McClure v. Whitney

Ethridge, J., delivered the opinion of the court. The appellants brought a proceeding in quo warranto to recover possession of an alleged office as secretary — 371 — and treasurer of the Alcorn Agricultural and Mechanical College, alleging that he is the duly elected secretary and treasurer for a term of four years beginning' on the 1st day of July, 1916, and further alleged that on the 25th day of September, 1918, the defendant took possession of said office and had been in the possession of said office and the discharge of his duties up to the time of the filing of the petition, and that his holding and executing the functions of said office is without any authority of law, and that petitioner is entitled to the possession of said office and the emoluménts .thereof; wherefore he brings suit and prays the judgment of the court to place him in possession of said office. The exhibits to the declaration show various orders of the board of trustees of the state educational institutions, among which is an order electing appellant secretary and treasurer and business manager of the Alcorn Agricultural and Mechnical College in July, 1916, for a term of four years, and also an order from the board of trustees of said institutions on the 25th day of September, 1918, rescinding the order electing McClure for four years and declaring the posititon vacant, and an order electing the defendant to said position. The petition was demurred to and the demurrer sustained and the petition dismissed, from which judgment this appeal is prosecuted. Section 12, Code of 1906, is relied on as creating the office, and reads as follows: “12. Trustees. — The government of said college shall be in a board of twelve trustees, a majority of whom shall be practical agriculturists, mechanics and manufactures, one to be appointed from each congressional district, and four from the state at large. They shall be appointed by the Q-overnor of the state, by and with the advice and consent of the senate, and shall continue in office for six years, and until successors are appointed; and the trusees shall be ineligible to sue372 ceed themselves more than once. They shall elect a secretary and treasurer, but these shall not he members of the hoard of trustees. In the absence of the president, they shall elect a president pro tempore. The duration of the term of officers of the hoard of trustees shall be fixed by the board.” At the session of 1910 the legislature enacted chapter 114, Laws of 1910, which provides that there shall he one hoard of trustees, who shall have the sole supervision and control of the following colleges supported and maintained by the state, naming among others the Alcorn Agricultural and Mechanical College located at Rodney, Miss., and provides in section 5 that the hoard of trustees shall have all the power and authority now granted to and vested in the several hoards of trustees under and by virtue of chapters 3, 4, 67, and 146 of the Code of 1906, which included the chapter governing the Alcorn Agricultural and Mechanical College. Section 2 of this act was amended by chapter 170 of the Laws of 1912 in reference to the appointment and terms of trustees, and section 2 thereof provides: “The hoard shall have authority to appoint one of their members as secretary of said board, who shall he a competent accountant and whose duty it shall he to check up personally all the affairs and finances of each of the institutions at least twice a year, and for his services he may he paid a reasonable compensation, to he fixed by the board of trustees.” It will he noted from section 12, Code of 1906, above set out, that the trustees shall elect a secretary and treasurer; but these shall not he members of the hoard of trustees, and it is upon this clause of the statute that the right of the appellant is predicated. .It is insisted that the secretary and treasurer so provided for is a public officer of the state within the meaning of section 175 of the state Constitution, and that the said officer could not he removed except in the manner provided for — 373 — in section 175 of the state Constitution, which has been construed to he the exclusive method of removing a public officer, and the appellant relies upon the following cases decided by this court as governing the controversy in question: Monette v. State, 91 Miss. 670, 44 So. 989, 124 Am. St. Rep. 715; Shelby v. Alcorn, 36 Miss. 273, 72 Am .Dec. 169; Kierskey v. Kelly, 80 Miss. 803, 31 So. 901; Yeager v. State, 91 Miss. 815, 45 So. 849; Ware v. State ex rel. Poole, 111 Miss. 599, 71 So. 868; State v. McDowell, 111 Miss. 596, 71 So. 867; Miss State Board of Health v. Mathews, 113 Miss. 517, 74 So. 417; Lizano v. Pass Christian, 96 Miss. 640, 50 So. 981. In Shelby v. Alcorn, 36 Miss. at pages 288 and 289 of the Official Report, Book 18 of the Reprint, p. 115, 72 Am. Dec. 69, this court defined a “public office” as follows: “1. The term ‘office’ has no legal or technical meaning attached to it, distinct from its ordinary acceptations. An office is a public charge or employment; but, as every employment is not an office, it is sometimes difficult to distinguish between employments which are, and those which are not offices. It is generally, if not universally, true that a duty or, employment arising out of a contract, and dependent for its duration and extent upon the terms of such contract is never considered an office. ' An ‘officer,’ as defined by Blackstone, is a right to exercise a public or private employment, and to take the fees and emoluments thereunto belonging, whether public, as those of magistrates, or private, as bailiffs, receivers, and the like. 2. Blacks Com. 36. And it is laid down ‘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.’ 7 Bac. Ab. 280; Garthew, 479. And we apprehend that it may be stated as uni — 374 — versally true that where an. employment or duty is a continuing one, which is defined by rules prescribed by law and not by contract, such a charge or' employment is an office, and the person who performs it is an officer. ’ ’ It will he noted from the above quotation that the employment or duty is a continuing one prescribed by law and not by contract. In all of the cases relied upon by the appellant, the duties of the officer were prescribed by. law, and also the terms of their offices were prescribed by law. The essential distinction between an employment and an office is that in an office the duties and powers are prescribed by law, while in a contract the duties and powers are either prescribed by contract or prescribed by some person having power and authority to direct the employee as to the services such employee shall perform. The part of the above quotation from Shelby v. Alcorn, supra, “that a public officer is one who has some duty to perform concerning the public,” is relied on .strongly here as applying to_the present case and making the appellant a public officer because his duties, it is claimed, as secretary and treasurer, are with reference to the public. If this alone constituted a person a public officer, every bookkeeper, teacher, servant, or employee in a public institution would be a public officer, who under the Constitution would have to have a fixed term and who could only be discharged by indictment and conviction though such person" had no duties prescribed in the statute. We do not believe that it was ever contemplated that section 175 was so far-reaching. The Yerger Case, supra, contains language that makes the argument of the appellant seems to he supported by that case; hut, when the statutes bearing on the position which Yerger was filling are read in connection with the opinion, it will be seen that his duties were prescribed by law, and he was required to execute a bond and take oath of office, — 375 — and his term of office was specifically fixed by statute at one year. In the Ware Case, Supra, it was pointed ont that the duties of the county health officer were prescribed by law. In State v. McDowell, 111 Miss. 596, 71 So, 867, it was pointed ont that the statute creating the office fixed the duties and salary, but did not fix the term of office; but it was held that the term of office was fixed by another statute, that, in the absence of the term being fixed by a special satuté, it was fixed by section 3456 of the Code of 1906, which provides that: — <£The term of office of all officers, not otherwise provided for by law, shall be four years and until their successors shall be duly qualified. ’ ’ Inasmuch as the statute does not prescribe either the duties to be performed by the secretary and treasurer, or for a specific term or for any specific compensation, and inasmuch as a private person can be a secretary or treasurer, the statute does not make these positions public offices. It will be noted from reading the sections of law above set out that the government and control of the colleges is vested in the board of trustees, and that the board of trustees shall have the power necessary for the execution of the trust reposed in it. Neither the Code of 190.6 nor the Laws of 1910 prescribe'any duties or powers to be exercised by the secretary or treasurer. Chapter 170 of the Laws of 1912 prescribe the duties of the secretary of the general board created for all the state colleges, and that position is distinct from the secretaryship or the treasurer of the Alcorn Agricultural and Mechanical College provided for in section 12 of the Code of 1906, and if the Act of 1910 and the Act of 1912 did not repeal the provisions in ’section 12 of the Code for a secretary and treasurer of the Alcorn Agricultural and Mechanical College (which we do not now decide), and if section 2 be left as written in the Code, — 376 — and conceding for the purpose of this opinion that the hoard of trustees of said educational institutions shall select a secretary and treasurer for the Alcorn Agricultural and Mechnical College separate and apart from the secretary of the hoard of trustees provided for in chapter 170 of the Laws of 1912, still such secretary and treasurer would he a mere employee of the hoard of trustees whose duties and compensation would have to be fixed by the hoard of trustees and not by law. It follows that the appellant was not a public officer, and consequently the petition for quo w-arrant'o stated' no cause of action sufficient to sustain such proceeding, and the demurrer was rightfully sustained; and the judgment of the court below is, accordingly, affirmed." Affirmed.