State Ex Rel. Knox v. Speakes

109 So. 129, 144 Miss. 125, 1926 Miss. LEXIS 339

• Court: Mississippi Supreme Court
• Decided: June 21, 1926
• Docket: No. 25852.
• Status: Published

Opinions

Anderson, J.,

delivered the opinion of the court.

There is involved in this case the constitutionality of what is known as the County Court Act (chapter 131, Laws of 1926, p. 218 et seq.). The state, on relation of Rush H. Knox, attorney-general, brought mandamus against appellees, the members of the board of supervisors of Bolivar county, to require them to submit under section 6 of the act to the qualified electors of said county the question whether the County Court Act should be put in force in that county. Appellees refused to enter the order for the election, upon the ground alone that in their judgment the act was unconstitutional. The trial court held the same view, and therefore entered final judgment dismissing appellant’s petition for mandamus. From that judgment appellant appeals.

The questions in the case are: What is the correct interpretation of the statute? And, correctly interpreted, whether it is constitutional.

In order to properly consider and determine those questions, it would probably be better to set out in full the sections of the act in question rather than undertake to state their provisions. The constitutionality of the act is challenged on account of certain provisions in sections 1, 2, and 5, the proviso to section 6 (being the last two paragraphs thereof), and section 7. Those provisions of the statute follow:

“Section 1. Be it enacted by the legislature of the state of Mississippi, that in and for each county of the state which has a permanent population of exceeding thirty-five thousand inhabitants, or, not having such a population, has an assessed valuation of real and personal property exceeding seventeen million dollars, and in either event having a municipality therein of five thousand or more inhabitants as shown by the federal census of 1920, there is hereby created and established an inferior court to be known as the county court. The jurisdiction of said court- shall be as follows, viz.: It shall have jurisdiction concurrent with the courts of justices of the peace in all matters, civil and criminal, of which justices of the peace have jurisdiction; and it shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount or value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of one thousand dollars; and, subject to the provisions hereinafter contained, it shall have jurisdiction concurrent with the circuit court of all misdemeanors charged by indictment, or which may be preferred by affidavit filed by the district attorney or county prosecuting attorney as shall be hereinafter more fully provided. All of which affidavits shall be sworn to before the circuit clerk of the county. It shall have exclusively the jurisdiction heretofore exercised by justices of the peace, in the following matters and causes, viz.: Eminent domain, the partition of personal property, and in actions of unlawful entry and detainer, provided, however, that nothing in this section shall be so construed as to give to the county court jurisdiction over matters of divorce and alimony, matters testamentary, and of administration; minors business, cases of idiocy, lunacy, and persons of unsound mind.

“Sec. 2. The rules of pleading, practice, and procedure in the said county court shall be the same as those now, or which may hereafter be established as governing the several other courts, as respects the several matters mentioned; that is to say, in proceedings which, if there were no county court, would have to be brought in a court of the justice of th’e peace, or before a tribunal of a justice ... of the peace, the same practice in the county court shall be followed as if the matter were in said justice court, general or special; and if the matter be such as would, otherwise be in the circuit court, the practice shall be the same as in the circuit court; and, if otherwise, the matter would be in the chancery court, the practice shall be the same as that of the chancery court, and this shall furnish and he the rule for all proceedings in the said county court in the trial of all matters over which it has jurisdiction, provided, however, that all pleadings in the county court shall be in writing and the jury shall be instructed by the judge in the manner now provided by law for instructing the jury in the circuit court. . . .

“Sec. 5. No appeal or certiorari shall be taken from any interlocutory order of the county court but if any matter or cause be unreasonably delayed of final judgment, or decree therein, it shall be good cause for an order of transfer to the circuit court upon application therefor to the circuit judge. Appeals of the county court shall be to the circuit court on application made therefor and bond given according to law. Such appeal shall operate as a supersedeas only when such would be applicable to case of appeals from the circuit court to the supreme court. The circuit court shall be deemed always open for the hearing’s of such appeals and the circuit judge may hear the same at term time or in vacation at any place in his district. Appeals shall be considered solely upon the record as made in the county court. If no prejudicial error be found the matter shall be affirmed and remanded to the county court for enforcement. If prejudicial error be found the circuit court, or judge may reverse and remand the same for a, new trial, or may remand the'same with direction, ’or may order the case transferred to the circuit court for a trial therein de novo. Appeals from the county court shall be taken and bond given within ten days from the date of the entry of the final judgment on the minutes of the court, provided, however, that the county judge may within the said ten days for good cause shown by affidavit extend the time, but in no case exceeding sixty days from the date of the said final judgment. All appeals from courts of justices of the peace, special and general, and from all municipal courts shall be to the county court under the same rules and regulations as are now pro vided oil appeals to the circuit court, but appeals from orders of the board of supervisors, municipal boards, and other tribunals other than courts of justice of the peace and municipal courts, shall be direct to the circuit court as heretofore. Judgments of affirmance by the circuit court, or of the judge thereof, may be appealed to the supreme court under the same rules and regulations as appertain to appeals from final judgments of said circuit court, but when on appeal from the county court a ease has been remanded by the circuit court or judge, or has been transferred to the circuit court for trial de novo, there shall be no appeal to the supreme court until final judgment in the circuit court or by the circuit judge of affirmance of the subsequent judgment of the county court.

‘ ‘ Sec. 6. . . . Provided, that in any county not affected by the provisions of this act, and in which a. county ■ court has not been established, on a petition of ten per cent, of the qualified electors of such county, addressed to the board of supervisors, an election shall be called by the said board and conducted in the way and manner now provided by law for a special election, for the purpose of determining whether or not said court shall be established in such county; and if a majority vote at such election in favor of a county court, then the election commission shall so certify to the secretary of state, and the Grovernor shall then issue a proclamation establishing the county court in such county; and, thereafter, at the next succeeding meeting of the board of supervisors the board shall call an election for the election of a county judge, and which election shall be conducted in the way and manner now provided by law for holding a special election ; however, any county which may come under the provisions of this act by an election as above provided, may thereafter come from under the act in the same way and manner as herein provided by an election to be held for that purpose; and the salary of the county judge in all counties which may come under the provisions of this act by a special election, shall be fixed as follows:

“In counties having a total assessed valuation of fourteen million dollars or more, but not exceeding seventeen million dollars, three thousand dollars per annum, in those assessed at eleven million dollars or more, but less than fourteen million dollars, two thousand four hundred dollars per annum; in those assessed at five million dollars or more, but less than fourteen million dollars, two thousand dollars per annum; and in all other counties, of assessed valuation of less than five million dollars, one thousand eight hundred dollars per annum.

“Sec. 7. The county court shall be a court of record and the clerk of the circuit court shall be the clerk of the county court, and he or his deputy shall attend all the sessions of the county court, and have present at all ses-. sions all boobs, records, files, and papers pertaining to the term then in session. The dockets, minutes, and records of the' county court shall be kept, so far as is practicable, in the same manner as are those of the circuit and chancery courts. The sheriff shall be the executive officer of the county court; shall he himself, or deputy, attend all its sessions, and he shall serve all process, and execute all writs issued therefrom in the manner as such process and writs would be served and executed when issued by the justice courts,' or by the circuit or chancery court according as appertains to the value of the cause or matter in hand. The clerk and sheriff shall receive the same fees for attendance, and for other services as are allowed by law to the circuit clerk and to sheriffs for like duties in the circuit and chancery courts. • The county prosecuting attorney shall be the prosecuting attorney of the county court and he shall prosecute all cases therein wherein he is now required by law to prosecute, and he shall assist the district attorney in the prosecution of all cases appealed from the county court to the circuit court, in which it is now the duty of the county attorney or district attorney, now under the law to appear, and prosecute.

££ There shall be an official court stenographer of said court to be appointed by the county judge for the purpose of doing the necessary stenographic work of the said court, the said work to be done under the direction of the county judge. The official stenographer of said court shall receive a salary of one hundred dollars per month to be paid by the county out of its general fund. In addition thereto, for the transcript of the record of appeals, he shall be paid the same fees as are now paid stenographers of the circuit or chancery courts for similar work. In all cases filed in the county court a stenographer’s fee shall be charged as an item of cost, as follows: A fee of one dollar shall be charged in all cases which, if there were no county court, would have been filed in the justice court. A fee of two dollars shall be charged in all cases appealed to the county court and a fee of three dollars shall be charged in all cases which, if there were no county court, would be filed in the circuit or chancery court. All of said stenographer’s fees above mentioned are to be paid into the general fund of the county. . . .

£ £ Sec. 11. If any clause, paragraph, or part of this apt shall for any reason be adjudged by any court of competent jurisdiction to be unconstitutional such judgment shall not affect, impair, or invalidate the remainder of this act but shall be confined in its operation to the clause, sentence, paragraph or part thereof, directly in the controversy in which such judgment shall have been rendered. ’ ’

Appellees contend that the act violates section 90' of the Constitution, prohibiting special or local legislation with reference to certain subjects therein named. If the act is a general law and not a local or special law, the questions arising under that constitutional provision are eliminated from consideration.

In determining the question whether the statute is a general law or a special or local law it will he necessary first to interpret the meaning of the act. In its first section the act involved provides, among other things, that the counties meeting the requirements therein set out shall automatically come under the provisions of the act. Those requirements are that, in “each county of the state which has a permanent population of exceeding thirty-five thousand inhabitants, or, not having such a population, has an assessed valuation of real and personal property exceeding seventeen million dollars, and in either event having a municipality therein of five thousand or more inhabitants as shown by the federal census of 1920, ’ ’ there is established an inferior court to be known as the county court. The first paragraph of. section 6 of the act provides, among other things, that “it shall be the duty of the Governor to determine and declare by public proclamation on or before the first day of May, 1926',” what counties will come under the act, in which counties there shall be nominated judges at the judicial election of 1926, the terms of office of the judges so elected to begin the first Monday of January, 1927, “and in 1930, and every four years thereafter as counties become eligible, by election provided for in this section, to come under this act, the Governor shall so determine and proclaim with like effect as appertains to those proclaimed in 1926,” and that, in “determining population the Governor shall not be confined to the federal census, but may resort to such data and means as shall seem to him proper, and his decision shall be final after any judge has been nominated or elected thereunder,” and, “when in the last year of any four-year period any county has fallen below the required population, or assessed wealth, it shall be the duty of the Governor so to ascertain and proclaim, thereupon after the expiration of the then four-year term, the county court shall cease to exist in such county. ’ ’ The underscored phrase above quoted, namely, “by election provided for in this section,” is a troublesome provision in the act. The second paragraph of section 6 of the act prqvides, in substance, that any county not coming under the act automatically may do so by an election, and may go out from under the provisions of the act in the same manner.

It is argued that the act is a local or special law, because the counties automatically coming under the act in 1926, and every four years thereafter, must each, in addition to the required population or assessed value, have a municipality of five thousand inhabitants, or more, as shown by the federal census of 1920‘; in other words, that, as to the counties automatically coming under the act, the census of 1920 is made the perpetual guide for fixing {he population of the municipalities therein. Appellees’ position is, and it seems to be well founded, that such a classification would make the act a local or special law, that the population of municipalities in such counties according to the census of 1920' would not be germane to the purpose of the act; and therefore would amount to an arbitrary and unreasonable classification. We do not so understand the provisions of section 1 of the act as construed with the balance of the act and especially with section 6> of the act. The scheme provided by the act construed as a whole is this: That, in ascertaining the population of the municipalities of counties automatically coming under the provisions of the act, the census of 1920 is the guide only for the counties so coming under the act in 1926. After 1926 the population of a county automatically coming under the act, as well as the municipality therein, is to be ascertained by the Governor as provided for in the first paragraph of section 6 of the act. It is therein provided that, in determining the population, the Governor shall not be confined to any federal census, but may resort to such data and means as shall seem to him proper, and his decision in reference thereto shall be final after any judge has been nominated or elected thereunder. Any other construction put upon the statute would make that provision meaningless. The language is broad enough to cover the population of the municipalities as well as of the counties. It will be observed that under the second paragraph of section 6 of the act, which provides for the counties not coming under the act automatically to come under and go out from under the act by election, that the Governor has nothing whatever to do with the matter except to declare the court established by proclamation when a county has so voted. He is absolutely barren of any other authority touching the matter.

It follows from these views that the phrase in the first paragraph of section 6 of the act, “by election provided for in this section, ” is meaningless. It has no place in the • statute. With that left out, the act is a sensible, workable scheme, and means-this: That the population of the municipalities in counties automatically coming under the act in 1926 are determined by the census of 1920. Every four years thereafter the population of the municipalities, as well as that of the counties, automatically coming under the act, are determined by the Governor, and, in doing so, he is not confined to the federal census, '“but may resort to such data and means as shall seem to him proper.” The legislature doubtless meant something by the language quoted, “by election provided for in this section,” but such meaning is not ascertainable from the act itself, and therefore, whatever the meaning-intended, it cannot be enforced by the courts.

In determining the question whether an act is a general law or a local or special law, the courts will look to the substance and practical operation of the law, rather than to its form and phraseology. The constitutional requirement that certain character of laws shall be general and uniform in their operation does not prevent a reasonable classification by the legislature. A. law is general in the sense of such a constitutional provision when it applies to and operates uniformly on all members of any class of persons, places, or things requiring legislation peculiar to the particular1 class dealt with by the law. A law is general and uniform, although, it does not operate on every person in the state. It is general and uniform if it operates on every person who is brought within the classification and circumstances provided for by the law. Where a law is broad enough to reach every portion of the state and to embrace within its provisions every person and thing distinguished by marked characteristics of sufficient importance to make them clearly a class by themselves, it is not a.local or special law but a general law, “even though there may be but one member of the class or one place on which it operates.” (Italics ours.) 25 B. C. L., section 66, p. 815, at page 818. In the case of Toombs v. Sharkey (Miss.), 106 So. 273, at page 275, the language above quoted from 25 R. C. L., section 66, p. 818', is quoted with approval. Applying these principles to the statute under consideration as we have interpreted it we think leads to the conclusion that the act is a general law, not a local or special law.

■ Appellees contend that the act is violative of sections 146, 156, 150, 171, and 172 of the Constitution. These sections of the Constitution, except section 172, parcel out to the supreme court, the circuit and chancery courts, and the justices of the peace, all the judicial power of the state. Section 146 confers on the supreme court appellate jurisdiction; section 156 confers upon the circuit court original jurisdiction in all matters civil and criminal not vested by the Constitution in some other court, “and such appellate jurisdiction as shall be prescribed by law.” Section 159 confers full jurisdiction on the chancery courts of all matters in equity and certain other matters set out in the Constitution. Section 171 confers jurisdiction concurrent with the circuit court on justices of the peace of misdemeanors, and exclusive civil jurisdiction of causes in which the principal amount in controversy shall not exceed the sum of two hundred dollars. Section 172, under the authority of which the statute here involved was enacted, provides that the legislature “shall, from time to time, establish such other inferior courts as may be necessary, and abolish the same whenever deemed expedient.”

In substance, appellees’ position is that it was not competent for the legislature, under section 172 of the Constitution, to erect a court and to confer upon it such a large part of the jurisdiction of the other constitutional courts as was attempted under this statute to confer on the county conrt, and appellees lay special emphasis on the contention that no part of the jurisdiction of the chancery court can be conferred on any inferior court set up-under section 172 of the Constitution. Nor can appellate jurisdiction be conferred on the circuit court of appeal in equity cases from such inferior courts. The provision of section 172 of the Constitution is not new in this state. Substantially the same provision is found in the Constitutions of 1832 and 1869. Both of those Constitutions, as did the Constitution of 1890, parceled out the entire judicial authority of the state to certain courts therein named. Notwithstanding that fact, there was inserted in each of those Constitutions a provision identical in substance with section 172 of the present Constitution, requiring the legislature to establish such other inferior courts from time to time as might be necessary, and abolish the same when deemed expedient. In 1836 (Laws 1836, p. 25), under the Constitution of 1832, the legislature passed an act creating a criminal court for certain counties in the state; and in 1842 (Laws 1842, -chapter 3), under the same Constitution, the legislature passed an act creating a district chancery court. There came before the High Court of Errors and Appeals cases involving the constitutionality of each of these acts. In a very large measure those statutes were attacked on the same ground as the statute here involved is attacked. The Criminal Court Act was passed on and held to be constitutional in Thomas v. State, 5 How. 20. And the District Chancery Court Act was held to be constitutional in Houston v. Royston, 7 How. 543. The opinion in the latter case was written by Judge Sharkey; that in the former was written by Judge Trotter. Each of those opinions contain a clear and lucid discussion of the principal questions involved under this branch of the present case. In Houston v. Royston, Judge Sharkey said, among other things:

“In the outset it is apparent that the convention intended to parcel out to the respective courts created by the Constitution the entire judicial jurisdiction which might pertain to a state or government. None was left • undisposed of. We cannot imagine any possible case which is not cognizable by some one of the courts established, and yet we have the strongest possible reason for believing that the convention looked forward to some changes which might be suggested by experience, either from a defect in the practical application of the system then established, or from changes which might take place in the condition of the state. Hence they declared, in the twenty-fourth section of the same article [Const. 1832, art. 4], that ‘the legislature may, from time to time, establish such other inferior courts as may be deemed necessary, and abolish the same whenever they shall deem it expedient. ’ This section is found near the close of the article which established all the courts, and conferred the entire jurisdiction of the state. Such a provision indicates that the convention thought that it might be convenient and proper to make some changes in the judicial system. Nothing else could have induced such a provision. And it must have been the design to clothe the legislature with power to make such changes. Such a provision was not inserted to give the legislature power to provide for the exercise of a jurisdiction which had not been disposed of, for it was all appropriately vested by the Constitution; none remained for legislative disposition. The power therefore to create inferior courts necessarily implies the power to clothe them when created •with a part of the jurisdiction which had been vested in the courts established by the Constitution; otherwise they could have no jurisdiction whatever, for the Constitution liad disposed of all. Any other supposition leads to a charge -of absurdity in the convention, in having done a useless and unmeaning act; and such a presumption is not to be indulged when the act can have a sensible application. It cannot be doubted that the legislature has power to establish some inferior courts. What is meant by an inferior court, in the sense in which that term is used in the twenty-fourth section? The article alluded to enumerates all the courts of the state, beginning with the High Court of Errors and Appeals, and ending with the courts of justices of the peace. Now does the article mean by inferior courts such courts only as are inferior or below all of those mentioned, even down to a justice’s court? I do not so understand it; but I understand it to mean that, when the legislature created a court and gave it jurisdiction, it must be inferior to the court created by the Constitution, whose jurisdiction was of the same character as that given to the new court by the legislature. Thus, if the legislature wished to create a court which should exercise a part of the jurisdiction now exercised by the circuit courts, they could only do so by creating a court inferior to the circuit court. P’or instance : The criminal court exercised jurisdiction given by the Constitution to the circuit court, but it was inferior to the circuit court, and on this ground was held to be constitutional; still, in the ordinary acception of the term, it was superior to other courts, or might have been so in dignity and extent of jurisdiction. .. . .

The legislature can do no more than give it a concurrent jurisdiction, for it cannot divest jurisdiction already vested, and the superior court of chancery has ‘full jurisdiction in all matters of equity. ’ Then we conclude that the superior court of chancery is not so exclusive in its character as to prevent the legislature from acting under the twenty-fourth section, and establishing inferior courts with equity jurisdiction.”

In Rabe v. Fyler, 10 Smedes & M. 440 48 Am. Dec. 763, the constitutionality of an unlawful entry and de tainer court was involved. Among other things, the court said:

“It is insisted the trial before the justices was unconstitutional. The right of the legislature to establish such inferior courts as might be deemed necessary, has been more than once upheld-by this court”1 — citing Thomas v. State and Houston v. Royston.

In Hughes v. State, 79 Miss. 77, 29 So. 786, the court considered and passed on the constitutionality of an act of the legislature establishing a municipal police court with all the jurisdiction of a justice of the peace and more. The statute was held to be constitutional. The court said, among other things:

“The inferior courts established under section 172- of the Constitution are, in their jurisdiction, independent of the courts erected under section 171, and the number of these courts and their respective jurisdictions are within legislative authority, and their creation can be complained of only to the legislature itself.”

Pegram v. Drainage District, 108 Miss. 793, 67 So. 453, involved the constitutionality of a statute making the board of drainage commissioners under one of the drainage acts of this state a court of record. Without passing on whether, it was a judicial tribunal, the supreme court said, in substance, that, if it was such, then under section 172 of the Constitution it was an inferior court; that its jurisdiction was limited; that its determinations were not final and conclusive but subject to review by a higher court.

It is true that in Houston v. Royston, 7 How. 543, the court said that £ £ equity jurisdiction cannot be given to a court of law,” but there are two reasons why that statement of the court is not controlling here: First, it was not decision. The court was passing on the constitutionality of an act of the legislature that did not undertake to confer equity jurisdiction on a court- of law. The statute involved in that case was a statute establishing a vice chancery court, and the statute was held to be constitu tional. Therefore the statement of the judge who wrote the opinion in that ease that, under the Constitution, equity jurisdiction could not be bestowed upon a court of law was beside the mark. Second, under the Constitution of 1832, which governed in that case, Judge Sharkey who wrote the opinion therein was probably right in his conclusion that the legislature could not confer equity jurisdiction on a court of law. The Constitution of 1832, article 4, section 16, provided:

‘ ‘ The legislature may give to the circuit courts of each county equity jurisdiction in all cases where the value of the thing, or amount in controversy, does not exceed five hundred dollars.”

In discussing the question, Judge Sharkey based his dictum on two grounds, namely, that the Constitution of 1832 conferred all equity jurisdiction on a “separate superior chancery court;” and, second, using his language '(7 How. at page 550) :

“And to prevent the transfer of its jurisdiction and keep it a separate tribunal, the convention declared by a proviso what jurisdiction rightfully belonging to a court of chancery might be transferred to the courts of law. The effect is to prevent the transfer to those cotorts of any further equity jurisdiction.” (Italics ours.)

Judge Sharkey evidently had in mind the well-established principle of constitutional law which was followed in State v. Henry, 87 Miss. 125 at page 144, 40 So. 152, 154 (5 L. R. A. [N. S.] 340), in which case it was held:

“Where the Constitution schedules powers, giving or taking away, it must be presumed to have scheduled all, and it only must be looked to, with its necessary implications, for the limit, of authority or restriction.”

Where the Constitution says to the legislature, You may do thus and so on a certain subject, it is not necessary to follow that with an inhibition that the legislature can go no further. If the Constitution is silent on a subject of legislation, the legislature is supreme. But, where the Constitution speaks, the legislature may go to the extent permitted by the Constitution but no further, even though the Constitution be silent as to whether it may go further. The Constitution of 1832 said to the legislature: You may give courts of law equity jurisdiction to a certain extent. That meant that the legislature could go no further. There is no such provision in our present Constitution.

We are of opinion that under these decisions of our court the county' court established by this act is a constitutional court, and that the entire jurisdiction conferred upon it by the act was authorized by the Constitution, and also that the act is constitutional in so far as it confers upon circuit courts appellate jurisdiction of equity cases appealed from the county courts to the circuit courts as provided in the act.

We are of opinion, however, that in so far as the act confers upon the circuit judges authority to try appeals from the county courts anywhere in vacation without notice is violative of section 14 of our Constitution (the due process section). But that provision of the act does not go to the constitutionality of the entire act. It is clearly separable from the balance of the act. The statute provides for the hearing of such appeals in term time as well as in vacation. Therefore there is left in the statute a remedy by appeal to the circuit court in term time. Section 11 of the act provides that, if any clause, paragraph, or part.of the act shall be adjudged unconstitutional, nevertheless the remainder of the act shall stand. We think, therefore, that the validity of the statute is not affected by that provision. The legislature itself, in section 11 of the act, said that it would have passed the act, even though that provision should be held unconstitutional.

Reversed and remmded.