Opinion
No. 38673.
February 16, 1953.
1. Parties — taxpayer's suit, when not maintainable.
A municipal taxpayer's suit not filed on behalf of other such taxpayers and in which they are not invited to join, is not maintainable.
Headnote as approved by Roberds, P.J.
APPEAL from the chancery court of Simpson County; NEVILLE PATTERSON, Chancellor.
J.P. Edwards, for appellants.
Geo. B. Grubbs, for appellees.
Can complainants, appellants herein, maintain their bill in the form presented? Appellees contend that they cannot for the reason that this is a taxpayer's suit. The appellants base their right to sue solely on the ground that they are citizens and taxpayers of the Town of Mendenhall and irreparable injury to them as such taxpayers. They do not sue for and on behalf of the other taxpayers of the municipality, nor do they invite any aggrieved or disgruntled taxpayers or citizens to join them in this litigation. If appellants can maintain the bill based solely upon their individual rights, then each and every other taxpayer of the Town of Mendenhall can do the same thing. We call attention to the fact that even though there is more than one complainant, yet, no mention is made in the bill of complaint to invite other aggrieved or disgruntled taxpayers to join them in the litigation. These ten appellants' rights are identical to, and no greater than, that of hundreds of other taxpayers of the Town of Mendenhall. As this Court stated in the case of Gaudet v. Mayor and Board of Aldermen of Natchez, 46 So.2d 79 (which case is identical to the one at Bar) wherein Mrs. Gaudet sought similar relief on a contract entered into by the governing authorities of the city of Natchez and other parties, the Court said: "If she can maintain the bill based solely upon her individual rights, then each of the other taxpayers of the city can do the same thing. That would mean endless litigation; utter stalemate of official functions, and great expenditure of public funds in defending litigation. That would be an intolerable situation. American Oil Co. v. Interstate Wholesale Gro. Co., 138 Miss. 801, 104 So. 775; Mississippi Road Supply Co. v. Hester, 185 Miss. 839, 188 So. 281, 124 A.L.R. 574. The case of Town of Clarksdale v. Broaddus, 77 Miss. 667, 28 So. 954, is not to the contrary."
J.P. Edwards, in reply.
We respectfully call the attention of the Court to the fact that this suit is to enjoin the mayor and board of aldermen from misappropriating the funds of the municipality by granting salary raises to themselves in direct contravention of the laws made to govern such action. The suit is joined in by many citizens and taxpayers of the municipality and is not governed in any respect by the authorities cited by appellees.
The right of a taxpayer to bring such a suit without the consent of the Attorney General or the District Attorney is upheld by the case styled, Board of Supervisors of Simpson County v. T.J. Buckley, et al., 81 Miss. 474, 33 So. 650, and 85 Miss. 713, 38 So. 104.
The chancellor sustained a general demurrer to the bill filed herein, and complainants appeal.
It is contended by appellees that this is a taxpayer's suit and it cannot be maintained because it is not filed on behalf of the other taxpayers of the municipality nor are they invited to join in the suit. The contention is well taken. The demurrer was correctly sustained on that ground. Gaudet v. Mayor and Board of Aldermen of Natchez, 209 Miss. 113, 46 So.2d 79; Tucker v. Daniels, (Miss.), 50 So.2d 896.
It is alleged in the bill that the mayor and aldermen of the municipality of Mendenhall, after their election and installation, accepted for a period of one year the same compensation which theretofore had been lawfully fixed and paid to their predecessors, and that then the defendant officials undertook, without an election and without legal power, to raise the salary of the mayor from $50.00 to $220.00 per month and that of the aldermen from $5.00 to $10.00 per month, and had unlawfully paid to themselves the increased compensation. The bill seeks to recover the amounts so illegally received by said officials and enjoin them from paying themselves the increased amounts in the future. Appellees say they had the power and authority to increase their own compensation in the manner and under the circumstances above set out. We do not now pass upon that question because of the uncertainties in the bill. For instance, it is not shown whether Mendenhall operates under the code chapter, commission form of government, or a special charter, nor is it stated when or how or by what authority the former salaries were fixed or who established them, or under what authority the present officials purported to act. The cause is affirmed and remanded on the first contention above stated, and it may be that the facts underlying the second question can be more definitely shown, so that the trial court, and this Court, in case of appeal, may have greater assurance of the accuracy of conclusions on the second proposition.
Affirmed and remanded.
Hall, Kyle, Holmes and Lotterhos, JJ., concur.