Moore v. Tunica County

• Decision Date: 29 March 1926
• Docket Number: 24979
• Citation: 143 Miss. 821,107 So. 659
• Court: Mississippi Supreme Court
• Parties: MOORE v. TUNICA COUNTY. [*]

107 So. 659

143 Miss. 821

MOORE v. TUNICA COUNTY. ^[*]

No. 24979

Supreme Court of Mississippi

March 29, 1926

(In Banc.)

1. CONSTITUTIONAL LAW. Officer is not estopped to challenge constitutionality of statute illegally limiting his compensation, by collecting and retaining fees provided.

An officer is not estopped to challenge constitutionality of statute, by collecting and retaining fees, to which it attempts to limit his compensation, which is legally more; he receiving no benefit under the statute.

2 STATUTES. Statute, attempting to revive scheme of compensation of certain county officers by reference only held unconstitutional (Laws 1922, chapter 160; Constitution 1890, section 61).

Laws 1922, chapter 160, attempting to revive and restore as to certain county officers the scheme of compensating by fees in effect prior to Laws 1916, chapter 102, and Laws 1920, chapter 122, and amendments thereto, and which cannot be clearly understood or applied without reference to Code 1906, section 2163 (Hemingway's Code, section 1844) and the Code provisions for collecting these fees, held to violate Constitution 1890, section 61, inhibiting the reviving or amending of a law by reference to its title only and requiring the part as amended or revived to be inserted at length.

3 COUNTIES. Statute abolishing compensation for constitutional county officers, in absence of other provision therefor, is unconstitutional (Laws 1920, chapter 122, section 33; Constitution 1890, section 103).

Laws 1920, chapter 122, section 33, providing that the salaries fixed by the act (for certain constitutional county officers) shall remain in force only till a certain date, in the absence of a valid law providing compensation for them, in effect abolishes a constitutional office by abolishing compensation therefor, and violates Constitution 1890 section 103, providing that the legislature shall provide suitable compensation for all officers.

4. STATUTES. Unconstitutional provision that salaries fixed by act shall remain in force only till a certain time held separable, so that rest of act will stand (Laws 1920, chapter 122, section 33).

Unconstitutional provision of Laws 1920, chapter 122, section 33, that the salaries fixed by the act for certain county officers shall remain in force only till a certain time, is separable, so that the salary as fixed thereby will continue till changed by valid laws.

APPEAL from circuit court of Tunica county, HON. W. A. ALCORN, JR., Judge.

Action by C. V. Moore against Tunica county. Judgment for defendant, and plaintiff appeals. Reversed and judgment rendered.

On motion to correct judgment, see succeeding case herein, or 108 So. 900.

Judgment reversed.

Dulaney & Jaquess, for appellant.

To determine the merits of appellant's claim some examination of the following statutes is necessary. Chapter 49, Code of 1906; chapter 29, Hemingway's Code; Chapter 102, Laws of 1916; Chapter 122, Laws of 1920; Chapter 123, 124, Laws of 1920; Chapter 160, Laws of 1922; Chapter 206, Laws of 1924; Chapter 209, Laws of 1924.

When a statute professes to repeal absolutely a prior law and substitutes other provisions on the same subject which are limited to only a certain time, the prior law does not revive after the repealing statute is spent, unless the intention of the legislature to that effect be expressed. State v. Sargent (N. M.), 136 P. 602; 36 Cyc. 1101, par. c.

In Mississippi an act cannot be revived in any manner except that provided by section 61 of the Constitution; that is, by an enactment in which the revived law is inserted at length. The provision that the salaries should remain in force no longer than April 1, 1922, is void because it left the officers without any compensation after that time. The legislature cannot abolish a constitutional office; and what cannot be done directly is likewise prohibited indirectly, as for instance, by repealing all provisions for compensation. Conner v. Gray, 88 Miss. 489, 41 So. 186, 9 Ann. Cas. 120; State v. Supervisors of Stone County, 136 Miss. 689, 95 So. 683; Seay v. Laurel Plumbing & Metal Co., 110 Miss. 834, 71 So. 9.

The salary of appellant exceeded by a substantial amount the fees collected and he did not choose to accept the offer made to him by the legislature and asks for his salary under the 1920 law, at the same time recognizing the claim of the county against him for the fees collected, by filing with his declaration an itemized statement of the fees as credits on the salary.

Appellant was not estopped from claiming the balance due on his salary because he retained the fees collected by him. Our court has held that under certain circumstances one might be estopped from claiming that a statute was unconstitutional. Ill Cent. R. R. Co. v. King, 69 Miss. 852, 13 So. 824; Quin v. State, 82 Miss. 75, 33 So. 839; Pate v. Bank of Newton, 116 Miss. 666, 77 So. 601; Pearl River County v. Lacy Lbr. Co., 86 So. 755, 124 Miss. 85 at p. 108; O'Brien v. Wheelock, 184 U.S. 450, 46 L.Ed. 636, at 654; Shepard v. Barron, 194 U.S. 553, 48 L.Ed. 1115.

However, in the case a bar we submit that the elements of estoppel are not to be found. The county does not appear to have in any way changed its position because of any conduct of the appellant. "Estoppel operates only in favor of one who, in reliance upon the act, representation or silence of another, so changes his situation as that injury would result if the truth were shown." Davis v. Butler, 128 Miss. 847, 91 So. 279. The county at all times owed the appellant more than the fees which had been collected by him. No act of appellant either benefited him or injured appellee.

Can one collecting a part of what is due, for that reason be estopped from claiming all that is due? Moore did violate the requirements of the Act of 1920 by failing to pay into the county treasury the fees collected by him. He was liable to suit by the county to force an accounting for those fees. But in such suit assuredly the court would have held that he could offset his claim for salary and, if it exceeded the county's claim, recover the balance.

In an opinion handed down by Justice ETHRIDGE our court held that the acceptance of a smaller wage than that fixed by the railroad board does not per se waive the right to demand the balance due. Rhodes v. N. O. G. N. R. R. Co., 129 Miss. 78, 91 So. 281.

An officer who has accepted a salary under an act later declared unconstitutional is not estopped from claiming additional compensation at the legal rate. See County v. McKnight, 20 Ariz. 103, 177 P. 256; County v. Alger, 20 Ariz. 147, 177 P. 272; Phillips v. Graham County, 17 Ariz. 208, 149 P. 755; Glavey v. U.S. 182 U.S. 595, 45 L.Ed. 1247; People, ex rel. Satterlee v. Board of Police, 75 N.Y. 38, 42; Kehn v. State, 93 N.Y. 291; 22 R. C. L. 538, par. 235.

We call especial attention to County v. McKnight, in which the Arizona court in 1918 reviewed the earlier authorities. It involved the exact defense of estoppel presented by the case at bar; that is, an officer had received smaller compensation under a void act and was suing for the balance due him. The court discusses there the only case which we have found holding to the contrary and the one relied upon by counsel for appellee in the court below, Gross v. Whitley County, 158 Ind. 531, 64 N.E. 25, 58 L. R. A. 394. As is pointed out by the Arizona court, the holding in the Gross case in distum and the authority cited by the Indiana court does not support it.

A contract by an officer for a lesser compensation than that fixed by law is void and unenforceable. Bodenhoffer v. Hogan, 142 Iowa 321, 120 N.W. 659, 134 A. S. R. 418, 19 Ann. Cas. 1073 and note.

Our court has held that one who collected fees and paid them into the public treasury could not afterwards sue to recover the same, on the theory that it constituted a voluntary payment, but in the same case recognized and followed the rule that a contract to increase or diminish compensation of a public officer fixed by law is void, and allowed the officer to recover commissions although the officer had contracted for a definite salary and had received the same for thirteen months. See Town of Wesson v. Collins, 72 Miss. 844, 18 So. 360, 917.

We submit that the case last cited is conclusive for the appellant against the defense of estoppel; that the appellant is entitled to the balance due on his salary under the Act of 1920; and that the case should be reversed and remanded.

Wilson, Gates & Armstrong and Bertrand W. Cohn, for appellee.

I. Appellant is estopped from challenging the validity of any of the statutes providing for the fee basis of compensation for circuit clerks because he accepted these fees without protest. One who has enjoyed the benefits of an act and who has received the compensation provided for by it is estopped to deny the constitutionality of any part of the statute. Gross v. Whitley County, 158 Ind. 531, 58 L. R. A. 394; New York v. Gorman, 49 N.Y.S. 1026; State v. Imel, 242 Mo. 293, 146 S.W. 783; Greene Country v. Lydy, 172 S.W. 376; Outagamie Comity v. Zuehlke, 165 Wis. 32, 161 N.W. 6; People ex rel. v. Bunker, 70 Cal. 212, 11 P. 703; Board of Education v. Kenan, 112 N.C. 566, 17 S.E. 485; Philadelphia County v. Sheehan, 263 Pa. 449, 107 A. 14.

The Arizona case cited by appellant in his brief, County v. McKnight, 177 P. 256, was a case where the statute had already been declared unconstitutional before the suit was filed by the officer and may be distinguished on this ground. Counsel has been unable to find any cases supporting the Arizona doctrine in any other state.

The pleadings show that appellant is estopped from attacking the fee system, the exhibit to his declaration setting out in detail...