Griffith v. Mayor of Vicksburg

58 So. 781 | Miss. | 1912

Smith, J.,

delivered the opinion of the court.

The mayor and board of aldermen of the city of Vicksburg, on the 1st day of January, 1912, by an ordinance authorized the issuance of bonds of the city to the amount of forty thousand dollars for the purpose of constructing a waterworks plant, to be operated by the city after the expiration of the franchise of the company now furnishing the city and its citizens with water, provided that the issuance thereof should be assented to by two-thirds of the qualified voters of the city, voting in an election ordered to be held for that purpose. This election was necessary, for the reason that these bonds, added to the amount of bonds theretofore issued by the city, would exceed seven per cent, of the value of the taxable property thereof. This election having been duly held, after notice thereof had been given as required by law, and more than two-thirds of the voters participating therein having assented to the issuance , of the bonds, this injunction was sued out to restrain the issuance thereof, and from a decree dissolving the injunction and dismissing appellant’s bill, this appeal is taken.

One of appellant’s contentions is that, since by Sec. 4011 of the Code of 1906 the 1st day of January is declared to be a legal holiday, the ordinance providing for the issuance of the bonds is void. The mere fact that the legislature has declared a day other than Sunday to be a legal holiday does not make such day dies non. All acts done on such a day are lawful and valid, except such as are prohibited by the statute setting apart the day as a holiday. 24 Cyc. 440, et seq.; 27 Am. & Eng. Ency. Law (2 Ed.) 415, and authorities there cited. This contention of appellant is therefore without merit.

Appellee’s charter contains a provision, similar to Sec. 3419 of the Code of 1906, that “before providing for the issuance of any bonds, the board shall publish notice of the proposal to issue the same in a newspaper published in the municipality, or having a general circulation therein if none be there published, for three weeks next preceding; and, if within that time, twenty per centum of the adult taxpayers of the municipality shall petition against the issuance of the bonds, then the bonds, shall not be issued, unless authorized by a majority of' the electors voting in an election to be ordered for that purpose.” This notice was not given; but notice of the election ordered to be held in order that the qualified electors might determine whether or not the bonds should be issued was given. Another of appellant’s contentions is that the failure to give this notice is fatal to the validity of the bonds, in support of which we are referred to the case of Clarksdale v. Broaddus, 77 Miss. 666, 28 South. 954. We are relieved from the necessity of deciding this point, for the reason that this defect, if defect it is, has been cured by a statute passed by the last session of the legislature, entitled “An act to validate all municipal bonds heretofore authorized by a legal majority of the qualified electors thereof voting at an election held for that purpose to be issued, when the municipal authorities have failed to take any of the preliminary legal steps for the issuance of said bonds, and for other purposes,” approved March 4, 1912. It is beyond question that the legislature has the power to authorize municipalities to issue bonds without giving no-lice, such as is required by the provision of appellee’s charter now under consideration, and consequently it was within its power to ratify by a subsequent statute the bonds issued without the notice required by the charter being given; for, as a general rule, the legislature may, within constitutional limits, subsequently ratify any unauthorized act which it has the power to authorize in advance. 28 Cyc. 1606; 8 Cyc. 1023; 20 Am. & Eng. Ency. (2 Ed.) 1226; 6 Am. & Eng. Ency. (2 Ed.) 940; Sykes v. Mayor, etc., of Columbus, 55 Miss. 115; Bolles v. Brimfield, 120 U. S. 759, 7 Sup. Ct. 736, 30 L. Ed. 786; Street v. U. S., 133 U. S. 299, 10 Sup. Ct. 309, 33 L. Ed. 631.

Another of appellant’s objections is that a number of persons voted in the election who had registered within less than four months prior thereto. Assuming, but not deciding, that these persons were not entitled to participate in the election, it is not void for the reason that their participation therein did not affect the result thereof. The total number of votes cast in the election was twelve hundred and fifty-eight, of which ten hundred and ninety-one were in favor of the bond issue and one hundred and sixty-seven against it. The number of voters alleged to be disqualified was two hundred and eleven. If we assume that all of these voted in favor of the bond issue, and that, consequently, had they not been allowed to vote, the number of votes in favor thereof would have been eight hundred and eighty instead of ten hundred .and ninety-one, still the majority in favor of the bond issue would have been more than the necessary two-thirds.

Another of appellant’s contentions is that, since appellee cannot operate a waterworks plant until the expiration in 1916 of the franchise of the present waterworks company, the issuance of bonds for that purpose at this time is unnecessary, and constitutes an abuse of appellee’s discretion in the matter.. Conceding, but not deciding, that the abuse of appellee’s discretion in this matter can be prevented by an appeal to the courts, certainly it must clearly appear that this discretion is, in fact, being abused before the courts would be warranted in interfering therewith. There is nothing in this record from which it can be said that it is not necessary to begin preparing for the construction of a waterworks plant four years before the plant is to be actually operated; consequently it cannot be said that appellee’s discretion in this matter is being abused.

It is immaterial that the ordinance under which these bonds are to be issued provides that they are “to be issued in accordance with the requirements and provisions of the charter of the city of Vicksburg and the amendments thereto,” etc., instead of in accordance with the requirements of Ch. 142 of the Laws of 1910, for the reason that the requirements of this statute and of appellee’s charter in this particular are identical, and in complying with the requirements of its charter appellee necessarily complied with the requirements of . the statute.

There is no merit in any of appellant’s contentions, and, consequently, the decree of the court below is affirmed. Affirmed.