KITCHENS v. UNION COUNTY

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 35877.

Judges

L.A. Smith, Sr., J., delivered the opinion of the court.

See more information ...

Smart Summary

Please sign up to generate summary.

KITCHENS v. UNION COUNTY.

Thos. E. Pegram, of Ripley, for appellant.

A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from which he fled be delivered up to be removed to the state having jurisdiction of the crime.

Sec. 2, Art. 4, Federal Constitution.

The Governor shall see that the laws are faithfully executed. Constitution of 1890, Sec. 123.

The Governor may appoint an agent to demand of the executive authority of any other state or territory any fugitive from justice or other person charged with treason, felony, or other crime in this state. Such agent, if necessary, may employ a sufficient guard or escort to bring such criminal to this state, and the Governor may contract other expenses absolutely required in performing the duties of the agency.

Code of 1942, Sec. 3984.

Any party, acting under a requisition of the Governor, who brings back to this state and delivers to the sheriff of the county where the offense is alleged to have been committed, a person charged with felony, shall receive to be paid out of the county treasury on the order of the circuit court and the board of supervisors, twenty cents a mile for the distance necessarily traveled in coming from the place of arrest to the place of delivery; but the same shall not be paid to any party who has received or claims a reward from the state, county or person.

Code of 1942, Sec. 3964.

The lower court decided against the appellant on the ground that the county was not liable because Section 3965 of the Code of 1942 had not been complied with, that is, that according to that section the district attorney had not petitioned the judge and the judge had not entered an order authorizing the trip. The Court's attention is directed to the fact that Sections 3984 and 3964 have been the law in Mississippi since, at least, the adoption of the Constitution of 1880, or at least sixty years. Section 3965 became the law in 1932, Chapter 139 of the Laws of 1932. This last named section makes no pretense of amending, changing, limiting or adding anything to either Section 3984 or 3964. Indeed, if it did attempt to limit the power of the Governor to issue requisitions for extradition by leaving it to the discretion of a district attorney as to whether an effective requisition could be issued (and the issuing of a requisition without compensation to the agent of the Governor would be a useless and futile act) it would violate both the Federal and the State Constitutions.

The effect of the holding of the lower court is the same as if instead of enacting Section 3965 of the Code of 1942, the legislature had amended Section 3964 by adding substantially these words: "provided, however, that no compensation shall be allowed to the agent of the Governor making said trip to another state unless the District Attorney shall petition the Circuit Judge or circuit court to enter an order allowing said compensation." A reading of said Section 3965 at once discloses that the legislative act was prompted to meet a situation where the alleged fugitive might deny his identity or otherwise resist, by habeas corpus, the extradition. Hence, the language, "for the purpose of identifying or assisting." Certainly, the agent of the Governor who is to go for and return the fugitive would not be an assistant in that matter. Too, it is apparent that a district attorney who is to develop and present the state's proof should pass on the matter as to whether the proof of identification is necessary in another state or in this state on a trial on indictment; and if so, whether the expense in sending witnesses to another state is justified.

This question naturally arises, can a district attorney by reason of inefficiency, disinclination or refusal to act for any reason absolutely nullify, hamper or hamstring the act or power of the Governor in the performance of his duty in the matter of obtaining extradition of fugitives who are alleged to have committed crime in this state when such cases are properly presented to the Governor? If there were no provision to compensate an agent of the Governor acting under requisition papers, common every day observation teaches that no such person would at his own expense go into another state to return the fugitive; and naturally the issuing of a requisition and placing it in the hands of such agent would be a futile and ineffective act for it would not get the desired results. If, as the lower court ruled, it was necessary as a prerequisite to the appellant's being compensated for making the trip in question that the district attorney file a petition (as outlined in said Section 3965) with the circuit judge; and the filing of this petition was in the discretion of the district attorney, then the returning of fugitives is left to the discretion or will of the district attorney and the circuit judge; and not to the Governor as contemplated by the constitutions and by the statutes.

See State v. McPhail, 182 Miss. 360, 371, 372, 180 So. 387.

The appellant urges that there is no ambiguity in either of the three statutes, supra, when considered separately; nor is there any ambiguity or conflict when the three sections of the Code are considered as relating each to the other. The general rules of statutory construction and interpretation are applicable to statutes creating administrative agencies. The prime object in the construction of such statutes is to ascertain and to carry out the intention of the legislature.

42 Am. Jur. 300.

In attempting to answer the arguments of the two briefs on file, the appellant is put to a disadvantage for the reason that the brief of Mr. Carlton, one of the attorneys for the appellee, takes the position that the appellant had no standing in the lower court for the reason that the board of supervisors was not by process made a party to the proceeding there; and consequently this appeal should be dismissed. The attorney general apparently admits that no process was necessary on the board of supervisors, but says that the case should be dismissed because the action of the circuit court was an administrative act and that appeals do not lie from administrative acts. Appellant admits that there was no process issued or served on the board of supervisors sufficient to bring that body into circuit court; but says that such is not necessary under the case of Ex parte Webb, 96 Miss. 8, 49 So. 567; and under that case it is not an administrative act.

We submit that there is no serious question as to the allowance of the $485 which is the aggregate of the mileage at 20 cents a mile. We further urge that under said Section 3984 the agent of the Governor reasonably requires an escort in returning more than one fugitive, and is entitled to be reimbursed for that expense in addition to the 20 cents a mile; and the court's order denying the claim in toto denied this additional just compensation.

Biennial Report of the Attorney General, 1937-39, p. 49.

Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.

Petitioner did not comply with the conditions of Sections 3922, 3964 and 3965, Code of 1942.

Code of 1942, Secs. 3922, 3964, 3965.

See also Report of the Attorney General, 1939-1941, p. 81.

The proceeding outlined in Sections 3964 and 3965 is an administrative proceeding and not a judicial proceeding.

Jackson County v. Neville, 131 Miss. 599, 95 So. 626; Pearl River County v. Lacey Lumber Co., 124 Miss. 85, 86 So. 755; Selig v. Price, 167 Miss. 612, 142 So. 504; National Life Accident Ins. Co. v. State ex rel. Attorney General, 159 Miss. 513, 132 So. 549.

It is clear from these authorities that the proceeding for allowance of the claim here involved under Sections 3964 and 3965 is an administrative scheme for paying out public funds and is not a judicial proceeding and, consequently, the appeal should be dismissed because the appeal will not lie to the Supreme Court from an administrative order.

Illinois Cent. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743, 49 L.R.A. (N.S.) 565; Board of Sup'rs of De Soto County v. Pidgeon-Thomas Iron Co., 114 Miss. 274, 75 So. 117; Moreau v. Grandich, 114 Miss. 560, 75 So. 434.

The Supreme Court will pass on its own motion dismissing an appeal where the court has no jurisdiction.

Drummond v. State, 184 Miss. 738, 185 So. 207.

The matter is one of great importance and I ask the Court to carefully consider the decisions and the statutes in connection with this question and to point out just what, in the light of all of the statutes and decisions, is the proper law and practice in such cases.

Compare Ex parte Webb, 96 Miss. 8, 49 So. 567; Tate County v. Moore, 87 Miss. 245, 39 So. 781; Warren County v. Lanier, 87 Miss. 606, 40 So. 429; Illinois Cent. R. Co. v. Dodd, supra; Board of Sup'rs of DeSoto County v. Pidgeon-Thomas Iron Co., supra; Code of 1942, Secs. 3922, 3964, 3965.

L.K. Carlton, of New Albany, for appellee, Union County.

This appeal should be dismissed for want of proper parties and for want of service of process on proper parties defendant. The record in the cause on appeal shows that no process was ever issued nor served upon Union County in the manner provided by law, and the brief of appellant's counsel admits that such process was never issued nor served. The defendant county neither by its board of supervisors nor by its attorney appeared nor took part in the trial of this cause. It appears from the record that a duplicate petition of the petition filed in this cause in the circuit court was also filed with the board of supervisors, and it will be noted that said petition is addressed to both the circuit court and to the board of supervisors of Union County, but this circumstance did not put Union County on notice of the pendency of the cause in the circuit court. It was necessary under the statute that the claimant first secure the approval of his claim by the circuit court, and then present such approved claim to the board of supervisors for allowance and issuance of a warrant. Code of 1942, Section 3964. Such allowance by the circuit court is precedent to the allowance by the board of supervisors. The petition or claim filed by claimant with the board of supervisors contained an itemized account, but the petition filed in the circuit court contained no such account. The record on appeal when first prepared contained no itemized account, but at request of appellant's attorney a copy of the claim filed with the board of supervisors was inserted in the record and certified as a part of the record on appeal. Defendant on appeal, not having been brought into the lower court, is entitled to raise this jurisdictional question in the Supreme Court.

Appellee does not deny the right or the duty of the Governor to issue a requisition to bring back to the state a fugitive from justice. Section 3984. But appellee does contend that the legislature may impose such conditions regarding payment, as may be desired. Appellant quotes Section 3964 of Code of 1942, and contends that Section 3965 has no applicability and that to allow its provisions would nullify the efficacy of the issuance of requisitions by the Governor. Section 3964, itself, imposes restraints and limitations upon the amount of expense to be incurred and the manner of payment. The section provides that the expense account shall be paid on the order of the circuit court and of the board of supervisors. It also provides that claimant cannot be paid more than 20 cents per mile for the distance travelled from place of arrest to place of delivery. If the legislature may impose these restrictions and limitations, in the section relied on by claimant, it would appear that they had equal right to impose the further restrictions contained in Section 3965. Section 3965 should have been complied with by claimant, just as he was required to comply with the provisions of Section 3964. In adopting the 1942 Code, the legislature approved the arrangement of Section 3965 in the Code, following Section 3964. It approved the same in the light of its construction by the previous holdings of opinions of the Attorney General, annotated under this section. The applicability of Section 3965 to the claim of appellant is clear and controlling. The claim of appellant should be disallowed, and the judgment of the circuit court should be affirmed.

Argued orally by Thos. E. Pegram, for appellant, and by Geo. H. Ethridge, for appellees.

1. EXTRADITION.

In proceeding against county for order for issuance of warrant for mileage for returning fugitives under Governor's requisition, county supervisors were not necessary parties, and hence defect in summons directed to supervisors was immaterial (Code 1942, sec. 3964).

2. EXTRADITION.

Where Governor's agent, having returned fugitives under requisition, filed petition simultaneously with circuit court and county supervisors for mileage fixed by statute contemplating order therefor by court and supervisors, it was immaterial that supervisors failed to appear and contest on behalf of county in circuit court (Code 1942, sec. 3964).

3. EXTRADITION.

A person appointed by Governor as his agent to return fugitives from justice is not acting as court officer, even though such person is a sheriff or deputy sheriff, as regards allowance of expenses (Code 1942, secs. 3922, 3964, 3965, 3984).

4. EXTRADITION.

On petition for mileage, etc., for returning fugitives under Governor's requisition, circuit court can inquire only into question whether requisition was issued and prisoners returned, and question of actual mileage and other reasonably essential expenses (Code 1942, secs. 3964, 3965, 3984).

5. EXTRADITION.

A deputy sheriff who was appointed as Governor's agent to return fugitives charged with kidnapping, and who returned fugitives and their victim, could not hold county liable, under statutes fixing mileage and authorizing Governor to contract essential expenses, either for victim's expenses or for his own personal expenses in addition to mileage (Code 1942, secs. 3964, 3984).

6. EXTRADITION.

Under statutes requiring petition to circuit court for allowance of mileage for returning fugitives under Governor's requisition and requiring district attorney's opinion before allowance of public accounts, judge must ask district attorney's advice before allowing such mileage, but claim therefor need not be first presented to district attorney (Code 1942, secs. 3922, 3964).

7. EXTRADITION.

Although under statute district attorney's opinion as to allowance of public accounts must be presented to circuit court, allowance of claim, such as claim for mileage for returning fugitives under Governor's requisition, is ultimately committed to judgment of court, and in circuit court claim may be contested by district attorney on behalf of county (Code 1942, secs. 3922, 3964).

8. EXTRADITION.

Where circuit court, before hearing petition for allowance of mileage for returning fugitives under Governor's requisition, did not obtain district attorney's opinion pursuant to statute, court had no authority either to allow or disallow claim, and hence judgment denying petition was tantamount merely to erroneous dismissal of claim and not a final judgment on merits (Code 1942, secs. 3922, 3964).

9. APPEAL AND ERROR.

In view of statute providing that on order of circuit court, which can act only at term time, mileage shall be paid for returning fugitives under Governor's requisition, court's action is not purely administrative but is adjudication, and from an adverse adjudication appeal will lie (Code 1942, sec. 3964).

10. EXTRADITION.

The statutes allowing mileage to person returning fugitive under Governor's requisition and authorizing Governor to contract necessary expenses are not superseded but are supplemented by statute providing for judicial approval of expenses of person identifying or assisting in returning fugitive, in view of ejusdem generis rule (Code 1942, secs. 3964, 3965, 3984).

11. EXTRADITION.

The statute relating to expenses of person, acting under Governor's requisition and identifying or assisting in return of fugitive was inapplicable to claim for mileage, etc., by deputy sheriff appointed as Governor's agent to return fugitives, in view of other statutes relating to mileage and expenses incurred by Governor's agent (Code 1942, secs. 3964, 3965, 3984).

L.A. Smith, Sr., J., delivered the opinion of the court.

Appellant filed a petition in the Circuit Court of Union County, and with the board of supervisors of said county, simultaneously, seeking to have the court enter an order directing the board of supervisors to issue a warrant in his favor for the sum of $650.50, being based on a claim of 20 cents a mile for returning, as the agent of the Governor of Mississippi, two fugitives from the State of Mississippi, under a requisition from the Governor for that purpose, which requisition was issued on the capias of a justice of the peace in Union County, directing the arrest of said parties for the felony of kidnapping. The victim of the kidnapping was a girl, and the record shows that the Governor's agent, who was also a deputy sheriff of Union County, realizing that he alone would find it exceedingly difficult, if not impossible, to guard and return all three persons without aid, took along with him another deputy sheriff of said county, all traveling in the car of Mr. Kitchens, who was the agent appointed by the Governor, and the claimant and appellant in this cause. They went to California, and the requisition was honored, and they brought the two prisoners and the girl back with them to Union County in November, 1943, having used eight days on the trip.

Proof was duly made in support of the allegations of the making of the trip, and of the facts hereinabove set out; and after the presentation thereof, at which it does not appear that any one represented the county, the circuit court denied the petition; and from this judgment of the circuit court the case has been appealed here.

Although appellant simultaneously filed his petition both in the circuit court and with the supervisors, and although there is no provision in the statutes applicable requiring that the petition to the circuit court make the members of the board of supervisors parties defendant there, and require them to be summoned, they were summoned and made parties to the petition in the circuit court. However, the summons was defective, and the return of the service thereof was defective.

Appellant contends, and we think rightly, that since it was not necessary for the supervisors to have been summoned in the first place, the defect in the summons is not material in the matter; neither is their failure to appear and contest on behalf of the county in the Circuit Court. Ex parte Charles Webb, 96 Miss. 8, 49 So. 567. However, appellant lost his case in the circuit court, as stated.

Section 3984, Code 1942, which was Section 4826, Code 1930, provides: "The governor may appoint an agent to demand of the executive authority of any other state or territory any fugitive from justice or other person charged with treason, felony, or other crime in this state. Such agent, if necessary, may employ a sufficient guard or escort to bring such criminal to this state; and the governor may contract other expenses absolutely required in performing the duties of the agency."

In the case of McLean v. Mississippi, 5 Cir., 96 F.2d 741, 745, 119 A.L.R. 670, writ of certiorari denied in 305 U.S. 623, 59 S.Ct. 84, 83 L.Ed. 399, the Court said: "Even though one who is a sheriff should be appointed such agent, he acts not as sheriff under his bond but as special agent to extradite, at least until he has the prisoner in his custody in his own county."

Section 3964, Code 1942, provides: "Any party, acting under a requisition of the governor, who brings back to this state and delivers to the sheriff of the county where the offense is alleged to have been committed, a person charged with felony, shall receive, to be paid out of the county treasury on the order of the circuit court and of the board of supervisors, twenty cents a mile for the distance necessarily traveled in coming from the place of arrest to the place of delivery; but the same shall not be paid to any party who has received, or who claims a reward from the state, county, or person," which, like Section 3984, first appeared in the Code of 1892.

The requisition signed by Governor Paul B. Johnson appointed appellant as agent of the Governor, to receive and convey the parties from California to the State of Mississippi, without responsibility to the state for any expense attendant upon the execution, for the arrest and delivery of the fugitives.

Section 3965, Code 1942, which was adopted as Chapter 139 of the Laws of 1932, provides:

"The circuit court or the judge thereof in vacation is hereby authorized and empowered to allow all necessary and proper expenses to any person or persons acting under a requisition of the governor, who may travel out of this State for the purpose of identifying or assisting in any proper and necessary manner in the return to this State of a person charged with felony.

"Such expenses may be allowed only upon a petition to said court or judge filed by the District Attorney, setting out the necessity for the expenditure, an estimate of the probable amount to be spent, the name of the person charged with felony, the crime with which such person is charged and the place to which the proposed trip will be made. If, upon the hearing of said petition, the circuit court or judge is satisfied of the necessity of the expenditure, an order authorizing the same may be entered to that effect, and thereafter upon sworn itemized statement of such expenses the court or judge shall, if such expenses are reasonable and proper, enter an order allowing the same, which order, upon presentation to the board of supervisors of the county in which such person is charged with felony, shall be allowed by said board."

Section 3922, Code 1942, which was Section 4365, Code of 1930, provides: "All accounts of a public nature, before they are allowed by the circuit court, shall be presented to the district attorney, and his opinion concerning the validity of the same, and whether the same should be allowed or disallowed, obtained in writing, and presented to the court."

It is contended by the appellant that automatically under Section 3964 he is entitled to 20 cents a mile from Long Beach, California, to New Albany, the matter being fixed by statute; and that as he acted as the agent of the Governor under a statute fixing definitely the payment of this mileage to him when he had performed the purposes of his appointment, that no district attorney can, in effect, repeal the statute where the service has been effectively performed, or hamper the agent of the Governor by recommending disapproval of the allowance, so that, therefore, Section 3965 has no application to this particular part of his claim.

The position of the attorney general, in contesting the issuance of an allowance order by the Circuit Court in this particular case, is based on Section 3922, Code 1942, supra, and Section 3965, Code 1942.

No person, if the position of the Attorney General as to the mileage be correct, would accept appointment from the chief executive of the State of Mississippi to travel to a distant state for the purpose of bringing back a fugitive from justice where the allowance of the mileage was dependent upon the judgment or caprice of a district attorney who might, or might not, be capable, reasonable or impartial, even though the service had been duly and effectively performed. It would require a high degree of disinterestedness and unselfishness for any one to accept the responsibility of acting as agent of the Governor, if one had to gamble upon the allowance of the amount fixed for him by statute as such agent. As agent of the Governor, he is not acting as an officer of the court, even though he is a deputy sheriff, or sheriff. In our judgment, the only matters into which the circuit court could inquire are whether or not the requisition was issued and the prisoner returned by the Governor's agent thereunto appointed, the actual mileage from the place of arrest in the other state to the point of delivery, the reasonable expenses of feeding and lodging the prisoners, the reasonable expenses of the guard carried along by the executive agent, and other reasonably essential expenses incidentally necessary to executing the warrant of requisition in the arrest and return of the fugitives. In this case, the claimant, however, is asking for expenses of the victim of the kidnapping, and of himself personally in addition to the mileage allowed him. The latter two items in our judgment cannot be allowed him, under the provisions of the statutes, Sections 3964 and 3984, Code 1942.

This, then, brings us to consideration of what bearing Section 3922, Code 1942, set out supra, has upon the case before us, which statute has been a part of the statutory law of Mississippi ever since Hutchinson's Code of 1848. Sections 3964 and 3984, Code of 1942, first appeared in the Code of 1892.

This statute, Section 3922, Code 1942, does not say by whom the claim shall be presented to the district attorney. The statute governing the allowance of the mileage does require the claimant to file his petition in the circuit court, but not with the district attorney. Construing Sections 3922 and 3964 together, it appears to us that the judge before allowance must ask the advice of the district attorney as an officer of the court, and not that the claimant must first have his claim tried by the district attorney, and then later, peradventure, retried by the court. Especially does this seem true, since if the district attorney approve or disapprove the claim, the court is not bound thereupon to allow or disallow it, but its allowance or disallowance is ultimately committed to the judgment of the court, and it can be contested by the district attorney in the circuit court on behalf of the county, if he see fit to do so.

Since the court did not submit the matter to the district attorney before hearing the matter, in accordance with the statute, it was without due exercisable authority either to allow or disallow the claim; and in such situation the judgment of the court was tantamount merely to an erroneous dismissal of the claim of appellant, and not a final judgment on its merits.

The attorney general argues that no appeal lies from this action of the circuit court because it is purely an administrative matter, and cites cases, none of which in our judgment are applicable to the matter before us. The claimant is granted by statute certain compensation for certain services, the rendition of which is to be determined by the circuit court, which can only act at term time. The judgment of the court, in view of what we have said supra, is adjudication, and from an adverse adjudication an appeal will lie here.

While Section 3964, Code 1942, supra, first appeared in the Code of 1892, Section 3965 was not enacted by the Legislature until 1932, when it was Chapter 139 thereof. Conceivably this legislation was deemed necessary by the Legislature due to the increase of crime, with the increasing complexities of human activities, the increase in the means and speed of flight, and the growing tendency of fugitives to resist the honoring of requisitions. It does not supersede Section 3964 or Section 3984, supra, but supplements them by providing, on a proper showing in advance for the necessity thereof, an allowance in addition to the expenses for the executive agent, the extra guard, and expenses in maintenance of the guard and prisoners, and other necessary incidental expenses, inherent in said Sections 3964 and 3984, to cover the costs of a person or persons traveling out of this state in order to furnish identification of the fugitives, or evidence in a hearing on the requisition, or other similar or kindred assistance. This seems true under the "ejusdem generis" rule. Gully v. Stewart et al., 178 Miss. 758, 174 So. 559; State Savings Loan Trust Co. v. Swimmer, 208 Mo. App. 503, 236 S.W. 1057, 1060; State v. Hemrich, 93 Wn. 439, 161 P. 79, 83, L.R.A. 1917B, 962. This is a matter entrusted to the district attorney charged with prosecuting the fugitives, and with the duty of aiding the executive agent successfully to secure custody for return to Mississippi the fugitives to the end that he may prosecute them in the proper forum of this state. It is for him, charged with prosecution, to determine the witnesses and other assistance of like sort needed to enable the executive agent to achieve effectiveness of the requisition of the Governor of Mississippi, where the fugitive resists it, or other kindred difficulties arise. Accordingly, the duty and responsibility is put upon him to take such matters up with the circuit court or judge in vacation, in advance, for allowance to cover the expenses, as a part of the functions of the judicial division of state government. The appointment of the agent to return the fugitives, by the Governor, is part of the duty of the executive branch of the state government. In our judgment, therefore, the two statutes do not overlap or conflict, but being read together supplement each other, covering different situations, the one necessarily, and the other possibly to become involved in the return of fugitives from other states for prosecution in Mississippi for felonious violations of the criminal laws thereof. On the facts in the case before us, Section 3965, Code 1942, has no application here.

In consequence of our conclusions supra, the case must be and is reversed and remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

KITCHENS v. UNION COUNTY.

Comments