Opinion
No. 32114.
February 24, 1936.
1. QUO WARRANTO.
Proceeding to try right to office of councilman instituted in name of state on relation of claimant is in the nature of a private action, in which claimant must succeed on strength of his own claim (Code 1930, sections 3053, 3054; section 2629, as amended by Laws 1932, chapter 219, section 1).
2. CONSTITUTIONAL LAW. Whether an "emergency" exists justifying an appointment by Governor to vacant office is reviewable by courts ( Const. 1890, section 103).
An "emergency" is an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy; a pressing necessity.
3. MUNICIPAL CORPORATIONS.
Where city councilman's term expired two days after resignation and remaining city officers constituted a quorum for transaction of municipal affairs, vacancy caused by resignation of councilman was not such an "emergency" as to justify an appointment by Governor on failure of remaining city officers to name a successor (Code 1930, sections 3053, 3054; section 2629, as amended by Laws 1932, chapter 219, section 1: Const. 1890, section 103).
APPEAL from circuit court of Harrison county. HON.W.A. WHITE, Judge.
Bidwell Adam, of Gulfport, for appellant.
In dealing with the demurrer for the defendant in this case we must keep in mind that this is a proceeding brought to try the right to a public office. The foundation for such a proceeding dates back as far as 1880.
Section 2587, Code of 1880; Section 3522, Code of 1892; Section 4019, Code of 1906; Section 3014, Code of 1917; Section 3055, Code of 1930.
In support of our contention that it is not at all necessary to secure or obtain the permission of the attorney general or the district attorney to file such a proceeding by one desiring to try the right to an office, we respectfully direct the attention of the court to a ruling of our Supreme Court on this identical proposition.
State ex rel. Surrat v. Morgan, 80 Miss. 372, 31 So. 789.
In the case of Berry v. Berry, 144 So. 695, the court holds that the office incumbent holds over under statutory authority until his successor is qualified, and that where an elected justice of the peace failed to qualify the incumbent was authorized to hold over until there was an election and the qualification of his successor. It is our contention on this identical point that the appellee Tucei never qualified according to law. In order to qualify he had to pay all taxes legally required of him, as set out under section 250 of the Constitution of the State of Mississippi, and section 45. In further support of our contention, this court held in the case of Wylie v. Cade, the latest authority in the State of Mississippi, 164 So. 579, that where one was not a qualified elector he was not qualified to hold office, that he did not have a right to be a candidate, and had no substantial right to complain in any court.
In support of our contention that there was a vacancy and an emergency which justified an appointment by the governor, we respectfully call the attention of the court to the decision of our Supreme Court in the case of State ex rel. Baker v. Nichols, 63 So. 1025, clearly holding the right of the governor of the state under section 103 of the Constitution to make such appointments.
Andrews v. State ex rel. Covington, 69 Miss. 740, 13 So. 858.
Since it is admitted by the demurrer to the amended petition that Tucei was not a qualified elector at the time of the election, by reason of the fact that he had not paid on or before the first day of February, 1934, all taxes which were legally required of him, it cannot be then said that Tucei is entitled to hold the office in question.
Roane ex rel. Tunstall v. Matthews, 75 Miss. 94, 21 So. 865; Sections 45 and 250, Constitution of 1890; Doolittle v. Hays, 91 Miss. 775, 45 So. 728.
We insist that since the attorney-general held that the failure to pay ad valorem taxes due the town of Ocean Springs on property located within the town of Ocean Springs would disqualify one from voting in a municipal election in Biloxi, then it goes without saying that if one had failed to pay ad valorem taxes in the city of Biloxi, he would be disqualified from voting in the municipal election held in Biloxi.
We think the opinion of the attorney general is eminently correct and in line with the decisions already cited by us in our brief.
Ford Ford, of Pascagoula, for appellee.
Our contention is that the governor had no right to make the appointment, there being no emergency, and therefore the case must fail. If the district attorney or attorney-general had brought the suit, of course the right vel non of the incumbent to hold the office could be gone into.
The vacancy here being less than six months, it devolved upon the mayor and remaining councilmen to fill the vacancy.
Section 2638, Code of 1930.
The law does not provide how the office should be filled during the time intervening between the occurrence of the vacancy and the holding of the election. The governor has no right to appoint for this interval, and the mayor and remaining councilmen are not required to make an appointment. The only deduction or inference is that the mayor and remaining councilmen shall take care of the duties resting on the office that is vacated meanwhile.
As a matter of fact there was no emergency justifying this appointment.
Attala County v. Miss. Tractor Equipment Co., 139 So. 628; Section 6064, Code of 1930; 3 Words Phrases, 2361; Booze v. Cresswell, 117 Miss. 608; State v. Lovell, 12 So. 341, 71 Miss. 309; Berry v. Berry, 144 So. 695.
The declaration affirmatively shows that appellee, Tucei, is in charge of the office of city councilman, having been lawfully elected thereto, has qualified therefor, and the declaration fails to charge any disqualification touching his election and tenure of office.
The petition simply charges that Mr. Tucei did not pay all city taxes before the first of February. It does not charge that he failed to pay any county taxes before February first, or any city taxes before August, when the primary was held, or before December when the general election was held.
The court will remember that in 1931 the law was changed as to the time of payment of taxes (reenacted in the Extraordinary Session of 1932, reported as chapter 383 of the Laws of 1934 and by chapter 188 of the Laws of 1934), and that taxpayers since then have had the right to pay taxes in installments, to-wit, one-half by the first of February, one-fourth in May, and the balance in August. The constitutionality of this change in the law has been upheld by the Supreme Court of Mississippi.
Myers v. State, 147 So. 308.
While the governor has very great powers, and in proper cases has the right of appointment, it does not follow by any means that he can appoint to an impossible or nonexisting office.
Temple v. State, 123 Miss. 741; State v. Hill, 157 Miss. 648; Conner v. McLaurin, 77 Miss. 373.
Before we come to the question of appellee's right to the office, appellant must show some right in himself.
State v. Klingensmith, 163 So. 704; Surrat v. Morgan, 80 Miss. 372, 31 So. 789; Tunstall v. Matthews, 75 Miss. 94, 21 So. 865.
Section 241 of the Constitution says who shall be entitled to vote. Following that provision, the Legislature enacted section 6207, Code of 1930, which covers the case of county voters. Section 245 of the Constitution covers the case of municipal voters, and empowers the Legislature to add additional qualifications. Following the constitutional provision, the Legislature enacted section 2595, Code of 1930.
The principle of law that a municipality can only exercise such general power of taxation as is delegated to it by the state is of such universal acceptation as to be now both unquestioned and unquestionable.
O'Flynn v. McInnis, 80 Miss. 125.
We maintain that it was not the intention of the Legislature under the aforesaid code section 2595 to require municipal taxes to be paid before the first of February, but that the Legislature intended by that section to require payment of such taxes by the time they are due.
Mitchell v. McDonald, 164 Miss. 413; Tunstall v. Matthews, 75 Miss. 100.
The court will remember that this question of whether respondent is disqualified is, we may say, a secondary question. The big point in the case is, what prima facie right does the relator show to the office? That is what the court wants to know first. He has shown no authority in the governor to make the appointment.
Andrews v. Covington, 69 Miss. 740; Harrison v. Greaves, 59 Miss. 453.
Argued orally by Bidwell Adam, for appellant, and by E.J. Ford, for appellee.
Appellant filed his petition in the circuit court of Harrison county against appellee to try the right to the office of councilman of the city of Biloxi, Mississippi, claimed by each of them. Appellee's demurrer to both the original and the amended petition was sustained, and appellant declining to plead further, final judgment was entered dismissing the petition. From that judgment appellant prosecutes this appeal.
Section 3053, Code 1930, provides, among other things, that the remedy by information in the nature of a quo warranto may be resorted to to oust any person unlawfully holding or exercising the functions of any public office; and section 3054 provides that the proceedings in such cases shall be by information, in the name of the state, by the attorney-general or a district attorney, on his own motion or on relation of another and to try the right to an office on the relation of the claimant thereof. The proceedings here were instituted not in the name of the state, on the relation of either the attorney-general or the district attorney, but on the relation alone of the appellant. Therefore, it is not a public action but in the nature of a private action. It follows that in order for appellant to succeed he must stand on the strength of his own claim to the office and not on the weakness of the claim of appellee.
The city of Biloxi was operating under the commission form of government provided for by the Code chapter on municipalities. The governing body, as provided by section 2629 (as amended by Laws 1932, chap. 219, sec. 1), was a mayor and two councilmen. The mayor was R.H. Chinn, and the councilmen were M.L. Michel and John Swanzy; their terms of office expired on January 7, 1935, and their successors had been elected for the four-year term beginning on that date. O'Keefe had been elected mayor, John Swanzy was re-elected, and appellee was elected in the place of Michel.
On the third day of January, 1935, which was Thursday, Michel resigned from his office, and on the next day the governor appointed appellant to fill out his unexpired term, and on the next day, which was Saturday, January 5th, appellant gave the required bond and took the oath of office. Therefore, only one secular day of Michel's unexpired term was left, namely, Saturday, January 5th. As above stated, the terms of the new officers began on the following Monday, January 7th.
As provided by section 2640, Code 1930, the mayor and councilmen had apportioned among themselves the executive and administrative duties devolving upon them, and had assigned the various officers and the employees of the city government to their appropriate departments. To Michel had been assigned the department of education and finance, and the collection of the city taxes, and he was also city clerk.
Section 2629 provides that if at any time a vacancy shall occur in the office of mayor or councilmen the remaining members of the council shall immediately order a special election to fill such vacancy, unless the remainder of the unexpired term be less than six months, in which event they shall appoint a qualified elector of the city, eligible to hold such office, to fill the vacancy during the remainder of the unexpired term. Michel's unexpired term being less than six months, the mayor and the remaining councilman undertook to appoint a successor to fill out his unexpired term; they failed to agree on any one and so recited on their minutes. The governor was then called upon to fill the vacancy and appointed appellant.
On January 7th appellee made the required bond and took the necessary oath as councilman for the four-year term beginning on that date. Appellant refused to surrender the office to him, thereupon appellee with force of arms broke into the municipal building and took charge of the office and had charge of it when this proceeding was instituted.
The ground of appellant's contest is that appellee was not entitled to hold the office because he was in default for municipal taxes, payment of which was required of him on or before the first day of February of the previous year (1934), and that therefore as an appointee for Michel's unexpired term he had a right to hold over until a successor was duly elected as provided by law.
Appellee contends, and the trial court so held, that we do not reach the point of deciding whether he had the required qualifications for the office; that appellant cannot raise that question because his appointment by the governor to fill out Michel's unexpired term was without authority of law and void. Counsel representing the respective parties are in agreement that the mayor and remaining councilman having failed to appoint Michel's successor, as provided in section 2629, the only authority for appointment by the governor was section 103 of the Constitution, which reads as follows: "In all cases, not otherwise provided for in this constitution, the legislature may determine the mode of filling all vacancies, in all offices, and in cases of emergency provisional appointments may be made by the governor, to continue until the vacancy is regularly filled; and the legislature shall provide suitable compensation for all officers, and shall define their respective powers."
Was there an emergency requiring appellant's appointment for the unexpired term of one day, at most two days? In Attala County v. Mississippi Tractor Equipment Co., 162 Miss. 564, 139 So. 628, dealing with emergency expenditures under section 6064, Code 1930, the court defined "emergency" as "an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy; a pressing necessity." Whether an emergency exists justifying an appointment is reviewable by the courts. State v. Lovell, 70 Miss. 309, 12 So. 341; State ex rel. Booze v. Cresswell, 117 Miss. 795, 78 So. 770.
State ex rel. Baker v. Nichols, 106 Miss. 419, 63 So. 1025; Baker v. Nichols, 111 Miss. 673, 72 So. 1, gives appellant no aid. It was held in that case (before the court twice) that since no method was provided by statute for filling the vacancy in the office of sheriff existing between the death of the sheriff and the election of a successor, except that the duties should be discharged by the deputy, and the deputy being legally disqualified, there existed an emergency under section 103 of the Constitution, authorizing the governor to appoint a sheriff. In other words, in that case the sheriff's office could not function at all for want of both a sheriff and a legal deputy. There is no such case as that here. In the first place, the unexpired term was only one or two days. In the next place, the mayor and one councilman were left, a quorum, with full authority to carry on all the municipal affairs, including those functions especially assigned to Michel. Presumably there was a sufficient office force in addition to the mayor and two councilmen. There was no reason for the tax collecting or anything else to stop.
We are unable to see any emergency justifying appellant's appointment by the governor.
Affirmed.