Noxubee County Hardware Co. v. City of Macon

43 So. 304 | Miss. | 1907

Whitfield, C. J.,

delivered the opinion of the court.

The second ground on which the bill is based, to-wit, that the appellant was affected as a taxpayer, because the charges made by Holberg were grossly exorbitant, etc., utterly fails under the testimony.

The appellee insists, as to the first ground, which is, that Holberg, being a member of the board of aldermen of the town of Macon, is prohibited by sec. 109 of the constitution from making these- sales, that Horton, who is a member of the appellant company, is 'also a member of the board of aldermen of the town of Macon, and, to put it shortly, that this is a mere contest between these two merchants, both members of the board of aldermen of the town of Macon, to secure the trade of the town in the hardware business, and that, as the testimony shows that Horton’s concern also sold hardware, whilst Horton was a member of the board of aldermen, to the town, the appellant and the appellee are in pari delicto, and consequently the principle applies that the' law will leave them where it finds them, and refuse to entertain a bill filed by the appellant. There are some things which are so well settled that it is surprising that we should have to restate them. It is utterly immaterial, where the great paramount public policy of the state is involved in the effective administration of the constitutional provision (sec. 109), whether Holberg sold goods cheaper than Horton, or whether either or both were attempting to get a monopoly of the town’s trade, or whether either or both acted in good faith in whatever sales they did make, or whether either or both sold the goods at a reasonable and fair price whilst they were aider-men of the said town, or whether both were guilty of fraud and in parti delicto. As, for example, in this very case, we are not to be understood as holding that either Holberg or Horton is guilty of any other wrong than the violation of the constitution. Section 109. These questions are all utterly immaterial and wholly out of place, when the effort is here' to have enforced a wise and salutary policy of protection for all the people by the constitution in see. 109. Private interests sink utterly out of sight. , The public interest is supreme in controversies like this. These principles are so well settled that a short restatement of them is surely all that can be called for.

The state cares nothing about Holberg or Horton, or their concerns. The state cares everything that the salutary principle of public policy embodied in this sec. 109 shall be faithfully and fearlessly carried out, so as to prevent graft of every possible sort, and secure tbe honest and clean administration of municipal affairs. All this was clearly announced in Houston v. Building Association, 80 Miss., 40, 31 South., 540, 92 Am. St. Rep., 565, and in O’Connor v. Ward, 60 Miss., 1037, where we said: “The rule appealed to by the defendant, that when parties are in pari delicto the court will lend its aid to neither, is subject to the exception that, where public interest requires its intervention, relief will be granted, though the result may be that the property will be restored to, or a benefit derived by, a plaintiff who is in equal guilt with the defendant. In such cases the guilt of the respective parties is not considered by the court, which looks only to the higher right of the public; the guilty party to whom relief is granted being only the instrument by which the public is served.” Many other authorities announcing the same well-settled doctrine are collated in the brief of the learned counsel for appellant.

The town of Macon will come by its proper rights when both these gentlemen resign as aldermen and resume their business as merchants, which, in view of the provision of sec. 109 of the constitution, we have no doubt they will promptly do. It may be that they have acted in actual ignorance of the true construction of this section. They will be without that excuse in the future. In this day of almost universal trouble in municipalities all over these United States in respect to an absolutely fair, clean, and impartial administration of municipal affairs, it is of the very last importance that a constitutional provision like the one here involved shall receive at the hands of this court a construction that will make impossible any maladministration along this line in city affairs. If Holberg and Horton desire to sell their wares to the town of Macon, the way is plain. Let them both resign and resume their business, and then their mutually patriotic desire that their home town shall be protected from monopolistic extortion will be gratified, and the good town of Macon get, what it ought to have, the fair sales and just prices which can only be obtained where open competition exists. The contention that the ratification of a contract is not within sec. 109 of the constitution is far too technical. It would destroy the purpose of the section.

It is only necessary to say, in regard to § 3446 of the Code of 1906, that no retrospective effect can be given to that section, and for that reason it has no application in this case. It may be very gravely questioned whether the distinction drawn in that section between cities or towns of over four thousand inhabitants is constitutional, in any event; but we decide nothing as to that in this case, since it is not necessary to decision.

The decree is reversed, injunction reinstated, and the cause remanded, to he proceeded with in accordance with this opinion.