Opinion
No. 29764.
November 16, 1931.
1. ELECTIONS.
Provision for election in December next after adoption of commission form of government, and every four years thereafter, held applicable only to municipalities adopting commission form after Code became effective (Code 1930, sections 2628, 2629, 2645).
2. ELECTIONS.
Provision for election in 1932, and every four years thereafter, held applicable to municipalities which had adopted commission form of government before Code became effective (Code 1930, sections 2597, 2656).
3. STATUTES.
Proviso affecting single section is effective as part thereof, though it appears elsewhere in statute.
4. STATUTES.
Constitutional provision prohibiting amendment by reference to title only held inapplicable to adoption of Code of previous laws (Constitution 1890, sections 61, 71).
APPEAL from circuit court of Hancock county. HON. A.A. WHITE, Judge.
Gardner Backstrom, of Gulfport, for appellant.
When the chapter on municipalities in the present Code was adopted there existed four different kinds of corporations in reference not only to their method of being incorporated but as to their method of operation, to-wit:
(a) The original legislative chartered municipalities.
(b) The municipalities whose creation was provided for and known as Code municipalities as provided for in Chapter 50 of the Code.
(c) Municipalities adopting the commission form of government as provided by chapter 108 of the Laws of 1908, and
(d) Municipalities operating under chapter 120 of the Laws of 1912.
The municipality of Bay St. Louis having adopted chapter 120 of the Laws of 1912 was entitled to every benefit and right therein provided. When its people adopted this chapter it was held out to them that there should be an election every four years and the officers that they elected in 1927 should go out in 1931.
Where a municipality adopts the commission form of government an election shall be held on the second Tuesday in December next after the adoption of said form of government.
Sec. 262 of Code of 1930.
Such election shall be held every four years on the second Tuesday of December.
Sec. 2629, Code of 1930.
No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length.
Sec. 61, Const. of 1890.
Every bill introduced into the Legislature shall have a title, and the title ought to indicate clearly the subject-matter or matters of the proposed legislation.
Sec. 71, Const. of 1890.
Although in order to amend any statute it is not necessary to identify the particular statute sought to be amended by reference thereto in the title of the amendatory act, yet if the title undertakes to state what statutes are dealt with therein, the amendment is limited to the particular statutes set out in the title to the amendatory act.
Board of Levee Commissions Yazoo Mississippi Delta v. Royal Insurance Company, 96 Miss. 832.
Where any act undertakes to amend, repeal or modify any existing statute merely by reference to the number of the section setting out such statute, and failed to particularly mention that section in the title to the amendatory act, then so far as that particular section is concerned the amendatory act was without any title whatever, and so violative of section 71 of the Constitution of 1890.
Jackson v. State, 102 Miss. 663.
A code is a compilation or codification of laws previously passed by the Legislature. The law must needs have first been introduced into the Legislature and passed by that body before it can be placed in the Code. Under the Constitution, the Legislature alone is vested with the sole power to enact legislation. It cannot delegate this authority to the code commission, or to any other body. It therefore follows that section 2656 of the Code must needs have been at some time introduced into the Legislature and passed by that body.
It it was necessary that this section be introduced into and passed by the Legislature of Mississippi, then under section 71 of the Constitution, it is necessary that it should have had a title at the time it was so introduced and passed.
Whether or not it is necessary that a code section have a title, it is necessary that the code section must have, at some time, had a title or it has no warrant for being embodied in the Code.
It is a cardinal rule of construction that in construing a statute the court will consider the whole statute and try thereby to arrive at the legislative intent. Another cardinal rule of construction is that when two statutes seemingly conflict, the court will, if possible, give each statute such a construction that will preserve both statutes. The court will harmonize the two, if this be possible, to the end that either statute will fail.
The rule is that a statute will not be construed so as to extend or diminish a term of office, unless the intention of the Legislature to do so is clearly apparent.
The conflict between the statute in this case is a conflict between sections 2628 and 2629 on the one hand, and section 2656 on the other.
Robt. L. Genin, of Bay St. Louis, for appellees.
Section 2645, Code of 1930, was part of the Acts of 1912.
Section 2656, Code of 1930, was adopted with the Code of 1930.
It is a fundamental proposition of law that when two statutes effect or touch on the same subject-matter the courts must, if possible, construe them so that both may stand and serve their intended purposes. These two statutes are susceptible of being construed together and serve a purpose intended by the Legislature.
The Legislature had the power to lengthen or shorten the term of municipal officers, W.J. Kendal, v. City of Canton, 53 Miss. 526.
By providing for general elections, it was meant that it should not only be general as to all officers whose terms had expired, but that it should be general throughout the state.
Smith et al. v. Halfacre, 6 Howard 601.
Two statutes seemingly repugnant must be construed if possible, that the latter shall not repeal the former, but that both may stand; but where there is a repugnance, the older statute is repealed by implication only to the extent of the repugnancy.
Ascher Baxter v. Ed. Moyse Co., 57 So. 301.
Section 61, Constitution of 1890, has no application to adopting a code or parts of one.
Hunt v. Might, 70 Miss. 306.
Such constitutional provision (61) has no application to amendments by implication and furthermore, has no application to a statute which, although amendatory of a former statute is complete within itself.
Hart v. Backstrom, 113 So. 901.
Section 71, Constitution 1890, providing that the title of a statute ought to indicate clearly its subject-matter leaves to the Legislature the sufficiency of the title of an act; the word "ought" in such sections being used in an admonitory or advisory sense.
Jackson v. State, 102 Miss. 663, 59 So. 873; Ann. Cases 1915A. 1213; State v. Phillips, 109 Miss. 22, 67 So. 651; Rosenstock v. Washington County, 112 Miss. 124, 72 So. 876; Lang v. Harrison County, 114 Miss. 341, 75 So. 126.
No objection under the Constitution lies to the sufficiency of the title of an act.
Bryan v. Greenwood, 112 Miss. 718, 73 So. 728.
Argued orally by Oscar Backstrom, for appellant, and by Robt. L. Genin, for appellee.
The state, on the relation of a district attorney, filed a petition in the court below, praying for a writ of mandamus commanding the election commissioners of the city of Bay St. Louis to hold an election for mayor and councilmen of the city on the second Tuesday of December, 1931. The court below refused to grant the writ.
The jurisdiction of the court below is not challenged, nor is any objection made by counsel for appellees that the petition was prematurely filed (State v. Board of Supervisors of Coahoma County, 64 Miss. 358, 1 So. 501); the appellees having stated in writing that they did not intend to hold an election for mayor and councilmen in the city of Bay St. Louis during the year 1931.
The only question submitted for decision by counsel, and the one to which this opinion will be confined, is whether an election for mayor and councilmen should be held in the city of Bay St. Louis on the second Tuesday in December, 1931.
In 1927 the city adopted the commission form of government provided by chapter 120, Laws of 1912; held an election for its mayor and councilmen on the second Tuesday of December of that year; and the officers then elected entered upon the discharge of their duties on the first Monday in January thereafter, as provided by sections 3 and 4 of chapter 120, Laws of 1912. That statute was brought forward into the Code of 1930 in the chapter on municipalities as sections 2626 to 2655, inclusive. Sections 3 and 4 of the original statute appear as sections 2628 and 2629 of the Code of 1930. Section 3 of the original statute, section 2628, Code of 1930 provides for the election of a mayor and councilmen on the second Tuesday in December next after the adoption by a municipality of the commission form of government. Section 4 of the original statute provides that: "In every city operating under the provisions of this act, there shall be elected at the election provided for in section 3 of this act, and at an election, to be held every four years thereafter on the second Tuesday of December, a mayor and two councilmen; said officers shall be nominated and elected at large, and they shall qualify and their terms of office shall begin on the first Monday in January next after their election."
This section was amended by chapter 199, Laws of 1924, to read as it now appears in section 2629, Code of 1930, which is: "In every city operated under the commission form of government, there shall be elected at the election provided for in the preceding section, and at an election to be held every four years thereafter on the first Tuesday of August, and in all municipalities of less than eighteen thousand inhabitants, according to the last preceding federal census, on the second Tuesday of December, a mayor and two councilmen; said officers shall be nominated and elected at large, and they shall qualify and their terms of office shall begin on the first Monday in January, next, after their election."
The last federal census discloses that the city of Bay St. Louis has less than eighteen thousand inhabitants.
Section 23 of the original statute, section 2645, Code of 1930, provides that: "The mayor and councilmen elected, shall each hold office for a term of four years and until their successors are elected and qualified."
Under section 2629, Code of 1930, an election must be held in the city of Bay St. Louis for mayor and councilmen on the second Tuesday of December, 1931, unless another date therefor has been fixed by the second proviso of section 2656, Code of 1930. That section reads as follows: "Commission Form Laws 1908, Not Repealed. — Provided, however, that nothing in this chapter shall be construed in any way to effect, alter or modify the existence of the municipalities now operating under chapter 108 of the laws of 1908. Such municipalities shall continue to enjoy the form of government now enjoyed by them and each shall be possessed of all rights, powers, privileges and immunities granted and conferred by chapter 108, of the laws of 1908; provided further that the mayors and commissioners of all municipalities now operating under chapter 108 of the laws of 1908, and chapter 120 of the laws of 1912, elected on the second Tuesday of December, 1928, under chapter 73, laws 1928, extraordinary session, shall hold their offices for a term of four years from the first Monday of January, 1929, and until their successors are duly elected and qualified, and provided further that a general municipal election shall be held in each municipality now operating under chapter 108 of the laws of 1908, and chapter 120 of the laws of 1912, on the second Tuesday of December, 1932, and every four years thereafter for the election of all municipal officers elected by the people under said chapter 108 of the laws of 1908, and chapter 120 of the laws of 1912. The officers shall qualify and enter upon the discharge of their duties on the first Monday of January after such general election, and shall hold their offices for four years and until their successors are duly elected and qualified."
This section, as appears from the records of the secretary of state's office, was not in the revision of the Code of 1930 submitted to the Legislature by the code commissioners, but was added by the Legislature; one reason therefor evidently being a desire to enable municipalities then operating under chapter 108, Laws 1908, to continue so to do; no provision therefor being made in any other sections of the Code.
The appellant's contentions are: First. The Legislature, by enacting section 2656, did not intend to repeal, and the section cannot have the effect of repealing, section 2629, Code of 1930, formerly section 4, chapter 120, Laws of 1912; and second, if such was the legislative intent, section 2656 violates sections 61 and 71 of the state Constitution.
It will be observed that section 2656 contains three provisos, but the last only applies here, and it, being separable from the others and complete in itself, will be the only one considered.
In so far as this proviso deals with chapter 120, Laws of 1912, it affects only sections 4 and 23 thereof, now sections 2629 and 2645, Code of 1930, the first directly and the second incidentally.
Wherever a proviso affects only one section of a statute, the usual and ordinary way is for it to be embraced therein, or to immediately follow it, but, of course, such a proviso has the same effect, though appearing in another part of the statute. Section 2629, therefore, because of this proviso, must be construed as if it read: "Section 2629. In every city operated under the commission form of government, there shall be elected at the election provided for in the preceding section, and at an election to be held every four years thereafter, on the first Tuesday of August, and in all municipalities of less than 18,000 inhabitants, according to the last preceding federal census, on the second Tuesday of December, a mayor and two councilmen; provided that a general municipal election shall be held in each municipality now operating under chapter 120, Laws of 1912, on the second Tuesday in December, 1932, and every four years thereafter for the election of all municipal officers elected by the people under said chapter 120, Laws of 1912," etc.
We are confronted, then, not with two conflicting sections, covering the same subject-matter, but with a section that is restrained and modified by a subsequent proviso, so to do being one of the usual and legitimate purposes of provisos. 36 Cyc. 1161. The language of the proviso is unambiguous, and its plain effect is to limit the requirements of section 2629 that there shall be "elected at the election provided for in the preceding section, and at an election to be held every four years thereafter, on the first Tuesday of August, and in all municipalities of less than eighteen thousand inhabitants, according to the last preceding federal census, on the second Tuesday of December, a mayor and two councilmen," to municipalities adopting the commission form of government after the Code became effective, and to require a mayor and two councilmen to be elected in municipalities which had theretofore adopted the commission form of government on the second Tuesday in December, 1932, and every four years thereafter.
It may be true, as pointed out by counsel for the appellant, that this requirement of the proviso will have the effect of extending the terms of the mayor and councilmen of some municipalities, and of shortening the terms of the mayor and councilmen of other municipalities. The term of office of the mayor and councilmen of Bay St. Louis will be extended one year thereby. But that cannot be taken into consideration, in the absence of any ambiguity in the language of the proviso. Fixing a uniform date for the election of municipal officers, in so far as so to do was deemed expedient, is in accord with the legislative policy, evidenced by section 3030, Code of 1892, now section 2597, Code of 1930, and chapter 73, Laws of 1928, Extraordinary Session.
This brings us to the appellee's contention that section 2656, Code of 1930, violates sections 61 and 71 of the state Constitution, which provide that (61): "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length;" and (71) "every bill introduced into the Legislature shall have a title, and the title ought to indicate clearly the subject-matter or matters of the proposed legislation."
Confining ourselves to the second proviso of section 2656, which, in so far as it affects chapter 120, Laws of 1912, as hereinbefore stated, is separable from the other provisions of the statute and complete within itself, it will be sufficient to say that these sections of the Constitution have no application to the adoption of a partial or complete Code of previous laws. Hunt v. Wright, 70 Miss. 298, 11 So. 608.
Affirmed.