Miller v. Walley

84 So. 466 | Miss. | 1920

Lead Opinion

Ethridge, J.,

delivered the opinion of the court.

This is a mandamus suit brought to compel the auditor to issue his warrant in payment of an amount approved by the trustees of the State Charity Hospital, under the theory that House Bill No. 122 of the last legislature became a law.

Section 1 of this act reads as follows:

“Be it enacted by the legislature of the state of Mississippi, that the sum of forty-five thousand dollars ($15,000) for the year 1920 and a like amount for’ 1921, be, and the same is hereby appropriated out of any money in the state treasury not otherwise appropriated, for the support and maintenance of the State Charity Hospital at Jackson, Mississippi: Provided, that this hospital shall be used only for charity patients: Provided further, that the superintendent shall devote his entire time to the duties of his office.”

This bill, having passed the House and Senate, reached the Governor on the 2d day of April, 1920, and the Governor indorsed on the said bill'the following:

“Approved by the Governor April 3, 19¡20¡, except the last sentence in section 1 which reads as follows: ‘Provided further, that the superintendent shall devote his entire time to the duties of his office. ’ Section 69 of the Constitution of the state of Mississippi forbids ingrafting legislation on appropriation bills and the above clause attempts to do this and said last sentence quoted above is hereby specifically vetoed and disapproved. All the remaining parts of this bill are approved. I have no desire to interfere with the policy of the legislature if it shall see proper to require of the superintendent full time but this veto, above expressed, in this' feature of the bill is biased solely upon constitutional grounds.”

The legislature adjourned on the same day.

The auditor refused to issue a warrant under the advice of the Attorney-General, and this action was instituted to compel him to do so, and the circuit court directed the writ should issue, from which judgment appeal was prosecuted here. The circuit court delivered a written opinion holding that the proviso in the act that the superintendent should devote his entire time to the duties of his office did not add anything to and was not different from the law before in force in section 267 of the state Constitution, which reads as follows:

“No person elected or appointed to any office or employment of profit under the laws of this state, or by. virtue of any ordinance of anly municipality of this state, shall hold such office or employment without personally devoting his time to the performance of -the duties thereof.”

The learned circuit judge said:: ‘ ‘ The only difference in the constitutional provision and the clause of the act of 1920 disapproved is the word ‘entire,’ making the act read, ‘shall devote his entire time to the duties of his office.’ Rigidly construed, a performance of such clause is impossible. No officer could survive without time to. eat, sleep, and take necessary recreation. Fairly and reasonably construed, the constitutional provision is as broad as the attempted legislation.”

The appellees here rest their case upon the correctness of the .proposition that the provision in the act requiring the superintendent to devote his entire time added nothing to the law, and the case of Fairley v. Western Union Telegraph Co., 731 Miss. 6, 18 So. 796, is relied upon by the appellee, while the appellant contends that the present case is controlled by the case of State v. Holder, 76 Miss. 158, 23 So. 643. In the Fairley Case Judge Woods, speaking for the court, in construing section 267 of the Constitution, after discussion, said:

“If the public duties of an office require all the time of the public servant, then the whole time must be givén. If all the time of the officer be not required for the complete and faithful execution of his trust, then he shall give such time and devote such service as shall suffice for the full and faithful discharge of the duties of his office. ’ ’

In that case the contention was made that Fairley, who was plaintiff, was not entitled to recover in damages for the loss occasioned him as a physician by failure to receive the message and the consequent loss of employment and physician’s fees he would have earned had the message been delivered, but the court held that he was not precluded from rendering medical service by reason of his employment as superintendent of the Institute for the Blind during a period of vacation when the pupils had returned to their several homes. The decision does not hold that the entire time of the superintendent was to be devoted to the public office, but holds that only such time as the duties of the office required for a proper performance must be devoted to the duties of the office. This necessarily presents a latitude for differences and debate as to what time is required as a matter of fact.

In 1910 the legislature passed the County Depository La.w and took from the county treasurer the performance of certain duties and reduced his compensation to three hundred dollars per annum where a county depository was maintained. This act was challenged as being unconstitutional for several reasons, and among others, that it violated section 267 of the Constitution, but in two cases, Magee v. Brister, 109 Miss. 183, 68 So. 77, and Fidelity & Deposit Co. v. Wilkinson County, 109 Miss. 379, 69 So. 865, this court held that the act did not violate this section of the Constitution. Manifestly, if the officer must devote his whole time to the duties of his office, three hundred dollars per annum would have been an unreasonable salary for such service and time as would have been required.

We think the word “entire” in the statute means something and imposed upon the superintendent obligations of greater extent than were imposed on him before, and that the legislature had a right to require the full time of an officer or superintendent of one of its institutions, and at least, the statute was intended to remove from the field of disputation the amount of time that was necessary for the superintendent of the State Charity Hospital to devote to the duties of that position.

The word “entire” is defined in 15 Cyc. 1054, as meaning: “Undivided, unmingled, complete in all its parts; whole; not participated in with others.”

11 Amer. & Eng. Enc. of Law, at page 48, defines it as follows: “ ‘Entire’ means whole, undivided; not participated in by others.”

The duties of the superintendent of the State Charity Hospital are defined in section 3946 Hemingway’s Code, which reads as follows: ‘ ‘ The superintendent shall perform such duties as may he prescribed for him by the board of trustees, and shall appoint all officers' and employees of said institution, with the advice and consent of the board of trustees, and may, for cause, dismiss them, subject to their right to appeal to the board of trustees. He shall make an annual report to the board of trustees up to the last day of October,' giving such information as the trustees may require.”

The State Charity Hospital is a considerable institution, located in Jackson, Miss., in which are treated numerous cases of sickness of, and surgical operations performed on, poor people, and at almost any time the presence of the superintendent might be required. While as a matter of fact, the statute does not require the superintendent to be a physician, yet physicians are usually appointed to this place, and are better able to perform the duties of the superintendent for the reason that a physician would be better able to know! the needs and requirements of patients, and the duties and qualifications of nurses and other employees. ‘Usually the superintendent has heretofore practiced medicine for other people than the inmates of said institution for compensation as a physician, which fees or compensation adds to the compensation of the superintendent, and, to some extent at least, brings the personal interests of the superintendent and the interests of the hospital in conflict; and under the law prior to the present time the question of how much of the-superintendent’s time was necessary was a matter of debate and difference of opinion. The legislature had the right to - appropriate or not appropriate the money to support the institution, and could attach to an appropriation such conditions as it saw propel’, at least so long as they were reasonably conductive to the welfare of the institution.

In the bill under review the legislature provided two conditions or provisions: First, that the hospital shall be used only for charity patients; - and, second, that the superintendent shall devote his entire time to the duties of his office. Both of these conditions seem to have a. reasonable relation to securing the purposes for which the institution was established. The legislative department deemed these provisions important and necessary to carry out the purposes and lo secure the best results at the institution. The Governor, representing another department of the government, thought that those provisions meant something, and undertook to veto the last provision mentioned. The veto was based upon the ground that the bill was ingrafting legislation upon an appropriation bill in violation of the Constitution. If the provision was mleaningless, certainly it could not be ingrafting legislation on the bill. Therefore it seems that both of the other departments of the government thought that the provision added something to the law, whether it be a condition precedent or a condition subsequent is immaterial. We think also that the provision means something, and that inasmuch as the Governor did not approve the bill as passed by the legislature, and inasmuch as the bill was not returned to the legislature and passed over the veto, and inasmuch as the five days which he, is allowed to retain a bill had not expired, this case falls within that of State v. Holder, 76 Miss. 158, 23 So. 643, and is controlled by that decision, and is still, in legal contemplation, in the possession of the Governor.

It is not necessary and it is not intended in this case to decide what the duties of the Governor may be with reference to returning the bill to the legislature for further action where, he approves part and vetoes a part thereof, which question we reserve for future consideration in a proper case. What 'we mean here is that the hill was not affirmatively acquiesced in hy the legislature, nor passed over the Governor’s veto.

For the reasons indicated, the judgment is reversed, and the demurrer sustained, and the suit dismissed.

Reversed and dismissed.

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Dissenting Opinion

Holder, J.

(dissenting)'..

I cannot agree with the position taken hy the majority in this case, although I think the question presented is exceedingly close, and a decision either way is not to be violently criticized.

I think the holding of the lower court, which is now reversed by the majority here, is the more reasonable and better view to maintain. The opinion written by the circuit judge clearly presents the reasons upon which he based his decision, and I shall set it out and adopt it as my view of the case. But before doing this I desire to discuss more particularly one point, and that is the question as to what is the meaning of the provision that the superintendent shall devote his entire time to the duties of his office; or, in other words, what is meant by “his entire time.”

I think- the provision that he shall devote his entire time to the duties of his office means that he shall devote the whole or entire amount of his time necessary to the full and efficient performance of the duties of his office. More than this would be impracticable, if not impossible. In the present case the time necessary to the full performance of the official duties of the office might be any number of hours per day 'according to the demands of the day, and this demand would constitute the “entire time” meant to be required so as to adequately and competently perform all of the duties of the position. ' -

A. failure on the part of the official to devote his entire time necessary to completely and efficiently perform the duties of the office, regardless of the amount of time necessary, would subject the office holder to the charge of failure of duty and removal. Undoubtedly the legislature meant to provide that the officer should devote his entire time necessary to the performance of the duties of his position, and this provision should be given full force and effect.

But under section 26i7 of the Constitution, which is set out in the opinion following, the office holder has always been and is now required to devote his personal time to the performance of the duties of his office, which means that he must devote his entire time necessary to the full and efficient performance of the duties thereof, without specifying any particular amount of time, so that he will have adequately performed all the duties pertaining to the position. Therefore the provision in the act adds nothing to the law as already provided in the Constitution; consequently the veto of it by the Governor amounted to nothing; such veto was not a material alteration of the law; the provision should be treated as surplusag-e in the act. The Holder Case, 76 Miss. 158, 23 So. 643, is obviously not in point. Following is the opinion of the circuit judge, which I approve :

f‘ Chapter 38 of Acts of legislature of 1920' contains the appropriation for the State Charity Hospital for the years 1920 and 1921. Its first section is: ‘Be it enacted by the legislature of the state of Mississippi, that the sum of forty-five thousand dollars ($45,000) for the year 1920 and a like amount for the year of 1921, be, and the same is hereby appropriated out of any money in the state treasury not otherwise appropriated, for the support and miaintenance of the State Charity Hospital at Jackson, Mississippi: Provided, that this hospital shall be used only for charity patients: Provided further, that the superintendent shall devote his entire time to the duties of his office.”

“Section 2 provides liow the funds appropriated by section 1 are to be drawn and expended. The Govern- or undertook to approve the above act, except that part embraced in the words calling for the entire time of the superintendent, which he disapproved on the ground that it violated section 69 of the Constitution, and this he had no authority to do. State v. Holden, 76 Miss. 158, 23 So. 643.

“The auditor, doubting whether the act so treated by the Governor was operative, wisely refused to issue his warrant for an item attempted to be drawn as provided by section 2, and upon his refusal the petition for writ of mandamus was filed by the superintendent to test the question so raised, and, the attorney general filed a demurrer to the petition, which presents a delicate and interesting question.

‘ ‘ If the 'provision disapproved is a condition to payment of the money appropriated or any part of it, however unreasonable it might appear, or if the words disapproved would create a law, if free fromi constitutional objection, or if the words disapproved could have any effect if approved, or if the legislature reasonably might not have passed the bill without the disapproved words, the demurrer should be sustained, as the Governor has no power to amend or alter an act by striking out any of its parts, whether valid or invalid, except items in an appropriation bill, as provided by section 73 of our Constitution. State v. Holder, supra.

“The appropriation for salaries and repair of the Industrial Institute and College for 1808 and 1899 contained the provision that no part of the money appropriated should be available unless the board of trustees should first adopt certain stipulated rules and by-laws, and this stipulation on which the appropriation was suspended, the Governor disapproved and attempted .to approve the bill in all other respects. Under this act, if the bill had been approved as passed, no money could hare been lawfully paid unless it was first made to appear that the condition has been met.

“In the 1920 appropriation bill for support and maintenance of the State Charity Hospital there is no condition precedent to payment. The mpney could not be lawfully withheld, had the bill been approved in full, providing inquiry, whether or not the superintendent devoted his entire time to his official duties. The words ‘Provided further’ in, the act are equivalent to and only mean ‘enacted further,’ and does not make payment conditional upon a showing that the superintendent gave his undivided time to his official duties.

“ ‘It does not necessarily follow because the term “provided” is used (in a statute) that which may succeed it is a proviso, though that is the form in which an exception is generally made to, or a restraint or qualification imposed on the enacting clause. It is the matter of the succeeding words, and not the form, which determines whether it is or not a technical proviso.’ Carroll v. State, 58 Ala. 396.

“ ‘The word “provided” is often used in a statute as a conjunction to an independent paragraph.’ Carter v. United States, 143 Fed. 256, 74 C. C. A. 394; Georgia Railroad Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377.

“If the legislature had passed a separate act providing only that the superintendent of the State Charity Hospital should devote his entire time to the duties of his office, would such act have any legal effect1? If it would the demurrer should be sustained.

“Attempted legislation that creates no change, and is not enforceable, and which might have been omitted without effect upon persons or property, is not law.

“Section 267 of our Constitution provides: ‘No person elected or appointed to any office or employment of profit under the laws of this state, or by virtue of any ordinance of any municipality of this state, shall hold such office or employment without personally devoting his time to the performance of the duties thereof.’

“The only difference in the constitutional provision and the clause of the act of 1920 disapproved is the word ‘entire,’ making the act read, ‘shall devote his entire time to “the duties of his office. ’ Rigidly construed, a performance of such clause is impossible. No officer could survive without time to eat, sleep, and take necessary recreation. Fairly and reasonably construed, the constitutional provision is as broad as the attempted legislation.

“If the legislature attempted to prevent the superintendent from engaging in the practice of his profession beyond administering to charity patients, then they entered upon a field already covered by the Constitution. Fairley v. Western Union Tel. Co., 73 Miss. 6, 18 So. 796.

“The most that can be said! of the provision under consideration is that it presents the legislative view as to the duties imposed upon the superintendent, and, as it creates no law and provides no penalty or provision for removal from office, it has no more force than a joint resolution to that effect.

“It is certain that the legislature would not have abandoned this institution and neglected to make provision for it unless the paragraph disapproved remained in the act, in view of the necessities of the case (Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692), and in view of the fact that what they inserted in the bill was a part of the Constitution that they could neither add to nor substract from.

“There is no difference in law between the bill as passed and that approved and put into effect.”