Green v. Hutson

• Decision Date: 25 May 1925
• Docket Number: 25038
• Citation: 104 So. 171,139 Miss. 471
• Court: Mississippi Supreme Court
• Parties: GREEN et al. v. HUTSON et al. [*]

104 So. 171

139 Miss. 471

GREEN et al. v. HUTSON et al. ^[*]

No. 25038

Supreme Court of Mississippi

May 25, 1925

Division B

1. MUNICIPAL CORPORATIONS. Towns are "cities" within statute as to issue of bonds.

Towns are within the proviso to Laws 1920, chapter 206, section 2 as to issuing bonds of municipalities, that in "cities" of less than twelve thousand inhabitants an issue of not more than $30,000 shall be without election unless there be protest of twenty per cent. of the electors.

2. MUNICIPAL CORPORATIONS. Board's adjudication of no sufficient protest against bond issuance not subject to collateral attack.

Adjudication of board of mayor and aldermen on hearing of protest against issuance of bonds that it was not filed by the necessary twenty per cent. of the electors to require election, with consequent order of issuance without election is conclusive on collateral attack.

3. MUNICIPAL CORPORATIONS. Bond issue for water, light, and sewerage system for one purpose.

A bond issue for establishing a water, light, and sewerage system held not open to objection of being for a plurality of purposes, making it void.

4. MUNICIPAL CORPORATIONS. Order at adjourned regular meeting for issuance of bonds valid.

Order of board of mayor and aldermen for issuance of bonds, though made at an adjourned regular meeting, held valid.

5 STATUTES. Statute last approved prevails in case of conflict between statutes enacted at same session.

In case of any irreconcilable conflict between two statutes enacted at same session the one last approved would prevail over the other.

6. MUNICIPAL CORPORATIONS. Bond issue valid without election.

Bond issue without election in circumstances stated by proviso to Laws 1920, chapter 206, section 2, is valid, being an exception to previously approved chapter 325 requiring interest-bearing debt to be authorized by majority of electors.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Humphreys county, HON. E. N. THOMAS, Chancellor.

Proceeding by F. H. Hutson and others to validate municipal bonds, to which F. R. Green and others appeared as objectors. From an adverse decree, said objectors appeal. Affirmed.

Decree affirmed.

Clark, Roberts & Hallam, for appellants.

An objection to the validation of this bond issue was made in accordance with section 6069M, Hemingway's Code, Laws of 1920, chapter 206. This section of the Code became part of the scheme of the legislature in restricting municipal authorities in issuing bonds of the municipalities. It would appear from the reading of the whole act, chapter 206, Laws of 1920, that it was the legislative intent to require the municipal authorities to have the expressed will of the qualified electors of the municipality by means of an election before the said municipal authorities would be vested with authority to issue bonds of the municipality.

The latter part of section 2 provides that in cities of less than twelve thousand inhabitants, when the amount to be issued is not more than thirty thousand dollars, the bonds may be issued by the publishing of a resolution unless twenty per cent of the qualified electors of the municipality file a written protest against the issuance of said bonds before the date set in the resolution; and in the event twenty per cent file a protest, an election shall be held.

In interpreting this portion of section 2, we must refer to other sections of the Code. By section 5795, Hemingway's Code, being section 3299, Code of 1906, municipal corporations are divided into three classes. By this section, municipalities containing more than two thousand inhabitants are classed as cities. Those containing less than two thousand but not less than three hundred are classed as towns. Those containing less than three hundred and more than one hundred are villages. It will appear from the record that the population of Isola is eight hundred and fifty people, thereby placing Isola in the designated class of municipalities known as towns. It will be observed by a study of chapter 144 of Hemingway's Code of 1917, and amendments thereto, that different powers and authorities are granted to the various classes of municipalities and that there is a clear distinction between the meaning of the word "town" and the word "city" as it appears in the statute. As a general principle of law, as laid down in Dillard on Municipal Corporations, Vol. 1 (5 Ed.), p. 237, it is said "It is a fair and indispensable proposition of law that the municipal corporation possesses and can exercise the following powers: First, that granted in express words; second, that necessarily and fairly implied as incident to the powers expressly granted; third, that essential to the accomplishment of the declared objection and purpose of the corporation--not simply inconvenient but indispensable. Any fair, reasonable, substantial doubt concerning the existence of the powers is resolved by the court against the corporation and the power is denied."

It is further a general proposition that the statutes governing the powers and authority granted to municipalities must be strictly construed. Georgia Railroad & Power Co. v. Railroad Commission, 5 A. L. R. 1.

The word "cities" in section 2, chapter 206, Laws of 1920, means a municipality with more than two thousand inhabitants; and if, by a stretch of the imagination it would be possible to construe cities as towns, by the application of the same process of reasoning, the word "cities" should include villages for there is no reason that can be advanced to show that the word "cities" means towns and does not mean villages.

To place the interpretation on this section of the Code that has been placed by the lower court is tantamount to saying that all cities with more than twelve thousand inhabitants, before issuing bonds, must hold an election, and that all cities, towns and villages under twelve thousand people may issue not more than thirty thousand dollars of bonds upon the mayor and board of aldermen publishing a resolution declaring their intention so to do, unless twenty per cent of the qualified electors in the municipality file a written protest against said issuance.

An historical reference to the issuance of bonds may be well. It will be remembered that during the years beginning in 1916 and ending in 1919 when speculation was rife, when many people were becoming millionaires over night, when cotton was selling for one dollar per pound, and when there was a great demand for all kinds of real estate investments and lands had risen from fifty dollars per acre to four hundred dollars per acre, the spread of progress and advance was reflected by the various municipalities and taxing districts and the issuance of bonds became so frequent and the limit reached in so many cases that numerous far-seeing citizens and especially representatives in the legislature saw that it was necessary to place some restrictions upon the issuance of bonds and to see that if municipalities and other taxing districts did issue the bonds, the qualified electors of said municipalities and taxing districts should be given the opportunity, not only to protest but to exercise their right of casting a vote against the issuance of said bonds.

The legislature here said this in substance: "We think that chapter 206 means what it says and that the exception is made for cities of less than twelve thousand people when the amount to be issued is not more than thirty thousand dollars. There can be no sense in this provision of the statute unless it means what it says, for the provision of law prior to the enactment of chapter 206, which is found in chapter 5978, Hemingway's Code, provides that before the issuance of any bonds, the mayor and board of aldermen shall publish notice for three weeks and that if twenty per cent of the adult taxpayers of the municipality shall petition against the issuance of the bonds, then these bonds shall not be issued unless authorized by an election to be held for that purpose. That has been the law since the Code of 1892; but the legislature, in it wisdom, saw fit to place a further restriction and required a bond issue to be authorized by an election held for that purpose.

A further survey of the laws will show that chapter 207, Laws of 1920, was enacted for the purpose of restricting county and district bond issues and providing for an election to be held before counties and taxing districts should issue bonds, these two chapters, 206 and 207, being an expression of the will of the people as interpreted by the legislature of 1920.

The meeting at which the resolution was passed and under which such notice as was given was directed to be given, was passed on the 9th day of September, 1924, which was not the regular meeting day for said board. By a close study of the laws governing municipalities it will be found that there are two kinds of meetings of the mayor and board of aldermen provided for: First, a regular meeting, which shall be held on the first Tuesday of each month, section 5915, and special meetings, section 5916. Special meetings as provided by said section, may be called by the mayor or any two aldermen by written notice being given to the other aldermen and the mayor if he shall not have signed it and distinctly specifying the subject-matters of business to be acted upon. So far as we are able to find, no provision is made for an adjourned meeting; that is to say, a meeting that is not a recess meeting. Cities, towns and villages have no rights unless those rights are given them by the statute or by their charter; and our supreme court has very definitely laid down the principle governing the rights and powers of municipalities in City of Hazlehurst v. John B Mayes, 96...