Hester, Sheriff v. Copiah County

• Decision Date: 23 October 1939
• Docket Number: 33830
• Court: Mississippi Supreme Court
• Parties: HESTER, SHERIFF, v. COPIAH COUNTY

191 So. 496

186 Miss. 716

HESTER, SHERIFF, v. COPIAH COUNTY

No. 33830

Supreme Court of Mississippi, Division A

October 23, 1939

APPEAL from the circuit court of Copiah county HON. J. F. GUYNES Judge.

Action by W. E. Hester, Sheriff, against Copiah County to recover additional fees under statute providing for increased compensation with increase in county's population to more than 32, 000. From an adverse judgment, plaintiff appeals. Affirmed.

Affirmed.

W. S Henley, of Hazlehurst, for appellant.

This appeal involves the construction of Section 1804, Code of 1930.

Section 1804 of the Code was enacted as Chapter 227, Laws of 1928. Previous to this time a somewhat similar section was in effect, being Chapter 207 of the Laws of 1924. The last mentioned section was construed in the case of Norsworthy, Sheriff, v. Forrest County, 145 Miss 55, 111 So. 144.

The case of Brown v. Reeves, 129 Miss. 755, 92 So. 825 involves the construction of a statute dealing with the salary of a member of the board of supervisors. The statute involves Sections 2194 and 2195, Code of 1906 (Sections 1778 and 1779, Hemingway's Code). These sections merely classified the counties according to population.

The distinction involved between the present situation and that in the case of Brown v. Reeves is that Section 1804, Code of 1930 by its expressed terms applied to "All counties in this state now having or which may hereafter attain a population of 32, 000." The Legislature very clearly intended and provided that a county would be reclassified whenever it attained the specified population.

In the case of Smith v. Chickasaw County, 125 So. 97, the Mississippi Supreme Court very clearly held that a circuit clerk's salary would change whenever the assessed valuation changed, and that such salary would not only be increased, but would be decreased dependent upon such condition.

It would not seem that any other reasonable construction could be placed upon Section 1804, except that the Legislature clearly intended that the compensation provided for would change whenever the conditions (population or assessed valuation either changed). The wording of this statute clearly places it in a different situation from that of the usual classification statute.

Brown v. Reeves does not hold that the Federal Census is the only way to ascertain the population of a county.

The courts have uniformly held that population may be estimated using the census as a factor.

23 C. J. 162; Menasha Woodenware Co. et al. v. Town of Winter et al., 150 N.W. 526; Kokes v. State ex rel. Koupal, 76 N.W. 467; Louisville & N. R. Co. v. Johnson, 33 So. 661; Gordon v. Lowry, 217 N.W. 610; Blessing v. Davis, 92 N.W. 740; Grimm v. Bayfield County, 182 N.W. 466.

We respectfully submit: (1) That the sheriff's account was properly filed and itemized in the manner required by law with the utmost detail, was approved as to its correctness by the district attorney, and the correctness thereof was established by uncontroverted testimony. (2) That the evidence shows beyond a shadow of a doubt that during the year 1938 Copiah County had a population in excess of 32, 000. Therefore, Section 1804, Code of 1930, was applicable; and that, (3) Said account should have been allowed by the court below.

M. S. McNeil, of Hazlehurst, for appellee.

It is the opinion of the writer that the judgment entered is not a final judgment from which an appeal can be prosecuted to this court, and therefore this cause should be dismissed.

3 C. J. 441, par. 258; Perkins v. Thompson, 127 Miss. 864.

We are of the opinion that whenever an officer's salary or compensation is graduated by statute according to the population that the population should be governed by some fixed standard, and we can imagine no better rule than that laid down in Brown v. Reeves, 129 Miss. 755, 92 So. 825.

The court was correct in holding that the account was not authorized by law and not properly itemized.

Counsel for the appellant cites the case of Norsworthy, Sheriff, v. Forrest County, 145 Miss. 55, 111 So. 144, as authority for the allowance of costs to the sheriff in justice of the peace courts. He evidently overlooked the fact that the rule as laid down in the Norsworthy case is no longer the law of the state.

Laws of 1934, Ch. 240, H. B. 709.

Argued orally by W. S. Henley, for appellant, and M. S. McNeil, for appellee...