95 So. 683 | Miss. | 1923
Lead Opinion
delivered the opinion'of the court.
This is a mandamus suit brought by the state to compel the board of supervisors of Stone county to budget and make provision for the expenditure for tick eradication work in that county for the next year, tinder the Budget Law (chapter 225, Acts of 1922). From a judgment sustaining a demurrer to the petition and dismissing the cause, this appeal is prosecuted by the state.
The appeal presents for our consideration the construction and validity of the Budget Law (chapter 225, Acts of 1922), and especially section 6 of the act, which'is challenged by the state as unconstitutional and void.
The Budget Law provides, ampng other things, that the board of supervisors shall at their September meeting prepare a budget of county expenses estimated for the next year. The budget so prepared with the itemized statement of the estimated expenses for the coming year shall be published in the county paper. It is required that the statement be in such form as to show all estimates for the different expenditures for county purposes for the coming year.
Section 6 of the act provides that, when a majority of the qualified resident taxpayers of the county petition against any of the budget items proposed to be expended for such county, “it shall be unlawful to impose any taxation based on such items thus petitioned against, other than taxes for payment of interest or installments on bonds, unless the question shall be first submitted and favorably voted upon at an election to be held for that purpose.”
In the case before us a majority of the qualified resident property taxpayers petitioned the board of supervisors against providing in the budget the item of expenditure for carrying on tick eradication work in the county; said item of expense being six thousand four hundred dollars. The board, complying with the petition, under the Budget Law, struck the listed item of expense for tick eradication from the budget, whereupon this mandamus proceeding was
The state contends that section 6 of the act is unconstitutional and void for several reasons; but we shall consider but one ground urged against its constitutionality, and that is that it contravenes section 170 of the Constitution. of 1890, which provides for a board of supervisors with full jurisdiction over roads; ferries, and bridges, with other powers and duties enumerated therein.
The office of supervisor, it is contended, carries with it the right to reasonable compensation for services rendered by the occupant, and, if such compensation is denied the supervisors, it would result in the practical abolishment of the office, or so impair its functioning as to destroy its efficiency, and thereby nullify the office created by the Constitution.
Therefore it is urged that, if a majority of the taxpayers may by petition take away the compensation to be paid to supervisors, then it would, in effect, be to abolish the constitutional office of supervisor. It may be added also in this connection that the functioning of other constitutional offices in the county, such as county treasurer (since to be abolished), might be impaired or destroyed by a-petition of the taxpayers against the allowance of compensation-to those performing the duties of such offices. However, we shall rest the decision upon the constitutionality of the act with reference to the abolishment or impairment of the functioning of the office of supervisor' as provided in section 170 of the Constitution.
We think section 6 of the act clearly violates section 170 of the Constitution, if not also other sections of the organic law. If a majority of the taxpayers may by petition compel the supervisors to strike from the budget an item of expenditure which goes to pay for the services of the constitutional officer, such as a county supervisor, then the power is delegated to the petitioners to abolish the office
As we understand the Budget Act, all items of expenditure must be listed therein and published; and it must be apparent to all that there are many different items of expense necessary in the government of the county, such as the functioning of the courts, and other expenses paid as compensation to officers serving in the county.
The board of supervisors must not be hindered, and thus rendered inefficient, in its supervision, construction, and repair of the public roads, ferries, ■ and bridges of the county. The administration of these important internal affairs of the county must be carried on under the provisions of the Constitution; and we think it was beyond the power of the legislature to enact a law giving a right to a majority of the property holders to interfere by petition with the constitutional functioning of the affairs of the county.
We have patiently endeavored to reach a construction of section 6 of the act that would uphold it as valid. We have tried to find a reasonable ground to hold that the legislature intended that only those items in the budget which were expenditures within the discretion of the board might be stricken from the budget by petition, and that all other expenses fixed by law could not be eliminated by petition, going upon the idea that to hold the legislature meant otherwise would be to charge it with an absurdity not intended; but we are unable to give the act such a construction, because its language is such that there is no room to interpret it in any other way than that the taxpayers may by petition prevent the expenditure for any item except “taxes for payment of interest or installments on bonds.”
Consequently we hold that section 6 of the act is void; and, since we believe the legislature would have enacted the other parts of the chapter without section 6, .which appear to be valid, section 6 is separable from the other portions of the act, and we uphold the other parts as valid.
We think it will do no harm to point out that, under Laws 1916, chapter 167, state-wide tick eradication is made mandatory, and the work of tick eradication in the counties is required to be carried on and the expenses paid by the respective counties. The purpose of the law, which has already cost the taxpayers a great sum of money in the past several years, was to free our state from the fever tick and thereby benefit our stock and promote the stock industry to the extent of . making it profitable, like it is in other states which are tick-free.
Now it cannot possibly escape the attention of the observer that, if this state-wide law is to be carried out and the state is to be freed of the tick, and thereby get a substantial benefit for the money and labor already expended, the laAv must be uniformly observed by all the counties infested with the tick; otherwise a single county, here and there may become infested with ticks, which'will spread to'adjoining counties, and in the course of time defeat the whole purpose of the tick eradication law. '
The judgment of the lower court is reversed, and the cause remanded.
Reversed and remanded'.
Concurrence Opinion
(specially concurring). L concur in the views expressed by Judge Holden that section 6, chapter 225, Laws of 1922, is in conflict with section 170 of the state Constitution, in so far as the section empowers the
Chapter 167, Laws of 1916 (sections 5502 to 5506, Hemingway’s Code), provides for state-wide cattle tick eradication, and that the expenses of conducting the eradication shall be paid out of the county treasury, etc. Chapter 225, Laws of 1922, does not anywhere provide for the repeal of this law or of any other law, and provides no scheme of repeal which will take effect on the happening of a condition.
The entire matter of county finances is fixed in the general law of the state and embraces a large number of separate statutes providing for all kinds of public expenditures, among which are the expenses of the circuit and chancery courts, the salaries of many officers, the payment of debts, and the payment of many contracts which the county may be under duty to carry out.
Section 6, chapter 225, Laws of 1922, reads as follows:
“That the majority of the qualified resident property taxpayers of any county, town or village, may petition against any of items of proposed expenditure for such county or municipal,purposes; and file such petition with the board of supervisors if it be a county proposition or with the board of aldermen of the town or village, if it be a municipal proposition; and after such petitions duly filed with such county or municipal authorities, it shall be unlawful to impose any taxation based on such items thus petitioned against, other than taxes for payment of*699 interest or installments on bonds, unless the question shall be first submitted and favorably voted upon at an election to be held for that purpose in such county or municipality, provided, however, that this section shall not apply to contingencies set forth in section five of this act.”
It will be seen that this section confers upon the qualified resident property owners the right to- petition against any of the items of expenditure of a county, and, when so petitioned against, an election shall be held, and the vote therein must expressly authorize the payment of the item or items voted upon. This-places it within the power of the majority of the resident taxpayers and the majority of the qualified electors of the county to absolutely suspend the operation of any law having to do- with county finances. The expense of holding circuit and chancery courts must be. embraced in the budget, as must also all of the salaries of the public officers payable out of the county treasury, all witnesses and jurors and contractors, as well as many other appropriations which the board of supervisors may lawfully make under the general laws are completely annulled and the law for the time being at least is made inoperative within the confines of such county-
In my opinion section 87 of the Constitution was designed to prevent the suspension of general laws in favor of individuals or corporations, or aggregations of such, not representing the general public of the state.
When the legislature enacts a law statewide in its operation and it goes into effect, it Is beyond the power of the legislature, and .of course beyond the power of any other body than the legislature, to suspend susch law so as to except out of its operation favored individuals and communities. The legislature has power to enact a law and to make it become effective upon the happening of a condition, and this condition may depend upon the result of an election, or it may enact a law repealing a law and make the repealing law effective upon the happening of the con
“The legislative, judicial, and executive powers of the government of this state are vested in separate and distinct departments. And each department is prohibited from the exercise of powers pertaining to the others. The legislative power of the state is vested in two distinct departments — the one styled ‘the Senate;’ the other ‘the House of Representatives;’ and both together ‘the legislature of the state of Mississippi.’ Constitution, article 2, section 4. The grant to this department is in general terms. It vests it with the whole of the legislative power of the state. No attempt-is made in the Constitution to define the term ‘legislative power;’ and, unlike the Constitution of the United States, it makes no attempt at a specific enumeration of the items of legislative power.
“In determining, therefore, in a given case, upon the legitimacy of the exercise of power by this department, we must consider whether it be in its nature legislative; and, if found to be legislative in its character, it must be held to have passed under the general grant of legislative power, unless in some other part of the Constitution is found a prohibition or limitation express upon the exercise of the power, or one clearly and plainly implied. And if, upon looking at all the provisions of that instrument, no such prohibition or limitation is there found, none exists. But, as the powers of the legislature are delegated powers, it is not to be doubted that any act passed by it which does not fall fairly within the meaning and scope of legislative power is as clearly void as if it were expressly prohibited. And manifest reasons exist which render it quite as imperative upon the courts to refuse their sanction to such an act as to one which violates an express provision of the*701 Constitution. This species of violation is quite as much to be dreaded and guarded against as a direct attack upon any principle expressly recognized as a part of the fundamental law; for, as it has been very justly said: ‘Attempts of the latter description to violate the Constitution will generally be met by instant reprobation, while the stealthy and frequently seductive character of the former is apt to escape detection, until the innovation is made manifest by the infliction of some startling wrong.’
“The legislative power, to whatever subjects it may be applied, and whatever may be its extent, is vested exclusively in the Senate and House of Representatives, by the people, in whom it resides. They 'have, by the highest and most solemn of compacts, the Constitution, voluntarily relinquished their right to exercise it. It can only be reclaimed by an abolition of an amendment of the Constitution, and the people are the only power competent to. do either. To allow the legislature to associate with them in the exercise of the legislative functions another tribunal, or to cast back u/pon the people their delegated powers, ivould be tantamount to a subdivision of the Constitution, by-changing the distribution of the powers of the government! without the consent of the authority by .which it was ordained. The proposition that the legislature can surrender any portion of the authority with which it is vested, or authorize its exercise by any other body, or by the tohole people of the state, is alike repugnant to the spirit and positive provisions of the Constitution. It is opposed to the express provisions of the Constitution, for the delegation of the legislative power to the senate and house of representatives is declared to be exclusive of the other departments, and is necessarily exclusive of every other person or body. .It is ■opposed to the spirit of the Constitution, which is intended for the equal protection of every party to the social compact, who is entitled to demand under its auspices, ‘that .his rights shall be protected, and that his civil conduct shall only be regulated by the associated wisdom, intelli*702 gence, and integrity of the whole representation of the state.’ And the inability of the legislature to delegate its powers, independent of those considerations, would arise from the principles which apply to every delegation of power requiring rectitude, discretion, and knowledge. Indeed, the proposition that the legislative power is incapable of being delegated by the department in which it has been deposited, either to the whole people or to any portion of them, is not denied by any one, and seems so clear that these observations might well have been dispensed with.
“Assuming then, as a proposition not to be disputed, that the legislative authority cannot be returned to the people, nor delegated to any other power, and that no' act can be binding as a law, unless it has received its final sanction from the legislative will, we come to consider the grounds upon which it is alleged that the act in question is invalid.”
(Italics mine.)
The court went to the utmost limit that it may go under the Constitution in upholding legislative acts which may become operative or be defeated by popular vote. Of course, under section 170 of the Constitution, giving the board of supervisors full jurisdiction over roads, ferries, and bridges, subject to legislative regulation, the legislature may confer many legislative functions upon the board of supervisors, but it has no right to leave to the popular vote the enactments or repeals of the statutes of the state. '