Opinion
No. 33529.
December 5, 1938.
1. EVIDENCE. Statutes.
The statute authorizing Hancock county board of supervisors to borrow money to pay outstanding county warrants and accounts approved by board validating warrants and accounts, and authorizing bond issue is not a "private act," but is a "local and public act," and the chancery court could take judicial notice of statute and its contents (Laws 1938, Ex. Sess., ch. 134; Const. 1890, secs. 87, 89).
2. CONSTITUTIONAL LAW.
In proceedings for validation of Hancock county funding bonds wherein constitutionality of statute authorizing bond issue was attacked, county was not required to show compliance with constitutional provisions outlining how local and private legislation should be passed in the Legislature (Laws 1938, Ex Sess., ch. 134; Const. 1890, sec. 89).
3. ABATEMENT AND REVIVAL.
Whether persons objecting to Hancock county bond issue on ground that statute authorizing issuance of bonds to evidence loan was unconstitutional were taxpayers was matter in abatement, going to the incapacity to sue, and the matter was waived where parties went into a trial on the merits without having the point first decided by the chancellor.
APPEAL from the chancery court of Hancock county; HON. D.M. RUSSELL, Chancellor.
Edward I. Jones, of Bay St. Louis, for appellants.
The court erred in taking judicial notice of a local and private act of the Mississippi State Legislature.
Jones on Evidence (4 Ed.), par. 501; Leland v. Wilkinson, 6 Pet. (U.S.), 317, 8 L.Ed. 412; Ellis v. Eastman, 32 Cal. 447; Prather v. Springfield, 202 Ill. App. 406; Altgeld v. Gutzoit, 187 S.W. 220; Pearl v. Allen, 2 Tyler (Vt.), 315; 11 Am. Dec. 780; 89 Am. Dec. 670; 4 L.R.A. 40; Davis v. Whidden, 117 Cal. 618, 49 P. 766; Lincoln v. Battelle, 6 Wend. (N.Y.), 475; Henley v. Donoghue, 116 U.S. 1, 6 Sup. Ct. 242, 29 L.Ed. 535; Osborn v. Blackburn, 78 Wis. 209, 23 Am. St. Rep. 400, 10 L.R.A. 367, 47 N.W. 175; Eastman v. Crosby, 8 Allen (Mass.), 206; Haines v. Hanrohan, 105 Mass. 480; Biddis v. James, 6 Binn. (Pa.), 321, 6 Am. Dec. 456; Smith v. Potter, 27 (Vt.), 304, 65 Am. Dec. 198; Sec. 1597, Code of 1930; Falls v. U.S. Sav., etc., Co., 97 Ala. 417, 31 So. 25, 38 Am. St. Rep. 194, 24 L.R.A. 174; Walker v. Armstrong, 2 Kan. 198.
By the failure of the proponents of the bond issue to introduce in evidence the private act upon which they rely, there is nothing before the court granting the board of supervisors the power and authority to issue the bonds in question except the general laws of the State of Mississippi and the proceedings, resolutions, etc., of the board as reflected by the record herein, are wholly insufficient under the general law, as this learned court decided in the case of Ben F. Lee v. Hancock county, 178 So. 790.
Because of the act not being introduced, and the provisions and conditions of the act not being before the court appellants did not introduce evidence in the record which they would have introduced had the local and private bill been offered in evidence, and because of this error in the lower court, we believe that this case should be reversed and dismissed, or remanded with the right for the proponents of the bond issue to introduce in evidence the local and private act.
The second assignment of errors is that the local and private act is unconstitutional.
It violates Section 87 of the Constitution in that it is a local and private bill, for the benefit of individuals and private corporations in cases which are provided for by general law, and where relief can be given by the courts of this state.
It is an attempt to suspend the operation of a general law by a local and private act of the Legislature for the benefit of individuals and private corporations and associations.
This act purports to validate, confirm and legalize accounts claimed by Hancock county to be owing by it, which would be for the benefit of the individual members of the board.
Sections 3973, 3974 and 3975, Code of 1930.
The part of the act which attempts to validate $75,000 of accounts and obligations could not possibly be construed for the benefit of the county and as we contend, the county is not liable for any account or obligations incurred by the board of supervisors over and above the amount budgeted, and the total amount which could possibly be expected to be collected in taxes by the use of the maximum levies set by statute calculated upon the total assessible property of the county, and after the depletion of the funds so collected, the members of the board became personally liable for any obligations thereafter incurred, and if the local and private statute were upheld as constitutional in validating the excessive expenditures of the board of supervisors it would not be for the benefit of the individual members of the board, and of course this is absolutely unconstitutional.
Miller v. Tucker, 105 So. 774.
There can be no possible reason for the validation of accounts and claims to be due by the county for the reason that if they were not valid and legal, no local and private statute could make them so, and if they were valid and legal, no statute would be necessary to declare them so.
If the boards of supervisors can, with impunity, allow claims and incur debts for fabulous amounts in excess of the annual revenue and thereafter to avoid personal liability which is the penalty prescribed by Section 3975 hereinabove cited, secure the passage of a local and private bill of the Legislature validating, legalizing and approving these large deficiencies and also secure authority by a local and private bill to issue bonds of the county to secure funds to pay the deficiency, then the taxpaying public are without the protection.
Sections 3973, 3974 and 3975, Code of 1930.
House Bill No. 48 of the Extraordinary Session of 1938 violates Section 89 of the Constitution in that said act was not passed in accordance with said section and the journals for both the house and senate fail to show any committee reports.
Section 89 of the Constitution.
The Constitutional Convention of 1890 was composed of wise and experienced men, knowing that many local or special laws would not be challenged in the courts, and in many places of the constitution they sought to discourage, hamper, limit and restrict the passage of local laws in several ways, first, by making general restrictions eliminating individuals and private corporations from obtaining any benefit from local and private laws, then by declaring that no special law shall be enacted where a general law could be made applicable, and the constitution, in many other places, recognize the truth that laws ought to be general, if not universal.
Ethridge on Mississippi Constitutions, pages 203 and 204; Witherspoon v. State, 103 So. 134.
The court erred in validating said bonds for the reason that there is nowhere shown in the record, a proper and sufficient adjudication of the warrants, accounts and other obligations of said county, by the board of supervisors, adjudicating that they were valid, legal and binding obligations of the county.
Geo. R. Smith, of Gulfport, and W.J. Gex, Jr., and Robert L. Genin, both of Bay St. Louis, for appellee.
In relying upon Section 1597, Code of 1930, appellant has failed to observe the distinction between a private law and a local law. This distinction is stated in 59 C.J. 736, as follows: "A public local law and a special law are to be distinguished in that a local law applies to all persons within the territorial limits prescribed by it, while a special law applies to a particular person or things of a class. . . . The term 'private' has been sometimes used as synonymous with 'special.' . . . A public law is one which concerns the interests of the public at large. A public law may be a general, local or special law."
6 Words Phrases, (1st Series,) page 5568; Sasser v. Martin, 29 S.E. 278, 101 Ga. 447; People v. Wright, 70 Ill. 388; State v. Chambers, 93 N.C. 600.
A "special" or "private" act is one operating only on particular persons and private concerns; a "local act" is one applicable only to a particular part of the legislative jurisdiction.
6 Words Phrases (3rd Series) page 116; Trumper v. School Dist. No. 55 of Musselshell County, 173 P. 946, 55 Mont. 90; Davis v. State, 37 So. 454; Carson v. State, 69 Ala. 236; Compton v. State, 95 Ala. 27, 11 So. 69; Sanders v. Young, 124 So. 225.
In the second assignment of errors appellant contends that H.B. #48 is in violation of Section 87 of the Constitution which prohibits the enactment of special laws for the benefit of individuals or corporations in cases which can be provided for by general law. Appellant seeks to reason that as much as the obligations to be paid out of the proceeds of the bond issue may be held by private individuals or corporations that the bill comes within the constitutional prohibition. This line of reasoning is, we submit, hyper-technical and strained, to say the least. If such were the rule to be applied to the construction of statutes all legislation must surely fall within its scope as all legislation has some bearing or effect upon the economic or social relationship of people.
Feemster v. Tupelo, 121 Miss. 733, 83 So. 804.
The statute in the case of Miller v. Tucker, 142 Miss. 146, 105 So. 774, sought to validate the action of members of the board of supervisors who had incurred certain personal liabilities because of unauthorized expenditures of public funds, and were therefore liable upon their official bonds. Under Section 100 of the Constitution any legislation, the purpose of which would be to relieve such liability, would be unconstitutional, and the court very properly held that act unconstitutional. H.B. #48 is in no manner comparable to the act involved in the Miller case. This act merely authorizes the board of supervisors of Hancock County to issue bonds in an amount not to exceed $75,000 for the purpose of providing funds to pay legal and valid existing obligations of the county. We respectfully submit the provision relative to validating such obligations cannot be construed to relieve any liability, real or imaginary, against the members of the board of supervisors.
Memphis Ry. Co. v. Bullen, 154 Miss. 536, 121 So. 826; Barron v. McComb, 141 So. 765, 163 Miss. 337.
The rule of law in construing a statute as to its constitutionality is stated in 59 C.J., page 642: ". . . in determining the question the rule is that if, when the invalid part is stricken out, that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained to that extent . . ."
State v. Gulf, etc., R. Co., 104 So. 689, 138 Miss. 70; American Express Co. v. Beer, 65 So. 565, 107 Miss. 528, Ann. Cas. 1916D 127; 59 C.J. 646; Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692; Tucker Printing Co. v. Bd. of Sup'rs., Attala County, 158 So. 336, 171 Miss. 608.
If appellant wishes to charge the members of the board of supervisors with violation of the budget law we suggest that law provides its own remedy and such charges have no place in this proceeding.
Gilbert v. Pineville Consolidated School Dist., 159 Miss. 71, 132 So. 101.
In view of the record in this case, the statement of this court in the case of Hunt v. Wright, 70 Miss. 298, quoting Ex Parte Wren, 63 Miss. 512, is appropriate: "That the Legislature, as a co-ordinate department of the state government, invested by the Constitution with legislative power, is not subject to supervision and revision by the courts as to those rules of procedure prescribed by the Constitution for its observance, because, while those rules are all authoritative and mandatory to legislators, who are sworn to note and observe them, they exhaust themselves upon legislators and are not for the consideration of courts, which cannot explore legislative journals to see if all the directions of the Constitution were observed, but must accept as legislative enactments, duly passed as prescribed by the Constitution, all such acts as are duly authenticated as such in the mode prescribed by it.
State ex rel. Collins v. Jackson, 119 Miss. 727, 81 So. 1; Witherspoon v. State, 138 Miss. 310, 103 So. 134.
Argued orally by Edward I. Jones for appellant and by W.J. Gex, Jr., Geo. R. Smith and Robert L. Genin for appellee.
By chapter 134, Laws Extraordinary Session 1938, page 176, the legislature passed an act authorizing the Board of Supervisors of Hancock county to borrow $75,000, or so much thereof as may be necessary, for the purpose of paying county warrants and accounts theretofore approved by that board, and which were outstanding and unpaid, "which said warrants and accounts are hereby validated as lawful and binding obligations of said county." The board was authorized to evidence such loan by the issuance of bonds or certificates of indebtedness of said county, to be executed on behalf of the county by the signature of the president of the board, countersigned by the clerk thereof, under the seal of the board, such bonds to bear interest at a rate not to exceed six per cent per annum, payable semi-annually, and for a time not exceeding ten years; making it the duty of the Board of Supervisors annually to levy upon all taxable property within said county an ad valorem tax sufficient to pay said bonds or certificate as they mature, and the interest thereon as it accrues, the proceeds of such levy to be used for no other purpose. Section 3 of the act provides that the board may sell such bonds at no less than par and accrued interest, and that they shall not be subject to other provisions, restrictions or limitations of law as to amount of indebtedness or otherwise.
In pursuance of this authority the Board of Supervisors gave due notice of its purpose to issue said bonds, and the bonds were issued in pursuance of such notice, being referred to the state bond attorney for his opinion as to their legality, etc. He approved the bond issue as being legal and proper, constituting a valid obligation against the county. Thereupon proceedings for validation of the bonds were had in the chancery court of Hancock county, notice thereof being given in the manner prescribed by the statutes.
Objections to the bond issue were filed by Norton Haas on the ground that, "The local and private act under which said bonds are attempted to be issued is unconstitutional, in that it violated the Constitution of the State of Mississippi:" Thereafter certain other parties filed objections on the same grounds. These objections failed to specify in what respect the act, in their opinion, violated the Constitution. To the objections the county filed an answer, setting up that Haas, Davidson and other parties were not entitled to file the objections, because they were not taxpayers. No proof was taken on that proposition, but the proceedings were introduced in evidence before the chancellor, the case was argued before him, and he found the bonds to be valid, reciting that the cause came on for hearing on the objections of the parties named. He held the bonds to be valid, constituting an obligation against the county; from which decree, validating the bonds, this appeal is prosecuted.
On the appeal it was argued that the act is a private act, and was not introduced in evidence; and that the court erred in taking judicial notice of it.
In our judgment this is not a private act, but a local and public act, and the court should have taken judicial notice of the passage of the law and its contents. See 59 C.J. 736, where it is said that if "a public local law and a special law are to be distinguished in that a local law applies to all persons within the territorial limits prescribed by it, while a special law applies to particular persons or things of a class. . . . The term 'private' has been sometimes used as synonymous with 'special.' . . . A public law is one which concerns the interest of the public at large. A public law may be a general, local or special law." See, also, 6 Words and Phrases, First Series, page 5568; and 6 Words and Phrases, Third Series, page 116.
It is argued that this act specifically suspends a general law in favor of the county, and for that reason violates section 87 of the Constitution, and that it was not made valid by a proceeding in accordance with section 89 of the Constitution, outlining how local and private legislation shall be passed in the legislature, and if passed in accordance with the provisions of that section, the court shall not refuse to enforce it because of its local and private nature. The contention as to it being a private law, or a law in favor of private persons, is decided against in the case of Feemster v. Tupelo, 121 Miss. 733, 83 So. 804.
The argument that it developed upon the county to show a compliance with the provisions of section 89 of the Constitution on the part of the legislature is ruled against by the opinion in the case of State ex rel. v. Jackson, 119 Miss. 727, 81 So. 1, where it was held that the Court would not look to the journals of the legislature to see whether the legislature had complied with the provisions of section 89 of the Constitution in the passage of a local, private or special law. The Court there decided that it would not consider the journals, and would not undertake to review legislative proceedings, when they had been certified by the speaker of the house and the presiding officer of the senate, as having been passed in accordance with the Constitution, or to have been duly and properly passed.
The question is now foreclosed, whatever might be said by way of distinction between section 89 of the Constitution and other rules of procedure in the Constitution, and is not now open for decision.
We do not feel called upon to decide now who should assume the burden of proof with reference to whether or not the objectors were taxpayers. It is a matter in abatement, going to the capacity of the parties to sue. By going into a trial on the merits, without having the point first decided by the chancellor it is waived. Burroughs Co. v. Murphy, 131 Miss. 526, 95 So. 515, 518.
We find no error in the action of the court below, and its judgment is affirmed.
Affirmed.