Lizano v. City of Pass Christian

• Decision Date: 17 January 1910
• Citation: 50 So. 981,96 Miss. 640
• Court: Mississippi Supreme Court
• Parties: FRANK P. LIZANO v. CITY OF PASS CHRISTIAN

50 So. 981

96 Miss. 640

FRANK P. LIZANO v. CITY OF PASS CHRISTIAN

Supreme Court of Mississippi

January 17, 1910

March 1910

FROM the circuit court of Harrison county, HON. WILLIAM H. HARDY Judge.

The city of Pass Christian, appellee, was plaintiff in the court below; Lizano, appellant, was defendant there. From a judgment of the circuit court affirming the action of the municipality in removing defendant from the office of marshal, defendant appealed to the supreme court.

The city of Pass Christian is governed by chapter 99 of the Code of 1906. Under an ordinance of the city, purporting to be pursuant to Code 1906, § 3332, the mayor and board of aldermen removed appellant from the marshalship of the city he having been duly elected marshal by popular vote, and had qualified and entered upon his duties as such; the ground of removal was dereliction of duty. Lizano appealed from such action to the circuit court where the cause was submitted to the trial judge and by him decided on a bill of exceptions containing the charges and evidence in support of the same.

Reversed and remanded.

J. H. Mize, for appellant.

Section 175 of our state constitution is mandatory and exclusive, and furnishes the only method of removal of a public officer. Runnel v. State, Walker, 146; Hyde v. State, 52 Miss. 665; Ex parte Lehman, 60 Miss. 967.

In Ex parte Lehman, 60 Miss. 967, at page 975, the court holds as follows: "Plainly these constitutional and statute methods of removal are exclusive of all others. The legislature has not attempted in any portion of our statute laws to provide for the suspension of any officers from office after indictment and pending trial for a criminal offense or misdemeanor in office. Such a law, if enacted, and if it operated as a practical removal from office before conviction, would be of doubtful constitutionality, since it would give to an indictment that effect which the constitution attaches to conviction only."

The same principle was laid down in the Hyde case, supra, and seems to have had its birth in this state in the case of Runnel v. State, supra.

Under these authorities, we contend that it is beyond the power of the legislature to provide any other method of removal of any public officer within the meaning of said section than that provided by section 175 of the constitution of Mississippi, namely indictment, trial, conviction and sentence, except as provided by section 139 of the constitution hereinafter discussed.

If the marshal of a municipality be a public officer within the meaning of the constitutional section 175 that ends the argument, since the section does not begin with the words "all public officers of the state," nor "all public officers of any division or sub-division of the state," but with the broad meaning language: "all public officers." There are a few cases to be found holding that where the word "officer" is referred to, it means an officer of a certain kind, or where the wording is "officers of the state," it means only state officers, and does not embrace municipal officers. But we have found no cases where a court has construed the words "all public officers" or "public officers" unrestrictedly not to include officers of a municipality. We think no such decision can be found. If any seemingly parallel decision has been rendered, we think, upon close reading, it will be seen that the word "officer" is in some manner limited. But in our state constitution, the word is not limited.

A constitution is not to be interpreted on narrow or technical principles, but liberally and on broad general lines, in order that it may accomplish the objects of its establishment and carry out the great principles of government. Black, Const. Law, § 47, p. 67.

Taking the words "all public officers" in their natural and popular sense they should naturally mean all county officers, all municipal officers and all state officers who who are public officers; and a public officer, as we understand it, is one who holds an office in the administration of the duties of which the public is interested. The mayor of a municipality is an officer within the meaning of section 2, of the constitution of Mississippi. Armstrong v. State, 91 Miss. 513. A city assessor is an officer within the meaning of section 266 of the Mississippi constitution. Kierskey v. Kelly, 80 Miss. 803. A fortiori, a city marshal is a public officer within the meaning of section 175, as the inhabitants of a municipality are generally much interested in the administration of the duties of the city marshal. It was held that a railroad policeman employed by a corporation is a public officer within the meaning of a constitutional provision that no public officer shall receive a pass over any railroad. Dempsey v. New York, etc., R. Co., 146 N.Y. 290, 40 N.E. 867.

It was held that a notary public was a public officer within a constitutional provision that any public officer who shall travel on a free pass shall forfeit his office. People v. Rathbone, 32 N.Y.S. 100, 11 Misc. 98.

An officer of a municipal corporation is a public officer within the meaning of a statute punishing delinquency as a misdemeanor. People v. Bedell (N. Y.), 2 Hill, 196, 199; 23 Am. & Eng. Ency. of Law (2d ed.) 431.

There is no ambiguity in section 175, and it should be construed in its ordinary and common acceptation, embracing all public officers, but even if the language were ambiguous, looking to the whole constitution of the state of Mississippi, as provided by the rule of construction above cited, in case of ambiguity it would appear that the mayor of a municipality is a constitutional officer within section 2 of the constitution, and that a city assessor is a constitutional officer within the meaning of section 266 of the constitution, which would go to show that our court has held that other city officials are constitutional officers within the meaning of other provisions of the state constitution where there was no limitation. Certainly then, there can be no reason found why a city marshal, elected by the people of a municipality, should not be held to be a constitutional officer within the provisions of section 175 of the constitution.

It was never the intention of the makers of the constitution that the mayor and board of aldermen of a municipality should be empowered to remove a municipal officer. Section 138 of the constitution provides that the legislature may empower the governor to remove and appoint officers in any county or counties or municipal corporation under such regulations as may be prescribed by law. The constitution nowhere provides that the legislature shall have the power to pass any law to remove an officer in any other way. When the constitution empowers the legislature to do certain things, the legislature can do these things, but cannot enlarge on them. A statute empowering the governor to appoint and remove officers in any county or counties or any municipal corporation would be constitutional; and, since the constitution gives the legislature this power, we may, by sound reasoning, infer that this was all the power the constitution intended to give the legislature to pass a law with respect to the removal of officers. If it...