City of Jackson v. Mississippi State Bldg. Commission

• Decision Date: 28 September 1977
• Docket Number: No. 50252,50252
• Citation: 350 So.2d 63
• Parties: CITY OF JACKSON, Mississippi v. MISSISSIPPI STATE BUILDING COMMISSION and Frank J. Rooney, Inc.
• Court: Mississippi Supreme Court

Page 63

350 So.2d 63

CITY OF JACKSON, Mississippi v. MISSISSIPPI STATE BUILDING COMMISSION and Frank J. Rooney Inc.

No. 50252.

Supreme Court of Mississippi.

Sept. 28, 1977.

John E. Stone, W. T. Neely, Jackson, for appellant.

A. F. Summer, Atty. Gen., by P. L. Douglas, First Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, SUGG and WALKER, JJ.

SUGG, Justice, for the Court:

This appeal is from a final decree of the Chancery Court of the First Judicial District of Hinds Court which (1) enjoined the City of Jackson from requiring the State Building Commission or its contractor, Frank J. Rooney, Inc., to obtain a building permit from the City and to pay a permit fee for construction of a building by Rooney for the Commission, and (2) allowed the Commission to recover $13,454 paid into the registry of the court by it.

The Commission filed a bill of complaint and alleged that the City demanded that its contractor, Rooney, obtain a building permit and pay a building permit fee of $13,454; that it withheld payment of $13,454 to Rooney but tendered that amount into the registry of the chancery court.

The Commission further alleged that it is an agency of the state created pursuant to section 31-11-1 et seq., Mississippi Code Annotated (1972) and was authorized to construct a building for the school of dentistry for the University of Mississippi Medical Center in the City of Jackson. ¹ The Commission prayed that the City be enjoined from requiring its contractor to obtain a building permit for the construction of its building and pay a fee therefor.

The City answered and admitted that the Commission was authorized to construct the building; that the defendant Rooney was awarded a contract to construct the building; and, that it had sought to require Rooney to obtain a building permit for the construction and pay a fee of $13,454 for the issuance of the permit.

The City made its answer a cross-bill and alleged that it adopted a building code as authorized by section 21-19-5 Mississippi Code Annotated (1972). The City further alleged that the purpose of the building code was:

(T)o provide minimum requirements to safeguard the lives, health and general welfare of the citizens of the City and to protect property within the applicable jurisdiction by securing structural strength, stability, sanitation, adequate light and ventilation and safety to life and property from fire and other hazards incident to the construction, alteration, use and occupancy of buildings and structures.

The City further alleged that its building code requires every contractor proposing to erect or construct a building within its jurisdiction, (1) to make application to the Director of its Building and Permit Department for the issuance of a separate building permit for each structure, (2) to submit copies of the plans and specifications for the proposed work, (3) to obtain the department's approval thereof, and (4) to pay a prescribed fee before commencing construction. It alleged that Rooney began construction in violation of the provisions of the building code and prayed that it be awarded $13,454 for the permit fee.

In its final decree the court issued an injunction enjoining the City from enforcing its building code against the State and ordered the clerk to refund to the Commission the $13,454 paid into the registry of the court by it.

The issue in this case is: Does the building code of a municipality requiring a building permit and prescribing a fee for the building permit apply to buildings to be erected for the State by the State Building Commission?

It is well settled by our decisions that statutes in derogation of sovereignty should be strictly construed in favor of the State so that its sovereignty may be upheld, and not narrowed or destroyed except by specific provisions. In Coleman v. Whipple, 191 Miss. 287, 2 So.2d 566 (1941) this Court stated:

By resorting merely to well-known principles of statutory construction, it is evident that the State may not be restricted in its sovereignty except by the specific provisions of its statutes. Josselyn v. Stone et al., 28 Miss. 753; Turner v. City of Hattiesburg, 98 Miss. 337, 53 So. 681; Feemster v. City of Tupelo, 121 Miss. 733, 83 So. 804; State Teachers' College v. Morris, 165 Miss. 758, 144 So. 374; Sedgwick, Construction of Statutory and Constitutional Law (1874 Ed.), p. 337.

In Josselyn v. Stone, supra, the Court said: 'It is the settled doctrine that the general words of a statute do not include the State, or affect her rights, unless she be specially named, or it be clear and indisputable from the act that it was intended to include the State.' It was further held in City of Jackson v. State, 156 Miss. 306, 126 So. 2, 4: 'It is undoubtedly the general rule that, where the effect of a statute is to restrict the rights of, or impose liabilities upon, the state or its political subdivisions, it will be held to be inapplicable to them, unless they are included expressly or by necessary implication.' See also 59 C.J. 1103, Sec. 653. (191 Miss. at 298, 299; 2 So.2d at 568).

We held in Gulf & S. I. R. Co. v. Laurel Oil & Fertilizer Co., 172 Miss. 630, 158 So. 778 (1935) the following:

In 59 C.J., section 663, it is said: 'Statutes in derogation of sovereignty should be strictly construed in favor of the state, so that its sovereignty may be upheld and not narrowed or destroyed, and should not be permitted to divest the state or its government of any of its prerogatives, rights or remedies, unless the intention of the Legislature to effect this object is clearly expressed.' (172 Miss. at 648, 158 So. at 782).

In Potter v. Fidelity & Deposit Co., 101 Miss. 823, 58 So. 713 (1911) we said:

When the state's sovereignty is involved in any statute, statutes in derogation thereof are to be strictly construed in favor of the state; that is to say, the state's sovereignty is to be broadened and upheld, and not narrowed or destroyed, when the courts are called upon to construe a statute infringing upon sovereign power. (101 Miss. at 827, 58 So. at 715).

The City adopted a building code pursuant to the authority granted by section 21-19-25 Mississippi Code Annotated (1972) which reads in part as follows:

Any municipality within the State of Mississippi may, in the discretion of its governing authorities, adopt building codes, plumbing codes, electrical codes, gas codes, sanitary codes, or any other codes dealing with general public health, safety or welfare, or a combination of the same, by ordinance, in the manner herein prescribed.

The language of section 21-19-25 does not expressly, or by implication, subject buildings erected by the State to building codes enacted pursuant thereto, neither does it give municipal corporations the power to require the State to obtain and pay a fee for a building permit. To the contrary section 31-11-3 Mississippi Code Annotated (1972) expressly grants the State Building Commission authority to erect state buildings, make inspections, prepare plans and specifications, and supervise the erection of state buildings. It is not reasonable to assume that, the legislature, by enacting section 21-19-25, intended to diminish the authority of the Commission contained in section 31-11-3 and give municipalities the power to narrow or destroy the state's sovereignty with respect to its own buildings. Section 31-11-3 reads in part as follows:

The commission, for the purpose of carrying out the provisions of this chapter, in addition to all other rights and powers granted by law, shall have full power and authority to employ and compensate such architects or other employees necessary for the purpose of making inspections, preparing plans and specifications, supervising the erection of any buildings, and making any repairs or additions as may be determined by the commission to be necessary. Said commission shall have entire control and supervision of, and determine what, if any, buildings, additions, repairs or improvements are to be made under the provisions of this chapter.

(a) The commission shall have full power to erect buildings, make repairs, additions or improvements, and buy materials, supplies and equipment for any of the institutions or departments of the state. In addition to other powers conferred, the commission shall have full power and authority as and when directed by the legislature, or when funds have been appropriated for its use for such purposes, to:

(2) Build suitable plants or buildings for the use and housing of any state schools or institutions, including the building of plants or buildings for new state schools or institutions, as provided for by the legislature;

The foregoing statute delegates plenary power to the Commission to construct state buildings. Such grant of specific power denies contrary power. If the legislature had intended the Commission...