Adams v. Dendy

82 Miss. 135

• Court: Mississippi Supreme Court
• Decided: March 15, 1903
• Status: Published

Opinion

Calhoon, J.,

delivered the opinion of the court.

Mr. Dendy has been for years a member of the board of supervisors of Madison county. The revenue agent sued him, and the sureties on his official bond, to recover money collected by him as salary, under section 8 of chapter 250, acts 1890, p. 386, approved January 31, 1890. .A demurrer to the declaration was sustained, and the revenue agent appeals. That sec-lion of that act distinctly authorizes the salary as to the particular county of Madison, and, if valid as a local measure, settles this controversy in favor of Mr. Dendy. It was held valid by us in Madison County v. Collier, 79 Miss., 220; 30 South., 610, which decision is here attacked.

The questions presented by counsel for appellant are whether this section 8 is repealed by the general law of the code of 1892 (§§ 3914, 3928, 3935), and, if not, is it constitutional? It was undisputably valid on November 1, 1890, the date on which our present constitution was adopted; and it seems clear that that instrument did not, of itself, affect its validity in its aspect as a special statute for Madison county, The code of 1892, of itself, did not repeal it, as this court h'as held specifically, on precisely the same issue as here presented, in Madison County v. Collier, 79 Miss., 220; 30 South., 610, the opinion in which is based on the authority of Madison County v. Stewart, 74 Miss., 160; 20 South., 857, construing a kindred statute for the same county (acts 1884, p. 318, oh. 320) holding the same way. The residuum, then, for contest, is that, granting that the constitution of 1890, alone, did not affect section 8 of the acts of 1890, and granted that the code of 1892, alone, and without that constitution behind it, did not affect that section, may it not still be true that both together did ?

By acts 1884, p. 318, ch. 320, the Madison county board of supervisors was empowered to work the roads by contract for not less than one year, nor more than five years, to be let privately or publicly. The contract, in a concrete case then before this court, was made in 1895, after the constitution of 1890 and code of 1892, which code, § 3929, in a general law for all counties, limited such contracts to not less than two years, and provided by section 340 that all contracts over $50 be let at public outcry. The radical difference here, as well as other differences not necessary to note, is immediately and plainly apparent. Now, under this local act of 1884, the contractor sued the county — the defense being ultra vires, on the ground that the general law of the code repealed the local act; but this court, through,Chief Justice Cooper, sustained the contract and repudiated the idea of code repeal. The court held that, without regard to section 8 of the code of 1892, which provides that local laws “not revised and brought into” that code are not affected by its adoption “unless it be expressly so provided herein”; the local act was not repealed. The opinion has this language: “That act (1884) was of local operation only. It provided a complete and detailed scheme, having reference to the highways in one county, while the code provisions applied equality to all the counties in the .state. The repeal of statutes by implication is not assumed to have been within the contemplation of the lawmakers, and when one statute is particular, and the later one general, and especially where the later statute contains no negative words, the rule of construction is well settled that the prior statute is not thereby repealed, unless the repugnancy be so great as to show clearly the legislative purposes to that effect.” This language is pertinent to constitutions as well as statutes, and just as sound as applied to the act of 1890, now before us, as to the act of 1884. In this connection we desire to refer to the case of Rogers v. United, States, 185 U. S., 83; 22 Sup. Ct., 582; 46 L. Ed., 816, in which it is held that, “where the intent is a debatable question,” the special statute stands, under rules guiding the courts in construction; and Mr. Justice Brewer, in that case, in delivering the opinion of the court, says: “Where there are two statutes, the earlier special and later general — the terms of the general broad enough to include the matter provided for in the special — the fact that the one is special and the other general creates a presumption that the special is to be considered as remaining an exception to the general, and the general will not be understood as repealing the special, unless a repeal is expressly named, or unless the provisions of the general are manifestly inconsistent with those of the special.” The act of 1890, now immediately before us, is entitled “An act to insure the better working of the public roads in the county of Madison, and for other purposes.” When the act was passed it was entirely competent for the legislature to pass acts partly general and partly special. This is that sort of an act. Its sections 3, 5, 1 and 8 are purely local, having reference to Madison county only, while the other sections are express amendments to the code of 1880, and embrace the whole state. But those sections which are special are none the less so because others are general, and we sustained them as still in force, and not affected by the code of 1892, in Madison County v. Collier, 19 Miss., 220; 30 South., 610, in which we upheld Mr. Collier’s claim, which was precisely the same as Mr. Dendy’s in the case in hand. We think it plain that the local sections of the act of 1890 are designed to be, as they are in fact, amendments to the act of 1884, if this be material, as we do not think it is. It was not the purpose in the code of 1892 to repeal the act of 1890, or it would have been so stated, as section 8 of that code preserves all private and local laws unless repeal or modification be “expressly so provided.” The constitution of 1890, being prospective, does not affect the statute, and we cannot see that sections 88, 90, and 91 of that instrument affect the question before us. Very manifestly, section '91 is on a wholly different subject. Because the code of 1892 reproduces the general provisions of the act of 1890, and does not incorporate the local provisions, does not establish the corailary that it thereby repealed the special provisions for Madison county. The inference is the reverse, since it was not expressly done. The act of 1890 being valid when the constitution of 1890 was adopted, and being unaffected by it, and being unaffected by the code of 1892, and not having been interfered with by the legislature since the decision in the Stewart case and the Collier case, is still in force.

Affirmed.