State Highway Commission v. Gully

• Decision Date: 09 January 1933
• Docket Number: 30281
• Citation: 145 So. 351,167 Miss. 631
• Court: Mississippi Supreme Court
• Parties: STATE HIGHWAY COMMISSION v. GULLY, STATE TAX COLLECTOR

145 So. 351

167 Miss. 631

STATE HIGHWAY COMMISSION v. GULLY, STATE TAX COLLECTOR

No. 30281

Supreme Court of Mississippi

January 9, 1933

Division A

1 STATES.

In absence of statute, state highway commission, which is agency of state, is not suable.

2 STATES.

Statute when authorizing suit against agency of state, is measure of power to sue.

3 STATES.

General statutory authorization to sue governmental subdivision or agency creates no liability, and suit is maintainable thereunder only for liability authorized by statute.

4. HIGHWAYS. Right to expend gasoline tax funds allocated to state highway commission includes right to expend such funds to discharge claims or liabilities arising out of or necessarily incidental to complete accomplishment of statutory purposes (Code 1930, sections 5010, 5012).

Code 1930, section 5010, provides in part that it shall lie duty of state auditor, as directed by state highway commission to allocate funds paid into state treasury to credit of highway commission in certain enumerated account funds, and that no moneys may be withdrawn therefrom except on requisition issued by state highway commission and showing on its face fund against which it is drawn. Section 5012 contains further limitations and prohibitions on expenditure of funds by highway commission.

5. HIGHWAYS.

Right to expend gasoline tax funds allocated to highway commission does not include right to expend such funds for purpose not embraced within statutes (Code 1930, sections 5010, 5012).

6. HIGHWAYS.

Highway commission held unauthorized to expend any funds except those allotted to it by legislative direction (Laws 1928, Ex. Sess., chapter 14; Code 1930, sections 4795, 5010, 5012).

7. HIGHWAYS.

State highway commission held unauthorized to pay any of gasoline tax funds to state tax collector, suing on behalf of counties to obtain counties' alleged statutory share (Laws 1928, Ex. Sess., chapters 14, 21; Act Adopting Code 1930, section 15; Code 1930, sections 4, 4795, 5006, 5010, 5012).

8. STATES.

Until withdrawn and expended for authorized purposes, Legislature has plenary power over gasoline tax funds paid into state treasury to highway commission's credit (Laws 1928, Ex. Sess, chapter 21; Code 1930, sections 5010, 5012).

HON. W. H. POTTER, Judge.

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER, Judge.

Suit by J. B. Gulley, state tax collector, against the state highway commission. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment for appellant.

Watkins, Watkins & Eager and Lotterhos & Travis, all of Jackson, J. A. Lauderdale, Assistant Attorney-General, and Greek L. Rice, Attorney-General, for appellant.

The opinion of the attorney general of the state of Mississippi is correct. Undistributed gasoline tax had by auditor of public accounts after the first day of November, 1930, were apportionable in accordance with section 4795, Mississippi 1930 Code.

Sec. 15, Act of Mississippi Legislature, adopting Code, 1930; Chap. 14, Miss. Legislature, Extraordinary Session, 1928; Chapter 4795, Miss. 1930 Code; Soc. 4, chap. 1, Miss. 1930 Code; State ex rel. Knox v. Board of Supervisors, 105, So. 541, 141 Miss. 701; State Revenue Agent v. Hill, 70 Miss. 106.

The suit, if maintainable at all, is upon the theory that the state of Mississippi is indebted to the various counties throughout the state of Mississippi. The statute would give the state tax collector authority to sue for and on behalf of any county for any enforceable obligation which the county might sue for itself. But the appellee, plaintiff, must go further than this case and establish liability upon the part of the state to the county. That the suit against the state highway commission is a suit against the state is thoroughly settled.

State Highway Commission v. Utah Construction Co., 278 U.S. 194, 73 L.Ed. 262; Mississippi Centennial Exposition v. Luderbach, 123 Miss. 828, 86, So. 517; Ayers v. Board. of Trustees, Agricultural High School, 134 Miss. 363, 98 So. 847.

It must be borne in mind that if any wrong was committed against the plaintiffs, the wrong was that of the state of Mississippi.

The appellee is without authority to maintain this suit against the state highway commission.

Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 57 L.Ed. 510; Iowa-Des Moines National Bank v. Bennett, 284 U. S. --, 76 L.Ed. 164.

This suit is predicated upon the theory that the state has been guilty of wrong, and, as pointed out by Mr. Justice GRIFFITH in the case of Love, Superintendent of Banks, v. Robinson, 137 So. 499, 161 Miss. 585, at page 593, the court announced the well-established rule, which is as old as jurisprudence itself, that the state can do no wrong, and it is upon this philosophy that we submit that the counties of the state could have no claim, obligation or indebtedness against the state for any wrong alleged to have been committed, and no contract upon the part of the state could be implied in favor of the counties.

The state is under no obligation, and owes no duty, to a county or subdivision of the state, unless created by the constitution. The following authorities are directly in point:

Town of New Lebanon v. State, 181 N.Y.S. 322; County of Albany v. Hooker (N. Y.), 97 N.E. 403.

Section 6986, Code of 1930, neither originated nor created any right on behalf of the county.

State v. Fragiaccomo, 71. Miss. 417, 15 So. 798.

Section 5006 of the Mississippi 1930 Code provides that the highway commission may sue or be sued. It must be borne in mind, however, that this statute creates no new right, originates no new cause of action.

State v. Fragiaccomo, 71 Miss. 417.

We present to the court the view that the appellee could not maintain this suit, because the claim is not such a suit as authorized to be brought against the highway commission under section 5006 of the Mississippi 1930 Code.

A purported grant of right to sue the state or any subdivision thereof, should be strictly construed.

City of Grenada v. Grenada County, 76 So. 682, 115 Miss. 831; Sutton & Dudley v. Carroll County, 41 Miss. 236; Brabham v. Board of Supervisors, 54 Miss. 363; Ancrum v. Highway Department (S. C.), 161 S.E. 981; Watland v. Workmen's Compensation Bureau (N. D.), 225 N.W. 812; Baer v. Arkansas State Highway Commission, 47 Ark. 848; Stephens v. Commissioner of Palisades Interstate Park, 108 A. 645.

Statutes in derogation of the sovereignty must be strictly construed, and a waiver of immunity from liability must be clearly expressed.

Wm. Smith v. State of New York, 13 A. L. R. 1264; Mullinax v. Hambright, 104 S.E. 309.

Under section 5010 of the Mississippi 1930 Code, the state auditor allocated funds to be used by the state highway commission into five accounts; and under section 5012, the highway commission is not permitted to draw warrants or make a requisition for funds at its disposal for any other purposes than: (1) Salary account funds; (2) Expense account funds; (3) Maintenance funds; (4) Construction funds; (5) Note funds.

We respectfully submit that paragraph (c) of section 5006 of the Mississippi 1930 Code should be read in connection with sections 5010 through 5012, and that the sections, when taken together, mean that suit cannot be maintained against the highway commission except in respect to some matter which it would have authority to use the funds of the highway commission towards the satisfaction thereof.

McKinnon v. Gowan Brothers, 90 So. 243, 127 Miss. 545; Sigwald v. State (S. D.), 208 N.W. 162.

It is the long-established law that, in the absence of some saving clause, when a statute is repealed it has no further existence and cannot have any force, but is treated as if it had never existed.

Crow v. Cartledge, 99 Miss. 281, 54 So. 947.

In the case of Beaufort County v. North Carolina State Highway Commission, 163 S.E. 459, which is the only case we have been able to find touching upon the rights of a county in gasoline taxes collected by the state, it was held that where a statute imposed a tax of one cent per gallon on gasoline sold, said tax being for the use of the counties, and where the statute was repealed as of July 1, 1931, the counties could not recover amounts which had been collected after July 1st on account of sales of gasoline prior to July 1st.

The highway commission cannot be held liable in a suit of this character.

City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Gulf Export Company v. State, 112 Miss. 452, 73 So. 281; State v. Dinkins, 77 Miss. 874, 27 So. 832; Hall v. State, 79 Miss. 38, 29 So. 994; Arkansas Highway Commission v. Dodge, 26 S.W.2d 879; Bow v. Plummer (N. H.), 104 A. 35; Carolina National Bank v. State (S. C.), 38 S.E. 629; Weakly v. Henry (Ala.), 86 So. 43.

Chalmers Potter, of Jackson, for appellee.

Before the Code of 1930 went into effect, for many months the auditor had been the gasoline tax collector, and every month the distributors taxed by the act, had paid to him for the benefit of the distributees named in the act, that is, the counties and state highway commission, hundreds of thousands of dollars. It is an age old axiom that the title to property is always in someone. This money when it came into the auditor's hands did not belong to the auditor, either in his official capacity or personally. He merely held the money as agent of the counties and of the state, the title thereof being in the counties and in the state.

Eastern v. Van Dorn, Walker 14; Gayden v. Bates, Walker 209; Brown v. Wilcox, 14 S. & M. 127; Hooker v. Hooker, 10 S. & M. 599; Carson v. Carson, 40 Miss. 349.

When it is borne in mind that unless, by the terms of the statute itself, a...