Mississippi Power & Light Co. v. Town of Batesville

• Decision Date: 19 February 1940
• Docket Number: 34056
• Citation: 187 Miss. 737,193 So. 814
• Parties: MISSISSIPPI POWER & LIGHT CO. v. TOWN OF BATESVILLE
• Court: Mississippi Supreme Court

193 So. 814

187 Miss. 737

MISSISSIPPI POWER & LIGHT CO. v. TOWN OF BATESVILLE

No. 34056

Supreme Court of Mississippi, Division B

February 19, 1940

APPEAL from the chancery court of Panola county HON. L. A. SMITH SR., Chancellor.

Proceeding by the Town of Batesville for the validation of a proposed issuance of bonds, opposed by the Mississippi Power & Light Company. From a decree validating the bond issue, the Mississippi Power & Light Company appeals. Affirmed.

Affirmed.

Green &amp Green, of Jackson, for appellant.

Provisions of act are mandatory; hence failure to post notices as required invalidates all subsequent proceedings.

Sec. 4 Chap. 185, Laws of 1936; 1 Jones on Bond and Bond Securities Sec. 212; Town of Clarksdale v. Broaddus, 77 Miss. 667, 28 So. 954; National Bank of Commerce v. Town of Grenada, 48 F. 278, 54 F. 100; 5 McQuillin, Municipal Corporations (2 Ed.), Sec. 2356.

Provisions of this kind as to notice are always strictly construed, and this court has adhered to this strict construction doctrine from the earliest times down to the present.

Zecharie v. Bowers, 11 Miss. 641, 645; McKey v. Cobb, 33 Miss. 533; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Langstaff v. Town of Durant, 84 So. 459, 122 Miss. 471; Belt v. Adams, 86 So. 584, 124 Miss. 194; Conn. Life Ins. Co. v. Lombard, 185 So. 261, 265; Jones v. Frank, 85 So. 310, 123 Miss. 280; City of Chanute v. Davis, State Auditor, 116, Pac. 367.

We urge that this court reverse the decree validating the bonds because by failing to comply with the mandatory provision of the act as to posting of notice in five public places a vital condition precedent was not fulfilled and all subsequent proceedings were of no effect and void.

Vagueness and uncertainty of stated purpose invalidates bond issue.

1 Jones, Bond and Bond Securities, Sec. 200; 5 McQuillin on Municipal Corporations (2 Ed.), Sec. 2356; Sec. 4b, Chap. 185, Laws of 1936.

The election resolution and published legal notice are so vague and misleading that they did not inform the taxpayers of any definite purpose, if in fact the municipality had such a purpose at that time.

Elections must be conducted by such means and in such manner as to ascertain the will of the electorate on a given issue.

In re Validation Bonds, City of Moss Point, 156 So. 516, 170 Miss. 886.

We maintain that the electorate had before it no definite issue, and the election was, therefore, ineffective in determining which of the many nebulous possibilities contained in the resolution would be pursued by the municipality in obtaining electricity. For such vagueness of purpose in the resolution and notice we believe this court should reverse the decree validating the bonds.

The court lacked jurisdiction to determine validity of bonds because Section 2964, Code of 1930, was not complied with in the published notice of validation proceedings.

Sec. 2964, Code of 1930; Phares v. Conner, 11 Miss. 87; Burton v. Kramer, 123 Miss. 848, 86 So. 578; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; 50 C. J. 535; Foley v. McDonald, 46 Miss. 238; Magoffin v. Mandaville, 28. Miss. 354.

Statutes requiring publication as a substitute for summons must be strictly followed.

Ponder v. Martin, 80 So. 388, 119 Miss. 156; Belt v. Adams, 86 So. 584, 124 Miss. 194.

D. R. Johnson, of Batesville, for appellee.

We contend that since said election resolution was published in the Panolian, a newspaper published and circulating in the municipality of the Town of Batesville, Mississippi, the law did not require posting of notices as is required in the foreclosure sales of lands under mortgages and deeds of trust as provided in Section 2167, Mississippi Code of 1930, and we respectfully call this honorable court's attention particularly to that part of Section 4, Chapter 185, Laws of 1936.

Sec. 2167, Miss. Code of 1930.

Section 4 of Chapter 185, Laws of 1936, has to do with the issuance of bonds by municipalities. Section 2167 of Mississippi Code of 1930 has to do with the foreclosure of mortgages and deeds of trust, two entirely separate and distinct procedures.

By way of comparison and to reason whether or not the Legislature made it mandatory to publish election resolution notice in the instant case, we respectfully call the attention of the court to the preamble and Section 1 and 2 of Chapter 206 of the Laws of 1920, which said sections are brought forward in the Mississippi Code of 1930, as Sections 2488 and 2489 respectively, which said Section 2 of Chapter 206, Laws of 1920, brought forward as Section 2489 of said Code of 1930 provides: "Election to be ordered by Board.--Before issuing said bonds, the mayor and board of aldermen, or commissioners, shall, by resolution spread upon their minutes, declare their intention of issuing said bonds, fixing in such resolution the maximum amount thereof, and the purpose for which they are to be issued, and where an election is required shall fix in such resolution a date upon which an election shall be held in said municipality, of which not less than three weeks' notice shall be given by the clerk by a notice published in a newspaper published in said municipality once a week for three weeks preceding the same, or, if no newspaper is published in said municipality, then by posting a notice for three weeks preceding said election at three public places in said municipality. Such election shall be held, as far as practicable, as other elections are held in municipalities."

There have doubtless been bonds issued under the provision of said section by the municipality of the Town of Batesville and hundreds of other municipalities in the State of Mississippi since the enactment of this statute, and we fail to find wherein this court has held posting of notice required to make a bond issue valid under said section.

We maintain that the resolution follows exactly what the Legislature said and intended to be done and feel that a comparison with the statute is the clearest statement possible on this point and needs no further argument.

Chap. 185, Laws of 1936; N. O. & N.E. R. Co. v. Picayune, 145 So. 101; 43 C. J. 519; Sawyer v. Lorenzen, 149 Iowa 87, 127 N.W. 1091, Ann. Cas. 1912C, 940, 942.

In Mississippi Code of 1930, Section 313, Validity of Bond Issues--How Determined, upon which this validation proceeding is based, we find the law expressed in the following words: "And the chancellor shall then notify the chancery clerk to set the matter for hearing at some future date, not less than ten days thereafter, and the clerk shall give not less than five days' notice by making at least one publication in some paper published in the county where the case is docketed, addressed to the taxpayers of the county, municipality, or district proposing to issue said bonds advising that the matter will be heard on the day named."

We call attention to the fact that the wording of the law herein does not in any way direct that process shall issue nor does it say that the taxpayers shall be made defendants and process issued, and we believe that the wording of the statute does not intend this as process and consequently it is immaterial that Section 2964, Code of 1930, be complied with in validation procedure. We believe the main purpose is to call the attention of the taxpayer, or taxpayers, that there is a bond validation proceeding pending so that he may look into it and see in what way his interests may be effected. We do not believe that the taxpayer is in any way interested or effected or should be interested in whether or not the published notice shows anything about the seal of the court, the main purpose being to give public notice to the taxpayer of the pending proceedings. If the seal of the court is shown affixed to the published notice it does not convey any more information to the taxpayer than if it were not affixed.

We contend that the notice required in said Section 313, Mississippi Code of 1930, was not processed in the sense of Section 2964, Mississippi Code of 1930. However, in the case at bar we respectfully submit that the notice to the taxpayers was issued and signed by the clerk and that the seal of the clerk was affixed both to the original and a duplicate thereof before the original notice was delivered to the publisher of the paper for publication.

Hindman Doxey, of Holly Springs, for appellee.

No attack is made upon the publication notice. No objection is made that it was not "published in full." No question but that it was published "not less than fifteen days prior to the date fixed for such election;" No attempt is made to show that the Panolian, the newspaper in which the notice was published, was not a "newspaper published and circulating in the municipality" of Batesville. All these facts are conceded. It is claimed, however, in addition to this newspaper publication that the notice should have also been posted in five public places in the municipality. We say the law does not require any such posting.

We readily agree "if there be no such newspaper, " then it would have been necessary to post the notice in five public places, as provided in the alternative manner of giving notice. The court will notice, however, the phrasing of the law and the punctuation thereof. It will be readily seen that one of two ways is to be adopted in the giving of the required legal notice. One way is to publish the notice "in a newspaper published and circulating in the municipality." If no such newspaper is published and no such newspaper has a circulation in the municipality, then in that event, another way of making publication is provided. Since it is shown throughout the record that the Panolian is a newspaper, both published and circulating in the municipality of Batesville, then...