Board of Supervisors of Clay County v. Board of Supervisors of Chickasaw County

64 Miss. 534 | Miss. | 1886

Ajjwold, J.,

delivered the opinion of the court.

The general merits of the controversy in this case have been decided adversely to appellants, on former appeals to this court. Board of Supervisors of Chickasaw County v. Board of Supervisors of Clay County, MSS.; Board of Supervisors of Chickasaw County v. Board of Supervisors of Clay County, 62 Miss. 325.

It was not error to sustain the demurrer to appellant’s amended cross-bill and to dismiss the same. The demand made by appellant in the amended cross-bill for a part of the county and school fund belonging to Chickasaw County at the time Colfax, now Clay County, was created, was without authority of law. The act entitled “An Act to create a new county in the State, to be called Colfax County,” passed over the governor’s veto May 12, 1871, provided that Colfax County should pay its portion of the debt of the counties respectively from which it was formed, and that it should* also receive its proportion of the county and school fund from such counties. If it be conceded that this act ever had the force of law, it was never put into operation. The new county was not organized under it, and it was superseded and repealed by the act entitled “An Act to create a new county in the State, to be called Colfax County, and for other purposes,” approved April 4, 1872, under which the new county was organized and came into being. The latter act contained the provision that the new county should pay its portion of the debts of the counties respectively from which it was formed, but it omitted the provision that the new county should also receive its proportion of the county and school funds from such counties. Here, then, are two statutes on the same subject and for the same purpose, and the last, under which the new county was in fact created, omitting the provision contained in the first, that the new county should receive its proportion of the •county and school funds from the old counties. The general rule is that when any statute is revised, or when one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled. Where a statute is evidently intended to revise the whole subject treated in a former statute,,and to be a substitute therefor, it repeals such former statute, and though there may be a plain earns omissus, the courts cannot supply it. Sedgwick on Con. of Stat. and Const. Law 365, 366, and note; M. & O. R. R. Co. v. Weiner, 49 Miss. 725.

Without provision being made to the contrary, the new county was not entitled to any part of the county or school funds or other public property which did not fall within its. boundaries. They, belonged to and continued to be the property of the old counties after the separation. The creation of new counties is a matter within the power and discretion of the legislature, subject only to the restrictions imposed by the constitution. Within these limitations the legislature may make whatever regulations it will as to the division of property and the payment of existing debts, and the terms prescribed by it must prevail. Courts cannot supplement legislation by assuming to adjust equities which have been ignored by the legislature. Laramie County v. Albany County, 92 U. S. 307 ; Board of Supervisors of Chickasaw County v. Board of Supervisors of Sumner County, 58 Miss. 619; Dill. on Mun. Corp., § 126 et seq.

The defense of res adjudieata did not and could not arise out of the facts shown by the record, and the record could not be contradicted or changed by parol so as to render such defense available. The presentation of the claim to the Board of Supervisors of Clay •.County for allowances was merely a preliminary step to enable ap-pellees to bring suit on the same in case there was refusal to allow it. Suit could not have been maintained on the claim without this action being first taken. After the Board of Supervisors of Clay iComity refused to allow the claim, it was the right of appellee either to sue or appeal on bill of exceptions to the circuit court from the de-cisión, made against them. They appealed to the circuit court, but there voluntarily dismissed their appeal and took a nonsuit. The effect of this was to restore the conditions that existed before the appeal, and to enable appellees to commence suit on their claim just as if no appeal had been 'taken. It is impossible to conceive that a board of supervisors can in any state of case refuse to allow a claim against their county, and afterward set up their judgment or decision thereon as a final adjudication and bar to a suit on the claim, or that they can derive any such defense from a judgment of the circuit court dismissing or éntering a nonsuit at the instance of the party appealing, on an appeal from their decision.

By setting the cause down for hearing before the expiration of five months allowed by law for taking testimony, after answers filed, appellees admitted the facts stated in the answer to be true, but. they did not thereby admit the conclusions of law stated in the answer to be true. Admitting the facts contained in the answer to-be true, the decree is still right, except as hereinafter stated. After the exceptions to the answer had been .properly allowed, and the matters to which exceptions had been taken were stricken therefrom, and after what has been said of the defense of res adjudicata, the answer constituted no defense, and the facts remained that Chickasaw County has paid a large debt which it owed at the time Clay County was created, and that Clay County has not paid her proportion or any part thereof.

By the decree Clay County is required to pay interest on the amount found to be due by it from the date of the payments made by Chickasaw County. This was error. The claim of Chickasaw County does not arise ex contractu, but it is purely statutory. The statute of May 4, 1872, by which the liability was created, makes no provision in regard to interest. Interest, as it was said,, in the Board of Supervisors v. Klein, 51 Miss. 807, is the creation of statute, and our general statute on the subject does not embrace counties. The re-enactment of the interest statute since the decision was rendered in the Board of Supervisors v. Klein, supra, may be regarded as a recognition and adoption by the legislature of' the views expressed in that case as to the non-liability of counties to the burdens of interest.

The decree is reversed-, and decree is rendered here in favoir of ap-pellee for the amount of the principal, without interest, found-in the court below to be due from appellants.