Opinion
No. 33830.
October 23, 1939.
1. STATUTES.
Except as to retrospective enactments clearly expressed as such, and as to those wherein the terms are precise to the effect that their operation is confined to a state of presently existing facts, all statutes are prospective and operate upon the future.
2. SHERIFFS AND CONSTABLES.
Under statute providing in certain respects an increased compensation for sheriffs in all counties in state "now having or which may hereafter attain a population of 32,000 or over," the current federal census was the exclusive evidence of the population of the county (Code 1930, sec. 1804).
APPEAL from the circuit court of Copiah county; HON. J.F. GUYNES, Judge.
W.S. Henley, of Hazlehurst, for appellant.
This appeal involves the construction of Section 1804, Code of 1930.
Section 1804 of the Code was enacted as Chapter 227, Laws of 1928. Previous to this time a somewhat similar section was in effect, being Chapter 207 of the Laws of 1924. The last mentioned section was construed in the case of Norsworthy, Sheriff, v. Forrest County, 145 Miss. 55, 111 So. 144.
The case of Brown v. Reeves, 129 Miss. 755, 92 So. 825, involves the construction of a statute dealing with the salary of a member of the board of supervisors. The statute involves Sections 2194 and 2195, Code of 1906 (Sections 1778 and 1779, Hemingway's Code). These sections merely classified the counties according to population.
The distinction involved between the present situation and that in the case of Brown v. Reeves is that Section 1804, Code of 1930 by its expressed terms applied to "All counties in this state now having or which may hereafter attain a population of 32,000." The Legislature very clearly intended and provided that a county would be reclassified whenever it attained the specified population.
In the case of Smith v. Chickasaw County, 125 So. 97, the Mississippi Supreme Court very clearly held that a circuit clerk's salary would change whenever the assessed valuation changed, and that such salary would not only be increased, but would be decreased dependent upon such condition.
It would not seem that any other reasonable construction could be placed upon Section 1804, except that the Legislature clearly intended that the compensation provided for would change whenever the conditions (population or assessed valuation either changed). The wording of this statute clearly places it in a different situation from that of the usual classification statute.
Brown v. Reeves does not hold that the Federal Census is the only way to ascertain the population of a county.
The courts have uniformly held that population may be estimated using the census as a factor.
23 C.J. 162; Menasha Woodenware Co. et al. v. Town of Winter et al., 150 N.W. 526; Kokes v. State ex rel. Koupal, 76 N.W. 467; Louisville N.R. Co. v. Johnson, 33 So. 661; Gordon v. Lowry, 217 N.W. 610; Blessing v. Davis, 92 N.W. 740; Grimm v. Bayfield County, 182 N.W. 466.
We respectfully submit: (1) That the sheriff's account was properly filed and itemized in the manner required by law with the utmost detail, was approved as to its correctness by the district attorney, and the correctness thereof was established by uncontroverted testimony. (2) That the evidence shows beyond a shadow of a doubt that during the year 1938 Copiah County had a population in excess of 32,000. Therefore, Section 1804, Code of 1930, was applicable; and that, (3) Said account should have been allowed by the court below.
M.S. McNeil, of Hazlehurst, for appellee.
It is the opinion of the writer that the judgment entered is not a final judgment from which an appeal can be prosecuted to this court, and therefore this cause should be dismissed.
3 C.J. 441, par. 258; Perkins v. Thompson, 127 Miss. 864.
We are of the opinion that whenever an officer's salary or compensation is graduated by statute according to the population that the population should be governed by some fixed standard, and we can imagine no better rule than that laid down in Brown v. Reeves, 129 Miss. 755, 92 So. 825.
The court was correct in holding that the account was not authorized by law and not properly itemized.
Counsel for the appellant cites the case of Norsworthy, Sheriff, v. Forrest County, 145 Miss. 55, 111 So. 144, as authority for the allowance of costs to the sheriff in justice of the peace courts. He evidently overlooked the fact that the rule as laid down in the Norsworthy case is no longer the law of the state.
Laws of 1934, Ch. 240, H.B. 709.
Argued orally by W.S. Henley, for appellant, and M.S. McNeil, for appellee.
Appellant exhibited his petition in the circuit court praying that he be allowed, for the year 1938, the fees specified in Section 1804, Code 1930, which section provides in certain respects an increased compensation "in all counties in this state now having or which may hereafter attain a population of 32,000 or over." Petitioner averred and offered evidence to prove that the population of the county had increased to more than 32,000.
The county defended on the ground, among others, that the federal census of 1930 showed for that county a population of 31,614 and relied on Brown v. Reeves, 129 Miss. 755, 92 So. 825, which holds that, unless otherwise definitely expressed in the particular legislative enactment, the current federal census is the exclusive evidence of the population of the state, county, city, town, township and village. The trial judge ruled that the case is governed by Brown v. Reeves, supra, and disallowed the petition.
Appellant urges that the difference in the language in the statute which was considered in the cited case as against the language of the statute now before us, will allow a distinction. The language of the statute dealt with in Brown v. Reeves was as follows: "In counties having more than forty thousand inhabitants," etc.
Except as to retrospective enactments clearly expressed as such, and except as to those wherein the terms are precise to the effect that their operation is confined to a state of presently existing facts, all statutes are prospective and operate upon the future, — which is to say, they apply to facts as and when the facts come into existence, and in the future as regards the date of the passage of the statute. There is, therefore, no substantial difference in legal meaning, so far as future developments are concerned, between an enactment which recites that it shall apply to counties "having a population" etc. and one which recites that it shall apply to counties "now having or which may hereafter attain a population," etc.
Responding to the point that there has been no final judgment, we think the recitals thereof are equivalent to a dismissal without prejudice.
Affirmed.