State ex rel. Warren County v. Stone

• Citation: 11 So. 4,69 Miss. 375
• Court: Mississippi Supreme Court
• Decision Date: 11 January 1892
• Parties: STATE, EX REL. WARREN COUNTY, v. W. W. STONE, AUDITOR

11 So. 4

69 Miss. 375

STATE, EX REL. WARREN COUNTY, v. W. W. STONE, AUDITOR

Supreme Court of Mississippi

January 11, 1892

FROM the circuit court of the first district of Hinds county, HON J. B. CHRISMAN, Judge.

This is an action of mandamus against the auditor of the state brought upon the relation of the board of supervisors of Warren county, to compel the auditor to pay to the treasurer of said county its distributive share of the common school fund of the state. The declaration alleges that the sum which, by law, should have been paid in July, 1891, as the distributive share of Warren county, was $ 2,185,61; that the auditor refuses to pay said sum, but charges against it a like amount claimed to be due by the treasurer of said county to the common school fund of the state, because of fines and forfeitures collected and reported in said county between the first day of November, 1890, and the first day of July, 1891. The declaration alleges that the treasurer of Warren county erroneously accounted for the sum so received from fines and forfeitures to the auditor, whereas it was his duty to pay the net amount of all fines and forfeitures collected after November 1, 1890, into the county treasury. A demurrer was interposed in behalf of the auditor, and the sole question presented is, whether fines and forfeitures collected after November 1, 1890, were, by virtue of the constitution of 1890, payable into the county treasury, or payable into the common school fund of the state, as under the constitution of 1869, and the several statutes regulating the collection and disposition of said fines. The sections of the constitution and the statutes touching this controverted question are sufficiently set out in the opinion.

The circuit court sustained a demurrer to the petition, and dismissed the cause, whereupon this appeal is prosecuted in behalf of the county.

Judgment reversed, demurrer overruled and cause remanded.

J. M Gibson, for appellant.

Section 274 of the constitution of 1890 relates to and includes only statutes that are repugnant to the constitution, and does not embrace constitutional provisions before that in force. The statutes relied on as being repugnant to § 261 of the constitution merely provide a method of enforcing the repealed provision of the constitution of 1869. No statute appropriated fines and forfeitures to the school-fund of the state. The auditor must rest his claim, if he has any, upon the provisions of the constitution of 1869. It is an evasion to say that these sections of the code, prescribing methods of carrying out the constitution of 1869, Can keep in force a repealed constitutional provision. If § 261 of the constitution of 1890 did not take effect on the first day of November, 1890, when will it take effect, and what will make it take effect?

T. M. Miller, attorney-general, for the appellee.

Section 274 of the constitution of 1890 expressly continues in force all statutes repugnant to its provisions. The several statutes devoting fines and forfeitures to the common school fund of the state are thus continued. There can be no distinction between such statutes as rest on the express provisions of the former constitution and other statutes. All statutes depend on the constitution for their authority. The schedule in § 274 makes no exception, and the reason is obvious, as it was not meant to derange the school-system of the state and counties by any sudden stroke. It was never intended to put a part of the constitution, providing for the financial department of the public school system, into operation at once, and postpone the remainder until the legislature should make suitable provision. The sections of the code of 1880 which conflict with § 261 of the constitution are §§ 724, 2168, 2172, 2178 and 2230.

The act of 1882 (Laws, p. 77), amendatory of § 724 of the code, provides that the state treasurer shall transfer from the general fund to the common school fund a sufficient amount to make the common school fund $ 300,000, and this sum shall be distributed, upon the warrants of the auditor, among the several counties pro rata, according to the number of educable children. The right of the auditor to set off the amount of funds reported by the county treasurer is distinctly provided for in the sections before cited. These sections are plainly repugnant to § 261 of the constitution, and are suspended in their operation.

OPINION

CAMPBELL, C. J.

The question to be decided is, were fines imposed and collected in Warren county after November 1, 1890, part of the common school fund of the state, and, as such, to be charged to the county by the auditor in the distribution of the schoolfund; or did they belong to the county in such manner as to not be taken account of in the distribution of said fund? The answer to this question makes necessary a determination as to when § 261 of the constitution of 1890 became operative, for it is indisputable that it devotes "fines and forfeitures" to the treasury of the county. Formerly they constituted part of the fund "to be distributed pro rata among the educable children of the state," but by § 261 of the constitution they belong to the county. The constitution became operative by its declaration "from and after this, the first day of November, A. D. 1890." Therefore, unless it contains some provision which suspended the immediate taking effect of § 261, it, as part of the instrument, was in force immediately. Certainly, it as a whole, went into operation on November 1, 1890, in accordance with its declaration, and became the only constitution of the state of Mississippi. But, to avoid the evil of abrogating, laws upon the statute-books of the state, at a time when the legislature could not cure the evil, it was provided by § 274 of the constitution, that: "All statute laws of this state repugnant to the provisions of this constitution . . . shall continue and remain in force until the first day of April, A. D. 1892, unless sooner repealed by the legislature." The effect of this was to suspend, for the time named, the operation of such provisions of the constitution as would, because of repugnancy, but for this saving clause, abrogate statutes. The manifest purpose was to put the constitution into operation at once, except wherein to do so would annul statutes, and produce the evil of having no law on the subject affected, when the want of it could not be supplied until a meeting of the legislature. This provision is in the nature of an exception, and to be so interpreted.

The constitution must have full and immediate effect, according to its terms, as far as may be, and is to be suspended only so far as it provides. The taking effect of the will of the sovereign as expressed, is not to be postponed, except as it has declared, and doubt, if any, should not be solved by enlarging the exception or saving made, but rather in favor of the immediate operation of the rule, established by the sovereign body as part of the fundamental law, abrogating and superseding the former rule on the subject. In other words the provision, of the constitution should have effect, according to its terms, at as early a date as possible, because it must be accepted as the wise rule on the subject, as it is certainly...