Mississippi

Constitutional Provisions:

The Mississippi delegation of home rule authority is statutory, but the constitution does allow the legislature to enact statutes allowing cities and towns to adopt charters.

Miss. Const. art. 4 § 88: “The Legislature shall pass general laws, under which local and private interest shall be provided for and protected, and under which cities and towns may be chartered and their charters amended, and under which corporations may be created, organized, and their acts of incorporation altered; and all such laws shall be subject to repeal or amendment.”

Statutory Provisions:

The statutory grant of home rule authority to Mississippi municipalities is found at Miss. Code Ann. § 21-17-5(1): “The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances. In addition to those powers granted by specific provisions of general law, the governing authorities of municipalities shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances.” Counties have been granted the same powers as cities. Miss. Code Ann. § 19-3-40(1) (“The board of supervisors of any county shall have the power to adopt any orders, resolutions or ordinances with respect to county affairs, property and finances, for which no specific provision has been made by general law and which are not inconsistent with the Mississippi Constitution, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi . . .”).

Municipalities are not permitted to levy taxes, issue bonds, regulate certain parts of local elections, or to change the structure or form of the municipal governments, among other restrictions. Miss. Code. Ann. § 21-17-5(2). For these restricted activities, cities must be given express authority elsewhere in state law to exercise such legislative power. Id.

Mississippi courts have found preemption where a statute expressly states the legislature’s intent to preempt a matter or when a local ordinance and state law directly conflict. See Maynard v. City of Tupelo, 691 So. 2d 385, 387 (Miss. 1997). It appears that Mississippi courts do not recognize field preemption. See Delphi Oil, Inc. v. Forrest Cty. Bd. of Supr’s, 114 So. 3d 719, 724 (Miss. 2013) (finding no support for the “federal doctrine” in state case law to apply to the matter). A unique feature of Mississippi home rule case law, held in at least one case, is that when a local ordinance serves an important public policy, there must be a “clear expression of [legislative] intent” to preempt the ordinance. Maynard, 691 So. 2d at 388.

Express Preemption: 

Express preemption occurs when the state legislature includes explicit preemptive language in state statutes. For example, Mississippi has expressly preempted local governments from enacting any ordinance that restricts firearms: “Subject to the provisions of Section 45-9-53, no county or municipality may adopt any ordinance that restricts the possession, carrying, transportation, sale, transfer or ownership of firearms or ammunition or their components.” Miss. Code Ann. § 45-9-1(1).

Field Preemption: 

At the time of this publication, we were not able to identify any cases in which Mississippi courts recognized field preemption. See Delphi Oil, Inc., 114 So. 3d at 724.

Conflict Preemption: 

Conflict preemption occurs when there is outright or actual conflict between state and local law. There is little case law in Mississippi that addresses conflict preemption. Mississippi’s Supreme Court has affirmed, however, that “in any conflict between an ordinance and a statute, the latter must prevail.” Collins v. City of Hazlehurst, 709 So. 2d 408, 411 (Miss. 1997). Additionally, “[i]f a county or municipality passes an ordinance which stands in opposition to the law as pronounced by the legislature, the ordinance, to the extent that it contradicts state law, will be found void by this Court.” Delphi Oil, Inc., 114 So. 3d at 722. In City of Hazlehurst, the court held that a city ordinance prohibiting individuals under twenty-one from entering an establishment with an on-premises retail beer permit was validly enacted pursuant to a specific legislative grant of power to cities to regulate the sale of alcohol. 709 So. 2d at 412. The court further found that the ordinance did not conflict with a state statute that allowed minors to enter premises for retail sale of beer or wine when accompanied and supervised. Id. at 414.

Building Electrification. Miss. Code Ann. § 17-25-34: “No political subdivision of this state may adopt an ordinance, resolution, regulation, code or policy that prohibits, or has the effect of prohibiting the expansion, utilization, connection or reconnection of a service based upon the type or source of energy to be delivered to an individual customer.”

Plastic Containers. Miss. Code Ann. § 17-1-73: No local government may “adopt or enforce an ordinance that regulates the use, disposition or sale of auxiliary containers; prohibits or restricts auxiliary containers; or imposes a fee, charge or tax on auxiliary containers or additional sales tax to consumer, where an ‘auxiliary container’ is defined as, among other things, a plastic bag, cup, bottle, or other packaging.”

Mississippi case law related to municipal home rule and preemption of local laws is limited, but several cases describe how Mississippi courts generally view municipal authority and the state’s power to preempt local ordinances:

• Jones v. City of Canton, 278 So. 3d 1129 (Miss. 2019): In this appeal to the Mississippi Supreme Court, the question was whether a city ordinance violated the state constitution. The plaintiff was removed as a trustee from the Canton Public School District by the Board of Aldermen (the Board) of the City of Canton under a city ordinance and sued, arguing that the Board lacked the authority to remove him as a public official. Id. at 1131. The parties agreed that there existed no statutory grant of power to the Board to remove a school-board trustee from that position, but the court considered whether, pursuant to the home rule statute, the Board’s action was inconsistent with state law or the state constitution. Id. The court noted that article 6, section 175 of Mississippi’s constitution provides the removal process for all public officers, and that the attorney general’s office stated that a trustee of a municipal separate school district “can only be removed pursuant to a specific statutory provision.” Id. at 1132. The city argued that because the home rule statute did not include removal of public officers as an exception to municipal power, and that cities do not need authorization from the legislature to adopt ordinances, the city was within its authority to provide a mechanism to remove public officers. Id. at 1133–34. The court held that section 175 represents the exclusive means of removal, and because the plaintiff was a public officer, he could only be removed in accordance with section 175. Id. at 1134. Thus, the city ordinance was inconsistent with the state constitution. 

• Mayor of Ocean Springs v. Homebuilders Ass’n of Mississippi, 932 So. 2d 44 (Miss. 2006): The Mayor and Board of Alderman of the city of Ocean Springs adopted impact fee ordinances for various public improvements and services, including fire and police facility development. Id. at 47. Construction and development groups challenged the ordinances, arguing that the impact fees constituted illegal taxes that the city did not have the power to enact. Id. The lower court held in favor of the construction and development groups, finding the impact fees to be taxes. Id. at 48. On appeal, the Mississippi Supreme Court found that no constitutional provision, state statute, or common law authorized the adoption and implementation of impact fees like the ones adopted by the city. Id. at 51–53. In other words, the state had not expressly granted that power to cities. Still, the city maintained that its authority to adopt impact fees was derived in part from the home rule statute. Id. The court agreed in part, finding that home rule authority grants municipalities authority to impose fees, but not taxes. Id. In this case, the court held the charge at issue to be a tax, and therefore the city did not have the authority to assess it.

• Delphi Oil, Inc. v. Forrest Cty. Bd. of Sup’rs, 114 So. 3d 719 (Miss. 2013): In response to an explosion at an oil and gas storage tank in Forrest County that killed two teenagers, the Forrest County Board of Supervisors passed an ordinance requiring that oil and gas facilities within Forrest County be sited within fencing. Id. at 720. Delphi Oil appealed the ordinance to the Circuit Court of Forrest County, which found that the fencing ordinance was within the Forrest County Board’s authority to protect the health and safety of county residents. Id. at 721. On appeal to the Mississippi Supreme Court, Delphi Oil argued that the regulatory authority of the Mississippi Oil and Gas Board (OGB) preempts any local regulation of oil and gas activity, and thus the ordinance should be invalidated. The court considered “the express language of a statute to determine whether there is a direct conflict between the state statute and the local ordinance.” Id. at 723. Looking to the statutes and regulations governing the OGB, the court found that state law did not expressly define OGB’s role in promoting the public safety from the dangers posed by oil and gas operations nor did it give exclusive authority to OGB concerning the prevention of blowouts and fire hazards. Id. at 724. Consequently, the court held that the ordinance was not inconsistent with the OGB statutes and regulations, which did not address perimeter fencing, and could instead “be read as supplemental to th[o]se laws.” Id.

Other Relevant Cases 

Ryals v. Bd. of Sup’rs, 48 So. 3d 444 (Miss. 2010) (partially preempting a county ordinance regulating alcohol where it conflicted with state law but upholding the portion that addressed matters not expressly covered by state statute). 

Maynard v. City of Tupelo, 691 So. 2d 385 (Miss. 1997) (holding that a local ordinance prohibiting alcohol consumption in commercial establishments during certain hours was not preempted because state law did not clearly express an intent to preempt and strong public policy considerations supported local regulation).

Somerville v. Keeler, 145 So. 721 (Miss. 1933) (upholding a local ordinance as a valid exercise of municipal authority over streets because it was “merely supplementary” to a state driving statute and did not conflict with state law).

The Mississippi Building Codes Council adopts statewide codes. Miss. Code Ann. § 17-2-3. Local governments can opt out of the latest statewide codes, but they must adopt at a minimum any of the three latest adopted edition of the International Code Council’s (ICC) International Building Code (IBC), the International Residential Code (IRC), and any other rules adopted by the Mississippi Building Codes Council.¹ See Miss. Code Ann §§ 17-2-4(3); § 17-2-5. Building code adoption is therefore managed locally, and the process for updating local building codes can have different permutations. Local governments must enforce any codes they adopt. Miss. Code Ann. § 17-2-5(3). Mississippi’s Building Codes Council has most recently adopted the 2018 version of the IBC, among other ICC codes updated in 2018.² Jackson, for example, has adopted the ICC’s 2018 editions.

In addition, H.B. 1281 of 2013 updated the state’s commercial building energy efficiency codes to the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 90.1, which applied to certain public buildings, commercial buildings, and state-owned buildings. Miss. Code Ann. § 57-39-21. But Mississippi has not kept up with the ASHRAE’s three-year updates, and the energy efficiency standards were repealed as of July 1, 2023. Id. at § 57-39-21(4).

What is the relevant utility regulatory body in the state? Who and what does it regulate? The Mississippi Public Service Commission (MPSC) is vested with “exclusive original jurisdiction over the intrastate business and property of public utilities.” Miss. Code Ann. § 77-3-5. The MPSC has regulatory authority over the state’s two investor-owned utilities³ for both electricity and gas and limited authority over municipal utilities and electric cooperatives (code of conduct, electric choice rates, service territory designation, and service quality and safety standards). See Miss. Code Ann. §§ 77-3-1; 77-3-5. The MPSC’s authority over Entergy Mississippi and Mississippi Power includes ratemaking. See Miss. Code Ann. §§ 77-3-35, 77-3-37. 

Municipally-owned utilities may set their own electricity rates, free from MPSC oversight, and do not need to obtain a franchise or other state permit “to construct, improve, enlarge, or repair any system” of electricity generation or distribution. See Miss. Code Ann. § 21-27-29; see also Miss. Code Ann. § 21-27-1(b).

What authority, if any, do municipalities have over utilities? Mississippi state law has not delegated general authority to local governments to regulate utilities. Municipal authority over utilities is very limited because of the MPSC’s “general jurisdiction and extensive regulatory power[] over public utilities.” Capital Elec. Power Ass’n v. Mississippi Power & Light Co., 216 So. 2d 428, 430 (Miss. 1968). However, municipalities retain some control over utilities and electricity procurement within their jurisdiction. In addition to franchise authority, and subject to certain requirements, “[a]ny municipality shall have the right to acquire by purchase, negotiation or condemnation the facilities of any utility that is now or may hereafter be located within the corporate limits of such municipality.” Miss. Code Ann. § 77-3-17. There appears to be no state law requiring municipally-owned electric utilities to purchase power from a particular investor-owned utility.

Can cities enter into franchise agreements with utilities? Generally, utilities must be granted a franchise by a municipality before they can locate and operate within a municipality where “streets and other public places are essential to such location and operation.” Miss. Code Ann. § 77-3-19. However, “such [a] franchise shall not contain any provision conflicting with or repugnant to the exclusive jurisdiction of the [MPSC] to regulate rates and services of the utilities as provided in this article.” Id. 

How can cities intervene in Public Service Commission proceedings? Local governments can intervene in MPSC proceedings “[u]pon a timely motion . . . when the movant has a substantial interest relating to the property, transaction or outcome of the proceeding at issue and the movant is so situated that the disposition of the proceeding may as a practical matter impair or impede his or her ability to protect that interest.” Miss. Pub. Util. Rules of Pract. & Proc., Ch. 6, Rule No. 121(1). If granted, the intervenor gains “the status of a party and to participate as a party, subject to such conditions as may be prescribed by the Commission.” Id.

Does the state have an obligation to serve statute? Yes, public utilities⁴ have an obligation to serve under Miss. Code Ann. § 77-3-33(2): “Such utility shall furnish adequate, efficient and reasonable service, and may establish reasonable rules governing the conduct of its business and the conditions under which it shall be required to render service. The commission may, after hearing upon reasonable notice had, upon its own motion or upon complaint, ascertain and fix just and reasonable standards, regulations and practices of service which are to be furnished, imposed, observed and followed by all public utilities.”

Has the state passed enabling legislation for community choice aggregation (CCA)? No, Mississippi currently lacks enabling legislation for community choice aggregation programs.⁵

Municipal Government in Mississippi, 7th Ed., Ctr. for Gov’t & Cmty. Dev., Miss. State Univ. (2021), https://perma.cc/ZG8X-XGKQ (providing comprehensive background on the organization and operation of municipal government in Mississippi).

Mississippi has enacted a law penalizing local officials who take actions inconsistent with the state’s preemption of local firearms regulations. Miss. Code Ann. § 45-9-53(5) makes liable “[a]ny elected county or municipal official under whose jurisdiction” a violation of the state preemption occurred for up to $1,000 plus attorney’s fees and costs.

Mississippi residents can initiate amendments to the state constitution. Miss. Const. art. XV, § 273(3). If an initiative to amend the constitution reaches the required number of signatures, the Mississippi Legislature may adopt the initiative by a majority vote. Id. § 273(6). If no action is taken on the initiative, it will be placed on the ballot for the next statewide general election. Id. § 273(6)–(7).