Polk v. City of Hattiesburg

69 So. 1005 | Miss. | 1915

Stevens, J.,

delivered the opinion of the court.

Counsel for appellee suggest error in the majority opinion heretofore rendered, and earnestly contend: First, that “the court had no jurisdiction of this case, because an appeal was not taken from the decision of the mayor and commissioners,” and, second, “the circuit court cannot sign the bill of exceptions for the may- or.” The case is within narrow margins, and the holding of this court as expressed in the majority opinion may have been to some extent misunderstood by counsel. It is argued, that sections 95 and 83 of the Code, construed together, required that appellant should perfect his appeal from the decision of tlxe city commissioners within five days, whereas no appeal was taken within said time.

There is no time prescribed by statute within which an appeal under section 80 of the Code of 1906 must be prosecuted. It is contemplated by* section 80 that the party aggiieved should appeal “to the next term of the circuit court” by embodying the facts and decisions in the bill of exceptions signed by the person acting as president of the board or of the municipal authorities, and that the taking of a bill of exceptions in accordance with the statute operates at once as an appeal. It thereupon becomes the duty of the clerk to transmit the bill of exceptions to the circuit court on or before the first day of the next succeeding term, or at once' if the court-he in session. The perfecting of the bill of exceptions-is the perfecting of an appeal; and there is no time prescribed for giving a bond or presenting a written petition or demand for an appeal. Sections 95 and 83,' in our opinion, have no application to an appeal provided for by section 80 of the Code.

It was not our intention to hold that the circuit court can ascertain for itself whether the proposed bill states the facts and decisions of the board of commissioners, or to dispense with the requirement of the statute that the bill shall he approved by the president of the board of municipal authorities. We simply held and here reiterate that the demurrer in this case admitted that the-bill of exceptions in question had, in fact, been tendered to the mayor, and that the mayor had, in fact, approved the bill as one correctly embodying the facts and decisions of the city commissioners, but that the mayor, upon-legal advice, had declined to affix his signature, unless compelled to do so by mandamus. The mental assent of the mayor fixed conclusively the correctness of the bill; there was then nothing further to be done by appeh lant. He had, so far as he was concerned, perfected his appeal. It was then the absolute duty of the mayor to affix his signature.

Section 80 provides a summary proceeding for appeals of this character, even investing the circuit court then in session with jurisdiction of the whole record. To require appellant, therefore, under the facts of this record, to prosecute a mandamus suit, would be contrary to the purpose and intent of section 80, and would impose upon appellant a great hardship. It was never the purpose of the legislature to require litigants to travel a long and circuitous road to justice. If the bill in question was incorrect, and was not, in fact, approved by the may- or, a different question would present itself. This case is differentiated from the case of Roach v. Tallahatchie County, 78 Miss. 303, 29 So. 93, in two essentials: In the Roach Case the president refused to sign the hill, and it was not shown that he, in fact, ever approved the bill by mental assent or otherwise; and again the bill in that «ase was signed by two attorneys under a procedure that had no application to appeals of this character. In short, the appellant in the Roach Case did not pursue the eourse prescribed by section 80, but was led astray by-section 737, Code of 1892. In the instant case appellee, through its mayor, admitted that the bill presented was. eorrect, and mentally approved the same; and the demurrer in the circuit court reiterates this admission.. If, then, the bill was correct, and was, in fact, approved,, then appellee should not be heard to question the appeal, in the face of such admission, and thereby take advantage of the wrong of its chief officer charged with the duty of seeing that the bill of exceptions was, in fact, approved and signed, and the record promptly removed to the appellate court.

The suggestion of error is therefore overruled.

Overruled'.

■■ Smith, C. J., adheres to the views expressed in hi*. former opinion.