Opinion
No. 28182.
December 9, 1929. Suggestion of Error Overruled January 20, 1930.
1. STATUTES. Decision holding statute abolishing salary system unconstitutional left salary statute in force ( Laws 1922, chapter 160; Laws 1920, chapter 122).
Result of decision holding unconstitutional Laws 1922, chapter 160, abolishing salary system provided for in Laws 1920, chapter 122, for county officers, was to leave Laws 1920, chapter 122, in force.
2. STATUTES. In construing statute, not only language, but purpose and policy legislature had in view, must be considered.
In construing statute, not only language, but purpose and policy which legislature had in view must be considered, and court will give effect to such purpose and policy, though interpretation may go beyond, or come within, mere letter of statute.
3. CONSTITUTIONAL LAW. In construing statute court will avoid, if reasonably possible, such construction as might render statute unconstitutional.
In construing statute, court will avoid, if it can be reasonably done, such construction as might render statute unconstitutional.
4. CLERKS OF COURTS. Under statute relating to salaries of county officers, circuit clerk's salary decreased, where county dropped from higher to lower class ( Laws 1920, chapter 122, sections 2, 5, 26; Constitution 1890, section 91).
Under Laws 1920, chapter 122, section 2 of which divides counties into five classes according to assessed value of property, and section 5 of which fixes salaries of circuit clerks in various classes, where county dropped from higher to lower class, circuit clerk's salary decreased, notwithstanding that section 26, provides for increase in salary, where county advances to higher class, but does not provide for decrease where county drops to lower class, since purpose of statute must be considered and Constitution 1890, section 91, provides that legislature shall not enact any law for one or more counties not applicable to all counties regulating charges and fees of officers, and court should if possible avoid construction which might render statute unconstitutional.
5. CLERKS OF COURTS. Circuit clerk was entitled to no more from county for deputy's services than he had paid deputy under contract to pay part of fees received ( Laws 1920, chapter 122).
Circuit clerk was entitled, under Laws 1920, chapter 122, to no more from county for deputy's services than he had already paid deputy under binding contract, whereby deputy was to receive part of fees of office.
6. CLERKS OF COURTS. That circuit clerk in fixing deputy's salary at amount not exceeding maximum in statute did so in ignorance of law did not entitle him to recover more from county for deputy's services than he paid ( Laws 1920, chapter 122).
That circuit clerk, in fixing deputy's salary under contract between them at an amount not exceeding maximum specified in Laws 1920, chapter 122, did so in ignorance of law, did not entitle circuit clerk to recover more from county for deputy's salary than he had paid deputy.
ON SUGGESTION OF ERROR. (Division B. Jan. 20, 1930.)COUNTIES. Law relating to increased salaries of county officers, based on assessed values, did not authorize increase from beginning of annual period ( Laws 1920, chapter 122, section 26).
Laws 1920, chapter 122, section 26, enacted as a cautionary measure to prevent higher salary of county officers by reason of increase in assessment from beginning at first of annual period rather than from time assessment is fixed, could not be enlarged so as to authorize such increase as effective from beginning of annual period.
APPEAL from circuit court of Chickasaw county, Second district. HON. T.E. PEGRAM, Judge.
George Bean, Jr., of Okolona, and Leftwich Tubb, of Aberdeen, for appellant.
A county officer who served after the passage of chapter 160, Laws of 1922, effective March 30, 1922, and who collected fees under the mistaken impression that they were entitled to fees and not entitled to salaries are entitled to and should recover their salary just as though chapter 160, Laws of 1922, had not been passed, the court having held that statute unconstitutional.
Moore v. Tunica County, 143 Miss. 821, 107 So. 659; Claiborne County v. Morehead, 145 Miss. 867, 111 So. 372; Calhoun Co. v. Cooner, 118 So. 706; Dugger v. Panola County, 139 Miss. 552, 104 So. 459; Jefferson Davis County v. Armstrong, 114 So. 354.
The fact that the board of supervisors had allowed a less sum than that to which an officer was entitled to receive and the fact that he had received, accepted and used it, did not estop him or bar him from claiming the full amount or the balance due him.
Hodnett v. Yallobusha County, 128 Miss. 772, 91 So. 454; 46 C.J. 1015; Flonary v. Barrett, 146 Ky. 712, 143 S.W. 38, Ann. Cas. 1913C 270; Bartholomew v. Springdale, 91 Wn. 408, 157 P. 1090, Ann. Cas. 1918B 432 and note; Calden v. Sykes, 77 Miss. 64; Throop on Public Officers, section 500.
Courts in construing a statute must seek the real intention of the legislature and then adopt such interpretation as will give effect thereto, though the interpretation may be beyond or within the mere letter of the statute.
Kennington v. Hemingway, 110 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.) 541, Ann. Cas. 1914B 392.
Courts must look to the statute itself for the legislative intent and cannot make law by judicial construction.
Abbott v. State, 106 Miss. 340, 63 So. 667; Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Prather v. George, 108 Miss. 670, 67 So. 157.
Where a statute is obscure, the court in construing it, must ascertain the conditions at the time of its enactment, the evil to be avoided, and the necessary effect produced by the statute.
Homer v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 366.
Where a statute is incomplete or defective, either as a result of inadvertence or because the case in question was not foreseen or contemplated, it is beyond the province of the court to supply the omission, even though the statute is a nullity.
36 Cyc., page 1113, par. "G."
Where a statute enumerates the things upon which it is to operate, or forbids certain things, it is to be construed as excluding from its effects all those not expressly mentioned.
36 Cyc. 1122, par. "i"; 25 R.C.L. 981, par. 229; Homer v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 366; State v. Tralor, 100 Miss. 544, 36 So. 521.
Section 2206, Code 1906, was not repealed by implication by chapter 102, Laws 1916, nor chapter 206, Laws 1924.
Moore v. Tunica County, 143 Miss. 821, 107 So. 659; Claiborne County v. Morehead, 145 Miss. 867, 111 So. 372; Calhoun Co. v. Cooner, 118 So. 706; State Revenue Agent v. Brame, 112 Miss. 665, 73 So. 721.
H.B. Abernethy and Haman McCraine, of Houston, for appellee.
If possible, both section 17 as amended and section 20, chapter 122, Laws 1920, must be read into the statute, since chapter 125 undertakes only to amend section 17 of chapter 122.
Board of Supervisors of Lauderdale County v. City of Meridian, 114 So. 803; Madison County v. Collins, 87 Miss. 204, 30 So. 610; Swan v. Buck, 40 Miss. 268. See pages 299-301.
If the deputy was not entitled to draw salary from the state, a payment of his salary by the clerk is voluntary payment for which he may not recover. Board of Supervisors v. Kline, 51 Miss. 807; Anderson v. Issequena County, 75 Miss. 896, 23 So. 310.
The provisions of the entire statute must be considered together.
Clay County v. Chickasaw County, 44 Miss. 534; Claiborne County v. Morehead, 111 So. 372, 145 Miss. 867.
Chapter 122 of the Statute Law of 1920, as amended, is unconstitutional for failure by the legislature to observe the requirements of section 78 of the State Constitution or to make provisions respecting county officers according to such constitutional requirements.
The cases of Moore v. Tunica County, Claiborne County v. Morehead, Calhoun County v. Cooner, and Jefferson Davis County v. Armstrong, do not necessarily control the case at bar for the reason that no vested right to appellant could result in this matter therefrom.
Argued orally by C.L. Tubb, for appellant, and by Thos. L. Haman, for appellee.
Appellant brought this action against the appellee, Chickasaw county, in the circuit court of that county, to recover the sum of nine hundred ninety-four dollars and twenty-five cents. By agreement of the parties the cause was tried before the court, sitting as both judge and jury, and resulted in a judgment in favor of the appellant in the sum of three hundred forty-four dollars and seventy-five cents, from which judgment he prosecutes this appeal.
Appellant is now circuit clerk of Chickasaw county, and has been since January 7, 1924. The suit is for salary which appellant claims is due him by the county for his services as circuit clerk for the period beginning January 7, 1924, to April 12, 1924; and for salary due him for the services of his deputy, King, for the same period. Chickasaw county is divided into two judicial districts, and the deputy, King, was in charge of the circuit clerk's office at Okolona.
The action was brought under the provisions of chapter 122 of the Laws of 1920. The material facts of the case were undisputed. Appellant conducted the office of circuit clerk during the year 1924 on the theory that chapter 160 of the Laws of 1922, abolishing the salary system provided for in chapter 122 of the Laws of 1920, was valid. Moore v. Tunica County, 143 Miss. 839, 108 So. 900, in which case the court held that chapter 160 of the Laws of 1922 was unconstitutional, had not been decided. The result of that decision was to leave the salary statute, chapter 122 of the Laws of 1920, in force.
Appellant made a contract with his deputy, King, who had charge of the office in the Okolona district, by which the latter was to receive, as compensation for his services, all the fees that office brought in, except one-half of the marriage license fees, and one-half of the lost costs.
The amount of salary to which appellant was entitled for his services as circuit clerk turns upon the construction of certain provisions of chapter 122 of the Laws of 1920, which will now be considered.
Section 2 of the act provided that the counties of the state should be divided into five classes, numbered from one to five; that such classification of the counties should be according to the assessed valuation of all property of each county, consisting of real, personal, and public service corporations — class No. 1 to be composed of all counties in which the assessed valuation is thirteen million dollars; No. 2, of all counties in which the assessed valuation exceeds ten million dollars and is less than thirteen million dollars; No. 3, of all counties in which the assessed valuation equals seven million dollars, and is less than ten million dollars; No. 4, of all counties in which the assessed valuation exceeds five million dollars, and is less than seven million dollars; and, No. 5, all counties in which the assessed valuation is less than five million dollars. Section 5 of the act is as follows:
Class number one ............................ $3,500.00 per annum Class number two ............................ 3,250.00 per annum Class number three .......................... 2,750.00 per annum Class number four ........................... 2,000.00 per annum Class number five ........................... 2,000.00 per annum Section 20 of the act provides, among other things, that in counties with two judicial districts, circuit clerks shall receive two hundred fifty dollars more than circuit clerks in other counties in the same class.Section 26 of the act provides as follows: "Wherever the assessed valuation of any county shall have so increased as to raise it to any class above, the officers of such county shall from the time the assessment is fixed, receive the salary of such class to which it has advanced."
It will be observed that the latter section provides for an increase in salary where a county advanced from a lower to a higher class. There is no provision in the statute, however, providing for a decrease in salary where a county dropped from a higher to a lower class. When chapter 122 of the Laws of 1920 went into effect, the assessed valuation of property in Chickasaw county was over seven million dollars, and less than ten million dollars; the county being at that time, therefore, in class No. 3. In 1921 the assessed value of the property of the county was less than seven million dollars, and over five million dollars; the county, therefore, had dropped into class 4; and this assessed valuation continued during the year 1924.
We will leave out of view, for the present, the salary claimed by appellant for his deputy, King, and consider the salary claimed by him for his own official services.
Appellant takes the position that when chapter 122 of the Laws of 1920 became effective, the salaries of the circuit clerks of the various classes of counties, as provided in the act, became fixed as the minimum salaries to be received by them, notwithstanding some counties afterwards dropped from a higher to a lower class. Appellant lays emphasis on the language used in sections 2 and 5 of the act. In section 2 of the act this language is used in referring to the salaries therein provided for: "And are hereby fixed as follows." Section 5 of the act provides: "The salary of the circuit clerk is hereby fixed in the various classes as follows."
Appellant argues that, if the legislature had intended that the salaries of the circuit clerks should decrease when their counties dropped from a higher to a lower class, the act would have so provided, since it makes provision in section 25 for an increase in their salaries when the counties go up from a lower to a higher class.
There is a good deal of force in that argument. In construing a statute, however, not only the language, but the purpose and policy, which the legislature had in view, must be considered. The court, in construing a statute, will give effect to such purpose and policy, though the interpretation may go beyond, or come within, the mere letter of the statute. Kennington v. Hemingway, 101 Miss. 259, 57 So. 809, 39 L.R.A. (N.S.) 541, Ann. Cas. 1914B 392; Canal Bank v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127; Hammer v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466.
One of the outstanding purposes of chapter 122 of the Laws of 1920 was to base the salaries of certain county officials named in the statute, including circuit clerks, on the assessed values of their counties for the purpose of taxation. If appellant's contention be sound, the whole scheme of the statute in that respect might be defeated. For illustration, suppose this condition existed when the statute went into effect: That there were ten counties of the state in class 1, the salaries of the chancery clerks of such counties being fixed by the act at three thousand five hundred dollars per annum; and ten counties in class 5, in which the salaries of the circuit clerks are fixed at two thousand dollars per annum. That during the years since the act went into effect the ten counties in class 1 have dropped in value to class 5, while the ten counties in class 5 have remained in that class. The result would be that the circuit clerks of the ten counties which had dropped from class 1 to class 5 would be receiving three thousand five hundred dollars per annum, while the circuit clerks in the counties in class 5, which had remained in that class, would be getting only two thousand dollars per annum, although the assessed value in each case might be the same. Furthermore, in construing a statute, such construction must be placed upon it, if it can be reasonably done, as will preserve its constitutionality. Section 91 of the Constitution provides that the legislature shall not enact any law for one or more counties not applicable to all the counties of the state, increasing the uniform charge for the registration of deeds, or regulating costs, charges, and fees of officers. We would not be understood as holding that, if the statute were construed as appellant contends it should be, it would violate that provision of the Constitution. It is not necessary to decide that question, which, however, is sufficiently grave to be influential with the court in ascertaining the purpose and meaning of the statute. In construing a statute the court will avoid, if it can be reasonably done, such a construction as might render the statute unconstitutional.
We are of opinion that, taking the statute under consideration as a whole, viewing its language and policy all together, the legislature intended that the salaries of the circuit clerks should decrease as well as increase, according to the changing classes of the county, whether up or down. As we view it, this question was necessarily decided against appellant's contention in Claiborne County v. Morehead, 145 Miss. 867, 111 So. 372. The question was not discussed in the opinion in that case, it is true. Appellant contends that the agreed facts in the case obviated the necessity for the court to decide this point; we do not think so. It is true that it was agreed by the parties that Claiborne county had dropped from class 4 to class 5; but there was no agreement in the case as to the legal consequences of such a change; and that was the very question which the court decided.
The trial court held that in the present case appellant was entitled to recover nothing as salary for his deputy, King, for the reason that King had received the full compensation for his services fixed by appellant when the former went into office. As above shown, King was to receive part of the fees of the office at Okolona as his compensation — that was the contract between appellant and King. It was a binding contract between them, and appellant was entitled to no more from the county for King's services than he had already paid the latter. Under the statute, appellant was authorized to fix King's salary at an amount not to exceed a certain maximum; he did that. It is true that it was done in ignorance of the law, but we are unable to see why appellant should be allowed to take advantage of that fact.
We are of the opinion that the other question argued by appellant is not sufficiently grave to call for a discussion by the court. As we understand the record, the trial court committed no error in charging certain credits against his salary for the period sued for.
Affirmed.
ON SUGGESTION OF ERROR.
Appellant earnestly argues that we have, in the opinion heretofore rendered in this case ( 125 So. 96), disregarded the maxim of construction, expressio unius est exclusio alterius, in respect to section 26 of chapter 122, Laws 1920, which section is quoted in full in that opinion.
In order for appellant to successfully invoke that maxim as applicable to this chapter of said laws, it is necessary for appellant to give an enlarged interpretation to said section 26. The opening sections of the chapter fixed annual salaries for the officers, and based these salaries on the assessments for the several respective years. If section 26 had been omitted, then, when the assessment for a given year, approved late in that year, was increased so as to take the county into a higher class, the salary for the officer would thereby not only be increased to the said higher class, but the increase would by relation be effective from the beginning of the annual period. Section 26 is therefore a cautionary section, and was inserted for the purpose of providing that the higher salary should begin, not from the first of the annual period, but only "from the time the assessment is fixed." That was the sole purpose of that section; and it therefore cannot be enlarged to the further and broader purpose insisted upon by appellant, and upon which enlargement of interpretation appellant bases his whole case.
Overruled.