State v. Govan

• Decision Date: 15 May 1893
• Citation: 70 Miss. 535,12 So. 959
• Court: Mississippi Supreme Court
• Parties: THE STATE OF MISSISSIPPI, ON THE RELATION OF THE DISTRICT ATTORNEY, v. GEO. M. GOVAN, SECRETARY OF STATE

12 So. 959

70 Miss. 535

THE STATE OF MISSISSIPPI, ON THE RELATION OF THE DISTRICT ATTORNEY, v. GEO. M. GOVAN, SECRETARY OF STATE

Supreme Court of Mississippi

May 15, 1893

FROM the circuit court of the second district of Coahoma county HON. R. W. WILLIAMSON, Judge.

This is a proceeding by mandamus. The petition alleges that the city of Clarksdale, by resolution of its corporate authorities duly entered of record, did, on January 3, 1893, elect not to come under the provisions of chapter 93, code of 1892 entitled "municipalities;" that it was, thereupon ordered by the municipal authorities that said resolution be certified by the city clerk to the secretary of state on the fourth day of January, 1893, but that said certified copy without fault of the municipal authorities, was not received by the secretary of state until April 12, 1893, when the same was filed by the secretary of state, but that he refused to make a record of the same, on the ground that it was not received in his office on or before April 2, 1893; that said municipal authorities, having duly elected not to come under the provisions of said code chapter, and having ordered the clerk to promptly prepare and certify to the secretary of state a copy of the resolution, as required by law, were not aware of the failure of the secretary of state to receive the same until after April 2, 1893. The prayer of the petition was that a writ of mandamus issue, directing the secretary of state to make record of said resolution, as provided by the statute.

The defendant demurred to the petition. On the hearing of the demurrer it was agreed that the certified copy of the resolution referred to was received by the secretary of state April 12, 1893. The demurrer was sustained, the relator declined to amend and the petition was dismissed. Relator appealed.

Section 3035, code 1892, being a part of chapter 93, which went into effect April 2, 1892, is as follows:

"From and after the date that this chapter becomes operative, every municipality in the state shall exercise the powers conferred herein on the class to which it belongs, and shall be governed by the provisions thereof. But an existing municipality, by resolution of its corporate authorities, entered of record and certified to the secretary of state, within twelve months after this chapter becomes operative, may elect not to come under the provisions hereof. The secretary of state shall make a record of such certificates received by him. The provisions of this chapter shall not apply to a municipality so signifying the wish of its corporate authorities, unless thereafter, by a majority vote of the electors therein, to be cast at a general or special election for the purpose, it be determined to come under the operation of the chapter."

The opinion contains a further statement of the case.

Affirmed.

J. W. & W. D. Cutrer, for appellant.

The legislature of 1892 recognized that there were localities in the state where charters had been granted that were specially applicable to the wants of the communities affected, and it was unwilling to revoke these charters outright. It therefore adopted the wise policy of referring to the people of the respective localities the question whether they would be governed by their existing charters or a new law. There is no controversy in this case as to the completed expression of the law of the municipality in accordance with the provision of § 3035 of the code. The returns, so to speak, were made up and duly certified for transmission to the proper officer. Shall it be said that, because they were not technically received within the twelve months, the result of the election shall be nullified?

Provisions relating to the time in which returns are to be transmitted are held to be directory only. 6 Am. & Eng. Enc. L., 340. See also authorities cited in Heidelberg's Miss. Dig., page 336. The statute requires that the resolution shall be entered of record and certified to the secretary of state within twelve months. It is silent as to the time in which the same shall be received by him. Therefore, when the returns are received, and show regularity upon their face, the officer is left no alternative but to give effect to the will of the people. As said by this court in Jackson v. Shlomberg, ante, 47, each municipality was given an election to accept or reject the code provision within twelve months, and the status of the corporation was fixed by the election. The legislature was not willing to have any municipality, against its will, brought under the provision of the code chapter. The whole of the section must be taken together. The court will not give effect to isolated parts of the statute to defeat the choice expressed by the municipality. In the Shlomberg case the effective resolution was not even certified to the secretary of state by the municipal authorities.

If the choice is made not to come under the provisions of the chapter, effect will be given to that choice. If thereafter a majority of the voters elect to adopt the chapter, then the municipality shall be governed thereby. The fact that the result is not promptly transmitted to the secretary of state will not, in the one case more than the other, defeat the election. Effect will be given to the popular will, whether expressed at the polls or through the municipal authorities. The mere fact that, by misadventure, or the possible contumacy of a subordinate employe, the resolution is not delivered within the time fixed, cannot defeat the popular will.

Cook & Anderson, on the same side.

The clerk is no part of the council, and it has no control over his...