Summary
In Mayor and Aldermen of City of Vicksburg v. Crichlow, 196 Miss. 259, 16 So.2d 749, the Supreme Court of Mississippi upheld the statute concerning the retirement benefits for the firemen and policemen as not gratuities, and as not extra compensation but being prospective it serves a beneficent and useful governmental function in its propensity for stimulating and rewarding faithful public services in hazardous employment.
Summary of this case from Opinion by the JusticesOpinion
No. 35391.
February 14, 1944. Suggestion of Error Overruled February 28, 1944.
1. MUNICIPAL CORPORATIONS.
The retirement benefits provided for under the Firemen's and Policemen's Pension Act are not "gratuities," nor for a "private purpose," nor the "lending of credit," nor are they "extra compensation" within constitutional prohibitions (Laws 1940, chap. 287; Const. 1890, secs. 20, 93, 108, 267).
2. CONSTITUTIONAL LAW. Municipal corporations.
The statute imposing a tax for the maintenance of a firemen's and policemen's retirement fund is not beyond legislative power, nor does it constitute "class legislation" (Laws 1940, chap. 287).
3. PLEADING.
The statute requiring affidavit of merits to set forth fully the nature of the defense precludes a mere generality, and its sufficiency is commended to the judgment of the trial judge, who must be thereby supplied with particulars from which he may accurately adjudge whether such purported defense is sufficient in law (Code 1942, sec. 1491 (Code 1930, sec. 547)).
4. MANDAMUS.
In mandamus to compel city to comply with statute relative to setting up firemen's pension fund, city's affidavit of merits setting up defense that petitioner was not entitled to benefits of the act, that city had not complied with the act, and that petitioner had been discharged as a fireman, were mere generalities and did not disclose a good defense (Code 1942, sec. 1491 (Code 1930, sec. 547)).
5. MANDAMUS.
In mandamus to compel city to set up firemen's pension fund as provided by statute, a judgment requiring city to conform with terms of the act, and also purporting to determine the merits of petitioner's claim for benefits thereunder, was too broad as including a prejudgment of matters within discretion of Pension Board not yet created, and requiring performance of duties not enforceable by mandamus (Laws 1940, chap. 287).
ANDERSON, J., dissenting.
APPEAL from the circuit court of Warren county, HON. R.B. ANDERSON, Judge.
R.M. Kelly, of Vicksburg, for appellant.
The petition of plaintiff, standing alone, as it does in this case, is not sufficient to sustain plaintiff's claim for recovery.
Section 13 of the Act plaintiff invokes, provides, among other things, that one eligible shall make written application for retirement and relief. Plaintiff has never made any written application for retirement and relief. Was it not incumbent upon petitioner to comply with the provisions of the Act he is invoking and, in writing, propound his claim to the governing authorities in order that they might have an opportunity to determine his rights in the premises?
See Laws of 1940, Sec. 13, Ch. 287.
There is no allegation in the petition that plaintiff has no other legal remedy.
35 Am. Jur. 91, Sec. 346; 34 Am. Jur. 835, Sec. 42.
Mandamus is an extraordinary writ and cannot be resorted to where there is another plain, adequate remedy provided by law.
Board of Supervisors of Rankin County v. Lee et al., 147 Miss. 99, 113 So. 194; Haskins v. Board of Supervisors of Scott County, 51 Miss. 406; 35 Am. Jur. 24, Sec. 253.
Defendant's affidavit of merit and request to plead further was sufficient. This affidavit and plea, and plea of general issue upon motion of plaintiff, was striken by the court. Had defendant been permitted to plead all of the facts to sustain the allegations set out in the affidavit of merit it could have been offered in proof of said allegations which plaintiff denominated as "too general."
Plea of general issue to petition for mandamus puts in issue every material allegation in the petition and it should not have been striken.
Cleveland State Bank v. Cotton Exchange Bank, 119 Miss. 868, 81 So. 170.
In this proceeding it is proposed to compel defendant to put in effect a particular legislative act and compensate petitioner in a sum not computed, but alleged to be due him as compensation. The judgment of the court was "that petitioner have of the defendants all and singular the relief of them prayed for in his petition and to which he is entitled as of right and law in the premises, and to enforce which relief the peremptory writ of mandamus shall issue forthwith commanding defendants promptly and faithfully to obey and to comply with the requirements of said Act or law and such writ. The judgment is too broad.
Anderson v. Robins, 161 Miss. 604, 137 So. 476; 21 R.C.L. 594, Sec. 142.
Section 93 of the Constitution of Mississippi provides: "The legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer." Members of the departments in question are officers such as contemplated by the Constitution.
Monette et al. v. State, 91 Miss. 662, 44 So. 989; State ex rel. Kiersky v. Kelly, 80 Miss. 803, 31 So. 901; Lizano v. City of Pass Christian, 96 Miss. 640, 50 So. 981; Hill v. Boyland, 40 Miss. 618; Lowry v. City of Clarksdale, 154 Miss. 155, 122 So. 195; City of Clarksdale v. Harris, 188 Miss. 797, 196 So. 647; State ex rel. Garrison v. McLaurin, 159 Miss. 188, 131 So. 89; Webster's Universal Dictionary, pp. 1131-1132; New Century Dictionary, Vol. 2, p. 1177; 3 Words Phrases, pp. 703, 710.
Section 20 of the Constitution of Mississippi provides: "No person shall be elected or appointed to any office in this State for life or during good behavior, but the term of all officers shall be for some specified period." Section 108 of the Constitution provides: "Whenever the legislature shall take away the duties pertaining to any office, then the salary of the office shall cease." Section 13 of the Act of 1940 provides that upon retirement of the officer from active service he shall be paid 50 per centum of amount of average monthly salary for life and thereafter continue to be paid to widow and children, if any, to surviving father or mother dependent upon him or an unmarried sister dependent upon him or dependent incurable children, unto the second generation.
Section 92 of the Constitution of Mississippi provides: "The legislature shall not authorize payment to any person of the salary of a deceased officer beyond the date of his death." Under authority of House Bill 643, Acts of 1940, plaintiff, if he prevails in this cause, although not a member of the department at the time of the filing of this proceeding, having been discharged for cause, and who was paid by the municipality every cent of the amount contracted to be paid for his services rendered, will, under Section 13 of the Act be retired on a monthly compensation of $63.50 for life, and thereafter to his dependents, the payments to be known as "Retired Relief," such compensation to apply, of course, to any other member of the departments in question, eligible under the Act, and this notwithstanding Sections 20 and 108 of the Constitution which provides that no person shall be elected or appointed to office for life or during good behavior but that the term shall be for some specified period, and that the "legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer."
Cooley, Constitutional Limitations (3 Ed.), p. 266.
Section 267 of the Constitution provides: "No person elected or appointed to any office or employment of profit under the laws of this state, or by virtue of any ordinance of any municipality of this state, shall hold such office or employment without personally devoting his time to the performance of the duties thereof." This section of the State Constitution at least clearly defines the persons designated as officers (if any doubt suggested) by the Constitution of the state for it charges that "no person, elected or appointed to any office or employment of profit under the laws of this state, or by virtue of any ordinance of any municipality of this state shall hold such office or employment without personally devoting his time to the performance of the duties thereof."
Under these sections of our Constitution can it be contended that the Act of 1940, the purpose of which is to grant relief to a particular class of municipal officers, is valid? Every relative expression of our Constitution and the spirit of our government is against it. If relief is to be provided for municipal officers or employees, let it be general, not "class relief." The proposed fund is to be contributed, at least partly, by a tax levied on all of the property of the municipality to which tax all of the officers and employees would contribute.
Section 96 of said Constitution provides: "The legislature shall never grant extra compensation, fee or allowance to any public officer, agent, servant or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections." It will be said this section 96 has no application here, yet, taken in connection with the other subject or subjects of this appeal and the expressions of the Constitution as set out in the sections cited, it may be pertinent.
There are certain and fundamental rights of the people, the continued existence and perpetuation of which are assumed as part and parcel of the foundations of their written constitution. And it certainly cannot be controverted as a settled principal of constitutional law that acts inconsistent with the spirit of the Constitution, inconsistent with the assumed fundamentals, contrary to the general scope and purpose thereof are as much within its prohibitions as if forbidden by the express letter thereof.
State ex rel. Garrison v. McLaurin, 159 Miss. 188, 131 So. 89.
It is fundamental that no tax may be laid to raise funds for a mere private or personal purpose.
Lowry v. City of Clarksdale, 154 Miss. 155, 122 So. 195.
See also Toombs v. Sharkey et al., 140 Miss. 676, 106 So. 273; Moore v. Tunica County, 143 Miss. 821, 107 So. 659.
Brunini Brunini and W.I. McKay (now deceased), all of Vicksburg, for appellee.
The legislatures of the several states are the repositories of plenary powers, subject only to restrictions imposed by the federal or state constitutions, either expressly or by fair implication, and, within these limits, they possess full powers and control over local subdivisions of the state. They may, accordingly, create, abolish, consolidate or divide such subdivisions, may control the administration of local affairs, appoint local officers, and create commissions and appoint commissioners for the exercise of the powers of local government.
Adams v. Kuykendall, 83 Miss. 571, 35 So. 830; 43 C.J. 155, 176, 186; 12 C.J. 754, 755.
The creation, maintenance, and operation of a fire department is a government function and not a municipal one. As in the case of police or other departments, the general rule is that the legislature, in the absence of constitutional restrictions, by virtue of the sovereign control and supervision of a municipality, the creature of its own creation, may create, regulate, and operate or provide for the creation, regulation, or operation of a municipal fire department.
Bowler v. Nagel, 228 Mich. 434, 200 N.W. 258, 37 A.L.R. 1154, note 1162; 43 C.J. 743, 824; 46 A.L.R. 683, note; 46 A.L.R. 689, note.
Class legislation is not expressly named in the prohibition of the state and federal constitutions; and neither the fourteenth amendment nor the provisions of the state constitutions prohibiting the granting of special privileges, affect the validity of state statutes making reasonable classifications of persons or things for the various purposes of legislation. If there is a reasonable ground for the classification and the law operates equally on all within the same class it is valid.
State v. Lawrence, 108 Miss. 291, 66 So. 745; 12 C.J. 1128, Sec. 855.
The constitutional requirement that the title ought to indicate clearly the subject-matter or matters of the proposed legislation is directory not mandatory.
City of Jackson v. State, 102 Miss. 663, 59 So. 873; State v. Phillips, 109 Miss. 22, 67 So. 651; Everett v. Williamson, 163 Miss. 848, 143 So. 690; Yazoo County v. Warren, 158 Miss. 323, 130 So. 287; Hall v. State, 166 Miss. 331, 148 So. 793; Lewis v. Simpson, 176 Miss. 123, 167 So. 780; State Constitution, Sec. 71.
One of the fundamental principles of the construction of constitutional provisions has always been that the Constitution shall be considered as progressive and not static. Accordingly, its terms should not receive too narrow or literal an interpretation, but rather the meaning given it should be applied in such a manner as to meet new or changed conditions as they arise.
Dunn v. Love, 172 Miss. 342, 155 So. 331, 92 A.L.R. 1323; affirmed Doty v. Love, 295 U.S. 64, 55 S.Ct. 558, 79 L.Ed. 1303, 96 A.L.R. 1438; City of Jackson v. Deposit Guaranty Bank Trust Co., 160 Miss. 752, 133 So. 195; 16 C.J.S. 50, Sec. 14.
Section 108 of the Constitution of 1890, does not appear to have been directly construed. It is probably intended to apply only to statutory offices created by the legislature as the court has held in a number of cases that the legislature cannot practically abolish a constitutional office by taking away the duties and fixing the compensation so low as to make it impossible for the incumbent to hold it except gratuitously.
Fant v. Gibbs, 54 Miss. 396; State ex rel. Atty.-Gen. v. Board of Supervisors of Stone County, 131 Miss. 689, 95 So. 683; Moore v. Tunica County, 143 Miss. 821, 107 So. 659; Justice Ethridge's work, Mississippi Constitutions, p. 224.
When the Constitution creates an office it has, in effect, declared that such office is a public necessity and the legislature cannot abolish it. But where the legislature creates the office, it may abolish it at will and may do so either directly or indirectly, as by abolishing all compensation.
Justice Ethridge's work, Mississippi Constitutions, p. 224.
We agree with Justice Ethridge that the dominant purpose of this provision was to permit the legislature to abolish offices and with it the salary, which might have been fixed at the time of the creation of the office. But even assuming that such would be applicable to the instant act, the complete answer lies in the fact that the duties are not being abolished. For sound reasons the duties are being limited and for limited pay.
Under Section 267 of the Constitution of 1890 it is clear that no fireman or policeman could be designated as fireman or policeman, receive full pay therefor, and perform none of the functions of a policeman or fireman. But nowhere in this section is there a prohibition against the creation of an office which does not require the full time of a person. For instance, under this section it would be an extreme view which would hold that a municipality could not create in Mississippi as they do in so many large cities a reserve police force or a reserve firemen force, similar in effect or principle to the National Guard of the state. Limited payments could be made to these officers who would only be called in emergencies or for limited service, or for these firemen who would be called only in cases of disaster. The common sense construction of the Constitution must prevail and it is only reasonable to say that the framers of this Constitution of 1890 did not intend to permit limited duties to be performed which would not require the full time of a person.
Miller v. Walley, 122 Miss. 521, 84 So. 466; Fairly v. Western Union Telegraph Co., 73 Miss. 6, 18 So. 796.
There is no reason to suppose that the firemen or policemen will not devote the necessary time to the duties required each month by the proper authorities under the terms of the legislative Act.
This Section 20 of the Constitution of 1890 is inapplicable to the legislative Act in question for the reason that the Act does not, itself, fix any "term of office" within the meaning of the framing of the Constitution. The intent of this provision was to prohibit something. This honorable court should look to the evil thought to be remedied by this particular section. Obviously it was designed to prevent the creation of active governmental offices of broad and general authority for anything but a specified period of time. It is not so much the prohibition of the person as a prohibition against the creation of an office. It is our thought that to pose the question is to provide the answer. Does the court believe that in 1890 the framers of the Constitution intended by this section to prohibit firemen and policemen from being placed upon an inactive status at considerably reduced pay? Certainly such was not within the class of acts which they sought to prevent.
Firemen and policemen are certainly not within the meaning of the word "officer" in Section 93 of the Constitution of 1890. We are not unmindful, as has been cited in the appellant's brief, of the fact that this honorable court in a very old case held that policemen were officers within the meaning of persons who, while on active duty, must have certain fixed terms, but as this court has likewise held, the term "officer" does not apply to all employees of the state or municipalities. State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881. As defined by this court in Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169, "the term office implies a delegation of a portion of the sovereign power, and the possession of it by the person filling the office." Only by the most extraordinary straining can firemen be brought within this classification. It is submitted that the word "officer" as used here in the Constitution is not applicable to a fireman or, for that matter, to a policeman. But even if we were to concede such to be true, still this section contemplates an absolute retirement with no further duties at all on the part of the officer. In other words, his responsibilities are severed, but such is not provided by the legislative act. Duties and responsibilities are placed upon the fireman and policeman.
In conclusion may we say that the Constitution is not, and must not become, a brittle instrument with sharp pinpricks of differences. A too literal and strict construction will oftentimes defeat the original intention of those framers of the Constitution. The language employed must be interpreted in the light of changing conditions, and failure so to do would render the Constitution itself inoperative over a period of time.
Crichlow filed his petition for writ of mandamus to compel the officials of the City of Vicksburg to comply with the provisions of the Act of May 6, 1940, chap. 287, which requires that in cities with a population of 10,000 or more "it shall be the duty of the governing authorities of said municipality to create and maintain a fund known as `Disability and relief fund for firemen and policemen.'" The Act further provides that such fund is to be created by an annual tax levy of not more than one mill supplemented by one per cent of the monthly salaries of its policemen and firemen and by gifts, donations and otherwise. To qualify for the benefits of the Act as a retired employee, an applicant must have been in paid fire or police department service for as long as twenty years, the last seven years and six months of which shall have been continuous in the city where application is made. It is further provided that: "Any member who has been retired or is voluntarily retired under this act, or who has received relief or disability benefits under this act, shall be required to report to the heads of such departments at least once every month to perform such duties as they may be required of them." Section 13. The petitioner alleged his qualifications as an employed fireman under the Act and showed demand upon the governing authorities to comply with the Act and to retire him from active duty according to its provisions.
Demurrer was interposed by the city and overruled by the trial court. Whereupon the city filed its affidavit of merits, together with a general issue plea, which, upon motion, were ordered stricken by the court and, in default of further pleading, final judgment was awarded on the original petition.
We consider first the alleged error in overruling the demurrer of the city and the consequent entry of judgment on the petition. The only assigned grounds which we find appropriate to notice are those involving the asserted unconstitutionality of Chapter 287 of the Act of 1940. This attack is directed to challenges that it is class legislation; that it retires officers on part pay and constitutes a grant or gratuity in violation of Section 93 of the Constitution of 1890; maintains the salary of an officer after his duties have been taken away, Sec. 108, id.; allows an officer to hold office or employment without personally devoting his time thereto, Sec. 267, id.; and runs counter to the requirement that no person shall be elected or appointed to office in this state for life or during good behaviour, and that the term of all offices shall be for some specified period, Sec. 20, id.
We are of the opinion that none of the cited sections is applicable to the case here presented. It should be mentioned that we are dealing solely with the right of a fireman employed by a municipality to retirement from his regular duties but subject to supernumerary tasks, to receive the benefits intended by the Act. The constitutional prohibitions are not in their language nor context broad enough to encompass a city fireman within their definition or purpose.
We need not supplement our conclusions with reasoning why these provisions of the Act as applied to appellee should be held without constitutional infirmity. These objections have been thoroughly canvassed by the courts and while there is here and there a discordant note, the overwhelming weight of authority upholds this benevolent expression of legislative power. The policy out of which such pensionary aid has evolved is governmental and has developed, not as an engrafting of innovation upon alien stock but springs from the seedling of public policy. That the retirement benefits are not gratuities, nor for a private purpose nor the lending of credit, has been settled upon extensive authority. Such pension is not "extra compensation" but being prospective it serves a beneficent and useful governmental function in its propensity for stimulating and rewarding faithful public services in a hazardous employment. State v. Ziegenhein, 144 Mo. 283, 45 S.W. 1099, 66 Am. St. Rep. 420, is an outstanding case often cited as authority for an opposite view. The invalidity of the statute there involved was based upon the finding that pensions to disabled or retired policemen were considered a taxation for a private purpose. The decision is rested upon Mead v. Inhabitants of Acton, 139 Mass. 341, 1 N.E. 413, in which the statute dealt with pensions or bonuses to war veterans disconnected from any municipal service. The distinction is pointed out in State ex rel. Haberlan v. Love, 89 Neb. 149, 131 N.W. 196, 34 L.R.A. (N.S.), 607, Ann. Cas. 1912C, 542. Its availability to such employee is thus made a part of his contract of employment.
We need not pause to reason defensively that the same Constitution, which is sought to be interposed as a barrier to the state's control of municipal administration, provides that even its officers are subject to control or removal through legislative action, Constitution 1890, Section 139. It is enough that the asserted constitutional barriers have been found by sound decisions not adequate to bar the progress and development of an awakened sense of governmental responsibility. Com. ex rel. Philadelphia Police Pension Fund Ass'n v. Walton, 182 Pa. 373, 38 A. 790, 61 Am. St. Rep. 712; People v. Abbott, 274 Ill. 380, 113 N.E. 696, Ann. Cas. 1918D, 450; Bowler v. Nagel, 228 Mich. 434, 200 N.W. 258, 37 A.L.R. 1154; Cobbs v. Home Ins. Co., 18 Ala. App. 206, 91 So. 627; United States v. Hall, 98 U.S. 343, 25 L.Ed. 180; Hammitt v. Gaynor (Sup.), 144 N.Y.S. 123; State ex rel. Haberlan v. Love, supra; 43 C.J. 842; Abbott Municipal Corporations, Sec. 707; 40 Am. Jur. "Pensions", p. 971; McQuillin, Municipal Corporations (2d Ed. Rev.), Sec. 2582, citing numerous decisions. The imposition of a tax for the maintenance of this fund is not beyond legislative power nor does it constitute class legislation. Adams v. Kuykendall, 83 Miss. 571, 35 So. 830; State v. Lawrence, 108 Miss. 291, 66 So. 745, Ann. Cas. 1917E, 322; 12 C.J. 754, 1128; 16 C.J.S., Constitutional Law, p. 954, Sec. 489; 43 C.J. 743, 824; McQuillin, op. cit., supra, Sec. 255. The Act requires the maintenance of a contractual relation between the city and the employee, and the meat of the relationship is found not in the extent of those services but in their compelled availability.
The narrow shackles imposed by a shortsighted construction of constitutional limitation have been progressively relaxed so as to give play to impulses which rise above mere beneficence and attain the recognition and dignity of a public duty and purpose. If occasion demands these provisions should do this end be given a liberal construction. McQuillin, op. cit., supra, pp. 276, 577.
When the demurrer was overruled, the city was entitled to plead further upon filing the affidavit of merits 2 Miss. Code 1942, Sec. 1491 (Code 1930, Sec. 547). We must therefore first examine the alleged error of the trial court in striking the affidavit and plea. It is the sufficiency of the affidavit, however, which is controlling, since the plea was not properly filed otherwise. The cited statute requires that the affidavit must set forth "fully the nature of the defense." This requirement, while clear in its purpose, is not subject to exact definition save with reference to the particular case. It precludes mere generality and its sufficiency is commended to the judgment of the trial judge who must be thereby supplied with particulars from which he may accurately adjudge whether such purported defense is "good and substantial." Mere generalities are but conclusions of the pleader. The asserted grounds must disclose details of defense which if established are sufficient in law.
In the case at bar, such asserted defenses included the allegations that the petitioner "is not of the class of persons" entitled to benefits of the Act; that the City of Vicksburg has not complied with the Act; and, among other assertions, that petitioner had been discharged as a fireman. The striking of the affidavit, which is tantamount to a finding that these allegations did not disclose a "good and substantial defense" and did not fully set forth the nature of the defense, will not be disturbed by us. Nor was it aided by the recital of the general issue plea filed therewith for it merely echoed its generality.
We come now to the form of the judgment awarded the petitioner. It recites that "the petitioner is entitled to the relief prayed for and to a peremptory writ of mandamus" and that he "have of the defendants all and singular the relief of them prayed for in his said petition and to which he is entitled as of right and law on the premises, and to enforce which relief the peremptory writ of mandamus shall issue forthwith . . ." The petition prayed for the writ and for retirement on a monthly pay of $63.50. The petition alleged that he "applied for retirement and relief under said act." It is not shown how a proper application could have been filed before the proper board was constituted. Petitioner must be held to a consistent position. His demand that the appellant comply with the Act must be matched with his own conformity with its terms. His allegation that he is qualified for benefits thereunder is sufficient to justify his application for the writ but does not establish the merits of his claim, the determination of which involves more than mere ministerial action.
The judgment is too broad in that it includes a pre-judgment of matters within the discretion of the board. Moreover, not all the duties imposed upon the appellant by the statute can be enforced by mandamus. In one particular, the writ directs performance of a duty already being complied with. It may go no further than to require specifically the doing of those ministerial duties which the law imposes upon the defendant and of which the petitioner may avail.
We have not pursued arguments relating to attacks upon other separable provisions of the Act, not applicable to the petitioner nor to the facts here involved. Nor are we concerned with whether the practical functioning of the statute jibes with its legislative idealism. Other technical objections to the statute have been found without merit. Authority need not be adduced to sustain the propriety of proceeding by mandamus.
Affirmed in part, reversed in part, and remanded.
DISSENTING OPINION.
The statute is a subterfuge by which it is sought to cover up so as not to be discovered a violation of our Constitution prohibiting pensions to public officers and employees. The statute violates Section 20 of the Constitution which prohibits any person to be elected or appointed to any office in the state for life or during good behaviour, and that the term of all officers shall be for a specified period; and violates Section 108 which provides that whenever the legislature shall take away the duties pertaining to any office then the salary of the office shall cease; and Section 267 is violated, which is in this language: "No person elected or appointed to any office or employment of profit under the laws of this state, or by virtue of any ordinance of any municipality of this state, shall hold such office or employment without personally devoting his time to the performance of the duties thereof."
Section 93 of the Constitution is violated, which is in this language: "The legislature shall not retire any officer on pay, or part pay, or make any grant to such retiring officer."
Section 96 of the Constitution is also violated, which is in this language: "The legislature shall never grant extra compensation, fee, or allowance, to any public officer, agent, servant, or contractor, after service rendered or contract made, nor authorize payment, or part payment, of any claim under any contract not authorized by law; but appropriations may be made for expenditures in repelling invasion, preventing or suppressing insurrections."
It will be observed that this section prohibits extra compensation, fee or allowance to any public officer, agent, servant or contractor after service rendered. Our court held in Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 715, a policeman was an officer as defined in Section 20 of the Constitution. Volume 35 of Words and Phrases, Perm. Ed., Page 228, gives the following definition of a public officer: "A `public officer' being one who renders a public service, or service in which the general public is interested, a municipal fireman is a public officer, as he is charged with the public duty of protecting the property in the municipality from fire."
If a fireman is not a public officer, surely he is an agent or employee for profit under the provision of Section 267 of the Constitution.
Certainly the municipality would be without authority under the law to permit its officers and employees to remain idle except when requested to render services at appointed times fixed for that purpose. The municipality is required to provide a sufficient number of officers and employees to carry on its affairs continuously without their duties being left to call to service at stated periods.
If this statute is constitutional, it appears to me to mean that every state, county and municipal officer in the state could be retired on a pension in the same manner.