Thompson v. State

• Decision Date: 09 December 1907
• Docket Number: 13060
• Court: Mississippi Supreme Court
• Parties: DAVID B. THOMPSON, v. STATE OF MISSISSIPPI ex rel., etc., and LOUIS C. MONETTE v. STATE OF MISSISSIPPI ex rel., etc. TWO CASES

44 So. 989

91 Miss. 662

DAVID B. THOMPSON, v. STATE OF MISSISSIPPI ex rel., etc., and LOUIS C. MONETTE v. STATE OF MISSISSIPPI ex rel., etc. TWO CASES

No. 13060

Supreme Court of Mississippi

December 9, 1907

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

The state of Mississippi, suing by the district attorney, on the relation of the police commission of Meridian, appellee, was plaintiff in the court below in each of the cases. Thompson appellant in one of the cases, and Monette, appellant, in the other, were defendants there in the respective suits. From a judgment in each case in the plaintiff's favor, the respective defendants appealed to the supreme court.

The police commission of the city of Meridian, as relator, sought by this suit in the nature of quo warranto to oust the appellants, who were exercising the functions of policemen of the city under an appointment made under an alleged ordinance adopted by the municipal authorities of the city on the 5th day of February, 1901; said ordinance being predicated of a special act of the Legislature (Laws 1900, p. 173, ch. 134) purporting to amend the charter of the city of Meridian by creating a police commission for the city and prescribing the duties of same. The relator prayed for a judgment removing the respective appellants from office, because the ordinance of February 5, 1901, under which appellants were appointed policemen, is void, in this: it does not provide for a definite term of service of policemen, but fixes the term for such time "as policemen shall render good service" appellee contending that the ordinance is in violation of § 20 of the Constitution of the state, and also violated the charter as amended by the act of the Legislature of 1900 (Laws 1900, p. 173, ch. 134). Each appellant demurred to the information against him, and insisted that a policeman is not an officer within the meaning of § 20, Constitution 1890, and that the special act passed by the Legislature of 1900 (Laws 1900, p. 173, ch. 134), creating the police commission, is unconstitutional, in that it violates §§ 87, 88, and 89, Constitution 1890. The demurrer was overruled. An issue of fact having been made up, a jury was waived, and the cause submitted to the court upon an agreed statement of facts, substantially as follows: The appellants were, at the time suit was brought, in possession of, using, and exercising the functions of policemen of the city by virtue of appointment under an ordinance passed February 5, 1901, or a subsequent ordinance, and there is no ordinance of the city fixing a definite term of service for policemen.

Case affirmed.

Williamson & Gilbert, for appellants.

A policeman is not an officer within the meaning of § 20 of the Constitution; the term "office" as used in the Constitution, means an office within one of the three departments of state government, and not a policeman serving a municipality. Attorney-General ex rel. v. Connars, 9 So. 7; State ex rel. Platt v. Kirk, 15 Am. Rep., 239; State v. Smith, 16 L. R. A., 791; State v Hewitt, 16 L. R. A., 413; Britton v. Steber, 62 Mo. 370; State v. Seavey, 22 Neb. 454; Douglass County v. Timme, 32 Neb. 272; People v. Provines, 34 Cal. 520; People v. Henry, 62 Cal. 557; Mohan v. Jackson, 52 Ind. 599; State v. Sumner, 33 La. 237; Robinson v. White, 26 Ark. 139; State v. Kalb, 50 Wis. 178.

This contention is not overthrown by the decision of our own court in the case of Kirsky v. Kelly, 80 Miss. 803, wherein it is held that a city assessor is within the meaning of § 266 of our Constitution, as was insisted by counsel for appellee on the trial of this cause in the court below. In § 266 any officer is expressly included who "holds or exercises in any way the rights and powers of any office of honor or profit under the laws or authority of this state," etc. In this case the court held that a city assessor is within the purview of this broad, sweeping, and, we might say, blanket clause.

We invite the court's attention to sec. 22 of our Constitution, providing that "No person's life or liberty shall be twice placed in jeopardy for the same offense," etc. Notwithstanding this section a municipality may arraign and convict one charged with a crime, and the person so convicted cannot plead such conviction as a bar to a prosecution by the state for the same act. Johnson v. State, 59 Miss. 543.

Also sec. 31, preserving the right of trial by jury. The municipality might, in the face of this section of our Constitution, deny the right guaranteed to a citizen under that section.

Our state, and other states, have ever recognized that a municipality is a separate and distinct government from that of the state, that the powers which are exercised by municipalities are superadded to those exercised by the citizens in the same locality; that the people of towns and cities are governed that much more than are the people of the state generally, and are amenable to a separate and distinct government.

If it should be held by the court that a policeman is within the meaning of sec. 20 of the Constitution, and that the act of 1900 is mandatory upon the city boards to fix a definite term for policemen thereafter, we submit that said act approved February 28, 1900, is unconstitutional.

Section 88 of the Constitution of 1890 is as follows: "The Legislature shall pass general laws under which cities and towns may be chartered and their charters amended," etc. It is conceded by appellee that this section is mandatory. The court has twice declared it to be mandatory. Yazoo City v. Lightcap, 82 Miss. 148; Adams v Kuykendall, 83 Miss. 571.

Can the Legislature pass a special law where there is a constitutional mandate to pass general laws, but no specific words prohibiting the passage of special laws? We insist that the very statement carries its answer. There is certainly a difference between what is directory merely and that which is mandatory. It is well founded law that constitutional clauses or sections will be construed as mandatory unless clearly directory. A statute passed under a directory provision may not be void for non-compliance with the direction, but any statute enacted that is a non-compliance with a mandatory provision will be void. Did the makers of the Constitution intend that there should be two ways of getting the charters of municipalities amended? Did they intend that the cities and towns should have the option between a special act of the Legislature and the methods that might be prescribed by the Legislature? Did they intend that the city of Meridian might get a special act amending its charter, or follow the Code, § 3039, Code of 1892, at its option? Did the Constitution makers intend to abridge the powers of the Legislature when they drafted sec. 88? Was any remedy at all intended thereby? All these questions are answered in the Lightcap case, supra, where the remedies to be effected, and the evils to be corrected are masterfully discussed.

J. H. Currie and Neville & Wilbourn, for appellees.

Section 20 of the Constitution of 1890 declares a rule of public policy in this state with reference to the tenure of all offices, whether constitutional offices, or those created under the law for local communities. It is general in its provisions, and prescribes a most salutary rule in the interest of the people and we see no reason why it should be restricted in its application to so-called constitutional offices.

A policeman is more than a municipal officer. He is charged under the general laws of the state. He is authorized under § 143 of the Code of 1906 to serve writs of attachment issuing from the state courts. Section 5056 of the Code of 1906 imposes special duties upon policemen with reference to the enforcement of the vagrancy laws of the state. Section 1749 of the Code of 1906, imposes duties upon policemen with reference to the seizure and destruction of intoxicating liquors kept or offered for sale contrary to law. Under § 3394, of the Code of 1906, it is provided that the city marshal shall be "the chief of police" of all Code municipalities and under § 3400 of the Code of 1906 the police officers are made deputy marshals of the police courts, where a municipality has a police justice. It is clear, not only that a policeman is recognized in the state law as an officer of a municipality, but that a policeman is charged with many important duties under the general law, which would otherwise not be incumbent upon him as a mere officer of the municipality. In the case of Kiersky v. Kelly, 80 Miss. 803, our court has held that the office of assessor of a municipality is an office within the purview of sec. 266 of the Constitution of 1890. The effect of this decision is that the said office of assessor of a municipality is an "office of honor or profit under the laws or authority of this state." The language of sec. 20 of the Constitution is equally as broad as the language of sec. 266. Section 20 says no person shall be appointed to office in this state, meaning any office in this state; and meaning by the expression "in this state" just as much as is meant by the language of sec. 266 "under the laws or authority of this state." Indeed it seems to us the words "office in this state" construe themselves and leave no reasonable ground for debate as to their meaning. In the case of Roane v. Tunstall, 75 Miss. 94, sec. 250 of the Constitution, which is "All qualified electors and no others, shall be eligible to office except as otherwise provided in this Constitution" is held to relate to municipal offices. A person not a qualified elector was in said case held ineligible to hold the office of city marshal.

Where there is a well founded reasonable doubt of the constitutionality...