State ex rel. v. Wharton

Cook, J., delivered the opinion of the court. This case was begun upon the relation of the district attorney, by quo warranto, to oust appellee from the office of alderman of Port Gibson. The relief sought by the petition was denied, and the cause dismissed by the circuit court, and the state appeals to this court. Appellee was elected in December, 1910, to the office of alderman. The town of Port Gibson was being conducted under a special charter, and was not operating under the general laws governing municipalities. The charter of the town provided that the elected officers of the town shall qualify at any time before the first Monday in January next succeeding the date of their election. It is contended that appellee did not qualify before the first Monday in January, nor on the first Monday. It appears from the evidence that appellee did file his bond, and was sworn in as alderman, not before the first Monday in January, as prescribed by the charter, but within a few days thereafter. It is also said that he did not take and [30] subscribe the oatb required by the charter, nor was his bond approved by the president of the board of supervisors of the county and filed for record with the clerk of the chancery court, and from the evidence this appears to be true. The state takes the position that a failure to qualify according to the requirements of the charter ipso facto forfeits and vacates the office, and that the general laws of the state are applicable in the present case. Appellee contends that the charter of the town is the law of the case, and, inasmuch as the charter does not provide that a failure to qualify in the time and in the manner provided by the charter works a forfeiture of the office, this proceeding cannot be maintained. It is further contended by appellee that the charter commits to the board of mayor and aldermen the power and discretion to deal with vacancies. We have concluded that the charter of the town is controlling in this case, and that the general laws touching the qualifications of public officers has no application to the officers of municipalities operating under special legislative charter’s. We find no provision of the charter whereby a failure to qualify on or before the day named for so doing forfeits and vacates the office. It seems to be settled by the authorities that unless the law, in terms, declares a forfeiture on failure to qualify within the prescribed time, the law, which merely fixes the time for the elected officer to qualify, will be deemed directory. The rule is thus stated in 23 Am. & Eng. Ency. of Law, p. 357: ‘ ‘ Statutes prescribing the time within which an official oath shall be taken, or a bond given or filed, are generally held to be directory only, and a failure to comply therewith does not ipso facto forfeit the office, and, if the officer subsequently and before the commencement of proceedings to forfeit-the office complies- with the requirements of the statute, he is entitled to the office.” The decisions of this court are in line with the decisions of other courts in holding simi [31] lar laws directory. Marshall v. Hamilton, 41 Miss. 229; State ex rel. v. Lazier, 77 Miss. 146, 25 South. 153. Counsel for the state relies on Andrews v. Covington, 69 Miss. 740, 13 South. 853, to support the theory that our statutes are mandatory. The writer was of counsel in the trial of this case in the circuit court, and has some knowledge of the points upon which the case went off. The facts were that Covington, although elected by the people, was not a qualified elector; he having failed to-pay all taxes legally assessed against him. He was not so qualified at the time he filed the petition, nor at the-time the same was heard. What the court did really decide was that Covington was by the Constitution disqualified to hold the office to which he had been elected. He subsequently did pay up all taxes assessed against him, the board of supervisors called a special election to fill the vacancy, and. Covington was re-elected and inducted into office, and held the office for four consecutive terms. Section 22 of the charter is as follows: “(a) Vacancies. Should a vacancy occur at any time, or should an officer-elect fail to qualify, the hoard may order a. special election to fill said vacancy, (b) In case any vacancy in any municipal office to which the officer is elected or appointed by the board of mayor and aldermen at any time, the same may he filled hv the hoard of mayor and aldermen at any regular or special meeting’.” The charter being the law of the case, the intention of the lawmakers may be gathered from this section of the charter. It was, we think, the manifest intention of the legislature to give the hoard of mayor and aldermen discretion to deal with vacancies in office and failure of elected officers to qualify. It seems that a failure to qualify within the' prescribed time may be waived by the city council, and an approval of a bond after the expiration of the time limit has been held to he a waiver. Launtz v. People, 113 Ill. 137, 55 Am. Rep. 405; Chicago v. Gage, 95 Ill. 621, 35 Am. [32] Rep. 182. The town of Port Gibson under the option provided by law elected to retain its charter, and to reject the general laws provided for the government of municipalities, and it was thus the charter became the law of this case. By a liberal construction of the charter provisions with reference to the filing of vacancies, the action of the board of mayor and aldermen in qualifying appellee after the expiration of the time limit was tantamount to filling a vacancy — at least the board elected to waive the time limit. In this case a bond was filed and approved, and appellee did otherwise qualify as alderman, and discharged the duties and exercise the powers of an alderman for about sixteen months, when the state intervened to oust him upon the theory that the general laws of the state •controlled. We think the trial court did not er.r in dismissing the cause. Affirmed.