City of Jackson v. Shlomberg

• Decision Date: 30 September 1892
• Court: Mississippi Supreme Court
• Parties: CITY OF JACKSON v. SOLOMON SHLOMBERG

11 So. 721

70 Miss. 47

CITY OF JACKSON v. SOLOMON SHLOMBERG

Supreme Court of Mississippi

September 30, 1892

APPEAL from a judgment of HON. TIM E. COOPER, one of the judges of the supreme court, in a habeas corpus proceeding.

The relator, Solomon Shlomberg, was arrested on a charge of violating an ordinance of the city of Jackson relating to the sale of second-hand clothing, and was discharged from custody by the judgment appealed from. The ordinance in question was passed June 24, 1892, in accordance with the provisions of the former charter of the city, but not by a yea and nay vote, as required by § 3007, chapter 93, code 1892. It is conceded that the relator was properly discharged, if at the time mentioned the city of Jackson was governed by the provisions of said code chapter, and not by the old charter. Hence the only questions for consideration are: (1) As to the effect of the resolution of the corporate authorities, passed April 12, 1892, accepting the code provisions; (2) the effect of the resolution adopted by them June 7, 1892, rescinding the resolution of acceptance, and rejecting the provisions of the code chapter, the last resolution having been passed prior to the adoption of the ordinance in question. The opinion contains a further statement of the case.

So much of § 3035, code 1892, as is necessary to be considered is as follows:

"From and after the date that this chapter becomes operative, every municipality in the state shall exercise the powers conferred herein on the class to which it belongs, and shall be governed by the provisions thereof. But an existing municipality, by resolution of its corporate authorities entered of record and certified to the secretary of state within twelve months after this chapter becomes operative may elect not to come under the provisions hereof. The secretary of state shall make a record of such certificates received by him. The provisions of this chapter shall not apply to a municipality so signifying the wish of its corporate authorities, unless thereafter, by a majority vote of the electors therein, to be cast at a general or special election for the purpose, it be determined to come under the operation of the chapter."

Affirmed.

Brame & Alexander, for appellant.

1. Chapter 93 of the code went into effect April 2, 1892, and was applicable to the city of Jackson and all other municipalities from that date until the rejection of the same in accordance with § 3035.

2. Said § 3035 authorizes the rejection of the provisions of the chapter, and directs how this shall be evidenced and certified. There is no provision for accepting, and this is not contemplated or required.

3. This being true, the action of the authorities April 12, 1892, purporting to accept the code provisions, was gratuitous and ineffectual.

4. Before the passage of the ordinance of June 24, 1892, and within the twelve months, the authorities, by resolution, elected not to come under the provisions of the code chapter. This was done strictly in compliance with the statute, and had the effect to change the legal status of the city. The former charter was in force from and after that time, and the ordinance, under which relator was arrested, was duly passed in accordance with its requirements.

Calhoon & Green, for appellee.

1. The policy was to regard all cities and towns in under the code. The privilege was given to elect, within twelve months, not to come in. The right to choose not to come in under § 3035 of the code carried with it the right to elect to come in. Mere non-action for twelve months would be construed as an acceptance. Solemn acceptance during the time ought to have the same effect. This argument is strengthened by a consideration of the fact that an election by the people is only allowed in case of rejection by the corporate authorities.

2. Section 3031 of the code contemplates the power of acceptance. It uses the expression, "elect to come in." Section 3037 requires the governor to classify all municipalities under the chapter. This implies the power of acquiescence and acceptance. Otherwise he could not classify for twelve months.

3. If, by mere acquiescence for twelve months, the authorities could accept, and thus bind the municipality, surely they could do so by solemn ordinance.

4. If the authorities could accept, and then rescind and reject, there might be various changes of the status of the municipality, which would lead to great confusion.

OPINION

CAMPBELL, C. J.

This case presents the question whether the city of Jackson is subject to the chapter on municipalities, contained in the code of 1892, or not. That chapter was, by act approved April 2, 1892, declared to be in force from that date. On April 12, 1892, the mayor and aldermen of Jackson declared their acceptance of said chapter, and subsequently passed some ordinances with reference to the position of the city, as governed by the chapter on municipalities in the code. On June 7, 1892, an ordinance was adopted by the mayor and aldermen of Jackson rescinding the acceptance of the chapter of the code mentioned, and declaring it null, and they elected not to come under said chapter. This resolution was duly certified to the secretary of state, and by him recorded. The action of the mayor and aldermen, in accepting the chapter, was not communicated by the municipal authorities to any state official, but certain citizens obtained a transcript of the record of the proceedings of the board of mayor and aldermen in accepting the code chapter, and presented it to the governor, who issued his proclamation declaring Jackson a city according to the chapter on municipalities in the code of 1892.

The argument by counsel for the city is that the chapter on municipalities in the code of 1892 was put in force on April 2, 1892, as to all municipalities in the state, with...