Mayor of Jackson v. State

Cook, J., delivered the opinion of the court. This is a mandamus suit brought to compel appellant to comply with the terms of chapter 120 of the Laws' of 1912, being an act to change the form of government of certain cities, and prescribing the manner of effecting such change. It appears from the petition, and being admitted on the demurrer, that a valid petition was filed for an elec — 683 — tion in compliance with section 2 of said act, and that an election was held thereunder as provided in section 3, resulting in favor of the change of the system of municipal government, hut the mayor and hoard of aldermen, although they had ordered the election in compliance with the terms of said act, refused to receive the returns of the election officers, but, upon the other hand, took the position that the act was unconstitutional, and announced their purpose of disregarding the same.. The court below ordered the mandamus issued, and from this action of the court this appeal is prosecuted. One of the points made is the title of the act is insufficient, and, for this reason, the law is of no effect. We think the arrangement of the several sections composing article 4 of the Constitution, and the assignment of same to different subdivisions of the article (which may be termed subjects), is of some significance and may aid in the construction and application of a single section, or group of sections. Article 4 is thus subdivided: (1) “Legislative Department.” (2) “Qualifications and Privileges of Legislators.” (3) “Trial of Officers.” (4) “Rules of Procedure.” .5) “Injunctions.” (6) “Local Legislations.” (7) “Prohibition.” (8) “Miscellaneous.” It will be noted that sections 71 and 74 are placed under the subject, “Rules of Procedure.” It is observable that section 74 employs the prohibitive words, “No bill shall become a law, ’ ’ and yet, under the decisions ,of this court, the enforcement of this section is not a judicial question, and the courts have no power to control the observance by the legislature of this section. Judge Campbell, speaking for the court, in Ex parte Wren, 63 Miss. 532, 56 Am. Rep. 825, before the adoption of the Constitution of 1890 and dealing with a cognate question, uses this forceful language: “If the validity of every act published as law is to be tested by examining its history, as shown by the journals of the two houses — 684 — of the legislature, there will be an amount of litigation, difficulty, and painful uncertainty appalling in its contemplation and multiplying a hundred fold the alleged uncertainty of the law.” These terse phrases embody the very essence of judicial wisdom, and evidence a foresight little short of inspiration. After the adoption of the Constitution of 1890, the same great jurist was again the spokesman of this court, and centers the bull’s eye thus: “If members of the legislature violate their oaths by disregarding the plain directions of the Constitution, the courts are powerless to redress the wrong, except as to matters apparent in their finished action. The Constitution, as to mere rules of procedure prescribed for the legislature, is committed to the members individually and collectively, and the houses are intended as a mutual check, and the governor on both, and courts will not inquire into the antecedents of legislative enactments, and have no claim to be present at the parturition. Their duty begins when legislative travail is over. ’ ’ Hunt v. Wright, 70 Miss. 307, 11 South. 610. Section 71 is also assigned to “Rules of Procedure,” and it is visible from the choice of its language that the framers of the Constitution had in mind the ills and afflictions so graphically depicted by Judge Campbell in the case of Ex parte Wren. We do not wish be be understood as holding that section 71 is solely addressed to the legislative conscience, because this section requires a title for every law — and an act without a title would not be a law — and the violation of the Constitution would thus appear upon the face of the act. We use the construction pláced by the court upon section 74 to emphasize our views of section 71. It is observable that this section is mandatory to the extent that “every bill . . . shall have a title;” but, when it speaks concerning what the title should contain, the weaker word “ought” is used. “Ought” is a shade stronger than '‘should,’’ but a “shade is not to be seized to nullify an — 685 — act of the legislature.” It is quite manifest that the words were carefully selected and advisedly used, the one being mandatory and the other admonitory, or advisory. Thus it appears by sections 71 and 74 three “shalls” and one “ought” are addressed to the legislature, and we are asked to follow Levee Commissioners v. Insurance Co., 96 Miss. 832, 51 South. 2, and thereby add a fourth “shall” by construing “ought” to mean the same thing as “shall.” We think an examination of this case will show that the act there discussed had no title at all, but if it may be construed to hold that the courts are empowered to nullify acts of the legislature because, in the opinion of the court, the title, does not indicate all it should indicate, we decline to follow it. The unwisdom of this rule is demonstrated by the criticisms of the title of the act, the subject of this litigation. The court was entirely warranted in holding that the act reviewed in Levee Commissioners v. Insurance Co., supra, had no title at. all. There are many reasons to assume that the framers of the Constitution intended, by the use of this word, to make impossible in this state that, character of litigation so common in some other states,, as to almost create a judicial scandal. Being mindful of the fact that the legislature could be trusted to do some things without the advice, aid, or restraint of the courts, the wise men who wrote the Constitution of 1890, after saying what ought to be done, left the sufficiency of title to the department commissioned to write the statute laws of the state. It is rightfully said that the effect of the election in the present case is to abolish the offices and officers holding office by election under chapter 99 of the Code. It is admitted that the office may be abolished, but it is insisted that section 175 of the Constitution prescribes the only method for the removal of public officers. We think this is true, so far as the courts are concerned. No public officer may be removed by any sort of court procedure. — 686 — except it be done in accordance with the provisions of section 175; and it is also trae that no executive or judicial officer has the power to remove public officers. It may be conceded, for the purposes of the present case, that the legislature cannot legislate out of office constitutional officers, and that the offices of municipalities belong to that class, but we think that this statement is perhaps not altogether accurate. When the purpose of the law is to accomplish this alone, the law is undoubtedly unconstitutional, but where the general purpose of the law is a lawful exercise of the legislative power, and the incidental effect of the law is to abolish certain officeholders, the act would not be in violation of the constitutional rights of the officers. Connor v. Gray, 88 Miss. 497, 41 South. 186, 9 Ann. Cas. 120. But we prefer to give to the law under review such construction as will harmonize it with the Constitution. We think the act of 1912 abolished all of the offices of the city existing under the former law, and provides for an entirely different form of government by which the affairs of the municipality are to be administered. The official name of the presiding councilman under the -present law and under the old law is the same, but the functions, powers, and duties are quite different. While he will still be called mayor, yet his duties and powers, except in one particular, are very much enlarged and of a different, sort. It is contended that section 250 of the Constitution is violated by sections 6, 7, and 23 of the act in question. Section 6 merely provides how candidates be placed on the official ballot, viz., by nomination of a party primary.' The general law, we find, also prescribes exclusive means by which candidates may have their names printed on the official ballot. The methods are more numerous, but nevertheless thejr are restrictive, and, if the statute under consideration violates section 250, the general election laws are void for the same reason. This — 687 — question lias been frequently adjudicated in other states. The Supreme Court of Missouri in Bowers v. Smith, 17 S. W. 761, construing an act of the legislature of that state similar to the section of the act under construction here, said: “By our Constitution general elections are to be held at certain fixed times, and the right of suffrage is secured to every citizen possessing the requisite qualifications. The new ballot law cannot infringe upon the right of voters to select public servants at such elections, or be so interpreted as to limit the range of choice for constitutional officers to be nominated in the modes prescribed by it. Nominations under it entitle the nominees to places upon the official ballot printed at the public expense, but the Missouri voter is still at liberty to write on his ballot other names than those which may be printed there.” See, also, Sanner v. Patton, 155 Ill. 553, 40 N. E. 290; Eckerson v. Des Moines, 137 Iowa, 486, 115 N. W. 177; State v. Ure (Neb.), 135 N. W. 224; State v. Johnson, 87 Minn. 221, 91 N. W. 604, 840. The general effect of all these decisions, which are applicable here, was to construe the several acts therein discussed to mean that the legislature did not intend to restrict the constitutional right of voters to cast their ballots for whomsoever they pleased, but that the law referred alone to what should be printed on the official ballot, and the elector was not required to cast his ballot for the particular persons whose names were so printed upon the ballot, but he was at liberty to write the name of another candidate upon the ballot, and thus vote for his choice. It is clear to us that section 6 of this act only refers to the printing of the official ballot, but does not, even if it was so intended, restrict the constitutional right of a voter to vote for whomsoever he may please to vote. We do not think that the constitutionality of section 7 of the act is properly before the court. Even though it may be admitted that this section, which requires voters — 688 — to cast their vote for as many candidates as there are officers to be elected, is in violation of the Constitution, yet in our opinion it does not in any manner affect the balance of the act, as the law may stand without this section, and still be a complete expression of the legisla.tive will. Section 23 of the act, providing that a candidate to be elected mayor or councilman must have resided three years in the city, may be eliminated from the law entirely without in any manner affecting the purpose of the act. The act is not for the benefit of candidates, but is designed to accomplish quite a different object. When the constitutional rights and privileges of a candidate have been invaded, it will be proper to consider the constitutionality of that feature of the act. The act does not violate section 61 of the Constitution for the simple reason that nowhere does it attempt to revive or amend any section or sections of any statute of the state. The act merely provides an additional and diffrent method or plan for the government of cities, and may be made operative in any city of the state by holding the election prescribed by the act itself. There are now cities operating under special charters, and cities operating under chapter 99 of the Code of 1906, and this law provides another plan of municipal government, and it is as general in its operation as chapter 99, and may be made operative in any city of the class mentioned. It is so w.ell settled that legislation of this character is not a delegation of legislative power that we do not go into discussion of section 33 of the Constitution. Rankin County v. Davis, 59 South. 811, decided at this term, is decisive of this point. The construction of an act embodying the features of chapter 120 is of first impression in this state, but it is not new in the jurisprudence of America, as the courts of Iowa, Washington, Kentucky, Kansas, Texas, Illinois, and Idaho have construed similar legislation. It is nota — 689 — ble that all of the courts have steadfastly refused to see anything in the statutes of the several states which authorized the courts to destroy the laws reviewed. We cite the following cases: Eckerson v. City of Des Moines, 137 Iowa, 542, 115 N. W. 177; State ex rel. Hunt v. Tausick, 64 Wash. 69, 116 Pac. 651, 35 L. R. A. (N. S.) 802; Bryan v. Voss, 143 Ky. 422, 136 S. W. 884; Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016, 23 L. R. A. (N. S.) 534; Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488; People ex rel. City of Springfield v. Edmunds, 252 Ill. 108, 96 N. E. 914; Kessler v. Fritchman, 21 Idaho, 30, 119 Pac. 692. It is clearly the intention of the act to preserve the status quo of each city availing itself of the operation of the act. The city as a municipal corporation is not abolished, and all of its ordinances and resolutions, past and prospective, will remain in full force. The contracts lawfully made, and to be made, by the present, government, will be valid and binding on the city, and will be the contracts of the city when the new regime is inaugurated in January, 1913. The city will remain under the control of the present officers until then, and it is not contemplated that this act will become operative until the installation of the officers elected under its provisions. Nature abhors a vacuum, and the law will not tolerate a hiatus. All of this clearly appears from the act read as a whole. This act does not repeal or amend any section of an existing law. The act is a substantive law, and comes from the legislature complete and full grown, and will be in full operation in January, 1913, whenever the people of any city elect to have it so. The numerous points made against the act are not to be treated as frivolous, because they are earnestly insisted upon, and able counsel in their elucidation of all of them manifest exhaustive research and grat ability. Due consideration has been given to all of the points, but we deem it unnecessary to notice them in detail, as, viewing the questions here involved from a broad standpoint, — 690 — we have reached the conclusion that many of the constitutional principles invoked to destroy this law, while ingeniously and strongly argued, have no application to the present case. We find ourselves unable to arrive at a satisfactory conclusion that any constitutional right is denied to, or taken from, appellants by the provisions of chapter 120 of the Laws of 1912. The legislature in the exercise of its unquestioned power to enact general laws for the government of municipalities passed the act now before us for construction, which is a general law of the state, and has uniform application to all cities choosing to make the same operative by the method prescribed by the act itself. There is nothing in the Constitution limiting the power of the legislature to prescribe how municipalities may be governed, and this act merely creates a form of government in addition to the several plans now in full operation in the state. Representative government is not denied— the representatives are only reduced in number, no doubt with the hope that their quality and efficiency will thereby be improved. The sovereign people choose a few servants instead of many, and by every feature of the act the will and consent of the people is given full play in the choice of servants and the management of their affairs. It may be that some of the provisions of this act would violate some of the constitutional limitations, if the legislature should attempt to apply them to the government of the state, but, when applied to municipalities, we can find no inhibition to the exercise of the power herein conferred upon the people of cities. The canons of construction are too well established by the authorities, and so well understood by all students of the law, we do not cite any authorities or attempt to restate them. We may say, however, that we have read the act with care, always with open minds, to discover harmony rather than discord, and this we understand to be the spirit which should animate courts construing the acts of the legislative department of the state. — 691 — Where the question is properly before the court by this .appeal, we are of opinion that the act is not plainly, palpably, beyond all question, inconsistent with the Constitution, but is in every respect a valid exercise of legislative power, and in no way conflicts with the state Constitution. Affirmed.