MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Municipalities; County Affairs

By: Representative Davis

AN ACT TO AMEND SECTIONS 21-19-11 AND 19-5-105, MISSISSIPPI CODE OF 1972, TO AUTHORIZE MUNICIPALITIES AND COUNTIES TO CLEAR ABANDONED PRIVATE CEMETERIES AND ASSESS THE COST OF SUCH CLEARING TO THE OWNERS OF THE PRIVATE CEMETERY AND PLACE A LIEN AGAINST THE PROPERTY; TO AMEND SECTIONS 21-37-21 AND 19-7-39, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 21-19-11, Mississippi Code of 1972, is amended as follows:

21-19-11. (1) The governing authority of any municipality is hereby authorized and empowered, on its own motion, or upon the receipt of a petition requesting the municipal authority to so act signed by a majority of the residents residing upon any street or alley within three hundred (300) feet of any abandoned privately owned cemetery or parcel of land alleged to be in need of cleaning, to give notice to the property owner by U.S. registered mail or certified mail two (2) weeks before the date of a hearing, or by service of notice as provided in this section by a police officer at least two (2) weeks before the date of a hearing, or if the property owner be unknown or his address unknown, then by two (2) weeks' notice in a newspaper having a general circulation in the municipality, of a hearing to determine whether or not any abandoned privately owned cemetery or parcel of land is in such a state of uncleanliness as to be a menace to the public health and safety of the community. If, at such hearing, the governing authority shall, in its resolution, adjudicate such a private cemetery or parcel of land in its then condition to be a menace to the public health and safety of the community, the governing authority shall, if the owner does not do so himself, proceed to clean the private cemetery or parcel of land, by the use of municipal employees or by contract, by cutting weeds; filling cisterns; removing rubbish, dilapidated fences, outside toilets, dilapidated buildings and other debris; and draining cesspools and standing water therefrom. Thereafter, the governing authority may, at its next regular meeting, by resolution adjudicate the actual cost of cleaning the property and may also impose a penalty in an amount not to exceed twenty-five percent (25%) of such actual cost. The cost and any penalty may become a civil debt against the property owner, or, at the option of the governing authority, an assessment against the property. The cost assessed against the property means the cost to the municipality of using its own employees to do the work or the cost to the municipality of any contract executed by the municipality to have the work done. The action herein authorized shall not be undertaken against any one (1) private cemetery or parcel of land more than five (5) times in any one (1) calendar year, and the expense of cleaning of said property shall not exceed an aggregate amount of Ten Thousand Dollars ($10,000.00) per year, or the fair market value of the property subsequent to cleaning, whichever is less.

(2) In the event the governing authority declares, by resolution, that the cost and any penalty shall be collected as a civil debt, the governing authority may authorize the institution of a suit on open account against the owner of the private cemetery or property in a court of competent jurisdiction in the manner provided by law for the cost and any penalty, plus court costs, reasonable attorneys' fees and interest from the date that the private cemetery or property was cleaned.

(3) In the event that the governing authority does not declare that the cost and any penalty shall be collected as a civil debt, then the assessment above provided for shall be a lien against the private cemetery or property and may be enrolled in the office of the circuit clerk of the county as other judgments are enrolled, and the tax collector of the municipality shall, upon order of the board of governing authorities, proceed to sell the land to satisfy the lien as now provided by law for the sale of lands for delinquent municipal taxes.

(4) All decisions rendered under the provisions of this section may be appealed in the same manner as other appeals from municipal boards or courts are taken.

(5) The police officer's return on the notice may be in one (1) of the following forms:

(a) Form of personal notice:

"I have this day delivered the within notice personally, by delivering to the within named property owner, _________________ (here state name of party summoned), a true copy of this notice.

This, the _____ day of __________ 19 ____.

____________________ (Police Officer)"

(b) Form of notice where copy left at residence:

"I have this day delivered the within notice to ________________, within named property owner, by leaving a true copy of the same at his (or her) usual place of abode in my municipality, with ________________, his (or her) (here insert wife, husband, son, daughter or some other person, as the case may be), ________________ a member of his (or her) family above the age of sixteen (16) years, and willing to receive such copy. The said property owner is not found in my municipality.

This, the _____ day of__________ 19 ____.

____________________ (Police Officer)"

(c) Form of return when property owner not found within

municipality and is a nonresident thereof:

"I have this day attempted to deliver the within notice to ________________, the within named property owner, and after diligent search and inquiry, I failed to find the same property owner within my municipality, nor could I ascertain the location of any residence of the property owner within my municipality.

This, the _____ day of __________ 19 ____.

____________________ (Police Officer)"

The first mode of notice should be made, if it can be; if not, then the second mode should be made, if it can be; and the return of the second mode of service must negate the officer's ability to make the first. If neither the first nor second mode of service can be made, then the third mode should be made, and the return thereof must negate the officer's ability to make both the first and second. In the event the third mode of service is made, then service shall also be made by publication as provided in subsection (1) of this section.

(6) The officer shall mark on all notices the day of the receipt thereof by him, and he shall return the same on or before the day of the hearing, with a written statement of his proceedings thereon. For failing to note the time of the receipt of notice or for failing to return the same, the officer shall forfeit to the party aggrieved the sum of Twenty-five Dollars ($25.00).

SECTION 2. Section 19-5-105, Mississippi Code of 1972, is amended as follows:

19-5-105. The board of supervisors of any county is hereby authorized and empowered on its own motion, or upon the receipt of a petition requesting the board of supervisors to so act signed by a majority of the residents eighteen (18) years of age or older, residing upon any street or alley, or the reasonable proximity thereto, within seven hundred fifty (750) feet of the precise location of an abandoned private cemetery or any other parcel of land which is located in a populated area or in a housing subdivision and alleged to be in need of cleaning, to give notice to the property owner by United States registered mail, return receipt requested, receipted by addressee only, three (3) weeks before the date of a hearing, or if the property owner be unknown or his address unknown, then by three (3) weeks' notice in a newspaper having a general circulation in the county, of a hearing to determine whether or not the abandoned cemetery or parcel of land is in such a state of uncleanliness as to be a menace to the public health and safety of the community. If at such hearing the board of supervisors shall in its resolution adjudicate the abandoned cemetery or parcel of land in its then condition to be a menace to the public health and safety of the community, the board of supervisors may, if the owner not do so himself, proceed to have the abandoned cemetery or land cleaned by cutting weeds, filling cisterns, and removing rubbish, dilapidated fences, outside toilets, dilapidated buildings and other debris, and draining cesspools and standing water therefrom. Thereafter, the board of supervisors may at its next regular meeting by resolution adjudicate the actual cost of cleaning the said abandoned cemetery or lot and the cost shall become an assessment against the same. However, the action herein authorized shall not be undertaken against any one (1) abandoned private cemetery or parcel of land more than twice in any one (1) calendar year, and the expense of cleaning the abandoned cemetery or lot shall not exceed the amount of Ten Thousand Dollars ($10,000.00) in any one (1) calendar year.

The assessment above provided for shall be a lien against said private cemetery or property and may be enrolled in the office of the circuit clerk of the county as other judgments are enrolled, and the tax collector of the county shall, upon order of the board of supervisors, proceed to sell said private cemetery or land to satisfy said lien as now provided by law for the sale of lands for delinquent taxes. Furthermore, the property owner whose cemetery or land has been sold pursuant to this section shall have the same right of redemption as now provided by law for the sale of lands for delinquent taxes. All decisions rendered under the provisions of this section may be appealed in the same manner as other appeals from county boards are taken.

SECTION 3. Section 21-37-21, Mississippi Code of 1972, is amended as follows:

21-37-21. The governing authorities of municipalities shall have the power and authority to maintain, repair, and enlarge all of the public cemeteries owned or controlled by such municipalities, within or without the municipal limits, at the expense of the treasury of such municipality.

Should there be situated wholly within the corporate limits of any municipality a cemetery which, because of age, abandonment of graves by private owners, or for other good cause, is not being properly maintained, and thereby becomes detrimental to the public health and welfare, and should the governing authorities of that municipality determine that it is to the best interest of the said municipality that the municipality assume the maintenance of such cemetery, then such governing authorities shall have the power and they are hereby authorized to acquire title to such cemetery by gift, purchase, eminent domain, or otherwise and are authorized to thereafter maintain, repair, enlarge, fence or otherwise improve such cemetery.

The governing authorities of any municipality having a population in excess of seven thousand five hundred (7,500) according to the latest available federal census and being located in a county having an area in excess of eight hundred twenty-five (825) square miles which is traversed by a link of the National System of Interstate and Defense Highways, may, in its discretion, appoint a cemetery board of trustees of not less than five (5) nor more than seven (7) members to serve for staggered terms of office with full power and authority to administer and operate its cemetery, including but not limited to authority for the establishment of a fund, from a portion of the proceeds from the sale of cemetery lots, to be held in trust and invested by said trustees to the end of insuring perpetual care and maintenance of said cemetery with the least possible tax levies. The municipal governing authorities and the trustees are authorized and empowered to promulgate and adopt reasonable rules and regulations, not inconsistent with law, deemed essential in carrying out the provisions of this section.

The governing authorities of any municipality are authorized to clean and clear any abandoned private cemetery and assess the costs of such cleaning against the owner of the cemetery and place a lien against the property as provided in Section 21-19-11.

SECTION 4. Section 19-7-39, Mississippi Code of 1972, is amended as follows:

19-7-39. The board of supervisors of any county bordering on the Gulf of Mexico having two (2) judicial districts and where U.S. Highways 90 and 49 intersect is authorized to maintain and repair any public or private nonprofit cemetery located within the county but located outside the corporate boundary of any municipality in the county. The expense of such maintenance may be paid from any available county funds.

The board of supervisors of any county is authorized to accept, in the name of the county, title by deed to any cemetery located within the county but located outside the corporate boundary of any municipality in the county which, due to age, abandonment of graves by private owners or for other good cause, is not being properly maintained or repaired and thereby have become detrimental to the public health and welfare. No acceptance of title by deed shall be valid unless a motion thereof shall be made at a regular or special meeting of the board, adopted by a majority of the board's membership, and entered upon the minutes. No county funds or other public funds shall be expended by the board for the purpose of purchasing such cemetery. The board shall have the power to maintain, repair, enlarge, fence or otherwise improve any cemetery, title to which has been accepted by the board.

The board of supervisors of any county is authorized to clean and clear any abandoned private cemetery and assess the costs of such cleaning against the owner of the cemetery and place a lien against the property as provided in Section 19-5-105.

SECTION 5. This act shall take effect and be in force from and after July 1, 1998.