WALKER ET AL. v. TOWN OF WAYNESBORO

Jones Ray, of Jackson, E.C. Fishel, of Hattiesburg, and A.G. Busby, Jr., of Waynesboro, for appellants.

A plea of not guilty, and, for that matter, no other form of the general issue plea, is the correct plea under the procedure provided by Section 3379, Code of 1942.

McGavock v. Whitfield, 45 Miss. 452; Code of 1942, Secs. 3378, 3379; 49 C.J. 181, Sec. 198.

Because of the failure of appellee to properly perfect its pleadings and squarely present the issues to be tried, the appellants were entitled to a peremptory instruction.

Forbes v. City of Meridian, 86 Miss. 243, 38 So. 676.

The Court erred in not permitting the appellants to show by oral and documentary evidence the conditions existing in the Town of Waynesboro; in permitting the appellee to show a portion of the conditions existing in the Town of Waynesboro; in refusing the appellants the right to make a comparison of the conditions existing in the Town of Waynesboro with the conditions existing in the area of the proposed extension of the corporate limits of the town; and in not permitting appellants to show the financial status of the Town of Waynesboro and its taxation rate.

Thomas v. Town of Long Beach, 111 Miss. 329, 71 So. 570; Wheat v. Town of Poplarville, 149 Miss. 424, 115 So. 559; Forbes v. Meridian, supra; Code of 1942, Sec. 3382.

The court erred in refusing the appellants the following instructions:

"The Court instructs the Jury that the annexation of farm land located at such a distance from the built-up portion of the Town of Waynesboro that it cannot reasonably be required for future needs or present growth is unreasonable."

"The Court instructs the Jury for Plaintiff that in considering the matter of furnishing water supply and sewerage disposal and fire protection and sidewalk and street improvement to the proposed annexed area, you have a right to take into consideration the present financial status of the Town of Waynesboro and to consider any other factor that would show that said Town was or was not able to furnish such facilities to the proposed annexed area; and if from a preponderance of the evidence you find that the Town would not be able to furnish said facilities to the annexed area after annexation, then you should find that said Ordinance is unreasonable."

"The Court instructs the Jury for the Plaintiff that in considering this cause, it is your duty to take into consideration the present boundaries of the Town of Waynesboro, and the amount of improved and unimproved lands within said area, and if from a preponderance of the evidence you believe that said area as now constituted is sufficient to provide the Town of Waynesboro for expansion and growth within all reasonable probabilities for one year or more in the near future, then the extension proposed by said ordinance is unreasonable and you should so find."

"The Court instructs the Jury for Plaintiff that if from a preponderance of the evidence that you believe that the extension of the boundary limit of the Town of Waynesboro as proposed by said Ordinance is unreasonable as a whole, and that said extension would cause an unreasonable tax burden on the inhabitants of the territory proposed to be annexed without corresponding benefits, then it will be your duty to find for the Plaintiff that the ordinance is unreasonable."

The Court erred in granting appellee the following instructions:

"The Court instructs the jury that even though they believe that some parts of the territory intended to be included in the ordinance, in dispute, are low and marshy, or hilly, and that other parts of it are vacant, yet this does not make the ordinance unreasonable, or authorize the jury to find against the town in this case."

"The Court instructs the jury for the Town that if you believe from the evidence that if the protestants are located so near the Town of Waynesboro so as to enjoy the benefits derived from the town as now constituted, then the jury can consider these benefits in passing upon the ordinance in dispute is reasonable or unreasonable; and the fact that they will have to pay an additional or municipal tax if included in the town limits will not be any reason why they should not be included."

"The Court instructs the jury for the Town of Waynesboro, that if you believe from the evidence that benefits of health, police protection, sanitary, quarantine, regulation or such other benefits as water, sewer extension as would compensate the territory taken into the municipality so as to make the entire extension reasonable, then the Court instructs you to find for the Town of Waynesboro."

See Forbes v. Meridian, supra. W.E. Morse, of Jackson, and W. Vol Jones, W.M. Hutto and Frank Clark, all of Waynesboro, for appellee.

Section 3379, Code of 1942, states that an appeal from the ordinance to the Circuit Court shall be tried on an issue to be made up there, and the question shall be whether the proposed extension of the municipality be or be not unreasonable. The appellant tendered an issue, and there being only one issue, that is, the unreasonableness of the ordinance, the Town joined issue on whether or not the extension was unreasonable.

Forbes v. City of Meridian, 86 Miss. 243, 38 So. 676; Yerger v. Greenwood, 77 Miss. 378, 27 So. 620; Town of Crystal Springs v. Moreton, 131 Miss. 77, 95 So. 242; Grinstead v. Fonte, 32 Miss. 120; Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787, 789; Code of 1942, Sec. 3379; 49 C.J.S. 245, Sec. 314, p. 246, Sec. 315, p. 248, Sec. 317, Sec. 327; McQuillan on Municipal Corporations, Sec. 293.

The court should not have sustained the appellants' motion to strike out the town's plea of general issue.

City of Pass Christian v. Town of Long Beach, 157 Miss. 778, 128 So. 554; Forbes v. City of Meridian, supra; Code of 1942, Secs. 3379, 3382; McQuillan on Municipal Corporations, Secs. 229, 293, 295, 308.

In passing upon the question of whether an ordinance making an extension of the limits of a municipality be reasonable, the jury must consider the proposed extension as an entirety. The question is not whether each and every portion of the territory included in the proposed extension should or should not, if considered separately of and by itself, have been included but whether the action of the authorities in view of the condition confronting a municipality at the time of the adoption of the ordinance of extension should be sustained. Nor is the question of rate of revenue which the city may receive from the territory embraced in the extension any criterion by which to judge the reasonableness of the ordinance. And further, the municipality by extending its police protection, its sanitary and quarantine regulations, its more adequate fire protection, may thereby conserve the best interest of the inhabitants within the original borders, and so give to those living in the territory included in the extension more efficient protection against devastation by fire and by the enforcement of necessary sanitary regulations to the public health decreases the danger from disease and pestilence. These are the paramount considerations. And incidental to these, the citizens included in the extension are entitled to share in common with other inhabitants of the municipality the convenience of sidewalks, lighted streets, fire protection, and all other advantages of city life.

Thomas v. Town of Long Beach, 111 Miss. 329, 71 So. 570; Wheat v. Town of Poplarville, 149 Miss. 424, 115 So. 559; Forbes v. City of Meridian, supra; Martin v. Dix, 52 Miss. 53; City of Jackson v. Whiting, 84 Miss. 163, 36 So. 611.

The admission of improper evidence is harmless where it is immaterial to the issues involved and injury is not shown.

Hand v. Grant, 5 Smedes M. 13 (Miss.) 508.

A judgment of the trial court not manifestly wrong on other evidence in the record must be affirmed even if some evidence admitted was incompetent.

City of Vicksburg v. Record, 1 Miss. Dec. 407.

The admission of irrelevant evidence is harmless error where it was such as not to prejudice the complainant party.

Alabama V.R. Co. v. Fried, 81 Miss. 414, 33 So. 74; Gillespie v. Doty, 160 Miss. 684, 135 So. 211.

The exclusion of evidence is harmless where the facts involved are established by other evidence.

Drake v. Surget, 36 Miss. 458; Atwood v. Meredith, 37 Miss. 635; Bacon v. Bacon, 76 Miss. 458, 24 So. 968.

See also Quilette v. Davis, 69 Miss. 762, 12 So. 27; Alabama V.R. Co. v. Harz, 88 Miss. 681, 42 So. 201; Sample v. Romine, 193 Miss. 706, 8 So.2d 257, 9 So.2d 643, 10 So.2d 346; Gunter v. Reeves, 198 Miss. 31, 21 So.2d 468; Powell v. J.J. Newman Lumber Co., 174 Miss. 685, 165 So. 299; Filtrol Corporation v. Hughes, 199 Miss. 10, 23 So.2d 891.

All of the instructions, when taken together, rightly enunciate the law in this case.

See Forbes v. City of Meridian, supra.