Tunica County, Mississippi v. Town of Tunica, Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-CA-01183-SCT

TUNICA COUNTY, MISSISSIPPI

v.

TOWN OF TUNICA, MISSISSIPPI, TUNICA
COUNTY SCHOOL DISTRICT, JIM HOOD,
ATTORNEY GENERAL AND STATE OF
MISSISSIPPI

DATE OF JUDGMENT: 07/24/2015
TRIAL JUDGE: HON. HENRY L. LACKEY
TRIAL COURT ATTORNEYS: ELLIS TURNAGE
J. CHADWICK MASK
REGINA R. QUINN
LEE DAVIS THAMES, JR.
CLIFTON MICHAEL DECKER
COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ELLIS TURNAGE
ATTORNEYS FOR APPELLEES: J. CHADWICK MASK
CHRISTOPHER H. COLEMAN
CLIFTON M. DECKER
REGINA R. MAY
JOHN RICHARD MAY, JR.
OFFICE OF THE ATTORNEY GENERAL
BY: LEE DAVIS THAMES, JR.
NATURE OF THE CASE: CIVIL - UNCONSTITUTIONAL STATUTE
DISPOSITION: AFFIRMED IN PART, VACATED IN PART,
AND REMANDED - 05/11/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. Tunica County seeks review of the Tunica County Circuit Court’s summary-judgment

ruling that a local and private law requiring the County to distribute portions of a revenue-

based gaming fee to the Town of Tunica and the Tunica County School District was

constitutional. Finding that the County has failed to meet its burden of proving that the

legislation in question is unconstitutional or otherwise unlawful, we affirm the trial court’s

grant of summary judgment. However, because the trial court failed to provide a basis for its

award of attorney’s fees and did not make any findings concerning the reasonableness of the

amounts awarded, we vacate the award of attorney’s fees and remand this case to the trial

court for further consideration of that issue.

FACTS & PROCEDURAL HISTORY

¶2. Tunica County asks this Court to evaluate the constitutionality of certain provisions

of Chapter Number 920, Local and Private Laws of 2004 (“House Bill 1002”). House Bill

1002 is the most recent iteration of a long line of local and private legislation dating back to

1992, which was passed after the enactment of the Mississippi Gaming Control Act in 1990.

See 1992 Miss. Local and Private Laws ch. 866.1

¶3. House Bill 1002 authorizes the Tunica County Board of Supervisors to impose a fee

of up to 3.2 percent of gross gaming revenue on all gaming vessels located within or

1
Similar legislation has been enacted in every county that allows legalized gambling.
See, e.g., 1992 Miss. Local and Private Laws ch. 868 (Biloxi, D’Iberville, and Gulfport);
1993 Miss. Local and Private Laws ch. 923 (Hancock County); 1993 Miss. Local and Private
Laws ch. 925 (Warren County); 1994 Miss. Local and Private Laws ch. 960 (Coahoma
County); 1994 Miss. Local and Private Laws ch. 972 (Adams County); 1995 Miss. Local and
Private Laws ch. 1015 (Harrison County); 1994 Miss. Local and Private Laws ch. 1905
(Washington County).

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contiguous to Tunica County. 2004 Miss. Private and Local Laws ch. 920, § 1(a). The law

instructs the Mississippi State Tax Commission (now the Mississippi Department of

Revenue) to calculate, collect, and enforce the collection of this fee in the manner provided

for the collection of licensing fees under Mississippi law. Id. at § 2(a). The law also directs

the distribution and expenditure of this fee. Critical to this case, the law requires ten percent

of the fee to be distributed to the Town of Tunica “for deposit into the general fund of the

municipality” and provides the purposes for which those funds may be expended by the

Town. Id. at § 2(b)(iv).2 Additionally, twelve percent of the fee must be expended for

“educational purposes in Tunica County,” and two percent must be expended for “teacher’s

salary supplementation and teacher training.” Id. at §§ 2(b)(iii), (v). Tunica County School

District is not mentioned anywhere in HB 1002 or its predecessors.

¶4. The County has levied the fee authorized by House Bill 1002 and its predecessors

since 1994, and it distributed the proceeds of the fee as required by House Bill 1002 until

2014. According to the County’s complaint, the gaming industry experienced a sharp decline

between 2007 and 2014, cutting the fees it collected under House Bill 1002 roughly in half

during that period. As a result, in November 2013, the Tunica County Board of Supervisors

petitioned the Legislature to decrease the Town’s distribution under House Bill 1002 from

ten percent to five percent and to increase the share of the fee that could be deposited into

the County’s general fund. The Legislature rejected this proposal. Thus, in October 2014, the

Tunica County Board of Supervisors resolved to cease the distributions required by House

2
This requirement was added to the legislation in 1995, and the amount of the
distribution has increased over the years.

3
Bill 1002 and filed a lawsuit in Tunica County Circuit Court challenging the constitutionality

of the law’s distribution requirements.3 The County named the Town and the School District

as defendants. Because the County’s complaint challenged the constitutionality of a statute,

the State of Mississippi, through the Mississippi Attorney General’s Office, was allowed to

intervene to defend the constitutionality of House Bill 1002.

¶5. The County’s complaint alleged that House Bill 1002 violated several sections of

Articles 3 and 4 of the Mississippi Constitution, as well as certain provisions of the

Mississippi Code. Specifically, the County argued that House Bill 1002 deprived it of its

property interest in the casino fees without due process of law. In addition, the County

asserted that the distributions required by House Bill 1002 constituted an unlawful donation

of public funds. The County also argued that House Bill 1002 impermissibly suspended

certain general statutes and provided improper support for a common school. Alternatively,

the County alleged that House Bill 1002 violated Mississippi common law and that the

current Board of Supervisors could not be bound by the decisions of prior Boards to comply

with the law. The County asked the circuit court to declare House Bill 1002 unconstitutional

and issue an injunction against the continued enforcement of the statute. On November 13,

2014, the County filed a motion for a temporary injunction against the enforcement of House

Bill 1002 during the litigation.

¶6. On November 26, 2014, the Town filed an answer denying all of the allegations in the

County’s complaint and affirmatively asserting that House Bill 1002 is constitutional in all

3
The County amended its complaint on November 13, 2014.

4
respects. In addition, the Town filed a counterclaim for injunctive relief against the County,

asking the trial court to require the County to come into complance with House Bill 1002.

The School District filed its answer and an identical counterclaim on January 28, 2015.

¶7. On February 5, 2015, the Town filed a separate Application for Preliminary Injunction

seeking an order enjoining the County from disregarding the distribution mandates of House

Bill 1002 and requiring the County to come into immediate compliance with the law. The

School District joined in this application.

¶8. The trial court held a comprehensive hearing on the parties’ competing motions on

June 18, 2015. The parties were allowed to call witnesses and present evidence at this

hearing. The County’s primary argument at the hearing was that HB 1002 “causes Tunica

County to donate, and to give without consideration – give away 24 percent of their money.”

The County also argued that HB 1002 conflicted with general statutes that authorized both

counties and municipalities to collect “local government fees” from casinos operating within

their borders. Following the hearing, the trial court issued an opinion holding that the County

had not met its burden of proving that House Bill 1002 was unconstitutional. The court found

that House Bill 1002 “and all its predecessors contain a clear and unambiguous legislative

mandate as to how the fees accumulated by the enforcement of the Act are to be disbursed

and must immediately be followed.” Accordingly, the trial court denied the declaratory and

injunctive relief requested by the County and granted the preliminary and permanent

injunctive relief sought by the Town and the School District. The trial court also awarded

attorneys’ fees to the Town and the School District and ordered the County to be assessed

5
interest at the highest legal rate for all funds it had been withholding from the Town and the

School District in violation of House Bill 1002.

¶9. Following the trial court’s ruling, the Town filed a motion for summary judgment. The

County did not file a response. On July 28, 2015, the trial court entered an order granting

summary judgment to the defendants. The County filed its notice of appeal on August 3,

2015. On December 3, 2015, the trial court entered another order again granting the Town’s

motion for summary judgment. The order indicates that the trial court previously had granted

the Town’s motion but had not filed it in order to give the County time to respond. After

failing to receive a timely response from the County, the trial court reinstated its original

order granting summary judgment. Thereafter, on December 18, 2015, the County filed its

final notice of appeal with this Court.

¶10. On appeal, the County raises nine issues, which we have reorganized into the

following four issues for the sake of clarity:

I. Whether House Bill 1002 is unconstitutional.

II. Whether the current Tunica County Board of Supervisors is bound
by House Bill 1002.

III. Whether the circuit court erred in granting the Town’s motion for
summary judgment.

IV. Whether the circuit court erred in awarding attorney’s fees and
interest to the defendants.

STANDARD OF REVIEW

¶11. It is well-settled that a trial court’s grant of summary judgment is reviewed de novo.

Jones Cty. Sch. Dist. v. Miss. Dep’t of Revenue, 111 So. 3d 588, 608 (Miss. 2013)

6
(collecting citations). Summary judgment is proper when “the pleadings, depositions,

answers to interrogatories and admissions on file . . . show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Miss. R. Civ. P. 56(c). This Court must review the evidence in the light most favorable to

the nonmoving party, and the movant bears the burden of showing that no genuine issue of

material fact exists. Hooker v. Greer, 81 So. 3d 1103, 1108 (Miss. 2012) (citing Waggoner

v. Williamson, 8 So. 3d 147, 152 (Miss. 2009)). In addition, a trial court’s rulings

concerning the constitutionality of a statute are reviewed de novo. Oxford Asset Partners,

LLC v. City of Oxford, 970 So. 2d 116, 120 (Miss. 2007). The trial court’s grant of

attorney’s fees is reviewed for an abuse of discretion. Tupelo Redevelopment Agency v.

Gray Corp., Inc., 972 So. 2d 495, 518 (Miss. 2007).

DISCUSSION

I. Whether House Bill 1002 is unconstitutional.

¶12. The County’s primary argument on appeal is that the distribution requirements

contained in House Bill 1002 violate various provisions of Articles 3 and 4 of the Mississippi

Constitution. As the party challenging the constitutionality of a statute, the County “must

‘overcome the strong presumption’ that the Legislature acted within its constitutional

authority” when it passed HB 1002. 5K Farms, Inc. v. Miss. Dep’t of Revenue, 94 So. 3d

221, 226 (Miss. 2012) (quoting Cities of Oxford, Carthage, Starkville and Tupelo v. Ne.

Miss. Elec. Power Ass’n, 704 So. 2d 59, 65 (Miss. 1997)). “When a party invokes our power

of judicial review, it behooves us to recall that the challenged act has been passed by

7
legislators and approved by a governor sworn to uphold the selfsame constitution as are we.”

State v. Roderick, 704 So. 2d 49, 52 (Miss. 1997). “[T]he courts are without the right to

substitute their judgment for that of the Legislature as to the wisdom and policy of the act and

must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution.”

Pathfinder Coach Div. of Superior Coach Corp. v. Cottrell, 62 So. 2d 383, 385 (Miss. 1953)

(emphasis added). “If possible, courts should construe statutes so as to render them

constitutional rather than unconstitutional if the statute under attack does not clearly and

apparently conflict with organic law after first resolving all doubts in favor of validity.”

Loden v. Miss. Pub. Serv. Comm’n, 279 So. 2d 636, 640 (Miss. 1973) (citations omitted).

In other words, “to state that there is doubt regarding the constitutionality of an act is to

essentially declare it constitutionally valid.” Moore v. Bd. of Supervisors of Hinds Cty., 658

So. 2d 883, 887 (Miss. 1995).

¶13. The County’s arguments on this issue can be grouped into the following five

categories: (1) House Bill 1002 deprives it of property without due process; (2) House Bill

1002 grants a donation to the Town and the School District; (3) House Bill 1002 suspends

general laws; (4) the Legislature did not comply with the constitutional requirements for

enacting House Bill 1002; and (5) House Bill 1002 gives support to a common school. We

address each of these arguments separately below.

A. Whether House Bill 1002 deprives the County of property
without due process.

¶14. The County’s first argument on appeal is premised on the assumption that it has an

inherent right to the use of all proceeds of the fees collected under House Bill 1002. Thus,

8
the County asserts that House Bill 1002’s distribution provisions constitute a deprivation of

its property interest without due process of law, in violation of Article 3, Sections 14 and 32

of the Mississippi Constitution.

¶15. Article 3, Section 14 provides, “No person shall be deprived of life, liberty, or

property except by due process of law.” Miss. Const. art. 3, § 14 (1890). This Court has held

that “[t]he due process required by the Federal Constitution is the same ‘due process of law’

which is required by” Article 3, Section 14. Walters v. Blackledge, 71 So. 2d 433, 515 (Miss.

1954). “Due process guards each person’s every substantial entitlement created and made

legitimate and protected from interference by the positive law of the state.” In re Validation

of $7,800,000 Combined Utility Sys. Revenue Bond, Gautier Utility Dist., Jackson Cty., 465

So. 2d 1003, 1018 (Miss. 1985) (hereinafter “In re Validation”). “To have a property

interest in a benefit, a person must have more than an abstract need or desire for it. He must

have more than a unilateral expectation of it. He must, instead, have a legitimate claim of

entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d

548 (1972).

¶16. We find that the County lacks standing to challenge House Bill 1002 on due-process

grounds. The United States Supreme Court has held that a political subdivision of the state

“cannot invoke the protection of the Fourteenth Amendment against the state.” City of

Newark v. New Jersey, 262 U.S. 192, 196, 43 S. Ct. 539, 67 L. Ed. 943 (1923). This is

because “[a] municipal corporation, created by a state for the better ordering of government,

has no privileges or immunities under the Federal Constitution which it may invoke in

9
opposition to the will of its creator.” Williams v. Mayor and City Council of Baltimore, 289

U.S. 36, 40, 53 S. Ct. 431, 77 L. Ed. 1015 (1933). See also State v. Hinds Cty. Bd. of

Supervisors, 635 So. 2d 839, 843 (Miss. 1994) (citing City of Trenton v. State of New

Jersey, 262 U.S. 182, 43 S. Ct. 543, 67 L. Ed. 937 (1923); Bd. of Levee Comm’rs of the

Orleans Levee Bd. v. Huls, 852 F.2d 140, 142-43 (5th Cir. 1988)) (“It has been established

that political subdivisions of the state have no Fifth or Fourteenth Amendment protections

against the state.”).

¶17. While the County does not raise any specific claims under the United States

Constitution, this Court has regarded Article 3, Section 14 of our Constitution to be

“essentially identical” to its federal counterpart. Nat’l Collegiate Athletic Ass’n v. Gillard,

352 So. 2d 1072, 1081 (Miss. 1977). Thus, the reasoning of the federal courts and this Court

in applying the Due Process Clause of the Fourteenth Amendment are instructive on this

issue. Furthermore, this Court has held on several occasions that a political subdivision of

the State cannot challenge the constitutionality of a statute on due-process grounds. See Ne.

Miss. Elec. Power Ass’n, 704 So. 2d at 67 (“It is admitted by the municipalities that they

have no due process rights against the Legislature.”); Tally v. Bd. of Supervisors of Smith

Cty., 307 So. 2d 553, 557 (Miss. 1975) (“[T]he due process requirement of the Fourteenth

Amendment to the Constitution of the United States, and Section 14 of the Mississippi

Constitution (1890) are directed to the protection of individuals and do not apply to frustrate

state agencies in their relationship with each other.”). The cases cited by the County are

inapposite, as the parties invoking due-process protections in those cases were individual

10
citizens, not governmental entities. See, e.g., City of Jackson v. Tucker, 202 So. 3d 199, 203

(Miss. 2016) (finding that a minor condemnee had standing to sue condemnor for a violation

of due process, as the condemnee had a property interest, voidable at his option, in the

property in question); Miss. Power Co. v. Miss. Pub. Serv. Comm’n, 168 So. 3d 905 (Miss.

2015) (finding that Mississippi Public Service Commission’s noncompliance with Base Load

Act violated ratepayers’ due process rights by depriving them of their money without notice);

Tucker v. Hinds Cty., 558 So. 2d 869, 874 (Miss. 1990) (finding that a private citizen had

a property right in the continuance of his utility services). Accordingly, the County’s

argument fails.

¶18. Notwithstanding the County’s lack of standing, the County’s argument is without

merit because its authority to impose the 3.2 percent gaming fee comes from the Legislature,

not the constitution. “The revenues of a county are subject to the control of the Legislature,

and when the Legislature directs their application to a particular purpose or to the payment

of the claims of particular parties, the obligation to so pay is thereby imposed on the county.”

Jackson Cty. v. Neville, 95 So. 626, 629 (Miss. 1923). Thus, “it follows that the Legislature

had the authority to establish the purpose of the tax and to direct where the funds would be

spent.” Pascagoula Sch. Dist. v. Tucker, 91 So. 3d 598, 606 (Miss. 2012) (citing Harrison

Cty. Sch. Dist. v. Long Beach Sch. Dist., 700 So. 2d 286 (Miss. 1997)). The County has no

inherent right to the proceeds of the fees authorized by House Bill 1002 aside from that

statute itself, so the distribution provisions of House Bill 1002 do not constitute a deprivation

of any property right. This argument is without merit.

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¶19. The County also cites Article 3, Section 32, which provides, “The enumeration of

rights in this constitution shall not be construed to deny and impair others retained by, and

inherent in, the people.” Miss. Const. art. 3, § 32 (1890). However, the County does not

explain how this provision applies to the instant case. None of the cases cited by the County

discusses the application of Article 3, Section 32, and the County’s discussion of this

provision is almost nonexistent. The County merely references Article 3, Section 32 as part

of its general argument that House Bill 1002 violates its right to due process. Because the

County has failed to support its argument with sufficient authority, this particular argument

is procedurally barred. See Boutwell v. Boutwell, 829 So. 2d 1216, 1223 (Miss. 2002) (citing

Pickering v. Industria Masina I Traktora, 740 So. 2d 836, 848 (Miss. 1999)) (“Failure to

cite authority in support of claims of error precludes this Court from considering the specific

claim on appeal.”).

B. Whether House Bill 1002 grants a donation or
“unauthorized payment” to the Town and the School
District.

¶20. The County asserts that House Bill 1002 requires it to make unconstitutional donations

to the Town and the School District. This claim is somewhat related to the County’s due-

process argument presented in Issue I(A) above, as it is based on the premise that the

provisions of House Bill 1002 require it to give away money that it otherwise would have the

right to keep for itself. In support of this argument, the County relies on Article 4, Sections

66 and 96 of the Mississippi Constitution. While the County presents its arguments

12
concerning these two provisions somewhat interchangeably, it is better to discuss them

separately, as they do not explicitly govern the same subject matter.

1. Article 4, Section 66

¶21. The County argues that the distributions required by House Bill 1002 constitute

donations to the Town and the School District in violation of Article 4, Section 66 of the

Mississippi Constitution, which provides, “No law granting a donation or gratuity in favor of

any person or object shall be enacted except by the concurrence of two-thirds of the members

elect of each branch of the Legislature, nor by any vote for a sectarian purpose or use.” Miss.

Const. art. 4, § 66 (1890). “The term ‘donation or gratuity’ implies absence of consideration,

the transfer of money or other things of value from the owner to another without any

consideration.” Craig v. Mercy Hosp.-Street Mem’l, 45 So. 2d 809, 814 (Miss. 1950)

(emphasis added). Of course, “[i]f there is no ‘donation or gratuity’ involved in the instant

case, then Section 66 has no application at all.” Id. It also is critical to note that Article 4,

Section 66 does not impose an outright prohibition against all laws granting donations and

gratuities but only those enacted “for a sectarian purpose or use.” Miss. Const. art. 4, § 66

(1890). A law not falling within this prohibition simply must receive the requisite support

from both houses of the Legislature to be valid. Id.

¶22. The County does not argue that the distributions required by House Bill 1002 are for

a sectarian purpose or use, and no evidence in the record would support such an argument.

Thus, the only other limit on the Legislature’s authority under Article 4, Section 66 is the

requirement that a statute must receive the support of “two-thirds of the members elect of each

13
branch of the Legislature.” Miss. Const. art. 4, § 66 (1890). But the voting requirement of

Article 4, Section 66 is not a justiciable question. Turner v. City of Hattiesburg, 53 So. 681,

682-83 (Miss. 1910) (“It is alleged that chapter 120 failed to receive the concurrence of two-

thirds of each branch of the Legislature, and therefore was not passed in accordance with

section 66 of the Constitution of 1890 . . . . [T]his objection to the act does not raise a judicial

question.”). As no argument is advanced that under Article 4, Section 66, the statute grants

a donation or gratuity for a sectarian purpose or use, this argument fails.

2. Article 4, Section 96

¶23. Article 4, Section 96 provides, in relevant part, “The Legislature shall never grant extra

compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after

service rendered or contract made, nor authorize payment, or part payment, of any claim under

any contract not authorized by law . . . .” Miss. Const. art. 4, § 96 (1890). While this

provision specifically mentions only the Legislature, this Court has held that it applies equally

to all subordinate state agencies created by the Legislature. Clark v. Miller, 105 So. 502, 505

(Miss. 1925). The County’s argument here essentially mirrors the argument it presented

concerning Article 4, Section 66 – the distributions required by House Bill 1002 qualify as

“extra compensation,” given to the County and School District without consideration.

¶24. Article 4, Section 96 is not subject to a reasonable interpretation that would support

the County’s argument that the distributions required by House Bill 1002 are unauthorized

payments. This Court consistently has interpreted Article 4, Section 96 as applying in the

context of employment and contractual relationships, that is, to prohibit governmental entities

14
from making unauthorized payments, such as bonuses, “fifty-third paychecks,” retroactive

raises, and compensation above a contracted rate, to government employees or other

individuals or entities contracted for government work. See, e.g., Nichols v. Patterson, 678

So. 2d 673 (Miss. 1996) (holding that municipality’s practice of paying employees a “fifty-

third paycheck” violated Article 4, Section 96, and could not be considered compensation for

services rendered, as the extra check was not included in employees’ payroll salaries);

Golding v. Salter, 107 So. 2d 348, 356-57 (Miss. 1958) (holding that county hospital had no

authority to pay its employees Christmas bonuses); State, for Use of Wimberly v. White, 157

So. 472, 474 (Miss. 1934) (holding that Senate resolution granting additional compensation

over the salary provided by statute to an employee of the Governor’s Office violated Article

4, Section 96); Moore v. Walley, 120 So. 197, 198 (Miss. 1929) (holding that the Legislature

violated Article 4, Section 96 by reimbursing the state land commissioner for amounts paid

out during the previous year to hire additional employees, as he was allowed one deputy by

law); Miller, 105 So. at 504 (holding that Yazoo Mississippi Delta Levee Board’s payment

of additional compensation in excess of the contracted amount to a construction contractor

was unconstitutional). This interpretation is in line with the provision’s plain language. On

the other hand, Article 4, Section 96 never has been interpreted to limit the Legislature’s

authority to direct the distribution of statutory fees which, as previously discussed, are not

property of the County. See Neville, 95 So. at 629. The County has failed to meet its burden

of proving beyond a reasonable doubt that House Bill 1002 directly conflicts with Article 4,

Section 96.

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 C. Whether House Bill 1002 suspends general laws.

¶25. In its third assignment of error on appeal, the County argues that House Bill 1002

unconstitutionally “suspends” certain general laws in violation of Article 4, Section 88 of the

Mississippi Constitution. As an initial matter, we note that Article 4, Section 88 has no direct

application to this case. That provision merely authorizes the Legislature to enact general

laws:

The Legislature shall pass general laws, under which local and private interest
shall be provided for and protected, and under which cities and towns may be
chartered and their charters amended, and under which corporations may be
created, organized, and their acts of incorporation altered; and all such laws
shall be subject to repeal or amendment.

Miss. Const. art. 4, § 88 (1890). The suspension of general laws is addressed specifically in

the preceding constitutional provision.

¶26. Article 4, Section 87 sets certain limitations on the Legislature’s authority to enact

special legislation or suspend general laws:

No special or local law shall be enacted for the benefit of individuals or
corporations, in cases which are or can be provided for by general law, or where
the relief sought can be given by any court of this State; nor shall the operation
of any general law be suspended by the Legislature for the benefit of any
individual or private corporation or association, and in all cases where a general
law can be made applicable, and would be advantageous, no special law shall
be enacted.

Miss. Const. art. 4, § 87 (1890). As the above-quoted language clearly indicates, Article 4,

Section 87 applies “only where there has been a local or private law enacted for the benefit

of ‘private individuals or corporations.’” Bond v. Marion Cty. Bd. of Supervisors, 807 So.

2d 1208, 1217 (Miss. 2001) (quoting Miss. Const. art. 4, § 87 (1890)). “We think the purpose

16
of section 87 was to prevent local and special laws for such corporations as were not public

in their nature. The Legislature has usually exercised full control over municipal

corporations; the functions of both a municipal corporation and the Legislature being entirely

public in their nature.” Feemster v. City of Tupelo, 83 So. 804, 806 (Miss. 1920). The Court

in Feemster further explained:

Whatever mischief may lie in the passing of special bills or laws of the kind
here involved (and it may be conceded that such acts are not wholesome as a
rule), the Constitution . . . vests in the Legislature, and not the court, the
function of deciding this question, and we cannot refuse to enforce any law
because merely in our judgment a general law would be better than a special
one. The Legislature has been recognized by the Constitution makers as being
the best equipped to deal with the wisdom of enacting special laws rather than
general laws, except in cases specifically provided for in the Constitution.

Id. If this Court finds that Article 4, Section 87 does not apply to a statute, it must abide by

the mandate of Article 4, Section 89: “If a bill is passed in conformity to the requirements

hereof, other than such as are prohibited in the next section, the courts shall not, because of

its local, special, or private nature, refuse to enforce it.” Miss. Const. art. 4, § 89 (1890).

¶27. “In determining the beneficiary of private or local laws, we consider: (1) to whom the

legislation is directed or applied and (2) whether the aim or thrust of the bill is to benefit the

public.” Oxford Asset Partners, 970 So. 2d at 121 (citing Bond, 807 So. 2d at 1217). House

Bill 1002 plainly applies to two specific governmental entities: Tunica County and the Town

of Tunica. Additionally, while the purpose of House Bill 1002 is not explicitly stated, its

provisions make clear that its aim is to fund the increased infrastructural needs associated with

legalized gambling within Tunica County. Accordingly, we find that Article 4, Section 87 has

no application here as it relates to the suspension of general laws.

17
¶28. Even assuming for argument’s sake that Article 4, Section 87 does apply in this case,

the County’s argument still is without merit. A specific requirement triggering the application

of Article 4, Section 87 is the “suspension” of a general law. The term “suspend,” as used in

this provision, means “[t]o interrupt; to cause to cease for a time; to postpone; to stay, delay,

or hinder; to discontinue temporarily . . . .” In re Validation of $15,000,000 Hosp. Revenue

Bonds v. City of Hattiesburg, 361 So. 2d 44, 49 (quoting Black’s Law Dictionary (rev. 4th

ed. 1968)). The County claims that House Bill 1002 suspends the operation of two general

statutes. First, the County cites Section 19-3-40 of the Mississippi Code, also known as the

“County Home Rule.” Section 19-3-40 sets out the powers and duties of county boards of

supervisors and explicitly prohibits them from taking certain actions, including “grant[ing]

any donation[.]” Miss. Code Ann. § 19-3-40(3)(f) (Rev. 2012). The County claims that House

Bill 1002 suspends the operation of Section 19-3-40(3)(f) by requiring it to donate funds to

the Town and the School District.

¶29. We find this argument to be without merit. First, the distributions required by House

Bill 1002 do not constitute donations, because the County has no inherent right to the entire

proceeds of the 3.2 percent fee. But even if this Court found that the distributions were

donations, the result would be the same. The County is allowed to take the actions otherwise

prohibited by the County Home Rule if “such actions are specifically authorized by another

statute or law of the State of Mississippi.” Miss. Code Ann. § 19-3-40(3). Thus, even if the

distributions required by House Bill 1002 could be considered donations, House Bill 1002 –

18
“a statute or law of the State of Mississippi” – specifically authorizes the County to distribute

them. Accordingly, this argument is without merit.

¶30. Next, the County cites Section 75-76-195, a provision of the Mississippi Gaming

Control Act that authorizes counties and municipalities to collect license fees from casinos.

Miss. Code Ann. § 75-76-195(1) (Rev. 2016). Under this statute, municipalities are

authorized to impose a revenue-based fee, which fluctuates between .4 percent and .8 percent,

on all casinos operating within their municipal borders. Id. Likewise, counties are authorized

to impose the same fee on all casinos operating within the unincorporated areas of the county.

Id. Here, the County argues that the Town is not entitled to collect the fee authorized by

Section 75-76-195 because no casinos operate within the Town’s municipal borders. The

County also points out that, under Section 75-76-197, the Gaming Control Act’s distribution

provision, it is not required to distribute any of the fees it collects under Section 75-76-195

to the Town. See Miss. Code Ann. § 75-76-197(b) (Rev. 2016) (“Fees designated as ‘local

government fees’ remitted by licensees who are not located within an incorporated

municipality shall be distributed to the county in which the licensee is located.”). According

to the County, House Bill 1002 suspends these two provisions of the Gaming Control Act by

allowing the Town to collect fees from casinos that do not operate within the Town’s

municipal borders.

¶31. We find this argument to be without merit. The statutory scheme at issue in this case

is similar to the one presented in In re Validation of $15,000,000 Hospital Revenue Bonds

(Methodist Hospital Project) Series 1978, City of Hattiesburg, Forrest and Lamar Counties,

19
Mississippi, 361 So. 2d 44 (Miss. 1978), in which this Court reviewed the constitutionality

of special legislation authorizing the City of Hattiesburg to issue bonds to provide funds for

the purpose of acquiring hospital facilities, with the principal, interest, and related expenses

of the bonds to be paid from the revenues to be derived form the lease of the facilities. The

appellant argued that this legislation violated Article 4, Section 87 by suspending a general

law which provided a different method through which municipalities could acquire and own

hospitals. Id. at 47. This Court rejected that argument, finding that the private legislation

“provided the City of Hattiesburg an alternative method of raising funds for the purpose of

acquiring hospital facilities in that municipality. It is clear that the municipal government

might have proceeded under the general law or, at its election, might have proceeded under

the terms of the Local and Private Act.” Id. at 49.

¶32. Similarly, House Bill 1002 and Section 75-76-195 are separate statutes that authorize

the County to impose two separate fees on casinos. In other words, the fee authorized by

House Bill 1002 operates in addition to, and not in replacement of, the fee authorized by

Section 75-76-195. The County does not cite any authority that would prohibit it from

imposing both fees. In addition, the distribution provisions of Section 75-76-197 apply only

to “gross revenue fees collected under the provisions of Section 75-76-195[.]” Miss. Code

Ann. § 75-76-197. The fee collected under House Bill 1002 obviously is not “collected under

the provisions of Section 75-76-195,” so its own distribution provisions apply and do not

conflict with the Gaming Control Act. Accordingly, House Bill 1002 does not suspend these

provisions of the Gaming Control Act.

20
¶33. The County also asserts that House Bill 1002 does not comply with the so-called In

re Validation test applied by this Court to review special legislation that indirectly benefits

private parties. See Oxford City Partners, 970 So. 2d at 122 (citing In re Validation, 465 So.

2d at 1017). The In re Validation test provides that “[t]he Legislature may suspend a general

law by a private law that concerns the same subject matter so long as ‘(1) the object and

purpose of each act is consistent with the other; and (2) where the differences between them

are primarily procedural and minor.’” Oxford City Partners, 970 So. 2d at 122 (quoting Bond,

807 So. 2d at 1219 (citing In re Validation, 465 So. 2d at 1017)). Of course, the application

of this test is triggered by the suspension of a general law, and we find that no general law is

suspended by House Bill 1002.

¶34. We recognize that the County raises essentially this same argument as a separate issue

later in its brief, claiming that House Bill 1002 “conflicts” with the Gaming Control Act and

“exempts” the Town from following it. The County also included in the following allegation

in the Statement of Issues section of its appellate brief: “Whether H.B. 1002 (2004) is in direct

contradiction with Miss. Code Ann. § 21-17-5, Mississippi’s “Home Rule” statute.”4

However, this issue does not appear in the Argument sections of the County’s briefs.

Moreover, the County provides no authority distinguishing these arguments from the

constitutional arguments just discussed. Accordingly, we will not discuss these “separate”

arguments.

4
Section 21-17-5 of the Mississippi Code is the Municipal Home Rule statute, not
the County Home Rule Statute. See Miss. Code Ann. § 21-17-5 (Rev. 2015).

21
 D. Whether the Legislature failed to comply with the
constitutional requirements for enacting House Bill 1002.

¶35. The County claims that the Legislature failed to follow the constitutionally required

procedures for enacting local and private legislation when it passed House Bill 1002. In

support of this argument, the County cites Article 4, Section 89 of the Mississippi

Constitution, which provides:

There shall be appointed in each house of the Legislature a standing committee
on local and private legislation; the House committee to consist of seven
representatives, and the Senate committee of five Senators. No local or private
bill shall be passed by either House until it shall have been referred to said
committee thereof, and shall have been reported back with a recommendation
in writing that it do pass, stating affirmatively the reasons therefor, and why the
end to be accomplished should not be reached by a general law, or by a
proceeding in court; or if the recommendation of the committee be that the bill
do not pass, then it shall not pass the House to which it is so reported unless it
be voted for by a majority of all members elected thereto. If a bill is passed in
conformity to the requirements hereof, other than such as are prohibited in the
next section, the courts shall not, because of its local, special, or other private
nature, refuse to enforce it.

Miss. Const. art. 4, § 89 (1890). The County argues that House Bill 1002 is unenforceable

because it was not enacted in compliance with the above requirements. Specifically, the

County alleges that there are no “legislative findings set forth in House Bill 1002” as to why

the end to be accomplished through its passage could not be reached by a general law or a

court proceeding.

¶36. This argument is without merit for two reasons. First, Article 4, Section 89 is a rule

of legislative procedure not subject to judicial review. The judicial branch of government “is

not an overseer of the legislature during its labors, but it takes its completed work, and tries

it by the constitution, starting with the conclusive and irrebuttable presumption that as to all

22
requirements of that instrument they who swore to observe it did it.” Hunt v. Knight, 70

Miss. 298, 11 So. 608, 610 (Miss. 1892). In this regard, this Court has long held that it will

not consult legislative journals to determine whether a law was passed in accordance with

Article 4, Section 89. See State v. Jackson, 81 So. 1, 2 (Miss. 1919). “[T]he Court will not

invalidate a statute by ascertaining from the journals of the legislature whether that body

complied with section 89 . . . . ” Alden v. Lewis, 182 So. 2d 600, 607 (Miss. 1966). With the

exception of the substantive considerations set out in Article 4, Sections 87 and 90, which are

discussed elsewhere in this opinion, the passage of House Bill 1002 “was a matter for the

Legislature and this Court will enforce the legislative mandate of Mississippi Constitution,

Article 4, Section 89 (1890).” City of Hattiesburg, 361 So. 2d at 48.

E. Whether House Bill 1002 provides support for a common
school.

¶37. The County argues that House Bill 1002’s requirement that certain percentages of the

gaming fee’s proceeds be used for certain educational purposes violates Article 4, Section

90(p) of the Mississippi Constitution. Article 4, Section 90 sets forth certain matters for which

the Legislature shall not pass local, private, or special laws. Miss. Const. art. 4, § 90 (1890).

With regard to the instant case, Section 90(p) requires that “[p]roviding for the management

or support of any private or common school, incorporating the same, or granting such school

any privileges” can be accomplished only through general laws.5 Miss. Const. art. 4, § 90(p)

5
“[A] law is general in the constitutional sense, which applies to and operates
uniformly on all members of any class of persons, places, or things requiring legislation
peculiar to itself in matters covered by the law . . . . [T]hey operate on every person who is
brought within the relations and circumstances provided for.” Toombs v. Sharkey, 106 So.
273, 275 (Miss. 1925) (quoting 25 R.C.L. p. 815, § 66).

23
(1890). The County argues that the fee distributions set aside for educational purposes violate

Article 4, Section 90(p). This argument applies only to the twelve-percent distribution set

aside for “educational purposes within Tunica County” and the two-percent distribution set

aside for “teacher’s salary supplementation and teacher training” and has no bearing on the

constitutionality of the ten-percent distribution to the Town required by House Bill 1002.

¶38. This particular area of law is relatively undeveloped, as this Court has had only a few

occasions to review claims under Article 4, Section 90(p). However, in all but one of the

cases in which this Court has found a violation of Article 4, Section 90(p), the statute under

review granted specific privileges or funding to a specific named school or school district.

See Hewes v. Langford, 62 So. 358 (Miss. 1913) (striking down a private law authorizing the

Harrison County school board to establish a separate school district in Harrison County and

setting the geographic limits of the district); Scarborough v. McAdams Consol. Sch. Dist.,

87 So. 140 (Miss. 1921) (holding that a private law authorizing the issuance of bonds for the

purpose of building an agricultural high school in the McAdams consolidated school district

violated Article 4, Section 90(p)); Hamilton v. Bd. of Supervisors of Lafayette Cty., 96 So.

465 (Miss. 1923) (holding that private legislation validating bonds for the Taylor consolidated

school district was unconstitutional); Williamson v. Howell, 124 So. 319, 321 (Miss. 1929)

(striking down private legislation conferring special privileges on the Arnold Line

consolidated school district). This fact was acknowledged in Board of Education of Benton

County v. State Educational Finance Commission, 138 So. 2d 912, 924 (Miss. 1962), in

which the Court was asked to review the constitutionality of private legislation setting the

procedure for challenging student-transfer decisions of school districts. The appellant argued

24
that the statute violated Article 4, Section 90(p) by excluding from its terms all children living

in a county which is not organized under a “county unit system.” Id. In support of this

argument, the appellant cited Scarborough and Howell, both of which are mentioned above.

Id. This Court rejected the appellant’s argument, finding that the statues at issue in those

cases named a particular school and provided benefits to that school, to the exclusion of all

others. Id.

¶39. The sole exception to the above trend is found in State Board of Education v. Pridgen,

63 So. 416 (Miss. 1913), in which this Court reviewed the constitutionality of private

legislation appropriating funds to supplement the state common school fund. At the time of

Pridgen, Article 8, Section 206 of the Mississippi Constitution provided for a “county

common school fund which shall consist of the poll tax, to be retained in counties where the

same is collected,” as well as a “state common school fund, to be taken from the general fund

in the state treasury,” the combination of which “shall be sufficient to maintain the common

schools for the term of four months in each scholastic year.”6 Id. at 417 (quoting Miss. Const.

art. 8, § 206). Proceeds of the state fund were distributed among county and separate school

districts “in proportion to the number of educable children in each[.]” Id. County and separate

school districts also were authorized to levy an additional tax to maintain their schools past

the term of four months. Id. In 1912, the Legislature passed special legislation appropriating

$5,000 “to be used ‘when any county in the state, administering its school on the present basis

of state aid, shall have exhausted all money appropriated by the state for common school

6
The county common school fund since has been removed from Article 8, Section
206.

25
purposes, and whose schools cannot run for the constitutional period of four months.’” Id.

Under the terms of this legislation, and upon the request of the Jackson County

Superintendent of Education, the State Board of Education issued an order directing the

auditor of public accounts to pay the Jackson County treasurer roughly $2,000 from the

supplemental fund. Id. A private citizen filed a complaint for an injunction against this

payment, and the chancellor granted the complaint. Id.

¶40. On appeal, this Court held that the supplemental common school fund violated Article

8, Sections 205 and 206, and Article 4, Section 90(p). Id. at 418. This Court held that the

scheme for establishing and funding common schools set forth in Article 8, Sections 205 and

206 was “necessarily exclusive, otherwise the Legislature could ignore the plan of the

Constitution and provide another and essentially different plan for the support of the common

schools . . . . [T]he Legislature has no power to adopt another and different basis for state aid,

which ignores the constitutional unit.” Id. at 417-18. In addition, the Court acknowledged

Article 4, Section 90 “seems to make clear that the support of the common schools by

appropriation from the state treasury can only be done in the manner and upon the plan

prescribed by sections 205 and 206.” Id. at 418. This Court noted that the legislation in

question created a class of common schools – those that could not afford to stay open for the

constitutionally required term of four months – and rewarded that class with benefits not

available to other common schools under the law. Id.

¶41. As recognized by this Court in Benton County, House Bill 1002 is distinguishable

from the majority of cases discussing Article 4, Section 90(p) because it does not provide

direct support to any specific school or school district. The Tunica County School District is

26
not mentioned anywhere in House Bill 1002. Stated another way, nothing in House Bill 1002

requires the County to distribute any money to the School District. The statute merely

requires certain percentages of the gaming fee to be expended for “educational purposes

within Tunica County” and “teacher’s salary supplementation and teacher training.” In

addition, unlike the statute in Pridgen, the distributions in House Bill 1002 are not direct

appropriations from the Legislature, so they do not directly conflict with the common school

funding scheme established in Article 8, Section 206, which seems to have been the Court’s

primary concern in Pridgen.

¶42. Ultimately, we must return to the foundational principle that acts of the Legislature are

cloaked with a strong presumption of constitutionality. Ne. Elec. Power Ass’n, 704 So. 2d

at 65. Moreover, this Court must construe House Bill 1002 in a way that would render it

constitutional, if possible. Loden, 279 So. 2d at 640. While there may be some doubt as to

whether House Bill 1002 conflicts with Article 4, Section 90(p), doubt alone is not sufficient

to render the statute unconstitutional. Moore, 658 So. 2d at 887. It must be proved beyond

reasonable doubt that House Bill 1002 is in direct conflict with a provision of the

Constitution, and we do not find that the County has met this burden.

II. Whether the current Tunica County Board of Supervisors is bound
by House Bill 1002.

¶43. “Under the common law in Mississippi, governing bodies, whether they be elected or

appointed, may not bind their successors in office by contract, unless expressly authorized by

law, because to do so would take away the discretionary rights and powers conferred by law

upon successor governing bodies.” Ne. Mental Health-Mental Retardation Comm’n v.

27
Cleveland, 187 So. 3d 601, 604 (Miss. 2016) (citations omitted). Relying generally on this

principle, the County argues that it cannot be bound by a previous Board of Supervisors’

decisions to petition the Legislature to adopt House Bill 1002 and to comply with the law’s

distribution provisions.

¶44. This argument is easily dismissed, because House Bill 1002 is an act of the Legislature,

not the Tunica County Board of Supervisors. “[C]ities and counties are subject to legislative

control, and have no actual powers which forbid legislative control of their affairs in all

respects.” Gully v. Williams Bros., 180 So. 400, 406 (Miss. 1938). The cases cited by the

County are inapplicable to the instant case, as they address matters of contract, not legislation.

See, e.g., Biloxi Firefighters Ass’n v. City of Biloxi, 810 So. 2d 589, 592 (Miss. 2002)

(striking down collective-bargaining agreement between Biloxi City Council and municipal

firefighters, finding that it contracted away successor administrations’ right to maintain and

regulate a fire department); Tullos v. Town of Magee, 179 So. 557, 558 (Miss. 1938) (holding

that a lifetime employment contract between the Town of Magee and a water-pump operator

was unenforceable as binding successor administrations). “[W]here it is optional with a

county to be bound or not by a legislative act, it cannot assume to be bound by a part of the

act, without at once being liable to the remaining provisions.” State v. Bd. of Supervisors of

Grenada Cty., 105 So. 541, 546 (Miss. 1925) (quoting 15 C.J. § 53, at 420). House Bill 1002

does not require the County to collect a 3.2 percent gaming fee from casinos operating within

its borders. But, because it has availed itself of that authority, it is bound by the attendant

obligation to distribute the fee as required by law. The County cannot disregard the language

of an authorizing statute merely because it does not agree with the policy behind it.

28
 III. Whether the trial court erred in granting the Town’s motion for
summary judgment.

¶45. On July 4, 2015, after the hearing on the parties’ competing motions for injunctive

relief, the trial court issued an opinion finding that the County had failed to prove beyond a

reasonable doubt that House Bill 1002 was unconstitutional and granting the defendants’

requested injunctive relief. The trial court issued an order to the same effect on July 28, 2015.

In response, the Town moved for summary judgment, arguing that the County’s complaint

should be dismissed because no dispute remained as to any of the material facts of the case.

A hearing on this motion was never set. In addition, the County never responded to the

motion, instead filing a notice of appeal in response to the trial court’s July 28 order. On

December 3, 2015, the trial court entered an order granting summary judgment to the

defendants. The order indicates that the court previously had granted the Town’s motion but

had declined to file it in order to allow the County more time to respond. But when the

County again failed to respond, the trial court reinstated its order granting summary judgment

to the defendants. On appeal, the County argues that the trial court erred in granting summary

judgment to the defendants, and particularly in granting summary judgment without a hearing.

¶46. The County’s argument is without merit. Rule 56 of the Mississippi Rules of Civil

Procedure neither explicitly nor implicitly provides the right to a hearing on a motion for

summary judgment. Adams v. Cinemark USA, Inc., 831 So. 2d 1156, 1162 (Miss. 2002).

Motion practice is more generally governed by Rule 78, and this Court previously has held

that Rule 78 does provide for the right to a hearing on a summary judgment motion. See id.

at 1163. However, Adams has limited continuing application. In 2002, at the time Adams

29
was decided, Rule 78 provided, in part, “To expedite business, the court may make provision

by rule or order for the submission and determination of motions not seeking final judgment

without oral hearing upon brief written statements of reasons in support and opposition.” Id.

at 1163 (citing Miss. R. Civ. P. 78 (2002)) (emphasis added). A year after Adams was

decided, Rule 78 was amended, and the above-emphasized language was removed. See Miss.

R. Civ. P. 78. Accordingly, Rule 78 no longer supports the proposition that a trial court is

precluded from ruling on a party’s motion for summary judgment without holding a hearing.

¶47. But even under Adams, the trial court’s failure to hold a hearing on the summary

judgment motion would amount only to harmless error. In Adams, this Court held that the trial

court’s error in failing to hold an oral hearing on the defendant’s summary judgment motion

was harmless because the plaintiff presented no evidence which could have defeated the

defendant’s motion. Adams, 831 So. 2d at 1164. Moreover, “[i]t is highly unlikely that any

material or pertinent facts would have been disclosed at a summary judgment hearing had it

been held.” Id. The same is true here. The only claims raised in the County’s complaint are

questions of statutory and constitutional interpretation, which are pure questions of law.

Oxford Asset Partners, 970 So. 2d at 120. Those claims were discussed thoroughly at the

hearing on the parties’ motions for injunctive relief. After that hearing, the trial court issued

an order finding that the County’s claims lacked merit. A hearing on the Town’s motion for

summary judgment would have focused on the same arguments already presented by the

parties and resolved by the trial court.

IV. Whether the trial court erred in awarding attorney’s fees and
interest to the defendants.

30
¶48. In its answer to the County’s complaint, the Town requested that “all costs and

attorney’s fees be assessed against Tunica County.” In its opinion granting the Town’s and

School District’s requests for injunctive relief, the trial court also found that the County

should be assessed attorney’s fees, as well as interest “on the sums which have not been

properly paid to the Town of Tunica and the Tunica County School District as directed by

House Bill 1002.” In a subsequent order, the trial court instructed the County to remit all

funds it had been withholding in violation of House Bill 1002, totaling $1,104,203.50, along

with interest on that amount at a rate of eight percent per annum. The trial court again ordered

the County to pay all attorney’s fees for which the Town and School District had become

liable due to the County’s filing of the instant case, instructing the defendants to file affidavits

setting forth their attorney’s fees. On appeal, the County argues that the trial court erred in

awarding attorney’s fees and interest to the Town and the School District.

A. Attorney’s Fees

¶49. Mississippi follows the general rule that, in the absence of a contractual agreement or

statutory authority, attorney’s fees may not be awarded except in cases in which punitive

damages are proper. Grisham v. Hinton, 490 So. 2d 1201, 1205-06 (Miss. 1986) (collecting

citations). No contract exists in this case that would authorize an award of attorney’s fees. We

discuss the two remaining grounds for attorney’s fees, statutory authority and punitive

damages, below.

31
¶50. On appeal, the appellees7 assert that the trial court’s award of attorney’s fees was

authorized by statute. Specifically, they rely on the Litigation Accountability Act, which

authorizes a court to impose attorney’s fees on a party who has filed a frivolous claim:

Except as otherwise provided in this chapter, in any civil action commenced or
appealed in any court of record in this state, the court shall award, as part of its
judgment and in addition to any other costs otherwise assessed, reasonable
attorney’s fees and costs against any party or attorney if the court, upon the
motion of any party or on its own motion, finds that an attorney or party
brought an action, or asserted any claim or defense, that is without substantial
justification, or that the action, or any claim or defense, asserted, was
interposed for delay or harassment, or if it finds that an attorney or party
unnecessarily expanded the proceedings by the other improper conduct
including, but not limited to, abuse of discovery procedures available under the
Mississippi Rules of Civil Procedure.

Miss. Code Ann. § 11-55-5(1) (Rev. 2012) (emphasis added).8 A claim is without substantial

justification if it is “frivolous, groundless in fact or in law, or vexatious, as determined by the

court.” Miss. Code Ann. § 11-55-3(a).

¶51. The appellees assert that the County’s lawsuit was filed without substantial justification

as a tactic to delay the distributions required by House Bill 1002, which it had been paying

regularly for the last twenty years. As evidence of the frivolity of the County’s suit, the

appellees cite the County’s repeated references to the steady decline of the gaming industry

in Tunica County over the past several years, a fact that is irrelevant to the constitutional

issues asserted in the County’s complaint. According to the appellees, the instant case was

7
Because this issue is irrelevant to the constitutionality of House Bill 1002, the State
did not provide an argument on this issue.
8
Similarly, Rule 11 of the Mississippi Rules of Civil Procedure authorizes an award
of attorney’s fees as recourse for a frivolous filing. See Miss. R. Civ. P. 11(b).

32
filed not because the County actually believes House Bill 1002 is unconstitutional, but

because it needs more money to meet its financial obligations.

¶52. We find that the appellees’ reliance on the Litigation Accountability Act is without

merit. The Litigation Accountability Act requires that, “[w]hen granting an award of costs and

attorney’s fees, the court shall specifically set forth the reasons for such award and shall

consider” a set of eleven statutory factors, “among others, in determining whether to assess

attorney’s fees and costs and the amount to be assessed.” Miss. Code Ann. § 11-55-7

(emphasis added). The trial court’s opinion and order granting attorney’s fees to the appellees

do not provide any basis for awarding attorney’s fees or a determination that the amount

awarded was appropriate. The order simply instructs the Town and the School District to file

affidavits setting out their attorney’s fees and directs the County to pay those amounts within

fifteen days of the entry of the order.9 Because the trial court did not make any of the findings

required by Section 11-55-7, we cannot affirm its award on this basis. See Leaf River Forest

Prods., Inc. v. Deakle, 661 So. 2d 188, 197 (Miss. 1995) (finding that a trial court’s award

of attorney’s fees could not be founded on the Litigation Accountability Act, because the

court did not make the findings required by Section 11-55-7); Miss. Empl. Sec. Comm’n v.

Culbertson, 832 So. 2d 519, 531 (Miss. 2002) (reversing a trial court’s award of attorney’s

9
This instruction is confusing, as it requires the County to pay the appellees’
attorney’s fees within fifteen days of the entry of the order without giving the appellees a
deadline to provide proof of their attorney's fees. The order was entered on July 24, 2015,
and filed on July 28, 2015, but the School District did not file its attorney-fee affidavit until
September 22, 2015, and the Town did not file its affidavit until November 10, 2015. The
Town filed an emergency motion on August 13, 2015, to compel the County to comply with
the trial court’s order, but as of that date neither of the appellees had provided any proof of
their attorney’s fees.

33
fees, where the trial court failed to “make any independent analysis as required under the

Litigation Accountability Act.”).

¶53. The School District presents an additional basis on which the trial court could have

granted an award of attorney’s fees. While conceding that no court ever enjoined the County

from making the distributions required by House Bill 1002, the School District claims that the

County effectively granted itself an injunction when it stopped making distributions in 2014.

Thus, the School District argues that attorney’s fees were warranted in this case because the

trial court essentially dissolved a wrongful injunction. In support of this argument, the School

District cites Rule 65(c) of the Mississippi Rules of Civil Procedure, which requires a party

seeking a preliminary injunction to pay a security bond:

No restraining order or preliminary injunction shall issue except upon the
giving of security by the applicant, in such sum as the court deems proper, for
the payment of such costs, damages, and reasonable attorney’s fees as may be
incurred or suffered by any party who is found to have been wrongfully
enjoined or restrained; provided, however, no such security shall be required of
the State of Mississippi or of an officer or agency thereof, and provided further,
in the discretion of the court, security may not be required in domestic relations
actions.

Miss. R. Civ. P. 65(c). But the School Board’s reliance on Rule 65(c) is misplaced. Rule

65(c) specifically references a court’s authority to grant preliminary injunctive relief upon the

payment of sufficient security. The County’s failure to make the distributions required by

House Bill 1002 is not analogous to an injunction.

¶54. We now turn to the issue of punitive damages. “[P]unitive damages are not favored

in the law and are to be allowed only with caution and within narrow limits.” Tideway Oil

Programs, Inc. v. Serio, 431 So. 2d 454, 460 (Miss. 1983). “Punitive damages may not be

34
awarded if the claimant does not prove by clear and convincing evidence that the defendant

against whom punitive damages are sought acted witch actual malice, gross negligence, which

evidences a willful, wanton or reckless disregard for the safety of others, or committed actual

fraud.” Miss. Code Ann. 11-1-65(1)(a). This Court has held that an actual award of punitive

damages is not a prerequisite for an award of attorney’s fees; rather, attorney’s fees are

warranted where “the awarding of punitive damages would have been justified,” even if

punitive damages are not awarded. Aqua-Culture Techs., Ltd. v. Holly, 677 So. 2d 171, 185

(Miss. 1996). In Holly, the trial court denied a party’s request for punitive damages but

granted an award of attorney’s fees. Id. at 184. In affirming this seemingly “inconsistent

result,” this Court provided the following reasoning:

A trial judge may validly find that, although the conduct of a defendant in a
given case is such that the awarding of punitive damages would be appropriate,
the actual awarding of additional monetary damages above the compensatory
damages would serve no purpose or otherwise be inappropriate. Nevertheless,
the trial judge may also validly find that the plaintiff should not have to suffer
the expense of litigation forced upon it by the defendant’s conduct, and
therefore determine that attorney fees should be awarded. A trial judge should
be granted the flexibility to find that, although the actual awarding of punitive
damages is inappropriate, the conduct of the defendant is so extreme and
outrageous that he, rather than the plaintiff, should bear the expense of
litigation.

Id. at 184-85. Critically, the question of whether punitive damages were appropriate was

before the trial court in Holly, as a party had requested such an award. And this Court found

that “the conduct of the defendants in this case was of a nature such as to make the awarding

of punitive damages appropriate, even though the trial judge chose not to do so.” Id. at 184.

¶55. Similarly, in Pursue Energy Corp. v. Abernathy, 77 So. 3d 1094 (Miss. 2011), the

plaintiffs specifically requested an award of punitive damages, and, after a hearing on the

35
matter, the trial court found that the defendant’s conduct could warrant punitive damages. Id.

at 1098. However, the trial court ultimately denied the plaintiff’s request for punitive damages

and awarded attorney’s fees instead. Id. This Court affirmed the trial court’s award on appeal,

finding no error in the chancellor’s conclusion that the defendant’s conduct was “willful,

malicious and intentional.” Id. at 1100. Then, relying on the above-quoted language from

Holly, this Court found that the chancellor properly awarded attorney’s fees “in lieu of

punitive damages.” Id.

¶56. More recently, in Schwartzfager v. Saul, 213 So. 3d 55 (Miss. 2017), this Court

affirmed an award of attorney’s fees in a contract dispute case in the absence of an award of

punitive damages.10 The trial court in Saul found that a hearing on the issue of attorney’s fees

was necessary due to the egregious nature of the defendant’s conduct. Id. at 62. The parties

agreed to submit the issue of attorney’s fees to the trial court, and the plaintiff presented

substantial evidence of his attorney’s fees for the trial court’s consideration. Id. at 67. The

trial court then issued an opinion and judgment finding that the defendant’s actions were

egregious and intentional, “the ultimate bad faith in disrupting someone else’s life for the sole

purpose of benefitting his own,” that the plaintiff was entitled to attorney’s fees. Id. Based

on that finding, this Court found no abuse of discretion in the trial court’s decision. Id.

¶57. Holly, Abernathy, and Saul make clear that the County and School District were not

required to receive an award of punitive damages to be entitled to attorney’s fees. However,

these cases also recognize that, where attorney’s fees are being awarded in the nature of

10
This Court’s opinion in Saul does not reflect whether the plaintiff in that case
requested punitive damages.

36
punitive damages, which otherwise are granted “only with caution and within narrow limits,”

Serio, 431 So. 2d at 460, such an award must be justified by factual determinations by the trial

court. The Holly Court found that a trial court “should be granted the flexibility to find that

. . . the conduct of the defendant is so extreme and outrageous that he, rather than the plaintiff,

should bear the expense of litigation.” Holly, 677 So. 2d at 185 (emphasis added). In line

with this reasoning, the trial court in Abernathy found that the defendant’s conduct was

“willful, malicious and intentional” and granted attorney’s fees to the plaintiff “in lieu of

punitive damages.” Abernathy, 77 So. 3d at 1100. Similarly, the court in Saul found that the

defendant’s actions were done in “ultimate bad faith.” Saul, 213 So. 3d at 67. Such a finding

is necessary for this Court to perform a proper review of the trial court’s decision to award

attorney’s fees in the nature of punitive damages, and the trial court in the instant case simply

failed to make any findings supporting its award of attorney’s fees.

¶58. Furthermore, even if the trial court had provided a proper legal basis for its award of

attorney’s fees for this Court to review, it also failed to make any findings regarding the

reasonableness of the amounts awarded. An award of attorney’s fees must be based on

credible evidence, and the trial court must support such an award with factual determinations.

Young v. Huron Smith Oil Co., Inc., 564 So. 2d 36, 40 (Miss. 1990). See also Miss. Code

Ann. § 9-1-41 (Rev. 2014) (an award of attorney’s fees shall be “based on the information

already before [the trial court] and the court’s own opinion based on experience and

observation.”). Rule 1.5 of the Mississippi Rules of Professional Conduct sets forth a list of

37
eight factors, also known as the McKee factors,11 to be considered in determining the

reasonableness of an attorney’s fee. Miss. R. of Prof’l Conduct 1.5(a). This Court has

mandated that a trial court consider these factors, and we have not hesitated to vacate an

award of attorney’s fees when the trial court fails to do so. See BellSouth Pers. Commc’n,

LLC v. Bd. of Supervisors of Hinds Cty., 912 So. 2d 436, 448 (Miss. 2005); Miss. Power &

Light Co. v. Cook, 832 So. 2d 474, 487 (Miss. 2002); Browder v. Williams, 765 So. 2d 1281,

1288 (Miss. 2000). “[T]rial court judges must follow the appropriate procedure and make the

requisite findings of fact necessary to insure a losing litigant is only made to compensate his

adversary for fees and expenses which were reasonably incurred.” BellSouth, 912 So. 2d at

448.

¶59. In this case, the trial court awarded attorney’s fees to the appellees without receiving

any evidence in support of those fees or making any determination as to the reasonableness

of the amounts requested. The affidavit filed by the School District indicates that it expended

$14,176 defending the County’s lawsuit, while the Town’s affidavit declares that it expended

$158,712 in the same time frame. These affidavits were filed months after the trial court

entered its order awarding attorney’s fees, and nothing in the record suggests that the trial

court ever reviewed these requests. Simply put, the trial court failed to make the factual

determinations necessary to support its award of attorney’s fees, as this Court has required.

¶60. Because the trial court made no specific findings concerning the appropriateness of an

award of attorney’s fees or the amount of that award, we must find that the trial court abused

11
See McKee v. McKee, 418 So. 2d 764, 767 (Miss. 1982).

38
its discretion in awarding attorney’s fees to the Town and the School District. Accordingly,

we vacate the trial court’s award of attorney’s fees and remand this case to the trial court for

further consideration consistent with this opinion.

B. Interest

¶61. As an initial matter, we note that the County has not offered any arguments or cited any

authority in either of its briefs on this issue. Accordingly, this issue is procedurally barred.

Boutwell, 829 So. 2d at 1223. Notwithstanding the procedural bar, Section 75-17-7 of the

Mississippi Code provides that judgments other than those founded on a sale or contract “shall

bear interest at a per annum rate set by the judge hearing the complaint from the date

determined by such judge to be fair but in no event prior to the filing of the complaint.” Miss.

Code Ann. § 75-17-7 (Rev. 2016). In City of Jackson v. Williamson, 740 So. 2d 818, 822

(Miss. 1999) (plurality opinion), this Court held that the State and its political subdivisions

may be assessed post-judgment interest on money judgments, absent an explicit statutory

exception. See also Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So. 2d

1077, 1094 (Miss. 2000) (affirming the plurality opinion in Williamson). Because the County

has failed to provide a specific statutory exception, we find that the trial court did not err in

awarding post-judgment interest on the funds the County had withheld wrongfully from the

defendants.

CONCLUSION

¶62. For the foregoing reasons, we affirm the trial court’s grant of summary judgment and

award of interest. But we vacate the trial court’s award of attorney’s fees and remand this

39
case to the trial court for a determination of whether a legal basis for an award of attorney’s

fees exists and, if so, whether the amounts requested are reasonable.

¶63. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

RANDOLPH, P.J., KITCHENS, KING, MAXWELL, BEAM AND
CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY
COLEMAN, J.

DICKINSON, PRESIDING JUSTICE, CONCURRING IN PART AND
DISSENTING IN PART:

It is always a source of regret to me to be unable to concur in the conclusion
reached by a majority of my Associates in the decision of any case, which regret
is here more pronounced than usual for the reason that the construction placed
by the majority of my Associates on the section of the Constitution here in
question confers upon the Legislature the unlimited power to support the public
schools which I think it should have, but to so concur would cause me to violate
what seems to me the plain language of the Constitution, as well as some of the
most elementary rules for the construction of written instruments.12

¶64. The sentiment of Chief Justice Smith’s words penned in 1923 still rings true. In every

challenge to a statute’s constitutionality, the legislative enactment arrives clothed in a

presumption of validity;13 and only in rare cases where we find it unconstitutional beyond a

reasonable doubt, will we strike it down.14 This protective language provides comfortable

refuge, particularly when we are asked to strike down a statute serving an important public

12
Miller v. State, 130 Miss. 564, 94 So. 706, 710 (1923) (Smith, C.J., dissenting).
13
State ex rel. Hood v. Louisville Tire Ctr., Inc., 55 So. 3d 1068, 1072 (Miss. 2011)
(citing Fulgham v. State, 47 So. 3d 698, 701 (Miss. 2010)).
14
Louisville Tire Ctr., Inc., 55 So. 3d at 1072 (citing Richmond v. City of Corinth,
816 So. 2d 373, 377 (Miss. 2002) (citing Jones v. State, 710 So. 2d 870, 877 (Miss. 1998))).

40
interest. But, as Chief Justice Smith expressed nearly a century ago, our duty binds us to

interpret the Constitution faithfully by its text.15

¶65. Here, Article 4, Section 90(p) of the Mississippi Constitution is susceptible to a single

reasonable interpretation: It prohibits the Legislature from enacting local laws that make funds

available for private and public primary schools.16 House Bill 1002, clearly a local law,

earmarks fourteen percent of a 3.2 percent fee on gross gaming revenue in Tunica

County—and only in Tunica County—for educational purposes and teacher salaries in Tunica

County—and only in Tunica County.17

¶66. I leave it to others to debate whether it is wise policy to fund education in Tunica

County with tax revenues from casinos in Tunica County. But the Constitution forbids local

laws—such as the one at issue here—from making funds available for public primary schools.

And this one does exactly that. Because this portion of House Bill 1002 violates Article 4,

Section 90(p) of the Mississippi Constitution, I concur in part and dissent in part.

¶67. Article 4, Section 90(p) states:

The Legislature shall not pass local, private, or special laws in any of the
following enumerated cases, but such matters shall be provided for only by
general laws, viz.:

...

15
Hughes v. Hosemann, 68 So. 3d 1260, 1275 (Miss. 2011) (citing State ex rel.
Moore v. Molpus, 578 So. 2d 624, 639 (Miss. 1991) (“constitutional interpretation by this
Court is tied to the text of our constitution”).
16
Miss. Const. art. 4, § 90(p).
17
2004 Miss. Private and Local Laws ch. 920.

41
 (p) Providing for the management or support of any private or common
school, incorporating the same, or granting such school any privileges.18

¶68. The provision’s purpose seems clear to me. In adopting our Constitution, our citizens

wanted to ensure that statutes providing funding for schools, whether public or private,

applied the same to all counties and all school children, thereby removing from the

Legislature’s prerogative the ability to enact legislation that favored the school children of a

particular county, or group of counties.

¶69. Said another way, Article 4, Section 90 imposes a categorical bar on local, private, or

special laws for certain enumerated matters, including the support of private or public schools.

A local law is “[a] statute that relates to or operates in a particular locality rather than the

entire state.”19 House Bill 1002 clearly is a local law because, by its terms, it is limited to one

particular county—Tunica County.20 And because House Bill 1002 is a local law, it violates

Article 4, Section 90.

¶70. Article 4, Section 90(p) prohibits local laws “[p]roviding for the management or

support of any private or common school, incorporating the same, or granting such school any

privileges.”21 This Court has applied Article 4, Section 90(p) in several cases. Some

18
Miss. Const. art. 4, § 90(p).
19
Local Law, Black’s Law Dictionary 803 (abr. 9th ed.).
20
Compare Hewes v. Langford, 105 Miss. 375, 62 So. 358, 359–60 (1913) (“Chapter
288 of the Laws of 1912, by its terms, is confined in its operation to Harrison county alone.
Without disguise, it is a local law.”), with Miller, 94 So. at 710 (“the appropriation is a
general law, is not class legislation, nor a local or special law, since the funds are to equalize
public school terms throughout the state by a fair and equitable distribution, and may be used
for any school district in any county, or for all of them.”).
21
Miss. Const. art. 4, § 90(p).

42
concerned Article 4, Section 90(p)’s latter two prohibitions: “incorporating the same” and

“granting such school any privileges.”22 Those are not at issue here.

¶71. Instead, this case concerns Article 4, Section 90(p)’s prohibition of local laws

“[p]roviding for the . . . support of any private or common school.”23 This prohibition consists

of three basic elements: (1) the act the statute may not do—“[p]rovid[e] for”—(2) the thing

the statute may not provide—“support”—and (3) the entity the statute may not provide

support for—“any private or common school.”

¶72. In three cases, this Court has struck down local laws for “[p]roviding for the . . .

support of any private or common school.”24 In State Board of Education v. Pridgen, an

individual lodged an Article 4, Section 90(p) challenge against a statute that appropriated

$5,000 for a supplemental school fund available “‘when any county in the state, administering

its schools on the present basis of state aid, shall have exhausted all money appropriated by

the state for common school purposes, and whose schools cannot run for the constitutional

period of four months.’”25 This Court found that the statute violated Article 4, Section 90(p),

reasoning:

22
See Williamson v. Howell, 155 Miss. 220, 124 So. 319, 321 (1929) (addressing
Article 4, Section 90(p)’s prohibition of special or local laws granting schools privileges);
Hewes, 62 So. at 359–60 (addressing Article 4, Section 90(p)’s prohibitions of special or
local laws granting schools privileges and incorporating schools).
23
Miss. Const. art. 4, § 90(p).
24
Hamilton v. Bd. of Supervisors of Lafayette Cty., 133 Miss. 14, 96 So. 465 (1923);
Scarbrough v. McAdams Consol. Sch. Dist., 124 Miss. 844, 87 So. 140 (1921); State Bd.
of Educ. v. Pridgen, 106 Miss. 219, 63 So. 416 (1913).
25
Pridgen, 63 So. at 417.

43
 It seems to be the theory that the Legislature, by labeling the common school
fund “supplemental,” thereby changed the nature of the appropriation, and in
so doing they provided a remedy for a condition entirely outside of the scheme
marked out by the organic law. If this is the theory upon which the validity of
the law must stand, it would seem that the law in question is a special law,
providing for the support of a class of common schools in certain localities of
the state, and is condemned by paragraph “p” of section 90 of the Constitution.
It is certain that the Legislature could not pass a law providing for the support
of any common school eo nomine, or for any selected number of common
schools. Chapter 5 of the Laws of 1912 is a law providing for the support of a
class of common schools. The schools of certain counties provided for by the
law are separated from and placed in a different class from the schools located
in the other counties, and by this simple expedient they are given special
privileges, and are accorded additional support not enjoyed by the schools
located in other counties of the state, and it seems this law is undisguisedly a
special law to fit local conditions.26

¶73. That statute made funds available for indeterminate schools and districts: those which

had exhausted the funds otherwise appropriated to them. It also left open the possibility the

funds would never actually reach a school or district: i.e., if no school or district actually

exhausted the funds otherwise appropriated. But, according to this Court, the statute was a

special law “providing for the support of a class of common schools.”27

¶74. In Scarbrough v. McAdams Consolidated School District, this Court struck down a

statute “‘authorizing the board of supervisors of Attala county, Mississippi, to issue bonds for

the purpose of building and equipping an agricultural high school in the McAdams

consolidated school district.’”28 The Court found “[t]his was a special act, and we are

26
Id. at 418.
27
Id.
28
Scarbrough, 87 So. at 141.

44
convinced that it provided for the support of the single school district.”29 This was so even

though the statute itself appropriated no funds, instead authorizing the Attala County Board

of Supervisors to issue bonds. The same was true in Hamilton v. Board of Supervisors of

Lafayette County, except in that case the Legislature enacted the statute approving the bonds

after they already had been issued.30

¶75. And in Turner v. City of Hattiesburg, we rejected an Article 4, Section 90(p) claim

against a statute authorizing bonds to fund Mississippi Normal College because “[t]his college

[was] neither a private nor a common school.”31 Instead, it was “a college established for the

purpose of enabling the state to equip its teachers for service in its common schools.”32

¶76. These decisions shed some light on the meaning of the three elements in this Article

4, Section 90(p) prohibition: “[p]roviding for,” “support,” and “any private or common

school.” Support includes monetary support.33 Common school refers to K-12 public primary

29
Id.
30
Hamilton, 96 So. at 466.
31
Turner v. City of Hattiesburg, 98 Miss. 337, 53 So. 681, 683 (1910).
32
Id.
33
See Pridgen, 63 So. at 417 (finding that an appropriation from the Legislature is
support within the meaning of Article 4, Section 90(p)); Scarbrough, 87 So. at 141 (finding
that statute authorizing bond issuance provides support within the meaning of Article 4,
Section 90(p)).

45
education.34 Yet this Court has never, in an Article 4, Section 90(p) case, engaged in an

extensive discussion of what it means to provide for. And this case turns on that meaning.

¶77. Here, House Bill 1002 certainly involves monetary support: it earmarks fourteen

percent of a 3.2 percent fee on gross gaming revenue for educational purposes and teacher

salary supplementation.35 The question is whether that support is provided for a common

school.

¶78. The American Heritage Dictionary defines “provide” as “a. To make available

(something needed or desired); furnish: provide food and shelter for a family. b. To supply

something needed or desired to: provided her family with food.”36 Other courts have

concluded that “to make available” represents the core meaning of the word “provide” when

interpreting legal texts.37

¶79. One case in particular provides an instructive analysis. In Great Expectations Creative

Management, Inc. v. Attorney General of the State of New York, a videotape dating service

sought a declaratory judgment that it would not be subject to certain regulatory statutes if it

34
Compare Scarbrough, 87 So. at 141 (finding Article 4, Section 90(p) violation
with statute that benefits a public high school), with Turner, 53 So. at 683 (finding that a
state college is not a common school within the meaning of Article 4, Section 90(p)).
35
2004 Miss. Private and Local Laws ch. 920.
36
Provide, American Heritage Dictionary of the English Language (5th ed. 2017).
37
Land and Marine Devs., Inc. v. Widvey, 546 N.W.2d 380, 382 (S.D. 1996) (citing
Webster’s New World Dictionary 481 (rev. pocket ed. 1975) (“The plain and ordinary
meaning of the word ‘provide’ is, ‘to make available; supply . . . to furnish with[.]’”); Great
Expectations Creative Mgmt., Inc. v. Att’y Gen. of the State of N.Y., 616 N.Y.S.2d 917,
919–20 (N.Y. Sup. Ct. 1994) (citing American Heritage Dictionary of the English Language
(3d ed. 1992)) (“The plain dictionary definition of the verb ‘provide’ is ‘to furnish, to supply
or to make available.’”).

46
began conducting business in New York.38 In 1971, the New York Legislature had enacted

the regulatory statutes in question which placed “limitations on contracts involving social

referral services, limit[ed] the fee that can be charged, requir[ed] that a minimum number of

referrals be provided, and call[ed] for the confidentiality of any personal information given.”39

¶80. The statutes applied to any “social referral service.”40 And the statute stated “‘the term

“social referral service” shall include any service for a fee providing matching of members

of the opposite sex, by use of computer or any other means, for the purposes of dating and

general social contact.’”41

¶81. Great Expectations argued it was not subject to these statutes because it was not a

“social referral service.”42 It argued it was not a “social referral service” because the statutes

applied only to entities “providing matching” and “it allows people to meet each other as a

matter of their own volition. In other words, it claims to be merely the facilitator rather than

a provider of member-matching services. The claim is that the members, and not the

organization, make the match.”43

¶82. The judge disagreed:

38
Great Expectations Creative Mgmt., Inc., 616 N.Y.S.2d at 918.
39
Id.
40
Id. at 919.
41
Id. (emphasis added).
42
Id.
43
Id.

47
 The court cannot agree with that position. It is clear that the scope of the statute
is not limited to service agencies which actively match individuals, but
encompasses those services for a fee “providing matching of members of the
opposite sex, by use of computer or any other means.” The plain dictionary
definition of the verb “provide” is “to furnish, to supply or to make available.”
(American Heritage Dictionary of English Language [3d ed. 1992].) “Referral”
means “directing to a source for information” or “to direct one’s attention to”
(id.). Clearly then, the plain language of the statute is not limited only to
services that actually do the matching, but includes those agencies which make
available the means for persons to do their own matching.44

¶83. Said differently, Great Expectations believed it did not provide matchmaking services

because it never ensured a match occurred. Instead, it merely made resources available so

individuals could match themselves. But the judge correctly recognized that “provide” does

not mean to mandate or to ensure, but to make available. The mere fact that Great

Expectations made resources available for matchmaking meant it provided matchmaking

service regardless of whether any matchmaking ever occurred.

¶84. This reasoning should control our decision in this case. The majority concludes that

House Bill 1002 does not provide support for a common school because it does not mandate

that the Tunica Board of Supervisors actually give the fourteen percent earmarked for

educational purposes and teacher salary supplementation to the Tunica County School

District. But it does provide the funds and make them available. Like Great Expectations,

House Bill 1002 does not actually make a match. But House Bill 1002 indisputably makes

funds available. What the Board of Supervisors may or may not do does not change what the

44
Id. at 919–20.

48
Legislature did when it made fourteen percent of the gaming fee available for that use.45

Because Article 4, Section 90(p) prohibits local laws providing for support, and because

“providing” simply means to make available, House Bill 1002 does what it cannot do.

¶85. Furthermore, the majority’s argument has been rejected by this Court in Scarbrough.

There, we struck down, under Article 4, Section 90(p), a statute which merely “‘authoriz[ed]

the board of supervisors of Attala county, Mississippi, to issue bonds for the purpose of

building and equipping an agricultural high school in the McAdams consolidated school

district.’”46 That statute did not mandate that any funds reach a particular school or district

because it did not require the board to issue the bonds. Instead, it made the

support—bonds—available. The same is true here. The statute makes funds available, but

the Board ultimately must decide whether they reach a common school.

¶86. The provisions of House Bill 1002 that earmark fourteen percent of the gross gaming

revenue for educational purposes and teacher-salary supplementation violate Article 4,

Section 90(p) because this local law “[p]rovid[es] for the . . . support of . . . [a] common

school.”47 So I must dissent from that portion of the majority’s opinion.

COLEMAN, J., JOINS THIS OPINION.

45
And even were this not the case, it strains credulity to suggest that a particular
county’s board of supervisors will comply with the statutory mandate to spend money for
educational purposes and teacher salary supplementation in that county without in some way
supporting that county’s school district.
46
Scarbrough, 87 So. at 141.
47
Miss. Const. art. 4, § 90(p).

49