BOARD OF SUP'RS, PRENTISS CO. v. McREE

J.S. Finch, of Booneville, for appellant.

The court erred in overruling the demurrer of defendant. The court erred in holding that section 15, chapter 255, Laws of 1936 was mandatory, and not discretionary.

The demurrer properly raises the question as to whether or not the law under which this suit is brought is mandatory or discretionary.

Is the payment of the obligations listed in this section discretionary or mandatory? By the very wording of this section it is manifest that it was the intention of the Legislature merely to provide a means and method by which such indebtednesses as the certificates here sued on might be liquidated, and we insist that no wording in this section implies that the board of supervisors shall pay the various obligations listed in this section.

Words employed in a statute are to be taken in their ordinary and obvious signification unless it is clearly necessary to enlarge or modify in order to effect the plain intent of the Legislature.

Peeler v. Peeler, 8 So. 392, 68 Miss. 141; Town of Union v. Zeller, 118 So. 294, 151 Miss. 467.

The court, in construing a statute, will assume that the Legislature employed the words of the statute in their usual and most common sense.

State v. J.J. Newman Lbr. Co., 60 So. 215, 103 Miss. 262.

The true sense in which words are used in a statute is to be ascertained generally by taking them in their ordinary and popular signification.

Green v. Weller, 32 Miss. 650; Chattanooga Sewer Pipe Works v. Dumler, 120 So. 451, 153 Miss. 276.

The above section, if mandatory as contended by appellee, is obviously a taxing statute. It is a well established rule, without exception in this state, that taxing statutes must be strictly construed and all doubts, if any, must be resolved in favor of the taxpayers.

25 R.C.L. 1092; Gully v. Jackson International Co., 145 So. 905, 165 Miss. 103; Frazier v. Stone, 156 So. 596, 171 Miss. 56; Town of Utica v. State, 148 So. 635, 166 Miss. 565.

The interpretation or construction of the meaning of the words employed in the foregoing statute in no way requires a construction to be placed upon the words "may" or "shall" in order to determine the intent of the Legislature. The first paragraph of section 15, chapter 255, Laws of Mississippi of 1936, does not provide that the board of supervisors may borrow money to pay off outstanding certificates, but to the contrary, merely provides that they are authorized and empowered to borrow money in a sufficient amount to pay outstanding claims, such as the ones here in question. While the alternate remedy, in the event the board cannot borrow the money, is found in paragraph 3 of said section — that is, to levy a tax with which to liquidate outstanding claims. Looking to the section as a whole, which we must do, to determine the intent of the Legislature, it is manifest that the paying of these claims is left in the discretion of the board of supervisors.

The above section is strikingly different from section 4627, Code of 1906, which was construed by this court in the case of Hebron Bank v. Lawrence County, 69 So. 209.

We submit that inasmuch as there is no language used in section 15, chapter 255, Laws of 1936, which would require an interpretation or construction of the words may or shall to determine the true intent of the Legislature, the case of the Town of Carrollton v. Town of North Carrollton, 69 So. 179, is not in point here.

There were a number of cases cited in the opinion in the case of the Town of Carrollton v. Town of North Carrollton, including 26 Cyc., page 1591, and footnotes thereunder; 5 Words and Phrases, 4421-22; McRaven v. McGuire, 9 S. M. 34; People ex rel. Conway v. Supervisors, 68 N.Y. 119; People ex rel. Brokaw v. Commissioners of Highway, 6 L.R.A. 161, and Rock Island Co. v. U.S., 71 U.S. 435, 18 L.Ed. 419, which was decided by the Supreme Court of the United States. It will be observed, however, that the case of Rock Island Co. v. U.S. involved the right of a judgment creditor who had sued and obtained a judgment on an outstanding bond to force a levy of a tax sufficient to pay the judgment.

It will be noted that the case of the Town of Carrollton v. Town of North Carrollton involved the construction or interpretation of the words may or shall, and section 15, chapter 255, Laws of 1936, does not involve the interpretation or construction of said words.

The court erred in sustaining the demurrer to the special plea of the Statute of Limitations. The pay certificates herein used on, as shown by exhibits, were all issued prior to June 15, 1932, and no action was filed to enforce collection on these certificates until September 7, 1938, more than six years after the end of the 1931-32 scholastic year, which was more than six years after the certificates here involved were due. This action is therefore barred by the Statute of Limitations.

Trowbridge v. Schmidt, 34 So. 84, 83 Miss. 475.

The court erred in rendering judgment, directing a writ of mandamus ordering appellant to borrow money or levy a tax and pay the teachers and transportation drivers pay certificates here sued on.

The judgment of the court was in effect a holding that the certificates held by plaintiff were judgments against the county and were not subject to the six-year Statute of Limitations; that the certificates, when issued by the County Superintendent of Education, were equivalent to outstanding warrants of the county; that although the claims were held from 1932 to September, 1938, without any action being taken thereon to enforce collection, the board of supervisors, under chapter 255 of the Laws of 1936, were compelled to provide a means and pay same, even though no warrant was ever issued by the chancery clerk evidencing the indebtedness to be paid. We insist that the position of the court is error; that there could be no default in the performance of a duty by the board of supervisors under plaintiff's petition when no warrant was issued, and that said petition shows no cause of action. We, therefore, submit that the court erred in rendering judgment directing the writ against defendant. E.C. Sharp, of Booneville, for appellee.

While several grounds of demurrer were interposed there are really but two questions involved in this litigation. 1st, Are the provisions of chapter 255 Laws 1936, especially section 15 of the act, discretionary or mandatory? 2nd, If mandatory, are the certificates upon which this proceedings is founded, barred by the Statute of Limitations?

In discussing the first proposition it is unnecessary to discuss any of the provisions of said chapter, except section 15, or in a very general way. The act was an effort on the part of the Legislature to revise and make more efficient and workable the school system of the state and to put it on a sound, financial cash basis, and to carry out the general policy of the state to pay its just obligations.

The purpose and intent of the Legislature is apparent throughout and in construing any statute the first duty of the court is to ascertain the purpose and intent of the Legislature.

2 Lewis Sutherland Statutory Construction 2d 693.

It is true that in section 15 of the act in question, the authority conferred upon the board of supervisors is permissive in form, but it is the contention of the appellee that it is mandatory in effect and that this court has so held.

This court in the case of Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209, said: "That while the language of section 4627, Code 1906, is permissive in form it is peremptory in effect."

And in the case of Town of Carrollton v. Town of North Carrollton, 109 Miss. 494, 69 So. 179, it said: "The authorities are uniform in construing the word `may' as imperative or mandatory in statutes of this character. In Cyc., Vol. 26, page 1591, it is stated that the word `may' has been properly construed as employed in an imperative or mandatory sense when the Legislature imposes a positive duty and not a discretion, or where a public duty is involved, where a right is given or a duty imposed, where the public interest or where a matter of public policy and not merely a private right is involved, . . . or where the statute imposes a duty or confers a power on a public officer for public purposes."

5 Words and Phrases, page 4421; McRaven v. McGuire, 9 S. M. 34; Rock Island Co. v. U.S., 71 U.S. 435, 18 L.Ed. 419; Mayor v. City of Galena, 18 L.Ed. 560.

In 25 R.C.L. 770, we find the general rule announced as follows: "Where the provisions of a statute relating to public officers, tribunals or bodies are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. It is not necessary that a statute should in direct terms declare the duty of an officer in order to make it an imperative one. The duty may be deduced from the general provisions and scope of the statute, regard being had to the evil intended to be remedied and the object sought to be accomplished. Hence, permissive words used in statutes conferring power or authority upon public officers or bodies will be held to be mandatory where the act authorized to be done concerns the public interest or the rights of individuals. The word `may' in statutes conferring powers upon public officers or bodies will be held to be mandatory where the act authorized to be done concerns the public interest or the rights of individuals. The word `may' in statutes conferring powers upon public officers or official boards or tribunals may be so construed as to be the equivalent of `shall' or `must' where the public or individuals have an interest in the exercise of the powers conferred."

2 Sutherland's Statutory Construction, page 1149.

Section 15 of chapter 255, Laws 1936, being substantially the same as section 4627, Code 1906, it is the duty of the court to adopt the same construction upon section 15, as was placed upon section 4627, Code 1906, by this court in the case of Hebron Bank v. Lawrence County, 109 Miss. 397, 69 So. 209.

The Legislature will be presumed to know the effect which such statutes originally held, and by re-enactment to intend that they shall have the same effect. It is not necessary that the statute should be re-enacted in identical words in order that the rule may apply. It is sufficient if it is re-enacted in substantially the same words.

2 Sutherland's Statutory Construction, pages 780, 929-930; Hamner v. Lbr. Co., 100 Miss. 349, 56 So. 466.

The second ground of demurrer was not stressed in the court below and we presume that it will not be in this court, but we are unable to see any merit in this contention. 1st, an ordinary action at law could not have been brought or maintained upon these pay certificates. We think this settled by the case of Hebron Bank v. Lawrence, 109 Miss. 397, 69 So. 209, in which the court said: "As we understand the record, it seems to be the contention of appellee that inasmuch as the petition shows that the funds provided by law for the payment of these claims had been illegally used by the officers in charge of same, the remedy of appellant is plain and adequate against the officers and the sureties on their bond, and for this reason, if for no other, the lower court properly sustained the demurrer. We do not think this contention is sound. Appellant has a claim against the county, and the county is not released from its obligation to pay its indebtedness because the administrative officers of the county violated the law.

Section 4566 authorized the issuance of warrants by the clerk of the board of supervisors upon the pay certificate of the superintendent of education, and without any order from the board of supervisors. The board of supervisors have nothing to do with these certificates, or warrants, and are never called on to deal with same until they become "outstanding" — "unpaid claims."

In the present case it is shown by the record that the county superintendent's bond had been exhausted and that the only possible recourse at law appellee could have had was by suit against the members of the board of supervisors then in office for failure to fix the superintendent's bond sufficiently high to protect these certificates, or for failure to require a new bond. To hold that appellee's only recourse was based upon the above grounds would be in direct conflict with the holding of the court in Choctaw County v. Tennison, 134 So. 900. No warrants were ever issued upon these pay certificates although section 6614, Code of 1930, provides "that the warrants for teachers salaries shall be issued directly upon the certificate of the county superintendent, without any action thereon by the board of supervisors." But we must construe this section along with section 5979, Code 1930, which provides that: "No warrant shall be issued or indebtedness incurred by any county or municipality, unless there be sufficient money in the particular fund from which the allowance is or must be made, to pay such warrant or indebtedness."

It may be contended that the certificates should not have been issued in the face of the above section and section 6732, but inasmuch as all statutes upon the same subject must be construed together, we must reconcile the two above mentioned sections with section 6610, Code 1930, which takes into consideration the fact that county superintendents cannot possibly know what funds will be available during the years in which the Legislature meets until after the appropriation is made, and 6610 provides that it is not required of superintendents to enter into contracts until after the state appropriation has been made, yet he must have taught the four months constitutional term, and it will be noted that none, or but few, of the certificates involved herein were issued for services rendered after the appropriation had been made for 1932.

The failure of a county superintendent to comply with its statute (section 4497, Code of 1906) does not deprive a school teacher of the rights to compensation for teaching a public school.

Pearsons v. Robertson, 119 Miss. 384, 80 So. 786; Lander v. Tolbert, 121 Miss. 592, 83 So. 748.

The proceeding instituted in this case is the proper proceeding.

Taylor v. Chickasaw County, 70 Miss. 87, 12 So. 210.

If it be contended that these certificates are not valid obligations because issued contrary to the provisions of section 6732, Code 1930, the answer is that chapter 255, Laws 1916, is a complete scheme and as was said in Ascher Baxter v. Moyse Co., 101 Miss. 36, quoting from Woods v. U.S., 16 Peters, 342, 10 L.Ed. 987: "That it has not been expressly or by direct terms repealed is admitted; and the question resolves itself into the more narrow inquiry whether it has been repealed by necessary implication. We say by necessary implication, for it is not sufficient to establish that subsequent laws cover some or even all, of the cases provided for by it; for they may be merely affirmative, or cumulative or auxiliary. But there must be a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed by implication only, pro tanto, to the extent of the repugnancy."

Where the literal enforcement of a statute would result in great inconvenience and cause great injustice, and lead to consequences which are absurd and which the Legislature could not have contemplated, the courts are bound to presume that such consequences were not intended, and adopt a construction which will promote the ends of justice and avoid the absurdity.

2 Lewis Sutherland Statutory Construction 2d, pages 913-914.

Should the court hold that the teachers pay certificates are void under the above mentioned section, such could not be the case as to the transportation certificates, as this court has held in the case of Trantham v. Russell, 171 Miss. 481, 158 So. 143, that this section has no application to transportation certificates.

It is evident that by the enactment of section 15 of chapter 255, Laws of 1936, that it was the intention of the Legislature to carry out the long continued policy of the state to pay and not repudiate any of its just obligations and by the terms of section 15, the board was authorized to pay all just outstanding obligations, regardless of whether they were evidenced by pay certificates or not.

Are these certificates barred by the Statute of Limitations? We think not, as said in Taylor v. Board of Supervisors, 70 Miss. 87, 12 So. 210: "Although the claims sought to be enforced by the petition are very old ones, we are unable to perceive any valid reason why they should not now be paid."

It was long ago decided that no Statute of Limitations applied to judgments of the counties authorities allowing claims against the counties, for the reason that the party entitled to payment cannot coerce satisfaction by suing out execution.

Carroll v. Tishomingo County, 28 Miss. 38; Klein v. Supervisors, 54 Miss. 254; Pearman v. Robertson, 119 Miss. 384, 80 So. 780; Anderson v. Board of Supervisors, 75 Miss. 873; Erskin v. Nelson County, 27 L.R.A. 696.

As to the plea of the Statute of Limitations we desire to call the court's attention to the following authorities in addition to those heretofore cited, supporting our contentions that this plea is not applicable to the case at bar and should not be sustained.

17 R.C.L. 751; Barnes v. Turner, 2 Ann. Cas. 391, 14 Okla. 284; Greer County v. Clark, 12 Okla. 197; Robertson v. Blane County, 61 U.S. App. 242, 32 C.C.A. 512, 90 Fed. Rep. 63, 47 L.R.A. 459; Hubbell v. South Hutchinson, 64 Kan. 645, 68 Pac. Rep. 52; School Dist. v. Wabash First Nat. Bank, 63 Kan. 668, 66 Pac. Rep. 630; 65 Cal. 603, 4 Pac. Rep. 646; Gasquet v. City Schools, 45 La. Ann. 342; Lincoln County v. Lunning, 133 U.S. 529; Howell v. Hogins, 37 Ark. 114.

Argued orally by E.C. Sharp, for appellee.