Horton v. Lincoln County

• Decision Date: 18 February 1918
• Docket Number: 19988
• Citation: 77 So. 796,116 Miss. 813
• Court: Mississippi Supreme Court
• Parties: HORTON v. LINCOLN COUNTY

77 So. 796

116 Miss. 813

HORTON v. LINCOLN COUNTY

No. 19988

Supreme Court of Mississippi

February 18, 1918

Division B

APPEAL from the circuit court of Lincoln county, HON. D. M. MILLER Judge.

Suit by A. N. Horton against Lincoln county. From a judgment sustaining a demurrer to the declaration, plaintiff appeals.

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

Judgment affirmed.

Jas. F Noble, for appellant.

The circuit judge committed error in sustaining the demurrer to the declaration. Chapter 222 of the Acts of the Mississippi legislature of 1914, clearly authorizes the board of supervisors to pay a claim of this nature. The word "may" in this law is properly interpreted "must." A regular and honest claim of this kind must be paid by the board of supervisors. The declaration in this case is lacking in no essential allegation to bring appellant's claim within the requirements of the statute. The circuit judge held that the board of supervisors have arbitrary power to pay or not pay a perfectly regular and truthful claim of this nature. I deny the correctness of the learned judge's ruling. I insist that a claimant, whose honest claim has been rejected by the board, has the legal right to go to the courts for protection. I refer the court to following decisions regarding the meaning of "may." Smalley v. Paine, 102 Tex. 304; Montgomery v. Henry, 144 Ala. 629; Henry v State, 87 Miss. 1; Trial v. Trial, 56 W.Va. 594; 105 Mo.App. 98, 95 S.W. 98; 95 N.E. 400.

It would be very unwise to vest the board of supervisors with arbitrary power in this matter. It would give free rein to the board to do exactly as it pleased, to do right or wrong, show partiality, punish an enemy or reward a friend, even as in the instant case, reject a perfectly honest claim. The law certainly is that a dissatisfied claimant has the legal right to take his cause of complaint to a jury for hearing and determination, where, under the direction of the court, justice and right are more likely to prevail.

I really think that the "due process" clause of the National Constitution would be violated if it should be held that the owner of cattle injured or killed as a result of being dipped has no recourse against the county for compensation for his loss.

When chapter 222 of the Acts 1914, was enacted, a liability was imposed on the board of supervisors to pay every genuine claim of owners of cattle injured or killed in the process of being dipped. It is in legal contemplation an indebtedness due by the county to said owners.

Section 4627 of the Code of 1906, authorizes the board of supervisors to pay teachers indebtedness due for teaching, and states they may pay the indebtedness if they believe it is right and proper. I contend that chapter 222 and section 4627 are to be construed exactly alike; that "may" means "must" in each law; that the board of supervisors "must" pay the owner for injuries done his cattle as it also "must" pay the teacher. Hebron Bank v. Lawrence County, 109 Miss. 397, holds that "may" in section 4627 means "must." I insist that the phraseology and substantial meaning of both statutes are virtually identical in regard to the payment of the claims. I ask that the court read these two statutes together, in the light of the decision just quoted, and I feel confident that when this is done, my contention will be adopted as correct. I also refer the court to 11 Cyc., 594, near the end of paragraph C., which holds, as I understand, that when the legislature authorizes a county board to pay a claim of this nature, it is mandatory.

I am sure it is right for claims like this one to be paid. The owner of cattle have to dip; if they refuse, they violate the law, commit crime. They must subject their property to known danger, without their permission or consent; then, surely when they suffer loss, they should receive just compensation. I ask in all earnestness that this case be reversed and appellant given the right to place his cause before a jury for determination. I submit the case confident in the belief that this court will see the wisdom and righteousness in reversing the lower court and permitting appellant to take his cause of complaint to a jury of his peers, where justice and right may be confidently expected.

Frank Roberson, for appellee.

Chapter 167, of the Laws of 1916, is commonly known as "the state-wide tick eradication law," and I assume that the cow killed in the instant case was dipped pursuant to the state-wide law.

I call the court's attention to the fact that there is no provision in chapter 167, of the Laws of 1916, for the compensation of the owners of cattle killed or permanently injured in the process of dipping. However, the attorney-general's office has held that chapter 222, of the Laws of 1914, which provides for the compensation of owners for cattle killed or permanently injured in the process of dipping, was not superseded by the state-wide tick eradication law, but that the 1914 Act is still in force and the board of supervisors, in their discretion, have the authority to pay for such damages even though the dipping was done under the state-wide act and not by the local option act which was in force prior to 1916. The attorney-general's office has held many times that chapter 222, Laws of 1914, made it discretionary with the board of supervisors as to whether compensation should be made. I call the court's attention, to chapter 221, Laws of 1914, which provides that the inspector, under whose supervision the dipping of cattle is done, is under a bond of two thousand dollars conditioned upon the faithful performance of his duties. Section 2, of this act specifically provides that such inspector shall be civilly liable on his official bond for any damages to cattle or other live stock resulting from his negligence or incompetency. The appellant, in the instant case, had ample recourse against the bonded agent of the county for the damage caused by his negligence as alleged in appellant's declaration.

Counsel for appellant, in his brief, cites several authorities on the proposition that the word, "may" is sometimes interpreted as "must." Of course, the determination as to whether the word, "may" shall be interpreted as "must" will depend upon the particular statute itself, and I don't know that a decision on another statute throws any helpful light on the statute in question. The history of the statute in question should afford assistance in the interpretation of chapter 222 of the Laws of 1914.

The case of Hebron Bank v. Lawrence County, 109, Miss. 394, construing section 4627, of the Code of 1906, is cited by the counsel for appellant. He contends that because the court decided that the word, "may" in that section meant "must" that it logically follows that the same words should receive the same interpretation in the present statute. I have no fault to find with that feature of the Hebron Bank decision, but I feel quiet sure that even in that case, section 4628 was not called to the attention of the court. In the Hebron Bank case, section 4627 could not have been available until the official bond of the county superintendent of education had been exhausted under section 4628. Be that as it may, I submit that the interpretation of the words, "may" and "must" in that case is of no assistance in the present instance.

This is equally true of the case of Town of Carrolton v. Town of North Carrolton, 109 Miss. 494, cited in the additional brief of counsel for appellant.

Both of those cases sound in ex contractu, whereas the case at bar is necessarily one sounding in tort. This distinction is very vital as I see it. Our court has held many times that the county is not responsible for the tortious act of its agents. Sutton and Dudley v. Board of Supervisors, of Carroll County, 41 Miss. 236; Branham v. Board of Supervisors, 54 Miss. 363. This is the common law and has not been changed by statute. It is a mere gratuitous action on the part of the state to compensate owners for damages arising in the protection of the health of the public under its police power.

It was held, in New Orleans v. Charonleau, 46 So. 911, 18 L. R. A. (N. S.) 368, that diseased cows might be destroyed as a police regulation without...