State ex rel. Attorney Genenral v. McDowell

• Decision Date: 29 May 1916
• Docket Number: 18924
• Citation: 71 So. 867,111 Miss. 596
• Court: Mississippi Supreme Court
• Parties: STATE EX REL. ATTORNEY GENERAL v. MCDOWELL

71 So. 867

111 Miss. 596

STATE EX REL. ATTORNEY GENERAL v. MCDOWELL

No. 18924

Supreme Court of Mississippi

May 29, 1916

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

Quo warranto by the state on relation of the attorney-general against David McDowell. From a judgment for defendant relator appeals.

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

Judgment affirmed.

Mayes Wells, May & Sanders, for appellant.

A. H. Longino and J. L. R. McDowell, for appellee.

OPINION

POTTER, J.

David McDowell, the appellee in this case, was appointed state factory inspector under chapter 163, Laws of 1914, and his term of office began May 1, 1914, and according to his contention ends May 1, 1918, unless vacated by death, resignation, or removal for cause. On the 26th day of January, 1916, the state board of health, acting, as it believed, within rights and powers conferred by chapter 163 of the Laws of 1914, passed an order declaring the office of factory inspector vacant, and electing A. B. Hobbs to fill the vacancy so declared. Mr. Hobbs, having been commissioned by virtue of said election, demanded of Mr. McDowell that the office, paraphernalia, records, etc., of the office in question be turned over to him. This Mr. McDowell refused to do, maintaining that the board of health had no legal authority to declare the office vacant, and that Mr. Hobbs had not been legally elected to the office, as no vacancy existed. Chapter 163 of the Laws of 1914 does not provide the term of office of the factory inspector, therefore section 3456 of the Code of 1906, providing "that the term of office of all officers, not otherwise provided by law, shall be four years and until their successors shall be duly qualified," applies; and Mr. McDowell's term of office, therefore, had not expired at the time the board of health attempted to remove him and elect his successor. This suit was brought by the Attorney General to determine whether or not Mr. McDowell is rightfully entitled to the office in question.

It is conceded by counsel for appellant, and it is too clear for argument that the office in question is a public office. The position of state factory inspector is denominated an office by the act creating the office, his salary is fixed by statute, his duties are prescribed by statute, and he is not subject to the direction of any authority in the performance of his duties. In fact, he...