Whitney v. State, 52 Miss. 732

Whitney v. State

52 Miss. 732 | Miss. | 1876

Chalmers, J.,

delivered the opinion of the court.

Eli Whitney brought suit against the state of Mississippi,, and recovered judgment in the circuit court of Hinds county,, for the sum of $4,260, on an open account for fire-arms, sold and delivered to the state in 1860. His judgment was for the principal sum of his account, without interest. He appeals,, and assigns for error that he was refused interest on the debt. The state also appeals upon the ground that, the fire-arms having been furnished for purposes of rebellion against the United States government, payment therefor is prohibited by the constitution of the state and of the United States, and upon the further ground that plaintiff’s account, if ever valid, was barred before suit brought by the statute of limitations of three years. We will first consider plaintiff’s claim for interest. Is the state liable for interest ? This question is answered broadly in the. *737affirmative in Swann, auditor, v. Turner, 23 Miss., 565. Upon tbe authority of Judge Story, in case of Thorndike v. The United States, 8 Mason, the language used would seem to go to the extent of holding that interest would run against the state, as against an individual, from the date of the contract, but in The State v. Mayes, 28 Miss., 706, this doctrine is modified, and it is said that, “as a general rule, the state is not bound to pay interest, and in cases of this kind, where the contract contemplates the action of the legislature in order to pay the claim, it is to be presumed to have been made with reference to such action, and not to be a complete debt until the demand be made. Of course interest could not be claimed until such demand was made to the legislature, because no default would have occured until such demand.”

The doctrine here announced seems to be that contracts against the state will not bear interest from date or maturity, but they will bear interest from the time when demand of payment is made upon, and refused by, some officer authorized to pay them.

In the case at bar it was admitted by the attorney general, on behalf of the state, “that the account sued on had repeatedly been presented for payment to the auditor of public' accounts, and payment demanded and refused, prior to the institution of the suit.” It was impossible to award any interest, on such an admission as this (save perhaps from the institution of the suit), because of the failure to specify the dates of these presentations to the auditor.

Plaintiff’s attorney testified that he presented the claim to the auditor, and that payment was refused, about two weeks before the suit was brought.

Was plaintiff entitled to interest from that date? This would seem to depend on the question whether the auditor could have paid it, or was under a legal obligation to do so, without action by the legislature.

The arms were purchased under the provisions of an act *738approved December 15, 1859 (Acts of 1859, p. 128), whereby the sum of $150,000 was appropriated, to be expended by the governor in the purchase of arms for the militia of the state, and in the repairing of those on hand. It is provided that ‘ ‘ the auditor shall issue his warrants on the treasurer for such parts thereof as the governor may, from time to time, by his written order direct.”

It would seem, therefore, that in order to show a legal obligation on the auditor to issue warrants in favor of plaintiff, at the date of the commencement of this suit, in 1874, it should have been established that the appropriation made in 1859 had not been exhausted, and that plaintiff held the order of the then governor directing such issuance. Neither of these circumstances were shown. Moreover, by several resolutions of the legislature of 1865, the auditor was prohibited from issuing warrants in favor of past claims against the state, without special authority from the legislature, the object being to prevent the issuance of warrants on a vast body of demands claimed to have accrued before and during the war. Acts of 1865, pp. 249, 252, 248.

It is thus made manifest that the auditor had no authority to have made the payment demanded before the bringing of the suit, and, consequently, within the principle laid down in The State v. Mayes, supra, the state is not liable for interest. This disposes of the assignment of error by the plaintiff.

We held in Board of Supervisors of Warren Co. v. Klein, 51 Miss., 808, that auditor’s warrants do not bear interest; this is upon the ground that such instruments are in the nature of bank checks, and will be paid upon presentment, if there be funds in the treasury. In the one case, the state has made a settlement; in the other, she has refused to do so.

The state, by her legal representative, the attorney general, relies upon the statute of limitations, and illegality of the contract. The statute of limitations constitutes no defense., because, although more than three years intervened between *739the making of the contract and the bringing of the suit, that period had not elapsed since- the adoption of the new Code, October 1, 1871, by virtue alone of which the state was made amenable to suit. Without some statutory enactment permitting it, the state cannot be sued. From the abolition of the old superior court of chancery, by -constitutional amendment in 1856, to the adoption of the code of 1871, we had no such statutory provision.

The statute of limitations never runs where there is no person in being against ivhom a suit can be maintained. Angell on Lim., 49 ; Abbott v. McElroy, 10 S. & M., 100 ; Dowell v. Webber, 2 S. & M., 452.

There is nothing whatever in the position that the payment of the debt sued on is prohibited by those clauses of the state and federal constitutions which forbid the assumption or payment of debts contracted in aid of the rebellion. The act authorizing the purchase of the arms in question was passed on 15th of December, 1859, and the contract entered into in June, 1860. Similar purchases, for the pui’pose of arming their militia, were at that day, and are at present, quite common to all the states, and there is no more justification or pretense for saying that the passage of the act of December, 1859, was part of a deep laid conspiracy to subvert the Union, than there would be for declaring hereafter, in the event of civil disturbances growing out of the presidential election just passed, that the state of Mississippi was fomenting and preparing for such an emergency, by the acts of her legislature, adopted two years ago, authorizing the purchase of Gatlin guns and other fire-arms.

The judgment is affirmed.