McCool v. State Ex Rel. Howie

115 So. 121, 149 Miss. 82, 1928 Miss. LEXIS 5

• Court: Mississippi Supreme Court
• Decided: January 2, 1928
• Docket: No. 26664.
• Status: Published

Opinion

Ethridge, • J.,

delivered the opinion of the court.

J. H. Howie, district attorney, filed a quo ivarranto against the appellants, D. C, McCool, D. C. Ross, and P. W. White, seeldng to remove them from office under the provisions of section 3430, Code of 1906 (section 7015, Hemingway’s Code 1927, section 5990, Hemingway’s Code 1917). The defendants in the suit were aldermen of the city of Canton during the term 1925 and 1026. They were re-elected for the term 1927 and 1928, qualified, and were inducted into office, and are exercising the powers and discharging the duties of the said office for this new term, and they are sought to be ousted from office by virtue of said section, because they' increased the municipal debt during their term of office, and are, therefore, ineligible to succeed themselves in office. It is alleged that said 'debt was increased without being authorized by a vote of a majority of the qualified electors of said municipality. The declaration sets forth many items of indebtedness so contracted during the term 3925 and 1926, and alleges that, by virtue of the said statute, they are disqualified to succeed themselves, and prays for a judgment removing them from office. The appellants demurred to this petition, setting up the lack of jurisdiction in the court to entertain the suit and afford the relief prayed for, or for any relief upon the allegations in the bill; also setting up in the demurrer that the statute above mentioned is unconstitutional. The court overruled the demurrer, whereupon defendants set up by pleas practically the same things set forth as grounds for the demurrer, which pleas were demurred to by the plaintiff, and the demurrer was sustained. Defendants were allowed to amend; their pleadings by setting up the allegations that much of the indebtedness set forth had been authorized by their predecessors in office, etc. The cause proceeded to trial, and a judgment was rendered removing the appellants from office, from which judgment this appeal is prosecuted, a supersedeas having been allowed.

Section 3430, Code of 1906 (section 7015, Hemingway’s Code 1927), reads as follows:

“The mayor and board of aldermen shall publish on the first of October, annually, a statement showing the amount of taxes and other moneys collected during the preceding year, giving each source of income, the amount of expenditures in detail, stating for what purposes made. The statement shall show the resources and indebtedness of the municipality at the beginning of the fiscal year and at its close, and it must be spread on¡the minutes of the board. If there have been an increase of taxation as compared with the year next preceding or if the indebtedness of the municipality have been increased during the year, by contract or by ordinance participated in or voted for by the mayor and aldermen, unless the increase be authorized by the electors as provided in this chapter, the mayor and aldermen shall be suspended from office, and the Grovernor shall appoint their successors, who shall hold until the next election and qualification of officers thereunder. In case of an increase of indebtedness not so authorized, the mayor and aldermen shall not succeed themselves or each other. In towns or villages of less than one thousand inhabitants the mayor and board of aldermen may have the statement in this section required posted in a conspicuous place in the municipality or published in a newspaper. Other municipalities "shall cause it to be published in a newspaper, if there be one therein, otherwise it must be posted in at least three public places in the municipality.”

From the above statement it will be seen that this is not a prosecution for misdemeanor in office predicated upon indictment by a grand jury. The declaration did not proceed, however, upon the idea that the defendants were guilty of a misdemeanor .during their present term of office, but proceeded upon the theory that they were disqualified for acts ¡(lone in the preceding term, which, under the statute, rendered them ineligible to succeed themselves, and that, therefore, the quo warranto would lie to oust them from office because they were not eligible to hold the office ;| that the state by quo warranto could oust a person from an office which he was not;qualified by law to fill. No act committed during their present term is therefore involved in the present proceeding.

In supplemental briefs filed, the constitutionality of the Constitution is challenged, because the statute is in conflict with section 250 thereof, which provides that “all qualified electors and no others, shall be eligible to office, except as otherwise provided in this Constitution.”

There is no allegation that the aldermen were suspended during the term of office in which the indebtedness was increased. The whole case rests upon the clause in the above-quoted statute, “in case of an increase of indebtedness not so authorized, the mayor and aldermen shall not succeed themselves or each other. ’ ’ This clause of the statute, clearly, is intended to render the officers ineligible to succeed themselves or each other in office. It is therefore a disqualification for holding office im- o posed by the legislature upon the officers because of such acts; and, as there was no indictment and removal from office, under section’175 of the Constitution, the whole case hinges upon the validity of this statutory disqualification to hold office.

Can the legislature impose a disqualification in addition to that stipulated for in section 250 of the Constitution, above quoted?

In Wynn v. State, 67 Miss. 312, 7 So. 353, the court had before it the question whether the legislature could add a qualification, not named in the Constitution, for the office of county superintendent. Section 2 of the act there involved provided:

“No person shall be eligible to. such office of county superintendent of education who does not hold a first-grade certificate; and the term of county superintendents of education so elected under this act shall begin on the first Monday in January, 1890, and shall continue two years, or until said superintendent’s successor shall qualify.” Laws 1888, chapter 36.

Wynn, the officer elected in that case, was elected at the election in November, 1889, and on the first Monday in January following took the oath, and entered upon the duties of the office, when the district attorney, on behalf of the state, filed an information in the nature of a quo warranto ag’ainst him to try his right to said office.

The information alleged that the act of 1888, providing for the election of county superintendents of education in certain counties, was unconstitutional, being in violation of article 8, section 1, of the Constitution of 1869. His eligibility was also assailed, because at the time of his election and qualification he did not hold a first-grade certificate, as required by section 2 of the act.

By section 18', article 1, of that Constitution (1869), it was provided that “no property or educational qualification shall ever be required for any person to become an elector.” Section 2 of article 7, made “all male inhabitants of this state [with certain exceptions], twenty-one years old, . . . etc., qualified electors.” And by section 4 it was provided that “no person shall be eligible to any office . . . who is not a qualified elector.” The court in its opinion said:

“These provisions make it clear, we think, that every qualified elector is eligible to any office for which other qualifications are not specifically required by the Constitution. For many of the offices created by its qualifications of age or residence are prescribed. As to other offices for which it provides there are no qualifications required, except that contained in section 4 above, viz. to be a qualified elector. This shows that, where other than, the general requirement to be a qualified elector was intended, it was prescribed, and where no special qualification for an office was prescribed it was as intended that the g’eneral provision should apply, and to be a qualifiedl elector is sufficient. From the provision ‘no person shall be eligible to any office . . . who is not a qualified elector,’ the implication is very strong that a qualified elector shall be eligible to any office, unless otherwise provided; and, in view of the fact that it is otherwise provided as to certain offices, the implication becomes a necessary one, and decisive against the claim of power in the legislature to add to the constitutional qualification for office. It is inconceivable that the framers of the Constitution in providing, ‘that the legislature shall have power to make said office of county school superintendent of the several counties elective, as other county officers are, ’ intended to include the power to'restrict and limit the range of choice by the qualified electors, so as to exclude all except such as should comply with certain requirements unknown to the Constitution, and not in harmony with its spirit and provisions. If the legislature has the power to prescribe qualifications for an office created by the Constitution, it may make them what it pleases in its discretion, Grant the power and it must be held to be without limit, except by some positive prohibition of the Constitution, and there is none except that ‘no property qualification for eligibility to office shall ever be required, ’ and that no one but a qualified elector shall be eligible to any office. Suppose that the legislature, instead of imposing as it endeavored to do, a just and proper condition of eligibility to the office—one calculated to secure fitness and efficiency—had provided that none except colored men should be eligible in certain counties, or had made some other requirement equally absurd and ridiculous, would any be found to contend for the validity of such an enactment? It is thus seen that the only safe course is to deny the right of the legislature to add to any office created by the Constitution, any qualification for the incumbent not imposed by the Constitution itself. As offices were created by it, and the subject of qualification dealt with and special requirements made for certain offices, and general requirements as to all, it must be assumed that it prescribes all that was intended, and that none can be added, however appropriate they may be.?’

This decision was rendered at the October term, 1889, the year preceding the constitutional convention of 1890, and must have been fresh and clear in the minds of the members of that convention. The fact that it was in their minds is apparent from the fact that the qualification for county superintendent was provided for in section 204 of that Constitution, and the legislature was given power to prescribe the qualification, compensation, and duties therefor in express terms. This, it seems to us, indicates that the convention did not intend to leave it to the legislature to prescribe qualifications in addition to those fixed in the Constitution. It is further evidenced, from a careful consideration of the language of section 250, that “all qualified electors . . . shall be eligible to office, except as otherwise provided in this Constitution,” meant to take from the legislature all power with reference to qualification for office not included in the Constitution itself. Had it been the intention of the convention to allow the legislature to provide additional qualifications, it would have been written “except as otherwise provided by law.” The convention did not choose to use the term “provided by law,” but chose to use the words “provided in this Constitution” instead.

An examination of the different sections of the Constitution will show that as to many officers other qualifications than being an elector were added. Judges of the supreme court, chancery and circuit- courts, and the attorney-general, have all been required, not only to be qualified electors, but to have been practicing lawyers, for a good length of time, also to have attained certain ages, and to have been resident citizens of the state for a number of years. The Governor, Lieutenant Governor, secretary of state, auditor, and state superintendent of education are required to have special qualifications; and by various sections of the Constitution, additional qualifications to that of being a qualified elector are required. It is therefore manifest that the constitutional convention carefully considered the subject of qualification for office, and prescribed such qualification as the convention thought necessary to be provided, having in view public policy, and the good of the state.

It is argued here, as it was in the Wynn case, that the section was dealing only with constitutional offices; and it is insisted that, as municipal offices were not provided for in the Constitution specifically, but were left to be created by the legislature or abolished by it, the legislature could prescribe the qualification desired for such offices.

Does section 250 of the Constitution authorize the legislature, in creating statutory offices, to prescribe additional qualifications therefor? In other words, does the provision of the Constitution here apply to municipal and other statutory offices?

In Roane ex rel. Tunstall v. Matthews, 75 Miss. 94, 21 So. 665, it was held that a municipal officer must be a qualified elector of the state and county, as well as of the city; and that an officer who is not a'registered voter although inducted into office, can be ousted from such office because not so qualified. And many other provisions of the Constitution and decisions will show that the constitutional convention had in mind municipal offices in making the various provisions therefor.

Section 20 of the Constitution prohibits the election or appointment of any person to office in this state for life or good behavior, but provides that the terms of all officers shall be for some specified period.

In Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 715, it was held that this section of the Constitution applies to municipal, as well as state and county, officers, and that a municipal ordinance purporting to authorize the appointment of policemen during good behavior is unconstitutional and void.

It will be noted that municipal officers are not specifically embraced in the language of section 20 of the Constitution, but the court has held that it applies to them, the same as to state and county officers.

In State ex rel. v. Armstrong, 91 Miss. 513, 44 So. 809, it was held that section 2 of the Constitution prohibiting an officer in one department from exercising the powers properly belonging to-an officer in another of the three departments applies to a mayor. It was there held that the mayor’s office is executive, and that the office of justice of the peace is judicial, and that they are incompatible, and cannot be held by the same person at the same time, and the acceptance of the office of mayor by a justice of the peace is itself a vacation by him of the judicial office, under section 2 of the Constitution.

In Moore v. State (Miss.), 45 So. 866, not officially reported, Moore was tried on affidivit for misdemeanor in office, in a justice of the peace court. The affidavit charged that he, as marshal of the town of Senatobia, had arrested the affiant, and forced him to work upon the streets, when, as a matter of fact, affiant had never been tried or convicted of any offense, and no fine or costs had been imposed upon him. The mayor was tried before a justice of the peace, found guilty, and fined twenty-five dollars and costs, and removed from his office as marshal. He appealed to the circuit court, and was again convicted and sentenced to pay the same fine imposed by the justice of the peace, and removed from office by the circuit court.. On appeal to this1 court this court held, speaking through Justice Calhoon, that the proceeding was in violation of section 175 of the state Constitution, which required an indictment as well as a conviction to authorize a removal from office, and that that method was exclusive, citing authorities.

In Lizano v. City of Pass Christian, 96 Miss. 640, 50 So. 918, it was held that section 175 of the Constitution of 1890 applies to city marshal, and that a municipal ordinance, predicated of the Code of 1906, section ,3332, providing “for the impeachment and removal of elective officers” for willful neglect of duty or misdemeanor in office by the mayor and board of aldermen, without indictment and conviction as a condition of removal, is void.

, In Adams v. Miss. State, Bank, 75 Miss. 701, 23 So. So. 395, it was held that section 112 of the Constitution, providing that taxation shall be uniform and equal throughout the state, and that property shall be taxed in proportion to its value, applies to municipalities. At page 718 (23 So. 395) of the Mississippi report the court said:

“At the very threshold of this investigation, we are ' met by the, earnest contention of counsel for appellee, that section 112 does not refer to municipal taxation, but only to such taxation as may be imposed for the purpose of providing revenue for the administration of state and county affairs. Learned counsel support their argument by numerous citations from other states. We have given the subject the careful research which its gravity and importance demands, and are constrained to adhere to the decisions of our supreme court. In Daily v. Swope [47 Miss. 367], it was held that the general system of taxation within the scope of section 20, article 12, Constitution 1869 (as distinguished from taxation for the purpose of local improvements), referred to the ‘impositions and assessments for the general, usual, and ordinary purposes of the state and the county and municipal bodies.’ And this doctrine was expressly reaffirmed and approved in Vasser v. George [47 Miss. 713], where it was said: ‘The limitation upon the power in that section (section 20, article 12) only applies and governs taxes levied for the usual, ordinary, and general purposes of the state, county, and incorporated city or town. ’ We are forced to reject the contention of appellee, and are content to abide by these decisions. Clearly section 112 does apply to and governs municipal taxation. See, also, Southern R. R. Co. v. Jackson, 38 Miss. 334.”

It appears plain to us from these provisions that section 250 applies to municipal and- statutory officers as well as to constitutional officers,- and that the constitutional convention enumerated all the cases where, in its opinion, special qualifications are required. The fact that it might be well to require additional qualifications in particular instances cannot affect the construction of the constitutional provision in the light of the decision of the Wynn case, supra. It must be remembered that, from the establishment of the American government following the Revolution, down to at least 1890-, the people have been jealous of their political rights, and their right to participate in the offices of the government and the management of public affairs, and this has been esteemed one of the privileges of American citizenship. The constitutional convention sought to perpetuate this principle in the Constitution. It is true, too, the legislature is free to create additional offices for the public welfare. But it manifestly intended that, where the Constitution itself had not provided to the contrary, the legislature could not prescribe additional qualifications. As said by Judge Campbell in the Wynn case, “if the legislature can prescribe additional qualifications, its power is without limit. ’ ’

In State v. Henry, 87 Miss. 125, 40 So. 152, 5 L. R. A. (N. S.) 340, it was held by this court that, "where the Constitution deals with a subject, its provisions cannot be enlarged or restricted by legislative enactment, in the absence of constitutional warrant for so doing;” and, ■"where the Constitution enumerates power granted or denied, it must be held to have named all óf the powers so dealt with-and as being, with the necessary implications, the sole limit of authority or restriction. ’ ’ This is a familiar rule of constitutional and statutory construction, and has been announced in many other cases. We are therefore of the opinion that so much of section 3430, Code of 1906 (section 7015, Hemingway’s Code 1927), as provides that, "in case of an increase of indebtedness not so authorized, the mayor and aldermen shall not succeed themselves or each other,” is unconstitutional and void.

It is urged by the appellee that section 80 of the Constitution which provides that provision shall be made by general laws to prevent the abuse by cities, towns, and .other municipal corporations of their powers of assessment, borrowing money and contracting debts, authorizes the legislature to provide, as it does in section 3430, Code of 1906 (section 7015, Hemingway’s Code 1927), for eligibility of officers violating such restrictive statutes. We do not think this section of the Constitution is susceptible of that construction. We would not undertake to say just where the limit of legislative power under section 34)30’, Code of 1906 (Section 7015, Hemingway’s Code 1927), is to be drawn, bat it does not reach to a case of this kind. The legislature, clearly, could make void a debt created in violation of law, and could make the officers incurring it subject to indictment, trial, and punishment, and, as a part of the punishment, removal from office, but it cannot add to the qualification prescribed by the Constitution for holding office. The two sections must certainly be construed together, and, under the granting power of section 80, it certainly was not contemplated that the legislature should violate any of the provisions of the Constitution in enacting laws to carry out section 80.

The judgment of the court below will therefore be reversed, and judgment rendered here for the appellants.

Reversed, and judgment here for appellants.

Reversed.