Dugger v. Panola County Board of Supervisors

• Decision Date: 08 June 1925
• Docket Number: 24688
• Citation: 139 Miss. 552,104 So. 459
• Court: Mississippi Supreme Court
• Parties: DUGGER v. PANOLA COUNTY BOARD OF SUPERVISORS. [*]

104 So. 459

139 Miss. 552

DUGGER v. PANOLA COUNTY BOARD OF SUPERVISORS. ^[*]

No. 24688

Supreme Court of Mississippi

June 8, 1925

(In Banc.)

1 COUNTIES. Parishes; statute as to compensation of chancery clerk as county auditor in county having two judicial districts not repealed.

Code 1906, section 2206 (Hemingway's Code, section 1891) which, constituting an exception to the general rule, in connection with section 348 (section 3721), in a county having two judicial districts, authorizes the county commissioners to allow the chancery clerk as compensation for his service as auditor in each district the salary which section 348 provides he shall receive as county auditor to be annually fixed by the commissioners, held not impliedly repealed by Laws 1916, chapter 102, or subsequent enactments on the same subject, especially Laws 1924, chapter 206.

2 STATUTES. Degree of repugnance necessary for repeal by implication stated.

For repeal of statute by implication, which is not favored, there must be such repugnancy between it and later statute that both cannot have their appropriate application.

ETHRIDGE and ANDERSON, JJ., dissenting.

APPEAL from circuit court of Panola county, HON. GREEK L. RICE Judge.

The order of the board of supervisors of Panola county, making allowance to the chancery clerk as compensation for services as county auditor for each judicial district of the county, was, on appeal by Foster Dugger, a taxpayer, affirmed by the circuit court, and he again appeals. Affirmed.

Case affirmed.

G. M Johnson, for appellant.

This is a suit begun before the board of supervisors of Panola county at the October, 1924, meeting, wherein Foster Dugger, a taxpayer, contested the right of the board of supervisors of Panola county to allow J. A. Carter, the then chancery clerk and auditor of Panola county, full compensation under chapter 206, Laws of 1924, for both judicial districts.

What is the maximum salary under chapter 206, Laws of 1924, that any board of supervisors can fix for county auditor in a county having an assessed valuation of over nine million dollars and not more than twelve million dollars and having two judicial districts? The legislature fixed the salary of county auditors under section 6 of chapter 161, Laws of 1922, which act governed the salary of county auditors until repealed by chapter 206, laws of 1924.

This court in Wray et al. v. Bolivar County, 98 So. 447, construed chapter 160, Acts of 1922, and held that said act did not give the right to sheriff to collect double commissions because of being sheriff in county having two judicial districts but held that chapter 160 of Acts of 1922, repealed former statutes relating to a double compensation in counties having two judicial districts.

Chapter 206, Laws of 1924, fixed the salary of county auditor in counties having an assessed valuation of real, personal and public service corporations property over nine million dollars and not exceeding twelve million dollars at an annual sum not exceeding one thousand dollars to be fixed within the discretion of the board of supervisors.

In other words, it was the intention of the legislature of 1924 to fix a maximum salary for auditors of the different counties classing them according to assessed valuation and it left it discretionary with the board of supervisors to pay any sum they deemed a reasonable salary up to and including the maximum amount. Section 4 of this chapter repealed all laws or parts of laws in conflict with the provisions of this act.

Section 348, Code of 1906, construed in State Rev. Agent v. Brame, 112 Miss. 665, was amended by re-enactment in 1918 under chapter 122, Acts of 1918. Chapter 122, Acts of 1918, was repealed under chapter 129, Acts of 1920. Section 2, chapter 206, Acts of 1924, is directly involved. Appellant contends that section 4, Acts of 1924, repealed section 2206, Code of 1906, as the act above quoted, or such parts as are applicable to this cause, is plain and unambiguous and should be construed as written.

Appellant contends under the above-quoted act the maximum salary for county auditor in county having the assessed valuation between nine and twelve million dollars is one thousand dollars and that board of supervisors could not legally pay said chancery clerk as auditor or allow sum over that amount. Appellant says and contends that this amount or maximum amount of one thousand dollars could be paid at the end of any one quarter at the discretion of board of supervisors thereby enabling the chancery clerk to take care of the rush months when extra help is required.

Appellant contends that the lower court erred in failing to sustain the objection of the appellant to order of board dated October 13, 1924, marked Exhibit B and found in record on page 4 in that said board of supervisors allowed the maximum amount of one thousand dollars for each of the two judicial districts or fixed the salary of the county auditor of Panola county at two thousand dollars per year during the full term of office of the present auditor and chancery clerk from April 12, 1924.

Wherefore appellant respectfully asks this court to reverse and remand this cause to the lower court with proper order for fixing salary of county auditor.

Montgomery & McClure and John W. Kyle, for appellee.

The precise point presented to this court for decision is whether or not section 2206, Code of 1906, section 1891, Hemingway's Code, is repealed by chapter 206, Laws of 1924. In State Revenue Agent v. Brame, 112 Miss. 665, this court expressly held that the above section applied to the compensation to be paid to chancery clerks, as county auditors, in those counties having two judicial districts. This case was decided in 1916, settling the law on this point, and the right of a chancery clerk to receive the compensation fixed by the statute for each court district in counties having two judicial districts has not been questioned since the Brame case was decided, until the filing of this appeal.

Appellant in his brief bases his contention upon the idea that the above section 2206, Code of 1906, Hemingway's Code, section 1891, falls under the repealing clause, section 4, Chapter 206, Laws of 1924, which provides: "That all laws or parts of laws in conflict with the provisions of this act, are hereby repealed." We do not so construe that statute.

The purpose of chapter 206, Laws of 1924, was twofold: first, to validate and confirm the action of county officers in receiving and retaining the fees and compensation which they had received in good faith under the authority of chapter 160, Laws of 1922, which had come to be regarded with misgivings on account of its constitutionality being seriously questioned; and secondly, to remedy the defects which had been pointed out in this act and to enact an effective repeal of the county officer's Salary Law, which had proved to be very unpopular throughout the state.

This twofold purpose is plainly stated in the statute.

The language indicates a clear intention on the part of the legislature to substitute the plan of compensating said officers by fees, commissions and salaries, as formerly provided for, in lieu of the compensation, in the way of fixed salaries, provided for in chapter 102, Laws of 1916, and chapter 122, Laws of 1920; and the language of the repealing clause (section 4, chapter 206, Laws of 1924), indicates a clear intention to repeal only such laws as provided a method of compensation in conflict with the principle embodied in the new law. If chapter 160, Laws of 1922, were to be stricken down as unconstitutional, as the legislature of 1924 evidently assumed that it would be, the obnoxious salary laws of 1916 and of 1920 would still be in force and it was these laws, which were clearly in conflict with the principles of chapter 206, Laws of 1924, that were expressly repealed by section 4, chapter 206, Laws 1924.

There is nothing in that part of chapter 206, Laws of 1924, which fixes the compensation to be allowed to county auditors, to indicate any intention on the part of the legislature to disturb the rule announced in the Brame case. There is no necessary conflict between section 2, chapter 206, Laws of 1924, and section 2206, Code of 1906, (section 1891, Hemingway's Code). The repealing clause contained in sec. 4, chapter 206, Laws of 1924, provides only: "That all laws or parts of laws in conflict with the provisions of this act are hereby repealed." "This," in the language of this court in Ascher & Baxter v. Edward Moyse & Co. et al., 101 Miss. 36, 57 So. 299, "is a positive unequivocal declaration that only such laws as are in conflict with the act are repealed, and is equivalent to saying that all former laws upon the subject must remain unrepealed unless the latter act is in irreconcilable conflict with the former law and comes under the rule in Great Northern R. R. Co. supra (208 U.S. 452; 28 S.Ct. 313, 52 Ed. 567), that when the latter act covers the whole subject of a former act, and, embracing new provisions, operates by implication to repeal the prior act, it is subject to the qualification that, when the latter act expresses the extent, to which it is intended to repeal prior laws, it excludes any implication of a more extended repeal."

The provisions of section 2, chapter 206, Laws of 1924, in so far as they determine the salary to be allowed chancery clerks as county auditors, constitute virtually a re-enactment of the provisions of section 348, Code of 1906 (Hemingway's Code, section 3721), except as to amounts to be allowed and as to the time of payment thereof, and nothing in the chapter can reasonably be construed as a repeal of the authority conferred upon the board of supervisors in section...