                           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 MAYOR-
      COUNCIL 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.
