Opinion
No. 33564.
February 13, 1939. Suggestion of Error Overruled March 27, 1939.
1. MUNICIPAL CORPORATIONS.
Municipalities have only such powers as are expressly granted by statute, and such powers as are necessary and appropriate to the exercise of those powers granted by statute.
2. MUNICIPAL CORPORATIONS.
The property and funds of a municipality, unless expressly otherwise provided, are to be used in the furtherance of its governmental functions.
3. MUNICIPAL CORPORATIONS.
A municipality is not authorized to engage in private business unless such authority is found in a grant by statute to the municipality.
4. MUNICIPAL CORPORATIONS.
City, in absence of special charter provision, did not have authority to engage in business of testing automobiles and therefore did not have authority to enter into contract for purchase of equipment to establish automobile testing station (Code 1930, sections 2391, 2406; Laws 1938, chapter 200, sections 25, 26, 133).
APPEAL from chancery court of Yalobusha county; HON. L.A. SMITH, SR., Chancellor.
Newman M. Dorsey, of Water Valley, for appellant.
It is settled beyond dispute that municipalities have only such powers as are expressly or impliedly conferred upon him by statute.
Pascagoula v. Delmos, 108 Miss. 91; Steitenroth v. Jackson, 99 Miss. 344; Crittenden v. Booneville, 92 Miss. 277; Robertson v. Southern Paper Co., 119 Miss. 113; Hazelhurst v. Mayes, 96 Miss. 656; Edwards Hotel v. Jackson, 96 Miss. 547; Tullos v. Town of Magee, 179 So. 577.
It was contended in the trial court, and, we assume, will be contended in this court that Sections 2391 and 2406 of Mississippi Code of 1930 and paragraph (d) of Section 133 of Chapter 200, General Laws of Mississippi, 1938, grants to municipalities the power and authority to purchase and pay for same out of the general fund in the treasury of the municipality, and, further, that said statutes authorizes the installation and operation of said machinery. These statutes, we submit, must be interpreted in the light of all statutes dealing with the powers of municipalities.
The applicable parts of Section 2391 of Mississippi Code of 1930, are as follows: "Each city, town, or village which is incorporated shall be governed by the provisions of this chapter and shall be a municipal corporation, with power: . . . To purchase and hold real estate and personal property; to purchase and hold real estate, within the corporate limits, for all proper municipal purposes, and for parks, cemeteries, hospitals, schoolhouses, houses of correction, waterworks, electric lights, and sewers. . . . To make all contracts and to do all other acts in relation to the property and concerns of the municipality necessary to the exercise of its corporate or administrative powers."
It will be noticed that the above statute specifically names what powers the municipality may exercise, and that nothing therein could be construed to authorize the municipality to purchase, install, and operate machinery for the inspection of brakes, lighting equipment, steering mechanism, etc., of motor vehicles in that the right to hold real or personal property for that purpose is not mentioned. Therefore, the machinery and equipment for the inspection of motor vehicles not being named within the class of property which the municipality has the right to purchase and hold and operate, the same will not be implied.
Tepper Bros. v. Buttross, 178 Miss. 659.
When this statute, Section 2391, is analyzed and the rule applied by the court that when specific powers are named, none will be implied, it is so clear that municipalities are without right to purchase under this statute, until it is useless to dwell further upon that statute.
We next pass to Section 2406 which provides as follows: "To make all needful police regulations necessary for the preservation of good order and peace of the municipality and to prevent injury to, destruction of, or interference with public or private property; to regulate or prohibit any mill, laundry or manufacturing plant from so operating whereby the soot, cinders or smoke therefrom, or the unnecessary noises thereof, may do damage to or interfere with the use or occupation of public or private property; and to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the State."
It is under this statute that municipalities may exercise the police power. The appellees contend that under this section as construed by this court in Wasson v. Greenville, 123 Miss. 642, the power is conferred upon municipalities in the exercise of its police power to purchase, install and operate the necessary machinery and equipment for an official inspection station for the inspection and adjustment of brakes, lighting equipment, steering mechanism, etc., of motor vehicles. The trial court apparently accepted that view.
We do not think that Section 2406, supra, or the decision in the case of Wasson v. Greenville, supra, have any application here for the reason that the operation of an inspection station is not in aid of the police power of the municipality, and not in aid of any police power which the municipality would be authorized to exercise under the present statutes. We concede the right and power of municipalities to exercise the police power under the authority conferred by statute. We also concede that municipalities in the exercise of their police power could have before the enactment of Chapter 200 of the General Laws of Mississippi, passed reasonable ordinances requiring licenses of operators of motor vehicles, and could have required, by ordinance, inspection to determine that all motor vehicles operating upon their streets were mechanically proper. However, when we consider the statutes herein above referred to in connection with Chapter 200 of the General Laws of Mississippi, 1938, it is clear that the police power of municipalities with reference to the operation of motor vehicles upon the streets of such municipalities have been withdrawn by the Legislature insofar as such municipalities might have heretofore required licenses and that motor vehicles be inspected for certain defects therein.
In Hodges v. Western Union Tel. Co., 72 Miss. 910, this court laid down the rule that the power of municipalities over their streets is subject to legislative control. That being true, the Legislature might divest municipalities of absolute control over their streets.
Canton v. Canton Cotton Warehouse Co., 84 Miss. 268.
Recognizing the above principles of law the appellant contends that Chapter 200 of the General Laws of Mississippi, 1938, has withdrawn from municipalites a part of the police power heretofore conferred by Section 2406 of Mississippi Code of 1930.
Appellees say that if they are mistaken in their contention that municipalities are empowered by Section 2406 of Mississippi Code of 1930 to purchase, install and operate an official inspection station, then Paragraph (d) of Section 133 of Chapter 200 of the General Laws of Mississippi, 1938, grants municipalities the necessary authority to purchase, install and operate the necessary machinery for the inspection and adjustment of brakes, lighting equipment, steering mechanism, etc., of motor vehicles.
That part of Section 133, Chapter 200, Laws of 1938, relied on by appellees, is as follows: "However, be it further provided when a municipality installs and operates an inspection station, conforming to the standards set up by the commission, and approved by the commission, then no other inspection stations shall be issued a permit to make official inspections in that municipality, however, be it further provided that the fee charged by said municipality, for said service, shall be approved by the commission."
We submit that there is not anything in the language of the above quoted statute which grants authority to a municipality to do anything. That is not a grant of power to municipalities, but is a limitation upon the power of the Public Safety Commission, and prohibits the granting of a permit for the inspection of motor vehicles in the event a municipality should acquire the authority to perform the service. Nothing therein stated can be construed to vest power in a municipality to purchase with funds from its general treasury the necessary machinery to make such inspection or to pay for the operation thereof.
There is a rule of statutory construction that where the meaning of a statute is not plain, resort may be had to the real purpose of the Legislature in adopting it, and when the intent is ascertained, the court will give effect to the intent though the letter of the statute be violated.
Gunter v. City of Jackson, 130 Miss. 637; Ingraham v. Spence, 30 Miss. 410; Huber v. Freret, 138 Miss. 238; Gandy v. Public Service Corp., 163 Miss. 187; Zeigler v. Zeigler, 174 Miss. 302.
However, the application of that rule is not called for in the construction of any statute unless and until resort thereto is necessary to make the statute a workable one. This rule cannot be applied to paragraph (d) of Section 133, Chapter 200, Laws of 1938, for the reason that (1) all authority to require inspection and adjustment of motor vehicles under the police power heretofore possessed by municipalities by virtue of Section 2406 of Mississippi Code of 1930 was withdrawn by the enactment of section 26 of Chapter 200, Laws of 1938; (2) that to so construe this statute would be to write into the statute by construction "municipalities may purchase, install and operate official inspection stations," or some equivalent language which this court has no power to do; and (3) the statute is workable without such a construction or interpretation in that its workability is in nowise dependent upon the right of municipalities to purchase, install and operate said stations.
These inspection stations may be operated by any private individual or corporation meeting the required standards. Therefore, since the statute makes ample provision for the inspection of motor vehicles by persons, firms and corporations other than municipalities, it is unnecessary to add anything to the statute and say by construction that the right to purchase, install and operate the necessary machinery and equipment is implied. Such a forced construction should not be put upon the statute unless its workability was dependent upon that construction, which is not the case here.
We have in the case at bar a situation where no power to purchase, install and operate machinery and equipment for the inspection and adjustment of brakes, lighting equipment, steering mechanism, etc., is expressly granted, from which it follows that there being no powers expressly granted, there can be no implied power to carry into effect anything not expressly granted. Implied powers spring from necessity. That which is not necessary cannot be implied. It is not necessary to imply that municipalities are authorized to purchase, install and operate official inspection stations. They can be operated by any private individual or private corporation under the express language of the statute.
City of Hazelhurst v. Mayes, 96 Miss. 656.
We, therefore, respectfully submit that the City of Water Valley is without authority to purchase, install and operate the necessary machinery and equipment for the inspection and adjustment of brakes, lighting equipment, steering mechanism, etc., of motor vehicles.
Kermit R. Cofer, of Water Valley, and Creekmore, Creekmore Capers, of Jackson, for appellees.
Appellant invokes the principle that municipalities have only such powers as are expressly, or impliedly, conferred upon them by statute. We have no quarrel with this principle of law and believe that the statutes of the state have given to municipalities and to the City of Water Valley the power sought to be exercised by them in the proceedings attacked in this litigation.
In the chapter on municipalities in the Code certain sections give certain powers to municipalities. Section 2406 reads, in part, as follows: "To make all needful police regulations necessary for the preservation of good order and peace of the municipality and to prevent injury to, destruction of, or interference with public or private property. . . ." Section 2414 reads, in part, as follows: "To exercise full jurisdiction in the matter of streets, side-walks, sewers, and parks." Section 2434 reads as follows: "To adopt all such measures as may be deemed necessary or proper for the protection of strangers and the traveling public in person or property."
Crumpler v. Vicksburg, 89 Miss. 214, 42 So. 673; Wasson v. City of Greenville, 123 Miss. 642, 86 So. 450; Snider v. Campbell, 145 Miss. 287, 110 So. 678; Village of Euclid v. Ambler Realty Co., 71 L.Ed. 303, 47 S.Ct. 114.
In Hartman v. May, 168 Miss. 477, 151 So. 737, the court held that the state police power may be delegated to municipalities for appropriate purpose and may be exercised by municipalities for protection and health of the inhabitants. This involved an ordinance requiring vaccination of children before they could be admitted to the public schools of the City of Biloxi. The court said: "The ordinance here in question was intended and reasonably calculated to prevent the introduction or spread of contagion and bears direct and intimate relation to the maintenance of the health of the inhabitants of the municipality, and we are unable to say that in the enactment thereof there was an unreasonable or arbitrary exercise of power."
In our opinion, the maintenance of an inspection station bears just as direct and intimate relation to the safety of the inhabitants of a town as does the vaccination to their health.
Brogan v. Hosey, 172 Miss. 869, 161 So. 690.
In the case of Albritton v. City of Winona, 178 So. 799, the court held that the state and its political subdivision had authority to engage in enterprises usually owned and operated by private individuals, provided the public interest required public ownership or operation.
In 42 C.J. 618, it is stated that a municipality may require the use of reasonable safety appliances on automobiles, may regulate the rate of speed at which such vehicles may be operated, and may make regulations excluding or restricting the use of certain streets.
It seems that appellant recognizes that the City of Water Valley, under the statutes and decisions in existence prior to 1938, had the power to do that which is questioned in the case at bar but that said Uniform Act has cut down the power theretofore conferred on municipalities in regard to police regulations as to traffic on streets.
Section 25 of the Uniform Act is as follows: "Provisions of Act Uniform Throughout State. Sec. 25. The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this act.
It will be seen from the foregoing section that municipalities may adopt traffic regulations which are not in conflict with the provisions of the Uniform Act, and we respectfully submit that the acts of the municipality challenged herein are not only not in conflict with the Uniform Act but are expressly recognized in the act as a suitable method of carrying out the provisions thereof, and not only a suitable one but a preferred one.
Section 26 authorizes municipalities in seven particulars to regulate the use of the streets in any manner, even though such regulation in the specified instances may be in conflict with the provisions of the Uniform Act.
The action taken by the City of Water Valley, complained of in this litigation, is consistent with the Uniform Highway Traffic Regulation Act. This act consists of one hundred and forty-nine sections, divided into sixteen articles. Article 15 is captioned "Equipment," and within this article are found sections 103 to 138, providing for the scope and effect of regulations, requirements as to lamps, reflectors, markers, flags additional lighting equipment, brakes, horns and warning devices, mufflers, mirrors, windshields, tires; all going into great detail as to the quality, standard and mechanical suitability of the various articles of equipment. To enforce the use of standard, lawful and mechanically sound equipment, Section 133 of the act provides for official inspection stations for the inspection and adjustment of brakes, lighting equipment, steering mechanism, horns, mirrors, wind-shield wipers and other equipment. This section provides that application for permits for such inspection stations shall be granted by the commission when it is satisfied that the station is properly equipped and has competent personnel and will be properly conducted. The section further makes it the duty of the commission to supervise and inspect all such stations and to revoke any permit when it is found the station is not properly equipped or conducted. Said Section 133, in sub-paragraph (d) provides: "(d) However, be it further provided when a municipality installs and operates an inspection station conforming to the standards set up by the commission, and approved by the commission, then no other inspection stations shall be issued a permit to make official inspections in that municipality however, be it further provided that the fee charged by said municipality, for said service, shall be approved by the commission." Certainly, the Legislature, in enacting the statute above quoted, believed the municipalities had the right to own and operate inspection stations for by such enactment there was a legislative recognition and interpretation of the meaning of the act as not cutting down the power theretofore had by municipalities.
It cannot be said, without imputing to the Legislature the doing of a vain and futile thing, that the municipality did not have the authority to install and operate an inspection station. The truth is that municipally operated inspection stations were so favored by the Legislature that it provided that a permit for no other station in the municipality should be issued if the municipality was willing to, and did, install and operate a station.
The mayor and board of aldermen of Water Valley, Mississippi, entered into a contract to purchase certain equipment to establish an automobile testing station, under chapter 200, Laws of 1938. The contract, omitting the signatures, reads as follows:
"Whereas, there was by the Mayor and Board of Aldermen of the City of Water Valley, Mississippi, on August 31, 1938, an order adopted accepting the bid of Judge's Auto Supply for certain equipment necessary to the installation and operation of an automobile testing station under the 1938 Laws; Whereas, that said order provided for the payment of money in the sum of $500 upon the execution of a contract by and between the City of Water Valley of the first part and Judge's Auto Supply of the second part, and this contract has been authorized by the Mayor and Board of Aldermen of said City, by order entered at its regular October, 1938 meeting: Now, therefore, for and in consideration of the sum of Seventeen Hundred Dollars, of which $500.00 are cash in hand paid, receipt of which is hereby acknowledged, the remaining $1,200, together with all charges, to be paid in equal monthly sums of $100.00 each and charges, the second party hereby sells, conveys, and delivers unto first party that certain equipment, pursuant to its bid, described as follows, to-wit:
WY40 Brake Tester with DeLuxe Tower ................... $1,125.00 WJ20 Alignment Indicator .............................. 395.00 WJ15 Head Light Tester ................................ 175.00 WA73 Hydraulic Jack ................................... 59.00 __________ $1,754.00 Less Discount of .................................... 54.00 Total ........................................... $1,700.00
"And first party does buy for the named price the described equipment, and agrees to the terms of the payments mentioned herein."
The amount named in the contract to be paid in cash was $500, and $1,200 to be paid in monthly installments of $100 each. J.L. Davenport filed a written request with the city authorities, to bring a suit to test the legality of this contract, and to recover the $500 paid to Judge. The city refused to bring such suit, and Davenport then applied to the state tax collector to bring a suit, and he likewise refused. Thereupon Davenport filed a bill for an injunction, in which he requested other taxpayers of the municipality to join for the purpose of preventing the consummation of the said contract, on the ground that the city had no authority to engage in the business of testing cars and equipment under the state law; and consequently no authority to purchase the equipment mentioned in the contract.
On the hearing the Chancellor dismissed the bill, and appeal was allowed here.
The statutes which are cited by the respective parties, as to the construction of which the parties differ, are sections 2391 and 2406, Code of 1930, and sections 25, 26 and 133 of chapter 200, Laws of 1938. Section 2391, Code of 1930, is the section which seems to give to municipalities of every class, first, the power to sue and be sued; second, to purchase and hold real estate and personal property, to purchase and hold real estate within the corporate limits for all proper municipal purposes, and for parks, cemeteries, hospitals, schoolhouses, houses of correction, waterworks, electric lights, and sewers; third, to sell and convey any real and personal estate owned by it, and make such order respecting the same as may be deemed conducive to the interest of the municipality, and to exercise jurisdiction over the same; fourth, to make all contracts and to do all other acts in relation to the property and concerns of the municipality necessary to the exercise of its corporate or administrative powers; and fifth, "to exercise such other or further powers as are herein conferred."
The section, in our opinion, does not authorize the city to engage in the business of testing cars, under the requirements of chapter 200, Laws of 1938. The rule of construction is that municipalities have only such powers as are expressly granted by statute, and such powers as are necessary and appropriate to the exercise of those powers granted by statute. The business here involved is not necessarily incident to one of the powers granted in this statute; neither does it specifically grant the city authority to engage in the particular business mentioned. The property and funds of the municipality, unless expressly otherwise provided, are to be used in the furtherance of its governmental functions, and it is not authorized to engage in private business unless such authority be found in a grant by the statute to the municipality.
The powers herein mentioned appertain, under the statute, to each city, town or village, and it is clear to our minds that it was not the legislative intent to authorize towns and villages to go into private business any further than as authorized by clear warrant of legislative authority.
Section 2406, Code of 1930, reads as follows: "To make all needful police regulations necessary for the preservation of good order and peace of the municipality and to prevent injury to, destruction of, or interference with public or private property; to regulate or prohibit any mill, laundry or manufacturing plant from so operating whereby the soot, cinders or smoke therefrom, or the unnecessary noises thereof, may do damage to or interfere with the use or occupation of public or private property; and to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the state."
The powers herein conferred are the powers to make needful police regulations necessary for the good order and peace of the municipality, and to prevent injury to, or destruction of or interference with public or private property. These are police regulations, designed to control such matters, and do not grant authority to enter into the business which commonly is, and may be, performed by private enterprise.
We have gone through the Code chapter on municipalities, both those under what is known as the aldermanic system, and those under the commission form of government, and fail to find therein any specific power granted to municipalities of any class to engage in this kind of enterprise, although, owing to the nature of the subject to be regulated, affecting the public, it might be competent for the legislature to confer the power necessary to ownership, and operation of such a business. The statutes referred to seem to us only to justify making rules, laws or regulations for the control of business owned and operated by private persons, to secure the safety of the public — not to authorize the municipality itself to enter into the business of testing and inspecting cars, under the law.
We have another class of municipalities, known as special charter municipalities, each having a special legislative charter, which charters may be amended under statutory shemes or by the legislature itself; and it may be that such municipalities have special charter provisions, authorizing them to engage in such business. But there is nothing in the record here to show that the city of Water Valley was so authorized; and the argument proceeds on the idea that it is an ordinary code chapter municipality of the aldermanic form of government.
Section 133, paragraph (d) of chapter 200, Laws of 1938, seems to recognize that some municipalities either have, or may be given, power to operate a business of this kind, but the section itself does not grant such power. It reads: "However, be it further provided when a municipality installs and operates an inspection station, conforming to the standards set up by the commission, and approved by the commission, then no other inspection stations shall be issued a permit to make official inspections in that municipality however, be it further provided that the fee charged by said municipality, for said service, shall be approved by the commission."
The other provisions to which attention is called is section 25 of chapter 200, Laws of 1938, which reads as follows: "The provisions of this act shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this act."
Section 26 of this chapter reads as follows: "(a) The provisions of this act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from — 1. Regulating the standing or parking of vehicles; 2. Regulating traffic by means of police officers or traffic control signals; 3. Regulating or prohibiting processions or assemblages on the highways; 4. Designating particular highways as one-way highways and requiring that all vehicles thereon be moved in one specific direction; 5. Regulating the speed of vehicles in public parks; 6. Designating any highway as a through highway and requiring that all vehicles stop before entering or crossing the same or designating any intersection as a stop intersection and requiring all vehicles to stop at one or more entrances to such intersections; 7. Restricting the use of highways as authorized in article XVI of this act. (b) No ordinance or regulation enacted under subdivisions 4, 5, 6, or 7 of this section shall be effective until signs giving notice of such local traffic regulations are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate."
After considering the several sections, and making such investigations as above mentioned in the statutes, we are unable to reach the conclusion that the city is authorized to engage in the business of testing cars, and consequently that it had no authority to make the contract in connection with which this suit is brought.
The questions involved were raised by demurrer to the bill, leave was granted to the appellant to amend the bill, which was declined, and an appeal to this Court was granted.
The judgment will be reversed and the cause remanded, with leave to the city to answer the bill.
Reversed and remanded.