I dissent from the affirming opinion, because I think that it is in conflict with the case of Marathon Lumber Co. v. State,139 Miss. 125, 103 So. 798, and unless the latter case is overruled by this court, I see no way to avoid its application to the case at bar.
The Marathon case was supported by our prior decisions on the point and has been followed many times by this court since its rendition. If the decision in that case was wrong and is now doing harm, it should be overruled, but, until it is overruled, it is the duty of this court to follow it. *Page 118
Therefore, as reluctant as I am to disagree with my Brethren who join in affirming this case, I am compelled to do so, for the reason that the question is stare decisis. Rules of law announced by a court, though some of them may have been erroneously decided, should be followed until and unless overruled by the court.
I also dissent from the view of the three affirming judges that the commission of fifteen per cent. should not be allowed to the attorney-general in the decree of the lower court. If the commission is due to the attorney-general for recovery "by suit or otherwise," then I see no good reason why the amount should not be allowed to him by the judgment of the court in which the recovery is had by the state.
ANDERSON, J., joins me in these views.