Ball v. Fitzpatrick

• Decision Date: 15 July 1992
• Docket Number: No. 90-CA-0359,90-CA-0359
• Citation: 602 So.2d 873
• Parties: Jackie BALL v. Robert FITZPATRICK.
• Court: Mississippi Supreme Court

Page 873

602 So.2d 873

Jackie BALL v. Robert FITZPATRICK.

No. 90-CA-0359.

Supreme Court of Mississippi.

July 15, 1992.

Wilbur O. Colom, Colom & Colom, Christy E. Massie, Columbus, for appellant.

Jeffrey C. Smith, Sims & Sims, Columbus, for appellee.

EN BANC.

ROY NOBLE LEE, Chief Justice, for the Court:

Jackie Ball appeals from the order entered by the Lowndes County Chancery Court which dismissed his complaint seeking declaratory relief, injunctive relief, and damages against Robert Fitzpatrick, raising three issues for review. We affirm.

Fitzpatrick holds two positions with the Lowndes County Governmental Unit: Veterans Administration Clerk and Inventory Control Clerk. His immediate supervisor is Robert Reynolds, County Administrator, who is employed by the Board of Supervisors (Board). The Board gives instructions to the County Administrator who in return transmits the orders to Fitzpatrick. The latter serves at the pleasure of the Board.

On July 3, 1989, Fitzpatrick was also sworn in as an elected member of the Council for the City of Columbus, Mississippi. According to Ball, Fitzpatrick was, in effect, serving in two separate departments of government--the executive and/or judicial and the legislative. Ball filed a complaint asserting that Fitzpatrick's conduct violated Article I of the Mississippi Constitution in that he could not serve or belong to two separate departments of government. Ball requested declaratory and injunctive relief and damages.

After trial, the Chancellor denied Ball's requested relief, determining that the two county positions held by Fitzpatrick were "ministerial" in nature and not public offices and that the Mississippi Constitution did not contemplate that these positions were ones in which the duties would be inconsistent or incompatible with the duties of an office in one of the other departments. All court costs were assessed to Ball. It is from this decision that Ball appeals.

I. DOES FITZPATRICK, AS TO EMPLOYMENT, EXERCISE POWERS BELONGING TO THE EXECUTIVE OR JUDICIAL DEPARTMENT OF GOVERNMENT FOR PURPOSES OF ARTICLE I, SECTION 2, OF THE MISSISSIPPI CONSTITUTION?

Ball contends that Fitzpatrick's position with Lowndes County and his position with the City of Columbus are held in violation of Miss. Const. art. I, Secs. 1-2, which provides:

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 magistrate, 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.

The separation of powers in the Mississippi Constitution is explicit. In discussing Article I, Sec. 2, this Court has stated:

[T]he drafters of the 1890 Constitution intended to strengthen the constitutional mandate for separation of powers in this state.

Alexander v. State ex rel. Allain, 441 So.2d 1329, 1335 (Miss.1983).

Ball contends that, as an employee of the Board, Fitzpatrick exercises executive and/or judicial powers. (Pursuant to Miss. Const. art. VI, Sec. 170, a board of supervisors is a branch of the judiciary.) The position of veteran service officer is authorized by Miss.Code Ann. Sec. 35-3-21 (1972). Although the statute refers to him as an officer and his campaign literature for City Council listed him as veteran service officer, Fitzpatrick maintains that his title is veteran service clerk as indicated in his job description. Fitzpatrick is also the inventory control clerk for the county.

As noted above, Article I, Sec. 2 prohibits anyone in one department of government from exercising powers in another. The parties emphasize the distinction between "officer" and "clerk" because the term "officer" connotes a position with more authority than the term "clerk." According to Black's Law Dictionary 1107 (5th ed. 1979), "the essential characteristics of 'public office' are (1) authority conferred by law, (2) fixed tenure of office, and (3) power to exercise some portion of sovereign functions of government; key element of such test is that 'officer' is carrying out sovereign function."

In Broadus v. State ex rel. Cowan, 132 Miss. 828, 96 So. 745 (1923), a similar question was addressed. In Broadus, a member of the board of supervisors accepted the office of trustee of a school district. The complainant contended that the office of supervisor was in the judicial department and that of trustee was in the executive department. This Court held:

The question presented is not without difficulty. The line of demarcation between offices in one department and those in another is often troublesome to determine, because in many instances the duties of offices in different departments are so linked together and dependent upon each other as not to be wholly separate, yet they are substantially so.

....

We think the office of school trustee is an administrative office, and would appear to have many duties of executive or ministerial, and quasi judicial character; and we are of [the] opinion the Constitution did not contemplate the office of district school trustee as being an office in one of the departments the duties of which would be inconsistent or incompatible with the duties of an office in one of the other departments.

The duties of a trustee are not wholly executive nor entirely judicial, but the office is largely ministerial, and we see no constitutional reason why a supervisor, an office in the judicial department, though also legislative and administrative in character, cannot consistently exercise the duties of the office of school trustee, which office is not in a wholly different department of the government as meant by section 2, art. 1 of our state Constitution. Therefore it is our judgment that the acceptance of the office of trustee by the appellant, Broadus, did not of itself vacate the office of supervisor held by him at the time.

Id. at 833, 96 So. at 746.

In Alexander, supra, this Court distinguished Broadus:

Broadus deals with separation of powers at the county level which, of course, is important, but it in no way is authority for the contention that a member of the legislative department may exercise powers at the core of the executive power.

Alexander, 441 So.2d at 1337 (emphasis added). See also In Re Anderson, 447 So.2d 1275, 1276 (Miss.1984), where this Court held that a person cannot serve as a justice court judge and a city law enforcement official.

In the case sub judice, the lower court's decision was based on its finding that Fitzpatrick's jobs with the Board are ministerial:

Without dispute the testimony shows the defendant as veteran's administration clerk does not have control over any employees. That he has no authority to set policy, has no fixed term of employment but serves at the pleasure of the board of supervisors. His primary duties are in aiding veterans and or their dependents in filling out forms for them to obtain benefits from the Veteran's Administration....

....

From the job description of veteran's administration clerk and the testimony at the hearing, it would be difficult to call such position other than a ministerial one. I am of the opinion that the Mississippi constitution did not contemplate the position of veteran's administration clerk as being an office in one of the departments, the duties of which would be inconsistent or incompatible with the duties of an office in one of the other departments.

....

... With respect to defendant's duties as inventory control clerk, the job description shows that he is to issue inventory control numbers to be affixed to county assets, maintaining up-to-date inventory of all county assets, et cetera. The proof shows that he does not have any employees under his supervision and does not make policy. His boss is the county administrator. He has no fixed term of office but serves at the pleasure of the board of supervisors.

From the job description of inventory control clerk and the testimony at the trial, the Court finds that the duties of defendant ... as inventory clerk are largely ministerial.

The lower court further held that neither of the positions was a public office.

Given Fitzpatrick's job descriptions, the lower court did not err in determining that Fitzpatrick does not exercise executive and/or judicial powers for purposes of Article I, Sec. 2. His duties as an employee of the Board do not allow him to exercise powers at the core of the executive or judicial departments.

II. DOES FITZPATRICK AS A MEMBER OF THE CITY COUNCIL OF COLUMBUS, MISSISSIPPI EXERCISE POWERS BELONGING TO THE LEGISLATIVE DEPARTMENT OF GOVERNMENT FOR PURPOSES OF ARTICLE I, SECTION 2, OF THE MISSISSIPPI CONSTITUTION?

Fitzpatrick concedes and the lower court correctly held that as a member of the City Council, he is a member of the legislative department of government.

III. SHOULD FITZPATRICK VACATE ANY OR ALL OFFICES HELD AS REQUIRED BY ARTICLE I, SECTION 2, OF THE MISSISSIPPI CONSTITUTION?

Since Fitzpatrick, as an employee of the Board, does not exercise any executive or judicial powers, he is not required to vacate any office for purposes of Article I, Sec. 2. Ball, however, also contends that Fitzpatrick should have to vacate his office on the City Council by virtue of Section 18 of the Charter of Columbus, Mississippi (1884):

[I]f ... any councilman shall accept any other office in this state, the office of such ... councilman shall thereby become vacant....

The charter was not introduced at trial. Ball contends that he referred to the charter in his brief to the lower court and that this...