Griffith v. City of Vicksburg

• Decision Date: 17 June 1912
• Docket Number: 15,929
• Citation: Griffith v. City of Vicksburg, 102 Miss. 1, 58 So. 781 (Miss. 1912)
• Court: Mississippi Supreme Court
• Parties: RICHARD GRIFFITH v. MAYOR AND ALDERMEN CITY OF VICKSBURG

58 So. 781

102 Miss. 1

RICHARD GRIFFITH v. MAYOR AND ALDERMEN CITY OF VICKSBURG

No. 15,929

Supreme Court of Mississippi

June 17, 1912

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

Suit by Richard Griffith against the mayor and board of aldermen of the city of Vicksburg. From a judgment dissolving the injunction and dismissing the bill, plaintiff appeals.

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

Decree affirmed.

Henry &amp Canizaro, for appellant.

The validity of the proposed bonds is assailed upon a number of grounds, the first of which is that the meeting of the mayor and aldermen at which the preliminary ordinance looking to the issuance of said bonds was adopted, was held on the 1st day of January, which is a legal holiday under Sec. 4011 of the Code of 1906. By an examination of this section it will be seen that it is a departure from the corresponding section of the Code 1892, in that it not only prescribes the day upon which commercial paper maturing upon the days named shall be presented, but declares that those days shall be legal holidays. So far as we know, this court has never determined what effect, if any, is to be given to the statutory designation of those days as legal holidays, and we submit to the court for determination the question whether or not any legislative proceedings, such as the enactment of the ordinance in question, had upon one of those days, are valid.

The next ground upon which the bond issue is assailed is that the charter of the city of Vicksburg, under which the bonds are proposed to be issued, requires that before an election shall be held to determine the wishes of the qualified voters notice shall be published in some newspaper for three weeks preceding the calling of the election. The provisions of the city charter in this particular are identical with Sec. 3419 of the Code of 1906. In the case of Clarksdale v Broaddus, 77 Miss. 667, this court held that the required notice must be given even though an election must necessarily be held by reason of the fact that the total indebtedness of the municipality exceeds seven per cent of its assessed valuation. Applying this decision to the case at bar, the proposed bond issue is rendered utterly invalid by reason of the failure to give such notice, unless it is cured by the act of the legislature approved March 4, 1912, which is set up by way of defense in the answer filed by the city. This act undertakes to validate all municipal bonds which have been authorized by a two-thirds vote of the qualified voters voting at a municipal election held to determine the question of the issuance of municipal bonds, where such bonds have not already been issued, even though the required notice, or any other preliminary steps may have been omitted. If this statute is a valid exercise of legislative power, we admit that it cures the failure to give notice; and whether it is valid we submit to this court for determination. We have been unable to find any authority directly holding that such retroactive legislation is invalid, and in as much as the question of its validity is rather one of public policy we do not believe the decisions of other state courts would be very strongly persuasive.

The bonds are further assailed for the reason that a large number of persons were permitted to vote at the election who registered within four months prior thereto, notwithstanding the provision of the Constitution, and a similar provision of the charter of the city of Vicksburg, to the effect that persons shall not vote at an election held within four months after their registration. Of course, there is no way to determine how these disqualified voters voted, and we submit to the court the question as to whether or not their number was not sufficient to vitiate the entire election.

A further ground of complaint is that the proposed waterworks plant, if built, cannot be operated until the fall of the year, 1916, and if work is now commenced it will be completed long prior to that time, and will remain idle between the time of its completion and the date at which it can be operated. The defendant has already been enjoined by the federal court from operating a waterworks plant in competition with the existing plant until the expiration of its franchise, and if the proposed plant is finished before that time it must necessarily remain idle until the outstanding franchise expires. We submit that it is an abuse of the discretion vested in the municipal authorities of Vicksburg to invest so large a sum at this time in a plant which it has not the legal power to operate.

The pleadings show that the proposed bonds were directed by the resolution of January 1, 1912, to be issued under the charter of the city of Vicksburg, as amended, which Ch. 142 of the acts of 1910 purports to apply to all municipalities and to regulate and control all bond issues. We submit that this act is exclusive and that the provisions of the charter of Vicksburg on the subject were inoperative, and that for that reason no bonds purporting to be issued thereunder are valid.

We regret that we are unable to render the court any assistance in determining the various questions by citation of authorities from other states, but in as much as the entire matter depends upon local statutes, it is obviously impossible to find such decisions.

George Anderson, John Brunini and O. W. Catchings, for appellee.

The first ground upon which the validity of the proposed bond issue is questioned is that the meeting of the board of mayor and eldermen of Vicksburg, at which it was first authorized was held on New Year's day, which is a legal holiday under Sec. 4011 of the Code of 1906. We respectfully submit that there is absolutely no authority for the proposition that the mere designation by statute of a given day as a legal holiday, makes it dies non, and places it in all respects upon the same footing as Sunday. The fact that section 4011 forms part of the Code chapter on promissory notes, and that after designating certain days as legal holidays, it proceeds to make provisions for presentation of commercial paper which falls due on those days, clearly indicates, we think, that the legislature had no other purpose than to make provision for such presentation. It would certainly be extraordinary if an obscure section of the chapter which relates only to commercial paper should have the effect of prohibiting all public and private acts on the days named.

The reason that Sunday has come to be regarded as a nonjuridical day, is that its sacred character is such that it is improper for public or private acts of a legal nature to be then performed. The days designated in the Code as legal holidays were chosen for entirely different reasons, most of them being to celebrate the anniversary of some great event; and there is no reason why the legislature should have considered it improper for a municipal corporation to undertake to legislate on such days. Aside from these considerations, the courts, we think, are substantially unanimous in holding that the mere designation of a day as a legal holiday, does not put it upon the same basis as Sunday, that is to say, does not make it dies non.

There is a very full discussion of the question in the article on holidays in volume 21 of the Cyclopedia of Law and Procedure. The cases are there collated and the conclusion announced is as stated by us. We will not trespass upon the court's time by undertaking to review the various cases. We quote from the text on pages 440 and 441 as follows:

"A legal holiday--other than Sunday--has effect as a holiday only as to those acts and transactions which are designated in the statute, establishing the day. Accordingly it is held that with the exception of matters concerning which the statute provides that the day shall be treated as Sunday, any act done on that day is as effective as if done on any other day."

The statutes of the various states alluded to in the decisions cited are in most instances much broader and more comprehensive than ours, in that they generally contain an absolute prohibition of the transaction of public business on the holidays mentioned. Notwithstanding this prohibition the courts held that the acts done in contravention of the statute are none the less valid. Thus the supreme court of New Jersey has held that "the enactment of municipal ordinances does not come within the meaning of the statute prohibiting the transaction of legal business in the offices of the state or counties on holidays." Lord v. Gifford, 67 N. J. L. 193; Mueller v. Egg Harbor City, 45 N. J. L. 245. Decisions are cited from perhaps fifteen or twenty states to the same effect.

It is claimed that the proposed bond issue is invalid for the reason that notice of the proposal to issue bnds was not given, as required by the city charter. The provisions of the charter of Vicksburg as to the issuance of municipal monds are identical with those contained in Ch. 142 of the Acts of 1910 and the Code provisions on the subject. The scheme contemplates that bonds may be issued by the mayor and aldermen without an election, where the amount proposed to be borrowed, together with the outstanding indebtedness, does not exceed seven per cent of the assessed valuation of all the property in the city, and the purpose of the requirement that notice be given of the intention to issue bonds, is that the qualified voters may have an opporunity to protest in writing, in which event an election must be held, even though the indebtedness do not exceed two-thirds of the assessed valuation. On the other hand, where the indebtedness does exceed two-thirds of the assessed valuation, an election must be held, whether...