Rosetto v. City of Bay St. Louis

Anderson, J., delivered the opinion of the court. The appellant was convicted under an ordinance of the city ■of Bay St. Louis for conducting a gambling house, and appeals to this court. The following questions are presented for decision by this ■court: First, whether the mayor pro tern., before whom appellant was tried and convicted, had the power to try him; second, [413] whether the city had the power to pass the ordinance in question;. third, whether the affidavit charges any offense under the ordinances of the city; fourth, whether there was error in admitting’ testimony on behalf of the state that, when appellant was arrested, he had a gun and pointed it at the officers making-the arrest; and, fifth, whether the court erred in allowing testimony on behalf of the state of the bad reputation of appellant’s house for gambling — which questions we will dispose of in the- ■ order named. Bay St. Louis is not under chapter 99, Code 1906. It has a separate charter of its own, which is found in Acts 1886, p. 434, c. 279, section 23 of which provides that, when the mayor is-absent from the city, or unable from any cause, or fails, to discharge the duties of his office, the aldermen shall have power to-appoint a mayor pro iem. The regular mayor being a witness against the appellant, the aldermen had a called meeting and elected E. W. Webb mayor pro iem. It is contended that the fact that the regular mayor was a witness against appellant in this case gave the aldermen no power under the charter to elect a-mayor pro iem., and therefore such mayor had no power to try the appellant, and, if mistaken in this, that the special meeting, at which the election was held, on a call which was not served on all of the aldermen at least three hours before the time fixed for the meeting, as required by Code 1906, § 3388, which is applied to all municipalities by section 3441, was without au.thority of law, and the election of mayor pro tern, void, and he was therefore without power to try appellant. These questions, however, are not for' decision; for the legality of the election of the mayor pro iem. cannot be inquired into here. It is a well-settled principle of law that the right of a person to an office, who is in charge of it, performing its functions, cannot be determined, except in a proceéding to which he is a party. Section 23 of the charter gives the aldermen of Bay St. Louis the [414] power, under certain- conditions, to elect a mayor pro tem. . Conceiving that those conditions existed, they elected one, who, with the consent of the regular mayor and aldermen, took charge of the office and tried the appellant. Where one is actually in possession of an office under color of title, by authority of those having the power to elect, he is an officer de facto, and his acts ■cannot be impeached in any proceeding in which he is not a party. Bell v. State, 38 South. 795; Powers v. State, 83 Miss. 691, 86 South. 6; Cooper v. Moore, 44 Miss. 386. At the time of the trial and conviction of appellant, there was in force a general ordinance of said city, prohibiting, within its. corporate limits, the commission of any act amounting to a misdemeanor under the laws of the state, and making the same an offense against the municipality. If the city had the power to pass such an ordinance, by it Code 1906, § 1208, became an ordinance of the city. It is contended it had no such power. That question is settled in the affirmative by the recent decision of Hurley v. City of Corinth (decided at the present term of the court), ante 396, 52 South. 695. Code 1906, § 1208, is a police regulation, and section 3329, which, by section 3441 is applied to all municipalities, expressly authorizes the passage of such an ordinance. The affidavit sufficiently charges a violation of Code 1906, § 1208. It was not error to admit testimony that when appellant’s house was raided and the arrest made he had a gun, and pointed it at the officers making the raid and the arrest. This testimony was competent, not to show that appellant was guilty of another offense, but as throwing light on the question of his guilt of the ■crime for which he was arrested. His conduct at the time, and any statements he made, are competent for that purpose. If appellant had requested it, the court should have instructed the jury as to the purpose for which such testimony was admitted. Over the objection of appellant’s attorneys, the court per [415] mitted' testimony to the effect that appellant’s house had the reputation of being a gambling house. This was error. The charge against him was for conducting and permitting to be conducted gaming in his house, under Code 1906, § 1208. Under such charge, this testimony was not competent. This court held, in Handy v. State, 63 Miss. 207, 56 Am. Rep. 803, that on the trial of a person charged with keeping a bawdy house, evidence as to the general reputation of the house is incompetent, approving the rule laid down in Wooster v. State, 55 Ala. 217, which held that the charge of keeping a bawdy house is a specific offense, and susceptible of proof by witnesses who testify from knowledge, and that the reputation of the house is hearsay evidence, and is not admissible to prove a specific fact capable of proof by witnesses speaking from their own knowledge. In the instant case the charge against the defendant, of carrying on and permitting to be carried on games in his house, is susceptible of direct proof by witnesses speaking from their own knowledge, and hearsay evidence to.that effect was not admissible. For this error, which doubtless was influential with the jury, the judgment is reversed and the cause remanded. Reversed.