State Board of Education v. Mobile & Ohio Railroad

71 Miss. 500 | Miss. | 1893

Campbell, C. J.,

delivered the opinion of the court.

By § 689, code of 1880, the appellant was authorized to sue for any money “ designated and set apart for the common school fund.” Fines accrued under § 1050 of that code were held to belong to that fund. M. & O. R. R. Co. v. State, 51 Miss., 137. Therefore, the appellant could sue for them prior to the constitution of 1890. It abrogated that provision of the constitution of 1869, whereby such fines were appropriated to the school-fund; and, since that, these fines are not designated as belonging to that fund or ,any other. They are not given to the counties by § 261, for it has reference to fines and forfeitures arising from criminal prosecutions, the expenses of which are charged upon the counties; and in tbe case cited above, tbe suit for fines under §1050 was declared not to be of the character of a criminal proceeding, but civil, and hence it was said the state had no interest in it, and could not sue for these fines.

As to these fines accrued prior to the constitution of 1890, the appellant was entitled to sue by virtue of pre-existing law, and the constitution now in force, in § 279, preserved all causes of action, as existing before, unaffected by it. As the appellant had the right to sue for part of the claim described in the declaration, and the demurrer is to the whole, it must be overruled, even if counsel is right as to the statute of limitations, and the availability of a demurrer to plead it in this case.

We decline to pursue the investigation suggestedby counsel, to ascertain if the various crossings mentioned in the declaration are streets and not highways. That may be done in the further progress of the cause in the circuit court.

Reversed, demurrer overruled and cause remanded to the circuit court.