Mayor And Board of Aldermen of City of Jackson v. State

• Decision Date: 18 November 1912
• Docket Number: 16,252
• Citation: 59 So. 873,102 Miss. 663
• Court: Mississippi Supreme Court
• Parties: MAYOR AND BOARD OF ALDERMEN OF CITY OF JACKSON v. STATE

59 So. 873

102 Miss. 663

MAYOR AND BOARD OF ALDERMEN OF CITY OF JACKSON v. STATE

No. 16,252

Supreme Court of Mississippi

November 18, 1912

October, 1912

APPEAL from the circuit court of Hinds county, HON.W. A. HENRY Judge.

Mandamus by the state, on the relation of J. H. Howie, district attorney, against mayor and board of aldermen of the city of Jackson. From a judgment overruling a demurrer to the petition, defendant appeals.

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

Affirmed.

Powell & Thompson, for appellant.

We contend that this act is unconstitutional and void because its title is violative of the section 71 of the Constitution of 1890 which is as follows:

"Every bill introduced into the legislature shall have a title and the title ought to indicate clearly the subject-matter or matters of the proposed legislation, etc."

The provisions of this section of the Constitution have been declared to be mandatory in two decisions of this court, to wit: Sample v. Town of Venona, 94; Miss. 264; Board of Levy Commissioners of Yazoo & Miss. Delta v. Royal Ins Co., 96 Miss. 832.

The title to the act in question reads as follows:

"An act to provide for an election to change the form of government of certain cities and prescribing the manner of affecting such change; abolishing all offices existing therein at the time of such change and providing for a government of such cities by a council, composed of a mayor and two councilmen, providing for the election of such mayor and councilmen, fixing their compensation, prescribing their several terms of office and defining the powers and duties to be exercised by said council and the members thereof providing for a method by which the mayor or either councilman may be discharged from the service of such city during his term of office and his successor elected; providing a method for the adoption of certain ordinances by the electors and the approval by them of other ordinances; providing a method by which the powers and duties to be exercised by the council may be extended, diminished or limited by the electors of such cities and for other purposes."

The title of this act violates section 71 of the Constitution of 1890:

1st. In that it proposes to contain a provision recalling the commissioners while no such provision is in the body of the act.

2d. It fails to disclose the sections of the Code of 1906 and the Acts of 1910, chapter 204, which it repeals or amends. It does not even mention the municipal chapter.

The court will observe by reference to the municipal chapter of the Code of 1906 that many sections of the same have been either amended or repealed by this act of 1912. The court will further observe that chapter 204 of the Acts of 1910 has been absolutely repealed and yet in the act itself there is only a single mention of the municipal chapter and no reference to the acts of 1910 whatever. Does then, we might well ask, the title to the acts of 1912 clearly indicate the subject-matter or matters of the proposed legislation therein as provided for in section 71 of the Constitution.

The object of this constitutional provision is manifest. It was to compel the legislature to clearly disclose in the title to every act each and every thing contained therein. So that when a bill was read by its title the legislature could gather the full import of the whole bill therefrom. In other words it was to prevent vicious legislation from being passed under false pretenses. We contend that the title to this act is guilty of the sin of commission against said constitutional provision in that it states that there is a provision in the act for the recall of the commissioners which is not true, and it is guilty of the sin of omission in that it fails to disclose the many sections of the municipal chapter which are repealed or amended in the body of the act without any direct reference to the same.

The title purports to abolish all offices. The act does not abolish any.

The title pretends to provide for the recall of commissioners but does not.

The title of the act is silent on the question of eligibility to office which it changes.

The title pretends to fix the compensation of commissioners which it does not do.

The act changes the municipal chapter and repeals Laws of 1910 without notice in the title.

It requires the candidate to be the nominee of a party and does not mention it in the title.

The act changes the general law as to voting for all candidates but does not mention it in the title.

It provides for the recall of subordinate officers but does not mention it in the title.

The act destroys free speech but says nothing of this in title.

We contend that section 4 and 19 of the Acts of 1912 violate section 175 of the Constitution of 1890 in that it seeks to remove public officers elected by the people before the termination of their term of office in a manner not contemplated by the Constitution without abolishing the office itself. For instance, the office of mayor is not abolished by the act nor the office of the chief of police, city clerk, assessor, etc., nor is the office of aldermen abolished, the words "councilmen" and "aldermen" being according to all authorities synonymous terms.

Now we will admit for the sake of argument that the legislature had a right to abolish a statutory office, yet we deny that it could leave the office intact, and yet remove the office holder in any other method than that provided for under section 75 of the Constitution of 1890. This has been the settled law in this state for nearly seventy-five years. See Rundell v. State, Walker, 146; Hyde v. State, 52 Miss. 665; Ex parte Lehman, Miss. 967; Lizano v. City of Pass Christian, 96 Miss. 640.

Section 175 of the Constitution provides for what causes officers can be removed and also the manner of their removal and the Constitution having spoken the legislature could not alter or add to its provisions in this regard. It cannot be successfully urged that the offices of mayor and chief of police, city clerk, assessor and school trustees have been abolished because these offices remain in the acts of 1912. It is true that the duties of the mayor are changed but the office itself remains intact and so far as the offices of the chief of police, city clerk, assessor, etc., are concerned, not only are they left intact but their name and duties remain absolutely unchanged, and yet under the act it is attempted to remove them from office. But it may be urged that this does not render the whole act unconstitutional because it might be held that these officers could fill out their unexpired terms and the city government go on under the commission form of government but if the court will observe section 5 of the Acts of 1912, it provides:

"That every city operating under the provision of this act shall be governed by a council consisting of a mayor and two councilmen to be chosen as provided by this act."

Section 6 of the Acts of 1912 is violative of section 250 of the Constitution in that it requires an additional qualification for eligibility to office not required by the Constitution, to wit: that no candidate's name shall be placed upon the ticket unless nominated by party primary and yet section 250 of the Constitution provides that all qualified electors and no others shall be eligible to office except as otherwise provided in this Constitution and so we have it that while a man may be eligible to office in every respect under the Constitution he is denied the right under this act and his eligibility destroyed because forsooth he is not the nominee of a party primary. The voter cannot write his candidate's name on the ticket unless the nominee is dead or ballots lost. See Code 1906, section 4156, 4160 and 4168.

Section 7 of the Acts of 1912 is violative of section 241 of the Constitution of 1890 in that it limits the right of eligibility for office by requiring a voter to vote for all the officers named on the ticket or his vote will not be counted; in other words section 241 of the Constitution says that if a voter is a resident citizen of the state, not insane, and a citizen of the United States and twenty-one years old and has never been convicted of crime, etc., has paid his taxes, he shall be a qualified elector which undoubtedly means he shall have the right to vote. The expressed qualifications in this section of the Constitution excludes the idea that any other qualifications can be required. Now if a citizen has a right to vote surely he has a right to have his vote counted and any law preventing this is violative of the intention and spirit of this section of the Constitution.

Section 23 of this act violates section 250 of the Constitution of 1890 in that it provides qualifications not recognized by the Constitution; to wit, it provides that no man shall be eligible for commissioner unless he has resided three years in the city.

While it is true that section 245 of the Constitution of 1890 provides that additional qualifications may be provided by law for electors nothing of this kind is done in this act; an elector is duly qualified under the Constitution when he has been one year a citizen and not three years as provided in the act and the Constitution says that being a duly qualified elector he shall be eligible to any office, but this act while it does not prevent a citizen from voting, does change his qualifications for voting in that it says to the prospective candidate that while you are a qualified voter under the Constitution you shall not hold office unless you have resided three years within the city limits. The Constitution says that you are a qualified elector and as such you are eligible to any office. This act says that...