State to Use of Rogers v. Newton , 191 Miss. 611 ( 1941 )

DISSENTING OPINION. The rule is established, without dissent, that a penal statute is one which prescribes a punishment, pecuniary or otherwise, for a wrong to the public, while one which provides for the redress of an injury to an individual is remedial. And the same statute may be both penal and remedial, that is to say, it may be penal in one part and remedial in another. And that is the sort of statute which we have here. But a statute which furnishes redress to an individual will nevertheless be penal if it allow recovery by a party not harmed by the unlawful act, or where a fixed sum is permitted without reasonable relation to the actual damage, or where an arbitrary amount is allowed in addition to the damage.

The majority opinion proceeds upon the contention that the issuance of the certificate did no harm to the teacher, wherefore to allow her or her assignee to recover the amount of the certificate would make the statute penal and not remedial. This, it seems to me, is too narrow a construction. By the same reasoning it would follow that, since a person who pays usury is actually harmed only to the extent that he paid more than the legal rate of interest, if allowed to recover all the interest paid, the statute so allowing would be penal and an action barred after one year; but this Court has repeatedly held that the one-year statute does not apply.

The statute in question is one among others which have been enacted in recent years in the endeavor to put counties, municipalities and other subdivisions of the state on a cash rather than a credit basis, in the ordinary administration of their affairs. For instance, under Section 5979, Code 1930, it is provided that "no warrant shall be issued or indebtedness incurred by any county or municipality unless there is sufficient money in the particular fund from which the allowance is or must be made, to pay such warrant or indebtedness." For years before the enactment of those statutes, it was no uncommon thing that the warrants or pay certificates of the various subdivisions of the state would, for want of seasonable payment, be peddled around everywhere seeking speculators in depreciated paper who, not knowing themselves what the paper was worth, would buy at whatever the present necessities of the holders would compel them to take, often as low as fifty cents on the dollar, and the pay certificates and pay warrants of teachers were notoriously, and often pitifully, among those subjected to this evil.

The paramount purpose of the statute in question was to afford protection to teachers, as well as the holders of these pay certificates, and to remedy the condition in which they so often had found themselves. For several reasons it was not so easy, as in other cases of county or municipal obligations, to provide an effective and at the same time practicable plan in respect to contracts with, and the pay of, teachers. By far the most of the teachers, outside municipal districts, are without any reserved capital and must depend for their livelihood upon their monthly salaries, and that this be paid month by month. Their positions, as related the county superintendent of education, are such that they could scarcely be expected to question any statement made to them by him as to those things pertaining to the inside of his office with which, under the law, he is required to be familiar, and with which they had no reasonable means of becoming familiar.

Certainly it is the duty of a county superintendent to know the amount of the funds available for the support and maintenance of the public schools for the current fiscal year, and when the statute made it unlawful for him to incur obligations for the year in excess of such funds, the effect of the statute was that, when the superintendent made a contract with a teacher, such action amounted to a representation on his part to the teacher, and upon which she had the right to rely, that the contract was within the available funds and that the pay certificates issued under the contract would be valid for the full amount thereof. A teacher cannot receive pay without a contract or without a pay certificate issued thereunder. The possession of a contract to teach and the performance of the duties thereunder, entitles the teacher to the pay certificates.

When, therefore, the superintendent made the contract carrying, as a legal result, the aforesaid representations by him and the teacher acted on it, as she had the right to do, it was but declaratory of a principle of the common law itself when the statute made the superintendent liable for the amount of the contract and the pay certificates which were merely evidentiary of the contract plus the performance thereof by the teacher. Had she been informed by the superintendent at the time the contract was made, as it was his duty to inform her, that the funds were insufficient, and that therefore the contract was illegal and that no valid pay certificate could be issued thereunder, the teacher could have declined and sought work where she would be paid, and presumably, when nothing to the contrary appears, at as high a rate as the tendered contract carried. To say, therefore, that the illegal issuance of the pay certificate did no harm, and that making the superintendent liable for the amount thereof is penal, is to look at only a part of the picture, is to adhere to the shadow not the substance, is too narrow a construction, and in my judgment results in a denial of simple justice, as well as an incorrect application of the true principles of the law. A common concomitant of unpaid obligations issued by counties, cities, and other subdivisions, is the repeated promise made to the holders that in a little while longer the obligation will be paid. They are besought to wait patiently, and now the court says if, thus further entrapped, they let the short period of a year get by, they get nothing for their work. Had the statute not permitted the certificates to be assigned whereby those with the means to wait could take them, and thus allow the teacher to receive her pittance as earned, a stronger contention for the penalty idea might perhaps be presented; but such is not the statute.

Roberds, J., joins in the above dissent.