Roberts v. Mississippi Republican Party State Executive Committee, 55619

• Decision Date: 06 March 1985
• Docket Number: No. 55619,55619
• Citation: 465 So.2d 1050
• Parties: James L. ROBERTS, Jr., Commissioner of Public Safety v. The MISSISSIPPI REPUBLICAN PARTY STATE EXECUTIVE COMMITTEE.
• Court: Mississippi Supreme Court

Page 1050

465 So.2d 1050

James L. ROBERTS, Jr., Commissioner of Public Safety v. The MISSISSIPPI REPUBLICAN PARTY STATE EXECUTIVE COMMITTEE.

No. 55619.

Supreme Court of Mississippi.

March 6, 1985.

Rehearing Denied April 10, 1985.

Edwin Lloyd Pittman, Atty. Gen., Stephen J. Kirchmayr, Asst. Atty. Gen., Donald G. Barlow, Sp. Asst. Atty. Gen., Jackson, for appellant.

Michael S. Allred, David A. Barfield, Satterfield & Allred, Jackson, for appellee.

EN BANC.

WALKER, Presiding Justice, for the Court:

This cause comes on appeal from the Chancery Court of Hinds County. James L. Roberts, in his official capacity as Commissioner of Public Safety of the State of Mississippi, appeals from the ruling of the lower court and assigns as error the following:

The Chancellor was manifestly in error in his ruling in the Court below in that his ruling contravenes the rules of statutory construction.

In January 1984 the Mississippi Republican Party made a verbal and written request for access to the complete drivers license records as contained on computer tape from James L. Roberts, in his official capacity as Commissioner of Public Safety of the State of Mississippi. On January 24, 1984 the Department of Public Safety in response demanded as a fee $250.00 run charge plus $.05 per name for 1.7 million names. The total fee sought was in excess of $75,000. The Mississippi Republican Party offered and tendered $500.00 for the reasonable actual cost of providing the requested records.

On March 14, 1984, the Mississippi Republican Party State Executive Committee filed suit based on its interpretation of Mississippi Code Annotated section 25-61-1, et seq., the Mississippi Public Records Act of 1983. The Commissioner of Public Safety relied on section 45-1-21 as the basis of the fee the Department of Public Safety sought to charge.

On March 29, 1984 a hearing was held before Honorable Joe G. Moss, Chancellor of the First Judicial District of Hinds County. The court ruled that the case was covered by the Mississippi Public Records Act of 1983, specifically section 25-61-7.

This case revolves around the application and interpretation of two statutes, Mississippi Code Annotated section 25-61-7 (Supp.1984) part of the Public Records Act of 1983 and Mississippi Code Annotated section 45-1-21 (1972, as amended).

Section 45-1-21 reads:

The Mississippi Department of Public Safety being required by law to keep various records and perform various services and being authorized to furnish certain records and services, said department, by direction of the commissioner of public safety, shall establish and collect for such services a proper fee, commensurate with the service rendered and the cost of such service for the furnishing of any record or abstract thereof in the department of public safety now or which may hereafter be required by law to be kept by said department, any photograph or photo copy of any report of any kind authorized by law, including services for polygraph tests and reports thereof.

No records shall be furnished by the Mississippi Department of Public Safety which are classified as confidential by law. All fees collected under this section shall be paid into the general fund of the state treasury in accordance with the provisions of section 45-1-23(2).

Section 25-61-7 is as follows:

Each public body may establish and collect fees reasonably calculated to reimburse it for, and in no case to exceed, the actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records. Such fees shall be collected by the public body in advance of complying with the request.

Both sides rely on traditional rules of statutory construction in support of their positions. A brief statement of these rules and quotations from cases follows.

Repeal by implication is not favored. In Ex parte McInnis, 98 Miss. 773, 783, 54 So. 260, 262 (1910) the Court stated:

That implied repeals are not favored has been the universal declaration of this and of all courts. See Pons v. State, 49 Miss. 1; White v. Johnson, 23 Miss. 68; Smith v. Vicksburg, 54 Miss. 615. In order for a subsequent act to repeal a former one expressly, it must point out the statute repealed with sufficient certainty. If it was the purpose of the legislature to repeal section 870 of the Code and all acts amendatory thereto, it should have said so explicitly in the repealing act; but this they did not do. In White v. Johnson, 23 Miss. 68, it is said: "A series of acts upon one subject are to be construed as one whole; and where in a subsequent statute there is no express repeal of a former, the court will not hold the former to be repealed by implication, unless there be a plain and unavoidable repugnancy between them. See Planters' Bank v. State, 6 Smedes & M. 628."

Statutes on the same subject, although in apparent conflict, should if possible be construed in harmony with each other to give effect to each. In Lamar County School Board of Lamar County v. Saul, 359 So.2d 350, 353 (Miss.1978), the Court stated:

In construing statutes, all statutes in pari materia are taken into consideration, and a legislative intent deduced from a consideration as a whole. Jackson County v. Worth, 127 Miss. 813, 90 So. 588 (1921). Statutes in pari materia, although apparently conflicting should, if possible, be construed in harmony with each other to give effect to each. Greaves v. Hinds County, 166 Miss. 89, 145 So. 900 (1933). See cases annotated in Mississippi Digest, Statutes, Key # 223.2(1).

See Surles v. McNeel, 357 So.2d 319, 320 (Miss.1978). Greaves v. Hinds County, 166 Miss. 89, 145 So. 900 (1933).

In construing statutes the Court will give effect to the intent of the Legislature. In Aikerson v. State, 274 So.2d 124, 127 (Miss.1973), it is stated:

It is a general rule that in construing statutes this Court will not only interpret the words used, but will consider the purpose and policy which the legislature had in view of enacting the law. The Court will then give effect to the intent of the legislature. State Highway Commission v. Coahoma County, 203 Miss. 629, 32 So.2d 555, 37 So.2d 287 (1947).

In the case of Sheffield v. Reece, 201 Miss. 133, 143, 28 So.2d 745, 749 (1947) we said that we would give effect to the intent of the legislature in statutory law "[T]hough the interpretation may go beyond the letter of the law." See also Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844 (1922).

An exception cannot be created by construction. In State v. Heard, 246 Miss. 774, 781, 151 So.2d 417, 420 (1963) the Court said:

An exception cannot be created by construction, when none is necessary to effectuate the legislative intention. Ordinarily, an exception must appear plainly from the express words or necessary intendment of the statute. Where no exception in positive words is made, the presumption is the legislature intended to make none.

Words in common use when used in a statute should be given their usual and ordinary meaning. In Chattanooga Sewer Pipe Work v. Dumler, 153 Miss 276, 286, 120 So. 450 (1929) the Court stated:

"The true sense in which words are used in a statute, is to be ascertained generally by taking them in their ordinary and popular signification." ( Green v. Weller, 32 Miss. 650), and "words employed in a statute are to be taken in their ordinary and obvious signification, unless it is clearly necessary to enlarge or modify this in order to effect the plain intent of the legislature" ( Peeler v. Peeler, 68 Miss. 141, 8 So. 392).

Also: Pearl River Valley Water Supply Dist. v. Hinds County, 445 So.2d 1330 (Miss.1984); Lambert v. Ogden, 423 So.2d 1319 (Miss.1982); Mississippi Power Co. v. Jones, 369 So.2d 1381 (Miss.1979).

The Commissioner of Public Safety argues that both sections should be applied and contends that the department should be allowed to collect two fees--one under each statute. He argues that the department may collect a fee "commensurate with the services rendered and the cost of such service " under section 45-1-21. The Commissioner also argues that section 25- 61-7 allows a separate and distinct fee "reasonably calculated to reimburse it for, and in no case to exceed, the actual cost of searching, reviewing and/or duplicating and, if applicable, mailing copies of public records. " In our opinion this argument lacks logic and has no merit.

The Mississippi Republican Party contends that section 25-61-7 and section 45-1-21 require a single fee "in no case to exceed" the cost of the service.

Their argument is that the statutes should be read in harmony with each other. They give the dictionary definition of "commensurate" from Webster's New World Dictionary, which is (1) equal in measure or size, (2) proportionate, (3) commensurable. Thus, under both statutes there is no conflict, and the same fee is to be charged, i.e., the actual cost. The two statutes simply provide alternative routes to obtain the same records. In Earl v. Tulsa County District Court, 606 P.2d 545, 546 (Okla.1980), the court held:

The adjective "commensurate", when used with the preposition "with", may have two different meanings. These will, of course, vary with the context in which the words are used. When the referent is specific in size, extent, measure, or amount, "commensurate" denotes "equal". This is the word's first and primary meaning commonly ascribed to it by the lexicon. It is only when a nonspecific referent is used that "commensurate" means "corresponding in size" or "proportionate to". "An income commensurate with his needs" is a frequently employed phrase that serves as an example of the adjective's secondary meaning. This English usage is clearly compatible with the word's etymology. In Latin "commensurate" means literally "equal in measure".

See also Rynar v. Lincoln Transit Co., 129 N.J.L. 525, 534, 30 A.2d 406 (1943), Succession of Correjolles, 206 La. 581, 600, 19 So.2d 259, 265 (1944).

The intent of...