State ex rel. Knox v. Speakes

Decision Date21 June 1926
Docket Number25852
Citation144 Miss. 125,109 So. 129
CourtMississippi Supreme Court
PartiesSTATE ex rel. KNOX, ATTORNEY-GENERAL, v. SPEAKES et al. [*]

APPEAL from circuit court of Bolivar county, First district, HON. W A. ALCORN, JR., Judge.

(In Banc.)

1 STATUTES. Statute creating county courts in certain counties held not local or special law, when interpreted as authorizing Governor to determine population of counties automatically coming under act (Laws 1926, chapter 131; Constitution 1890, section 90).

Laws 1926, chapter 131, creating and establishing county courts in certain counties, held not a local or special law, in violation of Constitution 1890, section 90, when interpreted as providing that population of counties automatically coming under act is to be ascertained by Governor after 1926, and not to be determined by federal census of 1920.

2 STATUTES.

Meaning of provision, which is not ascertainable from act itself cannot be enforced by the courts.

3 STATUTES.

In determining whether act is general or local or special law, courts will look to substance and practical operation of law, rather than to its form and phraseology.

4. STATUTES.

A law is "general" when it applies to and operates uniformly on all members of any class of persons, places, or things requiring legislation peculiar to particular class dealt with by law.

5. STATUTES.

Law is "general and uniform" if it operates on every person who is brought within classification and circumstances provided for, though not operating on every person in state.

6. CONSTITUTIONAL LAW.

If Constitution is silent on subject of legislation, the legislature, is supreme, but, where Constitution speaks, legislature may only go to extent permitted by Constitution.

7. CONSTITUTIONAL LAW.

Laws 1926, chapter 131, enacted under authority of Constitution, 1890, section 172, creating county courts in certain counties, held not violative of sections 146, 156, 159, 171, conferring jurisdiction on different courts.

8. CONSTITUTIONAL LAW. Statutes. Provision in county court law, conferring authority on circuit judges to try appeals in vacation without notice held in violation of Constitution, but, being separable, does not affect validity of statute (Laws 1926, chapter 131; Constitution 1890, section 14).

Provision of Laws 1926, chapter 131, creating county courts, which conferred on circuit judges authority to try appeals in vacation without notice, held in violation of Constitution 1890, section 14, but, being separable from balance of act, does not go to constitutionality so as to affect validity of statute.

McGOWEN, J., and SMITH, C. J., dissenting.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Bolivar county, First district, HON. W. A. ALCORN, JR., Judge.

Mandamus by the state, on the relation of Rush H. Knox, attorney-general, against W. A. Speakes and others, to require respondents as members of the board of supervisors of Bolivar county, to submit to qualified electors question of whether County Court Act should be put in force. Judgment dismissing the petition, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Rush H. Knox, Attorney-General, A. B. Sparkman, Simmons & Jackson, Harry M. Bryan, Assistant Attorney-General, for appellant, and P. C. Canizaro and R. J. Bishop, amicus curiae.

I. While the Constitution of the United States is a grant of power, the Constitution of the state of Mississippi operates only as a limitation upon the power of the people; and the legislature as the representative of the people has the inherent power to enact any law not expressly or impliedly prohibited by the Constitution of the state. Section 32, Constitution of Mississippi; section 33, Constitution of 1890; State v. Board of Supervisors, 105 So. 541; Hinton v. Board of Supervisors, 36 So. 565, 84 Miss. 536; Hart v. State, 87 Miss. 171, 39 So. 523; State ex rel. Greaves, Dist. Atty., v. Henry, 87 Miss. 125, 40 So. 152; State ex rel. District Attorney, v. Edwards, 93 Miss. 704, 46 So. 964; Johnston v. Reeves & Company, 112 Miss. 227, 72 So. 925.

The above cases are also cited as examples of an unbroken line of authorities which hold that it is the duty of the court to decide in favor of the constitutionality of any act of the legislature unless the act plainly conflicts with the fundamental law and in this respect conflicts will not be presumed. See State v. L. & N. R. R. Co., 97 Miss. 35, 53 So. 454; and Natchez R. R. Co. v. Crawford, 99 Miss. 697, 55 So. 596.

Applying the above principle to the case at bar, we find nothing in the Constitution of this state prohibiting the legislature from creating an inferior court and conferring upon it such jurisdiction as they may see fit; but, on the other hand, we find the power to create such inferior courts as may be deemed necessary clearly expressed in section 172, Constitution of 1890, which provides: "The legislature shall from time to time establish such inferior courts as may be necessary and abolish the same whenever deemed expedient. "

What is meant by the term "inferior court?" In studying this question from the standpoint of our own judicial history, we find that the Constitution of 1832 and the Constitutions of 1869 and 1890 all contain similar provisions with reference to the organization of the judicial branch of our government. In the Constitution of 1832 the court of last resort was designated as a "high court of errors and appeals," and in the Constitutions of 1869 and 1890, it was designated as a "supreme court." All of these Constitutions created circuit courts, chancery courts, and courts of justices of the peace, and conferred upon these courts all original jurisdiction covering the entire judicial power of the state. In each of these Constitutions there is found in practically the same language the provision of section 172, Constitution of 1890, quoted above. In addition to the courts mentioned above, the Constitution of 1832 provided for a probate court.

Under the Constitution of 1832 the legislature, at its 1836 session, passed an act creating a criminal court for certain counties of the state, and the legislature, at its 1842 session, passed an act creating an inferior chancery court. The constitutionality of each of these courts was passed upon by the High Court of Errors and Appeals, the criminal court under the Act of 1836 being passed upon in Thomas v. State, 5 How. 20, and the inferior chancery court under the Act of 1842 being passed upon in Houston v. Royston, 7 How. 543.

These two cases hold that all courts other than the supreme court are inferior courts, that any court which is subject to the appellate jurisdiction of another court is an inferior court, and that any court of a limited jurisdiction is an inferior court.

In the adoption of the subsequent Constitutions, the section with reference to inferior courts was inserted therein with the meaning given to it by these decisions. Shotwell v. Covington, 69 Miss. 735; Weathersby v. Roots, 72 Miss. 355; Pattison v. Clingan, 47 So. 503, 93 Miss. 310; Hinton v. Board of Supervisors, 36 So. 564; Burks v. Moody, 107 So. 279. See also Rabe v. Fyler, 10 S. & M. 440, where the question of an unlawful entry and detainer court was involved; Pegram v. West Hatchie & Owl Creek Drainage District, 108 Miss. 793, 67 So. 453, where the constitutionality of a statute creating an inferior court was questioned. On the question of what an inferior court is, see, also: Swift v. Wayne Circuit Judges, 64 Mich. 749, 31 N.W. 434; Baily v. Winn et al., 113 Mo. 155, 20 S.W. 21; Kirkwood v. Washington County, 52 P. 568; Ex parte Lothrop, 6 S.Ct. 984, 118 U.S. 113, 30 L.Ed. 108.

The county court created by the legislature of 1926 is an inferior court within the meaning of the Constitution, especially as the jurisdiction of the county court is limited to matters in which the amount in controversy does not exceed one thousand dollars exclusive of interest and cost, the county court, therefore, being limited as to the extent of its jurisdiction and subject to the appellate jurisdiction of a higher court.

II. The demurrer filed in this cause alleges that chapter 131, Laws of 1926, creating the county court system is violative, among others, of the following sections of the Constitution: Sections 156, 157, 159, 160, 162 and 171. All of these sections of the Constitution relate to the creation and jurisdiction of the chancery, circuit and justice courts.

It will be seen that the entire original judicial power is conferred upon these three courts--the circuit, chancery and justice courts; that no judicial power is left undisposed of; but that the entire original judicial power of the state is conferred upon one or the other of these three courts. However, section 172, Constitution of Mississippi provides: "The legislature shall from time to time establish such other inferior courts as may be necessary and abolish the same whenever deemed expedient."

This necessarily implies the power on the part of the legislature to confer upon such inferior courts so established some of the jurisdiction given to the circuit, chancery and justice courts, for there is no other jurisdiction to be exercised by any court; and unless the jurisdiction of the circuit, chancery and justice courts is to be invaded, it would be an absurdity to create any other inferior court because there would be no duty or jurisdiction conferred upon it.

Does the provision in section 156, Constitution of Mississippi that the circuit court shall have original jurisdiction in all matters civil and criminal, etc.; and the provision in section 159 that the chancery court shall have full jurisdiction, etc., and the provision in section 171 that the jurisdiction...

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