104 So. 459 | Miss. | 1925
Lead Opinion
The board of supervisors made an allowance to the chancery clerk of Panola county for said services for each district under the authority of section 2206. From that order Foster Dugger, a taxpayer of the county, appealed to the circuit court, and that court upheld the order of the board of supervisors, allowing compensation for each judicial district, and from the judgment of the circuit court against him the taxpayer appeals here. *559 The only question presented by this appeal is: Was section 2206, Code of 1906 (Hemingway's Code, section 1891) repealed by chapter 102, Laws of 1916, or subsequent enactments on the same subject, and especially by chapter 206, Laws of 1924?
In the case of State Revenue Agent v. Brame,
There is no express repeal of this section by chapter 102, Laws of 1916, or any subsequent enactment on the same subject and if section 2206 has been repealed by the legislature, it is a repeal by implication.
Section 348, Code of 1906 (Hemingway's Code, section 3721), provides: "The clerk, as county auditor, shall receive a salary, to be annually fixed by the board of supervisors, payable at the end of each year," etc.
In 1916 the legislature changed the compensation of county officials to straight salaries which were to be paid in full compensation for the services of the several officers, and it is argued by the appellant that this change effected the repeal of section 2206, Code of 1906, and, as we have before said, its repeal is effected by implication, because the salary named in the act was to be full compensation for the services. But this position excludes section 8 of said chapter, which shows that the salary to be paid to the county officials named in the act was to be based on the total of fees, commissions, and other emoluments which the law then provided as the basis of compensation for said officials.
Section 8, chapter 102, Laws of 1916, is as follows: "Allfees and all commissions and other emoluments which the law now provides may be demanded, received, and taken by the sheriff and tax collector, chancery clerk and circuit clerk, and the tax assessed shall hereafter be collected by each, respectively; but all said commissions, fees and emoluments shall hereafter be paid by the said *560 officers, respectively, into the county treasury. Each of these payments shall be paid into the county treasury by the twentieth day of each calendar month, and shall be each accompanied by an affidavit of each of said officers averring that he has turned into said county treasury all fees and commissions which he has actually collected in the preceding calendar month, and which the law now requires him to collect, or that it may be lawful for him to demand, receive, collect and take, and that he has collected all such fees and commissions as were reasonably possible of collection in the preceding month." (Italics ours.)
Then follows the requirement that an accurate account be kept by each of the four officers named of all fees and commissions which the law now requires him to collect, or that it may be lawful for him to demand, receive, collect, and take. Act approved April 3, 1916.
On the same day that this salary law was enacted, the legislature validated the allowances and payments theretofore made by the board of supervisors to chancery clerks in counties having two judicial districts as shown by chapter 145, Laws of 1916.
The use of the language in section 8, chapter 102, Laws of 1916, "all fees and all commissions and other emoluments," makes it certain that the legislature intended no change in the fees, commissions, and salaries of these officials, and expected them to be collected and turned into the county treasury; and, further, the language in connection with the quoted language, "demand, receive, collect and take," negatives any idea of the repeal of section 2206, but rather than a repeal of it is a re-enactment, because the word "emolument" can be accounted for in this section so far as the office of the chancery clerk is concerned only as allowance to him for his compensation for services as county auditor.
The clear object of the legislature was to keep an account of all fees, all salaries, all commissions, and all emoluments of said officers in order, first that no county would be burdened with more than the amount of these *561 collections, while counties where these fees amounted to what would be considered an exorbitant amount would not pay more than the maximum amount of salary fixed in the act; second, that the legislature in the future might have a basis upon which to calculate the salaries of the several officers.
Section 7 of act, supra, specifically excepts from this accounting the allowance made for special deputies or extra deputies during court terms, and section 7 further shows that it was the purpose of the legislature to pay the salaries of such officers within the limits prescribed out of the fees, commissions, and emoluments lawfully received by the said officers, respectively, for the preceding month, and further shows that the collections theretofore lawfully made by the officers should be accounted for to the county. The exception of special deputies mentioned above shows that the other court allowances were to be accounted for in fixing the salary of the officer named.
The purpose of the law was to require that all fees, emoluments, and commissions theretofore, provided for should be accounted for by the chancery clerk, and as certainly embraced section 2206 as it did the sections containing the itemized fee bill. It cannot be said that fees and commissions mean the same thing as emoluments. The itemized fee bill was not re-enacted or brought forward in the chapter, and, if section 2206 is repealed by implication, the entire list of fees provided for in the Code of 1906 are also repealed by implication. The legislature used the words, "in full compensation for his services," in connection with the continued existence of section 2206.
We have repeatedly held that the law does not favor repeals by implication, and in this case to hold that this section was repealed by implication would be to destroy the basis of the system planned by the legislature.
Section 2206 is a special chapter or an exception to the general rule. Most of the counties in Mississippi do not have two judicial districts. The well-recognized rule is *562 that, where lawmakers have enacted special statutes to fit a particular case, they will not be presumed to intend to repeal said special statute by the subsequent enactment of general statutes on the same subject-matter.
It may be argued that it would be idle for the clerk to collect his per diem allowance for attending court or as salary as auditor and pay it back into the treasury. Whether it is idle or not, the word "emolument" covers it, and the reason is apparent that the legislature desired to put limits upon the salaries of some officials, while on others they did not wish to reduce the compensation where the officers were not thought to have been overpaid. The language that all emoluments shall be accounted for is not ambiguous. It is plain. It is clear that at the date of this enactment the compensation of the county auditor was an emolument of the office of chancery clerk. The effort of the legislature was to regulate the inequality thought to have existed in the salaries of these several officers prior to 1916. There is no repeal by implication in said chapter, and there is no conflict, but absolute harmony.
Section 34, chapter 122, Laws of 1920, which chapter is an amendment of the Laws of 1916, supra, provides for the payment of these officers of the difference where the fees, commissions, and emoluments were less than the maximum salary, showing that the legislature intended and construed the law as to all fees, salaries, commissions, and emoluments in force prior to 1916 as still in force. In chapter 122, Laws of 1920, there is no general repealing clause of all acts in conflict therewith. "The word `emolument' is more comprehensive than `salary,' and includes the meaning of `gain,' `profit,' `compensation,' etc." See 2 Words
Phrases, Second Series, p. 259, citing Scharrenbroich v. Lewis Clarke County,
In so far as chapter 122, Laws of 1920, is concerned, there is no repeal by implication, as these officers were *563 still entitled to receive emoluments and pay them back to the county, and while this procedure entailed some bookkeeping, when we consider the section above quoted (section 8, chapter 102, Laws of 1916), provided the amount paid the officers under the salary law was based upon fees, commissions, and emoluments, which amount might be less than the maximum amount of salary fixed by the salary law, we see clearly that the intention of the legislature was to base the salary upon all of the emoluments of the officers. It was not a vain and useless thing, but involved the living of these officers.
Section 2, chapter 206, Laws of 1924, provided that such officers, including chancery clerks, "shall be paid exclusively from such fees, commissions and salaries as herein provided, for all services rendered by them in the performance of all duties required by law to be performed by said officers," and does not undertake to repeal section 2206, Code of 1906 (Hemingway's Code, section 1891) expressly or by implication. Indeed, it does not deal with that section, but is dealing with the general law, and does not deal with the exceptions. It was dealing with the majority of the counties of Mississippi not having two judicial districts, was a general law, not dealing with a special law or the exception of the few counties having two judicial districts.
It was not the trend of the legislative mind to reduce any salaries below the maximum named in the several acts. An examination of the statutes shows that the duties of the chancery clerks have been largely increased; the necessity for constant attendance upon the duties of the office has been increased, and it would charge the legislature with injustice to say that it intended in this one case a reduction, as against the general legislative policy on the other hand. Indeed, the record in this case shows that this county in the instant case has twelve county depositories, must keep a separate account of all the various funds, roads, schools, and other public improvements, with each of the twelve depositories. Bond issues have been multiplied, and in counties having two *564 judicial districts the work of a chancery clerk since the enactment of section 2206, Code of 1906, has been doubled, and a very much higher standard of efficiency is required to discharge the duties of the office as intended by the legislature.
An additional reason for saying that there is no repeal by implication intended by section 2, chapter 206, Laws of 1924, quoted above, is that by the Laws of 1922, chapter 160, the legislature shows its intention to re-enact the entire fee system as to compensation of these county officials as it had existed prior to 1916. And in 1924, there being grave doubt as to the constitutionality of chapter 160, Laws of 1922, the legislature was undertaking to make certain the repeal of the salary law and to put in operation the fee system. In other words, the legislature tried to go back to the law as it existed under the Code of 1906, and its intention was to place the officers instatu quo, and chapter 206, Laws of 1924, clearly expressed the intention to legalize and validate the infirmities, if any there were, which existed in chapter 160, Laws of 1922. So that the language used is no more exclusive in its general terms as applying to all counties than is the language used in section 348, Code of 1906. Chapter 206, Laws of 1924, was not dealing with section 2206, Code of 1906, is not repugnant thereto, and there is no repeal by implication in the above language. There was no intention on the part of the legislature to interfere with the rule in vogue as to two judicial districts.
The validating act passed in 1916 referred to above shows that the legislature did not regard this section as repealed, and passed it because the validity of payments under this act had been questioned. Thereafter in October the supreme court set this question at rest.
In further support of this view, the title of chapter 206, Laws of 1924, is as follows: "An act to ratify, validate and confirm the action of certain county officers in collecting and retaining as compensation for their services and fees fixed by law for such officers, prior to January 1, 1916, which fees were collected and retained in compliance *565 with the provisions of chapter 160 of the Laws of 1922; and providing for and fixing the compensation of sheriffs and tax collectors, chancery clerks and their deputies, and circuit clerks and their deputies."
Section 2, chapter 206, Laws of 1924, uses the word "exclusively" with reference to the fees, commissions, and salaries provided for by general law, and did not apply to the exception or special law, section 2206, Code of 1906, and the word was intended to be applied to the payment of fees in the accomplishment of the repeal of the salary law in toto. The question had been raised as to the validity of chapter 160, Laws of 1922, and as to whether or not the salary law had been repealed thereby, and the legislature undertook to remove any constitutional or other objection to the repeal of the salary law, and to emphasize the readoption of the fee system in toto, and the emphatic language is clearly applicable to the laws which the legislature desired to repeal and which it then had under consideration, and was not addressed to a statute which was not under consideration and which was in harmony with the 1924 fee law, as it had been in harmony and consonance with the fee law existing prior to January 1, 1916.
The chancery clerk is the most important county fiscal officer, and with increased duties it is not at all probable that the legislature had in mind any change in the matter of these officers' compensation, at least it does not so appear from the language used.
The rule applying here as to the construction of this statute is announced in Richards v. Patterson,
We do not think it clearly appears that the legislature intended by implication to repeal section 2206, Code of *566 1906 (Hemingway's Code, section 1891), and, the circuit court having so held, this case is affirmed.
Affirmed.
Dissenting Opinion
I regret that I am unable to agree with the majority opinion in this case, and nothing but a conviction that the decision is entirely wrong would induce me to dissent in a case of this character.
I think it would be a wise thing for the legislature to restore section 2206, Code of 1906 (Hemingway's Code, section 1891), but I think this section has been clearly repealed by subsequent acts of the legislature, beginning with chapter 102, Laws of 1916, down to and including chapter 206, Laws of 1924. The provisions of the several statutes will be referred to in this dissent.
It is manifest from a reading of the provisions of chapter 102, Laws of 1916, that the legislature intended to repeal the right of county officers to charge fees as had theretofore existed, and it is absurd to my mind to say that the legislature contemplated that funds would be taken out of the county treasury by an appropriation under section 2206, Code of 1906 (Hemingway's Code, section 1891), and warrant issued to the chancery clerk or other officer and by him collected and paid back to the county treasury, all of which would entail time, labor, and bookkeeping for no purpose whatever. Chapter 102, Laws of 1916, provides for the salaries of different county officers in the different classes of counties and for deputies, giving the board of supervisors the right to fix the number of deputies and their compensation under certain conditions and limitations, Section 4, chapter 102, Laws of 1916, provides: "That in the counties in this state in which there are two judicial districts, the board of supervisors may allow another deputy for the chancery clerk and another deputy for the circuit clerk, to the number hereinbefore allowed in each of the classes." *567
Section 7 of said chapter 102, Laws of 1916, provides that: "In no case whatever shall the sheriff and tax collector and his deputies, the chancery clerk and his deputies, the circuit clerk and his deputies, the tax assessor and his deputies, respectively, be paid by the board of supervisors a salary for any year which shall exceed in the case of any of said officers and their deputies the amount in fees and commissions collected by each of said officers, respectively, and their deputies, respectively, and paid by each of said officers, respectively, into the county treasury for such year; but this provision shall not apply as to the allowances made for special or extra deputies during court terms, as provided for under subdivisions (d) of section 2 of this act."
And it further provides that: "If in any one month the amount of fees and commissions paid into the county treasury by said officers, respectively, shall not equal the amount of such officers' or the deputies' salaries, then the amounts of such monthly salaries may be paid by the board of supervisors out of the county treasury, after being duly audited and allowed according to law, out of any fees and commissions which any of said officers, respectively, may have paid into the county treasury in any preceding month of the same year the purpose and intent of this act being to require each of said officers and deputies, respectively, to receive his salary out of the fees and commissions paid by each of said officers, respectively, into the county treasury," etc.
It is true that by section 8 of the act (chapter 102, Laws of 1916) the legislature provided that: "All fees and all commissions and other emoluments which the law now provides may be demanded, received and taken by the sheriff and tax collector, chancery clerk and circuit clerk," etc.
But it was not the intention of this section to permit such officers to receive allowances from the county treasury, but was merely to provide for the collection of fees from the public for the services which the public had theretofore paid fees to go into the county treasury for *568 the purpose of making a fund. This, I think, is clear from a reading of all of the provisions of the act together. Of course, the legislature was mistaken about the amount of fees collected by these officers under the fee system, and expected to receive more money for the county than the county paid out to the county officers from these private sources, so that these public officers would be paid by the individuals who had worked for them to do, and who had formerly paid fees direct to the county officers. It so happened that the law after being tried out was a disappointment to its friends. Section 9, chapter 102, Laws of 1916, expressly repealed all laws and parts of laws in conflict with the statute.
This law was amended, or rather it was repealed, by chapter 122, Laws of 1920, which covered the full subject of the compensation of county officers. Chapter 122, Laws of 1920, divided the counties into classes and fixed the salaries of the respective officers according to the classification in the act, giving, however, some fees to the officers which had not been allowed them under the preceding law. In section 20, chapter 122, Laws of 1920, provision was made for deputies in counties having two districts, and increasing the salaries of sheriffs, chancery clerk, circuit clerk, and the superintendent of education in such counties that had two judicial districts, and also the salaries of the members of the board of supervisors.
In 1922, the legislature made an abortive attempt to re-enact the fees existing prior to the passage of chapter 102, Laws of 1916, but the first section of the act was palpably void under section 61 of the Constitution of 1890, prohibiting any laws being revived or re-enacted by reference, and requiring the provisions to be fully and completely set out in the law. Section 2, chapter 160, Laws of 1922, provided for the compensation of the tax collector, but the act did not make general provision for the compensation of the chancery and circuit clerks. In section 3, chapter 160, Laws of 1922, it is provided that: "The clerks of the chancery and circuit court shall begin *569 to receive the fees fixed by section 2 in full compensation for their services from and after the first day of the calendar month next succeeding the passage and approval of this act," etc.
Section 2 of this act contained no provisions for any fees to such chancery and circuit clerks at all. Section 3 of the act further provided:
"The sheriffs and tax collectors shall begin to receive the fees in full compensation for their services as fixed by section 2 of this act, December 1, 1922, the salaries of the sheriffs and tax collectors and the deputies of sheriffs and tax collectors shall continue as fixed by chapter 122 of the acts of 1920 until the first day of December, 1922. All of the provisions of chapter 122 of the acts of 1920 applying to sheriffs and tax collectors and their deputies and their compensation for services rendered, and as to the application and disposition of all fees and commissions collected by sheriffs and tax collectors are hereby continued in force until December 1, 1922," etc.
The act made special provision for additional fees for the sheriff for certain services not necessary to be set out here. Section 6 of the act (chapter 160, Laws of 1922) made specific provisions for the salary of chancery clerks as county auditors ranging from not exceeding four hundred dollars per annum to not exceeding two thousand dollars per annum, according to the assessed valuation of the property in the county. This act (chapter 160, Laws of 1922), in section 7 thereof, expressly repealed chapter 102, Laws of 1916, and chapter 122, Laws of 1920, and all other acts in conflict with that act.
A serious question has arisen as to the constitutionality of the first section of chapter 160, Laws of 1922, on account of the failure of the legislature to set out the fees intended to be restored as required by section 61 of the Constitution. The legislature of 1924 passed a curative act to ratify and validate the acts of the officers in receiving and using the fees provided for in chapter 160, Laws of 1922. This special act is section 1, chapter 206, Laws of 1924. *570
Section 2, chapter 206, Laws of 1924, provided: "That the sheriffs and tax collectors, chancery clerks and circuit clerks, and the deputies of said officers, of the several counties of the state of Mississippi, shall receive as compensation for their services rendered in the performance of their duties as imposed by law upon such officers, the following fees, commissions and salaries, and such officers shall be paid exclusively from suchfees, commissions and salaries as herein provided, for allservices rendered by them in the performance of all dutiesrequired by law to be performed by said officers," etc. Italics ours.)
It looks to me like it is too plain for doubt that this part of the section clearly cuts the officers off from any additional compensation for any duty required of them to be performed by said law; the chancery clerks and other officers named have fixed fees specifically set out in the act. These specific fees are increased in many cases over the fees allowed prior to the enactment of the salary law of 1916. The salary of the chancery clerk as county auditor is specifically named in the act, and the amounts graded according to the assessed valuation of the property in the several counties. The amounts allowed the county auditor are considerably higher than the amounts allowed in section 348, Code of 1906 (Hemingway's Code, section 3721). The maximum amount under the Code of 1906 was five hundred dollars. Under the Law of 1924, the maximum amount is two thousand dollars. Under the Code of 1906, the minimum amount was one hundred dollars, whereas, under the Law of 1922 and under the Law of 1924, it was four hundred dollars.
So it will be seen that the legislature under the last acts was completely covering the subject-matter.
This act (chapter 206, Laws of 1924) did not specifically follow the schedule of fees existing prior to 1916, and it is impossible to believe that the legislature was trying to reinstate the law prior to 1916 in the act of 1924, but the legislature was amending the law to conform to its idea of the conditions then existing and what *571 was a reasonable compensation for the services to be performed under conditions then existing. It is probably true that the legislature fixed the salaries at less than a fair compensation in some of the counties under conditions said now to exist, but this is a question entirely for the legislature. The courts have nothing to do with the question, and are not authorized to raise salaries by construction to bring about a remedy for a real or imaginary evil. Every county has at least one representative in the legislature. Such representative is supposed to be cognizant of the conditions in his county, and the legislature is supposed to have a more intimate knowledge of conditions throughout the state with reference to such conditions than the courts.
The rule is well settled in this state that: "A statute existing may be repealed without being specifically and directly referred to, where the legislature enacts a new statute covering the field covered by the former act, although there is some difference in the provisions of the two statutes." State v.Wyoming Manufacturing Co.
In the Wyoming Manufacturing Co. case, supra, the court further held: "In the case of Meyers v. Marshall County,
"In M. O.R. Co. v. Weiner,
"In Vicksburg v. Sun Mutual Insurance Co.,
"In Clay County v. Chickasaw County,
"When we consider the rules herein announced and apply them to the statutes involved in this controversy, we are driven to the conclusion that the legislature was dealing with the whole subject of the filing, notice, correction, objections, and approval of the assessment roll. It is true the new act gives less time to the taxpayer to examine the rolls than the former acts. But, as the board of supervisors has made the preliminary changes and corrections which it deemed necessary to make, the taxpayer has ample time before the August meeting to advise himself as to how his property will be affected."
I think, therefore, that it is perfectly clear that the legislature prescribed the only compensation it intended, and that it did not intend to re-enact section 2206, Code of 1906 (Hemingway's Code, section 1891), I think that it is too clear for doubt that said section was repealed by the salary law, but, if not repealed by that law, it is certainly repealed by the last act (chapter 206, Laws of 1924), which undertook to set out specifically what fees the chancery clerks and county auditors would receive, and, regrettable as it is to so hold, I see no way to avoid this conclusion. I am aware of the fact that the duties of the chancery clerks and of the county auditors have been greatly increased by statutes during the past few years providing for county depositories and for different school and road districts and other taxing districts, requiring a great deal of bookkeeping and a greatly increased amount of clerical work.
For the reasons above indicated, I think the judgment should be reversed.
ANDERSON, J., concurs in this dissent. *574