I regret that I am unable to agree with the majority opinion in this case, and nothing but a conviction that the decision is entirely wrong would induce me to dissent in a case of this character.
I think it would be a wise thing for the legislature to restore section 2206, Code of 1906 (Hemingway's Code, section 1891), but I think this section has been clearly repealed by subsequent acts of the legislature, beginning with chapter 102, Laws of 1916, down to and including chapter 206, Laws of 1924. The provisions of the several statutes will be referred to in this dissent.
It is manifest from a reading of the provisions of chapter 102, Laws of 1916, that the legislature intended to repeal the right of county officers to charge fees as had theretofore existed, and it is absurd to my mind to say that the legislature contemplated that funds would be taken out of the county treasury by an appropriation under section 2206, Code of 1906 (Hemingway's Code, section 1891), and warrant issued to the chancery clerk or other officer and by him collected and paid back to the county treasury, all of which would entail time, labor, and bookkeeping for no purpose whatever. Chapter 102, Laws of 1916, provides for the salaries of different county officers in the different classes of counties and for deputies, giving the board of supervisors the right to fix the number of deputies and their compensation under certain conditions and limitations, Section 4, chapter 102, Laws of 1916, provides: "That in the counties in this state in which there are two judicial districts, the board of supervisors may allow another deputy for the chancery clerk and another deputy for the circuit clerk, to the number hereinbefore allowed in each of the classes." *Page 567
Section 7 of said chapter 102, Laws of 1916, provides that: "In no case whatever shall the sheriff and tax collector and his deputies, the chancery clerk and his deputies, the circuit clerk and his deputies, the tax assessor and his deputies, respectively, be paid by the board of supervisors a salary for any year which shall exceed in the case of any of said officers and their deputies the amount in fees and commissions collected by each of said officers, respectively, and their deputies, respectively, and paid by each of said officers, respectively, into the county treasury for such year; but this provision shall not apply as to the allowances made for special or extra deputies during court terms, as provided for under subdivisions (d) of section 2 of this act."
And it further provides that: "If in any one month the amount of fees and commissions paid into the county treasury by said officers, respectively, shall not equal the amount of such officers' or the deputies' salaries, then the amounts of such monthly salaries may be paid by the board of supervisors out of the county treasury, after being duly audited and allowed according to law, out of any fees and commissions which any of said officers, respectively, may have paid into the county treasury in any preceding month of the same year the purpose and intent of this act being to require each of said officers and deputies, respectively, to receive his salary out of the fees and commissions paid by each of said officers, respectively, into the county treasury," etc.
It is true that by section 8 of the act (chapter 102, Laws of 1916) the legislature provided that: "All fees and all commissions and other emoluments which the law now provides may be demanded, received and taken by the sheriff and tax collector, chancery clerk and circuit clerk," etc.
But it was not the intention of this section to permit such officers to receive allowances from the county treasury, but was merely to provide for the collection of fees from the public for the services which the public had theretofore paid fees to go into the county treasury for *Page 568 the purpose of making a fund. This, I think, is clear from a reading of all of the provisions of the act together. Of course, the legislature was mistaken about the amount of fees collected by these officers under the fee system, and expected to receive more money for the county than the county paid out to the county officers from these private sources, so that these public officers would be paid by the individuals who had worked for them to do, and who had formerly paid fees direct to the county officers. It so happened that the law after being tried out was a disappointment to its friends. Section 9, chapter 102, Laws of 1916, expressly repealed all laws and parts of laws in conflict with the statute.
This law was amended, or rather it was repealed, by chapter 122, Laws of 1920, which covered the full subject of the compensation of county officers. Chapter 122, Laws of 1920, divided the counties into classes and fixed the salaries of the respective officers according to the classification in the act, giving, however, some fees to the officers which had not been allowed them under the preceding law. In section 20, chapter 122, Laws of 1920, provision was made for deputies in counties having two districts, and increasing the salaries of sheriffs, chancery clerk, circuit clerk, and the superintendent of education in such counties that had two judicial districts, and also the salaries of the members of the board of supervisors.
In 1922, the legislature made an abortive attempt to re-enact the fees existing prior to the passage of chapter 102, Laws of 1916, but the first section of the act was palpably void under section 61 of the Constitution of 1890, prohibiting any laws being revived or re-enacted by reference, and requiring the provisions to be fully and completely set out in the law. Section 2, chapter 160, Laws of 1922, provided for the compensation of the tax collector, but the act did not make general provision for the compensation of the chancery and circuit clerks. In section 3, chapter 160, Laws of 1922, it is provided that: "The clerks of the chancery and circuit court shall begin *Page 569 to receive the fees fixed by section 2 in full compensation for their services from and after the first day of the calendar month next succeeding the passage and approval of this act," etc.
Section 2 of this act contained no provisions for any fees to such chancery and circuit clerks at all. Section 3 of the act further provided:
"The sheriffs and tax collectors shall begin to receive the fees in full compensation for their services as fixed by section 2 of this act, December 1, 1922, the salaries of the sheriffs and tax collectors and the deputies of sheriffs and tax collectors shall continue as fixed by chapter 122 of the acts of 1920 until the first day of December, 1922. All of the provisions of chapter 122 of the acts of 1920 applying to sheriffs and tax collectors and their deputies and their compensation for services rendered, and as to the application and disposition of all fees and commissions collected by sheriffs and tax collectors are hereby continued in force until December 1, 1922," etc.
The act made special provision for additional fees for the sheriff for certain services not necessary to be set out here. Section 6 of the act (chapter 160, Laws of 1922) made specific provisions for the salary of chancery clerks as county auditors ranging from not exceeding four hundred dollars per annum to not exceeding two thousand dollars per annum, according to the assessed valuation of the property in the county. This act (chapter 160, Laws of 1922), in section 7 thereof, expressly repealed chapter 102, Laws of 1916, and chapter 122, Laws of 1920, and all other acts in conflict with that act.
A serious question has arisen as to the constitutionality of the first section of chapter 160, Laws of 1922, on account of the failure of the legislature to set out the fees intended to be restored as required by section 61 of the Constitution. The legislature of 1924 passed a curative act to ratify and validate the acts of the officers in receiving and using the fees provided for in chapter 160, Laws of 1922. This special act is section 1, chapter 206, Laws of 1924. *Page 570
Section 2, chapter 206, Laws of 1924, provided: "That the sheriffs and tax collectors, chancery clerks and circuit clerks, and the deputies of said officers, of the several counties of the state of Mississippi, shall receive as compensation for their services rendered in the performance of their duties as imposed by law upon such officers, the following fees, commissions and salaries, and such officers shall be paid exclusively from suchfees, commissions and salaries as herein provided, for allservices rendered by them in the performance of all dutiesrequired by law to be performed by said officers," etc. Italics ours.)
It looks to me like it is too plain for doubt that this part of the section clearly cuts the officers off from any additional compensation for any duty required of them to be performed by said law; the chancery clerks and other officers named have fixed fees specifically set out in the act. These specific fees are increased in many cases over the fees allowed prior to the enactment of the salary law of 1916. The salary of the chancery clerk as county auditor is specifically named in the act, and the amounts graded according to the assessed valuation of the property in the several counties. The amounts allowed the county auditor are considerably higher than the amounts allowed in section 348, Code of 1906 (Hemingway's Code, section 3721). The maximum amount under the Code of 1906 was five hundred dollars. Under the Law of 1924, the maximum amount is two thousand dollars. Under the Code of 1906, the minimum amount was one hundred dollars, whereas, under the Law of 1922 and under the Law of 1924, it was four hundred dollars.
So it will be seen that the legislature under the last acts was completely covering the subject-matter.
This act (chapter 206, Laws of 1924) did not specifically follow the schedule of fees existing prior to 1916, and it is impossible to believe that the legislature was trying to reinstate the law prior to 1916 in the act of 1924, but the legislature was amending the law to conform to its idea of the conditions then existing and what *Page 571 was a reasonable compensation for the services to be performed under conditions then existing. It is probably true that the legislature fixed the salaries at less than a fair compensation in some of the counties under conditions said now to exist, but this is a question entirely for the legislature. The courts have nothing to do with the question, and are not authorized to raise salaries by construction to bring about a remedy for a real or imaginary evil. Every county has at least one representative in the legislature. Such representative is supposed to be cognizant of the conditions in his county, and the legislature is supposed to have a more intimate knowledge of conditions throughout the state with reference to such conditions than the courts.
The rule is well settled in this state that: "A statute existing may be repealed without being specifically and directly referred to, where the legislature enacts a new statute covering the field covered by the former act, although there is some difference in the provisions of the two statutes." State v.Wyoming Manufacturing Co. 138 Miss. 249, 103 So. 11.
In the Wyoming Manufacturing Co. case, supra, the court further held: "In the case of Meyers v. Marshall County,55 Miss. 347, the rule is stated in the following language: `We regard this act as a revision of the whole legislation on the subject of the fees of the officers embraced in it, and as precluding the assertion of any right on their part not given, or distinctly recognized, by the act. Mobile Ohio R.R. Co. v.Weiner, 49 Miss. 725. "A subsequent statute, not repugnant in its provisions to a former one, but clearly intended to prescribe the only rule in the case provided for, repeals the former statute." Swann v. Buck, 40 Miss. 270.'
"In M. O.R. Co. v. Weiner, 49 Miss. 739, this court held: `The general rule is that when any statute is revised, or when one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled. For it must be presumed that the legislature has declared its entire will, otherwise there *Page 572 must be imputed to them gross carelessness or ignorance. Sedgwick on Statutes, 429. . . . The eighth section of the Code (of 1871) was introduced, out of abundant caution to free the subject of all doubt or perplexity, so that it would be easy to determine what were the statute laws of a general nature in force. "If the subjects are revised and consolidated," then all the parts of former statutes, on the same subject, which are omitted, ceased to operate on the first day of October, 1871.'
"In Vicksburg v. Sun Mutual Insurance Co., 72 Miss. 67, 16 So. 257, it is said: `It is said in Railroad v. Weiner,49 Miss. 725, adopting the language of the supreme court of Massachusetts, "that a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former."'
"In Clay County v. Chickasaw County, 64 Miss. 534, 1 So. 753, it is said: `Here, then, are two statutes on the same subject and for the same purpose, and the last, under which the new county was in fact created, omitting the provision contained in the first, that the new county should receive its proportion of the county and school funds from the old counties. The general rule is that when any statute is revised, or when one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled. Where a statute is evidently intended to revise the whole subject treated in a former statute, and to be a substitute therefor, it repeals such former statute, and, though there may be a plain casus omissus, the courts cannot supply it. Sedgwick on Con. of Stat. and Const. Law, 365, 366, and note; M. O.R.R. Co. v. Weiner, 49 Miss. 725. Without provision being made to the contrary, the new county was not entitled to any part of the county or school funds or other public property which did not fall within its boundaries. They belonged to and continued to be the property of the old counties after the separation. *Page 573 The creation of new counties is a matter within the power and discretion of the legislature, subject only to the restrictions imposed by the Constitution.'
"When we consider the rules herein announced and apply them to the statutes involved in this controversy, we are driven to the conclusion that the legislature was dealing with the whole subject of the filing, notice, correction, objections, and approval of the assessment roll. It is true the new act gives less time to the taxpayer to examine the rolls than the former acts. But, as the board of supervisors has made the preliminary changes and corrections which it deemed necessary to make, the taxpayer has ample time before the August meeting to advise himself as to how his property will be affected."
I think, therefore, that it is perfectly clear that the legislature prescribed the only compensation it intended, and that it did not intend to re-enact section 2206, Code of 1906 (Hemingway's Code, section 1891), I think that it is too clear for doubt that said section was repealed by the salary law, but, if not repealed by that law, it is certainly repealed by the last act (chapter 206, Laws of 1924), which undertook to set out specifically what fees the chancery clerks and county auditors would receive, and, regrettable as it is to so hold, I see no way to avoid this conclusion. I am aware of the fact that the duties of the chancery clerks and of the county auditors have been greatly increased by statutes during the past few years providing for county depositories and for different school and road districts and other taxing districts, requiring a great deal of bookkeeping and a greatly increased amount of clerical work.
For the reasons above indicated, I think the judgment should be reversed.
ANDERSON, J., concurs in this dissent. *Page 574