City of Grenada v. Wood

• Decision Date: 05 January 1903
• Citation: 81 Miss. 308,33 So. 173
• Court: Mississippi Supreme Court
• Parties: CITY OF GRENADA v. EDWARD WOOD ET AL., EXECUTORS, ETC

33 So. 173

81 Miss. 308

CITY OF GRENADA v. EDWARD WOOD ET AL., EXECUTORS, ETC

Supreme Court of Mississippi

January 5, 1903

October 1902

FROM the circuit court of Grenada county HON. WILLIAM F. STEVENS Judge.

Wood and another, appellees, executors of the last will and testament of C. T. Wood, deceased, ex-treasurer of the city of Grenada, were plaintiffs in the court below, the city was defendant there. The facts were these: The city of Grenada never came under the code 1892 chapter on "municipalities, " but was governed by its separate charter, an act of the legislature, approved March 28, 1872. [The act seems to be omitted from the volume "Laws of Mississippi, 1872, " probably for want of the governor's authority to publish the same as required by laws 1872, p. 115, proviso to sec. 6.]

In 1897, C. T. Wood was treasurer of the city of Grenada, and while he was treasurer, the mayor and board of aldermen issued its bonds for the purpose of raising money to erect an electric light and waterworks plant, and to put in a sewage system, in the sum of $ 55, 000, and sold the bonds and got the money. The treasurer's commission on money disbursed by him was up to June 11, 1897, 3 per cent. On June 11, 1897 the mayor and board of aldermen passed the following ordinance:

"Whereas the treasurer of the city of Grenada, Miss. will handle large sums of money within the next three or four months; and whereas the handling of said money was not contemplated when the treasurer aforesaid was elected to the office; therefore it is considered, and so ordered by the board, that the commissions of the said treasurer aforesaid be, and they are hereby, fixed at one-fourth of one per cent for disbursing the funds of the city of Grenada, Miss."

On July 1, 1897, an ordinance was passed by said board restoring the treasurer's commissions to 3 per cent on the general fund, making the money derived from the sale of the aforesaid bonds a special fund, and providing for the appointment of a committee to receive and disburse this fund, and further providing that the treasurer was to receive no commission on this fund so disbursed. The committee appointed in pursuance of this ordinance disbursed this fund, and Wood brought this suit to recover commissions on this money. In one count he declares for the 3 per cent commissions, alleging that the ordinance passed by the board July 1, 1897, directing the receipt and disbursement of said money by the committee, was ultra vires and void, and that he alone was the person through whom the money should have been disbursed. By his second count he asks for reasonable compensation. The plaintiff having died pending the suit the action was revived in the name of his executors. The court below held that plaintiffs could not recover compensation of 3 per cent commission, but that the act of the board in having the money disbursed through the committee was ultra vires and void, and that plaintiffs, as executors, were entitled to recover a reasonable compensation for the testator's official services, and allowed evidence to be introduced by plaintiffs to show what reasonable compensation was. From a verdict and judgment for plaintiffs, based on this view, the city appealed to the supreme court and plaintiffs prosecuted a cross-appeal.

Reversed and remanded.

Horton & Horton and S. A. Morrison, for appellant.

Granting that that part of the ordinance is void which appoints a committee of three to receive and disburse the bond funds, it does not follow that the first part of said ordinance is also void. Ut res magis valeat quam pereat; the courts will divide and separate the good from the bad and the goats will be placed on the left, while the sheep will be put on the right hand side. They will split and divide a hair twixt the south and southwest side rather than defeat the true and lawful intent of laws passed by the powers that be. "Where a charter authorized the penalty of fine and imprisonment, an ordinance imposing, in addition thereto, 'costs of prosecution, ' was declared void as to such addition, but valid as to the remainder." State v. Cantieny, 34 Minn. 1. "As one section of a statute may be repugnant to the constitution without rendering the whole act void, so one provision of a section may be invalid by reason of its not conforming to the constitution while all other provisions may be subject to no constitutional infirmity. One part may stand while another may fail, unless the two are so connected or dependent on each other in subject-matter, meaning or purpose that the good cannot remain without the bad." 10 L. R. A., 201 (left hand col.). To the same effect, see 15 Id., 377; 20 Id., 80; 1 Dil. Mun., sec. 421; Campbell v. Bank, 6 How. (Miss.), 677; Cotton v. McKenzie, 57 Miss. 418; Bank v. Stegall, 41 Miss. 143; Sanford v. Starling, 69 Miss. 204; Adams v. Bank, 75 Miss. 701; McBride v. Adams, 70 Miss. 716; Thompson v. Railroad Co., 3 How., 251; 9 Wall., 277; 31 So. Rep., 35.

It is very plain from a reading of said ordinance that it was intended by the board that Wood was to receive only one-fourth of 1 per cent on the bond fund and 3 per cent on the ordinary city funds. Repeals by implication are not favored. The former law, unless changed by express enactment, or clear implication, remains in force. Pores v. State, 49 Miss. 1; Beard v. Board of Supervisors, 51 Miss. 542; Smith v. Vicksburg, 54 Miss. 615; Johnson v. State, 59 Miss. 544; Board of Education v. Aberdeen, 56 Miss. 518.

W. C. McLean, for appellee.

The charter of the city is the source and the limit of the power of the board of mayor and aldermen, and it bears the same relation to the board that the constitution of the state bears to the legislature. The board of mayor and aldermen have no more right to pass an ordinance violative of the charter, than the...