State, By Mitchell, Attorney-General, ex rel. Garrison v. McLaurin

• Citation: 159 Miss. 188,131 So. 89
• Decision Date: 17 November 1930
• Docket Number: 29148,29150
• Court: Mississippi Supreme Court
• Parties: STATE, BY MITCHELL, ATTORNEY-GENERAL, ex rel. GARRISON, v. MCLAURIN. STATE, BY MITCHELL, ATTORNEY-GENERAL, ex rel. JACOBS, v. PROVINE

131 So. 89

159 Miss. 188

STATE, BY MITCHELL, ATTORNEY-GENERAL, ex rel. GARRISON, v. MCLAURIN.

STATE, BY MITCHELL, ATTORNEY-GENERAL, ex rel. JACOBS, v. PROVINE

Nos. 29148, 29150

Supreme Court of Mississippi

November 17, 1930

APPEAL from circuit court of Hinds county, First district, HON. W H. POTTER, Judge.

STATE BY MITCHELL, ATTORNEY-GENERAL, ex rel. JACOBS, v PROVINE. (In Banc.)

1 OFFICERS.

Position is "public office" when created by law with duties cast upon incumbent involving exercise of some portion of sovereign power in performance of which public is concerned and which are continuing in their nature "continuing" meaning enduring and permanent, whereas "public employment" is position lacking one or more of foregoing elements (Constitution 1890, section 20; Hemingway's Code 1927, section 2988).

2. OFFICERS.

Length of time required to perform special and transient duties is not test of whether person discharging duties is public officer or employee (Const. 1890, section 20; Hemingway's Code 1927, section 2988).

3. HOSPITALS.

Statute contemplates that work of state hospital removal improvement and land sale commission shall be done with reasonable dispatch (Laws 1926, chapter 115).

4. HOSPITALS. Members of state hospital removal improvement and land sale commission held not "public officers" within constitutional provision and statute relating to term of office (Laws 1926, chapter 115; Hemingway's Code 1927, section 2988; Constitution 1890, section 20).

The duties to be discharged by commission, which are, in substance, to construct and equip, on designated lot, buildings necessary to house state hospital for insane, which is to be removed from present site thereto; to sell land on which hospital is now located, and to issue bonds, in stipulated amount, proceeds of which are to be used by commission in defraying expenses incurred by it in discharge of its duties, are not part of regular and permanent administration of justice, but are special and transient, and all of powers of the commission cease when its duties have been discharged.

HON. W. H. POTTER, Judge.

APPEAL from circuit court of Hinds county, First district, HON. W. H. POTTER, Judge.

Two informations by the State, by George T. Mitchell, Attorney-General, on the relation of H. F. Garrison, against S. L. McLaurin, and, on the relation of Will Jacobs, against J. W. Provine. The informations were dismissed, and relators appeal. Affirmed.

Affirmed.

George T. Mitchell, Attorney-General, of Tupelo, and Butler & Snow, of Jackson, for appellants.

This court has included the following elements in the definition of public officers:

(a) One having some continuing duty to perform concerning the public;

(b) Which duty is prescribed by law and not by contract;

(c) Salary fixed by law;

(d) Term prescribed by statute;

(e) Not subject to direction of superior officer;

(f) One who acts in his own behalf in performance of his prescribed duties;

(g) One who is delegated a portion of the sovereign power of government;

(h) One designated as officer in statute.

Shelby v. Alcorn, 36 Miss. 372; Monette v. State, 91 Miss. 662; Yerger v. State, 91 Miss. 802; State v. McDowell, 111 Miss. 596; Ware v. State, 111 Miss. 599; McClure v. Whiteman, 120 Miss. 35; Ex parte Brow, 112 Miss. 236.

Similar commissioners held to be public officers by courts of other states.

State ex. rel., Swearingen, Atty.-Gen., v. Jones (Fla.), 84 So. 84; Dade County v. Dade (Fla.), 116 So. 72; McCormick v. Pratt (Utah), 17 L. R. A. 243; State ex rel. Bickford v. Cook (Mont.), 43 P. 928; In Re George H. Corliss, 11 R. I. 638; People ex rel. Lyndes v. Comptroller (N. Y.), 20 Wyndell, 595; People ex rel. Sherwood v. State Board of Canvassers (N. Y.), 14 L. R. A. 646; Commonwealth v. Evans (Penn.), 74 Penn. St. 124; State ex rel. Wingate v. Vallee (Mo.), 41 Mo. 29; State ex rel. Flowers v. Morehead, 256 Mo. 683; State v. Johns, 92 Fla. 187, 109 So. 228; Tibbetts v. Olson, 91 Fla. 824, 108 So. 679; Hunter v. Owens, 80 Fla. 812, 86 So. 839; State v. Burke (Wash.), 36 P. 281.

There was a delegation of the sovereign power here.

State v. Edwards, 93 Miss. 704; Bank of Oxford v. Love, 111 Miss. 699.

If these appointed commissioners are not public officers then they hold their place by contract. If they are employees and not officers, then the legislature could not repeal chapter 88 of the Laws of 1926 creating this commission so as to affect this contract with the commissioners.

Hall v. Wisconsin, 103 U.S. 5, 26 L.Ed. 302.

J. F. Barbour, of Yazoo City, for appellees.

A public officer is one who holds an office, the occupancy of which vests him with at least a portion of the sovereign power of the state, and with the right to enforce such power while he is in office. He must have public duties to perform and these duties must be in direct relationship to the general public. It must be an enduring position with at least a certain degree of stipulated permanency attached to the position itself, so that even though the occupant may change, nevertheless the office with its sovereign power, its public duties and relationship, shall continue. It cannot be questioned that the term "public office" in Mississippi carries with it the necessity to have and possess certain constitutional qualifications, and which also subjects the incumbent to certain constitutional and statutory inhibitions. The commissioners here do not possess the above requisites and are not public officers.

Lindsey v. Attorney-General, 33 Miss. 508; Shelby v. Alcorn, 36 Miss. 273; Kiersky v. Kelly, 80 Miss. 803; Monette v. State, 91 Miss. 670; Ellis v. Graves, 82 Miss. 36; Yerger v. State, 91 Miss. 302; State v. Nichols, 63 So. 1026; Alderman v. Moreau, 108 Miss. 407; State v. McDowell, 111 Miss. 596; Ware v. State, 111 Miss. 599; State v. Christmas, 126 Miss. 358, 88 So. 880; McCleve v. Whitney, 120 Miss. 350; 45 C. J. 968; Evans v. Beattie, 135 S.E. 698; Metcalf v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 70 L.Ed. 384; Sheboygan County v. Parker, 3 Wall, 93, 18 L.Ed. 33; Saunders v. Belue, 78 S.C. 171, 58 S.E. 762; Kendall v. Raybould (Utah), 44 P. 1034; Patton v. Board of Health, 127 Cal. 388, 78 Am. St. R. 66, 59 P. 702; Ritchie v. Philadelphia, 225 Pa. 511, 26 L. R. A. (N. S.) 289, 74 A. 430; Lomstead v. New York, 10 Jones & S. 481; Burrill's Law Dict.; Mechem Pub. Offi., Sec. 4; State ex rel. Stanton v. Callow (Ohio), 143 N.E. 717; Garrett et al. v. Commissioners of Limestone County, 230 S.W. 1014; Craig v. O'Rear, 251 S.W. 829; Bunn v. People, 45 Ill. Rep. 399.

The legislature for many years has created numerous commissions.

By chapter 42 of the Laws of 1892, the legislature created a commission, to be appointed by the governor, to confer and act with like commissions of other states for the formulation of statutes on certain questions for the purpose of securing uniformity.

By chapter 113 of the Laws of 1926, a building commission was created.

By chapter 55 of the Acts of 1900, the legislature created a state house commission.

By chapter 108 of the Laws of 1904, a commission was created to select and purchase a site and provide for the erection of the buildings for the deaf and dumb institute.

By chapter 100 of the Acts of 1904 a code commission was appointed.

By chapter 98 of the Laws of 1916 there was created a board of state tax commissioners; and by chapter 168 of the same Act there was created a state highway commission.

By chapter 262 of the Acts of 1918 the legislature created Mississippi-Louisiana Boundary Commission.

Green & Green, and Chalmers Potter, all of Jackson, for appellees.

The commissioners are not officers, because: They are employees to execute business involving discretion and no part of the state sovereignty is delegated. Wynn v. State, 67 Miss. 312, 7 So. 353; State v. Henry, 87 Miss. 125, 40 So. 152, 5 L. R. A. (N. S.) 340; McCool v. State, 149 Miss. 82, 115 So. 121; Vicksburg & Meridian Ry. v. Lowry, 61 Miss. 102; State v. Dinkins, 77 Miss. 880, 27 So. 832; Woodberry v. McClurg, 78 Miss. 831, 29 So. 514; State v. Christmas, 126 Miss. 358, 88 So. 881; Lindsey v. Atty.-Gen., 33 Miss. 508, at 529; Shelby v. Alcorn, 36 Miss. 273; Hill v. Boyland, 40 Miss. 618; Brady v. Howie, 50 Miss. 607; Kierskey v. Kelly, 80 Miss. 803, 31 So. 901; Ellis v. Greaves, 82 Miss. 36, 34 So. 81; Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 715; Yerger v. State, 91 Miss. 802, 45 So. 849; Section 3598, Code of 1906; State v. Nichols, 63 So. 1025; State v. McDowell, 111 Miss. 596, 71 So. 867; McClure v. Whitney, 120 Miss. 350, 82 So. --; 22 R. C. L., page 374, section 5; 46 C. J. 968; 53 A. L. R. 587, et seq.; Bunn v. People, 45 Ill. Rep. 399; Shelby v. Alcorn, 36 Miss. 273; Leymel v. Johnson, 288 P. 860; Drury v. United States, 43 Court of Claims, 240; U. S. v. Hartwell, 6 Wall. 393; Rhoden v. Johnston, 181 S.W. (Mo.), 128-130; Mulnic v. Elliott, 156 P. 218; Craig v. O'Rear. 251 S.W. 829; Garrett v. Commissioners, 230 S.W. 1014; Walker v. Cincinnati, 21 S.Ct. Rep., (Ohio) 50; Gleason v. Cleveland, 31 N.E. 804; State v. Callow, 143 N.E. 717; Clark v. Harford, etc. Assn. (Md. 1912), 85 A. 503; State Tax Com. v. Harrington (Md. 1915), 94 A. 537, chapter 115, Laws 1926, and section 250, Constitution.

Unless the commissioners are employees then chapter 115 violates the Constitution.

Sections 99, 250 and 268, Constitution; Chapter 115, Laws of 1926; McCool v. State, 149 Miss. 82, 115 So. 121; State v. Gilmer Grocery Co., 125 So. 710, at 714; Richards v. City Lbr. Co., 101 Miss. 678, 57 So 977; Univ. of Miss. v. Waugh, 105 Miss. 623, 62 So. 827, L. R. A. 1915D, 588, Ann. Cas. 1916E, 522; Miller v. State, 130 Miss. 564, 94 So. 706; Smith v. Chickasaw Co., 125...