Toombs v. Sharkey

106 So. 273, 106 So. 274, 140 Miss. 676, 1925 Miss. LEXIS 304

• Court: Mississippi Supreme Court
• Decided: December 7, 1925
• Docket: No. 24990.
• Status: Published

Opinions

McGowen, J,,

delivered the opinion of the court.

The appellant, William Bay Toombs, was the duly elected prosecuting attorney of Washing-ton county, Miss., and filed his petition for writ of mandamus in the circuit court of said county against Pat Sharkey et al., composing the board of supervisors of said county; that he had occupied said position for some years prior to January 1, 1924. He further averred that at the January, 1924, meeting of the defendant board of supervisors his salary was fixed for the term beginning the first Monday of said month at two thousand four hundred dollars per annum, payable monthly. The petitioner avers further that at the 1924 session of the legislature chapter 211 was passed, that by virtue of said chapter 211, Laws of 1924, the board was authorized to fix the compensation of the county prosecuting attorney in counties having- an assessed valuation of twenty-five million dollars or more, which county is in a levee district where a cotton tax is imposed for levee pur poses, and that Washington county had such assessed valuation, and was in a levee district where a cotton tax was imposed for levee purposes. He further averred that it was the duty of the defendant board to fix his salary at not less than three thousand dollars nor more than thirty-six hundred dollars per annum, and that it was their duty so to fix his salary under the law. He further avers that the board declined to comply with the law in this respect. The petition prayed for a writ of mandamus directing the board to fix his salary at not less than three thousand dollars nor more, than thirty-six hundred dollars, commencing April 8,1924.

The defendants, the appellees here, board of supervisors, interposed a demurrer to this petition, and assigned as grounds of demurrer the following: (1) Because house bill No. 799, an act of the legislature of 1924, entitled “ An act to amend chapter 126 of the Laws of 1920, prescribing the compensation of county prosecuting attorneys,” is void and of no effect, in that the same is violative of section 90 (o) of the Constitution of the state of Mississippi. (2) Because said house bill No. 799 is void and of no effect, in that the same is violative of section 91 of the Constitution of the state of Mississippi. (3) Because petitioner has a plain, adequate, and speedy remedy in the ordinary course of law.

Chapter 211, Laws of 1924, is as follows:

‘£ Section 1. Be it enacted lay the legislature of the state of Mississippi, that chapter 126, of the Laws of 1920, be and the same is hereby amended to read as follows:

“County Prosecuting Attorney—Salary Fixed. (Hemingway’s Code, section 699.) The county prosecuting attorney shall receive for his services an annual salary, to be fixed for his term of office by the board of supervisors and to be paid monthly, as follows:

“In counties having an assessed valuation of twenty-five million dollars or more, not more than twenty-four hundred dollars nor less than twelve hundred dollars.

“In counties having assessed valuation between ten million dollars and twenty-five million dollars not more than two thousand dollars nor less than one thousand dollars.

“In counties having; assessed valuation between seven million dollars and ten million dollars not more than fifteen hundred dollars nor less than six hundred dollars.

“In all other counties not more than twelve hundred dollars nor less than six hundred dollars; provided, however, that in all counties having* an assessed valuation of twenty-five million dollars or more, in a levee district, where a cotton tax is imposed for levee purposes, the board of supervisors shall pay such county prosecuting attorney a salary not less than three thousand dollars, nor more than thirty-six hundred dollars per annum; and in all cases of conviction, there shall be taxed against the convicted defendant as an item of cost, the sum of three dollars, which shall be' turned into the county treasury as part of the general county funds, provided said three dollars shall not be taxed in any case in which it is not the specified duty of the county attorney to appear and prosecute.

‘ ‘ Sec. 2. In arriving at the class in which counties are placed in for the purpose of. this act, the total assessed valuation of such property in such county, whether such property be taxable property or not, shall be the basis on which the class of such county is determined.

“Sec. 3. That should a part of this act be declared to be void or unconstitutional, the other parts of this act shall not be affected thereby.

“Sec. 4. That this act take effect and be in force from and after its passage.”

The court below held that chapter 211, Laws of 1924, violated the Constitution and sustained the demurrer, and the county prosecuting attorney appeals to this court.

It will be noted that the special part of the law under review here is contained in the provision which is in the following language:

“Provided, however, that in all counties having an assessed valuation of twenty-five million dollars or more, in a levee district, where a cotton tax is imposed for levee purposes, the board of supervisors shall pay such county prosecuting attorney a salary not less than three thousand dollars, nor more than thirty-six hundred dollars per annum,” etc.

One of the questions squarely presented to us for decision is, Does this proviso violate section 90 (o) of our state Constitution?

Section 90 of our Constitution provides: “The legislature shall not pass local, private, or special laws in any of the following enumerated cases,, but such matters shall be provided for only by general laws, viz.: (a) Granting divorces; (b) changing the names of persons, places, or corporations. ’ ’

And, omitting others before paragraph (o), which reads as follows: ‘ ‘ Creating, increasing, or decreasing the fees, salary, or emoluments of any public officer. ’ ’

It will be noted that there are three distinct steps in the classification here sought to be enforced: (1) Counties having twenty-five million dollars or more; (2) counties in a levee district; (3) such counties above named paying a cotton tax for levee purposes.

If it be conceded that a classification is proper and permissible under this paragraph of the Constitution, then is the classification here enacted into law local or special, or is it a general law?

It is a well-settled rule of construction that the substance of the law may be examined rather than the form, in determining whether or not the classification is reasonable and in further determining whether or not the classification is guised as a general law, when in truth and in fact it is local in its application.

In order to be upheld, it must be a general law, because the Constitution expressly prohibits fixing the fees, salaries, or compensation of any county officer by any local or special law.

Certain it is that the legislature is not warranted in making an arbitrary and indiscriminate classification without regard to its relation to the thing to be effected. In other words, the classification must be germane to the subject-matter of legislation. Under this classification, we know that only two counties; to-wit, Washington and Bolivar, will be permitted to pay their county prosecuting attorneys so much as three thousand dollars minimum or thirty-six hundred dollars maximum per annum. It is very clear also that there are other counties with much greater population, with crowded centers, where crime is wont to be bred, and where the violations of the law are apt to be more frequent, and the subject-matter of this legislation is the compensation of the county prosecuting attorney, whose main duty is to prosecute certain crimes in the justice of the peace court and to assist the district attorney in the prosecution of crime in the- circuit court. Are the characteristics set out; to-wit, counties in a levee district, and counties in a levee district paying a cotton tax for levee purposes, related to or connected with the prosecution of crime?

If the act here under review is constitutional within the purview of section 90 (o), then the classification which provided that counties not in a levee district and not having any hills therein would have just as much relation, so far as the logic of the matter is concerned, to the subject of the prosecution of crime and the salary to be paid the officer therefor. Or, if it be said that perhaps there might be prosecutions more or less of those who refused to pay a cotton tax and thereby violated the criminal laws in the failure to pay the cotton tax or to remove the cotton without paying the tax for levee purposes, certainly it cannot be, by any stretch of the imagination, that the particular misdemeanor which may or may not be practiced more or less in a given community may be set up as a basis of classification for the evasion of this section of the Constitution. It would be just as logical to argue the validity of a law that provided for a different compensation to the county prosecuting attorney in counties having a public state building or in counties where it was against the law to kill certain game. Manifestly this section of the Constitution was inserted for a purpose, and, while it may be conceded that the legislature should be permitted to have great latitude in making classifications, yet it is the duty of this court as much to maintain the Constitution, the paramount law, as it is to maintain a statute passed by the legislature and not by skillful circumlocution emasculate the fundamental law of the land by rendering it absolutely nugatory, meaningless, thus destroying its force and virility.

The rule is well stated in 25 R. C. L., p. 815, section 66, as follows:

‘ ‘ Test as to Character of Law.—In determining whether a law is public, general, special, or local, the courts will look to its substance and practical operation rather than to its title, form, and phraseology, because otherwise prohibitions of the fundamental law against- special legislation would be nugatory. . . . It is well settled that reasonable classifications in a legislative act are not inimical to constitutional" provisions against the passage of private, local, or special laws, and that a law is general in the constitutional sense, which applies to and operates uniformly on all members of any class of persons, places, or things requiring legislation peculiar to itself in matters covered by the law. Laws are general and uniform not because they operate on every person in the state, for they do not, but because they operate on every person who is brought within the relations and circumstances provided for. In order, however, that a law which operates only on a class of individuals may be a general law, the class must not only be germane to the purpose of the law, but must also be characterized by some substantial qualities or attributes which render such legislation necessary or appropriate for the individual members of the class. It may be founded on some natural or intrinsic or constitutional distinction, but the distinction must be of such a nature as reasonably to indicate the necessity or propriety of legislation restricted to that class. Interdicted local and special laws are all those that rest on a false or deficient classification. Their vice is that they do not embrace all the class to which they are naturally related. It is no answer to the contention that an act is special legislation, to insist that only a single class is excluded. The exclusion of a single person or object which should be affected by a statute is fatal. All must be included of the law is. not general. Where a law is broad enough to reach every portion of the state and to embrace within its provision every person or thing distinguished by characteristics sufficiently marked and important to make them clearly a class by themselves, it is not a special or local, but a general, law, even though there may be but one member of the class or one place on which it operates.”

It will be observed that the proviso in the law here under review excludes all other counties paying a cotton tax or being within a levee district except those having an assessed valuation of twenty-five million dollars or more. There can be no peculiar characteristics with reference to the people inhabiting Washington county other and different from those who inhabit Coahoma or Hinds or Lauderdale counties. These counties mentioned are not, however, in the same arbitrary class as is set up here by the legislature. Coahoma county, for instance, does not pay any cotton tax, while Issaquena county pays a cotton tax. Yet these counties, with similar environment and similar characteristics as to people and as to those things that are usually embraced in a class, are the same. So that we can safely say that all the members of a certain class are not embraced in this several times extended classification.

The payment of a cotton tax is not a reasonable basis for a classification involving the payment of salaries of officers whose prime duty it is to prosecute crime.

As to the argument that it is a misdemeanor not to pay the cotton tax under certain conditions, we have only to say it is not made the special duty of the county prosecuting. attorney to prosecute this character of cases. In addition, the levee board has all the machinery for the collection of these taxes. It is a highly penal statute in aid of the collection of the revenue, and the county is not interested directly in the collection of the tax, and the tax collected is solely and strictly for the benefit of the levee board, and not for the benefit of the county, and the levee board is provided with its own collection officers and its own attorneys. So that the fact that the failure to pay the cotton tax under certain conditions might be a misdemeanor cannot be set up as a characteristic peculiar and distinct to the exclusion of Issaquena county, having the same characteristics.

In the case of Reynolds v. Collier, 204 Ala. 38, 85 So. 465, the supreme court of Alabama struck down the act which provided that the salary of the county judges should be different in counties having not less than twenty-five thousand and not more than twenty-five thousand one hundred and fifty population, holding that there was no reasonable necessity for the distinction; the court using this language:

“Indeed, to'illustrate the extreme to which such legislation seems to have gone, it is not inappropriate to call attention to one of these acts in particular, which is made to apply to counties where the difference in population is but one. Such legislation as we are here considering has been very properly characterized as ‘classification run mad.’ ”

And the court in that case interpreted the act fixing a difference of population as purely arbitrary and without pretense of reason or necessity or substantial merit, and thus, under the guise of classification, it is a local law, pure and simple.

Something more is required than a mere difference in characteristics that will serve to call attention to a distinction, and under the guise of classification neither isola tion nor arbitrary selection can be held to be a proper classification under this section of the Constitution.

We quote from Longview v. Crawfordsville, 164 Ind. 117, 73 N. E. 78, 68 L. R, A. 622, 3 Ann. Cas. 496, as follows : ‘ ‘ The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree, at least, account for or justify the restriction of the legislation. ’ ’

As we have before said, if such characteristics as being within or without a levee district are a sufficient basis for legislative classification, then assuredly this section of the Constitution is “as sounding brass, or a tinkling cymbal,” and has no practical meaning whatever, so long as the legislature will assume to clothe the statute, local in its application, with the garments of generality.

There is no reasonable relation, as we see it, between the payment of a cotton tax in a levee district and the payment of an officer for the prosecution of crime. There is no substantial difference or distinction between a citizen who lives within a levee district and without a levee district. The habits, customs, propensities, and general characteristics are all the same. So that we feel assured that this statute violates section 90 (o) of the Constitution.-

We are not unmindful of the holding in Cox v. Wallace, 100 Miss. 525, 56 So. 461. In that case a drainage chapter was under review, and Mr. Justice Mayes, in holding that drainage district law constitutional and not in conflict with section 90 (q) of the Constitution, wherein section 371, Code of 1906, provided that the drainage chapter should, not apply to land overflowed by backwaters of the Mississippi river, for thé court said:

“We are not familiar with the reason of the legislature for excepting from the provisions of this act this character of lands subj ect to overflow. We presume that it was because such lands are under the control of the levee districts created by article 11 of the Constitution, and the purpose of the legislature was to avoid conflicts of jurisdiction; but, whatever may be the reason, this exception does not make of the statute a local, private, or special law in relation to water courses within the meaning of the above section of the Constitution. The law is not local. It is not special. It is not private. It is a law applying to every county and every locality in the state. It is true that the law excepts from its operation a certain character of land subject to overflow; but the law itself is applicable to every part of the commonwealth. The exception contained in section 371 does not make the law conflict with paragraph (q) of section 90 of the Constitution. ’ ’

It is manifest that the distinguished writer of this opinion was dealing- with the question of water courses and with the lands so located as to be overflowed by the backwaters of the Mississippi river, which were of a class and character independent of the other lands of Mississippi because of the jurisdiction of the levee boards conferred by the Constitution over these lands, and because of the very character of the lands themselves; it was not arbitrary ; it was germane to the subject of water courses and drainage of lands to those segregating the lands thus so peculiarly situated, not only for the purpose of preventing a clash of jurisdiction, but because by every argument of logic and reason they were naturally segregated from other lands which were susceptible of drainage within the state of Mississippi, as in the very nature of things the backwaters from the Mississippi river perhaps could not be controlled by the system of drainage then being enacted. So that, using the language of Judge Mayes as to chapter 211, Laws of 1924, under review, we say this law is local, and that the distinction set up is not germane to the subject-matter of the legislation.

This statute as certainly points to the counties of Bolivar and Washington as if they were named in the act, and in our opinion is a futile attempt faintly disguised to evade this section of the Constitution, while under the facts in the case of Cox v. Wallace, supra, the drainage law was made applicable to all of that part of the state which, could be classed as drainage land. At least this might have been the view of the court and of the legislature. At least it is a reasonable basis for classification, which cannot be said of the proviso in the Laws of 1924, chapter 211, here under review.

We are deeply sensible of the responsibility resting upon a court when it strikes down a statute enacted by the legislature of the state, but we cannot bring ourselves to sanction a classification which is not based upon any substantial distinction making'; the class really different from any other. Nor do we think that the characteristics which formed the basis of the classification are germane to the purpose of the law. We do not think there were any distinctive features between the payment of a cotton tax for levee purposes in a levee district and those counties not paying a cotton tax as related to the salary of a county prosecuting attorney upon whom no special duty with reference to cotton tax is enjoined by law. This provision of this statute, to which only we refer, taken with the balance of the statute, is general in form but special and local in fact.

We have not concerned ourselves about the other classifications embraced in this chapter 211, but have only passed upon the question here raised and decided. The provision undertaking to set off in a class the counties having an assessed property value of twenty-five million dollars or more in a levee district paying a cotton tax for levee purposes is void and counter to our fundamental laws. As was said by the supreme court of Georgia in the case of Prothro v. Orr, 12 Ga. 36, at page 40:

“But when the question is whether we shall maintain a statute or the Constitution, which is the paramount law, and which we are constrained by our oath of office to support and defend, we cannot hesitate. We must maintain consciences void of offense, whatever we do or omit to do.”

It is earnestly insisted that the board of supervisors, in fixing the salaries of county prosecuting attorneys under this chapter, perforin only a ministerial act, and therefore cannot be heard here to raise the question of the constitu- • tionality of an act which they have refused to obey. Recently this court has several times passed upon statutes upon objections raised by a board of supervisors; the last case being State ex rel. Rush II. Knox, Attorney General, v. Board of Supervisors of Grenada County, 105 So. 541, in which case the statute was upheld, was declared to be constitutional, and the court passed this question unnoticed and proceeded to examine the statute with reference to the Constitution, although the main opinion held that the duty required of the board was ministerial. Likewise in State v. Wheatley, 113 Miss. 555, 74 So. 427, the court held that the board of supervisors could, in effect, conduct their defense of a mandamus proceeding by raising the constitutionality of the act.

We are of the opinion that the board of supervisors are the fiscal agents of the county in that they levy the county taxes, fix the rate, and 'appropriate the tax money to the objects provided for by law, and that, when a question is presented involving the tax affairs of the county and affecting each and every taxpayer as to whether a less or greater sum shall be paid from the county treasury and there be serious- question as to whether the law is void or not, this court will permit a board of supervisors bona fide to test the constitutionality of the statute in question.

Affirmed.