Coleman v. Lucas ( 1949 )

The deciding question in this case is whether the circuit judge had the power to appoint election commissioners and call an election to determine whether municipal officials should, or should not, be recalled.

The question is presented under this state of facts. Appellees were the duly elected, qualified and acting mayor, aldermen, city clerk and treasurer of the Village of Winstonville, Mississippi. One alderman had been appointed tax collector. Petitions of the qualified electors of the village, sufficient in substance and form, were presented said officials, asking that an election be called to determine whether they should remain in, or be removed from, office. They wrongfully, but prudently, refused to call the election; whereupon the matter was presented to the circuit court upon a bill of exceptions, who, by judgment dated November 14, 1945, ordered the election to be held and appointed commissioners to hold and conduct it. The election was held, resulting in twenty-seven votes for removal from, and six votes for remaining in, office. There being six offices involved it does not do violence to logic to assume that each encumbent voted for himself and his fellow-office holders. The system of voting for one's self possesses, at least, the consoling assurance a candidate will get one vote. The Governor commissioned others to take the places of the old officials. However, said officials would not vacate. They continued in office, performing all the duties thereof. Assessment and levy of municipal taxes were made for 1944 and 1945, and during the years 1945 and 1946 some sixty-one lots, the property of complainants, appellants here, were sold for non-payment of village taxes, ten to individuals and some fifty-one to the village. The owners of these lots filed the bill in this cause, seeking an injunction, temporary and permanent, restraining appellees from exercising any functions as municipal officials of the village, especially in the assessment and sale of property for taxes, and to have the former assessments and sales declared null and void, and to remove, as clouds upon their titles, the records of the sales which had been made.

The chancellor, in this cause, held that the circuit judge had no power to order an election and appoint commissioners to hold it; that this power was vested exclusively in the Governor of the State under Section 3778, Code 1942, and that the recall election was void; that, therefore, the old officials were yet legally in office, performing the duties thereof, and that the tax sales were valid, but the time for redemption had not expired when the bill was filed, and the owners were given sixty days after the date of the decree within which to redeem the lots from the sales. The parties have agreed that the determining question is whether the circuit judge had the power to order the election and appoint commissioners to hold and conduct it.

Section 3374, Code 1942, empowers the qualified electors of a municipality to recall its officials at a special election held to determine that question. That section, and Sections 3775 and 3776, prescribe the requirements for calling such election. Briefly, those requirements are the filing with the municipal officials of a petition, or petitions, signed by at least twenty-five percent of the qualified electors of the municipality, setting out the grounds for removal and recall, duly verified by oath; whereupon it is the duty of the officials to call the election. However, if they do not do so, Section 3778 prescribes what shall then be done. That section reads: "Should the board of any municipality fail to act on any petition for either the initiative or the referendum within sixty days or on a petition for recall within thirty days after the filing of such petition, then the petition may be presented to the governor of the state, who shall at once order an election according to the terms hereof." In this case no petition was filed with, or request made of, the Governor asking him to order an election.

(Hn 1) In 50 Am. Jur. 593, Section 596, appears this rule of construction: "It is an established principle, that if a statute creating a new right or cause of action where none existed before, also provides an adequate remedy for the enforcement of the right created, and the statutory remedy is not by its terms cumulative, the remedy thus prescribed is exclusive. In such case, such remedy must be pursued in the enforcement of the right to the exclusion of any other remedy."

(Hn 2) The initiative, referendum and recall law was first enacted as Chapter 158, Miss. Laws 1914. It not only provides for the recall of municipal officials, but also for the initiation, enactment and repeal of legislation by direct vote of the electors. It creates and confers new and unusual rights, and prescribes a unique method for their exercise. The manner of calling the election is not cumulative. It is exclusive. No power is conferred upon a circuit judge to appoint election commissioners and order them to call and conduct an election. The power to order the election is exclusively with the Governor. It follows that the decree of the chancellor was correct. Appellants are given ninety days from the date of judgment herein within which to redeem the lots from the tax sales.

Some question is raised as to the amount of the solicitor's fee allowed for the wrongful suing out of the injunction. The chancellor was amply justified, under this record, in the allowance made by him.

Affirmed.