Summary
discussing the discretionary removal authority of employees by a public official
Summary of this case from Rutland v. Office of Atty. Gen., State of Miss.Opinion
No. 35689.
November 13, 1944. Suggestion of Error Overruled January 8, 1945.
1. MUNICIPAL CORPORATIONS.
A "public officer," broadly speaking, is a person appointed or elected to perform a designated duty concerning the public and includes a municipal policeman.
2. OFFICERS.
A "public officer" within meaning of Constitution provisions pertaining to term of office and removal from office must have a continuing duty defined by rules prescribed by law, dischargeable by officer in his own right (Const. 1890, secs. 20, 175).
3. MUNICIPAL CORPORATIONS.
A policeman of the city of Columbus who served only by permission of city's mayor and city council, who prescribed policemen's duties and supervised performance thereof, was not a "public officer" within meaning of constitutional provisions so as to be entitled to remain in office until expiration of his term unless convicted on an indictment charging him with commission of crime (Laws 1884, chap. 390, secs. 16, 20, 21: Const. 1890, secs. 20, 175).
4. MUNICIPAL CORPORATIONS.
The provision in charter of city of Columbus for appointment of a police force and the supervision thereof by mayor and city council is for purpose of enabling mayor and council to discharge duty imposed upon them by charter to keep the peace within territory of city (Laws 1884, chap. 390, secs. 16, 20, 21).
ANDERSON, J., dissenting in part.
APPEAL from the circuit court of Lowndes county, HON. JOHN C. STENNIS, Judge.
John F. Frierson, of Columbus, for appellant.
Quo warranto is the proper remedy to try the right to the office of policeman, where such policeman had been peremptorily and arbitrarily dismissed, even if there be no succeeding occupant.
Lindsey v. Attorney General, 33 Miss. 508; Brennon v. City of Weatherford, 53 Tex. 330, 37 A.R. 758; Whalin v. City of Maccomb, 76 Ill. 79; People v. Board of Education, 101 Ill. 108, 40 A.D. 196; State v. Ind. School Dist., 29 Iowa 264; Caldwell's Adm. v. Bell, 6 Ark. (1 Eng.) 227; People v. Woodburg, 14 Cal. 43; Commonwealth v. Swasey, 133 Mass. 538; Code of 1857, Ch. XXXV, Sec. IV, p. 293; Code of 1880, Ch. 72, Secs. 2585-2612; Code of 1892, Secs. 3520, 3521, 3522; Code of 1930, Secs. 3053, 3054, 3055 (Code of 1942, Secs. 1120, 1121, 1122); Blackstone III, 263; 41 Am. Dig. (Cent. Ed.), p. 1432, Sec. 6, p. 1438, Sec. 9.
It is not necessary to have an occupant in the office sought by the relator in order for the writ to lie and quo warranto will lie in such a case against a municipality.
State of Kansas ex rel. Little, Atty.-Gen. v. Board of Regents of U. of Kansas, 29 L.R.A. 378; State v. Topeka, 31 Kan. 452; State ex rel. Coleman v. Leavenworth, 75 Kan. 191, 190 P. 237; 44 Am. Jur. 90-91, 123, Secs. 4, 51.
See also O'Neal v. Fairley, 190 Miss. 650, 200 So. 722; Hyde v. State ex rel., 52 Miss. 665; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; Thomas v. Doughty, 163 La. 213, 111 So. 681, 682; State ex rel. Forstall v. Otis, 131 Wn. 455, 230 P. 414, 416; State ex rel. Van Moss v. Sailers, Mayor (Wash.), 2 P.2d 725; Clarksen v. Blomstrom et al. (Wash.), 26 P.2d 87, (citing Mechem Pub-Officers, Sec. 478, p. 305; Throop on Pub. Officers, Sec. 825, pp. 789-790; 22 R.C.L. 661-664); 14 C.J.S. 172, Sec. 28.
The word "corporations" includes municipal corporations.
State ex rel. Collins v. Senatobia Blank Book Stationery Co., 115 Miss. 254, 76 So. 258; State ex rel. City of Vicksburg v. Washington Steam Fire Co., No. 3, 76 Miss. 449, 24 So. 877; Jensen v. Jewel (S.D.), 115 A.L.R. 1280; People v. City of Chicago, 182 N.E. 419, 427; People v. Board of Education, 40 A.R. 196; People v. Peoria, 46 N.E. 1075; Kasitch v. City of Albany, 18 N.Y.S.2d 140, 143; Bloomfield Drainage Dist. v. Keith, 119 F.2d 157, 161; New Orleans Commercial Corp. v. City of Albertville, 32 F. Supp. 910; Gage v. Village of Wilmette, 375 Ill. 420, 31 N.E.2d 774, 776; 9 Words and Phrases 672 et seq.; 44 Am. Jur. 113, Sec. 40, pp. 123-124, Sec. 51.
The word "person" refers to public or municipal corporations.
32 Words and Phrases (Per. Ed.), p. 236.
Relator (a policeman) is a public officer.
Monette v. State, Thompson v. State, 91 Miss. 662, 44 So. 989; Shelby v. Alcorn, 36 Miss. 273; Ware v. State, 111 Miss. 599, 71 So. 868; Mississippi State Board of Health v. Matthews, 113 Miss. 510, 74 So. 417, 418; Newsom v. Cooke, 44 Miss. 352; Ex parte Lehman, 60 Miss. 967, 975; Lizano v. City of Pass Christian, 96 Miss. 640; 50 So. 981; State v. Henderson, 166 Miss. 530, 146 So. 456; City of Hattiesburg v. Beverly, 123 Miss. 759, 86 So. 590; Parker v. Travelers Ins. Co., 154 Ga. 525, 163 S.E. 159; State v. Kennedy, 69 Conn. 220, 37 A. 503, 505; State ex rel. Crow v. Vallins, 140 Mo. 523, 532, 44 S.W. 887, 888; Schmitt, City Auditor, v. Dooling, 145 Ky. 240, 140 S.W. 197, 36 L.R.A. (N.S.) 881 and note; State ex rel. v. Vallins, 41 S.W. 887; State ex rel. Bailey v. Edwards, 40 Mont. 313, 106 P. 703, 704; Howard v. Meuller, 252 Ill. App. 10; Constitution of 1890, Secs. 20, 175; 32 Words and Phrases (Per. Ed.) 723, 724.
A policeman is not a deputy or employee and not analogous to the case of State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881, or of McClure v. Whitney, 120 Miss. 350, 82 So. 259.
A police officer is a civil officer. Section 167 of the Constitution.
Martin v. State, 190 Miss. 32, 199 So. 98; City of Hattiesburg v. Beverly et al., supra; 7 Words and Phrases 331; 8 Words and Phrases 645.
Section 20 of the Constitution provides that "No person shall be elected or appointed to office in this state for life or during good behavior, but the term of all offices should be for some specified period." We respectively submit that under that section the city council could not elect or appoint the policemen of the city, even though they were appointed or elected to serve for a period of two years, with the reservation that such policemen might be discharged "at the pleasure of the city council." That is, we hold that they could not be discharged at the pleasure of the city council without cause. It is the intention, and so expressed, that the term of all offices shall be for a specified period. That specified period was two years, expressed in the city charter, in reference to the policemen as serving for the same term of office that the mayor and city council were elected to serve. We now refer to the charter provisions and the city charter contemplates a prohibition of an arbitrary and summary dismissal. The inference and intendment is clear.
Ware v. State, supra; Board of Mississippi Levee Commisioners v. Kellner, 189 Miss. 232, 196 So. 779; Yerger v. State, 91 Miss. 802, 45 So. 849; State ex rel. Nagle v. Sullivan, 98 Mont. 425, 40 P.2d 995, 99 A.L.R. 321.
The policeman had some accrued rights, if not actually vested rights, in the trust set up in the city of Columbus under the "Firemen's and Policemen's Disability and Relief Fund." This is cited as persuasive of the intention of the legislature in reference to the protection of officers, the inequality and actual injustice and illegality of a summary discharge.
In the face of Sections 20 and 175 of the Constitution, the defendant has raised the point that the date of their city charter being prior to the date of the Constitution of 1890 the charter of the city of Columbus could not be controlled by a subsequent constitutional enactment. The charter was adopted and approved on March 8, 1884. We think that this contention is entirely beside the point and that the State of Mississippi is the sovereign and has the right to alter, change or annul any previously existing charter rights that might have been granted theretofore, except to destroy a vested interest or property or contract right.
The adoption of a new Constitution repeals and supersedes all the provisions of the old Constitution not continued in force by the new instrument.
16 C.J.S. 88, Sec. 42 (a).
A constitutional provision as well as a statute may, however, nullify or amend a statute insofar as future operations are concerned, and the Constitution, as the highest and most recent expression of the law-making power, operates to repeal or supersede not only the statutes that are expressly enumerated as repealed, but also all that are inconsistent with the full operation of its provisions.
Arnold Murdock Co. v. Industrial Commission, 145 N.E. 322, 40 A.L.R. 1470; 16 C.J.S. 91, Sec. 43 (a).
A Constitution or amendments thereto may effect the repeal of provisions of municipal charters which are inconsistent with the constitutional provisions, but do not necessarily render inoperative charter provisions which are not inconsistent with the Constitution.
16 C.J.S. 94, Sec. 42(b).
Section 274 of the Constitution of 1890 provides that, "The laws of this state, now in force, not repugnant to this Constitution, shall remain in force until amended and repealed by the legislature or until they expire by limitation. The statute laws of this state repugnant to the provisions of this constitution, except as provided in the next three sections, shall continue and remain in force until the first day of April A.D. 1892, unless sooner repealed by the legislature." That section covers the case, and even if the charter privilege of discharging the officers at the pleasure of the council had been lawful theretofore, it expired by that limitation on the first day of April, 1892.
The provision was made in the previous Constitution, Article VI, Sec. 26, that clerks, sheriffs, and other county officers, for willful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment before a grand jury, and trial by petty jury and upon conviction shall be removed from office. The reading is the same as in the Constitution of 1890, except that in the latter, "all public officers" are embraced. So, we respectfully submit on this proposition that the provisions of the charter, Section 20, authorizing the city council to remove from office at their pleasure any officer appointed or elected by them, necessarily gave way to the subsequent Constitution adopted.
No one has a vested right in a public law, but the legislature may repeal or amend the legislative acts not in the nature of contracts or private grants.
The case may be decided on the charter and ordinances of the city and not on any sections of the Constitution. It is entirely determinable without reference to the Constitution.
Ware v. State, supra; Board of Mississippi Levee Commissioners v. Kellner, supra; Yerger v. State, supra.
We respectfully submit (1) that quo warranto is the proper remedy in the case at bar; (2) that the relator was a policeman of the city of Columbus, duly elected, and as such was a public officer; (3) that the relator was improperly and unlawfully discharged by the resolution of the city council on June 8, 1943; (4) that the lower court was in error in ordering that the motion to dismiss, filed by the defendant, be sustained, and in dismissing the petition of the plaintiff and taxing costs against him; and (5) that the case should be reversed and remanded on the proper instructions to the lower court.
J.W. Loving of Columbus, and B.H. Loving, of West Point, for appellee.
Quo warranto is not the proper procedure. This question stands at the very threshold of this case and in our judgment is decisive against appellant.
This remedy is not applicable in this case under the first and second subdivisions of Section 1120 of the Code of 1942, relative to the applicability of quo warranto when it is sought to be invoked in the matter of the right to an office.
O'Neal v. Fairley, 190 Miss. 650, 200 So. 722; Lindsey v. Attorney General, 33 Miss. 508; Hyde v. State, 52 Miss. 665; Mitchell v. Finley, 161 Miss. 527, 137 So. 330; Johnston v. Wake County Board of Elections, 172 N.C. 162, 167, 90 S.E. 143; Terr. v. Dame, 13 N.M. 467, 85 P. 473; Clarksen v. Blomstrom et al. 26 P.2d 87; State ex rel. Forstall v. Otis, 131 Wn. 455, 230 P. 414; State ex rel. Van Moss v. Sailers, Mayor (Wash.), 2 P.2d 725; Code of 1942, Secs. 1120, 1122, 1129; 51 C.J. 318, Sec. 15; 44 Am. Jur. 105, Sec. 26; Rem. Comp. Stat. of Washington, Secs. 1034, 1035.
This remedy is not applicable under the facts in the case by reason of any of the subsequent subdivisions of the statute on quo warranto, dealing with the misuse or abuse of corporate powers and franchises.
Kennington-Saenger Theatres v. State ex rel. Dist. Atty., 196 Miss. 841, 18 So.2d 483; Code of 1942, Secs. 1123, 1129.
Appellant's entire position is that the relator was a constitutional officer of the city within the full meaning of both Sections 20 and 175 of the Constitution of 1890 and that his dismissal before two years had expired was void, under those two constitutional sections and that the charter and ordinance provisions of the City of Columbus, with reference to the city officers holding office at the pleasure of the council, are void under said two constitutional sections. We will first discuss the relator's position with reference to Section 20, which provides that no one shall be appointed to office for life or during good behavior, but the term of all offices shall be for some specified period, and if this section applies to the relator, and if city ordinance 38 is void under this section, where does that situation leave the relator? We think that the logical end of the relator's argument in this respect amounts to nothing more or less than that his original appointment was also void, and that at best he was a mere de facto officer or employee holding at the will of the council, and therefore, under these circumstances, his dismissal at any time was in order. This is the logical end of his argument in this respect. However, we take the position that the aforesaid city ordinance and charter provisions are good.
Section 175 applies only to cases of removal where the ground of removal is the commission of a indictable offense, and does not apply to removals or dismissals based on some other cause, and the dismissal in this case according to the relator's own information was on an entirely different basis than a dismissal for an indictable offense.
Hyde v. State, supra.
We do not think that the relator, in the first place, was a public officer within the meaning of either of said sections of the Constitution; that he was merely an employee, being an assistant to the captain of police, which latter position was an office of the city, created by an ordinance. There never was an ordinance creating the office of assistant captain of police and there were three officers over this alleged officer in authority. Provisions similar to the Columbus charter and ordinance provisions, as to subordinate officers holding office at the will or pleasure of the body that appointed them, are very frequent in our statutes, and they are necessary in the orderly conduct of public business, and this court has recognized the right of the legislature to provide therefor, where such powers are definitely and specifically granted and such is clearly the case as to the Columbus charter. The general rule is that as to subordinate officers, in the absence of statutory or constitutional provisions to the contrary, the power to appoint carries with it the power to remove.
Board of Mississippi Levee Commission v. Kellner, 189 Miss. 232, 196 So. 779; Glover v. City Council of Columbus, 132 Miss. 776, 96 So. 521; State ex rel. Brown v. Christmas, State ex rel. Guess v. Miller, 126 Miss. 358, 88 So. 881; State ex rel. Knox v. Board of Supervisors of Grenada County, 141 Miss. 701, 105 So. 541; Code of 1942, Secs. 3803, 3827, 3853, 4235, 7689; Constitution of 1890, Sec. 279.
Green Green and W.E. Morse, all of Jackson, amicus curiae.
The commission form of government has been held to be constitutional.
Jackson v. State, 102 Miss. 663, 59 So. 873, Ann. Cas. 1915A, 1213.
Section 2639, Code of 1930, Section 3803, Code of 1942, whereunder the City of Jackson and other large municipalities are presently operating, the council is vested with power to remove any officer or employee elected or appointed by the council, and to elect or appoint a successor.
Tenure of office "during good behavior" is for a fixed term.
Mayor and Aldermen of City of Vicksburg v. Crichlow, 196 Miss. 259, 16 So.2d 749; State v. Fousek (Mont.), 8 P.2d 791, 792; Shira v. State ex rel., 187 Ind. 441, 444, 19 N.E. 833; Roth v. State ex rel., 158 Ind. 242, 264, 53 N.E. 460; Haney v. Cofran, Mayor (Kan.), 146 P. 1027, 148 P. 640; Laws of 1940, Ch. 287; Laws of 1944, Ch. 209, p. 368.
Argued orally by John F. Frierson, for appellant, and by B.H. Loving, for appellee.
The Attorney General, on the relation of the appellant, filed a petition in the court below, to which the City of Columbus was the sole defendant, alleging, in substance, that on the 4th day of January, 1943, he was elected by the mayor and city council of the City of Columbus as a policeman for a designated period, that is, his term was to expire with the expiration of the terms of office of the mayor and the members of the city council; that thereafter he was dismissed from the police force by an order made by the appellee's mayor and city council. The petition designated the appellant's position as policeman as an "office."
The petition prays for a judgment "that the said T.J. Glover, relator, is entitled to said office and should be reinstated therein" and for other relief not necessary here to be set forth. The appellee, the City of Columbus, filed a motion to dismiss this petition, which was in effect, what it should have been in form, a demurrer, alleging too, among other grounds, for the dismissal of the petition: (1) that this proceeding will not lie under Section 1120, Code of 1942, for the reason that it is not against a person in possession of and who withholds from the appellant an alleged office of which he claims to be the rightful incumbent; and (2) under the appellee's charter its mayor and city council had the right to dismiss the appellant from its police force. This motion of demurrer was sustained and the cause was dismissed.
The conclusion that we have arrived at on the second of these questions renders it wholly unnecessary for us to express any opinion on the first, consequently, we shall pretermit any discussion thereof; and anything hereinafter said must not be taken as an intimation that the procedure here adopted by the appellant is within the provisions of Section 1120, Code of 1942. The conclusion we have arrived at on the second of these questions will end this litigation; but a decision on the first of them to the effect that the wrong procedure was here adopted might, and probably would, result in another proceeding being instituted by the appellant for the accomplishment of what he here seeks.
Sections 20 and 175 of the Constitution are as follows:
"Section 20. No person shall be elected or appointed to office in this state for life or during good behavior, but the term of all offices shall be for some specified period."
"Section 175. All public officers, for wilful 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, and otherwise punished as may be prescribed by law."
The appellant says that he was a public officer within the meaning of these two sections of the Constitution; that under the first, he cannot be removed before the expiration of his term of office except by conviction on an indictment charging him with the commission of crime under the second.
Under Section 20 of the appellee's charter, Chapter CCCXC, Laws of 1884, the mayor and city council are directed to elect or appoint certain city officials, and "a sufficient number of police to preserve the peace, keep good order and enforce the ordinances of said city . . . and said council shall have power to remove from office at their pleasure, any officer appointed or elected by them, and they shall prescribe the duties of such office, except as fixed by this act."
Section 21 thereof provided that "said city marshal (a position or office created by the appellee's charter) and the police officers of said city shall execute all ordinances, rules and regulations adopted by the board of mayor and city council, and shall execute all process and obey all orders issued by the mayor of said city; said city marshal shall have general superintendence of the police . . ."
By Section 16 of the charter the appellee's mayor is given "power whenever he thinks the public welfare requires, to temporarily increase the police force by appointing additional policemen, and he may suspend from duty any policeman whenever he thinks it necessary, reporting such appointments or suspension with his reasons therefor to the city council as soon as practicable."
Counsel for appellant admit that the appellee's mayor and city council had the right to discharge him "at their pleasure" if the provision therefor in Section 20 of the appellee's charter is still in effect; but that provision, they say, is in conflict with Sections 20 and 175 of the State's Constitution adopted in 1890, several years after the granting of the appellee's charter, and therefore was repealed thereby.
Two questions here arise: (1) Was the appellant holding an office within the meaning of Section 20 and a public officer within the meaning of Section 175 of the Constitution, and if so, (2) was the provision of Section 20 of the appellee's charter here under consideration repealed thereby.
A public officer, broadly speaking, is a person appointed or elected to perform a designated duty concerning the public. The duty which a municipal policeman is called on to discharge, of course, concerns the public; consequently, broadly speaking, he may be referred to as a public officer. But the fact that his duties concern the public does not, without more, bring him within the provisions of Sections 20 and 175 of the Constitution. In order to come within the meaning of these two sections of the Constitution, the officer's duty must be continuing, be "defined by rules prescribed by law" (Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169) to be discharged by him in his own right, and not by permission and under the supervision and control of another. State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881; McClure v. Whitney, 120 Miss. 350, 82 So. 259. Applying this definition to the provisions of the appellee's charter hereinbefore set forth, it will appear that members of the appellee's police force are not public officers within the meaning of either Section 20 or 175 of the Constitution; for they serve only by permission of appellee's mayor and city council, who not only prescribe their duties but supervise and control the performance thereof.
The purpose for which municipalities are formed is to promote the welfare of the inhabitants of the territory embraced within the proposed municipality, one fundamental element of this purpose being to create a local authority for keeping peace within the territory. The responsibility for the accomplishment of this purpose for the appellee's incorporation is imposed by its charter, primarily, on its mayor and city council, and the appointment of a police force, and the supervision thereof, by them is for the purpose of enabling them to discharge this duty. If Sections 20 and 175 of the Constitution apply to the members of the appellee's police force, then its mayor and city council would be practically helpless when faced by a recalcitrant police force, and crime would run riot, except in so far as the county police officers might control it, while the mayor and city council were awaiting the finding and outcome of an indictment against the individual members of the city's police force. We must attribute to the members of the convention which adopted the Constitution of 1890 some common sense, which would be negatived if these sections of the Constitution apply here. If these sections apply here, they would also apply in other fields of government, and to such an extent that the public business could not be effectively discharged and the public welfare would be endangered. For example, it would apply to the police force of every municipality, the State Highway Patrol, members of the State Auditor's Accounting Department, members of the staff of the State Tax Commission, and to all of the employees of the state departments and political subdivisions whose duties concern the public welfare. McClure v. Whitney, supra. The dire consequences that would follow the construction of these sections of the Constitution which the appellant requests to give them, forbids us to so construe them unless it is clear that that construction, and no other, should be given them.
Section 20 of the appellee's charter refers to the appointees of its mayor and city council as officers and permits their removal "from office." This necessitates the consideration of State ex rel. Baker v. Nichols, 106 Miss. 419, 63 So. 1025. One of the questions there was: Is the position of deputy sheriff an office within the meaning of Section 250 of the Constitution, the purpose sought to be accomplished by which section is different than that sought to be accomplished by Sections 20 and 175 thereof. In answering this question, all the Court said was this: "The position of deputy sheriff is an office created by section 4664 of the Code, and is therein expressly designated as such. It can therefore only be held by a qualified elector." The duties of a deputy sheriff concern the public, and, broadly speaking, his position is a public office, as hereinbefore appears, and what the court evidently held was that all persons charged with the performance of duties which concern the public are public officers within the meaning of Section 250 of the Constitution. It may well be that the purpose sought to be accomplished by that section of the Constitution requires the application to all such persons. That a statute designates a position, the holder of which is charged with a duty concerning the public, as an office is not without significance; nevertheless "official or unofficial character is to be determined not by the presence or absence of an official designation, but by the nature of the functions to be performed." 46 C.J. 931. The court was not there called on to, and did not, determine whether a deputy appointed by a sheriff must be appointed for a fixed period of time and could not be removed at the sheriff's pleasure, as the statute provides, but only by indictment and conviction of crime under Section 175 of the Constitution. The case therefore, while of interest, is of little value here.
In Lizano v. City of Pass Christian, 96 Miss. 640, 50 So. 981, a city marshal elected by the people under Section 3375, Code of 1906, was removed from office not under Section 175 of the Constitution but under a municipal ordinance authorized by Section 3332 of the Code of 1906. Under that statute the city marshal not only is not appointed by the city's mayor and aldermen but must be elected by the people, and he exercises the power delegated to him by the legislature in his own right and not by permission and under the control of another, and, therefore, is a public officer within the meaning of Section 175 of the Constitution. That case is clearly distinguishable from the one we are now considering, as will appear from an examination of what has been hereinbefore said.
In Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 652, a proceeding in the nature of a writ of quo warranto, on relation of the police commission of the City of Meridian, was brought against Monette to oust him from membership in the Meridian police force. He had been appointed by the police commission under the provisions of Chapter 134, Laws of 1900, but not for a fixed period of time. The court below removed Monette as a member of this police force, and one of the reasons given by this court for affirming that judgment was "that a policeman is an `officer,' within the meaning of section 20 of the Constitution of the state of Mississippi, and must be appointed for some specified time." An examination of Chapter 134, Laws of 1900, will disclose that this holding is in conflict with what we have hereinbefore said, and should be, and is hereby, overruled.
Affirmed.
CONCURRING OPINION.
The term officer, or public officer, is not one of precise import, but its meaning varies with the connection in which used; and to determine it correctly, in a particular situation, resort must be had to the intention of the statute and the subject matter in reference to which the terms are used. Mootz v. Belyea, 60 N.D. 741, 236 N.W. 358, 75 A.L.R. 1347; State ex rel. v. Kiichli, 53 Minn. 147, 54 N.W. 1069, 19 L.R.A. 779; 42 Am. Jur., p. 879. Under the broader definitions a policeman is an officer; but the question here is whether that is the type of an office or officer which was within the contemplation of the makers of our Constitution in ordaining Section 175 thereof.
It is an absolute presumption that the makers of our Constitution were acquainted with official and governmental experience in every form and in every detail. They knew that officers or governing boards placed at the head of any governmental department and thereby made responsible each for the proper and efficient conduct of his office or department would of necessity have to have the authority of control and direction over every subordinate directly under him, even if these or some of them could themselves be denominated as officers as that term is broadly defined. They knew that dissensions, bickering, distrust, want of loyalty, and disagreements over policies and methods of procedure could seriously impair or destroy the efficiency of any important department, and that most of these deterrents to the worth of a department could never be reached by an indictment for "wilful neglect of duty or misdemeanor in office," which are the only causes of removal specified in Section 175 of the Constitution.
Examples for illustration may be taken from many departments of government, but the Highway Patrol, mentioned in the court's opinion, is sufficient. If policemen are officers within Section 175, then so are highway patrolmen, yet our statute, Section 8081, Code 1942, provides for the dismissal of patrolmen without any reference to Section 175. The statute provides, as it ought to do, an ultimate means by which these officers will be made to conform to the directions and policies of the heads of that department, to the end that the functions of the department shall be loyally fulfilled as the heads thereof determine it ought to be done, not as the subordinates or some of them think it ought to be.
The Court in its opinion has adhered to the traditional practice of deciding only the precise issue involved which, here, is the office of policeman, but the application of the principles of construction upon which the opinion proceeds, and correctly so, would lead to the holding which had as well be made now, that Section 175, Const. 1890, has reference only to officers elected by a direct vote of the people and to heads of departments appointed by the Governor and confirmed by the Senate, including members of governing boards or commissions so elected or appointed, and not to their subordinates by whatever title or name the latter may be called; and in addition to Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 652, we should overrule any case which holds or apparently holds otherwise, there being one or two others.
PARTIALLY DISSENTING OPINION.
I disagree with the majority opinion holding that the case of Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 652, should be overruled. A municipal policeman is a public officer, he is employed by the public to serve the public and is paid by the public. There is no substantial conflict in the authorities to that effect. 42 Am. Jur., Chapter on Public Officers, sec. 16; Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169; Ware v. State ex rel. Poole, 111 Miss. 599, 71 So. 868.
The following constitutional provisions and ordinances of the city should be taken into consideration in determining the question whether Glover was an officer removable at the pleasure of the city authorities:
Section 38 of the ordinances of the city provides that all officers appointed or elected by the mayor and city council shall hold their respective offices during the pleasure of the council appointing them, and their term of office shall expire, of course, with the council appointing them.
Section 20 of the ordinances provides, among other things, that the mayor and council shall have the power to remove at pleasure any officer appointed or elected by them.
Section 8 of the ordinances provides that the mayor and councilmen shall hold their offices for two years.
Section 20 of the Constitution of 1890 reads: "No person shall be elected or appointed to office in this state for life or during good behavior, but the term of all offices shall be for some specified period."
Section 274 of the Constitution provides, among other things: "All statute laws of this state repugnant to the provisions of this Constitution, except as provided in the next three sections, shall continue and remain in force until the first day of April A.D. 1892, unless sooner repealed by the legislature."
Section 175 of the Constitution is in this language: "All public officers, for wilful 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, and otherwise punished as may be prescribed by law."
Construing these constitutional provisions together in connection with the city ordinances referred to, it seems to me demonstrates that any ordinance or part thereof in conflict with Sections 20 and 274 of the Constitution was repealed after the 1st day of April, 1892. If that be true, then the result is Glover was a public officer with a term of two years, or for the balance of the term of the appointing power, and he could not be removed under Section 175 of the Constitution except for "wilful neglect of duty or misdemeanor in office" and conviction thereof on indictment. If a policeman is removable from office at the pleasure of the appointing power regardless of his qualifications, that, of course, would be true of all deputy officers appointed by the heads of departments of the state, including county and municipal. Think of the insecurity of such a position, to illustrate: Here is an officer highly competent to perform the duties of his office and is doing so; without cause the head of the department appointing him can kick him out at any time, he could do so alone for the purpose of making a place for a kinsman or a political ally. Such a power would be detrimental to the public welfare. The remedy alone to put him out of office would be that provided by Section 175 of the Constitution, "wilful neglect of duty or misdemeanor in office." If the case of State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881, holds to the contrary it is unsound and ought to be overruled. It is in conflict with the Monette case, supra, which holds that a policeman is a public officer.
I agree, however, that the judgment of the trial court should be affirmed for the reasons set out in O'Neal v. Fairley, 190 Miss. 650, 200 So. 722. It was held in that case that quo warranto would not lie as a remedy to put a claimant to an office in possession thereof unless another was occupying the office claiming the right so to do. That is exactly what we have here. Glover is seeking to be restored to an office unclaimed and unoccupied by anyone else.