Colbert v. State

• Decision Date: 24 July 1905
• Citation: 86 Miss. 769,39 So. 65
• Court: Mississippi Supreme Court
• Parties: CARO E. COLBERT v. STATE OF MISSISSIPPI

39 So. 65

86 Miss. 769

CARO E. COLBERT v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

July 24, 1905

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

Colbert the appellant, was plaintiff, and the state of Mississippi the appellee, defendant in the court below. From a judgment in defendant's favor the plaintiff appealed to the supreme court. The section of Code 1892 which permits the state to be sued is as follows:

"4248 (2641). When the state may be sued.--Any person having a claim against the state of Mississippi, after demand made of the auditor of public accounts therefor and his refusal to issue a warrant on the treasurer in payment of such claim may, where it is not otherwise provided, bring suit therefor against the state, in the court having jurisdiction of the subject-matter which holds its sessions at the seat of government; and if there be no such. court at the seat of government, such suit may be instituted in such court in the county in which the seat of government may be."

The facts are stated in the opinion of the court.

Reversed and remanded.

Alexander & Alexander, for appellant.

The statute says: "The state shall have the option to retire any and all of these bonds." Unless the governor is the state, he could not exercise the option. We do not attribute to the governor any intentional usurpation of authority. It might have been wise to have given him the power. By his act, whether legal or not, and the voluntary compliance by bondholders with the call, he saved the state thousands of dollars in interest. But the power of the governor or other officials is not to be determined by considerations of expediency. The governor has certain well-defined duties and powers. There is but one section of the constitution that grants him power in general terms. "The chief executive power of the state" is vested in him--not all of the power, but the chief executive power. All other sections grant power in express terms, unless it be the injunction "to see that the laws are faithfully executed." Constitution 1890, sec. 122, and sec. 7 of the act of 1896 was not a grant of power at all. It was a mere requirement that the bonds should be payable after five years, if the legislature should so decide. The legislature without any grant had the power to pay any indebtedness of the state unless by its contract it had deprived itself of the power. The legislature is only limited in its power by the state and federal constitutions, and perhaps the nature of our government. But the governor is an official who has only such power as is granted to him by the constitution or by the legislature. His power is executive in its nature. He executes laws, but does not enact them. When the state is mentioned in a statute, it does not mean the governor. The saying of Louis XIV., "L'etat c'est moie," may pass in an absolute monarchy, but not in republican America or democratic Mississippi.

Executive power, such as is granted to a governor, is that appertaining to the execution of laws as they exist. 23 Fla. 298; 24 Mich. 441.

The general grant of executive power excludes by implication all other departments from the exercise of such power. Cooley on Constitutional Law (6th ed.), 104; Story on Constitution, secs. 518-525; Fox v. McDonald, 101 Ala. 51; Bridges v. Shallcross, 6 W. Va., 573. E converso, the grant to the legislature of the legislative power that is to make, alter, or repeal laws, excludes this power from the executive.

J. N. Flowers, assistant attorney-general, for appellee.

The appellant endeavors to make the issue here whether or not the governor is "the state. " We think this is not the issue. We are not concerned with the inquiry as to who or what is the state. We do not insist that the governor is the state; that proposition is denied. We deny that the legislature is the state, and we deny that the supreme court is the state. None of these, in fact, is the state. It takes all of them to make up the state.

And we submit here, too, that if sec. 7 of the act of 1896 could be given no effect until "the state" should be located, then the option reserved is worthless. The ideal, intangible, indescribable entity known as "the state" could never be found to exercise the option. And if that being should appear and proclaim its intention to call in the bonds, not a bondholder would have the courage to appear. An appearance of Gabriel with his trumpet would be tame in comparison. The bondholders jest with the court when they insist that they wanted "the state" to appear on the scene and call in the bonds.

Our inquiry is rather, Which department of the state government should speak for the state in the exercise of the option reserved? What character of act was required to be done? Was it a legislative, executive, or judicial act required?

There is no pretense that any judicial action was called for, nor can it be seriously contended that further legislative action was necessary. The act is plain and expresses the whole intention of the legislature. It needed nothing but execution. It was sufficient in itself and needed no further legislation to put it into effect. It does not provide that the state shall exercise the option, but that the option is reserved to the state. The state possesses the right, and we only wish to find out who should exercise the right.

If it be true that the act needed nothing but execution, then the question is settled by sec. 123 of the constitution, which provides that the governor shall see that the laws are faithfully executed. If the exercise of the option reserved by the act of 1896 belongs to the class of powers known as executive powers, then it follows that the governor properly issued his call, since it is his duty to enforce all the laws, whether he is specifically named or directed or not.

As far as the legislature itself is concerned, the question has already been settled. The legislature has construed the law and indorsed the action of the governor. This has been done not once, but every time the occasion has arisen since the bonds were called in, in the year 1901. Field v. Clark, 143 U.S. 649; Consolidated Coal Co. v. Illinois, 185 U.S. 203 (46 L.Ed. 872); Butterfield v. Stranahan, 192 U.S. 470 (48 L. ed., 525); Schulherr v. Bordeaux, 64 Miss. 59, 71.

Argued orally by C. H. Alexander, for appellant, and by J. N. Flowers, assistant attorney-general, for appellee.

OPINION

COX, J.

On July 1, 1896, pursuant to an act of the legislature approved March 18, 1896, there were sold bonds of the state of Mississippi of the denomination of $ 500 each, bearing interest at 5 per cent per annum, payable semiannually, to the amount of $ 400,000. These bonds on their face were to become due and payable on the 1st day of July, 1906, and were designated as "Series B." On the 4th day of June, 1901, Gov. Longino issued his proclamation, giving notice to all holders of the said bonds to present the same on July 1, 1901, to the treasurer of the state of Mississippi, at his office in the capitol in the city of Jackson, for payment in full with accrued interest. The proclamation announced that interest would cease on the said bonds from and after the 1st day of July, 1901. Caro E. Colbert, plaintiff below and appellant here, was the owner of fifteen of the said bonds. He declined to present them for pay ment on July 1, 1901, as called for in the governor's proclamation, but on January 1, 1902, he presented the said bonds, together with the interest coupons then maturing, to the state treasurer for payment. The bonds were promptly paid, but the treasurer refused to pay the coupons on the sole ground that the call of the governor operated to retire the bonds and stop the running of interest after the date fixed for retiring them. Plaintiff thereupon made demand of the auditor to issue a warrant for the amount of the coupons, and the auditor refused to do so; whereupon suit was instituted against the state before J. Fitzgerald, a justice of the peace of Hinds county, and judgment recovered for $ 187.50, the amount of the said interest coupons, with interest from January 1, 1902, and costs. Upon appeal to the circuit court of Hinds county, judgment was rendered for the state, dismissing the suit. From this judgment an appeal has been prosecuted to this court, appellant assigning for error the action of the court in dismissing his suit.

The principal question arising upon the record in this case, and one upon which both parties thereto invite a deliverance from this court, is whether or not the governor had authority of law to call in the bonds of series B for payment on July 1 1901. It is contended on behalf of the state that authority for this act of the governor is found in sec. 7, ch. 34, p. 30, Acts 1896, the same being the act under which the said bonds were issued. It reads as follows: "Sec. 7. The faith and credit of the state of Mississippi are hereby pledged to the punctual payment of both principal and interest of said bonds as they mature, and to that end the legislature shall annually levy a tax on all the taxable property of the state for the payment of the interest thereof, and at the expiration of five years the state shall have the option to retire any or all of these bonds." It is urged that the governor, as the chief executive of the state, was the functionary whose right and duty it was to exercise the state's discretion, thus clearly provided for in the act under which the bonds were issued, to call the same in for payment. It is manifest that the authority to call in the bonds was not given to the governor in express terms by sec. 7 of this act of 1896. It is claimed, however, that this authority is to be clearly inferred in view...