
    George T. Swann, Auditor of the State, vs. Robert Josselyn, State Commissioner.
    The act of 1844, appointing the state commissioner, provides, that he “ shall receive as a compensation for his services the sum of two thousand dollars per annum, payable out of the funds collected ; ” the act of 1846, consolidating the offices of state commissioner and of the seminary fund in that of the state commissioner, provides, that he shall “ receive the sum of fifteen hundred dollars per annum, to be paid as heretofore provided by law ; ” and the fourth section of the act of 1844 requires him to pay all moneys collected into the treasury: held, in view of these provisions, that the state commissioner was entitled to a warrant on the treasurer from the auditor for the amount of his salary, to be paid out of any moneys in the treasury belonging to the sinking, seminary, or town lot funds.
    And it seems, that the only mode by which the state commissioner can lawfully obtain his salary is by warrant on the treasurer, as the law, so far from authorizing him to retain any of the funds collected, expressly directed him to pay them into the treasury.
    And as there was no provision in the laws creating the office, fixing the periods at which his salary was to be paid, and as the general law provides, that the salary of all officers shall be paid quarterly on the auditor’s warrant, unless the law expressly direct otherwise; it was further held, that the state commissioner was entitled to a warrant for his salary quarterly, which warrant the auditor, under this law, was authorized to draw and the treasurer to pay.
    
      In error from the circuit court of Hinds county; Hon. P. W. Tompkins, judge.
    Robert Josselyn, as state commissioner, applied to George T. Swann, auditor of public accounts, for a warrant, to be drawn on any funds in the state treasury, belonging to the sinking, seminary, or town lot funds, in. payment of his salary as such commissioner. The auditor re'fused the warrant, and the state commissioner applied for a mandamus. The court below decided that the warrant should issue, but should only be payable out of any moneys in the treasury belonging to those funds, “ which had been collected and paid in by said Robert Josselyn, as state commissioner.”
    From this decision the auditor sued out this writ of error.
    
      D. C. Glenn, attorney-general, for plaintiff in error,
    Contended that the state commissioner must collect and pay his-own salary, and the auditor had' nothing to do with it.
    .' Í. This view is founded upon the express terms of the laws under which the commissioner is-appointed.
    (Mr. Glenn cited the various acts.) ' Now here is so much allowed the commissioner per annum,-so much a year, in the whole, not “quarterly,” as all other,officers are. This shows that-he is not in the category of other “ officers,” being merely “ a suitable and competent agent” for certain purposes. The case of the auditor’s chief clerk is cited, and the practice of the auditor, paying him quarterly, is used as in point here. It is not so, as the auditor can pay him monthly if.he chooses, and dispense with his services altogether'if unnecessary.
    But it says further, the $1500 shall be payable “ out of the funds collected.” Collected by whom, I ask ? Not out of funds collected by former agents, and coming to the credit of the funds in the treasury in any other wise, but it is clear to me, collected by the present commissioner himself. The true grammatical construction of the language used, shows this to be so, and the whole context of the law proves it. It in no wise relates to, or concerns, the funds “in the treasury,” but was intended for such funds as were “out of the treasury.” See its terms in various places. He is to manage, collect, and receive said funds “now outstanding.” He is authorized to call on all persons having any of “ said funds ” to settle, and can coerce a prompt payment of “ said funds,” by suit, &c. He is to render an “account quarterly” to the governor, of “the funds.” A penalty is prescribed for any embezzlement of “any part or portion of the funds aforesaid.” He can employ counsel, but cannot pay more than five per cent. “ for any sum collected out of said funds.” He is then to receive $1,500, “payable out of the funds collected! ” The act is a whole, and each and every provision is aimed at onp object, the collection of the “ funds outstanding.” The powers conferred, the salary, all relate to it solely. Nothing else was in view, and it does seem to me, that the legislature could not more clearly have said, that the commissioner should be páid out of moneys collected by himself. But it is said the fourth section requires the commissioner, whenever any moneys may be collected by him, to pay the same into the treasury, and that hence he cannot retain his compensation. Yet he may employ counsel to assist and pay them; if he is bound to pay the moneys in, all of them directly into the treasury, he cannot retain enough to pay their five per centums. He cannot, unquestionably, draw on the funds or on general moneys, for their fees, in the treasury; then the law for paying counsel is nugatory. No one will say this is so, and it shows that the fourth section duly means, that he shall pay all the moneys in after defraying the expense of collection, to wit, his-salary, his unavoidable outlays in “the management of the funds,” and fees of counsel in collecting it.
    Again. Beside the fact that his salary is payable “ per annum,” and not “ quarterly,” as in the case of all other “ officers,” the third section of the act of 1844 shows, that this “ agent,” in his settlement and accounts, is entirely withdrawn from the direction, given by law to all other accounting officers in this state, viz., the auditor’s office. He is required to “ render a full and perfect account and statement, quarterly, to the governor,” of “ said funds.” Here is the direction of his accountability given, here he must, every three months, make a full and satisfactory showing, .or else be removed instanter. And here is the most complete reply to the objection raised, that to allow the commissioner to pay himself is a dangerous anomaly, and contrary to the whole spirit of our laws. The governor appoints him; he is to report and account to the governor quarterly. The governor is to see that he manages the funds judiciously, collects faithfully, accounts accurately, pays oyer promptly, and on failure in any thing, to remove him instantly. If it is an anomaly, the law made it so, and we can only say, 11 ita lex scripla estyet to my mind, its only anomaly consists in the fact, that no collecting officer in our state is subjected to so vigorous and efficient a system of surveillance and accountability.
    2. The next reason I assign is, that the moment any of the moneys belonging to the seminary or sinking funds reach the vaults of the treasury, their character is changed, and their destination fixed; that instant becomes attached to them specific acts of appropriation, now in existence, and passed long before this “agency” of a commissioner was created. In the laws of Mississippi, 1824-1838, p. 239, is found the origin of the latter fund, and a provision, “ that no part of it shall ever be used for any other purpose,” until payment is made of the Planters’ Bank bonds, thereby issued and made a part of the charter of said bank. These provisions have been extended and enforced by various legislation, down to the present period. The act of 1841, sec. 13, p. 77, makes funded warrants receivable for both funds, but requires separate accounts of the same to be kept by the treasurer, so that the state may pay interest on the same. The bonds are still unpaid, and the fund is still bound for their payment.
    The seminary fund is derived from lands granted to the state by congress for a seminary of learning. The act of 1840 gave it to the university of Oxford. The act of 1843 requires the treasurer to keep an account of said fund, and pay interest on the whole amount paid in.
    Under these laws these two funds stand appropriated to specific objects the moment they come into the treasury. See also Act 1848, Code, 334. Now I submit to the court whether, in the face of these laws, the treasurer is authorized to pay over one dollar of these funds on any account, save as pointed out by these laws? If so, in my poor judgment he becomes personally liable to the bond holders and the trustees of the university. But it may be said this is not so in regard to the town lot fund, and the salary of the commissioner can surely come out of that. I answer, if it comes out of one it must come from all, and if it cannot be drawn from the one it can be drawn from none; for the law says, “ out of the funds collected.”
    I do not deny the power of the legislature to divert these funds, or any part thereof, from the objects to which they now stand set apart by law. But express laws, to that effect, are required to relieve the treasurer of responsibility, and there are none such. The acts of 1844 and 1846 are not such as I have shown. The state pays interest on these funds when in her treasury, but if the commissioner can take them out of it for his salary, she would not only pay interest on the funds, but also on the amount of the salary of a commissioner to collect funds, of which she is only a naked trustee.
    3. I am further satisfied, that a correct view of the position which the state occupies towards the sinking and seminary funds, will force conviction, that the salary of this “agent” cannot bp drawn from them, after they are paid into the treasury. She holds the seminary fund from congress in trust for a seminary of learning. See Code, 221. She holds the sinking fund in trust for the Planters’ Bank bond holders. 12 S. & M. 93. She can decide upon their management and control and their collection as she pleases, but she is bound jn honor, good faith, and in law, for the faithful administration of every dollar which belongs to them. She avows her intention to execute her trust in good faith, and all her acts are to be presumed in keeping with her avowals. No construction then is to be forced of her acts or of her declarations, which may lead to a different result. What would then be the result of the course now insisted on by the present commissioner? The funds yield nothing except by the process of collection. Suppose a commissioner- is appointed, ignorant of his' duties, indolent in their exercise, and wholly incapable of their useful discharge, and who, by his inefficiency, would' not collect a dollar, yet he would go on (under the new rule) from year to year, squandering and wasting the very fund he was professedly appointed to preserve. This would not be good fa-ith towards the beneficiaries of the funds, and surely was not the intention of the legislature, yet such most assuredly.-would be the practical result. But it may be said, that though there is nothing left of the funds to collect, still the commissioner is entitled to his pay as longj as his “agency” exists.- Admit.it for a moment. Suppose then that before he is paid, all to the credit of the funds in the treasury is paid out under their appropriation acts; he can collect nothing, there is nothing in the treasury “collected;” can he get his pay out of general funds in the treasury? No one will say so, (and yet he-could if -he was a “general officer,” as contended.) Where then does he get his pay? Nowhere, unless the legislature will give it- to him out of her own moneys. The moment there was nothing to collect, the trust was executed, his agency gone, and if he is continued a day longer, in all right reason and fair dealing, the trustee should pay his expenses. Yet, supposing the funds should remain and not be called for, if he be allowed to draw on those funds in the treasury, he may go on for years wasting these funds, when there is not a dollar to collect, and years after the trust has been executed and ended; and yet the “ cestui que trusts” have no check, and cannot stop this useless drain upon their means. By the rule which I adopt, (which I believe the law lays down,) an instant check is applied, the expenses of the trust stop with its execution, and the costs of collection with the cessation of collection. By it the agent is spurred to an energetic discharge of his duties which insures his pay, the state discharges in good faith the trusts it has assumed, and the beneficiaries are secured.
    4. The practice of government, I am aware, is not a conclusive argument, yet in doubtful matters, I take it that it will be seriously regarded, and often inclines the scales of opinion.
    
      James Robert Young and Samuel Matthews were the predecessors of Robert Josselyn. Through a period of six years they collected and paid their own salaries, and never once called on the auditor for a warrant on the funds in the treasury.
    Their accounts were examined and approved by Albert G. Brown and Joseph W. Matthews, governors of the state of Mississippi, every three months for six years.
    Their accounts were further examined, passed upon, and approved by the legislatures of 1846, 1848, and 1850, respectively.
    Finally, in 1848, the accounts of the agents of the funds were laid before a legislative committee, (Guión, Neal, and Alderson,) and the course of commissioner Young fully indorsed. They say of him: “That his books and papers prove that he was a skilful, competent, and successful officer, and that he has kept his books, papers, and accounts, in a most lucid and satisfactory manner. By his labor and skill he has reduced chaos to perfect order and system, and has left his successors but little trouble and less labor.”
    These repeated and marked indorsements appeal with persuasive power in favor of the rule, and coming from our highest functionaries, and for such reason, are here adduced by me.
    5. One point I omitted, which I will barely notice here, as I conceive it fully met in the foregoing pages.
    It is said the claim of the commissioner is a claim against the state, and under the general law, as such, the auditor is bound to “audit and settle it.” Is it any claim against the state? If so, it must be paid out of state funds. It is admitted this cannot be, and we come back to the point I have already argued. The commissionership is a mere agency, he is styled “an agent,” appointed by the governor, accountable to the governor, and the only connection the auditor has with him, is to give him a pay warrant when he wishes to place any of the funds in the treasury.
    6. If the auditor is to give him a warrant on the funds collected, how is the warrant to be drawn, how is the amount to be apportioned, how much of each fund, and how is the account to be kept ?
    
      
      Robert Josselyn, in proper person.
    A careful examination of the statutes,, on the subject will establish the following facts:
    1. That the state commissioner is an officer of the state, duly commissioned and qualified by bond and official oath, and entitled to a salary, fixed by law, of $1500 per annum. Hutch. Code, 228, 229.
    2. That there is no authority given him by law to retain his salary out of the funds collected; on the contrary, he is expressly required, “ whenever moneys may be collected or received by him, to pay the same into the treasury,” under the penalty of ten years’ imprisonment in the penitentiary. Code, 228, 229.
    3. That it is the duty of the auditor of public accounts “ to examine, state, settle, and audit all claims, accounts, or demands, whatsoever against the state, arising under any act or resolution of the legislature, and to grant to every claimant, authorized to receive the same, a warrant on the state treasury” for the amount. Code, 394, § 7.
    4. That the auditor, in drawing said warrant on the treasurer for the salary of the state commissioner, is restricted only by the designation of the funds out of which the salary is to be paid, viz., the sinking fund, seminary fund, and town lot fund. Code, 229.
    5. It is the duty of the treasurer “to pay the salaries of all public officers entitled thereto quarter-yearly, on the auditor’s warrant, unless the time of the payment of the same be otherwise provided for by law.” ■ Code, 397, § 4.
    From these facts it follows,, that the state commissioner, being a public officer of the state, with a salary fixed by law, which “does not otherwise” provide for its payment, is entitled to have that salary audited quarter-yearly, and to receive from the auditor a warrant on the treasurer for the same, payable,out of any of these collected in the treasury.
    The statute does not say, that the salary of the state commissioner shall be payable out of the funds collected by him, but out of. the funds collected. To show the reasonableness of this construction, it is only necessary to state, that the commissioner, in office, might find it necessary, for the interest of these funds, to put off payments, secured by compromise under the approval of the governor and attorney-general, until after the expiration of his term of office, so that an amount of money, sufficient to pay his salary, might not come into his hands or be paid into the treasury. Hence the manifest injustice and injury to these funds and the state, which might arise from any other construction. The court below then has only erred in this, that the judgment should have been for the auditor to issue his warrant on the treasurer, payable out of any of these funds in the treasury, whether collected by the present or any former state commissioner.
   Mr. Chief Justice ShaRKey

delivered the opinion of the court.

The defendant in error applied to the circuit court for a mandamus., to compel the auditor to issue his warrant on the treasurer for three hundred and seventy-five dollars, alleged to be due the petitioner for a quarter’s salary. The claim was resisted, on the ground, that the petitioner was authorized to retain his salary out of any money collected by him, and that consequently the auditor was not bound to issue his warrant. This question depends exclusively on the construction of the several acts of the legislature, in relation to the appointment and duties of the state commissioner.

By the act of 1844, the governor was authorized, by and with the advice and consent of the senate, to appoint a “state commissioner.” The second section directs, that it shall be the duty of the commissioner to manage, collect, and receive the sinking fund, the town lot fund, and all other state funds outstanding, except the seminary and two and three per cent, funds, and it invests him with ample powers for the accomplishment of the end. The third section requires, that he shall quarterly render an account to the governor of his actings and doings, and of the condition of the funds under his management. The fourth section requires him to pay all moneys collected into the treasury. The act proceeds to require a bond from the commissioner, and to provide for punishing embezzlement by him; and by the eighth section it is provided, that he “shall receive as a compensation for his services the sum of two thousand dollars per annum, payable out of the funds collected.”

The act of 1846 consolidated the offices of state commissioner, and of the seminary fund, which latter office had been created in 1843, and devolved the duties of both on the “state commissioner.” This act declares that the state commissioner should thereafter receive the sum of fifteen hundred dollars per annum, to be paid as heretofore provided by law.

The act of 1843, which created the office of commissioner of the seminary fund, did not fix the amount of his salary, but left the sum blank. The act of 1844, however, declared that the commissioner of the seminary fund should receive the sum of fifteen hundred dollars per annum, payable quarterly out of the funds collected, on the requisition of the governor.

Now the question is, What rule is to be gathered from these acts in regard to the payment of the commissioner’s salary? Judging from the record and the argument the auditor refused to issue his warrant, because he regarded it as the duty of the commissioner to retain, out of money collected by him, the amount of his salary, and that when it was once paid into the treasury, it could not be paid out. In this view we cannot concur. We regard the law as only indicating to the proper officer the fund out of which the commissioner should be paid, after the money had been paid in ; or, in other words, as directing to what account the disbursement should be charged. The act of 1844, which authorized the appointment of the state commissioner, is to be the main guide in the matter, as the act of 1846 does nothing more than change the amount of the salary, and directs that it should be paid as before provided, having reference no doubt to the mode prescribed in the act of 1844. The language of the eighth section above quoted, seems to be a plain guide in this matter. “ The said commissioner shall receive as a compensation for his services,” &c. To receive is not to retain, but it implies payment by some other person. The word retain has a very different meaning, to wit, to hold that which one already has. The statute does not use this word; if it had done so, the case would have been plain enough. And we cannot suppose the legislature intended to be understood as giving authority to retain, or it would have said so. But the subsequent part of the section says, that it shall be “ payable out of the funds collected.” This language again implies the agency of the proper disbursing officer; the salary was not retainable, that is, to be held by the party who collected the money, but it was payable, that is, to be disbursed by the proper officer. But the matter is made still plainer by the fourth section, which directs that the commissioner, whenever moneys may be received or collected by him, shall pay the same into the state treasury. This duty was not to be performed at stated times, but so soon as the money was received. This duty is inconsistent with the privilege of retaining. If this officer may retain his salary, he may do so, to the full extent, out of the first money that might come into his hands, and thus receive his salary in 'advance. If the legislature had intended to give this effect to the law, no doubt its language would have been more explicit. It may so happen that the commissioner will fail, in the course of a year to collect any thing; how then could he retain 1 or is he under such circumstances to lose his salary 1 Certainly not; it would be payable out of any of the particular funds designated, which might happen to be in the treasury. But another most conclusive answer may be given. Some of the debts to be collected by the commissioner are payable not in money, but in the securities of the state. It never could have been intended that he should retain these securities in discharge of his salary.

But it has been also insisted, that the funds to be collected by the commissioner, are trust or pledged funds, that cannot be diverted from their purpose when they once come into the treasury, but must be appropriated to the specific purposes designated. If this be-true, the pledge must be equally operative as soon as the commissioner collects them. They are trust funds in his hands, and he could not retain. The state must act through its agents; a collection by the commissioner is a collection by the state, and if the state be a trustee, the trust attaches as soon as the fund comes into the hands of its authorized agent. But if the position taken were true, what would be the consequence? The state must act in good faith, and if it has pledged a fund for the payment of a salary which it could not pledge, or so locked up the fund that it cannot be appropriated to the discharge of the salary, then it must be paid out of any money in the treasury. The agreement to pay would then be binding and. stand without any qualification, But suppose the state commissioner were entitled to retain, and. instead of doing so, had paid the money into the treasury, is he for that reason to be excluded from his salary? Surely not. By law he is entitled to his salary, to be paid out of a particular fund; if that fund has gone into the treasury, either through his hands or the hands of others, he has a clear legal right to draw it out, and having such right, the auditor should issue his warrant. It is in effect the same thing as if he had retained the amount.

None of the acts above referred to authorize quarterly payments, and if there were no other provision, it might be very questionable whether, the commissioner would be entitled to draw his salary before the end of the year; but the law regulating the duties of the .treasurer settles this question, by providing that he shall pay all salaries quarterly, on the auditor’s warrant, unless the law expressly direct otherwise. Under this law, the auditor would be authorized to issue his warrant, because, without it the treasurer could not discharge a duty expressly required of him. The law is an authority for both officers. Hutch. Code, 397.

The judgment of the circuit court was wrong in one particular; it directed the warrant to issue payable out of any money in the treasury collected by this commissioner. It should have been payable out of any of the designated funds in the treasury, and the judgment of this court must be so entered.  