State ex rel. Fletcher v. Armstrong , 91 Miss. 513 ( 1907 )

Whitfield, O. L.,

delivered the opinion of the court.

This is an appeal by the state from the circuit court of Lawrence county. The action was brought by the attorney-general for the purpose of ousting appellee from the office of justice of the peace. The petition recites that appellee was regularly elected a justice of the peace and is now discharging the duties of that office; that subsequently he was elected mayor of the town of Silver Greek, and accepted this office, and entered upon the discharge of its duties; and the contention of the state is that the two offices, justice of the peace and mayor of the town, are incompatible, and for that reason, and also under the constitutional provision (§ 2 of the Constitution of the state of Mississippi), the action of the appellee in accepting the office of mayor vacated that of justice of the peace. A demurrer was filed to the petition and sustained by the court below, and final judgment rendered dismissing the suit.

Section 2 of the Constitution is in the following words:

“No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate •any and all offices held by the person so accepting in either of the other departments.”

The office of mayor of a municipality is a public office within, the purview of this section, as held in Kierskey v. Kelly, 80 Miss., 803; 31 South., 901. There are many instances which will readily occur in which the exercise of the functions of these offices would be antagonistic and inconsistent with each other, and for that reason alone the demurrer should have been overruled; but we think it should have been overruled when § 2 as applied to the facts of this case is properly understood. The question here is not so much whether the functions of the office of justice of the peace, which are judicial, are inconsistent with those incidental judicial functions which a mayor of a city may exercise as an ex-officio justice of the peace under § 3399, Code of 1906, as whether the functions of a justice of the peace, which are strictly judiciary, are inconsistent with the usual, ordinary, and primary functions of a mayor of a city, which are strictly executive. ° The mere fact that the statute makes a mayor ex-officio justice of the peace, in certain cases, and thereby annexes to his distinctive duties as mayor, an executive office, certain purely incidental police duties, does not alter the paramount fact that the mayor of a town is, under the general law, distinctly an executive officer. All the judicial powers which he may, as an ex-officio justice of the peace, exercise, are incidental, and not primary. See Code of 1906, § 3377; 2 Abbott’s Municipal Corporations, § 570, where it is said at the close: “In some states he [the mayor] is authorized to arrest and try offenders against certain ordinances passed by virtue of the police power. In these eases it has been held that the exercise of the power does not make him a part of the judiciary. The act is but an exercise of the police power.” We do not think the authorities cited by the learned counsel for the appellee directly in point in this case.

We think there was error in the judgment of the court, and that judgment is reversed, and the demurrer overruled, and the cause remanded.