196 So. 223 | Miss. | 1940
Lead Opinion
The appellee, plaintiff in the court below, brought a suit in the Circuit Court of Walthall county against the Mississippi Power Light Company, having a power line in Walthall county; and also against the city of Jackson, a municipal corporation in Hinds county, Mississippi, for a personal injury sustained in Jackson, where the Mississippi Power Light Company has its principal place of business.
There was a plea to the jurisdiction of the Circuit Court of Walthall county as to the city of Jackson, in which it was set up that the city was a municipal corporation domiciled in Hinds county, Mississippi, and was not suable outside of the county of its domicile, and could not be joined in a suit with the Mississippi Power Light Company outside of Hinds county. The Circuit Court overruled its plea, and after the evidence was closed gave an instruction directing a verdict for the Mississippi Power Light Company, and submitted the case to the jury on the liability of the city of Jackson for the alleged injury, which resulted in a judgment against the city *258 in favor of the plaintiff for $20,000; from which judgment this appeal is prosecuted.
The city of Jackson also requested a peremptory instruction at the close of the evidence, based on the ground that it was not suable in Walthall county, and that a directed verdict should be given in its favor, which instruction was refused. There are a number of assignments of error in the case, but we deem it necessary to deal with the question of jurisdiction alone, as our conclusion in regard thereto leads to the reversal and dismissal of the case.
The statute of this state is silent as to the venue of actions against municipal corporations, and consequently the common law prevails in regard thereto. In 19 R.C.L., page 1049, section 338, it is said: "It is held by the great weight of authority that an action against a municipal corporation, whatever the character of the action, is inherently local, and must be brought in the county in which the municipality is situated. It is considered to be of the greatest importance to the welfare of such bodies, and of the citizens whom they serve, that their officers should be permitted to remain at home and discharge their public duties, instead of being called hither and thither over different parts of the state to attend to litigation. For these reasons a statute providing that a corporation may be sued in any county in which it regularly exercises its franchises has been held not to be applicable to a municipal corporation."
In 44 C.J., page 1471, section 4680, title, Municipal Corporations, on the subject of venue it is said: "Actions against municipal corporations have been described as local and not transitory, and it has been held that such actions must be brought in the county in which the municipality is situated, or in the courts of the municipality, except where jurisdiction is expressly conferred elsewhere by statute."
The appellees in the court below relied upon the cases of Oliver v. Loye,
It is well settled in this state that statutes in derogation of the common law will be strictly construed; Hollman v. Bennett,
In the case of Simpson v. Neshoba County,
The same reasoning applies in the case of municipal corporations. While the statute is silent as to where the municipal corporation may be sued, we think the common law prevails, as it is not debarred by a statute any further than the language of the statute makes necessary. Both will be construed to co-exist where they are consistent, and where there is no statute upon the subject the common law prevails; and if a statute is enacted, and then repealed, the common law again comes into play.
What was said in Oliver v. Loye,
The common law has been followed in this state, and so far as our reports disclose no municipality has been sued outside of the county of its domicile. Since the filing of this suit the legislature has enacted a statute reannouncing the common law rule, showing it to be the legislative purpose for municipalities to be sued in the counties in which they are located.
The reasons above indicated are sufficient to warrant the view that it was the legislative purpose to maintain the common law upon the subject. The authorities cited in Corpus Juris and Ruling Case Law, in accordance with the views herein expressed, are sound, and we follow them. For this reason the judgment of the lower court must be reversed, and the cause dismissed without prejudice to the bringing of a suit in Hinds county, in the district in which the city of Jackson is located.
Reversed and dismissed.
Dissenting Opinion
I cannot bring myself to the view adopted by the majority of this Court in their construction of our venue statute, Section 495, Code 1930, so dissent from that holding that the City of Jackson was not suable in Walthall *262 County. The Mississippi Power Light Company was a defendant found in that county. The City of Jackson was a defendant named in that suit.
Section 2391, Code 1930, provides that each city, town or village, which is incorporated, shall be a municipal corporation, with power: "First. — To sue and be sued."
This same language will be found in the charters of most, if not all, private corporations. The quoted power is unlimited and unrestricted. If the municipality sues another, it becomes a plaintiff or complainant in the circuit, chancery or other court. If it is sued in any court, it is a defendant; if sued with another defendant, then the municipality is a joint defendant.
Section 495 makes no distinction between defendants, whether a defendant be a municipal or private corporation. If a municipal corporation can be lifted from the meaning of the word "defendant," by the same stroke of the pen, a private corporation could be lifted from the operation of the statute. The Legislature, in using the word "defendant", could have used no broader word to be found in the dictionary. Private corporations and municipal corporations exist under the same legislative fiat in that they are granted the power to sue and be sued, so, no distinction by refined construction can be made when either class is sued. In any event, either or both of them are defendants. To me it is obvious that the statute includes and applies to municipalities if the question were a new one in this State; but it is not new, it has already been given this construction by this Court more than once.
In the case of Oliver v. Loye,
Opposing counsel replied that our venue statute abolished all common law distinctions, except when otherwise *263 enacted; that the statute by its own terms enumerates all local actions excepted. Judge Campbell adopted the latter view, holding that the only local actions under our statute were ejectment, and actions of trespass for injuries to land, and then said: "They must be brought in the county in which the land lies. All otheractions must be brought with reference to the person of thedefendant. The common law distinction of local and transitory actions does not exist here. The statute alone governs and we cannot disregard it, . . .". (Italics ours.)
The venue statutes then construed were Sections 522, 977, Rev. Code 1871; Section 1498, Rev. Code 1880; and have not been changed except to create other exceptions as to local actions.
Again, in Archibald v. Mississippi Tenn. R.R. Co.,
These decisions are binding upon this Court. Since their rendition, many Legislatures have convened without changing it so as to except municipal corporations. The statute, so far as it applies here, has been reenacted without change in the Codes of 1906 and 1930, — the Legislature thereby recognizing and adopting the Court's construction.
By Section 309, Code 1906; and Section 270 of Code 1930, counties were lifted from the operation of the general statute by providing that the venue should be the county site of the county sued. In Simpson v. Neshoba County,
Still further, a general and well recognized rule for construction of statutes is that where a statute uses broad language, and thereafter recites specific exceptions, then, it is presumed that the Legislature intended to limit the exceptions to those specifically set forth therein.
At the common law as to venue, it was the rule that all actions against public municipal corporations were local, even though the form of action was transitory, on the ground of inconvenience, and some courts of this country have so held on the idea that the common law applied to a statute employing the same language as ours, — that a county or a public municipal corporation must be sued in all actions in the court of the domicile of such municipal corporations.
However, the weight of authority is in line with our Court; as announced in Oliver v. Loye, supra, that the statute on venue is the test of territorial jurisdiction as to municipal corporations. Raymond v. Lowell (Mass.), 6 Cush., 524, 53 Am. Dec. 57; National Shawmut Bank v. Waterville,
The language of the venue statute is so plain and unambiguous as not to call for construction. The Legislature wrote into the statute all of the exceptions as to local actions it intended.
It seems inescapable that this Court unequivocally decided that there was no common law as to venue in this State, and with that construction upon it, the Legislature reenacted it; thereby, the statute, as construed by this Court, became the plainly expressed will and intention of the Legislature. The Legislature endorsed, approved and adopted this construction. See Hamner et al. v. Yazoo Delta Lumber Co.,
I frankly concede that inconvenience will arise if and when a municipal corporation is sued out of its county, but, it is my view that this matter of inconvenience is addressed to the Legislature, and is not to be entertained by the judicial branch of this government.
At the time this action was brought, this action was properly brought in Walthall County in so far as venue is concerned.
In reporting this case, the Court Reporter will set out Section 495, Code of 1930.1 McGehee, J., dissents.