Carter v. Henry

• Decision Date: 08 January 1906
• Citation: 39 So. 690,87 Miss. 411
• Court: Mississippi Supreme Court
• Parties: JOHN W. CARTER v. THOMAS M. HENRY, AUDITOR OF PUBLIC ACCOUNTS

39 So. 690

87 Miss. 411

JOHN W. CARTER v. THOMAS M. HENRY, AUDITOR OF PUBLIC ACCOUNTS

Supreme Court of Mississippi

January 8, 1906

November 1905

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

Carter the appellant, was plaintiff in the court below; Henry auditor, etc., the appellee, was defendant there.

The legislature of 1904 (Laws 1904, ch. 57, p. 47) passed a bill for the relief of J. W. Carter, former sheriff of Kemper county, donating to him the sum of $ 740.06 to "reimburse him for said amount paid into the state treasury through a collection made by the revenue agent in November, 1900." Upon application of Carter to Henry auditor of public accounts, for a warrant on the treasurer for said amount, the auditor refused to issue the warrant; whereupon Carter filed in the circuit court a petition for a writ of mandamus to compel the auditor to issue him a warrant for the amount. The auditor filed several pleas to the petition, challenging the constitutionality of the pretended act of the legislature, setting up the facts upon which his contention that it had not become a law were based, and averring that the bill had not been signed by the governor, and had not become a law by operation of the constitution, since the time limit of five days for its consideration by the governor had not expired when the legislature adjourned, and consequently had not expired when the suit was brought. The petitioner demurred to the pleas of the auditor. The court sustained all the demurrers except the one which called in question the existence of the law, which was overruled, the court holding that the bill in question had never become a law, and dismissing the petition. From such judgment Carter appealed to the supreme court.

The governor's action on the bill in question is shown by the following communication addressed by him to the legislature:

"EXECUTIVE DEPARTMENT,

"JACKSON, Miss. March 22, 1904.

"To the Senate and House of Representatives:

"I have considered senate bill No. 224, entitled 'An act to make appropriation out of the funds of the state treasury for the relief of J. W. Carter, of Kemper county, and to authorize and empower the board of supervisors of Kemper county to allow the claim of the said J. W. Carter and in its discretion to provide for the payment of the same,' and herewith return it without my signature. There must be equities in this bill which I have been unable to discover, judging from the action of the legislature upon it. For that reason, and fearing that an injustice might be done a private citizen, I have refrained from using the veto, but have determined to defer to the decision of the legislature and permit the bill to become a law without the governor's signature.

"I am unalterably opposed to this character of legislation, and I wish to call the attention of the legislature to the pressing necessity for enacting a general law providing for the settlement of all such cases by the courts of the state. The courts are organized and sit in the counties where the parties to the controversy usually reside and the issues arise, and, therefore, if given authority by the legislature, can better obtain the facts and in the determination can approach nearer absolute justice than any other tribunal. The iniquity of local and private legislation was emphasized by the constitutional convention of 1890, and time has only demonstrated the wisdom of the constitutional convention on that subject.

"Respectfully,

"JAMES K. VARDAMAN, Governor."

Other facts are stated in the opinion of the court.

Judgment affirmed.

Neville & Wilbourn, for appellant.

In Beaudean v. City, 71 Mo. 397, the court applied a statutory rule of computation of time to the construction of a constitutional provision. The statute of Missouri required the first day to be excluded in the computation of time when Beaudean v. City was decided. Reynolds v. Railroad, Co., 64 Mo. 70.

In Price v. Whitman, 8 Cal. 412, it will be noticed that the court took occasion to say that the rule adopted in that case accords with the rule of practice in the civil courts of California. In the later case of Iron Co. v. Haight, 39 Cal., the court are significantly silent as to whether or not they approve of the reasoning of Price v. Whitman, and offer as an excuse for following it that Price v. Whitman had been decided for twelve years, during which, though important amendments to the constitution and laws had been made, no different rule had been established. California Code 1872, sec. 12, requires the first day to be excluded in computing time under that section, but we are unable to say that that statute or a similar one was in force when the two California cases referred to were decided.

We ask the court to read Hart v. Nixon, 25 La. Ann., 136, as indicating the trend of the statutes and decisions of Louisiana, in considering the force and effect of the decision in State v. Michel, 52 La. Ann., 936. We are unable to say what was the statutory rule of computation of time in Louisiana at the time of the decision in State v. Michel.

We do not think that the case of People v. Hatch, 33 Ill. 135, necessarily involves the decision of the question in the case at bar.

In the Hatch case there was clearly no legislature at all in session from June 10, 1863. The bill was presented to the governor on June 12th, was vetoed and returned by him to the presiding officer of the senate on the 19th of June, safely within the time limit, while that officer was at his home engaged about his private affairs, there being no legislature in session to which the bill could be returned, and only three or four members reassembled on June 23 and 24, 1863. The question in the case at bar was not squarely before the court in the Hatch case.

Indeed none of the cases relied on by appellee as to the computation of time are exactly in point. In all of them the governor vetoed the measure. In none of them was the court called upon to say whether or not the constitutional period had expired in a case where the legislature was in session on the day held to be the last day of the period allowed the governor, but adjourned before midnight of that day. Unlike all the cases relied on by appellee, the case at bar is unique in this: that the bill was not vetoed by the governor and that the governor expressly stated to the legislature before final adjournment that he did not intend to veto it; that the legislature was actually in session...