Abstracts and is maintained by courts of the highest authority. Jones, Neg. Mun. Corp. § 30; 2 Dill. Mun. Corp. § 977; 1 Shear. & R. Neg. § 266; 2 Thomp. Neg. 737; Tied. Mun. Corp. $332; Cooley, Torts (2d Ed.) pp. 740, 741, and note; Maxmilian v. Mayor, etc., 62 N. Y. 160; Lynde v. Rockland, 66 Me. 309; Spring v. Inhabitants of Hyde Park, 137 Mass. 554; Boome v. City of Utica, 2 Barb. 104; Webb v. Board (Mich.) 74 N. W. 734; Gilboy v. City of Detroit, 115 Mich. 121, 73 N. W. 128; Ogg v. City of Lansing, 35 Iowa, 495; Bryant v. City of St. Paul (Minn.) 23 N. W. 220. To these citations many others might be added in which the question is presented in various aspects. The statutes of this state provide that "all county and municipal quarantine shall be subordinate, subject to and regulated by such rules and regulations as may be prescribed by the governor or state health officer'' (Rev. St. art. 4328); and also that "all health authorities of the state, or of any county or city thereof, shall obey the rules and regulations prescribed by the governor or state health officer" (Rev. St. art. 4330). These provisions make the health officers of a city officers of the state, and show that in our state their functions are governmental, and are conferred in the interest of the public at large. In Clayton v. City of Henderson, 44 S. W. 667, 57 S. W. 1, the court of appeals of Kentucky hold in opposition to the opinion which we have expressed. The case relied upon to sustain their ruling is Haag v. Board, 60 Ind. 511. That was an action. against a county for wrongfully maintaining a pest house near the dwelling of the plaintiff, and to abate the nuisance. It was held that a demurrer to the petition was wrongfully sustained. It is not quite clear that the court intended to hold that an action for damages would lie against a public corporation in such a case. That an action may be maintained to abate by injunction a nuisance of the character of that in question we have no doubt. Whether it can be sustained against a municipal corporation as well as against the officers who have created it may be a question of some difficulty. But, if the court in that case intended to hold that an action for damages could, at common law, be maintained against a county, we do not concur. With due deference, we think the authorities cited in the opinion do not sustain that position. There is, to say the least, a controlling weight of authority. in favor of the opposite view. The contrary seems to be held by the same court in the case of Summers v. Daviess Co., 103 Ind. 263, 2 N. E. 725, and in other cases cited in the opinion in that case. Since we concur with the court of civil appeals in holding that an action did not lie against the city for the wrongs complained of in the petition, and since the case has been brought here on the ground that the decision of that court practically settles the case, it becomes our duty, under the statute, not only to affirm the judgment of that court, but to render judgment here for the defendant in error. It is accordingly so ordered. Abstracts Ott v. State ex rel. Lowrey. (Supreme Court of Mississippi, Feb. 4, 1901.) Officers Elected by Vote of Council-Right of Mayor to Vote.-Where city aldermen hold an election for a tax collector, required by Code, 2992, to be elected by the mayor and aldermen, and five aldermen vote for one candidate, and four for another, the mayor cannot cast his vote for the minority candidate, and then cast a deciding vote to elect such candidate, since the mayor is not a member of the board of aldermen, and is only entitled to vote when there is a tie. Same-Invalidity of Election Held by Retiring Council.-Code, § 2989, provides that the regular meeting of the board of aldermen of a city shall be on the first Tuesday of each month. Section 3030 provides that the general municipal election shall be held on the second Tuesday of December of each year, and the term of the officers so elected shall commence on the first Monday of the succeeding January. Section 2992 requires the board of aldermen to elect a tax collector at the first meeting after the annual election. A new board of aldermen was elected in December, but the 1st day of January came on Tuesday, and the old board met and elected a tax collector. On the first Monday of January, which was on the 7th day of the month, the new board qualified and elected a collector: held, that the election by the new board was valid, since the statute contemplated that the election should be by the new board, though it was not in existence on the first regular meeting in January. Appeal from circuit court, Harrison county; T. A. Wood, Judge. Quo warranto by the state, on relation against John Ott, to try title to an office. ousting defendant, he appeals. Affirmed. of R. J. Lowrey, From a judgment On the 11th day of December, 1900, a regular election for city officers was held in the city of Biloxi, at which a mayor and a board of aldermen were elected, whose term of office under the law, began on the first Monday of January, 1901; this being the 7th day of that month. After this election, on the first Tuesday-the first day-of January, 1901, the mayor and board of aldermen then holding met and undertook to elect the officers who are by law required to be elected by the mayor and board of aldermen. At that meeting R. J. Lowrey was elected city tax collector. On the 7th day of January, 1901, the mayor and board of aldermen that had been elected in December before met and proceeded to elect the same officers. At that election five aldermen voted for Lowrey, and four voted for John Ott, for city tax collector. The mayor then voted for Ott, in that way giving each candidate five votes. He then voted again for Ott, as if there had been a tie vote, and declared him elected, and issued a commission to him. He thereupon qualified and entered upon the duties of the office. Thereupon Lowrey filed an information in the nature of a quo warranto, setting up the foregoing facts, and praying for judgment of ouster against Ott. Ott demurred to this petition. The demurrer was overruled, and a judgment of ouster was rendered against him, from which he appealed. Bowers, Chaffe & McDonald, for appellant. W. A. White and A. Y. Harper, for appellee. Abstracts WHITFIELD, C. J. In the case of Bousquet v. State (decided last Monday) 29 South. 399, we held that the mayor of a municipality which had accepted the provisions as to municipalities provided by the Code of 1892, in the chapter on that subject, could not vote, in an election for the officers provided for in section 3001 and section 2992, except when there was a tie between the aldermen; that the mayor was not a member of the board of aldermen, and could not vote, as an alderman, to make a tie, and then, as mayor, to break it, thus voting twice. In this case, adhering to that ruling, we are required to decide the further question whether the old board or the new board should elect the tax collector, since section 2992 provides that the tax collector shall hold his office for two years, and until his successor is qualified, and the successful litigant in this case would not, without such decision, know from what date his term of office began. We are satisfied, after a careful and critical examination of the chapter on "Municipalities" in the Code of 1892, that the old board had no power to elect. Such power can only be derived from the most technical adherence to the very letter of sections 2989 and 2992, looked at isolatedly, wholly disconnected from all of the other sections of that chapter relating to the matter. Such construction is manifestly opposed to the whole spirit and scope of said chapter. It would permit a board, which had been defeated at an election on the very issue of who the tax collector should be, to elect, when the first Tuesday of January came before the first Monday, that person tax collector who had been repudiated at the polls, where, as might occur, his selection was made a matter of preference and instruction by the voters. The plain purpose of the Code provisions was that the new board-the incoming administration-should choose the clerk, the tax collector, and the police justice, unembarrassed by any opposition on the part of the retiring board. The new administration is the one with which the new subordinate officers are to work, and is responsible to the people for making a wise selection. An inspection of the calendar shows that beginning with 1892, and concluding with 1929. A. D., a period of 38 years, there are only 5 instances in which the year succeeding a municipal election begins on Tuesday. There will occur in said period 19 city elections, and in only 5 of these does the year following begin with Tuesday. The legislature had in mind the general, not the exceptional, what would usually happen, to wit, that Tuesday would come after Monday, not what would be extraordinary, and happen only 5 times in 19 elections, or 38 years. Some point was attempted to be made as to the disarrangement of the terms of office-their unequal length-on the construction we favor. But the same thing would apply as an objection in the matter of the term of governor; and, besides, if fixed and permanent procedure is the object to be secured, how is that in any wise accomplished by upsetting 5 times in Abstracts 19 the regular course of procedure? It has long ago been declared as settled law, universally approved and followed, that "a thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the makers." People v. Utica Ins. Co., 15 Johns. 358-380. This court has furnished some most striking illustrations of construing a statute according to its spirit, when that is clear, against the mere letter. See, notably, Railroad Co. v. Trotter, 60 Miss. 442; Ex parte Gore, 57 Miss. 251; and Bates v. Stokes, 40 Miss. 56. Illustrations from other courts might be indefinitely added. We laid down the true rule of construction in Adams v. Railroad Co., 75 Miss., at page 285, 22 South. 826, which we reannounce, to wit: "A statute must receive such construction as will, if possible, make all its parts harmonize with each other, and render them consistent with its scope and object. The entire statute must be so read that the whole may have a harmonious and consistent operation. In the construction of a statute, the object is to get at its spirit and meaning.-its design and scope; and that construction will be justified which evidently embraces the meaning and carries out the object of the law, although it is against the letter and the grammatical construction of the act. In determining the proper construction of a statute, the entire legislation on the subject-matter,-its policy, reason, as well as the text, must be looked to." Again, contemporaneous construction by those whose duty it is to act under and administer a statute is oftentimes materially helpful. This state of affairs existed in 1895, and yet no one ever pretended that the old board could elect; and, so far as the records of this court disclose, the present is the only instance where such contention as appellants make has been advanced. It is also a fundamental rule of construction that courts will not give any statute such construction as would charge upon the legislature folly or absurdity. We can conceive nothing more foreign to the whole spirit and scope of this municipal legislation, which more directly affronts common sense, or which more inevitably imputes folly to the legislature, than the construction which would authorize a defeated board to fasten upon an incoming administration, and the taxpayers of a city, officers not chosen by that new board, and who might be actually hostile to it, and unacceptable to the people who elected the new board. We know, of course, nothing about the officers here contending, and are speaking by way of argument, merely, to show how untenable is appellant's contention. In construing a statute, how it may operate, and not simply how in a single instance it does operate, is to be considered. The ordinary operation, not the isolated instance, is material. All the sections relating to the organization of the new mayor and board of aldermen, and the election of Abstracts their subordinate officers, should be looked at as one whole, and collocated so as to make the purpose of the legislature effective. If sections 2989, 2992, 3001, and 3030 be properly. collocated, and looked at as one entire scheme, it is perfectly clear that the new board alone has the power. Section 2989 simply provides that the regular meetings of the board shall be on the first Tuesday of each month, not that these officers shall be then elected. These sections should be collocated in the following order: Sections 3030, 2992, 3001. Section 3030 provides for the election and organization of the new board. Section 2992, which should be read immediately after it, then provides that "at the first regular meeting of the mayor and board of aldermen succeeding each regular election they shall elect," etc.; manifestly meaning "at the first regular meeting of the new mayor and board of aldermen," the one just elected and organized as provided in section 3030. No other sensible construction can be given to the two sections thus collocated, and none other would probably occur to any mind were they so collocated. It is perfectly permissible so to transpose and collocate them. Section 2992 manifestly refers to the board provided for by section 3030,-the new board. Indeed, such transposition and collocation go far to place the power of the new board to elect within the letter as well as the spirit of the law, since section 2889 is merely a general direction as to when regular monthly meetings shall be held for any and all purposes every month, not having any special reference to the election provided for in section 2992. Counsel for appellee have yoked the wrong sections together (sections 2889 and 2992), and, like Nelson at Copenhagen, shut their eyes on section 3030, and so have not seen the plain meaning of the law, to be seen at a glance by yoking sections 3030 and 2992 together, and reading them in this order. We have given the case most careful consideration, as its importance demanded should be done, and are clearly of the opinion that the new board alone has the power to elect the officers named in section 2992. Relator was elected by the new board, and his term of office dates from that election. The views of the learned circuit judge are in conformity with these views, and the judgment is affirmed. Bousquet v. State ex rel. Gleason. (Supreme Court of Mississippi, Jan. 28, 1901.) Mayor's Right to Vote in Council.-Code, 3001, authorizes "the mayor and board of aldermen" of cities of a certain size to elect a police justice; and section 2979 prescribes that the mayor shall preside at all meetings of the board of aldermen, and, "in case there be an equal division," shall give the deciding vote: held, that a mayor could not vote for the election of officers by the council, except in the 6 M C Cas-56 |