
    Robert Jack vs. The State of Mississippi.
    J. having a claim against the state, the legislature passed a law by which the governor, the auditor, and commissioner of public buildings were authorized to examine J.’s accounts, and to make him such allowance as they might find him entitled to : Held, that if J. assented to the law by having his account examined under it, and they decided against him, he was precluded from making further claim.
    Where a bill was filed by J. against the state, to recover the amount of an alleged indebtedness, to which the state, by her officer, answered that the legislature had by law authorized the governor, the auditor, and commissioner of public buildings to examine J.’s accounts, and make him such allowance as they might find him entitled to ; and that they had examined J.’s accounts, and found that there was nothing due him ; held, that the answer of the state, setting up this matter in avoidance of the bill, must be established by strict proof; and the certificate of these officers to the effect set up in the answer, but which did not state that J. submitted his accounts to them for examination, or was present when his accounts were exhibited, will not be sufficient evidence to maintain the answer.
    On appeal, from the decision of the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    Robert Jack, on the Sth day of September, 1842, exhibited his bill against the state, averring that in the year 1841 he was employed by the state to make a large number of drawers, cases, pigeon-holes, slides, &c., for the purpose of holding the papers, &c. belonging to the room appropriated for the auditor’s office; for which work he was to be paid its reasonable worth ; that on the 20th day of May, 1841, he completed the work and delivered it to the state, which had used it ever since. That this work and materials furnished were worth $2822. That on the 20th day'of May, 1841, the state owed him for other previous work the sum of $1617 30, under a contract made in the years 1839 and 1840, for which the commissioner of public buildings had given him a certificate; that the state being thus indebted to him, he applied to the auditor for warrants in payment of the debt due him; the auditor issued him warrants for only $2200, leaving a balance still due of $2239, for which he prayed a decree against the state.
    John D. Freeman, Esq., attorney general, answered the bill on the part of the state, denied that Jack was employed to do the work for which he claimed payment, by any authorized agent of the state; but admits that the work was done by Jack and used by the state; denies that Jack furnished any of the materials, or was entitled to $2822 for the work; or that the state owed him for previous work $1617 20. That all the work and materials ever furnished or done by Jack for the state, were worth the sum of $5006 96, and no more; and that the state had paid him the sum of $5200. That during the session of the legislature of 1842, the complainant presented all his claims against the state to the legislature for allowance; that the legislature did not allow the claim, but passed an act, entitled “ an act making appropriations for certain persons therein named ; ” wherein among other things it was provided as follows, viz.: That the governor, auditor of public accounts, and commissioner of public buildings of the state, should examine into the account of the complainant, for work done in the auditor’s office and representatives hall, and if they should think him entitled to any compensation in addition to the two thousand two hundred dollars already allowed him, they should make such allowance as to them might seem proper, not exceeding the sum of sixteen hundred dollars, which sum, when allowed, was thereby appropriated. This act was approved February 28, 1842. That subsequently to the passage of the act, the complainant voluntarily and repeatedly requested the parties named in it to examine his accounts, and insisted on their doing so; they accordingly appointed a day for that purpose, and gave notice to the complainant to be ready with his witnesses to prove his claim; that on that day the complainant appeared before them with his accounts and witnesses; that after hearing all the evidence and examining all the proof, it appeared satisfactorily to the governor, auditor, and commissioner of public buildings, that the state had overpaid the complainant in the sum of one hundred and ninety-three dollars and four cents, which sum was due the state by the complainant; their award filed with the answer, was in these words, viz.:
    
      “ We, T. M. Tucker, James E. Mathews and R. S. Graves, having been appointed by an act of the legislature, approved 28th February, 1842, to examine into the accounts of Robert Jack, for making desks in the representative hall and work in auditor’s office, do hereby certify that we proceeded to examine all of said Jack’s accounts which he produced against the state, and after examining the witnesses introduced by said Jack on oath, as to the value of his work, we awarded him as follows : (Here follows in the award a detailed statement of the mutual accounts; the debit side against the state amounting to $5006 96; its credit side being $5200.) Making amount paid Jack more than allowed, $193 04.
    T. M. Tucker,
    James E. Mathews,
    Richard S. Graves.”
    The complainant took testimony by which he fully established the truth of his accounts exhibited with the bill; it is not deemed necessary to set it out at length.
    Upon this state of pleadings and proof, the cause was submitted for final hearing. The chancellor dismissed the bill and the complainant appealed.
    
      W. Yerger, for appellant.
    The pretended action of the commissioners under the act of 1842, set up in avoidance of the complainant’s claim, will be necessarily disregarded by the court in its decision, upon the well-known rule in equity, that all matters in avoidance, not being responsive to the allegations of the bill, must be proved, or otherwise the same will be disregarded. 2 Stew. R. 280; 2 McCord’s Ch. R. 156; 1 Gill and Johns. R. 272.
    Under the general authority given to the auditor, and the duty enjoined upon him to file and preserve in his office the receipts, vouchers, accounts, &c. pertaining to his office, he would have had power to employ complainant to do the work done by him in the auditor’s office, without any special authority for so doing. H. & H. Dig. 270; 2 Brock. R. 110.
    And upon the pleadings and proof, it seems to me that there can be no doubt as to the complainant’s right to the relief asked for. /
    A doubt has been suggested as to the jurisdiction of the chancery court in this case, which doubt has grown out of the act of the legislature of 1842, appointing the governor, auditor and treasurer, commissioners to examine into the account of complainant, and to allow it, if deemed just by them. If I did not misconceive the doubt of the chancellor, he thought that this law, creating a special board of commissioners to try this claim, operated pro tanto a repeal of the general law. Upon an examination of the constitution, and those principles of the law deemed applicable to this case, I am satisfied all doubt must vanish from the mind of the chancellor.
    The tenth section and seventh article of the constitution declares, that “the legislature shall direct by law in what manner and in what courts suits may be brought against the state.”
    This power was exercised by the legislature of 1833, which directed suits to be instituted in the chancery court against the state.” H. & H. 523.
    The legislature could not, without a palpable violation of its duties, have omitted “ to direct by law in what court suits might be brought against the state.” 3 Story on Constitution, 449; 1 Wheat. R. 304-316.
    The constitution further provides, that “ the powers of the government of the state shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit, those which are legislative to one, those which are judicial to another, and those which are executive to another; ” and “ no person or collection of persons being of one of these departments, shall exercise any power properly belonging to either of the others.” Art. 2, sec. 1 and 2.
    
      Now it is manifest, that the act of 1842 is palpably unconstitutional and void, if it were thereby intended to confer upon the governor, auditor and treasurer, the powers of a court, to hear and determine this question. It is clear, however, that the legislature only intended to create a board of commissioners, to whose decision the complainant might or not, according to his pleasure, submit his case for decision.
    But again, if it be contended that this act of the legislature were intended to take away the right of complainant to bring suit against the state in the chancery court, it is a palpable violation of the fourteenth article of the declaration of rights, which declares, that “ all courts shall be open,” &c., and being partial in its nature, operating only upon one individual, and taking away a general right conferred by the constitution upon all citizens, is clearly void. 2 Yerg. R. 524, 599.
    If it be admitted, however, that the legislature intended by this act to create another court, with power to hear and determine the complainant’s claim, and that such law be constitutional, still complainant’s right to avail himself of the general law of the land and the courts open to all citizens, is not taken away unless express negative words be used for that purpose.
    On this subject the rule of law seems to be universal, that where a statute gives an affirmative remedy, without a negative, express or implied, for a matter which was actionable at common law, or for which there existed another statutory remedy, the party may still pursue the remedies which he had previous to the passage of the last named statute; the remedies being deemed cumulative. 5 Johns. R. 175; 9 Ibid. 507; 10 Ibid. 389 ; 15 Ibid. 220; 5 Cow. 165 ; 9 Ibid. 437; 10 Wend. 441.
    
      John D. Freeman, attorney-general, for the state.
    The plaintiff had submitted his account to the legislature, to be audited and allowed ; that body appointed referees to settle the claim, and plaintiff agreed to the appointment, and submitted his claim to them. He now files his bill in chancery, regardless of the award of the referees. This is error. See Am. Chancery Digest, Title Award, and cases there cited.
    
      On the point of jurisdiction it appears from the answer, that in the year 1842 Jack presented his claims against the state to the legislature for settlement, and that the legislature appointed the governor, auditor, and commissioner of public buildings, to examine said claim, and to allow said Jack such sum as said commissioners might think to be due him, not exceeding $1600, which sum was appropriated to pay said Jack’s claim, when ascertained by said commissioners.
    Jack submitted his claims to said commissioners, who find him overpaid by the state; he then filed his bill in chancery, and the attorney-general plead a previous adjudication in bar of the jurisdiction of the court.
    The legislature is empowered by the constitution to direct by law in what manner, and in what courts suits may be brought against the state. See sec. 10, art. 7.
    
    In 1833 a general statute was passed, allowing persons having claims against the state to file bills in chancery. In 1842, a special statute was passed, appointing commissioners to hear and determine Jack’s claim.
    The right of the legislature to pass these acts is derived from the clause of the constitution above quoted. They direct in what manner and in what courts suits may be brought against the state. It is a well settled rule of interpretation, that a special statute in derogation of a general statute, is an exception to the general statute. The special statute therefore, appointing a tribunal to try Jack’s claim, took away his right to file his bill in chancery acquired by the general law of 1833.
    The provision in the 14th article of the declaration of rights, that “ all courts shall be open,” «Sec., does not apply to cases wherein the state is a party. The state can only be sued by her own permission, and in the manner directed by law.
    It is contended, by the opposing counsel, that the legislature had no power to create a court to try Jack’s claim. By the 24th section of article 4th of the constitution, it is provided, that the “legislature may, from time to time, establish such other inferior courts as may be deemed necessary, and abolish the same,” «See. This power is conclusive against the position above stated.
   Per Curiam.

The complainant filed his bill to recover of the state the value of cabinet work done in the capítol. He claims the sum of $2822 for cases, drawers, &c. for the room appropriated as the auditor’s office; and he also alleges that the state was previously indebted to him in the sum of $1617 for work previously done, and to support the last charge, exhibits the certificate of the commissioner of public buildings, by which the charge is fully established. The attorney-general answered denying the indebtedness, and relied also in the answer on an act of the legislature passed in 1842, by which the governor, the auditor, and commissioner of public buildings were authorized to examine Jack’s accounts, and to make him such allowance as they might find him entitled to. The answer avers that complainant had his accounts examined under the provisions of this act, and it was found by the individuals appointed, thathe had been overpaid. There was such an act passed as that described in the answer, and if Jack assented to the law by having his accounts examined under it, he is precluded from making further claim. As an award it would bind him. But it is said this part of the answer was not responsive to the bill, and being a matter in avoidance, strict proof of the truth of so much of the answer was necessary. This is the true principle, and it applies in the present case. The complainant introduced proof that he had performed the work charged, and that at the current rates it was worth the sum claimed ; but the attorney-general omitted to introduce any proof of the submission of Jack, or of his appearance before the commissioners, except, their certificate, which is but an exhibit, and not competent proof that Jack appeared before them. Indeed the certificate or award does not state that .he appeared or was present. It only states that they examined his accounts, and his witnesses. This might have been done without the knowledge or approbation of Jack, as his accounts or copies may have been presented to some of the public officers. Still it is possible Jack may have submitted his accounts for examination. If so, he is bound by the award, if it was fairly made. Whether an inquiry into such fact may be proper on the taking of an account, if one should be ordered, we need not now decide. The decree must be reversed, and the cause remanded to the superior court of chancery for further proceedings; when, if it be made to appear that Jack was present or submitted to the arbitration, he will not be entitled to a decree in his favor.  