have so pronounced, as in Shelby v. Alcorn, 36 Miss., 292 [273]; McNutt v. Lancaster, 9 S. & M., 570. It was doubtless from the great inconvenience and evil pronounced by such rulings, that the revised statute introduced the principle above quoted. (44 Miss. at 392, 393).

The construction of Section 25-1-37 as announced in Cooper has been followed in numerous cases without exception. The most recent cases on this question are Crocker v. Sears, Roebuck and Co., 346 So.2d 921 (Miss.1977) and Raper v. State, 317 So.2d 709 (Miss.1975). The two commissioners in question were appointed by the Council of the City of Jackson and were in possession of the office as commissioners of the JRA. As such, their right to the office cannot be impeached in a collateral proceeding.

The trial court also held that there was not a quorum present when the JRA voted to condemn the property of the appellees. One of the grounds for dismissal of a petition to condemn land is:

[T]hat there is no public necessity for the taking of the particular property or a part thereof which it is proposed to condemn . . . [Section 11-27-15 Mississippi Code Annotated (1972)].

We held in Paulk v. Housing Authority of City of Tupelo, 195 So.2d 488 (Miss.1967) that the question of public necessity is determined by a duly authorized governing body in its exercise of legislative power at the time the need is recognized and the burden of proof on the issue of necessity is on the landowner who seeks to show lack of necessity.

The presence of a quorum at a meeting is important because public necessity for taking property by eminent domain is not shown unless a quorum is present at the meeting where the determination is made that public necessity requires the taking of real property by condemnation.

JRA is a “public body corporate” with seven commissioners and, under section 43-35-33(c) Mississippi Code Annotated (Supp.1977), a majority of the commissioners is required to constitute a quorum for the purpose of conducting business and exercising the powers of the agency; therefore, four commissioners are required to constitute a quorum. On the day in question four commissioners were present at the meeting; however, one of the commissioners was disqualified to vote, and did not vote, on the question of taking the property of the appellees by eminent domain.

The rule in other jurisdictions is that a director of a corporation cannot form a part of a quorum to act on a proposition where he is disqualified to vote on the proposition or where his individual interest is adverse to the corporation.

The rule is stated in 19 Am.Jur.2d, Corporations, § 1128 (1965) as follows:

According to a number of cases, since a director usually cannot act for the corporation as such in matters in which he has an adverse interest, a director present when the directors attempt to take action upon a matter in which he is adversely interested or otherwise disqualified cannot be counted to make a necessary quorum, even though he does not vote upon the matter.

To the same effect we find the following statement in 19 C.J.S. Corporations § 749 (1940):

A director who is disqualified by personal interest from voting on a particular matter before the meeting cannot be counted for the purpose of making a quorum or a majority of the quorum, nor for the purpose of determining how many constitute a majority. Broadly speaking, the act done, or action taken, is invalid where the presence of the disqualified director is necessary to constitute a quorum, .

We therefore conclude that a quorum was not present at the meeting when the JRA adopted the resolution to exercise the power of eminent domain to obtain the property of the appellees. For this reason the trial court properly dismissed the petition of the JRA.

Appellees filed a cross-appeal and assigned eight errors. Cross-appellants argue that the trial court erred by allowing JRA to respond to their requests for admissions after the 30 day response period had expired contrary to section 13-1-236 Mississippi Code Annotated (Supp.1977). This question is moot because we affirmed cross-appellees’ motion to dismiss the petition of JRA.

Cross-appellants also argue that JRA was guilty of an abuse of discretion in selecting a site and determining that public necessity required the taking of appellees’ property. Cross-appellants admit that the selection of a particular site as a subject of a taking by eminent domain is a legislative question and the courts will not interfere unless abuse of discretion or fraud is proved. Pearl River Valley Water Supply District v. Brown, 248 Miss. 4, 156 So.2d 572 (1963). The trial court did not find that there was an abuse of discretion and, from the evidence in this case, we are unable to say that the court was manifestly in error in failing to make this finding.

Cross-appellants further contend that the Mississippi eminent domain statutes, section 11-27 — 1, et seq. Mississippi Code Annotated (1972) are unconstitutional because they violate the Fifth Amendment of the United States Constitution and section 17 of the Mississippi Constitution which provide that private property shall not be taken for public use without “just compensation” or “due compensation.”

Cross-appellants argue that if property is taken by eminent domain and they are required to pay their attorney’s fees and other expenses incurred in the litigation out of the judgment, they would not receive just compensation because the value of the property would be reduced by such fees and expenses.

Our eminent domain statutes do not provide for payment of expenses of litigation incurred by a property owner defending where his property is taken. The question raised by cross-appellants does not involve the constitutionality of the eminent domain statutes but involves the definition of “just compensation” required by the Fifth Amendment and “due compensation” required by Section 17 of our Constitution. We have not passed on this precise question and decline to pass on it because cross-appellants’ property was not taken so there is no justiciable issue for decision in this case.

We note that the United States Supreme Court held in Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 (1930) that attorneys fees and expenses are not embraced within just compensation for land taken by eminent domain. Our view that the question raised by cross-appellants involves the definition of just compensation and due compensation rather than the constitutionality of the entire statutory scheme, is strengthened by the fact that a number of state and federal courts have considered the question, not from the standpoint of whether the statutory method of exercising the right of eminent domain is constitutional, but from the standpoint of whether expenses incurred in defending eminent domain cases should be allowed under the constitutional guaranty of due or just compensation. In essence, the courts have limited their consideration of the question to a determination of whether such expenses should be included in the award for property taken by eminent domain. Some state and federal courts hold that the constitutional guaranty of just or full compensation for private property appropriated for public use requires that a condemnee be reimbursed by the condemnor for the expenses incurred in defending the eminent domain proceedings. Conversely, other courts take an opposite view, holding this is a question for the legislature. 68 A.L.R. 3rd, page 555, et seq. Some state legislatures have provided that expenses incurred in defending eminent domain cases are recoverable by the condemnee when his property is taken.

Cross-appellants also contend that the eminent domain statute is unconstitutional because section 11-27-37 Mississippi Code Annotated (1972) provides that a landowner is entitled to reasonable expenses, including attorneys fees, of defending a condemnation suit where, (1) the condemnation proceedings are abandoned by the con-demnor, or (2) the condemnor fails to pay the damage and cost awarded to the defendant within the time specified therein, or (3) the judgment is that petitioner is not entitled to condemn the property.

Cross-appellants argue this violates due process because landowners whose property is taken by eminent domain are not paid the expenses of defending the suit. We perceive no violation of equal protection of the law because the statute makes provision for entirely different situations, a permissible classification.

Cross-appellants also argue that the trial court erred in failing to hold that there was no public necessity for the taking of their property. This question is moot because we held in discussing the direct appeal that public necessity was not shown because of the lack of a quorum at the meeting at which the taking resolutions were adopted. We do not know whether JRA will attempt to take this property so any opinion on this question would be advisory only.

Cross-appellants contends in three assignments of error that two of the commissioners failed to meet the residential requirements of section 43-35-33(c) Mississippi Code Annotated (1972), that two of the commissioners had conflicts of interest and failed to file statements of such conflicts of interest, and that three of the commissioners were not qualified because they held other public office with the City of Jackson contrary to section 43-35-35 Mississippi Code Annotated (1972). These three assignments of error constitute a collateral attack on the right of these persons to serve as commissioners of JRA. We held infra that the question of their qualifications may not be raised in a collateral proceeding.

Cross-appellants also contend that the trial court erred in failing to hold that the JRA plans to build a “mini mall” in the proposed public parking facility is contrary to the provisions of section 21-37 — 23 Mississippi Code Annotated (1972). This argument overlooks section 43-35-201(a) which provides in part:

Commercial enterprise activities other than parking of motor vehicles may be authorized on leased property comprising any part of such parking facilities and related structures, but only upon an express finding, by resolution of the governing authorities of the municipality as hereinafter provided, that such commercial enterprise activities are essential to the economic feasibility of the proposed parking facilities.

Argument is also advanced that permitting commercial enterprise activities other than public parking would not constitute taking of private land for public use. We answered this question in Paulk v. Housing Authority of City of Tupelo, 195 So.2d 488 (Miss.1967) where we stated:

Government has the right to take private land for public use upon just compensation. This right is granted to the state government and to designated public agencies by the State Constitution and statutes. In this instance the Housing Authority has selected as a method of renewal and redevelopment the reselling of the land to private persons, subject to restrictions designed to prevent a recurrence of slums.
Appellant contends this is not a taking for public use, but a governmental exercise of power by which one private owner is deprived of his land and another private person is allowed to purchase the land for private use.
In the Pearl River Valley Water Supply Dist. v. Brown, 248 Miss. 4, 156 So.2d 572, 158 So.2d 694 (1963). Brown case it was decided that where the incidental power to lease land to a private individual or corporation is connected with a paramount public use, the fact that some of the land to be taken is to be thereafter leased does not defeat the power of eminent domain.
This decision was followed in Wright v. Pearl River Valley Water Supply Dist., 250 Miss. 645, 167 So.2d 660 (1964) and Pearl River Valley Water Supply Dist. v. Wood, 248 Miss. 748, 160 So.2d 917 (1964).
Appellant attempts to distinguish the present actions from those cases. There the use of land for lease to private individuals after condemnation was incidental to the paramount public purposes of pollution control, control of access, and providing for recreational facilities. Appellant says there is no such public purpose to be served here. We disagree. The public purpose is urban renewal and slum clearance. This purpose is not necessarily fulfilled when clearance is complete. Here plans for redevelopment are to be carried forward under regulations which will insure against a recurrence of slums in this area. (195 So.2d at 490).

We are of the opinion that taking land for public parking facilities is a public use and the authority contained in the statute to carry on other commercial enterprise activities in the facility does not destroy public use. The paramount purpose of the taking is for public use.

For the reason stated the judgment of the trial court to dismiss the petition of JRA to condemn the property of appellees is affirmed.

AFFIRMED.

PATTERSON, C. J., and WALKER, BROOM, LEE and COFER, JJ., concur.

BOWLING, Justice,

specially concurring:

I agree with the majority opinion in affirming the lower court’s holding that a quorum was not present at the October 28, 1976, meeting of the Jackson Redevelopment Authority, and, therefore, the resolutions authorizing the condemnation of ap-pellees’ property were void. We may readily see, however, that under the majority opinion the way is paved for new resolutions and new filing of petitions to take appellees’ property.

I would go further and affirm the lower court’s finding that Mississippi Code Annotated section 43-35 — 201 (Supp.1972) is unconstitutional. Article 4, section 90 of the Mississippi Constitution reads as follows:

The legislature shall not pass local, private, or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws, viz:
(r) conferring the power to exercise the right of eminent domain, ....

There is nothing ambiguous, uncertain or doubtful in the language of this constitutional provision. The reasoning behind it as recited by the framers of the Constitution is clear, particularly when applied to the facts of the present case. A person who has worked all his life and accumulated a piece of property with which he makes a livelihood for himself and his family is entitled to protection from an arbitrary taking of that property and livelihood. The writers of the Constitution could see a situation possibly would exist in the future as the one now before us.

Is Code section 43-35-201, as incorporated in the majority opinion, a local, private or special law conferring the power of eminent domain?

I do not believe that any person in his right mind would seriously contend that the statute in question applied to any city except Jackson, Vicksburg, Corinth and Gulf-port. In analyzing the meaning and import of any statute we always look to ascertain the legislative intent. What does the language of the statute show us in regard to this intent? Can any rational person say that the statute applying to a municipality of 25,000 population or more located in any county adjacent to a county in which a municipality of 100,000 or more is located applies to any city in the state other than Vicksburg? To say otherwise is pure folly.

Going further, can anyone say that the statute applying to any municipality with a population in excess of 27,000 according to the decennial census and bordering on the State of Tennessee where U. S. Highways 45 and 72 intersect applies to any city in the state other than Corinth?

My purpose in emphasizing these requirements of the statute is to emphasize my opinion that the legislature, even though with well meaning intentions, clearly intended for the statute to be a special statute applying to the four cities in question. Of course, with Jackson as one of the four, it was not necessary to go to the extent of placing highways, placing cities in certain directions from Jackson, and other specific directions. It was only necessary to refer to Jackson as a city of over 100,000 population. The proof is clear that no other city in the state anywhere approaches this population and will not for many, many years. These are the reasons, therefore, that with all respect to the drafters of the bill, when looking to the intention of those well meaning persons, it is inescapable that the statute was intended to be local, private and special as to Jackson, Vicksburg, Corinth and Gulfport and no other.

The first case cited in the majority opinion is Vardaman et al. v. McBee, 198 Miss. 251, 21 So.2d 661 (1945). In reading that case I find the following clear language:

Class legislation, also often called local or private legislation, is legislation limited in operation to certain persons or classes of persons, natural or artificial, or to certain districts of the territory of the State, and statutes which make unreasonable or arbitrary classifications or discriminations violate provisions of Constitutions prohibiting special laws granting any special or exclusive privileges, immunities, or franchises, or passed for the benefit of individuals inconsistent with the general law of the land. (Citations omitted).

The majority opinion in finding that the statute applicable to only four cities is “general” rather than “local, private or special,” has much to say about “population classification.” I refer back to the original part of this opinion regarding the intention of the Legislature to limit the statute’s application to the four cities in question. No other city in the state with a population of over 25,000, as the statute applies to Vicksburg, or population in excess of 27,000, as the statute applies to Corinth, or any other city of any population whatever, has the benefit of the statute in question and their citizens are protected. For instance, the statute does not apply to Eupora, Holly Springs, Water Valley, Columbia, Monticello or Forest, all home town cities of the other members of the Court except one Jackson resident. Can either the Legislature or this Court make a legislative or judicial decision that none of these cities have parking problems and none need “public parking facilities” including city-owned commercial enterprises?

The majority opinion, in discussing “population classification” making the statute general rather than special, relies on the cases of Clark v. State, 169 Miss. 369, 152 So. 820 (1934), and State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129 (1926). Clark dealt with a statute regulating the licensing of barbers in the state and was a statewide application. Knox involved the establishment of county courts in the entire State of Mississippi after the necessity of county courts was determined in counties of certain size. It had statewide application. Nowhere in the opinion in either case is there any mention of section 90 of the Mississippi Constitution. We do find in Knox the following statement in regard to special and general statutes:

In determining the question whether an act is a general law or a local or special law, the courts will look to the substance and practical operation of the law, rather than to its form and phraseology. The constitutional requirement that certain character of laws shall be general and uniform in their operation does not prevent a reasonable classification by the legislature. A law is general in the sense of such a constitutional provision when it applies to and operates uniformly on all members of any class of persons, places, or things requiring legislation peculiar to the particular class dealt with by the law. (Emphasis ours)

Using the above quote from the case relied on by the majority opinion, how can the Legislature or this Court establish how many people a city has to include before it has parking problems? A city of 50,000 with its facilities might need a public garage more than a city of 75,000 or 100,000 with their particular situations. How can we say, as was set out in Knox, that the statute before us “applies to and operates uniformly on all members of any class of persons, places or things, requiring legislation peculiar to the particular class dealt with by law?”

The statute says that one city in the state of 25,000 has a parking problem, one city of 27,000 has a parking problem, and one city of 100,000 or over has a parking problem. The simple question then is: Does this indicate a legislative intent to cure the parking problems in all Mississippi towns and cities? In the same breath, while making the distinction set out above, the statute says that a city of 100,000 people may have a parking problem and necessary relief, but a city of 99,999 people does not have a parking problem? How more “special” can a pronouncement be?

Nowhere in the above two cases relied on by the majority opinion pertaining to classification based on population was a situation even discussed where a person’s property used for his livelihood was being taken by eminent domain and then leased or sold to anyone of the taker’s choice. Both cases applied uniformly to statewide necessities regarding licenses and courts.

With deference to the majority, it is inescapable that the abstract principle of “population classification” requires an analysis of each individual case and does not serve to make the statute in question a general statute rather than a special statute prohibited by Section 90(r) of the Constitution.

In a recent case decided by this Court the Court had before it a question involving the constitutionality of the make-up of the school district in a county in Mississippi. It so happens that the school district there includes the entire county and is the only county in the state which has gone that route. The statute in that case involved only a county with one school district and with the intersection of Highways 14 and 15 therein. The Court held the later provisions to be unconstitutional but held that the part regarding the county encompassing the entire school district to be a general law rather than a local, private or special law. In its opinion, the Court said:

Absent the provision referring to Highways 14 and 15 intersecting, the statute, which is a general statute, appears to be constitutional. Although Winston County is the only county in which a municipal separate school district encompasses all territory of the county, there are statutory procedures whereby any other county in the state could become similarly situated.

[Since this opinion was published, it is contended that two other counties in the state have similar county-wide school districts as the county involved above.]

Unlike the above pronouncement, the record is clear that no city in the state other than Jackson could increase its population over 100,000 without building many free homes, and then going out in busses, trucks and trains and hauling people in and making citizens out of them by giving them jobs or putting them on welfare. I know this sounds far-fetched, but it is no more farfetched than holding that the statute in question regarding “population classification” applies to any city other than Jackson.

As stated at the outset, the constitutionality of the statute under which appellees’ property is being taken away from them is doubly important. The statute provides that in connection with the parking facility, paid for by the taxpayers, the city may build commercial enterprise locations right in the same location where appellees’ property is being taken and rent those locations to others for their livelihood and that of their families rather than appellees. This is contradictory to Code section 21-37-23, passed many years ago, which authorized municipalities to build parking facilities on property secured or owned by them. The statute, however, further provides that “no commercial enterprise activities other than the parking of motor vehicles shall be authorized by any municipality on the property comprising any part of such parking facility.”

This obviously is contradictory to the special statute under which appellees’ property is being taken. The record shows that the City of Jackson, more than three years past, enacted an ordinance expressly finding that the commercial enterprise activities should be built and conducted on the same location as appellees’ property. Therefore, we have a situation under the majority opinion that appellees’ livelihood property may be taken with the expense in connection therewith and that the city then may rebuild at taxpayers’ expense another commercial building on the same spot and rent it to others.

In writing this opinion, I would prefer to confine it to the Mississippi Constitution. Simple study reveals, however, that the United States Constitution also is applicable. The Fourteenth Amendment to that Constitution provides in part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Emphasis ours)

It appears clear that Code section 43-35-201 with which we are involved violates the “equal protection of the laws” provision of the Fourteenth Amendment. First, it permits urban renewal agencies in only four municipalities to take a citizen’s property for parking facilities, and goes further by setting up a scheme of taking a citizen’s personal property and making it government-owned property to be used commercially by others. In other words, there are two standards: The citizens of four cities in question may be relieved of their livelihood and this property may be given to others. But the citizens of all other towns and cities are not subject to this exposure. Undoubtedly, the eminent domain rights given in the statute in question under which the suits were filed do not give “equal protection” to all citizens of our state as required by the Fourteenth Amendment.

One phase of the case was not mentioned in the majority opinion; that is, this whole matter arose in connection with “urban renewal.” One of the principal cases relied upon by the majority opinion is Paulk v. Housing Authority of City of Tupelo, 195 So.2d 488 (Miss.1967). In that case it is clear that the city was attempting to clear a “slum area” and the case filed by the city was for that purpose. The petitions filed in the case before us were based solely on “building a parking facility.” Paulk did not involve going businesses being properly conducted by persons earning a livelihood and not wishing to have their property taken in order to build parking facilities for employees of a new Federal building.

In my humble opinion, the majority opinion of the Court has bent the Constitution to the breaking point. I certainly agree with some advocates that there should be amendments to the Constitution, and possibly a complete revision. However, I do not recall anyone disagreeing with the intent of the framers of the Constitution when they wisely incorporated therein section 90. I would affirm the case both on the lower court’s holding that the petitions were not approved by a quorum of the Authority, and in addition thereto that the statute under which the petitions were filed is unconstitutional.

SMITH and ROBERTSON, P. JJ., join in this opinion.

      . Sections 43-35-201 — 43—35—219 Mississippi Code Annotated (Supp.1977).

      . Sections 43-35-221 — 43-35-299 Mississippi Code Annotated (Supp.1977).

      . Sections 43-35-231, 233, 235 Mississippi Code Annotated (Supp.1977).

      . Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 43 S.Ct. 684, 67 L.Ed. 1167 (1923).


source: Caselaw Access Project

license: Public Domain

text:
    Robert Earl GREEN v. Linda Ward Green CRANE.
    No. 50701.
    Supreme Court of Mississippi.
    Nov. 15, 1978.
    Rehearing Denied Dec. 13, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    Witherspoon, Compton & Mason, Jerry G. Mason, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Booker T. THOMPSON v. STATE of Mississippi.
    No. 50844.
    Supreme Court of Mississippi.
    Nov. 15, 1978.
    Rehearing Denied Dec. 13, 1978.
    Leon E. Provine, Grenada, for appellant.
    A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and COFER, JJ.


author: SUGG, Justice,

text:
    ESTATE of Gaines P. WILSON, Sr., Deceased, Gaines Wilson, Jr. v. NATIONAL BANK OF COMMERCE of Mississippi and Scribner Equipment Company, Inc.
    No. 50723.
    Supreme Court of Mississippi.
    Nov. 22, 1978.

      Fant, Crutcher, Moore & Spencer, L. G. Fant, Jr., Holly Springs, for appellant.
    Burgin, Gholson, Hicks & Nichols, John W. Crowell, Columbus, for appellees.
    Before PATTERSON, SUGG and BOWLING, JJ.
   SUGG, Justice,

for the Court:

This appeal is from a final decree of the Chancery Court of Oktibbeha County allowing five claims filed against the Estate of Gaines P. Wilson, Sr., a resident of Jefferson County, Kentucky, who died September 4, 1972.

His will was admitted to probate in Kentucky on September 25, 1972, and was admitted to probate in Oktibbeha County, Mississippi on January 23, 1973 because decedent owned real property in Oktibbeha County. A final decree closing the Oktibb-eha County Probate was entered on February 13, 1974.

On March 18, 1975, the Oktibbeha County Chancery Court reopened the Estate of Gaines P. Wilson, Sr. Thereafter the National Bank of Commerce of Mississippi, the corporate successor to the First National Bank of Monroe County, Mississippi, probated a promissory note and Scribner Equipment Co., Inc., a Mississippi corporation, probated four promissory notes as claims against the estate.

Gaines P. Wilson, Jr., as legatee under the will of Gaines P. Wilson, Sr., filed a contest to each of the claims. After an evidentiary hearing the chancery court entered a final decree allowing the probated claims as follows:

1. National Bank of Commerce, $14,-283.60 with interest at the rate of 7% per annum from November 30, 1976 until paid.
2. Scribner Equipment Co., $162,212.45 with interest at the rate of llk% per annum from November 30, 1976 until paid.
3. Scribner Equipment Co., Inc., $23,-968.22 with interest at the rate of llk% per annum from November 30, 1976 until paid.
4. Scribner Equipment Co., $15,581.24 with interest at the rate of 7V2% per annum from November 30, 1976 until paid.
5. Scribner Equipment Co., Inc., $2,619.40 with interest at the rate of 7V2% per annum from November 30, 1976 until paid.

Appellant assigns eight errors. In the first five assignments of error appellant contends that the court erred in allowing the claim on each of the notes probated. In his sixth assignment of error appellant contends the court erred in overruling the objection of appellant to the introduction of one of the notes of Scribner. In his seventh assignment of error appellant contends that the court erred in holding that the original notes were not filed as required by statute. In the eighth assignment of error appellant contends that the court erred in holding the judgments of the Circuit Court of Jefferson County, Kentucky were not entitled to full faith and credit in Mississippi. In his brief appellant combined the eight assignments of error for argument as follows:

1. Probate of a promissory note against the estate of a deceased person requires the filing of the original note, unless it can be accounted for as lost.
2. The claims are too ambiguous to permit allowance.
3. The note to National Bank of Commerce had been paid in full.
4.The judgments of the Circuit Court of Kentucky are conclusive of the matters they determine.

We will discuss the assignments of error sequentially as presented in the brief of appellant.

I.

Were the notes probated as required by statute?

Section 91-7-149 Mississippi Code Annotated (1972) provides in part:

[A]nd if the claim be based upon a promissory note or other instrument purporting to have been executed by the decedent, the creditor shall file with his claim the original thereof to remain in the keeping of the clerk or, having so presented said original writing, he may withdraw the same when the clerk has made a certified copy thereof, the said copy to remain on file.

A certified copy of each promissory note was retained by the clerk and attached to the copy of each note the following affidavit appeared:

I, JAMES H. COOK, Chancery Clerk of Oktibbeha County, Mississippi, do hereby certify that this note is a true and correct copy of the original note which was presented to me on this date for probate as a claim against the estate of Gaines P. Wilson, deceased, being Cause No. 10,990.
I further certify that after having been filed and numbered, the original note was withdrawn by the holder and this copy substituted to show evidence of the indebtedness owing by said estate.

In Merchants and Manufacturers Bank v. Fox, 165 Miss. 833, 147 So. 789 (1933) we recognized that any claimant probating a promissory note may withdraw the original note by complying with the statute. In this case, we stated:

The bank desired to avail of the privilege of withdrawing the original notes and attempted to comply with the statute by leaving copies with the clerk, the originals having been exhibited and as the clerk now testifies the copies were by him compared with the original notes and found by him to be true, full and correct copies. But the clerk failed to attach his certificate to the copies that they were in fact true copies. There is indorsed on the face of each of the notes the word ‘copy,’ but there is no certificate to that effect by the clerk. The statute in plain terms requires the clerk, when the originals are to be withdrawn, to make and retain certified copies thereof.
The statute does not prescribe the form of the certificate, but certainly there must be under the hand and seal of the clerk sufficient to make it known as a matter of record that the clerk has had the originals placed before him and that he, the clerk, not some one else, certifies that the copies which remain with the clerk are true and correct copies of the originals. This may be done by the clerk indorsing on the copy that the same is ‘a true copy of the original this date exhibited to me,’ dating the certificate, signing the same, and affixing thereto his official seal. Other forms of the required certificate may be used, but whatever the form, it must show that the original note was presented to the clerk and that the copy retained by him is in truth and in fact upon the official certificate of the clerk, a true and full copy of the original. It follows, of course, that all indorsements and credits must be shown by the copy and certificate, as if the original were retained. (165 Miss. at 839, 147 So. at 790).

The certificate of the clerk shows that each note was a true and correct copy of the original note which was presented to him for probate as a claim against the Estate of Gaines P. Wilson. The clerk also certified that after each original note was filed and numbered it was withdrawn and the copy substituted. It is true that the clerk did not mark on any of the original notes the word “filed” and did not number the original notes, but this omission did not invalidate the probation of the notes. We hold that the certificate of the clerk was sufficient and that the notes were duly probated as required by statute.

II.

Are the claims as probated too ambiguous to permit allowance?

The five notes in question were probated on August 15, 1975 and in each case the probated claim set forth the principal balance due, the interest accrued to August 15, 1975, the rate of interest to accrue on the principal until the note was paid, and the percentage claimed for attorneys fees. Appellant points out that the affidavit accompanying each note avers, “Neither affiant nor any other person has received payment in whole or in part thereof, except such as is credited therein.” Appellant then argues that the affidavit is ambiguous because each probated claim is less than the face amount of the note, and that the date and amount of payments on the notes should be stated in the probated claim. Appellant relies on Rice Stix v. Monsour, 178 Miss. 621, 174 So. 63 (1937) where we held that the claim presented was so vague, indefinite and uncertain as to be wholly insufficient to constitute a claim against the estate, and denied Rice Stix the right to amend the claim after the statutory period for probation of claims. In our view Rice Stix is not controlling, but in any event the denial of the right of Rice Stix to amend the claim was specifically modified in Central Optical Merchandising v. Lowe, 249 Miss. 61, 160 So.2d 673 (1964) where we held it is permissible to amend a claim if the amendment does not amount to a new claim but is merely an improvement or perfection of one presented in time but lacking certain elements necessary to express its full merits. In Central Optical, supra, we stated:

Presentation of a claim against an estate is in many respects similar to the filing of a suit against a defendant. The main purposes of pleading and procedure are to obtain a clear definition of the issues between the parties and to reveal all of the facts, in order to obtain a fair and equitable decision of the controversy. Where a claimant against an estate presents in good faith a claim which is in substantial compliance with the foregoing requirements, it is not equitable to permit the deceased’s representative to wait until the six months have expired, then to assert the itemized account is not technically sufficient, and thereby to bar an otherwise legitimate debt of the estate. (249 Miss. at 72, 160 So.2d at 678).

We are of the opinion that the notes as probated satisfied the requirements of our statutes on filing claims against deceased persons. If the contestant was uncertain as to whether the principal amount claimed on each note was correct, it was incumbent on him to file, either a motion for a bill of particulars, or a motion to make the claim more definite and certain by requesting the dates and amounts of payments on the notes. This principle was enunciated in Central Optical, supra, in the following language:

Although a claim may satisfy these minimum requirements, the person representative to whom a claim is presented has the duty to require the creditor to make the statement of claim more definite and certain, where it does not sufficiently advise him of its essential details and nature. If any uncertainty remains, it is incumbent on the personal representative to call for clarification, either by a motion to make more definite and certain, or motion for a bill of particulars. 34 C.J.S. Executors and Administrators § 417, p. 197. (249 Miss. at 76, 160 So.2d at 680).

We also stated:

In addition to a claimant’s right to amend, where a claim meets the foregoing minimum requirements, both he and the personal representative on a contest have the right, respectively, to introduce evidence to support their positions. Code section 575 so provides. Nicholson v. Dent, Robinson & Ward, 189 Miss. 658, 198 So. 552 (1940); Ellis v. Berry, 145 Miss. 652, 110 So. 211 (1926). (249 Miss. at 76, 160 So.2d at 680).

The evidence supported the claims of the bank and Scribner.

We hold that the notes were properly probated as claims against the Estate of Gaines P. Wilson, Sr.

III.

Was the note to the bank paid in full?

The bank’s note was a demand note in the amount of $25,000 dated August 16, 1971 bearing interest at 7% per annum after date. Appellant introduced three checks from the trust department, Citizens Fidelity Bank and Trust Company of Louisville, Kentucky payable to the First National Bank of Aberdeen as follows:

DATE AMOUNT
4-5-75 $ 7,500
7- 5-75 7,000
10-30-75 7,500
$22,000

On March 2, 1976 the Jefferson County Circuit Court issued an order of distribution directing that the bank be paid $10,407.97 as balance due on the note held by it. A check for this sum dated March 17, 1976 payable to the order of the bank was received by the Kentucky attorney of record for the claimant and was held by the claimant uncashed until the trial in this cause. The chancellor ordered, as a condition precedent to the recovery allowed the bank, that the check be returned to the executor. The evidence does not show that the note due the bank was paid in full and the bank was not bound by the order of the Kentucky court because it had probated its claim in a Mississippi court. This will be discussed more fully in Part IV of this opinion.

IV.

Did the judgments of the Circuit Court of Kentucky bar claimants from filing their claims in Mississippi?

The Circuit Court of Jefferson County, Kentucky entered judgments in favor of Scribner against the Executor of the Estate of Gaines P. Wilson, Sr. upon three of the notes probated by Scribner in the Chancery Court of Oktibbeha County, Mississippi. On March 14, 1975 the Jefferson Circuit Court entered an order directing Scribner to dismiss all actions in the State of Mississippi against the executor on or before March 25, 1975, and provided that, if Scribner failed to dismiss the Mississippi action by that date, Scribner would be enjoined from prosecuting its claims pending in the Kentucky court, and Scribner’s answer and counterclaim and all of its pleadings would stand dismissed with prejudice as of March 25, 1975.

Scribner declined to dismiss its proceedings in Mississippi so its claims were dismissed by operation of the order of March 14, 1975.

Scribner appealed and in Scribner Equipment Co., Inc. v. Citizens Fidelity Bank and Trust Company, Executor of the Estate of Gaines P. Wilson, Deceased, Case No. 75-483, decided February 17, 1978, the Court of Appeals in Kentucky held that Scribner was entitled to pursue its claims in appropriate proceedings in Mississippi. In an unpublished opinion the Appeals Court held:

We reverse the order of the trial court which dismissed Scribner’s pleadings and we vacate the judgments affecting Scribner entered thereafter. It is our judgment that the action in Jefferson Circuit Court should be abated pending a reasonable opportunity for Scribner to pursue its claim to a final determination in whatever probate proceedings are available in Mississippi.

The reversal of the order of the Circuit Court of Jefferson County by the Court of Appeals is a complete answer to appellants’ contention under this assignment of error.

However, there is a more compelling reason to reject appellants’ argument under this assignment of error because the administration of an estate in Mississippi is not ancillary to the administration of the same estate in a foreign jurisdiction. Where the courts of Mississippi are independently administering an estate of a non-resident decedent, a claim which has been disallowed in the estate of the non-resident administered in the court of his residence, is not a bar to a claim filed in the courts of this state. In Buckingham Hotel Co. v. Kimberly, 138 Miss. 445, 103 So. 213 (1925) the hotel, a Missouri corporation, filed a claim in probate proceedings in the State of Missouri, the state of residence of decedent. The claim was disallowed by the Missouri court, but we held that the disallowance of the claim by the Missouri court did not bar allowance of the same claim in Mississippi probate proceedings. We followed the well established rule that the estate of a non-resident decedent who owns property in this state may be administered in the courts of this state, and such administration is not ancillary to, but is independent of all other administrations, and is to be conducted in all respects as if the decedent had been a citizen of this state when he died. In Buckingham, we stated:

In this state administration of the effects here of a deceased person, no matter where his domicile was, is independent of all other administrations, and to be conducted in all respects as if the decedent had been a citizen of this state when he died. Debts are to be paid according to the assets, and any surplus is to be distributed here. All creditors, no matter where residing, nor where the debts were contracted, are entitled to prove their claims here, and proceed in our courts to enforce them, and to share in the assets here. There may be inconveniences, and sometimes hardships, resulting from this doctrine; but it plainly results from our system, as established by statutes, and we cannot shrink from declaring it, whatever may be the consequence .
If we are to give effect to the very positive language of the distinguished judges who wrote the two opinions quoted supra, we are compelled to hold that under the Mississippi statutes an administration in this state is not ancillary to an administration in any other state where real estate or personal property is located here, and the law of the domicile does not control our statute in the administration of an estate of which the courts of our state have jurisdiction, but they are administered in all respects as though there were no other administration.
Counsel for appellee insists that we must preserve the comity of courts, which we do not think is involved here for the reason that as to real estate especially it has always been the law that immovable property is exclusively subject to the laws of the country in which it is located, and this has been zealously and jealously guarded. Other states are excluded when it comes to the disposition of the title to real property, and lex loci rei sitae is invoked to prescribe the mode for establishing the muniment of title to said lands.
We cannot agree with counsel for ap-pellee that there is any merit in the contention that there is any violation of the spirit or of the letter of the Constitution relative to comity of courts in the several states, but plant ourselves upon the well-known principle that each sovereign controls the transfer and manner of establishing muniments of title within its borders, and our statutes have declared that estates of decedents shall be administered independently, and our courts have but enforced our statutes; the statutes and decisions being based upon sound reasoning and calculated to carefully guard the estates of all persons, we do not feel warranted in disturbing the rule as it has existed in Mississippi for many years. (138 Miss. at 455, 456, 457, 458; 103 So. at 215).

Gaines P. Wilson, Sr. owned real and personal property in Mississippi; therefore the Chancery Court of Oktibbeha County, Mississippi had jurisdiction to administer his estate. Claimants were entitled to file their claims and have them adjudicated in the Mississippi court would regard to any proceedings in the Kentucky courts. For this reason, the judgment of the Kentucky court involving the claims of both the bank and Scribner was not binding on the Mississippi court.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Bolton v. Barnett, 131 Miss. 802, 95 So. 721 (1923) and Carroll v. McPike, 53 Miss. 569 (1876). See also Estate of Torian v. First National Bank of Memphis, 321 So.2d 287 (Miss. 1975) wherein Bolton and Carroll supra, are quoted with approval; Voyles v. Robinson, 151 Miss. 585, 118 So. 420 (1928).


author: BOWLING, Justice,

text:
    Buster CALDWELL and Billy Ray Market v. STATE of Mississippi.
    No. 50788.
    Supreme Court of Mississippi.
    Nov. 22, 1978.

      Jon C. Anderson, J. Terry Peeples, Cof-feeville, for appellants.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellants, along with two other persons, were indicted for the crime of rape in the Circuit Court of Yalobusha County, Mississippi. Appellants requested a severance and a joint trial. The jury found each appellant guilty of the crime charged and each was sentenced to a term of fifty years in the custody of the Mississippi Department of Corrections.

Appellants filed separate assignments of error but each are identical. They are:

1. The trial court erred in admitting the confessions of each defendant into evidence.

2. The trial court erred in permitting Agent Barber to testify regarding the confession of each defendant.

3. The evidence in the case fails to support the burden of proof required to sustain the verdict of guilty of rape.

4. The trial court erred in sentencing the defendants to a term of fifty years.

The evidence revealed that on the night of June 12, 1976, David Thorpe and Merya Medson were traveling through the State of Mississippi in a southerly direction on Interstate Highway 55. They were residents of the State of Wisconsin, and were on their way to Biloxi, Mississippi, to visit Miss Med-son’s sisters. According to their testimony, they stopped at a public rest area a short distance north of Enid Dam Reservoir, and while there they saw the four persons indicted herein. It was their intention to spend the night at a public camping place at the reservoir site. They left the rest area and while they were still on the motorcycle but inside Federally owned property, they were stopped by a car containing four black males. Thorpe and Medson were forced onto the back seat of the car between two of the occupants and were forced to place their heads near the bottom of the car. The car was then driven approximately three miles to the edge of a pasture. Thorpe was then locked inside the trunk of the car. Medson was disrobed and carried to the pasture, where she testified that she was raped by each of the four males. Thorpe was then released from the trunk of the car and both were ordered to lie face down on the ground while the participants in the incident drove away. Thorpe and Medson were able to make their way to a light seen in the area, and after about forty minutes time and crossing two creeks, they found a house and notified authorities.

Appellants were arrested during the afternoon of July 2, 1976, and first carried to the county jail in Panola County, the county of their residence. During the later part of the afternoon or early evening, they were then carried to Water Valley and placed in the Yalobusha County jail.

POINT 1.

Appellants allege that testimony of witnesses Kenneth Hughes and George Barber, FBI Agents, regarding the confessions secured by them from appellants was not admissible and that their objections to the confessions should have been sustained. Hughes testified that the reason for their participation in the matter was the occurrence of the incident on Federally owned land. Both Hughes and Barber testified that they first interviewed appellant Caldwell in the Yalobusha County jail, beginning at approximately 9:30 P.M. Their testimony was that Agent Hughes identified himself to appellant Caldwell and orally advised him of his rights. He then secured the execution by Caldwell of a written acknowledgment of appellant’s rights and a waiver of rights. This was in the usual form, advising appellant that he had the right to remain silent; anything he said could be used against him in court; the right to talk to an attorney for advice before answering questions; that a lawyer would be appointed for him if he could not afford one; and the right to stop answering questions at any time. The signature of Caldwell was secured on the instrument and witnessed by both Hughes and Barber, stating that,

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me, and no threats or coercion of any kind have been used against me.

The testimony of Hughes and Barber was that beginning about 10:45 P.M., they secured a confession from appellant Market, after advising him of all his rights and after Market had signed a waiver, the same as discussed above in regard to Caldwell. The time for beginning the statement was set out on each waiver. Hughes further testified that he asked questions of each appellant when their respective confessions were secured, and that he, Hughes, made notes of their answers as the statements progressed. We do not think it is necessary to repeat all that was said in the interrogation as related by Hughes and Barber. It suffices to say that according to the witnesses, both appellants related in much detail the incident as previously testified to by Thorpe and Medson. [Thorpe and Medson, in testimony prior to that of the FBI agents, had identified the appellants as two of the persons participating in the rape.]

Outside the presence of the jury, both appellants testified that they were sleepy and tired and that witness Hughes had shown them a gun at some point during the interrogation. There was no claim of any threat to use a gun, only a claim that seeing the gun made them afraid. Both appellants denied signing the acknowledgment and waiver of rights form. After hearing testimony from appellants and the FBI agents, the lower court held as a fact that there was no coercion of appellants and that they did not give the confessions under threats or any fear of bodily harm. The court found that appellants had been given all rights to which they were entitled under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694 (1966).

Appellants contend that under Miranda and applying the “totality of the circumstances” test, the lower court’s admission of the confessions was erroneous. A reading of the testimony clearly shows that the lower court was not only justified but was required under the evidence presented to deny appellants’ motion to suppress the confessions.

In addition to the above discussed contentions, appellants claim that the fact that they were only 21 years of age brought them within the “totality of the circumstances” test requirements. A reading of the testimony of appellants clearly justified the lower court holding that this contention was invalid. We agree with the lower court. In fact, it is hard to visualize a case where the proof showed confessions that were more admissible than those of appellants.

POINT 2.

Appellants contend that FBI Agent Barber was erroneously permitted to refresh his memory with notes written by Agent Hughes. Hughes previously had testified that after securing the confessions and making long-hand notes thereof, he dictated into a recording machine the contents of the notes and under FBI procedure, forwarded the tapes to the central office in Jackson where they were transcribed and returned to Hughes. Barber testified that he made some notes himself. He related in detail the confessions of appellants the same as testified to by Hughes. At one point when he was asked to relate “if anything happened after the rape occurred,” Barber stated that he “would have to refresh my memory if I may.” He then did so by examining the notes actually written by Hughes in long-hand at the time both men were securing the confessions. The record is clear that Barber refreshed his memory from the notes on minor points. He participated with Hughes in the entire questioning, and in our opinion, the court permitting Barber to refresh a small part of his memory with the notes taken in his presence is not reversible error. The witnesses were cross-examined extensively by attorneys for appellants.

POINT 3.

The appellants contend that the necessary elements of the charge of rape, particularly forcible penetration, were not established by the State. There is no reason to rehash all the testimony of the witnesses. The witness Medson testified positively that she was penetrated by all four participants in the crime. She was examined the same night by a physician who found bruises on her body; he found grass and dirt in her pubic region; a microscopic examination revealed numerous spermatozoa and the same were found on the victim’s panties. The jury clearly was justified in finding that Miss Medson was forcibly raped by each of the four persons, which included the appellants. Wideman v. State, 339 So.2d 1378 (Miss.1976); Fields v. State, 293 So.2d 430 (Miss.1974); Lang v. State, 230 Miss. 147, 87 So.2d 265 (1956).

POINT 4.

Appellants contend that the sentences of fifty years were excessive. The verdict of the jury was that it was unable to determine the sentence of either appellant. In several cases we have held that “it is well settled that the imposition of a sentence is within the discretion of the trial court and this Court will not review the sentence if it is within the limits prescribed by statute.” McAdory v. State, 354 So.2d 263 (Miss.1978); Ainsworth v. State, 304 So.2d 656 (Miss.1974); Flake v. State, 296 So.2d 692 (Miss.1974).

We find no reversible error and the convictions and sentences of each appellant must be and are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and LEE, JJ., concur.

COFER, J., took no part.


text:
    Thomas Eddie HAYES v. Mildred E. HAYES.
    No. 50784.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    Rehearing Denied Dec. 13, 1978.
    Sekul, Hornsby, Wallace & Teel, Thomas L. Wallace, Michael B. Wallace, Biloxi, for appellant.
    Pritchard, Myers & Gordon, Martin Heg-wood, Pascagoula, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Anna Judson Purvis MORGAN et al. v. Mrs. Patricia HARRIS.
    No. 50668.
    Supreme Court of Mississippi.
    Nov. 22, 1978.
    Dan Coit, Meridian, for appellants.
    McLaurin, Kelly & McLaurin, John C. McLaurin, Jr., Brandon, for appellee.
   Appeal from Chancery Court, Rankin County; Billy G. Bridges, Chancellor.

Before PATTERSON, C. J., SUGG and BOWLING, JJ., and EDWARD C. PRI-SOCK, Commissioner.

Affirmed.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and COFER, JJ., concur.


author: SMITH, Presiding Justice,

text:
    Clinton Patrick PIERRE v. STATE of Mississippi.
    No. 50540.
    Supreme Court of Mississippi.
    Nov. 29, 1978.
    Louis Fondren, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   SMITH, Presiding Justice,

for the Court:

Clinton Patrick Pierre was convicted in the Circuit Court of Jackson County of kidnapping and sentenced to thirty years imprisonment. He has appealed here, assigning several grounds upon which he contends that his conviction should be reversed. '

It is first argued that a motion to suppress a statement given to officers by Pierre following his arrest should have been sustained. The record reflects that a preliminary evidentiary hearing was conducted on the motion. At this hearing the questions presented, namely, whether Pierre was or was not given the Miranda warnings prior to interrogation and whether his statement was voluntary or the result of duress, were fully explored. The testimony for the State, including that of all officers who participated in or were present at the taking of the statement, amply supported the proposition that Pierre did, in fact, receive the warnings required by Miranda before being interrogated, that his statement had been voluntarily given, and that it was not the product of duress or promises or any other improper inducement.

Evidence offered by Pierre to the opposite effect created an issue of fact for the trial judge which he resolved adversely to Pierre’s contentions. In Ratliff v. State, 317 So.2d 403 (Miss.1975), this Court, citing authorities, held:

The voluntariness of a statement and its admissibility in evidence is a question for the court to determine and not a question for the jury. Norwood v. State, 258 So.2d 756 (Miss.1972); Rhone v. State, 254 So.2d 750 (Miss.1971); Buckler v. State, 171 Miss. 353, 157 So. 353 (1934); Whittaker v. State, 169 Miss. 517, 142 So. 474 (1932); Tyler v. State, 159 Miss. 223, 131 So. 417 (1930); Stepney v. City of Columbia, 157 Miss. 193, 127 So. 687 (1930); Stubbs v. State, 148 Miss. 764, 114 So. 827 (1927); Brown v. State, 142 Miss. 335, 107 So. 373 (1926); Lee v. State, 137 Miss. 329, 102 So. 296 (1924); Hunter v. State, 74 Miss. 515, 21 So. 305 (1897); Ellis v. State, 65 Miss. 44, 3 So. 188 (1887); Lego v. Twomey, Warden, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).
(317 So.2d at 404).

All of the requirements set out in Agee v. State, 185 So.2d 671 (Miss.1966) were met.

Appellant also contends that the case must be reversed because the State was permitted to call a witness in rebuttal who, it is argued, should have testified when the case in chief was presented by the prosecution. In Boston Insurance Company v. Rogers, 247 Miss. 173, 183, 154 So.2d 139 (1963), a civil case, this Court held that allowing testimony in rebuttal (as against the contention that it should have been submitted as part of the case in chief) is a matter which rests in the sound judicial discretion of the trial court. We are unable to agree with the contention of appellant that the giving of the testimony complained of in rebuttal, rather than as part of the State’s case in chief, resulted in such prejudice to his case as to require reversal.

Nor are we able to agree with the assertion that the verdict was against the weight of the evidence.

The evidence in the case fully supports the verdict of the jury finding Pierre guilty of the crime with which he was charged.

Other matters assigned and argued as error have been examined and considered and are found to be without merit.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: ROBERTSON, Presiding Justice,

text:
    SOUTHWEST STARVING ARTISTS GROUP, INC. et al. v. STATE of Mississippi ex rel. A. F. SUMMER, Attorney General.
    No. 50773.
    Supreme Court of Mississippi.
    Nov. 29, 1978.

      Watkins, Pyle, Ludlam, Winter & Stennis, L. Arnold Pyle, Walker W. Jones, III, Ross F. Bass, Jr., Jackson, for appellants.
    A. F. Summer, Atty. Gen. by Marshall G. Bennett, Asst. Atty. Gen. and Thomas M. Bryson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

The Defendants, Southwest Starving Artists Group, Inc., James Edward McNabb, Individually, James Edward McNabb d/b/a Southwest Starving Artist Group, and James Edward McNabb d/b/a McNabb Advertising Agency, have appealed from a Decree of the Chancery Court of the First Judicial District of Hinds County, affirming the issuance of a Modified Writ of Injunction by the County Court of the First Judicial District of Hinds County permanently enjoining the defendants and ordering the payment of $1500 civil penalties for deceitful and unfair advertising in violation of Mississippi law.

Defendants complain of these provisions of the writ of injunction:

“We, therefore, in consideration of the premises and of the allegations in said bill contained, strictly enjoin you, Southwest Starving Artists Group, Inc., James Edward McNabb, Individually, James Edward McNabb d/b/a Southwest Starving Artist Group, and James Edward McNabb d/b/a McNabb Advertising Agency, under the penalty of CONTEMPT OF COUNTY COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY, MISSISSIPPI, that you absolutely refrain from:
a. Advertising or conducting the sale of any painting under the name of ‘Southwest Starving Artist Art Sale,’ ‘Southwest Starving Artists Group,’ ‘Southwest Starving Artists Group, Inc.,’ ‘Starving Artist Group,' ‘Starving Artist Art Sale,’ ‘Starving Artist,’ or any other similar business name;
b. Directly or indirectly misrepresenting the Defendants' affiliation, connection or association with another or otherwise misrepresenting the geographical origins of the paintings being offered for sale by the Defendants through the use of the business name ‘Southwest Starving Artists Group,’ ‘Southwest Starving Artists Group, Inc.’ ‘Starving Artist Group,’ ‘Starving Artist,’ or any other similar business names;
c. Advertising or disseminating any information regarding goods offered for sale by the Defendants or by any business owned or operated by Defendants which is deceptive, to include:
1. Misrepresenting the source and sponsorship of goods;
2. Misrepresenting the Defendants’ affiliation, connection or association with another;
3. Misrepresenting the geographical origin of the paintings being offered for sale by the Defendants;
4. Representing that the goods have a sponsorship, characteristic or benefits that they do not have or that the Defendants have a sponsorship, status, affiliation and connection that it or he does not have.
And from any further proceedings against the said Complainants touching any of the matters in said bill contained, until our said Court shall make another order to the contrary.”

The proof showed that various radio and television advertisements were made on radio and television stations in Jackson, Mississippi, prior to art sales on or about Sunday, December 19, 1976, Sunday, January 9, 1977, and Sunday, February 6, 1977. The advertisements and posted notices complained of generally followed this format:

SOUTHWEST STARVING ARTIST
ART SALE THIS SUNDAY ONLY NOTHING OVER $35
(Including Beautiful Sofa Size Paintings)
MOST UNDER $20 PINE ART FROM ALL OVER THE WORLD
IDEAL FOR GIFTS
SUNDAY - 12:00 - 5:00 PM
FREE ADMISSION
MISSISSIPPI STATE FAIRGROUNDS AGRICULTURE BUILDING
SPONSORED BY THE SOUTHWEST STARVING ARTIST GROUP, INC.
DEPOSIT GUARANTY BANK BLDG., NO. 1225, JACKSON, MISS. 39201

Mississippi Code Annotated section 75-24-5 (1978 Supp.), provides:

“The following unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby prohibited:
(b) Misrepresentation of the source, sponsorship, approval, or certification of goods or services;
(c) Misrepresentation of affiliation, connection, or association with, or certification by another;
(d) Misrepresentation of designations of geographic origin in connection with goods or services;
(e) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have;”

Among other things, James E. McNabb, president of Southwest Starving Artists Group, Inc., who owned and operated this and his other businesses as sole proprietor-ships, testified that 90% of the paintings came, from Hong Kong and 8% to 9% from other countries outside of the United States (Italy, France, Spain and other Pacific Countries). McNabb stated that he had no contract with local artists but purchased from major art agents who would not disclose the names of the local artists for fear that McNabb would deal directly with them and bypass the agents. McNabb further testified that only 1 to 2% of the paintings came from American artists.

Witnesses testified that the advertisements did persuade them to attend the “Art Sales” and if they had known the true facts they probably would not have attended the sales.

The Chancery Court found that the County Court was well within its discretion in finding that the advertising through posted notices and on radio and television was deceptive and violated Mississippi law. The Chancellor further found:

“It was entirely possible for a reasonable person to believe after seeing and hearing the advertising complained of to believe that this sale was being put on by a group of artists who were desperate or hurting and wanted to part with their paintings at an extremely reasonable or below reasonable price; that -they were either local as in Southwest Jackson or regional as in Southwest United States or the Texas area, when in truth the Defendant is owned by one person and ninety percent of the art he sells is from Hong Kong. It is also true that the paintings carried names which indicated a different origin than from what was otherwise portrayed by the publicity.”

In our opinion, the Chancellor was justified in making these findings from the evidence adduced in the County Court. The proof adduced clearly showed a violation of Mississippi Code Annotated section 75-24-5, (b), (c), (d), and (e), (1978 Supp.).

The decree of the Chancery Court is, therefore, affirmed as to the issuance of a writ of injunction and the imposition of a $1500 civil penalty against the defendants.

However, we do feel that subpara-graph “c” of the Modified Writ of Injunction is overly broad. Subparagraph “c” is amended to read:

“c. Advertising or disseminating any information regarding goods offered for sale by the Defendants or by any business owned or operated by Defendants which:
1. Misrepresents the source and sponsorship of goods;
2. Misrepresents the Defendants’ affiliation, connection or association with another;
3. Misrepresents the geographical origin of the paintings being offered for sale by the Defendants;
4. Represents that the goods have a sponsorship characteristic or benefits that they do not have or that the Defendants have a sponsorship, status, affiliation and connection that it or he does not have.”

The following language is deleted from the Modified Writ of Injunction:

“And from any further proceedings against the said Complainants touching any of the matters in said bill contained, until our said Court shall make another order to the contrary.”

As thus modified, the decree of the Chancery Court is affirmed.

AFFIRMED AS MODIFIED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: BOWLING, Justice, SMITH, Presiding Justice,

text:
    Richard ROBINSON v. STATE of Mississippi.
    No. 50650.
    Supreme Court of Mississippi.
    Nov. 29, 1978.

      Don H. Evans, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted for the crime of burglary in the Circuit Court of the First Judicial District of Hinds County. He appeals, alleging the following assignments of error:

1. The court erred in not granting a new trial or in not dismissing the charge on the grounds that the property allegedly burglarized was alleged to be a dwelling and was alleged in the indictment to be the property of Carnell Perry, whereas the proof disclosed without dispute that the building was a motel known as the Alamo Plaza and that Carnell Perry was not the owner nor the innkeeper, but instead was merely an overnight guest.

2. The court erred in granting the State’s instruction No. 2 over the defendant’s objection.

3. The court erred in not sustaining the defendant’s motion for a directed verdict at the close of the State’s case in chief and in not granting the peremptory instruction in favor of the defendant after both sides had rested.

4. The court erred in not granting a new trial on the grounds that the verdict of the jury was contrary to the law and was against the overwhelming weight of the evidence and was such as to evince bias and prejudice against the defendant on the part of the jury.

The indictment charged that appellant, on the 26 day of February, A.D., 1977 did then and there unlawfully, feloniously and burglariously break and enter the dwelling house of Carnell Perry there situated, with intent the goods and chattels of the said Carnell Perry in the said dwelling house then and there being, then and there unlawfully, feloniously and burglariously attempted to take, steal and carry away; and various items located therein, but was intercepted and failed therein. .

The evidence practically was undisputed. At about 3:45 A.M. on February 26, 1977, the Jackson Police Department responded to a complaint about a prowler by the night desk clerk of the Alamo Plaza Motel. Two officers proceeded to the motel and while inspecting the premises noticed a window raised at the rear of Room 216. They then noticed a person “crawling backward out of the window.” He was arrested and on his person the officers found $73 in cash. The screen to the window was lying on the ground next to the building. The officers found two occupants in the room — a man and a woman. The woman advised them at that time that she and the man had gotten together at a local night club, such acquaintance resulting in the two of them going to the Alamo Plaza Motel, at about 2:30 A.M. She testified that she paid for the room in advance and that they had been in the room for about an hour when the officers arrested appellant. She also stated that neither she nor her male friend had become aware of the entrance by appellant to the room. The record shows that the police officers were not advised at that time of any missing money but were advised by the woman the next morning that she was missing $60 of her own money and that she had been informed by her nocturnal companion that he too was missing some money — approximately $70. No explanation was given as to what happened with the difference between these combined losses and that discovered on appellant. Of course, this unexplained activity on someone’s part is immaterial to the decision of the case.

There are ten different crimes under the general heading of “burglary” in the crimes against property section of Mississippi Code Annotated (1972). Appellant was indicted under section 97-17-19, which reads as follows:

Every person who shall be convicted of breaking and entering any dwelling house, in the day or night, with intent to commit a crime, shall be guilty of burglary, and be imprisoned in the penitentiary not more than ten years.

We need to determine whether or not the facts as related above made the motel room the “dwelling house” of Carnell Perry at the time in question. If it was not, the motion of appellant at the conclusion of the evidence should have been granted due to a fatal variance between the charges in the indictment and the proof.

Code section 97-17-31, styled “Burglary —dwelling house defined,” reads as follows:

Every building joined to, immediately connected with, or being part of the dwelling house, shall be deemed the dwelling house.

We therefore see that the Legislature in this section, passed in 1848, did not see fit to extend the term “dwelling house” beyond the normal understanding of the meaning of that term.

In 13 Am.Jur., Burglary section 3 (1964), we find the following:

A dwelling house has been variously defined as the apartment, room in a hotel, building or cluster of buildings in which a man with his family resides, or any permanent building in which a man may dwell and lie. (emphasis added)

In 85 A.L.R. 428 (1933), we find the following:

At common law, burglary was considered to be an offense against habitation rather than against property. . . . what was sought to be protected was the peace of mind and security of the residents, rather than the property.

In the case of Watson v. State, 254 Miss. 82, 179 So.2d 826 (1965), this Court was confronted with deciding whether or not a residence “nearing completion” was the dwelling house under the statute. The Court, in reversing the appellant’s conviction, stated:

The essence of the distinction made by the Court in the cited cases between burglary of a dwelling and burglary of a building not a dwelling is that in the former the building must then be a place of human abode. If a dwelling is actually occupied by a human being at the time of the burglary, that crime is covered by section 2036 [now section 97-17-21]. If the dwelling is not so occupied when the crime is committed, then the burglary is a violation of section 2038 [now section 97-17-19], If the building is not a place where people reside, section 2043 [now section 97-17-33] applies. (Emphasis added).

In Watson, the Court discussed the prior cases of Woods v. State, 186 Miss. 463, 191 So. 283 (1939), and Haynes v. State, 180 Miss. 291, 177 So. 360 (1937).

Code section 97-17-33, styled “Burglary —breaking and entering building other than dwelling house.” reads as follows:

Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, ship, steamboat, flatboat, railroad car, automobile, truck or trailer in which any goods, merchandise, or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years. (Emphasis added).

We have researched the burglary statutes of other states and find that all read differently. We conclude that the Legislature did not intend for the motel room in question to be Carnell Perry’s dwelling house at the time of the alleged burglary. To hold otherwise would open the term to many extremes of imaginary circumstances. Would not the room have been the unknown man’s dwelling house even though he did not actually hand the money to the room clerk? He dwelt there as much as she. If a couple borrowed their neighbor’s pickup with a “sleeper” covering the truck body (or a wagon in 1848 when the law was passed) and went fishing overnight, they would be “dwellers” the same as those now before us. We could go on and on and relate situations bordering on the ridiculous if this selection of a burglary statute for indictment should be affirmed. As herein-before stated, there are other statutes to cover any situation. It may be that this error was the result of the modern era of using “forms” for almost everything.

In our opinion, it was intended for Code section 97-17-33 to apply under the circumstances now before us. We hold that the term “dwelling house” is, as the term implies, a place where people dwell or reside. In the event there is permanent dwelling of a person or his family in a hotel or motel, that would be his dwelling house. The intention of the residents is the material consideration.

We therefore conclude that there was a fatal variance between the indictment and the proof and appellant’s motion for a directed verdict should have been granted. The cause is reversed and appellant is ordered to be held under the same bail bond as set by the lower court.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, LEE and COFER, JJ., concur.

ROBERTSON, P. J., and BROOM, J., dissent.

SMITH, Presiding Justice,

specially concurring:

With some doubt I concur in the result reached by the majority. I do this only because of the peculiar facts of the case which show that the room was rented only for the purposes of a casual assignation. Obviously, cases dealing with questions of domicile or residence for jurisdictional purposes, homestead or voting rights have no relevancy whatever to the question here. The old case which would limit “dwelling” to the permanent abode to which an occupant, when absent, always expects to return, obviously should not be accorded any weight, (even if it should be considered that it continues to have any validity at all) in considering the question of what is a “dwelling” in a case where burglary is charged. I do not commit myself to the idea that a hotel room, apartment, or trailer, may not be a dwelling within the contemplation of the burglary statutes.

PATTERSON, C. J., joins in this opinion.


text:
    Carrie McNAIR v. Earl GUESS, Sheriff of Copiah County.
    No. 50755.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    Alison Steiner, Suzanne Griggins, Men-denhall, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

Before SMITH, P. J., WALKER and BROOM, JJ., and RUFUS H. BROOME, Commissioner.

REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, LEE, BOWLING and COFER, JJ., concur.


text:
    J. C. OLIVER and Jona Mae Oliver v. Lawrence PEARSON and Johnny Leggette.
    No. 50758.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    John Emmett Ellis, Jr., Winona, for appellants.
    John M. Sumner, Winona, for appellees.
   Appeal from Circuit Court, Montgomery County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, C. J., SUGG and BOWLING, JJ., and DARWIN M. MAPLES, Commissioner.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and COFER, JJ., concur.


text:
    Harold Leo RUSSELL, Sr. v. Gracie Cochran RUSSELL.
    No. 50778.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    Barnett, Montgomery, McClintock & Cunningham, Jackson, Dannye L. Hunter, Forest, for appellant.
    Tom S. Lee, O. B. Triplett, Jr., Forest, for appellee.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

Before PATTERSON, C. J., SUGG and BOWLING, JJ., and FRED P. WRIGHT, Commissioner.

AFFIRMED.

LEE, J., took no part.


text:
    Kenneth McMILLAN v. Erle JOHNSTON and Scott County Times, Inc.
    No. 50799.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    Paul Sisk, Jr., Jackson, for appellant.
    O. B. Triplett, Jr., Forest, for appellees.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.

LEE, J., took no part.


text:
    Joseph WRIGHT v. STATE of Mississippi.
    No. 50801.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    Upshaw, Schissel, Dorizas & Ladner, Luke J. Schissel, Greenwood, for appellant.
    A. F. Summer, Atty. Gen., by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

Before ROBERTSON, P. J., and LEE and COFER, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.


text:
    Hubert Lorman PEVEY, Jr. v. STATE of Mississippi.
    No. 50686.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    Levi, Denham & Russell, Rhett R. Russell, Ocean Springs, Alben N. Hopkins, Gulfport, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; J. Ruble Griffin, Judge.

Before SMITH, P. J., and WALKER and BROOM, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, LEE, BOWLING and COFER, JJ., concur.


text:
    Wilson Louis DAVIS v. STATE of Mississippi.
    No. 50825.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    John L. Hatcher, Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

Before PATTERSON, C. J., and LEE and BOWLING, JJ.

AFFIRMED.