McCool v. State ex rel. Howie, Dist. Atty.

• Decision Date: 02 January 1928
• Docket Number: 26664
• Citation: 115 So. 121,149 Miss. 82
• Court: Mississippi Supreme Court
• Parties: MCCOOL et al. v. STATE ex rel. HOWIE, DIST. ATTY. [*]

115 So. 121

149 Miss. 82

MCCOOL et al. v. STATE ex rel. HOWIE, DIST. ATTY. ^[*]

No. 26664

Supreme Court of Mississippi

January 2, 1928

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

Quo warranto by the state, on the relation of J. H. Howie district attorney, to remove D. C. McCool and others aldermen of the city of Canton, from office. From a judgment for the relator, defendants appeal. Reversed, and judgment rendered for defendants.

Judgment reversed.

T. S. Ward, H. T. Huber, E. B. Harrell and H. B Greaves, for appellants.

I. Who are Public Officers under section 266, Constitution of Miss.? Are City Officers Public Officers? See Kierskey v. Kelly, 80 Miss. 803; Lizano v. Pass Christian, 96 Miss. 540; State v. Armstrong, 91 Miss. 513.

II. The appellants, being constitutional officers, what jurisdiction has the circuit court to entertain this writ, and enter judgment of ouster, without appellants having first been indicted by a grand jury and convicted, and even then, did the circuit court, or the Governor have the right of removal and again, are their successors to be appointed by the Governor as members of the board of mayor and aldermen, or elected by the people? Nowhere do we find any statute authorizing the circuit court to remove any officer for failure to perform any duty before indictment and conviction. Section 5990, Hemingway's Code, Section 3430, Code 1906, if constitutional, vests the power of suspension and removal in the Governor, and since the ascertainment of the necessary facts to bring a member of the board of aldermen within the purview of this statute (conceding for argument sake it is valid), is strictly a judicial province; all the circuit court could possibly do under this statute, would be to ascertain whether or not the facts alleged existed and if found to exist, it is, under this section, up to the Governor to suspend and appoint the successor, pending indictment and conviction.

Again, this section gives the Governor the right to appoint a successor, "Who shall hold until the next election and qualification of officers thereunder." The last quoted paragraph is directly in conflict with section 6824 of the same Code (section 4190 of the Code of 1906), if we construe this to mean next general election. Section 6824, Hemingway's Code, vests this appointing power in the "board of aldermen of said city, town or village," if term does not exceed six months and if more, by an election. If both sections are valid, here is a direct conflict. Which section governs? This court has repeatedly held that only upon conviction for wilful neglect of duty or misdemeanor in office can an officer be removed, and that such is the exclusive mode of removal. Hyde v. State, 52 Miss. 665; State v. Glennen, 93 Miss. 836; Lizano v. Pass Christian, 96 Miss. 640. A conviction before a justice of the peace is not sufficient. Moore v. State, 45 So. 866; Ex parte Lehman, 60 Miss. 567; State Board of Health v. Mathews, 113 Miss. 510. See, also, Mayor of Jackson v. State, 102 Miss. 663; Ex parte Brown, 112 Miss. 236.

It is provided by section 6, chapter 325, Acts of 1924, that the refusal or neglect of any officer to perform any of the duties provided in that chapter required of such officer will subject the person offending to removal and also will constitute a misdemeanor, etc. By provisions of section 3430, Code of 1906, being section 5990, Hemingway's Code, under certain conditions, it is provided: (a) "The mayor and aldermen shall be suspended from office; and (b) "The Governor shall appoint their successor." Both of these propositions are in direct conflict with the Constitution. The first part (a) could be upheld by construing it in harmony with section 175 of the Constitution, and requiring that such offender must first be indicted by a grand jury and convicted in the circuit court by a petit jury. This is the only possible way this provision can be held constitutional.

This court construed a like provision (in sec. 6, ch. 325, Acts of 1924), in State, ex rel. Knox v. Board of Supervisors, 141 Miss. 701, 105 So. 541, which seems to uphold our contention, viz.: "That before appellants can be removed, they must be indicted and convicted."

Again, while the section is silent, as to who shall suspend such offender, whether a justice of the peace, judge, chancellor, or Governor, the presumption would be it was intended to vest this power in the Governor, or if the circuit judge, then he could only suspend on indictment and conviction. But, the legislature is powerless to authorize the Governor to suspend any officer. Section 125 of the Constitution fixes what officers the Governor may suspend, and limits such to the treasurer, and tax collector, and authorizes the legislature to provide for enforcing this. This precludes the idea that the legislature can empower the Governor to remove or suspend any other officer. See Henry v. State ex rel. Coody, 130 Miss. 855, 95 So. 76. It does not require argument to show the Constitution never intended to invest a justice of the peace, judge or chancellor with the arbitrary power to remove an officer before indictment and conviction, but only can such officers be removed after indictment and conviction. A conviction on an affidavit is not sufficient--indictment is a prerequisite. (b) "The Governor shall appoint their successor." This provision is in direct conflict with section 4190, Code 1906, section 6824, Hemingway's Code, which provides for appointments of members of the board when unexpired term does not exceed six months, and by election where longer. Ex parte Lehman, 60 Miss. 967. This case has repeatedly been cited and approved by this court in Lizano v. Pass Christian, Henry, Ins. Com., v. State ex rel. Coddy, and State Board of Health v. Mathews, all supra. Appellants have never been indicted or convicted, therefore, the circuit judge could not remove them from the offices they hold.

Since increasing the municipal debt without submitting the same to a vote is a misdemeanor, the only way to remove an officer for such is by indictment and conviction. The only provision of the statute that such officer shall be ineligible to succeed themselves is a part of the punishment prescribed by the statute on conviction. It is true that section 80 of the Constitution directed the legislature to enact laws to prevent municipal corporations from abusing their power to tax and borrow money, and it was evidently in view of this provision that section 5990, Hemingway's Code (3430) was passed. Section 5990, Hemingway's Code, simply sets out additional causes for indictment under section 1302, Code 1906, and conviction, and also provided an additional punishment, that such offending aldermen could not succeed themselves. These two statutes must be construed together, and with due regard to section 175 of the Constitution of the state of Mississippi. State v. Glennen, 93 Miss. 836. In State v. Cavett, 78 Miss. 851, the court had under consideration this section where quo warranto proceedings were filed against Cavett to remove him from the office of alderman of the city of Jackson. The constitutionality of this section was passed by the court, because the cause was dismissed on other grounds.

IN RESPONSE TO THE COURT'S REQUEST.

T. S. Ward, H. T. Huber, E. B. Harrell and H. B. Greaves, for appellants.

The rule adopted by all of the courts is that where a state Constitution prescribes the qualifications of a constitutional office, the legislature has no authority to prescribe additional qualifications, or to remove any of the requirements provided for in the Constitution, unless the Constitution expressly or by necessary implication gives the legislature that power. Section 80 of our present Constitution reads as follows: "Provisions shall be made by General Law to prevent the abuse by cities, towns and other municipal corporations of their power of assessment, taxation, borrowing money and contracting debts." This section does not hint at any right given the legislature to disqualify an alderman.

First: Can the legislature, under this section, prescribe the qualifications for holders of offices of aldermen? Second: Does section 250 of the Constitution expressly or by implication prevent the legislature from adding to or taking from the qualifications necessary to hold office? Third: Is there any difference between the power of the legislature to prescribe additional qualifications for an office named especially in the Constitution, and those not so named? See Lizano v. Pass Christian, 96 Miss. 641; Madison County v. Howard, 119 Miss. 113; Board of Highway Commission v. Warren, 121 Miss. 269, 83 So. 470; Wynn v. State, 67 Miss. 312.

The supreme court of Ohio has held apparently in conflict with the opinion of our court. See State ex rel Attorney-General v. Covington, 29 Ohio 102, but a perusal of that case will show that the Constitution of the state of Ohio then in force distinctly gave the legislature the power to prescribe additional qualifications for the superintendent of education. In Darrow v. People, 80 Colo. 417, the legislature added the requirement of paying taxes to the qualification of aldermen, when the state Constitution provided as follows: "No person, except a qualified elector shall be elected or appointed to any civil or military office in this state." The question presented to the supreme court was, would this section of the Constitution prevent the legislature from adding property qualifications for holding the office of alderman to the constitutional provisions. The court used this language: "But it will be observed that the language used is negative in form. That is it simply prohibits the election or appointment to office of one not a...