Fairley v. Western Union Telegraph Co. , 73 Miss. 6 ( 1895 )

Woods, J.,

delivered the opinion of the court.

It appears that the appellant is the superintendent of the Institute for the Blind, in the city of Jackson, and that he is also by profession a physician, though the office and the profession have no legal or necessary connection. He is not, by § 2318, code of 1892, charged with any duty as a teacher in the institute, nor is he so charged in the by-laws which have been adopted by the trustees of the institute. By the aforesaid section it is declared that the superintendent ‘ ‘ shall have general control over and responsibility for the management of the institute, and the care of its property.” Under the thirteenth section of the fourth article of the by-laws enacted by the trustees, it is said that the superintendent “shall have care of all the buildings and grounds of the institution, and shall see that they be kept constantly in order, both as to cleanliness and minor repairs.”

At the time of the injury complained of in this action, the duties thus imposed upon the superintendent consisted in the general control over and care of the property of the institute, for the annual session of the school had closed upon the twenty-fifth of June of that year, and all pupils had been removed to their homes. See art. 5, by-laws of institute. Under this condition of things, it is contended by counsel for appellee that any contract made with Thornton, the sender of the telegram, would have been void, as against the public policy of the state, and reliance for this proposition is placed on § 267 of our present constitution, and it is contended that, if the appellant could not have recovered against Thornton in an action upon the contract for his professional services, he cannot recover against the appellee in this action for tort growing out of the failure of the telegraph company to discharge a public duty. Forthe sake of brevity, we pass by any consideration of that part of the proposition which asserts nonliability in this suit because of the supposed nonliability of Thornton on contract, and consider only that question which alone demands settlement in order to determine the rights of the parties to this litigation. •

Section 267 of the constitution is in these words: “No person elected or appointed to any office or employment of profit under the laws of this state, or by virtue of any ordinance of any municipality of this state, shall hold such office or employment without personally devoting his time to the performance of the duties thereof. ’ ’ It requires neither philological research and definition, nor legal interpretation, to properly interpret this language and ascertain its meaning. It forbids not only the farming out of a public office, but it requires that the official shall give his own time and personal services to the performance of the duties of his office. Having been elected or appointed to a public office because of his supposed fitness for the proper performance of the duties of his place, the official himself shall be required to give his time, his attention and his services to the discharge of his official duties. This is eminently wise and just, and it involves no hardship upon the official who seeks and accepts public station. But will the voluntary absence of an officer for two or three days from his place of official residence or business, when his sole public duty consists in the general care of the public property, over which he has the superintendency, violate either the letter or spirit of the constitutional provision we are considering ? Must the superintendents of all our charitable institutions never leave their official residences or offices ? Must the nearly four score sheriffs of the state, who are charged with the care of the various courthouses, never depart from their several county seats, either when the public service seems to require such absence, or when a brief absence may be had without any detriment to the public good? Shall the secretary of state never leave the capitol building and grounds, of which he is the keeper by law ? These questions must have reasonable answers. If the public duties of an office require all the time of the public servant, then the whole time must be given. If all the time of the officer be not required for the complete and faithful execution of his trust, then he shall give such time and devote such service as shall suffice for the full and faithful discharge of the duties of his office.

The construction of this constitutional provision contended for by appellee’s counsel goes only skin deep, and does not touch the core of the matter, and is not maintainable.

We are considering the case before us on its own facts, and, so considering it, we are of the opinion that the appellant’s conduct, in this particular instance, was not violative of public policy.

The negligence of appellee in failing to deliver the telegram was found, as matter of fact, by the learned court below, and of this appellee does not complain. The fee which the appellant thus lost by appellee’s negligence is recoverable; for gains prevented are not to be distinguished, in principle, from losses sustained in cases of this character.

Reversed wild remcmded