Yerger v. State ex rel. Brown

• Decision Date: 09 March 1908
• Docket Number: 13,221
• Court: Mississippi Supreme Court
• Parties: LAWRENCE YERGER v. STATE OF MISSISSIPPI EX REL. JAMES BROWN

45 So. 849

91 Miss. 802

LAWRENCE YERGER v. STATE OF MISSISSIPPI EX REL. JAMES BROWN

No. 13,221

Supreme Court of Mississippi

March 9, 1908

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

The state of Mississippi by its attorney-general, on the relation of James Brown, appellee, was plaintiff in the court below Yerger, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court.

The proceeding was by quo warranto to determine the right of Yerger to the office of clerk of the board of trustees of the state penitentiary. The defendant demurred to the information, but the demurrer was overruled. Defendant declined to plead further and final judgment went against him. The opinion of the court further states the case.

Affirmed.

Alexander & Alexander, and McClurg, Gardner & Whittington, for appellant.

It cannot be denied that Code 1906, § 3598, prescribes that the term of office of all employes of the penitentiary shall be for one year, but it is equally clear that it does not provide when the trustees shall elect employes. The duration of the term is given by the code section, but not the beginning of the term. This is not a legislative blunder, nor is it a casus omissus. It is quite customary for constitutions and statutes to fix the durations of terms, and at the same time leave to the legislature or to subordinate bodies with legislative powers the matter of determining when and how elections shall be held and when terms of office shall begin. The confusion which has arisen in this case is the result of confusing the words, "term of office" with the incumbency or tenure of the particular officer. The term of office is one thing; the duration of the incumbency of the officer is another. This is made plain by looking at the analogy between the power which the legislature has under the Constitution as to terms of office, and the powers which the board of trustees have under the legislature. Nothing can be more definite than the provisions of the state Constitution that the terms of offices shall be for some specified period. State Const., sec. 20. But it must be noted that the terms of all offices, and not the terms of all officers, shall be for some specified period.

Even where the Constitution and statutes fix the beginning of terms of offices, it is usually done so by fixing a certain day of the week, as the first Tuesday after the first Monday of a certain month. It will thus be seen that the beginning of the term is not fixed on a certain day of the month, and it results from this that no term, even for a constitutional officer which is required to be for a definite time, is ever for exactly four years. For instance, the first Tuesday after the first Monday of January may come on the 9th day or on the 16th day of January. The distinction between the words "term of office" and "time of incumbency" is pointed out in Jameson v. Hudson, 82 Va. 282. Now, just as the constitutional provisions as to fixed terms did not necessarily fix the day on which the term should begin, so the code chapter on the Penitentiary, while prescribing the duration of the term, did not provide when the term of employes should begin or when their election should be held.

If then, the beginning of the term was not fixed, how was it to be fixed? We answer that it was committed to the trustees under Code 1906, § 3593, wherein they are given power "to adopt rules and regulations for the direction and the government of the penitentiary and the officers thereof."

The board of trustees are the successors of the former board of control of the penitentiary; and, as such, have entire management of the penitentiary except where otherwise clearly provided. The language in the code prescribing their powers is the broadest that could be used. They have the right to adopt rules and regulations for the government of the penitentiary and of the officers thereof. Then, it must follow that it was perfectly competent for the trustees to pass a by-law providing when the terms of employment of the employes chosen by them should begin.

It was the obvious purpose of the state legislature that the board of trustees of the penitentiary, who are held responsible for the management, should choose the subordinate employes who were to serve under them. The control of the penitentiary comprises a vast business. The intention, shown in whole chapter of the code in regard to the penitentiary, is that the incoming board should select its own employes. There is no difference between the case at bar and the case of Ott v. Lowrey, 78 Miss. 487; 29 So. 520.

We deny that it was within the power of the board of trustees to hold an adjourned meeting on December 31, 1907, and elect the employes for another year. No provision exists for such adjourned meeting. Even our county boards of supervisors had no right to hold adjourned meetings until the same was especially granted by legislative act. The powers of the board of trustees are limited by Code 1906, § 3590 reciting that they shall meet on the first Tuesday of each month, and continue in session as long as the business demands.

Again, the election in this case was held, not on January 1, 1908, but on the day preceding, that is, the day before the vacancy occurred. If the former board could anticipate the vacancy by one day, they could have done it by one or two or ten months. If they could anticipate it at all, and thus take away from the incoming board the selection of officers for the year's term, why could not the former board, if candidates for re-election before the people, elect officers for the ensuing year, by way of anticipation, before the November popular election? The contention that the old employes could not hold over, and therefore there was a vacancy in office which had to be provided against, is untenable. If the employes be deemed officers, they would, under the code provision, hold over until their successors should qualify. If they were mere employes, then of course, they or others could be chosen for the interval. It has come to be a general rule that unless there is a provision to the contrary the incumbent of the office holds until his successor is chosen and qualified. And, as stated by Mechem on Public officers, § 397, the rule seems to be demanded by the most obvious requirements of public policy.

The removal was fully authorized. The contention that Code 1906, § 3619, permits removal only after conviction of misconduct before a court of inquiry is not borne out either by the letter or by the spirit of the code section. Surely it will not be contended that misconduct is the only ground for discharging an employe. Incompetency is not misconduct. Cannot an employe be discharged for incompetency? Blindness is not misconduct. Could not a prison guard be discharged if he became blind? Paralysis is not misconduct, but an employe can be discharged because of such infirmity. Removal is not misconduct, but if a sergeant of the penitentiary removes from certain limits he can be discharged. The construction of Code 1906, § 3619, contended for by the relator, is entirely too technical and restricted.

We deny that quo warranto lies in behalf of Brown. He is not such an officer as comes within the meaning of Code 1906, § 4017. Moreover, Code 1906, §§ 3598, 3599, distinctly refer to the clerk and secretary of the penitentiary board and to the other subordinates as "employes." If the relator as secretary and clerk of the board is an "officer" under Code 1906, § 3598, then the guards and turnkeys, appointed under Code 1906, § 3599, are also "officers." If Brown, the relator, can maintain this action, then a guard of a convict squad, made unnecessary because of decrease in numbers of the convicts by death or discharge or pardon, could yet demand his right to serve his year out, and, if denied, could nevertheless claim his salary.

In determining whether Brown is an officer entitled to quo warranto, or a mere employe, we must look to the class in which he is placed. He is classed with all the subordinate employes of the penitentiary provided for in Code 1906, §§ 3598, 3599; is given no longer term nor greater right to his salary; and is entitled to no greater rights or remedies than any other employes provided in such code sections. It is elementary law that only officers proper are entitled to quo warranto.

Williamson, Wells & Peyton, for appellee.

The relator, Brown, was elected unanimously by the board of trustees of the penitentiary, and took charge of the office of clerk of the board for the regular term. Code 1906, §§ 3590, 3598. At the expiration of such term he was regularly elected for another term by the board, his election being December 31, 1907, for the term of one year to begin January 1, 1908. It is not denied that he at once qualified as required by law, and that subsequent to this election last mentioned the board of trustees held another regular meeting, and, in fact, held office until January 20, 1908.

Code 1906, § 3598, declares the position of the clerk and secretary of the board of trustees of the penitentiary to be an office, his term to be one year. No provision is made for the occupant to hold over until the appointment or election and qualification of a successor. At the end of the year for which the clerk and secretary and the other employes of the penitentiary are elected, the offices are vacant. The board of trustees which is always in existence, without reference to the individuals who may compose it, must, under the statute, fill the vacancies at the very time they occur, so that the affairs of the penitentiary shall not be neglected even for one day. But for the election of the clerk and other...