Mayor of Water Valley v. State ex rel. Attorney-General

60 So. 576 | Miss. | 1912

Cook, J.,

delivered the opinion of the court.

In this case the board of mayor and aldermen of Water Valley, a city of less than fifteen thousand inhabitants, acting upon the advice of counsel, ordered an election some time in August, 1912,' to fill a vacancy in the board caused by the death of one of the aldermen. The attorney-general of the state filed a petition in the circuit court praying for a writ of prohibition against the parties appointed by the board to hold the election. The election was ordered to be held September 12th, and the circuit judge set the hearing of the petition in vacation at a time after the time fixed for the election, and in the meantime granted a restraining order, which was also to be heard after the time fixed for the election. At the same time the attorney-general, upon the relation of I. T. Blount, a citizen of the city, filed a petition for mandamus commanding the board of mayor and aldermen to proceed to appoint a successor to the deceased alderman. Both of these petitions were heard together, and the final judgment of the court directed the board .to appoint a successor to the deceased alderman.

In obedience to this order of the court, the appointment was made, and a plea in bar of this appeal is filed here upon the theory that, the judgment of the court, having been executed, there is nothing upon which' an. appeal can be based. We do not think this plea is maintainable: If the contention of the board be correct, the order should not have been made; therefore, the compliance with the order would have been a nullity.

The exact question presented here is a novel one and emphasizes the necessity for more care in legislation. We' are called upon to construe chapter 204 of the Laws-of 1910, entitled, “An act to amend section 3435- of the-Code of 1906, with reference to extending the term of office of all municipal officers elected by the people, so-that their term of office shall be for four years instead of two years.” If by the terms of this act the term of office of all municipal officers was extended to four years,, the circuit court erred in its judgment. If on the contrary, the officers of cities of less than fifteen thousand inhabitants are not affected by the act, the holding of the circuit court must be approved.

. It was the duty of the board to make an appointment to fill the vacancy if section 3436 of the Code of 1906' was still in force, and the election ordered was not only unauthorized, but it shifted, the responsibility imposed by law upon the board to the people, whose will was to-be ascertained by a vote at an unauthorized election. The rules for the construction of statutes are many and simple in theory; the only difficulty is in their application. If we can ascertain from the law the intention of the-legislature, it is, of course,- the duty of the court to-interpret the statute to mean just what the legislature intended it to mean, without reference to the consequences..

It is dear from the title that the statute, as originally written, was intended to extend the terms of all municipal officers from two to four years, and this idea obtains throug’hout the act, until we come to the expressed limitations of the application of the act. The limitation is in conflict with the title, and also with the general preceding clauses. If the first paragraph expresses the will of the legislature, the proviso defeats the purpose there expressed. What happened to the act? If we may be permitted to conjecture, we think we are warranted in saying that the provisos were tacked onto the original act while it was on its way through the legislative mill, and as often happens, the balance of the act was not amended to harmonize with the intention of the lawmakers, as finally expressed. It will be observed that, if this act is toj; be construed as an effort-to amend section 3435 according to the constitutional method, that part of the act preceding the provisos would by implication repeal section 3435:

It is certain that the legislature did not intend to extend the terms of office in municipalities of less than fifteen thousand inhabitants, and we cannot attribute to it the intention of repealing the only statute fixing the time for holding elections in towns and villages, unless no reasonable construction of the act can be found to avoid this conclusion. What, then, was the legislative intent? The bill as originally framed, following section 61 of the Constitution, was intended to so amend section 3435 of the Code as to extend the terms of all municipal elective officers to four years; but, this scheme not meeting the views of a majority, it was so amended as to leave the law as it existed, so far as cities of less than fifteen thousand inhabitants were concerned, and to extend the terms in all cities of more than fifteen thousand inhabitants, and other municipalities operating under special charters could so extend the terms of office by the consent of the people expressed in an election. Taking the act as a whole, to give effect to the intention of the legislature, we are of opinion that the terms of office of the elective officers of the city of Water Valley expired in January, 1913, and that it was the duty of the board of mayor and aldermen to have appointed a successor to the deceased alderman. This being true, the election was unauthorized, and while no harm may have been done by the election, when the state complains, it is the duty of the courts to intervene to force public officers to perform the duties required of them by the laws of the state.

We do not wish to be understood as approving the practice adopted in granting the temporary restraining order, which had the effect of deciding the issues involved before the parties in interest could have their day in court. The writs of prohibition and mandamus are to be tried in the manner prescribed by statute, and temporary restraining orders should be granted only to prevent irreparable injury.

Affirmed.