McClure v. Whitney

• Decision Date: 30 June 1919
• Docket Number: 20697
• Citation: 120 Miss. 350,82 So. 259
• Court: Mississippi Supreme Court
• Parties: MCCLURE v. WHITNEY

82 So. 259

120 Miss. 350

MCCLURE v. WHITNEY

No. 20697

Supreme Court of Mississippi

June 30, 1919

Division B

1. COLLEGES AND UNIVERSITIES. Public officers. Removal. Office.

A person elected secretary treasurer, and business manager of Alcorn Agricultural and Mechanical College by the board of trustees, pursuant to section 12, Code 1906, is not a "public officer" of the state within the Constitution of 1890, section 175, providing the exclusive method of removing a public officer, but is a mere employee of the board of trustees.

2 SAME.

The essential distinction between an employment and an office is that in an office the duties and powers are prescribed by law, while in the case of a mere employee the duties and powers and compensations are fixed by the appointing boards.

HON. R E. JACKSON, Judge.

APPEAL from the circuit court of Alcorn county, HON. R. E. JACKSON Judge.

Proceeding in quo warranto by James McClure against P. D. Whitney. Petition dismissed and plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Powell & Mayes, for appellant.

By the appointment of McClure in 1916 for a term of four years under the unbroken line of decisions of this state for sixty years, he then and thereby became a public officer. In the case of Monette v. State, 91 Miss. 670, Justice MAYES, in delivering the opinion of the court, says as follows: "We have no hesitancy in declaring that a policeman is an officer within the meaning of section 20 of the Constitution of the state of Mississippi, and must be appointed for some specified time. Any law or ordinance which provides for the appointment of such an officer during good behavior is in violation of this section, and void. In the case of Shelby v. Alcorn, 36 Miss. 273, on page 289, 72 Am. Dec. 169, this court held that "a public officer is one who has some duty to perform concerning the public; and that he is not the less a public officer when his duty is confined to narrow limits because it is the duty and the nature of the duty which makes him a public officer and not the extent of his authority." Shelby v. Alcorn, 36 Miss. 273, 2 Am. Dec. 169; Kiersky 1. Kelly, 80 Miss. 803, 31 So. 901; Johnson v. State, 132 Ala. 43, 31 So. 493. The section of the constitution referred to above contemplates all persons who have any duty to perform concerning the public under any law of this state, whether it be under an act of the legislature, the constitution of the state, or a municipal ordinance. The ordinance in question not providing for a specified term of service for the policemen of the city, but authorizing the appointment during good behavior, is void."

In the case of Yerger v. State, 91 Miss. 815, which was a contest between rival claimants for the office of secretary of the penitentiary board, and the court said: "Under these authorities, the duty which Brown is to perform being a duty concerning the public, as contra-distinguished from a private employment, and his office being created by the statute, we do not think there can be any question as to his right to resort to the writ of quo warranto in this case, or that it can be doubted that he is an officer, within the meaning of this section of the statute."

To the same effect is Ware v. State, ex rel, Poole, 111 Miss. 589; State v. McDowell, 111 Miss. 569; State Board of Health v. Matthews, 113 Miss. 510; Lizano v. City of Pass Christian, 96 Miss. 640.

We could cite numerous other authorities from other states to show that McClure was a public officer, but we feel that in the light of the above decisions, it would be reflecting upon the intelligence of this court to do so.

If McClure was a public officer then we contend that the proceedings of the board of trustees at their meeting in June, 1918, in attempting to remove McClure from office, and appoint Whitney in his stead, was absolutely void, for the reason that he could be removed only by indictment and conviction before a court of competent jurisdiction.

Section 175 of our constitution reads as follows: "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."

In the case of the State Board of Health v. Matthews, 113 Miss. 526, Chief Justice SMITH, in delivering the opinion of the court, says: "Section 175 of our constitution provides the exclusive method by which a public officer may be removed from office. Runnells v. State, Wal. 146; Hyde v. State, 52 Miss. 665; Ex Parte Lehman, 60 Miss. 967; Lizano v. City of Pass Christian, 96 Miss. 640, 50 So. 873, Ann. Cas. 1915A. 123. Consequently section 2490, Mississippi Code of 1906, insofar as it authorized the state board of Health to remove a county health officer, is void."

It is contended by our friends, the enemy, that McClure never was an officer, because he failed to take the oath, as required by section 268 of our constitution, which section is as follows: "All officers elected or appointed to any office in this state, except judges and members of the legislature, shall, before entering upon the duties thereof, take and subscribe to the following oath, etc."

It will be noted that this provision of the Constitution provides no penalty for the failure to take the oath of office, or to give bond. It will be noted here also that this section draws a distinction between elective and appointive offices. Our contention is that when McClure was appointed in August, 1917, he thereby became an officer, and that the directions of the constitution, in regard to taking an oath and giving bond, were simply directory. In the case of the United States v. Benjamin F. Flanders, reported in 112th United States Supreme Court reports, Lawyers' Edition, on page 631, which was a case in which a revenue agent was suing for his salary and prequisites which accrued between the time of his appointment, which was on March 4, 1863, and the time of his taking oath of office and giving bond, which was on May 15, 1863, it was contended that he had no right to his salary or perquisites, because he was not an officer during that time. To this contention the Supreme Court of the United States, though Justice BLATCHFORD, says:

"His commission was dated March 4, 1863, and the Government permitted him to discharge the duties of his office and accepted his services from March 11, 1863. At that time, the Act of July 2, 1862, 12 Stat. at L. 502, was in force. It provided that every person appointed to any office of profit under the government, in any civil department of the public service, except the President, should, before entering upon the duties of such office, and before being entitled to the salary or other emoluments thereof, take and subscribe an oath or affirmation, the form of which is given.' Section 4 of the Act of July 2, 1862, 12 Stat. at L., 433, provided that before any collector of internal revenue should enter upon the duties of his office, he should give a specified bond, with sureties."

The court held in that case that this statute was directory, and that the revenue agent was entitled to his salary and fees from the time of his appointment, up to and including the time of his taking the oath and giving bond.

Referring to this act of Congress mentioned above, the supreme court of the United States, in the case of the United States v. Eaton, 169 U. S. Reports, on the bottom of page 772. Lawyers' Edition, says: "It is settled that statutory provisions of the chacter of those referred to are directory, and not mandatory."

"It seems to be well settled by the authorities that unless the law, in terms, declares a forfeiture or failure to qualify within the prescribed time, the law, which merely fixes the time for the elected officer to qualify, will be deemed directory. The rule is thus stated in the 23 Am. & Eng. Ency. of Law, page 357: "Statute prescribing the time within which an official oath shall be taken, or bond given or filed, is generally held directory, and failure to comply therewith does not, ipso facto, forfeit the office, and if the officer subsequently, and before the commencement of the proceedings complies with the requirements of the statute, he is entitled to the office."

The decisions of this court are in line with the decisions of other courts in holding similar laws directory. Marshall v. Hamilton, 41 Miss. 229; State ex rel. v. Laizer, 77 Miss. 146, 25 So. 153.

It will be noted that in this case, the constitutional provision in regard to taking the oath of office and giving bond, contains no penalty for failure to do so. It is further contended by our friends, the enemy, that while the constitution, in section 268, does not provide a penalty of removal from office and vacating the same because of failure to take the oath of office and give bond, yet that the act of the legislature, putting section 268 into effect, to wit: Laws of 1908, page 199, which is amendatory to the Code of 1906, section 3459, does provide a penalty and vacates the office unless the oath is taken and bond given, as required therein.

This section reads as follows: "If any person elected to any office shall fail to qualify as required by law, on or before the day of the commencement of his term of office, etc., a vacancy in such office shall occur thereby and, it shall be filled in the manner prescribed by law for the filling of such offices, etc."

It will be observed that this section, which is the only one either in the constitution or in the acts of the legislature which provides a penalty for failure to qualify by taking the oath and giving bond, does not designate appointive offices as...