Poplarville Sawmill Co. v. A. Marx & Son

• Decision Date: 25 February 1918
• Docket Number: 19888
• Citation: 117 Miss. 10,77 So. 815
• Parties: POPLARVILLE SAWMILL CO. v. A MARX & SON
• Court: Mississippi Supreme Court

77 So. 815

117 Miss. 10

POPLARVILLE SAWMILL CO. v. A MARX & SON

No. 19888

Supreme Court of Mississippi

February 25, 1918

APPEAL from the chancery court of Pearl River county, HON. D. M RUSSELL, Chancellor.

Injunction by the Poplarville Sawmill Company against A. Marx & Sons. From a decree sustaining a demurrer to the bill and awarding damages, complainants appeal.

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

Affirmed.

J. M Shivers, for appellant.

The question is, has the mayor of a town the right to try civil actions in his capacity as a justice of the peace within the corporate limits of his municipality. S. C. Smith was the duly elected and qualified mayor of the town of Poplarville for the term of two years from the first Monday in January A. D. 1915, to the first Monday in January, A. D. 1917. He was a mayor de jure, and under the statute was police justice and as police justice was ex officio a justice of the peace in and for the corporate limits of the said town. The exact wording of the statute being as follows: The mayor or mayor pro tempore, shall be the police justice; and in either case the police justice shall be ex officio a justice of the peace in and for the corporate limits (Code 1906, section 3399). Under this statute it seems that the mayor is not the ex officio justice of the peace, but that the police justice is and not only that, but in the alternative the mayor pro tem may be the police justice but also may be ex officio a justice of the peace.

If it be true that the mayor, by virtue of his additional office of police justice and ex officio justice of the peace is authorized by law as well as by the Constitution of the state to try civil actions, then would it not also be true that his alternative in the said offices, the mayor pro tem is invested with the same authority. And if the pro tempore mayor and police justice should exercise the right claimed by the mayor, police justice and ex officio justice of the peace to try civil actions would he be an officer de jure or de facto? After long search we can find no authority for the establishment of a court for the trial of civil actions composed of a judge and a substitute to act in his place.

Smith was police justice and on account of this fact ex officio justice of peace, the mayor pro tem was incumbent of both said offices with the same identical powers; there is nothing like this in the judiciary department of the state of Mississippi or in that of the United States. If so, it would be a violation of the Constitution of the state of section 1 of article 1 thereof.

"The powers of the government of the state of Mississippi shall be divided into three departments, and each of them confided to a separate magistracy, to wit: Those which are legislative to one, those which are judicial to another, and those which are executive to another. Section 2 of article 1, declares that no person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments."

S. C Smith was mayor of the town of Poplarville, but not ex officio justice of the peace, but on account of the additional office of police justice he held the office as ex officio justice of the peace; hence he had no legal right to try any case, even of violation of a town ordinance as mayor but by statute he shall be a police justice; he may sit as a committing court in all violations of the criminal laws of the state committed within the county outside of the municipal corporation and of all felonies, and bind over the accused to appear before the proper court having jurisdiction to try the same, or refuse bail and commit the accused to jail in cases not bailable. "He shall also be ex officio justice of the peace in all cases arising within the corporate limits of the municipality, and he shall discharge his duties as such." In addition to this duty he shall hear and determine all violations of the municipal ordinance and punish offenders therefor as prescribed. All these duties are such as belong to the police power of the municipality and of the state (see Code 1906, sections 3398, 3399), and he shall have a police court with the clerk of the municipality as clerk of the said court, and all other adjuncts to said court as is prescribed by Code 1906, section 3400. "Every municipal corporation is provided with an executive head, usually styled the mayor whose duty usually is to see that the municipal ordinances are executed, and to preside at corporate meetings. Judicial duties are often annexed to those which properly appertain to the office, however, and he is authorized to judicially administer not only the ordinance of the corporation, but also the laws of the state, but no jurisdiction to try civil cases exist in the mayor unless conferred upon him by charter or statute." (19 Am. & Eng. Ency. Law (O. S.) p. 51 and note.)

The said S. C. Smith did not in this case sign himself, or try the case in his capacity as police justice and ex officio justice of the peace but as mayer and ex officio justice of the peace.

The mere fact that the statute makes a mayor an ex officio justice of the peace, in certain cases, and thereby annexes to his distinctive duties as mayor, an executive office, certain purely incidental police duties does not alter the paramount fact that the mayor of a town is, under the general law, distinctly an executive officer. All the judicial power which he may, as ex officio justice of the peace, exercise, is incidental, and not primary (see Code 1906, section 3377); Abbott's Municipal Corporations, section 570.

"In some states he (the mayor) is authorized to arrest and try offenders against certain ordinances passed by virtue of the police power." In these cases it has been held that the exercise of the power did not make him a part of the judiciary, the act is but an exercise of the police power. State v. Armstrong, 44 So. 809. We do not consider that this attacks the decision of this court in the case of Altman v. Walls, 71 So. 318, on any point. The said case having been tried on an agreed state of facts entirely different from those involved in the instant case.

This being in our opinion a void judgment and being without legal effect, it can be attacked at any time, and binds and bars no one. Lake v. Perry, 95 Miss. 550, 49 So. 569.

We submit, that we think that the learned Chancellor below erred in dissolving the injunction in this case, and in not overruling the demurrer and making the injunction perpetual.

W. A. Shipman and Stevens & Cook, for appellee.

Appellant brings the case here to have this court pass upon the one legal question upon which it bottomed its bill for injunction. That question is whether a mayor and ex officio justice of the peace can legally try civil suits within the limits of the municipality of which he is mayor. Or, as opposing counsel puts it in his brief: "Has the mayor of a town the right to try civil actions in his capacity as a justice of the peace within the corporate limits of his municipality." We confidently submit that he has under section 172, Constitution of 1890, and section 3399, Code 1906.

Under section 172, Constitution of 1890, providing that "the legislature shall, from to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient," the legislature has the constitutional authority to give a mayor of a municipality jurisdiction of causes civil and criminal, within the municipality. The case of Bell v. McKinney, 63 Miss. 187, expressly holds that:

"Under article 1, section 31, and article 6, section 24, of the Constitution, which provides that the legislature may establish in addition to the courts designated in the Constitution other inferior courts, and in case of the misdemeanors therein enumerated may dispense with the inquest of a grand jury and authorize prosecutions before justice of the peace or such other inferior courts as may be established, it is competent for the legislature to invest the mayor of an incorporated town with the criminal jurisdiction of a justice of the peace, or to declare that the mayor of such town shall be ex officio a justice of the peace in the corporate limits of the town in which he was elected. A mayor's court thus constituted would be an inferior court within the meaning of the constitutional provisions above referred to. (Pages 190-191 of the opinion.)"

It is to be noted here that this decision was rendered in 1885 when the Constitution of 1869 was in effect, and that article 6 section 24, of that Constitution is in practically the same identical words as is section 172, Constitution of 1890, and that article 1, section 31, Constitution of 1869, is carried forward in article 3, section 27, of the Constitution of 1890. It is manifest from a reading of these sections of the two Constitutions that the same constitutional authority existed when the case of Bell v. McKinney was decided as now exists. It is to be further noted that in that case the briefs of counsel for both parties discussed the constitutional authority of mayors to act as justices of the peace. So the constitutional question as to that right was contended for and against and the opinion of the court was responsive to the specific question. The court upheld the mayor's court as one authorized by the Constitution. The act of the legislature which was attacked as being unconstitutional in the Bell-McKinney case was the one conferring on mayors all the powers of justice of the peace in and...