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WILSON G. BRANDON AND PAUL G. SMITH v. CITY OF HATTIESBURG

JULY 30, 1986

WILSON G. BRANDON AND PAUL G. SMITH
v.
CITY OF HATTIESBURG, A MUNICIPAL CORPORATION



BEFORE ROY NOBLE LEE, P. J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This industrial park bond validation proceeding turns on whether the City of Hattiesburg may lawfully proceed under a local and private act which dispenses with the necessity for a bond issue election, except upon petition of ten percent of the City's registered voters.

Scrutinizing the local and private act under Article 4, Sections 87-90 of our Constitution, we find it within the authority of the legislature to enact. The City of Hattiesburg of right might proceed under it, as the City has elected to do. We affirm.

 II.

 These proceedings were commenced on December 3, 1984, when Wilson G. Brandon and Paul G. Smith filed their complaint in the Chancery Court of Forrest County, Mississippi, seeking injunctive and declaratory relief with respect to the City of Hattiesburg's plans to issue general obligation bonds in the principal amount of $1,100,000.00 to finance acquisition of suitable land to be used as an industrial park.

 Thereafter, on March 6, 1985, the City of Hattiesburg commenced in the same Chancery Court bond validation proceedings. See, Miss. Code Ann. 31-13-5, et seq. (1972). The declaratory judgment and bond validation proceedings were consolidated for trial. Compare In Re Validation of $7,800,000.00 Combined Utility System Revenue Bond, Gautier Utility District, Jackson County, Etc., 465 So.2d 1003, 1011-15 (Miss. 1985) Thereinafter" Gautier Utility District "). After much squabbling regarding the scope of the litigation, the consolidated matters proceeded to hearing on the merits, and on March 29, 1985, the Chancery Court filed its decree validating the general obligation industrial bonds and dismissing the declaratory judgment/injunctive action. This appeal has followed.

 III.

 At issue here is the City's claimed authority to proceed in issuance of general obligation industrial park bonds under Chapter 886, Local & Private Laws of Mississippi, Regular Session 1984 (herein" the local & private act "), Section 6 of which requires that a bond issue referendum election regarding such matter be held upon timely petition of ten percent (10%) of the qualified electors of the City. Objectors Brandon and Smith produced petitions containing the names of 1,979 putative voters, only to find that their request for an election was denied as more than a thousand voters short. *fn1

 Objectors argue that the City had no authority to proceed under the local and private act, inasmuch as the general laws of this state provide for a bond issue referendum election without reference to any such petition. The general law does so provide.

 General legislation regarding industrial parks enacted originally in 1960, has been codified as Miss. Code Ann. 57-5-1, et seq. (1972). We find it expressly provided, in Section 57-5-19, that

 . . . municipalities . . . shall be governed in holding municipal elections, in the issuance of municipal bonds, . . . by the same conditions, terms and laws applicable to the issuance of industrial bonds as authorized and provided by Sections 57-1-1 to 57-1-51, . . . .

 Turning to the referenced statutes, we find that Section 57-1-25 in no way conditions the municipality's obligation to hold an election upon the filing of a petition signed by a certain percentage of the registered voters. Section 57-1-25, providing no discretion, requires that an election be called. Section 57-5-19 employs the mandatory" shall "and provides that municipalities" be governed in holding municipal elections, in the issuance of municipal bonds, . . . [for industrial park purposes] by the same conditions, terms and laws . . . provided by Section 57-1-25] ". We find the conclusion inescapable that general law allows no discretion with respect to the calling of an election for an industrial park bond issue such as that contemplated here: one must be called.

 In their briefs and at oral argument, the parties erroneously centered their attention on the election provisions of Miss. Code Ann. 21-33-307 (Supp. 1985). That statute requires that an election be called

 if ten percent of the qualified electors of the municipality, or fifteen hundred, whichever is the lesser, shall file a written protest ...


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