Opinion
No. 30705.
May 29, 1933.
1. MUNICIPAL CORPORATIONS.
Year within which municipal bonds might be issued after favorable determination of litigation did not begin to run until issuance of mandate fifteen days after supreme court's decision, which was time allowed for filing of suggestion of error (Code 1930, section 2491; Supreme Court Rule No. 14).
2. BILLS AND NOTES. Bonds. Ordinarily, a bill, note, or bond is not "issued" until delivered to purchaser or otherwise put into circulation ( Code 1930, section 2847).
The term "issue" has various meanings, depending on the subject-matter of the writing or discourse, or upon the context, or both, and context should always be considered in reaching interpretation of "issue" in a given case.
3. MUNICIPAL CORPORATIONS.
Purpose of statute providing for issuance of municipal bonds within one year was to prevent issuance after reason which prompted electorate to assent thereto had disappeared (Code 1930, section 2491).
4. MUNICIPAL CORPORATIONS.
Where contracts for sale of municipal bonds were made within year after favorable determination of litigation, there was an "issue" of the bonds within the year, though mechanical and ministerial work of printing, signing, and delivering the bonds remained to be done after expiration of the year (Code 1930, section 2491).
APPEAL from Chancery Court of Yazoo County.
H.M. Love, Jr., of Yazoo City, for appellant.
In the court below the chancellor held, and we believe rightly, that the bonds not only were not issued during the year following the determination of the favorable litigation, but had never, up to the date of his decision, been issued. These bonds are negotiable coupon bonds and must be governed by the negotiable instruments law of this state.
Issue means the first delivery of the instrument, complete in form, to a person who takes it as holder.
Section 2847 of the Mississippi Code of 1930.
The bonds in question have never been delivered to the Delta National Bank, and for that reason cannot be said to have been issued.
Brownell v. Town of Greenwich, 22 N.E. 24.
The term "issue" as used in the negotiable instruments law, means the first delivery of the instrument, complete in form, to a person who takes it as a holder.
Words Phrases, page 3738; 44 Corpus Juris, page 1224, sec. 4202.
Since the bonds have never been delivered to the Delta National Bank, they have never been issued, and we submit that the chancellor was correct in his holding.
State v. Pierce, 52 Kan. 521, 35 P. 19.
Under chapter 26, Laws of 1920, and section 2491 of the Mississippi Code of 1930, the board of mayor and aldermen have no right to issue bonds after one year has elapsed from the final favorable determination of any litigation affecting such bonds. The word "may" is used in this statute and the court below held that this word must be construed as "shall," that the word "may" when used in a statute that affected the public interest is mandatory.
59 C.J. 1082, sec. 635.
The word "may" in a statute will be construed to mean "shall" whenever the rights of the public or third person depend on the exercise of the power of the performance of the duty to which it refers, and such is its meaning in all cases where the public interests and rights are concerned, or a duty is imposed on public officers, and the public or third persons have a claim de jure that the power shall be exercised.
Words Phrases, pages 4421-4422; People ex rel. Brokaw v. Commissioners of Highways, 6 L.R.A. 161.
The court below, while holding that the word "may" was mandatory, construed it to make the statute in question mean that the board of mayor and aldermen must issue the bonds, that they might issue them within one year if they saw fit, but if not issued within that time, they must issue them later. We submit that this is the wrong construction to place on the statute. The correct construction, as we see it, construing the word "may" as mandatory, is that the board of mayor and aldermen must issue the bonds within one year after the final favorable determination of any litigation. The statute is not mandatory that they issue the bonds, but if they do issue the bonds, then it is mandatory that they do so in the time prescribed.
Our statutes, and particularly section 2488 of the Mississippi Code of 1930, read with chapter 206 of the Laws of 1920, give the board of mayor and aldermen the power to issue municipal bonds.
The power is vested in the board, and they may issue the bonds only in accordance with section 2488 of said code.
J.G. Holmes, of Yazoo City, for appellee.
It is admitted that the bonds in question have been held valid by this honorable court in the previous case of Love v. Board of Mayor and Aldermen, 138 So. 600. That decision adjudicating the legality of the bonds was rendered on January 11, 1932, and the time for filing a suggestion of error did not expire until January 26, 1932. Although the city, with the approval of the public was desirous of selling the bonds and applying the proceeds to the purposes for which the bonds were ordered issued, no sale of the bonds, because of the condition of the bond market, could be made until January 25, 1933, when at a legal meeting of the city council the bonds were sold locally to the Delta National Bank, and were ordered printed, executed and delivered to the bank pursuant to such sale.
It will be observed, therefore, that there is no question here as to the original legality of the bond issue. The only question here involved is whether or not the city on January 25, 1933, the date of the sale of the bonds to the Delta National Bank, had the power and authority to then sell the same, and to have the same printed, executed and delivered pursuant to said sale.
It is our contention, that the bonds were issued within the contemplation of section 2491 of the Code of 1930 within one year after the final favorable determination of the litigation affecting the bonds. The judgment of the supreme court rendered in the case of Love v. Board of Mayor and Aldermen, 138 So. 600, was rendered on January 11, 1932. The appellant in that case had fifteen days thereafter in which to file a suggestion of error, thus having until January 26, 1932, in which to file a suggestion of error. The original bill in the case at bar alleges that while no suggestion of error was filed, the right to file such suggestion or error was at no time waived throughout the period of fifteen days allowed therefor.
Railroad Company v. Odneal, 74 Miss. 827; Yazoo Mississippi Valley Railroad Company v. Neal, 47 So. 673.
Certainly, the rights of the successful party during the period of fifteen days allowed for the filing of a suggestion of error were suspended because at any time during that period the cause was subject to be re-opened on a suggestion of error. Certainly, therefore, if the case might have been re-opened during that period on a suggestion of error and the rights of the successful party during that period was suspended, the litigation could not be said to have terminated until after the expiration of the period, which was on January 26, 1932. The bonds in the case at bar, however, were sold and ordered issued and delivered within that period, to-wit, on January 25, 1933, which date, it is respectfully submitted, was within one year after the final favorable termination of the litigation involving the bonds.
As a second ground for the affirmance of the decree of the court below it is respectfully submitted that the limitation of one year provided in section 2491 of the Code of 1930 is not a limitation upon the governing authorities to issue the bonds, but is a fixed period during which they may issue the bonds in their discretion, but does not deny to them the right to issue the bonds after the expiration of that period.
Chickaming v. Carpenter, 106 U.S. 667.
The period named in the statute gives the governing authorities one year within which they may delay the issuance of the bonds, but there is nothing in the statute to imply that if they do not issue the same within such period of one year they are without right to issue the bonds after the expiration of that period.
The authorities are uniform in construing the word "may" as imperative or mandatory in statutes of this character.
26 Cyc., p. 1591; 5 Words and Phrases, pp. 4421, 4422.
Where a statute directs the doing of a thing for the sake of justice, the word "may" means the same as the word "shall."
McRaven v. McGuire, 9 Smedes M. (Miss.) 34; People ex rel. Conway v. Supervisors, 68 N.Y. 119; People ex rel. Brokaw v. Commissioners of Highways, 6 L.R.A. 161; Rock Island Co. v. United States, 71 U.S. 435, 18 L.Ed. 419.
Section 2491 of the Mississippi Code of 1930 in providing that the board of aldermen, or commissioners, may issue such said bonds within one year, confers a power on a public officer for public purposes and in the exercise of such power, the public interest and rights are concerned. In addition, a positive duty is imposed upon said board of mayor and aldermen to exercise the right imposed upon them by the mandate of the people, as expressed in the election, and to exercise the power imposed upon them by the statute.
Chickaming v. Carpenter, 106 U.S. 667, 27 L.Ed. 307.
This is an appeal from a decree dismissing an original bill and dissolving a preliminary injunction restraining the appellees from issuing bonds of the City of Yazoo. The city obtained the assent of the electors to the issuance of street paving bonds in an election ordered for that purpose, but was enjoined from issuing them at the suit of the appellant. This injunction was dismissed, as was also the bill of complaint, by the court below on the 27th day of December, 1930, and its decree so doing was affirmed on appeal to this court on January 11, 1932. Love v. Mayor Board of Aldermen of Yazoo City, 162 Miss. 65, 138 So. 600.
The city thereafter offered the bonds for sale, but was unable to obtain a purchaser therefor until the 25th day of January, 1933, when it accepted an offer therefor by the Delta National Bank of Yazoo City by resolution entered on its minutes accepting the offer and directing the delivery of the bonds. The year expired before the bonds could be executed and delivered, and the injunction here under consideration restraining their delivery was sued out.
Section 2491, Code 1930, provides that "should the election," for determining whether or not bonds should be issued, result "in favor of the proposed bond issue . . . the mayor and board of aldermen or commissioners may issue such said bonds, either in whole or in part, within one year after the date of such election or within one year after final favorable determination of any litigation affecting such bonds as they deem best."
The appellant asserts that the city has lost the power to issue the bonds for the reason that they were not issued within one year after January 11, 1932, the date of the rendition by this court of the judgment ending the litigation then pending affecting the issuance of the bonds. In support of which he says, first, the one year in which the bonds could be issued commenced on January 11, 1932, and therefore had expired when the city accepted the offer of the purchaser of the bonds. The statute clearly contemplates that the mayor and board of aldermen shall have a full year in which to issue the bonds. Rule 14 of this court provides that "the losing party may within fifteen days after a judgment is rendered in this court file a written suggestion of error of law or fact therein, and the court will take such action thereon as it may deem proper." Under this rule a mandate does not issue to the lower court until the expiration of the fifteen days, and, if a suggestion of error is filed, not until it is disposed of. During this time the successful party to the judgment probably may, as to which we express no opinion, but cannot safely, proceed to act thereunder, for the reason that the suggestion of error may be sustained and the judgment set aside or modified. Compare Raleigh State Bank v. Williams, 150 Miss. 766, 117 So. 365; Davenport v. State, 143 Miss. 765, 109 So. 789; and Yazoo Miss. Valley R. Co. v. Neal, 93 Miss. 680, 47 So. 673. The one year within which the mayor and board of aldermen had to sell these bonds should, therefore, be held not to have commenced until the expiration of fifteen days from January 11, 1932.
The appellant also says that the bonds, nevertheless, were not issued within the one year, for a bond is not issued within the meaning of the statute until it has been delivered to the purchaser or otherwise put into circulation. This is ordinarily true under the general law of negotiable instruments, and the Negotiable Instrument Law expressly so provides, section 2847, Code 1930; but "the term 'issue' has various meanings, depending on the subject matter of the writing or discourse, or upon the context, or both. Its context should always be considered in reaching its interpretation in a given case." 33 C.J. p. 817.
The evident purpose which the Legislature sought to accomplish by providing that the bonds should be issued within one year after the mayor and board of aldermen had been given the right so to do was to prevent an undue delay in the issuance of the bonds, resulting in their being issued after the reason which prompted the electorate to assent thereto had disappeared. The requirement, therefore, is that the board of aldermen shall act on the permission given for the issuance of the bonds within one year. When the mayor and board act on the permission given to issue bonds by making a contract with the purchaser therefor with nothing remaining to be done except to deliver the bonds, the purpose of the Legislature has been accomplished, and the mere mechanical and ministerial work of printing, signing, and delivering the bonds after the expiration of the one year does no violence to the legislative purpose, provided, of course, that no undue delay is indulged therein. The contract for the sale of these bonds was made within one year from January 26, 1932; consequently, the injunction restraining their delivery was wrongfully sued out.
Affirmed.