State ex rel. McNeil v. Edwards

Decision Date29 June 1908
Docket Number13,400
Citation93 Miss. 704,46 So. 964
CourtMississippi Supreme Court
PartiesSTATE OF MISSISSIPPI EX REL. MYRON S. MCNEIL, DISTRICT ATTORNEY v. GEORGE R. EDWARDS, STATE TREASURER, ET AL

FROM the chancery court, first district, Hinds county, HON. G GARLAND LYELL, Chancellor.

The state of Mississippi, suing on the relation of the district attorney, appellant, was complainant in the court below Edwards, state treasurer, and others, appellees, were defendants there. The object of the suit was to enjoin the defendants, state officers, from carrying into effect the provisions of the act, Laws 1908, ch. 96, p. 77, providing for state depositories. The court below dissolved the preliminary injunction which had been obtained and the complainant appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed and bill dismissed.

Myron S. McNeil, district attorney, for appellant.

Is the act constitutional? I maintain it is not. The pole star for constitutional interpretation and construction is the intent of the people in adopting it. Cooley Con. Lim. 89.

The people in forming the constitution committed to the legislature the whole law making power of the state which they did not expressly or impliedly withhold. Cooley Con Lim. 99, 127, 240, 242.

And to ascertain this legislative intent we are to examine the state of things existing when the constitution was adopted, to ascertain the old law, the mischief and the remedy. Cooley Con. Lim. 100.

What was the old law--the constitutional provision? All prior constitutions of the state had been silent on the subject. What was the condition of things? $ 315,000 of the state's money lost and suits then pending for its recovery. How lost? By being in some way suffered and permitted to leave the vaults of the treasury, and no one thought the treasurer himself had squandered the money for his personal use. The remedy? To require the money at all times to be "in the treasury." "Actually in the vaults of the treasury."

It is conceded that this section of the constitution was framed in view of the known habit or custom of the state to keep its money in the vaults of the state treasury. In fact it is admitted that the convention contemplated that the money should at all times be actually in the vaults of the treasury. This admits the case. It is a well recognized canon of constitutional construction, that it matters not what terms are employed. When the intent is made out it must govern. And if at the time the constitution was adopted there were known and settled rules and usages or other laws of the country, in reference to which the constitution has evidently been formed, these in effect became a part of the constitution itself.

It matters not whether it be common law, custom or statutory provisions. Cooley Con. Lim. 100, 186; Lewis v. Beatty, 32 Miss. 50; Beck v. Allen, 58 Miss. 177.

In the light of history and the prior state of the law it will not do to say, that this provision had no purpose other than to restrain and control the custodian himself. The purpose was to provide for the safety and prevent the loss of the public moneys. And to accomplish this purpose the sovereign deemed it wise to, and did, provide that the money should remain "in the vaults of the treasury" "actually in the vaults of the treasury," so long as the legislature said nothing to the contrary. If this, no constitutional provision was required, its regulation might well have been left to statutory enactment exclusively if, notwithstanding this expression of the sovereign, the treasurer when divested could farm out the public money. The sovereign has said to the treasurer that the moneys shall be kept in the treasury, and by the act, the legislature assumes to say that notwithstanding the constitution you keep the moneys thus and notwithstanding the fact that you are the custodian of the public moneys, we will make a way for the evasion of the supreme law, by letting out the money to certain banks, for which you shall take certain securities, and this shall to all intents and purposes be considered as money and when kept in the treasury, a compliance with the mandates of the constitution. The history of this act shows that notwithstanding an over-public sentiment for such a law, the legislature itself had grave doubt of its power--no matter how anxious it might be to yield to this demand to exact a law.

Suppose it had been suggested to the constitutional convention that the depositories be provided for, does any one doubt for an instant, in view of the recent loss to the state and the scandal attendant, the lack of confidence in banks then existing, that for one moment it would have received favorable consideration?

Read this act as we may, it is simply a scheme for the loaning by the state treasurer of the public moneys--all of them, contrary to the clear and manifest provisions of the constitution.

Unless it be said that these banks shall constitute the "treasury" and evidence of indebtedness constitutes "funds" within the meaning of section 137, then the governor cannot comply with the constitutional mandate--and even then he cannot, for if the act is complied with, there will be no "balance stated by the treasurer actually in the vaults of the treasury" and an impossibility to "verify the cash balance as shown by the books" and in all cases the cash balance as called for by the books, must necessarily be published as not actually in the treasury.

The act cannot be held constitutional without paring away the language and intent of section 137 and this should never be done.

Whether the opinion of Judge Campbell in the case of Beck v. Allen, 58 Miss. 177, is right or wrong as to the particular construction there involved, it is full of irrefutable logic, and if the rules of construction by him there laid down are to be followed, this act must be declared unconstitutional.

R. V. Fletcher, attorney general, for appellees.

This litigation was instituted for the purpose of testing the constitutionality of chapter 96, Laws 1908, known as the State Depository Law. Grave reasons of public policy demand that the constitutionality of this act should be judicially determined before the act is put into effect. There can be nothing in the act itself which is subject to attack on constitutional grounds, provided any act can be constitutional.

MAYES, J. CALHOON, J., concurring. WHITFIELD, C. J., dissenting.

OPINION

MAYES, J.

The object of this suit is to test the constitutionality of chapter 96, Laws of 1908, providing for the removal of the state funds from the vaults of the treasury by the establishment of state depositories. By section 1 of the act it is provided that "the state treasurer shall deposit and at all times keep on deposit in the state or national bank, or some of them doing business in this state, the amount of money in his hands belonging to the several current funds in the state treasury, and any such banks may apply for the privilege of keeping on deposit such funds or some part thereof." For the purpose of deciding the question involved, this is the only part of the act we need quote, since it is by this section that the funds are authorized to be removed from the vaults of the treasury, and all other features of the act are addressed merely to the administration of the law.

It is claimed that this act violates section 137 of the constitution of the state, which is as follows, viz.: "It shall be the duty of the state treasurer, within ten days after the 1st day of January and July of each year, to publish a statement under oath, in some newspaper published at the seat of government, showing the condition of the treasury on said days, the balance on hand and in what funds, together with a certificate of the governor that he has verified the count of the funds in the treasury, and found the balance, stated by the treasurer, actually in the vaults of the treasury, or as the truth may be. And it shall be the duty of the governor, at such times as he may deem proper, to go to the treasury, without giving notice to the treasurer, and verify the cash balance as shown by the books, and to publish the fact that he has done so, and whether the amount called for by the books be actually in the treasury, and stating whether the treasurer had any notice whatever that the verification would be made." If the act in question is in conflict with the organic law of the state, it can only be in conflict with section 137, because that is the only provision of the constitution which deals with the question involved in this act.

All laws passed by the legislature of the state are presumably valid in any case, and the presumption is a conclusive one unless there is to be found in the constitution of the United States or the constitution of the state a prohibition on the power of the legislature to pass the particular law. Under this act there can arise no question under the federal constitution. The act deals with a purely state matter. The legislature represents the sovereign power, and is vested with full control and disposition of the state's funds, except in such instances as the constitution prohibits. Thus by section 92 of the constitution the legislature. is prohibited from making payment to any person of the salary of a deceased officer beyond the date of his death. By section 93 the legislature cannot retire any officer on pay, or part pay, or make any grant to such retiring officer. By section 96 the legislature cannot grant extra compensation, fee, or allowance to any public officer, agent, servant, or contractor, after service rendered, etc. These are the only restrictions thrown around the sovereign power of the legislature to control and dispose of...

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