Opinion
December 13, 1948.
1. Fees — sheriff for service in county court.
The county court has only certain transferred jurisdiction originally exercised by the justice, chancery and circuit courts and the sheriff performs in the county court duties that otherwise generally he would have performed in the other courts. Hence he is not entitled to an extra annual fee of $250.00 for such services in the county court. Sections 1604, 1605, 1610, 3952 (f), Code 1942.
2. Fees — sheriff for executing judgments county court.
The sheriff is not entitled to an additional sum of $300.00 per year for executing decrees and judgments of the county court. Sections 1609, 1610, Code 1942.
3. Fees — sheriff in cases wherein the state failed.
Allowance to sheriff for fees in cases wherein the State failed cannot be made where there is no certificate of the clerk that the account of the sheriff therefor has been allowed by the circuit court and entered on the minutes thereof. Section 3952 (g), Code 1942.
4. Fees — statute of limitations.
A claim by sheriff for fees for services, payment of which was due more than six years before his declaration to recover was filed, is barred by the six years statute of limitations. Section 722, Code 1942.
5. Fees — when clearly fixed by statute, appellate court may allow — when cross-appeal not necessary.
When a certain fee to a sheriff is definitely fixed by statute, the appellate court may allow the lawful amount, upon a review of the entire count, although no cross-appeal on the particular item was taken, the aggregate in the count of the declaration wherein the item was involved being sufficient to cover it.
6. Fees — sheriff for executing judgments circuit court.
Sheriff is not entitled to an additional allowance of $300.00 annually for executing judgments of the circuit court. Section 3936, subd. b(a), Code 1942.
7. Fees — serving overseer's commissions — pleading — court limited to amount demanded.
Although the sheriff would have been entitled to a larger amount for serving overseers' commissions, he sued for only $25.00 in the count in his declaration on that feature and having been awarded by the trial court the amount sued for, the appellate court could not increase it nor could the sheriff have maintained cross-appeal on that count, since he was awarded all he demanded under it.
8. Fees — sheriff — allowance according to population of county — allowances based on smaller population — not res adjudicata.
When certain fees have been allowed by the board of supervisors on basis of smaller population of county than the fees to which the sheriff had become entitled because of the increased population, such allowances are not res adjudicata of the sheriff's claim for an additional allowance to cover the difference. Sections 3936 and 3952, Code 1942.
9. Fees — payable in discretion of board.
When a statute expressly provides that a certain fee or allowance may be paid in the discretion of the board of supervisors and the board refused to allow the payment, the action of the board in such refusal is not within the authority of the courts to reverse. Section 4173, Code 1942.
10. Fees — transportation prisoners and insane.
Sheriff's fees for transportation and expenses in conveying prisoners to penitentiary and insane persons to state hospital must be shown by an itemized statement supported by his affidavit and presented to board of supervisors to be audited and allowed, otherwise claims therefor cannot be allowed. Section 4170, Code 1942.
11. Fees — sheriff — for deputy attending meetings of board of supervisors.
By reason of the increased population of the county the sheriff was entitled to recover an allowance of $5.00 per day for furnishing deputy to attend meetings of the board of supervisors instead of the $3.00 a day paid him. Sections 3936, 3952 (e), Code 1942.
Headnotes as approved by Smith, J.
APPEAL from the circuit court of Forrest County; F.B. COLLINS, J.
E.J. Currie and George W. Currie, for appellant; Landman Teller, amicus-curiae.
It will be observed that Section 699, Mississippi Code, 1930 (Miss. Code, 1942, Section 1610), placed the clerk and sheriff upon exactly the same basis in regard to the fees which they may collect for services rendered in connection with the county court. The Attorney General of the State of Mississippi has rendered an opinion construing said sections as they relate to the fees to which the clerk is entitled, and we can see no foundation for any distinction between the clerk and sheriff in regard to the fees and compensation to which they are entitled under said sections. The following is quoted from the opinion of the Attorney General, as it is annotated under Section 1610, Mississippi Code, 1942: "He (the county court clerk) would be entitled to the same per diem for attending the county court as the circuit court clerk is for attending the circuit court. He (as county court clerk) would receive the same compensation in criminal cases where the State fails in prosecution as he does in the circuit court. However, the maximum fixed by law would control in both cases. In other words, if the clerk does not draw the maximum as circuit clerk, he could draw up to the maximum as county clerk, but when he has once drawn the maximum, he would not be entitled to other fees for that year."
The foregoing opinion of the Attorney General has been vindicated by the Supreme Court in Mississippi in Covington v. Quitman Count, 196 Miss. 416, 17 So.2d 759, a decision which construes said Section 699, Mississippi Code, 1930 (Section 1610, Mississippi Code, 1942).
The only fees allowed by law to a sheriff for summoning jurors, as distinguished by the annual amount allowable by law for summoning all jurors are those specified by Section 1789, Mississippi Code, 1930, brought forward as Section 3936, Mississippi Code, 1942 Paragraph (n) of said sections, allows to the sheriff for "executing a special venire facias, for each juror summoned ten cents." Paragraph (t) of said sections allows to the sheriff for "summoning jury on any inquisition in the county, attending the same and taking inquest, per day, payable out of the county treasury, $3.00." If and when the sheriff performed the services mentioned in said paragraphs (n) and (t) he would be entitled to the fees allowed by law for so doing, but he would, of course, not be entitled to such specific fees unless and until such specific services were performed.
The executive officer of the chancery court, of the circuit court, and of the county court is the same person, just as the circuit clerk and the county clerk is the same person. We see no weight in the contention that the creation of the county court increased the duties of the sheriff to any greater extent than the creation of the county court increased the duties of the circuit clerk. We respectfully submit that to make a distinction between the construction of Section 699, Mississippi Code, 1930 (Mississippi Code, 1942, Section 1610) as it applies to the compensation to which the sheriff is entitled, and as it applies to the compensation to which the clerk is entitled, would be to create a distinction where no difference in fact exists, and we therefore confidently urge that the opinion of the Attorney General and the decision of this honorable court, both above quoted, are controlling upon the proposition presented by count 1 of the declaration of the plaintiff and appellee.
We respectfully submit that in construing Section 699, Mississippi Code, 1930 (Section 1610, Mississippi Code, 1942) the sheriff and clerk must be accorded the same consideration in so far as their compensation for services rendered in the county court is concerned, and when so considered we see absolutely no support for the claim propounded by the plaintiff and appellee in count 3 of his declaration.
In the case of Board of Supervisors of Lafayette County, Mississippi v. Jones, Sheriff, 24 So.2d 844, the trial court and the appellate court were evidently dealing with Section 1789, Mississippi Code, 1930, and Section 3936, Mississippi Code, 1942, as they relate to additional fees which a sheriff may claim in a county having a population of less than 32,000 inhabitants, or assessed valuation of less than $17,000,000.00, while the plaintiff and appellee in the instant case is relying and must rely, in prosecuting his claims for additional fees allegedly due and unpaid upon Section 1804, Mississippi Code, 1930 and 3952, Mississippi Code, 1942, which deal with all counties in Mississippi having a population of 32,000 or over, or an assessed valuation of $17,000,000.00, or over, but less than $22,500,000.00. It is significant, we think, that Sections 1804 and 3936 do not embrace in any form the provision of sub-section (b) of Section 1789, Mississippi Code, 1930 and Section 3936, Mississippi Code, 1942. Attention is expressly called to the fact that in count 3 of his declaration, the plaintiff and appellee, M.W. Thompson did not claim compensation "for executing all decrees, judgments, orders of process of the Supreme Court, Chancery Courts or Boards of Supervisors" but that by count 3 of his declaration the plaintiff and appellee was claiming "$300.00 per year allowed sheriffs for executing all decrees, judgments, etc., for the county court."
We respectfully submit that the observations made and the statutes and authorities cited in our discussion of count 1 of the declaration of the plaintiff and appellee, show conclusively that the plaintiff and appellee, M.W. Thompson, ex-sheriff, is not entitled to any such separate and additional allowances for services allegedly rendered for the county court.
The record in the instant case shows that throughout the years 1940 through 1943, inclusive, and in each and every term of the circuit court throughout said years, the plaintiff and appellee, M.W. Thompson, then sheriff of Forrest County, Mississippi, filed his claims for State fail cases, and that each and all of said claims were submitted to and approved by the then District Attorney and were thereafter allowed by the circuit court, and were duly and promptly allowed and paid by the board of supervisors of Forrest County, on the certificates of the clerk of the circuit court of Forrest County. It must be assumed that the District Attorney approved said claims for so much but no more than the sheriff was entitled to receive, and it must be assumed, further, that said claims were allowed by the circuit court upon the approval of the District Attorney, for as much but no more than the sheriff was entitled to receive.
We have carefully read and considered the case of Holmes County v. Ellis, 13 So.2d 635, and the case of Board of Supervisors v. Jones, Sheriff, 24 So.2d 844, and we have not gained the impression from either of said cases that the Supreme Court of Mississippi repealed or intended to repeal, by judicial legislation, that portion of paragraph (g) of Section 1804, Mississippi Code, 1930, (Section 3952, Mississippi Code, 1942), which provides that payment to a sheriff for services rendered in connection with State fail cases may be allowed by the Board of Supervisors "on the certificate of the clerk that the account of the sheriff for his fees has been allowed by the circuit court and entered on the minutes"; nor have we gained the impression from either of said cases that the Supreme Court of Mississippi repealed or intended to repeal, by judicial legislation, Section 3922, Mississippi Code, 1942, which provides that "all accounts of a public nature, before they are allowed by the circuit court, shall be presented to the District Attorney, and his opinion concerning the validity of the same, and whether the same shall be allowed or disallowed, obtained in writing, and presented to the court"; nor have we gained the impression from either of said cases that the Supreme Court of Mississippi overruled or intended to overrule the decision rendered in the case of Kitchen v. Union Count, 198 Miss. 403, 22 So.2d 356.
We respectfully submit that there is no escape from the conclusion that under the provisions of the statutes above quoted, and the decision of this court in the case of Kitchen v. Union County, supra, it was incumbent upon the plaintiff and appellee, M.W. Thompson, former sheriff of Forrest County, Mississippi, to submit his alleged claim declared upon in count 4 of his declaration, to the circuit court; that it was then incumbent upon the circuit court to obtain the advice of the District Attorney, and then to allow or disallow the alleged claim. In the absence of such prior allowance of said claim by the Circuit Court, upon the prior advice of the District Attorney, the Board of Supervisors of Forrest County, Mississippi, would have been acting in open violation of Section 2942, Mississippi Code, 1942, if said Board had allowed and paid said claim for any amount.
It will be observed that the plaintiff and appellee undertook by count 5 of his declaration to recover such maximum annual allowance again by contending that he was entitled to such maximum annual allowance for summoning jurors in the circuit court and for other services rendered and not otherwise provided for in connection with the circuit court. We think the statutes and authorities hereinabove cited and quoted conclusively show that only one such maximum annual allowance was lawfully allowable, and that the plaintiff and appellee was not entitled to separate such allowances for summoning jurors and for other services rendered and not otherwise provided for in connection with the county court and the circuit court.
It will be observed that the claim propounded in count 6 of the declaration is divided into two parts, that is to say, the plaintiff and appellee claimed the sum of $50.00 per year for entering, returning and serving the road overseer's commission and for services required of him by the board of supervisors for which no fees were fixed, for the years 1940, 1941, 1942 and 1943, in the total sum of $200.00. We respectfully submit that the record in this cause shows that the board of supervisors of Forrest County, Mississippi, paid to the plaintiff and appellee all sums due him for services allegedly rendered by him for the board of supervisors during his entire term of office, and count 6 of the declaration and Exhibit F thereto admits payments in the total sum of $1375.00. Manifestly, the annual allowances made to the plaintiff and appellee by the Board of Supervisors of Forrest County, Mississippi, as admitted by the plaintiff and appellee and as shown by the record in this cause, were intended to include and did include all sums due plaintiff and appellee "for summoning jurors, impaneling grand juries, serving all public orders of court in his county, and for all other public services not otherwise provided for." The allowances and payments disclosed by the record and admitted by the plaintiff and appellee under count 6 of his declaration and Exhibit F thereto, show credits in the sum of $275.00, which more than offset the claim for $200.00 demanded by count 6. The claim for $1200.00 embraced in count 6 is for "$300.00 per year for executing all decrees judgments, etc., for the circuit court for the years 1940, 1941, 1942 and 1943, which amounts to the sum of $1200.00." We know of no statutes authorizing or requiring the payment of $300.00 per year, or any other sum for executing judgments of the circuit court except the fixed statutory fees allowed by law for services rendered by the sheriff in connection with the circuit court.
We therefore respectfully submit that the plaintiff and appellee was not entitled to recover $25.00 or any other amount, under count 6 of his declaration.
As we construe the record in this case, the only substantial attempt the plaintiff and appellee made to prove that he was not paid all he was entitled to receive for attending the meetings of the board of supervisors of Forrest County, Mississippi, was by introducing the witness Clyde Easterling, Deputy Chancery Clerk. The witness Easterling had no personal knowledge of the transactions involved, but simply testified from the minutes of the board of supervisors of Forrest County, Mississippi, and in undertaking to testify as to the number of days upon which the plaintiff and appellee or his deputy attended the sessions of the board of supervisors of Forrest County, Mississippi, simply took the amounts of the respective allowances and payments, and divided such amounts by 3 and concluded that the result represented the number of days. We respectfully submit that proof of that nature was not sufficient to entitle the plaintiff and appellee to recover any sum under count 7 of his declaration.
The terms and provisions of Section 4173, Mississippi Code, 1942, are plain and unambiguous. Said section clearly provides that "The board of supervisors of any county having a United States army camp or cantonment or ordnance plant located, or being located, erected or built, either wholly or partially within said county, may, in the discretion of said board, pay annual salaries of not less than $800.00 nor more than $1500.00 to regularly appointed deputy sheriffs in said county." If the contention of the plaintiff and appellee is correct, as set forth in count 8 of his declaration, then the plaintiff and appellee could and should have called upon the board of supervisors to pay all the regularly appointed deputy sheriffs in said county, and if the contention of the plaintiff and appellee is correct, as set forth in count 8 of his declaration, he had as much authority to employ thirty (30) or three hundred (300) additional deputy sheriffs and to call upon the board of supervisors of Forrest County to pay the salaries of any and all such deputies. The plaintiff and appellee contends by count 8 of his declaration that he had the authority under Section 4173 not only to determine how many, if any, additional deputy sheriffs should be employed in Forrest County during the location, erection or building of Camp Shelby therein, but also to determine the amount of the salaries to be paid such deputy sheriffs.
We think there can be no doubt that the discretion vested in the board of supervisors under the provisions of said Section 4173, Mississippi Code of 1942, was absolute and exclusive, and that such board had the right for any reason, or for no reason, to exercise such discretion against the payment of the salary of one or more regularly appointed deputy sheriffs in any of the counties affected by said statute.
"Where a statute gives a discretionary power to an officer to be exercised by him upon his own opinion of certain facts, he is the sole and exclusive judge of the existence of those facts; the courts will not attempt to interfere with or control the exercise of his discretionary powers, in the absence of any controlling provisions in the law conferring the power. The fact that the exercise of a power may be abused, is not a sufficient reason for denying its existence. Thus, it is a firmly established rule, as stated in other articles in this work, that the judiciary will not interfere with executive officers in the performance of duties which are discretionary in their nature, or involve the exercise of judgment." American Jurisprudence, Vol. 43, Section 255, page 72, citing numerous authorities under Notes 4, 5, 6, 7 and 8. See also simpson v. Kelly, 166 So. 532.
The trial court awarded the plaintiff and appellee, M.W. Thompson, former sheriff of Forrest County, Mississippi, $582.80 under count 9 of his declaration, and we earnestly submit that the trial court erred in so doing.
We further respectfully submit that the record in this cause shows without conflict that no lawful claim has yet been filed by the plaintiff and appellee for any compensation allegedly due him for the transportation of prisoners and lunatics during his term of office, except those of such claims which were filed with and allowed and paid by the board of supervisors of Forrest County during his term of office.
Such purported claim was and is fatally defective in at least the following particulars: 1. The statement of such purported claim was not itemized, as required by both Sections 2932 and 4170, Mississippi Code, 1942. (a) Such statement did not show the names of the persons claimed to have been transported; (b) Such statement did not show the particular dates when particular persons were claimed to have been so transported; (c) Such statement did not show the particular place or places to which particular persons were transported; (d) Such statement did not show the amount of money actually expended or paid out by the sheriff or his deputy; (e) Such statement did not show the actual traveling expenses of the sheriff or his deputy, or of any escort, or of the prisoner or lunatic involved; (f) Such statement did not show whether or not the escort or escorts for whom reimbursement was claimed, was or were necessary; (g) Such statement did not contain sufficient information to enable the board of supervisors of Forrest County, Mississippi, to have the claim audited, as required by law.
2. The statement and claim covering the alleged transportation of prisoners and lunatics did not show whether the plaintiff and appellee was required by law to remove such persons, or whether the transportation of such persons was made by the plaintiff and appellee with any legal requirement on his part so to do. We respectfully submit that no sheriff or other officer is entitled to reimbursement for expenses incurred in transporting prisoners or lunatics, unless such transportation results from some lawful court order or other lawful command directed to the sheriff, and we respectfully submit that any lawful claim and statement which would support and authorize the allowance and payment thereof by the board of supervisors for the transportation of prisoners or lunatics, would have to show the authority of the sheriff in making such transportation.
3. The plaintiff and appellee did not make oath or affidavit, personally or by agent, that said purported statement was true and correct, and in fact such purported statement was not even signed by the plaintiff and appellee.
We respectfully submit that the requirements of Section 2932, Mississippi Code, 1942, and Section 4170, Mississippi Code, 1942, are mandatory, and that the Legislature of the State of Mississippi was acting within its constitutional province when it embraced in said statutes the mandatory provisions thereof, and that the board of supervisors of Forrest County had no right or power to waive the provisions of said mandatory statutes in favor of the plaintiff and appellee, M.W. Thompson, former sheriff of Forrest County, Mississippi, if such board had had any disposition so to do, and we respectfully submit, further, that the board of supervisors of Forrest County would have been acting not only in violation of the law but in defiance of the law, if such board had paid out any of the funds of Forrest County, Mississippi, upon said purported statement and claim, which wholly failed to comply with the mandatory requirements of the statutes hereinabove set forth.
The observations made by us in dealing with count 7 of the declaration of the plaintiff and appellee, are pertinent to count 10 of such declaration, and we respectfully submit that the record in this cause does not show sufficient proof to support the award of $100.00 made to the plaintiff and appellee under count 10 of this declaration.
Dudley W. Conner, for appellee. E.R. Holmes, amicus curiae.
It will be noted that on the filing of the claims by the appellee, the authority upon which each claim was based was cited, including the decision of this court in Holmes County v. Ellis, Ex-Sheriff, 13 So.2d 635, and Board of Supervisors of Lafayette County v. Jones, 24 So.2d 844. We think the reasoning in those cases sound, not only in the application of the law, but in a sense of fairness and justice.
Provision for the payment of the sheriff for his services to the county court was provided in the act that created the court in 1926 and appears in the Code of 1930 as Section 699 and was later brought forward in the Code of 1942 without change as Section 1610.
In creating the county court, it was the intention of the legislature to relieve the circuit and chancery courts of congestion of small matters and at the same time give to the public a better trained inferior tribunal than that afforded by the justice court. The county court meets once a month and where it is in existence, as in Forrest County, it is almost constantly in session and constantly requiring the services of the sheriff, while the circuit court meets only four times a year in Forest County and the chancery court meets only three times a year in Forrest County. In addition to many other duties in the county court, the sheriff is required to summon 36 jurors every month in Forrest County, some of which require a deputy to ride a distance of more than 70 miles.
In Count Three the plaintiff sought to recover $300.00 per year allowed the sheriff for executing all decrees, judgments, etc., for the county court for the years 1940, 1941, 1942, and 1943 aggregating $1,200.00. The appellant successfully interposed the statute of limitations for the year 1940 and judgment was rendered on this count in the sum of $900.00.
In Holmes county v. Ellis, 195 Miss. 124, 13 So.2d 635, the fact that such services are not required to be itemized as to each act of service is settled, and see comments in Board of Supervisors v. Jones, 24 So.2d 844.
The appellant cites as an authority the case of Covington v. Quitman County, 17 So.2d 597, which we have carefully studied. It will be noted the statutory provisions under which the clerk sought to recover was sub-section (c) of Section 1788, Code of 1930, (Section 3934, Code of 1942).
In other words the clerk sought to recover from both the circuit and county court "For public service not particularly provided for." Thus, the Covington case is not applicable to the present case, for here the appellee seeks to recover for services actually performed, namely, executing all decrees, judgments, etc., for the county court. The clerk is required to perform entirely separate and distinct duties from those required of a sheriff, and the law provides separate remunerations for such officers. By Count Three the appellee does not seek to recover compensation not elsewhere provided for. A close examination of the quoted statutes is sufficiently informative.
In Board of Supervisors v. Jones, supra, the Holmes County case was vigorously attacked and the court said: "Therefore, unless the case of Holmes County v. Ellis, supra, is to be overruled, the reasoning therein adopted by a sufficient number of the judges to affirm that case, and to the effect that regardless of the amount of services rendered the sheriff could not receive more than the statutory alowance `it must follow that in any event he shall have that much'".
We urge the trial court committed no error in allowing the claim as presented, after eliminating that part barred by the statute, and that the judgment awarding the plaintiff the sum of $900.00 on Count Three should be affirmed.
In Count Four the plaintiff sought to recover $750.00 per year allowed the sheriff for state fail cases in the circuit court for the years 1940, 1941, 1942 and 1943 aggregating $3,000 less payments made, on allowances made by the circuit court and the Board of Supervisors at the proper time, amounting to the sum of $1,048.30, leaving a balance allegedly due him of $1,951.70. The defendant successfully interposed the statute of limitations for the balance sought to be recovered for the year 1940 and judgment was rendered on this count in the sum of $1,418.90.
Section 1804, Code of 1930 (Section 3952, Code of 1942) Sub-Section (g) provides: "The sheriff's fees in state cases where the state fails in the prosecution or in cases of felony, in which the defendant is convicted, but is unable to pay the costs, to an amount not exceeding $750.00, in any year, shall be paid out of the county treasury when allowed by the board of supervisors on the certificate of the clerk that the account of the sheriff for his fees has been allowed by the circuit court and entered on the minutes." Again the Holmes County v. Ellis case and the Board of Supervisors v. Jones case are controlling.
There is no question but that the sheriff is entitled to this allowance at least once for his services in all courts, even on the basis of the appellant's argument.
We urge the trial court committed no error, after eliminating that part barred by the statute for the year 1940, and that the judgment awarding the plaintiff the sum of $1418.90 on Count Four should be affirmed.
In count five the plaintiff sought to recover $250.00 per year allowed the sheriff for summoning jurors in the circuit court and for other services rendered and not otherwise provided for in connection with said count during the years 1940, 1941, 1942, and 1943 and which amounts to the sum of $1,000.00. It appears the defendant successfully interposed the statute of limitations for the year 1940, however, the court rendered a judgment on this count in the sum of $900.00, basing the judgment upon the authority of Section 1789, Code of 1930, (a) under Addition Fees, (Section 3936, Code 1942) rather than Section 1804, Code of 1930, sub-section (f) (Section 3952 Code 1942). The difference in the two quoted statutes being the population of the county and the greater allowance of $50.00 per year. Forrest County qualifies under the former statute authorizing the $300.00 per year allowance. Again the Holmes County v. Ellis case and the Board of Supervisors v. Jones case are controlling.
In count one the plaintiff sought to recover this sum for summoning jurors in the county court and the court's attention is invited to the lengthy argument of the appellant in support of the judgment of the lower court in dismissing this count. The argument there was tantamount to stating the plaintiff was entitled to remunerations for such services only in the circuit court, notwithstanding the sheriff is called upon to summon not less than 36 jurors every month for the county court. Surely, the sheriff is entitled to at least one allowance for summoning jurors whether he is entitled to it for each court or not. The appellant's argument generates into the ridiculous position of saying the sheriff is not entitled to allowance for summoning jurors in the county court because that allowance is made to the sheriff in the circuit court, when defending his position in count one, now, when defending his position in count five, the appellant argues the sheriff is not entitled to an allowance for summoning jurors in the circuit court because he sought it in the county court. To carry such fallacious argument further would nullify the statute completely and give the sheriff no compensation whatever for summoning jurors in any of the courts. All this, notwithstanding appellant's quotation of Judge Griffith in the Holmes case (page 13 of appellant's brief): "In counties where there are county courts, he" (the sheriff) "must summon during the year approximately 1,000 jurors for all courts, which, at $250.00 a year, would be two bits a head."
Again we say, the sheriff is entitled to this allowance even under the appellant's argument at least once a year and the lower court's judgment on this count should be affirmed.
The demand under Count Six was based on Section 1789, Code of 1930 (Section 3936, Code of 1942) which reads as follows: "The sheriff may be allowed for entering, returning and serving the road overseer's commission, and for services required of him by the board of supervisors for which no fees are fixed, a sum not exceeding fifty dollars a year"; and Section 1789, Code of 1930, under Additional Fees (Section 3936 Code 1942) which reads as follows: "(a) . . . To be allowed by the circuit court and paid out of the county treasury; but in counties where there are two districts for circuit courts, the sheriffs may be allowed $300.00. And in counties of more than thirty-three thousand inhabitants not having two judicial districts, the maximum to be allowed may be $300.00. (b) For executing all decrees, judgments, orders of process of the Supreme Court, chancery courts, or boards of supervisors, the same fees as are allowed for similar services in the circuit court."
Again we say the Holmes County v. Ellis case, supra, and the Board of Supervisors v. Jones case, supra, control the judgment of the lower court for $25.00 in favor of the appellee on Count six should be affirmed.
In Count Seven the plaintiff sought to recover a balance due him of $2.00 per day each for himself and one deputy for attending the meetings of the Board of Supervisors during the years 1940, 1941, 1942, and 1943. He alleges that he was allowed $3.00 per day for himself or deputy when he should have been allowed $5.00 per day, leaving a balance due him for such services during said years of $440.00. The appellant successfully interposed the statute of limitations for the difference due for such services during the year 1940 and judgment was rendered on this count in favor of the plaintiff in the sum of $318.00.
Again we say the Holmes County case controls. The appellant's main argument against the judgment awarded under Count Seven seems to be based upon the proof. We know of no better proof of the service performed by the sheriff than the minutes of the Board of Supervisors which were offered and received in evidence. Certainly the minutes of the Board of Supervisors amounted to an adjudication of the service performed. For the proof of what the minutes reveal in regards to this service the record is complete. (See the testimony of the witness Clyde Easterling, pages 127-142 of the Transcript). In addition to the witness Easterling, the appellee testified as follows: (Transcript p. 12) "Q. I direct your attention to Count 7 of your declaration in which you claim that you attended the meetings of the Board of Supervisors of Forrest County, Mississippi, for the years 1940, 1941, 1942 and 1943, and were paid by the Board of such services at the rate of $3.00 per day, I will ask you to state whether or not you attended the meetings of the Board of Supervisors of Forrest County during those years? A. Yes, sir."
In Count Eight the plaintiff, M.W. Thompson, sought to recover the sum of $2,682.00 based on the hereinafter quoted statute and computed on its effective date, March 17, 1942, through the balance of the plaintiff's term as sheriff of Forrest County, Mississippi. Section 4173, Code of 1942, (Chapter 196 of the Laws of 1942).
We do not believe it was necessary for the Board to pass a resolution requesting the employment of additional deputies by the sheriff before they could authorize the payment to him of a remuneration under this statute. We think when individual members of the Board of Supervisors, the court, the District Attorney and various civic bodies concerned about law enforcement request the employment of additional deputies, and the sheriff complying with the request of all parties not only employs one but several additional deputies in order to meet the public need, the only discretion the board has lies between the minimum and maximum allowance authorized by the statute.
The Legislature in said statute employed the words "may" and "in the discretion."
This court when called upon to construe the meaning of the word "may" when used in State ex rel. Attorney General v. County School Board of Quitman County, 181 So. 313, ". . . In construing statutes the word `may' may be construed as mandatory in application, while `shall' may be construed as permissive rather than mandatory; although in ordinary usage `may' is used in a permissive sense, and `shall' is mandatory and excludes discretion — though not always. In Black on Interpretation of Laws, 2d Ed., at page 529, under the heading `Permissive and Mandatory Terms,' it is said: `Such terms and phrases are susceptible of being read in either a mandatory or a directory sense are presumed to have been used in their natural and primary signification, and should not be interpreted otherwise, unless it is necessary to carry out the purpose of the legislature, effect justice, secure public or private rights, or avoid absurdity. But words in a statute importing permission or authorization may be read as mandatory, and words importing a command may be read as permissive or enabling, whenever, in either case, such a construction is rendered necessary by the evident intention of the legislature or the rights of the public or of private persons under the statute'."
In Board of Mississippi Levee Com'rs v. Kellner, 196 So. 779, this court said: "Where a power is granted to a public board to be exercised at its `discretion,' the grant should be construed to mean a legal and not an arbitrary discretion."
To deny the cross-appellant's claim amounted to an arbitrary abuse of the discretion entrusted to the Board of Supervisors by the Legislature and, if not actually dishonest, amounted to a breach of good faith repugnant to honest and upright men.
In Count Nine the plaintiff sought to recover mileage and per diem for transporting 102 patients from Hattiesburg, Mississippi, to Whitfield, Mississippi, and 10 patients from Hattiesburg, Mississippi, to Meridian, Mississippi, amounting to the sum of $1,736.20. The plaintiff was only able to prove transportation of some of the patients and the court awarded a judgment to the plaintiff in the sum of $582.80 on Court Nine. The appellee was able to prove only a part of the claim and was required to rely entirely on his personal knowledge of prisoners or patients transported after October, 1941.
In computing the amount due and as shown by the claim the appellee sought to recover and recovered only 10¢ a mile traveled one way. Certainly with the statute providing a maximum of 10¢ a mile traveled each way, the expense claimed by the sheriff is most reasonable. An examination of the defendant's "Exhibit #1" will show regular claims propounded and allowances made for the transportation of lunatics and prisoners from the beginning of appellee's term in 1940 to October, 1941, corroborating the testimony of the appellee that prior to October, 1941, he allowed his deputies to perform this service and claim this compensation. That after October, 1941, the appellee increased his deputies' salaries and performed this service personally.
The appellant, in order to avoid the payment of this claim, makes much-a-do about the appellee's failure to itemize said claim, we think that the Holmes County v. Ellis case and the Board of Supervisors v. Jones case hold that it is not mandatory and essential to the validity of the claim.
In Count Ten the plaintiff sought to recover a balance due him of $2.00 per day for fifty days attendance by a deputy on the Board of Supervisors during the year 1943 where he had been allowed and paid the sum of $3.00 instead of the sum of $5.00 per day. Judgment was rendered on this count in the sum of $100.00 in favor of the plaintiff.
The statute cited and our argument in dealing with Count Seven of the declaration are pertinent to Count Ten and we respectfully submit the judgment of the court below should be affirmed as to this count.
The declaration in this case contains ten counts, with a separate adjudication by the trial court on each count. The action was brought in the circuit court of Forrest county against the county for certain fees claimed to be due the plaintiff for services while he was sheriff and tax collector. The term of his office included the years 1940, 1941, 1942, and 1943. Forrest county had a population of 34,901 inhabitants, according to the official 1940 United States census. It had also a county court. The fees and compensation claimed by the ex-sheriff, as plaintiff, were those fixed by the Legislature in counties having more than 33,000 residents.
The various claims of the plaintiff, M.W. Thompson, former sheriff, and the several defenses thereto by Forrest county, the defendant, will appear as we deal with each separate count. The lower court found for the plaintiff in some amount on all counts of the declaration, except numbers one, two, and eight. The judgment was for the county as to those three. The County appealed from the judgment of the trial court as to counts 3, 4, 5, 6, 7, 9 and 10. The ex-sheriff cross-appealed from the adverse decision against him on counts one and eight. No appeal was taken by either side as to count two, and it fades out of the case here. For the sake of convenience, we will refer to the defendant county as appellant, and to the plaintiff ex-sheriff as appellee. The declaration was filed August 18, 1947. The board of supervisors rejected all claims.
At the conclusion of all the testimony in the case, the final judgment of the court reveals that: "It thereupon appearing to the Court, and the attorneys for both the plaintiff and the defendant so announcing to the court that this cause had resolved itself into questions of law and the construction and application of the statutes involved to the facts disclosed by the testimony and evidence, the jury was discharged and this cause was taken under advisement by the court for the rendition of a final judgment herein. . . .".
Count No. 1.
Appellee here claimed $250 for each of the years of his term of office, a total of $1,000. The declaration alleged that: "among other duties, it was the plaintiff's duty to be the executive officer of the Forrest county court and to attend all of its sessions, and for which he is allowed by law the same fees for attendance and for other services as are allowed for like duties in the Circuit and Chancery Courts; . . .". Appellant plead the general issue, and a notice thereunder that it: "will offer evidence to prove and proving that the plaintiff, N.W. Thompson, was allowed and paid all sums due or to become due the said plaintiff for the years 1940, 1941, 1942 and 1943 and for summoning jurors or for other services rendered and not otherwise provided for during said years by reason of said allowances and payments, . . .". By this, it was meant that the statute did not intend a separate additional allowance to the sheriff for the county court, over and above the lump sum allowed for such services in the circuit and chancery courts, and such over-all lump sum had been paid in full.
The court rendered judgment for the defendant county on Count One, and, as stated, the plaintiff has filed a cross-appeal from such judgment.
In this connection, attention is called to Sec. 1604, Code 1942, prescribing the jurisdiction of county courts, which is: "concurrent with the courts of justices of the peace in all matters, civil and criminal, of which justices of the peace have jurisdiction; and it shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed, exclusive of costs and interest, the sum of one thousand dollars. It shall have exclusively the jurisdiction heretofore exercised by justices of the peace in the following matters and causes; viz., eminent domain, the partition of personal property, and actions of unlawful entry and detainer. Provided, that actions of eminent domain and unlawful entry and detainer may be returnable and triable before the judge of the said court in vacation." The jurisdictional amount of $1,000 set forth above was increased by the 1948 session of the Legislature.
By Sec. 1605, Code 1942, certain felony cases may be transferred from the circuit to the county court for trial, and the county court may try "all misdemeanor charges which may be preferred by the District Attorney or by the county prosecuting attorney on affidavit sworn to before the circuit clerk of the county; and prosecutions by affidavit are hereby authorized in misdemeanor cases under the same procedure as if indictments had been returned in the circuit court and the same had been transferred to the county court."
Rules of practice and procedure of justice, chancery, and circuit courts in cases within county court jurisdiction, are applicable to county courts. Speir v. Moseley, 158 Miss. 63, 130 So. 53.
(Hn 1) It is at once manifest from the foregoing that the county court has no newly devised jurisdiction, but only certain transferred jurisdiction originally exercised by the justice, chancery and circuit courts. Therefore, the sheriff in the county court performs duties that otherwise generally he would have performed in the other courts. This is important on the issue before us on this count of the declaration, in view of the statute which provides the compensation of $250, the amount plaintiff sought. That statute reads, in its pertinent part as follows: "(f) The sheriff shall receive for summoning jurors, impaneling grand juries, serving all public orders of the court in his county, and for all other public services not otherwise provided for, a sum only commensurate with the work as shown in fee-bill for services rendered, not exceeding, for each year, $250.00." Sec. 3952, (f), Code 1942.
The appellee contends that for the county court alone, plaintiff should have received an additional $250 per annum. In other words, such county should increase in the county court the annual compensation of the sheriff to an amount equal to what he would receive for the other courts together. He bases his claim on Sec. 1610, Code 1942, providing that "The clerk and sheriff shall receive the same fees for attendance, and for other services as are allowed by law to the clerk and to the sheriffs for like duties in the circuit and chancery courts; . . ."
We call attention to the phrase "commensurate with the work" in Sec. 3952, supra. This means, of course, that the allowance of $250 is a cover-all compensation for all courts, bringing the county court into the purview of the chancery and circuit courts share of such granted compensation, but not adding separately $250 for only county court services, while allowing only $125 each to the circuit and chancery courts. No such discrimination may be ascribed to the Legislature as it would be an unreasonable partiality to the county court. Nevertheless, the appellee having received $250 for each year under Sec. 3952, Sub-section (f), is complaining, that he should have $250 more per annum for the county court under Sec. 1610. The trial court disagreed with plaintiff, and we think rightly so.
This court has disposed of the matter, specifically, against the contention of the sheriff, dealing with a similar claim of the clerk, they bring bracketed together in said Section 1610. The Court held, and we quote from the second syllabus: "A circuit clerk, who was also ex officio county court clerk and who was allowed by circuit court $600 `for public services not particularly provided,' was not entitled to a similar allowance as county court clerk, since, under the statute, the compensation of county clerk is confined to fees `allowed by law' for like duties in circuit and chancery courts which requires that county clerk look to fixed schedules of fees for such services." Covington v. Quitman county, 196 Miss. 416, 17 So.2d 597. Therefore, the judgment of the trial court is affirmed as to Count No. 1.
Count No. 3.
Appellee's claim under this count is for $1,200, (Hn 2) being $300 for each year of his term of office, based on Sec. 699, Code 1930, Sec. 1610, Code 1942, the applicable part of which has already been quoted, supra. The declaration here alleged: "That the Board of Supervisors of Forrest County, Mississippi, have not paid him any part of the $300 per year allowed sheriffs for executing all decrees, judgments, etc., for the County Court for the years 1940, 1941, 1942 and 1943." The appellant filed pleas of general issue and of limitations, and the same notice under the general as set forth in our discussion of Count No. 1. The trial court allowed plaintiff $900, holding $300 to be barred by limitations.
In our opinion, this claim is governed by what we have said as to Count No. 1, and the plaintiff is not entitled to recover anything under this count. The case of Covington v. Quitman county, cited ante, also controls and refutes this claim of appellee. See also Sec. 1789, Code 1930, Sec. 3936, Code 1492. Therefore, the judgment of the circuit court is reversed as to Count No. 3, and judgment rendered in favor of appellant here.
Count No. 4.
The appellee's claim under this count is based on Sec. 1804, Code 1930, Sec. 3952, Code 1942, and he cites as authority for its allowance the cases of Holmes County v. Ellis, 195 Misc. 124, 13 So.2d 635, and Board of Supervisors v. Jones, 199 Miss. 373, 24 So.2d 844. The declaration alleges that: "the plaintiff was entitled under the law, to the sum of $750 per year for state fail cases in the Circuit Court for the years 1940, 1941, 1942 and 1943 amounting to the sum of $3,000. That for said years the said Board of Supervisors paid the plaintiff on state failed cases in the Circuit Court the sum of $1,048.30, leaving a balance due him of $1,951.70, and which has not been paid."
The decisions of this Court to which reference is made above do not here apply in aid of appellee's claim. The statute, on which is founded the demand under this count, is clear. It requires that the "sheriff's fees in state cases where the state fails in the prosecution or in cases of felony, in which the defendant is convicted, but is unable to pay the costs, to an amount not exceeding $750.00 in any year, shall be paid out of the county treasury when allowed by the board of supervisors on the certificate of the clerk that the account of the sheriff for his fees has been allowed by the circuit court and entered on the minutes." Sec. 3952, Code 1942, Sub-section g. (Italics ours.)
The contention of appellee is that Holmes County v. Ellis, supra, authorized the payment of the balance of $1,951.70, without itemization. However, the plain language of the statute quoted is a complete answer to such argument, in our opinion. Morover, mere failure of itemization is not the only feature involved in the defective composition and prosecution of the claim under this count. The sum of $1,048.30 had been allowed by the circuit court for the years for which payment thereof was made, entered on the minutes, and certified by the circuit clerk to the board of supervisors, who paid it to the plaintiff as sheriff. But, as to the balance claimed there was no such procedure as required by the statute.
(Hn 3) The trial court erroneously allowed appellee any sum whatever under this court, for the reasons stated.
Furthermore, appellee shows no compliance with our holding in Kitchens v. Union County, 198 Miss. 403, 22 So.2d 356. This claim for the balance, to make up the total of $750 per year, was not presented to the district attorney for examination and report to the circuit judge, and, as stated, was not allowed by the circuit court, no such allowance was entered upon its minutes, and certified by the clerk to the board of supervisors.
In our judgment, therefore, the board of supervisors correctly refused payment of the claim, and the trial court committed error by entering judgment for $1,480.90 in favor of appellee. The judgment of the circuit court is reversed, and judgment rendered here for appellant on Count No. 4.
Count No. 5.
The declaration as to this count charges that "The Board of Supervisors of Forrest County, Mississippi, have not paid any part of the $250 per year allowed for summoning jurors in the circuit court and for other services rendered and not otherwise provided for in connection with said court during the years 1940, 1941, 1942 and 1943, and which amounts to the sum of $1,000." The lower court awarded to appellee judgment for $900.
The applicable statute is Sec. 3936, Code 1942, formerly Sec. 1789, Code 1930. Appellee again bases his right to this allowance upon Holmes County v. Ellis, 195 Miss. 124, 13 So.2d 635; and Board of Supervisors v. Jones, 199 Miss. 373, 24 So.2d 844. However, we have reached the conclusion that such reliance is unjustified.
Appellee sheriff, as disclosed by the evidence, was paid $250 for the years 1941 and 1942, under Chap. 230, Laws 1940, Sec. 1, Sub-section F. It appears that appellee is claiming that the sheriff credited these payments under Court 6 of his declaration. It is clear from the proof in the record that appellee requested and was paid $250 pr annum for summoning jurors under Sec. 3952, Code 1942, Ch. 230, Laws 1940, for 1940 and 1941. He then collected $300 annually for summoning jurors in 1942 and 1943 under Sec. 3936, Code 1942. He has, therefore, been paid the total sum of $1,100. (Hn 4) Since the declaration was filed on August 18, 1947, at the time suit was filed, his claim for 1940 was barred by the six-year Statute of Limitations.
(Hn 5) However, appellee having collected only $250 for the year 1942, when he was entitled to $300 for that year, the county owes him a balance of $50 under Count No. 5. Since the amount we approve is less than the amount awarded in the trial court, no cross-appeal is necessary to obtain judgment therefor in this Court, and the fees being fixed by statute.
We, therefore, reverse the trial court in part on this count, and affirm it to the extent of $50 in favor of appellee, and judgment will be entered here accordingly.
Count No. 6.
The plaintiff declared for a balance of $25 in the following language: "That the plaintiff is entitled under the law to the sum of $50 per year for entering, returning and serving the road overseer's commission, and for services required of him by the Board of Supervisors for which no fees are fixed, for the years 1940, 1941, 1942 and 1943, and which amounts to the sum of $200. That the plaintiff is entitled under the law to the sum of $300 per year for executing all decrees, judgments, etc., for the Circuit Court for the years 1940, 1941, 1942 and 1943, which amounts to the sum of $1,200, all aggregating the sum of $1,400. That the Board of Supervisors during said period, paid to the plaintiff the sum of $1,375 leaving a balance due of $25, which has not been paid."
The trial court rendered judgment for $25 in favor of the appellee, and we affirm it. The compensation as to overseers' commissions is governed by Sec. 1789, Code 1930, now Sec. 3936, Code 1942. Its allowance was treated favorably to the claim of appellee by our decision in Board of Supervisors v. Jones, 199 Miss. 373, 24 So.2d 844. The matter of allowance for summoning jurors in the circuit court is embraced in Sec. 1789, Code 1930, now Sec. 3936, Code 1942, as is the matter of executing decrees and judgments, etc. The pertinent part of the statute dealing with the latter is: "for executing all decrees, judgments, orders of process of the supreme court, chancery courts, or boards of supervisors, the same fees as are allowed for similar services in the circuit court."
The proof does not show any payments on account of the $300 claimed yearly for executing judgments, decrees, etc., in the circuit court. The amounts credited on appellee's claim under this Count, No. 6, are clearly payments made for summoning juries, etc., and included and credited by us under Count No. 5, supra.
The account of appellee for serving road overseers' commissions must also be reduced in the amount of $50 for the year 1940, because barred by the six-year Statute of Limitations, so that appellee is entitled to only $150. (Hn 6) Appellee here undertook to recover $300 per year under sub-section (b) of Sec. 3936, Code 1942, supra, interpreting it as providing an additional allowance in that amount, annually, for executing judgments, and decrees of the circuit court. The statute there includes only the Supreme Court, Chancery Court, and Boards of Supervisors. Sec. 3936, b(a), Code 1942, makes only one allowance for circuit courts, as follows: "for summoning juries, impanelling grand juries, serving all public orders of the courts in his county, and for all other services not otherwise provided for, . . ." Hence, appellee was not entitled to collect any part of the $300 here claimed under this count.
(Hn 7) The declaration demanded only $25 under this count, and appellee won a judgment for that amount, and consequently filed no cross-appeal. We cannot do more than affirm the judgment, therefore, since we cannot increase the judgment here in view of the limited amount for which suit was brought, and since we would have to increase judgment of trial court in absence of a cross-appeal, although he could have successfully sued for $150 for serving overseers' commissions. However, no cross-appeal would lie here because appellee obtained all for which he sought in the trial court. The judgment of the trial court is affirmed on Count 6.
Count No. 7.
(Hn 8) Appellee made demand by this count for $444, claiming that under the law he was entitled as sheriff of Forrest County to the sum of $5 per day for attending the meetings of the board of supervisors, for himself and deputy, during its sessions during the four years of his term of his office, but was paid only $3 per day. The larger amount was due because the county was operating under Sec. 1789, Code 1930, now Sec. 3936, Code 1942, and not Sec. 1804, Code 1930, now Sec. 3952, Code 1942, — the population, according to the applicable Federal Census being 34,901. Recovery of the $2 difference is the basis of this count.
The lower court entered judgment for appellee for $318, rejecting $126, as barred by the Statute of Limitations. There was no cross-appeal therefrom. However, the matter is before us on direct appeal, assigning as error the allowance of any amount whatever, claiming res judicata.
We held in Holmes County v. Ellis, 195 Miss. 124, 13 So.2d 635, that where the population of the county was greater than that on the basis of which ex-sheriff had been allowed compensation for services rendered to county's circuit court and its board of supervisors during his term of office, he was entitled to recover additional compensation, and that allowances previously made for services, rendered were not "res judicata" of claim for such additional allowances. We there cited Sec. 1804, Code 1930, (e-g), now Sec. 3952, Code 1942; Laws 1932, Ch. 201.
The judgment of the circuit court is therefore affirmed as to Count No. 7.
Count No. 8.
Appellee intergrated this count into his declaration because "there was located in Forrest County, Mississippi, during the years 1942 and 1943 and while this plaintiff was the legally elected, qualified and acting Sheriff, a U.S. Army Camp, known as Camp Shelby, and, because of which, by virtue of Chap. 196 of the Laws of 1942, being Sec. 4173 of the Code of 1942, the Board of Supervisors could, in its discretion, pay an annual salary of not less than $800 nor more than $1,500 to regularly appointed deputy sheriff in said county. That the plaintiff did legally appoint and employ a deputy sheriff for said county to enforce law and because of which he became and is entitled to the renumeration authorized by said statute. The plaintiff charges that said statute became effective March 17, 1942, and continued, in existence throughout the balance of his term of office so that he became eligible for said renumeration in the discretion of said board in the sum of $1,500 per year from the effective date of said act, March 17, 1942, until January 1, 1944, and which amounts to the sum of $2,682.00."
The trial court found in favor of the appellant county on this count, and the ex-sheriff appellee brings it before us on a cross-appeal. Both sides asked for directed verdicts, and the motion of appellant was sustained. That of appellee was overruled, which he assigns as error.
The statute involved is 4173, Code 1942, Ch. 196, Laws 1942, and follows: "The board of supervisors of any county having a United States army camp or cantonment or ordinance plant located or being located, erected or built, either wholly or partially within said county may in the discretion of said board, pay annual salaries of not less than eight hundred dollars ($800.00) nor more than fifteen hundred dollars ($1,500.00) to regularly appointed deputy sheriffs in said counties."
The board of supervisors passed or adopted no resolution effectuating or implementing this statute. Appellee himself arbitrarily fixed the amount of his renumeration thereunder as $1,500, quite naturally choosing the largest sum involved. Appellee argues that it was not necessary for the board of supervisors to pass or adopt a resolution authorizing the payment of renumeration under this statute; and that the only discretion the board had was to fix the compensation between the minimum and maximum amounts. Neither did the board do this.
As authority for this position, appellee cites cases from several states, including the Mississippi case of State ex rel. Attorney-General v. County School Board of Quitman County, 181 Miss. 818, 181 So. 313, 315. These cases are to the effect that "the word `may' may be construed as mandatory in application, . . .". State, ex rel. Attorney General v. County School Board of Quitman County, supra. The trouble with such cases here is that statute involved reads "said county may in the discretion of said board." Discretion cannot be compelled in such statutes, and, furthermore, there is no charge of an abuse of discretion, even if that doctrine be applicable here, which is not the issue.
Appellant points out that "The Legislature of the State of Mississippi, in the exercise of its constitutional authority, saw fit by said statute to vest in the board of Supervisors the discretion, and the exclusive discretion, . . ." It is argued further on behalf of appellant that this permitted only the supervisors, and no one else, to determine whether or not, in the first instance, to pay annual salaries to any one or more regularly appointed deputy sheriffs, and how many, and how much. Appellee, on this count as cross-appellant, admits that no order was passed by the board under the statute, and also, significantly, that the "sheriff had made such appointments during 1940, the first year of his term, and at a time when the Act was not even in existence." The Act was passed in 1942, it will be recalled, so that appellee had made no new appointments thereunder. In other words, he had not increased his staff, but continued to operate with his former force. He had not been authorized by the board of supervisors to employ additional deputies to be compensated under the statute, although there was some discussion of the matter. The people of some communities, where deputies were stationed, paid part of the deputies' compensation.
(Hn 9) The board of supervisors having exercised its discretion against the allowance and payment of the amount claimed under this count, No. 8, the appellee is not entitled to collect from the county therefor. The trial judge so found, and the judgment is affirmed.
Count No. 9.
The declaration under this count is based on the following claim presented to the board of supervisors by one, Leland S. Smith, purporting to be an attorney in fact of appellee for said purpose. It was for:
"102 Patients for 96 miles or a total of 9,792 miles at 10¢ per Mile ....................... $ 979.20 "For himself and Deputy at $3.00 per day of ....... 612.00 ______ $1,591.20"
And, in addition:
"For carrying 10 prisoners from Hattiesburg to Meridian for 85 miles or 850 Miles at 10¢ per mile of $85.00 plus himself and make affidavit that the same is true and making a total of $1,736.20." The trial judge allowed appellee $582.80 of the amount demanded.
The pertinent statute is Sec. 4170, Code 1942, which provides that whenever the sheriff is required by law to remove a person on habeas corpus, change of venue, or otherwise, he shall make out an itemized statement of such amount of money actually expended or paid out by him for expenses in attending the removal; make oath that it is true and correct; and present it to the board of supervisors to be audited and allowed by them, as other claims are when presented to said boards, "and which sum of money so paid out by the sheriff and tax collector, or any of his deputies, so itemized and sworn to and presented to said board, above provided, shall be allowed and paid out of the county treasury."
Sec. (c) of this statute is of a similar nature as to transportation of persons of unsound mind to or from an asylum. The sub-section requires that the sheriff "make out a statement of his actual traveling expenses, including the expenses of lunatic and the expenses of any necessary escort, and made affidavit that the same is true and correct and present the same to the board of supervisors for audit and allowance; such claims for such expenses so actually incurred, when so itemized and sworn to and presented for allowance, as above, together with a per diem of $3.00 each for sheriff and escort, shall be paid to the sheriff and tax collector out of the county treasury."
(Hn 10) By reference to the claim, it will at once be manifest it did not comply with the statute. It was not sworn to by appellee or any one, but presented by an alleged attorney-in-fact. It contained no itemized statement of actual expenditures for expenses or actual expenses incurred. It was in no proper shape to be audited by the board of supervisors. If they had allowed and paid it, they would have done so against the plain provisions of the law, and, hence very properly refused to do so.
The appeal from the judgment of the circuit judge was taken by Forrest County, and no cross-appeal was filed by the ex-sheriff, even though the judgment of the trial court rejected a large and substantial portion of his claim under this count.
In view of what we have just written, the judgment of the trial court must be reversed, and judgment rendered here for appellant on this Count, No. 9.
Count No. 10.
(Hn 11) The appellee, under this count of his declaration, sought to collect $100, because, during the year 1943, he, as sheriff, furnished the board of supervisors a deputy in attendance on said board for a total of fifty days, for which he was paid by the board the total sum of only $150. He argues that under the law, and by virtue of the population of Forrest County, in excess of 33,000 inhabitants, he was entitled to the sum of $5 instead of $3, a total of $250 instead of $150 actually paid. The court awarded him a judgment for the difference of $100. We think this judgment was correct and it is affirmed. Sec. 3952, Code 1942, Ch. 230, Laws 1940; Holmes County v. Ellis supra.
For convenience and ready reference, we summarize our holdings, as follows:
The judgment of the trial court is affirmed on the cross-appeal of appellee on Count No. 1.
Neither side appealed as to Count 2, and no adjudication by us is required, or made.
We reverse the lower court as to Count No. 3, and enter judgment here in favor of appellant.
The same action by us also applies to Count No. 4.
We affirm the judgment of the lower court in the amount of $50, for reasons stated, but otherwise reverse it, with judgment here accordingly under Count No. 5.
The judgment of the lower court under Count No. 6 is affirmed, the amount being $25.
We affirm the judgment for $318 in favor of plaintiff rendered by the trial court under Count No. 7.
The appellee was cross-appellant under Count No. 8, the judgment of the trial court favoring the county, and we affirm it.
We reverse the lower court under Count No. 9, and render judgment here for appellant.
We affirm the judgment below in favor of appellee in sum of $100. on Count No. 10.
This case has required a great deal of care and painstaking examination and investigation here, which we have given it, and has necessitated a long opinion, since the case really involves ten separate lawsuits. The judgment of the trial court is affirmed on cross-appeal; on direct appeal, it is affirmed in part, reversed in part; and judgment rendered here for appellant, where so reversed.
Affirmed on cross-appeal; affirmed in part and reversed in part on direct appeal; and judgment rendered here for appellant; where so reversed.
I am of the opinion that Section 1610, Code of 1942, providing that the clerk of the Circuit Court shall be the clerk of the County Court, and that the sheriff shall be the executive officer of the County Court, and that these officers "shall receive the same fees for attendance, and for other services as are allowed by law to the clerk and to the sheriff for like duties in the circuit and chancery courts," was intended to provide an additional compensation for their services to that received by them for like duties in the Circuit and Chancery Courts.
The County Court is required to be in session each month of the year, whereas the Chancery and Circuit Courts are in session only for two or three terms during the year. It has not been the policy of the Legislature to impose additional duties upon these officers to the extent required by their services in the County Court without providing additional compensation to them for such services.
It is stated in the controlling opinion herein that the sheriff in the County Court performs duties that otherwise he would generally perform in the other courts. But in this connection I call attention to the fact that under Section 1604, Code of 1942, the County Court is given jurisdiction "concurrent with the courts of justices of the peace in all matters, civil and criminal of which justices of the peace have jurisdiction;" and it is provided that it shall have exclusively the jurisdiction heretofore exercised by justices of the peace in the following matters and causes; viz.: eminent domain, the partition of personal property, and actions of unlawful entry and detainer. The sheriff was not required to attend the courts of justices of the peace prior to the creation of the County Courts, nor is he now required to attend upon their sessions, but since the creation of the County Court he is required to perform duties formerly discharged by constables.
This view of the writer will apply to all of the counts in the declaration wherein additional compensation is claimed by the sheriff under and by virtue of the provision in Sec. 1610, Code 1942, supra, providing among other things that "the clerk and sheriff shall receive the same fees for attendance, and for other services (in the county court) as are allowed by law to the clerk and to the sheriff for like duties in the circuit and chancery courts."
I concur in the majority opinion as to counts 7, 9 and 10, but I am unable to agree with it as to the non-liability of the County under count 8, wherein the sheriff sues for compensation under Chapter 196, Laws 1942, (Section 4173, Code 1942) which provides that the Board of Supervisors of any County having a United States army camp or cantonment may in the discretion of said board, pay annual salaries of not less than $800 nor more than $1,500 to the sheriff for the employment or regularly appointed deputies in said counties. I think that the only discretion allowed the Board is as to the amount to be paid within the minimum limitation or $800 and the maximum limitation of $1,500; that the Legislature intended by the enactment of this statute to assure an ample force for the sheriff's office to enforce law and order in counties where one of these army camps was located; that the Legislature did not intend to leave it to the Boards of Supervisors as to whether the sheriff, whose duty it is to enforce the law, should have an ample force of deputies in that behalf. The responsibility for maintaining peace and order is upon the law enforcement officers and the criminal courts and not on the Board of Supervisors; and that, therefore, the Legislature recognized that the sheriffs in counties where an army camp had been located had found it necessary prior to the enactment of this statute to employ additional deputies and it was intended that he should be allowed funds with which to pay them with a discretion on the part of the Board of Supervisors as to the amount to be allowed at some figure within the limitation prescribed. If the Legislature had not intended to make it the duty of the Board of Supervisors to make such an allowance there would have been no reason to prescribe a minimum allowance to be made.