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CLIFTON M. PETERSON, AGNES MARIE PETERSON AND WILLIAM C. PETERSON v. CITY OF McCOMB CITY

MARCH 18, 1987

CLIFTON M. PETERSON, AGNES MARIE PETERSON AND WILLIAM C. PETERSON
v.
CITY OF McCOMB CITY, MISSISSIPPI



BEFORE WALKER, C.J., ROBERTSON AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This case poses but one question: May a municipality of this State, operating under a Private Charter, employ a city administrator, whose duties neither violate the city charter nor state statutes? Here, we hold that the city's governing board acted within its discretion, affirming the chancellor's decision to dismiss the complaint.

In 1982, the mayor and selectmen of McComb City enacted an ordinance creating the office of city administrator, a full-time position distinct from that of the part-time elected officials to whom he would answer. In 1984, they also passed an ordinance, creating the Department of Police and Fire Services, as well as the office of director for the department. The director then became both police chief and fire chief.

 Aggrieved by the organizational change, city firemen met on numerous occasions to discuss their concerns, electing representatives to contact local officials. They complained that the mayor and selectmen had improperly delegated their authority to the city administrator and the director of police and fire services, in violation of the city charter and state statutes. They also maintained that efficiency had declined under the new system and that morale had plummeted, when the city installed someone from the "outside" as fire chief, thereby reducing their ability to gain rank.

 When the District Attorney declined to pursue the matter, the firemen sued the City of McComb City, seeking (1) a declaratory judgment that the positions of City Administrator and Director of the Department of Police and Fire Services, as well as the Department of Police and Fire Services itself, were contrary to the city charter and state statutes, and (2) a permanent injunction denying the expenditure of funds for the positions and the department. On a motion for summary judgment, the chancellor dismissed the complaint, finding that the ordinances which created the positions and the department failed to violate either the city charter or state statutes.

 I.

 In Mississippi, a municipality is a "creature" of the State, possessing only such power as may be granted by statute. Delta Electric Power Association v. Mississippi Power & Light Co., 250 Miss. 482, 510, 149 So. 2d 504, 513 (1963); United Gas Corporation v. City of Philadelphia, 238 Miss. 482, 510, 118 So. 2d 618, 619 (1960). Yet, municipalities are not confined to a single method of operation, in the absence of statutory prescription. City of Jackson v. Luckett, 336 So. 2d 776, 778 (Miss. 1976); American-LaFrance, Inc. v. City of Philadelphia, 183 Miss. 207, 223, 184 So. 620, 623 (1938). In Webb v. City of Meridian, 195 So. 2d 832, 835 (Miss. 1967), the Court stated, "[Ilf a power is conferred and the law is silent as to the mode of exercising it, municipal authorities are clothed with a reasonable discretion to determine the manner in

 which it shall be carried out. All reasonable modes are inferred." This Court then will not interfere with a municipality's legislative authority, substituting its judgment for that of the governing body, Ridgewood Land Co. v. Simmons, 243 Miss. 236, 248, 137 So. 2d 532, 536 (1962), except where a local ordinance is arbitrary, discriminatory, confiscatory, an abuse of discretion, Fowler v. City of Hattiesburg, 196 So. 2d 358, 362 (Miss. 1967), or conflicts with a state statute. Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 263 So. 2d 767, 769 (Miss. 1972).

 Mississippi recognizes six forms of municipal organizations, including Miss. Code Ann. 21-3-1 to -25 (1972) (Code Charter), 21-5-1 to -23 (1972) (Commission), 21-7-1 to -19 (1972) (Council), 21-8-1 to -47 (Supp. 1986) (Mayor-Council), 21-9-1 to -83 (1972) (Council-Manager), Mississippi Constitution, Art. 4, 88 (Private Charter). See, 21-1-9 (1972). Under 21-1-11 (1972), this Court takes judicial notice of the class to which a city belongs and of its consequent powers. McComb City operates under a Private Charter, granted in 1872.

 The appellants contend that the city's Private Charter empowers only the mayor and selectmen to hire and fire city employees, a responsibility which they now ascribe to the city administrator. Yet, the ordinance states,

 The City Administrator shall hire and discharge all employees (other than those under Civil Service, those required by charter to be hired by the Board of Mayor and Selectmen, and department heads) authorized by the Mayor and Board of Selectmen to be hired, at such compensation as may be set or authorized by the Mayor and Board of Selectmen. (emphasis added)

 The appellants also cite numerous breaches of then applicable statutory provisions: only governing authorities to hire and fire a deputy clerk, 21-15-23 (1972), employees of a public utility commission, 21-27-17 (Supp. 1984), employees of the police and fire departments, 21-31-23 (Supp. 1984); only recreation commissioners to hire and fire employees of a recreation department, 21-37-37 (1972).

 Additionally, the ordinance provides that the city administrator will examine proposed contracts, prepare an annual budget, and act as the city's purchasing agent. The appellants maintain that these duties violate other

 statutory provisions, such as the employment of a municipal attorney, 21-15-25 (Supp. 1984), the duties of the city clerk, 21-35-11 (Supp. 1984), and the purchasing authority of the chief of police, 21-21-1 (1972), the superintendent of the public utility commission, 21-27-17 ...


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