City of Ellisville v. State Highway Commission

• Decision Date: 09 October 1939
• Docket Number: 33777
• Citation: 191 So. 274,186 Miss. 473
• Court: Mississippi Supreme Court
• Parties: CITY OF ELLISVILLE et al. v. STATE HIGHWAY COMMISSION

191 So. 274

186 Miss. 473

CITY OF ELLISVILLE et al. v. STATE HIGHWAY COMMISSION

No. 33777

Supreme Court of Mississippi

October 9, 1939

Suggestion Of Error Overruled November 20, 1939.

APPEAL from the circuit court of Jones county HON. W. J. PACK Judge.

Suit for injunction by the State Highway Commission against the City of Ellisville and others. From a decree granting an injunction, the defendants appeal. Decree reversed injunction dissolved and bill dismissed.

Reversed, injunction dissolved and bill dismissed.

Welch &amp Cooper, Deavours & Hilbun, and Milton Weems, all of Laurel, and Green, Green & Jackson, of Jackson, for appellants.

There is in question in this case, not only the matter of the validity of the ordinances of the City of Ellisville, but whether the Highway Commission or the municipal authorities have the paramount authority in the matter of dealing with police power with reference to the highways through the municipality where a street or streets have been utilized in constructing the highway.

Under the general grant of powers to each municipality, all municipalities are "to exercise full jurisdiction in the matter of streets, sidewalks, sewers and parks; to open, lay out and construct the same; to repair, maintain, pave, sprinkle, adorn and light the same."

Section 2414, Code of 1930.

Municipalities are not only given supervision over streets and alleys, but they are held liable to the general public for failure to maintain streets in a reasonably safe condition for travel. The erection of a bumper in a street intersection was held to be negligence for which the city would be liable in the case of Vicksburg v. Harrelson, 136 Miss. 872, 101 So. 713.

In the case of Isola v. Humphreys County, 99 So. 147, it was held that a municipality has the superior jurisdiction to the county over a bridge, across a bayou on a street within the city. In the case of City of Laurel v. Hearn, 143 Miss. 201, 108 So. 491, it was held that streets may be devoted to any proper use incidental to construction and maintenance of a public thoroughfare, although the city may be liable to abutting property owners for damages sustained by them in making drains or ditches.

In the case of the Town of Senatobia v. Dean, 127 So. 773, the Supreme Court of Mississippi held that a municipality has no authority to surrender any jurisdiction or authority conflicting with its duty to keep the streets, alleys and sidewalks in a reasonably safe condition.

At the time of the decision of Dean's case, unquestionably Section 2414, Mississippi Code of 1930, was in full force and effect and without limitation by legislative act, express or implied. Following the decision of the Supreme Court in the Dean case, an act was passed by the 1934 regular session of the Legislature providing that the municipalities will not be liable for acts of negligence of the Highway Department in failing to maintain a street as a part of the highway where a part of its highway and primary road shall be what was formerly a street in a municipality. This act was not approved until October 22, 1935, and appears as Chapter 32 in the general and local and private laws of Mississippi, Extraordinary Session of 1935.

It seems perfectly clear that unless Section 2414, Mississippi Code of 1930, has been modified by some act of the Legislature subsequent to the adoption of the Code, the ordinances passed by the City of Ellisville are valid and that the rules and regulations adopted by the Mississippi State Highway Commission in conflict therewith are void and unenforceable.

We know of no statute subsequent to the enactment of Chapter 47, Laws of 1930, which in any way enlarges the right of the Commission with reference to the matter involved in this case.

As we see it, this is a case to determine if Sections 15 and 16 of Chapter 47, General Laws of Mississippi of 1930, by implication repeals or modifies Section 2414, Code of 1930. Unquestionably, the ordinances adopted by the City of Ellisville are reasonable and valid and are binding unless the Legislature of Mississippi has taken the power away from the City to exercise jurisdiction over the streets that are a part of the highway system.

Certainly Section 2414, Code of 1930, has never been expressly repealed. Implied repeals are not favored.

Pattison v. Clingan, 93 Miss. 310, 47 So. 503; State v. Jackson, 119 Miss. 727, 81 So. 1; Coker v. Wilkinson, 142 Miss. 1, 106. So. 886; Panola County v. Town of Sardis, 171 Miss. 490, 157 So. 579; Sections 158 and 159 under "Statute, " Mississippi Digest.

A statutory enactment cannot be repealed by implication, if the implication does not necessarily follow from the language used.

Richards v. Patterson, 30 Miss. 583.

The Legislature by its acts since the enactment of Chapter 47, Laws of 1930, has shown that there was no purpose to repeal or modify Section 2414 of the Code.

What the Mississippi State Highway Commission is trying to do in this case is to take away from a municipality a right that it unquestionably had and vest the right in a Commission at Jackson. It is destructive of local government. It is an effort to further government by commission and to destroy any right of self determination and any right of local government.

We submit that the rules and regulations contemplated by Section 16 of Chapter 47, General Laws of Mississippi of 1930, are merely rules and regulations to govern the Commission in the manner in which it shall handle powers delegated to it. It was not intended to give the Commission the right to adopt rules and regulations which would have the effect of law.

Clark v. State, 152 So. 820; Mary v. Lawson, Executrix, v. Jeffries et ux., 47 Miss. 686; New Orleans, Mobile & Chicago R. R. Co. v. State, 110 Miss. 290, 70 So. 355; State ex rel. Salter v. Board of Supervisors of Bolivar County, 72 So. 700.

It is true that a municipality is a creature of the Legislature and the Legislature gives to it such authority as it has and the Legislature can take authority away from a municipality. We earnestly submit that the reservations made in Paragraph D of Section 16, Chapter 47 and of Section 26-A, Chapter 200, Laws of 1938, show that it was not the purpose of the Legislature to deprive the City of Ellisville of full jurisdiction in the matter of policing and regulating the parking of automobiles on its streets, whether the streets be a part of the highway or not. If it has the right to govern the parking of cars, then it has the further right to prevent the placing of obstructions on the streets which will prevent the parking in the manner fixed by ordinances. The powers sought to be exercised by the Highway Commission are in hopeless conflict with the lawful rights of the municipality. The bill should have been dismissed and the injunction dissolved and the defendants awarded their costs.

Beyond question, the city had the authority prior to 1930 to adopt reasonable ordinances governing the subject matter of the two ordinances in question. That authority is found in Sections 2393, 2396, 2406, 2414, and 2434, Mississippi Code of 1930.

McQuillins Municipal Ordinances, Sections 458, 459, and 460.

The Highway Commission claimed the right to put up the posts which the city claimed to be a menace to the traveling public but by a rule of their own they undertook to prohibit the removal of such dangerous obstacles. The issue is clear cut. There is conflict of authority between the Highway Commission and the municipality. Both the City of Ellisville and the Highway Commission are claiming paramount authority as to the police power over that part of the highway that is within the City of Ellisville. We have pointed out the authority under which the City of Ellisville claims the right to act. We are persuaded that the Commission is without the authority claimed by it and we say that it has not pointed out any authority except its rule making power and we will say that is negative by legislative provision, as herein pointed out.

The Commission is as much a creature of the Legislature as is the municipality. Where can there be found in the acts of the Legislature one sentence or one line giving this new creature, the Highway Commission, authority to nullify acts of a municipality, acting within the legislative grant of power.

Edwin R. Holmes, Jr., Assistant Attorney-General, and Heidelberg & Roberts, of Hattiesburg, for appellee.

Municipalities are mere creatures of the legislature from which they derive their powers, and these powers may at the whim or will of the legislature be taken away from them.

Adams v. Kuykendall, 83 Miss. 571; Hodges, Tax Collector of Meridian, v. Western Union Tel. Co., 18 So. 84, 72 Miss. 910; Gillis v. Indian Creek Drainage Dist., 155 Miss. 160, 124 So. 262; Gully, State Tax Collector, v. Williams Bros., 180 So. 400.

The question involved in this case is whether or not the legislature has, by subsequent legislation, taken from municipalities a part of the power and jurisdiction conferred upon them by Section 2414, Mississippi Code of 1930.

As we read the brief of opposite counsel, they contend that Section 2414, Code of 1930, has never been impliedly repealed or modified in any respect whatsoever. We do not contend that this section has either been expressly or impliedly repealed but it is our contention that the subsequent acts of the legislature, to which we will hereafter refer, impliedly modified this statute and insofar as one of the primary highways of the state, designated by the legislature as such primary highway, might constitute a street in a municipality, this section has been impliedly modified to the extent that full and complete jurisdiction thereover is now vested in the State Highway Commission...