Rich v. McLaurin

1. Municipalities.. Police -justice. Code 1892, 2940, 3001. Tbe office of police justice is created by Code 1892; § 3001, providing for the election of such an officer only in cities having four thousand or more inhabitants, and his election is not governed by Code 1892, § 2940, empowering the authorities of all municipalities, within their discretion, to provide for the election of officers other than those required by statute. 2. Same. Election. A police justice in cities having four thousand or more inhabitants may be elected by the mayor and board of aldermen in such proper manner as the board shall determine. 3. Same. Resolution. A resolution, passed at the proper time, declaring the city to have more than four thousand inhabitants and the sense of the board that the city should have a police, justice, fixing the salary of the office and bond to be given by the officer, followed by the election to the office of a designated person is a proper. mode of procedure and the person so elected, in such a city, is properly elected to the office. 4. Same. Right, to vote. Mayor. Tie vote. The mayor is not authorized to vote in the election of a police justice, in the absence of a tie vote by the aldermen. 5i Same. Veto power. Code 1893, g 3979. While the mayor may, under Code 1892, § 2979, empowering him so to do, veto any measure, yet he cannot veto the election of a police justice, an election not being a measure within the meaning of the statute. 6. Same. Ordinances. Code 1893, $ 3009. Code 1892, § 3009, providing for the record of ordinances in an ordinance book, relates to measures which are “in their nature laws of the municipality,” and not to “mere orders or decrees temporary in their nature.” 7. Same. Title to office disputed. Commission. Oath of office. A person elected to the office of police justice is allowed a reasonable time to have a judicial ascertainment of his title to the office, without having a commission, taking th'e .oath of office, or giving bond. 8. Same. Duties. Justice of the peace. The fact that the duties of a police justice happen to be, in part, those which a justice of the peace might exercise under Code 1893, $ 3001, relating to jurisdiction, does not affect his title to the office.

From tbe corcuit court of, second district, Perry county. Hon. John B. Enochs, - Judge. McLaurin, district attorney, appellee, suing on tbe relation of one William H. Cook, was plaintiff in tbe court below; Bich, appellant, was defendant there. Tbe action was a quo warranto to recover possession of tbe office of police justice of tbe city of Hattiesburg. Bich was mayor of tbe city in 1901 and 1902, and acted as police justice by virtue of being mayor. He was re-elected mayor for tbe years 1903 and 1904. Hattiesburg has more than 4,000 inhabitants. On tbe first Tuesday in January, 1903, tbe board of aldermen elected Cook police justice by resolution. Tbe resolution electing Cook, provided that be give bond in tbe sum of $1,000. After this resolution was passed, Cook executed a bond in tbe penalty of $1,000, payable to tbe city of Hattiesburg, and not to tbe state. This bond was approved by tbe board of aldermen and tbe clerk of tbe chancery court, but not by tbe president of tbe board of supervisors. Cook then demanded tbe office of police justice. Rich, mayor, refused to allow Cook to take possession, but continued to exercise tbe functions thereof himself. Tbe court below having rendered judgment in plaintiff’s favor,' tbe defendant appealed to tbe supreme court. 1. Was appellee duly and lawfully elected to tbe office of police justice of said city, and did tbe board of aldermen have tbe power and authority to elect him, without a precedent ordinance creating said office ? and 2. Did appellee, even if be was lawfully and duly elected to said office, qualify by executing bond in tbe penalty, and in the manner required by law, so as to entitle him to obtain the same from appellant, who was lawfully elected to tbe office of mayor, and duly installéd therein ? It will be seen by Code 1892, § 3001, that a police justice is a justice of tbe peace within tbe corporate limits, and as such has, and exercises, all tbe powers and duties of a justice of tbe peace that other justices perform for their respective districts, and be is a justice of tbe peace in and for tbe whole county, but bis jurisdiction is limited to tbe corporate limits of tbe town. Tbe power is conferred on tbe mayor and board of aldermen to elect, at tbe time provided for tbe election of other officers by them, a police justice, etc. By § 2992, Code 1892, it is provided that “At tbe first regular meeting of the mayor and board of aldermen succeeding each regular municipal election, they shall elect a clerk, and in cities, a tax collector. Such officers shall execute bond to tbe municipality in such penalty, with such sureties, and conditioned as may be prescribed by ordinance, and shall bold their office for two years, and until their successors shall be elected and qualified.” Tbe only time at wbicb a police justice can be elected is at the first regular meeting of tbe mayor and board of aldermen after tbe general election in December, wbicb meeting, in this instance, was on Tuesday, January 6, 1903. At tbe meeting of January 6, 1903, tbe board of aldermen undertook to adopt and put in force and effect at once, a resolution declaring that it was tbe desire of tbe mayor and 'board of aldermen to elect a police justice for said city, and fixing bis salary, and placing bis bond, in penalty at $1,000, wbicb said bond was payable by its terms to tbe city of Hattiesburg. Under this resolution and election thereunder, appellee claims tbe office in controversy. After tbe election of appellee under said resolution, and after tbe execution of a bond in tbe penalty of $1,000, payable to tbe municipality, and not to tbe state, wbicb bond was approved by tbe board of aldermen and clerk of tbe chancery court, but not by tbe president of tbe board of supervisors. Tbe law, Code, § 3057, provides that tbe bonds of county and district offices, wbicb includes justices of tbe peace, shall be in tbe penalty of $2,000 unless tbe board of supervisors fixes it at a less penalty, and that such bonds shall be approved by tbe chancery clerk and president of tbe board of supervisors, and shall be made payable to tbe state. This is mandatory and without complying with this plain provision of tbe statute, ap-pellee has not duly qualified .as required by law, to fill tbe office of a justice of tbe peace and is not entitled to recover of appellant tbe office in question. This is a contest between Cook, relator and appellee here, and Rich, defendant below, and appellant here. Tbe relator. Cook brings this suit for tbe possession of tbe officé and therefore must prove bis right to tbe same. It is not a proceeding to. oust Rich by tbe public authorities from a position or office he is bolding unlawfully, but it is purely a contest between tbe two individuals, and tbe burden is on tbe relator to show not only that he has been duly and legally elected to the office in question, and has duly executed the bond required by law before entering upon the duties thereon, but he must show in addition thereto that he has all the qualifications required by law for the holding of an office in the city' of Hattiesburg. The general issue put everything in issue, and having failed to establish by the proof that he had the qualifications of an elector, by proving that he gave the bond required by law, the judgment should be reversed. "What formalities are required in the election of a police justice in cities 'of more than 4,000 inhabitants ? The governing body in a municipality is the board of aider-men. The official title of the board of aldermen is the mayor and board of aldermen,” but the mayor is not a member of the body. He is connected with it as the presiding officer. He may cast the deciding vote in case of a tie. He may recommend measures and veto them. But he is not a constituent part of the governing body. Code 1892, §§ 2979, 2982. Bousquet v. 8iaie, 78 Miss., 484. This governing body have large governmental powers. Code, §§ 2925 to 2976 authorizes them to do many important acts by ordinance. They* may do other important acts without the formality of ordinance. They may levy local taxes for special improvements under ,§§ 3011, 3012, by resolution published as an ordinance is required to be published. They may issue bonds for certain purposes under § 3014, ei seq., may elect certain officers under § 2992, and may elect police justices under § 3001; and in neither of these cases " is a mode of procedure specified. -j The rule of construction is that when the board of aldermen are authorized to do a thing, and;the method is not prescribed, they are not restricted as to method, and may do it in any way. The bare election is sufficient, without ordinance, resolution, or even motion. Dillon’s Municipal Corporations (4th ed.), sec. 212. That it was not the intention of the legislature to require officers to be elected by ordinance is apparent from an inspection of § 3009, which provides that every ordinance shall be transcribed and preserved in an ordinance book, and that “the ordinance to be so recorded are those which are in their nature laws of the municipalities, and not mere orders or decrees temporary in their nature.” Appellee endeavors to escape the logic of this position by setting up the claim that the board cannot elect a police justice, without first creating the office of police justice. No section in the municipal chapter authorizes the creation of an office unless it be § 2940, and this is not applicable to the office of police justice, for it is limited to “officers other than those required in this chapter.” The office of police justice is one of those “required in this chapter,” for under § 3001, in cities having four thousand or more inhabitants, the mayor and board of aldermen (the governing body may elect — ■ a police justice — and in other municipalities — the mayor, or mayor pro tempore, shall be the police justice.” The offices of mayor and of police justice are separate and distinct offices in all municipalites, though held by the same person in some municipalities. The offices are as separate and distinct as those of sheriff and tax collector, or those of chancery clerk and county auditor. The board could not create the office of police justice, for it has already been created by the legislature, and exists in every municipality in the state operating under the code chapter. But even if these views could be- held to be unsound, and the court should hold that an ordinance is required, then the ordinance passed by the board of aldermen on January 9th exactly fills this requirement. It “creates” the office of police justice, and provides for tbe election of an officer to fill it; and follows up the ordinance with the re-election of,the relator. The law does not authorize mayors to veto elections. It only authorizes them to veto measures. An election is not a measure.