
    BOARD OF EDUCATION OF FORREST COUNTY, Mississippi (also constituting and being the Board of Trustees of the Forrest County, Mississippi, School District) v. W. U. SIGLER et al., Members of the Board of Supervisors of Forrest County, Mississippi.
    No. 44962.
    Supreme Court of Mississippi.
    March 4, 1968.
    Rehearing Denied April 29, 1968.
    Dudley W. Conner, Hattiesburg, for appellant.
    James H. C. Thomas, Jr., Hattiesburg, for appellees.
   RODGERS, Justice:

This controversy arose between two agencies of the State of Mississippi. The Board of Education of Forrest County filed a petition, through its attorney, seeking a writ of mandamus to compel the Board of Supervisors of Forrest County to pay to the education fund of Forrest County one-half of the oil and gas severance taxes for use in the Minimum Education Program. The Board of Supervisors refused to pay the Board of Education the sum of $58,520.79, or one-half of the sum of $137,900 severance tax refunds, less $10,429.21 previously paid by the Board of Supervisors prior to September 1, 1966. The sum claimed represented one-half of the refund severance tax for the 1966-1967 school year.

The ultimate controversy arose out of a disagreement as to the meaning of certain legislative enactments with reference to severance taxes for school use. The School Board contends that sections 6248-04 and 6248-04.5, Mississippi Code 1942 Annotated (Supp.1966) require the Board of Supervisors to allocate one-half of the oil and gas refund severance tax for the use of the Board of Education. The Board of Supervisors of Forrest County contends that sections 9417-03 and 9417.5-03, Mississippi Code 1942 Annotated (1952) give the Board of Supervisors discretion as to how it may divide the severance tax. The Board of Supervisors points out that prior to the time when the Board of Education adopted its budget, the Board of Supervisors advised and notified the Board of Education that it had determined in its discretion to use the severance refund tax. The Board of Supervisors alleged that the unsafe condition of the bridges of the Forrest County public roads utilized as school bus routes was such as to require the future use of oil and gas severance tax refund money for the purpose of repairing the bridges on the public roads along the school bus routes, beginning October 1, 1966. Several letters were written to the Attorney General with reference to the adverse claims, and finally suit was filed by the Board of Education of Forrest County, Mississippi. The petitioners based their petition upon the premise and theory that the Legislature of Mississippi had repealed the law giving the Board of Supervisors the discretionary power with reference to the use of the severance tax refund by the enactment of section 6248-04 and section 6248-04.5. It is said that the last section declared that it was the intention of the Legislature that these funds would not “be used for any purpose other than the support of the minimum education school program in said county.”

This Court was in the process of examining the original issue as to whether or not the refund paid to the county for severance taxes which are earmarked for the school could be used for any other purpose. At this point, however, it was brought to the attention of the Court en banc that, although the trial court had entered a judgment in favor of the defendants, the members of the Board of Supervisors of Forrest County, Mississippi, the trial judge had overruled a demurrer to the petition filed by the Board of Education, in which the members of the Board of Supervisors challenged the authority of the Board of Education to file a petition for a writ of mandamus to compel the Board of Supervisors to act as requested. The members of the Board of Supervisors cross appealed from this order overruling the demurrer. We are therefore confronted at the very door of this action with the question as to whether or not the Board of Education of Forrest County can file a petition for mandamus. In short, is there an action before the Court on which mandamus • can be granted ?

The authority to prosecute an application in the courts of this state for a writ of mandamus is found in section 1109, Mississippi Code 1942 Annotated (1956), which is as follows:

“On the petition of the state, by its attorney-general or a district attorney, in any matter affecting the public interest, or on the petition of any private person who is interested, the writ of mandamus shall be issued by the circuit court, commanding any inferior tribunal, corporation, board, officer, or person to do or not to do an act the performance or omission of which the law specially enjoins as a duty resulting from an office, trust, or station, where there is not a plain, adequate, and speedy remedy in the ordinary course of law.”

The writ of mandamus is an extraordinary writ, and before the writ can be issued it must affirmatively appear that four essential elements are present: (1) the petition must be brought by the officers or persons authorized to bring the suit; (2) there must appear a clear right in petitioner to the relief sought; (3) there must exist a legal duty on the part of the defendant to do the thing which the petitioner seeks to compel; and (4) there must be an absence of another remedy at law. Board of Supervisors of Prentiss County v. Mississippi State Highway Comm., 207 Miss. 839, 42 So.2d 802 (1949).

It must be pointed out that this Court permitted suit to be filed for mandamus by one state agency against another state agency in the case of White v. Miller, 159 Miss. 598, 132 So. 745 (1931). It appears, however, that in that case the petitioner, the State Tax Collector, was seeking mandamus to require the State Auditor to pay over to him the commissions due him and that he could have proceeded in his name as an individual “in any matter affecting the public interest” since he was interested as a private person in the payment of his commissions. In addition, the Tax Collector had statutory authority to bring a suit in matters affecting the collection of taxes. For that reason it is possible that the authority to bring suit for the extraordinary writ of mandamus was not studied in depth. Other cases, before and since White v. Miller, have repeatedly held that one state agency can not obtain a writ of mandamus against another state agency in its own right.

This question was thoroughly studied and laid to rest in the case of Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808 (1940).

The Hancock County case arose when the county instituted a mandamus proceeding in circuit court to compel the State Highway Commission to allow the county certain moneys expended in building a bridge. The proceeding was dismissed and appeal was taken. On a motion by the appellee, the Commission, the appeal was dismissed, solely on the grounds that Hancock County had no right to institute the suit for mandamus. In discussing section 2348 of the Code of 1930 (which is exactly the same as section 1109 of the present Code), Presiding Justice Ethridge said:

“The writ of mandamus is distinct from ordinary suits. It is a prerogative zurit issued by the State through such representatives as it may intrust with that pozver, and under Section 2348 suits involving the public interest are to be brought on the petition of the attorney general or a district attorney. It is true the section authorizes a mandamus to issue for the enforcement of the private right by a person whose private rights entitle him to coerce a mandatory duty, but the State Highway Commission is a public body and its funds to be expended by it are for public purposes, and the dealings in its powers with the public interests and the matters sought to be enforced in the present proceeding represent public interest, both as to the action of the State Highway Commission, and as to the county’s right, if any, to reimburse it for its expenditures for a public bridge. [Emphasis added]” 188 Miss. at 162-163, 193 So. at 809.

The Court also said :

“Nothing short of a statute specifically giving right to mandamus would enable a county to sue out a mandamus affecting a public matter, or a matter of public interest. It may be that a county having property or rights of action in its purely .private or proprietary capacity might have the same remedy as a private individual would have to coerce the performance of the duty, where no discretion is required or contemplated, that a private individual would have. Mandamus being a prerogative writ to be issued only in extraordinary circumstances and only on the conditions and by the persons authorized by statute to have it issued, it is not available to the appellant in this suit, consequently the county had no standing in the Court, and one of the fundamental principles in invoking a court’s jurisdiction is that the plaintiff or complainant, as the case may be, must show a right in himself to invoke the jurisdiction of the Court. [Emphasis added]” Id. at 163-164, 193 So. at 810.

This decision was reached despite section 270 of the Code of 1930 (now appearing as section 2955) which provides that a county may sue or be sued in its own name. It appears that, mandamus being an extraordinary remedy, the statute granting the right to petition for such a remedy will be construed very strictly.

The Hancock County case cites State ex rel. Trahan v. Price, 168 Miss. 818, 151 So. 566 (1934), which involved a suit by a group of private citizens. These citizens had requested the attorney general to file a petition for mandamus but the request had been refused. The citizens then filed suit themselves in the name of the state. This Court, in affirming a decree sustaining a demurrer to the petition, said:

"Mandamus is regulated by statute, and, in matters affecting the public interest, the action must be brought on the petition of the state by its Attorney General or a district attorney. It having been determined that the relators have suffered no legal injury other than that suffered by any other of the great body of the citizens and taxpayers of the state, or, in other words, that the matter is one affecting the public interest only, they are without right to maintain the action individually, or in the name of the state, but such suit could only proceed in the name of the state by its Attorney General or district attorney. The fact, if it be a fact, that the relators were unable to secure action in the name of the state by its Attorney General or district attorney, does not aid them or give them any right to proceed otherwise in a mandamus proceeding. [Emphasis added]” Id. at 826, 151 So. at 567.

The Hancock County case was cited approvingly in Madison County v. Mississippi State Highway Commission, 191 Miss. 192, 202, 198 So. 284, 287 (1940). There the Court, in holding that the proper remedy for Madison County was a writ of mandamus against the Highway Commission rather than a mandatory injunction, pointed out that the petition could not be filed by the county but could be filed for the state by the attorney general or district attorney since the subject of the suit was a matter affecting the public interest. See also Birdsong v. Grubbs, 208 Miss. 123, 43 So.2d 878 (1950).

Both the Madison County and the Hancock County cases were cited as authority in State ex rel. Cowan v. State Highway Commission, 195 Miss. 657, 13 So.2d 614 (1943). There the Court, with respect to the issue of whether or not a district attorney had the right to institute suit for the benefit of a county outside his district, asserted the fact that a petition for mandamus for a county in a matter affecting public interest could be brought only in the name of the state by the attorney general or a district attorney, and that a district attorney could not institute proceedings outside his district.

In Mississippi Live Stock Sanitary Board v. Williams, 133 Miss. 98, 97 So. 523 (1923), the question arose as to whether or not the Live Stock Sanitary Board had the right to petition for a mandatory injunction in its own name. The applicable statute, Mississippi Laws 1916, chapter 167, section 5 (section 5506 Hemingway’s Code), was as follows:

“The state live stock sanitary board shall, as far as practicable, co-operate with the federal authorities conducting the work of tick eradication and may accept aid from the federal government or any of its officers and agents in carrying out the work of tick eradication in this state, and it .shall be the duty of the said state live stock sanitary board to see that the county inspector discharge the duties imposed hereunder and carry out the provisions of this chapter, and said board may require the county prosecuting attorney or district attorney in this state to' institute suits, civil or criminal, for the purpose of carrying out the purposes of this act, and any person or officer charged with any duty under this act may be compelled to perform the same by mandamus injunction, or any other appropriate remedy.” Id. at 105, 97 So. at 525.

This Court held that such a suit must be brought by the district or county prosecuting attorney. The reasoning is best expressed in the Court’s own language:

“It is familiar learning that public bodies or subdivisions of the state, or agencies of the state, have only such powers as are conferred on them by law, and, unless the statute gives the power to sue and be sued, such boards or bodies have not the power to sue or be sued, Brabham v. [Board of Sup’rs of] Hinds County, 54 Miss. 363, 28 Am.Rep. 352; Anderson v. State, 23 Miss. 459; Freeman v. [Board of Sup’rs of] Lee County, 66 Miss. 1, 5 South. 516; 15 Corpus Juris, 663 et seq. Section 5, above quoted, is the only statute which has been called to our attention, or which we have found, that deals with the power to bring suit. The language in said statute:
“ ‘Said board may require the county prosecuting attorney or district attorney in this state to institute suits, civil or criminal, for the purpose of carrying out the purposes of this act, and any person or officer charged with any duty under this act may be compelled to perform the same by mandamus injunction or any other appropriate remedy,’ .
“ — in our opinion requires the suit to be instituted by the officers therein named, under the direction of the state live stock sanitary board. The statute is the measure of the power of such board to institute suits.” Id. at 105-106, 97 So. at 525.

It is contended that the circumstances in the instant case permit the failure to conform to such a technical requirement to be considered harmless error. The following quote by Justice Calhoon in Henry v. State, 87 Miss. 1, 39-40, 39 So. 856, 865 (1906), eloquently expresses a refutation of this contention. This case was on the question of whether or not the governor has a right to originate litigation. The Court said:

“In view of the authorities, and of the fact that we have a written Constitution undertaking to define powers, and in view of the spirit and genius of the government of these states of the American Union, we utterly repudiate any suggestion of any power in the Governor or any other officer, over and above the Constitution. We say, too, that, if the power sought to be exercised here could be thought a matter of doubt even, it must be decided that it does not exist. No court has ever deviated from the position of rejecting powers claimed which are doubtful. The Constitutional or statutory grant,must be plain. The whole people are vitally concerned in this principle, as much so as in that very mudsill of the Republic that the three departments must be kept inviolably coequal and independent each of the other. No argument can be based on the evils which might result if the Attorney General refuses to proceed. If this be a hiatus in the law, so be it until the Legislature shall see fit to act. Better the hiatus than the destruction of a great and essential principle, from which it is an easy leap to the crunching of the bones of the Constitution. But there is no trouble. It is a simple matter to bring this question here right. Until it is so brought before the people, sitting as this tribunal, it should not be considered any more than if it were between individuals. No court ever considered the merits of any cause after holding there was no right to sue. Judges do not sit as moot courts to hear academic disputation, in the decision of which their conclusions would be mere obiter dicta and without force. Nor must they yield and decide because the public may want a speedy decision. These walls are imperviously padded to public clamor, the howls of mobs, and the storms of political factions. [Emphasis added]”

We are constrained, therefore, to follow the statute on mandamus, as it is written, and in so doing it becomes our duty to reverse the judgment of the trial court, and to dismiss the cause of action. The judgment of the trial court is reversed, and the petition for a writ of mandamus is hereby dismissed, without prejudice to the state, or its proper agents, to file a petition to require the payment by the Board of Supervisors of Forrest County, Mississippi of funds earmarked for the use of the schools to the proper state agency as provided by statute.

Reversed on cross appeal, and petition for writ of mandamus dismissed. The cost of court will be divided.

JONES, BRADY, PATTERSON and INZER, JJ., concur.

ETHRIDGE, Chief Justice

(dissenting):

This case has been fully tried on the-merits, and is now presented to this Court. All of the judges are in agreement that the Board of Education of Forrest County is entitled to the funds in question in a properly brought suit. Yet the controlling opinion, on the cross appeal of the members of the Board of Supervisors, reverses and dismisses the application of the Board of Education for writ of mandamus, because the petition was not brought in the name of a nominal party, the State, through its attorney general or a district attorney. The result of this highly technical disposition of this litigation will be to delay for another year ultimate judicial decision of an important public question. The controlling opinion adds unnecessary complexities to the law of mandamus, by declining to apply, the doctrine of harmless error, and by utilizing an unnecessarily literal interpretation of the statute. For these reasons, I dissent from the dismissal of this suit.

I.

The controlling opinion holds that the suit should be dismissed, because of the non-joinder of a necessary party, the State of Mississippi. Appellees raised the defense of nonjoinder in the trial court by demurrer. Yet it is well settled that under the statutes the defense of nonjoinder or mis-joinder cannot be raised by demurrer. Aven v. Singleton, 132 Miss. 256, 96 So. 165 (1923). Mississippi Code 1942 Annotated section 1457 (1956) requires a defendant to give plaintiff written notice by plea “stating the name of the person alleged to be omitted or .improperly joined,” and the court before trial may then allow the suit to be amended to obviate the objection. See also Miss.Code 1942 Ann. § 1458 (1956). The purpose of this statute was to eliminate the type of technical issue on appeal which has been raised on the cross appeal here. Although appellees did not plead nonjoinder properly, the controlling opinion permits them to take advantage of this failure, and thus frustrates the purpose of code section 1457.

Aven v. Singleton, 132 Miss. 256, 96 So., 165 (1923), describes the legislative intent thus:

In our opinion it was the object of the legislature in the enactment of these several statutes to materially change the common-law procedure and to administer justice according to the rights of the parties, and to prevent the sending of the litigant from one court to another according to the technical rules of the common law. (Id. at 266-267, 96 So. at 167).

It is suggested that the Board of Education of Forrest County is a non-existent legal entity, and that therefore there was simply no person or entity to .serve as petitioner. Yet the board of education of each county is created by statute to supervise and administer the county school system. Miss. Code 1942 Ann. § 6271-01 (Supp.1966). It is authorized to employ an attorney to represent it. Miss.Code 1942 Ann. § 6252-12 (Supp.1966). Moreover, a county board of education has been recognized as a party litigant in several cases. Adams County Bd. of Educ. v. State Educ. Fin. Comm., 229 Miss. 566, 91 So.2d 524 (1956) (appeal from chancery decree); Dollar v. Board of Education, 227 Miss. 432, 86 So.2d 489 (1956) (taxpayer’s suit against county school board); Hopkins v. Lee, 217 Miss. 624, 64 So.2d 759, suggestion of error overruled, 217 Miss. 624, 65 So.2d 838 (1953) (appeal by members of county school board testing annexation of territory). Accordingly, the statutes and the decisions recognize and uphold the capacity of a county board of education to be a litigant. I suggest that under these circumstances it is a fiction to assert that the Board of Education of Forrest County, as such, cannot be a party to litigation.

White v. Miller, 159 Miss. 598, 132 So. 745 (1931), affirmed a judgment for the petitioner state tax collector in a mandamus proceeding. It was there contended that he was not authorized to prosecute the petition, but the Court held “the rule seems to be well settled that ‘public officers or boards may bring mandamus to compel the performance of official duties * * * which is necessary to enable them to perform their own duties.’ ” Id. at 603, 132 So. at 746.

To the same effect is 55 C.J.S., Mandamus § 45, at 75 (1948), which, citing White v. Miller, states that public boards may maintain mandamus proceedings to compel other officers to perform ministerial acts “which are necessary to be performed in order to enable such * * * board to perform its own duty.” Also in accord is 35 American Jurisprudence, Mandamus section 322 (1941).

A county board of education, in each county of the state, was created to supervise and administer the county school system and school funds. Miss.Code 1942 Ann. § 6271—01 (Supp.1966). In accord with White v. Miller, the Board of Education, in my opinion, properly brought this action to enforce the performance of ministerial acts necessary to be done in order to enable .it to perform its own duties.

Moreover, in the posture of this case, the harmless error doctrine is applicable. Mississippi Supreme Court Rule 11 (1967) provides :

No judgment shall be reversed * * * for error as to the matter of pleading or procedure, unless it shall affirmatively appear, from the whole record, that such judgment has resulted in a miscarriage of justice.

The real party in interest, for the purpose of this action, is the Board of Education of Forrest County. The case involves important issues as to the use of public school funds; .it has been decided by the trial court and presented to this Court. Sustaining the cross appeal merely produces delay in disposition of this public issue, by the technicality of processing the petition through the attorney general or a district attorney.

To warrant reversal, two elements must be shown: error and injury to the party appealing. Even if it is assumed that permitting this suit to proceed without being brought by the attorney general or a district attorney is error, no injury whatever to the party cross appealing has been shown. The case was fully and fairly tried with the limited issues clearly presented. Hence any assumed error is harmless and purely formal in nature. 5 Am.Jur.2d Appeal and Error §§ 776, 793 (1962); SA C.J.S. Appeal and Error §§ 1676, 1681 (1958). Moreover, the harmless error rule is applicable to mandamus proceedings. Trustees of Geeville Consol. School v. Gordon, 185 Miss. 739, 189 So. 97 (1939); 35 Am.Jur. Mandamus § 394, at 130 (194D; 55 C.J.S. Mandamus § 373g (1948).

Hancock County v. State Highway Commission, 188 Miss. 158, 193 So. 808 (1940), involved a judgment dismissing an appeal. The trial court also had dismissed the petition for mandamus. Hancock County did not overrule White v. Miller, 159 Miss. 598, 132 So. 745 (1931), and did not involve a cross appeal or the harmless error doctrine.

In 3 Davis, Administrative Law Treatise section 24.03, at 402 (1958), there is a perceptive analysis of the unnecessary technicalities and complexities which the courts in various states have engrafted upon mandamus. Davis concludes:

Any clear statement of the law of mandamus in the state courts is sure to be inaccurate because the law is unclear and variable not only from state to state but usually within each jurisdiction; the propositions to which the courts pay lip service are unclear and variable, and, what is worse, the courts in their holdings commonly violate the principles they enunciate. The judicial striving is of course toward a procedural system which will provide a workable and sensible system. * * * Anyone who can see the law of mandamus .in perspective — as judges seldom have occasion to do because of their focus upon individual cases — is sure to detect the futility of the continued warfare between the good sense of the judges and the harmful complexity of the doctrine. The obvious need is for a release of judicial common sense from the authority of technical intricacies.

In short, I dissent from the controlling opinion, because appellees did not properly plead nonjoinder as provided by statute. White v. Miller is directly in point, and the posture of this case calls for application of the doctrine of harmless error. Davis’ observations about mandamus are assuredly strengthened by the method of disposition of this case.

II.

Since in my opinion there is no merit in the cross appeal, it is necessary to comment upon the direct appeal, in order to define my view of an appropriate disposition of the case. The controlling opinion erroneously declines to render a judgment on the issue presented on the direct appeal, although I understand that all of the judges think that in an action brought through the State the appellant would be entitled to the relief sought. The case developed in the following manner.

In July 1967, the Forrest County Board of Supervisors advised the State Department of Education that although its past policy had been to allocate one-half of its severance tax refund monies to the Forrest County School District, it had concluded that because of the needs of the County road and bridge funds, it would distribute all future severance tax refund monies to the road and bridge funds to the exclusion of the Forrest County School District.

The issue is whether the statutes require a board of supervisors to allocate one-half of oil and gas severance taxes returned to the producing county by the state to the county board of education to be applied to the county’s minimum education program, or whether the board of supervisors may in its discretion allocate all or part thereof to other lawful purposes.

The Board of Education of Forrest County, Mississippi (also constituting and being the Board of Trustees of the Forrest County School District), began this action by filing a petition for writ of mandamus in the Circuit Court of Forrest County against W. U. Sigler and the other members of the Board of Supervisors of Forrest County. There are no factual issues, so the case was submitted to the circuit court in vacation on a stipulation of facts, and the petition was denied.

In 1944 the legislature levied a privilege tax upon every person engaged in the business of producing or severing oil. Miss. Code 1942 Ann. § 9417-02 (1952). Such severance, taxes are required to be paid into the state treasury to the credit of the general fund and to the county .in which the oil was produced, in designated portions. A porportionate amount of the funds returned to the county are allocated to its municipalities. Miss.Code 1942 Ann. § 9417-03 (1952). The last paragraph of code section 9417-03 provides:

The balance remaining of any amount of tax returned to the county after the allocation to municipalities, shall be divided among the various maintenance and bond interest funds of the county, school districts, supervisors’ districts, and road districts, in the discretion of the hoard of supervisors, and such board shall make the division in consideration of the needs of the various taxing districts. The funds so allocated shall be used only for such purposes as are authorized by law. (emphasis added).

Similar provisions for distribution of the gas severance tax were established in 1948. Miss.Code 1942 Ann. §§ 9417.5-02, 9417.5-03 (1952). The question is whether subsequent statutes have changed and restricted the discretionary power of the board of supervisors in allocating these severance tax refunds.

At an extraordinary session in 1953, the legislature enacted comprehensive legislation reorganizing the school districts of the state, and establishing a minimum public education program and methods of financially supporting it. Mississippi Code 1942 Annotated section 6248-04 (Supp.1966) (Mississippi Laws 1953 Extraordinary Session chapter 14, section 4) provides:

Determining the state funds needed annually to support the minimum education program. — (a) The total state funds needed annually by each county, excluding the separate school districts therein, for the support of the minimum education program shall be the cost of the minimum education program for that county as determined in Section 2 [§ 6248-02] of this act less the minimum local ad valorem tax effort required of that county, as provided in Section 3 [§ 6248-03] of this act, less the poll tax collection in that county for the preceding year, and less one-half of all refunds of severance taxes made by the state to the county for the preceding year-, provided, however, that in no case shall the total state funds provided in any year for the support of the minimum education program in any county be less than forty per cent of the cost of the minimum education program for that county as determined by Section 2 [§ 6248-02] of this act, and in the event the workings of this proviso should result in a lesser local contribution for the support of the minimum education program of the county than is otherwise required by this section then the local funds otherwise required for the support of said minimum education program shall be reduced or eliminated in the following order of priority: (1) Severance taxes; (2) Poll tax collections, and (3) the minimum local ad valorem tax effort, (emphasis added).

This section designates the total state funds needed by each county for support of the minimum education program. It is the total cost of the program for the county, less ad valorem taxes and poll tax collections, both of which are traditionally for school purposes, and less one-half of all refunds of severance taxes made by the state to the county. In short, under section 6248-04 state funds provide much of the cost of the minimum education program in a county, but the county must utilize the ad valorem and poll tax collections, and also one-half of all refunds of severance taxes by the state to the county. These factors are strong indications of legislative intent to establish not merely a formula for disbursal of state funds, but designation for school purposes of these three types of revenue received by the county.

Section 6248-15, Mississippi Code 1942 Annotated (Supp.1966), also enacted in the same chapter of the extraordinary session laws of 1953, is a general repeal provision:

Sections 6566, 6567, 6568, 6569, and 6570, Mississippi Code of 1942, as amended, chapter 374, Laws of 1950, and all other laws and parts of laws in conflict with the provisions of this act are hereby repealed.

Although a general repeal of inconsistent laws essentially involves a determination of whether there is an implied repeal, rather than an express repeal, it reflects a legislative intent and undertaking to repeal statutory provisions which are inconsistent with the act of which it is a part. 82 C.J.S. Statutes § 285 (1953); 1 Sutherland, Statutory Construction § 2013 (3d ed. 1943). It is true that the repeal of statutes by implication is not favored. Seward v. Dogan, 198 Miss. 419, 21 So.2d 292 (1945); 82 C.J.S. Statutes § 288 (1953). However, where two legislative acts are repugnant to or are in conflict with each other, the last one enacted will govern, control or prevail, and will supersede and impliedly repeal the earlier act, although it contains no express repealing clause. Implied repeal particularly applies where both statutes relate to the same subject, and the latter act is inconsistent with the former. Craig v. Dun & Bradstreet, Inc., 202 Miss. 207, 30 So.2d 798 (1947); Burdeaux v. Cowan, 182 Miss. 621, 181 So. 852 (1938); 82 C.J.S. Statutes § 291 (1953).

Appellees argue that repeal of a statute by implication violates Mississippi Constitution section 61, which states: “No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length.” However, that provision has no application to an amendment or repeal pro tanto by implication. Sartin v. Prentiss County, 156 Miss. 46, 125 So. 563 (1930).

The earlier statutes, code sections 9417-OS and 9417.5-03, placed discretion in the board of supervisors in the division of severance tax refunds among school districts and supervisors and road districts. However, the quoted later act, section 6248-04, expressly provides that the “total state funds needed, annually by each county” for the support of the education program shall be its cost for that county, less the required ad valorem tax effort, poll tax collections, and one-half of severance tax refunds to the county for the preceding year, (emphasis added). This, I think, is more than a definition of a mere optional formula for the board of supervisors to utilize. It specifically designates the traditional, school-support revenue sources of ad valorem and poll taxes, and also one-half of severance tax refunds.

Moreover, the title to chapter 14, Mississippi Laws 1953 Extraordinary Session, of which section 6248-04 is a part, states that it is an act to establish a minimum education program, and “to provide an equitable plan for the financial support thereof.” Section 6248-04 is a legislative definition of an essential part of that plan. It is wholly inconsistent with part of sections 9417-03 and 9417.5-03, the earlier acts, insofar as they pertain to division of severance tax refunds among “school districts.” Moreover, this inconsistency and repugnancy between the 1953 act and the earlier one is plain, unavoidable, and cannot be reconciled.

If there were any doubt under the 1953 act as to whether it impliedly repealed the prior discretionary power of the board of supervisors in allocating to the schools one-half of all severance tax refunds to the county, chapter 45, Mississippi Laws 1955 Extraordinary Session, eliminated that doubt, in our opinion. It is now codified as section 6248-04.5, Mississippi Code 1942 Annotated (Supp.1966). The title of chapter 45 defined the legislative purpose and designated the permissible use of one-half of severance tax refunds, as follows:

AN ACT to provide that where one half , of the Severance Taxes returnable to any county by the Tax Commission and to be applied to the Minimum Educchtion Fund under Section (4a), Chapter 14, Laws of the Extraordinary Session of 1953, is less than one half of all such refunds of Severance Taxes made by the State to the County for the preceding year, the County may borrow any such deficit and repay the loan with interest out of a special levy of taxes the next succeeding year, irrespective of the maximum tax limitation of the county, and for related purposes, (emphasis added).

Section 6248-04.5, the 1955 act, is short, consisting of only two sections. The first paragraph provides:

If, during any county fiscal year, it appears that one half (Y) of all severance taxes returned and to be returned to that county from the state tax commission, to be applied to the minimum education fund under the provisions of section 4(a), chapter 14, laws of extraordinary session of 1953 [§ 6248-04], is or will be less than one half (Y) of all severance taxes returned to that county during the preceding year, then, and only in that event, the board of supervisors of any such county may borrow under the terms of this act a sum not to exceed the amount of any such deficit. The purpose of any such loan shall be to guarantee the payment of the county’s local contribution to the minimum education program in an amount equal to one half (Y) of the severance taxes received from the state during the previous year. Unless it shall be necessary ’to borrow such funds in order to defray the above expense, no funds may be borrowed under this act; and, if such funds are borrowed, they shall be used exclusively for the purposes specified herein, (emphasis added).

If the school portion of returned severance taxes (one-half of the total returned) is less than the amount received for the preceding year, the above paragraph authorizes a county board of supervisors to borrow a sum not to exceed the amount of that deficit. This loan, if used, is for the purpose of guaranteeing the payment of the “county’s local contribution” to the education program; and such funds so borrowed must be “used exclusively for the purposes specified herein,” namely, support of the minimum education program of the county.

The second paragraph of section 6248-04.5 limits the interest rate and defines the methods of repaying the loan. The third and final paragraph manifests'a legislative intent to earmark one-half of severance taxes returned to a county for the school program. It states:

It is the intention of this act that funds borrowed under its provisions be used exclusively for the support of the minimum education program in that county and that no funds obligated from the return of severance taxes to the county be released or relieved from such obligation due to making such loan and that no funds paid or payable to the county from refunds of severance taxes to the county earmarked by section 4(a), chapter 14, laws of the extraordinary session of 1953 6248-04], be used for any purpose other than the support of the minimum education school program in said county. (emphasis added).

In this instance, therefore, the legislature expressly defined its intention. The funds borrowed are to be used exclusively for support of the county school program, no returned severance taxes so obligated shall be released from the obligation because of the loan, and no refunded severance taxes paid to the county, “earmarked” by the 1953 act, shall be used “for any purpose other than the support of the minimum education school program in said county.” Here the legislative intent is clear and unequivocal. The effect of the 1953 and 1955 acts is by necessity to repeal impliedly those parts of sections 9417-03 and 9417.5-03 which gave the board of supervisors discretionary power in allocating severance tax refunds to “school districts,” and to thereafter require that one-half of all refunds of severance taxes made by the state to the county be used to support the minimum education school program.

In summary, the 1953 and 1955 acts discussed above manifest a legislative intent to earmark one-half of all oil and gas severance taxes returned to the county by the state to the board of education to be applied to the county’s minimum education program. These statutes are repugnant to the earlier legislation in code sections 9417-OS and 9417.5-03, which granted the board of supervisors discretion in allocation, and thus to that extent the later statutes impliedly repealed the earlier. Jackson Municipal Airport Authority & DHM, Inc. v. Shivers, 206 So.2d 190 (Miss.Sup.Ct. Jan. 8, 1968); Ascher & Baxter v. Edward Moyse & Co., 101 Miss. 36, 57 So. 299 (1911).

For these reasons, I would reverse the judgment of the circuit court dismissing the petition for writ of mandamus, and render judgment here on the direct appeal for the appellant.

GILLESPIE, P. J., and SMITH and ROBERTSON, JJ., join in this dissent.  