Toombs v. Sharkey

• Decision Date: 07 December 1925
• Docket Number: 24990
• Citation: 106 So. 273,140 Miss. 676
• Court: Mississippi Supreme Court
• Parties: TOOMBS, COUNTY PROSECUTING ATTORNEY, v. SHARKEY et al., BOARD OF SUPERVISORS. [*]

106 So. 273

140 Miss. 676

TOOMBS, COUNTY PROSECUTING ATTORNEY, v. SHARKEY et al., BOARD OF SUPERVISORS. ^[*]

No. 24990

Supreme Court of Mississippi

December 7, 1925

APPEAL from circuit court of Washington county, HON. S. F. DAVIS Judge.

Mandamus by William Ray Toombs, county prosecuting attorney, against Pat Sharkey and others, constituting the county board of supervisors. From an adverse judgment, petitioner appeals. Affirmed.

Affirmed.

Shands Elmore & Causey, for appellant.

The question is whether chapter 211, Laws of 1924, is a general law, a local and private law, or special law. If it be a general law, it is constitutional; otherwise, it is void.

The prohibition of local, private and special laws in any given case and the requirement of general laws, if there is to be legislation, does not prohibit legislation which varies according to class if the class be a reasonable classification. We feel assured that appellees will concede the principle of classification; and they will also admit that the classification employed in chapter 211, so far as it classifies the counties according to assessed valuation only is a reasonable classification.

The issue in the present case arises on the classification set up in the proviso: "Provided, however, that in all counties having an assessed valuation of twenty-five million dollars or more in a levee district where a cotton tax is imposed for levee purposes, the board of supervisors shall pay county prosecuting attorney a salary not less than three thousand dollars nor more than three thousand six hundred dollars per annum."

What is a reasonable classification in the sense here meant? A legislative classification is reasonable when based on "Characteristics so distinct as reasonably to form for the purpose legislated upon a class by itself." Drainage Dist. v. Buckner, 108 Miss. 441.

"The principles governing legitimate classification in such cases are, it is believed, the same as are applied in determining whether a law is what is commonly called 'class legislation.'" Such legislation is for or against some parts of one class. State v. Cooley, 58 N.W 153. The classification must be based on "some difference bearing a reasonable and just relation to the act in respect to which the classification is proposed." Ballard v. Oil Co., 81 Miss. 557; Adams v. Standard Oil Co., 97 Miss. 902; City v. Insurance Co., 132 Miss. 420; 25 R. C. L., 817; State v. Brown, 106 N.W. 479.

Referring now to one of the rules given by Sutherland Statutory Construction, that if the classification be on a valid basis, it is immaterial how many or how few members there are in a class. This rule prevails generally and will be found to be stated in many, many cases on the subject. Crockett v. Matthews, 106 P. 574; Summerland v. Bickwell, 44 P. 232; State v. Archibold, 131 N.W. 985; Wall v. St. Louis Co., 117 N.W. 614.

The court "must assume that if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the state. But if it could, we must presume it did." Munn v. Illinois, 24 L.Ed. (U.S.) 86.

To reach a solution of the question, what will the court consider with respect to extraneous facts? We submit that the court will consider those matters and those only of which it can take judicial notice. Pittsburg Ry. Co. v. State, 102 N.E. 25 (Ind.); Johnson v. Elliott, 168 S.W. 971 (Tex.); State v. Archibold, 131 N.W. 898 (Wis.); Consumers League v. R. R. Co., 125 P. 577. (Colo.)

It was claimed in the lower court that the only counties in Mississippi coming within the terms of the class defined by the proviso are the counties of Washington and Bolivar. If that be a fact, it is nothing against the classification, but is immaterial as shown from the authorities. The question is always whether the classification is reasonable and proper or arbitrary and false. The fact that the proviso does not apply to Hinds or Coahoma or Sharkey or Issaquena makes no sort of difference if the classification set up in the proviso is a reasonable one; that is, if it is based on "some difference bearing a reasonable and just relation to the act in respect to which the classification is proposed," Ballard v. Oil Co., supra; that is, if it is based on "Characteristics so distinct as reasonably to form for the purpose legislated upon, a class by itself." Drainage Dist. v. Buckner, supra. In other words, if the classification is based on "some substantial distinction which suggests a reasonable necessity or propriety for different laws for the objects or places embraced within or excluded from the class." State v. Brown, supra.

For illustrations of what has been said to be arbitrary classification, see Nichols v. Walker, 33 N.W. 802 (Minn.); State v. Williams, 93 So. 381 (Ala.); Reynolds v. Collier, 85 So. 465 (Ala.)

We now hope to show that this ingredient, "in a levee district where a cotton tax is imposed for levee purposes," under the circumstances, is reasonable and logically suggestive of the propriety of the increased salary; that certainly the classification based on it cannot be said to be arbitrary beyond any reasonable doubt.

The legislature has repeatedly passed statutes making criminal the removal of cotton from the Mississippi levee district without having paid the levee cotton tax. See section 2, chapter 160, Laws of 1876; section 11, chapter 45, Laws of 1877; section 4, chapter 170, Laws 1884; section 16, chapter 63, Laws of 1892; section 5, chapter 90, Laws of 1904; section 1, chapter 128, Laws of 1906. These statutes are additional to the general criminal laws and under the circumstances apply only in the levee district of Mississippi. The fact, therefore, that counties are situated in a levee district means more criminal statutes to be enforced, more crimes to be prosecuted, more work for the county prosecuting attorney. There is an evident connection between more criminal laws to enforce and the compensation of the officer elected to prosecute violations of those criminal laws, which suggests the necessity or propriety of the legislation.

In view of the fact that the court cannot judicially know the extent of the increased labor arising out of this peculiar condition, we submit that the determination of the matter by the legislature binds the court. If such "state of facts could exist that would justify such legislation, it actually did exist" for the purpose of passing on the constitutional validity of the act. Munn v. Illinois, 24 L.Ed. U.S. 86.

The court will of course take judicial notice of the fact that the counties in the levee districts are devoted almost exclusively to the production of cotton; that that is the one main source of wealth; that the most wealthy counties are the largest cotton growers.

The fact that the classification is composed of two elements is not objectionable. State v. Gullett, 98 So. 375 (Ala.); Board v. Huey, 70 So. 744. "If any state of facts reasonably can be conceived that would sustain it, the classification, the existence of that state of facts at the time the law was enacted must be assumed." Lindsey v. National Carbonis Gas Co., 220 U.S. 61.

It is not the mere fact of an assessed valuation, but the amount of it that makes an element in county classification for the purpose of fixing salaries. It is not the mere fact of the existence of a cotton tax, but its imposition in twenty-five million dollar counties, wherein cotton and population abound, which gives to the cotton tax and the criminal statutes against its evasion a magnitude sufficient to form a factor in county classification. And we think that we have shown that a classification based on two elements is not for that reason objectionable.

J. M. Cashin, Ernest Kellner, Jr., and Thompson & McWhorter, also for appellant.

The judgment appealed from is erroneous and it should be reversed, and the court below directed to issue the writ of mandamus prayed for; because, in the first place, the court should not have considered or decided the question as to the constitutionality of the act in question at the request of the appellees, who are mere ministerial officers, and whose personal or property rights are unaffected by the act; and, in the second place, the act is not unconstitutional. Every law found on the statute books is presumptively constitutional until declared otherwise by the courts, and a mere administrative officer of the executive department of the government has no right or power to declare an act of the legislature to be unconstitutional or to raise the question of its constitutionality without showing that he will be injured in person, property or rights by its enforcement.

The right to declare an act unconstitutional is purely a judicial power, and cannot be exercised by administrative officers of the executive department under the guise of observance of their oath of office to support the constitution. The courts should, therefore, refuse to decide the question presented by the board as to the unconstitutionality of the act in question. See State ex rel. N. O. Canal & Banking Co. v Heard, 47 La. Ann. 167, 47 L. R. A. 512, 18 So. 746; 25 R. C. L., page 1046; 36 Cyc. 1140; Whitemore v. People, 10 Anno. Cas. 44, and note; 227 Ill. 453, 81 N.E. 427; Franklin County v. State, 24 Fla. 55, 12 Am. St. Rep. 83, 3 So. 471; State ex rel. University of Utah v. Candland, 36 Utah 406; 24 L. R. A. (N. S.) 1266; 140 Am. St. Rep. 834, 104 P. 285; State ex rel. Miles v. Williams, 232 Mo. 56, 34 L. R. A. (N. S.) 1060, 133 S.W....