Dugger v. Panola County Board of Supervisors

104 So. 459, 139 Miss. 552, 1925 Miss. LEXIS 178

• Court: Mississippi Supreme Court
• Decided: June 8, 1925
• Docket: No. 24688.
• Status: Published

Opinions

McGowen, J.,

delivered the opinion of the court.

This is an appeal by a taxpayer, F’oster Dugger, from an order of the board of supervisors of Panola county, allowing- the chancery clerk thereof compensation for services as county auditor for each judicial district of that county as provided by section 2206, Code of 1906 (Hemingway’s Code, section 1891). This section provides that in counties having two judicial districts certain officers, including the chancery clerk, may be allowed compensation for services as county auditor for each judicial district ; the chancery clerk being the ex officio county auditor.

The board of supervisors made an allowance to the chancery clerk of Panola county for said services for each district under the authority of section 2206. From that order Foster Dugger, a taxpayer of the county, appealed to the circuit court, and that court upheld the order of the board of supervisors, allowing compensation for each judicial district, and from the judgment of the circuit court against him the taxpayer appeals here. The only question presented by this appeal is: Was section 2206-, Code of 1906 (Hemingway’s Code, section 1891) repealed by chapter 102., Laws of 1916, or subsequent enactments on the same subject, and especially by chapter 206, Laws of 1924?

In the case of State Revenue Agent v. Brame, 112 Miss. 665, 73 So. 721, we held that the above section applied to the compensation to be paid to the chancery clerk as county auditor in those counties having- two judicial districts, which decision is controlling- here, unless section 2206, allowing- the compensation, has been repealed.

There is no express repeal of this section by chapter 102, Laws of 1916, or any subsequent enactment on the same subject and if section 2206 has been repealed by the legislature, it is a repeal by implication.

Section 348, Code of 1906 (Hemingway’s Code, section 3721), provides: “The clerk, as county auditor, shall receive a salary, to be annually fixed by the board of supervisors, payable at the end of each year,” etc.

In 1916 the legislature changed the compensation of county officials to straight salaries which were to be paid in full compensation for the services of the several officers, and it is argued by the appellant that this change effected the repeal of section 2206, Code of 1906, and, as we have before said, its repeal is effected by iniplication, because the salary named in the act was to be full compensation for the services. But this position excludes section 8 of said chapter, which shows that the salary to be paid to the county officials named in the act was to be based on the total of fees, commissions, and other emoluments which the law then provided as the basis of compensation for said officials.

Section 8, chapter 102, Laws of 1916, is as follows: •“All fees and all commissions and other emoluments which the law now provides may be demanded, received, and taken by the sheriff and tax collector, chancery clerk and circuit clerk, and the tax assessed shall hereafter be collected by each, respectively; but all said commissions, fees and emoluments shall hereafter be paid by the said officers, respectively, into, the county treasury. Each of these payments shall be paid into the county treasury by the twentieth day of each calendar month, and shall be each accompanied by an affidavit of each of said officers averring that he has turned into said county treasury all fees and commissions which he has actually collected in the preceding calendar month, and which the law now requires him to collect, or that it'may be lawful for him to demand, receive, collect and take, and that he has collected all such fees and commissions as were reasonably possible of collection in the preceding month.” (Italics ours.)

Then follows the requirement that an accurate account be kept by each of the four officers named of all fees and commissions which the law now requires him to collect, or that it may be lawful for him to demand, receive, collect, and take. Act approved April 3, 1916.

On the same day that this salary law was enacted, the legislature validated the allowances and payments theretofore made by the board of supervisors to chancery clerks in counties having two judicial districts as shown by chapter 145, Laws of 1916.

The use of the language in section 8, chapter 102, Laws of 1916, “all fees and all commissions and other emoluments, ’ ’ makes it certain that the legislature intended nq change in the fees, commissions, and salaries of these officials, and expected them to be collected and turned into the county treasury; and, further, the language in connection with the quoted language, “demand, receive, collect and take,” negatives any idea of the repeal of section 2206, but rather than a repeal of it is a re-enactment, because the word “emolument” can be accounted for in this section so far as the office of the chancery clerk is concerned only as allowance to him for his compensation for services as county auditor.

The clear object of the legislature was to keep an account of all fees, all salaries, all commissions, and all emoluments of said officers in order, first that no county would be burdened with more than the amount of these collections, while counties where these fees amounted to what would he considered an exorbitant amount would not pay more than the maximum amount of salary fixed in the act; second, that the legislature in the future might have a basis upon which to calculate the salaries of the several officers.

Section 7 of act, sitpra, specifically excepts from this accounting the allowance made for special deputies or extra deputies during court terms, and section 7 further shows that it was the purpose of the legislature to pay the salaries of such officers within the limits prescribed out of the fees, commissions, and emoluments lawfully received by the said officers, respectively, for the preceding month, and further shows that the collections theretofore lawfully made by the officers should be accounted for to the county. The exception of special deputies mentioned above shows that the other court allowances were to be accounted for in fixing the salary of the officer named.

The purpose of the law was to require that all' fees, emoluments, and commissions theretofore, provided for should be accounted for by the chancery clerk, and as certainly embraced section 2206 as it did the sections containing the itemized fee bill. It cannot be said that fees and commissions mean the same thing as emoluments. The itemized fee bill was not re-enacted or brought forward in the chapter, and, if section 2206 is repealed by implication, the entire list of fees provided for in the Code of 1906 are also repealed by implication. The legislature used the words, “in full compensation for his services,” in connection with the continued existence of section 2206.

We have repeatedly held that the law does not favor repeals by implication, and in this case to hold that this section was repealed by implication would be to destroy the basis of the system planned by the legislature.

Section 2206 is a special chapter or an exception to the general rule. Most of the counties in Mississippi do not have two judicial districts. The well-recognized rule is that, where lawmakers have enacted special statutes to fit a particular case, they will not be presumed to intend to repeal said special statute by the subsequent enactment of general statutes on the same subject-matter.

It may be argued that it would be idle for the clerk to collect his per diem allowance for attending court or as salary as auditor and pay it back into the treasury. Whether it is idle or not, the word ‘ ‘ emolument ’ ’ covers it, and the reason is apparent that the legislature desired to put limits upon the salaries of some officials, while on others they did not wish to reduce the compensation where the officers were not thought to have been overpaid. The language that all emoluments shall be accounted for is not ambiguous. It is plain. It is clear that at the date of this enactment the compensation of the county auditor was an emolument of the office of chancery clerk. The effort of the legislature was to regulate the inequality thought to have existed in the salaries of these several officers prior to 1916. There is no repeal by implication in said chapter, and there is no conflict, but absolute harmony.

Section 34, chapter 122, Laws of 1920, which chapter is an amendment of the Laws of 1916, supra, provides for the payment of these officers of the difference where the fees, commissions, and emoluments were less than the maximum salary, showing that the legislature intended and construed the law as to all fees, salaries, commissions, and emoluments in force prior to 1916 as still in force. In chapter 122, Laws of 1920, there is no general repealing clause of all acts in conflict therewith. “The word ‘emolument’ is more comprehensive.than ‘salary,’ and includes the meaning of ‘gain,’ ‘profit,’ ‘compensation,’ etc.” See 2 Words & Phrases, Second Series, p. 259, citing Scharrenbroich v. Lewis & Clarke County, 33 Mont. 250, 83 P. 482, 483. Certainly, the compensation of chancery clerks as county officers is fairly embraced within this broad language.

In so far as chapter 122, Laws of 1920, is concerned, there is no repeal by implication, as these officers were still entitled to receive emoluments and pay them hack to the county, and while this procedure entailed some bookkeeping, when we consider the section above quoted (section 8, chapter 102, Laws of 1916), provided the amount paid the officers under the salary law was based upon fees, commissions, and emoluments, which amount might be less than the maximum amount of salary fixed by the salary law, we see clearly that the intention of the legislature was to base the salary upon all of the emoluments of the officers. It was not a vain and useless thing', but involved the living of these officers.

Section 2, chapter 206', Laws of 1924, provided that such officers, including chancery clerks, “shall be paid exclusively from such fees, commissions and salaries as herein provided, for all services rendered by them in the performance of all duties required by law to be performed by said officers,” and does not undertake to repeal section 2206, Code of 1906 (Hemingway’s Code, section 1891). expressly or by implication. Indeed, it does not deal with that section, but is dealing with the general law, and does not deal with the exceptions. It was dealing with the majority of the counties of Mississippi not having two judicial districts, was a general law, not dealing with a special law or the exception of the few counties having two judicial districts.

It was not the trend of the legislative mind to reduce any salaries below the maximum named in the several acts. An examination of the statutes shows that the duties of the chancery clerks have been largely increased; the necessity for constant attendance upon the duties of the office has been increased, and it would charge the legislature with injustice to say that it intended in this one case a reduction, as against the general legislative policy on the other hand. Indeed, the record in this case shows that this county in the instant case has twelve county depositories, must keep a separate account of all the various funds, roads, schools, and other public improvements, with each of the twelve depositories. Bond issues have been multiplied, and in counties having two judicial districts the work of a chancery clerk since the enactment of section 2206, Code of 1906, has been doubled, and a very much higher standard of efficiency is required to discharge the duties of the office as intended by the legislature.

An additional reason for saying that there is no repeal by implication intended by section 2, chapter. 206, Laws of 1924, quoted above, is that by the Laws of 1922, chapter 160, the legislature shows its intention to reenact the entire fee system as to compensation of these county officials as it had existed prior to 1916. And in 1924, there being grave doubt as to the constitutionality of chapter 160', Laws of 1922, the legislature was undertaking to make certain the repeal of the salary law and to put in operation the fee system. In other words, the legislature tried to go back to- the law, as it existed under the Code of 1906, and its intention was to place the officers in statu quo, and chapter 206', Laws of 1924, clearly expressed the intention to legalize and validate the infirmities, if any there were, which existed in chapter 160, Laws of 1922. So that the language used is no more exclusive in its general terms as applying to all counties than is the language used in section 348, Code of 1906. Chapter 206, Laws of 1924, was not dealing with section 2206>, Code of 1906, is not repugnant thereto, and there is no repeal by implication in the above language. There was no intention on the part of the legislature to- interfere with the rule in vogue as to two judicial districts.

The validating act passed in 1916 referred to above shows that the legislature did not regard this section as repealed, and passed it because the validity of payments under this act had been questioned. Thereafter in October the supreme court set this question at rest.

In further support of this view, the title of chapter 206, Laws of 1924, is as follows: “An. act to ratify, validate and confirm the action of certain county officers in collecting and retaining as compensation for their services and fees fixed by law for such officers, prior to January 1, 1916, which fees were collected and retained in com pliance with the provisions of chapter 160 of the Laws of 1922; and providing for and fixing’ the compensation of sheriffs and tax collectors, chancery clerks and their deputies, and circuit clerks and their deputies.”

Section 2, chapter 206', Laws of 1924, uses the word “exclusively” with reference to the fees, commissions, and salaries provided for by general law, and did not apply to the exception or special law, section 2206, Code of 1906, and the word was intended to be applied to the payment of fees in the accomplishment of the repeal of the salary law in toto. The question had been raised as to the validity of chapter 160, Laws of 1922, and as to whether or not the salary law had been repealed thereby, and the legislature undertook to remove any constitutional or other objection to the repeal of the salary law, and to emphasize the readoption of the fee system in toto, and the emphatic language is clearly applicable to the laws which the legislature desired to repeal and which it then had under consideration, and was not addressed to a statute which was not under consideration and which was in harmony with the 1924 fee law, as it had been in harmony and consonance with the fee law existing prior to January 1, 1916.

The chancery clerk is the most important county fiscal officer, and with increased duties it is not at all probable that the legislature had in mind any change in the matter of these officers’ compensation, at least it does not so appear from the language used.

The rule applying here as to the construction of this statute is announced in Richards v. Patterson, 30 Miss. 583, as follows: “The repeal of a statute by implication is not favored in law, and will not be allowed, unless there he such a repugnancy between it and a later statute that they cannot both have their appropriate application. ’ ’

We do not think it clearly appears that the legislature intended by implication to repeal section 2206, ‘Code of 1906 (Hemingway’s Code, section 1891), and, the circuit court having so held, this case is affirmed.

Affirmed.