Alexander v. State By and Through Allain
| Decision Date | 23 November 1983 |
| Docket Number | No. 54741,54741 |
| Citation | 441 So.2d 1329 |
| Parties | William B. ALEXANDER, Senator; Joseph L. Blount, Representative; Ellis B. Bodron, Senator; Thomas L. Brooks, Representative; Edward H. Beulow, Jr., Representative; Thomas H. Campbell, III, Representative; Archie L. Cates, Representative; Donald Ray Chambliss, Representative; Aubrey Mitchell Childre, Senator; Robert L. Crook, Senator; Algie Arnold Davis, Senator; Glen S. DeWeese, Senator; Lawrence G. Dubaz, Jr., Representative; W. Edward Ellington, Senator; Thomas A. Gollott, Senator; Carl J. Gordon, Jr., Senator; J.K. Gresham, Senator; Richard E. Hall, Representative; R.G. Huggins, Representative; H.L. Merideth, Jr., Representative; Theodore J. Millette, Representative; Joe Henry Mulholland, Senator; C.B. Newman, Representative; Charles Ray Nix, Senator; Edgar H. Overstreet, Senator; Emmett H. Owens, Representative; F. Edwin Perry, Representative; John William Powell, Senator; Don W. Richardson, Representative; James C. Simpson, Representative; George P. Smith, Senator; Q. Emerson Stringer, Jr., Senator; W. Terrell Stubbs, Representative; John H. Waldrop, Senator; Thomas H. Walman, Representative; and Charles L. Young, Representative v. The STATE of Mississippi, By and Through Bill ALLAIN, Attorney General. |
| Court | Mississippi Supreme Court |
E.L. Brunini, Sr., John E. Milner, Walter S. Weems, Brunini, Grantham, Grower & Hewes, Jackson, for appellants.
Bill Allain, Atty. Gen., Stephen J. Kirchmayr, J. Stephen Wright, Susan L. Runnels, Sp. Asst. Attys. Gen., Jackson, for appellee.
En Banc.
The separation of governmental powers is the basis of this suit. Article I, Sections 1 and 2 of the Mississippi Constitution provides:
THE CONSTITUTION
OF THE STATE OF MISSISSIPPI
Section 1. The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.
Section 2. No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments.
In broad terms the issue presented is whether Article I, Sections 1 and 2 should be interpreted faithfully to accord with its language or whether it should be interpreted loosely so that efficiency in government through permissive overlapping of departmental functions becomes paramount to the written word.
The executive, legislative and judicial departments of the state all serve the same constituency and are, of course, subject to and bound by the terms of the same state constitution. The interpretation of the constitution becomes the duty of the judicial department when the meaning of that supreme document is put in issue. As long ago as 1823, Runnels v. State, Walker (1 Miss.) 146, held it the duty of the judiciary to declare void any legislative enactment which may be repugnant to the provisions of the constitution and that this duty is paramount to the authority of the legislature. This coincides with the genesis federal case, Marbury v. Madison, 1 Cranch 137, 170, 2 L.Ed. 60 (1803), which held that congressional enactments contrary to the constitution are void, thus establishing the great difference in this nation's government from that of other nations. See also, State v. Wood, 187 So.2d 820 (Miss.1966).
It is universally accepted that the highest judicial tribunal of a state is the paramount authority for the interpretation of that state's constitution, subject only to the Constitution of the United States. In Highland Farms Dairy v. Agnew, 300 U.S. 608, 613, 57 S.Ct. 549, 552, 81 L.Ed. 835, 840 (1937), Justice Cardozo for the United States Supreme Court stated: "A judgment by the highest Court of a state as to the meaning and effect of its own constitution is decisive and controlling everywhere."
We are presently presented with interpretation of our constitution as it affects the rights and prerogatives of the executive and legislative departments of government.
We need express, to avoid misunderstanding, issues which are not presented. The litigants are each public officials having been duly elected to their respective positions. There is no intimation or charge of malfeasance, dishonesty or immorality in office or in the character of any litigant. Rather the issue is whether the members of the legislature have overstepped the restrictions imposed on them by the constitution and thereby encroached upon the powers constitutionally vested in the executive department.
This cause originated on April 7, 1982, when the legislators filed suit against Bill Allain in his official capacity as the Attorney General of the State of Mississippi. In response to an opinion letter from the Attorney General, the legislators sought a declaratory judgment:
1. That their concurrent service on the named state boards and commissions did not violate Article I, Sections 1 and 2 of the Mississippi Constitution of 1890 1; and 2. That the statutes providing for such service were constitutional. 2
Later in the same day the Attorney General, in his official capacity, brought an action against the legislators seeking a declaratory judgment:
1. That the named boards were in the executive department of government;
2. That the named statutes were unconstitutional insofar as they authorized legislators to serve as or to appoint members of the boards;
3. That the legislators were in violation of Article I, Sections 1 and 2 of the Mississippi Constitution of 1890.
Additionally the Attorney General sought a final judgment:
1. Ousting defendants-legislators, with the exception of Charles Young and Edgar Overstreet, from the legislature, or, alternatively, ousting them from the boards; and
2. Ousting Charles Young from the Board of Corrections.
Having been consolidated for trial, the causes were heard November 15-18, 1982, in the Circuit Court of the First Judicial District of Hinds County. On February 3, 1983, the trial court entered its final judgment, to become effective January 1, 1984, declaring the controverted statutes unconstitutional to the extent they authorized legislators to sit on the boards. Additionally the court declared the legislators were removed from the boards and, with the exception of Charles Young, ousted from the legislature.
On appeal there are presented four major issues:
1. Whether the Mississippi Constitution forbids legislators to serve on the subject boards;
2. Whether and to what extent the Mississippi Constitution prohibits legislative involvement in appointments to the executive department; and
3. Whether the legislature may constitutionally vest in the senate the power to confirm certain executive appointments; and
4. Assuming answers favorable to the Attorney General on one or more of these questions, what should be the form and substance of the relief granted?
Our task is the application of Article I, Sections 1 and 2 of the Mississippi Constitution of 1890, as we interpret it, to the facts of this case. In this enterprise, we are guided by several maxims of constitutional interpretation.
First we note that the constitution is presumed capable of ordering human affairs decades beyond the time of ratification, under circumstances beyond the prescience of the draftsmen. Albritton v. City of Winona, 181 Miss. 75, 102-103, 178 So. 799, 806 (1938).
In Moore v. General Motors Acceptance Corp., 155 Miss. 818, 125 So. 411 (1930), Justice Griffith stated for the court the underlying principles of constitutional interpretation.
So it is that words, separately considered and in the strictly technical sense in which used in a Constitution, and as defined at the day of their original use therein, do not of themselves immovably fetter the sense or intention, for, if that were held to be the case, the Constitution intended to stand for all time, or at least for a long time, would by such restriction make of itself only a temporary document; it would so enchain itself as to be incapable, in a healthful and uniform manner, of any expansion or development or movement with the living current of the times, and would thereby hold within its embrace the certain means of its own ultimate destruction.
155 Miss. at 823-24, 125 So. at 413.
Applying these maxims, we seek the intent of the draftsmen, keeping in mind "the object desired to be accomplished and the evils sought to be prevented or remedied." 155 Miss. at 822, 125 So. at 412.
By 1890 separation of powers was no longer a mere political theory from the untested works of Locke and Montesquieu. 3 There was available years of experience by the federal sovereign whose constitution implied but did not express separation of powers. Additionally, there was the example of other states of the union, each of which had divided its powers of government into three branches.
Most important is Mississippi's history. Each of our previous constitutions--those of 1817, 1832, and 1869--explicitly required the executive, legislative and judicial powers be vested in separate and distinct departments of government. By 1890, our citizens had enjoyed 73 years of statehood with our government so organized.
With the knowledge and experience available to the draftsmen of the Constitution of 1890, this conclusion seems inescapable: By articulating the doctrine of separation of powers in our constitution, the framers avoided the vagueness of the implicit doctrine of the Constitution of the United States.
More significant are the changes made in 1890 in the statement of the doctrine. First, while the...
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