Editor’s Notes —

Former §1-1-1 was entitled: Recodification of state statutes–authority to contract for. For present provisions, see §§1-1-101 et seq.

Former §1-1-3 was entitled: Legislative intent. For present provisions, see §§1-1-101 et seq.

Former §1-1-5 was entitled: Supervision and control–approval of legislature. For present provisions, see §§1-1-101 et seq.

Former §1-1-6 was entitled: Power of attorney general to correct certain errors. For present provisions, see §§1-1-101 et seq.

Editor’s Notes —

By Senate Bill No. 2034, Chapter 394, Laws of 1972, the Legislature adopted the Mississippi Code of 1972 as the legal public statutes of the state.

The 1998 amendment, in the second paragraph, substituted “Joint Committee on Compilation, Revision and Publication of Legislation” for “joint committee”, and made a nonsubstantive change.

Cross References —

For another section derived from same 1942 code section, see Code §1-1-17.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes §§ 270-272.

Cross References —

Revised manuscript for Mississippi Code of 1972 declared to be official code of the State of Mississippi, see §1-1-35.

Approval and acceptance of manuscript, see §1-1-53.

Advance sheets; contract for publication; distribution; provision of information to publisher, see §1-1-58.

General power and duties of Joint Legislative Committee on Compilation, Revision and Publication of Legislation, see §1-1-107.

Authority of Joint Legislative Committee on Compilation, Revision, and Publication of Legislation relating to preparation of legislative acts for publication, see §1-1-109.

Approval by Joint Legislative Committee on Compilation, Revision and Publication of Legislation of manuscripts of supplements and replacement volumes prepared by publishing company, see §1-1-111.

RESEARCH REFERENCES

Law Reviews.

Pre-1900 Mississippi Legal Authority, 73 Miss. L.J. 195, Fall, 2003.

Editor’s Notes —

At its meeting on May 20, 1998, the Joint Legislative Committee on Compilation, Revision and Publication of Legislation adopted the following statement:

“It is not the intent of Section 1-1-9(2) to prohibit any person from citing or referring to Code section numbers, articles, chapters or titles, or to require any person to obtain permission of the joint committee before citing or referring to Code section numbers, articles, chapters or titles. If there is any concern that Section 1-1-9(2) does require such advance permission of the committee, the committee hereby authorizes any person to cite or refer to any Code section number, article, chapter or title at any time after June 30, 1998, without specific permission of the committee being required for such usage.”

RESEARCH REFERENCES

CJS.

C.J.S. Copyrights and Intellectual Property §§ 20, 27, 93.

Editor’s Notes —

Section 7-7-2 provides that the words “State Auditor of Public Accounts,” “State Auditor,” and “Auditor” appearing in the laws of this state in connection with the performance of Auditor’s functions shall mean the State Fiscal Officer.

Section 27-104-6 provides that whenever the term “State Fiscal Officer” appears in any law it shall mean “Executive Director of the Department of Finance and Administration”.

Section 37-43-2 provides that the State Board of Education shall assume all power, authority, duties and functions of the State Textbook Procurement Commission.

Section 37-45-3 provides that the State Educational Finance Commission shall be abolished and functions and duties transferred to the State Board of Education. Section 37-45-3 further provides that all references in laws of the state to “State Educational Finance Commission” or “commission”, when referring to the Educational Finance Commission, shall be construed to mean the State Department of Education.

Laws, 1993, ch. 518, § 45, provides as follows:

“Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

The United States Attorney General, by letter dated July 13, 1993, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1993, ch. 518, § 8.

The United States Attorney General, by letter dated August 17, 1995, interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws, 1995, ch. 486, § 1.

Section 1 of ch. 325 Laws, 1998, effective from and after July 1, 1998 (approved March 12, 1998), amended this section. Section 3 of ch. 546, Laws, 1998, effective July 1, 1998 (approved April 1, 1998), also amended this section. As set out above, this section reflects the language of Section 3 of ch. 546, Laws, 1998, pursuant to Section 1-3-79 which provides that whenever the same section of law is amended by different bills during the same legislative session, and the effective dates of the amendments are the same, the amendment with the latest approval date shall supersede all other amendments to the same section approved on an earlier date.

Laws of 2009, ch. 492, § 144 provides:

“SECTION 144. Nothing in this act shall affect or defeat any assessment, refund claim, request for waiver of a tax penalty, the suspension, revocation, surrender, seizure or denial of permit, tag or title, the suspension, revocation or denial of a permit, approved manager status, qualified resort area or forfeiture under the Local Option Alcoholic Beverage Control Law, Section 67-1-1 et seq., the administrative appeal or judicial appeal of any of the foregoing acts or any other action taken by the Mississippi State Tax Commission or by the Chairman of the Mississippi State Tax Commission prior to the effective date of this act. The provisions of the laws relating to the administrative appeal or judicial review of such actions which were in effect prior to the effective date of this act are expressly continued in full force, effect and operation for the purpose of providing an administrative appeal and/or judicial review, where previously provided, of such actions, except to the extent that any matter is pending on an administrative appeal before the three (3) member Mississippi State Tax Commission on the effective date will after the effective date of this act be heard and decided by the Board of Tax Appeals as the successor of the Mississippi State Tax Commission in regard to administrative appeals.”

Amendment Notes —

The 2003 amendment substituted “three (3) sets” for “two (2) sets” preceding “to the Director of the Legislative Budget Office” in the fourth paragraph of (1).

The 2009 amendment, effective July 1, 2010, in (1), rewrote the first sentence in the fourth paragraph, and inserted “Mississippi Development Authority” following “Adjutant General” in the last sentence of the fifth paragraph.

The 2010 amendment redesignated former (2) as (2)(a); and added (2)(b).

Cross References —

Purchase and distribution of pocket part supplements and replacement bound volumes by Secretary of State, see §1-1-57.

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Statutes §§ 245 et seq.

CJS.

C.J.S. Statutes §§ 388, 390.

JUDICIAL DECISIONS

1. In general.

Former statute making it an offense to keep, have in possession, sell or give away intoxicating liquor, and providing for gradation of punishment for repeating offenders, notwithstanding repeal under this section, must be considered by way of aid to a proper construction or interpretation of the revised abridgment which took its place. Millwood v. State, 190 Miss. 750, 1 So. 2d 582, 1941 Miss. LEXIS 91 (Miss. 1941), aff'd, 6 So. 2d 619 (Miss. 1942).

Words omitted in the publication of the code, and which are contained in the copy on file in the office of the secretary of state, must control in the construction of the statute. Nugent v. Mayor, etc., of Jackson, 72 Miss. 1040, 18 So. 493, 1895 Miss. LEXIS 70 (Miss. 1895).

A purely local act, devised to meet the needs of a single community, was not repealed by a similar provision (Code of 1892). Jones v. Melchoir, 71 Miss. 115, 13 So. 857, 1893 Miss. LEXIS 70 (Miss. 1893); Adams v. Dendy, 82 Miss. 135, 33 So. 843, 1903 Miss. LEXIS 113 (Miss. 1903).

Editor’s Notes —

Former §1-1-15 provided that the Mississippi Code of 1972, when published pursuant to the contract authorized by §1-1-1, was evidence of the statute laws of this State. For present provisions, see §1-1-8.

Editor’s Notes —

Section 1-1-1, 1-1-3 and 1-1-5 referred to in this section was repealed by Laws, 1996, ch. 502, § 21, eff from and after passage (approved April 11, 1996).

Cross References —

For another section derived from same 1942 code section, see §1-1-7.

Editor’s Notes —

The Mississippi Code of 1972 became effective on November 1, 1973.

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Statutes §§ 259 et seq.

CJS.

C.J.S. Statutes §§ 275, 280, 283.

JUDICIAL DECISIONS

1. In general.

Where statute, authorizing circuit judge to determine, in vacation, appeals from county court, was omitted, because considered unconstitutional, from Code taking effect subsequent to statute, though statute and Act adopting Code were approved by Governor on same day, statute held not in force after effective date of Code. Rackley v. State, 166 Miss. 287, 146 So. 459, 1933 Miss. LEXIS 348 (Miss. 1933).

Laws in force at the time of the adoption of the Code of 1892, having been revised, consolidated and re-enacted in that code, are repealed. State v. Jenkins, 73 Miss. 523, 19 So. 206, 1895 Miss. LEXIS 149 (Miss. 1895); Nugent v. Mayor, etc., of Jackson, 72 Miss. 1040, 18 So. 493, 1895 Miss. LEXIS 70 (Miss. 1895).

Under § 3 Code of 1892, which repeals the acts and parts of acts, “subjects” whereof are revised, consolidated and re-enacted in said code, the subject matter is to be determined with reference to the substantive thing done by the act, and not merely the purpose or mode of exercising the power conferred. Mayor, etc., of Vicksburg v. Sun Mut. Ins. Co., 72 Miss. 67, 16 So. 257, 1894 Miss. LEXIS 75 (Miss. 1894).

A purely local act, devised to meet the needs of a single community, was not repealed by a similar provision (Code of 1892). Jones v. Melchoir, 71 Miss. 115, 13 So. 857, 1893 Miss. LEXIS 70 (Miss. 1893); Adams v. Dendy, 82 Miss. 135, 33 So. 843, 1903 Miss. LEXIS 113 (Miss. 1903).

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Statutes §§ 231 et seq.

CJS.

C.J.S. Statutes §§ 275, 413.

JUDICIAL DECISIONS

1. Construction and application.

2. Appeals.

3. Delinquent state revenues, collection of.

4. Futures, purchase or sale of.

5. Gasoline tax funds, payment of.

6. Unlawful detainer, action of.

7. Usury.

1. Construction and application.

This section [Code 1942, § 15] only preserves existing rights, and does not create any. Adams v. Fragiacomo, 71 Miss. 417, 15 So. 798, 1893 Miss. LEXIS 208 (Miss. 1893).

2. Appeals.

Where appeal from reassessment by city’s governing authority to circuit court was in compliance with statutes then in effect, circuit court did not lose jurisdiction to hear appeal because law respecting appeal was changed before appeal was heard. City of Lexington v. Wilson's Estate, 170 Miss. 282, 151 So. 164, 1933 Miss. LEXIS 17 (Miss. 1933).

3. Delinquent state revenues, collection of.

The act of 1890 (Laws p. 25) providing for the collection of delinquent revenue by the state revenue agent, was repealed by the adoption of ch. 126 Code 1892, relating to the same subject. The suit pending was not saved by § 4 Code 1892. State ex rel. Revenue Agent v. Hill, 70 Miss. 106, 11 So. 789, 1892 Miss. LEXIS 75 (Miss. 1892).

4. Futures, purchase or sale of.

Contracts growing out of the purchase or sale of futures while the act of 1892 was in force, cannot be enforced in this state notwithstanding the repeal of said act by the Code of 1892, since § 4 of the code expressly saves existing rights and defenses. Lemonius v. Mayer, 71 Miss. 514, 14 So. 33, 1893 Miss. LEXIS 111 (Miss. 1893).

5. Gasoline tax funds, payment of.

Highway Commission held unauthorized to pay any of gasoline tax funds to State Tax Collector, suing on behalf of counties to obtain counties’ alleged statutory share. State Highway Com. v. Gulley, 167 Miss. 631, 145 So. 351, 1933 Miss. LEXIS 80 (Miss. 1933).

6. Unlawful detainer, action of.

Under this section providing that any right accruing or accrued shall not be affected by the adoption of the code, the right to the action of unlawful detainer for land purchased at tax-sale 1892 is controlled by § 538 Code of 1880, which gives the remedy after one year and within two years from date of sale. Wilkerson v. Hudson, 71 Miss. 130, 13 So. 866, 1893 Miss. LEXIS 137 (Miss. 1893).

7. Usury.

Statute providing for recovery of usurious interest and statute providing that rate of interest should not be construed as increased by stipulation for payment of interest in period less than one year must be construed in pari materia in connection with provision of Code that repeal of statutory provisions thereby should not affect cause of action nor right accruing prior to effective date of repeal. Jefferson Standard Life Ins. Co. v. Dorsey, 178 Miss. 852, 173 So. 669, 1937 Miss. LEXIS 235 (Miss. 1937).

Statute providing that rate of interest specified by contract shall not be construed as increased by stipulation for payment of interest at periods less than one year held prospective in operation and not retroactive, and hence would not affect right to recover interest payments accruing prior to adoption thereof. Jefferson Standard Life Ins. Co. v. Dorsey, 178 Miss. 852, 173 So. 669, 1937 Miss. LEXIS 235 (Miss. 1937).

The change made by § 2348, Code of 1892, exempting building and loan association from the operation of a penalty against usury, did not free prior and illegal contracts from objection, for § 4 of the code preserves, unaffected, any existing cause of action or defense. Goodman v. Durant Bldg. & Loan Ass'n, 71 Miss. 310, 14 So. 146, 1893 Miss. LEXIS 74 (Miss. 1893).

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 413.

Editor’s Notes —

The Mississippi Code of 1972 became effective on November 1, 1973.

Cross References —

Change of law not affecting punishment of crime committed before change made, see §99-19-1.

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Statutes §§ 231 et seq.

CJS.

C.J.S. Statutes § 413.

JUDICIAL DECISIONS

1. In general.

Under a similar section (§ 5, Code 1892), a particular act of conversion, which was not a crime at the time it was completely consummated, and was given the character of a crime for the first time under the Code of 1892, could not be regarded as a crime under the Code, and be punished under the old law. State v. Gillis, 75 Miss. 331, 24 So. 25, 1897 Miss. LEXIS 149 (Miss. 1897).

This section [Code 1942, § 16] has reference only to crimes and forfeitures and penalties connected with them or growing out of some offense. Goodman v. Durant Bldg. & Loan Ass'n, 71 Miss. 310, 14 So. 146, 1893 Miss. LEXIS 74 (Miss. 1893).

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 413.

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Statutes §§ 300 et seq.

CJS.

C.J.S. Statutes § 300.

RESEARCH REFERENCES

CJS.

C.J.S. Officers and Public Employees §§ 62, 100-103, 134.

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Statutes §§ 231 et seq.

CJS.

C.J.S. Statutes §§ 162, 170.

JUDICIAL DECISIONS

1. In general.

Statutory provision as to election of Highway Commissioners, if invalid, is inseparable from other provisions. Trahan v. State Highway Com., 169 Miss. 732, 151 So. 178, 1933 Miss. LEXIS 7 (Miss. 1933).

The charter of a building and loan association, obtained under the general law, is not a local and private law under this section. And the law on usury is not local or private. Mississippi Bldg. & Loan Ass'n v. McElveen, 100 Miss. 16, 56 So. 187, 1911 Miss. LEXIS 9 (Miss. 1911).

A statute for the working of the public roads of a certain county was not repealed by a similar provision (§ 8, Code 1892). Madison County v. Collier, 79 Miss. 220, 87 Miss. 204, 30 So. 610 (Miss. 1905).

The repeal of statutes by implication is not favored, and when the earlier statute is particular, and the later general, and contains no negative words, the prior statute is not repealed, unless the repugnance is so great as to show clearly a legislative purpose to that effect. Madison County v. Stewart, 74 Miss. 160, 20 So. 857, 1896 Miss. LEXIS 114 (Miss. 1896).

In determining whether an act is local or general, within the meaning of a provision of this type, regard should be had to the substance and not the mere form given to the enactment. Mayor, etc., of Vicksburg v. Sun Mut. Ins. Co., 72 Miss. 67, 16 So. 257, 1894 Miss. LEXIS 75 (Miss. 1894).

A purely local act, devised to meet the needs of a single community, was not repealed by a similar provision (§ 8, Code of 1892). Jones v. Melchoir, 71 Miss. 115, 13 So. 857, 1893 Miss. LEXIS 70 (Miss. 1893); Adams v. Dendy, 82 Miss. 135, 33 So. 843, 1903 Miss. LEXIS 113 (Miss. 1903).

RESEARCH REFERENCES

CJS.

C.J.S. Statutes §§ 82-84.

Cross References —

Mississippi Code of 1972 as official code; recognition as evidence of public statute laws, see §1-1-8.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes §§ 268, 269.

Editor’s Notes —

The preamble to Chapter 394, Laws 1972, reads as follows:

“WHEREAS, Senate Bill No. 1964, Chapter 465, Laws of 1970, authorized and empowered the Attorney General and Secretary of State of the State of Mississippi with the written concurrence of the six (6) Chairmen of the Judiciary and Appropriations Committees of the House of Representatives and Senate, to enter into and execute a contract on behalf of the State of Mississippi with a competent company for a modern recodification and indexing of a ”Mississippi Code of 1972“ with the most modern innovations to implement the Legislature’s mandate; and

“WHEREAS, the Attorney General is charged under said Senate Bill No. 1964, with supervision and control of the publishing of said Code once the term of the contract was agreed upon and entered into between the State of Mississippi and the lawbook publishing company selected to do such work; and

“WHEREAS, Senate Bill No. 2144, Laws of 1970, appropriated the sum of Two Hundred and Fifty Thousand ($250,000.00) for the purpose of making progress payments on such Code printing contract for the fiscal year 1971, beginning July 1, 1970 and ending June 30, 1971; Senate Bill No. 1778, Laws of 1971, appropriated the sum of One Hundred and Fifty Thousand Dollars ($150,000.00) for the purpose of making additional progress payments on the Code printing contract for the fiscal year 1972, ending June 30, 1972; and

“WHEREAS, the public officials named in Senate Bill No. 1964 invited several nationally recognized lawbook publishing companies to submit their bids to said officials, and that after the officers painstakingly considered all bidders’ propositions and their background, experience, reputation, financial stability, technical knowhow and related matters to make a factual determination as to which company had submitted the best, lowest and most responsible bid, found that the joint bid of The Lawyers Co-operative Publishing Company of Rochester, New York, and The Harrison Company of Atlanta, Georgia, in the amount of Seven Hundred Forty Six Thousand Seven Hundred and Fifty Dollars ($746,750.00) was the lowest and best responsible bid among those received by the Committee; and

“WHEREAS, the contract terms are exacting and detailed after first being thoroughly studied and amended by the Code Committee before it was executed on behalf of the State in October 1970 when a contract performance bond in the sum of Seven Hundred Forty Six Thousand Seven Hundred and Fifty Dollars ($746,750.00) was delivered to the Attorney General; and

“WHEREAS, the performance of the Code contract requires the skill of experienced and trained lawyer-editors of the publishing company, together with the use of the company’s computerized procedures and a thorough analysis of the companies’ conclusions and recommendations by the Attorney General; and

“WHEREAS, the publishers have assured the Code Committee and the Committee has determined that the progress of the contract is on schedule and its terms being fulfilled, and when completed will consist of a new twenty (20) volume Mississippi Code of 1972 and a two (2) volume new and greatly improved General Index and Statutory Distribution Tables, with volumes in numerical order, and with three (3) volumes to be distributed every two (2) months beginning ninety (90) days from the date this bill is enacted into law and with the General Index and Table Volumes to be distributed one (1) year after completion of the volumes containing the text and annotations to the new Code; and

“WHEREAS, the publishers have completely analyzed, by experienced and trained lawyer-editors and computerization procedures, each of more than sixteen thousand (16,000) sections of the Mississippi Code of 1942 and have now readied the entire manuscript of said sections by an orderly, rearranged, regrouped and logical development of the new Code by subject matter, titles, chapters, divisions and subdivisions into a completely new and flexible numbering system, all of which will provide the Legislature, attorneys, the courts and public officers greater ease and convenience in finding the statutory law; and

“WHEREAS, according to the terms of the contract, it will contain digest paragraphs of all pertinent decisions of the Supreme Court of Mississippi and of the federal courts sitting in Mississippi, construing Mississippi statutes, and of decisions of the United States Supreme Court which may affect the constitutionality or application of the Mississippi Code, Attorney General’s opinions, references to American Law Reports up to the latest issued volume of the third series, and American Law Reports Federal, references to American Jurisprudence, Corpus Juris Secundum and to American Jurisprudence Proof of Facts, Pleading and Practice, Legal Forms and Trials; and

“WHEREAS, the publishers have greatly improved the present 1942 Code in numerous ways by removing redundancies and conflicts and by clarification of the law, but have not altered or changed the substantive Law of Mississippi in so doing; and

“WHEREAS, the Attorney General’s staff and the Code Committee are satisfied that the contract terms and the revised manuscript of more than sixteen thousand (16,000) sections does not constitute ’legislation’, and all of the herein referenced recodification and improvements are well within the purview of the enabling act, Senate Bill No. 1964, Laws of 1970 and, the terms of the publishing contract and said Code Committee has indicated its final acceptance of said recodification by its approval in writing.”

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 56.

Editor’s Notes —

Former §1-1-51 authorized the Attorney General and Secretary of State to jointly contract with a reputable and competent publishing company to annually digest, compile, annotate, index and publish acts of the Mississippi Legislature since adjournment of the 1971 legislative session and was repealed by its own terms on July 1, 1998. For present provisions, see §1-1-107.

Editor’s Notes —

Former §1-1-53 pertained to the requirement that a manuscript of compiled and annotated acts from each regular session of the Legislature be submitted to the Attorney General for approval. For present provisions regarding publication of legislative acts, see §§1-1-101 et seq.

Editor’s Notes —

Former §1-1-55 provided for the printing of the approved manuscript of compiled and annotated acts from each regular Legislative session in insertable pocket supplement form or replacement bound volumes. For present provisions regarding publication of legislative acts, see §§1-1-101 et seq.

Cross References —

Joint legislative committee on compilation, revision and publication of legislation, see §1-1-101 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 137, 138.

Cross References —

Mississippi Code of 1972 as official code; recognition as evidence of public statute laws, see §1-1-8.

RESEARCH REFERENCES

Am. Jur.

41 Am. Jur. Trials 683, Computer Research for the Trial Lawyer.

CJS.

C.J.S. States §§ 152, 153.

Editor’s Notes —

Former §1-1-61 was entitled: Statute retrieval system to be installed and maintained and made available to legislature and public officers, offices and agencies. For present provisions, see §1-1-59.

Editor’s Notes —

Laws of 2011, ch. 506, § 2, provides:

“SECTION 2. On or before July 1 of each fiscal year, or at such other times as necessary, the Clerk of the House of Representatives or the Secretary of the Senate (‘the Legislature’) shall submit a request to the State Fiscal Officer for the funds necessary to pay (a) the expenses of the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, (b) the state’s share of various assessments from legislative-related organizations, and (c) any other legislative-related expenses. The State Fiscal Officer shall transfer to the Legislature the amount or amounts as requested by the Legislature from the Secretary of State’s Fund No. 3111. The State Fiscal Officer shall transfer such obligated funds in a timely manner as determined by the Legislature. The Legislature is authorized to escalate the appropriate budgets during the fiscal year by the respective amounts transferred and to expend those sums for the purposes authorized by law.”

On April 26, 2011, the Governor vetoed Section 2 of Chapter 506, Laws of 2011.

On June 1, 2011, the Mississippi Attorney General issued the following opinion regarding the constitutionality of the Governor’s partial veto of Chapter 506, Laws of 2011:

“Honorable Johnny W. Stringer

“Chairman, House Appropriations Committee

“P. O. Box 1018

“Jackson, MS 39215-1018

“Re: Partial veto under Section 73 of the Mississippi Constitution

“Dear Chairman Stringer:

“Attorney General Jim Hood received your request and assigned it to me for research and response.

“ Issue Presented

“Does the Governor under his partial veto authority of Section 73 of the Mississippi Constitution of 1890 have authority to veto a section of a general bill that he asserts is an appropriation within the general bill, when that section does not meet the criteria for an appropriation bill under the Mississippi Constitution?

“ Response

“No. House Bill No.1054 of the 2011 Regular Session, which is the subject of your request, is not an appropriation bill and is not subject to partial veto under Section 73 of the Mississippi Constitution of 1890.

“ Background

“On April 26, 2011, the Governor returned House Bill No. 1054 to the House of Representatives with a partial veto message for Section 2 of the bill. House Bill No. 1054, which is generally known as the ‘transfer bill,’ is a bill that, among other things, provides for the transfer of state funds into certain accounts for use in the general fund appropriations process. The Governor said in his message that he was not concerned with the transfer components of the bill, but had concerns specifically with Section 2 of the bill.

“ Applicable Law and Discussion

“Under the Mississippi Constitution of 1890 (hereinafter ‘Mississippi Constitution’), the powers of government are divided between and among three separate and distinct departments, to wit, the legislative department, the executive department and the judicial department. Miss. Const. Art. 1, Sec. 1 (1890). No person belonging to one department is authorized to exercise core powers belonging to another department. Miss. Const. Art. 1, Sec. 2 (1890); Dye v. State ex rel. Hale, 507 So. 2d 332 at 343 (Miss. 1987); and Alexander v. State ex rel. Alain, 441 So. 2d 1329 (Miss. 1983).

“The enactment of laws is an exercise of legislative power, which is subject to the executive power of veto. The Mississippi Constitution authorizes two types of vetoes, one which is applicable to all bills and is total in nature and another which is applicable only to appropriation bills and is partial in nature.

“Section 72authorizes the Governor to approve or disapprove, by way of veto, every bill that passes both houses of the Legislature: 1 Unless otherwise indicated all section numbers refer to sections of the Mississippi Constitution of 1890. “Every Bill which shall pass both Houses shall be presented to the Governor of the state. If he approve, he shall sign it; but if he does not approve, he shall return it, with his objections, to the House in which it originated, which shall enter the objections at large upon its Journal, and proceed to reconsider it. If after such reconsideration two-thirds (2/3) of that House shall agree to pass the Bill, it shall be sent, with the objections, to the other House, by which, likewise, it shall be reconsidered; and if approved by two-thirds (2/3) of that House, it shall become a law; but in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the Governor within five (5) days (Sundays excepted) after it has been presented to him, it shall become a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevented its return, in which case such Bill shall be a law unless the Governor shall veto it within fifteen (15) days (Sundays excepted) after it is presented to him, and such Bill shall be returned to the Legislature, with his objections, within three (3) days after the beginning of the next session of the Legislature. “In exercising the gubernatorial veto under Section 72, the Governor must veto the entire bill. There is no power to approve parts of a bill, while disapproving other parts. “In contrast, Section 73 authorizes the Governor to veto parts and approve parts of any ‘appropriation bill’: “The governor may veto parts of any appropriation bill, and approve parts of the same, and the portions approved shall be law. “The power to approve parts of a bill, while vetoing or disapproving other parts of the same bill, is expressly limited to appropriation bills and may not be exercised with regard to other legislation. An attempt to partially veto any bill other than an appropriation bill would be outside the authority granted to the Governor under the Mississippi Constitution and would be an impermissible infringement of the powers of the Legislature. “, a case involving the exercise of a partial veto, stated: The Mississippi Supreme Court in 651 So. 2d 998 (Miss. 1995) Fordice v. Bryan, “Article IV, Section 73 of the Mississippi Constitution of 1890 states: ‘The governor may veto of any , and approve parts of the same, and the portions approved shall be law.’ (emphasis added). Therefore, the Governor is entitled to exercise his Section 73 veto power upon ‘parts’ of ‘appropriation’ bills, and only upon ‘parts’ of ‘appropriation’ bills. The Governor may not exercise the Section 73 partial veto power on revenue raising bond bills. parts appropriation bill Miss. Const. art. IV, Section 73 “In order for the bills to be susceptible to the Governor’s Section 73 partial veto power, they must fix a definite maximum amount, Section 63, and not continue to be in force withdrawing money from the state treasury longer than two months after the expiration of the fiscal year ending after the meeting of the legislature at its next regular session, Section. 64. 651 So. 2d 998, 1000 “Although there is no definition of ‘appropriation bill’ in the Mississippi Constitution, there are mandatory requirements for appropriation bills contained therein. Section 63, which requires an appropriation bill to state the maximum sum authorized to be drawn from the State Treasury, states: “No appropriation bill shall be passed by the legislature which does not fix definitely the maximum sum thereby authorized to be drawn from the treasury. “Section 64, which provides that bills making appropriations out of the State Treasury only be in force no more than two months after the expiration of the fiscal year, states: “No bill passed after the adoption of this Constitution to make appropriations of money out of the state treasury shall continue in force more than two months after the expiration of the fiscal year ending after the meeting of the legislature at its next regular session; nor shall such bill be passed except by the votes of a majority of all members elected to each house of the legislature. “Section 69 prescribes the contents of appropriation bills and prohibits the engrafting of other legislation therein and reads as follows: “General appropriation bills shall contain only the appropriations to defray the ordinary expenses of the executive, legislative, and judicial departments of the government; to pay interest on state bonds, and to support the common schools. All other appropriations shall be made by separate bills, each embracing but one subject. Legislation shall not be engrafted on the appropriation bills, but the same may prescribe the conditions on which the money may be drawn, and for what purposes paid. “Section 68 provides that appropriation bills (and revenue bills) have precedence in the Legislature over all other business: “Appropriation and revenue bills shall, at regular sessions of the legislature, have precedence in both houses over all other business, and no such bills shall be passed during the last five days of the session. “Under the Joint Rules of the Senate and the House, appropriation bills and revenue bills are subject to deadlines during the legislative session which are different from other bills. See Joint Rule 40 (2011). “In accordance with , the validity of a partial veto under Section 73 depends on the nature of the bill itself, i.e., is House Bill No.1054 an appropriation bill subject to partial veto under Section 73 or is it a general bill subject only to the general veto provisions of Section 72? If House Bill No. 1054 is not an appropriation bill, then it is not subject to partial veto under Section 73. Fordice v. Bryan, supra “To determine whether House Bill No. 1054 is an appropriation bill, it is necessary (1) to examine and compare its provisions with the constitutional sections which prescribe the mandatory provisions of an appropriations bill and (2) to examine the legislative process in which House Bill No. 1054 came to be enacted, i.e., was House Bill No. 1054 handled procedurally as an appropriation bill? “House Bill No.1054 contains no maximum amount which may be withdrawn from the Treasury as required by Section 63. House Bill No.1054 is not limited in duration to no more than two months after the expiration of the fiscal year as required by Section 64. Its contents are not limited to appropriations defraying the expenses of State government, paying interest on state bonds, and supporting the common schools as required by Section 69. “In addition to not satisfying the constitutional requirements of appropriation bills, House Bill No.1054 contains provisions commonly seen in general bills. For example, House Bill No.1054 authorizes a half dozen transfers of funds making it similar to ‘transfer bills’ in previous legislative sessions, which were also treated procedurally by the Legislature as general bills. House Bill No.1059, 2010 Regular Session and House Bill No. 1505, 2009 Regular Session. In addition, House Bill No. 1054 authorizes the borrowing of special funds to offset any temporary cash flow deficiency in the Health Care Expendable Fund. It provides that certain funds held for veterans by the State Veterans Home shall be considered to be held in a fiduciary capacity for the benefit of the veterans. House Bill No.1054 also revises the time limit in which a resident of the coastal counties, whose residence was destroyed by Hurricane Katrina, must begin construction in order to not be required to meet current lot size requirements. These provisions are all similar in nature to other provisions commonly found in general bills. inter alia “Section 2 of House Bill No. 1054, which was the subject of the Governor’s veto message, reads as follows: “On or before July 1 of each fiscal year, or at such other times as necessary, the Clerk of the House of Representatives or the Secretary of the Senate (‘the Legislature’) shall submit a request to the State Fiscal Officer for the funds necessary to pay (a) the expenses of the Joint Legislative Committee on Compilation, Revision and Publication of Legislation, (b) the state’s share of various assessments from legislative-related organizations, and (c) any other legislative-related expenses. The State Fiscal Officer shall transfer to the Legislature the amount or amounts as requested by the Legislature from the Secretary of State’s Fund No. 3111. The State Fiscal Officer shall transfer such obligated funds in a timely manner as determined by the Legislature. The Legislature is authorized to escalate the appropriate budgets during the fiscal year by the respective amounts transferred and to expend those sums for the purposes authorized by law. “Briefly stated, Section 2 of House Bill No. 1054 authorizes the transfer of funds from the Secretary of State’s Fund No. 3111, the escalation of the Legislature’s budget by amounts transferred from Fund No. 3111, and the payment of legislative expenses specified therein. 2 Fund No. 3111 contains special funds which are generated by fees earned by the Secretary of State and the Legislature appropriates funds therefrom for some of the operations of the Secretary of State’s office. “While Section 2 of House Bill No. 1054 authorizes the expenditure of public funds, it does not do so within the framework of an appropriation bill. Appropriation bills are not the exclusive legislative vehicle for authorizing the expenditure of public funds. As you note in your letter of request, the Department of Finance and Administration is authorized by , a general law provision, to escalate its budget based on application fees it receives. Similarly, the Department of Audit is authorized by , another general law provision, to escalate its budget based on funds deposited in the ‘Auditor’s Enhanced Accountability Fund.’ Upon each agency’s respective budget being escalated, these Code sections authorize the Department of Finance and Administration and the Department of Audit to expend available funds. No further action of the Legislature is necessary. You list thirteen other examples of escalation and expenditure authority by general laws in your letter. Section 7-1-255 of the Mississippi Code Section 7-7-81 (2) of the Mississippi Code 3 See , , , , , 31-913,33- 15-311(2),37-151-25,45-39-5(4), 57-1-303(1)(a), 57-75-15(4)(b)-(m), 57-75-15(18)(b), and 69-46-7(1) and (2) of the Mississippi Code. Sections 17-17-63(3) 21-35-31 (2) 27-19-44.2(2) 27-19-179(2) 27-103-303(4) “In addition, bond bills, specifically found not to be appropriation bills in , and, therefore, not subject to partial veto, typically authorize the expenditure of public funds after bonds are issued without any further act of the Legislature. Similarly, legislation establishing revolving funds, though not appropriation bills, generally authorize the expenditure of public funds without any further act of the Legislature. supra Fordice v. Bryan, “The provisions in Section 2 of House Bill No.1054 are similar to the general law escalation provisions mentioned above and the thirteen other general law examples referenced in your letter. Once the transfer of funds is made from Fund No. 3111 and the Legislature’s budget is escalated, the Legislature is authorized to make expenditures from available funds. “With regard to its procedural treatment by the Legislature, House Bill No.1054 was not afforded the precedence and deadlines applicable to appropriation bills. Instead, House Bill No. 1054 was subject to the deadlines applicable to general bills. The ‘transfer bills’ in previous legislative sessions, referred to above, were also treated procedurally by the Legislature as general bills. “All of the comparisons of the constitutional requirements for appropriation bills with the contents of House Bill No. 1054 and the legislative procedure employed for enactment indicate that House Bill No. 1054 is a general bill, not an appropriation bill. The Governor, in his veto message, acknowledged that House Bill No. 1054 is a general bill. However, he characterizes House Bill No. 1054 as a general bill which contains an appropriation in Section 2 and, therefore, is subject to a partial veto. “We are unable to find any authority for the proposition that any bill which authorizes the expenditure of public funds is an appropriation bill for purposes of Section 73. On the contrary, it is clear under , that a bill must meet the constitutional requirements set forth for appropriation bills in order to be subject to partial veto under Section 73. While the Governor was authorized to exercise his general veto authority under Section 72 with regard to House Bill No.1054, he was not authorized to exercise his partial veto authority under Section 73. An unconstitutional attempt of a partial veto is a nullity. . Fordice v. Bryan, supra See , and Fordice v. Bryan, supra , 76 Miss. 158, 23 So. 643 (1898) State v. Holder “ Conclusion

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“It is the opinion of this office that House Bill No.1054 of the 2011 Regular Session is not an appropriation bill and, therefore, is not subject to partial veto under Section 73.”

Amendment Notes —

The 2009 amendment added “except that members may receive…or in recess during a special session” at the end of (2).

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 51-54.

Editor’s Notes —

For a complete list of statute sections affected by Laws, 1996, ch. 502, and Laws, 1998, ch. 546, see Table B, Allocation of Acts, in the Statutory Tables Volume.

Cross References —

Contents of Mississippi Code of 1972, see §1-1-7.

Mississippi Code of 1972 as official code; recognition as evidence of public statute laws, see §1-1-8.

Contract for compilation, annotation, etc., of legislation enacted subsequent to 1971 session, see §1-1-51.

Approval and acceptance of manuscript, see §1-1-53.

Preparation of pocket part supplements and replacement bound volumes, see §1-1-55.

Purchase and distribution of pocket part supplements and replacement bound volumes, see §1-1-57.

Provision of Code and updates in electronic form, see §1-1-59.

Powers of committee relating to preparation of legislative acts for publication, see §1-1-109.

Approval by committee of manuscript of supplements and replacement volumes prepared by publishing company, see §1-1-111.

Cross References —

Mississippi Code of 1972 as official code; recognition as evidence of public statute laws, see §1-1-8.

General powers and duties of committee, see §1-1-107.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes §§ 59, 266.

Cross References —

Mississippi Code of 1972 as official code; recognition as evidence of public statute laws, see §1-1-8.

Approval and acceptance of manuscript, see §1-1-53.

Preparation of pocket part supplements and replacement bound volumes, see §1-1-55.

Purchase and distribution of pocket part supplements and replacement bound volumes, see §1-1-57.

Contract for compilation, annotation, etc., of legislation enacted subsequent to 1971 session, see §1-1-107.

General powers and duties of committee, see §1-1-107.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 266.

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Statutes §§ 231 et seq.

CJS.

C.J.S. Statutes § 308.

Cross References —

Surety bonds by state officials, see §25-1-13 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. Bonds §§ 2 to 4, 7.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

Code 1880 § 19 (identical with this section), does not define the word “bond,” but declares that where used in the Code it shall embrace such instruments as are therein mentioned. Other instruments may be bonds by virtue of the general laws of other statutes. McLeod v. State, 69 Miss. 221, 13 So. 268, 1891 Miss. LEXIS 130 (Miss. 1891).

Cross References —

Capital murder, defined, see §97-3-19.

Punishment for murder or capital murder, see §97-3-21.

Offense of aircraft piracy as punishable by death, see §97-25-55.

Requirement that an indictment for capital murder state specifically the section of the code defining the offense alleged to have been committed, see §99-17-20.

Separate sentencing proceeding to determine punishment in capital cases, see §99-19-101 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. Bail. Release and Detention Pending Proceedings §§ 18 to 23.

C.J.S. Criminal Law §§ 9 to 12.

C.J.S. Homicide §§ 29 to 31, 42 to 44.

C.J.S. Statutes § 335.

Law Reviews.

Clark, Juveniles and the death penalty–a square peg in a round hole. 10 Miss. C. L. Rev. 169, Spring, 1990.

JUDICIAL DECISIONS

1. In general.

2. Jury sequestration.

3. Noncapital crimes.

4. Sufficiency of indictment.

5. Capital offense.

1. In general.

Trial judge’s two comments that defendant’s case was a “capital case” did not taint the jury because “capital case” included crimes punishable by life imprisonment, Miss Code Ann. §1-3-4, and defendant was indicted on two counts of statutory rape, a crime for which life imprisonment was possible, Miss. Code Ann. §97-3-65(2)(c); the trial judge never said defendant’s case was a capital-murder case or a death-penalty case. Harrison v. State, 49 So.3d 80, 2010 Miss. LEXIS 635 (Miss. 2010).

Pursuant to Miss. Code Ann. §13-5-73, jurors in a capital case should be sworn to well and truly try the issue between the state and the prisoner, and a true verdict should be given according to the evidence and law, and because the crime of forcible rape was a capital crime under Miss. Code Ann. §97-3-65(4)(a), defendant was entitled to have the capital oath administered to the jurors, but the trial judge failed to administer that oath; however, the capital oath given in the middle of the trial, together with the petit oath given at the beginning of defendant’s trial, which were substantially the same, were sufficient to instruct the jury of their duty. Golden v. State, 968 So. 2d 378, 2007 Miss. LEXIS 530 (Miss. 2007), cert. dismissed, 977 So. 2d 343, 2008 Miss. LEXIS 111 (Miss. 2008).

Defendant contended that the indictment failed to charge all of the elements necessary to impose the death penalty under Mississippi law, but his argument failed because (1) pursuant to Miss. Code Ann. §99-19-101(7), a jury only needed to find that defendant killed, and did not need a true mens rea; (2) under Miss. Code Ann. §99-19-101(5), aggravating circumstances existed; and (3) there was no increase in the maximum penalty because the maximum penalty for killing while engaged in the commission of sexual battery was death as the crime was defined as capital murder under Miss. Code Ann. §97-3-19(2)(e), and, pursuant to Miss. Code Ann. §1-3-4, a capital murder was a crime punishable by death. Havard v. State, 928 So. 2d 771, 2006 Miss. LEXIS 90 (Miss. 2006), cert. denied, 549 U.S. 1119, 127 S. Ct. 931, 166 L. Ed. 2d 716, 2007 U.S. LEXIS 153 (U.S. 2007).

While the Parole Board was required to give public notice of an inmate’s parole hearing under Miss. Code Ann. §47-7-17 as the inmate’s life sentence for armed robbery meant that he had been convicted of a capital offense, the inmate was not deprived of his due process rights because of the lack of hearing as the argument had not been raised in the lower court, and the inmate was not prejudiced by the lack of publication. Way v. Miller, 919 So. 2d 1036, 2005 Miss. App. LEXIS 471 (Miss. Ct. App. 2005).

Trial court did not err in refusing to allow defendant twelve peremptory challenges because robbery was a noncapital offense as provided in Miss. Code Ann. §1-3-4 and Miss. Code Ann. §97-3-73, therefore, Miss. Code Ann. §99-17-3 and Miss. Unif. Cir. & County Ct. Prac. R. 10.01, the statutory and rules provisions which provide extra peremptory challenges to the venire in capital cases, were inapplicable. The jury was required to determine defendant’s guilt on the principal offense and not to consider the prior convictions which brought into consideration his life sentence under the habitual offender statute, Miss. Code Ann. §99-19-83(3). Jones v. State, 902 So. 2d 593, 2004 Miss. App. LEXIS 1011 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 336 (Miss. 2005).

Fact that 3 defendants were jointly tried did not operate to increase number of peremptory challenges; defendants charged with murder were entitled to 12 peremptory challenges because this was capital case, and received more than statutorily mandated number when trial court increased number of challenges for each side to 15, upon denying defendants’ motion for 36 challenges. Johnson v. State, 512 So. 2d 1246, 1987 Miss. LEXIS 2703 (Miss.), cert. denied, 484 U.S. 968, 108 S. Ct. 462, 98 L. Ed. 2d 402, 1987 U.S. LEXIS 4990 (U.S. 1987), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

All existing statutory procedural safeguards involving so-called “capital” crimes or offenses or “crimes of a serious nature” would still be in full force and effect, even though the death penalty had been removed from some of those offenses; in enacting this section, the legislature intended to retain these safeguards in all cases where the maximum sentence is life imprisonment. Wilburn v. State, 356 So. 2d 1173, 1978 Miss. LEXIS 2476 (Miss. 1978).

This section does not amend the constitutional definition of “capital offenses” (Article III § 29 Miss Const. of 1890) which includes only offenses for which the death penalty is permitted. Ex parte Dennis, 334 So. 2d 369, 1976 Miss. LEXIS 1924 (Miss. 1976).

2. Jury sequestration.

The mere fact that a charge against a defendant is one denominated as “capital” under Mississippi law does not confer upon the defendant an unwaivable right of sequestration of the jury, since Mississippi Uniform Circuit Court Criminal Rule 5.07 limits automatic sequestration to those cases in which the state actually seeks the death penalty. Griffin v. State, 492 So. 2d 587, 1986 Miss. LEXIS 2551 (Miss. 1986).

3. Noncapital crimes.

Appellant could not rely on Miss. Code Ann. §99-19-101(6) to support her claim that her counsel had inadequately represented her in failing to investigate and present mitigating evidence during her sentencing hearing on her conviction for arson because §99-19-101(6) concerned mitigating evidence presented to a jury in capital cases. Arson was not a “capital crime” as defined by Miss. Code Ann. §1-3-4 because §1-3-4 limited capital crimes to crimes punishable by death or imprisonment for life in the state penitentiary, and the maximum punishment for arson was 20 years in the penitentiary under Miss. Code Ann. §97-17-1. Smith v. State, 880 So. 2d 1094, 2004 Miss. App. LEXIS 865 (Miss. Ct. App. 2004).

4. Sufficiency of indictment.

Defendant’s conviction for capital rape in violation of Miss. Code Ann. §97-3-65(1)(b) was proper because his indictment was not deficient since, although capital rape was not an element of the crime of which he was charged, that fact was of no consequence since the labeling of each count as “capital rape” was mere surplusage. Additionally, it could hardly have been stated that capital rape was a false statement since defendant’s maximum possible punishment for a violation of Miss. Code Ann. §97-3-65(1)(b) was imprisonment for life. Gordon v. State, 977 So. 2d 420, 2008 Miss. App. LEXIS 169 (Miss. Ct. App. 2008).

5. Capital offense.

Armed robbery is a capital offense. Horton v. State, 253 So.3d 334, 2018 Miss. App. LEXIS 42 (Miss. Ct. App.), cert. denied, 252 So.3d 595, 2018 Miss. LEXIS 390 (Miss. 2018).

Miss. Code Ann. §97-3-21 was not unconstitutionally vague and did not apply to the inmate where the inmate confused parole with conditional release as: (1) Miss. Code Ann. §47-7-3(1)(f) prohibited parole for an inmate sentenced to life under Miss. Code Ann. §99-19-101 for capital offenses; (2) since the inmate pled guilty to murder, carrying a life sentence, he was convicted of a capital offense as defined in Miss. Code Ann. §1-3-4; and (3) the inmate was eligible to petition for conditional release at age 65 under Miss. Code Ann. §47-5-139(1)(a). Higginbotham v. State, 114 So.3d 9, 2012 Miss. App. LEXIS 595 (Miss. Ct. App. 2012), cert. denied, 116 So.3d 1072, 2013 Miss. LEXIS 317 (Miss. 2013).

Cross References —

Definition of the term “felony,” see §1-3-11.

Definition of the term “infamous crime,” see §1-3-19.

Definition of the term “offense,” see §1-3-37.

Crimes and misdemeanors generally, see §97-1-1 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. Criminal Law §§ 2 to 8, 13.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

Under this section [Code 1942, § 674] a misdemeanor is a “crime.” “Crime” meaning any violation of law punishable by criminal prosecution. Lewis v. State, 85 Miss. 35, 37 So. 497, 1904 Miss. LEXIS 129 (Miss. 1904).

Cross References —

Uniform Controlled Substances Law, see §41-29-101 et seq.

RESEARCH REFERENCES

ALR.

What are a “drug,” a “device,” and a “new drug” within the definitions of these terms in § 201(g)(1), (h), and (p) of the Federal Food, Drug, and Cosmetic Act as amended (21 USCS § 321(g)(1), (h) and (p)). 3 A.L.R. Fed. 843.

CJS.

C.J.S. Drugs and Narcotics §§ 2 to 5, 8, 29, 118 to 119.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

Use of microwave diathermy, electrical muscle stimulators and ultra sound equipment by chiropractor constituted practice of medicine without a license; nor was use of such modalities protected under chiropractic licensing statute where it made no express provision therefor and where it seemed likely that the legislature, had it intended to allow the use of such hazardous modalities by chiropractors, would have provided for substantially the same safeguards that underlie the use of X-ray machines by chiropractors; the recommending or prescribing of vitamins by a chiropractor also constituted the unlicensed practice of medicine where, by definition, the use of drugs was prohibited to chiropractors and where vitamins, which are a medicine, fell within the statutory definition of the term “drugs.” Norville v. Mississippi State Medical Asso., 364 So. 2d 1084, 1978 Miss. LEXIS 2232 (Miss. 1978).

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

Cross References —

Crimes and offenses generally, see §97-1-1 et seq.

Sentences in capital cases of felon under age 16, see §99-19-15.

RESEARCH REFERENCES

CJS.

C.J.S. Criminal Law §§ 9 to 12.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

A defendant’s conviction for escape under §97-9-45 constituted a “felony” and, therefore, he was properly sentenced as a habitual offender under §99-19-83. Beckham v. State, 556 So. 2d 342, 1990 Miss. LEXIS 11 (Miss. 1990).

The use of the word “feloniously” in describing larceny is not merely descriptive of the grade of the offense, but is an essential ingredient of the crime. Austin v. State, 195 Miss. 317, 15 So. 2d 684, 1943 Miss. LEXIS 164 (Miss. 1943).

Affidavit charging that accused “did then and there unlawfully take, steal and carry away” certain personal property, was fatally defective for omitting the word “feloniously” in describing larceny, and such omission, going to the very essence of the offense, might be availed of for the first time on appeal. Austin v. State, 195 Miss. 317, 15 So. 2d 684, 1943 Miss. LEXIS 164 (Miss. 1943).

Cross References —

Commercial fertilizers, generally, see §75-47-1 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. Agriculture § 89.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

Cotton seed meal held fertilizer, but not other unmixed cotton seed products such as equal parts of pulverized hulls and pulverized kernels. Gilmore Puckett Grocery Co. v. J. Lindsey Wells Co., 103 Miss. 468, 60 So. 580, 1912 Miss. LEXIS 195 (Miss. 1912).

Cross References —

Establishment of food technology laboratory, see §57-19-1 et seq.

Regulation of food, generally, see §75-29-1 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. Food § 1.

C.J.S. Statutes § 335.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

Cross References —

Definition of the term “felony,” see §1-3-11.

Crimes and offenses generally, see §97-1-1 et seq.

OPINIONS OF THE ATTORNEY GENERAL

One who has been convicted of the crime of aggravated assault and sentenced to time in the state penitentiary (even though a portion of the sentence was suspended) or who is convicted of any other “infamous crime” and has not received a pardon from the Governor is not eligible to hold the office of county supervisor or any other office of profit or trust. See Section 23-15-299. Shannon, April 6, 1995, A.G. Op. #95-0220.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

The words “in the penitentiary” used in § 680, do not mean just any penitentiary or “a” penitentiary, but refer to the Mississippi penitentiary, and the federal penitentiary would not be within their meaning. State ex rel. Muirhead v. State Board of Election Comm'rs, 259 So. 2d 698, 1972 Miss. LEXIS 1543 (Miss.), cert. denied, 409 U.S. 851, 93 S. Ct. 64, 34 L. Ed. 2d 94, 1972 U.S. LEXIS 1351 (U.S. 1972).

Cross References —

Definition of the term “minor,” see §1-3-27.

Guardians and wards generally, see §93-13-1 et seq.

RESEARCH REFERENCES

ALR.

Inclusion or exclusion of the day of birth in computing one’s age. 5 A.L.R.2d 1143.

CJS.

C.J.S. Infants §§ 1-3.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

Plaintiff’s tort action based on events that occurred when he was 19 years old was timely as it was filed less than three years after his 21st birthday; removal of the disability of minority did not arise automatically upon the occurrence of specified events except for reaching the age of 21, and thus, plaintiff’s emancipation did not trigger the automatic removal of disability of minority. Baker v. RR Brink Locking Sys., 721 F.3d 716, 2013 U.S. App. LEXIS 13884 (5th Cir. Miss. 2013).

Defendant was an infant, under the age of 21, at the time his motion for post-conviction collateral relief was denied. Thus, he had two years in which to file a timely appeal of his armed robbery conviction under Miss. R. App. P. 4(f). Haynes v. State, 906 So. 2d 762, 2004 Miss. App. LEXIS 1146 (Miss. Ct. App. 2004).

Cross References —

Power of governor to call out militia to suppress insurrections, see §7-1-5.

Punishment for treason, see §97-7-67 et seq.

RESEARCH REFERENCES

ALR.

Prosecutions of inmates of state or local penal institutions for crime of riot. 39 A.L.R.4th 1170.

CJS.

C.J.S. Statutes § 335.

Cross References —

Land and conveyances in general, see §89-1-1 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

Editor’s Notes —

Laws, 1997, ch. 612, was vetoed by the Governor on April 10, 1997. The veto was overridden at the 1st Extraordinary Session of 1997 on April 23, 1997.

Cross References —

Definition of the term “infant,” see §1-3-21.

RESEARCH REFERENCES

CJS.

C.J.S. Infants §§ 2 to 4.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

2. Child support.

1. In general.

Illegitimate “minor” held not debarred from right to present cause for removal of disabilities of minority. Wilkerson v. Swayze, 147 Miss. 141, 113 So. 327, 1927 Miss. LEXIS 347 (Miss. 1927).

A “minor” is any person under twenty-one years of age and emancipation does not terminate such minority. Ray v. Kelly, 82 Miss. 597, 35 So. 165, 1903 Miss. LEXIS 184 (Miss. 1903).

2. Child support.

Chancery court did not abuse its discretion by declining to require a parent to provide post-majority financial support for the parent’s child because Mississippi law did not vest the court with the authority to mandate that parents financially support their offspring post-majority. The duty imposed for a parent to support its child does not extend beyond the child’s minority, which terminates when the child reaches twenty-one years of age. Hays v. Alexander, 114 So.3d 704, 2013 Miss. LEXIS 324 (Miss. 2013).

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

C.J.S. Time § 10.

JUDICIAL DECISIONS

1. In general.

Under statute providing maximum imprisonment for possession of intoxicating liquor, “month” meant calendar month, in computing which, time must be reckoned by looking at calendar and not by counting days. Where beginning is not coincident with first day of calendar month, month is computed to day numerically corresponding thereto in following month less one, if following month has so many days, and if not to last day thereof. Barnes v. State, 154 So. 544 (Miss. 1934).

Cross References —

Constitutional provisions against obstruction of navigable waters, see Miss. Const. Art. 4, § 81.

For another definition of navigable waters, see §51-1-1.

Obstruction of navigable waters, see §97-15-45.

RESEARCH REFERENCES

CJS.

C.J.S. Navigable Waters § 1.

JUDICIAL DECISIONS

1. In general.

Circuit court improperly ruled for a family in their action against the Mississippi Department of Wildlife, Fisheries, and Parks (MDWFP) because it erroneously applied the legal standard for reckless disregard under the Mississippi Torts Claim Act; the river constituted a public Mississippi waterway, and the MDWFP possessed both the authority to regulate the boating traffic on the river and the discretion to do so in a safe manner. Miss. Dep't of Wildlife, Fisheries, & Parks v. Webb, 248 So.3d 823, 2017 Miss. App. LEXIS 217 (Miss. Ct. App. 2017), rev'd, 248 So.3d 772, 2018 Miss. LEXIS 127 (Miss. 2018).

Navigable waters are those waters which are navigable in fact; those waters are navigable in fact which are navigable by loggers, fishermen and pleasure boaters. Ryals v. Pigott, 580 So. 2d 1140, 1990 Miss. LEXIS 694 (Miss. 1990), cert. denied, 502 U.S. 940, 112 S. Ct. 377, 116 L. Ed. 2d 328, 1991 U.S. LEXIS 6438 (U.S. 1991).

A river was navigable in fact, and therefore constituted public waters, where the customary mode of travel on the river was through small outboard motorboats, fishing boats, canoes, tubes and other pleasure craft, the customary mode of commerce and trade was providing facilities for hire where persons could rent such vessels, and the river was capable in its ordinary condition of supporting commercial fishing. Ryals v. Pigott, 580 So. 2d 1140, 1990 Miss. LEXIS 694 (Miss. 1990), cert. denied, 502 U.S. 940, 112 S. Ct. 377, 116 L. Ed. 2d 328, 1991 U.S. LEXIS 6438 (U.S. 1991).

In an action to quiet title and to enjoin trespass, wherein the defendants claimed a right to enter upon a stream located upon the land, where it was shown that the stream was only nine miles long, was obstructed at many points, and had never been used as a water highway for commercial or other traffic except that at the turn of the century logs had sometimes been floated down it, it was apparent that the stream was not a navigable waterway which the defendants as members of the general public were entitled to enter upon at will. Downes v. Crosby Chemicals, Inc., 234 So. 2d 916, 1970 Miss. LEXIS 1428 (Miss. 1970).

This section [Code 1942, § 686] does not enlarge the meaning of the term “navigable waters of the State” as used in Const. 1890, § 81. Culley v. Pearl River Industrial Com., 234 Miss. 788, 108 So. 2d 390, 1959 Miss. LEXIS 556 (Miss. 1959).

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 321.

JUDICIAL DECISIONS

1. Interpretation.

Miss. Code Ann. §11-1-60(2)(a) instituted a cap on noneconomic damages recoverable by “the plaintiff,” and under Miss. Code Ann. §1-3-33, words written in the singular were to be read in the plural; therefore, a cap on noneconomic damages applied to all plaintiffs who brought a wrongful-death action pursuant to Miss. Code Ann. §11-7-13. Estate of Klaus v. Vicksburg Healthcare, LLC, 972 So. 2d 555, 2007 Miss. LEXIS 649 (Miss. 2007).

A thorough review of Miss. Code Ann. §1-3-33 and the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §11-46-1 et seq., revealed that there was no contrary intent manifested by the Legislature that meant that the MTCA should be interpreted only in the singular manner; Miss. Code Ann. §11-46-15(1) was interpreted by using singular or plural language. Miss. DOT v. Allred, 928 So. 2d 152, 2006 Miss. LEXIS 114 (Miss. 2006).

Cross References —

Oath or affirmation required for issuance of search warrant, see Miss. Const. Art. 3, § 23.

Oath of legislators, see Miss. Const. Art. 4, § 40.

Oath of office of judges, see Miss. Const. Art. 6, § 155.

Oath or affirmation of voter, see Miss. Const. Art. 12, § 242.

Oath of state officers except judges and legislators, see Miss. Const. Art. 14, § 268.

Definition of the term “sworn,” see §1-3-53.

RESEARCH REFERENCES

CJS.

C.J.S. Oaths and Affirmations §§ 1-3.

C.J.S. Statutes § 335.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

Action to recover penalty for violation of anti-trust law is civil rather than criminal. Dukate v. Adams, 101 Miss. 433, 58 So. 475, 1912 Miss. LEXIS 12 (Miss. 1912).

OPINIONS OF THE ATTORNEY GENERAL

A metropolitan sewer authority is not a person as defined by §1-3-39 and, therefore, is not capable of entering into agreements for binding arbitration under §11-15-1. Clark, Apr. 26, 2002, A.G. Op. #02-0184.

The West Rankin Metropolitan Sewer Authority does not have specific authority in its enabling legislation or general legislation to enter into binding arbitration agreements; however, it may seek amendment of the local and private act by the legislature to include the authority to enter into binding arbitration agreements in specific circumstances. Clark, June 7, 2002, A.G. Op. #02-0295.

A parochial school and/or church would come within the definition of a “qualified volunteer” and as such would enjoy the exemptions from liability provided by Miss. Code Ann. §95-9-1 when providing the use of its buildings or other real property to the Red Cross, Catholic Charities, or other qualified volunteer organizations during an emergency. Compretta, March 16, 2007, A.G. Op. #07-00146, 2007 Miss. AG LEXIS 106.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

2. Artificial persons.

3. Natural persons.

1. In general.

Miss. Code Ann. §§27-25-501(h) and27-25-701(i) show that a different meaning of “person” than that contained in Miss. Code Ann. §1-3-39 was intended for the purposes of oil and gas severance taxation. Jones County Sch. Dist. v. Miss. Dep't of Revenue, 111 So.3d 588, 2013 Miss. LEXIS 71 (Miss. 2013).

Const. 1890, § 26 does not limit state’s visitorial powers over corporation. Cumberland Tel. & Tel. Co. v. State, 98 Miss. 159, 53 So. 489, 1910 Miss. LEXIS 48 (Miss. 1910).

2. Artificial persons.

Foreign corporations are persons within the meaning of attachment statutes. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 83 So. 2d 179, 1955 Miss. LEXIS 589 (Miss. 1955).

Where foreign corporations were doing business in Alabama, Tennessee and Mississippi, the foreign corporations were persons within the meaning of attachment statutes and they themselves could sue in the state and they are liable to be sued or proceeded against, by attachment or otherwise, as individual nonresident debtors may be sued or proceeded against. Snipes v. Commercial & Industrial Bank, 225 Miss. 345, 83 So. 2d 179, 1955 Miss. LEXIS 589 (Miss. 1955).

Word “person” may or may not include the state and its subdivisions depending upon the language of the statute. City of Jackson v. State, 156 Miss. 306, 126 So. 2, 1930 Miss. LEXIS 169 (Miss. 1930).

Income of corporations held taxable as income of persons. Hattiesburg Grocery Co. v. Robertson, 126 Miss. 34, 88 So. 4, 1921 Miss. LEXIS 4 (Miss. 1921).

Generally where a statute deals with matters foreign to the ordinary functions of public corporations, the word “person” will not be held to embrace municipal corporations exercising a part of the state’s sovereignty. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 1892 Miss. LEXIS 84 (Miss. 1892).

3. Natural persons.

A depot agent who has been accustomed for many years to receive notices from the company, and under orders from his superior, to communicate them to the superintendent, is a proper “person” upon whom to serve notice of the assignment of wages by an employee. Illinois C. R. Co. v. Bryant, 70 Miss. 665, 12 So. 592, 1893 Miss. LEXIS 14 (Miss. 1893).

Amendment Notes —

The 2018 amendment inserted “means all tangible and intangible personal property,” “cash,” “deposit accounts,” and “including promissory notes.”

Cross References —

Definition of the term “property,” see §1-3-45.

RESEARCH REFERENCES

ALR.

What passes under term “personal property” in will. 31 A.L.R.5th 499.

CJS.

C.J.S. Property §§ 18-37.

C.J.S. Statutes § 335.

Law Reviews.

1981 Mississippi Supreme Court Review: Contract, Corporate, and Commercial Law. 52 Miss. L. J. 411, June 1982.

JUDICIAL DECISIONS

1. In general.

Corporation’s contract fees for minor repairs performed on water and sewer systems were exempt from taxation because the systems were considered personal property. Blount v. ECO Res., Inc., 986 So. 2d 1052, 2008 Miss. App. LEXIS 276 (Miss. Ct. App.), cert. denied, 987 So. 2d 451, 2008 Miss. LEXIS 343 (Miss. 2008).

Refund of sales tax was partially ordered because the exemption under Miss. Code Ann. §27-65-21(1)(a)(i) applied to the repairs of water and sewer systems; moreover, there was substantial evidence to support the finding that repairs to underground pipes were real property, while other repairs to movable items were to personal property. Blount v. ECO Res., Inc., 2007 Miss. App. LEXIS 780 (Miss. Ct. App. Nov. 20, 2007), op. withdrawn, sub. op., 986 So. 2d 1052, 2008 Miss. App. LEXIS 276 (Miss. Ct. App. 2008).

Pursuant to a divorce, the property settlement agreement provided that each party released the other party from all claims through the date of the agreement, and referenced civil or criminal actions; the claims that were the subject of the agreement were “choses in action,” and the trial court properly held that the contractual agreement precluded the wife’s suit for personal injuries based on a pre-divorce assault by the husband. Martinez v. Martinez, 860 So. 2d 1247, 2003 Miss. App. LEXIS 1151 (Miss. Ct. App. 2003).

In the context of a suit in equity involving personal property, venue is in the county where the property is located since the specific terms of Miss. Code Ann. §11-5-1 prevail over the general terms of Miss. Rev. Stat. Ann. §11-11-3 (1972). Guice v. Miss. Life Ins. Co., 836 So. 2d 756, 2003 Miss. LEXIS 56 (Miss. 2003).

Beneficial interest constitutes personal rather than real property where decedent only held right to certain proceeds from trust at time of death, distributed pro rata in accordance with trust provisions, although decedent and her heirs apparently retained vested remaindermen’s interest in trust assets to come into existence at time of sale of trust property in toto, or at end of 99 years. Davis v. Davis, 507 So. 2d 24 (Miss. 1987).

Under decree allowing solicitor’s fee for services in conducting partition suit, solicitor’s right was “intangible property.” Bank of Monticello v. L. D. Powell Co., 159 Miss. 183, 130 So. 292, 1930 Miss. LEXIS 356 (Miss. 1930).

Oral subscription for stock of more than $50 in value is void under statute of frauds unless paid for or delivered. Mayhaw Canning & Preserving Co. v. Cohen, 135 Miss. 378, 99 So. 896, 1924 Miss. LEXIS 35 (Miss. 1924).

Debt “personal property.” First Nat'l Bank v. Ellison, 135 Miss. 42, 99 So. 573, 1924 Miss. LEXIS 20 (Miss. 1924).

Voucher for payment of money, not subject to enrolled judgment as “personal property” or “property,” its negotiability being unaffected by such lien. R. F. Walden & Co. v. Yates, 111 Miss. 631, 71 So. 897, 1916 Miss. LEXIS 353 (Miss. 1916).

A deed to land is “personal” property and is subject to larceny, the common law having been changed by statute. State v. Hughes, 80 Miss. 609, 31 So. 963, 1902 Miss. LEXIS 278 (Miss. 1902).

RESEARCH REFERENCES

CJS.

C.J.S. Bills and Note Letters of Credit §§ 2 to 22.

C.J.S. Statutes § 335.

Cross References —

Computer crimes, see §97-45-1 et seq.

RESEARCH REFERENCES

Am. Jur.

63 Am. Jur. 2d, Property §§ 1-7, 31-44.

CJS.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

Beneficial interest constitutes personal rather than real property where decedent only held right to certain proceeds from trust at time of death, distributed pro rata in accordance with trust provisions, although decedent and her heirs apparently retained vested remaindermen’s interest in trust assets to come into existence at time of sale of trust property in toto, or at end of 99 years. Davis v. Davis, 507 So. 2d 24 (Miss. 1987).

Under decree allowing solicitor’s fee for services in conducting partition suit, solicitor’s right was “intangible property.” Bank of Monticello v. L. D. Powell Co., 159 Miss. 183, 130 So. 292, 1930 Miss. LEXIS 356 (Miss. 1930).

Voucher for payment of money, not subject to enrolled judgment as “personal property” or “property,” its negotiability being unaffected by such lien. R. F. Walden & Co. v. Yates, 111 Miss. 631, 71 So. 897, 1916 Miss. LEXIS 353 (Miss. 1916).

RESEARCH REFERENCES

CJS.

C.J.S. Railroads §§ 1-23.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

If trustee could not operate railroad, state’s remedy was by quo warranto not anti-trust law proceeding. State ex rel. Knox v. Edward Hines Lumber Co., 150 Miss. 1, 115 So. 598, 1928 Miss. LEXIS 101 (Miss. 1928).

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

Cross References —

Definition of the term “oath,” see §1-3-35.

RESEARCH REFERENCES

CJS.

C.J.S. Oaths and Affirmations §§ 1-3.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

Amendment Notes —

The 2008 amendment substituted “persons with mental retardation, persons with mental illness” for “idiots, lunatics.”

The 2010 amendment substituted “persons with an intellectual disability” for “persons with mental retardation.”

RESEARCH REFERENCES

ALR.

When Is Person, Other than One Claiming Posttraumatic Stress Syndrome or Memory Repression, Within Coverage of Statutory Provision Tolling Running of Limitations Period on Basis of Mental Disability. 23 A.L.R. 6th 697.

CJS.

C.J.S. Statutes § 335.

Amendment Notes —

The 2008 amendment substituted “mental retardation, mental illness” for “idiocy, lunacy” and made minor stylistic changes.

The 2010 amendment substituted “intellectual disability” for “mental retardation.”

Cross References —

Guardians and conservators generally, see §93-13-1 et seq.

RESEARCH REFERENCES

Am. Jur.

39 Am. Jur. 2d, Guardian and Ward §§ 1 et seq.

CJS.

C.J.S. Chemical Dependents § 4.

C.J.S. Guardian and Ward §§ 1, 2.

C.J.S. Infants §§ 1-5.

C.J.S. Statutes § 335.

Cross References —

Wills generally, see §91-5-1 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. Wills §§ 1, 166, 214.

Amendment Notes —

The 2012 amendment inserted “but is not limited to” preceding “printing, engraving, and lithographing”, deleted “except that” thereafter in the first sentence, and added “unless a different form of legal signature is specified in another statute” to the end of the section.

Cross References —

Requirement that land be conveyed only by a writing, see §89-1-3.

Signature on wills, see §91-5-1.

OPINIONS OF THE ATTORNEY GENERAL

Based on Section 1-3-61 and the necessity to insure the integrity of the mail-in registration system, in order for there to be a valid registration, the witness signature on the mail-in registration form must be personally signed by one who is a registered voter of the county and not a candidate for public office all in accordance with Section 23-15-47. Gray, July 19, 1995, A.G. Op. #95-0499.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 335.

JUDICIAL DECISIONS

1. In general.

2. Signatures.

1. In general.

Statute pertaining to signing of wills by a testator is not qualified by this section [Code 1942, § 700]. Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 1903 Miss. LEXIS 99 (Miss. 1903).

The effect of this section [Code 1942, § 700] is to make necessary the proper handwriting of the petitioner or his proper mark, whatever that is, if he cannot write. It must be signed by the petitioner himself. Ferguson v. Board of Sup'rs, 71 Miss. 524, 14 So. 81, 1893 Miss. LEXIS 106 (Miss. 1893).

2. Signatures.

This section [Code 1942, § 700] merely requires a signature to be an individual authorization and not be engraved, printed, or lithographed. Jones v. Minton, 244 Miss. 354, 141 So. 2d 564, 1962 Miss. LEXIS 454 (Miss. 1962).

A person may adopt the writing of another as his individual signature. Jones v. Minton, 244 Miss. 354, 141 So. 2d 564, 1962 Miss. LEXIS 454 (Miss. 1962).

Person acknowledging signature to deed adopts it. Simmons v. Dantzler, 152 Miss. 428, 118 So. 829, 1928 Miss. LEXIS 230 (Miss. 1928).

Wife, by acknowledgment and delivery of deed, held to have adopted mark appended thereto as her signature though it may have been made by another. Mallory v. Walton, 119 Miss. 396, 81 So. 113, 1919 Miss. LEXIS 14 (Miss. 1919).

Cross References —

State’s fiscal year, see Miss. Const. Art. 4, § 115.

State’s political year, see Miss. Const. Art. 14, § 257.

RESEARCH REFERENCES

ALR.

What 12-month period constitutes “year” or “calendar year” as used in public enactment, contract, or other written instrument. 5 A.L.R.3d 584.

CJS.

C.J.S. Statutes § 335.

C.J.S. Time § 9.

JUDICIAL DECISIONS

1. In general.

“From year to year” in a contract made by the authorities of a municipality with a water company for supplying the city with water, the intent to authorize a contract of as great duration as twenty-five years is deducible. Light, Heat & Water Co. v. Jackson, 73 Miss. 598, 19 So. 771, 1895 Miss. LEXIS 173 (Miss. 1895).

OPINIONS OF THE ATTORNEY GENERAL

Under Miss. Code Section 1-3-65, all words and phrases set forth in Mississippi statutes are used according to their common and ordinary meaning, but technical words and phases should be interpreted according to their technical meaning. Polles, Jan. 14, 1993, A.G. Op. #92-0911.

The meaning of the word “appropriation” as used in the context of Section 21-39-17 is not defined specifically, therefore one must construe words and phrases contained in a statute according to their common and ordinary meaning. Cochran, March 8, 1996, A.G. Op. #96-0063.

The term “foundation,” as used in Miss. Code Ann. §69-44-5, is not synonymous with, but may utilize services of, a bank or a banking institution’s trust department. A foundation, as contemplated in the statute, would include a corporation or other similar entity organized and operated for the purposes set forth in that chapter, that is, to conduct a program of research, education and advertising designed to promote the corn industry in Mississippi. Spell, February 2, 2007, A.G. Op. #07-00019, 2007 Miss. AG LEXIS 11.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 321.

JUDICIAL DECISIONS

1. In general.

Under the statutory construction principles in Miss. Code Ann. §1-3-65, the term “insured” in Miss. Code Ann. §83-5-28 refers to a person involved in a contract with an insurer; the term does not have a technical meaning that would block the common interpretation that authorizing a person to act in a certain way also authorizes a person’s agents to do so. Great Am. Ins. Co. v. Lowry Dev. LLC, 576 F.3d 251, 2009 U.S. App. LEXIS 15862 (5th Cir. Miss. 2009).

Where the amendment of a statute was prefaced with the instruction that the section was “amended to read as follows,” the presence of that phrase indicated that the statute of limitation provision in the old section was not to be inferred or implied to exist in the amended version nor could inadvertence on the part of the legislature be imputed in the deletion, and failure to set forth a statute of limitations in the amended section resulted in the repeal of the prescriptive period. Lee v. Rhoden, 253 So. 2d 844, 1971 Miss. LEXIS 1233 (Miss. 1971).

In view of this section [Code 1942, § 702], the words “sell and convey” used in § 216, Code of 1930, with respect to the right of a county to dispose of real estate belonging to it which had ceased to be used for county purposes, must, in its commonly accepted as well as its technical meaning, be construed as passing the title of the county to another, as against the contention that they also included the word “lease.” American Oil Co. v. Marion County, 187 Miss. 148, 192 So. 296, 1939 Miss. LEXIS 111 (Miss. 1939).

Cross References —

Method of computing the number of days prescribed for performing an act, see Miss. Rule of Civil Proc. 6.

RESEARCH REFERENCES

CJS.

C.J.S. Time § 12.

JUDICIAL DECISIONS

1. In general.

2. Saturdays, Sundays and Holidays.

1. In general.

Miss. R. Civ. P. 6(e) was not applicable to calculate the sixty-day appeal period for taxpayers’ appeal of a ruling by the Mississippi Board of Tax Appeals. Pursuant to Miss. Code Ann. §1-3-67, the sixty-day period began on the date the Board issued its ruling and had expired. Southside, Inc. v. Miss. Dep't of Revenue, 158 So.3d 277, 2014 Miss. LEXIS 570 (Miss. 2014).

Under the provisions of §§1-3-67 and99-17-1, the date of a defendant’s arraignment should be excluded and the date of trial should be included in determining whether a defendant has been tried more than 270 days after his arraignment in violation of §99-17-1. Ransom v. State, 435 So. 2d 1169, 1983 Miss. LEXIS 2779 (Miss. 1983).

A sheriff’s sale was in compliance with the ten day advertisement requirements of Code 1972 §13-3-165, where the first notice was posted on November 14, 1975, and the sale occurred on November 24, 1975; the provisions of Code 1972 §1-3-67 prescribe the applicable formula for computing such ten day period, in that the first day is to be excluded and the last included. Combs v. Adams, 350 So. 2d 41, 1977 Miss. LEXIS 2206 (Miss. 1977).

Where process was served upon the defendant on September 26, returnable to the following Monday, October 1, the first day of the court term, the requisite five days service was accomplished according to the time computation formula provided by Code 1972 §1-3-67. Loftin & Woodard, Inc. v. Stone, 321 So. 2d 488, 1975 Miss. LEXIS 1537 (Miss. 1975).

Where appellant filed a motion for new trial on October 1st, 1955, and October 3, 1955, the motion was overruled, but supersedeas bond was not filed until January 3, 1956, the appeal was not perfected within the required ninety days and it would be dismissed for want of jurisdiction. Gulf, M. & O. R. Co. v. Forbes, 228 Miss. 134, 87 So. 2d 488, 1956 Miss. LEXIS 497 (Miss. 1956).

Case held triable at return term of circuit court where summons was served July 21 and made returnable August 20. Mississippi C. R. Co. v. Aultman, 173 Miss. 622, 160 So. 737, 1935 Miss. LEXIS 205 (Miss. 1935).

Suit begun Oct. 31, 1914, on judgment rendered Oct. 31, 1907, not barred, the first day being excluded. Hattiesburg Grocery Co. v. Tompkins, 111 Miss. 592, 71 So. 866, 1916 Miss. LEXIS 343 (Miss. 1916).

2. Saturdays, Sundays and Holidays.

Where a political party’s executive committee set a hearing for September 22, and served the contestant with notice of the hearing on Monday, September 15, since the time for service under Miss. Code Ann. §23-15-921 – five days – was less than seven days, pursuant to Miss. Code Ann. §1-3-67, the intermediate Saturdays and Sundays were excluded, and the candidate was timely served. Harpole v. Kemper County Democratic Exec. Comm., 908 So. 2d 129, 2005 Miss. LEXIS 463 (Miss. 2005).

Where the courthouse and the office of the clerk were closed by authority of Code 1942, § 4062 on Saturday, the terminal day for giving an appeal bond from the judgment of the county court, and the clerk was not available in the courthouse on such day for filing and approving the appeal bond, that Saturday would not be counted in determining the 10 days within which an appeal had to be taken. Parkman v. Mississippi State Highway Com., 250 So. 2d 637, 1971 Miss. LEXIS 1188 (Miss. 1971).

If by the exclusion of the first day, the last day of a period allowed by law for taking a stated action in judicial proceedings, falls on a legal holiday, that terminal holiday should be excluded and the action may be taken on the following day, and if the following day is a Sunday, the time for taking the action must then be extended until the following Monday. Parkman v. Mississippi State Highway Com., 250 So. 2d 637, 1971 Miss. LEXIS 1188 (Miss. 1971).

If by the exclusion of the first day of the period in which a compensation claimant must file notice of appeal from decision of the Workmen’s Compensation Commission’s representative, the last day of the computation falls on Sunday, then the first day is counted and the last day is excluded, and by following this formula where the Compensation Commission’s office is open for business on Saturdays until noon, a petition for review could not have been timely filed later than the date of the Saturday preceding the Sunday which constituted the 20th day. Scales v. Barry, 195 So. 2d 920, 1967 Miss. LEXIS 1467 (Miss. 1967).

Where time allowed for appeal from justice court expired on Sunday, last day must be excluded and first included, and therefore time expired on midnight of Saturday. Tripp Furniture Co. v. Cox, 160 Miss. 90, 133 So. 238, 1931 Miss. LEXIS 156 (Miss. 1931).

Defendant was served with copy of indictment and of special venire at least an entire day before trial, where copy served Saturday afternoon at 4 o’clock and venire was returnable and case called for trial the following Monday at 9 o’clock. Boatwright v. State, 120 Miss. 883, 83 So. 311, 1919 Miss. LEXIS 141 (Miss. 1919).

If a bond be required to be given within a designated number of days from a certain date, and if the last day falls upon Sunday, it must be excluded from the count, and the first day included. Nichols v. Kendrick, 76 Miss. 334, 24 So. 534, 1898 Miss. LEXIS 90 (Miss. 1898).

OPINIONS OF THE ATTORNEY GENERAL

1991 amendment to Miss. Code Section 1-3-69 did not change publication requirements. Mitchell, May 26, 1993, A.G. Op. #93-0336.

RESEARCH REFERENCES

CJS.

C.J.S. Time § 11.

JUDICIAL DECISIONS

1. In general.

2. Execution sales.

1. In general.

The fact that service of process by publication, published four times at weekly intervals, in a suit by an attachment at law on the ground of nonresidence to collect an indebtedness, had not been completed for at least five days before the term of court, at which it was returnable, convened, did not render void the judgment rendered. Stevens v. Barbour, 193 Miss. 109, 8 So. 2d 242, 1942 Miss. LEXIS 98 (Miss. 1942).

Where first publication of notice of receiving bids and letting contract is made less than three weeks from date of letting, statute not complied with and contract void. State v. Wall, 98 Miss. 521, 54 So. 5, 1910 Miss. LEXIS 91 (Miss. 1910).

2. Execution sales.

Execution sale, although advertised once each week for three weeks pursuant to statute, held void where less than three weeks elapsed between first publication and sale. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

Statute requiring advertisement of execution sales once each week for three weeks should be construed with statute defining meaning of requirement for three weeks’ publication. Vansant v. Dodds, 164 Miss. 787, 144 So. 688, 1932 Miss. LEXIS 254 (Miss. 1932).

First day of publication is excluded and day of sale included. Donald v. Commercial Bank of Magee, 132 Miss. 578, 97 So. 12, 1923 Miss. LEXIS 92 (Miss. 1923).

Where more than one week elapsed between last notice and day of sale, sale was void. Planters' Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323, 1919 Miss. LEXIS 110 (Miss. 1919).

Foreclosure notice published Oct. 8, 15, 22 and 29, followed by sale Nov. 2; and publication July 7, 14, 21 and 28, with sale July 31, was sufficient; less than a week elapsing between last notice and day of sale. Lake v. Castleman, 116 Miss. 175, 76 So. 877, 1917 Miss. LEXIS 304 (Miss. 1917).

Sale made July 21, pursuant to notices July 3, 10 and 17, was void. McSwain v. Young, 111 Miss. 686, 72 So. 129, 1916 Miss. LEXIS 370 (Miss. 1916).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 66.

CJS.

C.J.S. Descent and Distribution § 29.

Cross References —

Effect of relationship between judge and parties, see Miss. Const. Art. 6, § 165.

Prohibition against judge presiding at trial of cause where parties are related to him, see §9-1-11.

Prohibition against nepotism by state, county, district or municipal officers, see §25-1-53.

Descent and distribution generally, see §91-1-1 et seq.

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. 2d, Descent and Distribution § 66.

CJS.

C.J.S. Descent and Distribution § 29.

JUDICIAL DECISIONS

1. Construction with other laws.

The requirement of this section that petitions be personally signed was properly applied to petitions filed pursuant to §23-15-963 to contest the qualifications of a candidate for public office. Ladner v. Necaise, 771 So. 2d 353, 2000 Miss. LEXIS 228 (Miss. 2000).

Editor’s Notes —

The United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended, to the addition of this section by Laws, 1987, ch. 441, on November 9, 1987.

OPINIONS OF THE ATTORNEY GENERAL

County registrar is “certifying official” for purpose of certifying number of signatures of qualified electors on petitions calling for election pursuant to particular statute as well as on nominating petitions for candidates for public offices. Doggett Sept. 8, 1993, A.G. Op. #93-0644.

For purposes of a municipal election, the “certifying official” as provided in Section 1-3-76, is the city registrar. Kerby, August 23, 1996, A.G. Op. #96-0585.

RESEARCH REFERENCES

CJS.

C.J.S. Elections §§ 91, 98.

JUDICIAL DECISIONS

1. Applicability.

Circuit court did not err in ordering a candidate’s name be placed on a ballot because a statutory “petition filed by qualified electors” was wholly separate and distinct from the statutory requirements where the candidate was merely seeking to have his name printed on the mayoral ballot and where there was no contradictory evidence presented to contest the elector affidavits before the election commission. Election Comm'n v. Wallace, 143 So.3d 557, 2014 Miss. LEXIS 368 (Miss. 2014).

RESEARCH REFERENCES

CJS.

C.J.S. Statutes §§ 82-84.

JUDICIAL DECISIONS

1. Applicability.

Miss. Code Ann. §27-7-15(4)(i), having been found to violate the dormant commerce clause under the internal consistency test, was modified by striking the phrase “under the provisions of this article” because this preserved legislative intent to include dividend income in the definition of income, while allowing an exemption to taxpayers who already had borne a tax in Mississippi or another state. And even if one part of the section might be unconstitutional or void, absent contrary intent, Mississippi’s severability statute applies and the remaining parts remain in full force. Miss. Dep't of Revenue v. AT&T Corp., 202 So.3d 1207, 2016 Miss. LEXIS 448 (Miss. 2016).

Because H.B. 1671, Reg. Sess. (Miss. 2006), indicated no contrary intent, Miss. Code Ann. §1-3-77 was applicable, and the supreme court severed only the last sentences of H.B. 1671 §§ 3 and 4; the city was not disqualified from continuing to pursue this project or any other private legislation that might be necessary. Oxford Asset Partners, LLC v. City of Oxford, 970 So. 2d 116, 2007 Miss. LEXIS 575 (Miss. 2007).

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Statutes § 243.

CJS.

C.J.S. Statutes §§ 246, 397.

Cross References —

How acts of legislature shall be printed, see §31-1-15.

Delivery of acts of legislature to printer and maximum time allowed for printing, see §31-1-17.

Proof sheets of printing work to be read by departments, see §31-1-23.

OPINIONS OF THE ATTORNEY GENERAL

Miss. Code Section 1-5-1 requires Secretary of State to submit copies of legislative acts for printing. Molpus, May 11, 1993, A.G. Op. #93-0342.

RESEARCH REFERENCES

CJS.

C.J.S. States § 84.

C.J.S. Statutes § 59.

Cross References —

Furnishing of true copies of the journals of the legislature, see §5-1-33.

Criminal alteration of bills of the legislature, see §97-7-49 et seq.

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 85, 86.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 119.

Editor’s Notes —

Laws, 1993, ch. 518, § 45, provides as follows:

“Section 32 of this act shall take effect and be in force from and after its passage and the remainder of this act shall take effect and be in force from and after July 2, 1993, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.”

On July 13, 1993, the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, as amended and extended to the amendment of this section by Laws, 1993, ch. 518.

Amendment Notes —

The 2004 amendment inserted “the Legislative Budget Office” in the first paragraph.

The 2010 amendment, in the first paragraph, rewrote the second sentence, and added “however, the copies to be provided each attorney. . .requested by such attorney in writing” at the end.

The 2012 amendment inserted “sheriff” twice preceding “member of the Legislature” and “legislator or attorney” in the second sentence of the first paragraph.

Cross References —

Secretary of State to receive all extra copies of acts of Legislature from sheriffs, see §1-5-25.

Governor to transmit copies of the laws and documents, see §7-1-15.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 59.

RESEARCH REFERENCES

CJS.

C.J.S. Statutes § 59.

Cross References —

Sale of excess volumes, see §1-5-21.

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 85, 86.

C.J.S. Statutes § 59.

Editor’s Notes —

Former §1-5-13 related to publication and distribution of advance sheets of general laws. For present provisions, see §1-1-58.

Editor’s Notes —

Former §1-5-15 required the chancery clerks to paste copies of laws into a book maintained for that purpose to preserve acts of legislature.

RESEARCH REFERENCES

CJS.

C.J.S. Colleges and Universities § 11.

C.J.S. Statutes § 59.

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 85, 86.

C.J.S. Statutes § 59.

Cross References —

Sale of acts and journals, see §1-5-11.

RESEARCH REFERENCES

CJS.

C.J.S. States §§ 263, 264.

Editor’s Notes —

Former §1-5-23 provided prices for the sale of certain volumes of legislative journals.

RESEARCH REFERENCES

CJS.

C.J.S. Sheriffs and Constables §§ 52-54, 66-71, 80, 88.

C.J.S. Statutes § 59.