Yerger v. State ex rel. Brown

45 So. 849, 91 Miss. 802

• Court: Mississippi Supreme Court
• Decided: October 15, 1907
• Status: Published

Opinion

Mayes, L,

delivered the opinion of the court.

This is a quo warranto, brought by the attorney-general of the state, on relation of James Brown. The facts stated in the petition are as follows, viz.:

It is alleged that under the laws of the state of Mississippi the board of trustees of the penitentiary was constituted on the 1st day of January, 1907. On that date the relator was elected secretary and clerk of the board as provided by law;, that he held his office from the 1st day of January, 1907, until the 31st day of December of the same year, when the term of office for which he had been elected expired, and on the 31st day of December, 1907, at a regular meeting of the board of trustees, he was again elected clerk and secretary of the board for the year 1908, and entered upon the discharge of his duties, duly qualifying on the 1st day of January, 1908. Under this second appointment he continued to discharge the duties of the office of clerk and secretary until the 20tli day of January, 1908, when the successors in office of the board of trustees that had ajapointed him on the 31st of December, 1907, passed the following resolution, viz.: “ Whereas, the board of penitentiary trustees of the state of Mississippi, having qualified according to law and taken possession of said office, together with the records, books, papers, and affairs of said office, and entered upon the duties imposed upon them by law, deem it to the interest of the public service that all agents and employes under this board shall be elected by this board: Therefore, for the above reasons, and because we believe the public service requires it, we hereby discharge and dismiss all the persons selected by the outgoing board and declare their offices vacant. Proper vouchers will be issued for the services rendered to date. Ordered this 20th day of January, 1908.” After the passage of this resolution the board as it was constituted on January 20, 1908, proceeded to elect other officers in lieu of those discharged by the resolution, and elected Lawrence Yerger as its clerk and secretary for the year 1908, in place of Brown, dismissed. At the same session of the board and on the 21st day of January, 1908, the board as then constituted passed the 'following order, viz.: “ Ordered by the board that Supt. Neyland forthwith place the newly elected officers, to-wit, clerk of the board of trustees, prison physician, dispatch surgeon, and commissary clerk, in full and complete possession of their respective offices, together with all books, papers, furniture, and all property belonging to their offices.” On the same • day, to-wit, the 21st day of January, the following order was also passed: “ It is ordered by the board that the former secretary of the board of trustees of the Mississippi penitentiary deliver to the trustees all the records, books and papers pertaining to the affairs of this board for inspection and investigation. We believe that necessity requires that this shall be done at once.” The relator refused to deliver the books, papers, records, etc., to the board, except upon condition that they would not be turned over to Yerger as clerk and secretary, whereupon the chairman demanded the unconditional surrender of the records and books, and relator still refused to deliver same until assured that the same would be returned to him, and, finally, in order to assert his right to the office of clerk and secretary of the board for the year 1908, Brown turned over the records, books, etc., pertaining to the office of clerk and secretary of the board of trastees of the penitentiary under protest and under compulsion, claiming that they had no right to demand them from him. After obtaining possession of the books, papers, etc., the trustees placed same in the possession of Yerger, chosen by them to succeed Brown as their clerk, and he now holds said books, papers, records, etc., of the office, and is undertaking to and is discharging the duties thereof; and in this way Brown has been ousted from the office and denied the right to discharge the duties or to receive the salary therefor as provided by law. The petition alleges that Brown is entitled under the law to hold the office for one year from the 1st day of January, 1908, and that Lawrence Yerger is now illegally, unlawfully, and without right exercising the duties of said office and claims the salary provided by law for the services, without any legal right so to do, and prays for judgment against Yerger for the possession of the office, and all the books, records and papers pertaining thereto.

The agreement of counsel shows that the minutes of the board of trustees of the penitentiary show the following, to-wit: That the trustees met in regular session December 3, 1907, and the adjourning order at that session was: “Ordered, that the board dp now adjourn until Monday, December 30, 1907.” The minutes of the meeting of December 30, 1907, i*ecite that the board met pursuant to agreement and concluded as follows: “ Ordered that the board take a recess until 10 o’clock tomorrow morning.” The board thereupon met December 31, 1907, and elected relator secretary and clerk, and also elected other officers. The next meeting of the trustees in regular session was on January 8, 1908. The incoming trustees met, as stated in the information, on January 20, 1908. Mr. Taylor called attention to the fact that the code chapter has no requirements as to the date on which employes of the penitentiary shall be elected, but provides that-the trustee shall adopt rules, regulations, and by-laws for the government of the penitentiary, and offered the following by-law which was adopted: “ All employes of the penitentiary who are selected by the trustees shall be selected and their terms of office shall commence on the day when the incoming trustees under the law shall enter into office and annually thereafter.”

To this information a demurrer was interposed, assigning six grounds of demurrer: First, that the minutes show that Yerger was lawfully elected secretary and clerk, and is entitled to the office; second, that it was boynd the power of the outgoing board to elect the secretary to serve during the year 1908 and until January 1, 1909; third, that the outgoing board of trustees had no legal right to hold adjourned meetings for the purpose of electing employes for the incoming year; fourth, that the outgoing board of trustees had no authority to meet on December 31st and elect employes for the succeeding year; fifth, that, if relator was legally elected for the year 1908, he was discharged and removed from the office; sixth, if relator was elected for the year 1908, and improperly discharged, the office was not a public office, within the meaning of the statute authorizing quo warranto, and the relator has no right to invoke this remedy. This demurrer was overruled, and a judgment rendered in favor of the relator, declaring him to be the lawful clerk and secretary of the board of trustees, and requiring Yerger to deliver over all the records, books, papers, etc., into his care and custody.

The first question to which we shall address our attention is whether or not the clerk of the board of trustees of the penitentiary is filling such an office as will authorize the issuance of the writ of quo warranto to determine the right thereto. Section 4017 of the Code of 1906 provides that “ the remedy by information in the nature of a quo warranto shall lie, in the name of the state, against any person or corporation offending in the following cases, viz.: First, whenever any person unlawfully holds or exercises the functions of any public office, civil or military,” etc. By reference to section 3598 of the Code of 1906, it is seen that the office in question is created by the statute. It is not a mere employment by the board in their administrative capacity of a person to do a particular service, but the statute creates the office. It is true that the heading of the section calls them “ Employes of the Penitentiary ”; but this designation of them does not change the character of their service to the public. In the case of Monette v. State, Ante 662, 44 South., 989, citing Shelby v. Alcorn, 36 Miss., 273; 72 Am. Dec., 169, and Kiersky v. Kelly, 80 Miss., 803; 31 South., 901, it was held that “ a public officer is one who has some duty to perform concerning the public, and he is not the less a public officer when his duty is confined to narrow limits, because it is the duty and the nature of that duty which makes him a public officer, and not the extent of his authority.” See, also, Ells v. Greaves, 82 Miss., 36; 34 South., 81. Under. these authorities the duty which Brown is to perform being a duty concerning the' public, as contradistinguished from a private employment, and his office being created by the statute,we do not think there can be any question as to the right to resort to the writ of quo warranto in this case, or that it can be doubted that he is an officer within the meaning of this section of the statute.

Section 3598 of the Code of 1906 provides that the employes of the penitentiary shall be the clerk of the board of trustees, etc., and provides that the term of office of all employes shall be one year, and that they shall be elected by the board of trustees. When a clerk has been elected and has served his term of one year, unless he is re-elected, by virtue of the statute itself his term expires and his right to fill the office ends. There is no provision made for any of the employes under this statute to hold over; but at the expiration of their term of one year, unless re-elected, their term ends, and they have no further right to act. There is no provision in the statute as to the time when their terms shall commence, nor is there any fixed time as to when their terms shall end; but the statute simply provides that their term of office shall be one year. Under these conditions, there being no term of office fixed by the statute for the commencement of the term, as held in the cases of Hughes v. Buckingham, 5 Smed. & M., 632, and McAfee v. Russell, 29 Miss., 84, the term commences from the date of the appointment. Therefore, under the allegations of the petition filed in this case, which shows that Brown was elected on the 1st day of January, 1907, his term of office expired one year from that date, and while the old board was in lawful existence and in the actual discharge of all the duties imposed upon the trustees. This old board continued in office, not only after the time when Brown’s term of office expired, but for twenty days thereafter, so that at the time he was elected this was the board of penitentiary trustees under the law, and they had the power to do any and all acts and perform all the duties imposed upon the penitentiary board. It was not necessary for them to wait until Brown’s term of office had actually expired before they re-elected him; for, as a matter of fact, his term of office would and did expire while they as trustees were lawfully in office and had the right to elect a successor. In 23 Am. Ency. of Law (2d ed.), 347, it is said: “ It is a comman practice, and undoubtedly proper, for the appointing power, when the necessity for the exercise of the power is ascertained, to make appointments prior in time to that at which the term of the appointee is to begin, where the appointing power of the officer or body making the appointment will continue until the term of the appointee is to begin. Where, however, the appointing power of the officer or body making the appointment will expire before the term of office of its appointee will begin, and vest in its successors, it cannot forestall the right and prerogative of its successors by making appointments to such office.”

In section 3598 of the Code of 1906 there is no time specified at which the board of trustees are compelled to elect a clerk; but, when they do elect him, his term begins on the day of his election and ends one year thereafter. Brown had been elected on January 1, 1907, and the board which elected him at that time was by law continued in office as the existing board many days after Brown’s term of office had expired. The successors of the board who originally elected him did not qualify and take charge of the office of the board of trustees until nearly twenty days after the expiration of Brown’s term of office. Therefore Brown’s term of office expired while the power which appointed him was still in office, and they not only had a right to make this appointment, but it was their duty so to do, and they might make it prior to the time at which his term of office began, provided, only, that the term for which they elected him was to begin while they were still the board. It makes no difference whether they elected him on the 31st day of December, or on the 1st day of December, if as a matter of fact they appointed him and were lawfully in office on the day when he was to begin his second term, and his office was to become vacant during their official life, and ratified that appointment after the expiration of his first term by continuing him in office as their appointee, even though they may have made the appointment prior to the actual vacancy.

In the case of State v. O’Leary, 64 Minn., 207; 66 N. W., 264, the court says on page 210 of 64 Minn., and page 265 of 66 N. W.: “ A prospective appointment to fill a vacancy, sure to occur in a public office, made by an officer who, or a body which, as then constituted, is empowered to fill the vacancy when it arises, in the absence of a law forbidding it, is a valid appointment.” In the ease of Whitney v. Van Buskirk, 40 N. J. Law, 469, the court says: “ The question then presented is whether a body, having as then organized power to appoint to office when it shall fall vacant, may anticipate the vacancy and fill the office by a prospective appointment, in the absence of any statutory regulation to the contrary. The almost uniform course of practice for years in this state, without question or objection, strongly implies the legality of an appointment thus made. Besides, it seems to me that the question is no longer open to controversy in the courts of this state. In the case of Haight v. Love, 39 N. J. Law, 14, by adjudication of this court, as well as by the court of errors on review, an appointment so made was supported. In that case it is true that the occurring vacancy was anticipated by but a few days; but the principle upon which that appointment was validated is unchanged by the circumstances that as many weeks intervene. The cases cited by the relator in support of an opposite view are not applicable to this case. The case of Biddle v. Willard, 10 Ind., 62, already mentioned, went off, as I have already shown, upon the construction of local statutes. The same is true of the case of People v. Witherell, 14 Mich., 48, and Nooe v. Bradley et al., 3 Blackf. (Ind.), 158. This ground of objection, therefore, must be denied any force.” To the same effect is the case of People v. Blanding, 63 Cal., 333; Throop on Pub. Officers, § 91; Commonwealth v. Donovan, 170 Mass., 228; 49 N. E., 104.

The statute under discussion does not, either impliedly or expressly, forbid the prospective appointment made by the hoard in this case. The appointment was made under all the circumstances fixed hy law for making it valid. The case of Attorney-General ex rel. Haight v. Love, 39 N. J. Law, 476; 23 Am. Rep., 234, a case to which we call especial attention, because in many of its features it is very similar to the case we are discussing, was a quo warranto brought-by Haight, claiming to be the city tax collector of Jersey City, and seeking to oust one Love. The facts in the case are these: The charter of Jersey City provided that the new hoard of finance and taxation should appoint a collector of revenue, to be called a “ city . collector,” who should hold his office for the term of three years, subject to removal by the board for cause, etc. Under this act Love was appointed to the office of city collector for the term of three years. The appointment was made on the 10th day of April, 1873, by the board. He took his oath of office on the 14th day of April, 1873, and gave bond for the faithful performance of his official duties. On the 6th of April, 1876, he was again appointed to the same office for a further term of three years, and under this last appointment he took the official oath on the 7th of April, 1876, and put in his official bond on the 8th of April, 1876. The information filed in the cause denied the validity of the last appointment on the ground that the preceding term of the defendant did not expire until after April 14, 1876, and that on or before April 12, 1876, the term of office of three of the five members of the board expired, in consequence of which the board had no right to appoint; and' on the 13th of April, 1876, the board, then composed of the two old members and three new members, undertook to- rescind the appointment of the defendant, and appointed the relator as city collector. It will be noted in the case, supra, that Love’s term expired just two days before the old board went out and the new board came in. A demurrer was filed by the defendant, which raised the question of his right to the office upon the facts in the information set forth, and the court said: “ The contest in this case will be settled by ascertaining the precise time when the defendant’s term, under his appointment of April 10, 1873, ended” — and held that, the commencement of the term not being fixed by the charter, it began from the date of the appointment (that is to say, on the 10th of April, 1873), and ended on the 9th of April, 1876, and further said: “Under this view of the law, when the defendant, on the 10th day of April, 1873, was appointed for the term of three years, without any day being expressly specified in the law for its commencement, the term to which he was lawfully entitled began on that day, and ended with the close of April 9, 1876, and consequently the persons who composed the board of finance on the 6th day of April, 1876, had the right to select his successor.”

This case is authority for three propositions involved in the case under discussion: First, that the term of Brown began on the day he was appointed, .which was January 1, 1907, and ended, on the 31'st day of December, 1907; second, that although the appointment was made prior to the time at which his term was to expire, yet, if the term of Brown was to expire during the life of the board appointing him, it was a perfectly valid appointment, though made before the actual expiration of his first term of office; third, that the persons who composed the board of trustees at the time Brown’s term of office expired had the lawful right to choose him as his own successor, though they were to be succeeded by a different board in two days after the appointment was made. Up to the time that the old board went out of office, they had the right to do and perform all acts and duties appertaining to their office, and their acts were as valid and lawful, so long as they continued in office, as were the acts of their successors. The case of Whitney v. Van Buskirk, 40 N. J. Law, 463, involves much the same question as the case cited supra. It follows, from what has been said above, that the order of Mr. Taylor, attempting to fix the time at which the terms of office for all employes of the penitentiary should begin, is a nullity, because, as we have seen from the authorities cited above, the term begins by law at the date of the appointment in cases where the statute creating the office fixes no definite time for the commencement or termination of the term. This statute we are called on to construe fixes m> time either for the commencement or ending of the terms of the officers of the penitentiary. It merely limited the time of their service to one year. This being the case, under the law the term commenced from the date of the appointment, and the resolution offered by Mr. Taylor could not have the effect of changing the law upon this subject. Now, we have shown from the authorities cited above that the time of the commencement of the term begins from the date of the appointment. We have also shown that the board, as constituted when Brown was elected for his second term, had the right to make the election. We have also shown that it was not necessary for the board to wait until the term of Brown actually expired before making the election, but that they might make a prospective appointment in this case; it being shown that his term would expire while the then constituted board was still in office.

The next question for us to consider is: Has the new board the power to remove the officers elected by the old board, except for cause ? In order to determine this question, it will be necessary to review the statute to some extent. Section 3598, creating the offices, provides that “ all of said employes shall be elected by the board of trustees, and their term of office shall be one year.” It will be seen that the term of office is expressly fixed by this statute for one year. It will also be noticed that, though the trustees are to serve for a period of four years, .employes must be elected at the expiration of every year. The statute does not provide that they shall hold their office at the will or pleasure of the board of trustees, .but expressly fixed their term for the period of one year. There is not even any provision for their holding over until their successors are elected. At the expiration of this one year, unless re-elected, they are out of office. The usual term of all officers under the Constitution and statute is,four years. Was the making of their term for a period of one year by the legislature unintentional? Was the fixing of the time that they should serve and be in office for a shorter period than almost any other officer provided for in the code unintentional? Was the failure to provide in the section that these employes should hold at the will or pleasure of the trustees a casus omissus f We are not warranted in reaching this conclusion. The language of the statute is plain, unambiguous, and so written; and it is not for us to change it, or to hold that the legislature meant something different from what they plainly expressed in the law.

In construing this statute, let us take up other provision's of the law dealing with subordinate officers. We will see that, in every instance where it was the intention of the legislature to make a subordinate officer hold at the will or pleasure of the appointing power, it has said so. Thus by section 4726 the librarian is given power to appoint an assistant, and at the same time the right to discharge the assistant at pleasure. Section 183 empowers the attorney-general to appoint an assistant attorney-general, and gives him the right to discharge such assistant at pleasure. Section 236 of the Code of 1906 gives the auditor the power to appoint a deputy and certain clerks, and gives him the power to remove them at pleasure. From this we see that the section in reference to subordinate officers of the penitentiary is not an unusual provision in the code, and where it was the intention of the legislature to give the appointing power the right to remove subordinate officers at pleasure they have specified it. What is the rule in reference to the right of removal where the terms of the office are fixed by statute, and the office is not held at the will or pleasure of the appointing power ? In Mechem on Public Officers, § 454, the following rule is laid down: “ In those cases in which the office is held at the pleasure of the appointing power, and where the power of removal is exercisable at its mere discretion, it is well settled that the officer may be removed without notice or hearing. But on the other hand, where the appointment or election is made for a definite term or during good behavior, and the removal is to be for cause, it is now clearly established by the great weight of authority that the power of removal cannot, except by clear statutory authority, be exercised without notice and hearing, but that, the existence of the cause for which the power is to be exercised must first be determined after notice has been given to the officer of the charges made against him and he has been given an opportunity to be heard in his defense.” In the case of Hallgren v. Campbell, 82 Mich., 255; 46 N. W., 381; 9 L. R. A., 410; 21 Am. St. Rep., 557, it is said: “We have not found any case where an officer who was appointed for a fixed term, and when the power of removal was not expressly declared by law to be discretionary, where it has' been held that an officer is removable, except for canse; and wherever cause must be assigned for removal of the officer he is entitled to notice and a chance to defend.” To the same effect is Field v. Commonwealth, 32 Pa., 478; State v. St. Louis, 90 Mo., 19; 1 S. W., 757; Collins v. Tracy, 36 Texas., 546; 23 Ency. of Law (2d ed.), 435.

Under section 3619 of the Code of 1906 the express power is given to the board to investigate charges of misconduct of officers and employes, and to suspend or discharge the officers and employes for misconduct. Under section 3598 the employe’s term is for a fixed time, and hfe does not hold at the will or pleasure of the board. Section 3619 does not confer arbitrary power of dismissal, but only the power to suspend or discharge officers and employes on charges made of misconduct or incompetency which amounts to misconduct; and this is the measure of their authority to dismiss an employe, and even then it is necessary that the officer be given an opportunity to be heard before being removed. There were no charges of misconduct or incompetency made against the relator, nor was he given an opportunity to be heard; but the board says in its order merely “ that they deem it to the interest of the public service that all the agents and employes under this board shall be selected by this board. Therefore, for the above reason, and because we believe the public service requires it, we hereby discharge and dismiss all persons selected by the outgoing board and declare their offices vacant.” We do not think the case of Ott v. Lowrey, 78 Miss., 487; 29 South., 520, can be invoked as an authority in this case. The decision of that case turns upon a very different question, and the court said, in deciding that case, that “ the plain purpose of the code provision was that the new board — the incoming administration — should choose the clerk, the tax collector, and the police justice, unembarrassed by any opposition on the part of the retiring board.” In the Ott case it was because that statute itself manifested, as the court said, the plain purpose that the incoming administration should choose the officers, that the court, held that the outgoing board could not elect. No such purpose as this can be gathered from the section of the statute now under discussion. A comparison-of the facts in the Ott case with the case under discussion will readily show that the two cases are quite different. -We do not undertake to say in this ease what facts constitute cause; but we do say that the officers employed under section 3598 of the code cannot be dismissed for the reasons assigned in this order, nor can they be summarily dealt with in this way, but can only be dismissed for cause and after a hearing.

Affirmed.