delivered the opinion of the Court.
The defendant in error, who was elected in October, 1862, to the office of district-attorney of the third judicial district, composed of the counties of Tunica, Coahoma', Bolivar,."Washington, Issaquena, and Warren, instituted this proceeding in the Circuit Court of Hinds county, against the auditor of public accounts, to obtain a writ of mandamus requiring the auditor to issue a warrant on the treasurer for the sum of $2,401, the amount claimed by the appellee to be due to him on account of his salary from October, 1868, to May 22,1868. On the hearing of the case a peremptory mandamus was awarded, and from this judgment a writ of error is prosecuted.
The writ of mandamus is not a'writ of right, and does not pertain to the ordinary jurisdiction of the courts of- common law. In England, whence we derive it, it is a prerogative writ, applicable only to extraordinary occasions, for which the law furnishes no other specific remedy. It can be issued only by the Court of King’s Bench, and in virtue of the peculiar character and constitution of that tribunal, and its very high and transcendent jurisdiction. A large portion of the extensive
' We have no coiut in Mississippi possessing the extraordinary powers of the court of King’s Bench, to whose cognizance the writ of mandamus would belong without constitutional or statutory regulation. Accordingly, our constitution provides that “ the Circuit Court shall have original jurisdiction in all matters, civil and criminal, within this State,” and the statutes confer upon that court original jurisdiction of “ all civil suits and actions,” and of “ all causes, matters and things, arising under the constitution and laws of this State, which are not expressly cognizable in some other court established by law.’* (Rev. Code, 482, article 29.) Power is given to the judges of the Circuit Court, in term time or in vacation, to allow writs of mandamus (Rev. Code, 479, article 9), and similiar power is bestowed upon the judges of this court, in reference to all remedial process. (Rev. Code 561, article 3.) Under these provisions, in the absence of further regulations, the practice has been adopted of applying by petition to a Judge in vacation for the issuance of an alternative writ of mandamus, returnable to the Circuit Court having local jurisdiction. The petition thus comes in place of the rule to show cause in England, and the fiat of the Judge is equivalent to the rule absolute. Beyond these necessary modifications, the court is left to be guided in the proceedings, by the rales of the common law, although these rules have
It is not necessary to attempt an enumeration of the cases to which this remedy is applicable. It is a general rule, that whenever a statute gives power to, or imposes an obligation on, a particular person, to do some particular act or duty, and pi’ovides no specific remedy on non-performance, a mandamus will be granted. Tapping 80 (30). There must be a clear legal right, and no specific legal remedy for. its enforcement. "When directed to a public officer, it must be to enforce the performance of a mere ministerial act, not involving on the part of the officer the exerciáe of any judgment or discretion. (Marbury v. Madison, 1 Cranch, 137; Decatur v. Paulding, 14 Peters, 524; Brashear v. Mason, 6 How. S. C. U. S. 92.) In the former of these cases the propriety of the remedy was asserted on the ground that the Secretary of State was directed by law to do a certain act affecting the absolute rights of individuals, the performance of which the President could not forbid; and in the two latter it was denied on the ground that the duty sought to be enforced, was not ministerial merely, but required the exercise of judgment and discretion. Stress was laid on the fact that the officers were the heads of the chief executive departments of the government, the various and important concerns of whose offices were executive in their character, and not ministerial. In Kendall v. U. States, 12 Peters, 524 (613), the writ was sustained, on the ground that the duty sought to be enforced was a “precise, definite act, purely ministerial, and about which the Postmaster-General had no discretion whatever.” That the right of a public officer to receive a warrant for the salary attached by law to his office, belongs to the class of cases to which the writ of mandamus is applicable, was expressly adjudged in Page v. Hardin, 8 B. Monroe, 648, by the Supreme Court of Kentucky, and has been recognized in several cases by this court. And it may be observed generally that in all cases where the right of the party,
It is to be observed, however, that a sovereign State cannot be sued without its own consent, and that tbe only remedy in ordinary cases to obtain payment of a claim against tbe government, is by application to tbe legislature; and that tbe remedy 'by mandamus is not to be extended so as to become in effect a suit against the State to establish demands wbicb are uncertain, or imliquidated, and wbicb properly fall under tbe legislative cognizance.
The present case, then, being in its general character a proper one for the application of this writ, tbe issuance of it is resisted, on tbe gi’ound that a legislative prohibition exists against it.
By tbe “ act concerning the salaries of officers,” (Rev. Code, 140, article 1,) it is enacted, “ that tbe following annual salaries shall be allowed, and paid in quarterly payments, after being audited according to law, to tbe several officers hereinafter named, to wit: to each district-attorney the sum of $1,500.” By article 32, Rev. Code, 108, it is made tbe duty of tbe auditor of public accounts “ to examine, state, settle, and audit, all accounts, claims or demands whatsoever against tbe State, arising under any act or resolution of tbe legislature, and to grant to every claimant, authorized to receive tbe same, a warrant on tbe state treasury,” etc.
If tbe rights of tbe relator depended exclusively upon these provisions, tbe propriety of awarding a peremptory mandamus would be quite apparent. But at tbe last session of the legislature various acts and resolutions were adopted, bearing directly upon this subject, among which is a joint resolution, approved October 25,1865, in the following words {“ Hesolved* iy the legislature of the State of Mississippi — That tbe auditor of public accounts be, and he is hereby directed to issue no more warrants upon tbe treasurer for tbe payment of money, until further orders.” /
The relator contends that this resolution forms no defense to his application for a mandamus, for the followingreasons, to wit:
1. That it is void for want of an enacting clause, in the language prescribed by the constitution.
2. That it was not required to be read or passed with the forms prescribed in case of a bill, and therefore cannot operate to repeal a law formally enacted, not being of equal dignity.
3. - That, if otherwise valid, it would impair the obligation of the contract between himself and the State, and would take away his vested rights under that contract; and
4. That it did not take effect at all until after the date of the judgment in his favor in the court below, and therefore can have no application.
1. The first question is whether the resolution is void for want of a sufficient enacting clause; and this involves another question, to wit, whether the legislature has the constitutional power to pass a joint resolution at all, to have the force and effect of a law.
By the fourth section of the third article of the constitution, the legislative power of the State is vested in the two branches, which constitute the legislature, and it is ordained that “ the style of their laws shall be : Be it mooted ly the legislature of the State of Mississippi” As the style of this resolution is, “ Resolved by the legislature of the State of Mississippi,” if a literal adherence to the formula prescribed by the constitution is required, it would follow that the resolution is wholly void. The question is one that does not seem to have received a judicial decision, so far as we have been able to discover; but in a work cited on the law and practice of legislative assemblies, by
Joint resolutions, having all the force and effect of laws, are common in the legislative practice of this State, and are to be found among the acts of almost every session, and applicable to almost every variety of subjects. Appropriations of money
The Constitution of the United States contains the very same provisions in reference to the presentment of bills, orders, resolutions, and votes to the President for his approval, that are found in the State constitution. In reference to “ bills,” this approval is necessary “before it become a law,” and in reference to orders, resolutions and votes, “before the same shall take effect; ” upon which a distinction was attempted to be founded in the argument. Yet the constant practice of the Congress has been to enact important measures of legislation, chiefly of the character before referred to, by joint resolution. Both Constitutions contain the same clause, “ that no money shall be drawn from the treasury, but in consequence of appropriations made T)y lamP And the constant practice, both in Congress and the legislature, has been to make important appropriations of public money from the treasury, by joint resolution; thereby showing, that in the usage and practice of these assemblies, a resolution is regarded as a law, and is in all respects of equal force and effect.
Such a practical interpretation of the constitution, sanctioned by long usage and acquiescence, and hitherto, so far as we can discover, wholly unquestioned, is entitled to great weight, and
The constitutions of a number of the States contain the provision, that “ every law enacted by the legislature shall embrace but one subject, and that shall be expressed in the titleand among these States are Louisiana and California. In the construction of this clause, the courts of the former State have held it to be improper to give it too vigorous and technical a construction. By following in its applications the rules of a nice and fastidious verbal criticism, the action of the legislature would often be frustrated, without fulfilling the intentions of the framers of the Constitution. 6 La. Ann. 329, 540. In California this section of the Constitution is regarded as merely directory. Such was the contemporaneous exposition adopted and acquiesced in by the legislature, and tacitly assented to by the courts. Washington v. Murray, 4 California, 388. These observations we thinlc justly apply to the clause of our Constitution prescribing the enactment clause of laws, which was no doubt intended to promote uniformity and precision, without being designed as a condition, upon the strict and literal fulfilment of which, the validity of the law should depend.
2. In support of the second objection, it was urged that as the constitution does not mention resolutions, in prescribing the forms and ceremonies to be observed in the passage of bills, therefore a resolution is not of equal dignity with a bill, and cannot be employed to repeal a general law.
We cannot perceive the force of this position. All legislative acts, duly enrolled, signed by the presiding officers of both houses, and approved by the governor, it appears to us, must stand on an equal footing as to dignity, and must equally prevail as the act of the sovereign power of the State, whether they be “enacted,” or only “resolved.”
It was insisted also that by a joint rule of the two houses of the legislature, joint resolutions are only required to be read on two several days, and therefore the court must presume that this resolution was passed after two readings only, and lienee did not become a law. On the production of the rules of the
3. In the third place, it is insisted that the resolution if otherwise valid, would be void as impairing the obligation of the contract between the State and the relator, and taking away his vested rights.
To determine this question correctly it is necessary to understand precisely what it is that the legislature has undertaken to do. Before the passage of the resolution of October 25, 1865, it was made the duty of the auditor to examine, state, settle, and audit, all accounts, claims and demands against the State, arising under any act or resolution of the legislature (putting acts and resolutions on the same footing as laws), and to grant to
Tbis resolution does not propose to interfere in any way with tbe right of tbe relator to receive bis salary for tbe time be discharged tbe duties of bis office. Such right is not denied, or impaired. It remains the same that it was before tbe resolution was adopted. But it is said the resolution takes away tbe remedy of tbe officer to obtain payment of the amount due him. It seems to us, however, that tbe duty imposed by law on tbe auditor to issue warrants on the treasury, in favor of certain public creditors, is in no proper sense a remedy given to such creditor. Certainly it is not a legal remedy. It was no doubt designed to provide the mode of making prompt payment to tbe creditor, but tbe particular forms adopted were not so much intended to furnish him a remedy, as to secure tbe safety of tbe public treasury, and tbe due control and accountability of tbe officers charged with its custody. They are a matter of public policy for the protection of tbe public money, rather than a means for tbe vindication of private rights. It is surely competent for tbe legislature at any time to change any regulations in force relative to tbe collection, safe-keeping, and disbursement of its funds; to abolish existing systems altogether ; and to substitute such new ones as experience may recommend.
The State cannot be sued at law, and therefore the idea of legal liability cannot be predicated of its executory undertakings. The very notion of a contract, the obligation of which admits of being impaired by legislation, carries with it the condition of a liability to some legal remedy for its enforcement. States are bound by every consideration of conscience and good faith to perform their contracts, but they cannot be compelled to perform them. The only remedy for a debt due by a State, is by an application to the legislature to make an appropriation for its payment. Indeed, no money can be drawn from the treasury, but in consequence of such an appropriation. It is undoubtedly competent for the legislature, as it has usually done, to pass general and permanent appropriations for particular purposes, as for the payment of the salaries of officers, the support of public institutions, and the like, and to direct the manner in which such money shall be drawn; and it seems equally competent for the same body, at any time, to repeal or modify such general laws. So far as the article quoted from the code might be construed to authorize the issuance of a warrant, in a case where no appropriation had been made for its payment, it would itself be unconstitutional.
Regarding the issuance of a warrant, for the sake of the argument, as a remedy to the creditor, it has recently been solemnly decided by this court in the case of Coffman v. The Bank of Kentucky, that the remedy does not enter into, or form any part of a contract, but remains subject to the control of the legislature, subject only to the condition that in dealing with the remedy, the substantial right of the party shall not be destroyed, or diminished, by the denial of any remedy whatever. Now the only remedy that exists for the collection of demands
Our constitution does provide that “ the legislature shall direct-by law in what manner, and in what courts, suits shall be brought against the State ” (article 7, section 10). This requirement was executed, in 1833, by directing such suits to be brought in the Superior Court of Chancery. That court, however, was abolished several years ago, and no new regulation has been made on the subject. But if there had been such a law in force when the claim of the relator accrued, the power of the legislature to repeal it, could hardly be denied. In Darrington v. State Bank of Alabama, 13 Howard U. S. 12, Justice McLean, delivering the opinion of the comí, says: “ The fact that the State of Alabama may be sued by one of its own citizens, does not alter the case; such law may be repealed, at pleasure; and if judgment could be obtained, the payment of it could not be enforced.”
But this question may be rested upon broader grounds. It may be premised that a State can no more pass a law impairing the obligation of its own contracts than the contracts between
In the case of the Dartmouth College v. Woodward, 4 Wheaton, 627, Chief-Justice Marshall, discussing the question whether the contract in that case was protected by the constitution of the United States, says: “ On the first point, it has been argued that the word ‘contract,’ in its broadest sense, would comprehend the political relations between the government and its citizens, would extend to officers held within a State for State purposes, and to many of those laws concerning civils institutions, which must change with circumstances, and be modified by ordinary legislation : which deeply concern the public, and which, to preserve good government, the public judgment must control.” “ Taken in its broad and unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a State ; would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions that are established for purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances;” and he remarks “that the framers of the constitution did not intend to restrain the State in the regulation of their civil institutions, and that the instrument they have given us is not to be so construed, may be admitted. The provision of the constitution never has been understood to embrace other contracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice.”
This language of Chief-Justice Marshall is quoted and adopted by this court in the case of the State v. Smedes & Mashall, 26 Miss. 47, in which case the judge delivering the opinion goes on
Offices in this country are not incorporeal hereditaments, nor are they the subjects of property. They are not held by grant ; nor does the tenure partake of the quality or character of contract, the obligation of which cannot be impaired by legislation. They are mere agencies of a political nature, created for the discharge of public duties in the administration of government, and which the government may regulate for the general good. So far from holding a proprietary interest in their offices, the incumbents are hut naked assents, without an interest. There is no contract, express or implied, between a public officer and the government whose agent he is. The latter enters into no agreement that he shall receive any particular compensation for the time he shall hold the office, nor that the office itself shall continue for any definite period. "Where the constitution creates the office, or limits the tenure, or fixes the compensation, these things are beyond legislative control; but that makes no contract. The people, in their sovereign capacity, may by a new constitution terminate the office, without regard to the rights, the interest, or the expectations of the incumbent. So an office created by law may be repealed by law, without reference to the term, or future salary of the officer. The same
On the part of the officer, there is still less in the nature of a contract. Whether‘he holds under a constitution or a statute, he is under no obligation to continue the discharge of Ms duties for a single day. He may resign at any time, and no power of the government can prevent him.
His right to compensation grows out of the fact of the rendition of the services, and he is entitled to it merely because the law gives it to him, and not on account of any contract between the government and himself, that the services shall be rendered by him.
It is sufficient merely to refer to a few of the numerous adjudged cases in which all these principles will be found to be fully sanctioned, and which indeed flow as logical deductions from the ruling of Chief-Justice Marshall in the case already quoted.
Conner v. City of New York, 2 Sandf. 355; same case, 1 Seldon, 285; The State v. Dews, R. M. Charlton, 397; Haynes v. The State, 3 Humphries, 480; Commonwealth v. Bacon, 6 Serg. & R. 322; 4 Penn. State R. 49; Beufgrd v. Gibson, 15 Ala. 521; Coffin v. The State, 7 Indiana (Porter), 157.
Most of these cases involved only the right to alter and increase the duties, or to diminish prospectively the compensation of officers; but they show clearly that the rights of such officer are not held by contract, and are not within the protection of the constitutional provision on that subject. In the case of the U. States v. Heth, 3 Cranch, 399, the Supreme Court seem to admit that the compensation of a public officer may be reduced retrospectively, for they put their decision in that case on the ground, that the intent was not manifest to give the act of Congress a retroactive effect.
The conclusion we have reached on this point is in harmony with other considerations bearing upon it. Every State is bound to the strictest observance of good faith towards the
4. In the fourth place it is contended that the resolution in question did not take effect until after the judgment in favor of the relator was rendered, and therefore cannot apply to it.
The judgment in the court below was rendered on the Yth day of December, 1865, and the resolution was approved on the 25th of October. The constitution provides that, “no laws of a general nature, unless otherwise provided for, shall be enforced until sixty days after the passage thereof.” (Article Y, section 6, Rev. Code, J35.) This resolution, if it takes effect at all, must be regarded as a “ law,” and as a law “ of a general nature,” for it is a regulation of a public office, in which the whole people are interested. It speaks in the present tense, and so far indicates an intention that it should go in force immediately. The object it has in view would also lead to the same conclusion. But it is precisely to such cases that the constitutional restriction ordinarily applies. If expressed in the future tense it would carry with it its own limitation. The effect of the clause appears to be, that laws in the present tense, which, without some such restriction would go into effect immediately, by force of the general language employed, shall not be enforced until after sixty days from their passage, unless a contrary provision is made. It is not necessary, however, that
As one part of a statute is properly called in to help the construction of another part, and is fitly so expounded as to support and give effect, if possible, to the whole, so is the comparison of one law with other laws made by the same legislator, or upon the same subject, or relating expressly to the same point, enjoined for the same reason, and attended with a like advantage. In applying the maxims of interpretation, the object is throughout, first to ascertain, and next to cany into effect, the intentions of the framer. It is to be inferred that a code of statutes relating to one subject, was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. It is therefore an established rule of law, that all acts in pari materia are to be taken together, as if they were one law, and they are directed to be compared in the construction of statutes, because they are considered as framed upon one system, and having one object in view. Nwarris on Statutes, 699.
It is necessary, therefore, to a proper understanding of the intention of the legislature, that we should look at all the acts passed at the same session, in relation to this subject. These were indeed quite numerous, but a reference to three joint resolutions and two bills will give us a sufficiently conrprehensive view of the subject, and enable us to understand the policy adopted. It is to be premised that when the legislature assembled on the 16th day of October, 1865, the State was under the federal military rule, its civil government had been totally subverted, and that there was not a dollar in the treasury, nor any possibility of collecting revenue without considerable delay. The provisional governor had, however, collected a considerable amount above the wants of his administration, which he was
“Sec. 1. Be it resolved, etc., That the treasurer■ be, and he is hereby authorized, to receive from the provisional government of the State, any public moneys that may be remaining in the treasury of said government.
“ Sec. 2. That the said public moneys shall remain subject to such appropriations as may be made by this legislature.
“ Sec. 3. That the treasurer shall file his receipt therefor with the auditor of public accounts, or a duplicate thereof.”
It will be observed that this resolution is obnoxious to all the criticism that is urged against the validity of the resolution which is brought especially under examination in this cause. It lacked the enacting clause directed by the constitution, and it contained no provision for being enforced within sixty days. Nevertheless it was acted upon immediately; the money was received into the treasury, and the legislature proceeded, during the session, to make appropriations, several of them by joint resolution, payable out of this fund, which, as is seen above, was placed exclusively under the control of that legislature. As soon as this fund was received into the treasury, the legislature passed the joint resolution now in question, in the words already quoted, “ That the auditor of public accounts be, and he is hereby directed to issue no more warrants upon the treasurer for the payment of money, until further orders.” This was approved on the 25th of October, and was shortly followed by another resolution, approved October 31st, 1865, to this effect, to wit: “ That the treasurer be, and he is hereby ordered not to pay out any moneys now remaining, or that may hereafter be received, in the treasury of the State, unless especially ordered by the legislature, until further orders.” Having thus undertaken to repeal all existing laws empowering the auditor to issue warrants, and authorizing the' treasurer to pay them, the legislature proceeded to define the powers and duties of these oificers in the future. By act approved December 2, 1865 (omitted in the
All this action of the legislature being on the same subject, and having but one object, is to be construed together, and regarded as forming but one law. It is plain that the two acts last named are based on the assumption that all authority to issue and- pay warrants had been repealed, and they restore that authority to the extent that it is intended to be afterwards exercised. They recognize the previous resolutions as having already taken effect, and they amount, themselves, to a provision that .the resolutions shall take effect, at least, from the date of the passage of these acts. Upon the hypothesis that the previous law contained in the code remained in force, these acts were wholly unnecessary and useless; for full authority in that ease would have- been already in existence, for the issuance and payment of warrants for all claims, whether accruing before or after the sixteenth of October. If the resolutions do not take effect from their passage, we will have the anomaly of two acts of the legislature, founded upon the resolutions, and designed to supply a defect in the law occasioned by their passage, actually taking effect three or four weeks in advance of the resolutions themselves. To avoid such a result, which could never have been contemplated by the legislature, we are justified in holding that these acts adopted and gave effect to the resolutions, at least from the date when they took effect. And we have the best authority for such a conclusion. In the
As the joint resolution of the 25th of October must, therefore, be held to have taken effect before the rendition of the relator’s judgment, and repealed the law authorizing the issuance of a warrant to the relator; and as the act of December 4th only restored the right in cases of claims accruing after October 16, 1865, it would follow that the judgment was in this respect erroneous.
The joint resolution of October 25 is the only legislative act expressly relied on in the return of the appellant, as a ground of his refusal to issue warrant demanded. But that resolution may be • laid wholly out of the question without affecting the result. It may, for all the purposes of the cause, be considered as never having been passed at all, and the decision can be safely rested entirely upon the act of December 4, already quoted. That act expressly authorizes the auditor to issue warrants for all claims accruing after the 16th of October, 1865. But, in the view we are now taking, there was already a law in
This act being passed, and taking effect before the judgment in favor of the relator, took away the only foundation on which that judgment could stand. Rey v. Goodwin, 4 Moore & Payne, 341; Butler v. Palmer, 1 Hill N. Y. 324; Smith on Const. and Stat. Law, 889.
The policy of the legislation under discussion is a matter with which this court has but little concern, yet it may not be altogether impertinent to allude briefly to the circumstances under which it was adopted.
The legislature met after the close of four years of exhausting and disastrous war. During its progress the people had cheerfully submitted to the greatest sacrifices, and had contributed, in taxes and voluntary offerings, enormous sums in money and property for the support of the cause. Production had been to a great degree suspended. The country had been ravaged in every direction, towns had been sacked and burned,
Under these circumstances, amid the doubt and uncertainty that rested upon the future, it is not at all surprising that the legislature should have determined to postpone the liquidation of the preexisting debts of the State to a more propitious period, and for the present to attempt no more than the collection of a sufficient amount of revenue to defray the necessary current expenses of the government. In doing so, it seems difficult to deny that the legislature exercised its legitimate powers in a wise and beneficial manner.
As regards the right of the civil officers exercising their function in those portions of the State not in the permanent occupation of the army of the United States, to receive their salaries for
In view of tbe whole case, tbe judgment of tbe court below will be reversed, and tbe petition of tbe relator dismissed, at bis costs in both courts.