Haas v. Hancock County

• Decision Date: 05 December 1938
• Docket Number: 33529
• Citation: 183 Miss. 365,184 So. 812
• Court: Mississippi Supreme Court
• Parties: HAAS et al. v. HANCOCK COUNTY

184 So. 812

183 Miss. 365

HAAS et al. v. HANCOCK COUNTY

No. 33529

Supreme Court of Mississippi

December 5, 1938

Division B

APPEAL from the chancery court of Hancock county HON. D. M. RUSSELL Chancellor.

Proceedings in the matter of the validation of $ 75,000 of Hancock county funding bonds, wherein Norton Haas and others filed objections. From a judgment holding the bonds valid, Norton Haas and others appeal. Affirmed.

Affirmed.

Edward I. Jones, of Bay St. Louis, for appellants.

The court erred in taking judicial notice of a local and private act of the Mississippi State Legislature.

Jones on Evidence (4 Ed.), par. 501; Leland v. Wilkinson, 6 Pet. (U. S.), 317, 8 L.Ed. 412; Ellis v Eastman, 32 Cal. 447; Prather v. Springfield, 202 Ill.App. 406; Altgeld v. Gutzoit, 187 S.W. 220; Pearl v. Allen, 2 Tyler (Vt.), 315; 11 Am. Dec. 780; 89 Am. Dec. 670; 4 L.R.A. 40; Davis v. Whidden, 117 Cal. 618, 49 P. 766; Lincoln v. Battelle, 6 Wend (N.Y.) 475; Henley v. Donoghue, 116 U.S. 1, 6 S.Ct. 242, 29 L.Ed. 535; Osborn v. Blackburn, 78 Wis. 209, 23 Am. St. Rep. 400, 10 L.R.A. 367, 47 N.W. 175; Eastman v. Crosby, 8 Alien (Mass.), 206; Haines v. Hanrohan, 105 Mass. 480; Biddis v. James, 6 Binn. (Pa.) 321, 6 Am. Dec. 456; Smith v. Potter, 27 Vt. 304, 65 Am. Dec. 198; Sec. 1597, Code of 1930; Falls v. U. S. Sav., etc., Co., 97 Ala. 417, 31 So. 25, 38 Am. St. Rep. 194, 24 L.R.A. 174; Walker v. Armstrong, 2 Kan. 198.

By the failure of the proponents of the bond issue to introduce in evidence the private act upon which they rely, there is nothing before the court granting the board of supervisors the power and authority to issue the bonds in question except the general laws of the State of Mississippi and the proceedings, resolutions, etc., of the board as reflected by the record herein, are wholly insufficient under the general law, as this learned court decided in the case of Ben F. Lee v. Hancock county, 178 So. 790.

Because of the act not being introduced, and the provisions and conditions of the act not being before the court appellants did not introduce evidence in the record which they would have introduced had the local and private bill been offered in evidence, and because of this error in the lower court, we believe that this case should be reversed and dismissed, or remanded with the right for the proponents of the bond issue to introduce in evidence the local and private act.

The second assignment of errors is that the local and private act is unconstitutional.

It violates Section 87 of the Constitution in that it is a local and private bill, for the benefit of individuals and private corporations in cases which are provided for by general law, and where relief can be given by the courts of this state.

It is an attempt to suspend the operation of a general law by a local and private act of the Legislature for the benefit of individuals and private corporations and associations.

This act purports to validate, confirm and legalize accounts claimed by Hancock county to be owing by it, which would be for the benefit of the individual members of the board.

Sections 3973, 3974 and 3975, Code of 1930.

The part of the act which attempts to validate $ 75,000 of accounts and obligations could not possibly be construed for the benefit of the county and as we contend, the county is not liable for any account or obligations incurred by the board of supervisors over and above the amount budgeted, and the total amount which could possibly be expected to be collected in taxes by the use of the maximum levies set by statute calculated upon the total assessible property of the county, and after the depletion of the funds so collected, the members of the board became personally liable for any obligations thereafter incurred, and if the local and private statute were upheld as constitutional in validating the excessive expenditures of the board of supervisors it would not be for the benefit of the individual members of the board, and of course this is absolutely unconstitutional.

Miller v. Tucker, 105 So. 774.

There can be no possible reason for the validation of accounts and claims to be due by the county for the reason that if they were not valid and legal, no local and private statute could make them so, and if they were valid and legal, no statute would be necessary to declare them so.

If the boards of supervisors can, with impunity, allow claims and incur debts for fabulous amounts in excess of the annual revenue and thereafter to avoid personal liability which is the penalty prescribed by Section 3975 hereinabove cited, secure the passage of a local and private bill of the Legislature validating, legalizing and approving these large deficiencies and also secure authority by a local and private bill to issue bonds of the county to secure funds to pay the deficiency, then the taxpaying public are without the protection.

Sections 3973, 3974 and 3975, Code of 1930.

House Bill No. 48 of the Extraordinary Session of 1938 violates Section 89 of the Constitution in that said act was not passed in accordance with said section and the journals for both the house and senate fail to show any committee reports.

Section 89 of the Constitution.

The Constitutional Convention of 1890 was composed of wise and experienced men, knowing that many local or special laws would not be challenged in the courts, and in many places of the constitution they sought to discourage, hamper, limit and restrict the passage of local laws in several ways, first, by making general restrictions eliminating individuals and private corporations from obtaining any benefit from local and private laws, then by declaring that no special law shall be enacted where a general law could be made applicable, and the constitution, in many other places, recognize the truth that laws ought to be general, if not universal.

Ethridge on Mississippi Constitutions, pages 203 and 204; Witherspoon v. State, 103 So. 134.

The court erred in validating said bonds for the reason that there is nowhere shown in the record, a proper and sufficient adjudication of the warrants, accounts and other obligations of said county, by the board of supervisors, adjudicating that they were valid, legal and binding obligations of the county.

Geo. R. Smith, of Gulfport, and W. J. Gex, Jr., and Robert L. Genin, both of Bay St. Louis, for appellee.

In relying upon Section 1597, Code of 1930, appellant has failed to observe the distinction between a private law and a local law. This distinction is stated in 59 C. J. 736, as follows: "A public local law and a special law are to be distinguished in that a local law applies to all persons within the territorial limits prescribed by it, while a special law applies to a particular person or things of a class. . . . The term 'private' has been sometimes used as synonymous with 'special.' . . . A public law is one which concerns the interests of the public at large. A public law may be a general, local or special law."

6 Words & Phrases, (1st Series,) page 5568; Sasser v. Martin, 29 S.E. 278, 101 Ga. 447; People v. Wright, 70 Ill. 388; State v. Chambers, 93 N.C. 600.

A "special" or "private" act is one operating only on particular persons and private concerns; a "local act" is one applicable only to a particular part of the legislative jurisdiction.

6 Words & Phrases (3rd Series) page 116; Trumper v. School Dist. No. 55 of Musselshell County, 173 P. 946, 55 Mont. 90; Davis v. State, 37 So. 454; Carson v. State, 69 Ala. 236; Compton v. State, 95 Ala. 27, 11 So. 69; Sanders v. Young, 124 So. 225.

In the second assignment of errors appellant contends that H. B. # 48 is in violation of Section 87 of the Constitution which prohibits the enactment of special laws for the benefit of individuals or corporations in cases which can be provided for by general law. Appellant seeks to reason that as much as the obligations to be paid out of the proceeds of the bond issue may be held by private individuals or corporations that the bill comes within the constitutional prohibition. This line of reasoning is, we submit, hyper-technical and strained, to say the least. If such were the rule to be applied to the construction of statutes all legislation must surely fall within its scope as all legislation has some bearing or effect upon the economic or social relationship of people.

Feemster v. Tupelo, 121 Miss. 733, 83 So. 804.

The statute in the case of Miller v. Tucker, 142 Miss. 146, 105 So. 774, sought to validate the action of members of the board of supervisors who had incurred certain personal liabilities because of unauthorized expenditures of public funds, and were therefore liable upon their official bonds. Under Section 100 of the Constitution any legislation, the purpose of which would be to relieve such liability, would be unconstitutional, and the court very properly held that act unconstitutional. H.B. # 48 is in no manner comparable to the act involved in the Miller case. This act merely authorizes the board of supervisors of Hancock County to issue bonds in an amount not to exceed $ 75,000 for the purpose of providing funds to pay legal and valid existing obligations of the county. We respectfully submit the provision relative to validating such obligations cannot be construed to relieve any liability, real or imaginary, against the members of the board of supervisors.

Memphis Ry. Co. v. Bullen, 154 Miss. 536, 121 So. 826; Barron v. McComb, 141 So. 765, 163 Miss. 337.

The rule of law in construing a statute as to its constitutionality is stated in 59 C. J., page 642: " . in determining the question the rule is that if, when the invalid part is stricken out, that which remains is complete in itself and capable of being...