                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 93-CA-00734-SCT
IN THE MATTER OF THE ENLARGEMENT AND
EXTENSION OF THE MUNICIPAL BOUNDARIES OF
THE CITY OF JACKSON, MISSISSIPPI: GARY
BUNCH, RAY PATTERSON, ERNEST FELKER, C.
HUGH MILNER, ET AL., THE OBJECTORS
v.
CITY OF JACKSON, MISSISSIPPI

DATE OF JUDGMENT:                              6/14/93
TRIAL JUDGE:                                   HON. DENISE SWEET-OWENS
COURT FROM WHICH APPEALED:                     HINDS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:                      JERRY L. MILLS
                                               DALE F. SCHWINDAMAN
ATTORNEY FOR APPELLEE:                         DOUGLAS J. GUNN
NATURE OF THE CASE:                            CIVIL - OTHER
DISPOSITION:                                   REVERSED AND RENDERED - 3/27/97
MOTION FOR REHEARING FILED:                    4/18/97
MANDATE ISSUED:                                8/22/97




     BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.


     ROBERTS, JUSTICE, FOR THE COURT:




¶1. Jackson, Mississippi's mayor, Kane Ditto, recommended to the City Council that the City annex a
total of 24.25 square miles of territory made up of two tracts of land lying south and southwest,
respectively, of Jackson's existing corporate limits.(1) The City's Planning Department presented the
Planning Board and the City Council a four page document outlining their recommendation for
annexing the area. On April 21, 1992, the City Council adopted an ordinance approving the proposed
annexation, and a petition of annexation was filed in the Chancery Court of the First Judicial District
of Hinds County the next day on April 22, 1992.

¶2. Municipalities within three miles of the proposed annexation area were served with process. The
only named defendants to file answers were the City of Raymond, which objected, and the Town of
Terry, which did not. Although the City of Raymond filed an answer objecting to the proposed
annexation, it did not appear at trial. The following individuals also filed objections to the proposed
annexation by the City of Jackson: Ray Patterson, Gary Bunch, Ernest Felker and C. Hugh Milner.

¶3. The matter was tried before the Honorable Denise Sweet-Owens on January 25-29, 1993;
February 8-12, 1993; February 22-24, 1993; and March 4, 1993. On May 14, 1993, the lower court
issued a twenty-six page typed opinion, finding the annexation by the City of Jackson of the entire
proposed area reasonable. A supplemental opinion was issued on May 27, 1993. Final judgment in
favor of the City of Jackson was filed on June 4, 1993. At that time, several of the individual
objectors, ("Objectors"), perfected an appeal to this Court, raising the following issues for review:

     I. WHETHER THE LOWER COURT'S DETERMINATION THAT THE PROPOSED
     ANNEXATION IS "REASONABLE" PURSUANT TO MISS. CODE ANN. § 21-1-33
     (1972) WAS MANIFESTLY WRONG AND UNSUPPORTED BY SUBSTANTIAL OR
     CREDIBLE EVIDENCE.

     II. WHETHER THE LOWER COURT ERRED IN FAILING TO CONSIDER THE
     TOTALITY OF THE CIRCUMSTANCES.

     III. WHETHER THE LEGAL STANDARD SHOULD BE MODIFIED FOR
     DETERMINING REASONABLENESS OF A PROPOSED ANNEXATION.

¶4. After careful review of the record and evidence in this case, we find the chancellor to be
manifestly wrong in holding the proposed annexation of Byram by the City of Jackson to be
reasonable at this time. Accordingly, we reverse and render.

                                     STANDARD OF REVIEW

¶5. This Court, in In the Matter of the Enlargement and Extension of the Municipal Boundaries
of the City of Madison, Mississippi: The City of Jackson, Mississippi v. City of Madison, 650
So.2d 490 (Miss. 1995), gave the following discussion on the chancery court's duty in annexations,
and this Court's standard of review in such cases:

     While "[a]nnexation is a legislative affair," confirmation of annexations is in the province of the
     chancery court. Matter of the Boundaries of City of Jackson, 551 So.2d 861, 863 (Miss.
     1989); Miss. Code Ann. § 21-1-33 (1972). The role of the judiciary in annexations is limited to
     one question: whether the annexation is reasonable. City of Jackson, 551 So.2d at 863. Courts
     are "guided" in this determination of reasonableness by twelve factors previously set forth by
     this Court. This Court recently reaffirmed these twelve "indicia of reasonableness," but held
     "that municipalities must demonstrate through plans and otherwise, that residents of annexed
     areas will receive something of value in return for their tax dollars in order to carry the burden
     of showing reasonableness." In the Matter of the Extension of the Boundaries of the City of
     Columbus, 644 So.2d 1168, 1172 (Miss. 1994).

     The twelve indicia of reasonableness are: (1) the municipality's need to expand, (2) whether the
     area sought to be annexed is reasonably within a path of growth of the city, (3) potential health
     hazards from sewage and waste disposal in the annexed areas, (4) the municipality's financial
     ability to make the improvements and furnish municipal services promised, (5) need for zoning
     and overall planning in the areas, (6) need for municipal services in the areas sought to be
     annexed, (7) whether there are natural barriers between the city and the proposed annexation
     area, (8) past performance and time element involved in the city's provision of services to its
     present residents, (9) economic or other impact of the annexation upon those who live in or
     own property in the proposed annexation area, (10) impact of the annexation upon the voting
     strength of protected minority groups, (11) whether the property owners and other inhabitants
     of the areas sought to be annexed have in the past, and in the foreseeable future unless annexed
     will, because of their reasonable proximity to the corporate limits of the municipality, enjoy
     economic and social benefits of the municipality without paying their fair share of taxes, and
     (12) any other factors that may suggest reasonableness. See Matter of Boundaries of City of
     Jackson, 551 So.2d 861, 864 (Miss. 1989).

     These twelve factors are not separate, independent tests which are conclusive as to
     reasonableness. Western Line Consol. School Dist. v. City of Greenville, 465 So.2d 1057,
     1059 (Miss. 1985). Rather, these factors are "mere indicia of reasonableness." "[T]he ultimate
     determination must be whether the annexation is reasonable under the totality of the
     circumstances." [citations omitted]. An annexation is reasonable only if it is fair. Western Line,
     465 So.2d at 1060. In making this determination, the annexation must be viewed "from the
     perspective of both the city and the landowner[s]" of the proposed annexation area. Id. at 1059-
     60.

     ....

     [I]f the chancellor employed the correct legal standards, this Court's standard of review is
     limited. Reversal of the chancellor's findings regarding reasonableness of the annexation is
     warranted only if the chancellor is manifestly wrong and his findings are not supported by
     substantial credible evidence. Matter of Confirmation of Alteration of Boundaries of City of
     Horn Lake, Miss. and the City of Southaven, Miss. 630 So.2d 10, 16 (Miss. 1993) (citing
     Matter of Enlargement of Corp. Limits of Hattiesburg, 588 So.2d at 819.

City of Jackson v. City of Madison, 650 So.2d at 494-95. See also, In the Matter of the Extension
of the Boundaries of the City of Ridgeland, Mississippi: City of Jackson, Mississippi v. City of
Ridgeland, 651 So.2d 548 (Miss. 1995).

                                 DISCUSSION OF THE ISSUES


     I. WHETHER THE LOWER COURT'S DETERMINATION THAT THE PROPOSED
     ANNEXATION IS "REASONABLE" PURSUANT TO MISS. CODE ANN. § 21-1-33
     (1972) WAS MANIFESTLY WRONG AND UNSUPPORTED BY SUBSTANTIAL OR
     CREDIBLE EVIDENCE.

¶6. The Objectors argue that when evaluating the twelve factors there is a lack of substantial credible
evidence to support the chancellor's finding that the proposed annexation is reasonable. The City of
Jackson, of course, argues that there is more than substantial evidence in the record to support such a
finding. The chancellor in her opinion and supplemental opinion discussed the evidence presented at
trial concerning each of the twelve indicia of reasonableness set out by this Court in prior case law.
The chancellor then concluded that Jackson's annexation of the entire proposed area was reasonable.

¶7. We disagree with the chancellor's findings but, deeming it unnecessary to do so, will not address
the indicia separately as our explanation otherwise is adequate.

¶8. There was considerable undisputed evidence presented at trial that the population of the City of
Jackson is decreasing and, that although there is considerable vacant, developable land within the
City, applications for both residential and commercial building permits have decreased considerably
over the last few years. While it is true that this Court has allowed annexations even though there is
no significant population growth and/or a relatively high percentage of undeveloped land within the
existing city limits, this presence of these factors should, at the very least, be an impediment to
annexation. See, Matter of Enlargement of Corp. Limits of Hattiesburg, 588 So.2d 814. 819-21
(Miss. 1991); City of Greenville v. Farmer's Inc., 513 So.2d 932, 934 (Miss. 1987); Extension of
Boundaries of Horn Lake v. Renfro, 365 So.2d 633, 625 (Miss. 1979).

¶9. Evidence shows 40.15 square miles of vacant land within the City in 1990. The City's population
has declined from 202,888 in 1983 to 196,637 in 1990 with an out-migration from Jackson of 26,532
people. Mayor Ditto admitted at trial that Jackson had no need to expand to accommodate
"anticipated growth within its boundaries." The City admits in its brief that it is not trying to annex
Byram because it has outgrown its existing boundaries, but argues that there are other factors that
indicate its need to expand.

¶10. Michael Bridge, the Objectors' expert in urban and regional development, testified that, "the
vacant land resources of the city are the most dominant resources of the land resources within the
city. It comprises some 25,700 vacant acres, or 37 percent of the total land area within the existing
city." Bridge testified, as follows, concerning the effect of a large amount of vacant and developable
land within a city:

     When you have vacant developable land that's not put into productive urban use, then it
     essentially tends to be a drain on the economy and the fiscal structure of the city. Vacant land--
     normally to go from developed area to vacant land to another developed area, you have to have
     roads. The utilities have to extend through that vacant area. So the city is in a position where
     they have expended in may instances significant resources to extend infrastructure into vacant
     areas and through vacant areas, and if the area does not develop or is not encouraged to
     develop, then it becomes a drain on the city because they have to extend those lines further and
     further. Those are not in productive uses. When those vacant lands go into productive uses,
     then they tend to strengthen the tax base. The converse, when you continually stretch the rubber
     band, you know, ultimately it will break. The concept of strengthening the tax base by ignoring
     the vacant land resources within the existing city is on the simplest basis just totally wrong.

     ....

     Because the city has to extend its full range of services throughout that area, so when it sends
     out a garbage truck, it has to travel more miles of streets to pick up the garbage. The same
     applies to the fire protection, the police protection. You have to extend and maintain utility
     lines through those areas to interconnect the developed areas. The total cost to municipal
     governments substantially greater than a more compact form of development.

¶11. Bridge went on to testify concerning what is known as "leap frog development", that is, "the
interdispersement of large vacant tracts of land between developed portions of land," within the City
of Jackson:

     There are examples of leap frog development not only within the existing city, but in the area
     south of the city. I might say this, that the City of Jackson inherited essentially that land use
     pattern that exists there. That is not something that they created. That was the development
     pattern that existed within the county. But before the city creates even a greater problem
     relative to leap frog development, it should encourage the Capitol City Commission's Report,
     you'll see that that was one of their primary concerns, that the city had to develop a program for
     in-fill development to alleviate the problems associated with leap frog development.

¶12. According to Bridge, the proposed annexation would aggravate the problem of leap frog
development within the City. Bridge stated that in order to alleviate the problem, the City of Jackson
must make "some type of investment within the existing community to encourage that type of
development."

¶13. Bridge went on to discuss the concept of urban sprawl and its effect on the City of Jackson:

     Urban sprawl is essentially the development of properties at an extremely low density. The
     properties are not necessarily characterized by excessively large, vacant parcels interdispersed
     between the development, but that the development tends to have some continuity but such a
     low density that it becomes extremely costly for the city to provide the municipal level services
     and facilities to that area.

     ....

     Most cities try to eliminate sprawl. There have been many planning articles and books written
     on the cost of urban sprawl. Urban sprawl is an extremely expensive manner for a city to service
     the area. . . . What cities attempt to do is to encourage a more intensive form of development,
     and they can do that through the proper application of their zoning ordinance and utility
     extensions.

According to Bridge, annexation would increase the City of Jackson's problems with urban sprawl.

¶14. The City at trial and in its brief has not been at all hesitant to state that it wants the revenues
annexation would provide by expanding its tax base. Numerous witnesses testified at trial that the
City was in need of expanding its tax base in order to continue providing the same level of services.
Although it has been held that a city's need to maintain or expand its tax base, especially as growth
and development occurs on its perimeters, is a factor to be considered when determining the
reasonableness of a proposed annexation, City of Jackson, 551 So.2d at 865, this Court has in the
past, been very critical of annexations which are in effect "tax grabs."

¶15. Over ninety years ago this Court held that "[m]unicipalities are not designed for the purpose
solely, nor chiefly, of raising revenue. The power of extending corporate limits is granted not to be
resorted to for the purpose alone of increasing the income of the municipality. . . ." Forbes v. City of
Meridian, 36 Miss. 243, 38 So. 676, 678 (1905). Much more recently, Justice Smith in his dissenting
opinion in In the Matter of the Enlargement of the City of Gulfport, 627 So.2d 292, 296 (Miss.
1993), stated, "[c]ities should be required to demonstrate other valid reasons for annexation other
than mere tax base increases."

¶16. From studying the record and briefs, especially the testimony of city officials, we believe that the
City of Jackson's primary motivation for the proposed annexation is to expand its tax base. Whether
or not the taxes garnered by annexing Byram would be beneficial to the City of Jackson when
compared to the expenditures that would result from the annexation is debatable. Bridge testified for
the Objectors that it would not.

     It's much easier to improve your tax base when you have developable properties within the city
     and the infrastructure in place or the ability to readily extend that infrastructure than it is to
     develop new infrastructure extending into undeveloped lands.

     ....

     Where you find the most intense development occurring in the City of Jackson is where
     someone else has paid for and developed the infrastructure. The City of Jackson probably has a
     real need to do some investing within their community to enhance the development of their
     properties within the city. It would be cheaper to do that than to go outside of the existing
     borders of the city and continually stretch that rubber band by extending, extending, extending
     infrastructure and services and facilities.

     ....

     I think the City of Jackson is going to see some potential tax benefits in the first few years, but
     as the need for services--as the citizens start knocking on the door expecting the promises as set
     forth in the annexation ordinance to be fulfilled, you're going to see an increasing burden placed
     upon the city.

     ....

     Until the city starts an in-fill process, I don't think we're going to see a dramatic turnaround. I
     think the city's going to have problems.

¶17. We tend to agree with Mr. Bridge's assessment. Before the City of Jackson annexes more land
and residents for which it has had to extend infrastructure and provide services, it should make an
effort to extend that infrastructure to the vacant, developable land within the existing boundaries and
take steps to encourage development in those areas.

¶18. The City of Jackson maintains that if the city experiences a decline it will have an adverse affect
on the entire metropolitan area, including the proposed annexation area. City of Jackson, supra. It is
a fact that Jackson is the capital of the state and its largest city, and for these and other reasons the
City's prosperity affects more than just the city itself. These things are validly taken into
consideration; however, it is not a "super-factor" whereby whatever Jackson wants, Jackson gets.
See, Boundaries of City of Ridgeland, 651 So.2d at 562; City of Jackson v. City of Madison, 650
So.2d at 507; City of Jackson, 551 So.2d 861. We believe the chancellor placed too much
importance on this so-called "Jackson factor."

¶19. The City failed to prove that the current services in the proposed annexation area are
inadequate. Matter of Enlargement of Corp. Limits of City of Hattiesburg, 588 So.2d 814, 824
(Miss. 1991). The City of Jackson produced no Byram resident, other than Ted Somers, Jackson's
Public Works Director, who was not satisfied with the current level of services currently provided in
the proposed annexation area. Instead, all residents who testified expressed concern about a decrease
in the level of services, especially police protection, if annexation occurred. Furthermore, it should be
noted that the proposal for improvements and extension of services presented to the Court by the
City was merely the product of department head and planner recommendations, and the City Council
had not approved any of the improvements the witnesses for the City testified that the City intended
to make in the proposed annexation area. Michael Bridge testified that normally such plans are
presented to the governing authorities for approval prior to being presented to the court.

¶20. Byram resident Julie Bronson, along with many others, testified she was very satisfied with the
Hinds County Sheriff's Department and Byram Volunteer Fire Department. She stated that the
Sheriff's Department was very visible in the area. Even Ted Somers, Jackson's Public Works
Director, testified that Hinds County's road maintenance was at least as good as Jackson's. In fact
Jackson's own written assessment stated that almost all the streets in the proposed annexation area
were in good condition. The same cannot be said about the City's streets.

¶21. Bridge testified "that the utilities that are servicing the Byram area are adequate to meet the
needs in that area." He went on to state that the "equipment that exists in the Volunteer Fire
Department, including that which has been ordered, would exceed the equipment as promised in the
annexation ordinance by the City of Jackson." Bridge testified that "this is the only instance in all the
annexation cases I've ever been involved in where I've seen that the county level of service in terms of
street maintenance and right-of-way maintenance has been noticeably better than the city."

¶22. The City states in its brief that the "undisputed testimony by Jackson was that Jackson is in good
financial shape at present but needs to expand its tax base because real property values are declining
and the overall tax base is stagnant." The Objectors concede that "theoretically Jackson has the
financial ability to make the expenditures it proposes." However, they argue that the City's desire or
will to make promised improvements should be considered in light of the City's past performance of
failing to furnish the promised improvements to the 1976 and 1989 annexed areas.

¶23. The Objectors produced a number of Jackson residents, mostly from the 1976 annexation area,
who testified unfavorably about the level of services provided by the City. Their main complaints
dealt with the City's police and fire protection, road maintenance and sewer service. There was
testimony concerning slow response time of the Jackson Police Department and their failure to
sufficiently investigate crimes. There was also testimony concerning the lack of fire hydrants and
insufficient water flow to adequately fight fires in South Jackson.

¶24. The only municipal service that the chancellor held that the proposed annexation area was in
need of was sewer service. As to all other municipal services, she found only that they would be
enhanced by annexation. When current services are adequate, the fact that annexation may enhance
municipal services should not be given much relevance, see City of Columbus, 644 So.2d at 1178,
especially as here, where the evidence of the likelihood of enhanced service is greatly conflicting.

¶25. Many residents of Jackson's previous annexed areas testified about the City's failure to provide
some of the promised services and improvements to the annexed areas and its substantial delay in
providing others. Marcia Weaver, a member of the Jackson City Council for Ward 4, which includes
a large portion of the 1976 annexation area, was one of the two City Council members to vote
against annexation. Weaver testified that she received numerous calls, some as recent as a week prior
to trial, concerning inadequate water lines to support fire hydrants. Weaver was still receiving calls
from residents angry about the inadequate municipal services. Weaver stated that it was her belief
that the City had not met the needs of its current residents and further annexation would cause a
greater hardship. She testified that the City's performance in the 1976 area had been slow and the
promises made had not been kept. She stated that in her opinion, "[b]ased on the past performance I
just have to say that it [annexation] is not in the city's best interest nor the residents' best interest to
move toward annexation until we can really begin to service those that we annexed years ago." On
cross-examination, Weaver testified that the City did have a need for enhanced revenues, but she
believed there were other options besides annexation.

¶26. Louis Armstrong, Jackson City Council member from Ward 2, which includes the 1989
annexation area, testified that many of the promises made by the City prior to the 1989 annexation
had not been met. Although the five year period for implementation had not expired by the time of
trial, Armstrong testified that he was concerned that the City was "not meeting its obligation to serve
those residents." Regarding the proposal set forth by the City for the 1989 annexation area,
Armstrong testified that no water or sewer service had been extended to the Madison County area,
the City had abandoned its plan to build a new fire station, negotiations for the purchase of the
Livingston Road Water Association or the Ridgeland franchise did not commence in 1990 as
promised, water improvements scheduled for fiscal years 1991 and 1992 had not been made, and fire
ant, and rat control had not been provided as promised.

¶27. Bridge, testifying about the 1976 area, stated that there was widespread open dumping and
inadequate sewer and water service. He stated that the conditions in the area "are not conducive to
encouraging residential development or commercial development or industrial development." Bridge,
who was involved in the 1989 annexation, testified that the only drainage work done in the area,
other than backhoe work, was the placement of two, 15-foot drainage pipes, approximately 2 feet in
diameter placed on a road that leads to two houses.

¶28. The testimony concerning the City's past performance in previously annexed areas compel us to
restate that this Court feels that the City of Jackson should make an effort to extend the infrastructure
and enhance services and facilities within its existing boundaries in order to encourage development
and expand its tax base.

¶29. Of major concern to this Court is the effect on the existing school district boundaries if the
annexation were to be affirmed. It is the desire of the residents of the proposed annexation area that
their children remain a part of the Hinds County School District. At the time of trial, the law
concerning whether or not an annexed area would automatically be incorporated into the school
district of the annexing municipality was in a state of flux and the chancellor dealt with this issue as
the law stood at the time of trial. That is, that the boundaries of the school districts would not
automatically change. There have been some major developments in this area since the final judgment
in this case was rendered. Because of the uncertainty resulting from the unsettled state of the law in
that area, the Hinds County School District ("HCSD") was given leave to file as an Amicus Curiae in
this case.

¶30. The Mississippi legislature in 1986 adopted the Uniform School Law of 1986, Laws 1986, ch.
492 § 1, et. seq. which inter alia repealed Miss. Code Ann. § 37-7-611 (1972), the provision which
automatically expanded municipal school boundaries each time a city annexed additional territory.
Section 52 of the Act amended § 37-7-103 et seq. to provide that upon annexation a municipal
school district's boundaries would expand only with the consent of the school board governing the
annexed area.

¶31. Subsequently, questions were raised, both in this Court and in the federal courts, as to whether §
47 of the Uniform School Law, which repealed § 37-7-611, was precleared by the United States
Attorney General under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. See Greenville
Public School District v. Western Line Consolidated School District, 575 So.2d 956, 958 (Miss.
1990), In Re City of Booneville, 551 So.2d 890, 983-95 (Miss. 1989). In Greenville Public School
Dist., this Court held the Attorney General had in fact precleared the entire Uniform School Law, and
that Miss. Code Ann. § 37-7-611 was implicitly repealed by Section 52. 575 So.2d at 963-4. The
United States Supreme Court denied certiorari in Greenville Public School District v. Western Line
Consolidated School District, ___U.S.___, 112 S.Ct. 1512, 117 L.Ed.2d 649 (1992).

¶32. The United States District Court for the Southern District of Mississippi in Dupree v. Mabus,
776 F.Supp. 290 (S.D. Miss. 1991), also held that the entire Uniform School law had been
precleared. However, on the same day it denied cert. in Western Line, the United States Supreme
Court vacated and remanded Dupree v. Mabus to be considered in light of its holding in Clark v.
Roemer, 500 U.S. 646 (1991). Dupree v. Moore, ___U.S. ___, 112 S.Ct. 1462, 117 L.Ed.2d 609
(1992) (Dupree I). Upon remand the District Court reversed its earlier ruling and found that
Mississippi "did not satisfy requirement that it identify with specificity change in law to be
precleared" and therefore repeal of § 37-7-611 had not been precleared by the Attorney General.
Dupree II, 831 F.Supp. 1310 (S.D. Miss. 1993). This ruling was made some two months after final
judgment in the case sub judice. Furthermore, on October 17, 1994 the U.S. Supreme Court invited
the Solicitor General to "file a brief addressing the effect of this Court's holding in Western Line that
Miss. Code Ann. § 37-7-103 (1972 & Supp. 1990) supersedes Miss. Code Ann. § 37-7-611 (1972)
and repeals it by implication. Moore v. Dupree, ___U.S.___, 115 S.Ct. 353, 130 L.Ed.2d 308 (1994).

¶33. On April 17, 1995, the U.S. Supreme Court in Moore v. Dupree, ___U.S.___, 115 S.Ct. 1684,
131 L.Ed.2d 550, vacated and remanded Dupree II to the District court "to clarify whether it has
enjoined only Section 47 of the Uniform School Law, 1986 Miss.Gen.Laws ch. 492, or whether it
has also enjoined the effect of Section 52 insofar as Section 52 implicitly repealed Miss. Code Ann.
Section 37-7-611 (1972).

¶34. On remand, the United States District Court for the Southern District of Mississippi, in Dupree
v. Moore, Civil Action No. H90-0043(W) ("Dupree III"), held that Section 52 as well as Section 47
was enjoined, stating:

     when Section 52 was submitted for preclearance by the Attorney General, the State of
     Mississippi did not discuss the repealed matter of automatic expansion. Instead, the State of
     Mississippi merely explained the consent factor relative to alterations of school district
     boundaries. Our Order concluded that even if Section 52 repealed § 37-7-611, that fact was not
     submitted to the Attorney General for preclearance. Thus, we are of the opinion that Section 52
     was not submitted with the specificity required by Clark v. Roemer.

Dupree III, slip op. at 4. (footnote omitted).

¶35. The Southern District Court, citing Nickles, et al. v. Western Line School District, et al., Civil
Action No. 4:90-cv-45BO, where the United States District Court for the Northern District of
Mississippi, the Honorable Neal B. Biggers, Jr., presiding, decided on October 30, 1995, that this
Court's decision in Western Line was not binding on it. Dupree III, slip op. at 5. The Court stated:

     Clark v. Roemer was decided after the Mississippi Supreme Court's decision in Western Line
     and after this three-judge court's decision in Dupree v. Mabus, 776 F.Supp. 290 (S.D. Miss.
     1991). Thus, any binding effect the Mississippi Supreme Court's decision in Western Line may
     have had was superseded by the United States Supreme Court's decision in Clark v. Roemer.

Dupree III, slip op at 6. The District Court's decision in Dupree III was affirmed by the United
States Supreme Court on June 10, 1996. See Moore v. Dupree, 64 USLW 3815, 1996 WL 183420.

¶36. The District Court's decision to enjoin Section 52 as well as Section 47 of the Mississippi
Uniform School Law was subsequently stayed by order issued by the United States District Court for
the Southern District on July 30, 1996. The stay was granted in order to allow the State time to seek
a declaratory judgment from the District Court for the District of Columbia under 42 U.S.C. § 1973
c. Further, the Southern District Court sought to avoid the disruption that would occur if its rulings
were implemented and later the District Court for the District of Columbia ruled in favor of the State.
The Supreme Court affirmed the stay issued by the Southern District Court. Dupree v. Moore, No.
96-669, 1997 WL 63807 (S.D. Miss. Feb. 18, 1997). This will allow the State of Mississippi the
opportunity to seek a declaratory judgment in the District Court for the District of Columbia. The
uncertainty regarding the implementation of §§ 47 and 52 of the Mississippi Uniform School Law
affects the reasonableness of the proposed Jackson annexation at this time.

¶37. The Objectors at trial and in their brief argued that the chancellor should have considered
whether or not the Jackson Public School District ("JPSD") could successfully accommodate the
students in the proposed annexation area. The chancellor in response to a motion by the HCSD
determined that the court would determine reasonableness "based on current law as it exists in
Mississippi today" which was that annexation would not effect the status quo of the school districts
involved. The subsequent developments discussed above indicate the possibility that § 37-7-611 may
not have been successfully repealed and is still governing law.

¶38. There are over 1200 students that would be affected by the annexation. The evidence presented
at trial shows that JPSD is reluctant to except the students from the proposed annexation area and
has no proposed plan in place if the school districts' boundaries were to change. Dr. Benjamin
Cannada, then JPSD Superintendent, testified that JPSD was "not seeking any new students to come
into the system." Cannada testified that he thought JPSD could accommodate the additional students
but admitted that with the exception of possibly two schools, all of JPSD's schools were already
operating at or above capacity and that no thought had been given to where the annexed students
would attend school. Dr. Cannada also testified that the funding of a building program that the
schools had received from a recent bond issue was based on current enrollment and growth and the
possibility of annexation had not been taken into account.

¶39. Dr. Leslie Johnson, HCSD Superintendent, testified that if the proposed annexation area was to
be incorporated in to the JPSD it would be a "very devastating situation for " the HCSD. He stated
that HCSD would lose approximately 25% of its student population and about 50% of its students in
that area of the county.

¶40. The effect of annexation on the school districts involved is a serious consideration which should
be addressed. Although the chancellor had case law to support her decision that the school districts
would not be affected at this time, the law is not clear as to how the school districts in an annexed
area will be treated. To allow the annexation to proceed prior to a decision by the District Court for
the District of Columbia would be most unreasonable, as it would go completely against the stay of
injunction issued by the District Court of the Southern District of Mississippi which was recently
affirmed by the Supreme Court.

¶41. The City also maintains that if the annexation is denied then there will most likely be a renewed
effort to incorporate the proposed annexation area, which if successful will effectively cut off one of
the City's two remaining paths of growth. The fact that none of the named defendants in this case
appeared at trial to contest the annexation does not necessarily weigh in favor of the reasonableness
of the proposed annexation. In fact it could be considered as a factor indicating unreasonableness
since one of the City's last potential paths of growth is not being threatened by annexation from other
municipalities. Furthermore, this Court is not encouraging the incorporation of the Byram area, nor
are we saying that Jackson's annexation of this area would not be reasonable at a later time. We
merely find that the record does not support annexation at this time.

     II. WHETHER THE LOWER COURT ERRED IN FAILING TO CONSIDER THE
     TOTALITY OF THE CIRCUMSTANCES.

¶42. The objectors argue that the chancellor failed to consider the totality of the circumstances, as
required, when considering the evidence and making her decision. For the reasons hereinabove
stated, we agree.

     III. WHETHER THE LEGAL STANDARD SHOULD BE MODIFIED FOR
     DETERMINING REASONABLENESS OF A PROPOSED ANNEXATION.

¶43. Lastly, the Objectors ask that this Court use the case sub judice as a vehicle to modify the test
for determining reasonableness under § 21-1-33. As we find the proof before us sufficient for reversal
in this case, we decline the invitation to make any changes at this time to the test of reasonableness in
annexation cases.

                                           CONCLUSION

¶44. This is a case in which the annexing municipality has a declining population and decreasing
development, and the City all but admits that it is simply making a "tax grab." Furthermore, Jackson
failed to produce a single resident or landowner of the proposed annexation area who favored
annexation. The state of the law concerning the effect of annexations on school district boundaries
was uncertain at the time of the chancellor's decision. Until a decision is reached by the District Court
for the District of Columbia regarding the Uniform School Law, allowing the annexation to take
place would run afoul of the most recent decisions of the District Court for the Southern District of
Mississippi and the Supreme Court involving Dupree. All these and other factors have a significant
bearing on the reasonableness of the proposed annexation, and we find that at this time the City of
Jackson's proposed annexation is unfair to the residents of the proposed annexation area and fails to
meet the test of reasonableness. The proof before this Court does not sustain the chancellor's decision
and, accordingly, we reverse.

¶45. REVERSED AND RENDERED.

LEE, C.J., SULLIVAN, P.J., McRAE, SMITH AND MILLS, JJ., CONCUR. PRATHER, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BANKS, J. PITTMAN, J.,
NOT PARTICIPATING.


     PRATHER, PRESIDING JUSTICE, DISSENTING:

¶46. I respectfully dissent. In my view, the chancellor's ruling was supported by substantial evidence
and should be affirmed. The record clearly indicates that the chancellor carefully considered the
various factors relating to reasonableness, and her findings were clearly supported by evidence in the
record. One particular concern I have is with regard to the City's need to expand its tax base. The
objectors would have this Court place little if any importance on this issue, but, it is clearly essential
that the City be able to gain revenue from those citizens who so often enjoy the benefits of its
services. As to the City's needs in this regard, the chancellor found that:

     The City's evidence of need to expand was more than adequate. As the economic,
     governmental, and cultural center of Mississippi, Jackson's continued economic well being is
     important to the central portion of Mississippi and the entire state. One of the indicators of a
     declining tax base in Jackson is the fact that real property assessed valuation in Jackson has
     declined in the past three years, indicating a clear trend toward stagnant tax revenues. A
     substantial portion of Jackson's overall revenue comes from its real property tax revenues,
     making a decline of such revenue quite significant.

¶47. This Court has held that City of Jackson's need to maintain or expand its tax base, especially as
growth and development occurs on its perimeters, is a factor to be considered under the "need to
expand" factor. In Matter of Extension of Boundaries of City of Jackson, 551 So. 2d 861 (Miss.
1989), this Court wrote that:

     Jackson's need for an expanded tax base is reasonable as well. As a matter of fact, recent years
     reflect a gradual recession of Jackson's (economic) life blood to the various surrounding
     communities. These communities have experienced meteoric growth, most of them with a
     planned development. They have drained off and continue to drain off the life of the city's flow
     of wealth in people, culture and dollars. Indeed, the very statistics recited by the Court below
     are the product of the flight of so many persons from Jackson's corporate limits, not so far as to
     deprive themselves of full access to the economic, social and cultural benefits Jackson has to
     offer but only so far as to sever their relationship with Jackson's assessor and tax collector.
     Barring a wholly unanticipated act of altruism by Ridgeland, Madison, Flowood, Pearl,
     Richland, Florence or Clinton - not to mention unincorporated western Rankin County, Jackson
     faces the certainty of a slow but sure erosion of its tax base by the unilateral actions of these
     selfish former citizens.

City of Jackson, 551 So.2d at 865. The words of this Court in City of Jackson are equally applicable
today. I find it ironic that representatives of areas which have grown largely out of a desire to avoid
taxation for the services which they enjoy in City of Jackson should accuse the City of attempting a
"tax grab" out of considerations of greed.

¶48. In the case of City of Jackson, the need for tax dollars is more a matter of survival than greed.
As the home of many government buildings, City of Jackson is faced with the burden of having much
of its real estate occupied by tax-exempt entities, and the City has recently seen a flight of important
tax-paying businesses to surrounding areas. This Court has given some, but, in my view, insufficient,
consideration to City of Jackson's need for physical expansion outside of its current boundaries, but
the welfare of our capital city depends upon more than available land. Tax-paying citizens are indeed
the lifeblood of a modern city, and allowing City of Jackson the physical area it needs to expand
while depriving it of the economic lifeblood it needs to survive would be tantamount to allowing the
City to wither on the vine.

¶49. This majority decision presents a challenge to the leadership of the metro communities of the
greater Jackson area to develop inter-governmental co-operative activities that improve the
infrastructure of the entire area and advance the general welfare of the cooperating people. By
appropriate action of their joint governing bodies, the municipalities of the metro area should seek to
exercise powers common to them, or seek statutory legislation for such action, to enhance services,
facilities, or other projects. Co-operative intergovernmental relationships of all of the metro
municipalities engender the improvement of the quality of service for the entire area as most of the
workforce comes into City of Jackson to earn their livelihood.

¶50. Although revenue considerations constitute one of City of Jackson's most pressing problems at
this time, the fact remains that the majority's opinion will also serve to place in jeopardy one of City
of Jackson's two remaining paths of growth. The chancellor noted that City of Jackson's ability to
expand towards the east, north, northeast, and west have been cut off by surrounding communities,
and the majority's opinion places the area to the south/south-west in increasing danger of being cut
off as well. It is clear that Byram lies in one of City of Jackson's few remaining potential paths of
growth, and this Court noted in City of Jackson that it need only be shown that the area to be
annexed is, "in a path of growth, not necessarily the most urgent or even the city's primary path of
growth." City of Jackson, 551 So.2d at 865.

¶51. Although City of Jackson has not been experiencing growth in the last few years, the potential
for growth nevertheless remains. That potential for growth will be seriously and adversely affected,
however, if this Court allows the gradual encirclement of our capital city to continue. This Court
wrote in City of Jackson that:

     This is not an ordinary annexation case. Much more is at stake than whether a large
     municipality may annex 4.92 square miles along its northern border. Rather, we must decide
     whether Mississippi's largest and capital city, already largely landlocked by a plethora of
     bedroom communities, will have another nail driven in the coffin which, if closed, will doom it
     to the fate already experienced by so may central cities around the nation. It is patently
     unreasonable that this should occur.

City of Jackson, 551 So.2d at 862. I find unpersuasive the objectors' argument that the City has no
need to expand based on the fact that it is not experiencing a population growth. In previous cases,
this Court has allowed annexations in cases in which there was no significant population growth
and/or a relatively high percentage of undeveloped land within the existing city limits. See Matter of
Enlargement of Corp. Limits of City of Hattiesburg, 588 So.2d 814, 819-21 (Miss. 1991); City of
Greenville v. Farmer's, Inc., 513 So.2d 932, 934 (Miss. 1987); Extension of Boundaries of Horn
Lake v. Renfro, 365 So.2d 623, 625 (Miss. 1979).

¶52. This Court should not permit the annexation without a showing that the citizens in the
annexation area would receive value for their tax dollars. Extension of Boundaries Columbus, 644
So.2d 1168 (Miss. 1994). In this regard, the chancellor found that the increased taxes that would be
imposed on residents in the annexation area would be offset by increased services and a reduction in
fire insurance premiums and water rates. As both parties agree, the City of Jackson has the financial
ability to make improvements and furnish necessary services. Although the City's past performance in
its previous annexed areas has at times been less than exemplary, the evidence does show that City of
Jackson has provided numerous services and improvements in annexed areas.

¶53. A continuation in City of Jackson's decline will have an adverse effect on the entire metropolitan
area, including the proposed annexation area. If the annexation is denied, there will most likely be a
renewed effort to incorporate the proposed annexation area which, if successful, would effectively
cut off one of the City of Jackson's two remaining paths of growth. In my view, the chancellor
properly gave serious consideration to the needs of our capital city in concluding the annexation to be
reasonable, and I would affirm her ruling. Accordingly, I dissent.

BANKS, J., JOINS THIS OPINION.




1. The proposed annexation area makes up a significant portion of the unincorporated community
known as Byram. For the purposes of this opinion, the terms "Byram" and "proposed annexation
area" will be used interchangeably.
