Greaves v. Hinds County

• Citation: 166 Miss. 89,145 So. 900
• Decision Date: 30 January 1933
• Docket Number: 30253
• Court: United States State Supreme Court of Mississippi
• Parties: GREAVES et al. v. HINDS COUNTY ex rel

145 So. 900

166 Miss. 89

GREAVES et al. v. HINDS COUNTY ex rel

No. 30253

Supreme Court of Mississippi

January 30, 1933

(In Banc.)

1 STATUTES.

Statutes in pari materia, although apparently conflicting, should, if possible, be construed in harmony with each other to give effect to each.

2 STATUTES.

Where general statute, if standing alone, would include same matter as special statute, special statute will ordinarily be regarded as qualification of general statute.

3. DISTRICT AND PROSECUTING ATTORNEYS.

District attorney, without attorney-general's approval, held unauthorized to sue county supervisors to recover for county allegedly excessive salaries (Code 1930, sections 4363, 4366).

ANDERSON J., dissenting.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Action instituted, without the approval of the Attorney-General, by the District Attorney of the Seventh Judicial District on behalf of Hinds county against E. D. Greaves and others. Reversed and dismissed.

Reversed and dismissed.

L. C. Hallam, Leon F. Hendrick, and Watkins, Watkins & Eager, all of Jackson, for appellants.

The district attorney was without power to institute or prosecute this suit.

Capital Stages, Inc., v. State ex rel., 157 Miss. 576, 128 So. 759; Secs. 4363 and 4366, chap. 106, Miss. 1930 Code.

The court committed error in permitting appellee to recover against appellants and the sureties on their official bonds. The compensation which the members of the board of supervisors allowed and caused to be paid to themselves was authorized and in strict accordance with the statutes of the state of Mississippi.

Chapters 215 and 216, Miss. Laws 1926; Chap. 89, Miss. Laws 1928; Chap. 29, Miss. Laws 1929, Extraordinary Session, and Sec. 6504, Miss. Code of 1930; Barrett v. School District, 123 Miss. 377; Jackson County v. Worth, 127 Miss. 813, page 830; Peets v. Martin, 135 Miss. 720; McLeod v. State, 154 Miss. 468; Sartin v. Prentiss County, 156 Miss. 46; Myers v. Board of Supervisors, De Soto County, 156 Miss. 251.

The legislative intent must be ascertained.

Smith v. Chickasaw County, 156 Miss. 171; Dresser v. Hathorn, 144 Miss. 24; Money et al. v. Wood, 152 Miss. 17; Darnell v. Johnson, 109 Miss. 570; Roseberry v. Norsworthy, 135 Miss. 845; Kennington v. Hemingway, 101 Miss. 259; City of Holly Springs v. Marshall County, 104 Miss. 752; Maris v. Lindsey, 124 Miss. 742; Robertson v. Texas Oil Co., 141 Miss. 356; Middleton v. Lincoln County, 122 Miss. 673; City of Holly Springs v. Marshall County, 104 Miss. 752; Sartin v. Prentiss County, 156 Miss. 46.

In construing each of the acts, the same must be construed in its entirety, and every word must be made effective.

McKenzie v. Boykin, 111 Miss. 250; Hawkins v. Louisville, etc., R. Co., 40 So. 293; Goode v. State, 39 So. 461; City of Montgomery v. Smith, 88 So. 671; State v. Fontenot, 36 So. 630; State v. Sage, 110 So. 884; State v. Griffin, 110 So. 885; Downs v. Drew, 117 So. 454; Chapter 215, Miss. Laws of 1926; Chapter 216, Miss. Laws of 1926; Chapter 89, Miss. Laws of 1928; Chapter 29, Miss. Laws of 1929; Section 6504, Miss. Code of 1930.

Since the passage of Chapter 89, Mississippi Laws of 1928, the construction extended for by the appellants in this case has been adopted.

Opinion of the Attorney-General, under date of September 10, 1931.

In the case of Illinois Central R. Company v. Middleton, Sheriff, 109 Miss. 199, the court was called upon to construe sections 4255 and 4277, and section 307, Code 1906, as to the collection by new counties of taxes for road and school districts during the year of their creation. The court held that since both the executive and administrative departments of the state had theretofore acted upon the construction of these statutes, such construction should not be departed from, unless manifestly incorrect.

Robertson, Rev. Agent, v. Texas Oil Company, 141 Miss. 357.

While not controlling, that construction adopted by the administrative departments is entitled to weight.

State v. Wheatley, 113 Miss. 555.

Contemporaneous construction of statute by governmental department charged with its execution, while not controlling, is entitled to great weight. Construction of privilege tax statute by State Tax Commission, under express statutory authority, should be persuasive with court.

Conard Furniture Company v. Miss. State Tax Com., 133 So. 652.

The district attorney was without power to institute and prosecute this suit without the approval of the attorney-general.

Section 4366, Code of 1930.

The appellee charges the members of the board of supervisors of Hinds county of being indebted to Hinds county in the sum of sixty-five hundred dollars, because it is further charged they illegally allowed the sum of four hundred dollars per annum as additional compensation. It is a suit for a debt. And we think it is reasonable for us to say this is the statute that applies and it is the only statute giving the district attorney authority to institute and prosecute this suit; that he must first obtain the permission of the attorney-general, which he did not do.

The county is not without relief if anybody or any official is indebted to it. In the first place a suit to recover on an indebtedness may be brought by any taxpayer.

Brown v. Reese, 129 Miss. 755.

The state tax collector may bring it. 142 Miss. 146.

The chief inspector of the auditor's department, under authority, of Section 3753, Code of 1930, is given the power to handle such matters, which we believe is the remedy to use as prescribed by the legislature.

In cases where persons are indebted to the state or any county within his district, the district attorney, by the express provisions of Section 4366 of the Code of 1930 can "institute and prosecute" suits to recover such indebtedness only "with the approval of the attorney-general." Clearly the implication is that no such right, without the approval of the attorney-general was conferred upon the district attorney by section 4363.

Sections 4369 and 4370, Code of 1930.

The word "institute" means to "originate, to establish, to set on foot."

Bridges v. Koppelman, 117 N.Y.S. 306, 312.

The word "maintain" carries a different meaning from "institute" or "begin;" and it seems to us that the word "prosecute" conveys, to the lay mind at least, the idea of maintaining rather than instituting.

National Fertilizer Company v. Fall River Five Cents Saving Bank, 82 N.W. 671, 672, 146 Mass. 458; Commonwealth v. Duane, 2 Am. Dec. 497.

H. B. Gillespie, of Raymond, and Howie & Howie, of Jackson, for appellee.

Certainly it cannot be contended that the statutes would prescribe it as the duty of the district attorney to prosecute "all civil cases in which the state or county may be interested" unless at the same time he was given the inherent right, power and duty to file such suits. Clearly he cannot prosecute civil suits without first filing a proceeding and starting the suit, so the statute in making it his duty to prosecute carried with it the inherent right and power to file such suits.

Section 4363, Code of 1930.

The second point that appellants raise in their brief is that it was the intention of the legaislature to allow the board of supervisors to draw a per diem for every day at nine dollars a day until the same amounted to two thousand, seven hundred fifty dollars.

It is provided in the Acts of the Extraordinary Session of 1929, and in the Code of 1930 in the section which reads as follows:

"Provided further that in all counties in class one, operating, under Chapter 319 of the Laws of 1924, members of the board of supervisors shall receive nine dollars per day not to exceed two thousand, seven hundred fifty dollars any one year.

"Provided further that in all counties of class one operating under the chapter on Sea Walls and in all counties having an assessed valuation of not less than forty-five million dollars, the members of the board of supervisors shall receive nine dollars per day, not to exceed two thousand, seven hundred fifty dollars in any one year."

We would call the court's attention to this fact in the first paragraph of section 6504, first paragraph of chapter 19, Laws of 1929, and the first paragraph of section 3 of chapter 89, Laws of 1928, also section 4, chapter 216, Laws of 1926, in which in each of these sections the Legislature begins with saying "salary of members of board of supervisors in class one" shall be six dollars, seven dollars or nine dollars per day, being different in each of these, but when they say what the limit shall be in the closing part of these paragraphs, they say, "provided the salaries shall not exceed the following amounts per annum."

If the Legislature intended that the whole compensation in Hinds county should be nine dollars per day and that they should receive in addition thereto four hundred dollars per year, and one thousand dollars per year, clearly they would not have called the per diem salary, and then said the total salaries shall not exceed two thousand, seven hundred fifty dollars.

Hinds county under this statute is not only a class one county, but is singled out by a description that points out Hinds county, namely, more than forty-five million dollars assessed valuation and two judicial districts. It cannot be conceived how any supervisor in any other county could get both the nine dollars per day and the one thousand dollars per annum.

Under no interpretation of the several acts of the Legislature could it ever have been contended that the Legislature intended the board of supervisors to have drawn the four hundred dollars per annum on which this suit is based.

The section of the Code...