46 So. 819 | Miss. | 1908
delivered the opinion of the court.
The act of March 20, 1908, under review, is as follows:
“Depositories for Yazoo-Mississippi Delta Levee Board.
“Section 1. Be it enacted by the Legislature of the state of Mississippi that the treasurer of the board of commissioners for the Yazoo Mississippi Delta shall deposit, or require to be deposited, the funds of said board now on hand or hereafter received, in such bank or banks as shall be selected, designated or commissioned by the said board of commissioners in the manner hereinafter provided. All such funds so deposited shall be subject to payment upon demand by the treasurer on his warrant. “What Banks Qualified' to be Depositories.
“Sec. 2. No bank shall be selected to receive on deposit any funds belonging to said board of commissioners except such banks as are located in counties lying wholly, or partly, within the Yazoo-Mississippi Delta district.
“Depositories must Furnish Security for Funds.
“Sec. 3. Before any bank or banks shall be entitled to receive on deposit any funds belonging to said board of commissioners, such bank or banks shall deposit with the treasurer of said board of commissioners either or any of the following bonds, to-wit: Bonds of the United States of America. Bonds of the state of Mississippi. Bonds of the Yazoo-Mississippi Delta levee board. Bonds of any county lying in whole or part in said levee district. Bonds of any city located in a county which is in whole or in part in the said levee district.
“Bonds Deposited for Security — Guaranty Bond Also Given!
*805 “The validity of such bonds to be approved by the attorney of said board of commissioners. The par value of which said bonds so deposited shall be equivalent to fifty per cent, of the estimated maximum amount, which will not be kept on deposit in said bank under the provisions of this act. Said bonds shall be deposited as collateral security, and the treasurer of said board shall have the right, power and authority to declare said bonds to be the property of said levee board, immediately upon the failure or refusal of any bank or banks to pay any legally authorized warrant for any amount not exceeding the then deposit, drawn on it or them by the treasurer of said board of commissioners, the said treasurer may then proceed under the direction and authority of the board of commissioners to dispose of said bonds in such manner as the said board of commissioners may see fit. In addition to the deposit of bonds said bank or banks shall also file with the treasurer of said board a bond or bonds signed by four or more individual sureties, or two or more surety companies authorized to do business in the state of Mississippi, which said bonds shall be subject to the approval of the said board of commissioners or the president and two members of said board, if the board shall not be in session, but if said indemnifying bond be approved by the president and two members, their action shall be ratified or annulled by the board at its next regular or special meeting. The amount of said indemnifying bond or bonds shall be equivalent to seventy-five per cent, of the estimated maximum amount which will be kept on deposit in said bank. Said bond or bonds to be conditioned according to the law fixing the penalty and conditions for the bond of the treasurer of said levee board, and in addition to the above mentioned security the stockholders of all banks qualifying as depositories under this act are hereby made liable for any loss sustained on account of the failure of such depository to faithfully discharge its duties as depository, and to pay .over all amounts deposited with it upon demand, each stockholder being so liable for an amount equal to the par value*806 of his stock in such bank. In the event any bondsmen or stockholder reimburses said board of commissioners for any loss occasioned by a failure of a depository to faithfully discharge its duties as such, he is hereby subrogated to the rights of said board of commissioners against the other bondsmen and stockholders in such depository as before prescribed. It is further provided that the creating of this additional security and the acceptance of the collateral hereinbefore mentioned shall not be construed as waiving any rights, benefits, or privileges conferred by law upon the commission in the matter of recovering public moneys or trust funds from banks in which they may be deposited. When the said board shall have selected a bank as its depository it shall be the duty of the secretary thereof to, within ten days thereafter, notify said bank of its selection, and the estimated maximum amount of money which will be on deposit at any time therein in order that said bank may know the amount of security to be filed.
“Sec. 4. The words “bank” or “banks,” whenever used in this act, shall include trust companies.
“How Banks to be Selected for Depositories.
“Sec. 5. The said board of commissioners shall select thé bank or banks in which the said funds are to be deposited in the following manner, to-wit: The said board of commissioners shall meet in special session on the first Tuesday in the month of May, 1908, and every two years thereafter, and by order designate a bank or banks in each and every county lying wholly or partly within said levee district, in which said banks so selected and designated the funds of the Yazoo-Mississippi Della levee board now on hand or hereafter to be received shall be deposited by the treasurer of said board, when said bank or banks shall have qualified to receive such deposit as hereinbefore provided. The said board of commissioners shall by order direct its treasurer to deposit and to keep on deposit, except when drawn in the regular course of business, in each county*807 that proportionate part of the funds of said levee board which is paid into the treasury of said board of that county, and in drawing from said depositories any funds in the due course of business the treasurer shall at all times endeavor in so far as possible to maintain a proportionate ratio on deposit. The said board of commissioners may, in their discretion, designate more than one bank in any or each of said counties as depositories, and in that event the proportion of funds to which that county is entitled shall be divided in such a manner as the board may see fit to divide same between such depositories in that county. And in case there shall be no bank in any county in said levee district willing to accept said deposit and to qualify under the provisions of this act, to receive the same, then and in that event the proportion' of the funds which would otherwise be deposited in such county shall be divided amongst the remaining counties in proportion to the amount such counties contribute to the revenue of said board, and this same deposit of funds shall be made in case of the banks of any county, after having qualified and received the deposit, shall surrender their deposits or refuse to continue as depository. And said board shall have the power, and it shall be its duty, to select and designate depositories at any regular or special meeting when such election shall be necessary.
“Expenses of Delivery of Eunds to be Paid by Depository— Banks to Guarantee Payment of Warrants.
“Sec. 6. When any bank or banks shall have qualified to receive the deposit of-said board, the funds of said board shall be .delivered to the agent or representative of each of said banks at the office of the treasurer of the said board of commissioners, and the said board of commissioners shall in no event be required to incur any expense in the delivery of funds or any part thereof to any depository. Before receiving any of the funds belonging to said board of commissioners, each and every bank becoming entitled to the same shall guarantee the payment*808 of all warrants, drafts, ox cheeks drawn by the treasurer of the. said levee board in favor of himself at the domicile of said levee board without cost to said board of commissioners.
“Depositories to be- Commissioned and Also Publish Fact of Being a Depository.
“Sec. 7. After any bank has been selected by order of the board as a depository, and shall have in every respect complied with the law, and shall have placed security as required, the said board of commissioners shall issue to such depository a commission, and every such depository receiving a commission shall thereupon publish the fact that it has been duly and legally commissioned to receive said levee funds, in a newspaper published in the county in which the bank is located, for three consecutive weeks, and proof of such publication shall be filed with the treasurer of said board of commissioners. '
“Term of Office of Depository to be Two Tears.
“See. 8. The term of office of a depository shall be two years from the date of the issuance of its commission, but its liability shall continue after the expiration of its commission for so long a time as any of the funds hereinbefore mentioned remain on deposit therein.
“Depository must Qualify within Sixty Days. Failure to Qualify Forfeits Contract.
“Sec. 9. Every bank designated by order of the board as a depository shall qualify to receive the deposits’ under the provisions of this act within sixty days after the secretary of ^said board shall have mailed said bank a notice of its selection, and should any bank fail to qualify within the time prescribed, or within such additional time as the board may allow by order beforehand, the board of commissioners may then, and in that event, select or designate another bank or other banks in the same county' in which is located the bank which has failed to qualify, and in event there be no other hank in such county, ,or -in the event such other bank fails:, neglects, or refuses to.qualify*809 as a depository, then the funds to which the county would otherwise be entitled shall be deposited as hereinbefore provided.
“Form of Commission to be Issued.
“Sec. 10. The form of the commission issued to the depository shall be as follows:
“ ‘To All to Whom These Presents Come — Greeting:
“ ‘-Bank of-having complied with all of the requirements of law, and having placed the following securities with the treasurer of the board of commissioners of the YazooMississippi Delta, to-wit: Bonds of —-(here insert description of the bond) to the amount of $-, and having given an indemnifying bond in the sum of $-, with-per ■cent., as sureties thereon, said bank is hereby created and appointed a depository for the funds of said board for a term of two years ending with-day of-, 19 — , but shall not have on deposit at any time any amount exceeding $- of the funds of said board of commissioners.
“ ‘Witness the signature and the seal of the said board of commissioners this the-day of-, 19 — .
“ ‘-, President.
“ ‘-, Secretary and Treasurer.’
"“Payment to Depository Believes Treasurer of Liability.
“Sec. 11. The payment by the treasurer of the said board of commissioners of the funds of said board into the qualified ■depositories releases the treasurer and his bondmen from any liability for any loss of such funds which may occur by reason of the fact that the money was so deposited. The treasurer’s liability to the levee board is not otherwise affected by this act. ■“How Tax Collector of County may Settle.
“Sec. 12. In making settlement with the treasurer of said board of commissioners, the tax collector of each county may pay the amount due the board of commissioners over to a depository in his county, if there be one in his county; otherwise he shall pay the amount to the treasurer of the said board of*810 commissioners. The tax collector, in making deposits, shall receive duplicate receipts for the same, and shall mail the treasurer of the board of commissioners one of such receipts.
“Accounts of all Moneys Deposited Required of Depositories.
“Sec. 13. The treasurer of said board of commissioners shall require of each depository accounts of all moneys deposited, and when deposited, and shall require of each depository at the beginning of each and every month a statement showing the daily - balance of levee monies held by it during the next month preceding, which said statement shall be filed by the treasurer for inspection of the board of commissioners, and it shall be the duty of the said treasurer to keep an account with each and every depository and to verify the statements rendered as hereinbefore provided.
“Unlawful Use of Funds; to Make Profit by Levee Board Officials a Felony.
“Sec. 11.' The making of profit, directly or indirectly, by the treasurer of said board, or by any member of said board, or any officer whatsoever, out of any funds belonging to said board, the custody of which the treasurer is charged with, by loaning or otherwise using it, or by depositing same in any manner contrary to law, or of the removal by'the treasurer, or by his consent, of such monies or a part thereof, and placing it elsewhere-than is provided by law, shall constitute a felony, and upon conviction thereof shall subject the treasurer, or other officer, to-imprisonment in the state penitentiary for a term not exceeding two years, or a fine not exceeding five thousand dollars or by both such fine and imprisonment, and the treasurer or other officer offending shall be liable on his official bond for all profits realized from such unlawful use of such funds.
“Failure to Perform Any Duty under This Act is a Misdemeanor.
“Sec. 15. Should any officer, treasurer, or member of the board of commissioners, or custodian of the funds, willfully fail or refuse at any time to do and perform any act required by*811 him or it by this act, he or it shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine of not less than five hundred dollars nor more than five thousand dollars, or by imprisonment in the county j ail not less than ten day nor more than thirty days, or both.
“Sec. 16. That this act take effect and be in force from and after its passage.
“Approved March 20, 1908.”
It is earnestly insisted that this act is unconstitutional, and, if not unconstitutional, then that it is void and unenforceable for vagueness and uncertainty. We make a preliminary observation, which is that in section 3 of said act the word “not” is clearly read out of that section by the context of the section it- ' self. The sentence reads as follows: “The par value of which said bonds so deposited shall be equivalent to fifty per cent, of the estimated maximum amount, which will not be kept on deposit,” etc. Plainly the Legislature meant to say “which will be kept on deposit.” It was a mere clerical misprision, obvious to the apprehension of any intelligent reader, as plainly shown by the context of that section and of the whole act.
We make another observation that with respect to the wisdom, or propriety, or good policy of this law we, as a court, have nothing whatever to do. That is the matter exclusively for the Legislature.
The chief assault upon this act, so far as its alleged unconstitutionality is concerned, is that it violates section 231 of the constitution, which is as follows: “No bill changing the boundaries of the district, or affecting the taxation or revenue of the Yazoo & Mississippi Delta levee district, or the Mississippi levee district shall be considered by the Legislature unless said bill shall have been published in some newspaper in the county in which is situated the domicile of the board of levee commissioners of the levee district to be affected thereby, for four weeks prior to the introduction thereof into the Legislature; and no such bill shall be considered for final passage by either the Sen
'It is said, again, that this is a highly penal statute, and therefore must be construed strictissimi juris. The purpose and object of all construction of legislative acts is to get at the intent and purpose of the legislature. We do not think we have ever seen this principle more correctly and sanely stated than in the case of Bryant v. United States, 105 Fed., 941, where the court said: “While it is true that penal statutes should be strictly construed, it is undoubtedly the duty of the courts to look to the mischief intended to be prevented, and to take into consideration the character of the remedy proposed to be applied, in doing which the mere letter must yield to the manifest spirit, and give to the provisions that measure of restriction or expansion which a sound, reasonable reading of the
We do not think there is anything in the contention that the-corporation is not identified in the title to the bill. This position is overstrained. There can be no reasonable doubt as to what corporation was meant. We do not think the act itself, >or the title of the act, is subject to criticism as unconstitutional-
Again, it is most earnestly insisted that the act is unconstitutional because it seeks to deprive the appellee of its property without due process of law, and to deny to appellee the right to contract with respect to its property, property rights, and franchises. Quite an array of authorities is cited to the proposition that bodies of legislative creation, like this levee board, are entitled to the protection of the courts so far as their autonomy,, their property, and internal affairs are concerned; that these are matters which are committed by the constitution to the discretion of the governing body of the levee board; that this board, by the provisions of the constitution, is granted absolute protection in the possession, control, and disposition of its property;. and that, whilst it may be a public corporation, as distinguished from a private corporation, and in political and governmental, matters may be the representative or auxiliary of the state, nevertheless it is a separate and distinct corporation in all other-matters, entirely independent of the state, with property rights-which are protected, and of which it cannot be deprived without due process of law. The general principle here announced is also, sought to be fortified by the ease of Aberdeen Academy v. Aberdeen, 13 Smed. & M., 645. There is no sort of doubt as to the correctness of the general principle announced in these decisions. The trouble with appellant’s cases is that they have no application to this act under consideration as applied to this particular levee board corporation. It is, in a most peculiar sense, a governmental corporation, exercising governmental-powers. This act does not deprive it of any of its property.
It is said that the freedom to contract is denied to this board. We do not so apprehend the meaning of the act. It is still free to make any and all contracts whatsoever, within the scope of its powers, for the protection of the people of the delta by the ■construction of proper levees. Nothing in this act contained denies that freedom to contract in its fullest scope. Great complaint is made with respect to the provisions of the act as regards indemnifying bonds. The character of the sureties which shall appear upon such bonds, it is said, is determined
One of the sharpest criticisms of the act indulged in is that in section 3 it is provided that “said bonds shall be deposited as collateral security, and the treasurer of said board shall have the right, power, and authority to declare said bonds to be the property of said levee board immediately upon the failure or refusal of any bank or banks to pay any legally authorized warrant for any amount,” etc. But the very next clause, of the ■same sentence provides that said treasurer may then proceed under the direction and authority of the board of commission■ers to dispose of said bonds in such manner as the said board -of commissioners may see fit; but, manifestly, the whole clause, taken together, shows plainly that the treasurer was to declare them (the bonds) the property of the board for the purpose of collateral security, and for sale for that purpose as the commis■sioners of the board might see fit.
Much is said about this case creating the relation of debtor and creditor between the board and the banks which may be chosen as depositories, and about the severity of the penalties provided in the act, and as to the act creating such depositories officers when they are not eligible as electors, etc., and about the pro rata distribution of the funds provided for, etc., all of which criticisms fall far short, in our judgment, of establishing the unconstitutionality of the act. Indeed, if we should merely state the criticisms, ingeniously and most ably put, we would write an opinion unpardonable in length. It is enough to say that we have carefully considered each and every, one of them, and we fail entirely to see that the act is unconstitutional in any respect; nor do we think the act can be said to be void
The result is that we think the action of the court below was-correct, and the decree is affirmed.
'Affirmed.