Adams v. Fragiacomo

Decision Date30 October 1893
CourtMississippi Supreme Court
PartiesWIRT ADAMS, STATE REVENUE AGENT, v. L. FRAGIACOMO

October 1893

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

The facts are stated in the opinion.

Affirmed.

Williamson & Potter, for appellant.

1. Chapter 116, code 1892, entitled "Revenue," is part of an entire code, adopted and approved by a single act, and must be construed with § 4, which saves all existing rights of action. By a mere inadvertence, when the revenue chapter was put into effect, April 2, 1892, there was a suspension of rights of action under repealed statutes until § 4, with its saving clause, went into effect. Accordingly, after Novembet 1, 1892, such actions became maintainable, just as if the entire code had gone into effect the same day. See Gibbons v. Brittenum, 56 Miss 232.

This was in effect held in State v. Order of Elks, 69 Miss. 895, and in State v. Hall, 68 Miss. 719. Any other construction would defeat the legislative intent. The saving clause must have a reasonable construction to carry out the just and obvious purpose of the law. Sutherland on Star. Con., § 225; 32 N.H. 410.

2. The liability of appellee fixed by the statute is within the scope of the language used in § 100 of the constitution. See 20 Fed. R., 188; 36 Iowa 224; 4 Litt. (Ky.), 65; 15 How. (N. Y.), 55; 52 N.J.L. 10; 13 Am. & Eng. Enc. L., 287; 17 Ib., 2, 3; Telegraph Co. v. Sallivan, 70 Miss. 447. In the latter case, the word "debts" is held to embrace all penalties recoverable by civil action. The legislature was powerless to postpone the state's right of action.

Calhoon & Green, for appellee.

Section 100, constitution 1890, is not applicable. The question involved is not the liability of defendant, but the power of the revenue agent to sue. The taking away of this power, if it ever existed, by the enactment of chapter 116, code 1892, did not destroy whatever liability there was on the part of defendant. Moreover,.the constitution has reference only to contract liabilities, susceptible of ownership and of exchange and transfer. On the questions involved see 39 Miss. 516; 53 Ib., 651; 60 Ib., 897; 64 Ib., 464; 68 Ib., 487; 69 Ib., 92, 683.

OPINION

COOPER, J.

In the year 1891, the appellee carried on the business of a retailer of vinous and spirituous liquors without having obtained a license, and, for so doing, became and was, under the provisions of section 2 of the act of February 24, 1890 (Laws, p. 11), civilly liable to the state for the highest amount he should have paid for such privilege, which was the sum of fifteen hundred dollars. On the second day of June, 1893, the appellant, as revenue agent of the state, brought this suit to recover said sum. The defendant demurred to the declaration as stating no cause of action, which demurrer was sustained, and the plaintiff appeals.

As we have heretofore held in the case of State v. Order of Elks, 69 Miss. 895, 13 So. 255, the act of February 24, 1890, entitled "An act to amend the revenue laws," was repealed by chapter 116 of the code of 1892, which chapter became of force on April 2, 1892, and contains no provision for saving pending suits or existing rights. The effect, of this decision is sought to be obviated by counsel in the present case on the following grounds: First, it is said that though chapter 116 of the code contains no saving clause, and became operative April 2, 1892, it was a part of an entire code, adopted at one and the same time, and since by § 4 of the code, the provision is made saving all former rights, this, when it became operative November 1, 1892, had the effect of preventing from that time the destructive operation of chapter 116. The sufficient answer to this contention is that § 4 only preserves existing rights, and cannot create one.

But, failing to sustain this position, counsel insist that, by virtue of the act of February 24, 1890, the appellee was liable to the state in an amount equal to the highest tax he should have paid for the privilege of retailing, and that it was not competent for the legislature, either directly or indirectly, to absolve him from such liability, because of section 100 of the constitution, which declares that "no obligation or liability of any person, association or corporation held or owned by this state or levee board, or any county, city or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; but this shall not be construed to prevent the legislature from providing by general law for the compromise of doubtful claims."

It must be admitted that this section of the constitution is not happily and clearly expressed, and presents difficulty of interpretation and construction. Unless the word "liability" be read as pleonastic, containing no meaning not conveyed by the word "obligation," it is difficult to limit the scope and effect of the section for it is a word of broad import and far-reaching in what it does or may contain. All persons who have violated the criminal laws of the state are "liable" thereto; some to punishment, it may be by death, others by imprisonment, and others by subjection to fines or penalties. In U. S. v. Ulrici, 3 Dillon 532, a statute provided that "the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force, for the purpose of supporting any proper action or prosecution for the enforcement of such penalty, forfeiture or liability." Counsel for the accused contended that these words could refer only to civil proceedings, and could not he construed as continuing responsibility for criminal acts committed under a statute after its repeal. But Judge Miller, in delivering the opinion of the court, said: "Without attempting to go into a precise definition of each of these words, it, is my opinion that they were used by congress to include all forms of punishment for crime; and, as strong evidence of this view, I found, during the progress of the argument, and called the attention of counsel to a section which prescribed fine and imprisonment for two years, wherein congress used the words 'shall be liable to a penalty of not less than one thousand dollars and to imprisonment not more than two years. Moreover, any man using common language might say, and very properly, that congress had subjected a party to a liability, and if asked what liability, might reply, a liability to be imprisoned. This is a very general use of language, and surely it would not be understood as denoting a civil proceeding. I think, therefore, that this word 'liability' is intended to cover every form of punishment to which a man subjects himself by violating the common laws of the country." The word "liability" has no precise technical meaning, and, therefore, it must be assumed that it was used by the framers of the constitution either in its popular meaning or in some restricted and limited sense. To begin with, then, we find a word of the broadest significance, and we at once ask, how shall it be interpreted? The primary maxim for interpretation is to read it to mean what it is commonly understood to mean. Having done this, we must then consider whether we have in this way approached to or departed from the intention of the makers of the law. If we find that by the use of this rule of construction we are getting away from the scheme or plan and meaning of the law-maker, common sense admonishes us to lay aside the rule, which is a means and not an end, and resort to other and different methods of inquiry,...

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