IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-01076-SCT

WILLIAM M. TISDALE

v.

WILCHIE CLAY, WILLIE A. COOK, CLOYD GARTH

AND DEE RILEY, SERVING AS ALDERMEN OF

THE CITY OF ABERDEEN IN THEIR INDIVIDUAL

WARDS

DATE OF JUDGMENT: 08/14/97

TRIAL JUDGE: HON. WILLIAM JOSEPH LUTZ

COURT FROM WHICH APPEALED: MONROE COUNTY CHANCERY COURT

ATTORNEYS FOR APPELLANT: JAN P. PATTERSON

CLAUDE A. CHAMBERLAIN

ATTORNEY FOR APPELLEES: DEWITT T. HICKS, JR.

NATURE OF THE CASE: CIVIL - OTHER

DISPOSITION: AFFIRMED - 11/12/98

MOTION FOR REHEARING FILED: 11/23/98

MANDATE ISSUED:

BEFORE PITTMAN, P.J., ROBERTS AND SMITH, JJ.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. The appellant, William M. Tisdale (hereinafter "Mayor"), along with Robert D. Patterson, City Attorney

at the time, and Kelly Tucker, one of the five members of the Board of Aldermen, filed suit for declaratory

judgment against the appellees, Wilchie Clay, Willie A. Cook, Cloyd Garth and Dee Riley, the other four

members of the Board of Aldermen (hereinafter "Aldermen"). Robert D. Patterson withdrew from the case

before trial and Alderman Kelly Tucker declined to join in the appeal.

¶2. In his complaint for declaratory judgment, Mayor cited a dispute between Mayor and Aldermen as to

which had the power to appoint the persons to serve as city attorney, municipal judge, public defender, and

the subordinate officers and department leaders of the City, and which had the authority to exercise direct

supervisory control over the City employees and supervisors in each department, and which had the
responsibility for the operations of the City. He asked the court to declare that Aberdeen's Special Charter,

enacted in 1854, gives that authority to Mayor. Aldermen answered that Aldermen, not Mayor, have the

prerogative and duty under the City Charter to appoint the city attorney, the city judge and public defender,

as well as the other subordinate officers.

¶3. The three Chancellors of the First Judicial District recused themselves and this Court subsequently

appointed Honorable Bill Lutz, Chancellor of the Eleventh Chancery Court District, to preside and conduct

the proceedings in this case.

¶4. After being advised by counsel for Mayor and for Aldermen that there were no issues of fact to be

determined by the Court, Chancellor Lutz requested simultaneous briefs from both sides on the issues of

law, stipulation of facts, and a stipulation of what to include in the trial record. Counsel for both sides

agreed that the entire court file, the stipulations to Chancellor Lutz, and the simultaneous briefs of Counsel

would comprise the record.

¶5. On August 14, 1997, Chancellor Lutz filed his Opinion and Judgment in which he held that the City

Council, which consists of Mayor and Aldermen, have the authority to appoint the city attorney, city judge,

public defender and any other subordinate officer the Council determines is appropriate, and that the

Council has the authority to establish the term of office for each officer. The Chancellor further held that the

Mayor has the authority to appoint a replacement should a subordinate officer be unable to complete the

term established for that subordinate office.

¶6. Aggrieved, Mayor filed this notice of appeal. Mayor raises four issues on appeal:

I. WHETHER SECTION 21 OF THE SPECIAL CHARTER OF THE CITY OF

ABERDEEN GRANTS TO THE MAYOR THE USUAL POWERS INHERENT IN THE

EXECUTIVE BRANCH OF GOVERNMENT AS SET OUT IN ARTICLE I, SECTIONS 1

AND 2 OF THE MISSISSIPPI CONSTITUTION OF 1890.

II. IF MISSISSIPPI STATUTORY LAW IN REGARD TO MUNICIPALITIES SHOULD

BE APPLIED IN INTERPRETING THE CITY'S SPECIAL CHARTER, THE

STATUTORY MAYOR-COUNCIL FORM OF GOVERNMENT IS APPLICABLE.

III. UNDER THE SPECIAL CHARTER AND THE STATE MUNICIPAL STATUTES

THE MAYOR HAS THE SOLE AUTHORITY TO DIRECT CITY OPERATIONS,

INCLUDING THE RIGHT TO HIRE, FIRE AND DISCIPLINE CITY EMPLOYEES.

IV. ARTICLE I, SECTIONS 1 AND 2 OF THE MISSISSIPPI CONSTITUTION OF 1890

APPLIES TO LOCAL GOVERNMENTS AND OFFICIALS; THEREFORE, THE

INTERPRETATION OF THE SPECIAL CHARTER OF THE CITY OF ABERDEEN

SHOULD BE HARMONIZED WITH THE CONSTITUTION IF POSSIBLE. IF THIS IS

NOT POSSIBLE, IT SHOULD BE HELD TO BE UNCONSTITUTIONAL INSOFAR AS

THE SEPARATION OF POWERS DOCTRINE IS CONCERNED.

¶7. This Court will address each of these issues in turn. The standard of review in the present case is de

novo. This Court in Stevenson v. Stevenson, 579 So.2d 550, 553 (Miss. 1991) (quoting Planters Bank

& Trust Co. v. Sklar, 555 So.2d 1024, 1028 (Miss. 1990)), stated, "[w]hen the determination is one of

law rather than fact, 'the familiar manifest error/substantial evidence rule does not prevent this Court from
conducting a de novo review of the chancellor's finding.'"

I. WHETHER SECTION 21 OF THE SPECIAL CHARTER OF THE CITY OF

ABERDEEN GRANTS TO THE MAYOR THE USUAL POWERS INHERENT IN THE

EXECUTIVE BRANCH OF GOVERNMENT AS SET OUT IN ARTICLE I, SECTIONS 1

AND 2 OF THE MISSISSIPPI CONSTITUTION OF 1890.

¶8. The Chancellor is correct in his finding that the special charter of the City of Aberdeen grants the Mayor

myriad responsibilities. Section 21 of that Charter charges the Mayor with the responsibility to see that

the laws and ordinances thereof are strictly enforced, to inspect the conduct of subordinate officers,

and see that their duties are performed; he shall report, from time to time, to the council, all

delinquencies on the part of such officers, and communicate such information, and recommend such

measures, as he may deem beneficial to the health, security, and good order and government of the

corporation; he shall also have power to fill all vacancies that may occur in the subordinate officers of

said city. And the said mayor shall also have the power to take and certify . . . the proof and

acknowledgment of deeds, and other instruments of writings . . . such proof or acknowledgment to be

sufficient for the lawful registration of such deeds . . . . He shall, also, . . . be ex-officio a justice of the

peace, and a notary public . . . and likewise to administer all oaths . . . .

1854 Miss. Laws, 100, § 21.

¶9. The Chancellor correctly states that § 21 of the Special Charter of Aberdeen gives the Mayor the

power to appoint subordinate officers only to fill a vacancy of an officer who was properly appointed by the

city council but then fails to serve out his full term. Furthermore, the City of Aberdeen in April of 1958

passed Council Resolution No. 246 which expressly provided that:

The city council shall annually appoint the said city attorney or attorney at law for the municipality for

a term to expire not later than the first Tuesday of May of each year, prescribe his duties, and fix his

compensation as provided by law.

¶10. The Mayor argues that when the Charter states that he has "power to fill all vacancies that may occur

in the subordinate offices of the City" that it implies the Mayor's power of appointment to any offices not

specifically granted to the council. This is an incorrect reading of the City of Aberdeen Special Charter

because the Charter specifically gives such power to the city council, not the Mayor. Section 8 of the

Special Charter of Aberdeen grants the city council, "to be constituted by said mayor and selectmen," the

power to appoint a city clerk, assistant Marshall for keeping order, tax assessor, tax collector, treasurer,

city surveyor, "and appoint such other officers as it may deem necessary, for such terms of office, and with

such regulations as it may, by ordinance, prescribe." 1854 Miss. Laws, 100, § 8.

¶11. This specifically gives the city council, not the Mayor acting alone, the power to appoint city personnel

not specifically mentioned in the special charter. The Chancellor is correct in dismissing the Mayor's

argument that under the separation of powers he should appoint all officers as the chief executive officer.

This argument fails because the Aldermen do not appoint the subordinate officers, rather the city council

composed of both the Mayor and the Aldermen appoint the subordinate officers. 1854 Miss. Laws, 100, §

8.

¶12. This Court has recognized that local government has numerous positions and groups which consist of a
mix of administrative and legislative characteristics. See Edwards v. Weeks, 633 So.2d 1035 (Miss. 1994)

. As the Chancellor so aptly put it, "[t]he combination of the Mayor and Aldermen working together as one

body is not new to this state."

II. IF STATUTORY LAW OF MUNICIPALITIES IS CONSIDERED IN

INTERPRETATION OF A SPECIAL CHARTER, THE STATUTORY MAYORCOUNCIL FORM OF GOVERNMENT IS APPLICABLE.

¶13. The Mayor argues that Aberdeen's Special Charter most closely resembles a mayor-council form of

government as defined in Miss. Code Ann. § 21-8-23 and § 21-8-27 (1990). However, this Court finds

that this argument is irrelevant given the plain language of the Aberdeen Special Charter and therefore

concludes that this argument is without merit.

III. THE MAYOR HAS SOLE AUTHORITY TO DIRECT CITY OPERATIONS.

¶14. This issue becomes moot since this Court affirms the Chancellor's holding that the power of

appointment of city officers under the City of Aberdeen's Special Charter is vested in the city council

composed of the mayor and the aldermen. 1854 Miss. Laws, 100, § 8. The Chancellor is affirmed.

IV. ARTICLE I, SECTIONS 1 AND 2 OF THE MISSISSIPPI CONSTITUTION APPLIES

TO LOCAL GOVERNMENT.

¶15. The Mayor asserts that under Article I, Sections 1 and 2 of the Mississippi Constitution, local

governments operate subject to the separation of powers theory of government wherein the Mayor is the

executive power and board of aldermen are the legislative power and, therefore, they cannot both exercise

appointment powers because that would be a solely executive power vested entirely in the Mayor. For

support of this proposition, the Mayor cites Jordan v. Smith, 669 So.2d 752, 756 (Miss. 1996).

¶16. However, the aldermen correctly point out that Jordan does not support the Mayor's separation of

powers argument. This Court in Jordan stated that "there is no natural law of the separation of powers, and

the powers of local government are separate only insofar as the State Constitution makes them." Jordan v.

Smith, 669 So.2d 752, 756 (Miss. 1996). Justice Banks, writing for the Court, further stated, "[the]

dissent does not cite nor has the writer found an instance in which the constitutional doctrine of separation

of powers has ever been applied to municipal government. On the contrary, the code is replete with

instances wherein governmental functions are merged at that level." Id. at 758 n. 4. Further support for the

Aldermen's argument can be drawn from Edwards v. Weeks, 633 So.2d 1035 (Miss. 1994) which the

Chancellor cited in his Final Order. In Edwards, this Court recognized that local governments have

numerous positions which consist of administrative and legislative characteristics. Id.

¶17. In the final analysis, the Special Charter of Aberdeen clearly and sufficiently answers the question of

who has authority to appoint the city officers not specifically named in the charter - the city council does.

¶18. AFFIRMED.

PRATHER, C.J., SULLIVAN, P.J., BANKS, McRAE, ROBERTS, SMITH AND WALLER,

JJ., CONCUR. MILLS, J., NOT PARTICIPATING.