Saxon v. Harvey

223 So. 2d 620, 1969 Miss. LEXIS 1280
CourtMississippi Supreme Court
DecidedJune 9, 1969
DocketNo. 45431
StatusPublished
Cited by12 cases

This text of 223 So. 2d 620 (Saxon v. Harvey) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saxon v. Harvey, 223 So. 2d 620, 1969 Miss. LEXIS 1280 (Mich. 1969).

Opinion

BRADY, Justice:

This is an appeal from a decree of the Chancery Court of Scott County, Mississippi, sustaining a motion to • strike the bill of complaint filed in this cause for the reason that none of the complainants-taxpayers are attorneys at law and . that the suit was filed by the complainants, not only for themselves, but also on behalf of the taxpayers of Scott County, and that they were not represented by counsel.

This cause is similar in certain respects to a former suit instituted in 1965 by the same appellant under and by virtue of constitutional and statutory authority, and it is in order that this Court review the former case. In 1965 a taxpayer’s suit was instituted by the appellant and others under Mississippi Code 1942 Annotated section 2944 (1956) seeking an accounting and injunction against Hobson Harvey, President of the Board of Supervisors of Scott County, because of the unlawful use of county machinery, materials and labor for the benefit of private citizens on unauthorized projects in violation of statutory prohibitions. Sixteen separate instances of the unauthorized use of county machinery, materials and labor for the benefit of private parties were set out in this previous cause. The chancellor of the Chancery Court of Scott County held that “the evidence submitted wholly and completely fails to meet the burden of proof required to show that the roads which are the subject of this suit are not public roads,” and, therefore, dismissed the bill of complaint. The taxpayers appealed to the Mississippi Supreme Court, and in Saxon v. [622]*622Harvey, 190 So.2d 901 (Miss.1966), the Mississippi Supreme Court affirmed in part and i reversed in part and remanded the cause for an accounting as to a number of the charges of misuse and for the issuance of an injunction by the trial court.

On April 11, 1967, an injunction was issued by the Chancery Court of Scott County restraining Hobson Harvey and his successors from using equipment, machinery and materials to construct, maintain, or improve private property. On October 28, 1968, the complainants, Kent Saxon and John Sessions, filed a new complaint based upon separate and different violations of the use of county machinery, materials and labor for the benefit of private citizens on unauthorized projects. The new complaint alleged that Hobson Harvey had failed to make the accounting in accordance with the mandate of Saxon v. Harvey, supra, and that he was in contempt of court for violation of the April 1967 injunction. In addition, the complaint seeks a citation of appellee Hobson Harvey for contempt and that he be required to make the mandatory accounting and that he be removed from office. The complaint also alleges that the complainants as taxpayers have been denied the right to present their charges before the grand jury and that the district attorney of Scott County has declined to take any action. Moreover, the district attorney has suggested that the complainants bring a second taxpayer’s suit.

On December 2, 1967, attorneys representing appellee Hobson Harvey filed a motion to strike the complaint, alleging in support thereof that the complaint was neither prepared nor filed by an attorney. On the same date the chancellor sustained appellees’ motion to strike and entered a decree ordering that the bill of complaint be removed from the files of the court. From that decree this appeal is prosecuted.

Two assignments of error are urged. (1) The chancellor erred in granting the appellee’s motion to strike on the ground that appellant was not represented by counsel, the asserted ground being contrary to article 3, sections 24 and 25 of the Mississippi Constitution. (2) The chancellor erred in granting the appellees’ motion to strike on the ground that appellant was not represented by counsel, the asserted ground being contrary to the First and Fourteenth Amendments of the United States Constitution.

To determine whether or not the trial judge committed error in dismissing appellant’s bill of complaint because it was not prepared or signed by an attorney, we must construe together two provisions of the Mississippi Constitution and certain statutes of the Mississippi Code. Appellant urges that Mississippi Constitution article 3, sections 24 and 25 (1890) are controlling while to the contrary appellees urge that the statutes which relate to attorneys and the practice of law, Mississippi Code 1942 Annotated sections 8647-8684 (1956 and Supp.1966), under the interpretation of cases in this and other states justified the chancellor in striking appellant’s bill of complaint. It is to be remembered that appellant Kent Saxon together with another taxpayer, John Sessions, filed the case at bar under the provisions of Mississippi Code 1942 Annotated section 2944 (1956) which provides:

If a board of supervisors shall appropriate any money to an object not authorized by law, the members of the board who did not vote against the appropriation shall be liable personally for such sum of money, to be recovered by suit in the name of the county, or in the name of any person who is a taxpayer who will sue for the use of the county, and who shall be liable for costs in such case.

Upon consideration of the first error assigned, we are impressed with the fact that the legislature’s enactment of section 2944, supra, should be construed and is compatible with article 3, sections 24 and 25 of the Mississippi Constitution. Section 2944, supra, expressly permits the recovery [623]*623“by suit in the name of the county, or in the name of any person who is a taxpayer who will sue for the use of the county,” and for the recovery of any money appropriated to any object not authorized by law by a supervisor. This language is clear and permits only one interpretation. This statute and article 3, sections 24 and 25 of the Mississippi Constitution are correlative. It is to be noted that article 3, sections 24 and 25 of the Mississippi Constitution have remained unchanged since the adoption of the Constitution of the State of Mississippi in 1890 and these sections have remained inviolate. However, it must be noted that the specific point urged by appellees has not been expressly decided by this Court.

Mississippi Constitution article 3, section 24 (1890) is broad in its scope and requires :

All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.

Immediately following this mandate of the Constitution is article 3, section 25. Section 25 is not ambiguous. It, too, is crystal clear in its prohibition and guarantees :

No person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.

Any person including a taxpayer is guaranteed the right to represent himself or herself in any court in any civil cause. While not involved in this case, the same right is guaranteed a person in criminal suits.

In opposition to this basic law, together with the statute specifically authorizing the institution of a suit against a supervisor, we have Mississippi Code 1942 Annotated section 8682 (1956) which provides in part:

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Bluebook (online)
223 So. 2d 620, 1969 Miss. LEXIS 1280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saxon-v-harvey-miss-1969.