Luckett v. Madison County

• Decision Date: 01 December 1924
• Docket Number: 24505
• Citation: 137 Miss. 1,101 So. 851
• Court: Mississippi Supreme Court
• Parties: LUCKETT v. MADISON COUNTY. [*]

101 So. 851

137 Miss. 1

LUCKETT v. MADISON COUNTY. ^[*]

No. 24505

Supreme Court of Mississippi

December 1, 1924

Division A

Suggestion of Error Overruled Dec. 15, 1924.

APPEAL from circuit court of Madison county, HON. W. H. POTTER Judge.

Suit by H. B. Luckett, Sr., against Madison county. Judgment for defendant, and plaintiff appeals. Affirmed.

Judgment affirmed.

Powell, Harper & Jiggetts, Sid Powell and B. H. Green, for appellant.

The court erred in sustaining defendant's demurrer. (a) The insertion of amendment to section 135 of the Constitution of 1890 of the state of Mississippi, did not remove the officers provided for in section 135 nor did it abolish the office of county treasurer, in so far as the term of office of those serving as county treasurers was concerned. Sections 135, 273 & 136, Const. 1890; secs. 6774 & 2796, Hemingway's Code; Sec. 175, Const. 1890; Amendment to sec. 135, Const. Laws 1924, p. 184; Collins v. Jackson, 119 Miss. 727 at 740 & 741; Darnell v. State Revenue Agent, 109 Miss. 570; Holly Springs v. Marshall County, 104 Miss. 752; Cooley, Constitutional Limitations (7 Ed.), pp. 91 & 97; Bailey v. State, 56 Miss. 637. (b) If the amendment to section 135 of the Constitution of 1890, did not remove the county treasurer from office nor diminish his term of office, then the duly elected, qualified treasurers then serving are entitled to their salary for the term for which they were elected. Laws 1924, p. 308; Fant v. Gibbs, 54 Miss. 396; Secs. 108, 136, Const. 1890; Amendment to sec. 135, Laws 1924, p. 189.

A. We do not suppose that opposing counsel will contend that the amendment to section 135, Constitution 1890, became effective before the 16th day of January, 1924, the date of its insertion therein by the legislature, in view of section 273 of the said Constitution of 1890. Section 135, being part of article 5, Constitution of 1890, before it was amended, provided as follows: "There shall be a sheriff, coroner, treasurer, assessor, and surveyor for each county, to be selected as elsewhere provided herein, who shall hold their offices for four years. The sheriff and treasurer shall be ineligible to immediately succeed themselves or each other in office." Section 136, a part of article 5; of the Constitution of 1890, provides as follows: "All officers named in this article shall hold their offices during the term for which they were selected, unless removed, and until their successors shall be duly qualified to enter on the discharge of their respective duties." Section 6774, Hemingway's Code (sec. 4140, Code 1906), provides that treasurers and other officers shall be elected at the election in 1907 and every four years thereafter.

The agreed statement of facts show that appellant was duly elected treasurer of Madison county at the general election in 1923 and that he duly qualified for said office, entered upon his duties on the first Monday in January, being the 7th day of said month, 1924. From section 2796, Hemingway's Code (Sec. 3458, Code 1906) we see that Luckett entered upon his duties in accordance with provisions of law. We further see that section 135 of the Constitution provided that his term of office was for four years from said January 7, 1924, and that section 136 of the then Constitution entitled him to hold said office for the said four years unless removed. The only lawful methods by which the appellant might have been removed from his office are provided for in our Constitution of 1890. Section 139 of said Constitution provides: "The legislature may empower the governor to remove and appoint officers, in any county or counties or municipal corporations, under such regulations as may be prescribed by law." The legislature seems never to have empowered the governor to remove county officers. Section 175 of our Constitution of 1890 provides: "All public officers, for willful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law." Section 2815, Hemingway's Code (Sec. 3477, Code 1906), provides that if any public officer, county, etc. shall be convicted . . . the court . . . shall adjudge the defendant removed from office, the office shall thereby become vacant.

The amendment to Section 135 of our Constitution of 1890, reads as follows: "There shall be a sheriff, coroner, assessor and surveyor for each county to be selected as elsewhere provided herein who shall hold office for four years. The sheriff shall be ineligible to immediately succeed himself in office. The duties heretofore imposed on the county treasurer shall be discharged by some person or persons selected as required by law," which amendment may be found in the Laws of 1924 at page 189.

Section 136 of the Constitution is still in full force and effect and is as much a part of the Constitution as is the amendment of section 135. It is a well established principle of law, which we deem needs the citation of no authority to sustain, that in construing two statutes the courts will attempt to harmonize them. As to constitutional provisions, see Collins v. Jackson, 119 Miss. 727 at 740 & 741.

Mr. Cooley in his work on Constitutional Limitations (7 Ed.) has chapter 4 entitled: "Of the Construction of State Constitutions" and under said chapter at 91 we find a paragraph headed: "Whole Instrument to be Examined" wherein it is said: "It is therefore a very proper rule of construction, that the whole is to be examined with a view to arriving at the true intention of each part . . . This rule is applicable with special force to written Constitution in which the people will be presumed to have expressed themselves in careful and measured terms, corresponding to the immense importance of the powers delegated, leaving as little as possible to implication. It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together." The above quotation from Cooley is cited with approval in Collins v. Jackson, 119 Miss. 727 at 741. If the amendment to section 135 can be harmonized with section 136 then we say that it is the duty of the court to so interpret amendment to section 135 and it is also the duty of this court to say that there is no implied repeal or nullification of section 136 if any reasonable interpretation can be placed on the two so that they both may stand.

Mr. Cooley has the following to say: "We shall venture also to express the opinion that a Constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. Retrospective legislation, except when designed to cure formal defects, or otherwise operate remedially, is commonly objectionable in principle, and apt to result in injustice and it is a sound rule of construction which refuses lightly to imply an intent to enact it. And we are aware of no reason applicable to ordinary legislation which does not, upon this point, apply equally to Constitutions." Our theory, and we believe the true construction of the amendment to section 135 along with section 136, is that when the present term of office of the county treasurer, who was serving at the time of the insertion of the said amendment expires, that there will be no provision authorizing the selection of a county treasurer and hence at that time the office of county treasurer will be abolished. In presenting the above argument we have not overlooked the case of Bailey v. State, 56 Miss. 637, the opinion in which was rendered by that distinguished jurist, Judge CAMPBELL, and which at first glance would seem to hold directly contrary to our contention.

B. If the amendment to section 135 of the Constitution of 1890, did not remove the county treasurer from office nor diminish his term of office, then the duly elected, qualified treasurer serving at the time of insertion of said amendment is entitled to his salary for the term for which he was elected. By an act of the legislature passed on February 5, 1924, and found on page 308 of the Laws of 1924, the duties heretofore imposed on the county treasurer were taken away and transferred to the sheriffs and chancery clerks. The contention will probably be made that under this act taking away the duties from the office of county treasurer, the salary of such officer shall cease. Section 108 of the Constitution is in the following language: "Whenever the legislature shall take away the duties pertaining to any office, then the salary of the officer shall cease." We say that if this Act of 1924 is attempted to be applied in this case that it is invalid, because it is an attempt by the legislature to abolish a Constitutional office--the office of county treasurer. We have several authorities holding that the legislature cannot do indirectly that which it cannot do directly. These authorities also hold that the taking away of the duties of a Constitutional office by the legislature is an attempt by it to abolish the office and therefore invalid. See Fant v. Gibbs, 54 Miss. 396.

R. E. Spivey, Jr., for appellee.

The question as to the legality of the procedure under which section 135 of the Constitution of 1890, was amended has not been raised. The only question presented here is whether or not the treasurers, who were elected at the November, 1923 general election, and duly qualified...