In Greaves v. Hinds County, 166 Miss. 89, 145 So. 900, it was held that (Hn 2) statutes which deal with the same subject matter, although in apparent conflict, should, so far as reasonably possible, be construed in harmony with each other so as to give force and effect to each, and it was further held that where a general statute, if standing alone, would include the same subject matter as a special statute, the special statute will ordinarily be regarded as a qualification of the general statute.Summary of this case from McCullen v. State ex Rel. Alexander
January 30, 1933.
Statutes in pari materia, although apparently conflicting, should, if possible, be construed in harmony with each other to give effect to each.
Where general statute, if standing alone, would include same matter as special statute, special statute will ordinarily be regarded as qualification of general statute.
3. DISTRICT AND PROSECUTING ATTORNEYS.
District attorney, without attorney-general's approval, held unauthorized to sue county supervisors to recover for county allegedly excessive salaries (Code 1930, sections 4363, 4366).
ANDERSON, J., dissenting.
APPEAL from Circuit Court of Hinds County.
L.C. Hallam, Leon F. Hendrick, and Watkins, Watkins Eager, all of Jackson, for appellants.
The district attorney was without power to institute or prosecute this suit.
The court committed error in permitting appellee to recover against appellants and the sureties on their official bonds. The compensation which the members of the board of supervisors allowed and caused to be paid to themselves was authorized and in strict accordance with the statutes of the state of Mississippi.
Chapters 215 and 216, Miss. Laws 1926; Chap. 89, Miss. Laws 1928; Chap. 29, Miss. Laws 1929, Extraordinary Session, and Sec. 6504, Miss. Code of 1930; Barrett v. School District, 123 Miss. 377; Jackson County v. Worth, 127 Miss. 813, page 830; Peets v. Martin, 135 Miss. 720; McLeod v. State, 154 Miss. 468; Sartin v. Prentiss County, 156 Miss. 46; Myers v. Board of Supervisors, De Soto County, 156 Miss. 251.
The legislative intent must be ascertained.
Smith v. Chickasaw County, 156 Miss. 171; Dresser v. Hathorn, 144 Miss. 24; Money et al. v. Wood, 152 Miss. 17; Darnell v. Johnson, 109 Miss. 570; Roseberry v. Norsworthy, 135 Miss. 845; Kennington v. Hemingway, 101 Miss. 259; City of Holly Springs v. Marshall County, 104 Miss. 752; Maris v. Lindsey, 124 Miss. 742; Robertson v. Texas Oil Co., 141 Miss. 356; Middleton v. Lincoln County, 122 Miss. 673; City of Holly Springs v. Marshall County, 104 Miss. 752; Sartin v. Prentiss County, 156 Miss. 46.
In construing each of the acts, the same must be construed in its entirety, and every word must be made effective.
McKenzie v. Boykin, 111 Miss. 250; Hawkins v. Louisville, etc., R. Co., 40 So. 293; Goode v. State, 39 So. 461; City of Montgomery v. Smith, 88 So. 671; State v. Fontenot, 36 So. 630; State v. Sage, 110 So. 884; State v. Griffin, 110 So. 885; Downs v. Drew, 117 So. 454; Chapter 215, Miss. Laws of 1926; Chapter 216, Miss. Laws of 1926; Chapter 89, Miss. Laws of 1928; Chapter 29, Miss. Laws of 1929; Section 6504, Miss. Code of 1930.
Since the passage of Chapter 89, Mississippi Laws of 1928, the construction extended for by the appellants in this case has been adopted.
Opinion of the Attorney-General, under date of September 10, 1931.
In the case of Illinois Central R. Company v. Middleton, Sheriff, 109 Miss. 199, the court was called upon to construe sections 4255 and 4277, and section 307, Code 1906, as to the collection by new counties of taxes for road and school districts during the year of their creation. The court held that since both the executive and administrative departments of the state had theretofore acted upon the construction of these statutes, such construction should not be departed from, unless manifestly incorrect.
Robertson, Rev. Agent, v. Texas Oil Company, 141 Miss. 357.
While not controlling, that construction adopted by the administrative departments is entitled to weight.
State v. Wheatley, 113 Miss. 555.
Contemporaneous construction of statute by governmental department charged with its execution, while not controlling, is entitled to great weight. Construction of privilege tax statute by State Tax Commission, under express statutory authority, should be persuasive with court.
Conard Furniture Company v. Miss. State Tax Com., 133 So. 652.
The district attorney was without power to institute and prosecute this suit without the approval of the attorney-general.
Section 4366, Code of 1930.
The appellee charges the members of the board of supervisors of Hinds county of being indebted to Hinds county in the sum of sixty-five hundred dollars, because it is further charged they illegally allowed the sum of four hundred dollars per annum as additional compensation. It is a suit for a debt. And we think it is reasonable for us to say this is the statute that applies and it is the only statute giving the district attorney authority to institute and prosecute this suit; that he must first obtain the permission of the attorney-general, which he did not do.
The county is not without relief if anybody or any official is indebted to it. In the first place a suit to recover on an indebtedness may be brought by any taxpayer.
Brown v. Reese, 129 Miss. 755.
The state tax collector may bring it. 142 Miss. 146.
The chief inspector of the auditor's department, under authority, of Section 3753, Code of 1930, is given the power to handle such matters, which we believe is the remedy to use as prescribed by the legislature.
In cases where persons are indebted to the state or any county within his district, the district attorney, by the express provisions of Section 4366 of the Code of 1930 can "institute and prosecute" suits to recover such indebtedness only "with the approval of the attorney-general." Clearly the implication is that no such right, without the approval of the attorney-general was conferred upon the district attorney by section 4363.
Sections 4369 and 4370, Code of 1930.
The word "institute" means to "originate, to establish, to set on foot."
Bridges v. Koppelman, 117 N.Y.S. 306, 312.
The word "maintain" carries a different meaning from "institute" or "begin;" and it seems to us that the word "prosecute" conveys, to the lay mind at least, the idea of maintaining rather than instituting.
National Fertilizer Company v. Fall River Five Cents Saving Bank, 82 N.W. 671, 672, 146 Mass. 458; Commonwealth v. Duane, 2 Am. Dec. 497.
H.B. Gillespie, of Raymond, and Howie Howie, of Jackson, for appellee.
Certainly it cannot be contended that the statutes would prescribe it as the duty of the district attorney to prosecute "all civil cases in which the state or county may be interested" unless at the same time he was given the inherent right, power and duty to file such suits. Clearly he cannot prosecute civil suits without first filing a proceeding and starting the suit, so the statute in making it his duty to prosecute carried with it the inherent right and power to file such suits.
Section 4363, Code of 1930.
The second point that appellants raise in their brief is that it was the intention of the legislature to allow the board of supervisors to draw a per diem for every day at nine dollars a day until the same amounted to two thousand, seven hundred fifty dollars.
It is provided in the Acts of the Extraordinary Session of 1929, and in the Code of 1930 in the section which reads as follows:
"Provided further that in all counties in class one, operating under Chapter 319 of the Laws of 1924, members of the board of supervisors shall receive nine dollars per day not to exceed two thousand, seven hundred fifty dollars any one year.
"Provided further that in all counties of class one operating under the chapter on Sea Walls and in all counties having an assessed valuation of not less than forty-five million dollars, the members of the board of supervisors shall receive nine dollars per day, not to exceed two thousand, seven hundred fifty dollars in any one year."
We would call the court's attention to this fact in the first paragraph of section 6504, first paragraph of chapter 19, Laws of 1929, and the first paragraph of section 3 of chapter 89, Laws of 1928, also section 4, chapter 216, Laws of 1926, in which in each of these sections the Legislature begins with saying "salary of members of board of supervisors in class one" shall be six dollars, seven dollars or nine dollars per day, being different in each of these, but when they say what the limit shall be in the closing part of these paragraphs, they say, "provided the salaries shall not exceed the following amounts per annum."
If the Legislature intended that the whole compensation in Hinds county should be nine dollars per day and that they should receive in addition thereto four hundred dollars per year, and one thousand dollars per year, clearly they would not have called the per diem salary, and then said the total salaries shall not exceed two thousand, seven hundred fifty dollars.
Hinds county under this statute is not only a class one county, but is singled out by a description that points out Hinds county, namely, more than forty-five million dollars assessed valuation and two judicial districts. It cannot be conceived how any supervisor in any other county could get both the nine dollars per day and the one thousand dollars per annum.
Under no interpretation of the several acts of the Legislature could it ever have been contended that the Legislature intended the board of supervisors to have drawn the four hundred dollars per annum on which this suit is based.
The section of the Code which appellee contends gives him the authority to bring this suit is found in section 4363, Code 1930.
The only construction to be placed upon the last part of section 4366, Code of 1930, is that whenever there has been any final determination that any person is indebted to the state or any county within the particular district of any certain district attorney that he must then obtain the consent of the attorney-general before instituting and prosecuting to effect a suit to collect such indebtedness which have been determined before any such action could be brought. This section implies that the indebtedness due to the state or county must be in existence at the time the action is to be instituted and prosecuted by the district attorney with the consent of the attorney-general.
In the case before this court there was no indebtedness due by the members of the Board of Supervisors as this liability had not been determined and was not determined until passed upon by the circuit court of the First District of Hinds county, Mississippi, and it was only then and at that time after the decision of the circuit court of Hinds county, that any indebtedness existed.
In the case at bar there was no indebtedness due by the members of the Board of Supervisors of Hinds county to Hinds county itself, but there existed a state of facts which the district attorney conceived as creating a liability for overpayment. This liability did not exist until the circuit court of Hinds county has passed upon the same, and after such decision had been rendered it was the duty of the court to give a judgment against the members of the board of supervisors and their bondsmen and for the proper procedure to be set out whereby the amounts overpaid the members of the board might be collected, which procedure for collection involves other points of law not germane to the issue here.
To prosecute an action includes the bringing as well as the carrying on, of the action. This is the ordinary meaning of the word.
Hickox v. Elliott, 22 Fed. 13; Inhabitants of Great Barrington v. Gibbons, 85 N.E. 737, 199 Mass. 527; State ex rel. Stubbs v. Dawson, 119 P. 360, 29 L.R.A. (N.S.) 933; Cheshire v. Des Moines City R. Co., 133 N.W. 324; State v. Bowles, 79 P. 726, 69 L.R.A. 176.
It does no violence to the language used in the act to construe the word "prosecute" as meaning the complete prosecution, including the institution of the suit.
Davis v. Michigan Cent. R. Co., 111 N.W. 76.
The word "prosecute" as used, meaning to bring suit against in a court for redress of wrong, to carry on a judicial proceeding against, or to seek to reenforce a claim or right by legal process, to begin and carry on a legal proceeding.
To prosecute is to proceed against.
23 Am. Eng. Enc. of Law (2 Ed.).
The word "prosecute" according to the above decisions, meant that the district attorney had the power and authority to commence the action and to continue the same until final judgment had been rendered in this suit. The general and ordinary meaning of a word is the interpretation which the courts put upon the phrases and words of a statute, and the word "prosecute" includes the institution and commencement of an action and should be the interpretation placed upon the word as used in section 4363, Code of 1930. To hold otherwise would be to nullify the provisions of the statutes, because there would have been no other way to have determined the liability of the members of the board of supervisors for over-payment to themselves, and it was the statutory duty of the district attorney to institute and commence proceedings to determine and ascertain in the courts, if such liability existed, and to proceed to obtain a judgment thereon if such liability was found to exist.
Argued orally by W.H. Watkins, Sr., and Leon Hendrick, for the appellant, and by J.H. Howie, for appellee.
The district attorney of the Seventh judicial district, of which district the county of Hinds is a part, instituted an action, without the approval of the attorney-general, for and on behalf of the said county, to recover jointly and severally of appellants, who were members of the board of supervisors of the county, during the years 1929, 1930, and 1931, an aggregate sum, approximately seven thousand dollars, which the declaration alleges was improperly drawn by the said members as compensation or salary during the years aforesaid. There is no assertion that there was any corrupt conduct on the part of appellants, but the action proceeds upon the contention that, by a misinterpretation of the statutes on the subject of compensation to members of the board in counties of the class to which the county of Hinds belongs, the members made allowances to themselves beyond that permitted upon a proper interpretation of the statutes.
The record shows that the allowances were made in accordance with a construction placed upon those statutes by the attorney-general; wherefore no question on the merits of the case is involved other than the issue whether the interpretation given to the statutes by the attorney-general and by these appellants is erroneous, and thus the ultimate question on the merits is whether appellants are indebted to the county for the sums involved.
And since the ultimate question on the merits is whether appellants are indebted to the county, a preliminary question, and one determinative of this appeal, lies at the threshold; and that question is whether the district attorney of his own motion and without the approval of the attorney-general may institute an action to recover a debt alleged to be due to the county.
It is the contention of the district attorney that he is so empowered by the first sentence of section 4363, Code 1930, which reads as follows: "It shall be the duty of the district attorney to appear in the circuit courts and prosecute for the state in his district all criminal prosecutions and all civil cases in which the state or any county within his district may be interested." In addition to the express language quoted, the district attorney brings to bear upon that language, and in aid of the powers claimed by him the general and well-recognized rule in regard to civil suits that ordinarily the duty to prosecute, when imposed upon a public officer of that character, implies the power to institute the actions which are to be prosecuted. Appellants reply that the section aforesaid is not the only section of the statutes dealing with the powers of the district attorney in this connection, but that upon the identical question now before us the powers of the officer are controlled by section 4366, Code 1930, which reads as follows: "It shall be the duty of the district attorney, when requested by the county depository or the board of supervisors, or the clerk thereof, to give his opinion in writing upon all cases concerning the revenue or expenses of the county, and with the approval of the attorney-general to institute and prosecute to effect, before the proper court, all persons indebted to the state or any county within his district." The same qualification or prerequisite, to wit, that the district attorney must have the approval of the attorney-general in order to enable him to institute suit, is also contained in the two other sections of the same chapter, sections 4369 and 4370, dealing, as does section 4366, last above quoted, with civil suits.
Since these statutes deal with the same subject, there must be applied the well-established rule that statutes in pari materia, although in apparent conflict, should, so far as reasonably possible, be construed in harmony with each other so as to give force and effect to each. State ex rel. Weems v. U.S. Fid. Guar. Co., 157 Miss. 740, 128 So. 503; Board of Sup'rs v. City of Bay St. Louis, 157 Miss. 459, 128 So. 331; Sartin v. Prentiss County, 156 Miss. 46, 125 So. 563. If the contention of the district attorney should be upheld that by the first sentence of section 4363 he is given the power without qualification to institute and prosecute all civil cases in which the state or any county in his district is interested, then the qualification or limitation contained in sections 4366, 4369, and 4370, that to institute the suits mentioned in those sections he must have the approval of the attorney-general, would be stricken from those latter sections, and they would be without substantial force or effect, and in particular the result would be to strike from section 4366 the last three lines of the section, and to adjudge here that, although those three lines provide that the district attorney may with the approval of the attorney-general sue all persons indebted to the state or county, nevertheless those lines will be disregarded, stricken from the statutes, and that only the first sentence of section 4363 will be read in finding what are the powers of the district attorney in respect to the question which is now before us.
We might rest our conclusion upon what has above been said, but we advance the discussion a step farther; and in so doing we may admit, for the sake of the argument, that under the first sentence of section 4363 the district attorney is given the general and comprehensive power, and this in general and comprehensive terms, to institute and prosecute all civil suits in which the state or any county within his district may be interested. At the same time there is the special statute, section 4366, which deals with civil suits against persons indebted to the state or any county within his district, and which section provides that these particular suits dealt with in that special section are to be instituted and prosecuted with the consent of the attorney general. And thus we are confronted with the fundamental rule that, when there is a general statute, that is to say, a statute dealing with a subject in general and comprehensive terms, which, if standing alone, would include the same matter as a special statute, that is to say, a statute dealing particularly and specially with a part of the subject-matter embraced within the general statute, the special statute will ordinarily be regarded as an exception or qualification ingrafted upon the general statute to the extent that the special statute is in conflict or in apparent conflict with the general statute.
As said, these statutes are in pari materia; they deal with the same subject, and are sections of the same chapter in the Code, all adopted at the same time; they are parts of the same statute, and thus the applicable principle just above stated may be restated in other words by a quotation taken from the opinion in White v. Lowry, 162 Miss. 751, 758, 139 So. 874, 876: "Where a statute contains both a particular and a general enactment, and the general enactment in its most comprehensive sense would include what is embraced in the particular one, the latter must be given effect as to all cases which fall within the particular provision, and the general enactment must be taken to embrace only such cases within its general language as are not within the provisions of the particular enactment."
It follows, and by way of resume, that since the first sentence of section 4363, construed as contended for by the district attorney, is a general and comprehensive enactment dealing with all cases, while section 4366 is a more particular statute dealing with the special and narrower matter of suits for the recovery of debts due the state or county, the general statute is to be taken as not operative upon the cases which are within the provisions of the particular enactment; in other words, suits for the recovery of debts covered by the particular statute, section 4366, are not within the effect of the general statute, but are taken out of it by the special or more particular statute, with the result that the district attorney was without authority to institute this suit, and he could do so only with the approval of the attorney-general.
Something has been said in the arguments that, to give these statutes the construction which we are constrained by the rules of law to place upon them, would work injury to the interests of the state and county, because it would place it in the power of the attorney-general to withhold a remedy for meritorious demands, and would, in practical effect, give to erroneous opinions by his department upon questions of liability for debt to the state or county the force of law, since he could refuse to allow suit to be instituted which would test the soundness of his opinions on such questions. It is not correct to assume that the consent of the attorney-general is essential to recover a debt such as is claimed here; there is another central agency of the state which is empowered of its own motion to institute such a suit. But, if there were no other authorized agency, this would not justify a forced construction of the statutes by the court to conserve what is supposed to be a protective interest on behalf of the state or county. If in such cases an effective remedy had not been furnished, the omission is one to be cured by the legislative department, and is not to be supplied by judicial construction.
It has been noted by one of the members of the court during our consideration of these statutes that the language of the last three lines of section 4366 discloses an apparent omission. These lines read as follows: "And with the approval of the attorney-general to institute and prosecute to effect, before the proper court, all persons indebted to the state or any county within his district." We find that this omission has occurred in every one of our state Codes beginning with section 3, chapter 40, Poindexter's Rev. Code of 1824; so that for more than one hundred years the error has persisted and has apparently passed unnoticed. In section 4, chapter 22, Toulmin's Digest of 1807, the language is "to institute and prosecute to effect, before the proper courts, suits against all persons indebted," etc. It is readily to be perceived that the meaning of the statute as it now stands is the same as if the words "suits against" had been inserted, as existed in the Toulmin Territorial Code.
Reversed and dismissed.
It is true, as stated in the majority opinion, that the attorney-general approved these allowances, but it is also true that they were first made by the board and the approval of the attorney-general obtained afterwards. In other words, the board got into trouble on account of these allowances, and, when the trouble came, they secured the approval of the attorney-general. It will probably be well to state in this connection that in his opinion approving the allowances the attorney-general said there was some ambiguity and uncertainness in the statutes. There is nothing in the record to show that the district attorney applied for and was refused the approval of the attorney-general to bring this suit.
Section 4363, Code of 1930, is in broad and general terms. It makes it the duty of the district attorney to prosecute "all civil cases in which the state or any county within his district may be interested." The authority to prosecute carries with it the authority to institute. Inhabitants of Great Barrington v. Gibbons, 199 Mass. 527, 85 N.E. 737; State ex rel. v. Dawson, 86 Kan. 180, 119 P. 360, 39 L.R.A. (N.S.) 993; Ex parte Kelly, 45 Okla. 577, 146 P. 444. It is useless to cite further authorities to sustain that principle; there appears to be none whatever to the contrary. The Legislature did not intend to give some other officer authority to institute suit and the district attorney the power to take the case away from him and prosecute it. If this section of the statute stood alone, there would be no limit upon the district attorneys' authority to institute and prosecute civil cases in which the state or the counties within their districts are interested. Without any further authority, he would have the power to institute and prosecute the actions provided for in sections 4366, 4369, and 4370. These three sections simply excerpt the broad powers given the district attorneys in section 4363. They take out of the latter section the class of cases enumerated in them, as to which they provide that the district attorney, before suing, must have the approval of the attorney-general. To illustrate: Take section 4370, which provides that the consent of the attorney-general in writing shall be a condition precedent to the right of the district attorneys to institute and prosecute civil actions for violation of our anti-trust statutes. Can there be any doubt that before the adoption of this section, which was by the Legislature of 1922 (chapter 274, Laws of 1922) the district attorneys, under section 4363, had the right to bring anti-trust suits without the approval of the attorney-general? It seems that to ask that question is to answer it in the negative. To hold otherwise would violate a rule of statutory construction of long standing. What is said about section 4370 is also true of section 4369. Putting it differently, sections 4366, 4369, and 4370 simply lift out of section 4363 a certain class of cases and provide that they cannot be brought by the district attorneys without the approval of the attorney-general.
There is no contention that this suit by the district attorney comes within the provision of either section 4369 or 4370. It is argued that it comes within the terms of 4366. It must be borne in mind that the district attorneys have all the powers conferred by section 4363 which are not expressly taken away by the other three sections referred to. What is the class of cases provided for in 4366? That section provides that a district attorney shall not bring any action concerning the revenues or expenses of a county without the approval of the attorney-general, where the suit is the result of an investigation and an opinion in writing by the district attorney in pursuance of a request therefor by the county depository, or the board of supervisors, or the clerk of the board. The case at bar is not one provided for in that section. There is nothing in the record to show that either the board of supervisors or the county depository or the clerk of the board of supervisors called on the district attorney to investigate and give an opinion in writing as to whether the members of the board were liable. The last clause in that section, authorizing the district attorneys to prosecute to effect before the proper court all persons indebted to the state or any counties within their districts, must be construed in connection with the first clause of the statute. Construing these two parts of the statute together, or the statute as a whole, they simply mean that the district attorneys, under the authority of section 4363, have the right to bring suits to recover all revenues due their counties, except in cases where they have been called upon to investigate and give opinions in writing as to whether such revenues are recoverable, in which cases before bringing such suits they must have the approval of the attorney-general. It is not apparent why this limitation was put on the general powers of the district attorneys conferred by section 4363, but the question of the wisdom of it is not for the courts, but for the Legislature. Why did not the Legislature provide in section 4363 that the broad powers therein given the district attorneys should be subject to the approval of the attorney-general? There must have been a reason for not doing so. The only reason I am able to see is that the Legislature intended that those broad powers should remain in the district attorneys, unhampered, except as expressly limited in the other three sections referred to.