GAME AND FISH COMMISSION of the State of Mississippi v. C.E. MARLAR.
No. 44709.
Supreme Court of Mississippi.
January 22, 1968.
Suggestion of Error Overruled February 5, 1968.
206 So. 2d 628
Cecil Sumners, J.O. Clark, Iuka, Donald Franks, Booneville, James P. Dean, Corinth, for appellee.
PER CURIAM.
Affirmed.
RODGERS, Justice:
This Court affirmed the decree of the Chancery Court of Tishomingo County, and that court held that the Governor and the State Game and Fish Commission, acting under authority of
Now, however, the Game and Fish Commission contends that the chancery court could not order the Mississippi Game and Fish Commission to pay the salary of the game warden supervisor because it is said, the statute provides that, before any part of the funds appropriated shall be expended in satisfaction of any judgment, there first shall have been a judicial determination that the surety bonds of the members or officers of the Game and Fish Commission are not available for satisfaction of such judgment. We do not agree with this contention, because the statute expressly exempts from the funds appropriated and authorized to be expended, which are available and subject to judgment, the “salary of game wardens, area management personnel and law enforcement officers.” Any other funds appropriated are available to pay judgments rendered against the Game and Fish Commission, provided the trial court first determines that the surety bonds of the members or officers of the Game and Fish Commission are not liable to the satisfaction of such judgment.1
The legislature clearly intended that the salaries of the game wardens and management personnel would not, in any event, be subject to a judgment. The Game and Fish Commission could not operate if the funds appropriated by the legislature for the salaries of the officers of this administrative agency were subject to judgments generally had against the Game and Fish Commission. The money appropriated for the salary of the appellee, game warden supervisor, should have been paid to him; the court was correct in so holding.
It is next suggested that this Court explain to the Commission “what constitutes and what does not constitute sufficient cause” to discharge a game warden, because, it is said: “[T]he Commission, in the performance of its duties does not want to pass on to the Governor for hearing any more cases for discharge unless it has some more tangible criteria on which
In Cannada v. Marler, 185 So. 2d 649 (Miss. 1966) and Cannada v. Byrd, 185 So. 2d 919 (Miss. 1966) we held that
The courts do not interfere with the activity and policy decisions of a state agency so long as the agency acts within a statute authorized by the Constitution, but in so doing the agency must act within the law under which it is authorized to act and must not act capriciously, unreasonably, arbitrarily, and must not abuse its discretion. 2 Am.Jur.2d Administrative Law § 556 (1962). On appeal the activity and decisions of a state agency will not be tried anew,2 but the courts are required to determine whether or not the state agency has acted within the scope of the law. County Board of Education v. Parents and Custodians of Students, 251 Miss. 195, 168 So. 2d 814 (1964).
It has been pointed out by the textwriter in 2 Am.Jur.2d Administrative Law § 452 (1962) that:
“The mere holding of a hearing does not justify administrative action required to be based upon a hearing. The decision of the trier of the facts must be reached in accordance with the facts proved, and the decision and any required findings must find adequate support in the evidence, formally introduced at the hearing, or known to the parties in all essential elements. This is true even though a statute provides that findings of fact shall be conclusive. * * *
“Where a hearing or finding is required, a finding or decision without support in the evidence is beyond the power and jurisdiction of administrative agencies. It is contrary to law and void; arbitrary, capricious, unreasonable, or an abuse of discretion; and may constitute a denial of due process of law. Also, an order based upon a finding which is contrary to the indisputable character of the evidence is void.”
Although an administrative agency may act upon information obtained by its own investigation, nevertheless, where a hearing is required by law, administrative adjudication must be based upon evidence introduced at the hearing and not upon the secret knowledge of the agency, and a lack of evidence at the hearing cannot be aided by undisclosed facts known to the administrative agency but not shown of record. 2 Am.Jur.2d Administrative Law § 386 (1962).
We have reviewed the record and proceedings held before the Governor in the instant case, and there is no substantial evidence on which to sustain the charge of breach of duty on the part of the appellee, game warden supervisor. The most that can be said from the record is that somebody sold game fish within his district. There is no evidence connecting him with this activity. As a matter of fact, the record shows that the appellee had been active in the performance of his duties in enforcing the law. There is nothing in the record to show just cause to discharge the appellee, and an order discharging him for
We are convinced that the decree of the chancery court was proper, and for that reason we affirmed the case, and now having again reviewed the record, we are convinced that the suggestion of error should be, and it is, hereby overruled.
Suggestion of error overruled.
All Justices concur.