Yazoo City v. Lightcap , 82 Miss. 148 ( 1903 )

Whitfield, C. J.,

delivered the opinion of the court.

The question presented for decision is whether section 3039 of the code of 1892 is constitutional, and also whether the act of March 12, 1900, p. 79, ch. 69, amending section 3039 of the code, is constitutional.

The only difference between section 3039 and the act amending it is that the former requires amendments of the charters of municipalities not governed by the code chapter to be consistent with the provisions of the chapter, whereas the amending act permits Such amendments, though inconsistent with the provisions of the code chapter on municipalities. The ground on which the constitutionality of these acts is challenged is that, as claimed, they delegate the exercise of legislative power to municipalities. It is claimed that, under section 88 of the constitution these acts are unconstitutional. That section is as follows: “The legislature shall pass general laws under which local and private interests shall be provided for and protected, and under which cities and towns may be chartered and their charters amended, and under which corporations may be created, ■ organized, and their acts of incorporation altered; and all such laws shall be subject to repeal or amendment.” The argument is thus clearly put in an excellent brief filed bv learned counsel, as amicus curiae: “It is true that the charter may be granted by some person or body selected by the legislature, but it is also true that, when such charter is granted, it must conform to general laws which the constitution requires the legislature to enact. It will be observed that the supposed necessity for some authority other than the legislature to grant the charter is wholly inferential, and has no foundation in fact, as, under section 88 of the constitution, the legislature could grant the charter without delegation to an outside authority to do so. And while the -legislature can grant this naked power, as the legislature itself would have to enact general laws under which it could charter municipalities, certainly there must be general laws enacted by the legislature for the government of municipalities', to which the authority outside of the legislature must conform in granting charters. Section 88 of the constitution requires general laws. Its purpose is to prevent special and local legislation — to secure uniformity. But how can this purpose be accomplished by the legislature enacting a law providing simply in what way charters can be granted, or amendments thereto made, while omitting to prescribe what such charters, or amendments thereto shall contain ?”

We cannot concur in this construction. It will be observed that counsel franldy state that, under their view of section 88 of the constitution, the legislature must not only pass a law general as to the manner in which the charters of municipalities may be amended, but such general law must actually contain, and fully set out, the entire contents of the municipal charters, or the entire contents of the amendments of municipal charters. Such general law, under that view, must not only be uniform in prescribing the mode in which such charters are to be granted or amended, but for all municipalities coming under the code chapter the charters must be the same throughout all their contents, and, for municipalities not coming under the code, the contents of each charter, or each amendment, must be prescribed minutely by the legislature. This is the inevitable deduction from the argument for the supposed uniformity. We say “supposed uniformity,” because it is obvious that there would clearly be no uniformity, as to the contents of such charters, save in municipalities governed by the code chapter. Nor them the code chapter would be the charter; but, as to municipalities not governed by the code chapter, each one might have charter provisions different from every other one, and there would be no such uniformity as the view presupposes.

The framers of the constitution must have seen this incongruity, and since it was optional with the municipalities to come under the code chapter, or stay out, and since, as to all which stayed out, uniformity as to the contents of their charters was impossible, the inference is irresistible that the framers of the constitution never meant section 88 to secure uniformity in the contents of the charters of municipalities. Suppose (a condition which might have happened) one-tenth only of the municipalities had come under the code chapter; clearly this supposed uniformity would exist as to one-tenth, and not exist as to nine-tenths, of the municipalities in the state. Is it conceivable that the framers of the constitution, building with respect to existing as well as future conditions, would adopt a provision, under the practical operation of which such a condition as supposed above could obtain, if their purpose had been to secure uniformity as to the contents of charters by section 88 ? Manifestly not. Again, what an utterly incongruous situation we would have under counsel’s construction in another respect, to wit: The framers of the constitution would be put in the attitude, whilst seeking the supposed uniformity, of actually providing themselves two sorts of charters for municipalities— one, the code chapter on municipalities, for all coming under it, and, for all not coming under it, as many different charters as each municipality might ask at the hands of the legislature.

. Counsel surely overlooked the folly which this view would attribute to the framers of the constitution. The truth is not only that the framers of the constitution never intended the charters of municipalities to be uniform in their contents, but that it would have been exceedingly unwise to have made any such provision. There was a uniformity intended to be secured, but that was uniformity only as to the general mode of granting and amending charters. It was thought far more convenient, as ridding the legislature of useless special applications for such charters and their amendments, and as securing for the public service far more important legislation, the time that had theretofore been uselessly consumed in the consideration of such special application, to direct that thereafter — that is to say, after the adoption of said section 88 — the legislature should provide a general law, prescribing a uniform mode, in conformity with which municipal charters should be granted and amended. That the legislature has done. The code chapter executes the mandate as to all municipalities coming under it, and section 3039 executes it as to all other municipalities. Section 3039 is as perfectly a general law as the code chapter on this subject. One is general as to one class of municipalities ; the other is general as to the other class of municipalities. Section 3039 not only possesses the characteristics of a general law, in prescribing for all corporations not coming under the code chapter, and which preserve their original charters, the mode whereby they might amend such charters, but also secures uniformity as to this mode of amending their charters by all municipalities. But we have said it would have been exceedingly unwise on the part of the framers of the constitution to have attempted to secure uniformity in municipal charters. The principle is thoroughly established that the legislature may commit to local agencies the framing of such provisions as will best conserve their varied local interests. No legislature is as competent to frame such provisions as are the properly constituted authorities of such local subdivisions of the government. It is the very essence and soul of local home rule that they should be permitted to provide the manifold provisions imperatively called for by the multitudinous different needs of different communities. The doctrine is thus accurately expressed by Mr. Cooley: “The maxim that legislative power must not be delegated is to be understood in the light of the immemorial practice of this country and of England, which has always recognized the policy and propriety of vesting in the municipal organization certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority.” Again he says: “The right of the legislature, in the entire absence of authorization or prohibition, to create towns, etc., and confer on them the power of local government, and especially of local taxation and police regulations usual with such corporations, would always pass unchallenged.”

The constitution of 1890 was framed by great lawyers in full view of this legal principle, and also with full knowledge of the immemorial usage in this state in such matters. See Alcorn v. Hamer, 38 Miss., 652; Williams v. Cammack, 27 Miss., 221; 61 Am. Dec., 508; Barnes v. Pike County, 51 Miss., 305; Schulherr v. Bordeaux, 64 Miss., 59; 8 South., 201; Lum v. Vicksburg, 72 Miss., 950; 18 South., 476. It was provided in the code of 1857 (ch. 35, art. 1, §§ 1-3) how corporations might be created; section 1, art. 1, providing “that the persons desiring to be incorporated” might prepare a charter, which should contain, among other things, “the powers to be exercised,” and providing that, after approval by the governor and attorney general, “the powers therein specified should be vested in the corporation,” and also providing that such charters might be “amended or renewed in like manner.” This has been the law practically ever since, and the only change — a very great and useful change, it is true — acomplished by section 88 of the constitution is in providing that the legislature should be freed from the nuisance of having to deal separately with each and every charter and its amendments; referring the granting and and amending of such charters, as to the mode of granting them and the mode of amending them, to the operation of general law. The fallacy of the opposite view is in supposing that the code chapter on municipalities was essential to the execution of the mandate of section 88 of the constitution. Had that chapter not been adopted, the legislature would have complied perfectly with the mandate of section 88 of the constitution, by passing some statute like section 3039 of the code, whereby a uniform mode of granting and of amending charters might have been prescribed.

The code chapter on municipalities is, in our judgment, an exceedingly wise one. It furnishes for all municipalities which do come under it a charter doubtless far superior to most which would be otherwise drawn. And it is a little difficult to perceive why there is any hesitation to avail of its provisions, except in those cases where certain local conditions, in certain quarters, make their original charters better suited to the needs of certain municipalities. But all this granted, it is an exceedingly erroneous idea to entertain that section 88 of the constitution requires the contents of charters of municipalities to be prescribed' by some uniform legislative act, or that the legislature, in adopting the code chapter, was complying with any such supposed mandate of said section 88. That view is at war with immemorial usage in this state on this subject, with the whole trend of our decisions on the subject, and with what wisdom imperatively requires, as demanded by the varying needs of different communities.

One or two other considerations may be indulged: All cornorations other than municipal corporations, railroad corporations (other than street railroads), and insurance corporations, are provided for, as to the granting and amending of their charters, by chapter 25 of the code of 1892. Section 833 of that chapter is substantially identical with chapter 35, art. 1, of the code of 1857, heretofore referred to. The able lawyers who framed the code of 1892 expressly provided, in section 833, that “The persons desiring to be incoroporated” may prepare their own charter, setting out themselves, therein, “the powers to be exercised,” and all its contents; and said charters, when approved by the governor and attorney-general, become the law of the corporation; and section 834 provides for amendments to be made similarly. These learned code commissioners knew that the legislature, in obeying section 88 of the constitution, which declares that “the legislature shall pass general laws under, which corporations may be created, organized, and their acts of incorporation altered,” had perfect power to-provide a law such as sections 833, 834, prescribing simply and merely a uniform mode, according to which corporations might obtain and amend their charters, without prescribing any such uniformity as to the contents of the charters. What the charters would contain would depend upon the 10,000 businesses incorporated, just as what municipal charters should contain depends upon the varying needs of every community. And it is perfectly obvious that, in executing the mandate of section 88 of the constitution, the legislature had precisely the same power to authorize the incorporators of municipalities to frame charters, and state the powers to be exercised that it had in the ease of the corporations provided for by chapter 25 of the code of 1892. "Section 88 commands the legislature to pass general laws, as to both municipal corporations and other corporations (of the hinds stated above), respecting the granting and the amending of their charters, and the power of the legislature is the same as to both. It is also very pertinently ashed by counsel for appellant how section 2912a et seq. and section 2921 of the code of 1892, which are general laws providing a uniform mode by which the boundaries of then existing municipalities might be enlarged or contracted, and by which hamlets and villages to become incorporated thereafter might define their boundaries, could he passed by the legislature, unless it had the power to authorize such existing municipalities and such hamlets and villages to specify, themselves, the contraction or enlargement of boundaries desired in the one case, or the definition of boundaries desired in the other ?

There is nothing in the proposition that the different improvements were not voted for separately. The complete reply is that no law required this to be done. We have given this case the careful consideration which its great importance demands, and-have not failed to weigh fully the opinion of the very accomplished chancellor of the court below. We have been unable to concur in the view which he announced. We think both section 3039, and the act of 1900 amending it, are perfectly valid legislative acts.

We direct the reporter to set out in full the briefs of all counsel in this case. We have derived great aid from them ourselves, and they will facilitate the profession in investigating the matter.

We think the suggestion untenable that this is not a real contest between the parties. The court below treated it as such, and it manifestly is “a suit in pursuance of an actual antagonistic assertion of rights by one party against another.”

Reversed and remanded.