Cole v. Humphries

CourtUnited States State Supreme Court of Mississippi
Citation28 So. 808,78 Miss. 163
Decision Date29 October 1900

October 1900

FROM the circuit court, first district, of Hinds county HON ROBERT POWELL, Judge.

Humphries district attorney, the appellee, was the plaintiff in the court below; Cole, auditor of public accounts, appellant, was defendant there. The action was a mandamus proceeding. The facts are fully stated in the opinion of the court.

Judgment reversed.

Monroe McClurg, attorney-general, for appellant.

The claim of the appellee is entirely too narrow and technical. The word "fixed, " as used in section 174, must be given a meaning and force consonant with the general purpose of the convention as gathered from the entire constitution. And to the contention that section 78 of the constitution limits deductions to cases of neglect of official duty alone the answer is that such a construction is not in accord with the general idea pervading the entire instrument. The court will observe that section 78 is a command to the legislature to make deductions for neglect of official duty--in other words, the command is not intended to be an exception to any general rule, the clear inference being that the legislature may make other deductions according to the public policy of the state and according to the other directions and purposes of the constitution itself, while it must make them for neglect of official duty. "The letter killeth, while the spirit giveth life."

Section 174 of the constitution reads as follows: "A district attorney for each circuit court district shall be selected in the manner provided by law, whose term of office shall be four years, whose duties shall be prescribed by law, and whose compensation shall be a fixed salary."

That section must be construed in the light of the whole instrument, and especially of those parts having special reference to it, in order to get the purpose, intent and meaning thereof.

Section 267 is as follows: "No person elected or appointed to any office or employment of profit under the laws of this state, or by virtue of and ordinance of any municipality of this state, shall hold such office or employment without personally devoting his time to the performance of the duties thereof."

Section 103, latter clause, provides: "And the legislature shall provide suitable compensation for all officers, and shall define their respective powers."

Section 166 shows conclusively that in those cases in which the intention was not to permit reductions, unequivocal language is used. It reads as follows: "The judges of the supreme court, of the circuit courts and the chancellors shall receive for their services a compensation to be fixed by law, which shall not be increased or diminished during their continuance in office."

Section 46, to the same effect, provides specially that the compensation to legislators "may be increased or diminished" after the session.

Section 118 is clear in the expression that the governor's salary, to "be fixed by law, shall neither be increased nor diminished during his term of office."

The compensation to the secretary of state "shall be prescribed by law" (section 133), while the treasurer's and auditor's "may be provided by law (section 134), and the salary of the attorney-general "shall be fixed by law" (section 173), and so on, showing that "fixed salary, " in section 174 under discussion, has no broader significance than to distinguish it from the fee system or from those instances in which a reduction in salary is absolutely prohibited.

Section 96, prohibiting extra compensation or fee to any officer after contract or service, and section 108, stopping the pay when the legislature takes away the duties of the office, are worthy of consideration in arriving at the true spirit that possessed the convention in dealing with the subject of compensation to public officers.

Section 3952 of the code fixes the salary of the district attorney at $ 2, 400, and this complies in exactness with the letter of section 174 of the constitution. Section 3957 of the same chapter provides a penalty for neglect of duty by making certain reductions from this fixed salary.

Section 1559 provides for pay to the pro tempore officer by a deduction from this fixed salary. Originally the section allowed the excuse of sickness, but the act of 1898, p. 77, took away the excuse altogether, and made the deduction absolute. Thus, sections 78, 103 and 267 of the constitution are given force along with section 174. The legislative and constitutional history of the subject is shown by the following statutes and constitutional provisions: Dig. Miss. Ter., 1807, pp. 62, 63, 264, 271; Laws 1824 (1824 to 1838), pp. 33, 47; Laws 1833 (1824 to 1838), pp. 430, 431; Hutch. Code, 1848, p. 410, § 5; Rev. Code, 1857, p. 114, art. 72; Code 1871, § 216; Acts 1872, ch. 17, p. 26; Code 1880, §§ 258, 437; Code 1892, §§ 1559, 3957; Acts 1898, ch. 58, p. 77; Const. 1817, art. 5, sec. 14; Const. 1832, art. 4, sec. 25, and art. 7, sec. 12; Const. 1869, art. 6, sec. 25, and art. 12, sec. 10; Const. 1890, secs. 174, 78.

Frank Johnston, for appellee.

Section 78 of the constitution is a limitation on the power of the legislature, and restricts its power in making deductions from salaries of officers to cases of neglect of duty. Section 194 of the constitution provides that the compensation of district attorneys shall be a fixed salary. Construing these two sections together, the effect is, that the salaries of the district attorneys are to be fixed and certain, except that the legislature may provide for the deductions from their salaries in cases of official neglect of duty.

In the recent case of Holder v. Sykes, 77 Miss. 64, the question of the constitutionality of the act of January 31, 1893, under section 174 of the constitution, was involved, and this court held the statute to be in violation of this provision of the constitution. That this is the correct construction of the constitutional provision is very clear.

In the case of White v. State, 26 So. Rep., 343, decided recently by the supreme court of Alabama, a provision of the Alabama constitution similar to section 174 of our constitution was treated as a limitation on the power of the legislature, and a statute imposing a penalty in all cases of failure of a judge to hold his court, regardless of the cause of such failure, was held to be in violation of the constitutional provision. The Ala bama court said: "To neglect is to omit by carelessness or design. Guaranty Co. v. Gleason, 53 How. Prac., 127. Neglect means omission or forbearance to do a thing that can be done or that is required to be done. 16 Am. & Eng. Enc. L., 385, and note 2. There must not only be a failure, by carelessness or design, to perform the duty required to be performed, but the party failing must have the capacity to perform the acts required of him as they should be done, provided the incapacity is not superinduced by his fault or the result of his own misconduct."

The case of Auditor v. Adams, 13 B. Monroe, decided by the supreme court of Kentucky, is also directly in point. In that case there was a statute, passed in 1851, providing for deductions from official salaries wherever there was a failure by an official to perform his duty, without regard to whether such failure was due to negligence or was unavoidable. Under this statute, a deduction was made from the salary of the appellee, who was one of the state judges. In determining the question of the constitutionality of the statute, two provisions of the Kentucky constitution were...

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11 cases
  • Henry v. State
    • United States
    • Mississippi Supreme Court
    • January 22, 1906
    ... ... Though the statute be "unjust ... or oppressive, impolitic or unwise," this will not ... justify the interposition of the courts. Cole v ... Humphries, 78 Miss. 163 (28 So. 808). No unwritten ... public policy can control to overthrow a solemn declaration ... of one of the ... ...
  • Franklin v. Ellis
    • United States
    • Mississippi Supreme Court
    • November 6, 1922
    ...go, but if it does not it must stand and be enforced. 6 Ruling Case Law, Pars. 105 and 107; Martin v. Dix, 52 Miss. 53; Cole v. Humphries, 78 Miss. 169; 28 So. 808; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Darnell Lbr. Co. v. Johnston, 109 Miss. 570, 68 So. 780; University v. Waugh, 105 M......
  • Hodnett v. Yalobusha County
    • United States
    • Mississippi Supreme Court
    • May 8, 1922
    ...declaration nor in entering judgment dismissing appellant's suit. The fixing of the salary is not by an inflexible rule. See Cole v. Humphries, 78 Miss. 163. The if any, were for a series of months ranging from two and one-half years to five years before suit was brought. If there was no ac......
  • Gist v. Rackliffe-Gibson Consruction Co.
    • United States
    • Missouri Supreme Court
    • December 21, 1909
    ... ... of his district, "arising [224 Mo. 386] from whatever ... cause." The State Auditor deducted from the salary of ... Mr. Humphries, District Attorney, $ 295 for absence from ... court by reason of sickness. The matter coming before the ... Supreme Court ( Cole v. Humphries, 78 ... ...
  • Request a trial to view additional results

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