City of Jackson v. Wallace , 189 Miss. 252 ( 1940 )

I cannot bring myself to the view adopted by the majority of this Court in their construction of our venue statute, Section 495, Code 1930, so dissent from that holding that the City of Jackson was not suable in Walthall County. The Mississippi Power Light Company was a defendant found in that county. The City of Jackson was a defendant named in that suit.

Section 2391, Code 1930, provides that each city, town or village, which is incorporated, shall be a municipal corporation, with power: "First. — To sue and be sued."

This same language will be found in the charters of most, if not all, private corporations. The quoted power is unlimited and unrestricted. If the municipality sues another, it becomes a plaintiff or complainant in the circuit, chancery or other court. If it is sued in any court, it is a defendant; if sued with another defendant, then the municipality is a joint defendant.

Section 495 makes no distinction between defendants, whether a defendant be a municipal or private corporation. If a municipal corporation can be lifted from the meaning of the word "defendant," by the same stroke of the pen, a private corporation could be lifted from the operation of the statute. The Legislature, in using the word "defendant", could have used no broader word to be found in the dictionary. Private corporations and municipal corporations exist under the same legislative fiat in that they are granted the power to sue and be sued, so, no distinction by refined construction can be made when either class is sued. In any event, either or both of them are defendants. To me it is obvious that the statute includes and applies to municipalities if the question were a new one in this State; but it is not new, it has already been given this construction by this Court more than once.

In the case of Oliver v. Loye, 59 Miss. 320, this statute was before the Court for a construction of the same language now before us in this venue statute It was then contended in the lower court that the land involved did not lie within the jurisdiction of the chancery court under the common law rule as to the distinction between local and transitory actions.

Opposing counsel replied that our venue statute abolished all common law distinctions, except when otherwise enacted; that the statute by its own terms enumerates all local actions excepted. Judge Campbell adopted the latter view, holding that the only local actions under our statute were ejectment, and actions of trespass for injuries to land, and then said: "They must be brought in the county in which the land lies. All otheractions must be brought with reference to the person of thedefendant. The common law distinction of local and transitory actions does not exist here. The statute alone governs and we cannot disregard it, . . .". (Italics ours.)

The venue statutes then construed were Sections 522, 977, Rev. Code 1871; Section 1498, Rev. Code 1880; and have not been changed except to create other exceptions as to local actions.

Again, in Archibald v. Mississippi Tenn. R.R. Co., 66 Miss. 424, 6 So. 238, 239, the venue statute, Section 1498, Code 1880, was construed, and declared the law to be: "The common-law distinction between local and transitory actions does not exist here. The statute alone governs. The only local actions with us are ejectment and trespass on land. They must be commenced in the county in which the land lies. All other actions must be brought with reference to the person of the defendant. Code, Sec. 1498; Oliver v. Loye, 59 Miss. 320." (Italics ours.)

These decisions are binding upon this Court. Since their rendition, many Legislatures have convened without changing it so as to except municipal corporations. The statute, so far as it applies here, has been reenacted without change in the Codes of 1906 and 1930, — the Legislature thereby recognizing and adopting the Court's construction.

By Section 309, Code 1906; and Section 270 of Code 1930, counties were lifted from the operation of the general statute by providing that the venue should be the county site of the county sued. In Simpson v. Neshoba County, 157 Miss. 217, 127 So. 692, this Court held in effect that Section 270 was in force, along with the general venue statute. The latter decision was in no sense a construction of the general venue statute, but, in my opinion, tends to strengthen the view that a statute and not the common law must be looked to to localize the venue as to municipal corporations.

Still further, a general and well recognized rule for construction of statutes is that where a statute uses broad language, and thereafter recites specific exceptions, then, it is presumed that the Legislature intended to limit the exceptions to those specifically set forth therein.

At the common law as to venue, it was the rule that all actions against public municipal corporations were local, even though the form of action was transitory, on the ground of inconvenience, and some courts of this country have so held on the idea that the common law applied to a statute employing the same language as ours, — that a county or a public municipal corporation must be sued in all actions in the court of the domicile of such municipal corporations.

However, the weight of authority is in line with our Court; as announced in Oliver v. Loye, supra, that the statute on venue is the test of territorial jurisdiction as to municipal corporations. Raymond v. Lowell (Mass.), 6 Cush., 524, 53 Am. Dec. 57; National Shawmut Bank v. Waterville, 285 Miss. 252,189 N.E. 92; New Jersey Imperial Road Co. v. Gloucester County,80 N.J.L. 640, 77 A. 1022; Hesselbrock v. Burlington County,111 N.J.L. 177, 168 A. 45; Van Horn v. Kittitas County, 28 Misc. 333, 59 N.Y.S. 883, Id., 46 App. Div. 623, 61 N.Y.S. 1150; Harman v. Ft. Lauderdale, 134 Misc. 133; 234 N.Y.S. 196; Muskingum County Infirmary v. Toledo, 15 Ohio St. 409; Board of Com'rs of Kiowa County v. Kiowa Nat. Bank, 141 Okla. 271, 284 P. 634; Tahoka v. Jackson, 115 Tex. 89, 276 S.W. 662; Hunt v. Pownal, 9 Vt. 411; State ex rel. King County v. Superior Ct., 104 Wn. 268, 176 P. 352; Northern P.R. Co. v. State, 144 Wn. 505, 258 P. 482; Oklahoma City v. District Court, 168 Okla. 235, 32 P.2d 318, 93 A.L.R. 489.

The language of the venue statute is so plain and unambiguous as not to call for construction. The Legislature wrote into the statute all of the exceptions as to local actions it intended.

It seems inescapable that this Court unequivocally decided that there was no common law as to venue in this State, and with that construction upon it, the Legislature reenacted it; thereby, the statute, as construed by this Court, became the plainly expressed will and intention of the Legislature. The Legislature endorsed, approved and adopted this construction. See Hamner et al. v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; Womack v. Central Lumber Co., 131 Miss. 201, 94 So. 2; and Burks v. Moody,141 Miss. 370, 106 So. 528, 107 So. 279.

I frankly concede that inconvenience will arise if and when a municipal corporation is sued out of its county, but, it is my view that this matter of inconvenience is addressed to the Legislature, and is not to be entertained by the judicial branch of this government.

At the time this action was brought, this action was properly brought in Walthall County in so far as venue is concerned.

In reporting this case, the Court Reporter will set out Section 495, Code of 1930.¹ McGehee, J., dissents.

¹ "495. Venue of actions, what county generally — actionsagainst public officer to be brought in county of his residence. — Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found, and if the defendant is a domestic corporation, in the county in which said corporation is domiciled, or in the county where the cause of action may occur or accrue except where otherwise provided, and except actions of trespass on land, ejectment, and actions for the statutory penalty for cutting and boxing trees and firing woods and actions for the actual value of trees cut which shall be brought in the county where the land or some part thereof, is situated; but if the land be in two or more counties, and the defendant resides in either of them, the action shall be brought in the county of his residence, and in such cases, process may be issued against the defendant to any other county. If a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence, or if a public officer be sued in any such action, out of the county of his household and residence, although a surety or sureties, or some of the sureties, on his bond, or other joint defendant, sued with him, be found or be subject to action in such county, the venue shall be changed, on his application, before the jury is impaneled, to the county of his household and residence."