Opinion
No. 38955.
June 8, 1953.
1. Appeal — moot question.
Where a city had taken the necessary steps for the issuance of improvement bonds and had procured a decree of validation, but pending appeal therefrom by objectors, and before any bonds were delivered and after the time therefor had passed the city with the consent of bidders had rescinded all orders and resolutions for the issuance of the bonds, the motion of the city to dismiss the validation petition, and to vacate the decree of validation and to declare the bonds null and void will be sustained.
Headnote as approved by Lotterhos, J.
APPEAL from the chancery court of Harrison County; D.M. RUSSELL, Chancellor.
J.D. Stennis, Jr., Biloxi, for appellants on merits.
I. In the issuance of bonds requiring authorization by an election thereon, a municipality must satisfy the mandatory requirements of the statute (Sec. 5, Chap. 493, Laws 1950), in the giving of notice of such election, as a prerequisite to and as a condition precedent to the validity of such bonds.
(a) Failure to comply with mandatory requirement defeats jurisdiction. Sec. 5, Chap. 493, Laws 1950; 63 C.J.S. 744-745, Sec. 1094; Roberts v. Murphy, 144 Ga. 177, 86 S.E. 545; State, ex rel. Brown v. Sengatacken, 61 Or. 455, 122 P. 292, Ann. Cas. 1914B 230; Southworth v. Board of Education, 238 Ill. 190, 87 N.E. 403; Miami v. Romfh, 66 Fla. 280, 63 So. 440; State, ex rel. Jackson v. Fayette County, 122 O. St. 456, 172 N.E. 154; Shanks v. Winkler, 210 Ala. 101, 97 So. 142; Davis v. Dougherty County, 116 Ga. 491, 42 S.E. 764; Scott School Dist. v. Carter, 28 Ga. App. 412, 111 S.E. 216; Burnam v. Rhine Consol. School Dist., 35 Ga. App. 110, 132 S.E. 137; Roberts v. Eyman, 304 Ill. 413, 136 N.E. 736; Benton v. Kaneville Community High School Dist., 250 Ill. App.? 6; Chanute v. Davis, 85 Kan. 188, 116 P. 367; Eberthardt Const. Co. v. Sedgwick County, 100 Kan. 394, 164 P. 281; Mays v. Slemmons, 14 Ky. L. Rep. 660; Central Const. Co. v. Lexington, 162 Ky. 286, 172 S.W. 648; Katterjohn v. Kelly, 191 Ky. 238, 230 S.W. 50; Hatfield v. Covington, 177 Ky. 124, 197 S.W. 535; Douthitt v. Newcastle, 239 Ky. 751, 40 S.W.2d 335; Pollard v. Norwalk, 108 Conn. 145, 142 At. 807; Pendley v. Butler County Fiscal Ct., 229 Ky. 45, 16 S.W.2d 500; Montgomery County v. Henderson, 122 Md. 533, 89 A. 858; Clarksdale v. Broaddus, 77 Miss. 667, 28 So. 954, cited in 193 Fed. 513, 79 A. 357, 100 S.W. 128, 86 P.2d 966; Fractional School Dist. v. Township School Dist., 259 Mich. 75, 242 N.W. 843; Monroe County use of Splunge Consol. School Dist. v. Minga, 127 Miss. 702, 90 So. 443, cited and followed in 106 So. 213, 112 So. 468, 140 So. 735, and 183 So. 483; State ex rel. Fremond v. Babcock, 25 Neb. 500, 41 N.W. 450; Train v. Sisti, 146 Misc. 362, 262 N.Y.S. 167.
(b) Place of publication of newspaper. Carter v. Land, 174 Ga. 811, 164 S.E. 205; Jackson v. Buatty, 68 Ark. 269, 57 S.W. 799; State v. Board of Commissioners of Bighorn County, 77 Montana 316, 250 P. 606; In re Gainsway, 66 Misc. 521, 123 N.Y.S. 966; Nebraska Land, Stock Growing and Investment Co. v. McKinley Lanning Gold and Trust Co., 52 Neb. 410, 72 N.W. 357; In re Monrovia Evening Post, 199 Calif. 263, 248 P. 1017; In re Publication of Docket of Supreme Court Missouri, 232 S.W. 454; In re White's Estate, (Calif. App.), 190 P.2d 968; Madigan v. City of Onalaska, 256 Wisc. 398, 41 N.W.2d 206; State v. Briaa, 198 La. 970, 5 So.2d 304; U.S. postal laws for entry as second class matter, Title IV, 1948 Ed., Postal Laws, etc.
(c) Strict construction. Monroe County, etc. v. Minga, et al., 90 So. 443, 445.
(d) Must affirmatively appear of record. Board of Supervisors v. Ottley, 146 Miss. 118, 112 So. 466; Aden v. Board of Supervisors, 142 Miss. 696, 107 So. 753; Smythe v. Whitehead, 133 Miss. 184, 97 So. 529; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Robertson v. Bank, 115 Miss. 840, 76 So. 689; Henry v. Board of Supervisors, 111 Miss. 434, 71 So. 742; Robb v. Telegraph Co., 104 Miss. 165, 61 So. 170, 977; Adams v. Bank, 103 Miss. 744, 60 So. 770; Hinton v. Perry County, 84 Miss. 536, 36 So. 565; Bolivar County v. Coleman, 71 Miss. 836, 15 So. 107; Marks v. McElroy, 67 Miss. 545, 7 So. 408.
II. In the adoption of an ordinance or resolution for the issuance of municipal bonds, in the sum of $990,000.00, payable over a period of twenty-five years, a municipality must comply strictly with the requirements of Secs. 71, 72, 73, 74 and 75, Chap. 491, Laws 1950, as to laying same over for two weeks after approval, for public inspection, before final adoption; publish same at least one time and enter same in the minutes and ordinance book of such municipality. Such ordinance shall not become effective until one month after its passage unless is contains a statement of the reason therefor, which shall be for the immediate and temporary preservation of the public peace, health and safety or for some other good cause. If not immediately entered in such ordinance books, after passage, twelve months after the effective date of said act (July 1, 1950), said ordinance is void.
(a) General statutory provisions. Secs. 72, 73, 75, Chap. 491, Laws 1950.
(b) Non-compliance with mandatory provisions fatal. 43 C.J.S. 514, note 6; 62 C.J.S. 778-779, Sec. 409; Cooper v. Town of Valley Head, 212 Ala. 125, 101 So. 874; Citizens National Bank, Trustee v. Town of Loyall, 262 Ky. 39, 88 S.W.2d 952; Markham v. Anamosa, 122 Iowa 689, 98 N.W. 493.
(c) Court may not supply omissions. 62 C.J.S. 842, Sec. 442(b); Lezy v. New Orleans N.E.R. Co., 20 So.2d 559, 21 So.2d 155.
(d) Judicial construction of "ordinance." Fuller v. City of Scranton, 1 Pa. Co. Ct. R. 405, 407; Town of Tipton v. Norman, 72 Mo. 380, 383; State v. Duis, 17 N.D. 319, 116 N.W. 751, 753; Kepner v. Commonwealth, 40 Pa. 124, 130; Mulberry v. O'Dea, 4 Cal. 385, 88 P. 367, 368; Los Angeles v. Waldon, 65 Cal. 283, 3 P. 890; Hellman v. Shoulters, 114 Cal. 157, 44 P. 914, 45 P. 1057; Campbell v. City of Cincinnati, 49 Ohio St. 463, 470, 31 N.E. 606, 607; People v. Lee, 112 Ill. 113, 1 N.E. 471; Town of Walkerto v. New York C. St. L.R.C.O., 215 Ind. 206, 18 N.E.2d 799, 802; O'Rourke v. Graul, 261 App. Div. 87, 24 N.Y.S.2d 819, 821.
III. All official actions of the governing authorities of a municipality shall be evidenced only by official entries duly recorded in their minutes, (Sec. 97, Chap. 491, Laws 1950). Secs. 75, 97, Chap. 491, Laws 1950; Board of Supervisors v. Ottley, 112 So. 466, 467.
IV. A municipal council cannot vary the requirements of Sec. 8, Chap. 493, Laws 1950, so as to require a lesser percentage of the qualified electors voting in an election, than that provided therein, to authorize such issue of bonds. Such council cannot issue such bonds without adjudicating the number of qualified electors who voted in such election, or at least that the bonds proposed to be issued for the purpose or purposes voted on were authorized by three-fifths of the qualified electors who voted in such election, and not simply that each of the propositions was assented to by a majority of three-fifths of the qualified electors of said city voting thereon, respectively, at said election. Sec. 8, Chap. 493, Laws 1950.
(a) Lack of or exceeding jurisdiction. Nervo v. Mealey, 25 N.Y.S.2d 632, 175 Misc. 952.
(b) Lack of jurisdiction proved dehors the record. Espodren v. Davis, 380 Ill. 199, 43 N.E.2d 962.
(c) Derivation of municipal powers from State. Werner v. Pioneer Cooperage Co., (Mo. App.), 155 S.W.2d 319-324.
(d) Three-fifths of qualified electors voting in such election. St. Joseph Twp. v. Rogers, 16 Wall 644, 21 L.Ed. 328; Cass County v. Johnston, 95 U.S. 360, 24 L.Ed. 416; Douglass v. Pike County, 101 U.S. 677, 25 L.Ed. 968; Carroll County v. Smith, 111 U.S. 556, 28 L.Ed. 517, 4 S.Ct. 539; Knox County v. Ninth Nat. Bank, 147 U.S. 91, 37 L.Ed. 93, 13 S.Ct. 267; Mobile Sav. Bank v. Oktibbeha County, 24 Fed. 110; Madison County v. Priestly, 42 Fed. 817; Ex parte Owens, 148 Ala. 402, 42 So. 676, 8 L.R.A. (N.S.) 888; State ex rel. Crumpton v. Montgomery, 177 Ala. 212, 59 So. 294; State ex rel. Lanier v. Padgett, 19 Fla. 518; Pickett v. Russell, 42 Fla. 116, 28 So. 764; Bell Nash v. Ocala, 62 Fla. 431, 56 So. 683; Dunnovan v. Green, 57 Ill. 63; People, ex rel. Gilman, C. S.R. Co. v. Harp, 67 Ill. 62; Simmons v. Byrd, 192 Ind. 274, 136 N.E. 14; Taylor v. McFadden, 84 Iowa 262, 50 N.W. 1070; Foy v. Gardiner Water Dist., 98 Me. 82, 56 A. 201; Hawkins v. Carroll County, 50 Miss. 735; State ex rel. Bassett v. Renick, 37 Mo. 270; State v. Binder, 38 Mo. 450; State ex rel. Woodson v. Brassfield, 67 Mo. 331; Richardson v. McReynolds, 114 Mo. 641, 21 S.W. 901; Fabro v. Gallup, 15 N.M. 108, 103 P. 271; Water Comrs. v. Clark, 19 N.Y.S.R. 825, 3 N.Y.S. 347; Rome v. Whitestown Waterworks Co., 113 App. Div. 547, 100 N.Y.S. 357; Reiger v. Beaufort, 70 N.C. 319; Logan v. Bismarck, 49 N.D. 1178, 194 N.W. 908; Mason v. School Dist., 66 Okla. 239, 168 P. 798; Williams v. Norman, 85 Okla. 230, 205 P. 144; Mitsler v. Eye, 107 Okla. 289, 231 P. 1045; Paris Mountain Water Co. v. Greenville, 110 S.C. 36, 96 S.E. 545; Harby v. Jennings, 112 S.C. 479, 101 S.E. 649; Spangler v. Mitchell, 35 S.D. 335, 152 N.W. 339, Ann. Cas. 1918A 373; Louisville N.R.R. Co. v. County Ct., 1 Sneed 637, 62 Am. Dec. 424; Alley v. Denson, 8 Tex. 297; Bradshaw v. Marmion, (Tex. Civ. App.), 188 S.W. 973; Marsden v. Troy, (Tex. Civ. App.), 189 S.W. 960; Harrison v. Barksdale, 127 Va. 180, 102 S.E. 789; Yesler v. Seattle, 1 Wn. 308, 25 P. 1014.
V. The powers conferred by the statute on the State's bond attorney are in no sense judicial. Harvey, et al. v. Covington County, 138 So. 403, 405.
VI. Lack of Jurisdiction or fraud in the attempt to adjudicate with reference to the calling of and determination of the results of a municipal bond election or the attempt to issue said bonds, predicated thereon make void and invalid said bonds and the acts of the municipal council predicated thereon. Where said lack of jurisdiction is apparent on the face of the record said acts are a nullity. Where such fraud is apparent on the face of the record it renders void the acts of such municipal council. Evidence is admissible to prove the lack of jurisdiction of municipal authorities to hold a called bond election and to thereafter adjudicate with reference to same, and to prove fraud in the attempted adjudications thereon, by either a direct or a collateral attack.
(a) Jurisdictional defects. 49 C.J.S. 822-6, Sec. 421.
(b) Void judgments. 49 C.J.S. 882-3, Sec. 451.
(c) Obtained by fraud. 49 C.J.S. 859-61, Sec. 434(a).
(d) Collusion. 49 C.J.S. 861, Sec. 434(b).
(e) Void on face. 49 C.J.S. 817-18, Sec. 413.
(f) Cross-bill direct attack. 49 C.J.S. 816, Sec. 410.
(g) Direct and collateral attack distinguished. Houser v. W.R. Bonsal Co., 149 N.C. 51, 62 S.E. 776-8; Brick v. Sovereign Grand Lodge of Accepted Free Masons of Arkansas, 117 S.W.2d 1060; Lipscomb v. Japhet, (Texas), 18 S.W.2d 786-7; Walker v. Goldsmith, 14 Or. 125, 12 P. 537-553; Knight v. Garden, 196 Ala. 516, 71 So. 715-16; Sutherland v. Rasnake, 169 Va. 257, 192 S.E. 695-8; Caldwell v. Taylor, 218 Cal. 471, 23 P.2d 758, 88 A.L.R. 1194; Bitzer v. Mercke, 111 Ky. 299, 63 S.W. 771-2; Pueblo de Taos v. Archuleta, 64 F.2d 807-12.
VII. Chap. 1, Title 18, Code 1942, Secs. 4313-4318, inclusive, has as its purpose, the provision of the method whereby the bonds of any district or subdivision of the State, authorized to issue bonds, may be validated and said bonds finally determined and adjudicated as valid, in advance of their issuance, in order that the bonds so validated may readily be sold on the market, and that no further attack may be made upon the validity of the bonds, and, not to provide a means whereby the court may be made a party to an adjudication of the existence of a jurisdiction which never existed and the fraudulent adjudication of facts which were never the facts.
(a) Res judicata. 30 Am. Jur. 908, Sec. 161, 908-909, Sec. 162, 913, Sec. 168, 927-8, Sec. 182, 928, Sec. 183, 939, Sec. 198, 940, Sec. 201, 941, Sec. 202, 946, Sec. 209; Shepherd v. Pepper, 133 U.S. 626, 33 L.Ed. 706, 10 S.Ct. 438; Shelton v. Tiffin, 6 How. (U.S.) 163, 12 L.Ed. 387; Greenstreet v. Thornton, 60 Ark. 369, 30 S.W. 347, 27 L.R.A.2d 709, 119 A.L.R. 801; McBryan v. Universal Elevator Co., 130 Mich. 111, 89 N.W. 683, 97 Am. St. Rep. 453; Ruckert v. Moore, 317 Mo. 228, 295 S.W. 794; Springer v. Shavender, 116 N.C. 12, 21 S.E. 397, 33 L.R.A. 772, 47 Am. St. Rep. 791; Tari v. State, 117 Ohio St. 481, 159 N.E. 594, 57 A.L.R. 284; George v. Male, 109 W. Va. 222, 153 S.E. 507; Chicago, B. Q.R. Co. v. Cass County, 72 Neb. 489, 101 N.W. 11, 117 Am. St. Rep. 806.
(b) Purpose of statutory validation proceedings. Street v. Town of Ripley, 173 Miss. 225, 161 So. 855, 102 A.L.R. 82; Lee, et al. v. Hancock County, 181 Miss. 847, 178 So. 790; Brown, et al. v. Board of Supervisors of Simpson County, 185 Miss. 216, 187 So. 738.
W.L. Guice, Jacob Guice, Biloxi, and William A. Bacon, Jackson, for appellee on merits.
I. All statutory requirements were met in giving notice of and holding a bond election in the City of Biloxi. Addison, et al. v. Town of Amite City, (La.), 161 So. 364; Bardwell, et al. v. Town of Clinton, (La.), 180 So. 148; Lynnet v. Huester, 322 Pa. 524, 185 A. 835; In re Gainsway, 66 Misc. 521, 123 N.Y.S. 966; Wolfe County Liquor Dispensary Ass'n v. Ingram, 272 Ky. 38, 113 S.W.2d 60; Conerly v. Stephenson, 181 Ark. 833, 28 S.W.2d 60; Maddigan v. City of Onalaska, 256 Wis. 398, 41 N.W.2d 206; Bayer v. Hoboken, 44 N.J.L. 131; Vick v. Bishop, 252 Ala. 250, 40 So.2d 845; Dooly v. Gates, 194 Ga. 787, 22 S.E.2d 730; McGinty v. Chambers, 182 Ga. 341, 185 S.E. 513; Elliott v. Board of Supervisors of Lamar County, 182 Miss. 631, 179 So. 344.
II. It is not necessary for ordinances or resolutions issuing bonds to remain on file for inspection for two weeks before final adoption. George v. Woods, et al., 94 Miss. 268, 49 So. 147; Deposit Guaranty Bank Trust Co. v. Williams, 193 Miss. 432, 9 So.2d 638; Crow v. Cartledge, 99 Miss. 281, 54 So. 947, Ann. Cas. 1913E 470; Musgrove v. Vicksburg N.R.R. Co., 50 Miss. 677; McCullen v. Sinclair Ref. Co., 207 Miss. 71, 41 So.2d 382; Evans v. City of Jackson, 202 Miss. 9, 37 So.2d 315.
III. The minutes of the Biloxi City Council properly expressed and contained all necessary jurisdictional requirements. Pettibone v. Wells, et al., 181 Miss. 425, 179 So. 336; Sides v. Board of Supervisors of Choctaw County, 190 Miss. 420, 200 So. 595.
IV. All propositions for the issuance of bonds submitted to the qualified electors of the City of Biloxi were authorized by the requisite number of votes. Board of Supervisors of Carroll County v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28 L.Ed. 517; Cashman v. Entwisle, 213 Mass. 153, 100 N.E. 58; First Parish in Sudbury v. Stearns, 21 Pick, (Mass.), 148; Munce, et al. v. O'Hara, (Pa.), 16 A.2d 532; Ladd v. Yett, 273 S.W. 1006; Kansas City v. Orear, (Mo.), 210 S.W. 392; Sacramento v. Goddard, 200 Cal. 143, 252 P. 329; In re Validation of Bonds, City of Moss Point, 170 Miss. 886, 156 So. 516; State v. City of Miami Beach, 156 Fla. 546, 23 So.2d 720; State v. City of Miami, 53 So.2d 524; State v. Dade County, 54 So. 257; Harris v. Walker, (Ala.), 74 So. 40.
The appellants' attack on the bond election constituted a collateral attack on the validation of the bonds and the same may not be sustained. Johnson v. Board of Supervisors of Yazoo County, 113 Miss. 435, 74 So. 321; Borroum v. Purdy Road Dist., 131 Miss. 778, 95 So. 677; Board of Supervisors v. Holly, 141 Miss. 432, 106 So. 644; Dye, et al. v. Brewton, et al., 119 Miss. 359, 80 So. 761; Lincoln County v. Wilson, 125 Miss. 837, 88 So. 516; Dye v. Town of Sardis, 119 Miss. 359, 80 So. 761; In re Winston County School Bonds, (Miss.), 53 So.2d 17; Von Zondt v. Town of Braxton, 149 Miss. 461, 115 So. 557; Green v. Hudson, 139 Miss. 471, 104 So. 171; Harvey v. Covington County, 161 Miss. 765, 138 So. 403; In re Magee Consolidated School Bonds, 212 Miss. 454, 54 So.2d 664; In re East Neshoba Vocational High School Bonds, 213 Miss. 146, 56 So.2d 394.
V. No contention is made that the powers conferred on the State's bond attorney are judicial.
VI. There was no fraud or lack of jurisdiction present in the record before the lower court and in the calling and holding the election or in any of the proceedings seeking to validate the bonds herein. Brown v. Board of Supervisors of Simpson County, 185 Miss. 216, 187 So. 738; Griffith's Mississippi Chancery Practice, 2nd Ed., Secs. 176, 589; Bank v. Cole, 111 Miss. 43, 71 So. 260.
VII. The bond validation act provides a method for the determination of the validity of bonds and it was not used fraudulently herein to assume or show any jurisdiction not already existing.
By resolution dated December 18, 1952, the City Council of the City of Biloxi provided for the issuance of public improvement bonds of that municipality in the total principal amount of $990,000.00. Prior to said date there were certain other proceedings, including an election, in connection with the issuance and sale of said bonds. On January 6, 1953, a transcript of the proceedings with respect to the issuance of said bonds, and also the opinion of the State's bond attorney thereon, were filed in the chancery court of the proper county, for action under the bond validation statute (Secs. 4313-4318, Code of 1942). In response to the publication of notice as provided by that statute, appellants, citizens and taxpayers of said city, appeared and objected to the validity of the proceedings for issuance of said bonds.
At the conclusion of the hearing, the chancellor entered a decree validating said bonds, and the objectors appealed therefrom. In due course, briefs were filed here, and the case was argued and submitted to this Court. At this stage, and prior to a decision of the appeal on the merits, appellee, the City of Biloxi, has filed a motion to dismiss the case, setting up the following matters:
The bonds have not been delivered to the purchasers, the time for delivery under the contract of sale has expired, and on demand of the bond purchasers the earnest money deposited by them has been returned. The city council of said municipality has, by resolution, set aside, rescinded and repealed the aforesaid resolution of December 18, 1952, "and all orders or resolutions prior thereto in assistance of the issuance" of said bonds. After reciting these facts, appellee moves the Court to make an order setting aside the decree of the chancery court validating said bonds, to the effect that said bonds may be held to be null and void, and not the legal, binding obligation of said city, and to dismiss the petition of appellee filed in the chancery court for the validation of said bonds.
(Hn 1) Upon consideration of this motion and the matters shown therein, we have concluded that this appeal now involves moot questions only; that appellants will be deprived of no rights if the motion is sustained, since the effect will be to grant to appellants the relief sought on this appeal; and that the merits of the case, on appeal, need not and will not be determined. Accordingly, the motion is sustained, and an order will be entered to the following effect: The original petition of appellee in the chancery court for validation of said bonds will be dismissed; the decree of said chancery court validating said bonds will be set aside; said bonds will be adjudged to be null and void, and not the legal, binding obligation of appellee; and this case pending on appeal will be dismissed; all at the cost of movant, the appellee.
Motion sustained.
McGehee, C.J., and Roberds, Kyle, and Holmes, JJ., concur.