Mississippi State Board of Health v. Mathews

• Decision Date: 12 March 1917
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI STATE BOARD OF HEALTH v. MATHEWS

74 So. 417

113 Miss. 510

MISSISSIPPI STATE BOARD OF HEALTH v. MATHEWS

Supreme Court of Mississippi

March 12, 1917

March 1917

Division A

APPEAL from the chancery court of Hinds county, HON. O. B. TAYLOR Chancellor.

Bill by W. T. Mathews against the Mississippi State Board of Health. From a decree for complainant, defendant appeals.

The appellee, who was complainant in the court below, filed a bill in chancery seeking to enjoin the Mississippi State Board of Health from putting into effect an order passed by said board removing him from the office of county health officer of Leflore county. Appellee had been chosen as county health officer for a term of two years beginning July 1 1915, under the provisions of section 2491 of the Mississippi Code of 1906, which provides as follows:

"A competent physician shall be appointed county health officer for and from each county by the State Board of Health, whose term of office shall be for two years, and said board shall cause the appointment to be certified by its secretary to the board of supervisors of the county for which the appointment was made."

At the June meeting, 1916, the board of health preferred charges against appellee alleging that he had been "negligent and careless and unmindful of the best interests of the people of the county." The particular negligence referred to was based upon his failure to report a suspicious case of smallpox. The appellee was summoned to appear before the State Board of Health to answer said charges, and after a hearing the board removed him from office and appointed another physician as his successor. The board claims authority for this action by virtue of the provisions of section 2490 of the Code of 1906, which is as follows:

"The State Board of Health may at any meeting remove any county health officer, or its president or secretary from office and fill the vacancy thereby occasioned, or may fill a vacancy in either of said offices whenever and however it occurs; and when a county health officer shall be removed, or his successor appointed, notice thereof shall be sent and certified to the board of supervisors of the county."

Appellee contends that the provisions of section 2490 under which he was removed are in contravention of section 175 of the state Constitution, which provides as follows:

"All public officers, for willful 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, or otherwise punished as may be prescribed by law."

Appellee contends that the board is without authority to remove him except upon conviction as provided by the Constitution, and that the provisions of section 2498 of the Code of 1906 provide a method prosecuting him for the offense charged. Said section provides as follows:

"Every practicing or licensed physician shall report immediately to the secretary of the State Board of Health every case of yellow fever, cholera, dengue, smallpox or other virulent epidemic contagious disease that occurs within his practice, unless the State Board of Health shall otherwise direct. Any practicing or licensed physician, willfully failing to so report shall be guilty of a misdemeanor, and upon conviction shall be punished as provided by law for misdemeanors."

The chancellor entered a decree granting the relief prayed, and the board of health appealed.

Affirmed.

Mayes, Wells, May & Sanders, for appellant.

The trial court held that the only question involved was the constitutionality of section 2490 of the Code, and that under the case of Lizano v. City of Pass Christian, 96 Miss. 640, the exclusive method for the removal of public officers is as provided by section 175 of the Constitution; that the legislature of the state could not pass a statute removing any person from public office except upon indicment by a grand jury, followed by conviction. And held that section 2490 of the Code was violative of section 175 of the Constitution.

We think the chancellor overlooks the fact that the term of an officer is such time as the legislature makes it, and that the legislature may fix terms to be determined upon certain contingencies, while at the same time specifying a time beyond which the term shall not last in any event. If the chancellor is correct, every person in the service of the state, even to the laborers that clip the grass on the capitol grounds, may be considered to be protected by this section of the Constitution. A lazy and good for nothing porter, could not be removed except by indictment and conviction. This reduced section 175 of the Constitution to an absurdity.

So broad have been the decisions of the court in defining what constitutes public officers, that it comprehends every employee paid out of the public treasury who serves the public in any way.

While section 20 of the Constitution provides that no person shall be elected or appointed to office in this state for life, but the term of all officers shall be for some specified period, the section only means, that an officer shall not hold any office for any unlimited time. All this section means is that the legislature in creating an office shall fix a specified time beyond which the term shall not extend, but under this section the legislature can prescribe the maximum of time to be two years, and yet enact a law providing that the term may be ended for the time named as the fixed time for the maximum time, but it may be determined in a less time. Under section 20 of the Constitution the legislature may fix a term of office for a certain number of years, and provide that it may be ended before the expiration of that time for cause, and fix an authority to determine the cause and the term. Such law would not violate either section 20 or section 175 of the Constitution, when the legislature creates an office and fixes a term, but says that the term may be ended by removal before the end of the time fixed, the effect of the law is to create a determinable term and such law does not violate section 175 of the Constitution.

Section 175 of the Constitution providing that public officers shall be removed for willful neglect of duty, or misdemeanor in office, and shall be liable to presentment or indictment, and upon conviction shall be removed from office, may fix the exclusive mode of removing an officer, when the legislature has fixed his term and made no other provision for his removal; but when the legislature has fixed a term of office and has further said that the term may be ended before the expiration of that time by removal, section 175 of the Constitution does not apply and the party takes the appointment subject to the qualifications which the legislature has attached to it.

If the case of Lizano v. Pass Christian, 96 Miss. 640, holds otherwise, it is so clearly unsound that it should be overruled; but we contend that the Lizano case does not conflict with our contention. We state our contention in the beginning of the brief, so that the court may at once get in touch with the questions involved.

So the courts will not review the exercise of the power of removal where in the opinion of the board, furnished with such power, the misconduct was sufficient for removal, except in the clearest cases of abuse.

And in section 396 the same authority states that: "It has been held, that where a statute gives a power of removal for cause without any specification of the cause, this power is of a discretionary and judicial nature; and unless the statute otherwise specially provides the exercise thereof, cannot be reviewed by any other tribunal, with respect either to the cause or the sufficiency or existence or otherwise. Under similar statutory provision, and even in some cases where the statute specifies the cause for removal, it has been held in other American decisions that the removing authority is the sole and exclusive judge of the cause, and the sufficiency thereof, and that the courts cannot review its decision in a case where it had jurisdiction." See, also, State v. Doherty, 13 Am. Report, 131 and Tremble v. People, 41 Am. Report, 236.

The above authorities are practically without denial, and are clearly the law. Therefore, the solitary question involved is as to the constitutionality of section 2490.

Is section 2490, Code 1906, constitutional? In determining this question and before discussing our decisions, it will be profitable to know what the practical construction of the legislature has been of this section, and what influence the legislative construction should have with the courts. In the first place a legislative act, by the many decisions of our courts, is not to be declared unconstitutional unless it appears so to be beyond any reasonable doubts. The following decisions of our court holds this. Hart v. State, 87 Miss. 171; Henry v. State, 87 Miss. 1; Natchez R. R. Co. v. Crawford, 55 S. R. 596; Johnson v. Reeves, 72 S. R. 925.

That the legislature has always construed section 157 of the Constitution as no bar to their power to create offices and provide for the removal of officers before the expiration of the time fixed, not as the term of the officer, but as the time beyond which he cannot serve without a new appointment is conclusively shown by the passage of numerous laws providing for this very thing, and it has done so since the decision in the Lizano case in 96 Mississippi. When they fix a time for service, as we have said, and then provide that the time may be cut short by the happening of certain events such as misconduct, neglect or other cause, and create a body to determine these things, it is tantamount to fixing a determinate term and does not violate the Constitution. It is only when ...