Summary
In Tatum, the Legislature levied taxes on employers and required the funds to be placed into a trust fund for the benefit of persons who involuntarily lost their jobs.
Summary of this case from Hood v. StateOpinion
No. 32936.
January 10, 1938.
1. STATES.
The Federal Social Security Act is not a coercion of the states, which remain free to repeal their unemployment compensation laws and withdraw their funds from the federal trust fund (Social Security Act, 42 U.S.C.A., section 301 et seq.; section 904, 42 U.S.C.A., section 1104)
2. COURTS.
The state Supreme Court is not bound by a federal court's decision concerning the meaning or constitutionality of a state statute under the State Constitution.
3. STATES.
The state is sovereign over matters confided or reserved to it by the Tenth Amendment to the Federal Constitution (Const Miss, sections 6, 32; Const. U.S. Amend. 10).
4. STATES.
State sovereignty cannot be bargained away or surrendered by the Legislature (Const. Miss., sections 6, 32; Const. U.S. Amend. 10).
5. STATES.
Both the state and federal government have some jurisdiction over the problem of unemployment, and each may provide suitable laws to mitigate or prevent it.
6. STATES. CONSTITUTIONAL LAW.
The Unemployment Compensation Law does not infringe any of the sovereign powers retained by the state and recited in the State Constitution (Laws 1936, chapter 176, as amended by Laws 1936, First Special Session, chapter 3; Const. Miss., section 6).
7. STATES. CONSTITUTIONAL LAW.
The State Constitution declaring that the state has sole power over its affairs does not prevent co-operation between the state and federal governments, where each acts within its appropriate sphere, and may at any time reassert its full control over the subject-matter (Const. Miss., section 6).
8. STATES.
The Federal Constitution recognize the state's right to negotiate with the federal government and to make arrangements with sister states affecting their respective powers, with the appropriate consent of Congress.
9. STATES.
The federal government cannot acquire from a state a power within it, unless delegated to the government.
10. STATES. CONSTITUTIONAL LAW.
The Federal Social Security Act may name a provision governing the grant of aid or advantages to a state, which is free to accept or reject it, provided it does not infringe the State Constitution or rights reserved in the Tenth Amendment (Social Security Act, 42 U.S.C.A., section 301 et seq.; Cons. Miss., section 32; Const. U.S. Amend. 10).
11. CONSTITUTIONAL LAW.
Under its police power, a state has large authority and discretion concerning the recognition of public needs, and may provide therefor by suitable legislation.
12. STATES. CONSTITUTIONAL LAW.
The Unemployment Compensation Law does not violate the State Constitution prohibiting appropriation bills which do not fix the maximum sum to be drawn from the treasury; the fund provided for being a trust fund, and not a fund to be placed in the state treasury, nor a fund for operating the state government (Laws 1936, chapter 176, as amended by Laws 1936, First Special Session, chapter 3; Const. Miss., section 63).
13. STATES. CONSTITUTIONAL LAW.
The Unemployment Compensation Law provides for a trust fund, to be withheld from the state treasury, and hence does not violate or come within the State Constitution governing the passage and duration of appropriation laws (Laws 1936, chapter 176, as amended by Laws 1936, First Special Session, chapter 3; Const. Miss., section 64).
14. STATES. CONSTITUTIONAL LAW.
The section of the State Constitution providing for semiannual statements showing the condition of the treasury refers to funds properly and legally confided to the state treasurer, and neither that section nor a preceding section providing for the office of treasurer is violated by the Unemployment Compensation Law providing for a trust fund to be placed by the treasurer in depositories and disbursed by him in the manner authorized (Laws 1936, chapter 176, as amended by Laws 1936, First Special Session, chapter 3; Const. Miss., sections 134, 137).
15. STATES.
The Legislature may impose a duty on the state treasurer in addition to the duties imposed by the State Constitution (Const. Miss., section 134).
16. CONSTITUTIONAL LAW. Master and Servant.
The Unemployment Compensation Law authorizing its suspension for not more than six months if the Governor finds that the Federal Social Security Act has been amended or repealed, or declared unconstitutional by the federal Supreme Court, thereby subjecting Mississippi employers to competitive disadvantage, is not objectionable as delegating legislative functions (Laws 1936, chapter 176, as amended by Laws 1936, First Special Session, chapter 3).
17. CONSTITUTIONAL LAW.
The Legislature cannot delegate the function of fixing the conditions under which an act may operate or cease, but may itself fix the conditions and confide to some suitable agency of the state the fact-finding function as to whether the conditions exist.
APPEAL from the chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.
Green, Green Jackson, of Jackson, for appellants.
We recognize that as to the federal questions, the decisions in Stewart Machine Co. v. Davis, 81 L.Ed. 779; Helvring v. Davis, 81 L.Ed. 804, and Carmichael v. Southern Coal Coke Co., 81 L.Ed. 811, are, by reason of being decisions of the Supreme Court of the United States, conclusive as to those federal questions there involved under the Federal Constitution, but the points herein relied upon are pressed under the State Constitution, whereasto, while this court has the greatest deference for the Supreme Court of the United States, it cannot forego its obligation to decide according to its convictions. Brien v. Williamson, 7 How. 14, declining to follow Groves v. Slaughter, 15 Peters 449, 10 L.Ed. 801.
Mississippi is a sovereign state, a member of an indissoluble union, with plenary power over unemployment, exclusive of national authority thereasto, but by the Federal Social Security Act this sovereignty is impaired and subordinated.
Farrington v. Tennessee, 95 U.S. 679, 24 L.Ed. 558; Ashton v. Cameron County, 298 U.S. 531, 80 L.Ed. 1314; Worcester v. Georgia, 6 Peters 515, 80 L.Ed. 483; Texas v. White, 7 Wall. 700, 19 L.Ed. 227; Stewart Machine Co. v. Davis, 81 L.Ed. 779; Chamberlin v. Andrews, 286 N.Y. Supp. 261; U.S. v. Butler, 297 U.S. 1, 80 L.Ed. 477, 102 A.L.R. 914; Schechter Poultry Corp. v. U.S., 295 U.S. 542, 79 L.Ed. 1587; Railroad Retirement Board v. Alton, etc., Co., 295 U.S. 330, 79 L.Ed. 1468; Moor v. T. N.O.R., 297 U.S. 101, 80 L.Ed. 509; Wilkinson v. Rahrer, 140 U.S. 554, 35 L.Ed. 574; U.S. v. Curtis Wright Export Corp., 81 L.Ed. 166; Carter v. Carter Coal Co., 298 U.S. 238, 80 L.Ed. 764; Hamner v. Dagenhart, 247 U.S. 251, 62 L.Ed. 1101, 3 A.L.R. 649; Bailey v. Drexel Furn. Co., 259 U.S. 38, 66 L.Ed. 820; Pennsylvania v. Mahon, 260 U.S. 393, 67 L.Ed. 322; Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L.Ed. 446.
Mississippi's constitutional provisions as to Mississippi's public moneys are specifically overridden by Congress.
Sections 6, 33, 63, 64, 134, and 137, Mississippi's Constitution; Colbert v. State, 86 Miss. 769, 39 So. 65; Taylor v. Guy, 119 Miss. 357, 80 So. 786; I.I. C. Case, 81 Miss. 193; Section 503, Federal Act, Title III, 42 U.S.C.A., page 119, Supp.; Sections 604, 1104, 42 U.S.C.A.; Carter v. Carter Coal Co., 298 U.S. 314, 80 L.Ed. 1191; Sec. 20, Chapter 176, Laws of Mississippi 1936; State Revenue Agent v. Tonella, 70 Miss. 701; Mississippi Law Journal, May 1937, page 416; Stewart Machine Co. v. Davis, 81 L.Ed. 799; Alcorn v. Hamer, 38 Miss. 652; Clark v. State, 169 Miss. 369, 152 So. 820; Board v. Davis, 59 So. 811, 102 Miss. 497.
That ordinarily deemed controlling is control purse string, and under this act (a) funds received immediately go to Federal Treasury; (b) funds are deposited in bank with no responsibility upon Secretary Treasury in case failure of bank; (c) Secretary authorized to invest fund in obligations of United States, wherein consider United States has impaired obligations, and such obligations may be sold at market price, wherein consider, Liberties selling below 90, and for such loss no compensation is provided, Mississippi being forced to take as Congress demands (Perry v. U.S., 294 U.S. 330, 79 L.Ed. 912); (d) Secretary is authorized to pay to any state agency such amount as it may duly requisition, etc., but no judicial machinery in Mississippi is adequate to make available, political pressure constituting substantially extent state rights; (e) entire program is one of trial and error, Congress mandatorily requiring all legislation thereasto determinable at pleasure; (f) there is no judicial review or appeal from action Federal Board; (g) as to payment of compensation Congress has so regulated as to subordinate welfare of the states as determined by their own legislatures; (h) State Legislature must authorize payment only through agencies approved by the Board; (i) Congress dictates time payments begin; (j) State Agency is powerless to defend its actions.
Stewart Machine Co. v. Davis, 81 L.Ed. 799; Ashton v. Cameron County, 298 U.S. 531, 80 L.Ed. 1314; Alcorn v. Hamer, 38 Miss. 652; O'Donohue v. U.S., 289 U.S. 531, 77 L.Ed. 1361; U.S. v. Butler, 297 U.S. 1, 80 L.Ed. 477; McCullough v. Maryland, 4 Wheat. 316, 4 L.Ed. 579; Carter v. Carter Coal Co., 298 U.S. 238, 80 L.Ed. 1160; American Bar Association Journal, Article by Judge Henry St. George Tucker, July 12, 1927, 363, and August 1927, 466; Perry v. U.S., 294 U.S. 330, 79 L.Ed. 92; Chapter 176, Mississippi Laws 1936, page 279.
The Governor may not exercise legislative or judicial powers, both of which are hereunder sought to be imposed, and "if within the aforesaid six months' period, the Governor shall find that other federal legislation has been enacted which avoids the competitive disadvantage herein described," then the act is again to become operative.
Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L.Ed. 446.
We contend that as to the period after September 19, 1936, the act is conditioned by federal legislation and executive action, which is outside of the valid powers of the Governor under Sections 1 and 2 of Mississippi's Constitution.
A continuing appropriation is made, whereunder irrespective of the time when the right to a benefit occurs, the proceeds are under this statute made available therefor, even though the funds therefor requisite may arise six months after the convening of the next Legislature.
I.I. C. Case, 81 Miss. 193, 32 So. 314; Dacus v. Johnston, 185 S.E. 502; People v. Russell, 142 N.E. 542, 311 Ill. 96; Holmes v. Olcott, 189 P. 206.
Whether funds have been appropriated to pay a particular claim is a question of law, determinable by the statutory law of the state. The constitutional restrictions with reference to appropriations are in the highest degree mandatory and the legislative power to make appropriations can lawfully be exercised only in the manner contemplated by the constitution.
59 C.J., page 241, and sec. 396, page 257.
Mississippi's Constitution is flagrantly violated by a continuing appropriation, if in no other aspect.
Under the appropriation sought to be made available to the Compensation Commission, continuing payments would be made through the Treasury without any attempt at further legislation thereasto. The act as approved by the Social Security Board, required the administration of these amounts to be made irrespective of Mississippi's laws "requiring specific appropriations" "despite any provision of law relating to the deposit, administration, release or disbursement of money in the possession or custody of the State . . . by the state to the contrary notwithstanding." Furthermore, there was not in this appropriation either as to the compensation fund or the administration fund, the requisite certainty as to amount to comply with Section 63.
Menefee v. Askey, 107 P. 159, 27 L.R.A. (N.S.) 537; State Board of Dental Examiners v. Pollock, 125 Okla. 170, 256 P. 927; Colbert v. State, 86 Miss. 769; State v. Cole, 81 Miss. 174.
John H. Holloman, of Columbus, and J.A. Lauderdale, Assistant Attorney-General, for appellees.
The act requires from employers certain contributions, dedicated in advance to the purpose of mitigating and preventing the social and economic evils of unemployment found by the Legislature to constitute a serious menace to the welfare of the people of the State. Whether the plan proposed will or will not entirely afford the relief expected; whether the mechanics devised will or will not wholly achieve the ends sought; whether the particular classification of beneficiaries is or is not the wisest; whether any particular section apart from the measure as a whole is or is not appropriate; whether those affected by it may or may not be inconvenienced; whether the statute is or is not inconvenient, burdensome, unwise, unjust, unreasonable, immoral, impolitic, or opposed to public policy or the spirit of the Constitution; whether the manner in which it might be administered, operated, or enforced be or be not efficient, wise or arbitrary — none of these is, or can be, the question at issue. These are not questions for the court, but exclusively for the Legislature.
Clark v. State, 169 Miss. 369, 152 So. 820; Miss. State Tax Commission v. Flora Drug Co., 167 Miss. 1, 148 So. 373; Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159; Moss v. Live Stock Sanitary Board, 154 Miss. 765, 122 So. 776; State v. Crescent Cotton Oil Co., 116 Miss. 398, 77 So. 185; State v. Henry, 87 Miss. 125, 40 So. 152; Alcorn v. Hamer, 38 Miss. 652.
But whether, in the light of all available facts, the act, under attack, of the State Legislature, to provide unemployment compensation to those involuntarily unemployed, out of funds derived from a levy upon employers, constitutes a reasonable exercise bounds as to its specific terms and provisions — that is the question at issue.
The adoption of an insurance or reserve plan to mitigate the economic and social evils of involuntary unemployment is a reasonable and proper means of accomplishing legitimate legislative purposes. The problem of unemployment is a matter of grave public concern and the objective of the act, to mitigate the burdens of unemployment, is a proper public purpose and appropriate for state legislative action.
Chamberlin v. Andrews, 271 N.Y. 1, 2 N.E.2d 22; Gillum v. Johnson, 62 P.2d 1037; Howes Bros. Co. v. Unemployment Compensation Commission, 5 N.E.2d 720; Beeland Wholesale Co. v. J.L. Kaufman, 174 So. 516; Carmichael v. Southern Coal Coke Co., 81 L.Ed. 811; Kelly v. Pittsburgh, 104 U.S. 78.
The unemployment insurance or compensation plan adopted by the Mississippi Legislature is a fair and reasonable method of meeting some of the problems of large scale unemployment.
Green v. Frazier, 253 U.S. 233.
A wealth of experience confirms the conclusion that a state plan of unemployment compensation or insurance is a reasonable measure.
A wealth of judicial decisions sustains the constitutionality of the Mississippi Unemployment Compensation Law as a valid and reasonable exercise of its sovereign power.
The unemployment compensation laws of the States of Alabama, California, Massachusetts, and New York, all substantially similar to the Mississippi statute, have been before the courts of last resort of those states on constitutional issues. Their constitutionality has been sustained, against every attack that has been made against the case at bar.
Beeland Wholesale Co. v. Kaufman, 174 So. 516; Gillum v. Johnson, 62 P.2d 1037; Howes Bros. Co. v. Unemployment Compensation Commission, 5 N.E.2d 720; Chamberlin v. Andrews, 271 N.Y. 1, 2 N.E.2d 22, 299 U.S. 515, 159 Misc. Rep. 124, 286 N YS. 242; Carmichael v. Southern Coal Coke Co., 81 L.Ed. 811.
The power of the state to impose the costs upon employers only is well established, they being a general group or class whose activities are reasonably related to the conditions sought to be relieved.
Coca Cola Co. v. Stillman, 91 Miss. 677, 44 So. 985; Enochs v. State, 133 Miss. 107, 97 So. 534; State v. G.M. N.R.R. Co., 138 Miss. 70, 104 So. 689; State v. Evans-Terry Co., 173 Miss. 526, 159 So. 658; Notgrass Drug Co. v. State, 165 So. 884; Ohio Oil Co. v. Conway, 281 U.S. 146; Hicklin v. Coney, 290 U.S. 169; Chamberlin v. Andrews, 286 N.Y.S. 242, 276 N.Y. 1, 2 N.E.2d 22; Beeland Wholesale Co. v. Kaufman, 174 So. 516; Carmichael v. Southern Coal Coke Co., 81 L.Ed. 811; Noble State Bank v. Haskell, 219 U.S. 104; Abie State Bank v. Bryan, 282 U.S. 765; Chicago, R.I. P.R. Co. v. Zernecke, 183 U.S. 582; Charlotte, C. A.R. Co. v. Gibbes, 142 U.S. 386; Nashville, C. St. L.R. Co. v. Alabama, 128 U.S. 96; McGlone v. Womack, 129 Ky. 274; Cole v. Hall, 103 Ill. 30; State v. Cassidy, 22 Minn. 312; Fire Dept. v. Noble, 3 E.D. Smith (N.Y.) 440; Exempt Firemen's Fund v. Roome, 29 Hun. (N.Y.) 391; Firemen's Benevolent Assn. v. Lounsbury, 25 Ill. 511; Fire Dept. v. Helfenstein, 16 Wisc. 136; Cooley v. Board of Wardens, 12 How. 299; New York Central R. Co. v. White, 243 U.S. 188; Hawkins v. Bleakly, 243 U.S. 210; Mountain Timber Co. v. Washington, 243 U.S. 219; Arizona Employers' Liability cases, 250 U.S. 400.
The pooling of receipts in a single fund for the payment of unemployment compensation benefits is not in violation of any provisions of the constitution.
Beeland Wholesale Co. v. Kaufman, 174 So. 516; Gillum v. Johnson, 62 P.2d 1037; Howes Bros. Co. v. Unemployment Compensation Commission, 5 N.E.2d 720; Chamberlin v. Andrews, 271 N.Y. 1, 2 N.E.2d 22; Carmichael v. Southern Coal Coke Co., 81 L.Ed. 811; Lowell Cooperative Bank v. Cooperative Central Bank, 287 Mass. 338; Noble State Bank v. Haskell, 219 U.S. 104; Mountain Timber Co. v. Washington, 243 U.S. 219.
The Unemployment Compensation Law does not constitute a surrender or abdication of sovereignty of the State nor does it constitute or contain any unlawful delegation of legislative power or authority.
Steward Machine Co. v. Davis, 81 L.Ed. 779; Carmichael v. Southern Coal Coke Co., 81 L.Ed. 811; Watkinson v. Hotel Pennsylvania, 187 N.Y.S. 278, 231 N.Y. 562; Alcorn v. Hamer, 38 Miss. 652; Williams v. Cammack, 27 Miss. 209; Schulherr v. Bordeaux, 64 Miss. 59; Ormond v. White, 37 So. 834; People ex rel. Doscher v. Sisson, 222 N.Y. 387, 118 N.E. 789; State v. Grosjean, 182 La. 298, 161 So. 871; J.W. Hampton, Jr. Co. v. U.S., 276 U.S. 395.
The Unemployment Compensation Law violates neither Section 63, 64, 134 nor 137 of the State Constitution.
Trahan v. State Highway Commission, 151 So. 178; State ex rel. Trahan v. Price, 151 So. 566; Matter of Clark v. Sheldon, 106 N.Y. 104; People ex rel. Evans v. Chapin, 101 N.Y. 682; Attorney-General of New York v. North American Life Ins. Co., 82 N.Y. 172; Brooklyn Borough Gas Co. v. Bennett, 154 Misc. 106, 277 N Y Supp. 203; People ex rel. Eisenfeld v. Murray, 4 App. Div. 185, 38 N.Y. Supp. 909; State v. Board of Supervisors of Grenada County, 141 Miss. 701, 105 So. 541.
Assuming, but not conceding, that Sections 63 and 64 of the State Constitution are applicable to the issues in this case, appellees say that the statute under consideration fully satisfies the requirements thereof.
Edwards v. Childers, 102 Okla. 152, 228 P. 472; Gamble v. Velarde, 13 P.2d 559; Peters v. State, 34 P.2d 286; State Board of Dental Examiners v. Pollock, 125 Okla. 170, 256 P. 927.
Sections 134 and 137 are neither applicable nor, if applicable, violated.
State v. Edwards, 93 Miss. 704, 46 So. 964; Steward Machine Co. v. Davis, 81 L.Ed. 779.
The Mississippi Unemployment Compensation Law discloses no other feature not within the requirements of the Mississippi Constitution. The classifications and exemptions contained in the statute are fair and reasonable.
State v. Evans-Terry Co., 173 Miss. 526, 159 So. 658; State v. G.M. N.R. Co., 138 Miss. 70, 104 So. 689; Notgrass Drug Co. v. State, 165 So. 884.
The courts have uniformly held classifications or exclusions on the basis of differences in number to be reasonable and valid.
Chamberlin v. Andrews, 286 N.Y.S. 242, 271 N.Y. 1, 2 N.E.2d 22, 299 U.S. 515; Beeland Wholesale Co. v. Kaufman, 174 So. 516; Carmichael v. Southern Coal Coke, 81 L.Ed. 811; Howes Bros. Co. v. Unemployment Compensation Commission, 5 N.E.2d 70; Gillum v. Johnson, 62 P.2d 1037; St. Louis Consolidated Coal Co. v. Ill., 185 U.S. 203; McLean v. Arkansas, 211 U.S. 539; Booth v. Indiana, 237 U.S. 391; Middleton v. Texas Power L. Co., 249 U.S. 152; Jeffrey Mfg. Co. v. Blagg, 235 U.S. 571; State v. Evans-Terry Co., 173 Miss. 526, 159 So. 658; State v. G.M. N.R. Co., 138 Miss. 70, 104 So. 689; State v. Rombach, 112 Miss. 737, 73 So. 721; Quong Wing v. Kirkendall, 223 U.S. 59.
There is nothing arbitrary, capricious or unreasonable in the exemption of those who employ agricultural laborers, domestic servants, seamen, close relatives, or to exclude charitable institutions, or the government of the United States or of this State or any other state or political subdivision.
Carmichael v. Southern Coal Coke Co., 81 L.Ed. 811; State v. Evans-Terry Co., 173 Miss. 526, 159 So. 658; State v. G.M. N.R. Co., 138 Miss. 70, 104 So. 689; Notgrass Drug Co. v. State, 165 So. 884, Beeland Wholesale Co. v. Kaufman, 174 So. 516; Gillum v. Johnson, 62 P.2d 1037; Howes Bros. v. Unemployment Compensation Commission, 5 N.E.2d 720; Chamberlin v. Andrews, 286 N.Y.S. 242, 271 N.Y. 1, 2 N.E.2d 22, 299 U.S. 515; Flynt v. Stone-Tracey Co., 220 U.S. 107; Knowlton v. Moore, 178 U.S. 41; Brubasher v. Union Pacific R.R., 240 U.S. 1; Bromley v. McCaughn, 280 U.S. 124; New York Trust Co. v. Eisner, 256 U.S. 345; Utah Power Light Co. v. Pfost, 286 U.S. 165; Citizens Tel. Co. v. Fuller, 229 U.S. 332; Billings v. Illinois, 188 U.S. 97; Keeney v. New York, 222 U.S. 525; Northwestern Life Ins. Co. v. Wisconsin, 247 U.S. 122.
Freedom of contract is not violated.
Howes Bros. Co. v. Unemployment Compensation Commission, 5 N.E.2d 720; State v. J.J. Newman Lbr. Co., 102 Miss. 802, 59 So. 923; West Coast Hotel Co. v. Parrish, 81 L.Ed. 455.
Section 122 of the Constitution is not violated.
Daly v. Swope, 47 Miss. 367; Clarksdale Ins. Agency v. Cole, 87 Miss. 637, 40 So. 228; State v. Gulf R. Co., 138 Miss. 70, 104 So. 689; State v. Widman, 112 Miss. 1, 72 So. 782; Jackson Fertilizer Co. v. State Tax Commission, 173 Miss. 183, 162 So. 170; Southern Package Corp. v. State Tax Commission, 174 Miss. 212, 164 So. 45; Notgrass Drug Co. v. State Tax Commission, 175 Miss. 358, 165 So. 884.
There is no unconstitutional delegation of power to the Unemployment Compensation Commission.
Abbot v. State, 106 Miss. 340, 63 So. 667; Ex parte Fritz, 86 Miss. 222, 38 So. 722; Cox v. Wallace, 100 Miss. 525, 56 So. 461; Jones v. Belzoni Drainage District, 102 Miss. 796, 59 So. 921; State v. Board of Sup'rs, Grenada County, 141 Miss. 701, 105 So. 541; Hawkins v. Hoye, 108 Miss. 282, 66 So. 741; Clark v. State, 169 Miss. 369, 152 So. 820; Marshall Field Co. v. Clark, 143 U.S. 649; Darweger v. Staatts, 267 N.Y. 290, 196 N.E. 61; Black's Constitutional Law (4 Ed.), pages 110 and 111.
Argued orally by Garner Green, for appellant, and by John Holloman and J.A. Lauderdale, for appellee.
The appellants were complainants in the court below, and filed a bill herein, challenging the validity of the Mississippi Unemployment Compensation Law, chapter 176, Laws of 1936, and amendments, chapter 3 of the Special Session Laws of 1936, First Session, and the Social Security Act of the United States, 42 U.S.C.A., section 301 et seq., upon the subject of Unemployment Compensation; and for the recovery of specific taxes paid by the complainant to the defendant for the period beginning April 1, 1936, ending June 30, 1936; July 1, 1936, to September 30, 1936; and from October 1, 1936, to December 31, 1936; and for an injunction to prevent future enforcement of the acts.
The appellants, complainants below, are engaged in manufacturing timber into lumber, and have been so engaged for a number of years, employing in the conduct of their business more than 8 employees, to-wit, about 350. The bill sets out the approximate amount of wages paid to these employees, and alleges that it has a right to conduct the business, and a right to contract with employees, as it has heretofore done; that such right is property, which right the appellant is entitled to exercise without let or hindrance, under the Constitution; that it has contributed, under the National Security Act, the sum named in the bill; that the employees of appellant are of full age, competent to contract; and that "each employe must return to the operation an amount in excess of the wages by him therefrom taken; otherwise he would be a profitless servant and ultimately destroy the operation." They further allege that in making contracts of employment such contracts were satisfactory to both employer and employee; and set up many other allegations not necessary to state in full herein, but seeking to challenge the constitutional validity of the act of the Mississippi Legislature, and of the Social Security Act of the federal government, which co-operates with the Mississippi Unemployment Compensation Act in providing a fund to pay persons and employees of persons or corporations employing in excess of 8 persons.
Subsequent to the filing of the suit the United States Supreme Court decided a case in which it held that the Federal Social Security Act was constitutional, and that state acts co-operating with the Federal Social Security Act involved in its decision did not violate any provision of the Federal Constitution. See Carmichael, Atty.Gen., v. Southern Coal Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327; Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279, 109 A.L.R. 1293, and Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307, 109 A.L.R. 1319. The appellant, in his brief, concedes that these decisions establish the constitutionality of the Mississippi Unemployment Compensation Act, in so far as any question under the Federal Constitution is concerned; but contends that the act is in conflict with a number of provisions of the Mississippi State Constitution of 1890.
The Legislature, in enacting this law, laid down certain criteria as to the policy of the state in the matter, the purpose of the law, and various provisions for the collection of funds from employers to carry out its requirements, as well as the machinery for its administration in the payment of benefits accruing thereunder. In chapter 3 of the Special Laws of 1936, First Session, amending section 2 of the original act, among the purposes stated by the Legislature is the following:
"As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. This can be provided by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The legislature, therefore, declares that in its considered judgment the public good, and the general welfare of the citizens of this state require the enactment of this measure, under the police powers of the state, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.
"(b) The legislature hereby finds and declares that the existence and continued operation of a federal tax upon employers, against which some portion of the contributions required under this act may be credited, will protect Mississippi employers from undue disadvantages in their competition with employers in other states. If at any time, upon a formal complaint to the governor, he shall find that title IX of the social security act has been amended or repealed by congress or has been held unconstitutional by the supreme court of the United States, and that, as a result thereof, the provisions of this act requiring Mississippi employers to pay contributions will subject them to a serious competitive disadvantage in relation to employers in other states, he shall publish such findings and proclaim that the operation of the provisions of this act requiring the payment of contributions and benefits, shall be suspended for a period of not more than six months. The commission shall thereupon requisition from the unemployment trust fund all moneys therein standing to its credit, and shall direct the state treasurer to deposit such moneys, together with any other moneys in the unemployment compensation fund, as a special fund in any banks or public depositories in this state in which general funds of the state may be deposited.
"In all other cases, and unless the governor shall issue such proclamation, this act shall remain in full force and effect.
"If within the aforesaid six months' period the governor shall find that other federal legislation has been enacted which avoids the competitive disadvantage herein described, he shall forthwith publicly so proclaim, and upon the date of such proclamation, the provisions of this act requiring the payment of contributions and benefits shall again become fully operative as of the date of such suspension with the same effect as if such suspension had not occurred. If within such six months' period no such other federal legislation is enacted, or the legislature of this state has not otherwise prescribed, the commission shall, under regulations prescribed by it, refund, without interest, to each employer by whom contributions have been paid his pro rata share of the total contributions paid under this act. Any interest or earnings of the fund shall be available to the commission to pay for the costs of making such refunds. When the commission shall have executed the duties herein prescribed and performed such other acts as are incidental to the termination of its duties under this act, the governor shall by public proclamation declare that the provisions of this act, in their entirety, shall cease to be operative.
"(c) If at any time the provisions of this act requiring the payment of contributions and benefits shall be held invalid under the constitution of this state by the supreme court of this state or invalid under the United States constitutions by the supreme court of the United States, the commission shall forthwith requisition from the unemployment trust fund all moneys therein standing to the credit of the commission, and shall direct the state treasurer to deposit such monies together with any other monies in the unemployment compensation fund, in any banks or public depositories in this state in which general funds of the state may be deposited. If within six months after the date of such decision, the legislature of this state enacts a new unemployment compensation law, such monies shall be paid into the unemployment compensation fund established thereunder. If within such six months' period, the legislature of this state has not enacted a new unemployment compensation law, the commission shall, under regulations prescribed by it, refund, without interest, to each employer by whom contributions have been paid, his pro rata share of the total contributions paid under this act. Any interest or earnings of the fund shall be available to the commission to pay for the costs of making such refunds. The provisions of this act, so far as necessary to the execution by the commission of the duties prescribed in this section and to the performance of such other acts as are incidental to the termination of its duties under this act, shall remain in full force and effect until the completion thereof.
"(d) Refunds provided under subsections (b) and (c) of this section shall not be subject to any provisions of law requiring specific appropriations or other formal release by state officers of monies in their custody."
The act provided in detail for the creation of a fund for those who should be eligible thereunder, and entitled to benefits, and for disqualifications for such benefits; under what conditions the same may be paid, how to file a claim for benefits preliminary to determination of such questions, and for appeals from decisions of the Unemployment Commission, fixing its jurisdiction, power being given courts to review such decisions under circumstances named in the act. It also provides for control of the fund, and for the investment of such part thereof as is not needed at any time; and for the withdrawal of such funds to fulfil the purposes of the act, and that the funds shall be used exclusively for the purposes of the act; and that the payment of benefits shall be made in accordance with rules prescribed by the commission, consistent with the provisions of this act. The state treasurer is made ex officio treasurer and custodian of the fund, which he shall administer in accordance with the provisions of the act, under the directions of the commission, and shall pay all warrants drawn upon it in accordance with such rules as the commission may prescribe. It is provided that all contributions, upon receipt thereof by the commission, shall be forwarded to the treasurer, who shall immediately deposit them, together with all moneys earned thereby while in his custody, and any other moneys received by him, in the clearing account; all moneys other than those required for current needs in administering the Unemployment Trust Fund shall be deposited with the Secretary of the Treasury of the United States of America, to the credit of this state, in the Unemployment Trust Fund, established and maintained pursuant to section 904 of the Social Security Act, as amended, 42 U.S.C.A., section 1104, any provisions of law in this state relating to the deposit, administration, release, or disbursement of moneys in the custody of the state, or moneys deposited in any fund created by the state, to the contrary notwithstanding. All moneys belonging to the compensation fund, and not otherwise deposited, invested, or paid over pursuant to the provisions of this act, may be deposited by the treasurer under the direction of the commission in any banks or public depositories in which the general funds of the state may be deposited; but no public deposit insurance, charge, or premium shall be paid out of the fund. The treasurer shall give a separate bond conditioned upon the faithful performance of the duties of custodian of this fund in an amount to be fixed by the commission, in a form prescribed by law and approved by the Attorney-General.
It is provided in subsection (e) of section 9, chapter 176, Laws of 1936, that the provisions of subsections (a), (b), (c) and (d), to the extent that they relate to the Unemployment Trust Fund, shall be operative only so long as such fund continues to exist, and so long as the Secretary of the Treasury of the United States of America continues to maintain for this state a separate book account of all funds deposited therein by this state for benefit purposes, together with this state's proportionate share of the earnings of such fund, from which no other state is permitted to make withdrawals. If and when such Unemployment Trust Fund ceases to exist, or such separate book account is no longer maintained, all moneys, properties, or securities therein belonging to the Unemployment Compensation Fund of this state shall be transferred to the treasurer of the Unemployment Compensation Fund, who shall hold, invest, transfer, sell, deposit, and release such moneys, properties, or securities in a manner approved by the commission, in accordance with the provisions of this act, provided that such moneys shall be invested in the following readily marketable classes of securities: Bonds or other interestbearing obligations of the United States of America, the state of Mississippi, and of any county, consolidated school district, road bonds, municipal bonds of counties, cities and towns of Mississippi, Federal Land Bank bonds, Home Owners' Loan Corporation bonds, Yazoo Mississippi Delta Levee District bonds, Mississippi Levee District bonds, municipal bonds of cities with a population of 100,000 and over, located in the states of Louisiana, Texas, Arkansas, Alabama, Georgia, Florida, and Tennessee; and provided further that such investment shall at all times be so made that all the assets of the fund shall always be readily convertible into cash when needed for the payment of benefits. The treasurer shall dispose of securities or other properties belonging to the Unemployment Compensation Fund only under the direction of the commission.
The act requires the commission to establish a state employment service in various parts of the state, to serve applicants for employment free of charge. The provisions of the act create a fund solely for the benefit of persons employed in concerns that engage more than 8 employees; and except therefrom agricultural, and some other, occupations. The act also provides security against idleness and loafing, and benefits do not accrue ordinarily until there has been a period of unemployment for at least two weeks; and those who do not take suitable employment when tendered to them, with the approval of the commission, shall cease to be entitled to the benefits under the act.
It is urged that the state of Mississippi is sovereign within its sphere, a member of an indissoluble Union, with plenary power over employment exclusive of national authority thereas to; but by the Federal Social Security Act this sovereignty is impaired and subordinated. In other words, it is urged that the act is a coercion by the federal government of the state in a matter in which the state has full and complete jurisdiction, and that state sovereignty is surrendered, under the Mississippi law, to the exactions of the federal government. The federal act gives the federal taxpayer credit, on his federal tax, of all tax paid to the state up to 90 per cent. of the federal tax, if the state has an unemployment insurance system. If not, this amount is paid to the federal government, and used in other states having an unemployment insurance system.
In Carmichael v. Southern Coal Coke Co., supra, 301 U.S. 495, 57 S.Ct. 868, 880, 81 L.Ed. 1245, 109 A.L.R. 1327, the Supreme Court of the United States, in dealing with this contention on the part of this company, said:
"There remain for consideration the contentions that the state act is invalid because its enactment was coerced by the adoption of the Social Security Act, and that it involves an unconstitutional surrender of state power. Even though it be assumed that the exercise of a sovereign power by a state, in other respects valid, may be rendered invalid because of the coercive effect of a federal statute enacted in the exercise of a power granted to the national government, such coercion is lacking here. It is unnecessary to repeat now those considerations which have led to our decision in the Chas. C. Steward Machine Co. Case, that the Social Security Act has no such coercive effect. As the Social Security Act is not coercive in its operation, the Unemployment Compensation Act cannot be set aside as an unconstitutional product of coercion. The United States and the State of Alabama are not alien governments. They coexist within the same territory. Unemployment within it is their common concern. Together the two statutes now before us embody a cooperative legislative effort by state and national governments for carrying out a public purpose common to both, which neither could fully achieve without the cooperation of the other. The Constitution does not prohibit such cooperation.
"As the state legislation is not the product of a prohibited coercion, there is little else to which appellees can point as indicating a surrender of state sovereignty. As the opinion in the Chas. C. Steward Machine Co. Case points out, full liberty of action is secured to the state by both statutes. The unemployment compensation fund is administered in accordance with state law by the state commission. The statute may be repealed at the will of the legislature, and in that case the state will be free to withdraw at any time its unexpended share of the Unemployment Trust Fund from the Treasury of the United States, and to use it for any public purpose."
This decision, and the other decisions cited, establish fully the meaning of the federal statute, and that that statute does not coerce the states, and that the states are free to repeal the state law, and to withdraw their funds, at any time they see proper to do so. In other words, the decision establishes the freedom of the state to have, or not to have, an unemployment fund, and to withdraw from the federal Treasury its funds and securities at will, so far as any federal power is concerned. It establishes that the relation between the federal and state governments is a co-operative plan for dealing with unemployment, realizing that it is a problem that concerns each government; and, as stated in the opinion, one with which neither government alone can deal effectively.
In the argument we are directed to the dissenting opinions by some of the justices of the Supreme Court of the United States, in these cases cited, in whose opinion statutes of this kind violate state sovereignty and are coercive in their nature. While we are free in the construction of our own statutes and Constitution to interpret it in accordance with our own views, and are not bound by a federal court decision as to the meaning or constitutionality of a state statute, so far as the State Constitution and statutes are concerned, we adhere to the position that the state is sovereign over matters confided to it, or reserved to it, by the Tenth Amendment to the Federal Constitution; and we recognize the fact that state sovereignty cannot be bargained away or surrendered by the state Legislature. Yet we believe that unemployment is a problem over which both federal and state governments have some jurisdiction, and each may provide suitable laws to mitigate unemployment, or to prevent it. In this nation there is more migration from one section to another than in days past; the unemployed in one state may freely go into another state of the Union to secure employment or to do business; and, in fact, conditions in recent years have tended to develop this movement from place to place, seeking employment, or for other reasons. The unemployed in one state, hearing of a field where labor is needed, or where the unemployed can be cared for, are apt to go there, often destitute or without adequate means of support. In many instances they become a burden upon the community and state where they had not previously lived or been employed, thus constituting a group which affects the ability of others in such community to secure employment, as well as the wage scale, because an excess in the number of those seeking employment has a tendency to depress the wages paid, since the most necessitous, in order to secure employment and a livelihood, will accept the minimum wage.
We see no infringement, in any provision of the act of the Legislature, of the sovereign powers retained by the state, and which are recited in the sixth section of the State Constitution, declaring that the state has sole and exclusive power and jurisdiction over its affairs. We think it prevents the Legislature from surrendering such power to the national, or any other, government. This does not prevent co-operation between the state and federal governments, where each acts within its appropriate sphere, and may at any time reassert its full control over the subject-matter of the agreement. The Federal Constitution recognizes the right of the state to negotiate with the federal government, and to make treaties or arrangements with other states of the Union affecting in some respect their respective powers, provided it is done with the consent of the Congress, given in an appropriate manner. The federal government, having delegated powers, and only such as are delegated, or such as are necessary for the exercise specifically delegated, cannot acquire from one state a power within that state which has not been delegated to the federal government by the states. In order to change or amend powers delegated to the national government, or to give it new powers, at least three-fourths of the states must consent thereto, and the amendment must be promulgated and adopted in the manner pointed out by the Constitution.
As we read and construe the Mississippi Unemployment Compensation Law, the state does not surrender any of its power over the subject-matter of the act. The state is given power to place its unemployment funds temporarily under the control of the Federal Treasury, for investment in securities named in the Social Security Act; and the federal act, in undertaking to give to the state certain aid or advantages, may name a provision upon which the grant may be made — which the state will be free to accept or reject so long as it is not prohibited by any section of the State Constitution, or by the rights reserved to the citizens, recognized and secured in section 32 of the Mississippi Constitution, and in the Tenth Amendment to the Constitution of the United States, reserving to the states all rights not granted to the federal government. As the state is free to accept or reject this proposition, and to withdraw at any time from the arrangement when, in its opinion, it should do so, we cannot see that there is any delegation of the state authority to the national government.
A state, under its police power, has very large authority and discretion as to the recognition of public needs, and may provide for them by suitable legislation. This state has often exercised this power in the regulation or management of business affecting public welfare, and has enacted laws in restraint of acts deemed inimical to the public welfare or not promotive of the public good. In Pate v. Bank of Newton, 116 Miss. 666, 77 So. 601, the state provided for the creation by the banks of a fund to guarantee deposits in banks, to which fund all state banks doing business in the state were required to contribute. The constitutionality of that statute was challenged and upheld in that case, and in others. In State v. Newman Lumber Co., 102 Miss. 802, 59 So. 923, 45 L.R.A. (N.S.), 851, the court upheld the law limiting the hours of labor for adults in and around machinery deemed to be dangerous to the safety and welfare of laborers working long hours. It was insisted in that case that the state was without power to control the hours of labor for adults, and that the right of contract was violated by that act. Since the servants of the lumber company were adults, possessing the liberty to make contracts, it was contended that this would prevent the state from abridging the hours of their labor; but the court held that it was within the police powers of the state to limit the hours of labor of men working around machinery, and that the Legislature was warranted in doing so.
In State v. Crescent Cotton Oil Co., 116 Miss. 398, 77 So. 185, it was held that the state not only had the right to prohibit a foreign corporation from entering it for the purpose of transacting business, but also to expel such corporation from the state after it has entered and commenced doing business therein, provided only that such corporation is not thereby deprived of a right guaranteed to it by the Federal Constitution. And it was held that the state has the right, under chapter 162 of the Laws of 1914, to expel a foreign corporation for violation of the provisions of that statute, and a corporation engaged in the manufacture of cotton seed oil products shall not operate a cotton gin except where its cotton oil plant is located, and imposing a penalty therefor, on domestic corporations. It was also held in this case that the criterion by which to test the constitutionality of a statute is not the fact that such corporations may be inconvenienced thereby.
In Crescent Cotton Oil Co. v. State, 121 Miss. 615, 83 So. 680, it was held that chapter 162, Laws of 1914, prohibiting the ownership of gins at other points than where the company has a plant for the crushing of seed, does not violate the Commerce clause of the Federal Constitution, where the gin located in this state was designed to secure cotton seed to be shipped into another state where the company had its cotton oil plant.
Other cases dealing with the police power, and showing the extent thereof, are Retail Lumber Dealer's Ass'n v. State, 95 Miss. 337, 48 So. 1021, 35 L.R.A. (N.S.), 1054; State v. Armstead, 103 Miss. 790, 60 So. 778, Ann. Cas. 1915B, 495; Hartford Accident Indemnity Co. v. Natchez Investment Co., 155 Miss. 31, 119 So. 366; Grenada Lumber Co. v. State of Mississippi, 217 U.S. 433, 30 S.Ct. 535, 54 L.Ed. 826; Trustees of University of Mississippi v. Waugh, 105 Miss. 623, 62 So. 827, L.R.A. 1915D, 588, Ann. Cas. 1916E, 522; State v. Tucker, 102 Miss. 517, 59 So. 826, 827.
It is urged, also, that the act violates section 63 of the State Constitution, providing that no appropriation bill shall be passed by the Legislature which does not fix definitely the maximum sum thereby appropriated to be drawn from the treasury. A sufficient answer to this contention is that the fund here provided for and collected is not a fund for the general purposes of running the state government, or providing for the expense of operating the state government. The fund here created is not to be placed in the state treasury — it is a trust fund to be held and applied for the benefit of a class of employes, in the nature of unemployment insurance, and is authorized by law. In other words, the funds here provided are trust funds, and do not belong to the state in its sovereign capacity, but are for the benefit of a group from whose wages, or from whose employees' compensation in the nature of wages, although in form an excise on the right to do business in the state. This was held to be permissible in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914. In the third syllabus of this case it is said: "An excise may constitutionally be levied on one group for the benefit of another when imposed to effectuate regulation of a matter in which both groups are interested and in respect of which there is a power of legislative regulation." And, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, on page 486, in the same case it is said: "We may concede that the latter sort of imposition is constitutional when imposed to effectuate regulation of a matter in which both groups are interested and in respect of which there is a power of legislative regulation. But manifestly no justification for it can be found unless as an integral part of such regulation. The exaction cannot be wrested out of its setting, denominated an excise for raising revenue and legalized by ignoring its purpose as a mere instrumentality for bringing about a desired end."
In the present case, as we have held, the matter is one about which both employer and employee are concerned, and comes within the power of the Legislature to regulate. It is well known that many persons employed have not the prudence and ability, and foresight to provide in advance, if left to their own initiative, for need in times of stress and unemployment. They are usually employed at a wage that barely meets the needs of current living expenses; they have but little power to control what compensation they shall receive for their labor, and usually have not the means to withstand unemployment for any considerable length of time without suffering for the necessities of life. The employer, as a rule, has the power to dictate wages, and often the larger concerns have agencies which, by co-operating, can and do control the amount of wages to be paid in their respective fields of operation. Many large corporations have instrumentalities, such as holding companies, which have the power to select managers, and control industries, and have means to withstand, for temporary periods, the need of employing persons. Consequently they are in a superior position to control, and often do control, the number of persons to be employed, the wages they shall receive, and the hours they shall work; and consequently it is competent for the Legislature or the government to step in and see that these powers are not abused, and provide to some extent policies which will prevent unemployment, or moderate its evils. Unemployment on a large scale is a serious evil and menace to the health, morals, and safety of persons who must live by their labor, and to the public generally, because it is well known that there is an increase in crime with reference to property — burglary, theft, robbery, etc. — endangering persons and property.
It is also contended that section 64 of the State Constitution is violated. That section is as follows: "No bill passed after the adoption of this Constitution to make appropriations of money out of the state treasury shall continue in force more than six months after the meeting of the legislature at its next regular session; nor shall such bill be passed except by the votes of a majority of all the members elected to each house of the legislature." And in support of this contention appellants cite Colbert v. State, 86 Miss. 769, 39 So. 65, and Taylor v. Guy, 119 Miss. 357, 80 So. 786. As this money is not property to be put into the state treasury, but is to be held by the state treasurer, who is authorized to place it in the depositories, and to keep it apart and separate from the general funds of the state, it does not fall within the provisions of section 64 of the Constitution.
We do not pass upon how far the state Legislature may go in creating trust funds, or whether, when they do create a fund, although for trust purposes, which is collected by general taxation, it can be kept out of the treasury lawfully. The section does not apply here, and consequently the act does not violate that section.
It is also contended that section 134 of the Constitution, providing for the office of state treasurer and auditor of public accounts to be elected, who shall hold their offices for the term of four years, and shall possess the same qualifications as the secretary of state, is violated. We see no violation of this section, nor do we see how it can be applied to the provision here any further than that the treasurer is by law custodian of the funds, and is authorized to disburse them for the purposes of the act in the manner therein provided. We see no reason why the Legislature cannot impose an additional duty upon the treasurer to those imposed by the Constitution. The act here under consideration in no way conflicts with the duties of the treasurer under that section, and under section 137 of the Constitution, which it is also claimed is violated. The latter section provides for the publishing, within ten days after the 1st day of January and July of each year, of a statement under oath, showing the condition of the treasury on that date, the balance on hand, and in what funds, together with a certificate of the Governor that he has verified the count of the funds in the treasury, and found the balance stated by the treasurer actually in the vaults of the treasury, or as the truth may be, etc. This section, of course, has reference to the funds properly and legally confided to the state treasurer by law.
The unemployment act here involved, chapter 176, Laws 1936, as amended by chapter 3 of the First Special Session, page 18, Laws 1936, imposes the duty upon the Governor, under conditions that may exist at some time, to suspend for a definite period the operation of the law. We are of the opinion that the Legislature may fix conditions under which an act may operate, and conditions under which the law may cease to operate, and confide to some suitable agency of the state the determination of the question of fact upon which the operation is to be suspended, or resumed after the passing of such conditions. The Legislature itself must fix the conditions, and cannot delegate that function, but it may delegate the fact-finding function, as to whether conditions exist, to such agency. This, we think, is sustained by the case of Alcorn v. Hamer, 38 Miss. 652, wherein it is said: "The whole legislative power of the people of this State is vested by the Constitution in the Senate and House of Representatives; and no part of it can be delegated by the legislature to the whole, or any portion of the people, or to any other department of the government; nor can the Senate and House of Representatives associate with themselves, in the exercise of legislative functions, any person, power, or tribunal whatever." And that: "An act, which is a mere legislative preparation, plan, or project of a law, and which is to be submitted to the people for their adoption or rejection, is unconstitutional and void; but when the act is complete in itself, — having received its final sanction from the legislative will, and which by its express terms, goes into effect as a law, it is a valid exercise of legislative power, although the excution of some of its provisions is made to depend upon the result of the vote of the people of the district or county, who are affected by it."
See, also, Board of Election Com'rs of Rankin County v. Davis, 102 Miss. 497, 59 So. 811, upholding chapter 112, Laws 1910, amended by chapter 253, Laws 1912, creating the office of county prosecuting attorney, and making the office optional with the different counties of the state by an election, its operation depending upon whether a county, on submitting the matter to a vote, should vote for or against it. See, also, Barnes v. Pike County Supervisors, 51 Miss. 305. Similar laws have been upheld in Alabama, Massachusetts, and California. See Howes Bros. v. Massachusetts Unemployment Compensation Comm., Mass., 5 N.E.2d 720; Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516; Gillum v. Johnson, 7 Cal.2d 744, 62 P.2d 1037, 63 P.2d 810, 108 A.L.R. 595; Chamberlin v. Andrews, 271 N.Y. 1, 2 N.E.2d 22, 106 A.L.R. 1519.
We are therefore of the opinion that both in principle and under the authorities the act of the Mississippi Legislature is constitutional; and, the court below having found in accordance with these views, the judgment is affirmed.
Affirmed.