City of Hazlehurst v. Mayes

51 So. 890, 96 Miss. 656

Opinions

Taylob, Special Judge,

*

delivered the opinion of the court.

This is an appeal by the city of Hazlehurst, appellant, from a decree of the chancery court making perpetual an injunction issued at-the suit by Mayes, appellee, restraining the mayor- and board of aldermen of the said city of Hazlehurst from', issuing the bonds of the city in the sum of $8,000 for the purpose of buying and owning certain property, designated as “Lake Hazle and adjoining lands,” to be used as a public park.

In this record there is only one question presented for the decision- of this court, and that is whether or not the city of Hazlehurst can issue its bonds for the purpose of raising money with which to purchase the land mentioned to be used as a public park.

This city is a municipal corporation, operating under the Code chapter on municipalities. It is an elementary principle of law that as such it has no powers except those delegated to it by the state. It is equally well established that its powers are to be construed most strongly against a right claimed by it and not clearly given- by the statutes. The officers of a municipality are not the agents of the people. They are merely officers elected to perform certain municipal or local governmental duties defined by the statutes of the state. These duties cannot be extended by mere implication to grave and important acts not authorized by law. Nothing but legislative grant can do this. When there is any doubt as to whether or not a municipality has the power to do or not to do a certain thing, this doubt must be resolved against its charter powers, unless it is plainly manifest that the power is conferred to- the municipality to act. Crittenden v. Booneville, 92 Miss. 277, 45 South. 723. Keeping these elementary facts, which have been announced in decision after decision, time and again, before us, let us look in the case that is now before us.

Counsel for appellant contends that since section 3314 of the Code of 1906 confers upon municipalities the power to purchase and hold real estate for- parks, etc., they therefore have the implied power to issue bonds with which to raise the money necessary to make the purchase. We believe a study of the statutes of this state will show that this ground is not well taken. If the section referred to were the only exj>ression the legislature had given on this matter, there might be some force in the argument. But such is not the case. There are two other sections which deal directly and explicitly with the matter. Section 3346 of the Code of 1906 provides that the mayor and board of aldermen of municipalities have the power “to levy and collect special assessments and to issue bonds as hereinafter provided.” We believe that the legislature intended for these words to mean exactly what they say, and we take it that this is a limitation upon the power of a municipality to issue bonds except as provided. If We turn to section 3415 of the C'ode of 1906, we find the provision that the Legislature has made for the issuance of bonds. This section limits the power of municipalities to issue bonds in two ways: (1) By enumerating the objects for which they may be issued; (2) by limiting the amount. The purchase of land to be used as a public ppk is not one of the objects enumerated in the section. In the case of Smith v. City of Vicksburg, 86 Miss. 577, 38 South. 301, the second limitation was directly before the court for construction. In that case Justice Cox says in speaking of this section: “This section is the measure of the city’s right to issue bonds. It prescribed the purposes for which they may be issued, and limits the amount.” No one would argue that a city could exceed the amount which this section has fixed as the limit. If the limitation is good as to the amount of the issue, it is certainly equally as binding when it comes to the purposes for which they may be issued. If this were not true, what reason can be assigned to the Legislature for enumerating certain objects for which a municipality may issue bonds? The same section that gives a municipality the power to own and hold real estate for a park also gives it the power to hold and ■own real estate for sehoolhouses, sewers, waterworks, etc. If the Legislature did not intend to enumerate the objects for which bonds may be issued, why did it make any mention of these things at all? They would certainly have the implied power to issue bonds to raise money with which to< purchase real estate for sehoolhouses — an absolute necessity for every ■community. And it would have been easy, if the legislature had intended for them to have this power as to parks, to have just written the word “parks” in the statute alpng with the other enumerated purposes. To hold that the Legislature meant for a municipality to have the implied power to issue bonds for the purchase of a park would be equivalent to simply adding this word to the section. It is plain and unambiguous as it is. It is not within the province of this court to add to the law as the Legislature has written it.

The Legislature doubtless knew the conditions as they exist in this state at this time — that we have no large cities or crowded centers; that our towns could possibly provide for acquiring these things not yet indispensable to our municipalities in Mississippi in some other manner than burdening the future generation with obligations for their purchase — and for this reason it deemed it proper to limit the objects for which bonds may be issued to those objects which not only necessitated a large outlay of money, but which are absolutely necessary to the life and well-being of the people, daily and hourly, such as. waterworks, sewers, schoolhouses, etc. If the legislature had not limited them in this manner, there would be nothing to-prevent a municipality from issuing its bonds up to the full amount for the purpose of securing the money with which to-purchase a park, for instance. Suppose that this should be-done, and it should then become absolutely necessary to the. lives and the health of the people to own their own waterworks.. The power would have all been used in providing for a luxury to most Mississippi municipalities, and there would be no way by which to provide for the health and lives of the people who live in them.

A close study of the decisions will show that, even in states-where the Legislature has not undertaken to dea.1 with the matter, the implied power of a municipality to issue bonds is-an open question. And keeping in mind the fact that powers-conferred upon them are to be strictly construed, and decided against tire existence of the power if there is any doubt about it, also having before us these sections of the Code in which the Legislature expressly names the purposes for which a-municipality may issue its bonds and limits the amount of the-issues, with this court having already decided, as above mentioned, that the limitation as to the amount is binding, we are forced to arrive at the conclusion that the city of Hazlehurst has not the power to issue its bonds to raise money with which to-purchase land to be used as a park.

Therefore the decree of the chancellor overruling the motion to dissolve the injunction and making it perpetual is affirmed..

Affirmed..

Hayes, J., 'being a brother of appellee, recused himself, and Oscar B. Taylor, Esq., a member of the supreme court bar, was appointed and presided as special judge in this case.