City of Hazlehurst v. Mayes

• Citation: 96 Miss. 656,51 So. 890
• Decision Date: 04 April 1910
• Docket Number: 14429
• Court: United States State Supreme Court of Mississippi
• Parties: CITY OF HAZLEHURST v. JOHN B. MAYES

51 So. 890

96 Miss. 656

CITY OF HAZLEHURST v. JOHN B. MAYES

No. 14429

Supreme Court of Mississippi

April 4, 1910

FROM the chancery court of Copiah county, HON. G. GARLAND LYELL Chancellor.

Mayes appellee, was complainant in the court below; the city of Hazlehurst, appellant, was defendant there. From a decree overruling a motion to dissolve an injunction defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

J. S Sexton, for appellant.

Under Code 1906, § 3314, the city of Hazlehurst, which is operating under the code chapter, has the power "to purchase and hold real estate, within the corporate limits for all proper municipal purposes, and for parks."

Under Code 1906, § 3337, the city has the power "to exercise the right of eminent domain in the laying out of streets, avenues, alleys, and parks." And under section 3338, the city has power "to exercise full jurisdiction in the matter of streets, sidewalks, sewers, and parks; to open and lay out and construct the same; to repair, maintain, pave, sprinkle, adorn, and light the same."

It is conceded, by all concerned, that if the city had eight thousand dollars in its treasury, it could buy the property mentioned in the bill, to be used as a public park, but it is insisted that section 3415 of the code is the full measure of the city's power to issue bonds, and that the purposes mentioned therein are the only possible purposes for which the city may raise money by the issuance of bonds, and as the word "park" is not used therein, the conclusion is reached that, under no circumstances, can any city in the state, operating under the code chapter, issue its bonds for the purpose of purchasing a place to be used as a public park. I insist that this construction is too narrow and results in absurdity.

The legislature which enacted the law must be credited with at least ordinary intelligence. It was bound to know that, with our growing civilization, public parks were necessary for the amusement and recreation of our people, and it certainly did know, if it knew anything else, that if our cities were to own them at all, they would have to issue bonds or other negotiable securities therefor, for the reason that the purchase and improvement of a public park involves a considerable outlay and the expenditure of more money than would ever be found lying idle in the treasury.

In the instant case, the property which the city would take over would have cost at least $ 15,000, though the city was to get the same for $ 8,000, or really $ 6,000 under the agreement that the banks would donate $ 2,000, and it is ridiculous to suppose that the time would ever come when we would have $ 15,000 lying idle in the treasury. A decent park for the city of Jackson, Vicksburg, or Meridian, would cost from $ 100,000 to $ 250,000, and who would suppose that, in all the tide of time these cities would have that amount of idle money in the treasury for the purpose of purchasing and improving a place to be used as a public park?

The result of the construction adopted by the court below is simply this, that no city or town in Mississippi, which has not already established a park, will ever establish one in the future in this state, because it is absolutely certain that there will never be found in the treasury of any of our cities or towns enough money to buy and improve a public park. Of course the law could be changed so as to permit it, but I insist that no change is necessary, and that, under our present statutes, the city of Hazlehurst has the power to issue the bonds sought to be issued.

Under section 3314 each city, town, or village has five different powers.

Under sections 3316 et seq., the mayor and board of aldermen of every city, town, and village have power to do thirty-seven different things.

Under sections 3354 et seq., the mayor and board of aldermen of cities and towns, but not of villages, have power to do eleven other things; and under section 3366, the mayor and board of aldermen of cities and towns, having more than six thousand inhabitants, have power to do six other things, and under sections of the code chapter on "Municipalities" other powers are enumerated and vested in the city and its officers. An examination of these powers in detail will show that many of the things which the towns and cities and their officers have power to do are quite as necessary as those mentioned in section 3415, for which municipal bonds may be issued, and to hold that section 3415 is the full measure of municipal authority to issue bonds in view of all the powers referred to, is strict construction with a vengeance.

It is elementary learning that "the power of public corporations are either express or implied. 'The former are those which the legislative act under which they exist confers in express terms; the latter are such as are necessary to carry into effect those which are expressly granted and which must therefore be presumed to have been within the intention of the legislative grant.'" 1 Smith's Modern Law of Municipal Corporations, § 673. "Implied power of a municipal corporation is a power necessarily incident to the exercise of those powers expressly granted and directly and immediately appropriate to their exercise." Id.; Gundling v. City of Chicago, 176 Ill. 340, 52 N.E. 44; People v. Chicago Gas Trust Co., 130 Ill. 268, 22 N.E. 798; Chicago, etc., R. Co. v. City of Chicago, 148 Ill. 141, 35 N.E. 881; Mather v. City of Ottawa, 114 Ill. 659, 3 N.E. 216.

The question of the power of municipal corporations to issue bonds is ably and exhaustively treated in the case of Williamsport v. Commonwealth, 84 Pa. St. 487, 24 Am. Rep. 208. The question there presented was one of power, and it was insisted "that a municipal corporation possesses no inherent power to issue bonds, and that in the absence of any such power in its charter, or express legislative authorization, the city is not bound thereby." In discussing that question, the court used the following language: "We may here observe that there is a marked distinction in this respect between private and municipal corporations. This distinction has been lost sight of in many of the adjudicated cases, and is perhaps one of the causes of the confusion into which this branch of the law has fallen." Further on in the opinion, the court, in speaking of the implied power of the municipal corporation in that case, used the following language: "Her implied powers include all such as are necessary to carry out the objects for which her charter was granted."

"A municipal corporation's power to issue negotiable securities may be implied from granted powers which could not otherwise be carried out." Rose's Notes on U. S. Reports, vol. 7, p. 939; Desmond v. Jefferson, 19 F. 486; Holmes v. Shreveport, 31 F. 119; Commonwealth v. Williamsport, 156 Mass. 72; State v. School District, 13 Neb. 81, 12 N.W. 928; City of Williamsport v. Commonwealth, 84 Pa. St. 496, 24 Am. Rep. 216; Hays v. Gallon Gas, etc., Co., 29 Ohio St. 339.

The power to purchase, hold, and improve real estate for a public park, which is expressly given by our statute, involves the expenditure of more money than would ever be found in our city treasuries, and the implied power to borrow money for the purpose indicated necessarily follows. Many cases can be found, which, upon a superficial examination, would indicate the contrary view, but when thoroughly examined they do not militate against it.

McNeil & Smylie, for appellee.

Code 1906, § 3415, gives a municipality the power to issue its bonds for certain purposes therein stated, and these are the only purposes for which a municipality in this state has power to issue bonds.

Taken in the broad sense, the power to borrow money and issue bonds cannot be said to be among the implied powers of a municipal corporation. * * * The question for our consideration is, whether the power to issue bonds is one of the inherent powers of a municipal corporation in a limited sense; that is to say, for the purpose of providing for such expenditure as is strictly germane to the objects for which such corporations are created.

"Implied power springs from necessity. That which is not necessary cannot be implied." Is a park a necessity? If it be a necessity in the case of a large city, is it actually necessary and indispensable that a small town like Hazlehurst should have a park? It is but a very short distance in any direction to the natural woods, hills, valleys, and streams.

In construing the statute it is necessary to determine, if possible, the intention of the legislature. We notice that section 3415 of the code gives a municipality power to issue bonds for those purposes which are the most indispensable and necessary to its well being. If a municipality has implied power to issue bonds for any purpose whatever, it would certainly have the implied power to issue bonds for the purposes mentioned in this section. Why then give it express power to do that which it has already the implied power to do? Counsel for appellant says that the legislature is composed of intelligent men who would not do a foolish or an absurd thing. Does not the maxim "Expressio unius est exclusio alterius," apply in this case? Did not the legislature give in this section express power to issue bonds for all purposes, for which they intended a municipality should have power to issue bonds, and thereby actually prohibit a municipality from issuing bonds for any purposes except those actually expressed therein? If it had been the intention of the legislature that a municipality should have the power to issue bonds to purchase land for a park, it would have been easy to have written the word "parks" in section 3415....