Opposition — Lowe v. City of Jackson

Supreme Court. U S.

FILED

NOV 10 197°

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-527

EDWARD H. LOWE, ET AL,

Petitioners,

versus

CITY OF JACKSON, MISSISSIPPI,

Respondent.

On Petition for Writ of Certiorari

to the Mississippi Supreme Court

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

L. ARNOLD PYLE

WALKER W. JONES, III

Attorneys at Law

Watkins Pyle Ludlam Winter

& Stennis

2000 Deposit Guaranty Plaza

Post Office Box 427

Jackson, Mississippi 39205

JOHN E. STONE

Attorney at Law

City Legal Department

Post Office Box 17

Jackson, Mississippi 39205

Of Counsel for Respondent

SCOFIELDS’ QUALITY PRINTERS. P.O. BOX 53096. N. O.. LA. 70153 - 504/822-1611

SUBJECT MATTER INDEX

Page

REE? ch. nbncneedddccsvesccncceccenves 1

EE i tbthndecddecdontemesiennbanenesnens 2

QUESTIONS PRESENTED ..................00005. 2

STATUTES INVOLVED ............... cee cee eeeee 3

STATEMENT OF THE CASE ..............00e000. 3

REASONS FOR DENYING THE WRIT ........... 5

I. NONE OF THE CRITERIA ARE PRE-

SENT WHICH ARE CONCOMITANT

WITH UNITED STATES SUPREME

COURT REVIEW BY CERTIORARI ........ 5

A. PETITIONER SHOULD BE

DENIED THE WRIT ON THE

GROUND THAT THERE IS NO

SPECIAL AND IMPORTANT

REASON FOR REVIEW OF THE

MISSISSIPPI SUPREME

COURT'S DECISION .................. 6

B. PETITIONER SHOULD BE

DENIED THE WRIT ON THE

GROUND THAT THE PETITION

FAILS TO STATE A SUBSTAN-

TIAL FEDERAL QUESTION .......... 7

GSP, . 8.0000 o6n5e6e eo tn caceansesosesaans 17

CERTIFICATE OF SERVICE ...............2005. 18

ii

TABLE OF CITATIONS

Page

Cases:

Bridges v. City of Biloxi, Mississippi, 383 U.S.

ED vecdeccsccucccbudd cedeWeeiet hele weesess 11

Cipriano v. City of Houma, 395 U.S. 701(1969) ..... 15

Citizens Committee to Oppose Annexation v.

City of Lynchberg, Virginia, 400 F.Supp. 68

(W.D.Va. 1975), aff'd in part, vacated in part,

remanded, 528 F.2d 816 (4th Cir. 1975), in-

junction denied, 96 S.Ct. 766 (1976) .... 11-12, 14,15

City of Phoenix v. Koldziejski, 399 U.S. 204

DEE Kkibuscdads Ceca ueeakeatks eceabeeeeeeshaaks 15

Dunn v. Blumstein, 405 U.S. 330 (1972) ........... 15

Evans v. Korman, 398 U.S. 419 (1970) ............ 15

Garren v. City of Winston-Salem, North

Carolina, 463 F.2d 54 (4th Cir. 1972) ............ 15

Hamilton v. Incorporation of Petal, 291 So.2d

GEE wactdnnended secs encanaaeeysssees< 16

Hunter v. City of Pittsburgh, 207 U.S. 161

ST see bnsd bud Os deuss dodelens dasdssawunsscas 8,10,13

Kramer v. Union Free School District, 395

EE du UwaUeeusaceseseeceeeseucenscuus 15

Edward H. Lowe, et al v. City of Jackson, Mis-

sissippi, 336 So.2d 490 (Miss. 1976) .............. 5

People ex rel. v. Village of North Barrington,

94 Ill.App.2d 265, 237 N.E.2d 350 (1968) ......... 15

Reynolds v. Sims, 377 U.S. 533 (1963) ............ 15

Pee

iii

TABLE OF CITATIONS (Continued)

Page

U.S. Statutes

ee Ry GT OEE nce s dann cecccanesaneses+es 2

BD De SE Ge oi elite tei cideetd ict cttsvddcsss 2

State Statutes:

Section 21-1-13 Miss. Code Ann. (1972) ........... 16

Section 21-1-21 Miss. Code Ann. (1972) ....... 7,10,11

Section 21-1-27 Miss. Code Ann. (1972) ... 3,5,6,15,16

Section 21-1-29 Miss. Code Ann. (1972) ............ 3

Section 21-1-31 Miss. Code Ann. (1972) ........ 3,4,16

Section 21-1-33 Miss. Code Ann. (1972) ........ 3,4,14

Section 21-1-35 Miss. Code Ann. (1972) ............ 3

Section 21-1-37 Miss. Code Ann. (1972) ........... 3,7

Section 21-1-39 Miss. Code Ann. (1972) ............ 3

Section 21-1-41 Miss. Code Ann. (1972) ............ 3

Section 21-1-45 Miss. Code Ann. (1972) ........... 16

Section 15.1-1032 et seq. Va. Code Ann. (1973),

as amended (Supp. 1974) ..............0.005- 13-14

Section 15.1-1041 Va. Code Ann. (1973), as

amended (Supp. 1974) ............ccceceeeeeeees 14

Supreme Court Rules:

I ae od cine iki k. wie edhe cadekhes whee 6

Rule 19 (1) (a) tee tee eee eee e eee eee een eeeenenees 8

iv

TABLE OF CITATIONS (Continued)

Page

Other Authorities:

2E McQuillen, Law of Municipal Cor-

porations, § 7.16 (3rd rev. ed. 1966) ............. 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 76-527

EDWARD H. LOWE, ET AL,

Petitioners,

versus

CITY OF JACKSON, MISSISSIPPI,

Respondent.

On Petition for Writ of Certiorari to the

Mississippi Supreme Court

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSISSIPPI

TO THE HONORABLE, THE CHIEF JUSTICE OF

THE UNITED STATES AND THE ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE

UNITED STATES:

OPINIONS BELOW

The Opinion of the Chancery Court of the First

Judicial District of Hinds County, Mississippi is set

out in the Petitioners’ Appendix A beginning at page

A-12. The Opinion of the Supreme Court of the State of

Mississippi, reported at 336 So.2d 490, is set out in the

Petitioners’ Appendix A at page A-1. The decision

turned upon the lower Court’s determination, based

upon the massive amount of evidence adduced at the

lengthy hearing of this cause, that the annexation, as

modified by the Court, was reasonable. This case has

been thoroughly considered by two courts, both of

which found in favor of Respondent.

JURISDICTION

Petitioners attempt to invoke the jurisdiction of this

Court under 29 U.S.C. 1257 (3), however, the Respon-

dent would point out that there is no such statute.

Respondent would assume that since the Petitioners

are seeking a writ of certiorari, that Petitioners’ peti-

tion should reflect 28 U.S.C. 1257 (3) as the statute un-

der which they attempt to invoke the jurisdiction of

this Court.

QUESTIONS PRESENTED

I.

Whether the criteria are present which are concomi-

tant with United States Supreme Court review by cer-

tiorari.

A. Whether there is any special or important

reason for the review of the decision of the Mississippi

Supreme Court.

B. Whether there is a substantial federal question.

3

STATUTES INVOLVED

Sections 21-1-27, 21-1-29, 21-1-31, 21-1-33, 21-1-35, 21-

1-37, 21-1-39, and 21-1-41 Miss. Code Ann. (1972), which

statutes govern the extension or contraction of cor-

porate boundaries in Mississippi.

STATEMENT OF THE CASE

The decision of the Supreme Court of the State of

Mississippi, which the Petitioners request that this

Court review, is a decision involving the routine

municipal annexation of adjacent unincorporated

territory to the City of Jackson, Mississippi. The

Respondent, City of Jackson, Mississippi, adopted an

ordinance on August 27, 1974, extending and enlarg-

ing the boundaries of the City of Jackson. Subsequent

to the adoption of said ordinance, the City of Jackson

filed its petition for ratification, approval and confir-

mation of the ordinance as required by Section 21-1-29

Miss. Code Ann. (1972)'!, attaching to said petition a

1 Section 21-1-29 Miss. Code Ann. (1972) reads:

When any such ordinance shall be passed by the

municipal] authorities, such municipal authorities shall

file a petition in the chancery court of the county in which

such municipality is located; however, when a municipali-

ty wishes to annex or extend its boundaries across and into

an adjoining county such municipal! authorities shall file

a petition in the chancery court of the county in which such

territory is located. The petition shall recite the fact of the

adoption of such ordinance and shall pray that the

enlargement or contraction of the municipal! boundaries,

as the case may be, shall be ratified, approved and con-

firmed by the court. There shall be attached to such peti-

tion, as exhibits thereto, a certified copy of the ordinance

adopted by the municipal authorities and a map or plat of

the municipal boundaries as they will exist in event such

enlargement or contraction becomes effective.

4

copy of the ordinance, Exhibit “A” thereto, and a map,

Exhibit “B” thereto, showing the City of Jackson and

the area proposed for annexation. Pursuant to Section

21-1-31 Miss. Code Ann. (1972)?, notice of the hearing

on the City’s petition was given so that all parties

either affected or aggrieved by the proposed annexa-

tion could appear at the hearing and present their ob-

jections to the annexation.

The lower Court hearing, held pursuant to Section

21-1-33 Miss. Code Ann. (1972), consumed 17 weeks, 16

volumes of testimony, exhibits and pleadings and

some 57 witnesses. The Chancery Court of the First

Judicial District of Hinds County, Mississippi, Divi-

sion II thereof, thereafter entered its opinion and final

decree ratifying, approving and confirming the or-

dinance, as modified by the Court, enlarging the boun-

daries of the City of Jackson (Appendix A to petition,

pages A-12 through A-24).

From that final decree, the Petitioners, some of the

2 Section 21-1-31 Miss. Code Ann. (1972) reads:

Upon the filing of such petition and upon application

therefor by the petitioner, the chancellor shall fix a date

certain, either in term time or in vacation, when a hearing

on said petition will be held, and notice thereof shall be

given in the same manner and for the same length of time

as is provided in section 21-1-15 with regard to the creation

of municipal corporations, and all parties interested in,

affected by, or being aggrieved by said proposed enlarge-

ment or contraction shall have the right to appear at such

hearing and present their objection to such proposed

enlargement or contraction. However, in all cases of the

enlargement of municipalities where any of the territory

proposed to be incorporated is located within three miles

of another existing municipality, then such other exist-

ing municipality shall be made a party defendant to said

petition and shall be served with process in the manner

provided by law, which process shall be served at least

thirty days prior to the date set for the hearing.

Objectors in the Chancery Court, appealed to the

Supreme Court of the State of Mississippi. The decree

of the Chancery Court of the First Judicial District of

Hinds County, Mississippi hereinabove referred to

was affirmed by the Supreme Court of the State of Mis-

sissippi on July 27, 1976 (Edward H. Lowe, et al v. City

of Jackson, Mississippi, 336 So.2d 490 (Miss. 1976),

Appendix A to petition, pages A-1 through A-6). The

judgment of the Supreme Court of Mississippi found

that the statute under constitutional attack, Section

21-1-27 Miss. Code Ann. (1972) was in fact con-

stitutional and did not deny the Objectors, appellants

therein, equal protection as guaranteed by the United

States Constitution. In addition, the Court stated that

the lower Court, after hearing the conflicting

testimony and evidence, had accepted that offered on

behalf of the City of Jackson, and in the judgment of

the Supreme Court of Mississippi, the evidence

offered on behalf of the City of Jackson was substan-

tial and formed a sufficient basis to support the decree

of the lower Court. The Supreme Court concluded in its

opinion that the decree of the trial Court was sup-

ported by substantial evidence, was not manifestly

wrong or against the weight of said evidence, and,

therefore, the Chancellor’s decree had to be affirmed.

REASONS FOR DENYING THE WRIT

I.

None Of The Criteria Are Present Which Are

Concomitant With United States Supreme

Court Review By Certiorari.

The Respondent strongly urges that the present case

is not a proper case for review by this Court on a writ

of certiorari. This case has no commanding con-

stitutional issues and is merely a local matter invoiv-

ing questions of state law and procedure.

A. There Is No Special And Important

Reason For Review Of The Mississippi

Supreme Court’s Decision

Rule 19(1) of the Rules of the Supreme Court of the

United States specifically states that a review on writ

of certiorari “is not a matter of right but of sound

judicial discretion and will be granted only where

there are special and important reasons therefor.” The

Mississippi Supreme Court has thoroughly reviewed

the record in this case and has determined that the trial

court’s decision ratifying and approving the annexa-

tion proceedings should be affirmed. The only error

alleged by Petitioners, which error was presented to

the courts below and which has been passed upon by

the Court before, is one which involves purely state

procedure and practice and does not raise a substan-

tial federal question. The Mississippi municipal

annexation statutes (§21-1-27 et seq. Miss. Code Ann.

(1972) ) allow anyone who is aggrieved or adversely

affected by the annexation proceedings the right to file

a protest with the Chancery Court of proper jurisdic-

tion and fully state his objections and offer evidence in

support thereof to the Court. If he should be un-

successful there, he has the right of appeal with

supersedeas to the Mississippi State Supreme Court

7

by posting a bond in the amount of $500.00. §§ 21-1-21°

and 21-1-374 Miss. Code Ann. (1972).

&

B. Petitioners’ Petition Fails To State A Sub-

stantial Federal Question

The Petitioners’ allegation that the Mississippi

statute for enlarging municipal boundaries is un-

constitutional does not present a substantial federal

question. The position of the Petitioners in this matter,

succinctly stated, is that they have been denied equal

protection of the law as guaranteed by the Constitu-

tion of the United States since Section 21-1-27 Miss.

Code Ann. (1972) (set out in full at pages 5 and 6 of the

petition) does not afford them the right to vote by peti-

tion or otherwise on a proposed annexation. The

3 Section 21-1-21 Miss. Code Ann. (1972) reads:

Any person interested in or aggrieved by the decree of

the chancellor, and who was a party to the proceedings in

the chancery court, may prosecute an appeal therefrom to

the supreme court within ten days from the date of such

decree by furnishing an appeal bond in the sum of five hun-

dred dollars with two good and sufficient sureties, con-

ditioned to pay all costs of the appeal! in event the decree is

affirmed. Such appeal bond shall be subject to the ap-

proval of the chancery clerk and shall operate as a

supersedeas. If the decree of the chancellor be affirmed by

the supreme court, then such decree shall go into effect

after the passage of ten days from the date of the final judg-

ment thereon, and the party or parties prosecuting such

appeal! and the sureties on their appea! bond shall be ad-

judged to pay all costs of such appeal.

4 Section 21-1-37 Miss. Code Ann. (1972) reads:

If the municipality or any other interested person who

was a party to the proceedings in the chancery court be

aggrieved by the decree of the chancellor, then such

municipality or other person may prosecute an appeal

therefrom within the time and in the manner and with like

effect as is provided in section 21-1-21 in the case of

appeals from the decree of the chancellor with regard to

the creation of a municipal corporation.

Petitioners’ allegation that they have been denied due

process rights guaranteed by the Fourteenth Amend-

ment to the United States Constitution does not pre-

sent to this Court a substantial federal question as re-

quired by Rule 19 (1) (a) of the Rules of the Supreme

Court of the United States.

Almost 70 years ago, this Court, in the case of

Hunter v. City of Pittsburgh, 207 U.S. 161 (1907) ruled

against the arguments which are now set forth by the

Petitioners. The Respondent strongly urges that

Hunter is dispositive of the issues raised by the

Petitioners. In Hunter, the Court was faced with a

Pennsylvania act authorizing the consolidation of two

cities upon a majority vote of the electors in the com-

bined cities. A majority vote of the total votes cast in

the two cities of Allegheny and Pittsburgh were in

favor of a consolidation, but a majority of the votes

cast in the smaller city of Allegheny opposed it. The

citizens of Allegheny objected, contending that the

Pennsylvania act unconstitutionally deprived them of

their property without due process of law. The

Supreme Court, however, rejected these objections

and affirmed the State Court, stating:

... Municipal corporations are political sub-

divisions of the state, created as convenient

agencies for exercising such of the

governmental powers of the state as may be

entrusted to them for the purpose of executing

these powers properly and efficiently. They

usually are given the power to acquire, hold

and manage personal and real property. The

number, nature and duration of the powers

conferred upon these corporations and the

territory over which they shall be exercised

rests in the absolute discretion of the state.

Neither their charters, nor any laws confer-

ring governmental powers or vesting in them

property to be used for governmental pur-

poses, or authorizing them to hold or manage

such property, or exempting them from taxa-

tion upon it, constitutes a contract with the

state within the meaning of the federal Con-

stitution. The State, therefore, at its pleasure,

may modify or withdraw all such powers, may

take without compensation such property,

hold it itself, or vest it in other agencies, ex-

pand or contract the territorial area, unite the

whole or a part of it with another municipali-

ty, repeal the charter and destroy the corpora-

tion. All of this may be done, conditionally or

unconditionally, with or without the consent

of the citizens, or even against their protest. In

all of these respects, the state is supreme, and

its legislative body, conforming its action to

the state constitution, may do as it will, un-

restrained by any provision of the Constitu-

tion of the United States. Although the in-

habitants and property owners may, by such

changes, suffer inconvenience, and their

property may be lessened in value by the

burden of increased taxation, or for any other

reason, they have no right, by contract or

otherwise, in the unaltered or continued ex-

istence of the corporation or its powers, and

there is nothing in the federal Constitution

which protects them from these injurious con-

sequences. The power is in the state and those

10

who legislate for the state are alone responsi-

ble for any unjust or oppressive exercise of it.

(207 U.S. 161, at 179).

Hunter v. City of Pittsburgh made it clear that

municipalities such as the City of Jackson are

creatures of the legislature of the State and as such are

entirely subject to legislative will. The Mississippi

legislature has enumerated in Sections 21-1-27, et seq.

Miss. Code Ann. (1972) the manner and procedure in

which a municipality such as the City of Jackson may

enlarge its boundaries by way of annexation. If a

municipality desires to enlarge its boundaries, it must

proceed under the dictates of Sections 21-1-27, et seq.

The Mississippi legislature has, therefore, by the

enactment of this Section, made it unnecessary for a

municipality to obtain the consent of the qualified

electors either in the municipality wishing to annex

adjacent territory or in the area proposed for annexa-

tion. The granting to a municipality acting by and

through its governing elective legislative body, of the

power to annex land under specified conditions, even

without consent of the property owners in the area

proposed for annexation, as we have here, has been

reviewed by courts on numerous occasions and up-

held in a long line of cases. 2E McQuillen, Law of

Municipal Corporations, § 7.16 (3rd rev. ed. 1966). In

addition, it is equally well-settled that the power to

annex may be exercised over inhabitants of a pro-

posed annexation area, not only without their con-

sent, but even over their objection and protest. 2E Mc-

Quillen, supra, § 7.16 and cases cited therein.

= C3

11

In the case of Bridges v. City of Biloxi, Mississippi,

Cause Number 923, filed in the October, 1965 term of

this Court and reported at 383 U.S. 574 (1966), the

questions concerning this particular statute, Section

21-1-27 Miss. Code Ann. (1972) (formerly § 3375-10

Miss. Code Ann. (1942) ) were presented to and con-

sidered by this Court. The appellant in Bridges listed

in her jurisdictional statement, inter alia, as a ques-

tion presented to the Court, the following:

I. Does the failure of a state statute to per-

mit the inhabitants and/or the qualified elec-

tors of an area sought to be annexed to vote

upon the question of annexation offend the

equal protection clause of the Fourteenth

Amendment?

This is precisely the question which the Petitioners in

the present cause seek to present to this Court. In dis-

missing the appeal in Bridges, this Court stated:

The motion to dismiss is granted and the

appeal is dismissed for want of a substantial

federal question.

(383 U.S. 574) (emphasis added).

Even if this Court had not considered this question

prior to the filing of the petition herein, the question

which Petitioners seek to review has also been

presented and passed upon in the case of Citizens

Committee to Oppose Annexation v. City of

Lynchberg, Virginia, 400 F.Supp. 68 (W.D.Va. 1975),

aff'd in part, vacated in part, remanded, 528 F.2d 816

12

(4th Cir. 1975), injunction denied, 96 S.Ct. 766 (1976). In

that case, the plaintiffs brought an action seeking an

injunction enjoining the enforcement of a state court

decree ordering the annexation of portions of two

counties in Virginia to the City of Lynchberg,

Virginia. The plaintiffs also sought to enjoin the hold-

ing of elections pursuant to the court decree and re-

quested an award of money damages. The United

States District Court for the Western District of

Virginia held, inter alia, that the Virginia annexation

statute was not unconstitutional for any of the reasons

alleged. With regard to the constitutionality of the

Virginia statute, the Court stated at page 75:

Plaintiffs’ next claim is somewhat vague,

but appears to be that citizens residing in the

annexed area have a constitutional right to

vote on annexation and the failure of the

Virginia annexation statute to require their

approval renders that statute un-

constitutional. While citing the “privileges

and immunities” and “due process” clauses,

plaintiffs seem to place their principal

reliance on the “equal protection” clause of

the Fourteenth Amendment. In considering

this claim, it must be remembered that

Virginia, unlike a number of states, provides

for a judicial procedure for the approval of

annexations. Va. Code Ann. § 15.1-1032, et seq.

(1973). Approval of annexations in Virginia is

subject to a judicial determination that the

specified statutory standards are satisfied and

is not determined by the electoral process.

Thus, plaintiffs’ reliance on the Fourteenth

Amendment apportionment cases is once

13

more iisplaced, for while it is perhaps

arguable that there is an unconstitutional

discrimination when annexations are ap-

proved by an electoral process from which

annexed citizens are excluded, . . ., there does

not seem to be any basis for an equal protec-

tion claim when no one is granted the right to

vote on the matter. This leaves the plaintiffs

the task of establishing a right to vote on

annexations. However, there appears to be no

statutory requirement and the Court fails to

perceive such a right in the Constitution....

(emphasis added).

The Court, citing Hunter v. City of Pittsburgh, supra,

in support of its position that there is no statutory or

constitutional right to vote on annexations, further

said at page 76:

... Although this sweeping language is sub-

ject to some exceptions, e.g., Gromilion v.

Lightfoot, supra, it continues to be the law that

states retain a broad discretion in regulating

the boundaries of their political subdivisions,

and there is no absolute constitutional right of

citizens to vote on such matters....

(citations omitted).

It should be noted that the Virginia annexation

statutes, Va. Code Ann. § 15.1-1032 et seq. (1973), as

14

amended (Supp. 1974),5 under scrutiny in the Citizens

Committee to Oppose Annexation v. City of

Lynchberg, Virginia case, supra, require that annexa-

tion by a city or town of adjacent area can only be ac-

complished through a judicial proceeding. In Mis-

sissippi this requirement must also be met to ac-

complish annexation. § 21-1-33 Miss. Code Ann.

(1972).6

5 Relevant portions of Va. Code Ann. § 15.1-1041 read as follows:

§ 15.1-1041. Hearing and decision. — (a) The court shall

hear the case upon the evidence introduced as evidence is

introduced in civil cases.

(b) The Court shall determine the necessity for and ex-

pediency of annexation, considering the best interests of

the county and the city or town, the best interests, services

to be rendered and needs of the area proposed to be annex-

ed, and the best interests of the remaining portion of the

county....

6 Section 21-1-33 Miss. Code Ann. (1972) reads:

If the chancellor finds from the evidence presented at

such hearing that the proposed enlargement or contrac-

tion is reasonable and is required by the public con-

venience and necessity and, in the event of an enlargement

of a municipality, that reasonable public and municipal

services will be rendered in the annexed territory withina

reasonable time, the chancellor shall enter a decree ap-

proving, ratifying and confirming the proposed enlarge-

ment or contraction, and describing the boundaries of the

municipality as altered. In so doing the chancellor shall

have the right and the power to modify the proposed

enlargement or contraction by decreasing the territory to

be included in or excluded from such municipality, as the

case may be. If the chancellor shall find from the evidence

that the proposed enlargement or contraction, as the case

may be, is unreasonable and is not required by the public

convenience and necessity, then he shall enter a decree

denying such enlargement or contraction. In any event,

the decree of the chancellor shall become effective after the

passage of ten days from the date thereof or, in the event an

appeai is taken therefrom, within ten days from the final

determination of such appeal. In any proceeding under

this section the burden shall be upon the municipal

authorities to show that the proposed enlargement or con-

traction is reasonable.

15

The several cases cited by the Petitioners in support

of their contention that Section 21-1-27 denies them

equal protection as guaranteed by the Constitution,

are the same type of “Fourteenth Amendment appor-

tionment cases” relied upon by the plaintiffs in the

Citizens Committee to Oppose Annexation v. City of

Lynchberg, Virginia case, supra, and, therefore, do not

deal directly with the proposition in point, i.e., the

grant and exercise of the power to annex adjacent

territory without the consent of the inhabitants

therein. These specific cases deal with various and

sundry points of law. The majority, however, of the

cases relied upon by the Petitioners, i.e., Reynolds v.

Sims, 377 U.S. 533 (1963), Dunn v. Blumstein, 405 U.S.

330 (1972), City of Phoenix v. Koldziejski, 399 U.S. 204

(1970); Evans v. Korman, 398 U.S. 419 (1970); Cipriano

v. City of Houma, 395 U.S. 701 (1969), and Kramer v.

Union Free Schoo! District, 395 U.S. 620 (1969), are

orthodox voting rights cases. The fact that the

Petitioners do not have a right to vote on the annexa-

tion of the proposed annexation area is not the result

of an invidious or suspect classification or any other

act of overt discrimination. The Petitioners can in no

way, in this case, show that they have been deprived of

any benefits that would be due them, because of some

unreasonable or unjustified classification. This case

is, therefore, not a proper case for the application of

the compelling state interest test in Dunn v. Blum-

stein, supra, as urged by the Petitioners in their brief.

See also, Garren v. City of Winston-Salem, North

Carolina, 463 F.2d 54 (4th Cir. 1972); and, People ex rel.

v. Village of North Barrington, 94 I1l.App.2d 265, 237

N.E.2d 350 (1968).

16

The Respondent would submit that the equal protec-

tion clause of the Fourteenth Amendment only re-

quires that the inhabitants of the annexing area and of

the area annexed have an equal opportunity to par-

ticipate in the annexation process. Section 21-1-31

Miss. Code Ann. (1972) affords such an equal oppor-

tunity with the requirement of a judicial determina-

tion as to whether or not the annexation is reasonable.

Opponents and proponents alike may come before the

Court and be heard concerning the annexation’'s

reasonableness. Neither group of inhabitants has

been afforded the right to vote upon the annexation.

There cannot, therefore, be a violation of the equal

protection clause of the Fourteenth Amendment

where such a situation exists.

Petitioners infer, but never expressly state that

since § 21-1-13 Miss. Code Ann. (1972) (incorporation

of municipalities) and § 21-1-45 Miss. Code Ann. (1972)

(inclusion or exclusion of territory) require a petition

signed by two-thirds of the qualified electors residing

in the areas affected by the particular statutes, the

absence of such a provision in § 21-1-27 denies the in-

habitants of the area proposed for annexation equal

protection of the law as required by the Constitution.

These three statutes apply to separate and distinct

processes. As pointed out by the Mississippi Supreme

Court, “there is ‘a fundamental difference of some

magnitude’ between incorporation of an unincor-

porated area on the one hand and the extension of cor-

porate boundaries on the other. Hamilton v. Incor-

poration of Petal, 291 So.2d 190 (Miss. 1974).” (336 So.2d

490. 492). Further, there was no showing by the

Petitioners that the legislature’s omission of the re-

quirement of the approval by vote, by petition or

17

otherwise of che inhabitants of the area proposed for

annexation was the result of some invidious or

suspect classification or act of overt discrimination. It

was the Mississippi Legislature that determined the

manner in which adjacent unincorporated territory

was to be annexed by municipalities. The Petitioners

did not show, nor did they attempt to show, that the

Legislature’s determination was unreasonable and

unjustified, or, that the State had used its power over

municipal boundaries to circumvent a federally

protected right. The Petitioners obviously may

fashion a remedy to their “problem” in the form of new

legislation. It is, however, submitted that the United

States Constitution offers them no remedy.

CONCLUSION

Wherefore, for the foregoing reasons the Respon-

dent most respectfully submits that the Petition for

Writ of Certiorari should be denied.

Respectfully submitted,

VA.

L. ARNOLD PYLE /

18

L. ARNOLD PYLE

WALKER W. JONES, III

Attorneys at Law

Watkins Pyle Ludlam

Winter & Stennis

Post Office Box 427

Jackson, Mississippi 39205

JOHN E. STONE

Aitorney at Law

City Legal Department

Post Office Box 17

Jackson, Mississippi 39205

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this g&,. of

November, 1976, copies of this Brief of Respondent in

Opposition were mailed, postage prepaid, to the at-

torney for Petitioners, John Arthur Eaves, Eaves and

Eaves, 101 Plaza Building, Jackson, Mississippi,

39201.

I further certif

have been served.

Cou nsel for

CITY OF JACKSON,

MISSISSIPPI

Watkins Pyle Ludlam

Winter & Stennis

2000 Deposit Guaranty Plaza

Post Office Box 427

Jackson, Mississippi 39205