                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2007-CA-00673-SCT

RICHARD H. BENNETT, INDIVIDUALLY AND
THE CONCERNED CITIZENS OF PEARL RIVER
COUNTY, MISSISSIPPI

v.

BOARD OF SUPERVISORS OF PEARL RIVER
COUNTY, MISSISSIPPI


DATE OF JUDGMENT:                        03/28/2007
TRIAL JUDGE:                             HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:               PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                 WILLIAM H. JONES
ATTORNEYS FOR APPELLEE:                  LAWRENCE C. GUNN, JR.
                                         CLAIBORNE McDONALD, IV
NATURE OF THE CASE:                      CIVIL - OTHER
DISPOSITION:                             AFFIRMED - 08/07/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      BEFORE DIAZ, P.J., EASLEY AND LAMAR, JJ.

      LAMAR, JUSTICE, FOR THE COURT:

¶1.   This case comes to the Court on appeal from the Circuit Court of Pearl River County.

Dr. Richard H. Bennett and the “Concerned Citizens of Pearl River County” filed a

complaint for writ of mandamus in an attempt to compel the Pearl River County Board of

Supervisors to respond to a petition which would require a countywide vote to be held on

whether to enlarge the county landfill. The trial court granted summary judgment for the
Board of Supervisors and denied Bennett’s request for writ of mandamus. Bennett appeals

the trial court’s decision.

                      FACTS AND COURSE OF PROCEEDINGS

¶2.    Transamerica Waste Central Landfill, Inc., applied to the Pearl River County Board

of Supervisors in May of 2005 for an expansion of Pearl River County’s landfill. That

request was denied by the Board in August of 2005. Transamerica made an amended request

to expand the landfill in April of 2006.

¶3.    On October 17, 2005, Bennett submitted to the Board a petition signed by 8,120

qualified electors of Pearl River County.1 The petition read as follows:

       PETITION ADDRESSED TO BOARD OF SUPERVISORS OF PEARL
       RIVER COUNTY, STATE OF MISSISSIPPI, PURSUANT TO TITLE 19,
       MISSISSIPPI CODE SECTION 19-3-55

       We, being qualified electors of Pearl River County, Mississippi, hereby
       petition the Board of Supervisors of Pearl River County, Mississippi to either
       pass an order and/or ordinance putting the following proposition in force and
       effect or immediately submit the same to a vote of the qualified electors of this
       County, after giving 30-days notice of said election, said notice to contain a
       statement of the proposition to be voted on at said election: Proposition: As of
       June 1, 2005, there is in effect a Solid Waste Plan for Pearl River County,
       Mississippi. In order for there to be any expansion of that Solid Waste Plan,
       either in service area or in size with respect to any existing Landfill situated
       within the territorial jurisdiction of Pearl River County, such expansion shall
       be authorized and permitted only through an election held pursuant to Title 19,
       Mississippi Code Section 19-3-55.




       1
        This point is not disputed. It is also not disputed that 8,120 exceeds twenty-five
percent of the qualified electorate of Pearl River County.

                                              2
When the Board failed to respond to the petition, Bennett’s attorney sent a letter to the

Board’s attorney on May 23, 2006. This letter requested a response and informed the

Board’s attorney that if there was no response within ten days, it would be assumed that the

Board was refusing to acknowledge jurisdiction.

¶4.    The Board did not respond to Bennett’s letter, and on June 9, 2006, Bennett filed a

Complaint for Writ of Mandamus in the Circuit Court of Pearl River County. The Board

responded with its answer and defenses on August 9, 2006. Bennett moved to strike the

Board’s defenses, and on December 7, 2006, the Board responded to Bennett’s motion and

filed a motion for summary judgment. A hearing on all open motions was held on March 13,

2007. The trial court entered an order granting the Board’s motion for summary judgment

and denying the plaintiffs’ petition for writ of mandamus on March 28, 2007. Bennett

appeals.

                                        ANALYSIS

¶5.    It is well-settled that “[t]he writ of mandamus is a discretionary writ and even in a

case where an absolute legal right is shown, the writ will be withheld whenever the public

interest would be adversely affected.” Bd. of Supervisors v. Miss. State Highway Comm’n,

207 Miss. 839, 42 So. 2d 802, 805 (1949). In its memorandum opinion and order, the trial

court gave three primary reasons for its denial of Bennett’s request for writ of mandamus:

(1) the extraordinary nature of the remedy of mandamus, (2) the doctrine of preemption, and

(3) the plaintiffs’ lack of standing. The plaintiffs argue that, as the Board refused to accept

jurisdiction of the petition, mandamus was their only option.

                                              3
¶6.    Mississippi Code Annotated § 11-41-1 provides:

       On the complaint of the state, by its Attorney General or a district attorney, in
       any matter affecting the public interest, or on the complaint of any private
       person who is interested, the judgment shall be issued by the circuit court,
       commanding any inferior tribunal, corporation, board, officer, or person to do
       or not to do an act the performance or omission of which the law specially
       enjoins as a duty resulting from an office, trust, or station, where there is not
       a plain, adequate, and speedy remedy in the ordinary course of law.

Miss. Code Ann. § 11-41-1 (Rev. 2002). Our case law has expounded upon the remedy of

mandamus by requiring that four essential elements coexist before a writ of mandamus may

issue: (1) the petitioner must be authorized to bring the suit, (2) there must be a clear right

in petitioner to the relief sought, (3) there must exist a legal duty on the part of the defendant

to do the thing which the petitioner seeks to compel, and (4) there must be no other adequate

remedy at law. Aldridge v. West, 929 So. 2d 298, 302 (Miss. 2006). In addition to the “four

essentials,” petitioners for writs of mandamus must also show that they have an interest

“separate from or in excess of that of the general public” in order to have standing to seek

the writ. Id. (citing Jackson County Sch. Bd. v. Osborn, 605 So. 2d 731, 734 (Miss. 1992)).

¶7.    The issue of standing is a question of law which we review de novo. DuPree v.

Carroll, 967 So. 2d 27, 28 (Miss. 2007). In DuPree, this Court analyzed the standing

requirement for the remedy of mandamus as it applied members of the City Council of

Hattiesburg, who were seeking a writ of mandamus against the Mayor of Hattiesburg. The

council members sought the writ after the mayor, who had just been reelected, refused to

resubmit his department directors to the council for approval as required by statute. Id. The

trial court granted mandamus, and the mayor appealed. Affirming the trial court’s grant of

                                                4
mandamus to the city council members, this Court stated, “[t]he council members have

demonstrated that, by virtue of their position as the legislative check and balance on the

executive power of the mayor, they have a separate interest or an interest in excess of the

general public. Accordingly, they have also demonstrated they have the standing necessary

to seek a writ of mandamus.” Id. at 30.

¶8.    The Court also discussed the “separate interest or excess interest” requirement for

standing in Wilson v. City of Laurel, 249 So. 2d 801 (Miss. 1971). The petitioners in Wilson

requested a writ of mandamus to require the City of Laurel to hold an election on a bond

issue. Wilson, 249 So. 2d 801. The trial court denied the request for mandamus in part

because the petitioners had failed to show that they would suffer any injury other than that

suffered by the citizens of the City of Laurel as a whole. Id. This Court affirmed the trial

court’s denial of mandamus, stating, “[s]ince the petition for the writ of mandamus does not

allege and claim that the [petitioners] will suffer any special interest, legal injury or personal

damages whatsoever, the lower court was manifestly correct in denying the writ of

mandamus.” Id. at 802.

¶9.    Bennett and the “Concerned Citizens” must establish standing under the “any-private-

person-who-is-interested” provision of Mississippi Code Annotated Section 11-41-1. The

Board alleges that the plaintiffs lack standing because they have failed to show that they have

any interest in this subject matter separate or in excess of that of the general citizens of Pearl

River County. We agree.



                                                5
¶10.   In their complaint for writ of mandamus, the plaintiffs failed even to allege that they

had any interest at all that would set them apart from the general public. Much like the

petitioners in Wilson, the plaintiffs have failed to show that they will suffer in any way that

the general population of Pearl River County will not; and therefore, they lack standing to

pursue the remedy of mandamus.

                                      CONCLUSION

¶11.   As the plaintiffs did not show that they had any interest in this case separate from or

in excess of that of the general population of Pearl River County, they lacked standing to

pursue the remedy of mandamus. The trial court’s denial of the plaintiffs’ petition for writ

of mandamus is affirmed.

¶12.   AFFIRMED.

      SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, GRAVES AND DICKINSON,
JJ., CONCUR.     WALLER, P.J., CONCURS IN PART AND IN RESULT.
RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY WALLER, P.J. ; DICKINSON, J. JOINS IN PART.


       RANDOLPH, JUSTICE, SPECIALLY CONCURRING:

¶13.   A writ of mandamus is “an extraordinary writ, available only where there is not a

plain, adequate and speedy legal or administrative remedy.” In re Chisolm, 837 So. 2d 183,

189 (Miss. 2003) (quoting Cowan v. Gulf City Fisheries, Inc., 344 So. 2d 724, 725 (Miss.

1977)) (emphasis added). In their “Complaint for Writ of Mandamus,” Richard H. Bennett

and the Concerned Citizens of Pearl River County, Mississippi (“Plaintiffs”) seek to engage

the judiciary to require a governing body, the Board, to perform an act not authorized by law.

                                              6
Since the statute relied upon 2 does not authorize the governing body to act, our analysis

should be short shrift. Thus, I concur in result, but for different reasons.

¶14.   Mississippi Code Annotated Section 19-3-55 provides, in part, that:

       [u]nless otherwise specifically required by law, the board of supervisors of any
       county shall upon the filing of a petition touching any matter affecting the
       entire county and over which it has jurisdiction, signed by twenty-five per
       cent. of the qualified electors of the county, either pass an order putting said
       proposition in force and effect or immediately submit the same to a vote of the
       qualified electors of the county . . . .

Miss. Code Ann. § 19-3-55 (Rev. 2003) (emphasis added). The “Solid Wastes Disposal Law

of 1974,” see Miss. Code Ann. § 17-17-1 et seq. (Rev. 2003) (“Disposal Act”), fits squarely

within the exception to Mississippi Code Annotated Section 19-3-55. The Disposal Act also

provides a plain, adequate and speedy legal remedy which nullifies the use of Mississippi

Code Annotated Section 11-41-1 (Rev. 2002). The alternative avenues of relief outlined in

Chapter 17 constitute “a plain, adequate and speedy legal . . . remedy[,]” rendering the

“extraordinary” writ of mandamus improper. In re Chisolm, 837 So. 2d at 189 (quoting

Cowan, 344 So. 2d at 725). Therefore, the learned circuit judge correctly determined that

“in light of the facts, extraordinary relief is not warranted[.]”

¶15.   The Majority limits its analysis to the standing issue. My concern is that, but for the

exception to Mississippi Code Annotated Section 19-3-55 provided by the Disposal Act, the

Board is statutorily required to “either pass an order putting said proposition in force and

effect or immediately submit the same to a vote of the qualified electors of the county . . . .”


       2
           See Miss. Code Ann. § 19-3-55 (Rev. 2003).

                                               7
Miss. Code Ann. § 19-3-55 (Rev. 2003). In such case, the Plaintiffs would have statutorily

created standing, pursuant to Mississippi Code Annotated Section 19-3-55, to compel the

Board’s compliance via the procedural means of a writ of mandamus. In short, it is this

exception, along with the alternative legal remedy provided by the Disposal Act, not

standing, which warrants denial of the writ.

¶16.   Nonetheless, I concur with the result. The Plaintiffs failed to satisfy the requirements

for the issuance of the writ as provided in Mississippi Code Annotated Section 11-1-41.

Therefore, their application was properly denied.

     WALLER, P.J., JOINS THIS OPINION.                    DICKINSON, J., JOINS THIS
OPINION IN PART.




                                               8
