author: GILLESPIE, Chief Justice.

text:
    Joe H. TALLY, Superintendent of Education of Smith County, et al. v. Watt CARTER, State Land Commissioner, et al.
    No. 48262.
    Supreme Court of Mississippi.
    Sept. 9, 1975.
    Rehearing Denied Oct. 6, 1975.
    Larry E. Clark, Taylorsville, John B. Clark, Daniel, Coker, Horton, Bell & Dukes, Jackson, for appellants.
    Corey & Corey, Meridian, for appellees.
    Before GILLESPIE, ROBERTSON and BROOM, JJ.
   GILLESPIE, Chief Justice.

This case concerns the attempted reclassification by the State Land Commissioner of 16th section lands in Smith County from “forest lands” to “other lands” within the meaning- of Mississippi Code Annotated section 29-3-39 (1972). Under the proceedings in chancery court, in accordance with the statutes hereinafter discussed, the chancery court confirmed a reclassification. Joe H. Tally, Superintendent of Education of Smith County, and other objectors to the reclassification, appealed to this Court.

Chapter 303, Laws of 1958, was enacted to improve the management of 16th section lands. The provisions of this Act, insofar as the classification and reclassification and the purposes thereof are concerned, are codified as Mississippi Code Annotated sections 29-3-31 et seq. (1972).

Section 29-3-31 provides that it is the duty of the State Land Commissioner, “using the services of all appropriate public agencies,” to survey and classify all 16th section lands reserved for the support of township schools lying outside a municipality into two categories: (1) forest lands, and (2) other lands. This section provides that “The classification shall be determined according to the suitability of such lands to produce a maximum of revenue by proper utilization.”

Section 29-3-33 provides that all lands, at least ninety percent of the total area of which is forest or waste lands, or which it is ascertained will produce a maximum of revenue by utilization to produce timber or other forest products, shall be classified as forest lands.

Section 29-3-35 authorizes the State Land Commissioner to supervise and direct the classification of all 16th section lands and to request the services of any public agency within the state, which is equipped and qualified to assist in such classification, and makes it the duty of such agency when so requested to assist the Land Commissioner in making such classification.

Section 29-3-37 provides that at any time when any such lands have been classified a classification report shall be compiled by the Land Commissioner and filed with the superintendent of education of the county in which such land is situated. The county board of supervisors is then required to immediately cause notice to be given of the completion of such classification and all parties in interest have a right to object to the classification as made. If no objections are made in writing and filed with the chancery clerk within the time allowed, “the classification as to such parcel or parcels of land shall be final.” If objections are filed, the matter shall be heard by the chancery court and the court shall either confirm or modify the classification as circumstances shall demand.

Section 29-3-39 provides as follows:

It shall be the duty of the county superintendent of education to survey periodically the classification of all sixteenth section land under his jurisdiction and to recommend to the state land commissioner such changes in the classification of said land as he may deem advisable because of changes of conditions. From time to time the state land commissioner shall institute proceedings to reclassify any sixteenth section lands which he may deem advisable, and, when any land is so reclassified, the state land commissioner shall file a report thereof with the county superintendent of education and notice thereof shall be given in the same manner provided in section 29-3-37 with reference to the original classification. In all litigation which may result from the classification or reclassification of lands by the land commissioner under sections 29-3-31 to 29-3-39, said commissioner shall be represented by the attorney general, who shall have control of the litigation, but it shall be the duty of the various county boards of supervisors to furnish local legal assistance when requested so to do by the attorney general.

Section 29-3-41 provides that lands classified as forest lands shall not thereafter be leased, and if such lands so classified as forest lands are under lease, such lands shall not be re-leased when the lease expires. Subsequent sections provide for the management of the forest lands by the State Forestry Commission under appropriate agreements with the board of supervisors. It is noted that the responsibility for the general supervision, management and control of 16th section lands is not specifically fixed by statute solely in any particular public body or officer. The statutes are conflicting and ambiguous. The board of supervisors, the county superintendent of education, and the State Land Commissioner all have authority and responsibility. In this respect section 29-3-57 states that generally it shall be the duty of the county superintendent of education to supervise all 16th section lands within his jurisdiction.

The case now before the Court involves Section 16, Township 4 N, Range 6 E in Smith County, 367 acres of which were classified as forest lands by the State Land Commissioner in 1966. A comprehensive report of the classification was prepared by the State Land Commissioner and filed with the County Superintendent of Education. Notice was given in accordance with section 29-3-37. No objections were filed to the classification and it was confirmed by the chancery court.

The reclassification involved in this suit was initiated by a group of lessees who held unexpired leases on certain portions of the lands which were classified in 1966 as forest lands. On February 22, 1972, these lessees went to the office of the State Land Commissioner and requested changes in the classification from forest lands to other lands. No sworn testimony was heard but the Land Commissioner complied with their request. No report was filed with the County Superintendent of Education as required by section 29-3-39. Nor did the State Land Commissioner request any assistance in such reclassification from the Forestry Commission or any other state agency. He attempted to comply with the provisions of section 29-3-39 by writing a letter to the County Superintendent of Education advising him that certain of the lessees holding leases on the lands had met with him and requested reclassification and he had reclassified the lands as requested. The board of supervisors did not immediately cause notice to be given of such reclassification as required by sections 29-3-39 and 29-3-37, but such notice was given approximately eighteen months later. Upon the notice being given, Joe H. Tally, Superintendent of Education of Smith County, and his minor children filed objections to the reclassification. These objections were answered by the various leaseholders, the appellees, and the issues thus made up were tried, resulting in a decree confirming the reclassification from “forest lands” to “other lands.”

This appeal raises for the first time several questions next to be stated and answered.

1. The superintendent of education (superintendent) contends that the chancery court erred in overruling superintendent’s motion to strike the answers to the objections, which answers were filed by the various lessees of the lands which had been reclassified by the State Land Commissioner to “other lands.” There is no merit in this contention. The notice provisions of the statute, sections 29-3-39 and 29-3-37, provide that “a copy of such notice shall be mailed by the county superintendent of education to each lessee of any part of such lands.” If the lessees are entitled to notice, they are entitled to be heard and whether the answer to the objections was a proper designation of their pleading is immaterial since the Court looks to the substance rather than the form. The lessees are interested parties because under section 29-3-63, a lessee, upon expiration of his lease, has the option to release such lands. The court did not err in overruling superintendent’s motion to strike lessees’ answer to the objections.

2. Superintendent contends that the county superintendent of education is the only officer who can originate a. reclassification of lands under section 29-3-39. This section, although ambiguous, makes it the duty of the superintendent of education to periodically survey the classification of all 16th section lands under his jurisdiction and make recommendations to the State Land Commissioner of such changes as he deems advisable. The next sentence authorizes the Land Commissioner to institute proceedings for the reclassification. Code sections 29-3-31 through 29-3-39, when read together, contemplate that the Land Commissioner shall use “the services of all appropriate agencies,” in the original classification and any reclassification, and as to forest lands, the appropriate agency is obviously the State Forestry Commission. We hold that the State Land Commissioner has the authority to initiate reclassification proceedings.

3. The sufficiency of the procedure followed by the State Land Commissioner is questioned. The statute does not provide for any notice to be given by the State Land Commissioner before lands are reclassified under section 29-3-39. This Court will not undertake to promulgate rules for the State Land Commissioner in respect to notice and hearing of reclassification proceedings. This case must be reversed for the reasons hereinafter stated, which make it unnecessary for the Court to reach this constitutional question. Undoubtedly, the Land Commissioner has by this time, or will within due course, provide for an orderly administrative procedure in such reclassification proceedings which will meet the minimum requirements of due process.

4. The final and decisive question is whether the chancery court erred in confirming the reclassification of the lands in question. This requires a study of the statute to determine its purposes and the scope of the chancery court’s function in respect to the reclassification of lands under Code section 29-3-39, and application of the statutes to the facts of this case.

It is appropriate for the Court- to again state that the 16th section lands in question are held in trust by the State of Mississippi for school purposes. These lands were ceded to the United States by the State of Georgia in 1802 for the purpose of forming a state when the territory reached a population of 60,000, with each 16th section of every township appropriated for school purposes. After the area in question was surveyed and the admission of Mississippi as a State, the title and control of these sections vested in the State in trust for school purposes. Jones v. Madison County, 72 Miss. 777 (1895).

Chapter 303, Mississippi Laws of 1958, is a legislative recognition of the need for management of the timber resources on 16th section lands. In State ex rel. Patterson v. Buffalo Wood, Inc., 204 So.2d 853 (Miss.1967), this Court held that the board of supervisors was mandatorily required to enter into agreements with the State Forestry Commission relative to the management of forest lands and the regulation of the sale of timber from such lands. Code section 29-3-31 providing for 16th section lands to be classified into two categories, (1) forest lands, (2) other lands, provides that “the classification shall be determined according to the suitability of such lands to produce a maximum of revenue by proper utilization.” This is the key phrase in this Act, and provides the frame of reference for the other sections of the 1958 Act, including Code section 29-3-39 providing for the reclassification of such lands. The latter section provides that the county superintendent of education shall recommend to the State Land Commissioner such change in the classification of said land as he may deem advisable “because of changes in conditions.” The same section provides that the State Land Commissioner shall institute proceedings to reclassify any 16th section lands which “he may deem advisable.”

Reading the several sections of the Act together, it is clear that any changes of conditions which would justify a reclassification must be changes that would require a reclassification to a more suitable use in order to produce a maximum of revenue. In short, the only standard contained in the Act of 1958, and the only one permissible because of the trust attached to these lands, is that such lands can be reclassified only when it is necessary to do so in order to produce a maximum of revenue.

The judicial review by the chancery court of the action of the Land Commissioner in reclassifying 16th section lands is limited to a determination of whether or not the reclassification is required in order to produce a maximum of revenue. The burden of proof in this respect is on the proponent of reclassification.

The proof on behalf of the superintendent included the testimony of a management forester of the Mississippi Forestry Commission, who prepared a management plan for the lands in question. It showed that about 210 acres out of the 640 contained in the 16th section could be considered as manageable forest lands, the majority of which was being grazed by cattle. The report showed that 210 acres were well suited for growing pine timber. The witness found that if these lands were planted in pine trees, a 25-year-old crop would produce $8.84 per acre, and a 35-year-old crop would produce twice that amount.

All of the lands in question are presently under lease to the several lessees who were the successful litigants in the trial court, all of whom have applied for renewals of their leases which will soon expire. The record does not show what the lands would be leased for if the present lessees are granted their applications for 99-year leases. The proof shows that the board of supervisors customarily lease such lands for twenty cents per acre per year, with a few leases bringing forty cents per acre. The proof did not justify a finding, nor did the chancellor specifically find, that there were changes in conditions that would require a reclassification in order for the lands to produce a maximum of revenue for school purposes. The proof being insufficient to justify reclassification, the decree of the chancery court is reversed and the proceedings dismissed.

Reversed and dismissed.

RODGERS, P. J, and PATTERSON, INZER, SMITH, SUGG and WALKER, JJ-, concur.


source: Caselaw Access Project

author: INZER, Justice.

license: Public Domain

text:
    Marvin E. NELSON, d/b/a Blue Ribbon Tire Service v. PHOENIX OF HARTFORD INSURANCE COMPANIES and Stewart-Sneed-Hewes, Inc.
    No. 48274.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Terrell Simpson, Poplarville, Edward H. Stevens, Picayune, for appellant.
    Mize, Thompson & Blass, Bryant & Sten-nis, Gulfport, Aultman, Pope, Aultman, Van Slyke & Tyner, Hattiesburg, for ap-pellees.
    Before PATTERSON, INZER and SUGG, JJ.
   INZER, Justice.

Plaintiff, Marvin Nelson, doing business as Blue Ribbon Tire Service, appeals from a judgment of the Circuit Court of Pearl River County dismissing his suit on an insurance contract against defendant Phoenix of Hartford and defendant Stewart-Sneed-Hewes, Inc., its agent. The jury returned a verdict in favor of defendants after being instructed if they found that the policy cancellation notice had been mailed to the plaintiff, then they must find in favor of the defendants.

Plaintiff’s business, Blue Ribbon Tire Service, located in Picayune, was completely destroyed by Hurricane Camille in August 1969. Prior to that time, plaintiff had been issued an insurance policy by Stewart-Sneed-Hewes, Inc. on behalf of Phoenix of Hartford Insurance Companies insuring the contents of the building where his business was located. The premium was paid on the policy for the period from March 11, 1969, to March 11, 1970. After his business was destroyed, plaintiff went to the office of the agent and informed it of his loss. At that time he was informed that his policy had been cancelled on July 15, 1969, and that notice of such cancellation had been mailed to him. Plaintiff told the agent that he had not received any notice of the cancellation. The agent told plaintiff that it would submit the matter to the insurance company. The company denied liability, and Nelson brought this suit.

Plaintiff testified that he had never received any notice that his policy had been cancelled. He further testified that he checked his mailbox regularly from May 1969 until after the hurricane and that he never received any notice that his policy had been cancelled.

Mrs. Cecil Price, an employee of the agency, testified that she remembered typing the notice of cancellation. In connection with her testimony, a copy of the notice was introduced in evidence, together with an attached certificate of J. 0. Moore, a postal employee, stating that the post office had received from Stewart-Sneed-Hewes, Inc. of Gulfport, Mississippi, a piece of ordinary mail addressed to Marvin E. Nelson, d/b/a Blue Ribbon Tire Service, P. O. Box 1004, Picayune, Mississippi.

Mr. Sessions Hootsell, vice-president of the agency, testified that plaintiff owed the agency on account for another insurance policy that had been cancelled for failure of plaintiff to pay the premium, that the agency notified plaintiff by mail that if he did not pay the account, his insurance on his business would be cancelled. The account was not paid and at Hootsell’s direction the notice of cancellation was mailed and the policy was cancelled on July 15, 1969. Plaintiff was given credit on his account of unearned premium. Hootsell said that after this was done, plaintiff still owed the agency a balance, which they later marked off as a bad debt.

The principal question to be decided on appeal is whether the granting of the following instruction was reversible error:

The court instructs the jury for the defendant, Phoenix of Hartford Insurance Companies, that the mailing of notice by United States mail, postage fully prepaid, constitutes delivery of the same to the addressee.

A similar instruction was granted at the request of Stewart-Sneed-Hewes, Inc.

The policy contained the following provision relative to cancellation:

This policy shall be cancelled at any time at the request of the insured, in which case this company shall, upon demand and surrender of this policy, refund the excess of paid premium above the customary short rates for the expired time. This policy may be cancelled at any time by this Company by giving to the insured a five days’ written notice of cancellation with or without tender of the excess of paid premium above the pro rata premium for the expired time, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand. (Emphasis added)

Plaintiff contends that under the foregoing provisions that the actual receipt of the notice is a condition precedent to the cancellation of the policy by the insurer and that a letter containing notice of cancellation which is mailed by the insurer, but not received by the insured, is not effective as a cancellation. Consequently, plaintiff argues that it was error for the court to instruct the jury that if it found that the notice was mailed, that it must find for the defendants.

Citing and relying upon Employers Mutual Casualty Co. v. Nosser, 250 Miss. 542, 164 So.2d 426 (1964), defendants contend that the cancellation was effective upon proof of mailing of the notice of cancellation. This Court did hold in Nosser that proof of mailing of notice under the terms of that policy was sufficient proof of cancellation. While plaintiff questions the correctness of the Nosser decision, we need not pursue that question here for the reason that Nosser can readily be distinguished and is not controlling here. The pertinent part of the cancellation clause of Nosser reads as follows :

This policy may be cancelled by the company by mailing to the insured named in Item I of the declarations at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the policy period. . . . Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. (250 Miss, at 550, 551, 164 So.2d at 429).

We held that under the express terms of this insurance contract, all that was required was the proof of the mailing and that proof of actual delivery was not necessary, even though the insured denied ever receiving the notice. However, the policy we are dealing with calls for the “giving” of notice. Under this type of cancellation, the authorities seem to all hold that the actual receipt of the notice by the insured is a condition precedent to the cancellation. The writer of the annotation in 64 A.L.R.2d 996, 997 § 12, states the rule as follows:

Where the policy provides that it may be canceled by giving notice to the insured of a specified number of days— usually five^ — the universally recognized rule is that the actual receipt by the insured of such notice is a condition precedent to a cancellation of the policy by the insurer. Consequently, a letter containing a notice of, cancellation which is mailed by the insurer but not received by the insured is ineffective as a cancellation.

A number of cases from other jurisdictions are cited supporting this rule.

43 Am.Jur.2d Insurance § 408, states the rule as follows:

Where the cancellation provision is ambiguous, it will generally be construed as requiring the actual receipt of the notice by the insured, in view of the fact that the requirement of actual receipt is the interpretation more favorable to the insured. Where the policy provision dealing with notice of cancellation simply requires a notice to the insured without stipulating any particular form or way in which such notice must be given, the actual receipt by the insured of such notice is universally recognized as a condition precedent to a cancellation of the policy by the insurer, and consequently a notice of cancellation contained in a letter which is mailed by the insurer but not received by the insured is ineffective as a cancellation. Another type of policy provision regarding notice of cancellation provides that the policy may be canceled by giving notice to the insured in a specified number of days. Under such a provision the actual receipt by the insured of such notice is a condition precedent to a cancellation of the policy by the insurer and the notice of cancellation mailed by the insurer but not received by the insured is consequently ineffective as a cancellation.

We hold that under the provisions of the policy in this case, it was error for the court to instruct the jury that if it found that a policy cancellation notice had been mailed to the plaintiff, then they must find in favor of the defendant. In order for the cancellation of the policy to be effective it was necessary for the jury to find not only that notice of cancellation had been mailed, but that the plaintiff had received the same, and the jury should have been so instructed.

Appellant also contends that the court was in error in granting Instruction No. 7 requested by the insurance company. Apparently, this instruction was directed at the failure of the insured to file a proof of loss. When the insurance company denied liability for the loss and refused to pay it, it waived the necessity of the proof of loss. In any event the instruction as written was objectionable for other reasons. On retrial of this case, this instruction should not be given.

Plaintiff also alleges that he was prejudiced by the failure of the trial court to allow introduction into evidence of two photographs taken at the scene of the business one week after the hurricane. The photographs contained in the record on proffer of proof depicted total destruction of the building. Plaintiff contends that the introduction of these photographs was necessary because the condition of the building was highly relevant to the condition of the property contained therein. The trial court refused to allow the plaintiff to introduce the evidence after plaintiff testified that the photographs did not depict the scene exactly as it was immediately after the hurricane. The record reveals that the only changes made in the scene depicted were that the site had been cleaned up somewhat.

With regard to introduction of this type of evidence, the trial court has wide latitude and discretion. However, the mere fact that the photographs were taken at a time when conditions were somewhat changed does not render such photographs inadmissible so long as the changes are carefully pointed out to the jury. Gulf, Mobile and Ohio R. Co. v. Golden, 221 Miss. 253, 72 So.2d 446 (1954). In the instant case the photographs sought to be introduced showed the destruction of the building which occurred as a result of the hurricane and in that sense depicted the scene substantially as it was after the storm. The building in question was not covered by the policy, so the photographs were not offered as proof of damage or proof of loss of exactly what was lost in the storm, but only to show that the business was totally destroyed. While we cannot say that the trial court abused its discretion in not allowing the photographs into evidence, it does appear that upon proper explanation of the changes the court would be justified in allowing the introduction of the photographs in evidence.

For the reasons stated this case must be and is reversed and remanded for a new trial.

Reversed and remanded.

GILLESPIE, C. J., RODGERS, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


author: BROOM, Justice.

text:
    CITY OF JACKSON and City of Pearl v. PETITIONERS FOR INCORPORATION OF the CITY OF RICHLAND.
    No. 48644.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Bacon & Smith, Arthur F. Jernigan, Jr., Watkins & Eager, George R. Fair, John E. Stone, Jackson, O. B. Triplett, Jr., Forest, for appellants.
    McLaurin & Nicols, Brandon, for appel-lee.
    Before RODGERS, SUBB and BROOM, JJ.
   BROOM, Justice.

Incorporation of the City of Richland as a new municipality was decreed by the Rankin County Chancery Court on October 31, 1974. The cities of Pearl and Jackson (appellants) seek to reverse this decision.

The chief issues are:

1. Did the lower court err in decreeing the incorporation of Richland without requiring the inclusion therein of the entire area of Richland Sewer and Water District ?
2. Was the evidence sufficient to establish that the public convenience and necessity required incorporation?
3. Was the proposed incorporation of Richland reasonable ?

Over two-thirds of the qualified electors of an area of Rankin County signed the-petition to incorporate Richland. No resident or landowner protested. The subject area is approximately 6,000 acres, having a total population of 3,262 people. Beginning with the southern boundaries of the City of Pearl at the intersection of Highways 1-20 and U.S. 49, the area of Rich-land extends south on both sides of U.S. 49 for nearly six miles. Situated within the area are the communities of Richland and Plain, and part, but not all, of the existing Richland Sewer and Water District (which district favored the petition).

Testimony established that land values within the area varied from about $25,000 per acre to a minimum of about $2,000 per acre, depending upon tract sizes and other factors. About eighty businesses and twenty-nine industries (some being rather large) were shown to exist within the area. The area is experiencing tremendous growth and its projected population within fifteen years was said to be 10,000.

I.

Appellants argue that all of the existing Richland Sewer and Water District must be included in the subject area. They base their contention on Chapter 281, section 6 [1968] General Laws of Mississippi, 363-64, which provides that “none of the territory” of Richland Sewer and Water District shall be subject to “annexation” by a city “unless all of the territory of such district be so annexed . . ..”

We find no merit in this contention of the appellants. The 1968 law relied upon clearly deals with annexation only, and has no express application to instances of incorporation. Hamilton v. Incorporation of Petal, 291 So.2d 190 (Miss.1974). In Hamilton the appellants, contesting the incorporation of Petal, suggested that the existence of the East Forest Utility District (authorized by local and private legislation with language almost identical to that in the case at bar) required that the proposed municipality conform to its (the Utility District’s) already established boundaries and, in effect, deprived the chancellor of his discretion to modify or decrease the size of the proposed area of incorporation. This Court noted the fundamental difference in the terms “annexation” and “incorporation.”

II.

Next the appellants contend that the chancellor erred in finding that the public convenience and necessity required incorporation of Richland. They say that there was no affirmative proof offered by the appellees to establish public convenience and necessity.

The criterion for determining public necessity, as stated in Hamilton, supra, is a substantial or obvious need disclosed by relevant circumstances. In Hamilton some of the relevant circumstances referred to were: a dramatic increase in population over the past ten years; the presence of a large school facility; the presence of churches and civic clubs; and 150 or more small businesses and manufacturing plants. The court, taking these circumstances into account, said:

The presently disclosed relevant circumstances, some of which were mentioned above, are more than sufficient to establish public necessity for incorporation, particularly when thought is directed to the present need for police and fire protection, public health and education, in a burgeoning area of our society. (291 So.2d at 192).

Applied to the facts revealed in the record of the case at bar, it would appear that this Court would not be justified in holding that the chancellor was manifestly wrong in determining that the public convenience and necessity required the incorporation of Richland.

Appellants further contend that appellees introduced no “affirmative evidence” of public convenience and necessity. Proof in the record shows that the area was in need of street maintenance and lights, building codes, zoning ordinances, drainage, sewer service, garbage disposal, and police and fire protection. Mr. Townsend, an investigative and enforcement officer for the Mississippi State Board of Health, testified that there was a critical need for sanitary facilities. He further testified that funds for such facilities would be much more readily available to an incorporated municipality. This expert witness (appellees’) testified that an incorporated municipality would have first priority for funds and that the existing water and sewer district had been trying unsuccessfully to get financing for their project since 1968. Mr. Clyde Cook, another expert, testified for the appellees that the future growth and development of the area, unregulated by municipal zoning, was a potentially serious problem.

Although appellants’ testimony tended to negate the need to incorporate for public convenience and necessity, testimony adduced by the appellees was sufficient to permit the chancellor to find that it was required. Appellants’ brief attaches undue significance to the failure of appel-lees’ witnesses to use the phrase “public convenience and necessity.” The fact that none of the witnesses for appellees expressly used those words does not preclude the chancellor’s finding that the statutory requirement of public convenience and necessity had been satisfied.

III.

Appellants also argue that the chancellor erred in finding that the incorporation of Richland was reasonable. They assert that: No recognizable community exists; the size of the area of proposed incorporation is disproportionate to the population; the incorporation would be a deterrent to industrial development; and incorporation would have a detrimental effect on the neighboring municipalities.

Appellees’ witness, Clyde Cook, Professor of Urban and Regional Planning at the University of Mississippi, testified that the area, in general, contained a well-balanced community. Dr. Spell, a petitioner (and mayor designate) residing in the area, testified that several community meetings had been held in the course of considering the incorporation. The very existence of the petition with the required number of signatures indicates a certain amount of community awareness. School and church facilities are situated within the area. Based on these factors, we hold that the chancellor was justified in finding that there was in fact a community in existence.

Although the area of proposed incorporation is somewhat large for the number of residents, there was expert testimony to the effect that vacant land within the corporate boundaries was necessary for the future development of the area, and that the incorporation was reasonable. Mr. Cook stated that although he was not involved in the planning of the boundaries, they conform to the practices of good municipal planning and are the same as he himself would have chosen. The boundaries were decided upon by residents of the area at community meetings. In general, there seems to be a well-balanced pattern of land use in the area and incorporation would insure that there would be municipal control over the development of the remaining vacant property to the benefit of the community. The chancellor was justified in finding that the boundaries of the area to be incorporated were reasonable.

Expert testimony presented by appellees indicated that, given effective land use planning, the northern part of the proposed city would continue to develop industrially. Industrial development is a factor to be considered along with other factors in determining the reasonableness of incorporation, and the chancellor was not manifestly wrong in finding that it would not be hindered thereby.

Summarized, the totality of testimony indicated that the incorporation of Richland might restrict or hinder the expansion of either Jackson or Pearl where the boundaries of Richland were contiguous to the municipal boundaries of those cities. Although the effect of incorporation on neighboring communities is a factor to be considered in determining the reasonableness of incorporation, it is secondary to the welfare of the residents of the area to be incorporated. City of Meridian v. Town of Marion, 255 So.2d 906, 907 (Miss.1971). The chancellor was justified in determining that the benefit to be derived by the immediate incorporation of Richland outweighed the conjectural detriment to its neighboring communities.

It is noteworthy that neither Jackson nor Pearl has made any effort to annex the area in question, or furnish it with municipal services. Furthermore, Mississippi Code Annotated section 61-9-5 (1972) makes it impossible for Jackson to annex the area without the consent and approval of the Rankin County Board of Supervisors which has by resolution expressed its opposition to expansion of Jackson into the subject area. Absent any indication that the Board will change its attitude on the subject, this large and developing community shall not be deprived of its right to incorporate and be left in a status of limbo until some unforeseen time when Jackson or Pearl might annex it. To hold that the chancellor erred in decreeing the incorporation would deny the people of Richland a “reasonable opportunity of being able to solve the community problems in the foreseeable future.” In Re City of Pearl, 279 So.2d 590 (1973).

Although there was contradictory testimony regarding almost every aspect of the proposed incorporation, the chancellor resolved the contradictions in favor of the petitioners. His findings are supported by competent testimony and we cannot logically conclude that he was manifestly wrong in his determination. His decision was clearly within the rationale of our ear-Her decisions in the cases of Pearl, Petal and Marion, supra.

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON and WALKER, JJ., concur.


author: SUGG, Justice: RODGERS, Presiding Justice INZER, Justice

text:
    G. B. ANTLEY v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 47989.
    Supreme Court of Mississippi.
    Sept. 22, 1975.

      Adams & Odom, Meridian, for appellant.
    Williams, Gunn & Crenshaw, Robert D. Jones, Meridian, for appellee.
   ON MOTION TO CORRECT JUDGMENT AND MOTION TO RETAX COSTS

SUGG, Justice:

The Mississippi State Highway Commission filed a petition to condemn some land belonging to G. B. Antley in Lauderdale County. Antley appealed from a judgment awarding him $13,000 damages for the land condemned by the Highway Commission. The case was affirmed without opinion on April 7, 1975 and appeal costs were taxed against Antley. The Highway Commission filed a motion to correct the judgment to allow it five percent damages on the amount of the judgment. Antley answered, denied the right of the Highway Commission to recover damages, and filed a motion to retax appeal costs.

The question is, does the “due compensation” requirement of Article III, Section 17, Mississippi Constitution of 1890 and the Fifth Amendment to the U.S. Constitution prohibit taxing a landowner with appeal costs and damages when he appeals from a judgment of a special court of eminent domain and is not successful in having the award increased on appeal ?

Mississippi Code Annotated section 11-27-29 (1972) provides that any party may appeal directly to the Supreme Court from a judgment entered by a special court of eminent domain and that all parties, except the State of Mississippi or any political subdivision, shall file a bond for costs conditioned to pay all costs that may be adjudged against him. Mississippi Code Annotated section 11-3-23 (1972) provides in part as follows:

In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect, the supreme court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. .

The constitutionality of the application of these statutes to a landowner in eminent domain cases is a question of first impression in Mississippi. We note a diversity of opinion in cases from other jurisdictions, but the better reasoned cases permit taxing appeal costs against a landowner when the award is not increased on appeal.

The reason for taxing appeal costs against a landowner who appeals unsuccessfully is set forth in Kelly v. Oklahoma Turnpike Authority, 269 P.2d 359 (Okl.1954), in the following language:

As pointed out in the Jarvis case, supra, there are two lines of authority respecting this question. One line of authority holds that upon appeal no costs may be assessed against the owner, without regard to which party took the appeal or to the eventual outcome thereof. See Lewis on Eminent Domain, Sec. 559; City of Oakland v. Pacific Coast Lumber & Mill Co., 172 Cal. 332, 156 P. 468, Ann.Cas.1917E, 259. This rule is based upon the principle that an appeal constitutes merely another step in condemnation proceedings by which it is sought to establish the owner’s compensation, so that no part of the costs may be assessed against such owner, on appeal by the condemnor.
The other line of authority, which announces what we conceive to be the better rule, is to the effect that condemnation proceedings end at the point where an award has been determined by the “tribunal established for that purpose.” Thereafter an appeal constitutes a separate proceeding, so that allowance of costs on appeal does not violate constituí tional provisions requiring just compensation to landowners whose property is taken by eminent domain. Music v. Big Sandy, etc., R. Co., 163 Ky. 628, 174 S. W. 44, Ann.Cas.1916E, 689: Moffat v. City and County of Denver, 57 Colo. 473, 143 P. 577. (269 P.2d at 364, 365).

In Moffat v. Denver, 57 Colo. 473, 143 P. 577 (1914), the Colorado Supreme Court reached the same conclusion, and said:

By the decree of the trial court it was provided that petitioner pay the costs up to the time of and including the filing of the report of the commissioners, and that plaintiffs in error pay the costs incurred by them subsequent to the filing of such report. With respect to costs the statute (section 6598, Rev.St.1908) provides:
“The costs of the proceedings, up to and including the filing the report of the commissioners, shall be paid by the city, and as to any costs caused by subsequent litigation, the costs shall be paid by the losing party.”
Counsel for plaintiffs in error contend, that this provision is unconstitutional, for the reason that requiring a respondent in condemnation proceedings to pay any part of the costs is an infringement of his constitutional right to full and just compensation for taking and damaging his land. As applicable to this case we think not. If either party is dissatisfied with the award of the commissioners, objections thereto may be filed. If this course is pursued a new issue, so to speak, is presented, namely, whether the award should stand, and there can be no valid objection to taxing the costs in such proceeding to the losing party, although he be the respondent. He takes the chances, when objections are interposed to the report if he contests them, of having them sustained, wholly or in part, and when he does so and is rightfully defeated, he ought to pay the reasonable costs entailed by such proceedings. This is a different proposition from taxing him with any part of the costs down to the time the commissioners make their report, as that would reduce the amount of compensation to which he is entitled before his property can be taken or damaged. There is some conflict in the decisions on the question presented, but we think the weight of authority upholds the statutory provisions under consideration, and that the taxation of costs in the particulars involved is controlled by the statute on the subject. (57 Colo, at 483-484, 143 P. at 580-581).

In Kitsap County v. Melker, 52 Wash. 49, 100 P. 150 (1909), appeal costs were taxed against an appealing landowner. The Court held that the condemning party-had performed its full duty toward the landowner with respect to costs when it bore the costs of the proceeding in the trial court, and concluded:

To hold otherwise would be to hold that an appeal is a necessity in all condemnation cases, and that any law providing a procedure which does not direct an appeal at the expense of the condemning party would be invalid .... (52 Wash, at 52, 100 P. at 151).

See also State v. Miller Home Development, Inc., 243 Minn. 1, 65 N.W.2d 900 (1954), 50 A.L.R.2d 1377 (1954); Music v. Big Sandy and Kentucky R. R., 163 Ky. 628, 174 S.W. 44 (1915); Broadway Coal Mining Co. v. Smith, 136 Ky. 725, 125 S. W. 157 (1910), 50 A.L.R.2d 1386 et seq.; 27 Am.Jur. §§ 473 & 475, pp. 399 et seq.

In addition, the text writer in 2 Lewis, Eminent Domain (3rd Ed. 1909), states:

When the compensation has once been ascertained by a competent tribunal, at the expense of the condemning party, the law has done all for the owner which the constitution requires. If the owner is given a right of appeal or review, it may be upon such terms as to costs as the legislature may deem just. ... (2 Lewis Eminent Domain § 812 (559) at 1436).
Where the owner is dissatisfied with the amount of damages awarded him in the first instance, and takes an appeal or other proceedings to have a re-assessment of the damages, it is usual to provide that he shall pay the costs of the appeal if he fails to secure an increase of damages, and such provisions are proper and valid. To exempt the owner from costs in such cases, the increase must be exclusive of interest. Of course if the owner secures more on appeal he is entitled to costs. ... (2 Lewis, Eminent Domain, § 815 (562) pp. 1438 and 1439).

In this case Antley’s damages for the property condemned by the Highway Commission were ascertained in the special court of eminent domain at the expense of the Highway Commission. At this point, the law had done all for Antley which the Constitution requires. He was then entitled to receive the just compensation for his property as fixed by the jury verdict without being diminished by the court costs necessary for the original determination of his award. Antley was not satisfied with the $13,000 judgment awarded him, and when he appealed he was in the same position, with reference to appeal costs, as any other litigant who appeals from a decree of a trial court. When he appealed without having the award increased, taxing him with appeal costs did not nullify the constitutional requirement of due compensation to landowners whose property is taken by eminent domain. We therefore hold that Mississippi Code Annotated section 11 — 27— 29 (1972) is constitutional.

For the same reasons, Antley should be assessed with the five percent damages prescribed by Mississippi Code Annotated section 11-3-23 (1972). The damages under this section constitute a condition of taking an appeal. Davis v. Wilkins, 127 Miss. 490, 90 So. 180 (1921). We have applied the five percent damages to an agency of the state and held in State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345 (1941), motion to correct judgment, 192 Miss. 595, 6 So.2d 468 (1942), as follows:

[W]hen an agency of the state is authorized by statute, without any qualification or restriction, to condemn under the general statutes relating to Eminent Domain, the agency has thereby the same rights and is subject to the same liabilities as private parties seeking to condemn for public use, and this would carry the five percent on affirmance, as well as costs and interest. (192 Miss, at 598, 6 So.2d at 470).

See also Pearl River Valley Supply District v. Brown, 254 Miss. 453, 181 So.2d 631 (1966) and Housing Authority of the City of Gulfport v. Barbee, 283 So.2d 591 (Miss.1973).

We have also assessed the five percent damages against a plaintiff who recovers a judgment and appeals without having the judgment increased. Pearce v. Ford Motor Co., 235 So.2d 281 (Miss.1970).

Antley stands before this Court as any other litigant. When he appealed he was faced with the possibility of being taxed with appeal costs and damages as a condition of his appeal. He is not entitled to an appeal free of the conditions imposed upon other appellants.

All of the Justices concur that Antley is liable for appeal costs, but Justices Rodgers, Inzer, Walker and Broom are of the opinion that he should not be assessed damages.

Motion of State Highway Commission to correct judgment sustained. Motion of Antley to retax costs denied.

GILLESPIE, C. J„ and PATTERSON, SMITH and ROBERTSON, JJ., concur.

RODGERS, P. J., and INZER, WALKER and BROOM, JJ., dissent.

RODGERS, Presiding Justice

(dissenting) :

I am constrained to disagree with my astute colleagues in the results reached by the majority opinion in this case. These are the facts: The Mississippi State Highway Commission filed a petition in a special court of eminent domain in Lauderdale County, Mississippi, to acquire certain property belonging to G. B. Antley, et al. The jury returned a verdict of thirteen thousand dollars ($13,000.00) in favor of the property owners. Proper legal interest was added to the judgment.

The property owner was not satisfied with the amount of the judgment, and has appealed to this Court. We affirmed the judgment of the trial court and assessed the cost of the appeal against the landowner/appellant. Thereafter, the Mississippi State Highway Commission filed a motion in the case asking this Court to assess five percent (5%) damages against the landowner because of the unnecessary appeal.

The landowner denied the right of the highway commission to statutory damages, and has filed a motion requesting this Court to reassess the Court cost of appeal so as to charge the highway commission with all cost of court arising as a result of taking the property of G. B. Antley, and others, appellants.

The highway commission cites Mississippi Code Annotated Section 11-3-23 (1972) as authority for its contention that the appellee Mississippi State Highway-Commission is entitled to damages against the landowner resulting from the landowner’s unsuccessful appeal.

The majority opinion points out that “We note a diversity of opinion in cases from other jurisdictions, but the better reasoned cases permit taxing appeal costs against a landowner when the award is not increased on appeal.” I disagree with the statement that “the better reasoned opinions permit taxing appeal cost to the landowner” under the constitutions of the various states, and the adverse reasoning can readily be seen from a casual reading of the annotations shown in 50 A.L.R.2d 1386-1436 (1956).

Section 2766, Mississippi Code 1942 Annotated (1956) permitted the landowner to appeal from the eminent domain court to the circuit court by posting a cost bond in the sum of three hundred dollars ($300.00). This section was amended by Ch. 363, § 1 [1966] Miss.Gen.Laws, at 664, and was repealed by Ch. 520, § 26 [1971] Miss.Gen. Laws, at 802. These sections repealed were replaced by Ch. 520, § 15 [1971] at 798, and are now recorded as Mississippi Code Annotated Section 11-27-29 (1972). It is therefore apparent that the Legislature intended that the cost of an unsuccessful appeal by a landowner should be borne by him although there still remains a question as to whether or not the act of the Legislature is constitutional under the reasoning of this Court in State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345 (1941), and Pearl River Valley Water Supply District v. Brown, 184 So.2d 407 (Miss.1966).

Even if we follow the minority view that the cost may be assessed against an appellant landowner [Annot., 50 A.L.R.2d 1386 (1956)], that is not the issue here. The issue before us now is whether or not the award of due compensation for property acquired by condemnation may be reduced by a penalty assessed against a landowner because he has unsuccessfully appealed to this Court.

In the case of State Highway Commission v. Mason, 192 Miss. 576, 4 So.2d 345, 6 So.2d 468 (1942), this Court had before it a case in which the highway department had used and damaged private property. A judgment was obtained in favor of the landowner and the cost was assessed against the highway commission, together with interest and damages on the amount of the judgment resulting from an appeal by the highway commission. On motion filed by the highway commission to correct judgment, this Court said, among other things:

“As to the allowance of the five percent upon the amount of the affirmed judgment, which the statute, § 3387, Code 1930, denominates as damages, that question is more difficult of solution. In Tigner v. McGehee, 60 Miss. 242, it was said that this allowance is intended to penalize appellant for appealing from a proper judgment or decree. In Meek v. Alexander, 137 Miss. 117, 102 So. 69, 70, it was said that it ‘is in the nature of a penalty, or a condition of appeal, and affords also the basis of remuneration of the expense to the successful party’; and in Canal Bank & Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127, the court held that the award is in the nature of compensation to the successful appellee for expenses incurred. In Davis v. Wilkins, 127 Miss. 490, 90 So. 180, it is said that the five percent damages constitute a condition of taking an appeal ; that it is optional with the government whether it will appeal when a litigant, and that when the government appeals it stands therein on the same terms as any other litigant.
In this difficulty we have decided to recur to the holding illustrated in Deneen v. Unverzagt, supra, that when an agency of the state is authorized by statute, without any qualification or restriction, to condemn under the general statutes relating to Eminent Domain, the agency has thereby the same rights and is subject to the same liabilities as private parties seeking to condemn for public use, and this would carry the five percent on affirmance, as well as costs and interests.” 192 Miss, at 598, 6 So.2d at 469-70.

We have repeatedly held that the 5% damage statute [now Mississippi Code Annotated § 11-3-23 (1972)] is a highly penal statute and must be strictly construed against the claim of a successful party on appeal. M. T. Reed Construction Co. v. Martin, 215 Miss. 478, 61 So.2d 300 (1953); Covington County v. Mississippi Road Supply Co., 59 So.2d 325 (Miss.1952); Moorhead Drainage District v. Pedigo, 210 Miss. 284, 49 So.2d 378 (1950); Firestone Tire & R. Co. v. Fried, 202 Miss. 385, 32 So.2d 454 (1947); Canal Bank & Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127 (1927).

Mississippi Code Annotated Section 11-3-23 (1972) does not contemplate nor is it applicable to a judgment for.a value of land to be acquired by the highway commission in a condemnation proceeding. The award to a landowner represents the amount due to the landowner for his land. The judgment in condemnation proceedings is not damages against the highway commission as was true in Mason, supra. The value of the land is fixed by the jury verdict, and to reduce it by five percent (5%) is to reduce the due compensation belonging to the landowner and is a taking of private property without due compensation.

In the case of Parker v. Claypool, 223 Miss. 213, 78 So.2d 124, 78 So.2d 884 (1955), we had the following to say on this subject:

“We are of the opinion that the judgment entered is erroneous in allowing the appellee, J. B. Claypool, the sum of $212.79 as statutory damages on the amount of $4,255.93 that he owes to the appellant, L. E. Parker. The action of the trial court in eliminating the $6,000 of the principal of the note sued on, together with the interest and attorney’s fee thereon was affirmed on appeal, and therefore there is no question but what the appellant is liable for the cost on this appeal; but we do not think that it was contemplated by Section 1971, Code of 1942, that an appellee is entitled to collect damages on what he owes to an appellant, and especially where the amount on which the five percent damages is claimed was not in controversy on the appeal to this Court. The appellant merely sought on his appeal to be adjudged entitled to the additional sum of $6,000, with interest and an attorney’s fee thereon, and when he lost on appeal in his effort to get this amount added to the judgment rendered by the trial court, he became liable for the cost on the appeal, but for nothing more.” 223 Miss, at 219-20, 78 So.2d at 885.

It is true that we have held that the landowner could recover from the highway commission the five percent (5%) damages allowed by Mississippi Code Annotated Section 11-3-23 (1972) in a condemnation proceeding. Pearl River Valley Water Supply District v. Brown, 254 Miss. 453, 181 So.2d 631 (1966). In these cases, however, the highway commission appealed and the landowner was entitled to additional compensation because of the extra expense of an appeal so as to prevent the reduction of the just compensation due him. Pearl River Valley Water Supply District v. Brown, 184 So.2d 407 (Miss.1966).

In the instant case, the highway commission has no right to reduce the amount it owes the landowner brought about by reason of additional expense to it in its effort to acquire the property of a citizen of the state.

We said in Mason, supra, that Mississippi Const. § 17 was self-executing:

“But, as we did in respect to the merits, we place our decision upon the ample foundation of the self-executing provisions of § 17, Const.1890, which ordains that ‘private property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law.’ And whatever diversity of opinion there may be in some jurisdictions, we align ourselves with those cases which hold, in support of the text 2 Lewis Eminent Domain, 3rd Ed. § 812, p. 1434, that as property cannot be taken or damaged without due compensation and as the amount of that compensation or for its damage must be ascertained, the duty of ascertaining the amount is necessarily cast upon the party seeking to condemn or who has damaged the property for public use, and that he or it should pay all the expenses which attach to the process; that there is not the full measure of due compensation required by the constitutional mandate if the owner is subjected to a diminution thereof by liability as to any part of the cost incurred in its ascertainment.” 192 Miss, at 597, 6 So.2d at 469.

We adopted the view in Mason of aligning “ourselves with those cases which hold in support of the text 2 Lewis Eminent Domain, 3rd Ed. § 812, p. 1434,” which is set out in 18 Am.Jur. Eminent Domain § 378, at 1020 (1938), as follows:

“In proceedings for the appropriation of land to the public use, the owners of the land are entitled to full compensation, without deduction for any part of the costs incurred in the ascertainment of the amount. These must be borne by the party seeking to take the property, in whatever court it institutes proceedings for that purpose. If, dissatisfied with the assessment, the condemner seeks to reduce the amount by an appeal to another tribunal, such appeal is but a continuation of his effort to have the compensation to be paid the owner for his property ascertained, and his costs on such appeal are in the same category as costs in the trial court. The usual provisions of statutes in regard to costs on appeals to the supreme court cannot be applied to cases of this kind, because to do so would deprive the owner of his constitutional right to full compensation for his land. This rule has in some jurisdictions been extended so as to provide that the compensation to be awarded a landowner in proceedings to acquire his property by the exercise of the right of eminent domain must include all necessary expenses incurred by him in the enforcement of his rights, which are taxable according to law. It must not be diminished by any costs reasonably incurred in condemnation proceedings, or in collecting the award, which are taxable in favor of the prevailing party in an action or proceeding to make his judicial remedy available.”

Still, in the majority opinion in the instant case, we changed to the minority opinions on the subject as set out in 2 Lewis, Eminent Domain § 815(562) at 1438 and 1439, which are in conflict with the opinions requiring full just compensation.

It is the considered opinion of several members of this Court that a penalty should not be assessed against the value of land sought to be condemned by a state agency. This is obvious that if the value of the land is small, it could very well be consumed by cost and damages, so that the condemning petitioner would be acquiring the property without payment of any compensation to the landowner.

The right to acquire property by eminent domain is not only the right of sovereignty, but is a tyrannical arbitrary power of force and its use must be carefully examined so as to insure the property owner of due process of law.

I would not allow the highway commission five percent (5%) compensation for taking the appellant’s property.

INZER, WALKER and BROOM, JJ., join this dissent.

INZER, Justice

(dissenting):

I am in full accord with the excellent dissent written by Justice Rodgers, and although I doubt that I can add anything of value to what he has written, the majority is so clearly wrong I am compelled to state my views.

The real question in this case is whether this Court has the constitutional power to reduce the award made to a landowner in an eminent domain case by assessing him with a five percent penalty for appealing from such an award. The answer is clear that it does not. The jury awarded the landowner $13,000 as due compensation for his land. A judgment was entered accordingly and the condemnor has not appealed from this judgment. Consequently, neither this Court nor the legislature has the constitutional power to reduce this judgment by any means or method. To do so deprives the landowner of due compensation which the self-executing provisions of Section 17, Mississippi Constitution 1890, requires to be paid to him before the land can be taken.

There is a vast distinction between requiring a landowner to pay the cost of court on appeal from an eminent domain court and reducing his award by assessing him with a five percent penalty. An appeal is not a matter of right, and the legislature has the power to require a landowner to make a bond to pay the cost of court on appeal, but it does not have the power or authority to authorize this Court to reduce the judgment of the eminent domain court by assessing him with a penalty for appealing. The payment of court costs does not accrue to the benefit of the con-demnor. It goes to the court to pay the necessary court fees. When the five percent penalty is assessed by this Court, the judgment rendered in the eminent domain court is reduced by this amount, and the condemnor gets the benefit of the reduction. Consequently, the landowner is denied due compensation for his land. It is elemental that when the jury has fixed the compensation due the landowner and the judgment is entered accordingly, in the absence of an appeal by the condemnor, the constitution prohibits this Court from reducing the award, although the landowner appeals without effect. The five percent damage or penalty statute cannot be constitutionally applied against a landowner who appeals from a judgment of an eminent domain court for the simple reason that to apply it reduces the judgment fixing due compensation for the property taken.

It is of interest to note that the majority does not cite any case from any jurisdiction where a penalty has been imposed against a landowner who appeals from an eminent domain judgment. The reason may be that there are no such cases reported. At least, I have been unable to find any and neither have I found any case from any court where the award of compensation in an eminent domain proceeding has been reduced on appeal in the absence of an appeal by the condemnor. If the majority’s decision stands in this case, this Court will have the dubious distinction of being the only Court in the United States that has, under the guise of assessing a penalty against the landowner for appealing, reduced the judgment on an eminent domain court thereby denying the landowner due compensation for his land. I do not care to share in this distinction.

I dissent.

WALKER and BROOM, JJ., join in this dissent.

      . Grand River Dam Authority v. Jarvis, 124 F.2d 914 (10th Cir. 1942).

      . “In case the judgment or decree of the court below be affirmed, or the appellant fail to prosecute his appeal to effect, the supreme court shall render judgment against the appellant for damages, at the rate of five per centum and costs, as follows : If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum. If the judgment or decree be for the possession of real or personal property, the damages shall be assessed on the value of the property. If the judgment or decree be for the dissolution of an injunction or other restraining process at law or in chancery, the damages shall be computed on the amount due the appellee which was enjoined or restrained. If the judgment or decree be for the dissolution of an injunction or other restraining process as to certain property, real or personal, or a certain interest in property, or be a judgment or decree for the sale of property, or some interest in it, to satisfy a sum out of the proceeds of sale, or to enforce or establish a lien or charge or claim upon or some interest in property, and the only matter complained of on the appeal is the decree as to some particular property or claim on it, the damages shall be computed on the value of the property or the interest in it, if the value of the property or interest in it be less than the judgment or decree against it; but if the value of the property or interest in it be greater than the amount of the judgment or decree against it, the damages shall be upon the amount of the judgment or decree.” Miss. Code Ann. § 11-3-23 (1972).

      . “Every party shall have the right to appeal directly to the supreme court from the judgment entered in the special court of eminent domain, whether tried in county court or circuit court, by giving notice within ten (10) days from the date of the judgment or final order entered by the court to the court reporter to transcribe the record as taken and by posting bond in the penal sum of three hundred dollars ($300.00), except that no bond shall be required of the state of Mississippi or any political subdivision thereof. Such bond shall be conditioned to pay all costs that may be adjudged against him, and said notice to the court reporter shall be given and the bond shall be posted as is otherwise required by law for appeals to the supreme court. If the judgment be in excess of the sum, if any, deposited, and the petitioner, other than the state of Mississippi or any political subdivision thereof, desires an appeal, he shall deposit a sum, or a good and sufficient surety bond with a surety company authorized to do business in the state of Mississippi acceptable to the clerk, equal to double the amount of the judgment, less the amount of the deposit, if any, which shall be held exclusively to secure all damages assessed against petitioner. In any case where the deposit exceeds the compensation to be paid the defendants as determined by the final judgment, the excess shall be returned to the petitioner. If the appeal is by the defendant, it shall not operate as a supersedeas, nor shall the right of the petitioner to enter in and upon the land and to appropriate the same to public use be delayed. If the appeal be by the state of Mississippi or any political subdivision thereof, no bond shall be required.” Miss.Code Ann. § 11-27-29 (1972).


author: WALKER, Justice.

text:
    Isaac BROWN, Jr. v. Dr. W. L. JAQUITH, Director of Mississippi State Mental Hospital.
    No. 48420.
    Supreme Court of Mississippi.
    Sept. 22, 1975.

      Barry H. Powell, David Seth Michaels, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Edwin A. Snyder, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and WALKER, JJ.
   WALKER, Justice.

Appellant Isaac Brown, Jr., an inmate at the Mississippi State Hospital at Whitfield, Mississippi, appeals from an order of the Circuit Court of Pike County, Mississippi, dismissing his petition for writ of habeas corpus. We reverse.

Appellant contends that his present status of commitment is unlawful and argues that an indefinite commitment to a state mental institution solely on account of incapacity to stand trial, in this case over nine years, violates the due process clause and the equal protection clause of the Fourteenth Amendment of the United States Constitution and Section Fourteen of the Mississippi Constitution.

The record reveals that Isaac Brown was indicted at the March 1965 Term of the Circuit Court of Pike County, Mississippi, on two charges of murder and four charges of assault and battery with intent to kill and murder. On defendant’s own motion suggesting insanity and requesting that he be examined to determine his mental condition and his ability to make a defense to the charge against him, the circuit court entered an order on April 8, 1965, that he be examined by the staff of the Mississippi State Hospital at Whitfield and that the officials of said hospital report their findings in writing back to the court. Brown was promptly transported to Whitfield in accordance with the order of the circuit court. Thirteen days later, the clinical director of the hospital notified the court that it was the opinion of the medical staff that appellant was mentally deranged, and appellant was given the diagnosis of schizophrenic reaction, paranoid type. It was also noted that this was a serious form of mental illness and that hospitalization and treatment for an indefinite period of time was indicated. Since that time, the appellant has remained in the hospital.

During the course of the habeas corpus hearing, Dr. W. L. Jaquith, Director of the Mississippi State Hospital, testified that there was a strong possibility that the appellant would never become competent to assist in his defense and that he had been incompetent during the entire period of his confinement at the hospital. He also testified that it was the unanimous opinion of the hospital staff that appellant was suffering from this mental illness at the time the crimes were committed in 1965. It is also noteworthy that Dr. Jaquith was of the opiniomthat appellant did not know the difference between right and wrong at the time the alleged offenses were committed.

Appellant’s primary argument is directed toward the nature of his commitment, criminal commitment as opposed to civil commitment, and he does not seriously contend, under the facts of the case that he should be released except as an alternative to not being civilly committed.

The appellant contends and the state agrees that the basic constitutional princi-pies of law applicable to the instant case are to be found in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). In that case Jackson was a mentally defective deaf mute with the mental level of a preschool child. He could not read, write or otherwise communicate except through limited sign language. In May, 1968, at age twenty-seven, he was charged in the Criminal Court of Marion County, Indiana, with separate robberies of two women. Upon Jackson’s plea of not guilty, the trial court set in motion the Indiana procedures for determining his competency to stand trial, and as the Indiana statute requires, a competency hearing was held at which petitioner was represented by counsel. The court received the examining doctors’ joint written report and oral testimony from them and a deaf school interpreter through whom they had attempted to communicate with petitioner. The report concluded that Jackson’s almost nonexistent communication skill, together with his lack of hearing and his mental deficiency, left him unable to understand the nature of the charges against him or to participate in his defense. On this evidence, the trial court found that Jackson lacked comprehension sufficient to make his defense and ordered him committed to the Indiana Department of Mental Health until such time as that department should certify to the court that “the defendant is sane.” (The court defined the term “sane”, in the context of the Indiana statute, to be synonymous with competence to stand trial). Petitioner’s counsel then filed a motion for a new trial, contending that there was no evidence that Jackson was “insane”, or that he would ever attain a status which the court might regard as “sane” in the sense of competency to stand trial. Counsel argued that Jackson’s commitment under these circumstances amounted to a “life sentence” without his ever having been convicted of a crime, and that commitment therefor deprived Jackson of his Fourteenth Amendment rights to due process and equal protection. The trial court denied the motion for a new trial. The Supreme Court of Indiana affirmed. (253 Ind. 487, 255 N.E.2d 515 (1970)). Certiorari was thereafter granted by the United States Supreme Court.

In an opinion by Justice Blackmun, the Court held that Jackson’s commitment (1) violated the equal protection clause because he was subjected to a more lenient commitment standard and a more stringent standard of release than those generally applicable to all others not charged with offenses, and (2) violated the due process clause because he was indefinitely committed solely on account of his incompetency to stand trial and without a substantial probability that he would ever be able to participate fully in a trial.

In regard to the equal protection clause of the Fourteenth Amendment, the Court, in Jackson, said:

we hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by § 22-1209 or § 22-1907 [civil commitment statutes], Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment. (406 U.S. at 730, 92 S.Ct. at 1854).

In discussing Jackson’s right to due process, the Court said:

due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.
We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. In light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial. (406 U.S. at 738-739, 92 S.Ct. at 1858).

The appellant Brown’s case is precisely on point with Jackson, supra. Brown stands charged with several criminal offenses, has been confined at the Mississippi State Hospital [Mental] for over nine years under a circuit court order on account of his mental incapacity to stand trial, and according to Dr. Jaquith, the Director of the hospital, Brown is not making any progress toward that goal and there is no substantial probability that he will attain the capacity to stand trial in the foreseeable future. Therefore, unless appropriate steps are initiated by the state at the next term of the Circuit Court of Pike County to have appellant committed to a state mental institution under the civil commitment statutes, he shall be released from custody.

In cases such as the above, an order of the circuit court reciting that the accused has been indicted for a criminal offense and that the court is of the opinion that he is suffering from such mental disease or disorder as to cause him to be incompetent to stand trial and that he should be referred to the chancery court to undergo civil commitment procedures [in accordance with Mississippi General Laws, chapter 492, sections 1 through 11 (effective date July 1, 1975)], shall be in lieu of the affidavit for commitment provided for in section 3 of the aforesaid Laws.

We would also point out that certification by the circuit court of an accused for civil commitment does not constitute dismissal of the criminal charges pending against him nor does it divest the circuit court of jurisdiction of an accused. The state may, in cases deemed proper by it, file with the chancery court and the institution to which the accused is committed a request, in writing, that when the medical authorities are of the opinion that the mental condition of the accused has improved to the extent that he is able to aid and assist in making a rational defense to the charges pending against him, the state should be notified. But, such request filed by the state shall not in any way prevent the medical authorities of the institution to which the accused is committed from exercising their judgment and discretion as to the type of treatment and the nature of confinement [or lack of confinement] which the accused’s condition, in their opinion, requires, just as they would exercise with respect to any other person with a like mental condition who is not under a criminal charge.

The appellant urges this Court to prescribe an arbitrary limit on the time that a person indicted for a crime, who has been found to be incompetent to stand trial, may be held to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future before he must be civilly committed.

In State ex rel. Matalik v. Schubert, 57 Wis.2d 315, 204 N.W.2d 13 (1973), that court held that six months after commitment was long enough to determine whether such a person as the petitioner would ever recover or would soon recover his competency to stand trial. The court further held that a reexamination of a defendant after the first six months was required and that if he were not competent to stand trial and had no likelihood of attaining such capacity [in the foreseeable future], or was making no progress toward that goal, the state either had to commence civil commitment proceedings or release him.

In State ex rel. Walker v. Jenkins, 203 S.E.2d 353 (W.Va.1974), the defendant was committed to the state hospital as he was incompetent to stand trial for breaking and entering. He was retarded and the state admitted that the case was controlled by Jackson. The court held that until the legislature spoke, a period in excess of six months for the purpose of causing the defendant to regain his competency is prima facie unreasonable so that the state must either civilly commit the defendant or discharge him. However, we do not have sufficient medical evidence before us in this case to prescribe such arbitrary limits.

The judgment of the lower court denying appellant’s petition for a writ of ha-beas corpus is reversed and the appellant shall be discharged from custody unless the state institutes civil commitment proceedings in chancery court no later than November 1, 1975.

Reversed and remanded with instructions.

GILLESPIE, C. J., RODGERS, P. J., and INZER, SMITH, SUGG and BROOM, JJ., concur.


author: SMITH, Justice.

text:
    Charles HOOKS v. Dr. W. L. JAQUITH, Director of Mississippi State Hospital, Whitfield, Mississippi.
    No. 48778.
    Supreme Court of Mississippi.
    Sept. 29, 1975.
    Rehearing Denied Oct. 13, 1975.
    David Seth Michaels, Barry H. Powell, Jackson, Charles H. Ramberg, Brandon, for appellant.

      A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   SMITH, Justice.

Charles Hooks, a mental patient at Mississippi State Hospital at Whitfield, petitioned the Chancery Court of Rankin County, sitting as a Special Habeas Corpus Court, alleging that he was unlawfully deprived of his liberty in that his “leave” from the hospital had been terminated without a “hearing.” The trial court denied relief and he appeals, equating the termination of his hospital leave with revocation of probation or parole in a criminal case.

There appears to be no contention that Hooks was not duly committed as a mental patient in civil proceedings nor that his present mental condition is such as to entitle him to be discharged as having regained his sanity.

The right to apply for the writ of habeas corpus and to a hearing in chancery court in cases where patients claim to be sane or to have been restored to sanity is specifically provided for by Mississippi Code Annotated section 41-21-15 (1972). However, as stated, no such claim is made here on behalf of Hooks.

Uncontradicted medical testimony is that Hooks is presently suffering from a mental condition described as schizophrenia, paranoid type and should be retained in the hospital for further treatment.

As part of the therapy employed in the treatment of certain mental patients, it is and has been for a long time, a hospital policy to grant them trial “leaves” in order (1) to allow the patient to be exposed to the stresses of everyday life and (2) to determine whether his condition has progressed to a point where he may be returned to, and take his place in, society. The granting of such leaves is a matter of considered medical judgment based entirely upon examination of the patient and evaluation of his mental condition by the medical experts. Not all these leaves are successful and a certain proportion return or are returned to the hospital for further treatment. In the other cases, a final discharge of the patient is entered automatically after a year. The testimony of the doctors is that, when a patient returns or is brought back, the decision as to whether to retain him for further treatment or not is based entirely upon medical examination and judgment as to his mental condition and his need for treatment, the same factors considered when the leave was originally ordered. The decision is not based upon the fact or charge that the patient has committed a criminal act or been guilty of some anti-social behavior while on leave. His mental condition and need of treatment are the criteria. The determination by the doctors that Hooks should be retained for treatment when he was returned was based on these factors only, and this decision was not affected or influenced by an alleged complaint as to his conduct. As a matter of fact, on his return Hooks was found to be “grossly psychotic” and in worse condition than when he left.

Obviously, this case is fundamentally different from those involving revocation of probation or parole. In the latter, revocation is based upon a finding that there has been a willful and knowing violation of a condition or conditions imposed upon one previously convicted of having violated the criminal law. These people, at least presumably, are sane and their acts are the result of their own volition. They are not persons suffering from a condition or disease which requires continuing medical treatment.

In the case of mental patients, even more than in the case of patients suffering from physical ailments, a decision as to whether to keep the patient in the hospital or to discharge him must remain a medical one, to be decided by medical experts, based upon the mental condition of the patient and the necessity for hospital treatment, as determined by them.

This is not a case of confinement in a mental hospital of one who claims to be sane, nor is it one in which there has been no civil commitment of the patient. It is not a case, such as Brown v. Dr. W. L. Jaquith, etc., in which a defendant in a criminal case was committed as mentally incompetent to stand trial and, after an unreasonable time had elapsed, no civil proceedings for commitment had been instituted. It would be highly improper and disruptive to the treatment of these unfortunate people and to their real best interests for the courts to intrude into this highly specialized field in a case of this kind. We conclude that the trial court properly denied the writ and that the decree appealed from should be affirmed.

Affirmed.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.

      . Miss., 318 So.2d 856, 1975.


text:
    Mrs. Dolister KEYS et al. v. Roy CARTER et al.
    No. 48221.
    Supreme Court of Mississippi.
    Sept. 29, 1975.

      Charles H. Ramberg, Brandon, Barry H. Powell, John L. Maxey, II, Jackson, for appellants.
    W. E. McIntyre, Jr., McLaurm & Ni-cols, George Kelly, Brandon, Chill, Chill & Dove, Jackson, for appellees.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   SMITH, Justice.

Appellants, Mrs. Dolister Keys, T. Z. Bragg and Mrs. Roy Carter, as taxpayers of the County Wide School District of Rankin County, were complainants in a suit brought by them in the Chancery Court of that county against Tom Rives, Milton Singletary, Hilton Richardson, Kenneth Bridges, and Ralph Moore, members of the Board of Supervisors of Rankin County, and the sureties on their official bonds, and Roy Carter, to whom the Board had leased 320 acres of sixteenth section school lands for a period of 25 years at an annual rental of $170.

In their bill, complainants invited other taxpayers similarly situated to join and stated that the suit was brought in the interest of “said taxpayers” and that any money recovered would “go to the County Wide School District.”

The bill alleged that the rental value of the land was and is $4,000 per year and that its lease to Carter by the board of supervisors for $170 a year amounted to an unconstitutional donation, in violation of Article 4, Section 95 of the Mississippi Constitution of 1890 and thus was an “appropriation of said leasehold interest” in the land to an “object not authorized by law.”

Complainants demanded a money judgment against the individual members of the board of supervisors and the sureties on their bonds in the sum of the difference between the rent contracted for at $170 per annum and the $4,000 per annum, alleged by complainants to have been the fair value of the leasehold, extending over the entire 25 year period of the lease. There was no specific prayer that the lease be declared void or cancelled but the bill concluded with a prayer for general relief.

To this bill defendants interposed a general demurrer and this was sustained by the chancellor. Complainants having declined to plead further, the bill was dismissed, and this appeal has ensued.

Since the case went off in the trial court on general demurrer, we have before us no facts except those alleged to be facts by complainants in their bill.

Complainants’ right to bring the suit is challenged by appellees and it is argued that their lack of standing; to do so is a sufficient basis for upholding the action of the chancellor in sustaining the general demurrer.

Mississippi Code Annotated section 29-3-1 (1972) vests in the board of supervisors “control and jurisdiction of said lands (sixteenth section school lands) and of all funds arising from any disposition thereof heretofore or hereafter made.”

This Court is committed to the proposition that these lands constitute property held in trust for the public schools and must be dealt with by boards of supervisors as such and thus the rules applicable to trusts and trust property generally are to be applied.

As shown by copies of communications attached as exhibits to the bill, the alleged facts of the case were communicated to the Attorney General, District Attorney and County Attorney by complainants, with a request for action as a condition precedent to the filing of the present suit by them. It is alleged that, notwithstanding this, no action was taken by any of these officials. In the absence of anything to the contrary, (and there is nothing before us at this time save the bill and the demurrer), this must be considered a sufficient compliance with that aspect of the requirements set forth in Mississippi Road Supply v. Hester, 185 Miss. 839, 188 So. 281 (1939).

The facts alleged in the bill, if supported by proof accepted by the chancellor as the trier of facts, would be capable of supporting a finding that the lease of this 320 acre tract for an annual rental of $170, although the fair value of the lease was $4,000 per year, amounted to an unconstitutional donation, as well as an appropriation of the property to “an object not authorized by law.” In that event, the lease was and is void and may be attacked in this suit. See Saxon v. Harvey, 190 So.2d 901 (Miss.1966) and Coleman v. Shipp, 223 Miss. 516, 78 So.2d 778 (1955).

However, the remedy is the voiding of the lease rather than its continuation for the remainder of the 25 year period with damages prospectively figured for each year of its future existence. In the event that the unequivocal allegations of the bill should be sustained by the chancellor upon trial of the case, an immediate cancellation of the lease would ensue and a judgment against defendants for such damages as might be proved and be found actually to have resulted from the inception of the lease to the date of its cancellation as an unconstitutional donation would be justified. See Koonce v. Board of Supervisors of Grenada County, 202 Miss, 473, 32 So. 2d 264 (1947).

Notwithstanding the fact that no specific prayer for such relief is contained in the bill, the facts stated, if established, would justify the chancellor in granting it under the prayer for general relief. Griffith, Mississippi Chancery Practice, section 293 (2d ed. 1950), states in part:

So far back as our earliest cases it was held that it is a rule sanctioned by reason that where a bill seeks relief on several equitable grounds, and the complainant is entitled to relief on any one of these, although he may not be on the others, the defendant cannot demur generally, for by so doing he admits a ground of relief, and all the later cases have also held that if the complainant shows himself by his bill or by any part of it to be entitled to any portion of the relief prayed for, whether under his special prayer or- under the, general prayer, the. bill will be. maintained to that extent and .a general demurrer thereto will be entirely overruled.

Obviously, at this juncture, the case has no.t been tried, and the facts, apart from allegations contained in the bill of complaint, are not and cannot be known to this Court. It does appear from facts stated in the bill that the board of supervisors did appoint appraisers and did receive their report before executing the lease to Carter. We cannot anticipate, and express no opinion, as to what may develop upon the trial of the case as to the good faith of the board, the adequacy of the rental specified in the lease to Carter, or as to other possible factual issues that may be posed by the answers of defendants. The determination of all of these matters lies exclusively within the province of the chancellor as the trier of facts.

The bill was sufficient to withstand the general demurrer and the case must be remanded to the Chancery Court of Rankin County in order that a trial of the issues may be had. On remand, appellees will then be entitled to answer and to interpose all defenses that they may have.

Reversed and remanded.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.