Feemster v. City of Tupelo

• Decision Date: 08 March 1920
• Docket Number: 21154
• Citation: 121 Miss. 733,83 So. 804
• Court: Mississippi Supreme Court
• Parties: FEEMSTER v. CITY OF TUPELO

83 So. 804

121 Miss. 733

FEEMSTER v. CITY OF TUPELO

No. 21154

Supreme Court of Mississippi

March 8, 1920

March 1920

1. MUNICIPAL CORPORATIONS. Statute authorizing city to issue bonds for hospital not unconstitutional.

Laws 1914, chapter 147 (Hemingway's Code, sections 5968--5974), conferring on municipalities operating under Code charter power to issue bonds for various purposes including hospitals, section 2 providing the amount of bonds shall not exceed seven per cent of the assessed value of the taxable property, unless a two-thirds majority of the qualified electors assent, and then shall not exceed ten per cent of the assessed value, is a legislative regulation of the exercise of corporate power, which limitation may be raised or lowered by the legislature without destroying the charter power conferred in other sections, so that Laws 1918 chapter 290, authorizing a city to issue bonds for the construction and equipment of a hospital on a majority vote is not violative of Constitution 1890, section 80, calling for provision by general law to prevent the abuse by cities of the power to tax, borrow money, and contract debts, or section 89, providing that thelegi-slature shall pass general laws under which cities may be chartered etc.

2. STATUTES. "Corporations" as used in statute defined.

Ordinarily the term "corporation" as used in a statute means a private corporation.

3. STATUTE. Act authorizing city bond issue to construct hospital not special or local.

Laws 1918, chapter 290, authorizing the city of Tupelo to issue bonds for not more than $50,000 for the construction and equipment of a hospital is not violative of Constitution 1890, section 87, prohibiting any special or local law for the benefit of individuals or corporations is cases providable for by general law, particularly in view of section 89; the prohibition against special or local legislation applying, not to municipal, but to private corporations defined by the Constitution 1890, section 189.

Hon. A. J. McINTYRE, Chancellor.

APPEAL from the chancery court of Lee county, HON. A. J. MCINTYRE, Chancellor.

Suits by Dr. L. C. Feemste against the city Tupelo. From a decree dismissing the bill, complainant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Mitchell & Bolton, for appellant.

We contend that the act above referred to violates the provision of sections 80, 87 and 88 of the constitution. We believe that section 80 of the Constitution is violated, because the act in question seeks by local law to regulate the taxing power of a municipality. This can only be done by general law.

Our court, in the case of Turner v. Hattiesburg, held that act of the legislature establishing the Normal College did not violate the provision of section 80 of the constitution, but that the act was not a local law, as it applied to any city in the state which would come under its provisions. This is the only case we have found in point, and we believe this to be an open question and one which our court has never passed upon directly.

If the act in question should be held to attempt to amend the charter of the city of Tupelo, then it would be clear that it violates section 88 of the constitution. If it should be held that the city of Tupelo is a corporation within the meaning of the terms of section 87 of the constitution, then the law in question would be held to this provision of the constitution also.

The bill in this cause raises all the serious questions as to the validity of the special law under which bonds are issued in this matter and for the purpose of testing the validity of this law and to obtain the decision of this court as to same, we respectfully submit the matter to the court, and ask that the cause be reversed and remanded with leave to defendant to answer.

Mitchell & Clayton, for appellee.

In this case there are three sections of the constitution of the state of Mississippi, which are involved, viz: section 80, section 87, and section 88. We will take them up in this order.

(1) Section 80, has nothing to do with this case for the simple reason that it is not self executing, and requires legislation to put it into effect. This was decided by the supreme court in the State Normal College case in 98th Mississippi, page 337. In that case, the court decided, straight out, that section 80 had not been put into effect by any legislation and held that a special act which allowed the city of Hattiesburg to issue certain bonds, was valid. The court used this argument in that case:

It is argued that, instead of limiting the power of municipalities the legislature has opened wide the doors to extravagance, not only authorizing municipalities to issue bonds without limit, but that it is encouraging extravagance, by providing, in effect, that the location of the school shall be determined by public auction, the municipality obtaining same, which bids the highest amount therefor. This may all be true but this court has determined to remedy the matter.

Section 80 is not self executing. It requires legislation to put it into effect. It is for the legislature to say what constitutes such power of the municipality, and to provide checks thereon. These checks are to be provided by general laws, covering all cases and not a necessity in which every law giving such powers to the municipalities.

So in this case and in this very act the legislature has provided a check in that it limits the amount which the city of Tupelo may issue for the purpose of establishing a hospital, and also it requires that a majority of the qualified electors shall vote in favor of the issuance of these bonds. We do not see how any better check can be provided than this.

The next objection is that this violates section 87 of the constitution, which is as follows: "No special or local law shall be enacted for the benefit of individuals or corporation, in cases which are, or can be provided for by general law, or where the relief sought can be given by any court of this state; nor shall the operation of any general law be suspended by the legislature for the benefit of any individual or private corporation or association, and in all cases where a general law can be made applicable, and would be advantageous, no special law can be enacted."

This does not apply for the reason that it is very clear that this section simply applies to individuals or private corporations, and has no reference whatever to a municipal corporation and as an evidence of the fact that this section simply applies to private corporations, the court will see by examination of the case, of the Yazoo Railroad Company v. Southern Railway Company,

Section 88 does not apply, because this is not an attempt to amend the charter of the city of Tupelo, or to effect the charter in any way. The city of Tupelo is not operating under a special charter anyway, but is operating under the Code chapter on municipalities. We submit to the court that this whole matter is settled by section 98 of the Constitution. This section provides in substance, as the court will see by inspection thereof, that there shall be appointed in each house of the legislature, a committee on local and private legislation. Every local or private bill must be referred to these committees and be referred back by them with a recommendation in writing, etc., and when a local or private bill has been passed by the legislature under the provisions of this section and in accordance with its requirements, then the courts shall not, because of its local, special or private nature, refuse to enforce it. The only restriction upon the power of the legislature to pass local and special bills under this section is that they shall not pass those which are set out in the following section which is section 90, and to which we refer the court.

The court will see by inspection of section 90 that a local or private legislation, which was passed by this law, which allowed the city of Tupelo to issue bonds for a hospital, is not prohibited by such section.

It occurs to us, anyway, that, in view of the fact that, for many years, it has been the custom of the legislature to pass these local and private bills in accordance with the provisions of section 89, and those not in conflict with section 90 goes to show that the legislature certainly had authority to pass such legislation as this. As an illustration of this, we refer the court to the case of Sick v. City of Bay St. Louis, 113 Miss. 175, in which the court construed chapter 287 of the Laws of 1916, which authorized the city of Bay St. Louis to issue bonds for certain, special purposes, and that case shows that every conceivable point seems to have been raised and certainly if there had been any doubt of the constitutionality of this act, the point would have been raised and have been decided.

We therefore submit that this act, in which these bonds were issued, is constitutional, and the plea of the complainant in this case is without merit.

IN BANC

OPINION

ETHRIDGE, J.

At the 1918 session of the legislature chapter 290 of the Laws of 1918 was enacted, authorizing the city of Tupelo to issue bonds in the sum not exceeding fifty thousand dollars exclusive of all bonds heretofore issued and authorized by law for the purpose of raising funds for the construction and equipment of a hospital to be located in the said city, and provided that the bonds should not be issued and the hospital established unless a majority of the qualified electors should vote therefor, and provided for the expenditure of the funds under the direction of the board of mayor and aldermen and empowered the board to receive, purchase, own, and hold real and personal property...