Volume 135 — Mississippi Reports

Hon. G-. C. Tann, Chancellor. Suit by H. J. Scott against the Mississippi Eastern Railway Company and another. From a decree'dismissing the bill, plaintiff appeals. At the outset we wish to say that we do not think that the record makes out any case against the Long-Bell Company, and we believe that the case should be affirmed as to the Long-Bell Company.

Hon. J. Q. Langston, Judge. Action by J. J. Scarborough, against Graham McNeil Company. Prom a judgment for plaintiff, defendant appeals. Judgment should have been rendered in the court below in favor of the appellant.

Hon. T. P. G-uyton, Chancellor. CaveM by the Holmes County Community Hospital and others against Mollie W. Hoskins, opposing probate of will of Signora Allen, deceased. Prom the judgment rendered, said Mollie W. Hoskins appeals.

<p>Appeal from circuit court of Hinds county.</p> <p>Hon. W. H. Potter, Judge.</p> <p>John Howard was convicted of the unlawful possession of intoxicating liquor, in the police court of the city of Jackson. He appealed to the circuit court, where he was acquitted under a directed verdict. The city now appeals.</p> <p>Under the law, there is no property in intoxicating liquors, and its possession constitutes an offense, this being expressly provided by section 1748, Code of 1906, section 2087, Hemingway’s Code. Now, the procedure provided for under sections 1748, 1749, and 1751, Code of 1.906, is civil as conUa-distinguished from criminal, and therein is developed a proeeedng in rem, and provides for the forfeiture of the liquor itself as having constituted both a nuisance and a crime. This statute is, in large measure, similar to one in Arkansas construed in KirTdand v. State, 65 L. E. A. 79.</p> <p>The reasoning of this case has been the subject of review in divers other decisions, wherever the law finds a defiance of its mandate by the maintenance of a public nuisance — the existence of that which is detrimental to the world’s health, and the general welfare of its citizens, it forthwith abates same in virtue of its inherent sovereignty.</p> <p>Therefore, this liquor, located upon the premises of John Howard, was a stench in the nostrils of the law, a nuisance of the gravest and most serious character. Wherefore, the law clamored that it be forthwith and immediately abated.</p> <p>Our court has touched the same principle in State v. Marshall, 100 Miss. 626, wherein it was held constitutional to authorize the abatement of such a nuisance through the equity court, namely;- a civil proceeding.</p> <p>Again, even proceeding under the anti-trust acts, it was held to be civil in Grenada Lumber Go. v: State, 54 So. 8, since reaffirmed in the Insurance cases, and, with reference to section 23, it was expressly declared: “No question in this case involved section 23 of the Constitution. There is no search or seizure within the meaning of the above section.” See, also, Gollotta v. State, 70 So. 461, and Moss v. Summit Company, 208 Pac. 510, which says: “Then, again, all the courts hold that the proceedings to forfeit automobiles which are used in violation of the provisions of the prohibition law, whether state or federal, are civil in their nature, and are proceedings in rem, since the automobile to be forfeited, is treated as the offending thing. Hoskins v. State, 82 OMa. 200, 200 Pac. 168; Kirkland v. State, 72 Ark. 171, 78 S. W. 770, 65 L. R. A. 76, 105 Am. St. Rep. 25; 2 Ann. Cas. 242; Z7. S. v. One Stephens Automobile (D. C.), 272 Fed. 188. To the same effect is State v. Davis, '55 Utah 54, 184 Pac. 161.</p> <p>In Stewart v. State, 103 N. E. (Ind.) 318, the court said: “It is the contention of appellant that the affidavit and search warrant were fatally defective and conferred no jurisdiction on the court because the affidavit was sworn to before the prosecuting .attorney; that this character of proceeding is a civil proceeding; and that a prosecuting attorney cannot administer an oath except ‘when convenient and necessary to be administered in the discharge of their official duties.’ Burns 1908, sec. 9408.</p> <p>‘ ‘ That this character of proceedings is governed by the procedure and rules in civil procedure is held in the following cases: Regadoue v. State, 171 Ind. 393, 86 N. E. 449; Rose v. State, 171 Ind. 662, 670, 87 N. E. 103; 17 Ann. Cas. 228; Campbell v. State, 171 Ind. 702, 87 N. E. 212; Kirkland v. State, 72 Ark. 171, 78 S. W. 770, 65 L. R. A. 76,105 Am. St. Rep. 25; 2 Ann. Cas. 242, and cases cited.</p> <p>“The possession of intoxicating liquors for an unlawful purpose is a public offense and it is the -ancient prerogative and duty of prosecuting attorneys to proceed not only against the individually responsible agent or actor, but against the thing itself, as the officer of the state where the public is interested.</p> <p>“It is the contention of appellant that the filing of proper affidavit, the issuing of a proper warrant, the seizure of the property and the posting of the warrants and notice of hearing on the premises, in case no one is in possession claiming it, and the return of the sheriff, are all necessary to confer jurisdiction on the court.</p> <p>“The contention is too broad as to the posting of the warrant and notice, the purpose of -which is to give notice of the seizure; but, when the proper affidavit is filed and proper warrant issued, and seizure and return is made, the property is .in custody of the law, and when the statutory notice is given, jurisdiction is in the court to determine as to its statutes. Burns 1908, sec. 8344; .Greentree v. Wallace, 77 Kan. 149, 93 Pac. 598.</p> <p>“When jurisdiction of the subject-matter is thus obtained, it is not lost by reason of the warrants not having been posted on the premises, and notice of the hearing given as provided by the act, at the immediate time of the seizure. Commonwealth v. Intoxicating Liquors, 203 Mass. 585, 89 N. E. 918; Commonwealth v. Certain Intoxicating Liqu-ors, 143 Mass. 470, 8 N. E. 421.”</p> <p>Therefore, this proceeding, in the case at bar, was civil, in rem, and therefore the clerk had power to issue the process because the statute expressly said, who shall issue “all process” from the court. In defining “Process,” see: 3 Words and Phrases, 2d Series, 1243; 3 Bouvier’s Law Diet. 2731; 21 R. C. L. 1261; 24 R. C. L. 702. Therefore, that which deputy city clerk Suggs did was, unquestionably, the valid issuance of a process whereunder officer Ross was lawfully authorized to act.</p> <p>It is our contention that where a writ issues and can be amended, and the defendant on trial before the justice does not question the validity of the writ as the writ of the police court, that he thereby, on appeal in another court becomes estopped from questioning the validity of that which he confessed in the police court.</p> <p>In short, the power to amend appertains to the court wherein the writ was issued. The.circuit court has no authority to amend a writ issued by the police court because it did not issue the writ. The amendment must be where the writ was issued and when, as here, nolo contendere was the plea, thereby an estoppel arose when the circuit court was reached upon this aspect.</p> <p>• Now, there can be no dispute that Suggs was deputy clerk, vested with power as such; and, furthermore, it does not affirmatively appear that Penix did not give to Suggs just as full authority as was granted to Hiram Creekmore, deputy clerk in Wymberly v. Boland, 72 Miss. 243, and yet, it is sought, in this case, to quash where the writ has proven that it was properly issued by bringing home the liquor, and abating the nuisance.</p> <p>This liquor was brought before the court in virtue of this writ, and it having been a nuisance that the law required should be abated, was abated, and there was no necessity to amend because the writ had served its purpose, and had brought the nuisance to an end by bringing it judicially before the court. Now, under section 1949, there is no pretense that there was not a proper occasion for the issuance of this warrant.</p> <p>Furthermore, under section 3400 of the Code, as amended by the Laws of 1910, section 205, it is expressly held: “The clerk of the municipality shall be clerk of the police court unless the mayor and board of aldermen shall otherwise elect, etc. This section expressly provides the police judge with a clerk, and it would be a meaningless ceremony to have a clerk who did not possess those powers that are requisite in the- premises, and a clerk is authorized to perform official duties imposed on him by law, subject to control of the court. 11 C. J. 884; 32 Cye. 426; 45 So. 47; People v. Bevins, 1 Hill (N. Y.) 154; Oorr v. Port Jervis, 57 N. Y. App. Div. 122; Philadelphia v. Campbell, 11 Pa. 163, 11 C. J. 911.</p> <p>Thus, with the power in the premises prescribed by section 3400, there can be no question but that Suggs was fully authorized to issue this writ, as he did issue it.</p> <p>Section 23 of the constitution has to do with protecting against searches and seizures, but it never was designed as an instrumentality whereby a nuisance could be continued, or, crime encouraged. The fundamental disregard of the circuit court was a failure to differentiate between the right of protection against searches and seizures, and the right to maintain a nuisance in defiance of law upon the premises.</p> <p>The circuit court held that- the search warrant on its face was invalid. If the search warrant was not such a process as the clerk could issue without an order from the police justice, still before it could be declared invalid, the fact that it was issued without an order from the police justice must first be proven, for upon the order of the justice the clerk could have issued the warrant.</p> <p>The question presented to this court for determination is the validity of the search warrant. That search cannot be made lawfully without the valid search warrant is well settled in this state. Miller v. State, 93 So. 2; Butler v. State, 93 So. 3; United States Fidelity & Guaranty Company v. State, 121 Miss. 369, 83 So. 610.</p> <p>“A justice of the peace or magistrate is the proper officer at common law to issue a search warrant.” 35 Cyc. 1266; 24 E. C. L. under Searches and Seizures, sec. 8; secs. 1331, 1332, 623, 1303 and 2088 of Hemingway’s Code. The forms themselves show upon their face that the proceedings contemplated are before a justice of the peace.</p> <p>In this state the procedure to be followed in obtaining a search warrant is prescribed by the statutes, and these statutes must be strictly construed. The recitals contained in the affidavit for the search warrant and in the search warrant itself indicate' that the proceedings were before the police justice, ex-officio justice of the peace, acting by and through the deputy clerk Suggs. But manifestly a police justice or justice of the peace cannot act by and through another any more than any other judge can so act. Such authority or power cannot be delegated.</p> <p>Counsel for appellant argues that under the authority to issue process there is implied the authority to act with reference to search warrants. But the clerks of other courts have no such authority to so act. The authority to issue process relates to ministerial duties and powers. States v. Boasterg (1922), 283 Fed. 305, 27 A. L. B». 710, note.</p> <p>But the one outstanding and controlling reason why the clerk cannot act in the premises is because the determination of “probable cause” is a judicial question which must be acted upon by a judicial officer. Wyoming v. Peterson, 13 A. L. R. 1284.</p> <p>There are some valuable cases collected in the American Law Reports relating to the subject-matter now before this court, and I respectfully refer the court to them, as follows: State of Wyoming v. Peterson, 13 A. L. R. 1284, especially at page 1293 et seq.; Youman v. Commonwealth of Kentucky, 13 A. L. R. 1303, especially at pages 1306, 1307 and 1308; PL oyer v. State of Wisconsin, 27 A. L. R. 673; State of West Virginia v. Kees, 27 A. L. R. 681.</p>

<p>Appeal from chancery court of Lee county.</p> <p>Hon. A. J. McIntyre, Chancellor.</p> <p>Proceedings between E. F. Anderson, State Bank Examiner, and J. A. Yates and another. From the judgment rendered, the former appeals.</p>

<p>Appeal from circuit court of Wayne county.</p> <p>Hon. C. C. Miller, Judge.</p>

Hon. Jas, G. McGowen, Chancellor. Suit by -the board of bank examiners against the Grenada Bank, administrator of the estate of W. H. Miers, deceased. Decree for defendant, and plaintiff appeals. This case presents only one question for decision. It is whether the claim for liability on the stock owned by W. M. Miers, deceased, in the Bank of Commerce, of Grenada, Mississippi, accrued before or after his death.

<p>Appeal from circuit court of Attala county.</p> <p>Hon. T. L. Lamb, Judge.</p> <p>Objections by the Moller-Vandenboom Lumber Company to increase of assessment by the board of supervisors of Attala county. Objections disallowed and appeal to the circuit court was dismissed, and the Lumber Company appeals."</p> <p>The action of the circuit court sustaining the new motion and dismissing the appeal was necessarily a holding that the judgment of the board of supervisors appealed from was not a final judgment, because the State Tax Commission had not acted upon the judgment appealed from, or upon the assessment rolls of the county at the time the appeal was prosecuted. There is then but one question presented to this court and that is whether an appeal can be prosecuted from the judgment of the board of supervisors approving an assessment, under Code 1906, section 81, until the State Tax Commission shall have acted upon the assessment rolls of the county. We -see nothing in the statute creating the State Tax Commission and giving it powers which repeal, either expressly or by implication, the right to appeal within five days after the rendition of the judgment of the board of supervisors or the adjournment of its term at which the judgment was rendered. It is perfectly manifest that it was not in the mind of the legislature to affect the right of appeal granted by section 81 of the Code.</p> <p>It does not at all follow, because the State Tax Commission may make alterations and changes in assessments, that the appeal prosecuted in this case was prematurely prosecuted. The statute authorizes appeals and the right to appeal is not destroyed even if the judgment appealed from be interlocutory. Section 81 of the Code of 1906, grants an appeal as a matter of right to an aggrieved taxpayer whose assessment has been raised by the board of supervisors. True the judgment of the board was a final one when section 81 was enacted, but a subsequent statute, even if it made the judgment an interlocutory one cannot and does not destroy the right to appeal from it.</p> <p>.The statute, eh. 323, Laws of Miss. 1920, sec. 10, p. 454, giving taxpayers a right to appeal from a judgment of the board of supervisors raising their assessments in pursuance of general raises made by the State Tax Commission is an appeal from a different judgment from the one appealable under section 81, Code of 1906. The two appeals allowed are from different judgments. ■ The two statutes are not conflicting and the one of 1920 does not repeal Code 1908, section 81.</p> <p>Think of a case wherein the State Tax Commission made no changes or suggestion for changes in the assessment rolls of a county. A taxpayer could not appeal from an assessment in such case under the statute of 1920. An appeal Binder the act of 1920 would bring into review only orders made by the board of supervisors in pursuance of action taken by the State Tax Commission. An appeal under section 81 of the Code would bring into review only orders of the board of supervisors made before action on the assessment rolls taken thereon by the State Tax Commission. Had the Lumber Company, the appellant, failed to appeal under section 81 of the Code and had appealed under section 10 of the act of 19.20, it could not have complained of the raises made in its assessments of which it complains because an appeal under the act of 1920 would not have involved raises made by the board of supervisors before the assessment rolls were acted upon or received by the State Tax Commission.</p> <p>This ease is entirely unlike Madison County v. Frazier, 78 Miss. 880. The material distinction between the Madison county case and the one at bar is that the order made in this case, denying the Lumber Company relief from the raises made by the board of supervisors in its assessments and the order generally approving the rolls, were made at the same term, while in the Madison county case, Frazier undertook to appeal from an informal order made.at the August term which was in fieri and not enforcible until after an order made at the September term. We think that the judgment of the circuit court is erroneous and should be reversed.</p> <p>It is a well-established and well-settled rule that an appeal will not lie from an interlocutory order'unless there is a statute expressly conferring that right and that power. It is my contention that the appeal that was prosecuted by Moller-Vanderboom Lumber Company from an order of the board of supervisors increasing their assessment, was premature. The act that created the State Tax Commission brought into existence a body that now acts as a state equalizer of property in so far as the different classes of property are concerned in different counties, with reference to taxation of that property.</p> <p>That being true, the acts of the board of supervisors of the various counties throughout Mississippi at the August term each year in ordering increases in the various classes of property or increases in each individual assessment are not final-. When the rolls are sent to the State Tax Commission for approval, or for'inspection, and correction ordered, as provided for by section 8 of chapter 323, Laws of 1920, and section 9 thereof, respectively, they are immediately sent back to the board of supervisors of the county, and the board then, pursuant to the order of the State Tax Commission, proceeds to make the change as directed. This is an order that the board of supervisors are compelled to obey without discretion, or without any judicial authority on their part to refuse to make the change so directed. It may therefore be readily seen that the act of the board of supervisors in fixing Moller-Vanderboom Lumber Company’s assessment and raising it at the July meeting, and hearing the complaint at the August meeting, 1923, and ratifying the raise as made by the board is nothing more than a preliminary order, subject to review by the State Tax Commission, The State Tax Commission may change the order of the board of supervisors on such class of property and order the same raised or lowered. In either event, the purpose of the act would be destroyed and killed, were an appeal "allowed before the order of the board of supervisors was approved by the State Tax Commission.</p> <p>Suppose the courts hold that an appeal will lie from the initial order of the board of supervisors. If the appeal will lie to the circuit court, and the case is tried at the following term of court, and the court passes on the evidence offered in the trial and allows it to go to the jury, and the jury returns a verdict fixing the assessment of the firm in question, then there has been a judicial determination of the assessment in question. However, if the appeal is allowed from the initial order of the board of supervisors, this condition presents itself. Either this amount of assessment so determined is final, or it is not final. If it is final then it cannot be reviewed by the State Tax Commission, and the State Tax Commission therefore fails to perform the duties placed upon it by the statute. Now — if the decision is not final, then the decision of a circuit court is subject to review by the State Tax Commission. In other words, although the circuit court has said that this assessment as determined by it is the correct assessment, and that it is final until reversed by the supreme court of Mississippi for a new trial on its merits, or as to the valuation of the property, yet this decision of our courts is to be passed upon by the State Tax Commission, and the State Tax Commission will by an order of its own, change the assessment of the property as fixed by the circuit court, to suit itself. If the contention of the appellant is true, then that brings us face to face with this very question, and we must take one horn or the other of the dilemma that faces us.</p> <p>It is our contention that section 6 of chapter 323, Laws of 1920, provides that the objection must be made at the August meeting, and presented in writing at that time, or no appeal will be permitted. That is to say, unless the objection is made in due form as prescribed by law, then at 'the final approval of the rolls of the county, the taxpayer will be estopped from questioning the correctness of the assessment: In 1920 the supreme court of this state rendered a very exhaustive opinion on the matter of the powers, rights, and limitations of the State Tax Commission in Taylor, et al., County Supervisors v. State ex rel. Collins, Atty.-Gen., 83 So. 810. See, also, Slate v. Wheatley, 74 So. 431. In this decision the court held that£ ‘ as to the class of property upon which the increase is ordered, there is no final adjudication until the local board has complied with the order of the state board. ’ ’ This being true, in my opinion this question has already been decided by our* own supreme court, and there is nothing further to be argued.</p> <p>It was perfectly within the power of the legislature to grant an appeal from an interlocutory judgment' as well as from a final one. It is true that when the Code of 1906 was adopted a judgment of the board of supervisors approving an assessment was a final judgment. If its character has since been changed by statute and such a judgment is now interlocutory, it does not follow that the appeal granted by section 81 of the Code has been taken away. Has the appeal granted by said section 81 been repealed by implication!</p> <p>The rule in regard to repeals by implication is that a general statute without negative- words will not repeal the particular provisions of a former statute unless the two statutes are irreconcilably inconsistent! In the case before us, certainly the later statute, counted upon by counsel for the appellee, can have some meaning, does mean something, -without taking away the appeal granted by section 81 of the Code. The truth is two separate appeals are granted, one by each of the statutes. Both can be given effect; and it does not follow because of imagined variant results that the legislative grant first given shall be destroyed. It is not true in this case that the later statute is clearly repugnant to the earlier one ; nor is it apparent that the feature of the later statute granting an appeal was clearly intended to prescribe the only permissible appeal. If it be possible to reconcile the two statutes it must be done. The question always is whether the old and new statutes can stand together. If they can, there is no repeal by implication. That repeals by implication are not favored is well known.</p> <p>All of the imaginary difficulties and inconsistent re-suits presented by the appellee’s attorneys in their brief cannot have the effect to repeal section 81 of the Code of 1906. The appeal therein granted cannot be denied if the grant remains in force, no matter how vivid the imagination of counsel may be in pointing out conditions which the legislature might have provided against. If the legislature has granted an appeal from such judgments as the one appealed in this ease, the appeal is not to be destroyed because the judgment may have been made interlocutory. The legislature is as much empowered to grant appeals from interlocutory judgments as from final ones.</p>

Hon. R. S. Hall, Judge. Suit by Mayhaw Canning & Preserving Company against I. Cohen. From a judgment sustaining a demurrer to the declaration, plaintiff appeals. The only question involved in this case is the sufficiency of a subscription to capital stock of a Mississippi corporation. The Mayhaw Canning & Preserving Company was duly chartered. After organization for a time it was determined to increase the capital to the maximum provided for in its charter.

Hon. C. L. Lomax, Chancellor. Suit hy Stoner & Co. against the Blocton Export Coal Company. From a decree for defendant, plaintiffs appeal. Held: “If an entire performance of it is unlawful, neither party is prejudiced but the contract is to be considered at an end.” “Performance is excused by a supervening impossibility caused by operation of a change in the law.” 3 Elliott on Contracts, sec. 1901.

Hon. W. H. Potter, Judge. Suit by one Smith and another against J. W. Nabors and others, trustees of the Holly Bluff Consolidated… Held: “The power to lease the sixteenth sections reserved for the use of schools, was granted to the trustees of the several townships by the Act of 1833, and, as an incident to such power, the right of the possession of the same; an action of ejectment may, therefore, be maintained by the board of trustees in the name of the president, to…