State v. Glennen

Citation47 So. 550,93 Miss. 836
Decision Date30 November 1908
Docket Number13,535
CourtUnited States State Supreme Court of Mississippi
PartiesSTATE OF MISSISSIPPI v. EDWARD GLENNEN et al

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

Glennen and others, constituting the mayor and board of aldermen of the city of Biloxi, appellees, were indicted for a violation of Code 1906, § 1302, in that they failed to give notice of an election to be held by the electors of the city of Biloxi to determine whether there should be an increase in municipal taxation, the indictment charging that they thereby wilfully, and knowingly, and unlawfully failed and neglected to perform the duties required of them by law. A demurrer to the indictment was sustained, and the state appealed to the supreme court. The statute law on the subject is set forth in full in the opinion.

Reversed.

George Butler, assistant attorney general, for appellant.

The appellees were jointly indicted for violation of Code 1906 § 1302. The court below, in rendering its judgment acted (as shown in the opinion of the learned circuit judge, made a part of the record), on the idea that "the gravamen of the charge is that the defendants increased the levy of taxes of the municipality in the year 1907 to the extent of six mills over the levy of 1906, and 'did then and there wilfully, knowingly, and unlawfully fail and neglect to perform a duty required of them by law, namely, to publish notice of an election in the city of Biloxi for the purpose of giving the electors of said city the right and privilege to vote for or against said increase.'"

Code 1906, § 3317, prescribes the maximum amount of taxes that may be levied for all purposes except special assessments. Code 1906, § 3430, requires that the mayor and board of aldermen shall publish annually a detailed statement of receipts and disbursements, showing resources and indebtedness at the beginning and the end of the fiscal year, and that if there has been an increase in the rate of taxation or of the indebtedness during the year, unless the increase shall have been authorized by the electors, etc., the officers participating shall be suspended and be ineligible to succeed themselves. Code 1906, § 1303, subjects any officer, knowingly or wilfully failing, neglecting, refusing to perform any duty required by law, or who shall "violate his duty in any respect" to a criminal prosecution, and Code 1906, § 3475, subjects him to civil liability at the suit of anyone damaged thereby. It will be noted that a positive duty to submit the question of the increase, is not enjoined on the board by the statute law.

The statute does not say that the board shall submit the question of increase to the voters. But the duty is negatively enjoined upon them. Manifestly it was the duty of the board, before increasing the rate of taxation, to submit the question to the voters. Their failure to do so is a misfeasance for which the members of the board "shall be suspended from office." There are numerous acts by officers such as approving worthless bonds, receiving too much pay, accepting free railroad passes, etc., which are expressly mentioned in the Code; and, to secure the further discharge of all official duties and acts, Code 1906, § 1302 was passed.

The purpose of the statute is to protect the tax payer from unjust taxation, and so careful was the legislature to safe-guard this that the officer increasing the tax, must be at once removed and prevented from succeeding himself in the administration of the city's affairs, and, additionally be subject, if guilty of a wilful misfeasance, to a fine and imprisonment. The two Code section, § 1302 and § 3430, are in pari materia and should be construed together.

OPINION

WHITFIELD, C. J.

The demurrer to the indictment in this case was properly sustained for several obvious reasons. Among others, it stated no time or place when and where the offense was committed; but the court, after sustaining the demurrer and quashing the indictment, discharged the defendants absolutely, because it did not think they could be indicted under Code 1906, § 1302, for failure to discharge the duty provided in Code 1906, § 3480, to submit to the electors of the city the question of an increase of taxation and did not publish notice of the election therefor.

Code 1906, § 3430 is in the following words "Statements to be Published, Penalty for increasing...

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6 cases
  • Buford v. State
    • United States
    • United States State Supreme Court of Mississippi
    • February 21, 1927
    ...26, providing that the accused shall have the right to demand the nature and cause of the accusation against him." In State v. Glennen, 93 Miss. 836, 47 So. 550, appellants were indicted under section 3430, Code of providing that municipal authorities shall annually publish a statement of t......
  • Garraway v. State ex rel. Dale
    • United States
    • United States State Supreme Court of Mississippi
    • January 23, 1939
    ...... municipal officers. If the district attorney felt that there. was just ground, as evidently his petition avers, of flagrant. disregard of public duty, why did he not invoke the ordinary. remedies?. . . . Sections 1065, 1066, 2903 and 2907, Code of 1930; State. v. Glennen, 93 Miss. 836, 47 So. 550. . . If the. district attorney can go into a circuit court and invoke. mandamus to force municipal officers, before whom there has. never been lodged any official petition or complaint, and. that is the case here, then it is that the office of district. ......
  • McCool v. State ex rel. Howie, Dist. Atty.
    • United States
    • United States State Supreme Court of Mississippi
    • January 2, 1928
    ...... conflict. Which section governs? This court has repeatedly. held that only upon conviction for wilful neglect of duty or. misdemeanor in office can an officer be removed, and that. such is the exclusive mode of removal. Hyde v. State, 52 Miss. 665; State v. Glennen, 93 Miss. 836; Lizano v. Pass Christian, 96 Miss. 640. A. conviction before a justice of the peace is not sufficient. Moore v. State, 45 So. 866; Ex parte Lehman, 60. Miss. 567; State Board of Health v. Mathews, 113. Miss. 510. See, also, Mayor of Jackson v. State, 102. Miss. 663; Ex ......
  • Jones v. State
    • United States
    • United States State Supreme Court of Mississippi
    • December 31, 1923
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