State ex rel. District Attorney v. Govan

Campbell, C. J.,

delivered the opinion of the court.

Chapter 93 of the code of 1892 was framed on the plan of all the municipalities in the state being governed by its provisions from the time of its becoming operative; but, because of opposition to this, it was provided that an existing municipality might elect not to come under the provisions of the chapter, by resolution of its corporate authorities, entered of record and certified to the secretary of state within twelve months after the chapter became operative. It was not prescribed how or by whom the resolution should be certified,. and that is not of importance; but it is declared that the resolution should be certified within a time named, and that is essential to the accomplishment of a defeat of the plan on which the law was based.

The constitution requires general laws under which cities and towns may be chartered and their charters amended (§ 88); and by § 178 it is declared that “ corporations shall be formed under general laws only.” In view of the constitutional scheme thus plainly indicated, both as to municipal and other corporations, the chapter on municipalities in the code was prepared and adopted. The manifest purpose was that all should come under it, and thus have uniformity in the charter powers of municipalities according to their several classes; but, as stated above, the right of election was given, to be exercised in a prescribed time, and within that time to be certified to the secretary of state. Resolution without certification as directed was insufficient. The former expressed the will of the corporate authorities; the latter made it known to the designated official, and was necessary to the effective operation of the resolution not to come under. The rule deduced from the law is subjection to the chapter. The exception made is that compliance with certain conditions relieves from the operation of the chapter; and only by strict compliance with all that is prescribed can the claim of exemption from the operation of the rule be maintained. To admit that the resolution might lawfully be certified to the secretary of state after the time given, and be effective, would thwart the scheme of the law to have in the office of secretary of state, by April 2, 1893, official information on which the governor is required, by § 3037, to act, and from which the courts can take judicial notice, as required by § 3038 of the code. After April 2, 1893, and so long as the resolution of the corporate authorities was not certified to the state officer, it would not be known, in the way prescribed by law, that it had been resolved not to come under the chapter; and it would be assumed, in accordance with the law, that the chapter was operative on the municipality not having certified the resolution to the contrary; but six or twelve months afterward, or at some longer period, it would be certified to the secretary of state that a resolution was adopted by the eoi-porate authorities within twelve months from April 2,1892. During all this period, the status of the municipality, as subject to the code chapter or its former charter, would not be determinable from the records of the office of secretary of state, which would contravene the manifest purpose of the law. True, it would make no difference to the municipality. Its corporate authorities would know of their own action, and govern themselves accordingly; but the purpose of the law is that the status of every municipality shall be known to all, not by application to the record it has, but by the showing of the office of secretary of state. If, on April 2, 1893, which was twelve months from the time when the code chapter became operative, the office of secretary of state did not contain the certified record of the resolution of the corporate authorities not to come under; it was under, and to be so dealt with by all concerned.

It must be manifest to all that this view cannot be escaped, and that Clarksdale, not having procured the certification of the resolution of its corporate authorities not to com¿ under to the secretary of state within twelve months from April 2, 1892, lost its opportunity to elect, and became subject to the code chapter on municipalities in conformity to the contemplation of the constitution and law passed in pursuance of it. It will not do to say that failure -to certify to the state officer for a few days should not be fatal to the resolution. No difference can be made between a short and a long time. A period was prescribed, and it must be exactly observed.

Affirmed.