Hancock County v. Shaw

• Decision Date: 19 May 1919
• Docket Number: 20633
• Citation: 81 So. 647,120 Miss. 48
• Court: Mississippi Supreme Court
• Parties: HANCOCK COUNTY v. SHAW

81 So. 647

120 Miss. 48

HANCOCK COUNTY v. SHAW

No. 20633

Supreme Court of Mississippi

May 19, 1919

1. CONSTITUTIONAL LAW. Restrospective law. Imposing liability on

Laws Ex. Sess. 1917, chapter 38, section 1, approved October 12 1917, requiring counties to pay owners of cattle killed or injured since March 1, 1916, in dipping under the supervision of county county agents, is not invalid, as being retrospective and as impairing vested rights of individuals or private corporations in violation of Constitution 1890, section 16 prohibiting ex post facto laws, the legislature having the right to compel a state subdivision to discharge an obligation considered a just claim against the public.

2 Same.

This statute is not violative of section 14 of the Constitution of 1890, as denying due process of law, nor of any other constitutional provision, state or federal. The statute creates no right of action against an individual or private corporation. It simply gives a right of action against the county whose agent destroys or permanently injuries private property.

Suit by Francis Shaw against Hancock County. From a judgment for plaintiff the county appeals.

APPEAL from the circuit court of Hancock county, Suit by Francis Shaw against Hancock County. From a judgment for plaintiff the county appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

E. J. Gex, for appellant.

This case is based solely on the question of whether the county can be made to pay for any stock that was killed prior to the passage of the act giving a cause of action. Suit in this case was of course filed under and by virtue of chapter 38 of the Laws of the Special Session of 1917. The agreement provides that the cow was killed prior to the passing of this act. The question now for this court to decide whether or not the legislature could provide that a county had to pay for all cattle killed prior to the passage of the law.

There is practically nothing at issue in this case as far as money value is concerned, but the decision of this court on this question will mean the settling of vital questions to every county in the state where dipping was done.

This court in the case of George County v. Bufkin, 78 So. 781, refused to pass on this question, and decided that case on some other subject. In the case at bar I am frank to say that this is the Only point at issue. Our constitution does not prohibit the passing of retroactive measures, providing that they do not conflict with vested rights. We have looked up the authorities to find some decision that touched this proposition and have been unable to find decision pro or con. We have found decisions holding that the legislature had no right to make individuals or railroads pay for something, the doing of which, was not prohibited when done. We are not citing these decisions as we realize that there might be a difference between an individual and a county. The county being a sub-division of the state there might be some difference in the holding of the courts, and as to why there should, we cannot tell.

Mize & Mize, for appellees.

The court gave judgment for the appellee, and, as said by counsel for appellant in his brief, the only question is whether or not the law compelling the county to pay for cattle killed in dipping prior to the passage of the law authorizing suit for same, violates the constitution. As stated by appellant, the only question is whether or not the law is constitutional.

The only sections of the Constitution that we can conceive of this law violating, would be either section 14 or section 16. Section 14 provides that no person shall be deprived of life, liberty or property, except by due process of law. Section 16 provides that no ex post facto law or law impairing obligation of contract shall be passed. We do not see how the act under which this suit was brought could violate section 16 of the Constitution, as all authorities agree that ex post facto laws refer only to criminal law and there is no question of impairment of contract herein. So the only section that could be violated would be section 14, in that it would interfere with vested rights and therefore deprive tax payers of their property without due process of law.

This has been settled, however, against the contention of appellant. The case of Cullman County v. Blount County, Supreme Court of Alabama, 160 Ala. 319, & 18 Eng. Ann. Cas., p. 322, holds that the constitutional provision against retroactive legislation which would affect vested rights is intended for the protection of individuals and does not apply to legislation recognizing and affirming the moral obligation of a subordinate branch of a state (as a county) with respect to a past transaction. In that case, there is a note setting out the great weight of authority as in favor of appellee, and the minority rule is constituted by a few New England cases of early date. But the question has been settled by the supreme court of the United States in the case of New Orleans v. Clark, 95 U.S. 644, 24 Law Ed. 521, which was a case that went up from Louisiana. The Louisiana constitution had a provision that no retroactive law should be passed. The supreme court of the United States, in considering that provision, said at the conclusion of the opinion:

"The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the state, or of any of its subordinate agencies, with respect to past transactions. It is designed to prevent retrospective legislation injuriously affecting individuals, and thus, protect vested rights from invasion."

While the facts of that case are somewhat different from the facts of the instant case, whether or not a retroactive law fixing liability on a state or subdivision of a state is void, and that question was squarely before the supreme court of the United States in the New Orleans v. Clark, Case, supra; and in Rose's notes, p. 316, as shown in the volume of Law Edition, supra, this case is cited with approval by a number of cases under this particular head. The cases cited in the opinion in the Cullman County case, supra, from Alabama inferentially hold the same thing, some of which are from the supreme court of the United States, but the case of New Orleans v. Clark, supra, is the most applicable of the cases we have been able to examine; and we have been unable to find any authority holding that this provision of the Constitution deprives a state of the right of passing a law that would compel the state or a subdivision thereof to pay a moral or equitable claim.

As said in the case of Williams v. Eggleston, 42 Law Ed. 1047, this is on the theory that the legislature has control and authority over the affairs of the government unless clearly prohibited by a provision of the Constitution of the United States or of a state.

All of the work of cattle dipping is done for the benefit of the public at large, the tax payers, the only ones who could complain, and since they are benefitted generally by it, then, when one of them suffers damage through the negligence of an officer of the government, who is nothing more than an agent of the tax payers themselves in supervising the dipping of cattle, it is morally and equitably right and just that the owner should be compensated for the damage he has suffered, and this is what the law under which this suit was brought contemplates.

It is not so very different from the act of the legislature permitting boards of supervisors in their discretion to make payment for claims of cattle falling through bridges, etc. Under such act, it is left discretionary with the board of supervisors whether or not they should pay if they pay, then nobody can be heard to complain, and there is no authority holding that this violates the "due process of law" clause of the constitution. The act under which this suit was brought simply compels the county to pay where there was negligence on the part of the dipping supervisors resulting in loss to the cattle owner, and when the legislature passed this act it was simply consent on the part of the state that the state or subdivision thereof might be sued.

Counsel for appellant not having cited the section of the Constitution he claims this act violates, of course we have to assume that the only sections that it could violate are those hereinbefore referred to.

STEVENS, J. ETHRIDGE, J. dissenting.

OPINION

STEVENS, J.

The county in this case appeals from the judgment of the circuit court of Hancock county awarding appellee the value of a cow killed through the negligence of the county's agent in dipping the cow under the provisions of the statute regulating the dipping of cattle for the eradication of the cattle tick. Chapter 38 of the Laws of Mississippi, as passed at the extraordinary session of the legislature in 1917, requires the several counties of this state to pay a reasonable compensation for live stock that may have been killed or permanently injured since March 1, 1916, or that might be killed or permanently injured in the process of dipping after the passage of such law. The statute was approved October 12, 1917. Section 1 provides:

"Be it enacted by the legislature of the state of Mississippi, that any person in any county in this state shall be entitled to recover from such county reasonable compensation for any live stock owned by such person that may have been killed or permanently injured since March 1, 1916, or that may hereafter be killed or permanently injured in the process of dipping or as a result of such dipping for the eradication of the cattle tick, where such dipping was done under the supervision of the board of supervisors or the live stock sanitary board."...