Miller v. Globe-Rutgers Fire Ins.

Smith, C. J., delivered the opinion of the court.

This is a branch of the suit by the revenue agent to collect penalties alleged to be due the state because of alleged violations of the state’s Anti-Trust Laws (Hemingway ’s Code, section 3286<), dealt with by this court in the case of Ætna Insurance Co.

v. Robertson, 94 So. 7 , 95 So. 137 , 131 Miss. 343 . When’the cause against these appellants came on for trial in the court below, the bill of complaint was dismissed as to them, and the revenue agent has- brought the case to this court.

The appellees have filed a motion to dismiss the' appeal based on House Bill No. 90, approved February 23, 1926, and Senate Bill No. 76> approved March 12, 1926. The first of these statutes withdraws from the revenue agent the right to sue. for violations of the state AntiTrust Laws, and provides that:

“All civil suits heretofore filed by the revenue agent for a violation of the anti-trust statute of this state and now pending shall be dismissed by the court in which the same is pending -unless the governor and the attorney-general shall within (thirty) days from this date file in the said court written authority for the state revenue agent to proceed with the suit.”

The governor and the attorney-general have not authorized the revenue agent to proceed with this suit.

*491 The second of these statutes materially modifies the powers of the revenue agent, and expressly provides that:

“The state revenue agent . . . shall not now or hereafter bring, or prosecute any suit heretofore brought, under the authority of the anti-trust statutes of the state, or any suit abated by acts of the 1926 session of the legislature. ’ ’

We are not here called on to determine whether the second of these statutes repeals the first, for the reason, as hereinbefore stated, the governor and the attorney-general have not authorized the revenue agent to proceed with this suit, consequently that statute cannot here be invoked by himi.

The validity of the second statute is challenged by the revenue agent on the ground that it violates sections 1, 2, and 100 of the state Constitution. The first two of these sections deal with the distribution of powers among* the three departments of state government, and the argument is that the effect of the statute here under consideration is to abate pending suits, and therefore the legislature, by so providing, has usurped power which properly belongs to the judicial department. Section 100 of the Constitution -prohibits the legislature from remitting,, releasing, postponing, or diminishing the obligation or liability of any person, association, or corporation held by the state and its political subdivisions, and the argument is that this statute not only postpones, but in effect releases the obligation of the appellees to pay the state the penalties alleged to be due by them to the state for their alleged violation of the state’s Anti-Trust Laws.

While the effect of this statute is to abate pending suits broug’ht by the revenue agent under the anti-trust statutes, the abatement thereof results, not from any attempt on the part of the legislature to, exercise judicial power, but because of the exercise by the legislature of its purely legislative power of designating the duties to be discharged by a state officer. See section 103 of the state Constitution.

*492 The effect of section 100 of the Constitution on statutes of this character is a closed question, for it was expressly held in Johnson v. Reeves & Co., 72 So. 925 , 112 Miss. 227 , that they do not violate that section of the Constitution.

The statute is valid, and, since it withdraws from the revenue agent power to further prosecute this suit, the motion to dismiss the appeal must he sustained.

Motion sustamed, and appeal dismissed.