State ex rel. Booze v. Cresswell

Cook P. J. delivered the opinion of the court. The appellant, E. P. Booze, was the relator in a quo ivarrnnlo proceeding to test the title to the office of mayor of the town of Mound Bayou. The petition gives the court to understand that the áppellee, B. H. Cresswell, was the mayor of the town of Mound Bayou, and that five other named persons were, together with the said Cresswell, the acting hoard of mayor and aldermen of said town during the year 1916. Summarized, the petition further avers that the aforesaid •hoard of mayor and aldermen failed to order an election to he held in the month of December, 1916, as they should have done, to elect their successors; having so failed to order an election, the said defendant, Cresswell, claimed and exercised the right to hold the office of mayor “up to and including the 23d day of January, 1917.” The petition further informs the court that, these facts being brought to the attention of his excellency, the Governor of the state of Mississippi, the said Governor thereupon and forthwith appointed the relator mayor and five other citizens of Mound Bayou mayor and board of aldermen of said city. The petition goes on to say that the aforesaid Governor commissioned each of the aforesaid persons to hold the positions afore-sáid until their successors were elected and qualified. Again, we are advised that the Governor did what he' did in conformity with the authority conferred upon him by section 103 of the Constitution. But, in spite of all this, the petitioner goes on to say that Cresswell et al. absolutely refused to abdicate, but, on the contrary, they [806] held on to the coveted offices. Not content with merely holding on to their jobs, the petitioner says that Cress-well and' his fellow rebels pursued the even tenor of their unlaw-ful ways, and called a pretended election for the purpose of having' the people elect their successors, which unlawful procedure was to be pulled off on the 15th of February, 1917. Now the petitioner characterizes this order as “void, because of indefiniteness and uncertainty and because it did not specify what purpose the election was called for, nor what officers were to be elected thereat.” We gather from the petition that this condemned election was held, but we are informed that the persons voting were not duly registered and qualified ‘ ‘ as ■ required by law. ’ ’ The petition further states that the defendants, while they were in charge of things in 1916, increased the indebtedness of the town over the indebtedness for the proceeding year “by contract and ordinance, and .that all of them, including Cresswell, the mayor, voted for the ordinance.” The defendant, Cresswell, and we are dealing with him alone, 'is still claiming the . office qf mayor, and we are asked to oust him. To all this the defendant interposed a demurrer, which was sustained by the learned trial court. The grounds of demurrer are thus stated, viz.: “Because the said complaint does not show any legal title or right of E. P. Booze to the office of mayor of the town of Mound Bayou. “Second. Because until some right or title to the office of the mayor of Mound Bayon is shown in the said E. P. Booze, he cannot question the right or title of the respondent to the said office. „ “Third. Because the allegation of the increase in the indebtedness of the town of Mound Bayou during the administration of respondent fails to show in what respect said indebtedness was increased; fails to show that the respondent, as mayor, voted for any increase. [807] “Fourth. And for further grounds to he shown on the hearing.” It will he observed that the petition confesses that the defendant, Cresswell, was the mayor, of right, in 1916, but it is claimed that he forfeited his right because no election was ordered or held to elect his successor, which under the law should have been done in December, 1916. Section 3435, Code of 1906, provides that general elections for municipal officers shall be held on the second Tuesday in December, 1906, aiid every two years thereafter. The election was not held in Mound Bayou in December, 1916, and therefore it is claimed that the office of mayor was then vacant, and the Governor was authorized, and it was his duty, to £11 the vacancy by appointment. This would, no doubt, be true, but for the provision •of the statute fixing the term of municipal officers “for two years and until their successors are elected and qualified.” The appellant insists, however, that the legislature, in chapter 190, Laws of 1908, changed, amended, or repealed section 3435, Code of 1906, or that chapter 190, Acts of 1908, is in such general terms that it applies to municipal officers. Alleged historical facts which it is said brought about the law of 1908 are xecited in appellant’s brief in support of his argument. This would be of some force were it not for the fact that the law passed in 1908 in precise terms amends section 3459, Code of 1906, and that section alone. This was, of course, the proper and only way to repeal or amend statutes if the constitutional requirements are to be observed. It is sufficiently clear that the legislature did not have in mind section 3435, for the obvious reason the section was not specifically mentioned in the act, but the section the lawmakers did have in mind was section 3459. We are not now called upon to ■consider a statute which in terms fixes the. terms of •all officers. [808] Section 103 of the Constitution gives no force to the Governor’s appointment. In the first place, no emergency existed for which the law did not provide, and there was no vacancy which was not cared for by section 3435. The appellant cites Waveland v. Moreau, 109 Miss. 407, 69 So. 214, and State v. McDowell, 111 Miss. 596, 71 So. 867, in support of his contention. We-have carefully reviewed the decisions referred to and are unable to see anything in either of the cases' which remotely applies to the question here involved. Appellant’s counsel insists that chapter 190, Laws of 1908,. was designed to correct and change the mischievous rule announced by this court in State v. Hays, 91 Miss. 755, 45 So. 728. We have the exhaustive and carefully prepared opinion in that case, and it does not impress, us as mischievous in the rule there announced. The judge who wrote the opinion made no rule, but adhered to the law as written by that department of the government to which is delegated the sole power to legislate.. The decision which is thought to be mischievous merely enforces the legislative will, and, as we have said, no-legislature since,the rendition of the decision has seen, fit to change the law to meet or nullify the court’s construction of the statute, which was, in our opinion,, manifestly sound. We will not impute to the legislature a purpose to change a statute which they did not have under consideration. We cannot see why the legislature can be credited with the thought to change, amend, or repeal a statute they did not mention in the act, but did' mention another and different statute, leaving the statute here in question as it was written. In regard to the charge of appellant that the order-calling the election by the board of aldermen of which the appellee was the head, we think the charge is not well pleaded. The order is not set out, and it follows that this court has no means of judging of the sufficiency of' the order. The pleader might be convinced that the809 order was illegal, and the court might think the order was precisely and technically np to requirements of the law. The petition alleges that the mayor and aldermen • increased the indebtedness of the town for the year 1915 hv its expenditures and obligations .incurred in 1916, and that all of them voted for the orders. As we understand the law, the mayor had no vote unless there was a tie, and his. vote for an order or ordinance was brutum fuhnen if there was a unanimous vote “by the aldermen. We find no fault in the judgment of the court, and the same will be affirmed. Affirmed.