Mississippi Advisory Opinions April 10, 1979: 19790410 (April 10, 1979)

Advisory Opinion Text

Mr. Nat G. Troutt

Troutt and Moore

Attorneys At Law

210 South Ward Street

Senatobia, Mississippi 38668

Dear Mr. Troutt:

Attorney General Summer has received your opinion request dated March 30, 1979 and assigned it to me for research and reply, your opinion request advising that by a 3–2 vote, the Coldwater Town Board elected a Mayor Pro Tempore under § 21–3–13, Mississippi Code of 1972, which election your Mayor purported to veto under § 21–3–15, ibid . You then asked ‘whether or note the election of the Mayor Pro Tempore is a ‘measure’ within the meaning of said section. . . . that may be vetoed by the mayor?'

It is the opinion of this office that under the case of Rich v. McLauren , 83 Miss 95, 35 So. 337. (1903), which is still the leading case on the subject, it is not a measure properly the subject of a veto. See copy of case attached.

There involved was the election (by the Board) of a police justice, the court stating:

‘. . . The Mayor has no power to veto the election of such officer. He may give the casting (‘tie-breaking’) vote, as a presiding officer of the tribunal known as the ‘Mayor and Board of Aldermen, ’ in such elections. Section 2979 of said Code. (Now § 21–3–15). And he may veto any measure passed by the board of aldermen. . . . But such an election is not ‘a measure’, within the meaning of that section. . . .'

Hoping the above and the enclosure will be of some assistance to you and thanking you for calling on this office of be of help, I remain

Yours very truly,

A. F. Summer, Attorney General.

Richard M. Allen Special Assistant Attorney General.

ATTACHMENT

RICH

v.

McLAUREN, Dist. Atty., ex rel. COOK.

(Supreme Court of Mississippi. Dec. 7, 1903.)

POLICE JUSTICE—TITLE TO OFFICE—CITIES—MAYOR—BOARD OF ALDERMEN—MEETINGS—ELECTION—POWER OF VETO.

1. Where an office is provided for in cities falling within a certain statutory class, but no provision is made for election thereto, the officer may be elected in such proper mode as the mayor and board of aldermen may choose.

2. Under Code 1892, § 2992, relating to meetings of the board of aldermen of certain cities, the election of a police justice by resolution, at the first regular meeting succeeding the previous regular election, is a proper and sufficient election.

3. At a meeting of the mayor and board of aldermen of cities for the election of a police justice, provided for by Code 1892, § 2992, relating to meetings of the board of aldermen of certain cities, the mayor has no power to vote when there is not a tie.

4. No ordinance is required for the election of a police justice, which office is created by Code 1892, § 3001, relating to certain cities, though the manner of his election is not provided for.

5. Under Code 1892, § 2979, giving mayors of certain cities power to veto any measure passed by the board of aldermen, a mayor has no power to veto the election of a police justice by the board.

6. One elected to the office of police justice, provided for by Code 1892, § 3001, is allowed a reasonable time to have a judicial ascertainment of his title to the office, without having a commission, taking the oath of office, or giving bond.

7. The fact that the duties of a police justice, which office is provided for by Code 1892, § 3001, relating to certain cities, happen to be, in part, those which a justice of the peace might exercise under section 3057, relating to their jurisdiction, does not interfere with his title to the office.

Appeal from Circuit Court, Perry County; Jno. R. Enochs, Judge.

‘To be officially reported.’

Quo warranto by R. S. McLauren, district attorney, on relation of W. H. Cook, against C. W. Rich, to recover possession of an office, and books and records belonging thereto. From a judgment for plaintiff, defendant appeals. Affirmed.

C. W. Rich was mayor of Hattiesburg in 1901 and 1902, and acted as police justice by virtue of his being mayor. He was re-elected mayor for the years of 1903 and 1904. Hattiesburg has more than 4, 000 inhabitants. On the first Tuesday in January, 1903, the board of aldermen elected W. H. Cook police justice for Hattiesburg by resolution. The resolution electing Cook police justice provided that he give bond in the sum of $1, 000. After this resolution was passed, Cook executed a bond in the penalty of $1, 000, payable to the city of Hattiesburg, and not to the state. This bond was approved by the board of aldermen and the clerk of the chancery court, but not by the president of the board of supervisors. Cook then demanded the office of police justice. Rich, mayor, refused to allow Cook to take possession of the office, but continued to exercise the functions thereof himself.

N. C. Hill, for appellant.

Hartfield & McLaurin and S. E. Travis, for appellee.

WHITFIELD, C. J.

The office of Police Justice is not one of those provided for in section 2940, Code 1892. It is separate and distinctive, created by section 3001 of that Code in cities having 4, 000 or more inhabitants. Hattiesburg is such a city. A police justice is therefore elected by the board known as the ‘Mayor and Board of Aldermen.’ It is not provided anywhere in the Code chapter on ‘Municipalities' how he should be elected. He may be elected in such proper mode, therefore, as the board of mayor and aldermen may choose. 1 Dillon on Municipal Corporations (4th Ed.) § 212.

Cook was elected police justice in this city, but by resolution. This was a proper and sufficient election, and it was held at the regular meeting on Tuesday, January 6th, which was the first regular meeting of the mayor and board of aldermen succeeding the previous regular election, as prescribed by section 2992 of said Code. The mayor had no power to vote in the election of said officer, because there was no tie. Bousquer v. State , 78 Misc. 484, 29 South 399.

The mayor has no power to veto the election of such officer. He may give the casting vote, as a presiding officer of the tribunal known as the ‘Mayor and Board of Aldermen, ’ in such elections. Section 2979 of said Code. And he may veto any measure passed by the board of aldermen. See same section. But such an election is not ‘a measure, ’ within the meaning of that section. Section 3009 of said Code, referring to those ordinances which are to be recorded in the Ordinance Book, discriminates between ordinances which are ‘in their nature laws of the municipalities, ’ and ‘mere orders or decrees temporary in their nature.’ It requires no ordinance to elect a police justice, for manifest reasons, arising from convenience and necessity.

Until final decision that said Cook is, by proper election under said section 3001, police justice of Hattiesburg, he is not required to have a commission, to take the oath of office, or to give bond. He is allowed a reasonable time after such judicial ascertainment of his title to said office to qualify. Bourgeois v. Laizer , 77 Miss. 146, 25 South. 153. He orings this suit to determine alone his title to the distinctive office of police justice of said city, and section 3057 of said Code has no application; and it is immaterial that the duties assigned by the law to him, as police justice, within his proper territory, happen to be, in part, those which a justice of the peace might exercise. He holds the office of police justice, and it is that which the judgment here awards him.

Affirmed.