City of Biloxi v. Cawley

• Decision Date: 14 May 1973
• Docket Number: No. 47353,47353
• Citation: 278 So.2d 389
• Parties: CITY OF BILOXI, Mississippi v. James O. CAWLEY et al.
• Court: Mississippi Supreme Court

Page 389

278 So.2d 389

CITY OF BILOXI, Mississippi v. James O. CAWLEY et al.

No. 47353.

Supreme Court of Mississippi.

May 14, 1973.

Watkins, Pyle, Ludlam, Winter & Stennis, Ernest G. Taylor, Jr., Jackson, Charles K. Pringle, Biloxi, for appellant.

McKoin & Johnson, Gerald Blessey, Biloxi, for appellees.

SMITH, Justice:

This is the second appearance of this case here. The decision of this Court on the former appeal is reported in 264 So.2d 888 (Miss.1972). The nature and purpose of the proceedings, as reflected by the pleadings, are sufficiently stated in the former opinion of the Court. The case has yet to be tried upon its merits.

Following remand, pursuant to leave granted by this Court, the petition was amended to show that the annexation ordinance had been signed. A motion to strike the petition was then filed by protestants and the chancellor conducted an evidentiary hearing upon it. At the conclusion of the hearing, the chancellor sustained appellees' motion. The present appeal is from the chancellor's action in so doing.

The chancellor rendered no opinion and assigned no reason for his decision, but a search of the record in the light of the arguments advanced in this Court by the contending parties, forces us to the conclusion that he considered that the minutes of the City Commission at which the annexation ordinance was adopted had not been signed as required by Mississippi Code 1942 Annotated section 3374-72 (Supp.1971), and that, therefore, the action of the City Commission in adopting the ordinance was void.

It is an uncontroverted fact that the minutes, at the time of the hearing, had been signed and bore the signatures of the mayor and clerk. Therefore a presumption of regularity and validity arose. 31A C.J.S. Evidence § 146 (1964) and authorities there cited under Note 67.

In addition to the presumption, both the mayor and the city clerk testified that the minutes of each day of the regular meeting, of which the day on which the annexation ordinance was adopted was one, had been signed by them within ten days.

The only countervailing evidence offered by protestants consisted of the testimony, given on rebuttal before the close of the case by one of the attorneys for protestants, to the effect that he recalled that when he had looked at the minutes on June 3 or June 4, 1971, more than a year previously, they had not been signed. Final adjournment of the regular meeting occurred on June 2, 1971.

It is now insisted by appellees that this testimony created an issue of fact as to the time of signing, the presumption of regularity vanished, the chancellor, as trier of facts, accepted it and rejected the testimony of the mayor an clerk, that in so doing he was not manifestly wrong, and therefore his conclusion may not be disturbed by this Court.

Fortunately we do not reach that question.

Mississippi Code 1942 Annotated section 3374-72 (Supp.1971), as it appeared at the times involved here, provided, among other things:

The minutes of every municipality must be signed by the mayor or a majority of all the members of the governing body of the municipality within ten (10) days of the meeting thereof, and upon such signing said minutes shall have the legal effect of being valid from and after the date of the meeting. All minutes signed after ten (10) days from the date of the meeting shall be valid from and after the date of such signing.

It will be seen that the statute deals with the minutes of meetings, not with days of meetings. Also, it is obvious that it was the legislative intent to provide latitude in the signing of minutes in order that official actions should not be invalidated, even if not signed in ten days. (Since the events here involved took place, the Legislature has increased the ten day period to twenty-two days.)

The City Commission convened its regular session on May 17, 1971. By appropriate recessing orders, the Council continued in regular session on May 18, 24 and 26, 1971, and June 2, 1971. The annexation ordinance was duly adopted on May 18, 1971, and the regular meeting was not finally adjourned until June 2, 1971. The ten days contemplated by the statute began to run from June 2, 1971.

The general rule with respect to adjourned and recessed meetings is stated in 62 C.J.S. Municipal Corporations § 394 (1949):

Adjourned meeting as regular or special. An adjourned meeting of either a regular or special meeting is but a continuation of the meeting of which it is an adjournment, and any business which could have been transacted at the original meeting may be transacted at the adjourned meeting. Thus meetings of the council or board on a day other than the stated one for regular meetings, assembled pursuant to adjournment of the regular meetings, are not special meetings, or a distinct class of meetings, but are regular meetings with all the power and authority for municipal affairs possessed on the stated day for assembling, and all municipal action taken at such meeting is as valid as if taken on the first day of the session.

In Culpepper v. Phenix City, 216 Ala. 318, 320-321, 113 So. 56, 58 (1927), the Alabama Supreme Court said:

There is no merit in the contention that the bond election ordinance was adopted at a special meeting of the city council, as to which three of the councilmen had no notice, and were not present. The certified copy of the municipal proceedings in question, which is made a part of the bill, shows that the meeting was in fact an adjourned meeting from a regular meeting on the day before. The authorities hold, almost unanimously, that a meeting held pursuant to adjournment of a regular meeting is not a special meeting, but is itself a regular meeting, not requiring special notice to the councilmen.

A reasonable construction must be given to enactments of the Legislature. It cannot be supposed that the Legislature, in enacting the statute, was unaware of the volume, complexity and importance of the business necessary to be transacted by the governing body of a modern municipality. It would not be reasonable to suppose that it was expected that this business would always be accomplished in one day, nor that, if it was not, a special meeting would have to be called. There is no limitation, either express or implied, as to the number of days that the Commission may continue in regular meeting. It must be assumed, therefore, that it was contemplated that regular meetings would be continued from day to day or from time to time until all official business should have been completed. That was done here. As a matter of fact, if, as contended by appellees, the minutes had not been signed on June 3 or June 4, 1971, as the attorney for appellees recalled, there still remained seven or eight days of the statutory ten-day period. The mayor and clerk testified that the minutes of each day had been signed 'within ten (10) days.' If it should be assumed that an issue of fact was created by the testimony of the attorney as to the signing of 'each day' prior to 'June 3 or June 4,' nevertheless the testimony of the mayor and clerk is uncontroverted that the minutes were signed within ten days following final adjournment. We think that this is all that the statute required in order for the minutes of the regular meeting to become effective 'from and after the date of the meeting' which means of course, the date of final adjournment when the actions taken become final.

Under such circumstances, so long as a regular meeting is recessed and continued from time to time, and not adjourned finally, there remains a certain...