State v. Cloud

• Decision Date: 14 March 1927
• Docket Number: 26204
• Court: Mississippi Supreme Court
• Parties: STATE, FOR USE OF THOMPSON, v. CLOUD, SHERIFF, et al. [*]

112 So. 19

146 Miss. 642

STATE, FOR USE OF THOMPSON, v. CLOUD, SHERIFF, et al. ^[*]

No. 26204

Supreme Court of Mississippi

March 14, 1927

Division B

Suggestion of Error Overruled April 11, 1927.

APPEAL from circuit court of Madison county HON. W. H. POTTER Judge.

Suit by the state, for the use of Crisler Thompson, against M. M Cloud, sheriff of Madison county, and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

H. B. Greaves and M. S. McNeil, for appellant.

This case was pending at the time the act was amended one motion for a change of venue having been overruled by the court, pleas having been filed and preparation having been made for the trial; hence, chapter 155, Laws of 1926, could not and did not have a retrospective effect, so as to affect the steps already taken in this case. Carson v. Carson, 40 Miss. 350; 35 Cyc. 1451.

If it is contended that this act of the legislature was intended to cover pending causes brought before the statute was amended, then it is our contention that the statute is unconstitutional and void when applied to pending causes or to this particular suit. Mabry v. Baxter, 58 Tenn. 862, fully covers the questions involved. See, also, Brown v. Haywood (Tenn.), 4 Heisk. 537; Baines v. Jamison et al. , 23 S.W. 639.

The general rule seems to be that a statute should not receive such a construction as to make it impair existing rights or create new obligations or impose new duties or disabilities in respect to past transactions unless such plainly and expressly appears to be the intention of the legislature. The wording of this amendment would indicate that the legislature intended to say that if a citizen resident in this state shall in the future be sued, or a public officer in the state of Mississippi in the future shall be sued, in any such action, etc. See 36 Cyc. 1217; Martin v. O'Brien et al., 34 Miss. 31; Richards v. City Lbr. Co., 101 Miss. 691; Davidson Bros. Marble Co. v. U.S. on the relation of Murray Gibson, 53 L.Ed. 675; U. S. F. & G. Co. v. Struthers Wells Co., 209 U.S. 306, 52 L.Ed. 804, 28 S.Ct. 537; Brown v. Wilcox et al., 14 S. & M. 127; Anderson v. Wilkinson, 10 S. & M. 601. It cannot be successfully contended that the case of the Easterling Lbr. Co. v. Pierce, 106 Miss. 672, conflicts with our view of the law in this case.

The following authorities sustain the contention that the law cannot act retroactively unless it is shown clearly on its face that the intention is retroactive. Boyd v. Barringer, 23 Miss. 269; Grant v. I. O. S. of J., 97 Miss. 182; Powers v. Wright, 62 Miss. 35; Green v. Anderson, 39 Miss. 359; Carson v. Carson, 40 Miss. 349; Ingersoll v. D. & M. R. Co., 32 L. R. A. 362; 8 Cyc. 1022; 36 Cyc. 1201; Richards v. City Lbr. Co., 101 Miss. 678; Davidson Bros. Marble Co. v. U.S. 53 L.Ed. 675; Title Guaranty Co. v. U.S. 57 L.Ed. 969; Powell v. Mortgage Co., 112 Miss. 312; R. R. Co. v. Ross, 60 Miss. 641; 36 Cyc. 1205; 14 A. L. R. 707; 27 A. L. R. 479.

This case should be reversed and remanded for trial to the Copiah county circuit court.

W. H. & R. H. Powell and Wm. M. Hall, for appellees.

Chapter 155, Laws of 1926, authorizing the change of venue is constitutional and the circuit court of Copiah county did not err in changing the venue to Madison county under said law. Before the act of 1926 was passed the defendants moved the circuit court of Copiah county to change the venue under the old law which was overruled and the case was continued. Thereafter the law of 1926 was passed and thereafter, before a jury was empaneled, the defendants moved the court for a change of venue under that law, which the court sustained. Such action was correct. Even before the enactment of chapter 155, Laws of 1926, we contend that the change should have been made and, in our opinion, Dean v. Brannon, 104 So. 173, should be overruled. Be that as it may, the Laws of 1926 now control and not that case.

For various statutes on venue, see Hemingway's Code, sections 486, 487, 488, 489, 3293, and 3294. All of these sections have been upheld by our supreme court. Why should the act of 1926 be construed differently? All relate to court procedure and no substantive right is affected. The law of 1926 is clearly upheld by Easterling Lbr. Co. v. Pierce, 106 Miss. 672. All doubts in favor of the constitutionality of the act are resolved in its favor. Ib. 680.

The rule as to retroactive statutes does not apply to remedies, rules of evidence, or modes of procedure. Ib. 685. If no substantive right is affected, the act is good. Ib. 685.

The legislature can pass retroactive laws which do not impair the obligations of contracts nor divest vested rights. Carson case, 40 Miss. 349; Read case, 42 Miss. 472. Rules of evidence may be changed so as to apply such new rules to cases arising before their adoption. Carothers case, 41 Miss. 71.

The "equal protection of the laws" clause of the federal constitution means subjection to equal laws alike to all in the same condition. Adams case, 53 So. 692.

However, in no sense can the law of 1926 be considered retroactive as by its terms it applies to all cases where motion is made before the jury is empaneled, and no jury has yet been empaneled in this case. Remedial statutes which neither create new rights nor take away vested ones, can be enacted whether they are prospective or retrospective. 51 L. R. A. 917.

Statutes can be enacted to apply prospectively or retrospectively where no contract is impaired or vested right is disturbed. 12 L. R. A. 50. The rule against the application of retroactive statutes does not apply to proceedings pending at the time of their enactment where they neither create new, nor take away vested rights. 26 L. R. A. (N. S.) 398, 902-03.

Where a new statute deals with procedure only prima-facie, it applies to all actions, those which have occurred or are pending and future actions. 25 L. R. A. (N. S.) 189; 26 L. R. A. (N. S.) 898, 902-03. But where substantive rights are involved, a statute will not be given ordinarily, a retroactive operation if it takes away existing substantive rights or creates new liabilities in connection with past transactions. 38 L. R. A. (N. S.) 526.

No substantive rights are taken away and no new liability is created by the law of 1926. A mere privilege to sue in certain counties is taken away. Without the old statutes, no privilege was given to sue in Copiah county. With the new statute that privilege is taken away. Plaintiffs still have the right to sue in Madison county and they have not been deprived of their remedy to litigate according to the due process of law.

The legislature has the sole right to fix the venue. 27 R. C. L., page 779-791, sections 3, 4, 814 and section 34.

Venue statutes have been upheld in California, Kansas, Kentucky, Michigan, Minnesota, Montana, Nebraska, New York, North Carolina, and South Carolina. See State ex rel. Stephens v. District Court et al., Ann. Cas. 1912C.

Argued orally by H. B. Greaves and M. S. McNeil, for appellant and J. W. Cassedy, for appellees.

OPINION

ETHRIDGE, J.

The appellant, plaintiff in the court below, filed a suit against the appellee, sheriff of Madison county, defendant in the court below and the United States Fidelity & Guaranty Company, surety on the bond of the appellee, for a personal injury inflicted upon him by the defendant through his deputy sheriffs, all of Madison county. The suit was filed in Copiah county, Miss., and a motion for a change of venue was made before the circuit court of that county by the defendant on the following grounds:

"1. That M. M. Cloud is a resident citizen and householder in said Madison county.

"2. The said United States Fidelity & Guaranty Company is a nonresident incorporated insurance company whose principal place of business is not in Copiah county, Miss.

"3. The alleged loss or damage or cause of action occurred in Madison county, Miss., and not in Copiah county, Miss.

"4. The plaintiff is not a resident citizen of Copiah county, Miss., but has his residence in another county.

"5. Said M. M. Cloud is a public officer, the sheriff of Madison county, Miss., in which county he has his household and residence.

"6. For other reasons apparent on the face of the record and to be assigned at the hearing, and among others that M. M. Cloud is a conservator of the peace of Madison county, Miss., which requires his presence in said bounty for the proper discharge of his duties."

The following facts were agreed to upon the hearing of the said motion:

"1. That said M. M. Cloud is a resident citizen and householder in said Madison county.

"2. The said United States Fidelity & Guaranty Company a nonresident incorporated insurance company whose principal place of business is not in Copiah county, Miss.

"3. The alleged loss or damage or cause of action occurred in Madison county, Miss.

"4. The plaintiff is not a resident citizen of Copiah county, Miss., but has his residence in another county.

"5. Said M. M. Cloud is a public officer, the sheriff of Madison county, Miss., in which county he has his household and residence."

The cause was thereupon transferred to Madison county, over the objection of the plaintiff, and a trial had in said county, resulting in a verdict in favor of the defendants, from which judgment an appeal has been prosecuted to this court, and the action of the Copiah county circuit court in granting a change of venue is assigned for error with other assignments.

The suit was filed prior to 1926, and was pending in the said circuit court of Copiah county prior to the assembling of the legislature for the session of 1926. At the 1926 session of the legislature, chapter 155...