46 So. 964 | Miss. | 1908
Lead Opinion
delivered the opinion of the court.
The object of this suit is to test the constitutionality of chapter’ 96, Laws of 1908, providing for the removal of the state funds from the vaults of the treasury by tbe establishment of state depositories. By section 1 of the act it is provided that “the state treasurer shall deposit and at all times keep on deposit in the state or national bank, or some of them doing business in this state, the amount of money in his hands belonging to the several current funds in the state treasury, and any such banks may apply for the privilege of keeping on deposit such funds or some part thereof.” Eor the purpose of deciding the question involved, this is the only part of the act we need quote, since it is by this section that the funds are authorized to be removed from the vaults of the treasury, and all other features of the act are addressed merely to the administration of the law.
All laws passed by the legislature of the state are presumably valid in any case, and the presumption is a conclusive one, unless there is to be found in the constitution of the United States or the constitution of the state a prohibition on the power of the legislature to pass the particular law. Under this act there-can arise no question under the federal constitution. The act deals- with a purely state matter. The legislature represents the-sovereign power, and is vested with full control and disposition of the state’s funds, except in such instances as the constitution prohibits. Thus by section 92 of the constitution the legislature-is prohibited from making payment to any person of the salary of a deceased officer beyond the date of his death. By section 93 the legislature cannot retire any officer on pay, or part pay, or make any grant to such retiring officer. By section 96 the
The act in question is subject to many criticisms as applied to its practical administration. It is in many respects very imperfect, and tbe character of some of the security authorized to be taken by it is of a most unsatisfactory nature. In the acts of 1908 are to be found two depository laws. These laws are contained in chapters 96 and 97. Chapter 96 provides for the establishment of state depositories, and chapter 97 provides for the establishment of depositories for the levee district funds. By section 2 of the act in relation to the state depository the security authorized to be taken for the loan of the state’s fundáis; required to be state bonds, levee bonds, county bonds, municipal bonds, United States bonds, or surety bonds of any surety company authorized to do business in the state of Mississippi. The act further provides that “no bonds- shall be accepted as security if worth less than par in the market.” By section 2 of- the act two classes of security may be taken — that is, bonds of the state, levee bonds, etc., all of which have a market value; and, secondly, the surety bonds of any surety company authorized to do business in the state. In the nature of things,, a mere surety bond has no market value. Eor this last character of security the state gets nothing but a mere right to- sUe on the bond, in case the depository using this character of security fail to pay over the money when required by the state to do so-, and we apprehend that the state would experience much difficulty in realizing anything on the surety bond in open market. By section 11 it is provided that “in the event of the failure of any state depository to pay any warrant lawfully issued by the auditor of public accounts; on any funds on deposit belonging to the state in such depository, the treasurer is hereby empowered to sell such securities as are not placed with him by such depository,” etc. It is thus seen that all bonds taken as security are required to> be worth their par in the market. Of
A comparison of the act creating the state depository with the act creating the levee depository shows that much more care was taken for the safety of the levee funds than for the state funds. Section 3 of. the levee depository law only authorized the taking of United States bonds, state bonds, levee bonds, county bonds, and municipal bonds; the municipal and county bonds of a county or municipality located in the levee district. The act does not authorize the taking of the bonds of a surety company as collateral. Such bonds may be used as security additional to that authorized to be taken by the act; but even then two or more of the surety companies are required to sigh the bond, when used'to obtain a loan of the levee funds. No
We are forced to approve this act, because it violates no constitutional provision of the state or United States; but in its present imperfect and unsatisfactory'condition we reluctantly yield our assent to this conclusion. We might indulge in many other criticisms of the act in question; but the criticisms would only be of such’ features as must be corrected by the legislature and could serve no purpose here.
Affirmed and bill dismissed.
Concurrence Opinion
delivered the following concurring opinion.
The courts have always had such consideration for the legislature that they have uniformly declined to hold an enacted statute unconstitutional unless it was violative of the organic law, state or federal, beyond a reasonable doubt. It is universally recognized that a state legislature has all power not withheld from it expressly or by necessary implication. In this it differs, of course, from the federal congress, which has no power whatever except what is delegated to it expressly or by necessary implication.
Without section 137 of our state constitution, the legislative power to establish depositories of public moneys is unquestionable. In my opinion there is nothing in that section forbidding it in direct terms, or which is inconsistent with it. Manifestly, to my mind, this act cannot be considered as unconstitutional beyond reasonable doubt. Legislative action is presumably valid, and should be so held, unless it be plainly in conflict with some provision of the organic law. The’ act under consideration is not, in my view, so in conflict. Courts should not undertake
Dissenting Opinion
delivered the following dissenting opinion.
Section 137 of the constitution is in the following words: “It shall be the duty of the state treasurer, within ten days after the 1st day of January and July of each year, to publish a statement under oath in some newspaper published at the seat of government, showing the condition of the treasury on said days, the balance on hand, and in what funds, together with a certificate of the governor that he has verified the count of the funds in the treasury, and found the balance stated by the treasurer actually in the vaults of the treasury, or as the truth may be. And it shall be the duty of the governor, at such other times as he may deem proper, to go to the treasury, without giving notice to the treasurer, and verify tire cash balance as- shown by the books, and to publish the fact that he has done so, and whether the amount called for by the books be actually in the treasury, (and stating whether the treasurer had any notice whatever that the verification would be made.”
. I am clearly of the opinion that no state depositories of the kind indicated in the bill, or any like kind, can constitutionally be created. The language of section 137 is plain and explicit. It means just what it says, that the money or funds shall actually be in the treasury. The first part of section 137 provides that the state treasurer’s published statement shall show “the balance on hand,” which means on hand with him in the treasury, and that the governor shall give a certificate that he has verified the count of the funds “in the treasury,” and “found the balance stated by the treasurer actually in the vaults of the treasury, or as the truth may be.” The language “actually in the vaults of the treasury,” is impossible of being misconstrued.
It is part also of the history of the time when this section of the constitution was adopted that the largest treasury defalcation known to the state was then recent, and doubtless inspired this very provision of the constitution. The form of section 137 of the constitution.is identical with the form proposed by Mr.. Yerger, chairman of the committee on executive department in-the constitutional convention of 1890, as set out on pages 493, 494, of the oficial journal of the Mississippi constitutional convention of 1890. If a close and minute analysis is made of this section 137, it is demonstrated beyond any controversy that the legislature is without power to pass a depository law. By that section it is made the duty of the state treasurer, semiannually, on the 1st day of January and July of each year, to publish a sworn statement showing “the condition of the treasury, the balance on hand, and in what funds.” Balance of' what? Why, manifestly, the balance left after deducting the credits that the treasurer is entitled to by reason of warrants paid out. It means that, and nothing else. WTiat this balance-en hand consists of is to be shown- — in .“what funds” says the-section. In other words, the treasurer’s statement is to show cash
Notice, specifically, the duplication of emphasis on the ad;vorb “actually” and the words “in the vaults of the treasury.” Those words were used, “actually in the vaults of the treasury,” with the most sacred care and caution, for the very purpose of’ forever excluding any constructive presence in the treasury, or with the treasurer, of the funds of the state; in other words, for the purpose of excluding the very thing the majority of the court now holds the legislature may do. According to the majority opinion, the treasurer is simply to say to the governor when he goes to make tire count of the funds in the treasury and to certify that those funds actually are in the vaults of the treasury: “Here are my books, and the balance shown by these books is partly in the treasury in cash or funds; but nearly all of it, both in cash and in funds, is not actually in the vaults of this treasury," but is constructively here. You will find it act
But look again at the second paragraph of section 137. Turning from the duty of the treasurer, it is then declared that the governor shall, at such times, unknown to the treasurer, as be deems proper, go to the treasury and verify what ? “The cash balance as shown by the books.” "What cash balance ? Why the cash balance left with him after deducting, as said before, the credits to which the treasurer was entitled on warrants he had paid out. And to do what else? To publish the fact that he had so verified tire cash balance; and, further (note this specially),
Apply, now, the well-settled canon of constitutional construction) and see whether the majority opinion squares with it; and lot me give that canon in the language of Judge Campbell, as taken from Beck v. Allen, 58 Miss. 177. He there said most wisely: “Subtlety and refinement and astuteness are not admissible to explain away the expression of the sovereign will. The framers of the constitution and the people who adopted it must be understood to have intended the words employed in that sense most likely to arise from them on first reading them.” This is the doctrine approved by Cooley and Story, and all other constitutional writers. Let me ask, in the light of this canon of construction, this question: Take one hundred average citizens on the street, and submit section 137 to each of them, and require him to answer on the spot whether it does not require the funds to be actually in the treasury. Is there any doubt but that ninety of that one hundred, at'least, would answer that the words “in the treasury” and “actually in the vaults of the treasury” settled that beyond controversy ? And why would that an
I, therefore, speaking for myself - alone, hold as follows: First, I am clearly of the opinion that “state depositories of the funds of the state” cannot be provided for by law, without violating section 137 of the constitution; and, second, as a corollary of this, I think the pretended statute is plainly violative of said section 137 of the constitution.