State ex rel. Boone v. Metts , 125 Miss. 819 ( 1921 )

Sykes, J.,

delivered the opinion of the court.

The appellants instituted a quo warranto proceeding in the circuit court of Lafayette county, seeking to oust the city officials of the municipality of Oxford and obtain possession of these .offices.

The facts shown by the. information and the exhibits thereto are as follows: That the municipality of Oxford prior to the taking of the federal census in the year 1920 had a population of more than two thousand people and had adopted the commission form of government provided for by chapter 120 of the Laws of 1912 (sections 6038 to 6067, inclusive, Hemingway’s Code) ; that the Governor, believing that the final federal census return was fraudulent, appointed P. B. Furr to take a census of this municipality; that tlie final federal census return showed this municipality to have a population of over two thousand inhabitants, and the census taken by Mr. Furr, under the appointment of the Governor, showed the municipality to have a population of less than two thousand inhabitants. Upon this census return of Mr. Furr the Governor changed the classification of the Municipality of Oxford from a city to a town and appointed these appellants as its officers. A copy of the proclamation of the Governor is attached to the information. It appears in this proclamation that the final census returns of the federal government showed the municipality of Oxford to have over two thousand inhabitants, and that the Governor believed these returns were fraudulent because they purported to show, and did show, a larger number of people in this municipality than the Governor believed it contained, for which reason the Governor appointed Mr. Furr to take a new census, and that this census showed the total number of inhabitants of Oxford to be eighteen hundred and seven.

It will be noted that before the taking of this federal census this municipality was a city, and that the final federal census returns showed it still to be a city; in other words, this census return did not show a change in the class to which this municipality belonged.

A demurrer was sustained to this information in the circuit court, and, the appellants declining to> amend, judgment final was rendered in that court, from which judgment the case is appealed here.

The contentions of the appellants are thus summarized in the brief of their able counsel :

“The only questions presented in this case are whether or not the Governor was acting within the authority conferred on him: First, in demoting the municipality of Oxford from a city to a town; and second, if he had the authority to so demote the municipality under the facts presented in this suit, did he have the power to appoint the mayor and board of áldermen of tbe municipality of Oxford?”

It is only necessary for us to deal with the'first question above presented, viz: Whether or not under the facts in this case the Governor, under the law, was authorized or possessed the power and authority to demote the municipality of Oxford from a city to a town.

Section 88 of the Constitution provides that the legislature shall pass general laws under which cities and towns may be chartered and their charters amended.

Section 3312 of the Code of 1906 (section 5809, Hemingway’s Code), prescribes for the incorporation of cities, towns, and villages. It is therein provided that petitions shall be prepared addressed to the Governor setting out, among other things, the metes and bounds, the number of inhabitants, etc., which petitions must be signed by two-thirds of the qualified electors of the proposed municipality and be published in a newspaper (if there be a newspaper) three weeks. The petition with proof of publication is thfen presented to the Governor to be acted upon. Further proceedings may be had before the Governor as provided in this act. It is then provided that he issue his proclamation incorporating the city, town, or village, and therein defining the metes and bounds, and further providing for the appointment of municipal officers. This section of the Code in the case of Jackson v. Whiting, 84 Miss. 163, 36 So. 611, was held to be constitutional. In that case it is stated that:

“The law in question does not require the Governor to do aught more than decide the question of fact as- to whether or no the petition presented to him is sufficient and sufficiently signed, and if it has been posted or published as required therein. These questions being determined affirmatively, the Governor shall, not may, issue his proclamation declaring such village incorporated, and ‘defining its limits and boundaries.’ ”

Under this section the Governor cannot initiate the proceedings which result in the incorporation of municipalities. These proceedings are initiated by the inhabitants thereof, and the Governor is only empowered to act when the petition for incorporation is presented to him.

Section 3308, Code of 1906 (section 5804, Hemingway’s Code), together with the three following sections 3309, 3310, 3311, Code of 1906 (sections 5805-5808, Hemingway’s Code), provide for a change in the classification of a municipality and for its abolishment. The power of the Governor to act in this case is to be determined from a consideration of these four sections.

Section 3308, Code of 1906 (section 5804, Hemingway’s Code), reads as follows:

“Whenever by a census taken under an act of Congress or of the legislature it shall he shown that the population of a city, town, or village has increased or diminished so as to take or place such city, town or village out of the class to which heretofore it has belonged, or whenever the same is shown by a census of such city, town, or village taken under the direction of the municipal authorities thereof and approved by them as correct, the municipal authorities thereof shall certify the facts to the Governor, who shall investigate the matter; and if he find the municipality to be wrongfully classed he shall issue his proclamation in accordance with the facts, and shall correctly classify it, transmitting a copy of the proclamation to the mayor of such city, town or village.”

This section deals with three different kinds of a census: The first, one taken under an act of Congress (as the one under consideration in this case) ; second, one taken under an act of the legislature; third, one taken by the authorities of the city, town, or village. When by a census taken in any one of these three ways “it shall be shown that the population of a city, town or village has increased or diminished so as to take or place such city, town or village out of the class to which heretofore it had belonged,” then, and not until then, is the Governor empowered to act in any way in the matter.

It is unnecessary for us to decide iu this case whether or not the Governor is empowered to act only after the census return which shows a change in the classification of a municipality has been certified to him by the municipal authorities, or whether such certification .relates alone to a census taken under the direction of the municipal authoritites, and does not refer to a census taken under federal or legislative authority, for the reason that the census itself must show a change in the classification of a municipality before the Governor is empowered to act in the matter. It is only when this change is shown that the Governor can investigate the matter and reclassify the municipality.

Section 3311, Code of 1906 (section 5808, Hemingway’s Code), is as follows:

“In the performance .of his duties under this chapter, the Governor shall not be bound by the returns of a census, if he be of opinion that the same are fraudulent. In such case he may appoint a competent person to take a correct census of the municipality, and verify the same by affidavit and submit it to the Governor, and on this report he shall classify or abolish municipalities accordingly. The cost of taking the census shall be paid by the municipality.”

The performance of the duties of the Governor under this chapter, mentioned in this section, merely relate to the duties he is called upon to perform where there has been a change in the municipality as provided in section 3308, or for the abolishment of the municipality provided for in section 3310.

The authority of the Governor with reference to the reclassifying of the municipality is found in these two sections of the Code of 1906 (3308 and 3311). Under these sections, until a census return has shown either such an increase or decrease in the population as indicates that it now belongs to a different class of municipality, then, and not until then, is the Governor empowered to act. Whether the Governor has been vested with the power and jurisdiction to reclassify this municipality is a judicial question to be determined by the court. 7 R. C. L. p. 1050, section 85, and authorities cited thereunder.

The federal census return showed no such change in the municipality of Oxford. It was a city before the census was taken, and the final census showed it to be still a city. The Governor therefore had no power to act in the matter. The powers of the Governor Avith reference to the incorporation of municipalities are prescribed in sec. 3312 of the Code of 1906, sec. 5809, Hemingway’s Code. The jurisdictional facts which give him the power to act in that instance, viz. the petition, etc., are enumerated in that section. His powers with reference to abolishing municipalities are set out in sections 3310 and 3311 of the Code of 1906, and his poAverg to reclassify, based upon a change as shown by a census, are governed by sections 3308 and 3311 of the Code. Under these sections are prescribed the duties of the Governor with reference to the incorporation, change of classification, and abolishment of municipalities.

The judgment of the circuit court is affirmed.

Affirmed.