Love v. Mayor And Board of Aldermen of Yazoo City

• Decision Date: 29 May 1933
• Docket Number: 30705
• Citation: 148 So. 382,166 Miss. 322
• Court: Mississippi Supreme Court
• Parties: LOVE v. MAYOR AND BOARD OF ALDERMEN OF YAZOO CITY

148 So. 382

166 Miss. 322

LOVE v. MAYOR AND BOARD OF ALDERMEN OF YAZOO CITY

No. 30705

Supreme Court of Mississippi

May 29, 1933

Division A

1. MUNICIPAL CORPORATIONS.

Year within which municipal bonds might be issued after favorable determination of litigation did not begin to run until issuance of mandate fifteen days after supreme court's decision, which was time allowed for filing of suggestion of error (Code 1930, section 2491; Supreme Court Rule No. 14).

2. BILLS AND NOTES. Bonds. Ordinarily, a bill, note, or bond is not "issued" until delivered to purchaser or otherwise put into circulation (Code 1930, section 2847).

The term "issue" has various meanings, depending on the subject-matter of the writing or discourse, or upon the context, or both, and context should always be considered in reaching interpretation of "issue" in a given case.

3. MUNICIPAL CORPORATIONS.

Purpose of statute providing for issuance of municipal bonds within one year was to prevent issuance after reason which prompted electorate to assent thereto had disappeared (Code 1930 section 2491).

4. MUNICIPAL CORPORATIONS.

Where contracts for sale of municipal bonds were made within year after favorable determination of litigation, there was an "issue" of the bonds within the year, though mechanical and ministerial work of printing, signing, and delivering the bonds remained to be done after expiration of the year (Code 1930, section 2491).

HON. M B. MONTGOMERY, Chancellor.

APPEAL from chancery court of Yazoo county HON. M. B. MONTGOMERY Chancellor.

Suit by H. M. Love against Mayor and Board of Aldermen of Yazoo City From decree dismissing original bill and dissolving preliminary injunction, restraining issuance of bonds of the City of Yazoo, complainant appeals. Affirmed.

Affirmed.

H. M. Love, Jr., of Yazoo City, for appellant.

In the court below the chancellor held, and we believe rightly, that the bonds not only were not issued during the year following the determination of the favorable litigation, but had never, up to the date of his decision, been issued. These bonds are negotiable coupon bonds and must be governed by the negotiable instruments law of this state.

Issue means the first delivery of the instrument, complete in form, to a person who takes it as holder.

Section 2847 of the Mississippi Code of 1930.

The bonds in question have never been delivered to the Delta National Bank, and for that reason cannot be said to have been issued.

Brownell v. Town of Greenwich, 22 N.E. 24.

The term "issue" as used in the negotiable instruments law, means the first delivery of the instrument, complete in form, to a person who takes it as a holder.

Words & Phrases, page 3738; 44 Corpus Juris, page 1224, sec. 4202.

Since the bonds have never been delivered to the Delta National Bank, they have never been issued, and we submit that the chancellor was correct in his holding.

State v. Pierce, 52 Kan. 521, 35 P. 19.

Under chapter 26, Laws of 1920, and section 2491 of the Mississippi Code of 1930, the board of mayor and aldermen have no right to issue bonds after one year has elapsed from the final favorable determination of any litigation affecting such bonds. The word "may" is used in this statute and the court below held that this word must be construed as "shall," that the word "may" when used in a statute that affected the public interest is mandatory.

59 C. J. 1082, sec. 635.

The word "may" in a statute will be construed to mean "shall" whenever the rights of the public or third person depend on the exercise of the power of the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a duty is imposed on public officers, and the public or third persons have a claim de jure that the power shall be exercised.

Words & Phrases, pages 4421-4422; People ex rel. Brokaw v. Commissioners of Highways, 6 L.R.A. 161.

The court below, while holding that the word "may" was mandatory, construed it to make the statute in question mean that the board of mayor and aldermen must issue the bonds, that they might issue them within one year if they saw fit, but if not issued within that time, they must issue them later. We submit that this is the wrong construction to place on the statute. The correct construction, as we see it, construing the word "may" as mandatory, is that the board of mayor and aldermen must issue the bonds within one year after the final favorable determination of any litigation. The statute is not mandatory that they issue the bonds, but if they do issue the bonds, then it is mandatory that they do so in the time prescribed.

Our statutes, and particularly section 2488 of the Mississippi Code of 1930, read with chapter 206 of the Laws of 1920, give the board of mayor and aldermen the power to issue municipal bonds.

The power is vested in the board, and they may issue the bonds only in accordance with section 2488 of said code.

J. G. Holmes, of Yazoo City, for appellee.

It is admitted that the bonds in question have been held valid by this honorable court in the previous case of Love v. Board of Mayor and Aldermen, 138 So. 600. That decision adjudicating the legality of the bonds was rendered on January 11, 1932, and the time for filing a suggestion of error did not expire until January 26, 1932. Although the city, with the approval of the public was desirous of selling the bonds and applying the proceeds to the purposes for which the bonds were ordered issued, no sale of the bonds, because of the condition of the bond market, could be made until January 25, 1933, when at a legal meeting of the city council the bonds were sold locally to the Delta National Bank, and were ordered printed, executed and delivered to the bank pursuant to such sale.

It will be observed, therefore, that there is no question here as to the original legality of the bond issue. The only question here involved is whether or not the city on January 25, 1933, the date of the sale of the bonds to the Delta National Bank, had the power and authority to then sell the same, and to have the same printed, executed and delivered pursuant to said sale.

It is our contention, that the bonds were issued within the contemplation of section 2491 of the Code of 1930 within one year after the final favorable determination of the litigation affecting the bonds. The judgment of the supreme court rendered in the case of Love v. Board of Mayor and Aldermen, 138 So. 600, was rendered on January 11, 1932. The appellant in that case had fifteen days thereafter in which to file a suggestion of error, thus having until January 26, 1932, in which to file a suggestion of error. The original bill in the case at bar alleges that while no suggestion of error was filed, the right to file such suggestion or error was at no time waived throughout the period of fifteen days allowed therefor.

Railroad Company v. Odneal, 74 Miss. 827; Yazoo & Mississippi Valley Railroad Company v. Neal, 47 So. 673.

Certainly, the rights of the successful party during the period of fifteen days allowed for the filing of a suggestion of error were suspended because at any time during that period the cause was subject to be re-opened on a suggestion of error. Certainly, therefore, if the case might have been re-opened during that period on a suggestion of error and the rights of the successful party during that period was suspended, the litigation could not be said to have terminated until after the expiration of the period, which was on January 26, 1932. The bonds in the case at bar, however, were sold and ordered issued and delivered within that period, to-wit, on January 25, 1933, which date, it is respectfully submitted, was within one year after the final favorable termination of the litigation involving the bonds.

As a second ground for the affirmance of the decree of the court below it is respectfully submitted that the limitation of one year provided in section 2491 of the Code of 1930 is not a limitation upon the governing authorities to issue the bonds but is a fixed period during which they may issue the bonds in...