Jackson County v. Neville

95 So. 626, 131 Miss. 599

• Court: Mississippi Supreme Court
• Decided: March 15, 1923
• Docket: No. 22727
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

This suit was brought in the circuit court of Jackson county by the appellee, J. H. Neville, against Jackson county, the appellant, for four thousand eight hundred forty-seven dollars and forty-three cents compensation alleged to be due appellee by appellant for his services in examining and auditing the books, accounts, vouchers, and records of the county officers of said county. There was a judgment on the pleadings for appellee for the amount sued for, from which judgment appellant prosecutes this appeal.

Appellee was appointed by the Governor and claims compensation for services rendered under sections 2388 to 2392, inclusive, Code of 1906 (sections 4780 to 4785, inclusive, Hemingway’s Code), and chapter 241, Laws of 1914 (section 4783, Hemingway’s Code).

The case made by appellee’s declaration is in substance as follows: That appellee, an expert accountant, was appointed and commissioned by the Governor of the state, pursuant to the above statute, to audit the books of the officers of Jackson county, which appointment, was made in accordance with the provisions of said statute, twenty-five per cent, of the qualified electors of said county having petitioned the Governor for that purpose; that appellee completed an audit of the books and records of the officers of said county “at a cost of four thousand five hundred seventy-three dollars and fifteen cents,” and submitted said audit and his verified itemized account of his expenses and charges in doing said work to the circuit judge of the district in which said county was situated, who approved said account, and that afterwards said account was examined and approved by the Governor, copies of the circuit judge’s and the Governor’s approval being attached to the declaration as an exhibit thereto along with a statement of said account; that afterwards appellee applied to the board of supervisors of said county for an order authorizing its clerk to issue a warrant on the county treasurer of said county for the payment of said costs and charges so approved by the circuit judge and Governor, which statement of the account, with such approval, was presented to the board of supervisors for inspection together with the result of said audit; that said audit and statement so approved, was tendered to the hoard of supervisors “for final delivery upon the making of such order for the payment of such account as required by the statute in such cases;” that the board of supervisors disallowed said claim. The approval of the circuit judge and the Governor attached to the account sued on are in this language:

“I hereby approve the above account for $4,573.15 as reasonable.

“Witness my signature this, the 9th day of February, 1921.

“D. M. Graham, Circuit Judge,

“2d District Mississippi.”

“I hereby approve the above account for $4,573.15 as reasonable.

“Witness my signature this, the 24th day of February, 1921.

“Lee M. Eussell, Governor,

“State of Mississippi.”

The account itself exhibited with the declaration shows that a very large part of the work of auditing the records of the officers of said county was done by others than appellee, and furthermore that appellee charged for his own services as well as for the services of his helpers at a rate of more than seven dollars per day.

Appellant demurred to appellee’s declaration, which demurrer was overruled by the court. Thereupon appellant filed several special pleas, all of which taken together simply amounted to a traverse of the allegations of appellee’s declaration, to which special pleas appellee demurred, which demurrer was sustained by the court; and, appellant having declined to plead further, final judgment was entered in favor of appellee for the amount sued for.

Sections 2388 and 2391, Code of 1906 (sections 4780 and 4784, Hemingway’s Code), being the first and next to the last sections of the statute as they appear in Hemingway’s Code, authorized the Governor to appoint one or more expert examiners, “whose duty it shall be, under the direction of the Governor, to audit and examine the books, accounts, and vouchers of all officers, state or county,” etc.

By virtue of section 2389, Code of 1906 (section 4781, Hemingway’s Code), the second section of said statute, the Governor is given power to direct and control the examiner, “and shall fix his compensation at not' exceeding seven dollars a day while actually employed, the examiner to pay Ms own expenses; and the Governor shall prescribe the time for which he shall be' employed.” (Italics ours.) And section 2390, Code of 1906 (section 4782, Hemingway’s Code), the third section, provides that a commission shall issue to the examiner so appointed “vesting in him authority to do and perform the duties for which he may be appointed.” And by this section he is given authority to issue subpoenas for witnesses whom he may wish to examine and administer oaths to them and compel their attendance, with the power to punish witnesses for contempt for refusal to testify. •

Until the adoption of chapter 241, Laws of 1914 (section 4783, Hemingway’s Code), the fourth section, there was no provision for payment for the services of such an examiner out of the county treasury of the county the books of whose officers were examined and audited by him. It will be observed that that act also provides that, where an examiner is appointed by the Governor under the first section to audit the books and accounts of county officers, and the examiner shall perform the services to which he is appointed, he “shall submit his bill for services, itemized, to the circuit judge of the district whose duty it shall be to approve the same, if found correct and reasonable; and thereupon said account, with a copy of the order of the judge or court, shall be sent to the Governor for his approval, who, if he shall find the same correct and reasonable, shall approve the same” (italics ours), and that thereupon the board of supervisors of the county whose books are audited “shall allow said account,” and then it provides that, “as to auditors or accountants hereafter to be appointed by the Governor, this act shall apply only to cases where the Governor has been petitioned by 25 pen cent, of the qualified electors of the county to appoint an accountant.”

Appellant’s assignment of errors raises several questions necessary to be passed upon in order to dispose of this appeal.* It is contended that the statute in question is unconstitutional in so far as it confers power on the circuit judges and Goveimor to pass on the reasonableness and correctness of appellee’s account for his services. That in conferring such power section 1 of our Constitution is violated, which section divides the powers of the government into three distinct departments, legislative, judicial, and executive, and confers on a separate magistracy the administration of each. The contention is that especially as to the power conferred on the Governor this provision of the Constitution is. violated because such power is judicial, and not executive, and the Governor, being the head of the executive department of the government, could not constitutionally exercise judicial power. In discussing the’separation of the powers of government into three divisions of legislative, judicial, and executive, and confiding each to a separate magistracy, Story in his work on the Constitution, vol. 1, section 525, p. 380, uses this language:

“But when we speák of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments, and that such exercises of the whole would subvert the principles of a free Constitution. This has been shown with great clearness and accuracy by the authors of the Federalist.”

A discussion of this question will be found in 25 C. J. sections 234 to 242, inclusive, pp. 802 to 810, inclusive. It will be observed from that discussion and the cases cited in the' notes that complete separation of the powers of government into legislative, judicial, and executive so that no part of the power exercised by one department can be exercised by either of the others was never intended by the makers of our Constitution, and that the line of demarcation between the three is often indefinite, and that in practical operation each of the three departments necessarily exercise some power which is not strictly within its province. For illustration the exercise of the veto power by the executive is an exercise in part of legislative power; and the power given the executive to pass on claims is an exercise of quasi judicial power. It is there stated further that statutes conferring on officers, boards, or commissioners quasi judicial functions, as, for example, the power to inquire into and find the facts in reference to matters properly within the scope of one of the other departments of government, are not unconstitutional as encroachments on the judiciary. In that category is placed the power to fix the rates of common carriers conferred on Railroad Commissions, etc.

The Constitution of the United States as fully, and completely separates the powers of the Government into the three divisions as does the Constitution of this state, as held by our court in Lawson v. Jefries, 47 Miss. 686, 12 Am. Rep. 342. By an act of Congress the President was authorized and empowered to pass on the price to be paid by the government for land for certain public purposes. The contention was made that no such authority could be conferred on the President, the head of the executive department of the government, because it involved the exercise of discretion and judgment, and was therefore judicial power. The Supreme Court in Shoemaker v. U. S., 147 U. S. 283, 13 Sup. Ct. 361, 37 L. Ed. 170, in deciding against that contention, among other things, said:

“The second objection made to the validity of the act is because of certain functions to be performed by the Presi.dent, which the objection characterizes as judicial, and hence beyond his legal powers, and as incompatible with his official duties. The duties prescribed to the President are the appointment of members of the park commission, the approval of the price to be given for lands where an agreement has been had between the owners and the commission, and, if an agreement is not made, and a value is put upon lands by appraisers appointed under the act, the decision whether such value is reasonable. The appointment of the commission is plainly an executive duty, and the approval of the value or price, whether fixed by agreement or appraisal, cannot be said to be a judicial act.”

The following cases are illustrative of the view this court has taken of like questions: in Pegram v. Drainage District, 108 Miss. 793, 67 South, 453, the question involved was whether chapter 197, Laws of 1912, was violative of the section of the Constitution here involved because it vested judicial power in the drainage commissioners. The court held that, although the drainage commissioners were. given quasi judicial powers by the statute, in view of the fact that their chief duties and functions were administrative, this provision of the Constitution was not violated.

In City of Jackson v. Whiting, 84 Miss. 163, 36 South, 611, it was held that section 2921, Code of 1892, as amended by Laws of 1898, p. 90 authorizing the Governor to pass upon and approve applications for the incorporation of municipalities not previously incorporated, was not unconstitutional because it authorized the Governor to decide questions belonging to the legislative department of the government. The board of supervisors is a body which exercises both powers quasi judicial and legislative, but one of its chief powers is administrative. The same is true of the municipal authorities under the laws of this state. Under the statute here involved the Governor and the circuit judge are simply created an administrative board to pass on the reasonableness and correctness of the examiner’s claim for services. They find the facts, it is true, and in doing so necessarily exercise judgment, but in no sense are they constituted a court to determine judicial questions in the sense of the Constitution. It would be practically impossible for the powers of the government to be so separated into three departments as that those exercising the functions and duties of one department could exercise none of the powers conferred on either of the other two departments. We are therefore of the opinion that this statute is not violative of the Constitution in that it confers judicial power on the Governor.

It is contended that the statute violates the due process clause of the Constitution of the state and of the United States because of the hearing before the circuit judge and the Governor is ex parte] no notice being required to be given the county whose funds are sought to be thus taken or appropriated. A complete answer to' that contention is that the hearing before the circuit judge and the Governor is not a cause in court, is not a judicial proceeding, and due process is not required. The statute simply provides a method for the appropriation of public funds for a public purpose. The revenues of a county are not the property of the county in the sense in which the revenue of a private person or corporation is regarded. The revenues of a county are subject to the control of the Legislature, and when the Legislature directs their application to a particular purpose or to the payment of the claims of particular parties, the obligation to so pay is thereby imposed on the county. 15 C. J. section 238, p. 581; Bell v. Cummings, 130 Tenn. 566, 172 S. W. 290, L. R. A. 1915D, 274.

And furthermore, if the hearing before the board composed of the circuit judge and Governor was such a proceeding as that the parties in interest would have the right to be present at the hearing, that is provided for, because the board represents the county, and the examiner, of course, represents himself, and necessarily both are present taking part in the hearing. The statute simply provides a method by which public funds may be appropriated to a certain purpose, and the proceeding is not akin to a judicial proceeding, and therefore there can be no question of due process.

Appellant contends that the finding of the Governor that 25 per cent, of the qualified electors had petitioned for an examination of the records of the county by an examiner, as well as the finding of the Governor that the account presented by the examiner for his services was correct and reasonable, can be inquired into and assailed in this suit, on the ground that such action of the Governor is not final. Like questions have been before the courts of the county in various forms. In State ex rel. Beach v. Olsen, 91 Wash. 56, 157 Pac. 34, there was involved a statute giving the county game coinmissioners the right to fix the salary of the county game warden and to pass upon the propriety of his expenditures. The question was whether the board of supervisors of the county in examining and allowing such claims of the game warden had the right to determine upon the amount of the salary and propriety of his expenditures. The court held that the action of the game commissioners in fixing the salary and expenses of the game warden within the limits provided by the statute could not be inquired.into. It was held in State v. Dinkins, 77 Miss. 871, 27 So. 832, that the statute authorizing the Governor to offer rewards for the arrest of escaped criminals vested in the Governor the discretion to refuse or allow such reward, and that a suit could not be maintained against the state for the recovery of a reward which the. Governor had refused to order paid. The court held that offering rewards and their payment are matters intrusted solely to the discretion of the Governor, and such discretion was controlled alone by the statute, fixing the amount that might be expended in this branch of the public service, that in all other respects the subject was solely in the discretion of the Governor, and that the law must leave the final decision upon every claim of this character somewhere and, when made, such decision must be accepted as correct, and that the presumption of correctness was just as conclusive in favor of executive action as in favor of judicial.

The case of Woodbery v. McClurg, 78 Miss. 831, 29 So. 514, involved the action of the attorney-general in refusing to certify that the charter of a corporation there involved was not violative of the Constitution or laws of the state. It was sought to force the attorney-general by mandamus to approve the'charter. The court held that the statute conferred upon the attorney-general discretion and judgment which could not be controlled by mandamus.

In City of Jackson v. Whiting, supra, there was involved section 2921, Code of 1892, as amended by Laws of 1898, p. 90, providing for the incorporation of unincorporated hamlets, authorizing the Governor to pass upon the sufficiency of the petition thefefor and whether it had the required number of signers and had been published as required by the statute in order to obtain a charter of incorporation. The .court held that the statute conferred discretionary power upon the Governor. Bank v. Lawrence County, 109 Miss. 398, 69 So. 209, involved the construction of section 4566, Code of 1906, which authorizes the county superintendent of education to issue schoolteachers’ pay certificates. The court held that the action of the county superintendent in issuing • such pay certificates was conclusive, and the board of supervisors has no discretion as to the allowance of warrants on such pay certificates. State ex rel. v. Metts, 125 Miss. 819, 88 So. 525, is not an authority to the contrary. It was held in that case, under sections 3308 and 3311, Code of 1906 (Hemingway’s Code, sections 5804 and 5808), that the census returns had to show a change in the classification of a municipality before the Governor could order a new census; that such change ivas a condition precedent to the power of the Governor to exercise the discretion conferred on him by the statute. Here the fact that the petition was sufficiently signed ivas a fact which under the statute the Governor ivas empowered to find. This question was not decided in Neville v. Adams County, 123 Hiss. 413, 86 So. 261. We therefore hold that, in the absence of any statute authorizing a review by the courts of the action of the board composed of the circuit judge, and the Governor as well as of the Governor in passing on said petition, such action is final, provided the authority of such board and of the Governor is exercised within the limits of the statute.

It is contended, however, by the appellant that in allowing appellee more than seven dollars per day for his sendees and allowing him compensation for assistants the statute was violated. Plainly the statute confines the compensation of the examiner to a sum “not exceeding seven dollars a day while actually employed /’ he to pay out of this his own expenses, and provides that the Governor shall fix the time for which he shall be employed. Personal fitness and personal service by the examiner is contemplated by the statute. He cannot sublet the work, nor can he employ others to do it for him and charge for their services. Chapter 241, Laws of 1914 (Hemingway’s Code, section 4783), does not add to or in any manner extend the power of the Governor with reference to the appointment of examiners. The purpose of that statute was to devise a method to charge the counties whose records were examined with the costs thereof. It deals’alone with examiners appointed under sections 2388, and 2391, Code of 1906 (sections 4780 and 4784, Hemingway’s Code), The language in the statute that it should apply only to cases where the Governor had been petitioned by twenty-five per cent, of the qualified electors to appoint an accountant was not intended to authorize the appointment of an accountant in any case where not. theretofore authorized by the statute. Taking the context and general purpose of the statute into consideration, we think this clause simply means that the examiner should only be paid by the county when twenty-five per cent, of the qualified electors of the county petitioned the Governor to have him perform the service; and it was not intended to provide a new ground for the appointment of an examiner. The fact, however, that in commissioning appellant he was named as examiner for a certain county would not affect the validity of his appointment. We are of the opinion that the action of the circuit judge and the Governor in approving the account of the examiner for any sum beyond seven dollars a day for the actual days’ services rendered by the examiner alone was beyond the power conferred on them by the statute, and therefore void, and that they were without authority to allow him any amount for the services of his assistants.

It is contended by appellant that the issuance of a commission to the examiner was a condition precedent to his right to perform the services in question. We think the plain language of the statute so provides. Section 2390, Code of 1906 (section 4782, Hemingway’s Code), provides that a commission shall issue to the examiner “vesting in him authority to do and perform the duties for which he may be appointed.” The commission is the evidence, and only evidence, of his authority, and is indispensable to his power to act. Appellee, therefore, in order to recover, was required to allege and prove the issuance and delivery of such commission to him.

Appellant contends further that the approval of the Governor and circuit judge of appellee’s account is void because they failed to certify in their order of approval that they-found it (in the language of the statute) “correct, and reasonable.” Each of them indorsed on the account that it was approved “as reasonable.” It might have been reasonable in their judgment, considering the value of the services rendered, and still have been in excess of the amount authorized by law; and the fact is, as we have seen, it was in excess of the amount fixed by law. If the Governor and circuit judge had simply approved the account without stating the grounds on which they based such approval, probably the presumption would be indulged that they had found it “correct and reasonable.” Instead, they undertake to state their grounds for approval, and in doing so left out one of the essentials laid down by the statute, namely that the account- was “correct.” This was not a compliance with the statute.

Reversed and remanded.