Glover v. City Council of Columbus

• Decision Date: 11 June 1923
• Docket Number: 23516
• Citation: 132 Miss. 776,96 So. 521
• Court: Mississippi Supreme Court
• Parties: GLOVER, Mayor, v. CITY COUNCIL OF COLUMBUS et al

96 So. 521

132 Miss. 776

GLOVER, Mayor, v. CITY COUNCIL OF COLUMBUS et al

No. 23516

Supreme Court of Mississippi

June 11, 1923

Division A

(Division A.) January 1, 1920

1 PROHIBITION. Mayor exercises judicial or quasi-judicial functions in removing captain of police.

Mayor of city, in permanently removing captain of police, was exercising judcial or quasi-judicial functions, and writ of prohibition would lie to prohibit him from wrongfully exercising his judicial discretion.

2. MUNICIPAL CORPORATIONS. Mayor authorized to suspend captain of police, but not when suspension was in effect permanent removal before he had assumed office.

Under Columbus charter, authorizing mayor and council to remove officers appointed by them, and ordinances providing for appointment of captain of police and providing for suspension of policemen by mayor and report of suspension to the city council, the mayor had power to suspend police captain from duty, but not when suspension was in fact permanent removal immediately after appointment before the appointee was on duty.

HON. T B. CARROLL, Judge.

Appeal from circuit court of Lowndes county, HON. T. B. CARROLL, Judge.

Prohibition proceeding by the City Council of Columbus and others, against A. Y. Glover, Mayor of Columbus. From a judgment ordering the issuance of the writ, defendant appeals. Affirmed.

Judgment affirmed.

W. D. Houston, Sr. and Jr., for appellant.

The question here is merely the power of the mayor to suspend from duty the captain of police. The captain of police is not such a public officer as is contemplated by section 175 of the Constitution. The suspension here was not "for wilful neglect of duty or misdemeanor in office." The captain of the police police was not removed at all but only suspended and was not suspended on account of "neglect of duty or misdemeanor in office," at all. He is neither a constitutional nor an elective officer, nor has he any fixed term of office. He is not even a public official at all, but merely an employee of the city appointed by the mayor and council, with specific power in the mayor to suspend him. Neither his salary nor his powers or duties are fixed or prescribed by statute, but all are fixed or prescribed by the mayor and council, and he is subject to the direction and supervision of the mayor in the performance of his duties. See pages 88, 102, 103, and 107, Ordinances of City. The City ordinance, section 49, page 90, makes it the mayor's duty "to suspend from duty any policeman when he thinks the public interest requires it," of which he is left the sole judge absolutely and without limitation and without cause. While section 16, charter, and section 50, Ordinance says: "He shall report any appointment or suspension of policemen to the city council as soon as practicable, giving his reasons for his action," it stops there without saying the council can overrule him or re-instate the policeman; and this requirement to report his reasons for his suspension or action to the council, does not constitute a qualification or limitation upon such power of suspension by the mayor. See 28 Cyc. 435, note 97, citing State v. Williamson, 6 S.D. 119, 60 N.W. 410, specifically deciding this very question under exactly the same language. The case of McClure v. Whitney, 120 Miss. 350 at 371-6, 82 So. 259, absolutely settled the proposition that this captain of police is not a public officer within the meaning of section 175 of the Constitution of 1890, and that that section does not apply, but that he is a mere employee. In Beverly v. Hattiesburg, 83 Miss. 342, 35 So. 876, the court held: "An ordinance providing that an employee elected by the municipal board shall not be discharged except upon written charges, has no application to a policeman who was not so elected, but held his position under a commission. In State ex rel. Guess v. Miller, 88 So. 881-2, this court held that a deputy auditor appointed by the auditor of public accounts was not an officer within the constitution, section 20 or 175, and hence that the Code of 1906, section 236; Hemingway's Code, section 3495, authorizing his removal at the pleasure of the auditor, is valid. See 29 Cyc. 1405, heading, "Officers. Suspension." See also Sumpter v. State, 81 Ark. 60, 98 S.W. 719; Allen v. State, 32 Ark. 241; Ex parte Wiley, 54 Ala. 226; State ex rel. Lower v. Johnson, 30 Fla. 433, 11 So. 845; 29 Cyc. 1408 (c), heading, "Removal by Executive and Administrative Officers;" 29 Cyc. 1409 (d), heading, "Removal for Cause." The case of Trainor v. Board, 15 L. R. A. 95, and notes, pages 96 and 97, is quite applicable here. The court held that "the removal of appointive officers appointed at the will or caprice of the appointing power is not unconstitutional in the absence of any provisions to the contrary, and no charges need be preferred or notice given to the person sought to be removed for incompetency under a statute authorizing the removal of a person 'when in the opinion of the board he is incompetent,'" citing 1 Dillon Mun. Corp. section 250; Mechem on Pub. Officers, section 454. See also State v. Johnson, 30 Fla. 433, 11 So. 845.

John F. Frierson, for appellee.

The only question in the case is whether the mayor of the city of Columbus had the authority to dismiss and to prohibit the captain of police of the city of Columbus from serving as such after the said captain of police had been duly elected and had qualified. The city of Columbus acts under a special charter, a copy of which was filed as part of the transcript. This charter provides under section 16 on page 17 as one of the powers given to the mayor that he (the mayor), "shall have power when he thinks the public welfare requires, to temporarily increase the police force by appointing additional policemen, and he may suspend from duty any policeman whenever he thinks it necessary, reporting such appointment and suspension with his reasons therefor to the city council as soon as practicable." It seems that this section 50, requiring the mayor to report a suspension to the city council with his reasons therefor, could have no other purpose than that the city council should have the right to review the suspension and either to confirm it or to overrule it, either to continue it or to dismiss further suspension and reinstate the officer suspended. Judge CARROLL in his opinion has so succinctly stated the facts in the case that we quote at length. "The disinterested mind shrinks from the position taken that a man can be prejudiced and deprived of office to which he has been legally elected without trial and without opportunity to make good. The Constitution sets out the reason and the mode for removing an officer. It does not touch on suspension. While called by different names, there is no difference between removal and a permanent suspension, for in either event, the man is deprived of his salary and his right to earn it. The use of the word suspension carries with it the idea that it is temporary till there shall be a final determination whether the man shall be removed or not. The suspension here, if effective, is intended to amount to a removal from office. The mayor is not authorized by the charter to remove from office. . . . If the charter provision giving the mayor the right to suspend be valid, then in that event it being a matter within his discretion, no court has power to control that discretion--even if convinced that the mayor is mistaken in his judgment. I do not now attempt to control it. I merely hold that if the two provisions are to stand, they must be harmonized and construed together, and so construed, it means that the mayor has no power to either directly or indirectly force the council to elect any one not wanted by them on the penalty of allowing the office to remain vacant unless a man pleasing to him is chosen."

Aside from the above considerations that the mayor had no power or authority to prevent Morton from performing the duties of his office as captain of police, we respectfully submit that Mr. Morton was a public officer and that a public officer cannot be discharged from the office to which he has been elected or appointed except in the manner prescribed by law. The supreme court has decided that the penalty prescribed is mandatory and that the method of removal is exclusive, citing Runnel v. State, , S.W. 146; Hyde v. State, 52 Miss. 665; Ex parte Lehman, 60 Miss 967; State v. McDowell, 111 Miss. 596, 71 So. 867; Weir v. State, 111 Miss. 599, 71 So. 868; Lizano v. Pass Christian, 96 Miss. 640, 50 So. 981; Moore v. State, 45 So. 866; Mississippi State Board of Health v. Matthews, 113 Miss. 570, 74 So. 417; Monette v. State, 91 Miss. 662; McClure v. Whitney, 120 Miss. 350, 82 So. 259; Ex parte Brown, 72 So. 924.

Argued orally by D. W. Houston, Sr., and W. P. Stribling for appellant and Jno. F. Frierson for appellee.

HOLDEN, J. SMITH, C. J. concurring.

OPINION

HOLDEN, J.

This is an appeal by the mayor of Columbus from an order in vacation by Circuit Judge CARROLL, holding that the suspension from duty of appellee John A. Morton, captain of police of Columbus, by the appellant, Mayor Glover, was null and void, and ordering the issuance of a writ of prohibition against the mayor, prohibiting him from interfering with said John A. Morton as captain of police of Columbus in the discharge of his official duties as such.

The two points urged for reversal by the appellant are: That the writ of prohibition will not lie in such case, and that the mayor was acting within his lawful authority in suspending the captain of police; as is provided in the charter and ordinances of the city of Columbus.

The appellees make the opposite contention: That the writ of prohibition will lie to...