
    City of Laurel v. William D. Turner.
    [51 South. 403.]
    Municipalities. Code 1906. §§ 3398, 3399. Police justice pro tempore. Oity of more than seven thousand inhabitants.
    
    Under Code 1906, § 3398, providing for the election by the voters of a police justice in cities of seven thousand or more inhabitants, the mayor and board of aldermen of a city having so large a number of inhabitants are without power to elect a police justice pro tempore, nor can the board invest itself with such power by ordinance, although the municipal board of a city having less inhabitants may do so, under Code 1906, § 3399, expressly granting the power.
    From the circuit court of, second district, Jones county.
    HoN. Robert L. Bullard, Judge.
    The appellee, Turner, having been tried in the municipal court of the city of Laurel, on a charge of unlawfully using indecent and abusive language in the presence of a female, in violation of a municipal ordinance, appealed to the circuit court. In that court the action was dismissed on appellee’s motion, for the reason set forth in the opinion; and the city appealed therefrom to the supreme court.
    
      W. 8. Welch,, for appellant.
    Code 1906, § 3399, provides for the election of a police justice pro tern, in cities of less than seven thousand inhabitants at the option of the mayor and board of aldermen. Code 1906, § 3398, creates a police court in all cities of seven thousand or more inhabitants, and prescribes the way in which the police justice shall be elected, but makes no provision for the election or appointment of a police justice pro tem. Code 1906, § 3398, was introduced into our state jurisprudence in 1906. Before that time there was no provision for a police justice in a city of less than four thousand inhabitants; and it was left to the discretion of the municipal authorities in all cities of four thousand or more inhabitants to determine whether a police justice and a police justice pro tem. should be elected. The mayor and board of aldermen of all cities of less than seven thousand inhabitants have now express authority to determine whether their police court shall be presided over by the mayor or by a police justice. If the mayor and board of aldermen decide to have the municipal court presided over by a police justice rather than the mayor, then provision is made by the statute law for the appointment of a police justice pro tem. It is admitted that Laurel is a city of more than seven thousand inhabitants, and therefore a police court is created by law' and a police justice is, and must be, elected by the people. ' No express provision was made for a police justice pro tem. in Code 1906, § 3398, but authority is given to the mayor and board of aldermen under Cbde 1906, § 3331, to elect any necessary officers. If a police justice pro tem. is advisable in cities of less than seven thousand inhabitants having a police justice, then is it not absolutely necessary that cities of more than seven thousand inhabitants have a police justice pro tem.? Under the ruling of the court in Hughes v. State, Y9 Miss. 19, 29 South. 186, Code 1906, § 3331, is undoubtedly constitutional. The mayor and board of aldermen of the city of Laurel did not undertake to create a court. The court was already created by the legislature. The board attempted nothing further than the election of an officer to preside over the court already created during the absence of the police justice.
    
      Tbe city’s contention for authority under Cbde 1906, § 3331, is consistent with tbe ruling of tbe court in tbe case of Rich v. McLcmrin> 83 Miss. 95, 25 South. 337.
    
      T. H. Oden and J. P. Thornton, for appellee.
    Tbe ruling of tbe court below in sustaining the motion to ■dismiss tbe case was clearly correct. To have held otherwise, would be to decide that chapter 99 of tbe Mississippi Code of 1906 gives to the mayor and board of aldermen of a city of seven thousand inhabitants tbe inherent right to create a court, and tbe right to change tbe mode of electing or choosing its officers at pleasure, regardless of tbe plain provisions of tbe chapter to tbe contrary.
    Tbe duties of a police justice pro tem. in tbe absence of tbe regular police justice, are identical with tbe duties of tbe regular police justice. Code 1906, § .3398, creates a police court in municipalities in this state to be presided over by a police .justice, and states specifically that such police justice in cities of seven thousand or more inhabitants shall be elected when tbe other municipal officers are elected and that be shall be commissioned and continue in office for tbe same term as tbe other municipal officers.
    When tbe regular police justice is absent or disqualified tbe police justice pro tem. becomes tbe police justice, performs the same duties, and hence must have tbe same qualifications as tbe regular police justice. In cities of seven thousand or more inhabitants, be should be elected as tbe mayor and other officers are, be should be commissioned, a qualified elector of tbe municipality, and an attorney at law, under tbe express provisions of tbe statute law. If this were not so, Code 1906, § 3398, would mean absolutely nothing.
    It is expressly provided in Code 1906, § 3375, that tbe mayor, marshal, aldermen, tax collector, treasurer, city clerk, .and street commissioner shall all be elected by tbe people; and Code 1906, § 3898, provides that the police justice of a. city of seven thousand or more inhabitants shall be elected when the mayor and other officers of the municipality are-elected. Now, to- hold that the mayor and board of aldermen in cities of seven thousand or more inhabitants-, may elect the police justice pro tern, is, in effect, giving them-the right to-change an office elective by the people to an office elective by the mayor and board of aldermen, thus taking from the electors-of such municipality the right to vote for these officers as fixed, by Code 1906, §§ 3375, 3398.
   Mayes, J.,

delivered the opinion of the court.

The city of Laurel appealed this case-. It seems to- be conceded by all parties that the city of Laurel has more than seven-thousand inhabitants, and its charter is the general municipal’ law of the state. The mayor and board of aldermen of the-city of Laurel passed an ordinance providing for the election of a police justice pro tern, by the mayor and board of aider-men, and after passing the ordinance proceeded to- elect one B.. B. Carter to fill the place. Afterwards an affidavit was made against Turner, appellant, charging him with a violation of a city ordinance. We do- not deem it necessary to set out the charge, since no question grows out of it alone. A trial was-had before the police justice pro tem., resulting in a conviction of Turner, who prosecuted an appeal to the circuit court of the county. When the cause- reached there, the defendant made-a motion to dismiss the case, because the trial and conviction was before a police justice pro te to., elected by the mayor and board of aldermen of the city of Laurel without any power so-to- do. The court sustained the motion, dismissed the case, and discharged the defendant.

The sole question in this case is whether or not the city of' Laurel, being a city of over seven thousand inhabitants, has the power to select a police justice pro te to. by its mayor and board of aldermen. Tbe rights of tbe city of Laurel are controlled in tbis particular by Code 1906, § 3398; tbis section being tbe one wbicb applies to. all cities of over seven thousand inhabitants, and tbe city of Laurel is in tbis class. Such being tbe case, tbe city N of Laurel is without any power to elect a police justice pro tern., either through its mayor and board of aldermen or in any other way, since no such authority is given, by the statute. The rights of municipalities are controlled by their charter powers, and what is not in the charter cannot be placed there by municipal action. Municipalities, are dependencies, not sovereignities.

The action of the court was correct. Affirmed.  