Henry v. Carter

• Decision Date: 14 May 1906
• Citation: 88 Miss. 21,40 So. 995
• Court: Mississippi Supreme Court
• Parties: THOMAS M. HENRY, AUDITOR OF PUBLIC ACCOUNTS, v. JOHN W. CARTER

40 So. 995

88 Miss. 21

THOMAS M. HENRY, AUDITOR OF PUBLIC ACCOUNTS, v. JOHN W. CARTER

Supreme Court of Mississippi

May 14, 1906

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

Carter the appellee, was plaintiff in the court below, and Henry auditor of public accounts, was defendant there. The suit was a mandamus proceeding. The judgment of the court below awarded the writ, and Henry, auditor, appealed to the supreme court. A previous suit of the same nature between the same parties was heretofore in the supreme court and is reported. See Carter v. Henry, Auditor, 87 Miss. 411 (s.c., 40 So. 995).

The question at issue was the validity of the act of the legislature, Laws 1904, p. 47, ch. 57, Carter contending that it was valid and entitled him to a warrant on the state treasury for the sum mentioned in its first section, while Henry, auditor, insisted that the act was invalid, and refused to issue the warrant. The act, omitting its title, is and was in words and figures following:

"SECTION 1. Be it enacted by the Legislature of the State of Mississippi, that the sum of seven hundred and forty dollars and six cents ($ 740.06) be, and the same is hereby appropriated to be paid out of the state treasury from moneys not otherwise appropriated, as a donation to J. W. Carter, a citizen of Kemper county, to reimburse him for said amount paid into the state treasury through a collection made by the revenue agent in November, 1900.

"SEC 2. That the board of supervisors of Kemper county be, and is hereby, authorized to allow the claim of J. W. Carter, a citizen of Kemper county, for the sum of one thousand seven hundred and eighty dollars and sixty-two cents ($ 1,780.62) wrongfully paid by him to said county through a collection made by the state revenue agent in November, 1900, and said board of supervisors is hereby authorized and empowered to make such provision for the payment of said sum as to it may seem best, and in the order allowing said claim said board may direct the payment of said amount, or so much thereof as it may see proper, to be made in partial payments.

"SEC. 3. That this act take effect and be in force from and after its passage."

The defendant filed several pleas in the court below, by one of which he presented the question as to whether the act ever became a law under Constitution 1890, sec. 72, providing for the presentation of bills to the governor and his return of the same to the legislature, and for his failure to return them; by others he raised the question of the constitutionality of the act, claiming that it violated secs. 1 and 2, dividing the powers of the state into those which are legislative, those which are executive, and those which are judicial; and sec. 69, providing that an appropriation bill, other than general ones, should embrace but one subject; and sec. 87, forbidding the suspension by special act of the operation of a general law for the benefit of an individual; and sec. 96, prohibiting extra compensation to public officers. Carter had been tax collector of Kemper county, and this claim against the state sprang out of the performance of or efforts to perform official duties.

The plaintiff demurred to all the pleas, the court below sustained the demurrer to all of them, and defendant, not desiring to plead further, a final judgment was rendered in plaintiff's favor.

Affirmed.

Green & Green, for appellant.

(1) Section 87 of the constitution prohibiting the suspension of the operation of any general law in favor of any private individual is violated by the present act.

(2) The return of the bill, unsigned by the governor, with a message to the house wherein it originated, prevents it becoming a law without being passed by a two-thirds vote of the legislature, as required by sec. 72 of the constitution.

(3) The bill was an appropriation bill, and thereon was engrafted legislation in violation of sec. 69 of the constitution.

(4) The amount appropriated by this bill was due the state of Mississippi by Carter as tax collector, and was collected and paid into the state treasury by the revenue agent as such, and that the same was but an appropriation in the form of a donation to release and discharge a liability due the state in violation of sec. 100 of the constitution.

(5) That the appropriation was an extra allowance to Carter for a service rendered by him as sheriff and tax collector in violation of sec. 96 of the constitution.

(6) This act of the legislature reverses and annuls the judgment of (a) the board of supervisors, and (b) the...