Turner v. City of Hattiesburg

• Decision Date: 19 December 1910
• Citation: 98 Miss. 337,53 So. 681
• Court: Mississippi Supreme Court
• Parties: JOHN H. TURNER ET AL. v. CITY OF HATTIESBURG

53 So. 681

98 Miss. 337

JOHN H. TURNER ET AL. v. CITY OF HATTIESBURG

Supreme Court of Mississippi

December 19, 1910

October 1910

FROM the chancery court of Forrest county, HON. THADDEUS A. WOOD Chancellor.

Turner and others, resident citizens and tax payers of the municipality, appellants, were complainants in the court below; the city of Hattiesburg, appellee, was defendant there. The object of the suit was to enjoin the issuance of municipal bonds. From a decree sustaining a demurrer to the bill of complaint and dismissing the suit complainants appealed to the supreme court.

Decree affirmed.

S.E Travis and Flowers, Fletcher & Whitfield, for appellants.

Municipalities are creatures of the statute, and can exercise no powers not expressly granted or necessarily implied to carry the granted powers into effect. It was said by this court in the case of Clinton v. Turner, 95 Miss. 594, 52 So. 261 "Municipalities act under limited powers; and must find their authority clearly given in the law, and when so found they must follow the law."

This so far as we have observed, is the universal rule of construction. Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890.

Hattiesburg, operating under chapter 99, Code 1906, as amended, had power under said Code of 1906, § 3346, "to issue bonds as hereinafter provided;" and under Code 1906, § 3415, as amended by laws 1910, chapter 142, p. 133, to issue bonds in certain cases therein enumerated; and, under section 4534 of Code of 1906, to issue bonds in certain other cases therein enumerated. These sections name every case in which it had the right to issue bonds for any purpose. But none of the provisions referred to authorize the issuance of bonds for the location and maintenance of the Mississippi Normal College, or any other state institution. There is no general statute anywhere that gave municipalities power to issue bonds for any other than strictly municipal purposes.

The act creating the said Mississippi Normal College was passed in violation of section 178 of the Constitution, providing that corporations shall be formed under general laws, only; and therefore, has no legal existence.

It will perhaps be urged here, as in the court below, that the Mississippi Normal College is a public corporation or subdivision of the state government, and, therefore, not a "corporation" in the same sense the term is employed in the Constitution.

Now, to refute our contention, it must be established that the Mississippi Normal College is not a "corporation" in the sense the term is employed in the Constitution. By reference to the act, it will be seen that it is created a body politic and corporate, with practically the same rights, powers and privileges as are conferred upon corporations generally by the Code chapter on the subject.

The construction of section 178 of the Constitution, here contended for, is emphasized by reference to section 88 thereof, which makes it the duty of the legislature to pass general laws under which corporations may be created, organized, etc. Here the word "corporations" is used without any limitation whatever. Yazoo City v. Lightcap, 82 Miss. 178; School District v. St. Joseph Ins. Co., 103 U.S. 26, L.Ed. 601; Adams v. Railway Co., 78 Miss. 887; Railway Co. v. Adams, 79 Miss. 408.

The act creating the Mississippi Normal College and the act authorizing the issuance of bonds therefor, being local in their application are violative of section 80 of the Constitution, which requires that provisions be made by general laws "to prevent the abuse by cities, towns and other municipal corporations of their powers of assessment, taxation, borrowing money and contracting debts."

It has been suggested that the said act authorizing the issuance of bonds is a general and not a local law. The wording of the act implies that it was intended to apply only to the municipality receiving the college. Section 9 of the act attempting to create the college says: "The board of trustees shall, as soon as practicable after their appointment, arrange to receive from the localities desiring to receive the locations of said school, proposals for donations, " etc. And, while the other act authorizes the municipalities of the state to issue bonds, etc., it was never contemplated that each and all of them should issue bonds, and if that theory is pursued, then no bonds could be valid unless each and every municipality joined in the issue.

The act creating the college and the act authorizing the issuance of bonds, therefore, are violative of section 112 of the Mississippi Constitution, which requires that taxation shall be "uniform and equal throughout the state."

The legislature here proposes to establish a great institution, to belong exclusively to the state, and at the same time to entail the cost of procuring a site and erecting buildings therefor upon the city or county or both, that might put up the funds necessary for such purposes. If the city of Hattiesburg furnish this money, the taxpayers of these communities will have to pay for it.

The "uniformity" of the Constitution, simply means that all the taxable property in the state be taxed alike for state objects, where such objects only are involved, so as to make the burden uniform as to all taxpayers throughout the state, as to state objects. Local taxation is controlled by the same principles. Adams v. Bank, 75 Miss. 701; Adams v. Lumber Co., 84 Miss. 23; Adams v. Kuykendall, 83 Miss. 571.

The act creating the college and the act authorizing municipalities to issue bonds to secure the same are violative of subdivision "p" of section 90 of the Constitution, which makes it unlawful for the legislature to pass any local, private or special law "providing for the management or support of any private or common school, incorporating the same or granting such school any privileges."

It may be urged that the Mississippi Normal College is not a school of the class here meant; yet, it will be seen by section 2 of the act creating the college that its object is "to qualify teachers for the public schools of the state, by imparting instruction in the art and practice of teaching in all branches of study which pertain to a common school education, " etc.

The act creating Mississippi Normal College is violative of article 8 of the Constitution, on the subject of education, and requiring that the legislature shall establish a uniform system of public schools and provide for the government of the same.

It will doubtless be urged that the Mississippi Normal College is to be no part of the public school system, yet it will be seen from the language of the act that its main feature is to qualify teachers for those schools. And the act further provides, "No one shall be eligible to admission to such schools, who shall not have completed the studies of course prescribed by law for the common public schools of the state and the course shall always be confined or restricted to a strictly normal or professional course for training teachers to teach in the public schools of the state."

Section 14 of the act provides "Tuition shall be free to all students of Mississippi Normal College who give a written pledge to teach for a period of not less than three years in the public schools of the state, " etc.

It cannot be maintained, in the face of these provisions, that this school is not to be auxiliary to, and in aid of, the public school system of the state.

It will be further noticed, that said act takes the management and control of said Mississippi Normal College from the officers and agencies in charge of the public schools of the state generally and creates an independent board of trustees, to manage and control the college.

It follows that, under authority of Ellis v. Greaves, 82 Miss. 36, this act is in conflict with said constitutional provisions and, therefore, void. The act creating Mississippi Normal College is violative of section 66 of the Constitution as amended, because passed by less than two-thirds majority of the legislature.

We are aware of the decisions of this court, Ex parte Wren, 63 Miss. 512, and Hunt v. Wright, 70 Miss. 298, holding that the courts cannot look back to the journal. We desire to be classed among the most reluctant to take issue with this or any other court of last resort. The point is raised here, primarily because this objection has been urged by contemplated buyers of the bonds in issue.

It will be noted that the court was required to overrule Brady v. West, 50 Miss. 68, to reach the above conclusion. This last case quotes from Cooley's Constitutional Limitations: "Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice, " and there are many authorities in perfect accord with the Brady case, supra.

"The journals of the two houses of the legislature, in connection with other competent evidence on the subject, may be examined as means of information to aid in arriving at a correct conclusion as to what was the action of the legislature on any particular bill before it." Berry v. B. & D. P. R. R. Co., 20 Am. Rep. 69; Hunt v. State, 22 Tex.App. 396; People v. Mahaney, 13 Mich. 481; Attorney-General v. Jay, 55 Mich. --; Rode v. Phelps, 80 Mich. 598; People v. Burch, 84 Mich. 408; Detroit v. Detroit Board of Assessors, 91 Mich. 78; Fordyce v. Goodman, 20 Ohio St. 1; County v. P. R. Co., 13 F. 722; Smythee v. Garth, 33 Ark. 17; Worthen v. Badgett, 32 Ark. 496; Fowler v. Pierce, 2 Cal. 165; McCullough v. State, 11 Ind. 424.

D. E. Sullivan, for appellee.

It is well established that the legislature may authorize a municipality to issue and sell its bonds, in the aid of public enterprise, if there are no...