McMullan v. State, 48230

• Decision Date: 12 August 1974
• Docket Number: No. 48230,48230
• Parties: J. E. McMULLAN, Defendant-Appellant, v. STATE of Mississippi and Marcus D. Gordon, District Attorney, on relation of Robert A. Weir, Jr., Relator-Appellee-Cross-Appellant.
• Court: Mississippi Supreme Court

Page 708

298 So.2d 708

J. E. McMULLAN, Defendant-Appellant, v. STATE of Mississippi and Marcus D. Gordon, District

Attorney, on relation of Robert A. Weir, Jr.,

Relator-Appellee-Cross-Appellant.

No. 48230.

Supreme Court of Mississippi.

Aug. 12, 1974.

Everett & Blount, Decatur, Wells, Gerald, Brand, Watters & Cox, Jackson, Jack W. Brand, Newton, for appellant.

Pigford, Hendricks & Fields, Meridian, S. T. Roebuck, Newton, for appellee.

PATTERSON, Justice:

J. E. McMullan was removed from his position as Mayor of the City of Newton by a judgment of the Circuit Court of Newton County. The suit was one of quo warranto on the relation of Robert A. Weir, Jr., who had been defeated by McMullan in the Democratic primary as a candidate for the office. The judgment directed a special election for the selection of a new mayor to fill the vacancy in office created by the mayor's removal. Both parties appeal.

The issue on direct appeal is whether McMullan was qualified to seek and hold the office of Mayor of the City of Newton.

The issue on cross-appeal is whether Weir is entitled to the office in the event there is a legal vacancy of office. We reverse on direct appeal and affirm on cross-appeal.

In 1957 McMullan was first elected Mayor of Newton and has served continuously in such office until his dismissal in the present suit. He owned an interest in a local hardware store when first elected and has subsequently become its sole proprietor. Weir has charged him with misconduct in office by way of approving city warrants payable to his hardware store for supplies and materials purchased by the city. These warrants span the interval from the time of McMullan's first election in 1957 until the violation was called to his attention in March 1973. The total of the purchases from the mayor's hardware concern was $12,842.60. Purchases of a similar nature were made during this time from other hardware stores of the area.

McMullan and Weir were candidates for the office of Mayor of the City of Newton in the Democratic primary in May 1973. In this election McMullan received 572 votes for the office and Weir received 426 votes. The primary election and its result were not contested by Weir and McMullan was unopposed in his bid for office in the following general election. He was elected and entered into his fourth term on July 2, 1973.

Thereafter, on July 12, 1973, a quo warranto petition was filed in the name of the district attorney on the relation of Robert A. Weir, Jr., challenging McMullan's right to the office. The petition sought to have McMullan removed from office and Weir installed due to the former's alleged malfeasance in purchasing city supplies from his hardware business. Numerous pleadings were filed, but the case was ultimately heard on its merits with the result mentioned.

McMullan has been neither indicted nor convicted of the violation of Mississippi Code Annotated section 21-39-1 (1972) which prohibits a mayor or other public official from engaging in contracts or other business between his official office and his private business. He testified that the last sale by his store to the city occurred in February 1973 and that the warrant for this purchase was signed by him in March 1973. His position with regard to the matter is that he was unaware of the statute, did not realize that he was in violation of it and discontinued the practice when it was called to his attention. The posture of the case is that of an admitted but involuntary violation of the statute by the mayor in former terms of office for which he has not been convicted.

Undoubtedly, the law of this state, as expressed in Mississippi Code Annotated section 21-39-1 (1972), prohibits the purchase of materials and supplies by a public official from his private business concern. It also sets forth the punishment for the violation:

. . . In addition to the penalties prescribed by law, any person violating the provisions of this paragraph shall be removed from the office or employment then held by him, and shall not be eligible to succeed himself. (Emphasis added.)

Nevertheless, the question remains, whether the violation of itself suffices for the removal of an official from public office prior to conviction.

Section 175, Mississippi Constitution (1890) provides:

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...