Beck v. Allen

58 Miss. 143 | Miss. | 1880

Lead Opinion

George, J.,

delivered the opinion of the court.

The appellee is a tax-payer in the County of Warren, and he filed this bill in the Chancery Court seeking an injunction against the collection of all the county levies of that county for the present year, or, if that could not be done, then for an injunction against the collection of more than fifteen mills of such levies on each dollar of the assessed valuation of his property. He tendered eighteen mills on the dollar (three of which were for the State tax), and an injunction was granted against the collection of the excess. The various county levies amounted to twenty-two mills, and with the State tax to twenty-five mills, or two and one-half per cent on the valuation of the property of the county. The appellant, who was sheriff and tax-collector, was made a party defendant. He answered a part of the bill and demurred to a part, and on this answer and demurrer made a motion to dissolve the injunction, which being disallowed, he appeals to this court: and there is also a cross-appeal by the complainant, involving the action of the court below in some particulars not necessary now to be set out. Various grounds are presented and insisted on for the injunction, which we will now proceed to consider.

It is first insisted that the whole county levy is void, because there was no valid order of the Board of Supervisors imposing it. The facts on which this objection is based are as follow : The board met on September 9, 1880, and agreed to the levy, but adjourned before the order making it was entered on the minutes. After their adjournment the clerk entered on the minutes the order as it had been agreed to by the board, and at the next succeeding meeting of the board, —to wit, on the first Monday in the ensuing October, — these minutes were read over in the presence of the board, and approved by them and signed by the president.

It is unnecessary to express any opinion as to the exact status of the minutes of the September term before they had thus been approved by the board and signed by the president at the succeeding meeting. We entertain no doubt that the action taken at the October term made them valid from that time. The statute (Code 1871, sect. 1361.) does not require that the president of the board shall sign the minutes before adjournment. This would be the regular and proper way to authenticate them ; but the omission to do this may be remedied by an approval of them by the board at its next succeeding term and a signing by the president in its presence. Moreover, this approval and signing at the next meeting would have the effect to make the order valid, as of that term, if the order be such as the board could make at that term. Under sect. 2154 of the Code of 1880 (which section was in force at the time), in case the Board of Supervisors fail to make the county levies at the time fixed by law, a special meeting may be called, as early as practicable, for the purpose of making the levies. We do not understand that this section requires such levies to be made only at a special meeting, but that such meeting is allowed for the purpose of securing a speedy compliance with the duty to make them. Should no such meeting be called, it is clear that it would be the duty of the board to make the levies at the next regular meeting. The object of this provision for a special term was to secure a prompt remedy for a serious neglect of duty by the board ; and this object would be subserved by making the levies at the first meeting, whether regular or special, which might be held after the omission to levy at the prescribed time.

It is next insisted that the injunction is justified because of the allegation in the bill, not denied by the answer, that the warrants for the payment of which certain of the levies were made are illegal and void. The bill charges that these warrants were in great part illegal, because the allowances on which they were issued were not made in accordance with the provisions of sect. 5 of “An act in relation to county finances,” approved February 1, 1877 (Sess. Laws,p. 16), requiring the yeas and nays to be recorded on every allowance made by the board, and also the citation in the order of allowance of the particular statute under which it is made. By that statute the clerk is prohibited from issuing warrants on allowances made in disregard of these provisions. Warrants issued in violation of this statute are, without doubt, illegal and void, and they would constitute no proper voucher in the hands of the county treasurer if he should pay them, especially if he had notice of the failure to comply with the law. But we do not think the objection is available in this proceeding. It is the duty of the board to levy, within the limits prescribed by law, taxes sufficient to pay valid debts against the county; and the claims on which these warrants were based may have been valid debts, notwithstanding an invalid allowance of them by the Board of Supervisors. The allowance does not create the debt, but is only a recognition of it. Au invalid recognition, though insufficient to authorize its payment, cannot invalidate a rightful demand. Other valid reasons against this claim of the appellee are stated in a subsequent part of this opinion.

It is also alleged in the bill that the debts on which these warrants are based are, in great part, illegal and void. Some of them are alleged to have been created by contracts entered into by the board for the making of the public roads of the county ; some by contracts for the building of bridges, made by individual members of the board in vacation, and others for “ extra services ” by members of the board in letting out said contracts and in examining bridges and public roads. It is true there is no authority in the Board of Supervisors to build public roads with the revenues of the county. That work is provided for under the statute by the labor of persons liable to road-duty. Unless there be some local statute applicable to Warren County authorizing them, all such expenditures are unwarranted. The allowance for “ extra services ” made by the board to its members is also unwarranted. The salary of- the members of the Board of Supervisors is fixed by statute. The board has no power to make any additional allowance, even for such services as they are not required by law to perform. They, like Boards of Mayor and Aldermen, are trustees charged with the duty of preserving and protecting the rights of the people over whom they have jurisdiction; and it is not competent for such bodies, under well-settled rules, to claim for themselves, as against the people, any compensation not fixed by statute or plainly authorized by it. Any other rule would put it in the power of such officers to vote themselves largesses out of the corporate treasury at their discretion. The debt attempted to be created by the letting out of contracts for the building of bridges, by individual members of the board in vacation, are also invalid, as was settled in Board of Supervisors v. Arrighi, 54 Miss. 668. In that case it was said : “ It is well settled that contracts made by the officers of municipal or gwcm-municipal corporations in violation of law impose no liability upon the body-politic, and that no subsequent ratification by such officers of the void contract can impart to it validity.” The county boards, even as to matters confided to them by the Constitution, must act in accordance with law.

But, notwithstanding the invalidity of these debts, the injunction cannot be maintained on that ground. In the first place, the bill does not specify the debts or warrants claimed to be illegal. The allegation on this subject is that they are in great part void and illegal, on the ground before alluded to. This is too vague and uncertain to base judicial action on. Moreover, the holders of these warrants were not before the court; the tax-collector was the only party defendant. It would be improper to enjoin the raising of a fund out of which these holders might be paid, on the allegation of a fact which might be successfully denied, without giving them an opportunity of defence. Besides, there is a statute which fixes a limit beyond which the Board of Supervisors may not go in levying county taxes. Aud in cases where this restraint is operative, the board ought not, whilst acting within the prescribed limit, to be interfered with upon a mere allegation of excess in the levy, on account of alleged invalidity of claims to pay which the levies are made. This allegation might, upon investigation, be ascertained to be unfounded ; and that, too, at a time when it would be too late to collect the taxes for that year, whereb3r the greatest confusion would arise in the administration of county finances. Within the limit fixed by law the board must have a large, if not an absolute discretion. This rule does not leave the tax-payer without remedy to prevent the payment of illegal claims or void allowances out of the county treasury. He may enjoin the county treasurer from paying such claims, and the alleged creditor may intervene and set up his right; or, in case he is known to the complainant in an injunction bill, he may be made a par 13' defendaut. And in cases where the allowance is illegal on the face of the minutes of the board, — as for a non-compliance with the statute, which requires the recording of the yeas and nays and the citation of the statute under which the allowance was made, — he may notify the county treasurer of such illegality, who would then, on this actual notice, if not obliged to take such notice himself, be bound to withhold payment.

The position that the special levies under the local acts of 1871 and 1878, which authorized the Board of Supervisors to issue bonds, and required them to make a levy of a special tax to meet them, are restricted by the act of 1880, is untenable. The local acts on their face confer a power to levy the special tax in addition to, and outside of, the levies limited by law. Acts of that character, having only a local operation, are not presumed to be within the general words of repeal in a general statute passed for the regulation of the general affairs throughout the State. Besides, these special taxes were intended as a security for the bonds authorized by these acts to be issued, and the regular collection of them by the county was a part of the obligation of the contract contained in the bonds. The case is different with respect to the special tax authorized by s'ect. 4 of the act of 1873 (Sess. Laws, pp. 321, 322) ; for this special levy is expressly restricted to the limits prescribed by the general laws of the State in relation to the county levies. The tax of one and one-half mills authorized by sect. 2 of this last-named act is a tax only on a part of Warren County,— a school district,— and is not within the limits prescribed by the act of 1880, which refers to county levies, and not to impositions to pay a debt due by any district in the county.

The supervisors actually made levies to the amount of twenty-two mills. They had the power, under the general law, to levy taxes to the amount of twelve mills. Under the local act of 1871 they could levy the tax of one-half mill contained in their order, and under the local act of 1878 could levy the tax of four mills. They had also authority to levy one and one-lialf mills under sect. 2 of the act of 1873, — in all eighteen mills, — leaving out of consideration the right to levy .special taxes under .sect. 16, Art. XII., of the Constitution. The chancellor enjoined all over fifteen mills, and his ■order was, therefore, certainly erroneous in enjoining three mills. But it is claimed by the appellant that, as five of the twenty-five mills were for bridge taxes, the whole levy should be sustained, and that the injunction should have been wholly dissolved. This raises the question whether the restriction in this act in relation to the public revenue, approved March 6, 1880, can be constitutionally applied to special levies for bridge taxes.

That the Legislature intended to embrace these levies within the restriction seems very clear from the language of "the act, which declaims that “ Boards of Supervisors are hereby prohibited from levying taxes which, added to the State tax, will exceed twelve dollar's and fifty cents on each thousand ■dollars of taxable property; provided, that, to meet any outstanding indebtedness, the amount herein provided may exceed, but in no case shall the total tax exceed, fifteen dollars ■on each thousand dollars’ worth of property.” The statute, then, contains two further provisos — one allowing the Boards of Supervisors in nine named counties to levy taxes which, including the amount of the State tax, shall amount to twenty-one dollars on the thousand ; and the other, excluding from the operation of the restriction taxes levied to pay bonds issued in aid of the Natchez and Jackson Railroad Company. This language is plain and unmistakable.

It is urged on behalf of the appellant that this provision is ■unconstitutional, in assuming to limit the power of the Board ■of Supervisors to determine upon the sufficiency of the amount to be raised for the erection and repair of court-houses, jails, and bridges, and other necessary conveniences for the people of the county. It is insisted that sect. 16 of Art. XII. of ■the Constitution confers on the Board of Supervisors the unrestricted right to raise by special tax whatever sum, however large, they may deem necessary for these purposes, and that the general supremacy and controlling power of the Legislature, acknowledged to exist as to all other matters of county taxation, is excluded by the terms of this section, which is as follows: —

“ No county shall be denied the right to raise, by special tax, money sufficient to pay for the building and repairing of court-houses, jails, bridges, and other necessary conveniences for the people of the county, and money thus collected shall never be appropriated for any other purpose; provided, the tax thus levied shall be a certain per cent on all tax levied by the State.”

We cannot give our assent to this construction; and, as there are two cases in this court from which we are compelled to dissent, it is proper that we state the grounds upon which we rest our decision. It is a cardinal rule of construction of constitutions and statutes to ascertain the intention of the framers of the. instrument; and this intention will be that which the natural signification of the words employed, taken in their ordinary sense, indicates, if this sense be plain and involve no absurdity and no contradiction in different parts of the constitution or statute. Tested by this rule, the section under consideration is a direction to the Legislature not to deny to the counties the right to levy by special tax a sufficient amount for the purposes mentioned in it. The word “ deny ” means to withhold — to refuse t.o grant. (See Webster’s Dictionary.) There can be no withholding except by a power which may retain or keep back, nor a refusal to grant except where the thing refused may be granted. Hence the language employed refers to a right which is thereafter to be granted, and does not of its own force operate as a vesting of power. The language is, that “ no county shall be denied the right to raise,” etc., which is exactly equivalent to the phrase, “the right to raise, etc., shall not be withheld from, or refused to be granted to, any county.” A man cannot properly be said to withhold that which he does not possess, nor to refuse a grant of that which already belongs to the grantee. The words used, taken in their ordinary and popular signification, imply a direction to a department having the power to grant and to withhold, and are a limitation upon this power. They do not imply a destruction of all power over the subject in this department, which, but for this section, would possess it. If that had been the intent, the appropriate language would have been to prohibit all “interference” with the right to levy. The section must, therefore, be considered as directed to the Legislature, commanding that body not to withhold from the counties the right to levy a sufficient amount for the purposes mentioned. The Legislature may regulate and restrict this right, if only a sufficiency of taxation for the purposes mentioned be granted. The Legislature must necessarily be the judge of what is sufficient. The right to tax is to be granted by the Legislature. That body is commanded not to refuse to make the grant. The grant is to be of a “ sufficient ” amount; and unquestionably the granting power must judge of the sufficiency, unless some other tribunal is invested by the Constitution with a supervisory power over the Legislature on the subject, and possesses the right to fix absolutely, in its discretion, what sum shall be granted by the Legislature. This power is not claimed to be vested in any tribunal except the Board of Supervisors. If vested in the board, it must be by this clause, or some other part of the Constitution. It is not among the powers granted to them by sect. 20, Art. VI., which enumerates the powers and jurisdiction vested in the board ; nor does any other clause confer it. It is not granted to the supervisors by the clause in question, for that body is not mentioned in it, though especially named in every other clause in the Constitution, including sect. 29 of this same article, in which a power is granted to them. Moreover, if the board are to judge of the sufficiency of the amount, then they have, in opposition to the plain words of the Constitution, the absolute power, without any grant from the Legislature, to levy a special tax for the purposes named, to any extent they may deem sufficient. If this had been the intent of the framers of the Constitution, they have employed language singularly inappropriate to express it. The rule that requires us to take words used in the Constitution in their ordinary and popular sense, presumes that the framers of the Constitution knew how to express their ideas in appropriate language. In all other parts of this instrument where power is granted, the grant is made in plain and proper language. Power is “vested,” as in Art. IV., sect. 1; Art. V., sect. 1, and Art. VI., sect. 1; or, as it is expressed in sect. 29, Art. XII., “the county boards shall have power to,” etc. To arrive at the construction which we have rejected, we must disregard the plain meaning of the words, taken in their ordinary signification, and we must also suppose that the convention, in this clause alone, rejected the ordinary constitutional language employed by themselves in making grants of power, and resorted to a circumlocution which of itself negatives the idea intended to be conveyed. We are not authorized to indulge in such a supposition. We must follow the language as used, and give it its proper signification.

There is a plain difference between the denial of a power and a grant regulative of its exercise, A prohibition against the denial of a right cannot fairly be construed into an exclusion of an otherwise acknowledged power of control and supervision. A right may be regulated and limited, even impaired, without being absolutely denied.

The correctness of this view is made clear by several other considerations, some of which we will notice. From the eai’liest period, in England and in this country, the taxing-power has been lodged in the Legislature, and in no other department of the government. This power was asserted and claimed for the Parliament, both in the Petition of Eight assented to by Charles I. and by the Bill of Eights adopted in the first jmar of William and Mary. In the early constitutions of the American States it was asserted as a fundamental principle of free government. It is expressed in the Constitution of Maryland, adopted in 1776, in the following words: “No aid, charge, tax-fee, or fees ought to be set, rated, or levied, under any pretence whatever, without the consent of the Legislature.” And in the Constitution of Massachusetts, adopted in 1780, this power for the Legislature is asserted thus: “No subsidy, tax-charge, impost, or duties ought to be established, fixed, or levied, under any pretence whatever, without the consent of the people or their representatives in the Legislature.” From the earliest times, also, the Legislature was accustomed to grant the power to counties, cities, and towns to levy taxes on themselves for local purposes. But this power was always a grant by the Legislature, and its exercise, both in the manner and as to the amount, regulated and fixed by law. The Legislature was the fountain of all power of taxation. The Supreme Court of North Carolina, in Caldwell v. Justices of Burk, 4 Jones Eq. 222-224, in deciding upon the constitutionality of a grant by the Legislature of a power to a county to levy a tax in aid of a railroad, speaking through Judge Buffin, said: “From time immemorial, the counties, parishes, towns, and other territorial subdivisions of the country have been allowed in England, and indeed required, to levy rates on themselves for local purposes. * * * From the foundation of our government, colonial and republican, the sums necessary for local purposes have been raised by the people or authorities at home. * * * When, therefore, the Constitution vests the legislative power in the General Assembly, it must be understood to mean that power as it has been exercised by our forefathers before and after their migration to this continent.” And because the power to grant and to refuse, and to regulate and control the right of local taxation was a legislative power — embraced in the grant of legislative power — in the Constitution, the court upheld the delegation by the Legislature of the taxing power to the counties in that case. This power has been uniformly exercised by the Legislature here, both under the Territorial government and since the organization of the State. In Daily v. Swope, 47 Miss. 367-379, this court said: “The county or city has no inherent right of taxation. Both these political organisms exert the taxing power by delegation from the State. The appointed agencies for the county, such as the Board of Supervisors, * * * tax by virtue of authority conferred by the LegislatureThe American and Anglo-Saxon theory of self-government is, that political subdivisions of the State may be allowed, and even compelled, to lay taxes on themselves for local purposes, but always in subordination to the regulations and restrictions imposed by the Legislature. It is not questioned that the Board of Supervisors can levy no tax outside of sect. 16, Art. XII., of the Constitution without a grant of power by the Legislature. It cannot be denied that the right to make the grant to the board of power to tax, and to restrict and limit it, is a clear legislative power vested in the Legislature by sect. 1, Art. IV., of the Constitution. It is equally clear that sect. 20, Art. VI., which establishes the Boards of Supervisors,'and fixes and defines their powers and jurisdiction, does not confer as an original power on these boards the right to levy taxes without the consent of the Legislature. The convention adopted /these sections, and all other parts of the Constitution, with the knowledge that the powrer of the Legislature to grant or refuse to grant, to regulate and limit the power of local taxation, was supreme. With this knowledge they framed the section in controversy. It is a just presumption that if they intended by this section to take away this unquestioned power of the Legislature, previously granted to it in the same Constitution, and to vest in the Board of Supervisors an original and unrestricted power of taxation, the convention would have done so in clear and certain language, aiid not left it to argument and inference. The convention showed, when it desired to vest a new power in the Board of Supervisors, that it knew how to do it by appropriate language. Thus, in sect. 29 of the same article of the Constitution in which the clause in controversy is found, it is provided that “the county boards shall have power to provide,” etc. It is fair to assume that a revolution in so important a matter in the constitutional jurisprudence of this and of every other State in in the Union was not intended to be effected by the language used, especially since the language is entirely consistent with the previously settled' rule on the subject. There are numer ous instances in the Constitution of provisions like this, addressed solely to the conscience and judgment of the Legislature, and which can have no force or operation except such as the Legislature may see proper to give them. Thus, in Art. IV. we find the following: (Sect. 33) “ The Legislature shall provide for an enumeration of inhabitants ; ” (sect. 37) “the Legislature shall provide for the organization of new counties ; ” (sect. 39) “ the Legislature shall provide for determining contested elections;” and in Art. VIII., sect. 1, “ it shall be the duty of the Legislature to encourage by all suitable means the promotion of intellectual and moral * * * improvement, * * * and shall establish schools of a higher grade” than common schools. Art. IX., sect. 3: “it shall be the duty of the Legislature to make such laws as shall be necessary to create an effective militia.” And in the same article of which this section is a pai’t. similar provisions are found. Thus, in sect. 2: “The Legislature shall pass laws to exclude from office and suffrage” certain persons ; (sect. 4) “ the Legislature shall provide by law for i the indictment and trial of persons” in counties other than those-in which the offences were committed; (sect. 10) “it shall be the duty of the Legislature to regulate by law” deductions to be made from salaries of public officers; (sect. 28) “the Legislature shall provide houses of refuge and reformation for juvenile offenders ; ” (sect. 27) “it shall be the duty of the Legislature to provide by law ” for the insane, deaf and dumb, etc. And in reference to the taxing-power, — the raising of revenue for.free schools, — declared by the Constitution to be necessary to the stability of the government, is a similar provision, addressed solely to the conscience and judgment of the Legislature. It reads thus (Art. X., sect. 10) : “ The Legislature shall, from time to time, as may, be necessary, provide for the levy and collection of such taxes as may be required [exactly the same as may be sufficient^ to properly support the system of free schools herein adopted.” It is thus seen that -the construction we adopt is-in harmony with the provisions of the Constitution, and consistent with a well-defined purpose in the framers of that instrument to regulate the exercise of admitted legislative power by directions given to that body binding alone on its conscience. Every one of the provisions above quoted has no other force than the Legislature may see proper to give it. Provisions of a similar character are found in the Constitutions of all the States of the American Union. We quote only two, they being exactly analogous to the section under consideration as being attempts to control the legislative power over taxation. The Constitution of Texas of 1876 (Art. V., sect. 41) provides that “ the Legislature shall not have the right to levy taxes or impose burdens on the people,, except to raise revenue sufficient for the economical administration of the government,” etc. A similar provision is-found in the Constitution of Virginia. In these constitutions, as in the section under consideration, there is no revisory power to decide upon the sufficiency of the taxation. That must be determined, under the obligations of their oaths, by the members of the Legislature.

It is germane to this branch of the argument to state that excessive taxation and reckless expenditures by county and other local boards are recognized evils of the times, and that in every recent American constitution, provisions are- made either directly restricting such taxation or requiring the Legislature to do so. In only one instance have we found a provision allowing local taxation beyond the control of the Legislature, and that is in the Constitution of Nevada, securing to cities in that rainless land the power to procure necessary water. So, in order to arrive at the construction rejected by us, we must not only disregard the plain meaning of the language employed and the constitutional history of the State, but we must run counter to the general current of constitutional provisions on this subject.

The construction sanctioned by this court in the two cases before alluded to, encounters this further difficulty: If the Board of Supervisors have the unrestricted right to raise what sum they may deem sufficient for the purposes mentioned in the section, they have also the right to determine for themselves what “ other necessary conveniences for the people of the county” they will supply out of this unlimited fund. There is no restriction as to the objects to which the tax may be applied, except only the discretion of the board, and their judgment that they are necessary conveniences for the people. A power so ample may well be deemed alarming. Such a sway over private property has never been granted to any body of magistracy in a free government. The existence of this power would be absolutely inconsistent with the institution of private property. The advocates of this construction of the Constitution shrink from claiming so enormous and dangerous a power for the Board of Supervisors. In the recent Code of this State, by sect. 2150, the “ necessary conveniences ” are restricted to county buildings other than jails and court-houses. This provision would be unconstitutional if we are in error as to the true meaning of the section in controversy. There is no reason arising from the language used, or from other parts of the Constitution, which would deprive the Legislature of its power to limit and fix the amount of the special tax, and yet would allow it to interfere to limit the “necessary conveniences” to which the tax maybe applied. The words “necessary conveniences” are embraced in the same sentence with “ court-houses, bridges, and jails,” and separated from them only by the like punctuation-mark which separates them from each other; and there is no rule of grammar or construction which authorizes us to say there is less control in the board over one than the other. It is also fatal to this view that it assumes that the right of the county boards to levy unlimited taxes for the purposes mentioned, independent of any control by the Legislature, was deemed so important by the convention as to demand a provision to that effect; yet the very clause intended to secure this essential end accomplishes only half of this purpose, and admits legislative interference as to the other half. The conclusion is irresistible that if the Legislature may limit and control the power of the board to tax as to “ necessary conveniences,” it may do the same as to court-houses, bridges, and jails.

It is also a rule of construction of constitutions and statutes that the instrument should be made, if possible, harmonious and consistent with itself. Its framers are presumed to have a definite and consistent policy, which is a key to all the provisions on the same subject-matter, and that which is clearly within the same mischief must be interpreted as intended to be within the same remedy. It is not to be presumed that provisions were inserted at random, to-subserve some detached or isolated purpose. In constitutions, especially, we are to look for a careful and well-digested plan of government, under which there may be a regular, well-ordered, and harmonious administration. To justify the construction contended for by the appellant, we must suppose that the convention was moved by a mischief felt as then existing as to the unwillingness of the Legislature to grant sufficient taxing-power for court-houses and jails and the means of intercourse and commerce among the people, and that it intended to remedy this mischief by securing an absolute control over these matters in the Boards of Supervisors. It is impossible to conceive any other foundation for this section,-if to be construed as contended for. But, as to the means of intercourse and commerce, provision is made only for a part, and that, too, not a very essential part, of this important subject. As to roads and ferries, — the first an essential, and the second an important part of the means of intercourse, — the power of the Legislature to limit and restrict the Board of Supervisors is unquestioned. In that part of this opinion in which all the judges concur, it is held that the Board of Supervisors cannot expend a dollar for building or repairing roads without the consent of the Legislature ; and the same principle was announced in respect to ferries, in Board of Supervisors v. McFadden, 57 Miss. 618. Under that construction, the Constitution means that the Legislature may not be trusted with power to grant the means to build a bridge, but may be as to the roads over which access to the bridge is alone possible, and without which the bridge would be utterly valueless. The Board of Supervisors cannot spend a dollar to repair a road or a ferry, to make a causeway, or drain a pond over which a road is located, but may, without limitation or restriction, build a bridge wherever they may deem proper. Thus it is seen that this great public policy supposed to be inaugurated by this section, so far as the means of intercourse and travel are concerned, is found to expend itself in the securing of the building of inaccessible bridges. A construction which involves such a conclusion should not be adopted.

It is well settled that courts ought not, except in cases admitting of no reasonable doubt, to take upon themselves to say that the Legislature has exceeded its powers and violated the Constitution, especially where the legislative construction has been given to the Constitution by those who framed its provisions, and contemporaneous with its adoption. Sedgw. on Stat. & Const. Law, 409, and cases, there cited. This rule has been fully recognized in this State. (Campbell v. Union Bank, 6 How. 628 ; Newsom v. Cock, 44 Miss. 352.

In the Code of 1871, adopted contemporaneously with the Constitution, the power of the Legislature to restrict and limit the power of Boards of Supervisors to levy the special tax named in the section of the Constitution under consideration was asserted, and a limit imposed. See Code 1871, sect. 1369. The same restriction is imposed by the Acts of 1872, p. 19, sect. 12 ; and by sect. 1, chap. 27, p. 52, of the Acts of 1875 ; and by sect. 108, chap. 5, p. 82, of the Acts of 1878 ; and by sect. 1, chap. 8, p. 87,' of the Acts of 1880. This uniform construction put on this section by the Legislature ought not, under well-settled rules, to be disregarded by the courts, except in a very clear case. Our whole history under the .Constitution of 1869 has been, under successive statutes, continuously in force and five times enacted, putting the construction we adopt on this clause of the Constitution. It is not to be presumed that the Legislature did not understand or did not observe the Constitution. These enactments must prevail, unless they can be shown to be clearly wrong ; and especially is this true when the question involved is purely administrative and political, not trenching upon private rights.

We have deemed it our duty at some length to state -the reasons of our judgment, because there are two decisions of this court to the contrary. Board of Supervisors v. Klein, 51 Miss. 807 ; Gamble v. Witty, 55 Miss. 26. We depart from these decisions with reluctance, both on account of the weight due to the opinions of the learned judges Avho concurred in them, and also on account of the appearance of vacillation in the opinions of the court. But these decisions have not been acquiesced in by the Legislature, who, on two occasions since they were rendered, reasserted the power we concede to them, and thus challenged a reexamination of the grounds on which these cases are based. The Legislatures thus acting contained some of the ablest lawyers in the State. In the Code of 1880, sect. 2150, is also a clear recognition of the views we have announced. That section contains a grant by the Legislature of a power to levy this special tax, which was improper if the board already possessed it; and it also limits the power of the board “ as to necessary conveniences ” by limiting them to “ other county buildings.” If it be proper to speculate as to the sense in which the people adopted this section of the Constitution, the best evidence is that they, through their representatives, have uniformly construed it as we do. The first opinion delivered in Board of Supervisors v. Klein (never reported) proceeded on the idea that the statute restricting the power of the board was constitutional, and it was only after the case came here a. second time that a contrary conclusion was reached. Thus supported, we feel that we are fully justified in the conclusion we have reached.

We are fully impressed with the force of the doctrine stare decisis in all cases in which it is proper to apply it. But we do not think we ought to surrender our convictions — fortified,as they are, by the repeated and deliberate enactments of the political department of the government — to the authority of these cases, since no property rights, but only the proper ad-, ministration of the government, are involved. In Lombard v. Lombard, 57 Miss. 177, it was said that, “ where the former decision refused a right reserved to individuals as against the power of the government, or where it impaired the powers of the people or their representatives to prevent maladministration, or sanctioned an alienation of legislative power conferred for the public good, little hesitation should be felt in departing from it, if it be incorrect.” The question here is of the character thus described. The former decision destroys a most wholesome power, always theretofore recognized as existing in the Legislature, to protect the people from corrupt and wasteful administration in public affairs. The history of the times and- the experience of eveiy State in the Union teach us that the safeguards which these decisions have overthrown are essential to the public welfare.

Decree reversed and cause remanded, with instructions to modify the injunction according to this opinion.

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Concurrence Opinion

Chalmers, C. J.,

concurring.-

The sixteenth section of Art. XII. of the State Constitution is in these words : “No county shall be denied the right to raise, by special tax, money sufficient to pay for the building and repairing of court-houses, jails, bridges, and other necessary conveniences for the people of the county, and money thus collected shall never be appropriated for any other purpose ; provided, the tax thus levied shall be a certain per cent on all taxes levied by the State.”

We construed this section in Board of Supervisors v. Klein, 51 Miss. 807, and in Gamble v. Witty, 55 Miss. 26, as conferring upon the several Boards of Supervisors the right, unrestricted by legislative control, of levying such taxes as they thought fit for the purposes indicated in the section. This construction was adopted without discussion by counsel or any close analysis by the court. If it was wrong, it should be corrected ; since, to a construction of the Constitution relating solely to a question of public administration, aud which cannot involve rights of private property acquired upon the faith of the decision, the doctrine of stare decisis can have no proper application.

In the wisdom of that doctrine I am a firm believer, but it loses much if not all its force in a case like this. I incline to the opinion that the former construction was erroneous, though the matter is not free from doubt.

All power of taxation with us resides in the Legislature, and exists nowhere else save by legislative grant, unless this clause of the Constitution confers an independent power of levying taxes upon the Boards of County Supervisors. The section is either a negation of power to the Legislature or a grant of power to these boards. Let us scrutinize it in both aspects. If it is a negation of power to the Legislature, it is not a complete negation. That body, which would, but for this section, have the undoubted right to deny all power of taxation to the boards and to levy county taxes itself, leaving to the boards the control over the expenditure of such taxes, is not by this section prohibited from denying to them the right to levy excessive taxes, but only from denying the right to levy “ sufficient taxes.” If it was intended to deny them any control whatever over the subject, the word “ sufficient” should be omitted, and the clause should read: “No county shall be denied the right to raise, by special tax, money to pay for,” etc. But, the Legislature not being prohibited from denying to the counties the right to levy taxés- which are more than sufficient for the purposes indicated, there must reside somewhere the right to determine what is sufficient. Where does this power reside? Is it in the courts? I think not; because it must ever be essentially an administrative or legislative question, in the settlement of which the courts would involve themselves in endless difficulties. Is it in the Boards of Supervisors? I think not; because, if so, the insertion of the word “sufficient” accomplishes no result whatever, the meaning of the sentence, under this view, being exactly the same with that word omitted. I conclude, therefore, that the power of determination resides in the General Assembly of the people — that universal depository of the taxing power, that independent department of the government which absorbs and swallows up all legitimate governmental functions which cannot be specifically located elsewhere.

The same result follows if we regard the section as a grant of power to the Boards of Supervisors. It is a grant of the right to levy, not unlimited taxes, but “sufficient” taxes; but if the boards are themselves the judges of the sufficiency of the taxes to be levied by themselves, the grant becomes unlimited, and the restrictive word “ sufficient” is stricken out. This word in no event must be stricken out, because it is the key-note of the sentence; and when the body that is to determine when it has been violated is ascertained, the meaning of the provision is fixed. It does not advance the argument to say that these boards are granted the power to levy the taxes as their judgment dictates, and that it is a mere matter of computation whether the taxes levied are more than sufficient, because the question still remains, “ Who is to be the computer? ”

If the right of the boards to determine the sufficiency of the taxes is unlimited, their right to determine for what purposes they are to be raised must be equally so ; since they may be appropriated either to court-houses, jails, and bridges, or to any “ other necessary county conveniences,” and these words must embrace everything that the boards, under one theory, or the Legislature, under the other, may see fit to indicate. It seems a doctrine truly alarming to hold that the Boards of Supervisors can determine what is a county convenience, and then levy such taxes as they see fit for its construction, and that their power’s in both respects are unlimited and illimitable. It is quite safe to say that no Constitution ever framed in America contains such a provision, unless ours does.

It is true that it seems to bo an idle thing to sar^ that the Legislature must not deny to the counties the right to raise such taxes as the Legislature thinks sufficient, but it is equally incongruous to grant to the Boards of Supervisors an unlimited power of taxation, provided they shall not levy more than they think sufficient. Compelled to choose one of the horns of this dilemma, I prefer the construction which gives the Legislature a supervisory control over the matter, because more in consonance with our past history and the general current of constitutional jurisprudence elsewhere, and more conducive to the public welfare. Whenever two theories of a constitutional provision seem equally admissible, it is the duty of this court to adopt that which is most in accordance with our historic methods and most promotive of the public interest. This is my construction of the clause. The Legislature, which alone possesses the power of taxation ordinarily, and grants a subordinate authority to such inferior bodies as.it pleases, is forbidden by this section to withhold from the counties the right of taxation for the purposes specified, to an amount sufficient to accomplish the ends ; leaving to the legislative wisdom, where so many other matters of importance are left, the determination of wheu that point is reached. If the Legislature prescribes no limit, the right of the county boards is unlimited. If it prescribes a limit it must be observed, unless it is a total prohibition of all taxes. It thus amounts to a qualified grant of power of taxation to the county boards, and a qualified prohibition to the Legislature.

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Dissenting Opinion

Campbell, J.,

dissenting.

I dissent from the interpretation of sect. 16 of Art. XII. of the Constitution sanctioned by a majority of the judges of this court, and, not contenting myself with the announcement of what I believe to be the proper interpretation of that section made by this court in Board of Supervisors v. Klein, 51 Miss. 807, and Gamble v. Witty, 55 Miss. 26, now proceed to state the reasons which conduct me to that conclusion. I do not appeal to stare decisis, sometimes potent in its influence.

The question is as to the meaning of the section —not what we might wish it to be, but what it is.' The object to be sought is the intent of the people in adopting it. That intent is to be found, if possible, in the words used. Those words are to be taken in their ordinary sense and common acceptation, and that meaning is to be given to them which naturally suggests itself upon their perusal. No matter as to the form of expression, whether the most apt or not, if the purpose of the provision is manifest from the language employed, effect must be given to it. Subtilty and refinement and astuteness are not admissible to explain away an expression of the sovereign will. A sense suggested by reading a provision of the Constitution which requires ingenious reasoning to explain it away ought not to be thus disposed of, because it cannot be supposed that such reasoning was applied to it by those who adopted it. The framers of the Constitution and the people who adopted it must be understood to have intended the words employed in that sense most likely to arise from them on first reading them.

“Narrow and technical reasoning is misplaced when it is brought to bear upon an instrument framed by the people themselves, for themselves, and designed as a chart upon which every man, learned and unlearned, may be able to trace the leading principles of government.” Cooley’s Const. Lim. 59.

“ Constitutions are not designed for metaphysical or logical subtilties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exereise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them ; the people adopt them ; the people must be supposed to read them with the help of common sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” Story on Const., sect. 451.

“ But the most important rule in cases of this nature is that a constitution of government does not and cannot, from its nature, depend in anjr great degree upon mere verbal criticism or upon the import of single words. Such criticism may not be wholly without use ; it may sometimes illustrate or unfold the appropriate sense ; but unless it stands well with the context and subject-matter it must yield to the latter. While, then, we may resort to the meaning of single words to assist our inquiries, we should never forget that it is an instrument of government we are to construe, and, as has already been stated, that must be the truest exposition which best harmonizes with its design, its objects, and its general structure.” Vattel’s L. N.,bk. 2, chap. 17, sects. 285, 286.

The suggestion is plausible, at least, that the meaning of sect. 16, Art. XII., twice adopted by this court, is its most obvious one. By sect. 20 of Art. VI. of the Constitution it is provided that ‘£ the qualified electors of each county shall elect five persons, by districts, for the term of two years, who shall constitute a Board of Supervisors for each county, a majority of whom may transact business, which body shall have full jurisdiction over roads, ferries, and bridges, and shall order all county elections to fill vacancies that may arise in the offices of their respective counties, and perform such other duties as shall be provided by law.” Certain matters for their cognizance are specified by the Constitution, and it is left for the law-making power to provide by law such other duties as it may see proper to devolve on the Boards of Supervisors.

Among the ££ general provisions ” in Art. XII. is : ££ Sect. 16. No county shall be denied the right to raise, by special tax, money sufficient to pay for the building and repairing of court-houses, jails, bridges, and other necessary conveniences for the people of the county ; and money thus collected shall never be appropriated for any other purpose; provided, the tax thus levied shall be a certain per cent on all tax levied by the State.” This is equivalent to saying “ every county shall have the rig'ht to raise,” etc. It shall not be denied ; that is, the right shall not be withheld or refused, because it is the intent of the instrument that the right shall be possessed by •every county, secure from denial by that body which, but for this limitation on its power, might deny it.

The specific provisions of sect. 16 are inconsistent with the assumption of a mere address to the Legislature, and indicate a purpose to exclude legislative intervention and to confer upon the counties the right to do in the way prescribed what is provided for. An analysis of the section will make this clear. “No countjr shall be denied the right.” The idea involved is that every county shall have the right, for it is placed beyond denial. It shall not be refused nor withheld. But for this limitation, the law-making power might refuse to •counties this right. By legislative action it might be withheld. It shall not be. The county shall have it. No power shall deny it. “ To raise by special tax :” A specification of the manner in which this right shall be exercised. “Money sufficient:” A limitation on the right thus secured to the county. “Sufficient” money: Not more than is required. “ To pay for the building and repairing of court-houses, jails, bridges, and other necessary conveniences for the people of the county:” Au enumeration of the objects for which the right may be exercised. “And money thus collected shall never be appropriated for any other purpose:” A provision against an abuse of the power conferred, lest, under cover of this right, money should be collected nominally to pay for the building and repairing of court-houses, jails, bridges, etc., and afterwards should be applied to other uses. “Provided, the tax thus levied shall be a certain per cent on all tax levied by the State:” A specification of the subjects of the special tax, the right to lev}? which is secured to every county, under the limitations prescribed. “Tax levied by the State” suggests another tax levied, not by the State, but by the county.

Why these minute details — this specification of the right to raise money, the manner of doing it, the amount, the objects for which it may be raised, and the exclusion of the abuse of the right to raise money for the specified purposes, by prohibiting its appropriation for any other purpose? If the section is held to confer on the counties the right mentioned, these details for its exercise and to prevent its abuse are appropriate ; but if it is held to be merely admonitory to the Legislature, they seem out of place.

When the Constitution declares a right, and defines the circumstances under which and the manner in which it may be exercised, the specification is a prohibition against legislative 'infringement of the right, or change of the circumstances or the manner for the exercise of the right declared.

The fact that the section does not say that the Board of Supervisors shall not be denied, but uses the expression, “ No county shall be denied,,” does not alter the case. The thought embraced, rather than mere form of expression, is to be considered. The Constitution was made for a people accustomed to the exercise of the power of local taxation for the purposes named in the section under consideration, by a tribunal formerly existing in the several counties', by the name of Boards of Police. The Constitution was the successor of a former one, for the most part copied by the new one, and' it found a body of statutes in force and continued them in operation. By the former Constitution- each county had a Board of Police, consisting of five persons, elected by districts, with full jurisdiction over roads, highways, ferries, and bridges, and all other matters of county police, and with the duty to order all county elections to fill vacancies in all offices of the county. The new Constitution changed the name of the board, but continued it under the name of the Board of Supervisors, prescribing its jurisdiction, as before possessed, omitting ■“highways,” and instead of “all other matters of county police,” substituted “ such other duties as shall be provided by law.”

This Constitution found in force this provision : “ The Board of Police of any county may levy a special tax for the erection or repair of the coart-house, jail, or other county buildings,- and bridges, whether the same shall exceed the State tax or not, to be applied to no other purpose.” Rev. Code 1857, p. 417, art. 22. And it is apparent that this suggested sect. 16, Art. XII., of the Constitution. This statute continued in force under the new Constitution, being applicable to the Board of Supervisors. It seems plain that the intention must-have been to invest with the force of the fundamental law the right of the county, acting through its own tribunal charged with county matters, to raise money sufficient to pay for the things mentioned. It is manifest that the purpose was- to give the right to the acting authority of the -county. “ Bridges ” are a subject of the grant of jurisdiction to the Board of Supervisors, and court-houses and jails were subjects intrusted to them by law. It was known that building and repairing court-houses, jails, and bridges required money. These are local in their character. It was fit that they who were to bear the burden of maintaining them should have the right to determine their character and pay for what they chose to have.

I do not deny to the Legislature the right to regulate the -exercise of the right conferred by sect. 16, Art. XII. The right to regulate and the right to abridge are different things. I admit the former and deny the latter. It is competent for the Legislature to make an estimate of the cost of the work, and an advertisement of the letting of the contract, and the making of the contract, and the completion of the contract, and other like things, a condition precedent to the collection of the special tax provided for.

Whatever may be a proper regulation for the exercise of the right secured to the counties, not amounting to an infringement of it, is lawful. Since the right is secured to the county, it may be that it is within the power of the Legislature to require a vote of the people of the county upon the question of the expenditures to be made for court-houses-, jails, and bridges. I am not prepared to say what is the limit of legislative power in regulating the exercise of the right secured to-the counties. I would deny it only at the point where regulation amounts to infringement, and that can be determined only in a given case when it may arise.

The fact that the constitutions of other States contain directions to the legislatures to restrict or limit local taxation by municipal organizations, and that with these examples before-the framers of our Constitution they inserted the provision under consideration, strengthens the conviction that, instead of such direction to the Legislature as other constitutions contained, they purposed to secure to each county, beyond the right of legislative denial, the rights specifically conferred by sect. 16, Art. XII.

The fact that in the Constitution of 1832, to which this was a successor, there was no such provision in favor of counties, but the whole subject was left to the Legislature, and that this provision was made, shows that a change was intended, and the obvious design was to guard the rights of the counties in the matters specified ; and that construction should prevail which will effectuate that desigu. To say that the conscience of the Legislature is addressed, is to fritter away the provision ; but to consider the l’ight as secured to the counties is to give efficacy to it. The expressed will of the sovereign is that the right should not be denied. To regard that will, a construction which will preclude its being thwarted should be adopted.

There is nothing in auy of the words employed in the section which presents any difficulty in the way of the adoption of my view. The word “sufficient’5 does not suggest the idea of legislative determination of the sum of money to be raised. It is a limitation of the right secured to the counties. Authority is given to raise enough money — no more — for the objects named. What is sufficient (enough) is determinable b}^ what is necessary to pay for the things named. That is to be determined by computation. The facts in each case furnish the guide as to what is sufficient. The Board of Police had formerly caused court-houses, jails, and bridges to be erected, and this power was continued in the same body, by its new name of Board of Supervisors, by the new Constitution. It was made with reference, as before stated, to the existing order of things. It had a practical view, and must be read with reference to the state of society in which and for which it was made. By existing law when it was made, it was declared that the Board of Police “may levy a special tax for the erection or repair of the court-house, .jail, or other county buildings, and bridges, whether the same shall exceed the State tax or not, to be applied to no other purpose.”

This law was continued in force, and in substance was transplanted into the Constitution in the section under consideration. The words, “ and other necessary conveniences for the people of the county,” are added to the objects specified to embrace things of the same kind with those named, and which are considered necessary for the public convenience. Being for the people of the county, it seems harmonious with the principle of local government as to local matters that they who are immediately concerned in benefits and burdens should be the judges of what are necessary conveniences to them.

The division of the State into counties, and the administration of the affairs of each county by officers elected by the qualified electors of such county, and decentralization by committing to local management everything except what pertains to the State at large, is a favorite theory in American practice, and has characterized the government of this State, as shown by its history contained in its several Constitutions and laws. This feature is preserved in the present Constitution, and the right of each county to do certain things in a certain way, with restrictions on abuse of the right, is elevated from mere statutory creation — liable constantly to change — to the security of constitutional guaranty. If this be not the meaning of the section under review, its insertion was folly and its effect nugatory. There is danger of construing ,the Constitution by the varying circumstances of societ}', as determined by the condition of different counties with respect to their qualified electors, and the apprehension that may arise of the abuse of the right in some counties if it shall be held to be secured to them by the Constitution. It is wholly inadmissible to construe the Constitution by any such consideration. The division into couuties and the provision for the local administration of the internal matters of each, without regard to differences of population as likely to produce good or bad administration, are all that can properly be looked to. The Constitution treats all counties alike. Each is to have the same tribunals, the same officers, and the same rights. The true office of interpretation is to look at the system, to discover the scheme as applied to all, and to give effect to it.

Experience shows that local matters can best be left to local control, and that a community immediately interested in benefits for which it is to pay may be safety intrusted with their procurement. That is the plan of government found in existence and continued by the present Constitution, with the added safeguards contained in sect. 16, Art. XII., which should be construed,,in harmony with the plan. What is called contemporaneous construction by legislative action is entitled to little weight in ascertaining the meaning of the Constitution. It has been but nine j^ears since the Constitution was adopted, and if it be true that during that time the Legislature has assumed to infringe a right the exercise of which it had only the right to regulate, that is not a reason for this court to accept legislative perversion as a guide for its high prerogative to expound the Constitution correctly and guard it from violation. This case and others which have been before this court show that the practice of the Boards of Supervisors of some of the counties has been to levy taxes for the purposes enumerated in sect. 16, Art. XII., of the Constitution, without regard to the limit imposed by the Legislature for the levying of taxes, which shows that the right of the Legislature to limit the amount of taxes as to the subjects named in the constitutional provision has not been acquiesced in by the counties; and twice has this court declared, in cases presenting the question directly and requiring its decision, that the Boards of Supervisors had the right to disregard the limitation imposed as to these matters. This announcement caused neither revolution nor surprise, and led to no proposal to amend the Constitution in the matter mentioned, although the subject of amending the Constitution has been considered and it has been amended in another matter.

It would seem that the utterances of this court as to the meaning of the Constitution should be entitled to as much respect as the very equivocal action of the Legislature, which may have intended, in the acts passed since the decision, to restrict only as it had the right.

If the argument ah inconvenienti is appealed to, and considerations of policy are to be weighed, it is by no means clear that it should be held that the representatives of seventy-four counties, assembled at the seat of government, can better determine as to the scale of expenditure for public necessities in each of the counties than can each county for itself. The exercise of the power by the Legislature to prescribe a rate of taxation for all of the counties may be productive of much mischief. The counties vary widely in population, territory, physical characteristics, and other circumstances. What is sufficient for all the proper purposes of one may be wholly inadequate to the wants of others. A rate of taxation, to be general, must be large enough for those which require most; and to establish that is to subject those counties needing little to the very evil the existence of which is urged against the possession of power by the counties, independent of restraint by the Legislature. Authority conferred by an act of the Legislature to raise more by taxation than is necessary is just as harmful as unlimited power derived from the Constitution. Power must be lodged somewhere, and the nearer it is brought to those on whom is to fall the cost of its exercise the better, and that is the principle of sect. 16, Art. XII., of the Constitution. There is danger of unwarranted distrust of Boards of Supervisors, caused by unfortunate experience under unfavorable conditions. The Constitution creates this tribunal and intrusts it with important functions intimately connected with the interests of the people, and within its designated constitutional sphere it is as much entitled to confidence as is the Legislature or this court. Power must be lodged somewhere, and the plan of the Constitution is to give legislative power to the Legislature, but to restrict and limit it in many respects, and among these limitations is that which is contained in sect. 16, Art. XII. In sects. 14 and 15 of that article the Legislature, by name, is prohibited from doing-certain things. In sect. 16 the form of expression is more emphatic, as a prohibition to the Legislature, than the two preceding sections.

The decision cited by Judge George from North Carolina, to the effect that counties from time immemorial had possessed the right of local taxation,' is a. strong argument in favor of the view that the purpose in adopting sect. 16, Art. XII., was to continue this right in the counties and place it beyond denial by the Legislature, securing it as a county right, independent of legislative infringement.