Volume 126 — Mississippi Reports

Hon. G. E. Williams, Chancellor. Suit by. Mrs. Ella Evans against William T. Evans for divorce. From a decree awarding plaintiff alimony pendente lite, defendant appeals. Motion was also made by plaintiff for alimony pending a disposition of the cause by the supreme court. Motion overruled, decree reversed, and cause remanded.

Hon. G. E. Williams, Chancellor. Suit by P. B. Woollard, administrator of the estate of J. C. Saia, deceased, against C. G. Giglio. Decree for plaintiff, and defendant appeals. Held: and this although the record is silent as to the residence of the minor.” And the court in that case called attention to the case of Bolton v. Sohrwer, 18 L.,R. A. 242, and the notes thereunder.

Hon. D. M. Miller, Judge. Action by M. W. Sinclair against Mose Lewis. Judgment for plaintiff on-.appeal by defendant from a judgment before a justice of the peace, and defendant again appeals.

Hon. D. M. Graham, Judge. Action by Andrew Tootle against J. H. Johnson before a justice of the peace. Judgment for plaintiff on appeal to the circuit court, and defendant appeals.

Hon. S. F. Davis, Judge. Action by Amanda Thompson Jackson against Cornelia Johnson. Judgment for defendant, and plaintiff appeals. The defendant first moved to rule out all the testimony of the plaintiff, Amanda Thompson, on the ground that she was, testifying to establish her own claim against the estate of a decedent.

Hon. R. S. Hall, Judge. Action by Stokes V. Robertson, State Revenue Agent, against the Hattiesburg Grocery Company to recover income taxes. Judgment for’plaintiff after appeal from a justice of the peace, and defendant appeals. The briefs filed in these cases have dealt at length with the question as to whether the tax here involved is an excise tax, a property tax, an ad valorem tax, a personal tax, or a combination of one or more of these.

es county. Hon T. B. Carroll, Judge. Proceedings between J. H. and Frank Benjamin and the Virginia-Carolina Chemical Company of Delaware. Judgment for the latter and the former áppeal. On motion to strike stenographer’s notes.

<p>1. Bills and Notes. Whether payment to holder by stranger is a discharge or a purchase depends on intention.</p> <p>Whether the payment to the holder of a promissory note by a stranger thereto of the amount due thereon is a payment and discharge of the note or a purchase of it depends on the intention of the parties to that transaction, particularly on the intention of the holder of the note.</p> <p>2. Bills and Notes. Memorandum of payment on back of note held tó show discharge and not purchase.</p> <p>In a suit on a promissory nóte by a holder claiming it by purchase from the payee or a former holder, and which contains neither a general nor special indorsement by which title would be transferred, if the only evidence of what occurred between the payee or the former holder and the claimant is a memorandum of payment on the back of the note, the transaction must be held to be a payment and discharge, and not a purchase of the note.</p>

<p>Appeal from chancery court of Lincoln county.</p> <p>Hon. L. F. Easterling, Chancellor.</p> <p>Suit by the Planters’ Bank of Bogue C'hitto against F. S. Syalm and another. Decree for plaintiff, and defendant named appeals.</p>

Hon. B. W. Gutrer, Chancellor. Action by Mrs. Efíie D. Malone against the United States Casualty Company of New York. Judgment for plaintiff, and defendant appeals.

Hon. R. S. Hall, Judge. Action by tbe Virginia-Carolina Chemical Company against L. W. Ruffin. Judgment for defendant, and plaintiff appeals.

Hon. T. L. Lamb, Judge. Will Patty was convicted of murder, and he appeals. The day has fully come when it is the next thing to. an impossibility to get an acquittal of a negro charged with murder before the juries of Winston County. It may be improper to make such a statement, hut I am so much impressed with the thoughtfulness of it that I make it without any fear whatever of successful contradiction.

Hon. A. J. McIntyre, Chancellor. Suit by H. S. Massey and others against Mrs. Mattie Whittaker for partition. From a decree of dismissal, complainants appeal. There can be no dispute about what the intentions of Mr. Hearn were when he made the deed, and what the intentions of Mrs. Hearn were when she received the deed, as to what she was getting, and that was a life estate.

Hon. D. M. Russell, Chancellor. Suit by I. N. Ellis against Mack Sutton and others. Decree for defendants, and complainant appeals. The Suttons had no title, legal or equitable, in the lands.

Hon. Y. J. Stricker, Chancellor. Proceeding between Laura Rose and Otha Rose and others. Decree for the latter, and the former appeals. Held: that under'the policy of Michigan statutes, and decisions, the estate in remainder'vested on the testator’s decease and that the heirs at law of the deceaséd son were entitled to the share of their ancestor. In the case of Scott et al. v. James et al., 3 Howard, 307, the nature of which case was somewhat similar to the one at bar.

Hon. C. P. Long, Judge. Action by H. B. Priddy against W. S. Berry for malicious prosecution. Held: however, that a legal inference of malice arises in cases where the prosecution is shown to have been instituted not only Avithout probable cause, but with an entire absence of cause, as where the charge made is knowingly and Arilfully false.” This court in the case of Brett v. State, 94 Miss. 674, in distinguishing between the term…

Hon. Y. J. Stricker, Chancellor. Suit by Nat Bridewell against John M. Loving and another. Decree for the complainant, and defendants appeal. Held: “In order to avoid foreclosure of a deed of trust, the mortgagor quitclaimed the property to the mortgagee, who executed an agreement to reconvey the property on condition of the payment by the mortgagor of the debt, taxes and other incumbrances before a certain date.

Hon. D. M. Miller, Judge. J. H. Pippin wag convicted of obtaining money or goods by false pretenses, and he appeals. 1. Held: that prima facie, property in possession of a person is presumed to belong to him. In Morningstar v. State, 52 Ala. 405, it was held that possession of the things stolen at the time of the larceny is in general, sufficient evidence of ownership.

JEn Banc. Appeal from chancery court, Hinds county. Hon. Y. J. Stricker, Chancellor. Proceeding by O. B. Taylor and others, receivers, against W. R. Eure and others to require them to pay over certain funds. On failure of defendant named to comply with such order, he was by interlocutory order adjudged in contempt of court, and from such order he appeals. Oh motion to dismiss appeal.

Hon. C. P. Long, Judge. Proceedings to impose an assessment on the property of Reed Bros., Incorporated. The assessment was sustained by the- board of supervisors of Lee county and by the circuit court, and Reed Bros, appeal. Section 112 of the Constitution: “Taxation shall be uniform and equal throughout the state. Property shall'be taxed in proportion to its value . . .

• Appeal from circuit court, Harrison county. Hon. D. M. Graham, Judge. Action by the Springfield Grocery Company against T. K. Devitt and others. Judgment for defendants on sustaining demurrer to replication, and plaintiff appeals. It must remembered that business associates attempting to do business jointly other than as a corporation are a copartnership. The law knows no intermediate form of business organization between a copartnership and a corporation.

Hon. A. Y. Woodward, Chancellor. Suit by Arthur J. Lussey, revived in the name of G-. B. Kidder, administrator, against D. S. McClanahan, mayor of the city of Columbus, and others, to enjoin the carrying out a contract. From a final decree dissolving the injunction, issued and dismissing the bill, complainant appeals.

•Appeal from chancery court of Harrison county. Hon. Y. A. Griffith, Chancéllor. Suit by L. M. Keel and others against the Board of Supervisors of Harrison County. From a decree dismissing the bill, complainants appeal. We will preface our argument by saying that there is no other case like this. It is certainly a case of first impression.

Hon. D. M. Russell, Chancellor. Suit by the City Sales Agency, Incorporated, against W. F. Smith, Jr. Decree for defendant, and complainant appeals. Counsel for appellee takes the same position in this court that he did in the court beloAV. That appellant Avas doing-business in the state of Mississippi in violation of its laivs; he overlooks the fact that the status of the contract is determined by the initial order for the purchase of the trucks.

Hon. C. P. Long, Judge. , Action by Oscar Choate, by next friend and ■ brother, Luther Choate, - against S. E. Pierce. Judgment for dedefendant, and plaintiff appeals. Our first assignment of error complains because the court refused to give a peremptory instruction for the appellant.

Hoin. W. M. Denny, Jr., Chancellor. • Suit by H. E. Pritchett and others against Delphine Stevens. From the judgment, complainants appeal.

Appeal, from chancery court of Jackson county. Hon. D. M. Watkins, Chancellor. Held: and counsel think correctly, that the case of the defeat of the desire of the testator to change or revoke his will, by force and threats of violence, was covered by the statute of that state which is almost identical with our statute on the subject of express revocation, except that it concludes with the words: “and no words spoken…

Hon. S. F. Davis, Judge. Suit by the Richey Land Improvement & Manufacturing Company and others against J. C. Johnson, Revenue Agent. Judgment for plaintiff, and defendant appeals. Section 2514, Hemingway’s Code, section 3173, Mississippi Code of 1906, outlines the procedure by which court records must be re-established in this state.

Hon. D. M. G-raham, Judge. Suit by J. C. Falgo against James Betts. Judgment for plaintiff, nnd defendant appeals.

Hon. J. G. McGowen, Chancellor. Suit by Alice Moore McCaw and others against Osborne Turner, executor of the will of Mrs. Ella A, Lay, deceased, and others, to have the will set aside on the ground of undue influence and mental incapacity.

<p>Appeal from circuit court of Carroll county.</p> <p>Hon. T. L. Lamb, Judge.</p> <p>Action by T. W. Wynne against John Barton .Payne, Director General. Judgment for plaintiff, and defendant appeals.</p>

Hon. A. J. McLaurin, Judge. Action by H. E. Kelly against the Alabama & Vicksburg Bailway Company to recover for the death of William G. Kelly. Judgment for plaintiff, and defendant appeals. We shall first present and discuss those assignments of error Avhich in our judgment go to the whole case and which, if sustained, will result, as we think, in a final disposition of the case in appellant’s favor,' presenting the other assignments of error afterwards. First.

<p>Appeal and Error. Equity. What relief allowable under prayer for general relief in equity stated; case will not be remanded to allow pleadings to be filed on theory advanced for first time on suggestion of error on appeal.</p> <p>In equity pleading, where there is a prayer for specific relief and a prayer for general relief, the court may grant such relief as the facts stated in the bill, and supported by the proof, may warrant; but it cannot grant relief on a clause in an exhibit to the hill which has not been declared on in the bill, even though under a .possible state of facts the complainant would be entitled to such relief. Where a case was tried in the court below on the allegations made in the bill, and an appeal here was tried on the same facts and theory, and, for the first time; on suggestion of error a possible theory advanced, predicated upon an exhibit to the bill, but not declared on in the bill, the court will not remand the cause to enable a party to file pleading in a new state of facts not embodied in the bill and not germane to the case tried on appeal.</p>

On suggestion of error. As to the cross-appeal of the appellee, we respectfully submit the following: The court held,'and the decree recites that this deed by Mr. & Mrs. Carberry to Leo Car-berry was made in good faith, and ivas not withheld from the record fraudulently and that it was filed for record three years and three months before appellee recovered a judgment. The record also shows that appellee had no lien of any kind until this judgment was recovered.

I-Ion. R. W. Cutrer, Chancellor. Suit by Hugh B. Miller, District Attorney, for the Use of the State, against the Fidelity Union Fire Insurance Company and others. Bill dismissed, and plaintiff appeals.

Hon. G. E. Williams, Chancellor. Bill by Mrs. E. T. Clark against W. L. Pearman and others for an injunction. Decree for defendants, and complainant appeals.

Hon. W. A. Roane, Judge. Henderson Smith was convicted of embezzlement, and he appeals. The proof showed appellant received these francs in France, and not within the jurisdiction of this court, this all links up with the assignments of error as to the corpus delicti and venue.

Hon. E. D. Dinkins, Judge. Action by Vadie McNulty against W. G-. Vickery and others. Demurrer to the declaration was sustained, and plaintiff appeals.

Hon. W. A. Alcorn, Jr., Judge. Action between C. H. Brewer and the Union Planters’ Bank & Trust Company. Judgment for the latter, and the former appeals. On motion to strike transcript of evidence.

Hon. Y. J. Stricker, Chancellor. Bill by W. H. Seavey and others against Lincoln County for an injunction. From a decree dissolving a temporary injunction and dismissing the bill, complainants appeal.

<p>Appeal from circuit court of Hinds county.</p> <p>Hon. W. H. Potter, Judge.</p> <p>Separate proceedings in quo warranto by the state on.the relation of B. F. Brown, and of Ben R. Guess against Thomas R. Christmas and R. S. Miller, respectively. From a dismissal of the petition in each case relator appeals.</p> <p>As we sée it the sole question before , this court to be determined is whether or not the deputy land commissioner is a public officer. For the convenience of the cburt we here quote chapter 197, Laws of 1910, being the statute creating the office of deputy land commissioner.</p> <p>“Section 1. Be it enacted by the legislature of the state of Mississippi, that section 2904, of chapter 77, of the Mississippi Code of 1906, be, and the same is hereby amended, so as to read as follows:</p> <p>“2904. (2566). Land Commissioner. There shall be a land commissioner, who shall be elected as other state officers are at the general election, whose term of office shall be four years, and until his successor shall have been qualified. He shall possess the same qualifications as are required for the secretary of state, and shall qualify as other state officers. The land commissioner shall be entitled to one deputy to assist him in „the discharge of his duties, with power and authority to do and perform all acts and duties required by the land'commissioner. The appointment shall be made in writing and filed in the office of secretary-of state, with a certificate that the deputy has taken oath, and given bond in the sum of five thousand dollars, to faithfully discharge his duties as deputy. The said deputy shall receive such compensation as shall he provided by law.”</p> <p>Now the question as we see it is whether or not the above ' cited statute created a public office or a mere employment. To determine this fact we shall examine the authorities.^ After a careful examination of all the leading authorities we can draw no other conclusion than that chapter 197, Laws of 1910, created the office of. deputy land commissioner a public office. We quote a few of tbe leading authorities on this question:</p> <p>Bouvier’s Law Dictionary gives the following definition of an office: “The true test is that it is a parcel of the administration of government. . . . The term includes all persons in any public station or employment conferred by the government.” “The term of an officer is not affected by vacating the office of his superior.”</p> <p>In the case of United States v. Hartwell, 16 Wal. 393, 18 L. E. D. 830, we find the following: “The duties of an officer are defined by law not by contract.”</p> <p>In the case of United States v. Maurice, 2nd Brock, 96 (U. S.) Chief Justice White gives a very clear and concise definition: “An office is defined to be a public charge or employment, and he who performs the duties of the office is an officer. Although an office is an employment it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act or to perform services without becoming an officer.”</p> <p>Referring to the case of United States v. Hartwell, 16 Wal. 385. (U. S.) we find this definition: “An office is a public station or employment, conferred by the appointment of the government. The term embraces the idea of tenure, duration, emolument and duties. ... A government office is different from a government contract. The latter, ’from its nature, is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obligations of both parties, and neither may depart from them without the assent from tbe other.”</p> <p>Clark v. Stanley, 66 N. C. 59, gives the following definition : “A public office is an agency for the state, and the person whose duties it is to perform this agency is a public officer.”</p> <p>Quoting from 3 Words and Phrases, page 696: “The term ‘public office’ implies permanence and duties of a public nature. An office is a position or station in which a person is employed to perform certain duties, or by virtue of which he becomes charged with the pérformance of certain duties.” Page 698. “The general doctrine is that the idea of office clearly embraces the idea's of tenure, duration, fees, or emolument, rights and power as well; as that of duty.” .Page 699. “Apart from the statute, the distinction between a public officer and an employee is that the former is charged with duties involving the exercise of some part of the sovereign power in the performance of which the public is concerned, and which are continuing and not occasional, while one merely performing duties required of him under an express contract or otherwise, though the employer is a public officer and the employment being a public Avork or business,' is a mere- employee.” Page 700.</p> <p>“While generally speaking, an officer is one employed in behalf of a government; in a strict legal sense, the term implies employment in some fixed and permanent capacity. Those engagfed in mere transient or occasional employment being: more properly employees than officers.” “The term ‘office’ implies a delégation of a portion of the sovereign power, too, and possession of it by the person filling the office; and exercise of such power within legal limit constitutes the correct discharge- of duties of such office.”</p> <p>On page 697, at the bottom of the second column will be found a citation which quotes Meachem on Public Officers at length and from which we quote a part as follows: “The most important characteristic1 which distinguishes an office from an employment or contract is that the creation and conferring of an office involves a delegation to. the individual of some of the sovereign functions of the government, to be exercised by" him for the benefit of the public that some portion of the sovereignty of the country, either legislative, executive or judicial,'attaches for the time being, to be exercised for the public benefit.” Page 697.</p> <p>An office in an abstract sense may be defined as: “A duty, charge, or trust; a place of trust; a position to which certain duties are attached; a right and correspondent duty to execute a public or private trust and to take emoluments belonging to it.” 29 Cyc. 1361. “Opposed to the conceptions of office and officers are those of employment and employee. While an office is based upon some provisions.of law, an employment is based upon a contract entered into by the government with the employee.”</p> <p>In Meachem on Public Officers, section 1 a public office is defined as follows: “The right authority and duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public. The individual so invested is a public officer.”</p> <p>As to whether a deputy, in the general sense, is a public officer we quote from Meachem on Public Office, section 38: “Deputies. Whether deputies appointed by public officers are to be regarded as public officers themselves, depend upon the circumstances and méthods of their appointment. When such appointment is provided for by law, and a fortiori where it is required by law, which fixes the power and duty of such deputies, and where such deputies are required to take the oath of office and to give bonds for the performance of their duties, the deputies are usually regarded as public officers.”</p> <p>But, we find that we are not left to determine as a general principle of law the correct definition of a public officer, as this point has been definitely settled by this court in many former decisions.</p> <p>“A public officer is one who has some duty to perform concerning the public, and he is not the less a public officer when his duty is confined to narrow limits, because it is the duty and the nature of that duty which makes him a public officer, and.not the extent of his authority. This-was laid down by the court in the following cases: Monette v. State, 91 Miss. 662, 44 So. 989; Shelby v. Aleorn, 36 Miss. 273, 72 Am. Dec. 169; Kierslcy v. Kelley, 80 Miss. 803, 31 So. 901, and Ellis v. Greaves, 82 Miss. 36, 34 So. 81, and .cited with approval in Yerger v. State, 91 Miss. 802, 45 So. 849.</p> <p>Having examined all the authorities and definitions of a public officer we find that the deputy land commissioner as created by chapter 197, Laws of 1910, has every requisite of a public officer, required by all the leading authorities, including the former decisions of this court.</p> <p>The principal question for determination here is whether or .not the office of deputy auditor is an office within the meaning of section 20 and section 175 of the Constitution of the state.</p> <p>Section 20 is as follows: “No person shall be elected or appointed to office in this state for life or during good behavior, but the term of all offices shall be for some specified period.”</p> <p>Section 175 of the Constitution is as follows: “All public officers, for willful neglect of duty or misdemeanor in office shall be liable to presentment or indictment by a grand jury; and upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law.”</p> <p>If the office of deputy auditor is a state office within the meaning of the constitution then that portion of section 236, Code of 1906, the same being section 3495, of Hemingway’s Code, authorizing the auditor of public accounts, to remove the deputy auditor at pleasure is unconstitutional under the decision of the court in the case of Mississippi State Board v. Mathews, 74 So. 418. In that case sections 2490 and 2491 of the Code of 1906 were considered.</p> <p>Section 2491, Code of 1906, is as follows: “A competent physician shall be appointed county health officer for and from each county by the state board of health whose term of office shall be for two years, and said board shall cause the appointment to be certified by its secretary to the board of supervisors of the county for which the appointment was made; but if the board of supervisors of an interior county remote from the railway, navigable stream, and the sea coast, shall indicate its desire not to have á' county health officer for its county, the state board of heálth, if deemed prudent, need not appoint one for such county, or having appointed one, may revoke the appointment:”</p> <p>Section -2490, of the Code is as follows: “The state board of health may at -any meeting remove any county health officer, or its president or secretary, from office and fill the vacancy thereby occasioned, or it may fill a vacancy in either of said offices whenever and however it occurs; and when a county health officer shall be removed or his successor appointed, notice thereof shall be sent and certified to the board of supervisors of the county.”</p> <p>The constitutionality of the provisions of section 2490 of the Code of 1906, conferring on the state board of health the power to remove county health officers was challéngéd in that suit and our court held that a county health officer is a public officer, and that the way pointed out by section 175 of the constitution, that is by the way of indictment and conviction is the exclusive method of removing such officer, and-that portion of section 2490 of the Code which confers on the board of health the power to remove a county health officer is unconstitutional.</p> <p>In that case, Judge Smith said: “Section 175 of our constitution provides the exclusive method by which a public officer may be removed from office. Kunnéls v. State, Walk. 146; Hyde v. State, 52 Miss. 665; Ex parte Lehman, 60 Miss. 967; Limno v. City of Pass Christian, 96 Miss. 640, 50 So. 981; Mayor, etc. v. State, 102 Miss. 663, 59 So. 873, Ann. Cas. 1915A, 1213. Consequently section 2490, Mississippi Code of 1906, in so far as it authorizes the state board of health to remove a county health officer, is void.”</p> <p>If the office of deputy auditor is a public office within the meaning of óur constitution, no other term of office having been provided, then section 2456 is applicable. This section is as follows: “The term of office of all officers, not otherwise provided for by law, shall be four years and until their successors shall be duly qualified.” State v. McDowell, 111 Miss. 596, 71 So. 867.</p> <p>We therefore, contend that the office of deputy auditor is a public office within the meaning of our constitution and that the term of office of such deputy auditor was a four-year term of office. I do not think that there can be any question as to this point. Then the main question to be determined is whether or not the office of deputy auditor is a public office within the meaning of sections 20 and 175 of the,Constitution of Mississippi.</p> <p>Discussion of the question of whether or not the office of deputy auditor is a public office within the meaning of sections 20 and 175 of the constitution of Mississippi.</p> <p>In Meachem on Public Officers, section 1, a public office is described as: “The right, authority and duty, created and conferred by law, by which, for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public. The individual so invested is a public officer.”</p> <p>As to whether a deputy, in the general sense, is a public officer, Meachem on Public Officers, section 38, says:</p> <p>“Deputies. Whether deputies appointed by public officers are to be regarded as public officers themselves, depends upon the circumstances, and method of their appointment. When such appointment is provided for by law, and a fortiori where it is required by law, which fixes the power and duty of such deputies, and where such deputies are required to take the oath of office and to give bonds for the performance of’their duties, the deputies are usually regarded as public officers.” '</p> <p>In the case of Yerger v. State, 91 Miss. 802, 45 So. 849, our court held that the clerk of the board of penitentiary trustees was a public officer.</p> <p>In the case of Bonette v. State, 91 Miss. 670, our court speaking through Judge Mayes said: “We have no hesitancy in declaring that a policeman is an officer within the meaning of section 20 of the Constitution of the state of Mississippi, and must' be appointed for some specified time. Any law or ordinance which provides for the appointment of such an officer during good behavior is in violation of this section and void. In the case of Shelby v. Alcorn, 36 Miss. 273, on page 289, 72 Am. Dec. 169, this court held that a public officer is one who has some duty to perform concerning the public; and he is not the less a public officer when his duty is confined to narrow limits, because it is the duty and the nature of that duty, which makes him a public officer, and not the extent of his authority.” Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169; Kierslcy v. Kelly, 80 Miss. 803, 31 So. 901; Johnson Y. State, 132 Ala. 43, 31 So. 493. The section of the constitution referred to above contemplates all persons who have any duty to perform concerning the public under any law of this state, whether it be under an act of the legislature, the constitution of the state, or a municipal ordinance. The ordinance in question not providing for a specified term of service for the policeman of the city, but authorizing the appointment during good behavior, is void.”</p> <p>Applying the rule of the above case to the case at bar there can be no question whatever that the deputy auditor is a public officer within the meaning of our constitution. It cannot be denied that the deputy auditor has public functions to perform, and under the rule announced originally in the case of Shelby v. Alcorn, 36 Miss. 273, and followed to this date, it is a well-settled principle of law that any officer who has any duty to perform concerning the public, under any law of this state, is a public officer within the meaning of our constitution.</p> <p>In the case of Ellis v. Greaves, 82 Miss.- 36, the trusteeship of public school was held to be a public office. In the case of the State of Missouri v. Bus, 33 L. B. A. 616, the supreme court of Missouri held that a deputy sheriff is a public officer under laws which require his appointment by uhe sheriff to he approved by a judge and that he shall take an oath of office, or qualify for a public office.</p> <p>The only question that presents itself to this court for determination, under the opinion of the trial judge, is whether or not, chapter 197 of the laws of 1910, amendatory to section 2904 of the Code of 1906, which said chapter created the office of the deputy land commissioner, in such, that one bolding appointment under the said section, is a public officer.</p> <p>If, therefore, the statute creating the office of the deputy land commissioner makes him a public officer, it naturally follows that he is such a public officer as comes within the meaning of section 20 of the constitution and section 3456 of the Code of 1906.</p> <p>Section 20, of the Constitution of this state reads as follows: “No person shall be elected or appointed to office in this state for life or during good behavior, but the term of all officers shall be for a term or specified period.” Sec. 3456, of the Code reads as follows: “Length of terms. The term of office of all officers, not otherwise provided for by law, shall be four years and until their successor shall be duly qualified.”</p> <p>We therefore submit that the question for consideration before this court, is whether or not the statute creating this office is such, that one holding same, is a public officer. Meachem on Public Officers, section 1.</p> <p>As to whether a deputy, in the general sense, is a public officer. Meachem on Public Officers, section 38. In the case of Yerger v. State, 91 Miss. 802, 45 So. 849, this court held that the clerk of the board of penitentiary trustees was a public officer. But we are not left to determine as a general principle of law the correct definition of a public officer, for the reason that this point has been definitely settled by many decisions of this court.</p> <p>“A public officer is .one who has some duty to perform concerning tbe public, and he is not tbe less a public officer when bis duty is confined to narrow limits, because it is tbe duty and tbe nature of tbat duty which makes Mm a public officer;' and not tbe extent of bis authority.” This was laid down by tbe court in tbe following cases: Monette v. State, 91 Miss. 662, 44 So. 989; Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169; Kiersky v. Kelly, 80 Miss. 803, 31 So. 901, and Ellis v. Greaves, 82 Miss..36, 34 So. 81, and cited with approval in tbe case of Yerger v. State, supra.</p> <p>It is tbe contentions of the appellant in this matter tbat tbe intention of tbe legislature in creating tbe office of the deputy land commissioner tbat the tenure of bis office should be tbe same as tbat fixed for other public officers. We submit that bad this not been the intentions of tbe legislature, they would have set out tbe fact tbat tbe principal bad tbe Tight to discharge tbe deputy at bis pleasure. State v. Diverberger, 90 Mo. 369 aild State v.' Bus, 33 L. R. A. 616.</p> <p>•The latter part of chapter 197 of tbe laws .of 1910, reads as follows: “The land commissioner shall be entitled to one deputy to assist him in tbe discharge of bis duties, with power and authority to do and perform all acts and duties required by tbe land commissioner. Tbe appointment shall be made in writing and filed in tbe office of tbe secretary of state, with a certificate that the deputy has taken an oath and given bond in the sum- of five thousand dollars to faithfully discharge bis duties as deputy. The said deputy shall receive such compensation as shall be provided by law. ■</p> <p>We submit that in view of tbe fact, tbat in every other case, creating tbe office of deputy, where the right to appoint was conferred upon the principal,- there was a corresponding right for tbe principal to discharge at will or at pleasure. And in view of the further fact, tbat this very question has been-passed upon by this court in tbe case of Yerger v. State, supra, and tbe further.fact tbat this section above referred to was amended to create especially tbe office of the deputy, we see no other conclusion than that of the deputy land commissioner being made a public officer by all intention of the legislature. State v. McDowell, 111 Miss. 596, 71 So. 867.</p> <p>Section 175 of the Constitution, providing for the removal of all public officers, is as follows: “All public officers, for willful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law. The method of removal is exclusive. Runnel v. State, Walker, 146; Hyde v. State, 52 Miss. 665; Ex Parte Lehman, 60 Miss. 967; Insano v. City of Pass Christian, 96 Miss. 640, 50 So. 981; Mayor etc. of Jackson v. State, 102 Miss. 663, 59 So. 873; Ann. Cas. 1916A, 1213; Ware V. State, 111 Miss. 599, 71 So. 868; Miss State Board of Health v. Matthews, 74 So. 418; State v. McDowell, supra.</p> <p>While it is a settled principle of law in our state, that a public officer cannot be removed from office except by indictment, we desire to call the attention of the court to further cases in which the matter of removal was discussed, when the statute providing for the appointment, did not confer upon the appointing power the right to discharge at pleasure. In Mechem on Public Officers, section 454, to the same effect is Field v. Commonwealth, 32 Pa. 478'; State v. St. Louis, 90 Mo. 19,1 S. W- 757; Collins v. Tracey; 36 Texas, 546, 23'Enc. Law. (2 Ed.) 435.</p> <p>In so far as public officers are concerned, Code section 4017, provides that “remedy by information in the nature of a quo warranto shall lie, in the name of the state, etc.” If, therefore, the deputy land commissioner is not a public officer, we submit that the right or remedy by information in the nature of a quo warranto will not lie.</p> <p>Section 20 of the state Constitution provides that no person shall be appointed to “office” for life or during good behavior, but the term of all “offices” shall be for some specific period. Section 175 provides that all “public officers,” for wilful neglect of duty, shall be liable to indictment by a grand jury, and upon conviction shall be removed from office.</p> <p>Section 235 of the Mississippi Code of 1906 is as follows: “Deputy and clerks; how appointed, etc. The auditor may appoint a deputy, with power and authority to do and perform all the acts and duties required of the auditor; the appointment shall be made in writing, and shall be filed in the office of the secretary of state, with a certificate that the deputy has taken an oath faithfully to discharge his duties as deputy auditor. The auditor may take bond from his deputy and clerks as he may see proper, and may remove either at pleasure; but he shall be answerable for the acts of the deputy and clerks in the same manner as if done by himself. The auditor may employ four clerks to be paid the compensation provided by law.”</p> <p>• The principal question is: Is the place or office of the deputy auditor, an “officer” within the meaning of section 20, and is relator a “public officer” within the meaning of section 175 of the state Constitution? The question is also presented as to whether an appointment in writing for an unlimited time can be shown by parol to be a temporary appointment? We will dispose of the last question first.</p> <p>It will be noted that the statute does not require the auditor to appoint a deputy, but provides that he may do so. In the case of State v. Fulkerson, 10 Mo. 681, it is held that where the appointment is in writing, the term for which it was made may be shown by parol. This is the only authority we have found upon this subject.</p> <p>Coming now to the main question, we propose to trace the history of section 236 of the Mississippi Code of 1906. This statute was first passed on February 19, 1842. Hutchinson’s Code, page 401. By that act the auditor was “authorized” to appoint a deputy and remove him at pleasure, and substantially the same formalities for appointment were required as hv section 236 of the Mississippi Code of 1906. The act of 1842 was brought forward with slight verbal changes, as article 29, page 107 of the Code of 1857. It was again brought forward as section 130, Code of 1870. Again as section 216, Code of 1880. Again as section 226, Code of 1892, and appears in its present form as section 236, Code of 1906.</p> <p>In the Code of 1880 and the prior codes it is provided that the auditor is “authorized” to appoint a deputy with full power and authority to do and perform all duties and acts required of the auditor, and in the Codes of 1892 and 1906, it is provided the auditor “may” appoint a deputy with power and authority to do and perform ail acts and duties required of the auditor. All of the acts provided that the auditor may remove the deputy at pleasure.</p> <p>It should be noted also that section 30, article 1, of the Constitution of 1832 is practically the same as section 20 of the present Constitution, and section 28 of article 4 of the Constitution of 1832 is largely the same as section 175 -of the present Constitution.</p> <p>Section 30 of article 1 of the Constitution of 1869 is identical with section 20 of the Constitution of 1890, and section 26 of article 4 of the Constitution of 1869 is identical with section 28, article 4 of the Constitution of 1832, and largely the same as section 175 of the present Constitution.</p> <p>It will thus be seen that the legislature, at least since 1842, has construed the office of deputy as not being an office within the meaning of the Constitution of this state. Moreover from time immemorial, sheriffs, clerks and other principal officers have discharged their deputies at will. That was the common practice prior to 1890 as well as subsequent. This contemporaneous construction by thoste whose duty it is to act under and administer the Constitution, is a material inquiry to the court in determining what was meant by the constitutional provisions.</p> <p>We see that the legislature in 1842 did not consider that a deputy was an officer within the meaning of the Constitution of 1832., The statute providing for the appointment and removal of a deputy auditor was in effect and had been in effect for twenty-seven years, when the Constitution of 1869 was passed, and it is fair to assume that the Constitutional makers knew of the existence of this statute when that Constitution was adopted, brought forward the provision authorizing the auditor to appoint a deputy, and to remove him at pleasure, and it is manifest that the legislature did not consider the deputy auditor was an officer within the meaning of the constitution of 1869.</p> <p>The same may be said of the Constitution of 1890. The Code of 1880 provided that the auditor might appoint a deputy and remove him at pleasure, and such was the law when the Constitution of 1890 was adopted. These provisions were brought forward in the Code of 1892, indicating clearly the legislative construction of the Constitution.</p> <p>We are entirely familiar with the Monette case, Yerger V. State, Ware v. State, Brown v. State, and Board of Health v. Mathews. We do not here question the correctness of the result reached in those cases, but the court will note that in each case there was a principal officer involved whose duty was defined by statute. We think, however, the court- has in this line of cases, reached the limit.</p> <p>We are well aware that the court in the Mathews case expressly held that a public officer within the meaning of section 175, could only be removed by indictment, as that section 175 provided the exclusive methods of removing public officers. We are not contesting the soundness of that decision in this case, but we think the court has pressed the doctrine to its extreme limit.</p> <p>The point we make is that the place of function of deputy auditor is hot an “office,” and that therefore he is not an “officer” within the meaning of the state Constitution.</p> <p>In determining this question it is proper to resort to the meaning of the word “deputy” at common law, and to ascertain what the framers of the Constitution meant in rising the words, “public officers” and “office” in the Constitution.</p> <p>At common law, any ministerial officer might discharge the duties of his office by a deputy, unles he was expressly required by law to discharge them in person. 9 Encyclopedia of Law, 270. The auditor is a ministerial officer,, and while by the Constitution he is required to devote his time and attention to the duties of that office, yet if he is unable to perform all the duties of that office, he might appoint an agent, an assistant, or a 'deputy to assist him in executing these purely ministerial functions, even without statutory provisions. Sherwsburies Case, 9 Coke, 42; Talbott v. Hoosier,12 Bush. (Ky.) 408.</p> <p>There are not two offices, nor two incumbents. There is one office and one incumbent. He may, with or without the statute, appoint a deputy. Without the statute, the principal would have to provide for the deputy’s compensation. -Under the statute, if the principal sees fit to appoint a deputy, the state provides the compensation. The deputy has no interest in the office. He is a mere shadow of the principal. He does all things in the principal’s name. He exercises no independent right, but discharges the duties and performs the functions , of the auditor’s office in the right of another, and he is his agent and representative. That this is so, is fundamental and recognized by practically all of the authorities, and cannot be successfully controverted.</p> <p>“Definition. A deputy is one who, by appointment, exercises an office in. another’s right. 9 Am. & Eng. Enc. of Law, 39; Sherwsburies Case, 9 Coke, 42; Talbott v. Hoosier, 12 Bush. (Ky.) 408; Erwin v. United States, 37 Fed. 475; Garter v. Hornback, 139 Mo. 238; 9 Enc. of Law, 369; Willis v. Melvin, 53 N. C. 62; Piland v. Taylor, 113 N. C. 1.</p> <p>All the authorities agree that a special deputy is not a public officer, and the great weight of authorities held that a general deputy is not a public officer. The leading case upon this subject is 'Warwick v. State, 25 Ohio St. 21; Nelson v. Troy, 11 Wash. 435. To the same effect are Willis V. Melvin, 53 N. C. 62; Ooltraine v. McCain, 3 Dev. L. (14 N. C.) 308;' Campbell v. Hewlitt, 16 Q. B. 258, 71 E. C. L. (English Common Law) 258; Wilson v. Bussell, 31 N. W. 645.</p> <p>The statute under review does not require the auditor to appoint a deputy. The statute provides he “may” appoint one. It is optional with the auditor whether he shall, or shall not appoint a deputy, and if the duties of his office are such that he can discharge them without a deputy, he should not appoint one. We have seen that at common law, a deputy is a mere agent and assistant of the principal; that he acts in his principal’s name, and the principal is responsible for his doings; that at common law, such employment was not an “office” and the employee not an “officer.”</p> <p>No doubt the legislature of 1842 had this definition in mind when the act providing for a deputy auditor was passed, and no doubt, subsequent legislatures and framers of the Constitution of 1890 and subsequent legislatures had this definition in mind. This contemporaneous constructibn by the legislatures since 1842, and the Constitutional makers since that date, as well as the contemporaneous constructions by the different departments of the state under these various statutes are. entitled to great weight. Ott v. Lowrey, 78 Miss. 487.</p> <p>In fact this statute should, not be declared unconstitutional, and unless it is so beyond a reasonable doubt and certainty, in view of the legislation upon this subject for a period of at least seventy-nine years, the court cannot say it is unconstitutional beyond a reasonable doubt. At common law, a general deputy is not required to make an oath of office. Turner V. Holzman, 54 Md. 159; Willis v. Melvin, 53 N. C. 62; Puleston v. United States, 85 Fed. 570; Talbott v. Hooser, 12 Bush." (Ky.) 408.</p> <p>As showing that a deputy is not an officer, in the absence of a statute prescribing qualifications for a deputy, the principal has authority to appoint whomsoever he pleases, whether minors, women, or qualified electors. The authorities to this effect are practically unanimous. Wilson v. Newton, 87 Mich. 439; Warwick v. State, 25 Ohio St. 24; Jeferies v. Harrington, 11 Cole 191; Herkenreader v. State, 35 Tex. C. B. 243. Wherein the cases of Wilson v. Newton, supra and Jeferies v. Harrington, supra,'ave approved. . State v. Philps, 5 S. Dak. 480, where Wilson v. Newton Warwick v. State, and Jeferies v. Harrington, supra, are approved. State v. Taylor, 36 S. C. 515, followed and approved in Railroad v. Fisher, 109 N. C. 1.</p> <p>As showing that the deputy is the mere agent of the principal and not an independent officer, and in exercising the duties of an independent office, he is required to act in the name of the principal, he is his agent and should act in his name. Perkins v. Reed, 14 Ala. 536; Rowley v. Howard, 23 Cal. 402; Schott v. Youree, 142 111. 233; Abrams v. Erwin 9 Iowa, 87; Evans v. Wilder, 7 Mo. 359; Garter v. Gornback, 139 Mo. 238; Anderson v. Brown, 9 Ohio, 151; Denison v. Story, 1 Oregon, 273; Winbish v. Woford, 33 Texas, 109; Arnold v. Scott, 39 Texas, 378; McNutt v. Livingston, 7 S. & M. 641; Greenwood v. State, 17 Ark. 332; Banner v. McMwrry, 1 Dev. L. (12 N. C.) 218; Smith v. Gousler, 83 Ky. 367; Beardman v. Holliday, 10 Paige (N. Y. 223. And the death of the principal terminates the authority of the deputy, because the deputy is a mere agent. Anderson v. Brown, 9 Ohio, 151; Lane v. Cotton, 1 Salk. 17, 91 English Beports reprint 17; Taylor v. Kercheral, 82 Fed. 501.</p> <p>The legislature recognized this rule in enacting section 3487 of the Mississippi Code of 1906. That the deputy is merely the agent of the principal, fills no independent office, discharges no independent functions and acts for and in the name of the principal, and that the death of the principal terminates the agency, is clearly recognized in the case of McRee v. Swalem, 81 Miss. 679.</p> <p>The statute clearly contemplates that the 'deputy is to be under the sole direction of the principal. If not, why was the auditor given the power to discharge the deputy? Moreover, if the business of the office does not require an assistant, the auditor should dispense with the deputy. He is not required to have one, but may do so.</p> <p>It is respectfully submitted that a deputy auditor is not an officer within the meaning of the Constitution; that he does not hold an office, but that he is a mere agent or assistant to the principal; that the auditor had a right to remove relator from the office and appoint another deputy.</p>

Hon. W. M. Denny, Jr., Chancellor. Suit by H.'E. Pritchett and others against T. G. Hibbler, with cross-bill by defendant. Judgment for defendant, and complainants appeal. The finding of the court on its face flagrantly violates every theory and rule of equity and justice dealing with the proposition as clearly set forth and established by a number of decisions of the supreme court of this state.

Hon. V. J. Stricker, Chancellor. Suit by Stokes V. Robertson, State Revenue Agent, against the Aetna Insurance Company, for violating the Anti-Trust Law and asking for appointment of receivers. From an order appointing receivers, defendant appeals.

Anderson and Sykes, JJ., dissenting. Appeal from chancery court of Hinds county. Hon. V. J. Strickler, Chancellor. Proceedings by Stokes V. Robertson, State Revenue Agent, against Nugent & Pullen. Judgment for plaintiff, and defendant appeals.

<p>Appeal from chancery court of Leflore County.</p> <p>Hon. G-. E. Williams, Chancellor.</p> <p>•Bill by J. T. Flanagan against the Board of Drainage Commissioners of Leflore County. From a decree disallowing plea of defendant, he appeals.</p> <p>The attention of the court is respectfully directed to the fact that chapter 191, of the Laws of Mississippi 1910, amending section 1704 of Mississippi Code of 1906, provides for the payment of commissions to the treasurer. The next chapter in the Laws of 1910 is the legislative scheme for the payment of treasurers. It provides for the payment of commissiones to the county treasurer; but, sections 3 of chapter 192 of the Laws of Mississippi, 1910, provides that the county treasurers shall receive an annual salary of three hundred dollars, and, “shall receive no other fees or emoluments for their services as county treasurer.”^</p> <p>With reference to the commissions to' be paid the treasurer on account of handling the funds of drainage districts, section 1704, Mississippi Code of 1906, was last amended by the Daws of Mississippi 1914,' chapter 359, in which it was provided that the treasurer “shall receive such compensation as the commissioners may allow, subject to the approval of the chancellor.” Counsel in their'brief, argue that drainage funds are not county funds, and that there fore the treasurer’s salary does not exclude the payment of treasurers commissions.</p> <p>We respectfully submit that under this view of the case, the treasurer is not entitled to recover.</p> <p>In the first place, by the Laws of 1914, chapter 359 above quoted, an allowance must be made by the commissioners and approved by the chancellor. No claim of this sort is made. It is settled law that “an officer is not entitled to fees or other charges or allowances by way of compensation unless the law expressly so provides.” Hendricks v. ’Supervisors, 49 Miss. 612; Beck v. Allen, 58 Miss. 435; Bordeaux v. Warren, 66 Miss. 231; Marshall County v. Tidmore, 74 Miss. 317.</p> <p>The legislative scheme above referred to provided for the payment to the treasurer of commissions, first in the event there was no depository, and second, a salary in the event there was a depository. He was, we respectfully submit, entitled to fees and such fees are claimed here, in the event there was no depository. In the event there was a depository, as is here pleaded, he is entitled to three hundred dollars, and no more. The cases cited in counsel’s brief are to be found in the notes to 15 C. J. 503, annotating the subject “Treasurer” in the chapter on “Counties.”</p> <p>From the text, we quote: “Statutes placing the county treasurers on a salary basis usually state either expressly or impliedly, that the salary provided shall be in lieu of all other compensation and regardless of whether they do or not, a county treasurer, like all salaried officers, takes his office cum onere, and where additional burdens are imposed on him by statute, he is not entitled to additional compensation, unless it is so provided by statute. . Even where fees in adidtiop to his salary are granted to him by statute, the treasurer is not entitled thereto where the Constitution of the state provides that bis salary shall be his only compensation.” 15 C. J. 502.'</p> <p>A strongly persuasive case is cited in the notes: “The treasurer receives a regular salary fixed by law. This case involves the question whether he is entitled to charge fees against the county in addition to bis' salary for services in making collections on assessments levied in county ditch proceedings. ■ It seems to us he has no such right. The statute relating to collection of such assessments do increase somewhat the duties and liabilities of the county treasurer. The construction of ditches increases the amount of money which the treasurer is obliged' to handle and increases the amount of book-keeping in his office, but it is well settled that the county treasurer, like all salaried officers, takes his office cum onere and if the statute increases the duties of the office, by the addition of other duties, he is not entitled to additional compensation, unless additional compensation is provided by statute. Trovatin v. Pennington, 135 Minn. 274, 160 N. W. 766.</p> <p>There is no exception written in the statute providing for a salary of three hundred dollars to the treasurer; on the contrary, it expressly provides that “the treasurer shall receive no other fees or emoluments.”</p> <p>We respectfully submit that if be is entitled to receive fees for handling the drainage funds, he is also entitled to receive the fees provided for in that part of the law which is operative only in the event that there is no depository. We respectfully submit that this case should be reversed and judgment entered here sustaining the plea.</p> <p>The only point made by the plea of appellants in the court below is that Leflore county had a county depository, and that appellee as treasurer of Leflore county was ex-officio treasurer of drainage districts therein and paid a salary of three hundred dollars a year' provided by statute.</p> <p>The statute reads as follows: “The counties having-county depositories, the treasurer shall receive an annual salary of three hundred dollars per annum and the same shall be allowed and paid in monthly payments, and the treasurer in such counties shall receive no other fees or emoluments for their services as county treasurer.” Section 1875, Hemingway’s Code, Laws of Mississippi 1910, chapter 192.</p> <p>Now the question presented is whether the county treas: urer is entitled to commissions on funds coming into his hands as treasurer of drainage districts. “A drainage district fund is not a county fund but a fund belonging to the drainage district.” Honey v. Green County, 102 Ark. 106, 143 S. W. 592.</p> <p>“The proceeds of irrigation district bonds are not moneys received by the county treasurer as such treasurer, but as district treasurer.” Otero County v. Otero Irr. District, 56 Colo. 515, 139 Pac. 546.</p> <p>We respectfully submit- that county funds and drainage district funds are separate and distinct funds, and that county treasurers acting as drainage district treasurers are entitled to commissions .allowed to funds.coming into their hands as district treasurers, and that the chancellor was eminently right in disallowing the plea of appellant.</p>

<p>1. Trial. Direction of verdict improper, where evidence conflicting. A verdict should not be directed, where the evidence is in conflict.</p> <p>2. Railroads. Negligent hilling of child shown.</p> <p>In an action against a railroad company to recover damages for the death of a child, killed by being struck by one of the company’s trains, the jury would be warranted in finding that the ■ child was struck because of the negligence of the engineer of the train, ■ if it appears from the evidence that the child was on the track as the train approached, and was struck while attempting to escape, if it further appears that the enginees saw the child in ample time, but did nothing, to prevent the train from striking it.</p>

Hon. E. D. Dinkins, Judge. Action by William Lester against the Grenada Bank. Judgment for plaintiff, and defendant appeals. Of course, it is a well-established rule of law that the failure to pay money when same is due and payable that the injured party may recover principal and lawful interest thereon.

Hon. G. E. Williams, Chancellor. Proceedings between Mrs. Valerie W. Clark and Charles W. Clark and others to construe the will of Paul Clark. Decree for the latter, and’the former-appeals. The rights of the widow under this will and' of the two children living at the time of its execution, are plain enough, and the difficulty only arises when we undertake to fix the rights or their shares after deducting therefrom the shares of the two pretermitted children.

<p>Appeal from chancery court of Stone county.</p> <p>Hon. Y. A. Griffith, Chancellor.</p> <p>Suit by Davis Hickman against Lula Cobb Hickman for divorce. From a decree granting defendant counsel fees and alimony pendente^ lite, plaintiff appeals.</p> <p>Now, the presumption is that, in 1910, when appellee married Rhone, she could contract a valid marriage with Rhone, as a divorce was presumed from Henderson or of Henderson from her. Beardsley v. A. & V. B. B. Company, 79 Miss. 417.</p> <p>Henderson in 1915 turned up alive, but this does not ■overthrow the presumption, because there is no evidence iu the record that Henderson had not secured a divorce from appellee. On the stand appellee never attempted to-say that Henderson had not been divorced from her, notwithstanding she testified at length. The only thing she mentions about divorce is that she consulted a lawyer-about one and he told her she did not need any, but she does not say one time that she had never received notice-of suit being filed by Henderson for divorce from her. In other words, there is no evidence in the record but what Henderson might have obtained a divorce from her, and the presumption is that when she married Rhone in 1919, she was legally capacitated to' enter into a valid marriage with him and did enter into a legal marriage with said John F. Rhone in 1910; and she frankly admits that she was never divorced from Rhone at the time she married appellant. Nor can she take refuge behind the presumption of Rhone’s death because of his disappearance for seven years, because it is shown that Rhone became scared and left and kept going; there is no evidence that appellee ever made diligent search to find Rhone’s Avhereabouts. There is no legal evidence before the court that Rhone had a Avife in Missouri so as to have incapacitated him from entering into a legal marriage with appellee; it is only hearsay, and about the only thing -that can he legally deduced on this point is that Rhone left; either became scared or framed this up for an excuse to leave. At any rate, appellee’s search for him is not that of the lovers described in “Evangeline.” Wherefore, she cannot shield herself behind the seven years’ disappearance presumption.</p> <p>We are therefore bound to be driven to the conclusion that appellant’s marriage to appellee was not a valid marriage, and that consequently counsel fees and alimony pendente lite should not be alloAved, under the authorities in the Beardsley ease, supra, and respectfully submit that the court should so hold.</p> <p>The court will bear in mind that this wag not a trial of the cause on its merits but was being heard on appellee’s motion for suit money at the return term. The case was not triable and the defendant, appellee here, had had no opportunity to .secure; testimony on the issue, but was merely asking for the assistance of the court in securing help to defend the suit.</p> <p>Assuming that Henderson did not die until he went to appellee at Oberlin, Louisiana, appellee’s marriage to Rhone was void and Henderson’s death did not breathe the breath of life in her marriage to Rhone, and it was not necessary for her to obtain a divorce from Rhone on this void marriage. Clark v. Clark, 115 Miss. 726.</p> <p>The burden was and is yet on the appellant to . show that his marriage to appellee was void and that he is entitled to divorce, and appellee is entitled to offer evidence in rebuttal on this issue.</p> <p>The chancellor properly heard testimony as to the ability of the appellant to' pay attorney’s fees and temporary alimony and as to appellee’s need therefor in preparing for trial of her case on the issue and we believe his finding in the premises entirely proper.</p> <p>The case of Beardsley v. Á. & V. R. R. Go., 79 Miss. 417, cited by appellant as authority in support of his contention is undoubtedly authority for appellee, if applicable at this time. We think this case will be .valuable to us in the trial on the issue and that under the rule announced therein appellant will have the burden of showing the invalidity of his marriage.</p> <p>The Beardsley case, supra, has been cited and followed or distinguished in Hoioard v. Kelly, 71 So. 391, 11 Miss. 285; Bennett v. State, 100 Miss. 684, 56 So. 777; Sullivan v. Grand Lodge, K. of P., 97 Miss. 219; Colored K. of P. V. Tucker, 92 Miss. 501.</p> <p>All of which cases are authority for the proposition that one attacking a second marriage has the burden of proving its validity and not that divorce hag been had. These cases are also authority for the proposition that a husband who has been gone for the statutory period and even for a less period in case of a second marriage is presumed to be dead.</p> <p>We certainly think this record will support the decree allowing appellee suit money in order to meet the litigation which appellant seems to be so vigorously pressing and respectfully submit that the case should be affirmed.</p>

Hon. A. E. Weathersby, Judge. Petition for writ of mandamus by the Pearl River County Bank against the Town of Picayune. From a dismissal of the petition on demurrer, petitioner appeals. It is conceded by the appellants herein that, in matters where the board has any discretionary power, that mandamus would not lie, in the absence of any showing of fraud on the part of said board.

Hon. S. F.'Davis, Judge. Action by Washington county against Humphreys county. Judgment for defendant on demurrer, and plaintiff appeals.. Demurrers both to the original and the amended declaration were sustained by the court, and the appeal is from the judgment sustaining the demurrers.

Hon. J. G. McGowan, Special Chancellor. Action by Grace Rhinehart against Charlie Rhinehart, Judgment for plaintiff, and defendant appeals.

<p>1. Appeal and error. Filing of appeal bond stops running of statute limiting time for appeal.</p> <p>The filing of an appeal bonds stops the running of the statute (section 3112, Code 1906 [section 2476, Hemingway’s Code]) limiting the time within which appeals must be taken.</p> <p>2. Appeal and error. Appeal will be dismissed when record not filed for more than a year after filing appeal bond.</p> <p>An appeal will be dismissed under section 4921, Code 1906 (section 3197,-Hemingway’s Code), when the record is not filed in the supreme court for more than a year after the filing of the appeal bond, and no excuse is given for the delay.</p>

Hon. J. D. Fatheree, Judge. Action by Belva Lottie Shoemake against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals.

Hon. R. W. Cutrer, Chancellor. Suit by A. D. Nunnery against W. C. Fowler for specific performance. From a decree for complainant, defendant appeals.

District. Hon. W. A. Alcorn, Jr., Judge. Suit by John F. McCullers against James C. Davis, Director General of Railroads, and Agent of the United States. Judgment for plaintiff, and' defendant appeals. Instruction No. 3 for the plaintiff on the measure of damages was erroneous.

<p>Appeal from circuit court of Wayne county.</p> <p>Hon. J. D. Fatherree, Judge.</p> <p>Petition by Frank Roberson, Attorney General, for leave to appeal from a personal property assessment against Robinson Land & Lumber Company. From a judgment increasing respondent’s assessment, it appeals.</p> <p>The appellee her.ein bases his right to take this appeal from the assessment solely and alone by authority of the provisions of chapter 120 of the Laws of 1918. We respectfully submit that the attorney-general is without power or authority to prosecute any appeal at all, from any assessment which may have been made by the board of supervisors, for the reason that chapter 120 of the Laws of 1918, being the only law or statute in this state which purports to give to the state or the attorney-general the right to take any appeal at all has, by implication, been repealed by chapter 135 of the Laws of 1918, as amended by chapter 323 of the Laws of 1920, and for this reason the motion of appellant to dismiss the appeal should have been sustained.</p> <p>We realize, of course, that neither chapter 135 of the Laws of 1918, nor chapter 323 of the Laws of 1920, in express terms refer to chapter 120 of the Laws of 1918, and we realize also that chapter 120 of the Laws of 1918, and chapter 135.of the Laws of 1918, were approved on the same date, but we call the court’s attention to the fact that chap-, ter 120 of the Laws of 1918, by the provisions thereof, went into effect immediately, while chapter 135 of the Laws of 1918, did not go into effect nor was it in force until the first day of October, 1920. The legislature must have had ■a reason in providing that the'act last above referred to, should not take effect until the fall of 1920, and we humbly submit that the only possible reason the legislature could have had in mind was that chapter 120 of the Laws of 1918, was intended as a temporary measure, it being the purpo.se of the legislature to pass an act which should provide, only for the appeals during the then present fiscal year, and upon the expiration of that year, the whole scheme and system of taxation in .Mississippi should undergo a change and, that thereafter, beginning on the first day of October, 1920, chapter 135 of the Laws of 1918, should furnish the sole and only system for the filing and approval of the assessment roll and the appeals to' be taken therefrom. We realize also in raising this point that it is a general rule of law that repeals of statutes by implication are not favored. However, it is the universal rule, as announced by numerous decisions not only of the supreme court of this state, but also by the supreme court of the United States that where a statute was evidently intended to revise the whole subject treated in a former statute and to be a substitute therefor, although there may be a plain casus omissus, the former cannot apply. See Olay County v. Chickasaw County 1. So. 753, wherein the above rule was announced in that case. Also it was held that the general rule is that when any other statute is revised, or where one statute is framed from another, some parts being omitted, the parts omitted are to be considered as annulled. In the case of State v. Elks, 69 Miss. 895, it was held that provisions of a statute omitted from one subsequently passed on the same subject to take its place and substitute it would be deemed to have been repealed.</p> <p>It should be borne in mind also that in the application of this rule it is not necessary that the statute should be repugnant in all of its provisions, in order that the prior statute be repealed by the latter one.</p> <p>In the case of Meyers v. Marshall County, 55 Miss. 344, the court held that although a statute be not repugnant in all of its provisions to a prior one, yet, if the latter statute was clearly intended to prescribe one rule that should cover a case provided for, it repeals the original act. See, also, the case of Gibbons v. Brittenum, 56 Miss. 232, and the following : Swan v. Buck, 40 Miss. 308; State v. Elks, 69 Miss 895; Bartlett v. King, 12 Miss. 537cited with approval by this court in M. & O. Railroad Company v. Wyner, 49 Miss. 749; Vicksburg v. Insurance Company, 73 Miss. 70; Archer v. Morse, 101 Miss. 36.</p> <p>In the case of The District of Columbia v. Hutton, 143 U. S. 18,36 L. Ed. 60, it is held: “When there are two acts on the same subject, the rule is to give effect to both, if possible. But if the two are repugnant in any of their provisions, the latter act, without any repealing clause, operates to the extent of the repugnancy as a repeal of the first even where two acts are not in express terms repugnant. Yet, if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing it was intended as a substitute for the first act, it will operate as a repeal of the first act.”</p> <p>In the cáse of Planters Bank v. State, 6 S. & M. 628, it is held, in the construction of statutes, the intention of the legislature is a cardinal rule of construction. “Courts, not legislatures, determine whether statutes are repealed.” 15 Rose’s notes, U. S. Supreme Court reports, page 1026.</p> <p>We submit further that even if chapter 120 of the Laws of 1918, under which this appeal is prosecuted, is not repealed, then that this act is in violation of the due process and equal protection clauses of the Constitution, in that it gives to the state and county twenty days after the adjournment of the meeting at which the decision is made, or within twenty days after the adjournment of the meeting at which the assessment rolls are corrected, in accordance with the instructions of the State Tax Commission or within twenty days after the adjournment of the meeting of the board of supervisors, at which the approval by the State Tax Commission is entered, in which to appeal, while it only gives to the taxpayer the right to appeal within five days after the adjournment of the meeting, at which an adverse decision is rendered. We submit that this is an unlawful discrimination in favor of the state and county, and against the taxpayer. It must be borne in mind in dealing with this question that the state is one litigant, and the taxpayer is the other litigant.</p> <p>In the case of Yazoo, etc., Railroad Company v. Wallace, 90 Miss. 609, the supreme court held that a statute which prevented the trial court from setting aside the verdict of the jury which was excessive and did not give it the right to set aside a verdict which was inadequate, was unconstitutional and void, and in violation of the due process laws, that the due process laws required that any right given to one litigant must be given to another litigant.</p> <p>This decision of the supreme court was reaffirmed in the case of Mississippi Eastern Railroad Company v. Wymond Cooperage Company, 93 Miss. 77. The same doctrine was also announced by the supreme court of this state in the case of Chicago, etc., Company v. Morse Company, 60 Miss. 641.</p> <p>The only difference between the method of appeal and the right to appeal on behalf of the attorney-general, and the method and right on' behalf of the taxpayer is that the attorney-general is required to give no bond, while the taxpayer is required to give a bond. Chapter 135 of the Laws. of 1918, as well as section 4296 of the Code of 1906, which is brought forward as section 7, of chapter 135 of the Laws of 1918, and as section 7 of chapter 323 of the Laws of 1920, provides that a person who is dissatisfied with the assessment may at such July meeting present objections thereto in writing, which shall be filed by the clerk, and docketed and preserved with the roll. All persons who fail to file objections shall be concluded by the assessment and precluded from questioning its validity, after its approval by the board of supervisors or by operation of law, except minors and persons non compos mentis.</p> <p>By the provisions of these statutes, the taxpayer before he had the right of appeal at all, must first present his objections to the assessment in writing, and until he did this his right of appeal did not exist unless he appeared and filed written objections at the time when the board of supervisors was meeting for the purpose of equalizing the assessment or he was forever thereafter concluded by the assessment and precluded from objecting thereto even upon appeal, and before he could procure any appeal at all, he must first file his written objections to the assessment, as rendered by the tax assessor, and as approved by the board of supervisors. If he failed to do this, he had no right to appeal and was conclusively bound by the approval of the roll. See all the express provisions of chapter 120 of the Laws of 1918.</p> <p>The attorney-general and the state of Mississippi, before any appeal can be taken at all, must comply with the provisions of law then existing, requiring objections to have been made and filed with the board of' supervisors to the assessment as rendered by the tax assessor, and, in this case having failed to do this, we are without power to prosecute any appeal from the approval of the roll by the board of supervisors, and the state and county are concluded by the assessment, as approved by said board, and forever thereafter precluded from questioning its validity.</p> <p>Section 4296 of the Code of 1906 provided: “In all cases after the return of the assessment rolls they shall remain on file and be subject to objections for at least two weeks after being filed, and until the next regular meeting of the board of supervisors, after the expiration of the two weeks, or until the day appointed in the case of an assessment by another than the assessor. A person who1 is dissatisfied with the assessment may, within such time, present his objections thereto in writing, which shall be filed by the clerk and docketed and preserved with the rolls. All persons who fail to file objections shall be concluded by the assessment and precluded from questioning its validity, after its. approval by the board of supervisors, or by operation of law, except minors and persons non compos mentis.</p> <p>That part of the above statute quoted, providing for the filing of objections, and providing that all persons who fail to file objections are concluded by the assessment is brought forward and repassed as section 7 of chapter 135 of the Laws of 1918, and is again brought forward and repassed as section 7 of chapter 323 of the Laws of 1920.</p> <p>We contend that the word “person” as used in these statutes is broader than Taxpayer,” and includes not only the taxpayer but includes the state and county as well. Section 1590 provides that whenever the word “person” is used in any statute in Mississippi that it shall apply to artificial as well as natural persons; it shall also apply to all public and private corporations as well as individuals. The wording of the above statute is very broad, and is very clearly intended to cover the state and county as well as individuals. South Carolina v. United States, 50 L. Ed. 261; The City of Louisville v. Commonwealth, a Kentucky case, found in 85 American .Decisions; Dolman v. Morse, 70 Miss. 267, 12 So. 23. And in, this case, the court cited with approval 18 American and English Encyclopedia of -Laws, page 430, wherein it is stated that the word “person” may include the state orlts subdivisions.</p> <p>In the case of Revenue Agent v. Clark, 80 Miss. 151,. the supreme court of this state decided that section 4296 applied alike to the state as well as to the taxpayer, and that when the word “person” was used in this statute it included the state as well as the taxpayer.</p> <p>The court reached the above conclusion solely and alone because of the provisions of section 4296 of the Code of 1906, and thereby held that the word person as used in this section, would include both the state and the county as well as the taxpayer.</p> <p>Counsel for appellee relied in the lower court on the case of Louis Cohn and Brothers v. Lincoln County, 81 So. 493, 119 Miss. 718, in support of their contention that it was not necessary to an appeal that objections must have been filed in writing before the board of supervisors. We submit, however, that the Cohn case is no authority for this contention. The facts in the Cohn case are altogether different from the facts in the case at bar. North v. Culpepper, 53 So. 419, 97 Miss. 730, which cites the cases of Adams v. City of Clarksdale, 48 So. 342; Forsdick v. Board of Supervisors, 25 So. 294, not officially reported.</p> <p>It, therefore, seems clear to us that inasmuch as no objection- were filed by any one, acting for the state cr county to the assessment, as rendered by appellant to the tax assessor, and by him entered upon his roll, and filed with the board of supervisors, and, inasmuch as no reduction in this assessment was made by the- board of supervisors, the state and county and the attorney-general are precluded by the assessment, and, for this reason, the motion to dismiss the appeal should have been sustained.</p> <p>Here, we have a remarkable situation, the attorney-general, for the first.time, contending on an appeal to the circuit court that the assessment of the Robinson Land & Lumber Company was for less than the real assessable value of its property. No issue ivas ever joined, no trial was ever had, and no decision was ever rendered by the court created by statute for the purpose of passing upon the question involved in this case. Not only is this true, but.no adverse decision has ever been rendered against the attorney-general, or against the state or county.</p> <p>In fact, chapter 120 of the Laws of 1918, under which the attorney-general claims his right to take this appeal, provides that an appeal may be taken, provided the state, county or municipality be aggrieved by the decision of-the board of supervisors. There could have been no decision, unless there was an issue, and the clear intent of this statute is that the decision from which the appeal could be taken is an adverse decision.</p> <p>In the case at bar, there never ivas any decision by the board of supervisors. There could not have been, because there was no issue raised.</p> <p>We come now to the consideration of another point involved in the case, which, we think is bound to cause a reversal of this case, regardless of what might be the judgment of the court as to the right of the appellant to' have had the appeal dismissed. The statute which provides for an appeal to be taken says that when the case is tried in the circuit court, it shall be tried de novo.</p> <p>The agreed statement of facts herein shows that all of the property of the Robinson Land and Lumber Company, except lumber on hand, and machinery, on hand, was assessed at its proper value; that lumber on hand was assessed at -two thousand dollars less than its assessable value, and that machinery on hand was assessed at two thousand dollars more than its assessable value, so, in the trial de. novo, in the circuit court when, the issue to be tried was, what was the reasonable, fair and assessable value of the property of the Robinson Land & Lumber Company there should have been but one decision, that the aggregate value of this property was no more than the amount for which it is assessed ; on the trial of this issue, while the court must have rendered judgment, if we are mistaken in our right to have the appeal dismissed, for an increase on the item of lumber, it must also have rendered judgment for a decrease on the item of machinery, and the one offset the other. Under the authorities, a trial de novo is a trial anew, a trial as if there had never been a trial before. The same rules covering the trial of an appeal from a judgment of the justice court must apply to an appeal from the tax assessment, because by both statutes, it is provided that the case must be tried de novo.</p> <p>In the case of Callahan v. Newell, 61 Miss. 437, it is held that on appeal from the justice court, the case is tried anew as if never tried before, and any defense may be set up for the first time, in the circuit court. The above case was reaffirmed in the case of Illinois Central Railroad Company V. Andrews, 61 Miss. 474.</p> <p>Words and Phrases, page 7108, citing 55 Tex. 273, provides that a trial de novo means a trial of the entire case anew hearing evidence, whether additional or not, and not a trial on appeal. The same authority also holds that a de novo trial in the appellate court is a trial had as if no action had been instituted in the court below, and, in support of this, cites 32 Atlantic, 225.</p> <p>The legislature of Mississippi has recognized this rule, because it has provided that on an appeal by the defendant from a judgment rendered against the defendant in the justice court, if the plaintiff recovers as much or more in the circuit court than he recovered in the justice court he is also entitled to recover ten per cent damages. Section 86, Code of 1906. This is not a legislative act authorizing a recovery of more by the plaintiff where the defendant procured the appeal, but is merely a legislative recognition of the fact that on such an appeal the plaintiff would not be bound by the amount of his recovery in the justice court, but would be authorized to recover more in the circuit court and providing for a penalty to be imposed against the defendant in such case. Harrison County v. Robertson, S3 So. 617.</p> <p>It seems to us too clear for argument that the very word “anew” means that there must be a trial just as if there had never been a trial before, and any issue, which could have been submitted and which could have been passed on in the lower court, can be submitted and should be passed on in the appellate court; the issue to be determined on the trial of the case is what is the reasonable value of the property liable for taxation, and, if it appear on the trial of the case that some of the property of the taxpayer has been assessed at a greater value than its reasonable and assessable value, the taxpayer is entitled to have the assessment reduced to the real value of his,property and this without regard to whether the appeal might have’been taken by him, _r whether taken by the attorney-general, and so we submit aside from every other question involved in this casei that it was error for the court below to render any judgment at all in increasing the assessment of appellant, because of the fact that its property was already assessed at its true and assessable value.</p> <p>The judgment, of the court in this case is erroneous and should be reversed for another reason. This judgment increases the assessment of the Robinson Land and Lumber Company two thousand dollars, and yet no notice was ever sent by mail to appellant, by the clerk of the board of supervisors, or by any one else, as required by section 6 of chapter 323 of the Law of 1920. The, latter part of which section reads as follows: “And where an individual assessment has been increased as much as five hundred dollars, notice shall be sent by mail to the person whose assessment is increased by the clerk of the board of supervisors.”</p> <p>It is the clear intention of the legislature, as will be seen from a reading of this section, that in no event can the assessment of a taxpayer be raised to a sum in excess of five hundred dollars, until notice thereof be given and the taxpayer given the opportunity to object to the increase, and submit his evidence to the board of supervisors, in order that a decision may be had thereon, and,- yet, if an appeal can be prosecuted, as the attorney-general is attempting to prosecute it herein, this plain, positive requirement of statute that before an increase can be made in a sum in excess of five hundred dollars, notice shall be given the taxpayer, is circumvented and done away with, and the attorney-general is permitted, as he was permitted in this case, to increase the assessment of a taxpayer to a sum far in excess of five hundred dollars and no notice whatever given or attempted to be given to the taxpayer, to appear before the proper authority, the board of supervisors, and present his objections. If he is right in his contention and permitted to do this, then he is given greater power than the board of supervisors, and is permitted by this unjust procedure to do what the board of supervisors could not do itself; that is, increase the assessment of a taxpayer more than five hundred dollars -without giving the notice required by statute.</p> <p>We desire first to answer the argument of counsel for appellant that chapter 120, Laws of 1918, has been repealed by chapter 185, Laws of 1918, as amended by chapter 323, Laws of 1920. There can be no merit whatsoever in this argument. Chapter 120, Laws of 1920, is amendatory of our old section 81 of the Code and designed simply to give the right of appeal to the attorney-general as well as to the taxpayer. This statute was approved March 27, 1918. Chapter 135, Laws of 1918, as disclosed by the title had in its purpose a plan to authorize the state tax commission to furnish the proper form of real and personal assessment roll and to define the duties of tax assessor and boards of supervisors in the making, filing, approving and correcting of the roll. This section does not directly pertain to the right of appeal, but does embrace section 7, authorizing any person who is dissatisfied with the assessment to appear at the revenue session of the board and present objections in writing and providing all persons who fail to file objections shall be concluded by the assessment. This statute was approved also on March 27,1918. In other words both chapter 120 and chapter 135, Laws of 1918, were passed by the same legislature and approved on the same date. They both pertain in a general way to the assessment of property for taxation but relate to different phases of the subject. There is no conflict in the two chapters or in any material provisions thereof.. Before there could be a repeal by implication there must be a necessary conflict in the statutory provisions. No such conflict arises on the face of these statutes. Both can stand together and both in fact have heretofore stood together. We say this because chapter 135 in most of its material provisions simply carry forward the same law as appears in our code. Counsel frankly concedes that repeals by implication are not favored. There is no occasion to discuss this, or the Clay Co. v. Chicasaw Co., 1 So. 735, State v. EHc&, 69 Miss. 895, or any other authorities cited by counsel announcing the well-known principles of law that the last statute must govern and that any conflicts between two' statutes must be resolved in favor of the last expression of the legislative will. The authorities cited by counsel simply reiterate “horn book” law but have no application to the statutes now under review. It could never be said that chapter 135, Laws of 1918, is a substitute for chapter 120, Laws of 1918, to say that the legislature intended to pass two conflicting laws on the same day would be to convict the legislature of stupidity. But regardless of any generalities, the two laws are not in conflict and both can stand and freely operate side by side.</p> <p>The second main thought advanced by counsel is the point that there is an unlawful discrimination in favor of the state and county and against the taxpayer when the state and county are given twenty days in which to appeal and the taxpayer is only given five days. The entire premise upon which this argument is founded gives way when we remember that the right of/ appeal is statutory and in the absence of statute does not exist. The proposition that the right of appeal is purely statutory has been put at rest in this state by the recent case of Town of Tutwiler v. Gibson, 117 Miss. 879, 78 So. 926, as a case decided by the full court. The present chief justice speaking for the court said: “The right of appeal exists only by virtue of the statutes which confer it, can be exercised only in accordance therewith and within the time allowed thereby.”</p> <p>This case simply announces the well-known rule of law, that the right to appeal whether from justice court or board of supervisors or the circuit court is purely statutory, must be based upon the express provisions of the statute and must be taken within the time specified.</p> <p>No constitutional question is here involved. There is no provision either of the state or Federal constitution that prohibits a reasonable discrimination as between the state and one of its citizens when,it comes to granting the right of appeal. If the contentions of counsel were true then the state could not provide that no statute of limitations should run against it without trespassing upon the constitutional rights of the citizen. Surely the state is not powerless to protect its own interest to provide how and in what fashion it may be sued, and how and within what time it may appeal from any judgment in any court within its own borders.' In our latest statute, chapter 323, Laws of 1920, the taxpayer is given two chances or rights of appeal and also the right of arbitration. The first right of appeal is granted under section 7, a section which was brought forward, from chapter 135, Laws of 1918, which likewise brought the same provision forward from the code, this right conferred by section 7 authorizing any person to appear at the first general revenue session of the board and file objections in writing and granting the right of appeal from any order of the board overruling such objections relate to' fundamental defects in getting up the assessment roll such as fraud, a total failure to comply Avith the law, gross inequalities as between certain classes of property which would prejudice the individual making or filing the objection. These objections are presented, at the first session at which the assessor' and the board of supervisors undertake to look over the roll find equalize generally over the county. Learned counsel for appellants argue to this court that if any person fails to file objections at this session of the board, he is concluded, and does not possess any right of appeal whatsoever. Counsel does say that if an appeal is desired to be taken from the assessment roll as returned by the assessor, then the objection in writing must be filed before the board of supervisors and cites in support of this argument the case of Cohn & Bro. v. Lincoln Go., 119 Miss. 718, 81 So. 492. But unfortunately for learned counsel the Cohn case is conclusive against counsel’s contention. This case affirmatively holds that the right of appeal must be found in old section 81 of the Code and that anyone aggrieved at any decision with reference to taxation or the assessment for taxation can appeal regardless of Avhetlier he has filed written objections or not. This case was likeAvise decided by the court in banc and the decision announced by the present Chief Justice. The contention was squarely made that, “No appeal will lie from a decision of the board of supervisors by which a valuation made by the assessor of property for taxation was increased unless the person aggrieved by the decision objected in some way thereto.”</p> <p>This was the first of the two main contentions pressed upon the court. In answer to this contention the court said: “The first of these contentions is without merit for the reason that section 81, Code of 1906 (section 61, Hemingway’s Code), under which the appeal to the court below was taken provides that any person aggrieved by the decision of the board of supervisors may appeal, etc., and not that any person aggrieved by a decision of the board of supervisors and who has objected thereto may appeal.” Investment Co. v. Suddoth, 70 Bliss. 421, 422,12 So. 246.</p> <p>Any doubt seems now to'be removed by the very recent case of M. <£ O. Railroad Co. v. Board of Supervisors of Wayne County, 87 So. 189, advance sheets No. 2, March 26, expressly holding that the taxpayer can now wait until the final touch is given to the roll in pursuance to the order of the state tax commission and when the board of supervisors enter the final certificate of the state tax commission approving the roll, this is the final judgment rendered against the taxpayer and he has five days after this final order in which to appeal. The writer of this brief is unable to reconcile the opinion of Judge Sam C. Cook, in this last case with the express provision of section 10, chapter 323, Laws of 1920, giving the taxpayer the option to appeal.</p> <p>This statute gives affirmatively the option to the taxpayer to appeal at three different occasions as the necessity of the case suggests. Our court in the Bl. & O. Railroad case recently decided, seems to ignore this section of the law and to confine the right of the taxpayer to five days after the adjournment of the board finally approving the roll under directions of the state tax commission. While the right of the taxpayer to appeal is not directly involved in the case at bar we respectfully submit that this recent decision of the court is in the face of the statute and limits unnecessarily the taxpayer’s right to appeal. The taxpayer is not required to wait until the roll is finally approved but may appeal from the action of the board at the August meeting when his rights have been invaded and his protest has been overruled.</p> <p>Mr. Judson in his splendid work on taxation, paragraph 509, says: “The law-making power determines the questions of discretion or policy in ordering, assessing and collecting taxes, and determining the necessary rules and regulations. The mere fact that a special procedure is provided for the taxation of a certain class of property different from that provided for another class or from the general procedure in taxation will not make the act providing such special procedure invalid. These are matters of detail within the legislative discretion.” Paragraph. 510,</p> <p>On the other hand there is no denial of the equal protection of the laws in the fact that the law gives the assessors in cases of corporations two chances to arrive at the correct valuation of real estate, when they have but one in the case of individuals. The Indian Railroad case referred to by Mr. Judson is found in 154 U. S. 426. We also cite in this connection McLeod v. Receveur, 71 Fed. 455.</p> <p>In paragraph 346, Mr. Judson says that a rehearing or appeal in tax matters is not required but if the taxpayer is given an opportunity for hearing at any stage before the tax becomes final, whether before a quasi-judicial board or before any other tribunal provided by the state it is sufficient and that it is no objection if the procedure is summary. And in the Indian Railroad case referred to, the supreme court said: “Rehearings, new trials are not essential in due process of law, either in judicial or administrative proceedings. One hearing if ample before judgment satisfies the demand of the Constitution in this respect.”</p> <p>So we respectfully submit that the taxpayer does not possess as a matter of constitutional right any right of appeal whatsoever if he has had his day in court before the board of supervisors. There being no constitutional right of appeal, it is clearly within the power of the legislature to make reasonable distinction or discrimination in conferring the right of appeal upon the taxpayer and the attorney-general acting for the state.</p> <p>The question of due process and equal protection of the law granted by the Federal Constitution so far as this section has any bearing upon taxation has frequently beep before the supreme court of the United States, see, cases of Winona and St. Peter Land Go. v. Minnesota (U. 15.), 40 Law. Ed. 247; Weyerhausser v. Minnesota, 44 L. Ed. 583. In paragraph 308 of Volume 26, R. C. L. The footnotes here cite the Indiana Tax case above referred to 154 U. S. 421, 38 L. Ed. 1031, and also Nathon v. Spokane Oo. (Wash.), 76 Pae. 521,102 A. S. R. 888, 65 L. R. A. 336. In the annotation on case note L. R. A. 1916E, page 21, the editor treating of the right of appeal, among other things says: “Where he has had a hearing it is not necessary that he be given a further right of appeal.” Alabama case of State v. Bley, 50 So. 263; Olay Oo. v. Brown Lumber Oo., 90 Ark. 413, 119 S. W. 251.</p> <p>After the motion to dismiss the appeal had been presented by appellant and overruled by the learned circuit judge, appellant thereupon attempted to present to the court a cross-action or cross-demand setting forth an alleged overvaluation in machinery and asking the court to reduce the item of machinery and to offset an alleged overvaluation of machinery against an undervaluation of lumber. Without conceding appellant’s right to any relief -whatsoever in this regard, we did agree that if, under the law, appellant could prosecute any such cross-action that then for the purpose of this trial we could agree that the machinery was overvalued in the sum of two thousand dollars. We made this agreement with the purpose of having this law point decided and cleared up by the court and we are confident in our position that the circuit judge ruled correctly in holding the taxpayer on this appeal could make no such claim. This appeal was not prosecuted by the taxpayer .and the five days allowed appellant within which to make appeal, had passed, and having passed, the roll became conclusive against the taxpayer. Furthermore the taxpayer in this case, gave in this machinery at eighty thousand dollars and having made a return to the assessor, valuing machinery at eighty thousand dollars this return is conclusive and binding on the taxpayer and appellant is estopped from now disputing its own return. So it is that we have two main reasons or contentions on this alleged right of offset or cross-action attempted to be presented by the taxpayer in this case. Our first contention is that this is primarily and essentially an appeal by the attorney-general to raise valuations and not to lower valuations. The attorney-general is aggrieved at the undervaluation and prosecutes an appeal with the view of having this valuation raised. It is true that the case is tried de novo in the sense that the record is not binding and either party has an opportunity to present witnesses and revalue the property. It may be that the attorney-general has a right to bring in or add to the list certain items of personal property which do not affirmatively appear under either subtitle on the asessment roll. But be that as it may, no such question arises in this case and the sole issue presented in this case is whether the attorney-general had a right to increase the valuation. That was the issue raised by the appeal. Now the attorney-general did not ask for any increase on machinery Avhen it came to the merits of the case on appeal and produced no witness in reference to this item. He limited his contention to increasing the item of lumber and for the purpose of this trial counsel for the taxpayer agreed that the item of lumber was undervalued in the ,sum of- two thousand dollars. Unless the attorney-general were to introduce testimony in reference to the valuation of machinery a jury in this case could not consider the valuation of machinery and so the valuation fixed by the assessment roll would remain final and'conclusive. The attorney-general was satisfied Avith the valuation of machinery, although this item is embraced in the general appeal prosecuted. The taxpayer has waived his right to have appeal and lost his day in which to prosecute an appeal; and so it is that by all of the previous adjudications of this court the roll becomes binding upon him. It is finally a judgment forever binding upon the taxpayer. If the attorney-general sees fit to prosecute an appeal he would have a right to dismiss the appeal and whether he did so or not, the taxpayer has no right to file any cross-action or seek any affirmative relief by way of cross-action. No cross-action is provided for by the statute and the statute must govern. It is all statutory.</p> <p>Another and a sufficient reason why the taxpayer may not prosecute this cross-action is the fact that it gave in its return or list voluntarily assessing machinery at eighty thousand dollars and this list is conclusive and binding. The authorities on this point are clear and conclusive against appellant’s contention. In paragraph 361, Mr. Judson says: “Estoppel of taxpayer by his return for assessment. The rule is well established that the taxpayer is bound and estopped by his own statement as to the nature, title and value of his property- made in the list which he returns for taxation, although of course the public is not bound, and no one else could be prejudiced by the list of property which he does not own; nor does a taxpayer make such list a covenant for a title.”</p> <p>In accordance with this rule the supreme court of Illinois in the case of In Re Bank of Marion et al, 39 N. E. 118, ruled as shown by the syllabus: “In absence of any evidence of fraud, accident or mistake, a property-owner is bound by a schedule of his taxable property given by him to the assessor. People v. Atkinson, 103 111. 45, followed.” Dull v. Lefevre et al., 222 Fed. 471; State v. Cooper (Wis.), 18 N. W. 438.</p> <p>We might add in passing that in this case just quoted from the Wisconsin court quoted to approve the language of the chief justice in the former case of State v. Dunham, 26 Wis. 393, slightly touching up those who resist a demand for taxes in the following language: “How many persons would resort to any expedient to prevent all of their taxable property from being assessed or if assessed at all from being assessed at its true value. They will deceive assessors and intimidate even the boards of equalization if possible.”</p> <p>In 27 American and English Encyclopedia of Law, page 671, it is stated the taxpayer in listing his property for taxation is generally bound by the statements he makes as to its extent and value and estopped from disputing assessments made in conformity therewith, etc. In the footnotes are listed cases in support of this text from California, Colorado, Connecticut, Florida, Illinois, Indiana, Iowa, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, New York, Tennessee, Texas and Vermont.</p> <p>We desire to emphasize the point that in prosecuting appeals from assessments there is no inherent right of appeal and the statutes must be strictly followed. Before the state was given any right to appeal, the taxpayer possessed the statutory right of appeal and could have his assessment reduced. We know of no case authorizing the state to increase the assessment where the state was not given the right of appeal and the taxpayer has himself appealed. On the contrary it is stated in 27 American and English Encyclopedia of Law, 720: “It has been held that courts in determining appeals can only consider the correctness of the assessment in regard to the complaint made and have no authority to increase the assessment.”</p> <p>Our court in Madison Go. v. Frasier, 78 Miss. 880, held, that no appeal will lie until the assessment is finally approved and in Vielcsburg v. Adams, 74 Miss. 179, and Morris Ice Go. v. Adams, 75 Miss. 410, held that a personal judgment against the taxpayer on appeal is not authorized.</p> <p>If the court should hold that the taxpayer can present a cross-action and have any item of personal property reduced in these appeals by the attorney-general, then the object of the statute will be to some extent at least defeated. The taxpayer will be justified in holding back to see if the state or county will not appeal from his gross undervaluation and get the benefits of an appeal for himself without assuming the obligations. If the taxpayer appeals he is required to give bond which stands good for the taxes. No such bond Avas given by appellant in this case and without such bond the taxpayer is not in court on this appeal except to defend the appeal of the state and county.</p> <p>■ The state is certainly sovereign when it comes to exacting just tributes from the citizen and in requiring the taxpayer to comply with the law. This is illustrated in a case that arose in Ohio and went to the supreme court of the United States. Sturgis v. Garter, 114 U. S. —, 29 L. Ed. 240.</p> <p>Counsel argue that it was incumbent upon the attorney-general to appear before the board of supervisors and file written objections and not having done so, there is no issue to be tried on the appeal. There are at least two good and sufficient answers to this argument.</p> <p>The taxpayer possesses the right of appeal without filing written objections. This appeal' is not attempted to be prosecuted by the attorney-general to upset the entire roll or to raise any fundamental objection to the work of the assessor from any issue of fraud going to the whole roll. The appeal in the present case is merely for the purpose of having specific property of a designated corporation revalued or increased. The taxpayer possesses this right of appeal for the purpose of having his property reduced, notwithstanding the fáct that he failed to file any written objection. This is made plain by the Gohn case, supra.</p> <p>This duty is primary. The state has an interest in these appeals. The statute in granting the right to appeal imposes no condition of the kind argued by counsel and there can be no merit in the contention that the attorney-general must file objections or even appear before the boards of supervisors. He is expressly granted twenty days after the final approval of the roll in which to look over the whole situation and prosecute any appropriate appeal.</p> <p>Counsel have much to say about the case of Revenue Agent v. GlarJc, 80 Miss. 134, holding that the final approval of the roll is binding both upon the taxpayer and the public. We do not at all dispute this general proposition. The Clark case relied upon by counsel says: “When no appeal is taken the statute declares the roll to be conclusive. Of course, if no appeal had been taken in this case the roll would be conclusive both upon the taxpayer and the public, including the state. But here an appeal has been taken and that clearly within the time allowed by law.</p> <p>There is another minor point raised by counsel to the effect that the judgment rendered in this cause increased the assessment of appellant two thousand dollars when no notice was sent by mail as required by section 6, chapter 323, Laws of 1920. This section manifestly lias reference to the duty of the board at the August meeting, when it equalizes the assessment and increases or diminishes the valuation of any property. If at the August meeting an individual assessment has been increased as much as five hundred dollars notice shall be sent by mail to the person whose assessment is increased. The language is: “Notice shall be sent by mail to the person whose assessment is increased by the clerk of the board of supervisors,” making plain that this notice is confined to the action of the board at the August meeting. Appellant’s lumber was increased and appellant was given notice but the only trouble is that the board did not increase lumber in a sufficient amount. The very action of the board in increasing appellant’s lumber is affirmative proof that appellant failed to place a proper valuation upon its lumber. Appellant did not appeal from this increase. It now seems to complain that the action of the attorney-general in performing his official duty, in further raising lumber two thousand dollars. Of course, it is an unpleasant thing to' pay taxes sometimes and naturally human nature rebels and complains when it comes to rendering “unto Caesar the things that are Caesar’s.”</p> <p>Appellant had a summons to oppose and contest this appeal and had its day in court and was accorded not only a full hearing but indeed a special bearing because Judge Fathereb assigned a special day to hear this cause in vacation of the court and thereby gave counsel the fullest opportunity to press upon the court every contention which is here renewed on this appeal.</p> <p>We respectfully leave the question to the court.</p>

Hon. G. E. Williams, Chancellor. Suit by the Buckeye Cotton Oil Company against the Southern Railway Company in Mississippi. From a decree overruling a demurrer to the bill defendant appeals. The first ground of demurrer is: “Because the defendant is a corporation and the bill does not join the secretary or some other officer of the defendant company, as a co-defendant.” Examination of the bill, will reveal that the above ground is true in fact.

Hon. Joe Mays, Chancellor. Suit by W. O. George and others against S. F. Jones and another for an injunction. Decree for complainants, and defendants appeal.

Hon. Jas. G. McGowen, Chancellor. Action by the West. Louisiana Bank against Ashleigh Harleston. Judgment for plaintiff, and defendant appeals. On motion to require appellee to execute a sequestration bond.

W. H. Hughes, Judge. Petition by C. E. Walker and others against the Board of Supervisors of Simpson County for a writ of mandamus to compel the making of a school tax levy. Judgment for petitioners on demurrer to petition, and respondents appeal. The only assignment of error is that the court erred in overruling the demurrer and granting judgment for appellee wherein the board of supervisors were required to make the levy as sought by the minority petition.

Hon. T. P. Guyton, Chancellor. Proceedings by Florence Sanders and others to probate the will of James T. Sanders, deceased, opposed by George T. Sanders and others.. From a judgment against proponents, they appeal. The first six grounds of the assignment of error, being-similar, may all be discussed together. We know that the rules of evidence permit - a wide range when the issue is fraud, duress, or undue influence. 40 Cyc. 1155.

Hon. D. M. Miller, Judge. March Autman was convicted of receiving stolen goods, and appeals.

Hon. G. E. Williams, Chancellor. Petition by the Ellsberry Drainage District to ratify a reapportionment of benefits. Decree of ratification and F.. M. Witty appeals. Held: or sought to be held, and for that reason, I respectfully submit that the action of the drainage commissioners is unlawful, pose.

Hon. W. H. Hughes, Judge. Action by Earl Ellis against the Gulf & Ship Island Railroad Company. Judgment for plaintiff, and defendant appeals.

Hon. C. P. Long, Judge. Action by O. J. Pounds and others against H. M. Stone. Judgment for plaintiffs, and defendant appeals. On Suggestion op Error. Stone v. Pounds et al. Fraud. Measure of damages for false representations as to terms of lease.

Hon. F. E. Williams, Chancellor. Bill by F. H. Fitzgerald and others against Henry Thomas Allen and others. From a decree of dismissal, complainants appeal. Held: that where a covenanter has neither title nor possession, the covenants do not run with the land, so as to transfer the cause of action for the breach thereof, to remote grantees by operation of assumed conveyances of the property by the execution and delivery of deeds purporting to convey the same.

Hon. J. D. Fatheeee, Judge. Action by Martha Moore and others against John Barton Payne, Agent. Judgment for plaintiffs, and defendant appeals. This is a suit by Martha Moore and her two minor children for the wrongful death of Judge Moore, husband and father.

Hon. J. G. McGowen, Chancellor. Suit by W. S. Evans and another against J. W. Wright, Sheriff and Tax Collector, for an injunction. From a decree dissolving the injunction and dismissing the bill, complainants appeal. In our view of this case, if we should admit everything counsel says in his brief, it would not save his case.

Hon. E. L. Brien, Judge. Action by Rosario Coccora against the Vicksburg Light & Traction Company. Prom a judgment in his favor for less than amount demanded, plaintiff appeals. There is a splendid exposition of the doctrine of identification or imputed negligence in Blakemore’s Babbitt on Motor Vehicles, and we shall quote liberally therefrom.

Hon. D. M. Graham, Judge. Tax proceeding in which the Board of Supervisors of Harrison County appeals from a judgment exempting from taxation property owned by the Gulf Coast Military Academy. Held: however, that a constitutional provision that certain property may be exempted from taxation by the general assembly impliedly forbids any exemption from special assessments. 12 A. & E. Ency. of Law, page’316.

Hon. Y. J. Stricter, Chancellor. Petition by the Atchafalaya Levee & Drainage District in the chancery court to have assessments on lands claimed to have been benefited by drainage district approved… Held: that the formation of the Straight Bayou Drainage District being incomplete, a suit was pending, and hence came under the provision providing for jurisdiction of the chancery court.

Hon. W. H. Potter, Judge. . Action by Mannie Hamblin against John Barton Payne, Director General, Agent of the United States, and the Illinois Central Railroad Company. Judgment for plaintiff, and the defendant appeals. The brief for the appellee attempts to demonstrate that the declarations of this court in the Frazier case do not speak the law on the subject, and cites, in support of his contention, numerous Alabama cases.

Hon. J. D. Fatheree, Judge. Action by L. E. Martin against the New Orleans & Northeastern Bailroad Company. Judgment for plaintiff, and the defendant appeals. This is a case without liability. The engineer did everything within his power to prevent killing the cow, after she was discovered in a position of peril. Having done this, he fulfilled the full duty owed by the railroad company, and the peremptory instruction should have been granted.

Hon. D. M. Graham, Judge. Action by J. B. Oamors & Co. against H. O. & C. A. Thompson, and from default judgments, the defendants appeal. Counsel for appellee, contends that the process in this case was proper and according to the requirements of the law governing, that this was an attachment against an absent resident defendant, and that under section 117 of the Code of 1906, the only requirement is the publication in the newspaper as was done in this case.

■ Appeal from chancery court of Lauderdae county. Hon. G-. C. Tann, Chancellor. Bill in chancery by the trustees of the Central Methodist Church to enjoin the City of Meridian and the Tax Collector thereof from collecting taxes on property alleged exempt. Judgment for defendants, and the plaintiff appeals. We submit to the court that appellee even granting (and we do not) that apepllant is holding property in violation of the law, is pursuing the wrong course.

Hon. C. P. Long, Judge. Action by Alex Elzey against James C. Davis, Director General of Railroads. Judgment for plaintiff, and defendant appeals. On Suggestion of Error. On suggestion of error. Suggestion sustained, and case remanded for new trial as to damages alone; judgment being affirmed as to liability.

Hon. D. M. Watkins, Chancellor. Suit by the L. N. Dantzler Lumber Company against James C. Davis, Director General and Agent, with the Mobile & Ohio Railroad Company and others as garnishees. Judgment for plaintiff, and the Director General appeals.

Hon. Y. A. Griffith, Chancellor. Suit by Emma A. Clay against Adrian Hava and another. Prom a decree therein, plaintiff appeals. The court below was right, because under the facts in this case, even though the road had not been conveyed to Miss Clay, yet she purchased according to the plat and according to deeds which had reserved this road for the use of her lot, and not for the use of other lots.

Hon. W. A. Alcoen, Judge. Joe Gillie was convicted in a justice court of disturbing the peace, and appealed to the circuit, court, where his appeal was dismissed with writ of procedendo to the justice of the peace, and he appeals.

Hon. D. E. Beams, Judge. Catherine Dotch was indicted for forgery, and a de- , murrer to the indictment was sustained, and the state appeals. It is complained that the indictment is vague, indefinite and uncertain. In answer to this objection it is urged that it is only necessary to charge a crime in concise and positive terms.

Appeal’from chancery court of Tishomingo county. Hon. A. J. McIntyre, Chancellor.. Suit by Oscar Marlar against George W. Smith, and others. Decree for defendants, and plaintiff appeals.

Hon. G. O. Tann, Chancellor. Bill by T. E. Johnson and others against Beulah-Witts Consolidated School District and others. Held: and it is not for us to inquire into the wisdom 'of the legislative action. But it- is pur duty to give effect to its enactment. The general rule is that time and place are two essentials to be regarded in holding elections.

Hon. D. M. Graham, Judge. Suit by L. Y. Neely against John Barton Payne, Director General of Railroads, and others. Yerdict for the defendants, and the plaintiff appeals. All that our friends say on the facts, certainly would not be justification for the court in refusing the appellant, the right to proceed against the Louisville & Nashville R. R. Company guilty or not guilty.

Hon. D. M. Graham, Judge. Paul Bradford was acquitted of statutory rape, and the state appeals. The appellant was indicted at the May, 1921, term of the circuit court of Harrison county. He was charged with the violation of the age of consent law. (sections, 10,93, 1094 and 1095, Hemingway’s Code). To sustain the charge, the state had only one witness, the prosecutrix.

Hon. G. C. Tann, Chancellor. Proceedings by the state, on the relation of Prank Roberson, attorney-general against the Southern Railway Company and others. Bill dismissed, and plaintiff appeals.

<p>Appeal from circuit court of Harrison county.</p> <p>Hon. D. M. Graham, Judge.</p> <p>A. O. Bourdon was acquitted of a charge of statutory, rape, and the state appeals.</p>

Hon. W. A. Alcorn, Jr., Judge. Suit by Mrs. Miriam R. Owen against the New York Life Insurance Company. Held: that where a yearly renewal policy, which required the payment of premiums in advance within a period of thirty days after maturity, provided that, except as hereinafter named, the payment of a premium or installment shall not maintain the policy beyond the date when the next premium is payable, and that dividends would be paid, but…

Hon. E. L. Brien, Judge. Action by A. G. Bussell against Fannie W. Johnson, in which the plaintiff died and Elizabeth N. Bussell was substituted as his administratrix. Judgment for the defendant, and the plaintiff appeals. The first consideration in determining whether a broker is entitled to compensation is the contract of employment. A broker must have been employed to handle the transaction in which he rendered service for which he claims compensation.