Smith v. Chickasaw County

• Decision Date: 09 December 1929
• Docket Number: 28182
• Citation: 156 Miss. 171,125 So. 96
• Court: Mississippi Supreme Court
• Parties: SMITH v. CHICKASAW COUNTY

125 So. 96

156 Miss. 171

SMITH v. CHICKASAW COUNTY

No. 28182

Supreme Court of Mississippi

December 9, 1929

Division B

Suggestion of Error Overruled January 20, 1930.

APPEAL from circuit court of Chickasaw county Second district HON. T. E. PEGRAM, Judge.

Action by B. M. Smith against Chickasaw County. From the judgment plaintiff appeals. Affirmed.

On suggestion of error. Suggestion overruled.

Affirmed. Overruled.

George Bean, Jr., of Okolona, and Leftwich & Tubb, of Aberdeen, for appellant.

A county officer who served after the passage of chapter 160, Laws of 1922, effective March 30, 1922, and who collected fees under the mistaken impression that they were entitled to fees and not entitled to salaries are entitled to and should recover their salary just as though chapter 160, Laws of 1922, had not been passed, the court having held that statute unconstitutional.

Moore v. Tunica County, 143 Miss. 821, 107 So. 659; Claiborne County v. Morehead, 145 Miss. 867. 111 So. 372; Calhoun Co. v. Cooner, 118 So. 706; Dugger v. Panola County, 139 Miss. 552, 104 So. 459; Jefferson Davis County v. Armstrong, 114 So. 354.

The fact that the board of supervisors had allowed a less sum than that to which an officer was entitled to receive and the fact that he had received, accepted and used it, did not estop him or bar him from claiming the full amount or the balance due him.

Hodnett v. Yallobusha, County, 128 Miss. 772, 91 So. 454; 46 C. J. 1015; Flonary v. Barrett, 146 Ky. 712, 143 S.W. 38, Ann. Cas. 1913C 270; Bartholomew v. Springdale, 91 Wash. 408, 157 P. 1090, Ann. Cas. 1918B 432 and note; Calden v. Sykes, 77 Miss. 64; Throop on Public Officers, section 500.

Courts in construing a statute must seek the real intention of the legislature and then adopt such interpretation as will give effect thereto, though the interpretation may be beyond or within the mere letter of the statute.

Kennington v. Hemingway, 110 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.) 541, Ann. Cas. 1914B 392.

Courts must look to the statute itself for the legislative intent and cannot make law by judicial construction.

Abbott v. State, 106 Miss. 340, 63 So. 667; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Prather v. George, 108 Miss. 670, 67 So. 157.

Where a statute is obscure, the court in construing it, must ascertain the conditions at the time of its enactment, the evil to be avoided, and the necessary effect produced by the statute.

Homer v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 366.

Where a statute is incomplete or defective, either as a result of inadvertance or because the case in question was not foreseen or contemplated, it is beyond the province of the court to supply the omission, even though the statute is a nullity.

36 Cyc., page 1113, par. "G."

Where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effects all those not expressly mentioned.

36 Cyc. 1122, par. "i"; 25 R. C. L. 981, par. 229; Homer v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 366; State v. Tralor, 100 Miss. 544, 36 So. 521.

Section 2206, Code 1906, was not repealed by implication by chapter 102, Laws 1916, nor chapter 206, Laws 1924.

Moore v. Tunica County, 143 Miss. 821, 107 So. 659; Claiborne County v. Morehead, 145 Miss. 867, 111 So. 372; Calhoun Co. v. Cooner, 118 So. 706; State Revenue Agent v. Brame, 112 Miss. 665, 73 So. 721.

H. B. Abernethy and Haman & McCraine, of Houston, for appellee.

If possible, both section 17 as amended and section 20, chapter 122, Laws 1920, must be read into the statute, since chapter 125 undertakes only to amend section 17 of chapter 122.

Board of Supervisors of Lauderdale County v. City of Meridian, 114 So. 803; Madison County v. Collins, 87 Miss. 204, 30 So. 610; Swan v. Buck, 40 Miss. 268. See pages 299-301.

If the deputy was not entitled to draw salary from the state, a payment of his salary by the clerk is voluntary payment for which he may not recover. Board of Supervisors v. Kline, 51 Miss. 807; Anderson v. Issequena County, 75 Miss. 896, 23 So. 310.

The provisions of the entire statute must be considered together.

Clay County v. Chickasaw County, 44 Miss. 534; Claiborne County v. Morehead, 111 So. 372, 145 Miss. 867.

Chapter 122 of the Statute Law of 1920, as amended, is unconstitutional for failure by the legislature to observe the requirements of section 78 of the State Constitution or to make provisions respecting county officers according to such constitutional requirements.

The cases of Moore v. Tunica County, Claiborne County v. Morehead, Calhoun County v. Cooner, and Jefferson Davis County v. Armstrong, do not necessarily control the case at bar for the reason that no vested right to appellant could result in this matter therefrom.

Argued orally by C. L. Tubb, for appellant, and by Thos. L. Haman, for appellee.

Anderson, J. Griffith, J.

OPINION

Anderson, J.

Appellant brought this action against the appellee, Chickasaw county, in the circuit court of that county, to recover the sum of nine hundred ninety-four dollars and twenty-five cents. By agreement of the parties the cause was tried before the court, sitting as both judge and jury, and resulted in a judgment in favor of the appellant in the sum of three hundred forty-four dollars and seventy-five cents, from which judgment he prosecutes this appeal.

Appellant is now circuit clerk of Chickasaw county, and has been since January 7, 1924. The suit is for salary which appellant claims is due him by the county for his services as circuit clerk for the period beginning January 7, 1924, to April 12, 1924; and for salary due him for the services of his deputy, King, for the same period. Chickasaw county is divided into two judicial districts, and the deputy, King, was in charge of the circuit clerk's office at Okolona.

The action was brought under the provisions of chapter 122 of the Laws of 1920. The material facts of the case were undisputed. Appellant conducted the office of circuit clerk during the year 1924 on the theory that chapter 160 of the Laws of 1922, abolishing the salary system provided for in chapter 122 of the Laws of 1920, was valid. Moore v. Tunica County, 143 Miss. 839, 108 So. 900, in which case the court held that chapter 160 of the Laws of 1922 was unconstitutional, had not been decided. The result of that decision was to leave the salary statute, chapter 122 of the Laws of 1920, in force.

Appellant made a contract with his deputy, King, who had charge of the office in the Okolona district, by which the latter was to receive, as compensation for his services, all the fees that office brought in, except one-half of the marriage license fees, and one-half of the lost costs.

The amount of salary to which appellant was entitled for his services as circuit clerk turns upon the construction of certain provisions of chapter 122 of the Laws of 1920, which will now be considered.

Section 2 of the act provided that the counties of the state should be divided into five classes, numbered from one to five; that such classification of the counties should be according to the assessed valuation of all property of each county, consisting of real, personal, and public service corporations--class No. 1 to be composed of all counties in which the assessed valuation is thirteen million dollars; No. 2, of all counties in which the assessed valuation exceeds ten million dollars and is less than thirteen million dollars; No. 3, of all counties in which the assessed valuation equals seven million dollars, and is less than fen million dollars; No. 4, of all counties in which the assessed valuation exceeds five million dollars, and is less than seven million dollars; and, No. 5, all counties in which the assessed valuation is less than five million dollars. Section 5 of the act is as follows:

Class number one

$ 3,500.00 per annum

Class number two

3,250.00 per annum

Class number three

2,750.00 per annum

Class number four

2,000.00 per annum

Class number five

2,000.00 per annum

Section 20 of the act provides, among other things, that in counties with two judicial districts, circuit clerks shall receive two hundred fifty dollars more than circuit clerks in other counties in the same class.

Section 26 of the act provides as follows: "Wherever the assessed valuation of any county shall have so increased as to raise it to any class above, the officers of such county shall from the time the assessment is fixed, receive the salary of such class to which it has advanced."

It will be observed that the latter section provides for an increase in salary where a county advanced from a lower to a higher class. There is no provision in the statute, however, providing for a decrease in salary where a county dropped from a higher to a lower class. When chapter 122 of the Laws of 1920 went into effect, the assessed valuation of property in Chickasaw county was over seven million dollars, and less than ten million dollars; the county being at that time, therefore, in class No. 3. In 1921 the assessed value of the property of the county was less than seven million dollars, and over five million dollars; the county, therefore, had dropped into class 4; and this assessed valuation continued during the year 1924.

We will leave out of view, for the present, the salary claimed by appellant for his deputy, King, and consider the salary claimed by him for his own official services.

Appellant takes the position that when chapter 122 of the Laws of 1920 became effective, the salaries of the circuit clerks of the various classes of counties, as provided in the act, became fixed as the minimum salaries to be received by them,...