Henry v. State ex rel. Coody

• Decision Date: 22 January 1923
• Docket Number: 23097
• Parties: HENRY, Ins. Com'r, v. STATE ex rel. COODY
• Court: Mississippi Supreme Court

95 So. 67

130 Miss. 855

HENRY, Ins. Com'r, v. STATE ex rel. COODY

No. 23097

Supreme Court of Mississippi

January 22, 1923

1 INSURANCE. State insurance commissioner not "tax collector" within Constitution, authorizing Governor to suspend pending investigation of accounts.

The state insurance commissioner is not a tax collector within the meaning of section 125 of the Constitution of 1890, under which the Governor is given the power to suspend alleged defaulting state and county treasurers and defaulting tax collectors pending the investigation of their respective accounts, and empowering him to make temporary appointments of proper persons to fill the offices.

2 STATE. State treasurer only state officer to which Governor's constitutional power of removal pending investigation of accounts applies.

The only state office to which this section applies is that of state treasurer.

3. OFFICE OF TAX COLLECTOR COUNTY OFFICE.

When this section of the Constitution was adopted there had existed for many years in the state the office of tax collector, with well-known duties and functions. And this was a county office, and was held by an incumbent empowered under the statutes to generally collect state and county taxes within each county.

4 COUNTIES. Governor's constitutional right to suspend state and county treasurers and tax collectors pending investigation of accounts pertains to incumbents of the offices, and not to their powers and duties.

This section of the Constitution deals with the incumbents of the three offices therein mentioned, and not with their powers and duties.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.

Quo warranto by the state, on the relation of Excell Coody against T. M. Henry, Insurance Commissioner, to remove him from office. From a judgment ousting defendant, he appeals. Reversed and dismissed.

Cause reversed, demurrer sustained, and proceedings dismissed.

Fulton Thompson, J. Harvey Thompson and R. H. Thompson, for appellant.

CONSTITUTIONAL METHODS FOR REMOVING STATE OFFICERS FROM OFFICE. The Constitution of 1890 very conclusively shows that the rights of officers to retain the offices to which they have been elected or otherwise chosen are sacredly guarded and respected by our fundamental law and that they can be removed or suspended from office only in conformity with one of the four constitutional provisions on this subject.

Our state Constitution provides the following methods by which state officers may be removed from office: 1st. Impeachment by the house of representatives and conviction after trial by the state senate. Mississippi Constitution 1890, sections 49, 50, 51 and 52. This applies to all civil officers whether constitutional or statutory. Appellant Henry has not been impeached, although the exhibits to the information show that a committee of the house of representatives at its 1922 session investigated his accounts and made special report to the house, falling far short of even recommending an impeachment.

2nd. Officers may be addressed out of office. The judges of the supreme court and of inferior courts may be removed from office by the governor on the joint address of two-thirds of each branch of the legislature, Mississippi Constitution of 1890, section 53. Of course, section 53 has no affirmative application to the case at bar, but to some extent, when read in connection with other constitutional provisions on the subject were intended to be exclusive and to forbid other proceedings seeking to remove officers from their respective offices. This section applies only to designated officers.

3rd. INDICTMENTS FOR CRIMES. "All public officers for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction shall be removed from office, and otherwise punished as may be prescribed by law." Mississippi Constitution of 1890, section 175, applicable to all officers.

Our client Henry, has not been indicted or presented by a grand jury, either for wilful neglect of duty or misdemeanor in office. If he be guilty as alleged by the governor and sought to be charged by the information in this case he should have been indicted by the grand jury, since a failure to pay over public money due the state treasury is a wilful neglect of duty, although it may amount to a felony, and every presumption is that the grand jury of Hinds county performed its duty by investigating the Insurance Commissioner's accounts and found that he was not a defaulter, and hence failed to indict him. However, as there is no pretense that Henry has ever been indicted as a defaulter it follows that section 175 of the Constitution has no other application to this case than its probative force showing that the provisions of the Constitution on the subject of removing officers from office are exclusive and forbid removals save in accordance with Constitution and warrants only a suspension of designated officers.

The section is in these words: "The governor shall have the power, and it is hereby made his duty to suspend alleged defaulting state and county treasurers and defaulting tax collectors, pending the investigation of their respective accounts, and to make temporary appointment of proper persons to fill the offices while such investigations are being made, and the legislature shall provide for the enforcement of this provision by appropriate legislation." It will be seen from the language of the section that it is a grant of power to the chief executive of the state, but at the same time it places distinct limitation on the power granted.

FIRST LIMITATION. The power granted the governor is the right to suspend from office alleged defaulting state and county treasurers and defaulting tax collectors; aside from the fact the section applies only to designated officers; the limitation is that the suspension shall be only "pending the investigation of their respective accounts." Emphasis must be placed on the word "pending" in the quoted phrase. No power is given the governor to suspend an officer of any kind after his accounts have been investigated, no matter what the investigation may have disclosed. This, we submit, is apparent, not only from the language of the Constitution conferring the power to suspend, limiting the suspension to the time the investigation is pending, but as well by the concluding clause of the section limiting the term of the governor's temporary appointee to fill the office "while such investigation is being made."

SECOND LIMITATION. The governor is without power under section 125 of the Constitution of 1890 to suspend from office any officer not specifically named in the section; that is to say, he may suspend pending the investigation of their respective accounts only alleged defaulting state and county treasurers and defaulting tax collectors; he is without power to suspend any other officer than those named in the section. The state insurance commissioner is not named in the section and he is not a tax collector.

We discuss the point just mentioned that the insurance commissioner is not a tax collector hereinafter, but will here say, while analyzing section 125 of the Constitution, that the section by its terms negatives the idea that every officer authorized to receive taxes of any kind is a tax collector. There is a distinction between a receiver of taxes and a tax collector. The section specifically designates defaulting state and county treasurers as well as defaulting tax collectors. If the terms "tax collectors" embrace and include officers into whose hands tax moneys are received, it would embrace state and county treasurers and it was useless to have inserted treasurers in the constitutional section we are now considering. The principal duty of state and county treasurers is to receive tax moneys and to account far the same. In this connection see Hubbell v. Board of Commissioners of Bernalillo County, 13 N. Mex. 546, S. C., 86 P. 430, defining a tax collector to be one whose duty it is to enforce the collection of taxes and does not refer to a county treasurer to whom taxes are paid, he having no power to enforce, their payment by tax payers. The Constitution makers had this very distinction in mind.

Section 125 of the Constitution must be read in connection with other sections of that instrument. We suggest that it must specially be read in connection with section 14 of the fundamental law, providing that: "No person shall be deprived of life, liberty or property, except by the due process of law." An officer has a property right to the emoluments of his office within the meaning of the section, and he has a right to continue in office until the expiration of his term, which, is more certainly sacred than a mere property right; his character for integrity is assailed by proceedings to remove him from office.

In fact, the due process of law clause of our Constitution must be treated as read into the section 125 and into every other section of the Constitution. The due process of law clause of the bill of rights and section 125 are not in conflict but are in perfect harmony when read and construed together. Section 4787, requiring the governor to notify the attorney-general in case of the state treasurer, or the proper district attorney in case of a county officer, of the facts, and require him to institute proper proceedings in court for the investigation of Henry's accounts and the judicial determination of the status thereof. To make the ex parte report of the examiner perform any other function is to deny the alleged defaulter due process of law. Careful consideration of this statute by the court is requested. When considered in...