Ott v. State ex rel. Lowery

Whitfield, C. J., delivered the opinion of the court. In the case of Bousquet v. State, ex rel. Gleason, decided last Monday (ante, p. 478), we held that the mayor of a municipality which had accepted the provisions as to municipalities provided by the code of 1892, in the chapter on that subject, could not vote in an election for the officers provided for in §§ 3001 and 2992, except when there was a tie between the aldermen; that the mayor was not a member of the board of aldermen, and could not vote as an alderman to make a tie, and then as mayor to break it, thus voting twice. In this case, adhering to that ruling, we are required to decide the further question whether the old board or the new board should elect the tax collector, since § 2992 provides that the tax collector shall hold his office for two years, and until his successor is qualified, and the successful litigant in this case would not,, without such decision, know from what date his term of office began. We are satisfied, after a careful and critical examination of the chapter on municipalities in the code of 1892, that the old board had no power to elect. Such power can only be derived from the most technical adherence to the very letter of §§ 2989 and 2992, looked at isolatedly, wholly disconnected from all of the other sections of that chapter relating to the matter. Such-construction is manifestly opposed to the whole spirit and scope of said chapter. It would permit a board which had been defeated at an election, on the very issue of who the tax collector should be, to elect, when the first Tuesday of January came before the first Monday, that person tax collector who had been repudiated at the polls, where, as might occur, his selection was made a matter of preference and instruction by the voters. The plain purpose of the code provisions was that the new board — the incoming administration — should choose the clerk, the tax collector and the police justice unembarrassed by any opposition on the part of the retiring board. The new admin [499] istration is the one with which the new subordinate officers are to work, and is responsible to the people for making a wise selection. An inspection of the calendar shows that, beginning with 1892 and concluding with 1929, A.D., a period of thirty - eight years, there are only five instances in which the year succeeding a municipal election begins on Tuesday. There will occur in said period nineteen city elections, and in only five of these does the year following begin with Tuesday. The legislature had in mind the general, not the exceptional; what would usually happen, to wit: that Tuesday would come after Monday, not what would be extraordinary, and happen only five times in nineteen elections or thirty-eight years. Some point was attempted to be made as to the disarrangement of the terms of office, their unequal length, on the construction we favor. But the same thing would apply as an objection in the matter of the term of governor, and besides, if fixed and permanent procedure is the object to be secured, how is that in anywise accomplished by upsetting five times in nineteen the regular course of procedure ? It has long ago been declared as settled law, universally approved and followed, that “ a thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers. ’ ’ People v. Utica Insurance Co., 15 Johnson (N. Y.), 358-380. This court has furnished some most striking illustrations of construing a statute according to its spirit when that is clearly against the mere letter. See, notably, R. R. Co. v. Trotter, 60 Miss., 442; Ex parte Gore; 57 Miss., 251, and Bates v. Stokes, 40 Miss., 56. Illustrations from other courts might be in definitely-added. We laid down the true rule of construction in Adams v. R. R. Co., 75 Miss., at page 285, which we re-announce, to wit: “A statute must receive such construction as will, if possible, make all its parts harmonize with each other, [500] and render them consistent with its scope and object. The entire statute must be so read that the whole may have a harmonious and consistent operation. In the construction of a statute the object is to get at its spirit and meaning, its design and scope; and that construction will be justified which evidently embraces the meaning and carries out the object of the law, although it is against the letter and the grammatical construction of the act. In determining the proper construction of a statute, the entire legislation on the subject-matter, its policy, reason, as well as the text, must be looked to.” Again, contemporaneous construction by those whose duty it is to act under and administer a statute is often times materially helpful. This state of affairs existed in 1895, and yet no one ever pretended that the old board could elect, and so far as the records of this court disclose, the present is the only instance where such contention as appellants make has been advanced. It is also a fundamental rule of construction that courts will not give any statute such construction as would charge upon the legislature folly or absurdity. We can conceive nothing more foreign to the whole spirit and scope of this municipal legislation, which more directly affronts common sense, or which more inevitably imputes folly to the legislature, than the construction which would authorize a defeated board to fasten upon an incoming administration, and the taxpayers of a city, officers not chosen by the new board, and who might be actually hostile to it and unacceptable to the people who elected the new board. We know, of course, nothing about the officers here contending, and are speaking by way of argument merely to show how untenable is the opposite contention. In construing a statute, how .it may operate, and not simply how in a single instance, it does operate, is to be considered. The ordinary operation, not the isolated instance, is material. All sections relating to the organization of the new mayor and board of aldermen, and the election of their subordinate officers should be looked at as one whole, and collocated so as [501] to make the purpose of the legislature effective. If sections 2989, 2992, 3001, and 3030 be properly collocated and looked at as one entire scheme, it is perfectly clear that the new board alone has the power. Section 2989 simply provides that the regular meetings of the board shall be on the first Tuesday of each month; not that these officers shall be then elected. These sections should be collocated in the following order, §§3030, 2992, 3001. Section 3030 provides for the election and organization of the new board. Section 2992, which should be read immediately after it, then provides that ‘ ‘ at the first regular meeting of the mayor and board of aldermen succeeding each regular election they shall elect,” etc., manifestly meaning ‘£ at the first regular meeting of the new mayor and board of aldermen ” — the one just elected and organized as provided in § 3030. No other sensible construction can be given to the two sections thus collocated, and none other would probably occur to any mind were they so collocated. It is perfectly permissible so to transpose and collocate them. Section 2992 manifestly refers to the board provided for by § 3030, the new board. Indeecl, such transposition and collocation go far to place the power of the new board to elect within the letter as well as the spirit of the law, since § 2889 is merely a general direction as to when regular monthly meetings shall be held for any and all purposes every month, not having any special reference the election provided for in § 2992. Counsel for appellee have yoked the wrong sections together, §§ 2889 and 2992, and, like Nelson at Copenhagen, shut their eyes on § 3030, and so have not seen the plain meaning of the law, to to be seen at a glance by yoking §§ 3030 and 2992 together, and reading them in this order. We have given the case most careful consideration, as its importance demanded it should be done, and are clearly of the opinion that the new board alone has the power to elect the officers named in § 2992. Relator was elected by the new board, and his term of office dates from that election. The [502] views of the learned circuit judge are in conformity with these views and the judgment is Affirmed.