Humphreys County v. Yazoo County

HoldeN, J., delivered the opinion of the court. This is a suit in chancery by Humphreys county to ¿collect from Yazoo county certain sixteenth section school funds belonging to those sixteentlFsection portions taken from Yazoo county and included in the formation of Humphreys, county, which county was created by chapter 348, Laws of 1918. From a decree sustaining a demurrer to. the hill, Humphreys county appeals. The case, stated briefly, is that the legislative act creating Humphreys county provided: “That the treasurers of the counties of Washington, Holmes, Yazoo, Sharkey, and Sunflower respectively shall turn over to the treasurer of Humphreys county all sixteenth section school funds, both principal and interest, belonging to- townships in said Humphreys county, and all notes and securities of whatever nature covering loans of said county.” Section 9. [649] Following the creation of Humphreys county, Yazoo county paid over to, Humphreys county that portion of the sixteenth section funds or permanent school funds, belonging to the townships, taken from Yazoo county and placed in Humphreys county, which were on hand at the time Humphreys county was created, hut there were certain permanent school funds which had been, prior to the creation of Humphreys county taken and wrongfully diverted from the permanent school funds, and transferred to the general county funds of Yazoo county, and which were never repaid by the general county fund to the various sixteenth section school funds, and it is claimed that Yazoo county was, at the time Humphreys county was created, indebted to that portion of Yazoo county sixteenth sections cut off and placed in Humphreys county by reason of being transferred from those particular townships’ funds, and never repaid. Now this suit is for an accounting of these different sixteenth section funds belonging to the sixteenth sections now in Humphreys county, and to recover against Yazoo county for the amounts due the sixteenth section fund of the sections now in Humphreys county. The right of action on the part of Humphreys county is based solely on section 9 of chapter 348, Laws of 1918, the act creating Humphreys county, which we have quoted above. The exact question presented for our decision is whether or not the said section 9 of the act authorizes a suit and recovery by Humphreys county against Yazoo county for the proportionate amount of the sixteenth section funds wrongfully diverted by the county of Yazoo, and which belong to those sixteenth sections cut off and now forming a part of Humphreys county. The act ordering the paying over of the sixteenth section school funds by Yazoo county to Humphreys county must be looked to solely in determining whether the right to sue and recover for the unpaid diverted funds is authorized. It will be observed the language of the act pro [650] vides, in substance, that the treasurer of Yazoo county “shall turn over to the treasurer of Humphreys county all sixteenth section* school funds, . . . belonging to townships in said Humphreys county.” The bill in this case charges that all of the funds on hand, or that could be turned over to Humphreys county, were turned over to that county after its creation in pursuance of this act. But Humphreys county now contends that other sixteenth section funds not on hand, but belonging to Humphreys county, should be recovered in this suit for the' benefit of those sections now in Humphreys county. It is our judgment the act does not authorize this suit to recover against Yazoo county for the diverted funds proportionately due to the sixteenth sections in Hum-phreys county. We think the language of the act must be interpreted in the light of the situation appearing to the legislature when it passed the creating law. The act intended only to require the treasurer of Yazoo county to “turn over” to the treasurer of Humphreys county the designated funds then on hand. This was done. The words used, “shall turn over to” the new county, certainly contemplated only those funds which were then on hand; funds not on hand, of course, could not be turned over to Humphreys county. If it had been the intent of the legislature to require the treasurer to pay to Hum-phreys county all sixteenth section funds which properly belonged to it, different language would have been employed. If such had been the intent, then possibly mandamus against the treasurer of Yazoo county could have been resorted to. The act does not create a debt or an obligation on the part of Yazoo county to pay to Hum-phreys' county such amount of the sixteenth section funds as Humphreys county would be proportionately entitled to. Therefore this suit is not maintainable. In the creation of new counties by the legislature the act of creation, among other things, undertakes to prescribe the rights and liabilities, powers, and duties of the [651] new county, and to settle and fix the respective rights of the offspring and the parent as against each other, and these provisions of adjustment are vital and exclusively controlling as part of the act creating the new rights between the counties. It may have been in the minds of the legislature, though it is not incumbent upon ns to venture legislative reasons, that, since all of the sixteenth section interests had shared in the benefit of the .diverted funds while all of the sections were yet in Yazoo county, it was a fair adjustment of the matter to provide that, as the sections taken by Humphreys county had received their benefit from these diverted funds, they should receive only their proportion of the funds from Yazoo county that were actually on hand and could he “turned over to Humphreys county” by the treasurer of Yazoo county. It is more than likely the legislature took the view that a fair division between the offspring and the parent would he only the apportionment of those funds actually on hand at the time of the separation — the then deliverable, “portion.” In other words, it could he reasonably assumed the legislators knew while passing this act creating Humphreys county that some of the sixteenth section funds had been diverted, and probably spent for the common good, and that only a certain amount remained in the hands of the treasurer of Yazoo county; and it was their purpose that Humphreys county receive only its proportional part of the funds which the treasurer of Yazoo county could then actually turn over to Humphreys county. The legislature did not intend, as we see it, that Yazoo county was to be held for any further amount than the proportion which could be then and there turned over by its treasurer to Humphreys county. A careful reading of sections 7, 8, and 10' of the creating act discloses the legislative purpose, and supports the interpretation we have given of section 9. The case of Robertson v. Monroe County, 118 Miss. 520, 79 So. 184, cited and relied upon by the appellant, is not [652] in point, for the reason that in the case before ns the act giving the right to a division of the funds must be solely relied upon, and, since it intended to cover only the funds that the treasurer was then capable of turning over, it gives no right of recovery for any other funds not on hand which might otherwise have belonged to Humphreys county. The limitation of the act makes the difference. The judgment of the lower court is affirmed. Affirmed.