Opinion
No. 34056.
February 19, 1940.
1. MUNICIPAL CORPORATIONS.
The statute providing that notice of election for issuance of bonds for acquisition of municipal electric plant must be published "in a newspaper published and circulating in the municipality, or, if there be no such newspaper, then such election resolution shall be so published in a newspaper circulating in the municipality and shall also be posted" in five public places, required posting of notice only in event of publication in newspaper circulating in the municipality, and not in event of publication in newspaper published and circulating in the municipality (Laws 1936, chap. 185, sec. 4).
2. MUNICIPAL CORPORATIONS.
Under statute requiring municipality to submit to voters the question whether municipality should issue bonds to "acquire" electric light plant, a notice of election for issuance of bonds to raise funds with which to acquire municipal electric plant by construction or purchase was sufficient, without stating whether municipality was to construct or to purchase plant (Laws 1936, chap. 185, secs. 2(e), 3(a), 24).
3. MUNICIPAL CORPORATIONS.
A published notice to taxpayers of municipality, advising of proposed bond issue for acquisition of municipal electric plant, and that matter of validation of bonds would be heard by chancellor, was not required to have printed thereon the seal of the chancery court (Code 1930, secs. 313, 2964, 2972; Laws 1936, chap. 185).
APPEAL from the chancery court of Panola county; HON. L.A. SMITH, SR., Chancellor.
Green Green, of Jackson, for appellant.
Provisions of act are mandatory; hence failure to post notices as required invalidates all subsequent proceedings.
Sec. 4, Chap. 185, Laws of 1936; 1 Jones on Bond and Bond Securities, Sec. 212; Town of Clarksdale v. Broaddus, 77 Miss. 667, 28 So. 954; National Bank of Commerce v. Town of Grenada, 48 Fed. 278, 54 Fed. 100; 5 McQuillin, Municipal Corporations (2 Ed.), Sec. 2356.
Provisions of this kind as to notice are always strictly construed, and this court has adhered to this strict construction doctrine from the earliest times down to the present.
Zecharie v. Bowers, 11 Miss. 641, 645; McKey v. Cobb, 33 Miss. 533; Ponder v. Martin, 119 Miss. 156, 80 So. 388; Langstaff v. Town of Durant, 84 So. 459, 122 Miss. 471; Belt v. Adams, 86 So. 584, 124 Miss. 194; Conn. Life Ins. Co. v. Lombard, 185 So. 261, 265; Jones v. Frank, 85 So. 310, 123 Miss. 280; City of Chanute v. Davis, State Auditor, 116 P. 367.
We urge that this court reverse the decree validating the bonds because by failing to comply with the mandatory provision of the act as to posting of notice in five public places a vital condition precedent was not fulfilled and all subsequent proceedings were of no effect and void.
Vagueness and uncertainty of stated purpose invalidates bond issue.
1 Jones, Bond and Bond Securities, Sec. 200; 5 McQuillin on Municipal Corporations (2 Ed.), Sec. 2356; Sec. 4b, Chap. 185, Laws of 1936.
The election resolution and published legal notice are so vague and misleading that they did not inform the taxpayers of any definite purpose, if in fact the municipality had such a purpose at that time.
Elections must be conducted by such means and in such manner as to ascertain the will of the electorate on a given issue.
In re Validation Bonds, City of Moss Point, 156 So. 516, 170 Miss. 886.
We maintain that the electorate had before it no definite issue, and the election was, therefore, ineffective in determining which of the many nebulous possibilities contained in the resolution would be pursued by the municipality in obtaining electricity. For such vagueness of purpose in the resolution and notice we believe this court should reverse the decree validating the bonds.
The court lacked jurisdiction to determine validity of bonds because Section 2964, Code of 1930, was not complied with in the published notice of validation proceedings.
Sec. 2964, Code of 1930; Phares v. Conner, 11 Miss. 87; Burton v. Kramer, 123 Miss. 848, 86 So. 578; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; 50 C.J. 535; Foley v. McDonald, 46 Miss. 238; Magoffin v. Mandaville, 28 Miss. 354.
Statutes requiring publication as a substitute for summons must be strictly followed.
Ponder v. Martin, 80 So. 388, 119 Miss. 156; Belt v. Adams, 86 So. 584, 124 Miss. 194.
D.R. Johnson, of Batesville, for appellee.
We contend that since said election resolution was published in the Panolian, a newspaper published and circulating in the municipality of the Town of Batesville, Mississippi, the law did not require posting of notices as is required in the foreclosure sales of lands under mortgages and deeds of trust as provided in Section 2167, Mississippi Code of 1930, and we respectfully call this honorable court's attention particularly to that part of Section 4, Chapter 185, Laws of 1936.
Sec. 2167, Miss. Code of 1930.
Section 4 of Chapter 185, Laws of 1936, has to do with the issuance of bonds by municipalities. Section 2167 of Mississippi Code of 1930 has to do with the foreclosure of mortgages and deeds of trust, two entirely separate and distinct procedures.
By way of comparison and to reason whether or not the Legislature made it mandatory to publish election resolution notice in the instant case, we respectfully call the attention of the court to the preamble and Section 1 and 2 of Chapter 206 of the Laws of 1920, which said sections are brought forward in the Mississippi Code of 1930, as Sections 2488 and 2489 respectively, which said Section 2 of Chapter 206, Laws of 1920, brought forward as Section 2489 of said Code of 1930 provides: "Election to be ordered by Board. — Before issuing said bonds, the mayor and board of aldermen, or commissioners, shall, by resolution spread upon their minutes, declare their intention of issuing said bonds, fixing in such resolution the maximum amount thereof, and the purpose for which they are to be issued, and where an election is required shall fix in such resolution a date upon which an election shall be held in said municipality, of which not less than three weeks' notice shall be given by the clerk by a notice published in a newspaper published in said municipality once a week for three weeks preceding the same, or, if no newspaper is published in said municipality, then by posting a notice for three weeks preceding said election at three public places in said municipality. Such election shall be held, as far as practicable, as other elections are held in municipalities."
There have doubtless been bonds issued under the provision of said section by the municipality of the Town of Batesville and hundreds of other municipalities in the State of Mississippi since the enactment of this statute, and we fail to find wherein this court has held posting of notice required to make a bond issue valid under said section.
We maintain that the resolution follows exactly what the Legislature said and intended to be done and feel that a comparison with the statute is the clearest statement possible on this point and needs no further argument.
Chap. 185, Laws of 1936; N.O. N.E.R. Co. v. Picayune, 145 So. 101; 43 C.J. 519; Sawyer v. Lorenzen, 149 Iowa 87, 127 N.W. 1091, Ann. Cas. 1912C, 940, 942.
In Mississippi Code of 1930, Section 313, Validity of Bond Issues — How Determined, upon which this validation proceeding is based, we find the law expressed in the following words: "And the chancellor shall then notify the chancery clerk to set the matter for hearing at some future date, not less than ten days thereafter, and the clerk shall give not less than five days' notice by making at least one publication in some paper published in the county where the case is docketed, addressed to the taxpayers of the county, municipality, or district proposing to issue said bonds advising that the matter will be heard on the day named."
We call attention to the fact that the wording of the law herein does not in any way direct that process shall issue nor does it say that the taxpayers shall be made defendants and process issued, and we believe that the wording of the statute does not intend this as process and consequently it is immaterial that Section 2964, Code of 1930, be complied with in validation procedure. We believe the main purpose is to call the attention of the taxpayer, or taxpayers, that there is a bond validation proceeding pending so that he may look into it and see in what way his interests may be effected. We do not believe that the taxpayer is in any way interested or effected or should be interested in whether or not the published notice shows anything about the seal of the court, the main purpose being to give public notice to the taxpayer of the pending proceedings. If the seal of the court is shown affixed to the published notice it does not convey any more information to the taxpayer than if it were not affixed.
We contend that the notice required in said Section 313, Mississippi Code of 1930, was not processed in the sense of Section 2964, Mississippi Code of 1930. However, in the case at bar we respectfully submit that the notice to the taxpayers was issued and signed by the clerk and that the seal of the clerk was affixed both to the original and a duplicate thereof before the original notice was delivered to the publisher of the paper for publication. Hindman Doxey, of Holly Springs, for appellee.
No attack is made upon the publication notice. No objection is made that it was not "published in full." No question but that it was published "not less than fifteen days prior to the date fixed for such election;" No attempt is made to show that the Panolian, the newspaper in which the notice was published, was not a "newspaper published and circulating in the municipality" of Batesville. All these facts are conceded. It is claimed, however, in addition to this newspaper publication that the notice should have also been posted in five public places in the municipality. We say the law does not require any such posting.
We readily agree "if there be no such newspaper," then it would have been necessary to post the notice in five public places, as provided in the alternative manner of giving notice. The court will notice, however, the phrasing of the law and the punctuation thereof. It will be readily seen that one of two ways is to be adopted in the giving of the required legal notice. One way is to publish the notice "in a newspaper published and circulating in the municipality." If no such newspaper is published and no such newspaper has a circulation in the municipality, then, in that event, another way of making publication is provided. Since it is shown throughout the record that the Panolian is a newspaper, both published and circulating in the municipality of Batesville, then the alternative method could not apply because there is such a newspaper and the law says after the disjunctive participle "or" that "if there be no such newspaper, then . . ." Notice the word "then." We submit that this letter method is rendered non-effective by the fact that there was such a newspaper as contemplated by the provisions of the act preceding the word "or," and no necessity for doing the things set forth after the word "then."
In reviewing the meaning of this word "or" we find it defined as follows: Webster's New Unabridged Dictionary — "A connective that marks an alternative. "You may read or you may write," that is, you may do one of the things at your pleasure, but not both. It corresponds to either. You may either ride to London or to Windsor. It often connects a series of words or prepositions, presenting a choice of either. He may study law, or medicine, or divinity, or he may enter into trade."
Bouvier's Law Dictionary; 46 C.J. 1124; Case Threshing Machine Co. v. Watson, 122 Tenn. 148.
The word "then" as used in this statute is defined as follows: "As a conjunction 'then' is said to be a word of condition and often used to indicate a contingency or event. It means 'in such case,' 'in that event,' 'in that contingency.'"
62 C.J. 895; Bouvier's Dictionary; Webster's Unabridged Dictionary.
The section on sales under deeds of trust, Section 2167, Code 1930, or as amended by Laws 1934, Chapter 248, provides after the word "or" as follows, "if none is so published, in some paper having a general circulation therein, and by posting one notice at the courthouse of the county where the land is situated." The section on the publication of the election resolution, Laws 1936, Chapter 185, Section 4, provides after the word "or" as follows, "if there be no such newspaper, then such election resolution shall be so published in a newspaper circulating in the municipality and shall also be posted not less than fifteen days prior to the date fixed for such election in five public places in the municipality."
The difference is obvious. The "Foreclosure Section" does not contain the word "then" after the words "if none is so published." In the "Bond Section" the word "then" appears after the words "if there be no such newspaper."
We submit that none of the argument made by appellant can, to the slightest degree, persuade this court that the election resolution and published legal notice are so vague and misleading that they did not inform the taxpayers of any definite purpose. The purpose is so well expressed that it could not be improved upon. The statement needs no interpretation to convey its exact meaning. It is not necessary to call in any provision of the act to explain or support the actual words used but we still bear in mind the provisions of Section 24, Chapter 185, which in part is as follows: "This act is remedial in nature and the powers hereby granted shall be liberally construed to effectuate the purposes hereof, and to this end every municipality shall have power to do all things necessary or convenient to carry out the purposes hereof in addition to the powers expressly conferred in this act."
We submit that the will of the electorate was ascertained in this election on the issue presented and that the statute was fully and completely followed in every particular.
In Re Validation Bonds, City of Moss Point, 170 Miss. 886; Green v. Hutson, 139 Miss. 471, 104 So. 171.
We are not unmindful of the provision of Section 2964 of the Mississippi Code of 1930, which provides that the process shall be issued and signed by the clerk with the seal of his office affixed. We respectfully submit that, in the case under consideration, the process was issued and signed by the clerk of the court and that the seal of his office was affixed, all as provided by law, and that such process was handed to the editor of the Panolian by the deputy clerk, all as is provided by lay. This matter was thoroughly gone into upon the hearing of the objections.
We quote briefly from the chancellor's opinion. "But the contestants say further that the process or notice rather to the public of the validation proceedings under which we are now holding this particular session is void for the reason that there is a fatal variance between the original process handed to the newspaper for publication and the published process itself, in that there is no seal published on the notice in the newspaper, whereas there was a seal on the original process. The court does not believe that the kind of notice required under the law in this particular case requires the seal of this court to be upon it to make it a valid process, although it was in fact upon it; and certainly the court cannot accept the theory that failure of a newspaper reporter in his copy in the newspaper to reprint this seal would invalidiate the original process. I think that's going entirely too far."
Argued orally by Marcellus C. Green, for appellant, and by Hindman Doxey and D.R. Johnson, for appellee.
Proceeding under chapter 185, Laws of 1936, the appellee, the town of Batesville, passed the necessary resolutions, and ordered the election provided for therein, which resulted in authorizing the issuance of the bonds; then, having passed the final order, directed issuance of the bonds in the sum of $35,000. The transcript of the record was submitted to the state bond attorney for his approval; and proceedings were initiated before the chancellor for the validation thereof under chapter 10, Code of 1930 (section 312 et seq.).
On the day set for the hearing of the validation proceeding by the chancellor, the appellant, the Mississippi Power Light Company, appeared and filed certain objections to the issuance of the bonds, which, after considering them, that court overruled, and validated the bond issue. From the decree in the chancery court, the Mississippi Power Light Company appealed.
It is unnecessary to set forth the resolutions at length, under chapter 185, Laws of 1936, such references as are necessary will be made thereto, in order to understand the points raised.
1. The appellant contends that under the statute in question it was mandatory that notices of the election resolution should be posted in five public places in the municipality; that the posting of such notices was a condition precedent to the holding of the election; and that, because of failure to do so, the entire proceeding is null and void.
The record shows that the election resolution provided for in chapter 185, Laws of 1936, was published in the Panolian, a newspaper published and circulating in the municipality of Batesville, Mississippi.
Section 4 of that chapter provides that before bonds are issued thereunder, and election shall be held, and the governing body of the municipality shall adopt a resolution, called the election resolution, stating the necessary facts. The pertinent part of section 4, here involved, is as follows: "Such election resolution shall be published in full at least once, not less than fifteen days prior to the date fixed for such election, in a newspaper published and circulating in the municipality, or, if there be no such newspaper, then such election resolution shall be so published in a newspaper circulating in the municipality and shall also be posted not less than fifteen days prior to the date fixed for such election in five public places in the municipality."
It will be noted that the legislature, in providing for the publication of this notice, first required that such election resolution should appear on a newspaper published and circulating in the municipality. In this case there is no question as to the publication of the election resolution, in compliance with the statute, in the Panolian, a newspaper published and circulating in the town of Batesville.
However, appellant contends that under the language of this statute, even though the resolution was so published, it still was necessary to post copies thereof in five public places in the municipality.
We are of opinion that the Legislature plainly expressed a preference for the publication of the election resolution in a newspaper published and circulating in the particular municipality wherein the election was to be held. But connected with such provision by the conjunction "or" it is further stated that, "if there be no such newspaper, then such election resolution shall be so published in a newspaper circulating in the municipality and shall also be posted not less than fifteen days prior to the date fixed for such election in five public places in the municipality."
It will be observed that the first alternative, the preference of the Legislature, does not in terms require the posting of notices; but in event that method cannot be complied with, out of abundance of caution, in an effort to make certain that notice is given to the electorate of the municipality, it provides for publication in a newspaper circulating in the municipality; but being of the opinion that this was not sufficient, it is further provided that five notices shall be posted in five public places. The language, "if there be no such newspaper, then such . . . resolution," etc., means only that the resolution could be printed in a newspaper not published in the municipality, when the other condition preceding the conjunction "or" does not exist; and the words, "shall . . . also be posted," etc., strengthens this view. In other words, the provision relative to the posting of the notices does not refer to the first method of publication, but to the alternative method, following the word "or."
We do not think the argument as to the analogy between this statute and the statute relative to the publication of notice of foreclosure sales, section 2167, Code 1930, has any application here. The word "then," and the words "and also," tend to remove the second alternative from any connection with the first; and also shows that the publication in a newspaper was to be supplemented by the posting of notices only in the vent of the second contingency. We think the meaning of the language is clear. The statute did not require the notice to be posted when published in a newspaper published and circulating in that municipality.
2. It is contended that the resolution, as adopted by the city government authorities, and published, renders its purpose vague and uncertain. The language to which the appellant objects is as follows: "The following purpose, to-wit: not to exceed the sum of $40,000.00 of bonds for the purpose of raising funds with which to acquire an electric plant, to furnish electric service to consumers." And in the body of the resolution this appears: "For the purpose of raising funds with which to acquire by construction or purchase, or both by construction and purchase, an electric plant and/or distributing system to furnish electric service to consumers, said bonds to be paid primarily from revenues received from customers on said distributive system, and, to the extent of any deficiency in such revenues, from taxes, as authorized and provided in Chapter 185 of the General Laws of the 1936 Legislature of Mississippi."
In 5 McQuillin on Municipal Corp. (2 Ed.), section 2356, we find the following: "The notice of election must state the purpose of the election, and must be definite and not misleading. However, of course, if a notice is as definite as it can be made, under the circumstances, it is sufficient. So generally, it must state in case of bond elections, the purpose of the issue, the amount of the proposed issue, the rate of interest the bonds will bear, the maturity of the bonds, and the place of the election."
A reading of this entire act will show that it was the purpose of the Legislature to provide a method separate and apart from all others, by which the governing authorities might acquire electric light plants for the purpose of selling their product to customers, as provided in the act.
The exact contention of the appellant here is that it was not sufficient to set forth that the governing body desired to issue bonds for the purpose of raising funds with which to acquire an electric plant; that the municipality must have selected its method for the acquisition of the said plant. The contention is that if it is desired to construct a plant, the resolution should say so; and that if it is desired to purchase the plant of another, the resolution should so state; but that the resolution could not provide for both methods of acquiring an electric light plant.
There is authority in other states, construing other statutes not like the one at bar, which holds to the effect that the governing body might not issue bonds for the purpose of constructing or erecting its electric light plant. But it is perfectly clear from this entire act that the only question required by the Legislature to be submitted to the voters was as to the purpose to acquire an electric light plant.
In subdivision (e) of section 2 of the act here involved, we find this definition: "The term 'acquire' shall mean to purchase, to lease, to construct, to reconstruct, to replace, or to acquire by gift or exercise of the right of eminent domain."
Further, in subdivision (a) of section 3 of said act, it is said that authority is given, "To acquire, improve, operate and maintain," an electric light plant. And section 24 thereof declares that: "This act is for the public purpose of promoting the increased use of electricity in the urban and rural areas of this state, and to enable all counties, as well as cities and towns, to secure the benefit of the surplus power generated or to be generated by the Tennessee valley authority at Wilson dam in the state of Alabama and Norris dam in the state of Tennessee, or the power generated at any other works or dams. This act is remedial in nature and the powers hereby granted shall be liberally construed to effectuate the purposes hereof, and to this end every municipality shall have power to do all things necessary or convenient to carry out the purposes hereof in addition to the powers expressly conferred in this act."
In our opinion, it would defeat the purpose of this act if we were to hold that the governing authorities of a municipality or county would be required to say whether or not they would purchase an electric plant already constructed, or construct one of their own. The manifest purpose of the act was to give the governing authorities the power to do that which is determined to be best; and we think this is fully demonstrated by the use of the word "acquire" in the act, as well as the definition thereof. We think the resolution here fully expresses the purposes of the governing body of the town of Batesville, under the terms of the act. Nothing more was required.
3. It is insisted that the validating court did not obtain jurisdiction to determine the validity of the bonds, because section 2964, Code of 1930, was not complied with in the publication of notice of validation proceedings, in that it did not show that the seal of the court was affixed to the printed notice to taxpayers, issued by the clerk.
When this point is boiled down, it simply means that the publication of the notice of validation of the proceedings by the clerk, under section 313, Code of 1930, did not have printed thereon the seal of the chancery court of that county. This notice was addressed, pursuant to the requirements of section 313, supra, to the taxpayers of the municipality, advising of the proposed bond issue, and that the matter of validation would be heard by the chancellor on the day named therein.
We do not think this notice comes within the provision of section 2964, Code of 1930; and the process there refered to is not a newspaper notice to taxpayers, such as is required under said section 313. See Mullins v. Lyle, 183 Miss. 297, 183 So. 696, wherein we think this point is settled.
However, we call attention to the fact that section 2972, Code of 1930, undertakes to give the substance of what shall be contained in a summons by publication, and the seal of the court was not regarded as a substantial part of that summons — had it been, the Legislature would have said so.
These are the only points presented, and it is, we think, conceded that the proceedings are otherwise regular and valid.
The chancellor confirmed the validation of the bonds.
Affirmed.