Lizano v. City of Pass Christian

50 So. 981, 96 Miss. 640

• Court: Mississippi Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinion

Mayes, J.,

delivered the opinion of the court.

As the law now stands, in so far as it authorizes a removal of this character of public officer, section 175 of the constitution of 18901 of the state provides the exclusive mode, where the removal is sought on a charge of wilful neglect of duty, or misdemeanor in office. Under the above section the sine qua non to removal is presentment or indictment by the grand jury and conviction, before there can be any removal on account of the things named in the above section, to wit, wilful neglect of duty or misdemeanor in office. The appellant is a city marshal, elected by the popular vote of the city, and the mayor and board of aldermen are seeking to impeach and remove him because of wilful neglect and misdemeanor in office, the very causes which the 'constitution names in the above section, and which it provides as causes for removal only when the officer has been presented or indicted by a grand jury and convicted. The mayor and board of aldermen have not proceeded in the way required by the constitution, but are proceeding by virtue of an ordinance passed under the authority of section 3.332 of the Code of 1906, which gives the municipality power to pass ordinances providing “for the impeachment and removal of elective officers,” etc., and undertake to remove the marshal without indictment and conviction.

We do not deem it necessary to set out here the ordinance passed by the mayor and board of aldermen under this section of the statute. Suffice it to say that the ordinance does not conform to the requirements of the section of the constitution in question, in that it provides for the removal without indictment, trial, and conviction, and is therefore a nullity. While the legislature gave the power to the municipality to pass ordinances for the impeachment and removal of elective officers,, etc., of course the legislature did not'intend that the municipality should pass an ordinance conflicting with the constitution of the state. We shall not undertake to name all the persons engaged in a public employment who are “public officers” within the meaning of section 175 of the constitution of 1890, but we deal with the case now before us, and do not hesitate to say that a city marshal, elected by the people as their officer, is a “public officer,” within the meaning of this constitutional provision. In the case of Moore v. State, 45 South. 866, it appears that Moore was the city marshal of Senatobia, and was charged by affidavit before a justice of the peace with malfeasance in office, fined, and removed from office; but this court held that the conviction, even before a justice of the peace, would not warrant the removal of the marshal by him, because the constitution required that there should be a grand jury presentment or indictment and conviction before removal. The rale announced here is the rule which this court has heretofore declared in the cases of Ex parte Lehman, 60 Miss. 967; Hyde v. State, 52 Miss. 665, and the cases therein cited.

But it is argued that the decision in those eases only applied to constitutional offices, and, since the city marshal is not a constitutional officer, these cases have no application. We do not think there is anything in this contention. Section 175 applies to “all public officers!,” and the city marshal is certainly a “public officer,” within the meaning of the constitution. It should be a serious thing to remove from office, before the expiration of his term, any officer whom the people have selected to govern them. It was designed by the constitution to make it a serious thing. Unless there is immediate and serious cause, the ballot is intended to be the method of removal, and it was not the purpose of the constitution makers that tbe will of the people should be thwarted by partisans, but that removals should only be made by calm judicial investigation, and 'only after conviction. This method is safe, and should and must be pursued as the constitution requires. We are not to be understood as intimating that the mayor and board of aldermen were moved by any but the most impartial motives in attempting to remove appellant, but we are merely discussing the reasons for the law in its application to this case.

Reversed and remanded.