Kidder v. McClanahan

Anderson, J., delivered the opinion-of the court. This is a bill in chancery by Arthur J. Lussey, appellant, a resident and taxpayer of the city of Columbus, against the city of Columbus, appellee, setting up that a certain contract which the appellee claimed to have made with the American La .France Fire Engine Company on the 2d day of April, 1919, was void for certain reasons set out in the bill, and praying that an injunction issue, restraining the appellee from carrying out such contract. An injunction ivas accordingly issued and served on the appellee. The appellee answered the bill, and a trial was had on bill, answer, and proof, and final decree rendered by the court dissolving the injunction and dismissing the hill, from which decree the appellant prosecutes this appeal. The following facts in the case are undisputed: The city of Columbus has its own charter. It has never come under the provisions of the Code chapter on municipalities and the amendments thereto. The governing authorities — 189 — are designated in the charter as “mayor and city council.” The first day of April, 1919, was a regular meeting day for the mayor and city council’fixed by law; and a meeting Avas accordingly had. For some time prior to this meeting the city authorities had been considering the purchase by the city of a new fire engine. At this meeting, among other orders and resolutions passed and entered by the mayor and city council, Avas the following: “This being the time agreed upon to receive bids on fire engine, it was decided that all fire apparatus representatives be allowed to submit their propositions separately. The three companies represented were the American La France, Republic Trucks, and White Company. After each had submitted their proposition, at the suggestion of Councilman Banks, due to the absence of Councilman Vaughan, action in this matter was deferred until Friday night. On motion the council adjourned until Friday night, 8 p. m.” The calendar will shoAv that Friday of the first week of April, 1919, was the 1th day of that month. The mayor and city council did not hold the adjourned meeting set by this order for Friday night, but instead held a meeting-on Wednesday afternoon, April 2d. The minutes of this meeting having to do with its call, as well as the purchase of the fire engine, are as follows: “City Hall, Columbus, Mississippi, “April 2, 1919. “Call Meeting. “The Council met pursuant to the following call: President, D. S. McClanahan, Mayor; L..W. Stevens, L. A. Vaughan, E. E. Chappelle, Joe B. Love, and -S. M. Nash. ““Columbus, Mississippi, April 2, 1919. “ ‘To Hon. G. Y. Banks, L. W. Stevens, L. A. Vaughan, E. E. Chappelle, Joe B. Love, and S. M. Nash— Gentlemen: “ ‘You are hereby commanded to attend the called meeting of city council, this Wednesday, April 2, 1919, 5 p. m., — 190 — to discuss the improvement of levee on Aberdeen road leading into city and purchase of fire equipment. “ ‘[Signed] . D. S. McCdanai-ian, Mayor.’ • “Indorsed: “ ‘Received at 5 p. m. and served on all within named councilmen, except G. Y. Banks. “ ‘[Signed] M. O. Vandiver, Marshal.’ “The following motion ivas then introduced by Councilman Stevens and duly seconded by Councilman Chappelle, who moved its adoption: “That the city purchase the type 75-750 gallon triple combination fire engine and other equipment, as per specifications of the American La France Fire Engine Company. The consideration being fll,500.00. “The mayor and Councilman Stevens were appointed to check over specifications, and the mayor authorized to sign contract covering the purchase. The motion was adopted upon the following vote: “Yeas — Stevens, Chappelle, Love, and Nash. “Nays — Vaughan. “Absent — Banks. “On motion the council stood adjourned.” In pursuance of the authority claimed to have been conferred on.him -by the above order of the mayor and city council, McClanahan, the mayor, on the same day said special meeting was held, entered into the contract involved in this case, by the terms of which the city of Columbus purchased the fire engine described in said order, for which it agreed to pay the sum of eleven thousand, five hundred dollars of which two thousand, eight hundred seventy-five dollars was to be paid cash within ten days after delivery and acceptance of the engine, and negotiable notes or warrants for the remainder to be made payable as follows: “Three equal annual notes payable one, two, and three ■years respectively, said notes or warrants to have written on same the dates on which they are to be paid, and also that they bear interest at the rate of six per cent, per annum from date of issue until paid.” — 191 — The contract contains, several other important provisions, among them are certain guaranties; and specifies that shipment should he made Avithin one hundred tAventy working days after receipt and approval of the contract-— “or as soon thereafter as is consistent Avith good workmanship and proper painting, subject to any delays resulting from many causes beyond the control of the company.” It is provided further in the contract that the company selling this fire engine shall remain the owner thereof until the same is fully paid for, and the purchaser shall not incumber the same. There are several other important and substantial stipulations in the contract. - . Only a few days after this contract Avas entered into the city attorney discovered therein the provision for interest on the deferred payments of the purchase price, and conceiving that this Avas violative of section 2, chapter 209, Laws of 1918, he thereupon, Avithout any meeting of the mayor and city council authorizing it, simply scratched out this provision in the contract. Later on, by correspondence Avith the American La France Fire Engine Company, the seller of this engine, it Avas agreed betAveen the company and the city attorney that no interest should be charged. The mayor and city council, hoAvever, never entered any order on their minutes either authorizing or ratifying this change in the contract. It is contended on behalf of the appellant that the contract for the purchase of the engine is void because the special meeting at Avhieh.it was attempted to be authorized Avas unauthorized and illegal. Section 3388, Code of 1906 (section 5916, Hemingway’s Code), Avhieh, by section 3441, Code of 1906 (section 6001, Hemingway’s Code), applies to all municipalities, whether under the Code chapter or special charter, provides as follows: “The mayor or any two aldermen may, by written notice, call a special meeting of the mayor and board of aider-men for the transaction of important business. The notice must state the time of meeting and distinctly specify — 192 — the subject-matter of business to be acted upon; it must bd signed by the officer . . . calling the meeting, and must be served by the marshal, or any policeman, on the members of the board, including the mayor, who have not signed it,- and who can be found, personally, at least three hours before the time fixed for the meeting; said notice, with the indorsement of its service, shall be-entered on the minutes of the special meeting, and business not specified therein shall not be transacted at the meeting; but a member of the board shall not receive pay for attending a special meeting.” It is contended that the call for a special meeting under this statute must be served at least three hours before the time fixed for the meeting; otherwise the meeting is illegal and all acts done thereat are void. This was not done. The marshal’s return on the call shows that it was received at five o’clock p.- m., and the call itself shows that , the meeting was to be held exactly at that time. Is the statute merely directory, or is it mandatory? In the opinion of the court this statute is mandatory and jurisdictional. It must be followed with substantial strictness, and if it is not the meeting held is illegal, and all the orders, resolutions, and acts of the municipal authorities passed in pursuance thereof are void. In Jones v. Burford, 26 Miss. 194, an analogous question arose with reference to special meetings of the -board of supervisors, or rather the board of police, as it was called then. Hutchinson’s Code, p. 710, section 5, provides with reference to special meetings of the board of police: “That the president of the board may call a special meeting thereof, whenever it may be necessary, upon his giving ten days’ notice of said meeting, by advertisement, posted at the door of the courthouse of his county.” ' A special meeting-was held without this statute béing complied with, and at such meeting the taxes of the fiscal year were levied by the board. The court held in that case as follows: — 193 — “It is clear from this language that a meeting can only be convened upon notice being given as required by the statute. The president of the board has the power, upon a certain condition, to order a special meeting of the board; and this condition must be complied with to make the meeting legal, or, in other words, to make it a board of police.” This same principle was recognized in Brigins v. Chandler, 60 Miss. 862, and Corburn v. Crittenden, 62 Miss. 125. It is contended further that the contract as entered into by the mayor is void, because there was no such order entered on the minutes of the mayor and council as under the law authorized it. It will be seen from the minutes that the entry thereon, which it is claimed authorized the mayor to enter into1 the •contract for the purchase of the engine, simply provides that the city purchase the engine for eleven thousand five hundred dollars, and the mayor and one of the councilmen shall check over the specifications and the mayor sign the contract. Chapter 8, section 43, of the Charter of the city of Columbus is in this language: “All contracts and obligations on the part of the city shall be signed by the mayor, but no contract or obligation signed by him shall be binding on the city, unless he be authorized to sign the same by the city coiincil, and unless such authority be shown by the record of the proceedings of the city council.” Section 3474, Code of 1906 (section 2812, Hemingway’s Code), is as follows: “An officer shall not enter into any contract on behalf of the state, or any county, city, town, or village thereof, without being specially authorized thereto by law, or by an order of the board of supervisors or municipal authorities.” This statute and the ordinance (the latter, of course, having only a local application) were intended to subserve the same policy. No officer of any municipality in this state is authorized to sign a contract on behalf of the mu — 194 — nicipality unless “specially authorized thereto by law, or by an order of the board of . . . municipal authorities.” The contract in question is not one the mayor was “specially authorized ... by law” to sign; therefore we must look to the action- of the mayor and city council for his authority. Municipalities are required to contract on their minutes. Their minutes, must show either the contract in full which is being authorized — that is, did set out in full on the minutes and made a part of the order or resolution adopting the same — or their minutes must set out, in substance, at least, the controlling provisions of the contract. Neither of these methods was adopted in this case. The order entered by the city council simply authorized the mayor to purchase — “the type 75-750 gallon triple combination fire engine, and other equipment as per specifications of the American La France Fire Engine Company. The con - sideration being eleven thousand five hundred dollars.” In pursuance of this authority, as shown, the mayor signed a contract for the purchase of the engine, agreeing to pay the seller eleven thousand five hundred dollars, and to make a cash payment of two' thousand, eight hundred seventy-five dollars and the remainder to be payable in three equal amounts to be due in one, two, and three years respectively; and, in addition, the contract contains many other important stipulations. The municipal authorities had no right to delegate their power to the mayor to agree on the terms and execute this contract. Under the statute and ordinance referred to, the mayor, in executing a contract, merely carries out the mandate of the municipal authorities (in this case, the mayor and city council) ; and under the law this mandate cannot rest in parol; it should be set out plainly on the minutes of the governing municipal board. The order entered by the council on its minutes did not contain even the briefest outline of the contract which the mayor entered into on behalf of the city. One desiring to know what contract a municipality has entered into must be — 195 — able to go to the minutes authorizing the execution of the contract, and there find on the minutes either the contract itself, or its important and controlling provisions. For these reasons the contract entered into by the mayor on behalf of the city of Columbus is void, and has no binding force on the city. Appellant raises other questions unnecessary to decide, because the decision of these questions disposes of the case. Reversed and remanded.