Ross v. Wimberly

60 Miss. 345

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

On the 20th of January, 1880, the charter of thetown of Cof-feeville was repealed by the Legislature. One month thereafter the town was reincoi’porated by the same name, with substan tially the same powers, but with some excision of territory and population. The legal effect of this was, not to extinguish the debts of the original corporation, but to leave them subsisting as valid obligations against the new one. 1 Dill. on Mun. Corp., sect. 170; Broughton v. Pensacola, 93 U. S. 266 ; Girard v. Philadelphia, 7 Wall. 1.

The case of Port Gibson v. Moore, 13 Smed. & M. 157, announcing a different view is contrary to the whole current of modern authority and is overruled.

It is immaterial that under the old charter there was no such officer as marshal eo nomine. There was a constable, whose duties were identical with those performed by the marshal under the new charter. It is admitted that the relator was that constable, and that the allowances were in fact made to him. He does not lose his rights by the misnomer of calling him marshal.

That no precedent ordinance fixing the salary of the relator was shown is sufficiently accounted for by the agreement that the records of the corporation had been lost or destroyed. We must presume in this state of facts that the Board of Mayor and Alderman made the allowances in accordance with an ordinance previously adopted.

Affirmed.