Buck v. Vasser

47 Miss. 551 | Miss. | 1873

Tarbell, J.:

At the regular state election for this state, held in 1858, B. S. Buck was elected district attorney, for the third judicial district, for the term of four years from the first Monday of January, 1859. He was duly qualified, and entered, at the proper time, upon the duties of the office, which he held to 1862, when he was reelected for another term. His salary was $1,500 per annum, on which there is due him, and for which he holds the warrants of the auditor, as follows: Warrant No. 4198 for $375, dated April 17th, 1862; warrant No. 2207 for $375, dated October 11th, 1862; warrant No. 2786 for $375, dated January 19th, 1863; warrant No. 482 for $375, dated November 12th, 1863 ; total amount in arrears and claimed to be due, $1,500. On the 8th day of October, 1870, under sec. 2 of the law approved June 13th, 1870, entitled, “ An act to provide for the issuance of certificates of indebtedness of the state, and for other purposes,” Buck tendered to the state treasurer the aforesaid warrants, and demanded in exchange therefor certificates of indebtedness, issued in pursuance of said law last named. The treasurer refusing to comply with this demand, Buck applied by petition to the judge of the fifteenth judicial district, for a mandamus to compel the treasurer to make such exchange.

The answer of the treasurer is as follows:

He says, “ he ought not to be commanded to exchange certificates of indebtedness for the warrants mentioned in relator’s petition, because said warrants were issued in payment of a salary claimed by relator as an officer of the late illegal government temporarily set up in the state of Mississippi, in violation of the constitution of the United States and in rebellion against the government thereof; that said illegal government having been overthrown and abolished by the power of the United States, all its debts and obligations perished with it; that none of said debts and obligations have been inherited and assumed by the existing government of the state, and that, consequently, the warrants issued to relator, as aforesaid, are not ‘warrants issued by the auditor of public accounts of this state,’ within the purview and meaning of the ‘ act to provide for the issuance of certificates of indebtedness by the state, and for other purposes,’ apjaroved June 13th, 1870.” Upon the hearing, the court refused a peremptory mandamus, and dismissed the petition. From that judgment Buck prosecuted a writ of error, assigning for cause of reversal of the action of the circuit court, the refusal of a peremptory mandamus, and the dismissal of the petition therefor.

To the maintenance of the claim of the plaintiff in error there are insurmountable obstacles, both upon technical grounds and upon general principles.

1. As to the legal and technical difficulties.:

On the 25th day of October, 1865, there was approved a joint resolution of the legislature of this state, which resolution is in these words: “ Resolved, by the legislature of the state of Mississippi, that the auditor of public accounts be, and he is hereby, directed to issue no more warrants upon the treasurer for the payment of. money, until further orders.”

On the 31st day of October, 1865, another resolution of the legislature was approved, as follows: “ That the treasurer be, and he is hereby, ordered not to pay out any monies now remaining, or that may hereafter be received, in the treasury of the state, unless specially ordered by the legislature, until further orders.”

By an act, approved December 2,1865, it is provided: “ That the treasurer be and he is hereby authorized to pay all auditor’s warrants issued by authority of the legislature, and all appropriations passed at the present session; and also all salaries of state and district officers and other claims, accruing since the 16th day of October, 1865, out of any moneys in the treasury not otherwise appropriated.”

Another similar act was approved December 4, 1865, to this effect: “ That the auditor of public accounts be, and he is hereby, authorized to issue his warrants on the treasurer for all legal claims against the state, accruing from the 16th day of October, 1865.”

The evident purpose and effect of these resolutions and enactments were, to prohibit the issuance of warrants for and the payment of claims against the state, existing prior to October 16, 1865, on which day the legislature <ff that year assembled. So held in Swan v. Buck, 40 Miss. 268, wherein, Buck, the present petitioner, having prayed a writ of mandamus to compel the then auditor to issue warrants to him for his services as district attorney, from October, 1863, to May, 1865, it was held, that these resolutions and acts were valid and binding prohibitions upon the auditor and treasurer, as to claims anterior to the said 16 th October, 1865. The court say: “ It is plain that the two acts last named are based on the assumption that all authority to issue and pay warrants had been repealed, pid they restore that authority to the extent that it is intended to be afterwards exercised.” The conclusion of the court in that case is emphasized by reference to the impoverished condition of the country at the close of the war, and it is declared to have been the policy of the legislature of 1865, “ to attempt no more than the collection of a sufficient amount of revenue to defray the necessary current expenses of the government.” And it is added, that, “ in doing so, it seems difficult to deny that the legislature exercised its legitimate powers in a wise and beneficial manner.” This branch of that case is concluded by the observation that, “ it is for the legislature to make such provisions for the discharge ” * * of the * * * obligations that rest upon it, as they may deem wise and proper.” It is .insisted by the plaintiff in error, that the legislative power and discretion have been since exercised in the passage of the law approved June 13, 1870, by the second section of which, he claims, the state treasurer is authorized and required, upon his demand, to give him certificates of indebtedness in exchange for his warrants above described. That section two is as follows: “ That said certificates, when prepared upon such paper and with such devices as the auditor may determine upon, and signed as aforesaid, shall be numbered and registered tered in the office of the auditor of public accounts, and by him paid into the state treasury, upon the warrant of the auditor, as in the other cases of payment into the treasury, and shall be charged to the treasurer as other payments, and the treasurer shall enter said certificates as such assets, and shall exchange them, in all cases when practicable, for the warrants issued by the auditor of public accounts of this state.”

We do not think the view of the plaintiff in error to be within either the letter or spirit of this law, much less within its scope and intent. And, besides, until the judgment in the case of Swan v. Buck, supra, shall be overruled, the legislative intent to pay the debts or claims suspended by the resolutions and laws of 1865, must necessarily be expressed in direct and positive terms. Those resolutions and laws, the case of Swan v. Buck, and public history considered, it cannot be seriously contended that the law of 1870 was intended, or does, in fact, embrace the class of claims exhibited in the case at bar.

But further. In the L ws of 1865, p. 145, ch. 12, is a significant act referred to by the attorney-general, but probably overlooked by the plaintiff in error, as it is not referred to by him either in his petition or brief. Section two of that act is as follows : “ That the salary of any public officer, or the amount due any claimant or creditor of the state, shall be payable in the currency of the country when such salary, account or indebtedness occurred.” The language of this section is broad, general and peculiar, and seems to be fatal, of itself, to the “ claimant ” in the case at bar, in several respects. First, as a prohibition of the payment of this class of claims, excej>t in the currency of the country “ when ” such claim accrued. And, secondly, it declares, in effect, the policy of the restored government to be opposed to the assumption of the liabilities .of,the insurrectionary assemblages. This! law is fairly retributive in its justice, and indicates the sentiments and' uncertainties of 1865, as well as a disposition on the part of the representatives of the people to do the best they could under the circumstances, which was to pay claims like the one at bar in the currency the parties had helped to create.

2. The principle involved. As between citizens, in cases arising during or growing out of the war, we have endeavored to do exact justice. And we adhere to the rules stated in these cases, and to the doctrines of the supreme court of the United States, as we understand them, as affording a wise and almost inspired solution of unusual problems. We are now asked to award the payment by the present state government of a debt due from the revolutionary organization to one of its officials. This is without precedent, and, in our view, unauthorized by prior decisions of this court, or of the federal court. To sustain the claim of the plaintiff in error, it would be necessary to adopt, as to the status of the state during the rebellion, the theory of the cases of Buck v. Swan, 40 Miss. 268 ; Hill v. Boyland, ib. 618 ; Harlan v. the State, 41 ib. 566 ; and to take a step unwarranted by any proper logical deductions from our own or the adjudications of the U. S. supreme court. We should regard this advance upon our former decisions as fraught with dangerous and fatal consequences ; while, at the same time, we do not, as we have not heretofore done, give our assent to what we regard the extreme views of the courts of some of the states in this class of cases. As indicating the general views and policy of this court upon a particular subject, reference is made to Thomas v. Taylor, 42 Miss. 461 ; Buchanan v. Smith, 43 ib. 90 ; Miss. C. R. R. Co. v. the State, 46 ib., and the authorities and reasons on which they are based. Between the conclusions stated therein, and the deductions necessary to a basis for the proposition of the plaintiff in error, there is a wide distinction, which we are not at liberty, nor willing, to disregard.

Of course, the petitioner, upon his election in 1858, subscribed the usual oath of office to the government then in existence, and in the progress of events gave in his allegiance to the insurrectionary movement, and took the oath of office prescribed thereby. For his salary while in the service of that illegal undertaking, he must look to the “ unlawful combination of rebellious persons usurping the functions of government, and forcibly controlling the people.” Loss of salary in such service is one of the trifling penalties attached to the “ unlawful combination.”

The judgment is affirmed, and the petition dismissed.