Vardaman v. McBee

• Citation: 198 Miss. 251,21 So.2d 661
• Decision Date: 09 April 1945
• Docket Number: 35825.
• Court: United States State Supreme Court of Mississippi
• Parties: VARDAMAN et al. v. McBEE.

21 So.2d 661

198 Miss. 251

VARDAMAN et al. v. McBEE.

No. 35825.

Supreme Court of Mississippi

April 9, 1945

Means Johnston, of Greenwood, for appellants.

A. H. Bell and Littleton Upshur, both of Greenwood, for appellee.

L. A. SMITH, Justice.

This case is before us on an appeal from the Circuit Court of Leflore County in a suit for a writ of mandamus filed by appellee to require appellants to continue to pay his salary as County Prosecuting Attorney of Leflore County as a Class 2 county, and in accordance with a contract between the County and appellee entered into on January 3rd, 1944, by and between appellants as composing the Board of Supervisors and appellee as County Prosecuting Attorney of said county.

Appellee regularly received his monthly salary as such officer on this basis during the year 1944, until appellants refused to pay the bill for appellee's salary for August, 1944, for the reason that they had received advice to the effect they could not lawfully do so, because the contract was invalid, since the current assessment of Leflore County showed it to be a Class 3, instead of a Class 2, county, and that Chapter 192, Laws 1944, under the authority of which the contract was made, was unconstitutional. So appellants, rejecting appellee's claim for salary in accordance with the aforesaid contract, offered him the maximum salary permitted to be paid by Class 3 counties to County Prosecuting Attorneys, which offer appellee declined to accept, and stood on the contract. Thereupon he filed this petition for mandamus to require, as stated, appellants to pay him according to the contract aforesaid, contending that the contract was valid, and, under the law, Leflore County was still a Class 2 county, and that Chapter 192, Laws 1944 was not violative of the Constitution and that appellants should be required to pay him according to the contract.

To this petition appellants filed a general demurrer on the grounds (1) the petition for mandamus failed to state a cause of action; (2) the order of the Board granting salary in Class 2 to appellee was void; (3) that Section 2, Chapter 192, Laws 1944, was unconstitutional and void, being violative of Section 90, Subsection (o), Constitution 1890. This demurrer was overruled, and appellants having declined to plead further, the prayer for a writ of mandamus was granted as prayed for, and the Supervisors appealed here.

Section 90, Subsection (o) of the Constitution of 1890, is as follows:

'The legislature shall not pass local, private, or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws, viz.: * * *

'Creating increasing, or decreasing the fees, salary, or emoluments of any public officer.'

Chapter 192, Laws 1944, is amendatory of Section 6498 of Chapter 161 Code of 1930, and divides all the counties of the State into eight classes. Class 2 is defined as composed of all counties in which the assessed valuation equals and exceeds $20,000,000 and is less than $25,000,000. Class 3 is defined as composed of all counties in which the assessed valuation equals and exceeds $15,000,000, and is less than $20,000,000. This act provides that in counties producing oil, it should be considered in fixing the assessed valuation of the county and that 'any county which may have its class changed to a higher class shall remain in its original class by reason of the actual value of oil as above provided until after the succeeding January 1st, then be classed according to such new assessment.'

The section of the act which is challenged, as violative of the Constitution, by the demurrer is Section 2 thereof, reading as follows: 'Nothing in this act shall be construed to lower the classification of any county from the classification it had under the assessment of 1930.'

Section 6498, of Chapter 161, Code 1930, amended by Chapter 192, Laws 1944, supra, also divided all the counties of the State into eight classes. Class No. 2 was defined as composed of all counties having the assessed valuation equal to and in excess of $20,000,000 and less than $25,000,000. Class No. 3 was defined as composed of all counties having the total assessed valuation equal to and in excess of $15,000,000 and less than $20,000,000. This section contained a provision to the effect that any county which by a new assessment might have its class changed to a lower class should remain in its original class until the succeeding January 1st, then be classed according to its new assessment. A like provision was therein also as to the elevating of the class of a county by a new assessment, and the like provision made as to the date of its effectiveness in lowering the class of the county.

Chapter 193, Laws 1932, fixed the salary of County Prosecuting Attorneys for Class 2 counties at not more than $1,800, nor less than $1,200, and for Class 3 counties at not more than $1,400 and not less than $800. It also provided that in counties having a county court the above salaries could be supplemented by proportionate sums set forth, according to classification. This act, in its caption, purports to amend many statutes of Chapter 161, Code 1930, but Section 6498, supra, is not enumerated among the statutes amended. Section 13 of the Act, however, contains the following: 'Provided, however, the classification of counties shall be based upon the total assessed valuations of all property in each county including real, personal and public service corporations as assessed during the year 1930.'

Section 6498, Code 1930, is now Section 4159 of Chapter 12, Code 1942, and divides all of the counties of the State into eight classes, also. Class No. 2 is defined as composed of all counties in which the assessed valuation equals and exceeds $20,000,000 and is less than $25,000,000. Class No. 3 is defined as composed of all counties in which the assessed valuation equals and exceeds $15,000,000 and is less than $20,000,000. This statute contained the same rule of classification in case of rising or falling assessed valuations as was in Section 6498, Code 1930.

Section 4164 of Chapter 12, Code 1942, provides for the annual salary of County Prosecuting Attorneys (no salaries being fixed by Chapter 102, Laws 1944), the same to be fixed by the Board of Supervisors of the counties on the basis of the classifications of the counties. In Class 2 counties, not more than $1,800 and not less than $1,200; in Class 3 counties, not more than $1,400 and not less than $800; and in counties having a County Court, in Class 2 counties $400, and Class 3 counties $300, additional annual salary may be paid, in the discretion of the Board of Supervisors to County Prosecuting Attorneys.

It will be borne in mind that the assessed valuation of Leflore County in 1930 was over $20,000,000 and under $25,000,000, while on January 3rd, 1944, the date of appellee's contract, it was under $20,000,000 but over $17,000,000. In other words, by the 1930 assessed valuation it is a Class 2 county, and would have descended to a Class 3 county but for Section 2 of Chapter 192, Laws 1944, providing that nothing in the act shall be construed to lower the classification of any county from the classification it had under the assessment of 1930. This retention of the 1930 assessed value as the measurement of the lowering of the counties in classifications, appellant contends, as stated, was violative of the section of the Constitution aforesaid against creating, increasing or decreasing the fees, salary, or emoluments of any public officer.

In the briefs, it appears probable that the advice to appellants to discontinue payment to appellee of a salary based on the continued classification of Leflore County in Class 2 was because of the decision of this court in Barnett, State Auditor, v. Woods et al., 18 So.2d 443, 445. Appellants after the rendition of the opinion in that case, were advised that Section 2, Chapter 192, Laws 1944, violated the Constitution, Section 90, Subsection (o), Section 4159, Code 1942, formerly Section 6498, Code 1930, was in as full force and effect as if the Legislature had not passed the 1944 Act. However, a careful reading of the decision in the Barnett case will reveal that it did not hold Section 13, Chapter 193, Laws 1932, supra, violated the Constitution, although there was some discussion of the question in the course of which, among other things, the court said: 'In view of the fact that when this Act of 1932 was passed, the assessment for the then current year had been neither made nor approved, it was a reasonable exercise of legislative power to use the 1930 assessment for said current year in fixing the salaries of the county officers and to leave Section 6498, Code of 1930, in full force and effect as a guide for future years. And, it is the duty of the court to construe this subsequent Act in connection with said Section 6498 of the...