State Ex Rel. Knox v. Speakes , 144 Miss. 125 ( 1926 )

I believe beyond a reasonable doubt that the law here under consideration, which I shall denominate "the County Court Bill," is unconstitutional and void, and that the lower court was correct in so holding, and shall briefly state my reasons for "the faith that is within me."

1. It will be observed that section 1 of chapter 131, Laws of 1926, creates an inferior court in counties having a permanent population exceeding thirty-five thousand inhabitants, or, not having such a population, having 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.

It is my deliberate judgment that this section sets up an inferior court in ten counties of the state (as we are advised by the briefs) according to the arbitrary standard of population as to cities according to the census of 1920, without regard to the population of any city in any county in any year subsequent to the year 1920 and prior to the enactment of the legislation. Standing alone, we have this section 1 creating this inferior court without regard to the desires of the people of the counties described; in other words, without an election, the law mandatorily applies to the counties described based upon a situation long since past, and would apply to a state of facts different from any other provision for creating a county court in any other county in the state subsequent to the year 1926; and I believe this statement to be true, viewing section 1 separately and viewing it together with all the other sections of the act, which I am admonished I must do.

I think this is true, notwithstanding the amendment by this court, striking from section 6 the words "by election provided for in this section," which the majority opinion has decided are meaningless and would render the subsequent part of section 6 unintelligible down to the proviso, thereby enabling the court to say that the law is general because then the Governor may automatically proclaim that other counties are subject to the provision of the law.

The same argument would apply to the fact that in the subsequent part of section 6 there is the provision that, upon the compliance with certain conditions, the people may hold an election and vote to come under the provisions of the act. Those counties which come under by election are not in my opinion in the same class as the counties described specifically in section 1 of the act; and, if the last two sentences were stricken from the act as well as the clause beginning with "and in 1930" was stricken from the act, there can be no question but that section 1, entirely separable and distinct from section 6, would be a local act, which excluded ten counties in the state from the right to have any voice in whether they chose to be subjected to this law or not. I do not think this provision can be gainsaid. Applying the rule announced in the main opinion, and judged by the rule announced in Toombs v. Board of Supervisors (Miss.), 106 So. 275, this act would be local, because some counties are expressly excluded from sharing in rights accorded other counties, and under this act can never occupy the same position with reference to this law. As amended by this court section 6 in part would read:

Clause 1:

"And in 1930 and every four years thereafter as counties become eligible to come under this act the Governor shall so determine and proclaim with like effect as those proclaimed in 1926."

Clause 2:

"On determining population the Governor shall not be confined to the federal census, but shall 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."

Clause 3:

"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 so to ascertain and proclaim, thereupon after the expiration of the then four-year period, the county court shall cease to exist in such county."

But it is argued that, with section 6 thus amended by striking the words quoted, we have a perfectly workable scheme by which section 1 is applied by the Governor to other counties than the ones specifically described in section 1. The fallacy of this argument is that the class of counties described become subject to the county court law under and by virtue of the federal census of 1920, while, as to the other counties which the Governor may declare within the provisions of the act, the Governor has the power to resort to any data and measure he desires to ascertain population. This is so clearly a distinct classification from the one described in section 1 or the other described in the proviso in section 6 as to make it seem to me beyond cavil that the correction only intensifies and accentuates another and different classification. If I am correct in my analysis and view of section 6 as amended by the majority opinion, then without question this is a local law. But I want to state distinctly that I do not think the court is authorized, in view of the provision that the Governor is directed to proclaim counties voting for this county court project as being subject to the terms of the act, renders the words which have been deleted meaningless, but, if applied to the proviso of section 6, makes a perfectly workable scheme as to counties becoming eligible after holding an election and voting in favor of the scheme, and it is the duty of the Governor to so proclaim, and I do not think it would render the last two sentences meaningless and unintelligible. Unquestionably the language would be rendered awkward and lacking but not unintelligible. Construed fairly, it means that, as to the status in 1930, the Governor is not confined to the federal census of 1920, and eliminates cities of five thousand or over.

Especially is this true, if without deletion the last sentence in the above quotation is construed as being modified by and related to, the next to the last sentence, connected up with the balance of section 6, it is workable and every word retained and fairly construed. In other words, read clause 2 without deletion as following clause 3.

In 1930, however, the court knows, and it is a matter of common knowledge, that under the federal law there is to be another census which is never completed and announced in time for the elections to be held (under the laws now existing), and of necessity the Governor would then be permitted, if he chose to have his own census made, or, without any census, perhaps on his own judgment of the population, declare a county in or out from under the provisions of the act.

Assuming, then, that the law is local, and the whole history of the legislation shows that it was a local law in its inception and design that the legislature materially amended and which has now been materially amended again by this court in my opinion, then in that event this law becomes unconstitutional, because it violates section 89 of the Constitution, which is as follows:

"There shall be appointed in each house of the legislature a standing committee on local and private legislation; the House committee to consist of seven representatives, and the Senate committee of five senators. No local or private bill shall be passed by either house until it shall have been referred to said committee thereof, and shall have been reported back with a recommendation in writing that it do pass, stating affirmatively the reasons therefor, and why the end to be accomplished should not be reached by a general law, or by a proceeding in court; or if the recommendation of the committee be that the bill do not pass, then it shall not pass the house to which it is so reported unless it be voted for by a majority of all the members elected thereto. If a bill is passed in conformity to the requirements hereof, other than such as are prohibited in the next section, the courts shall not, because of its local, special, or private nature, refuse to enforce it."

It will be noted that section 87 requires that the legislature shall not enact local laws in certain cases which are, or can be, provided for by general law, unless and until the legislature complies with section 89, which relieves from the prohibition of section 87, and provides that, if the constitutionally named committee on local and private legislation shall report back in writing that a bill do pass, stating affirmatively the reasons therefor, and why the end to be accomplished cannot be reached by general law or court proceeding, then in that event, notwithstanding section 87, the courts will not be permitted to strike down a law passed in conformity to the requirements of section 89, which but for section 89 would be declared local by the courts. See Yazoo Mississippi Valley Railroad Co. v.Southern Railway Co., 83 Miss. 746, 36 So. 74. Otherwise, under section 87, the law could not stand.

This law, being local, was not referred to a committee named and created by the constitution and given power over this class of legislation superior to that of the legislature itself. The journals show that this law, not being recommended by such committee, did not receive the majority vote required by section 89; not so recommended by the said committee, the bill was referred to the judiciary committee. There was never any recommendation of the committee that a general law could not be passed that would meet the end sought to be accomplished.

These statements are made by me after an examination of the journal and certificate of its contents made to me by the custodian thereof; and they show that section 89 was ignored. In other words, the legislature may evade the provisions of section 89 by declaring in a legislative sense that the law is general. In that way the court would be powerless to prevent wholesale violations of the fundamental law of the land. But I go further, and I say that the committee could not certify that a general law could not have been passed, for provision could have been made by the legislature for a constitutional circuit judge and a constitutional chancellor in each county of the state if such emergency or necessity arose.

But it may be urged that this conclusion of mine has been reached by recourse to the journals of the House and Senate, and to the fact (which is a fact) that the above-described violation of section 89 is a matter of proof on answer not raised here by demurrer. I concede that to be true; but such a revolutionary change of the judicial system of Mississippi, and the effort of the legislature to do that which the framers of the Constitution of 1890 refused to do, impels me to express my opinion here in order that elections may not be held, and then, when the court has been established in a later procedure, declare the act unconstitutional.

I think all the questions are so raised as to call upon this court to say whether or not the county court can function, especially in view of the fact that the lower court held the law void. It will also occur to lawyers that this court in the WrennCase, 63 Miss. 512, 56 Am. Rep. 825, held that the courts would not have recourse to the journals of the legislature in order to determine the form of the bill as passed. And subsequently, in the case of Hunt v. Wright, 70 Miss. 298, 11 So. 608, Judge CAMPBELL held that, as the rules of procedure ending with section 77 were to be enforced by the legislature, the courts would not supervise the legislature as to its conscience in its action with reference to these rules. It will be noted, however, that Judge CAMPBELL was careful to limit his decision to rules of procedure. I cite the following authorities which announce the contra doctrine: Gardner v. The Collector, 6 Wall. 499, 18 L.Ed. 890; Town of South Ottawa v. Perkins, 94 U.S. 261, 24 L.Ed. 154; Bradley v. West, 60 Mo. 33; and many others that might be added.

But, applying the rule announced by Judge CAMPBELL, this section 89 is a part of the Constitution denominated "local legislation," which by section 89 sets up a committee constitutionally charged with the duty of finding certain facts before the legislature could act upon a given case, and is as firmly fixed in its jurisdiction as the legislature itself, or the Supreme Court, and, when the legislature ignores this section entirely, it cannot be said that it is one where the courts may not refer to the journals to ascertain whether or not the conditions necessary to confer jurisdiction, if you please, upon the legislature, have been complied with.

The weight of authority, being in my judgment that recourse may be had in any proper case to determine if the legislature has authority, the Constitution has special force here, where we are not dealing with a rule of procedure but dealing with that clause of the Constitution which names a condition precedent to the legislature having the right to legislate upon a given subject, and in my judgment clearly limits the power of the legislature to the prescribed method.

I think this is fundamental, vital, and that, if the courts of the land may not protect from a violation of this section, then we have gone far backward in ascribing to the legislature more power than was accorded by the English people to the English Parliament in the days of long ago. I think it is for us to say that, if the journal shows that the Constitution has been violated with reference to local legislation, the courts will see that the mandates of the Constitution are complied with. If the legislature may with impunity violate this section, then it would be difficult to arraign any man for any violation of our fundamental law. The great power conferred upon it, the great confidence reposed in it, the weal and woe of the state being dependent upon it, the legislature, the Governor, the supreme court, all alike must obey the Constitution, or real mischief will ensue.

Believing that section 89 has been violated and that the material part of the law and the main intention of the legislature in creating the law would be thwarted and rendered nugatory I think there would be no good reason for not declaring the entire law unconstitutional, as not being workable, as having violated the section of the Constitution, supra.

2. This law undertakes to confer upon the county court blended jurisdiction of equity and common-law cases to the amount of one thousand dollars, creating the judge of the court both circuit judge and chancellor.

I think this is contrary to the spirit and letter of the Constitution as set out in those sections which define the jurisdiction of circuit and chancery courts. An effort by the legislature to blend the jurisdiction, if successful, will ultimate in the accomplishment by the legislature of that which was obviously defeated in the constitutional convention of 1890. I think that it was clearly not the intention of the constitutional convention of 1890 that the jurisdiction of these courts should be blended and merged into one court; and certainly section 147 does not upset all the other sections as to one judicial system. Instead of creating an inferior court, the judge of this court would be vested with far more power than is now lodged by the Constitution in either the circuit judge or chancellor. I think, when the chancery court was vested by the Constitution with "full" jurisdiction of all matters in equity, that no other court can be created which practically ousts it of jurisdiction entirely and exclusively of that subject, and, if an inferior court is attempted to be created, it must be created as an inferior court of equity. I think our Constitution was passed in the light of the opinion of Chief Justice SHARKEY in the case of Houston v. Royston, 7 How. 543, in which Judge SHARKEY said:

"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. There is one limitation which the legislature must observe. It cannot vest equity jurisdiction in a court of law. The jurisdictions are to be kept separate and distinct."

It will be noted that Judge SHARKEY was of the opinion that equity jurisdiction could not be conferred under the Constitutions then in existence, and it is a far cry to say that, because the Constitution makers of 1890 changed slightly the name of the court, the forceful declarations of Chief Justice SHARKEY were thus avoided (I refer to the use of the word "superior" with reference to the chancery court).

In the case of Adams v. Carter, 92 Miss. 579, 47 So. 409, 16 Ann. Cas. 76, Chief Justice WHITFIELD said:

"Mississippi is one of the five states of the Union which have always rigidly maintained, unwisely, as the writer thinks, the distinction between law and equity, and an absolutely separate chancery system, administered by a chancery court according to the long-settled principles of equity jurisprudence and practice."

But it may be argued that section 147 of the Constitution prevents this court from reversing either the circuit or chancery court because of an erroneous decision as to jurisdiction. My view is that that section simply cuts off the right of appeal on that question, and cannot by any stretch of the imagination be held to vest in the legislature the power to undo and nullify all the sections of the Constitution marking out and defining the jurisdictions of the two courts.

Referring to the journal of Mississippi Constitutional Convention of 1890, I find that at pages 370 and 371 Mr. BLAIR offered the following, clearly conferring equity jurisdiction on the circuit courts:

"The distinction between law and equity and actions at law, and suits in equity and the forms of all actions and suits heretofore existing in this state, are hereby abolished, and there shall be in this state hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action; and all courts which are vested with civil jurisdiction shall administer both law and equity in the same suit and for either party, and when the rules of law and equity in any case shall differ, the rules of equity shall prevail. The judicial power of the state shall be vested in a supreme court, circuit courts, and such other courts as the legislature may hereafter establish," — which was not adopted. Again in same journal, at page 422 et seq., Mr. BURKETT offered a substitute, giving the legislature the power to confer equity jurisdiction on the law court and abolishing the chancery court, which was laid on the table (page 425).

So the framers of our Constitution distinctly declined to do what is sought to be done by the legislature here, and in my judgment affirmatively declined to give the legislature the power to confer equity jurisdiction on a law court.

As analogous to the case here, section 170 of our Constitution provides that the board of supervisors shall have "fulljurisdiction over roads, ferries, and bridges." In the case ofSupervisors v. Arrighi, 54 Miss. 668, Mr. Justice CHALMERS, as the organ of the court, said:

"Jurisdiction over roads, ferries, and bridges is by the Constitution conferred upon the boards of supervisors, just as equity jurisdiction is conferred upon the courts of chancery and appellate jurisdiction upon this court. It is not within the power of the legislature to take away these several jurisdictions, or bestow them upon other tribunals."

In the case of Seal v. Donnelly, 60 Miss. 658, the same judge speaking for the court said, with reference to boards of supervisors and section 170:

"The right to deal with these subjects cannot be taken from them and confided to any other magistracy."

In the case of Board of Supervisors of Holmes County v.Black Creek Drainage District, 99 Miss. 739, 55 So. 963, with reference to section 170 and the meaning of the words "full jurisdiction," Mr. Justice ANDERSON said:

"In other words, to the extent provided by the statute" (speaking of drainage districts) "the jurisdiction of the public roads, in these drainage districts, is taken away from the board of supervisors and conferred on the drainage commissioners. Inour judgment, it would be hard to conceive of a statute moreclearly violative of the clause in question of section 170 ofthe Constitution."

This act here under review confers jurisdiction of all equity matters where the amount involved is less than one thousand dollars, and vests it in the county court without any provision for supervision or without any method by which the court having constitutional jurisdiction of equity ever has anything whatever to do with reference to this class of cases of which the county court essays jurisdiction.

But even more serious than the blending of the courts is the direct, positive action of the legislature in this act in vesting in the circuit court the power to remove any cause in equity for good cause to its court (the circuit court), and there try the cause, when forsooth it concluded that the county court had not promptly and legally proceeded with the case. There is not even the gossamer veil of disguise over the nude form of this evasion of the Constitution conferring "full" jurisdiction in equity matters in the chancery court. It is a positive, direct, straightout placing of jurisdiction of an equity matter in the circuit court. Then, too, upon appeal, the circuit court may, if it sees proper, review the county court's trial of the case in equity and try this case de novo, and sit as a chancellor of a chancery court.

I do not believe there is any authority in any decision in our Mississippi jurisprudence that warrants or approves of this effort of the legislature to do what the Constitutional Convention of 1890 affirmatively refused to do when Mr. Burkett undertook to blend the courts, circuit and chancery, into one. The authorities I have cited and the sections of the Constitution speak so emphatically as seem not to call for further elaboration. All these cases of which the chancery court has exclusive jurisdiction are settled without ever having once entered the doors of an equity court. I think this effort to confer jurisdiction of equity cases upon the lower court is unconstitutional, and that now we cannot say which of the two, the equity or common-law jurisdiction, the legislature intended to stand if the other should fall, and for that reason the entire act is unconstitutional and void.

I think the conferring of jurisdiction upon the circuit judge to sit as a chancellor and try an equity case de novo is utterly repugnant to the letter and spirit of the several sections of the Constitution creating and defining the jurisdictions of the circuit and chancery courts, and that for this reason the statute is unconstitutional and void, and that we cannot now say whether the legislature would have retained the equity jurisdiction or the common-law jurisdiction, and the volume of litigation would certainly have influenced the legislature in the passage of the act, and we do not believe that the legislature could have intended for this act to stand when so much of the jurisdiction conferred by the legislature should be declared to be void.

We think this jurisdiction of equity and law conferred upon the county court and upon the circuit court renders the provisions of this act interdependent, and that the constitutional cannot be segregated from the unconstitutional. Ballard v. Oil Co.,81 Miss. 573, 34 So. 554 (62 L.R.A. 407, 95 Am. St. Rep. 476), wherein this court said:

"Severance of a statute takes place only where both sets of provisions, constitutional and unconstitutional, appear upon the face of the statute itself, and the court separates, if the provisions are not interdependent, the constitutional from the unconstitutional, and strikes from the statute the unconstitutional provisions, leaving the constitutional provisions in the statute."

I am therefore of the opinion:

(1) That on the face of this law it is local and not general, therefore violates section 87, unless the local law was passed by the legislature in conformity to section 89, and that, under section 89, the courts by clear implication are given the authority to ascertain by the journals of the legislature, whether or not section 89 has been complied with substantially, and thus, having recourse to section 89 and ascertained that said section was wholly ignored, I find that section 87 is violated because in my opinion a general law could have been passed affording full, complete, and adequate relief, without revolutionary disturbance of our present splendid judicial system as planned by the Constitution of 1890, and this construction in no wise conflicts with Hunt v. Wright, supra;

(2) Because appellate and supervisory jurisdiction is conferred upon the circuit judge to try de novo, equity cases, which but for this law, it would be his duty to transfer to the chancery court; and

(3) Because jurisdiction of equity cases is vested in the law court, the lower court, and thus violates all the sections of the Constitution defining the separate jurisdictions of the chancery and circuit courts.