Opinion
No. 30382.
February 6, 1933.
1. STATUTES.
Amendatory statute supersedes amended statute, and provisions of latter statute, not brought forward in amending statute, need not thereafter be observed (Constitution 1890, section 61).
2. STATUTES.
Rights acquired under statute before its amendment are not affected thereby, unless amending statute, within constitutional limitations, expressly or by necessary implication so provides.
3. TAXATION.
Statute reducing penalty of tax collector's bond operates prospectively only, and sureties on bond, executed before enactment thereof, continue liable to full amount of penalty (Hemingway's Code, section 3111, as amended by Laws 1926, chapter 192).
APPEAL from circuit court of Humphreys county. HON. J.L. WILLIAMS, Judge.
J.H. Sumrall, of Jackson, for appellant.
The law in force at the time of the alleged illegal payment of premiums, was brought forward in the Code of 1930, in sections 1802 and 2897, which provide that the premiums on bonds of county officers shall be paid out of the county treasury, and section 2887, which provides that premiums on bonds shall be at the lowest rate obtainable.
In construing section 3055 of the Code of 1892, which is in the identical words as said section 2888, Code of 1930, this court in the case of State v. Smith, 87 Miss. 551, held as follows:
"When one signs what purports and is intended to be an official bond, whether as principal obligor or surety, the law writes in all necessary recitals, including proper penalty."
Where the statute provides that a bond purporting to be an official bond shall be valid and binding whether correct or incorrect in any of its recitals, or notwithstanding any variance in the penalty or condition of the instrument from the provisions prescribed by law, etc., . . . the liability of the surety is measured by the provisions of the statute, rather than by the language of the obligation itself.
46 C.J. sec. 394; Smith v. State, 87 Miss. 551; 9 C.J. 26; Peck v. Dawson et al., 101 S.E. 728; Matthews v. Lee, 25 Miss. 417; 9 C.J. 35.
By the provisions of chapter 192, Laws of 1926, which became effective, under the provisions of the said law, on March 15, 1926, section 3111 of the Code of 1917 was amended so as to definitely fix the maximum penalty required in any bond of a county tax collector at one hundred thousand dollars.
It is manifest then, that after March 15, 1926, until January, 1928, the expiration of his term as tax collector of the county of Humphreys, the law limited the penalty of said bond to one hundred thousand dollars, under the rule hereinbefore discussed, and under the construction put upon section 2888 by this court in the case of Smith v. State, 87 Miss. 551.
If the statute requiring the bond is read into the bond and constitutes a part of the bond, then this is true at all times during the currency of the bond, and said bond automatically changes from time to time in such manner as such statute may be changed in order to conform to the statute under this rule.
Murfree on Official Bonds, section 713; Hyde v. State, 52 Miss. 665.
The Legislature may by statute change the terms of the bond without notice or consent of the surety, and such change does not invalidate the bond, since the surety is charged with the knowledge of the right of the Legislature to do so.
State v. Swinney, 60 Miss. 39: Denio v. State, 60 Miss. 949; People v. Vilas, 36 N.Y. 459: State v. Hundley, 125 Miss. 355: Catts v. Winburn, 88 So. 918; Hyde v. State, 52 Miss. 665.
The only restriction upon the power to change or add to the duties and requirements of a public officer by the Legislature, and work a like change in the condition of the bond, as held by all the courts, including Mississippi, is that such change must be in degree only. The reduction of the penalty of a bond by statutory enactment is surely nothing more than a change in degree, and thus the change made in the present case would not be subject to objection of abuse of power by the Legislature.
It is clear that by the provisions of chapter 192, Laws of 1926, the Legislature did change the bond reducing the penalty thereof to one hundred thousand dollars, which change became effective as of March 15, 1926, the effective date of the law by which said change was made, under the provisions of section 2888 of the Code of 1930, as construed by this court in the case of State v. Smith, supra.
Watkins, Watkins Eager, of Jackson, for appellee.
The bond of the sheriff and tax collector was fixed by the board of supervisors and given by said officer strictly in the manner provided in section 3111 of Hemingway's 1917 Code.
Chapter 192, Mississippi Laws of 1926, was not retroactive but prospective in its operation, and had no application to bonds already in force.
In the case of Power, Secretary of State, v. Calvert Mortgage Company, 112 Miss. 319, 73 So. 51, this court said, with respect to an amendatory act of the Legislature requiring the refiling of a charter and payment of additional fees, etc., as to all corporations, "now or hereafter doing business in this state" it should not be retroactively interpreted so as to embrace corporations which had "already complied with the law," but so as to embrace foreign corporations in fact doing business in the state without having filed their charter and paid the fees required by law, and also those corporations which should thereafter apply for admission into our state.
Chapter 192 of the Mississippi Laws of 1926, which it is important to observe was not enacted as a new statute, but amendatory to section 3111 of Hemingway's Code 1917.
25 R.C.L. 786.
It has been declared that, in the absence of express words to that effect, a law can operate only upon future, and not upon past, transactions. But this is too broad a statement of the rule. The intention of the Legislature controls, and if it is unmistakable that an act was intended to operate retrospectively that intention must be given effect, even though it is not disclosed by express words, and even though the law, thus construed, must be declared to be invalid.
25 R.C.L. 786; State v. Cloud, 146 Miss. 642, 648; State ex rel. Knox v. Union Tank Car Co., 151 Miss. 797, 119 So. 310; Pan American Petroleum Corp. v. Miller State Tax Collector, 154 Miss. 656, 674, 122 So. 393 Bell v. Union Planters Bank Trust Company, 158 Miss. 486, 490, 130 So. 486.
Since it is impossible to find anything in the amendment which shows any intent on the part of the Legislature to make the same retroactive it should therefore be construed as applying to bonds thereafter executed and sheriffs and tax collectors thereafter qualifying under its provisions, and having no effect whatsoever on contract bonds already in force and existence.
To construe chapter 192, Mississippi Laws of 1926, so as to apply to and alter and change the obligations of the existing bond given by the sheriff and tax collector, Purvis, under section 3111, Mississippi 1917 Code, would render the amendment unconstitutional as a violation of section 10, article 1, of the Constitution of the United States, prohibiting any state from impairing the obligations of a contract.
State of Mississippi for the use of Stokes V. Robertson, v. W.J. Miller et al., 72 L.Ed. 517, 520.
This suit was begun by a former, and revived in the name of the present, state tax collector.
John D. Purvis was elected sheriff of Humphreys county for the four-year term beginning on the first Monday in January, 1924. In order to qualify therefor, he executed three official bonds, on each of which the Fidelity Deposit Company of Maryland is surety, the penalties of which aggregate three hundred thousand dollars, the amount of the penalty required for his bond by the statute in force when it was executed. The annual premiums thereon were paid out of county funds on orders of the board of supervisors.
Section 4694, Code of 1906, Hem. 1917 Code, section 3111, under which the bond was executed, provides that: "The sheriff of each county shall be tax-collector therein, and, at the time of giving bond as sheriff, shall give bond as tax-collector, with two or more sufficient sureties, to be approved as required by law, in a penalty equal to three-fifths of the taxes assessed in the county the preceding year, conditioned that he will in all things faithfully execute and perform all the duties of tax-collector of his county, to the best of his skill and ability, so long as he shall continue in office; and he shall also take and file the oath of office of tax-collector. In case of the failure of a sheriff to qualify as tax-collector, within the same time allowed for taking the oath of office and giving bond as sheriff, he shall thereby vacate the office of sheriff, and the vacancy shall be filled according to law."
In 1926, Chapter 192 of the Laws of that year amended the statute so as to read as follows: "Be it enacted by the Legislature of the state of Mississippi, That section 3111 of Hemingway's Code of Mississippi, 1917, be and the same is hereby amended to read as follows: The sheriff of each county shall be tax collector therein, and at the time of giving bond as sheriff shall give bond as tax collector, with sureties as required by law, in a penalty equal to twenty-five per cent of the taxes assessed in the county the preceding year, however, in no event to exceed (one hundred thousand dollars) conditioned that he will in all things faithfully execute and perform all the duties of tax collector of his county to the best of his skill and ability, so long as he shall continue in office; and he shall also take and file the oath of office of tax collector. In case of the failure of the sheriff to qualify as tax collector, within the same time allowed for taking the oath of office, and giving bond as sheriff, he shall thereby vacate the office of sheriff and the vacancy shall be filled according to law."
After the enactment of this statute, two premiums on this bond, calculated on the basis of the three hundred thousand dollar penalty thereof, were paid.
The state tax collector, proceeding on the theory that chapter 192, Laws of 1926, had reduced the penalty of the bond to one hundred thousand dollars, and therefore the premiums paid thereon after the enactment of the statute should have been calculated on the basis of the penalty being one hundred thousand dollars instead of three hundred thousand dollars, instituted this suit on the bonds of the members of the board of supervisors and of Purvis, to collect the difference between the premiums paid, and that which he, the state tax collector, says should have been paid.
A demurrer to the bill of complaint was sustained.
Under section 61 of the Constitution, which provides that: "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length," a statute amending a former statute supersedes the former, and the provisions thereof not brought forward in the amending statute need not thereafter be observed. Nations v. Lovejoy, 80 Miss. 401, 31 So. 811; Bell v. State, 118 Miss. 140, 79 So. 85. But rights acquired under the original statute are not affected thereby, Power v. Calvert Mtg. Co., 112 Miss. 319, 73 So. 51; Bell v. Union Planters' Bk. Tr. Co., 158 Miss. 486, 130 So. 486, unless within constitutional limitations the amending statute expressly, or by necessary implication, so provided.
The statute here under consideration contains no language indicating that the Legislature intended for it to have a retroactive effect, nor that sheriffs and tax collectors, then in office, who had qualified under the original statute, should again qualify by thereafter doing the things required therefor by the amending statute. Nor does it contain any language indicating that tax collectors' bonds theretofore executed for amounts greater than one hundred thousand dollars should be thereby reduced to that amount.
It operates prospectively only, Bell v. Union Planters' Bk. Tr. Co., supra, and, after its enactment, the sureties on a tax collector's bond theretofore executed continued liable for defalcations of the tax collector to the full amount of the penalty of the bond as executed.
The court below committed no error in sustaining the demurrer.
Affirmed.