163 So. 451 | Miss. | 1935
Coahoma county filed suit against Rush H. Knox, the former Attorney General of Mississippi, to recover an allowance of two thousand dollars made by the board of supervisors for the purpose of employing an attorney to represent the county in the suit of W.F. Bond et al. v. Joe Tij Fung et al.,
Upon this order a warrant was issued payable to Rush H. Knox, reading as follows: "State of Mississippi, Coahoma county. No. 9046. Depository of said County, Board of Supervisors, March 7, 1927, term. Pay to Rush H. Knox, Atty. General, or order, two thousand and no one-hundredths Dollars allowed him by the Board of Supervisors out of the General County Fund, to defray exp. in case Supreme Court U.S. Joe Tig et al. Given under my hand and seal of office this day, Mar. 7, 1927. Claim no. order Minute Book 6, page 375. Y.E. Howell, Chancert Ct. clerk and Board of Supervisors. Payable Planters National Bank."
The suit mentioned in the order allowing two thousand dollars was a proceeding by a Chinese citizen to compel his admission into the white schools of Coahoma county. The county, as such, was not formally made a party defendant to the suit, but the state and county superintendents of education and the trustees of the particular schools in Coahoma county were made defendants to such suit.
The attorney-general, through an assistant then in his office, appeared in the circuit court and represented the trustees and the superintendents of education. There was a judgment in favor of Joe Tij Fung commanding the trustees to receive him in the public schools. From this judgment, an appeal was taken to the Supreme Court of this state, where the judgment was reversed and the admission of the Chinese student into the white schools was refused, from which an appeal was prosecuted to the Supreme Court of the United States. In the meantime, the Assistant Attorney General who first appeared had resigned, but was induced by the Attorney General to remain as counsel in the case; the Attorney General agreeing to see that said attorney specially employed *794 was paid a fee for his services, and that the expenses incident to the suit were also paid. The Attorney General appeared before the board of supervisors and requested that they employ an attorney to represent the county in said suit, as he had no funds with which to employ attorneys in the United States Supreme Court, and an order was made in pursuance of this understanding, and it was left to the Attorney General to select an attorney to represent Coahoma county in this litigation.
The defendant in the court below testified that he asked the board to make the selection of an attorney to represent them, but the board preferred to leave it to him to make the selection of such attorney.
It appears from the order that the money was allowed for the purpose of paying the expenses, including attorneys' fees, other than the Attorney General, in connection with said cause, in the Supreme Court of Mississippi and of the United States. The warrant was issued by the board of supervisors, collected, and paid over to E.C. Sharpe, the special attorney who had appeared in the suit as Assistant Attorney General, and the attorney-general received no part of said sum, and the warrant was issued and paid to said E.C. Sharpe with the understanding that no part of it would go to the Attorney General.
The court below denied the county's right to recover, and from that judgment this appeal is prosecuted.
There was a plea of the general issue in the court below, with notice thereunder setting up substantially what is stated above.
It is first insisted by the appellant that the county was not interested in the controversy, and had no authority to allow attorney's fees, and that it was the duty of the Attorney General to represent the public interests.
The public policy of the state and the counties is that there shall be separate schools maintained for the children of the white and colored races and this is provided for in section 207 of the state constitution, and also by *795 statutes to carry out the policy of the constitution, which is well calculated to promote peace and good order in the schools.
By section 263 of the constitution of Mississippi, marriage between a white person and a negro, or mulatto, or a person having one-eighth or more of negro blood, is prohibited. By section 2361, Code 1930, a marriage between a white person and a Mongolian, or a person having one-eighth or more of Mongolian blood, is prohibited, and is unlawful and void.
We think it is within the power of the state to enact such a policy and to make it effective, and that one of the means of making same effective is to segregate the races in the public schools so that there will be but small contract between them.
The law has provided for equal, but separate, accommodation for the races in schools and in other public places thus carrying out the policy of segregation which has been deemed wise and necessary for the peace and harmony of the state.
We do not think the interest of the county to employ counsel in suits is limited to a pecuniary interest, but that it is to the interest of the county to maintain the peace and harmony of its inhabitants.
By section 214, Code 1930, the board of supervisors of a county has jurisdiction over various matters, and may levy taxes to meet the demands therefor; and the county, being under the duty to provide separate schools and to carry out the public policy of the segregation of the races in the schools, thus had a pecuniary interest in the subject-matter, because if the Chinese citizen should be adjudged not to be a member of the colored race it might be necessary, and would be if the policy was carried out, to build a special school for Chinese citizens.
In the suit mentioned in the order of the board of supervisors, and in a similar suit from another county, *796 Chinese were held, by this court, to be members of the colored race. That question had not been theretofore passed upon in this state, and the treaty obligations involved in the litigation might have affected the county's rights had the suit not been properly defended. In Mississippi, the question as it affects the Chinese is somewhat local, in that many of the counties do not have such citizens within their boundaries.
We are therefore of the opinion that Coahoma county had such an interest as to warrant it in employing counsel to defend the suit in its behalf.
By section 271, Code 1930, a suit may be brought in the name of the county where only a part of the county, or of its inhabitants, are concerned, and where there is a public right of such part to be vindicated.
We think this section is applicable to this litigation by the board of supervisors.
It is next contended that the order of the board of supervisors was void and the allowance illegal because the section of the statute was not cited in the order authorizing the allowance under section 255, Code 1930.
It is true this section requires the board of supervisors to cite the section under which the allowance is made, and where it is not done no course of proceedings on the order can be instituted to compel the allowance or to sue the county in default of payment.
In Beck v. Allen,
We think this case comes squarely within the principles announced in Okolona v. Chickasaw County, supra, and the judgment of the court below will therefore be affirmed.
Affirmed. *799