Opinion
No. 29948.
February 6, 1933. Suggestion of Error Overruled March 9, 1933.
1. COUNTIES.
Constitutional provision creating board of supervisors, and charging them with duties that can only be performed at board meetings, impliedly requires them to hold such meeting (Constitution 1890, section 170).
2. COUNTIES. Meeting of board of supervisors on first Monday of month, which had been time fixed for regular meetings before statutory amendment omitted time therefor, being valid, tax assessment thereat was valid under maxim that common error sometimes passes current as law ( Code 1930, section 200; Constitution 1890, section 170).
Code 1906, section 296, provided that board of supervisors shall hold regular meetings at courthouse or in chancery clerk's office on first Monday of each month, but Laws 1914, chapter 236, section 1, in amending section 296, omitted words "on first Monday of each month," and omission was not corrected until adoption of Code 1930, section 200. However, board of supervisors continued to meet on first Monday of each month, as had been custom since 1892, for transaction of public business, and the assessment of land involved in 1926 and order levying county taxes in 1927 were made at these meetings.
APPEAL from Chancery Court of Calhoun County.
Creekmore Creekmore, of Jackson, for appellant.
The appellees base their entire case on the proposition that the Legislature in amending section 294 of the Code of 1906, which relates to the regular meetings of the Boards of Supervisors of the various counties, failed to fix a time for the regular meetings. So that for the period of time between 1916 and 1930, if the contention of the appellees be correct, there was no regular time fixed by law for the regular meetings of the Boards of Supervisors, and therefore, all proceedings of the eighty-two boards in the state were invalid and illegal. In other words, should the contention of the appellees be sustained by this court, the decision necessarily would mean that all acts of all the boards of supervisors in the state of Mississippi for a period of about fifteen years were absolutely void. It is easy to see the evil effects of such a decision.
In construing a statute of doubtful meaning, the consequences of any particular construction should be considered, whether they are good or bad.
Conard Furniture Company v. Mississippi State Tax Commission, 133 So. 652.
A statute must be construed so that its operation will be consistent and practical.
Miers v. Miers, 133 So. 133; 25 R.C.L. 959; State v. Smiley, 65 Kan. 240, 69 P. 199; Meyer Case, 209 N.Y. 386, 103 N.E. 713.
It is a matter of such general knowledge that the courts will take judicial notice of the fact that the various boards of supervisors throughout Mississippi have for years and years met in regular session on the first Monday of each month. The law always has been that, and still is, although it is true that for fourteen years there was a typographical omission from the statute. All governmental departments have unanimously and universally recognized that the first Monday was the regular meeting time of the boards. The Legislature knew this, and when the amendment was passed for the purpose of changing another phase of the law, it cannot be seriously maintained that the Legislature intended to leave the boards of supervisors without a regular time for their monthly meetings.
Even penal laws, which it is said should be strictly construed, ought not to be so construed as to defeat the obvious intention of the Legislature.
25 R.C.L., sec. 216.
Legislative enactments are no more than any other writings to be defeated on account of mistakes, errors or omissions, provided the intention of the Legislature can be collected from the whole statute.
25 R.C.L., sec. 227.
The intention of the Legislature is to be collected from the context, by considering the subject-matter, by looking to the occasion and necessity for the law and the circumstances under which it was enacted, to the mischief to be remedied, the object to be obtained, and the remedy in view, by comparing one part with the other and giving effect to the whole, by looking to the old law upon the subject, if any, and to other statutes upon the same or similar subjects, by considering the effects and consequences of a particular construction, and by looking to contemporaneous legislative history and contemporaneous construction of the statute.
25 R.C.L., sec. 228; 25 R.C.L., sec. 252; 25 R.C.L., secs. 260, 261.
When one construction leads to public mischief which another construction avoids, the latter is favored.
McIntyre v. McIntyre, 130 Maine, 326, 155 A. 731; Smith v. B. O. Railroad Company, 48 F.2d 816; McGill v. City (Mo.), 38 S.W.2d 725; Town of Hartland v. Damon's Estate, 156 A. 518; Boardman v. State, 233 N.W. 556.
W.J. Evans, of Calhoun City, and J.H. Ford, of Houston, for appellees.
There is nothing in the statute under consideration here to authorize the conclusion that the Legislature, in making the change, did it by omission, or by mistake, inadvertence or error of the typist. For all that appears therein, the change was made with the deliberate purpose of giving the boards the right and authority to fix the time for holding their regular meetings to suit their own convenience and discretion. What right has this court to legislate something into this statute that the Legislature did not put into it?
Counsel want this court to do the audacious thing of holding that, because the statute provides that the boards shall hold regular meetings, the time for holding only one of which in four years is fixed by another section, such regular meetings must be held on the first Monday in each month just because the statute had so provided prior to 1914. That same statute, section 3967, Hemingway's 1927 Code, provided that the boards might hold two regular meetings in each month. Now if the court construes it to also say by construction that such regular meetings shall be held on the first Monday in each month, when, will the court say, the statute meant the second regular meeting must be held where the boards have provided for the holding of two regular meetings in each month under this statute?
Prior to 1914, the boards did not meet on the first Monday in each month because of a custom of long standing, but because of a specific statutory provision fixing that as the time therefor. Under section 1352, Code 1871, such boards held only four regular meetings in each year and the time for said meetings was fixed at the first Monday in January, March, July and October.
For this court to hold that the time is fixed by the statute in question for holding regular meetings of the board on the first Monday of each month, it will be necessary for it to write something into the section that is not in there now.
The statute here involved is clear and certain. There is no question here as to what the language used by the Legislature meant. The language here asked to be construed is language the Legislature did not use at all.
The intention and meaning of the Legislature must primarily be determined from the language of the statute itself, and not from conjectures aliunde.
25 R.C.L., sec. 217, pages 961, 963.
The courts cannot read into a statute something that is not within the manifest intention of the Legislature as gathered from the statute itself.
25 R.C.L., sec. 218, pages 963-4.
The statute here under construction is clear and certain in its language, and to read into it the language here insisted upon by appellant would be to legislate into it by "construction" a provision that is clearly foreign to it in fact or by implication.
This is an appeal from a decree dismissing a bill filed by the appellant to confirm a title which he alleges he acquired to certain described land by virtue of a tax deed thereto. The case was tried on bill, answer, and proof, from which it appears that the sale of the land for taxes, and all prior proceedings therefor, including the assessment of the land, were regular, provided the orders made by the board of supervisors in approving the assessment roll and levying the county tax were made at legal meetings of the board. The assessment of the land was made in 1926, and it was sold in April, 1928, for the taxes due thereon, in 1927. The county tax levy was made by the board of supervisors in November, 1927.
Section 294, Code 1906, and section 198, Code 1930, require members of boards of supervisors to "meet at the courthouse of their county, on the first Monday in January next succeeding the election." Section 296, Code 1906, provides that the "board of supervisors shall hold regular meetings at the courthouse or in the chancery clerk's office, in counties where the chancery clerk's office is in a building separate from the courthouse, of their respective counties on the first Monday of each month. At the meetings for," etc.
By chapter 236, section 1, Laws 1914, section 296, Code 1906, was amended so as to read as follows: "The board of supervisors shall hold regular meetings at the courthouse or in the chancery clerk's office, in counties where the chancery clerk's office is in a building separate from the courthouse, except in counties having two court districts. At the meetings for," etc.
This amended statute omits the words, "on the first Monday of each month," which appear in section 296, Code 1906, between the words, "their respective counties," and the words, "at the meetings for." The statute was again amended by chapter 242, Laws 1916, but the omitted words were not reinserted therein.
This omission was not corrected until the adoption of the Code of 1930, section 200 thereof supplying the omission. The result of this legislative error was that from the enactment of chapter 236, Laws 1914, until the adoption of the Code of 1930, there was no fixed statutory date for meetings of boards of supervisors, other than the first Monday in January next succeeding the election of the members thereof. Other sections of the Code of 1906 provide for called meetings of the boards, but none of the meetings of the board here under consideration were called in accordance therewith.
After the enactment of chapter 236, Laws 1914, the board of supervisors of Calhoun county, in which the land here involved lies, as did the boards of supervisors throughout the state, continued to meet on the first Monday of each month, as they had long been accustomed to do, for the transaction of the public business committed to them. If these meetings were void, the assessment for taxes of the land here involved, and the order of the board of supervisors, levying county taxes, are nullities, and the appellee's tax title is invalid. Were these meetings of the boards of supervisors void? It is manifest that the public interest requires this question to be answered in the negative, provided any rule of law will so permit.
One of the oldest maxims of the law is, "Communis error facit jus" (common error sometimes passes current as law). Broom's Legal Maxims (9 Ed.) 98; 4 Inst. 240; 12 C.J. 212; 1 Hughes on Procedure, section 179 et seq. This is but another way of saying that, "The law so favors the public good, that it will [in some cases] permit a common error to pass for right." Pease v. Peck, 18 How. 595, 597, 15 L.Ed. 518. It is under this maxim that the courts sometimes acquiesce in the long-continued erroneous construction of statutes by public officers charged with their administration, and decline to overrule their own former long acquiesced in erroneous decisions. Jones v. Tapling, 12 C.B. (N.S.) 826, at page 846.
In the words of BLACKBURN, Judge, in The Queen v. The Justices of Sussex, 2 B. S.Q.B. 664, at page 679: "There are cases in which a mistaken notion of the law has, no matter why, become so generally accepted, and been so acted upon, as to render it probable that business has been regulated, and the position of parties altered in consequence; and in such cases we may hold that the general acceptation of the mistake has made that law which was originally error; Communis error facit jus; but then I think that, before we act upon this principle, we ought to see it clearly made out that the error has been commonly accepted, and that the nature of the case is such that parties are likely to have acted upon the mistake and so altered their rights and position."
Burrill's Law Dictionary is quoted in 12 C.J. 213, as stating that: "A common error may, in some cases, pass current as law. Thus, a practice which has been generally observed in a state for a great length of time, without objection or question, though it possibly might have originally been impeached, will be upheld in law, if the public good require it."
In 1 Hughes on Procedure, section 179, it is said that: "Acts committed on a prevailing popular, but mistaken notion of the law, often call for an application of communis error facit jus." The courts sometimes, in order to prevent injustice, have "taken the view that the maxim, `communis error facit jus,' sanctions long continued and extensive practices, even though they may override the law." 27 R.C.L. 165. For instance, in Clay v. Sudgrave, 1 Salk. 32, it was said by Lord Holt that the act there called in question "is against the statute expressly, though now communis error facit jus."
The matters to be considered in determining whether the maxim should be applied here are: Section 170 of the Constitution, as did former Constitutions, by creating boards of supervisors and charging them with duties that can only be performed at board meetings, impliedly requires them to hold such meetings. Throughout the state's history, statutes, including chapter 236, Laws 1914, and chapter 242, Laws 1916, have required boards of supervisors, and their predecessors, boards of police, to hold regular meetings, the dates therefor, prior to the enactment of chapter 236, Laws 1914, being fixed by the statutes. From 1892, section 278 of the Code of that year, to the enactment of chapter 236, Laws 1914, the statutory date for the regular meetings of the boards of supervisors was the first Monday in each month. Many statutes continuously, long prior to, contemporaneously with, and subsequently to, the enactment of chapter 236, Laws 1914, provide for the transaction of certain public business at regular meetings of the boards, some of them designating the meeting in a particular month for the transactions of certain public business.
From this it will appear that it has long been the statutory custom for these boards to hold regular meetings, and since 1892, on the first Monday of each month. This custom was followed by the boards continuously after the enactment of chapter 236, Laws 1914, with the acquiescence of the public, either on the theory that the statute still required, or that custom had fixed the date for their regular meetings. Compare such a custom with a similar one approved by the Supreme Court of Florida in Douglass v. Commissioners of Baker County, 23 Fla. 419, 2 So. 776. Most of the business of the counties intrusted to these boards is transacted at their regular meetings, and this court has repeatedly upheld acts performed at such meetings since the enactment of chapter 236, Laws 1914, though the objection thereto here under consideration was not raised. To now hold that these decisions were, in fact, erroneous, that all such meetings were void, and that all acts performed thereat were illegal, would probably cause financial ruin to many innocent persons, including the members of the boards of supervisors, who acted in good faith, and would not only be disastrous to them, but would be a public calamity. The maxim should be applied with caution, and the cases in which its application is justified are rare, but its application here runs counter to no statute, is justified by the facts, effectuates the clear constitutional and legislative intent, and promotes the public welfare.
In 12 C.J. 213, par. a of note 3, and in 29 Am. Eng. Encyc. L. (2 Ed.) 379, many cases in which the courts have applied this maxim are collated, some, but not all, of which we have examined.
The decree of the court will be reversed, and a decree will be rendered here in accordance with the prayer of the bill of complaint.
Reversed, and decree here for the appellant.