Quitman County v. Turner

DISSENTING OPINION. Chapter 131, Laws 1926, which created our county courts, was repealed by the revision of that statute contained in chapter 17, Code 1930, and though the controlling opinion herein states that it was not repealed, the legislature, whose will should here control, said the contrary in section 3 of that Code, which provides that, "From and after the said first day of November, nineteen hundred and thirty, all acts and parts of acts, the subjects whereof are revised, consolidated and re-enacted in this Code, or repugnant to the provisions contained therein, shall be, and the same are hereby, repealed, subject, however, to any express exceptions or regulations relating thereto which may be contained in this Code." This is now section 14, Code of 1942, which section simply enacted a rule of the common law. Mobile Ohio R. Co. v. Weiner, 49 Miss. 725; Myers v. Marshall County,55 Miss. 344; Board of Supervisors of Clay County v. Chickasaw County, Supervisors, 64 Miss. 534, 1 So. 753; State Revenue Agent v. Hill, 70 Miss. 106, 11 So. 789; City of Vicksburg v. Sun Mutual Ins. Co., 72 Miss. 67, 16 So. 257; State v. Jenkins,73 Miss. 523, 19 So. 206; Mississippi B. L. Ass'n v. McElveen,100 Miss. 16, 56 So. 187; Ascher Baxter v. Edw. Moyse Co.,101 Miss. 36, 57 So. 299; State v. Wyoming Mfg. Co., 138 Miss. 249,103 So. 11; Rackley v. State, 166 Miss. 287, 146 So. 459; Hollandale Ice Co. v. Board of Supervisors, 171 Miss. 515,157 So. 689; Russell v. State, 176 Miss. 853, 169 So. 654.

If section 693 of the Code, which superseded section 1 of chapter 131, Laws 1926, and section 706 of that Code, which superseded the first nine lines of section 6 of chapter 131, Laws of 1926, are plain and unambiguous, as they manifestly are — and as the controlling opinion admits — they should be enforced as written. For, "No principle is more firmly established, or rests on more secure foundations, than the rule which declares when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the legislature shall be intended to mean what they have plainly expressed, and, consequently, no room is left for construction." Koch Dryfus v. Bridges, 45 Miss. 247, at page 259.

If further authority be needed for this elementary rule, see Yerger v. State, 91 Miss. 802, 45 So. 849; Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; Eagle Lbr. Supply Co. v. Robertson, 161 Miss. 17, 135 So. 499; McCary v. State, 187 Miss. 78,192 So. 442; Wilson v. Y. M.V.R. Co., 192 Miss. 424,6 So.2d 313.

Section 693, Code 1930, provides, which chapter 131, L. 1926, did not, that "In and for each [of the counties] of the state wherein a county court is now in existence . . . there shall be an inferior court to be known as the county court." The county court of Quitman county was then in existence, and therefore continued to exist thereafter. The salary of the judges of the county courts, referred to in section 693, was fixed by section 697 of the Code at $3,600 per year. But according to the controlling opinion, these two plain and unambiguous sections do not express the legislative will as to the salary of the judges of county courts in counties of the class of Quitman county, but that the legislative will relative thereto is expressed in section 706 of the Code. That section is as follows: "In any county not brought within the provisions of this chapter by the terms of the first section thereof, and in which a county court has not been established," etc., a county court may thereafter be established by an election called by the board of supervisors; the salaries of the judges of the courts to be thereafter established, to be graded according to the assessed valuation for taxation of property in the county.

Language could not be plainer or more unambiguous. But according to the controlling opinion, line 15 of section 706 should read as if the words "or have" appear between the words "may" and "come" thereof, thereby amending the statute and exercising a power which, under our Constitution, is vested solely in the legislature. Such an amendment of the statute by construction, according to the controlling opinion, is necessary, not because of any ambiguity therein, but because without the amendment there would be an inconsistency and injustice in the statute. Its inconsistency and injustice is said to appear from the fact that a majority of the court can see no good reason for making any difference in the salary of judges of courts then in existence, and of courts thereafter to be brought into existence, in counties of the same class. The legislature had the right to do just that, if it desired, with which the courts, except within narrow limits, not here present, have no right to interfere. It may be that the legislature did not thoroughly understand what it was doing when it enacted these sections of the Code, and that if it had it would have amended the statute as the controlling opinion has now done. But if that be true, as to which neither I nor my associates have any way of determining, that fact would not justify what the controlling opinion has here done. It is said that if the statute means what it says, and fixes the salary of judges of courts then in existence different from the salary of the judges of courts thereafter to be established, it would violate paragraph (o) of section 90 of the State's Constitution. I shall not pause to discuss this, except to point out that these Code sections are state-wide laws, dealing (1) with courts then in existence, and (2) with courts thereafter to be brought into existence, and to say how such a state-wide law can be declared to be local and private is beyond my comprehension. A casual examination of Millwood v. State,190 Miss. 750, 756, 1 So.2d 582, will disclose that it does not run counter to anything I have herein said.

The judgment of the court below should be affirmed.

I am requested by Judge ANDERSON to say that he concurs in this opinion.