86 So. 580 | Miss. | 1920
Lead Opinion
delivered the opinion of the court.
Tliis is a quo warranto suit by tbe Governor, for the state of Mississippi/to oust appellants from tbe offices of mayor and commissioners of tbe municipality of Oxford. From a judgment of tbe circuit judge sustaining tbe Governor, this appeal is prosecuted.
It appears that tbe municipality of Oxford was operating under tbe commission form of government, with tbe appellants as its elected mayor and commissioners. On August 9, 1920, tbe appellee, Gov. Lee M. Russell, issued a proclamation demoting the city of Oxford to. a town, and appointed certain persons, other than tbe appellants, as officers to fill tbe offices of mayor and councilmen under tbe changed form of government, whereupon tbe said mayor and commissioners, appellant here, refused to surrender their offices to tbe appointees of tbe Governor. Thereupon tbe Governor instituted quo warranto proceedings, seeking to oust tbe appellants from office. Tbe petition of tbe Governor alleges that the district attorney and the attorney-general of tbe state, after request, refused to file quo warranto proceedings against the appellants.
Tbe appellants present several grounds for reversal, but it is unnecessary for us to notice but one, which will end tbe case, and that is, that tbe Governor is without poAver to institute tbe suit. Tbe Constitution, Avhich enumerates tbe powers of tbe Governor, does not authorize him to bring this character of proceeding, and be is Avithout poAver to do so unless constitutionally authorized by tbe legislature. Henry Warden, et al. v. State of Mississippi, 87 Miss. 1, 39 So. 856. After tbe decision was rendered in tbe above case tbe legislature enacted section 2372, Code of 1906 (section 4764, Hemingway’s Code), which provides as follows:
“Powers Generally. — In addition to tbe powers conferred and duties imposed on tbe Governor by tbe Constitution and by tbe laws as elsewhere provided, he shall have tbe powers and perform tbe duties following, viz.: . . .
*754 “ (n) He may bring- any proper suit affecting the general public interests, in his own name for the state of Mississippi, after first requesting- the proper officer so to do, and his refusal or neglect to do the same.”
Conceding for the present, 'though not deciding, that the statute granting the additional power to the Governor is constitutional, we are to determine, from its language and history, the meaning and' purpose of the legislature.
It will be noted that it provides “he may bring any proper suit affecting the general public interests.” The question arises: ’ Is this suit one which affects the general public interests? We thijik.not. It seems clear to us that the makers of the statute had in mind only such suits as affected the general public interests and welfare of the whole state, as distinguished from .suits affecting local or special public interests. The result of the proceeding here cannot be of statewide interest and effect, unless possibly, remotely so. No benefit or detriment to the public interests generally or wholly of the state are involved. But the outcome affects only the local public interests in and adjacent to the municipality of Oxford; and this is true even though such local public interests affected are common or general within the particular locality. State v. Sayre, 142 Ala. 641, 39 So. 249, 4 Ann. Cas. 656, is analogous in principle. Therefore the statute does not authorize the Governor to institute the proceedings, because the suit does not affect the general public interests of the state. Such suits must be brought by the officers heretofore empowered to do so.
Certainly the statute does not mean that the Governor may bring- any and all of the various kinds of suits which the attorney-gen eral and district attorney are authorized to bring. It is plain that the authority given the Governor under the statute is to go no farther than to empower him, after request, to bring suits of state-wide or general public interest, and not those local or particular in their character as is the case at bar.
Reversed a/nd dismissed.
Dissenting Opinion
(dissenting).
I am compelled to disagree with the majority opinion in this case. I think “the general public interests” of the state are here involved. The majority opinion puts entirely too narrow a construction upon the scope of this proceeding. True, it is a quo warranto proceeding, presenting the relative rights of two alleged sets of officers of the municipality of Oxford. Those now holding these offices assert rights under chapter 120, Laws of 1912. This chapter relates to the right of cities alone to adopt a commission form of government. When Oxford was a city it elected to come under this chapter. The appellants in this case hold them offices by virtue alone of this act.
Proceeding under the authority conferred upon him by section .3308, Code of 1906 (section 5804, Hemingway’s Code), the Governor issued a proclamation, reclassifying the city of Oxford and demoting it from a city to a town. Under the emergency appointment clause of the Constitution he then appointed a mayor and board of aldermen or councilmen for the town. The question involved here is not a contest as to who really are jure officers of this municipality, as would be the case in a contested election where there was no question as to Avhether or not a municipality was a city, town, or village, but merely there a question as to who are its legally qualified officers. But in this case the further and important questions are involved as to Avhether or not Oxford is a city or a town, whether or not it is operating under chapter 120., LaAvs of 1912, as a city, whether or not under this chapter, it exercises the poAvers thereby conferred, and has as its mayor and board of selectmen the appellants in this case, or, on the other hand, whether or not its rights and .powers as a city operating under this chapter of the Laws of 1912 have
Municipal corporations have a dual character, the one governmental, legislative, or public; the other, proprietary or private. In their public capacity they are merely a part of the machinery of state government, and the authority of the state is, of course, supreme. Bailey v. New York, 3 Hill (N. Y.) 531, 38 Am. Dec. 669.
A municipal corporation, in exercising its governmental or public duties, is a representative of the state, and is a portion of the state’s governmental power. It is a creature of the state, made for the specific purpose of exercising within a limited sphere the powers of the state. Philadelphia v. Fox, 64 Pa. 180; United States v. Railway Co., 17 Wall. 329, 21 L. Ed. 597; Daniel v. Memphis, 11 Humph. (Tenn.) 582.
“Municipal corporations are mere governing bodies having charge of and jurisdiction over particular political subdivisions of the state.” Words and Phrases, Second Series, vol. 3, p. 472, citing Uvalde Asphalt Paving Co. v. City of New York, 149 App. Div. 491, 134 N. Y. Supp. 50.
Municipal corporations are the auxiliaries, or the convenient instrumentalities, of the general government of the state for the purpose of municipal rule. Words and Phrases, Second Series, vol 3, p. 473.
“Municipal corporations are but public agencies, with limited rights and powers.” Same authority, page 473. See, also, authorities on page 474.
“A municipal corporation is a subordinate subdivision of the state government. It derives its existence, powers,
“Municipal corporations constitute a part of the civil government of the state, and their streets are highways.” Telephone Co. v. Mobile (C. C.) 162 Fed. 523.
“A municipal corporation is a subordinate branch of the domestic government of the state.” State v. Butler, 178 Mo. 272, 77 S. W. 560; Nashville v. Ray, 19 Wall. 468, 22 L. Ed. 164.
Dr. Dillon in his work on Municipal Corporation, vol. 1 (5th Ed.), section 31, p. 58, says in part:
“Municipal corporations as they exist in this country are bodies politic and corporate of the general character above described, established by law partly as'an agency of the state to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town, or district which is incorporated.”
By statute the mayor within the municipality is ex officio a justice of the peace, and the marshal, a constable, the police power® of the state as well as of the municipality; and the preservation of peace and good order both for the state and a municipality is exercised by these officers. These are matters of general interest to the entire state. But the question itself as to whether or not a municipality is a city or a town, and whether or not it is operating under the municipal chapter of the Code, is a matter of general interest to the state. The question of whether or not the appellants in this case are the de jure officers of the city of Oxford, or whether or not they are mere usurpers, holding no office and exercising no powers, is a matter of general concern to the state at large. The state as the creator, is interested in knowing whether its agent* the municipality, is a town or village, and whether or not it is exercising powers under chapter 120., Laws of 1912, or powers under the municipal chapter of the Code. A municipality, of course, only acts through its officers and agents. Its public and proprietary or private
It is unnecessary for me to discuss any other question presented in' this appeal, because the majority has seen fit to rest its. opinion upon this one question. As above stated, I think this is entirely too narrow a vieiv to take of this controversy and from the conclusion of the majority I am compelled to dissent.