Glover v. City of Columbus , 197 Miss. 467 ( 1944 )

CONCURRING OPINION. The term officer, or public officer, is not one of precise import, but its meaning varies with the connection in which used; and to determine it correctly, in a particular situation, resort must be had to the intention of the statute and the subject matter in reference to which the terms are used. Mootz v. Belyea,60 N.D. 741, 236 N.W. 358, 75 A.L.R. 1347; State ex rel. v. Kiichli, 53 Minn. 147, 54 N.W. 1069, 19 L.R.A. 779; 42 Am. Jur., p. 879. Under the broader definitions a policeman is an officer; but the question here is whether that is the type of an office or officer which was within the contemplation of the makers of our Constitution in ordaining Section 175 thereof.

It is an absolute presumption that the makers of our Constitution were acquainted with official and governmental experience in every form and in every detail. They knew that officers or governing boards placed at the head of any governmental department and thereby made responsible each for the proper and efficient conduct of his office or department would of necessity have to have the authority of control and direction over every subordinate directly under him, even if these or some of them could themselves be denominated as officers as that term is broadly defined. They knew that dissensions, bickering, distrust, want of loyalty, and disagreements over policies and methods of procedure could seriously impair or destroy the efficiency of any important department, and that most of these deterrents to the worth of a department could never be reached by an indictment for "wilful neglect of duty or misdemeanor in office," which are the only causes of removal specified in Section 175 of the Constitution.

Examples for illustration may be taken from many departments of government, but the Highway Patrol, mentioned in the court's opinion, is sufficient. If policemen are officers within Section 175, then so are highway patrolmen, yet our statute, Section 8081, Code 1942, provides for the dismissal of patrolmen without any reference to Section 175. The statute provides, as it ought to do, an ultimate means by which these officers will be made to conform to the directions and policies of the heads of that department, to the end that the functions of the department shall be loyally fulfilled as the heads thereof determine it ought to be done, not as the subordinates or some of them think it ought to be.

The Court in its opinion has adhered to the traditional practice of deciding only the precise issue involved which, here, is the office of policeman, but the application of the principles of construction upon which the opinion proceeds, and correctly so, would lead to the holding which had as well be made now, that Section 175, Const. 1890, has reference only to officers elected by a direct vote of the people and to heads of departments appointed by the Governor and confirmed by the Senate, including members of governing boards or commissions so elected or appointed, and not to their subordinates by whatever title or name the latter may be called; and in addition to Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 652, we should overrule any case which holds or apparently holds otherwise, there being one or two others.