White v. Lowry, Insurance Com'r,
| Decision Date | 29 February 1932 |
| Docket Number | 29863 |
| Parties | WHITE, STATE AUDITOR, v. LOWRY, INSURANCE COM'R, et al |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled April 11, 1932.
APPEAL from chancery court of Hinds county HON. V. J. STRICKER Chancellor.
Suit by C. C. White, state auditor, against B. S. Lowry, insurance commissioner, and others. From a decree dismissing the suit the plaintiff appeals. Affirmed.
Affirmed.
Lotterhos & Travis, of Jackson, for appellant.
The auditor is authorized to bring this suit.
Since the construction contended for by the appellees would have the effect of destroying the broad purpose of the statute and nullifying the express language conferring on the auditor the power and duty of maintaining suits, the word "shall" should be construed as directory only with respect to delivering copies of audits to the attorney-general and the district attorneys.
Cason v. Cason, 31 Miss. 578; Koch. v. Bridges, 45 Miss. 247.
If the right of the state auditor to maintain this action is denied, this would amount to a repeal of that part of the statute which expressly and clearly confers upon him the power to maintain suits against delinquent officers.
McKenzie v. Boykin, 111 Miss. 256, 71. So. 382; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; Adams v. Y. & M. V. R. R. Co., 75 Miss. 275, 22 So. 824; Martin v. O'Brien, 34 Miss. 21; State v. Grenada County, 141 Miss. 701, 105 So. 541.
Whether the revenue agent and the attorney-general, or district attorney, had the right to maintain a suit for the recovery of statutory penalties where different sec tions of the same code, adopted at the same time, conferred by the use of the word "shall" the right on each to bring the suit. The grant of the power to the district attorney and the attorney-general was held not exclusive, and the right of the revenue agent to maintain a suit for a statutory penalty was upheld.
Dukate v. Adams, 101 Miss. 438, 58 So. 475.
Whenever necessary to effectuate the obvious meaning of the legislature, conjunctive words may be construed as disjunctive and vice versa.
36 Cyc. 1123; Adams County v. Catholic Diocese of Natchez, 110 Miss. 870, 71 So. 17; Board of Supervisors v. Booth, 81. Miss. 267, 32 So. 100.
In construing the statute the court must seek the legislative intent from the statute as a whole.
Henderson v. Blair, 59 So. 856, 102 Miss. 640; Johnson v. Reeves & Co., 72 So. 925, 112 Miss. 227; Roseberry v. Norsworthy, 100 So. 514, 135 Miss. 845.
A thing which is within the intention of the makers of the statute is as much within the statute as if it were within the letter, and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the maker.
Ott v. Lowry, 78 Miss. 487, 29 So. 520.
In determining whether the statutes are mandatory or directory, the legislative intent governs.
People v. Miller, 145 N.E. 685, 314 Ill. 474; Goodrich v. Soula, 110, A. 808, 119 Me. 280; M. P. Railway v. McIntosh, 218 P. 693, 92 Okla. 153; Valley Bank v. Malcolm, 204 P. 207, 23 Ariz. 395; Phillips v. State, 258 S.W. 403, 162 Ark. 541; Town of Milton v. Cook, 138 N.E. 585, 244 Mass. 93; Hess & Skinner Engineering Co. v. Turney, 203 S.W. 593, 109 Tex. 208; Allen v. Lewis, 177 P. 433, 26 Wyo. 85.
The vesting of the right in an officer to maintain a suit, even though the most mandatory language possible is used, will not be deemed an exclusive grant unless the intent to make it such is very, very clear.
Kemp et al. v. State to Use of Madison County, 24 So. 695; Dukate v. Adams, 101 Miss. 438, 58 So. 475.
Section 3727, Code of 1930 statute has been the law of Mississippi since a date prior to 1848 and gives to the auditor very broad powers and duties with respect to the collection of moneys due the state by suit or otherwise, and contains no exceptions or limitations.
E. C. Sharp, Creekmore & Creekmore, Chalmers Potter and Wells, Jones, Wells & Lipscomb, all of Jackson, for appellees.
The statute now under consideration is in derogation of the common law. Such statutes as take away common-law right, remove or add to common-law disabilities, confer privileges or provide for proceedings unknown to the common law, or which are in derogation of the common law, are strictly construed. The courts cannot properly give force to them beyond what is expressed by their words, or is necessarily implied from what is expressed. Statutes changing the common law are strictly construed, and it is not further abrogated than the language of the statute clearly and necessarily requires.
2 Lewis' Sutherland Stat. Constr., sec. 573.
Where a statute confers a new right, privilege or immunity, the grant is strictly construed, and the mode prescribed for its acquisition, preservation, enforcement and enjoyment is mandatory.
2 Lewis' Sutherland Stat. Constr., sec. 632.
Where an existing right or privilege is subjected to regulation by a statute in negative words, or those which import that it is only to be exercised in a prescribed manner, the mode so prescribed is imperative.
2 Lewis' Sutherland Stat. Constr., sec. 633.
It is generally held that, in the exercise of his common-law powers, an attorney-general may not only control and manage all litigation in behalf of the state, he may also intervene in all suits or proceedings which are of concern to the general public.
Accordingly, as chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interest may, from time to time, require, and may institute, conduct and maintain all such suits and proceedings as he deems necessary for the enforcement of the laws of the state, the preservation of order and the protection of public rights.
It is generally acknowledged that the attorney-general is the proper party to determine the necessity or advisability of undertaking or prosecuting actions on the part of the state. Thus it has been held that the discretion of the attorney-general in determining what the public interest requires as to bringing an action against a domestic business corporation, or its officers, is absolute, and cannot be made the subject of inquiry by the court.
Evidently it was the intention of the legislature in enacting section 3753 of the Code of 1930, and section 7 of the chapter 325 of the Laws of 1924, to leave it discretionary with the attorney-general or district attorney as to what action should be brought upon the report of the chief examiner in all matters pertaining to state officers.
Provisos and exceptions are similar; intended to restrain the enacting clause; to except something which would otherwise be without it, or in some manner modify it. A proviso is something engrafted upon a proceeding enactment, and is legitimately used for the purpose of taking special cases out of a general class or to guard against misinterpretation. The general intent will be controlled by the particular intent subsequently expressed. Where the statute forbids the doing of an act upon a condition precedent, the condition is valid and the prohibition absolute.
2 Lewis' Sutherland Stat. Constr., sec. 351.
A primary rule of construction is that the legislature must be assumed to have meant precisely what the words of the law, as commonly understood, import; and this may be said to be the fundamental and controlling rule of construction.
Lemonius v. Mayer, 71 Miss. 514, 14 So. 337.
Where there are two provisions in a statute, one of which is general and designed to apply to cases generally, and the other is particular and relates to only case of subject within the scope of the general provision, then the particular provision must prevail; and, if both cannot apply, the particular provision will be treated as an exception to the general provision.
2 Lewis' Sutherland Stat. Constr., page 744.
Argued orally by Fred Lotterhos and Cecil Travis, for appellant, and by H. H. Creekmore, for appellee.
Under the laws of this state, the insurance commissioner is the fire marshal, and a so-called tax of one-fifth of one per cent on the gross premium receipts of fire insurance...
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