Opinion
No. 35637.
June 12, 1944.
1. COUNTIES.
The members of county board of supervisors and their bondsmen were not personally liable to state auditor for paying to county auditor a sum allegedly in excess of maximum amount allowable.
2. COUNTIES.
The 1932 statute providing that counties shall be classified according to 1930 assessed valuation applied only in fixing county officers' salaries for 1932, so that county auditor's salary for 1942 was properly based on 1942 assessment, in view of provision of 1930 Code, that county whose classification is changed by new assessment shall remain in original class until one year after succeeding January 1 (Laws 1932, ch. 193, sec. 13; Code 1930, sec. 6498 and secs. 6499, 6501-6509, and 6567, as amended by Laws 1932, ch. 193, secs. 1-11).
3. STATUTES.
A statute not expressly repealed or amended was required to be construed in harmony with subsequently enacted statute, so as to effectuate both statutes.
APPEAL from the chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Creekmore Creekmore, of Jackson, for appellant.
The salary of county auditors as fixed in Section 6 of Chapter 193 of the Laws of 1932 is based upon the classification of the county according to the 1930 assessment and the salary of the county auditor for the year 1942 is likewise based on and limited by the assessment of Yazoo County for the year 1930.
Code of 1930, Secs. 6499, et seq.; Laws of 1932, Chap. 193; Laws of 1938, Ex. Sess., Chap. 25; Laws of 1940, Chap. 225.
See also Laws of 1938, Chap. 319; Laws 1938, Ex. Sess., Chap. 66; Laws of 1940, Chap. 270; Laws of 1944, Chap. 178; Laws of 1944, Chap. 192.
From the legislative history of the acts fixing the salary of the county auditor it is manifest that at all times after 1932 and under each of the three acts fixing the salary of the county auditor the classification of counties continued to be based on the assessment for the year 1930.
This excessive allowance was to an object not authorized by law.
Miller v. Tucker, 142 Miss. 146, 105 So. 774.
The appellees take the position that the basis of classification to be followed was that fixed by Section 6498, Code of 1930, and that it remains in full force and effect and has not been amended or repealed by Chapter 193, Laws of 1932, because such construction would violate Sections 61 and 90( o) of the Constitution of 1890.
It is elementary that the law does not favor repeals by implication and where two statutes are apparently in conflict with each other, they must be construed, if possible, so that the latter will not by implication work a repeal of the former. However, it is well-settled that where there is a clear and manifest conflict between the two acts which it is not possible to reconcile, the latter will be held to repeal the former by implication.
Stingley v. City of Jackson, 140 Miss. 19, 104 So. 465.
In the case at bar we have two statutes in hopeless conflict with each other. The former provides that the class of a county shall fluctuate according to assessed valuation. The latter provides that the class of a county shall remain stationary as in 1930, from which it necessarily follows that it shall not fluctuate at all. Therefore, we have a case here where the latter act, or the 1930 base provision, if valid, necessarily repealed the fluctuating provision.
Section 13, Chapter 193, Laws of 1932, is a general law and not a local, private or special law.
Toombs v. Sharkey, 140 Miss. 676, 106 So. 273; State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129; 25 R.C.L. 815, Sec. 66.
The courts will presume in favor of the constitutionality of a law until the contrary clearly appears.
Farmers' Loan Trust Co. v. Stone, 20 F. 270, decree reversed Stone v. Farmers' Loan Trust Co., 6 S.Ct. 334, 388, 1191, 116 U.S. 307, 29 L.Ed. 636; Runnels v. State, Walk. (1 Miss.) 146.
See also Johnson v. Reeves Co., 112 Miss. 227, 72 So. 925; Miller v. State, 130 Miss. 564, 94 So. 706; Hinds County v. Johnson, 133 Miss. 591, 98 So. 95; Mai v. State, 152 Miss. 225, 119 So. 177.
When a classification in a statute is questioned, courts will presume that the legislature acted on legitimate grounds of distinction, if any state of facts reasonably can be conceived that would sustain classification, and will not require the legislature to specify its reasons for classifications, even if reasons are not obvious.
Stone v. General Electric Contracts Corporation, 193 Miss. 317, 7 So.2d 811; Stone v. Universal Credit Co., 193 Miss. 354, 7 So.2d 820; Stone v. Yellow Manufacturing Acceptance Corporation, 193 Miss. 338, 7 So.2d 820; State ex rel. Jordan v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710.
It is presumed that a statute is valid and the burden rests upon the party claiming the contrary to clearly establish its contention.
L.N. Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; Smith County v. Eastman Gardner Co. (Miss.), 53 So. 7; Beasley v. McElhaney (Miss.), 53 So. 8; Russell Inv. Corporation v. Russell, 182 Miss. 385, 182 So. 102, setting aside 182 Miss. 385, 178 So. 815; Lawrence v. State Tax Commission of Mississippi, 52 S.Ct. 556, 286 U.S. 276, 76 L.Ed. 1102, 87 A.L.R. 374, affirmed Lawrence v. Mississippi State Tax Commission, 162 Miss. 338, 137 So. 503.
See also State v. Louisville N.R. Co., 97 Miss. 35, 53 So. 454, Ann. Cas. 1912C, 1150, overruling suggestion of error, 97 Miss. 35, 51 So. 918, Ann. Cas. 1912C, 1150; Natchez S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; Easterling Lumber Co. v. Pierce, 106 Miss. 672, 64 So. 461, appeal dismissed 35 S.Ct. 133, 235 U.S. 380, 59 L.Ed. 279; Darnell v. Johnston, 109 Miss. 570, 68 So. 780; Staple Cotton Co-op. Ass'n. v. Hemphill, 142 Miss. 298, 107 So. 24; State, for Use of Robertson v. Miller, 144 Miss. 614, 109 So. 900, judgment reversed 48 S.Ct. 266, 276 U.S. 174, 72 L.Ed. 517; State ex rel. Forman v. Wheatley, 113 Miss. 555, 74 So. 427; Miller v. State, 130 Miss. 564, 94 So. 706; Robinson v. State, 143 Miss. 247, 108 So. 903; Marshall v. Grimes, 41 Miss. 27; State ex rel. Collins v. Jones, 106 Miss. 522, 64 So. 241, 469; Money v. Wood, 152 Miss. 17, 118 So. 357; Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96, 705; State ex rel. Jordan v. Gilmer Grocery Co., supra; Miller v. Sherrard, 157 Miss. 124, 126 So. 903, 906; Sandford v. Dixie Const. Co., 157 Miss. 626, 128 So. 887; Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781, aff. 54 S.Ct. 541, 291 U.S. 584, 78 L.Ed. 1004; reh. den. 54 S.Ct. 627, 292 U.S. 601, 78 L.Ed. 1464; Tucker Printing Co. v. Board of Sup'rs of Attala County, 171 Miss. 608, 158 So. 336; State ex rel. Attorney-General v. School Board of Quitman County, 181 Miss. 818, 181 So. 313; Russell Inv. Corporation v. Russell, 182 Miss. 385, 182 So. 102, setting aside 182 Miss. 385, 178 So. 815; Standard Oil Co. v. Stone, 191 Miss. 897, 2 So.2d 155; Grant v. Montgomery, 193 Miss. 175, 5 So.2d 491; State v. Roell, 192 Miss. 873, 7 So.2d 867; State ex rel. Greaves v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340; Natchez S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596; Board of Trustees of University of Mississippi v. Waugh, 105 Miss. 623, 62 So. 827, L.R.A. 1915D, 588, Ann. Cas. 1916E, 522, judgment affirmed Waugh v. Board of Trustees of University of Mississippi, 35 S.Ct. 720, 237 U.S. 589, 59 L.Ed. 1131; Thompson v. Box, 147 Miss. 1, 112 So. 597.
It is a matter of common knowledge that when the legislature convened in 1932, one of the greatest economic depressions in history, worldwide in its scope, had already set in. It was apparent to everyone that the assessed valuations of counties would naturally fall. At the same time it was deemed necessary to provide some measure of relief to taxpayers by broadening exemptions. No one knew just how drastically this would reduce the classification of the counties, but even the man in the street knew it would remove millions of dollars worth of property from the rolls. Tied to this problem was one that the compensation of public officials would be drastically reduced because of the fluctuating provision of the law classifying counties (Code of 1930, Sec. 6498) so as to leave them without adequate compensation for their services according to the general scheme long in force. As the legislature is charged by Section 103 of the Constitution with the duty of providing suitable compensation for all officers, it cannot be denied that the situation made action of some kind both desirable and proper. The legislature simply froze the classes of counties as they were by the 1930 assessment, which was no doubt considered a reasonable basis for fixing compensation under the general scheme then in force. It must be kept in mind that the salaries themselves were not frozen. Only the classes were frozen. The legislature had the power to adjust the salaries provided for the particular classes at any time. The effect of this provision was to stabalize compensation and to remove all uncertainty from it. That the provision had this effect and was found to be good is demonstrated by the fact that it was retained throughout the depression, throughout the period of economic recovery, and into the current era of inflation. The identical provision was reenacted during the recent 1944 session.
When this provision was first enacted in 1932, it was natural that the officials desired to know if they were to be governed by it and if the old fluctuating provision was to be considered as having been repealed. Naturally, they were concerned over the prospect that they might innocently draw compensation under the 1930 base provision and be forced to restore a part of it with penalties because of the fluctuating provision at some day in the future, at the instance of the State Tax Collector or some other official. Obviously, if the 1930 base provision was invalid and they had drawn more than was permitted by the fluctuating provision, they would have received the public funds wrongfully and would occupy the position of trustees. As a matter of history, according to the Biennial Reports of the Attorney-General, this question was first put to that official for a decision on October 22, 1934, who ruled: "In my opinion this section fixed the class of each county according to its class for 1930; that is the assessed valuation of the property for 1930 is used in classifying the counties under the act of 1932. The classification is not raised in the event the assessed valuation is increased, neither is it lowered if the assessed valuation is decreased. In other words, if this county was in Class Four after the Code of 1930 became effective, then it would be in Class Four now, even though the assessed valuation of the property in said county for the 1934 assessment reduces the total assessed valuation on the property to less than $10,000,000.00." We find no record of that opinion being withdrawn until the correspondence between the Attorney-General's office and the chancery clerk of Yazoo County in this case.
The point is that hundreds of public officials who were in office since 1932 have drawn their compensation under the 1930 base provision and if these several acts are to be held unconstitutional, the effect must necessarily be felt in every county in the state by the officials who held the offices since 1932. It is apparent that the possibility of such a result was never imagined by the several legislatures in the enactment of what was believed to be wise legislation.
In construing statute, manifest, unthought-of results should be avoided if possible, especially if injustice results, and unwise purpose will not be imputed to legislature when reasonable construction is possible.
Leaf Hotel Corporation v. City of Hattiesburg, 168 Miss. 304, 150 So. 779; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127; Miers v. Miers, 160 Miss. 746, 133 So. 133; L.H. Conard Furniture Co. v. Mississippi State Tax Commission, 160 Miss. 185, 133 L.H. Conard Furniture Co. v. Mississippi State Tax So. 652; Pattison v. Clingan, 93 Miss. 310, 47 So. 503.
A statute must be reasonably interpreted with reference to the evil it was intended to remedy, and the dangers and liabilities it was intended to prevent.
Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Middleton v. Lincoln County, 122 Miss. 673, 84 So. 907; Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844; Huber v. Freret, 138 Miss. 238, 103 So. 3; Dresser v. Hathorn, 144 Miss. 24, 109 So. 23; Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96, 705.
Construction will be placed upon statute, if reasonably possible, which will carry out legislative purpose.
Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781, 54 S.Ct. 541, 291 U.S. 584, 78 L.Ed. 1004, reh. den. 54 S.Ct. 627, 292 U.S. 601, 78 L.Ed. 1464.
It is submitted that this 1930 base provision stands the test of a general law as laid down in 25 R.C.L. 815, Sec. 66, and is one where the court should look to its substance and practical operation. It is submitted that such classification of counties for salary purposes is a reasonable classification which is not inimicable to Section 90 of the Constitution prohibiting private, local, or special laws. Such a provision is general in the constitutional sense because it applies to and operates uniformly upon all the counties in the state. It is true that this provision does not permit Yazoo to rise to a higher class but neither does it permit any other county in the state to rise to a higher class. The point is that the position of Yazoo in this and all other respects is identical to that of all other counties in the state. The law is broad enough to reach and to embrace within its provisions every county in the state which is placed in the class in which it automatically falls according to measurements which are common and uniform as to all the other counties. It may be that this law is subject to a just criticism upon the ground that it does not permit a particular county to be classified in its proper relation to all other counties, but that fact will not make it a local, private, or special act. It is a general act because whatever its deficiencies and short-comings may be, they work upon every county in the state in exactly the same manner.
Campbell Campbell, Bridgforth Love, and R.R. Norquist, all of Yazoo City, for appellees.
Section 13, Chapter 193, Laws of 1932, violates Section 61 of our State Constitution and is unconstitutional.
Seay v. Laurel Plumbing Metal Co., 110 Miss. 834, 71 So. 9; State ex rel. Collins v. Jackson, 119 Miss. 727, 81 So. 1; Constitution of 1890, Sec. 61; Code of 1930, Sec. 6498; Laws 1932, Sec. 13, Chap. 193.
Section 13, Chapter 193, Laws of 1932, violates Section 90 of the Mississippi Constitution of 1890 and is unconstitutional.
State ex rel. Knox v. Speakes, 144 Miss. 125, 109 So. 129; Toombs v. Sharkey, 140 Miss. 676, 106 So. 273.
Section 13, Chapter 193, Laws of 1932, in any event, is only intended as a guide for the calender year 1932.
Laws of 1944, Chap. 192; Laws of 1944, Chap. 178.
The allowances of the board of supervisors of Yazoo County, Mississippi, to the county auditor were to an object authorized by law, and members of the board were not personally liable.
Paxton v. Baum, 59 Miss. 531; Paxton v. Arthur, 60 Miss. 832; Miller v. Tucker, 142 Miss. 146, 105 So. 774; Brown v. Reeves, 129 Miss. 755, 92 So. 825; National Surety Co. v. Miller, 155 Miss. 115, 124 So. 251; Causey v. Gilbert, 193 Miss. 756, 10 So.2d 451.
The board of supervisors of Yazoo County relied on the opinion of the Attorney-General and are relieved of any liability under Chapter 249, Laws of 1940.
This is an appeal from the decree of the chancery court of Yazoo County dismissing the appellant's bill of complaint after a hearing on bill, answer and a stipulation of facts.
The State Auditor seeks recovery of $500, interest, and damages from the defendants based on the claim that for the year 1942 the defendant members of the Board of Supervisors of Yazoo County allowed to F.J. Love, as County Auditor, the sum of $2,300, when, as it is alleged, the maximum amount that could have been legally allowed to the County Auditor for that year was the sum of $1,800.
The defendants in their answer admit the making of the allowance to the amount of $2,300 but assert that the same was the correct amount due and also that the allowance was made after an opinion was obtained from the Attorney General to the effect that the payment of $2,300 to the County Auditor for said year was authorized by law.
In the stipulation of facts it is agreed that according to the assessment of 1930 Yazoo County was a county of the fourth class, and that according to the assessment for 1942 it was a county of the third class within the meaning of Chapter 193, Laws of 1932, and amendments thereto; also that in making the allowance complained of the defendants acted in good faith.
If the assessment for 1930 controls, the defendants were authorized to allow the County Auditor only $1,800. But if the assessment for 1942 controls, the defendants were authorized to allow such Auditor $2,300, the amount actually allowed. Therefore, it becomes necessary in the outset to determine whether the statutory salary of the County Auditor for the year 1942 is to be based on the classification of Yazoo County under the 1930 assessment or the 1942 assessment.
It therefore becomes necessary to examine certain provisions of Chapter 193, Laws of 1932, and amendments thereto, in connection with Section 6498, Code of 1930. The said Chapter 193, Laws of 1932, supra, amends Sections 6499 and 6501-6509, inclusive, and Section 6567 of the Code of 1930, and fixes the salaries of the various county officers. Section 6 of the said Act fixes the salaries of County Auditors and Section 13 thereof provides as follows: "Provided, however, the classification of counties shall be based upon the total assessed valuations of all property in each county including real, personal and public service corporations as assessed during the year 1930."
Thus, it will be seen that Section 6 of Chapter 193, Laws of 1932, as written, and when construed in connection with the said Section 13 of said Act, fixes the salary of County Auditors on the basis of the classification of the county according to the 1930 assessment, and it is, therefore, contended by the appellant, State Auditor, that the salary of each County Auditor for the year 1942 is likewise based on and limited by the assessment of the county for the year 1930 unless by legislation enacted subsequent to Chapter 193, Laws of 1932, a change in the basis of determining such salary has been effected.
Chapter 25, Laws Extra. Session 1938, amends Section 6, Chapter 193, Laws of 1932, but leaves Section 13 thereof in full force and effect. The said Chapter 25, Laws Extra. Session 1938, was amended by Chapter 255, Laws of 1940, which is entitled: "An Act to amend section 6505 of the Code of 1930, as amended by section 6 of chapter 193 of the laws of 1932, and by chapter 25 of the laws of Mississippi, extraordinary session of 1938, so as to fix the salaries of county auditors, and further prescribing their duties and the manner of paying their salaries." This is the Act under which the defendants proceeded in making the allowance of the $2,300 to the County Auditor for the year 1942, which provides for the allowance in such amount in counties of the third class, but which statute amends only Section 6 of Chapter 193, Laws of 1932, and leaves Section 13 thereof undisturbed.
It is the contention of the defendants (1) that the basis of classification to be followed for the year 1942 was that fixed by Section 6498, Code of 1930, which was not amended or repealed by Chapter 193, Laws of 1932, and provides, among other things, that any county "which may by a new assessment have its class changed to a lower class shall remain in its original class until one year after the succeeding January 1st, then, be classed according to such new assessment. Any county which may by a new assessment have its class changed to a higher class shall remain in its original class until after the succeeding January 1st, then be classed according to such new assessment." That, therefore, the said Code section remained in full force and effect, since to hold otherwise would violate Section 61 of the Constitution of 1890, which provides that: "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length."
(2) That to permit the said Section 13 of Chapter 193, Laws of 1932, to control the classification in which Yazoo County should be placed for the year 1942, for the purpose of determining the salary of its county auditor for the said year, would be an unreasonable and arbitrary classification, denying to such county auditor the benefit of the same compensation received by county auditors in other counties having an assessment in the same class that was actually occupied by Yazoo County during the said year, and would constitute a local, private or special law, affecting the salary of a public officer, in violation of Section 90, Subsection ( o) of the Constitution of 1890, under the authority of the cases of Toombs v. Sharkey, 140 Miss. 676, 106 So. 273, 274; State v. Speakes, 144 Miss. 125, 109 So. 129, 132.
(3) That if it should be held that said Section 13 of Chapter 193, Laws of 1932, was a valid exercise of legislative power when enacted, the said provision should be construed by the court as intended only to apply to the classifications that the several counties were to occupy during that year for the purpose of determining the salaries of the various county officers enumerated in the said chapter; that the assessed valuations of the counties for the year 1930 were intended to be used for the year 1932, to determine the classification of each county for the purpose of fixing salaries for that year, for the reason that said Chapter 193, Laws 1932, was passed on May 18, 1932, and before the current assessment for the said year could be approved in October or November thereafter, and was used for that year in order to avoid confusion; and that the said Section 13, Chapter 193, Laws 1932, expired with the assessment of said year, and is not applicable to govern the allowance of the board of supervisors to the county auditor of Yazoo County, Mississippi, for the year 1942.
(4) That without regard to any other consideration, neither the members of the board of supervisors, nor their bondsmen, are personally liable for the reason that the allowance to the county auditor was to an object authorized by law; and in support of this contention they rely on the cases of Paxton v. Baum, 59 Miss. 531, 535; Paxton v. Arthur, 60 Miss. 832, 838; National Surety Co. v. Miller, 155 Miss. 115, 124, 124 So. 251; and Causey, State Auditor, v. Gilbert, 193 Miss. 756, 10 So.2d 451, 452.
(5) That in making the allowance complained of, the board of supervisors relied on the opinion of the Attorney General as to their authority for so doing, and that even though it should be held that the allowance was excessive and unauthorized to the extent of $500, they are therefore relieved of any liability therefor by reason of Chapter 249, Laws of 1940, since it is agreed in the stipulation of facts that the members of said board acted in good faith in making such allowance.
An affirmance of the decree of the court below in denying a recovery against the members of the board of supervisors and their sureties could safely rest upon the 4th contention hereinbefore set forth made by the said defendants to the effect that they are not personally liable for the reason that the allowance to the county auditor was to an object authorized by law, but we feel warranted in going further and holding that the 3rd contention of the defendants hereinbefore set forth is also well taken for the reason that to ascribe to the legislature an intention to adopt the 1930 assessment as a perpetual guide for the fixation of the salaries of the various officers named in the said Chapter 193, Laws 1932, would be to impute to the lawmakers an intention to repeal that provision of Section 6498, Code of 1930, supra, which provides that any county "which may by a new assessment have its class changed to a lower class shall remain in its original class until one year after the succeeding January 1st, then be classed according to such new assessment. Any county which may by a new assessment have its class changed to a higher class shall remain in its original class until after the succeding January 1st, then be classed according to such new assessment," although no subsequent act of the legislature has undertaken to expressly repeal or amend the same or make any reference thereto. Also when the said Section 13, Chapter 193, Laws 1932, supra, is given the construction contended for by the defendants it becomes unnecessary to hold, as did the court below, that the enactment of said Section 13 was an invalid exercise of legislative power as constituting an arbitrary and unreasonable basis for the classification of counties in the future for the purpose of fixing the salaries of their officers, in violation of Section 90( o) of the Constitution of 1890 as construed in the cases of Toombs v. Sharkey, 140 Miss. 676, 106 So. 273, and State v. Speakes, 144 Miss. 125, 109 So. 129. In view of the fact that when this Act of 1932 was passed, the assessment for the then current year had been neither made nor approved, it was a reasonable exercise of legislative power to use the 1930 assessment for said current year in fixing the salaries of the county officers and to leave Section 6498, Code of 1930, in full force and effect as a guide for future years. And, it is the duty of the court to construe this subsequent Act in connection with said Section 6498 of the Code, the latter never having been expressly repealed or amended, and to "bring it into harmony with the constitution by restricting its application to the legitimate field of legislation, whenever necessary . . . to uphold its constitutionality and carry its provisions unto effect," as held in Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 107, and the decisions therein cited.
It is not necessary to discuss any of the other grounds urged for an affirmance of the decree of the court below, since we are of the opinion that in any event the same should be affirmed for the reasons hereinbefore stated. In fact, we would have based the decision on the 4th contention of the defendants alone, except for the fact that it is a matter of public interest that the boards of supervisors should know the extent of their authority in fixing salaries of county officers even though the individual members thereof are exempt from personal liability when unauthorized allowances are made in good faith.
Affirmed.
CONCURRING OPINION.
Smith, C.J., expresses no opinion on the third, but concurs in affirming the judgment of the court below on the fourth of the appellees' contentions.