Opinion
No. 30826.
November 20, 1933.
CLERKS OF COURTS.
Under statutes regarding officer's failure to keep accounts as required by law, and regarding public acts that should appear by audit of official's books, state auditor, and not district attorney or Attorney General, may bring action against chancery clerk for expense of posting clerk's accounts in required uniform system of records (Code 1930, sections 3747, 3748, 3749, 3753).
APPEAL from Circuit Court of Forrest County.
Lotterhos Travis, of Jackson, for appellant.
A party cannot plead to the merits and thereafter question the capacity or right of the plaintiff to sue.
1 C.J., sec. 185, p. 118; 47 C.J., p. 184, sec. 345; Town of Scott v. Artman, 237 Ill. 394, 86 N.E. 595; State ex rel. Westhues v. Sullivan, 224 S.W. 327, 283 Mo. 546; Griffith's Mississippi Chancery Practice, sec. 314; Yeaton v. Lynn, 5 Pet. 224, 8 L.Ed. 105; Propagation of Gospel Soc. v. Pawlet, 4 Pet. 480, 7 L.Ed. 927; Hodges v. Kimball, 91 Fed. 845, 34 C.C.A. 103; Lewis v. Scoville, 94 Conn. 79, 108 App. 501; Mitchell v. Woodward, 16 Edl. 311, 43 App. 165; Smith v. Allen, 16 Ind. 316; Marshall v. Meyer, 8 Ky. Op. 17; Hartford v. Lewis, 2 Ky. Op. 70; Reisz v. Kansas City Southern R. Co., 148 La. 929, 88 So. 120; Dyer v. Drew, 14 La. Ann. 657; Tuthill v. Emerson, 7 La. 593; Scanlan v. Wright, 13 Pick. 523, 25 Am. D. 344; State v. Cox, 1 S.W.2d 787 (quashing Missouri State Highway Bd. v. Southern Surety Co. (A.), 290 S.W. 652); Baxter v. St. Louis Transit Co., 198 Mo. 1, 95 S.W. 856; Jantzen v. Emanuel German Baptist Church, 27 Okla. 473, 112 P. 1127; Leader Printing Co. v. Lowry, 9 Okla. 89, 59 P. 242; Beamish v. Noon, 76 Or. 415, 149 P. 522; Breckenridge Ice, etc., Co. v. Hutchens (Civ. App.), 260 S.W. 684; Hale v. Crown Columbia Pulp, etc., Co., 56 Wn. 236, 105 P. 480; McDonald v. Cole, 46 W. Va. 186, 32 S.E. 1033.
If said cause had continued and appellant had recovered a judgment there is no question but what under the statute the appellant could have given the appellees a valid receipt and release thereof.
George County Bridge Co. v. Catlett, 161 Miss. 120, 135 So. 217.
The state auditor has the right or authority under the statutes of this state to sue a county officer for nonfeasance in office.
Section 3748 of the Mississippi 1930 Code Annotated specifically confers upon the state auditor the right to sue a county officer for the cost of any examination, service or act by the chief inspector of any of his assistants, made necessary by the wilful fault of any such officer.
Section 3753 of the Mississippi 1930 Code Annotated, if here applicable, does not apply to a case where the state auditor is suing a county officer for nonfeasance.
In both cases cited below the court held that the state auditor did not have the right or authority to sue a state officer where the audit disclosed misfeasance, malfeasance or nonfeasance on the part of said officer. But the problem here involved, that is whether the state auditor can sue a county officer for nonfeasance, was not before the court in either the Lowry case or the Franklin case.
White v. Lowry, 162 Miss. 751, 139 So. 874; White v. Franklin, 165 Miss. 729, 140 So. 876.
F.M. Morris, of Hattiesburg, for appellees.
All of the authorities cited by counsel for appellant in support of the position that by the failure to first plead in abatement that the right to so plead is waived are found in cases wherein the error is alleged to exist after verdict.
Clearly there is a marked difference between the right to plead in abatement before the actual trial and after judgment rendered in the cause. The effect of this decision and of all of the decisions cited to support this position is now asserted in the statutory law of this state.
Statute of Jeofails, section 600, Code of 1930.
The wilful failure upon the part of the state official to install the system of accounts in the first sentence is nothing more or less than the nonfeasance of a state official, for which section 3753 provides a different method of suit and recovery and places that right in an entirely different official of the state.
The suits authorized by section 3748 are limited as are all other suits provided by in section 3753.
The state auditor does not have the right under section 3753 of the code to bring a suit against a county officer for nonfeasance in office.
Misfeasance, malfeasance or nonfeasance in public office is a crime or misdemeanor according to the nature of the offense; and in this particular act, as is hereinbefore set forth, nonfeasance is made a statutory offense. Criminal offenses are prosecuted by the district attorney and the attorney-general of the state in criminal prosecutions, and such acts as constitute malfeasance, misfeasance or nonfeasance are not excused or justified under the law by civil suits in the name of the state.
White, State Auditor, v. Lowry, 162 Miss. 751, 139 So. 874; White, State Auditor, v. Franklin et al., 165 Miss. 729, 140 So. 876.
This is an appeal from a judgment dismissing an action at law in which the appellant is the plaintiff. The declaration was filed by the appellant's predecessor in office, and the defendants thereto are Herbert Gillis, formerly clerk of the chancery court of Forrest county, and the Fidelity Deposit Company of Maryland, the surety on his official bond. It alleges, in substance, that the plaintiff, pursuant to section 3 of chapter 325, Laws of 1924, now appearing as section 3749, Code 1930, formulated and installed in the office of the chancery clerk of Forrest county, which office was then held by Gillis, a uniform system for the keeping of his public accounts, and that it then became the duty of Gillis to use, employ, and conform to that system in recording all the official acts of his office. This Gillis willfully, negligently, and carelessly failed and refused, either himself, or to permit his employees, to do, because whereof it became necessary for the plaintiff, in discharging his duty of auditing the books which should have been kept by Gillis, to "post all official accounts of the said office of the said Herbert Gillis as chancery clerk for the period of time from June 1, 1927, until the first Monday of January, 1928, in the said uniform system installed for said office as aforesaid;" the expense of so doing to the plaintiff being four hundred eighty-seven dollars and fourteen cents. The prayer of the declaration is for a recovery of the money so expended, together with interest, damages, and the attorney's fees allowed by the statute.
The appellees filed a plea in bar to this declaration, and thereafter filed a motion to dismiss the action on the ground that neither the appellant nor his predecessor in office had the right to bring it. This motion was sustained, and the cause was dismissed.
Two questions are presented for decision; First, Did the appellees waive their right to question the appellant's authority to bring the suit by pleading to the merits thereof; and, second, Has the auditor of public accounts the right to bring an action of this character?
We will pretermit the first of these questions and come at once to the second.
The appellees' contention is that under section 3753, Code 1930, the sole power to bring suits of this character is vested in either a district attorney or the attorney general.
Section 3748, Code 1930, is, in part, as follows: "The cost of any examination, service or act by the chief inspector or any of his assistants made necessary, or such part thereof as was made necessary by the wilful fault of any officer of the state or of the county or levee board, including the members of the boards of supervisors and all employees of the state, of the county and of the public institutions of the state, shall be recovered by the said chief inspector from such person in any court having jurisdiction thereof, and in addition thereto, the said chief inspector shall recover interest and damages in the sum of ten per cent., which said ten per cent. shall be allowed to the attorney, if any, that the said chief inspector may employ, and no part of the said ten per cent. shall be retained by the said chief inspector, but no suits shall be filed or attorney employed by said chief inspector until written notice to such officer or employee shall be given for thirty days to pay the said costs, as hereinafter provided."
This section expressly vests authority in the auditor of public accounts, who, under section 3747, Code 1930, is made the chief inspector and supervisor of public offices and institutions, to bring and maintain actions of this character.
But the appellees say that section must be taken in connection with the following provision of section 3753, Code 1930: "Instead of employing attorneys to assist him to recover any amounts due as aforesaid or for any illegal allowances or expenditures or amounts due as aforesaid, after the expiration of thirty days from the date of the demand for payment thereof, as aforesaid, the said chief inspector in the event such examination discloses misfeasance, malfeasance, or nonfeasance on the part of any such public officer or employee or other person, shall deliver a certified copy of said report to the district attorney or the attorney-general for such action as may be proper in the premises."
The failure of a public officer to keep his accounts in the manner required by the law is, of course, either a misfeasance, a malfeasance, or a nonfeasance; and therefore, according to the appellees, section 3753, Code 1930, modifies, or rather nullifies, the quoted provision of section 3748, and vests the sole authority to bring an action thereunder against a recalcitrant officer in a district attorney or the attorney-general.
The two statutes deal with different things; the first with the failure of an officer to keep his accounts in the manner required by law, and the second with public acts that appear, or that should appear, by an audit of the books of a public official, disclosing money due, from any cause, to the public body for which the books were kept. The right to bring an action under the first statute is for a specific default, and under the second for various defalcations of different characters. Consequently, the general language in the second cannot be held to modify, or, as here contended, destroy the authority given in the first.
But the appellees say that the words, "as hereinafter provided," appearing at the close of the excerpt from section 3748, Code 1930, hereinabove set out, indicates that the Legislature intended that the power there given to the auditor to sue should be qualified, as thereinafter provided, i.e., by section 3753, Code 1930.
If this is true, the Legislature did a vain and useless thing by investing the auditor with the power to sue for specific defalcations therein deal with. The words, "as hereinafter provided," manifestly refer, not to the power granted the auditor to institute a suit, as therein authorized, but to the written notice which the auditor must give to a recalcitrant officer before he employs an attorney and institutes the suit.
The case of White v. Lowry, 162 Miss. 751, 139 So. 874, is not in conflict herewith. The court was there dealing with a cause of action arising under section 3753, Code 1930, and simply held that the right given to the auditor to bring suits thereunder was qualified by the provision that suits thereunder arising, involving misfeasance, malfeasance, or nonfeasance, should be brought by a district attorney or the attorney-general.
Reversed and remanded.