Miller v. Hay , 143 Miss. 471 ( 1926 )

^* Corpus Juris-Cyc. References: Constitutional Law, 12CJ, p. 833, n. 76; Power of legislature to interfere in litigation, see 6 R.C.L., p. 162; 2 R.C.L. Supp., p. 42; 4 R.C.L. Supp., p. 387. This suit was instituted by the state revenue agent to recover from the appellees a debt alleged to be due by them to the county of Washington. The board of supervisors of Washington County intervened by petition, alleging, in substance, that the suit was begun by the revenue agent after the appellees had arranged to borrow money with which to pay the debt due by them to the county; that the further prosecution of the suit by the revenue agent was inimical to the best interests of the county; and prayed "that this litigation be taken out of his hands and the control thereof be placed in the hands of the board of supervisors." This motion was sustained by the court below after hearing evidence in support thereof. An appeal was granted the complainant by a judge of this court after it had been denied by the court below. At the last term of this court a motion was made by the board of supervisors to dismiss the appeal on the ground that the order appealed from is interlocutory, and will not lie under section 17, chapter 151, Laws of 1924, which provides that an appeal from an interlocutory order or decree may be granted "in order to settle all the controlling principles involved in the cause, or in exceptional cases to avoid expense and delay." This motion was overruled, and the opinion then rendered will be found reported in 106 So. 818, page 467 supra.

After that motion was overruled, the legislature, which was then in session, enacted a statute (Laws 1926, chapter 290), which provides:

"Be it enacted by the legislature of the state of Mississippi, that the suit pending on the docket of the chancery court of Washington County, Mississippi, styled W.J. Miller, state revenue agent for the use and benefit of Washington County, Mississippi, against J.C. Hay and others, be and the same is hereby abated; but such suit may be revived by the board of supervisors of Washington County, Mississippi, in which event all contracts made by the state revenue agent in regard to such litigation shall be complied with and carried out by the said board of supervisors."

After the enactment of this statute, the board of supervisors filed another motion, which now comes on to be heard, praying — "that this appeal and all proceedings in this cause be dismissed for the reason that this suit has been abated by act of the legislature, being Senate Bill No. 343, a copy of which is attached hereto and made a part hereof."

We will assume for the sake of the argument that if this statute is valid, the appeal should be dismissed, and the cause remanded to the court below for action by it in accordance with the statute. The validity of the statute is challenged by the appellant on the ground that the legislature was without power under the Constitution to enact it. Among the sections of the Constitution which this contention brings under review are sections 1, 2, 33, and 144, which provide:

"Section 1. The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy to-wit, those which are legislative to one, those which are judicial to another, and those which are executive to another.

"Section 2. No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others," etc.

"Section 33. The legislative power of this state shall be vested in the legislature, which shall consist of a senate and a house of representatives."

"Section 144. The judicial power of the state shall be vested in a supreme court and such other courts as are provided for in this Constitution."

The separation of the legislative, executive, and judicial powers of the state and their allotment to separate and distinct departments is so fundamental under our system of government that it cannot be violated even by an ordinance of a constitutional convention. Lawson v. Jeffries, 47 Miss. 686, 12 Am. Rep. 342. A fortiori it cannot be violated by one of the departments to which one of the powers has been committed.

The power vested in the legislature by these sections of the Constitution, and the only power which it can exercise, is the legislative power, so that the question for decision is simply this, Is the power which the legislature sought to exercise by the enactment of the statute here in question legislative? Whether or not a suit in equity or an action at law shall abate, that is, whether all proceedings therein shall be suspended, unless and until the cause for the suspension be removed, as well as whether a suit or action that has been abated shall be revived, are judicial questions to be determined by the court in which the suit or action is pending, and are so universally held to be such that it would be supererogatory to cite authority therefor. The declaration in this statute that the suit therein referred to "be and the same is hereby abated," and the permission therein given the board of supervisors to revive it, are an attempt on the part of the legislature to interfere in a pending judicial controversy by the exercise of a power which the Constitution vests solely in the courts, and are therefore void.Lawson v. Jeffries, supra; Isom v. Miss. Cent. R.R. Co.,36 Miss. 300; 6 R.C.L. 162; 12 C.J. 833.

But it is said, in effect, by counsel for the board of supervisors that the object which the legislature sought to accomplish by the enactment of this statute was simply to withdraw from the revenue agent the power to further prosecute the suit therein referred to, and this the legislature under its power to define the duties of public officers had the right to do. This contention again brings under review sections 1, 2, and 33 of the Constitution, and also section 87 thereof, but we are not here called on to respond to it. If it be conceded that the legislature has the power to withdraw from the revenue agent the right to prosecute a particular suit, in which connection seeMiller, Revenue Agent v. Globe-Rutgers Fire Insurance Co.143 Miss. 489, 108 So. 180, it has not the right to accomplish that object by exercising a power which the Constitution vests solely in another department of the government, and the means by which to further prosecute a particular suit are here sought to be withdrawn from the revenue agent, under this construction of the statute, to-wit, the abatement of the suit and its revival in the name of another and are committed by the Constitution to the judicial, and not to the legislative, department of the government. Granted that an object sought to be accomplished by one of the departments of the government is within the power allotted to it, the means by which it seeks to accomplish that object must also be within the power allotted to it. In other words, a constitutional object must be accomplished by constitutional means.

The motion will be overruled.

Overruled.