Poplarville Sawmill Co. v. Marx , 117 Miss. 10 ( 1917 )

Cook, P. J.,

delivered the opinion of the court.

Appellees instituted a suit upon open account against the appellant in the court of S. C.' Smith, mayor and ex officio justice of the peace for the town of Poplar-ville. Sumitions was issued and served on appellant. On the return day of the summons appellant appeared for the “special purpose of objecting to the jurisdiction of the court.” This motion asked the court to dismiss upon two grounds, viz.

“I. The mayor and ex officio justice of the peace of a town is a public officer of the town and of the state belonging to the executive department; has no right"to exercise any judicial power over civil cases.

“II. Because the right claimed by said mayor and ex officio justice of the peace is a violation of the Constitution of the state of Mississippi, in that said Constitution provides in section 2, art. 1, that no person belonging to one department shall exercise any power belonging to another department.”

This motion was overruled, and judgment was entered against the appellant for the amount sued for, and execution was issued thereon and levied upon certain named property of appellant.

A hill of complaint was then filed in the chancery court setting up the facts stated above and prayed for a temporary injunction restraining further proceedings in the premises. The temporary injunction was granted by the chancellor and duly served upon the defendants, appellees here. The defendants interposed a demurrer to the bill of complaint assigning the following grounds, viz.:

“(1) The complainant has not in and by its said bill of complaint made or stated such a 'case as entitles it, in a court of equity, to the relief' therein prayed, or to any relief whatever, as against these defendants-touching the matters contained therein, or any such matters.

“(2) Complainant shows by its said bill that the judgment rendered in the court of S. C: Smith, mayor and ex officio justice of the peace in and for the town of Poplarville, on the 3d day of January, 1915, was and is a perfectly good, valid, regular, and subsisting judgment; that it was unsatisfied at the date of the filing of said bill of complaint in this court.

“(3) Complainant further shows by its said bill of complaint that the execution issued on said judgment by the said ex oficio justice of the peace on the said 25th day of May, 1916, was? and is a perfectly good valid, regular, and existing writ of execution.

“(4) Complainant further shows by its said bill of complaint that the levy by John T. Boyd, marshal and ex officio constable, of said writ of execution on the 31st day of May, 1916, upon the property of the defendant in execution, the complainant here, and the return thereon, were and are a perfectly good, valid, regular, and lawful levy and return.

“(5) Complainant further shows by its said bill of complaint that the office of ex officio justice of the peace in and for the town of Poplarville was, on the date of the issuance of original process, on the date of the rendition of the judgment, on the date of the issuance of said writ of execution, and on the date of the return of said execution, an office under the law of the state of Mississippi, existing by virtue of a statute creating the same, the duties and functions whereof were performed by the person indicated by said statute and. clothed with the insignia thereof.

“(6) Complainant further shows by its said bill of complaint that the office of ex officio constable in and for the said town of Poplarville was, on the date of the service of original process on the defendant therein, the complainant here, on the date of the return of said process, on the date of the levy of execution upon the property of said defendant in execution, and on the date of the return of said execution to the court from whence issued, an office existing under and by virtue of the law of the state of Mississippi, created by virtue of the statute made and provided therefor, the duties and functions whereof were performed by the person indicated by said statute and clothed with the insignia of said office.

“(7) Complainant further shows by its said bill of complaint that it had a plain, adequate, and complete remedy at law for any and all grievances it may have felt it had in the premises.

“(8) Complainant further shows by its said bill of complaint that it has negligently failed to pursue the-remedy provided in such cases.”

Prom a decree sustaining- this demurrer and awarding damages, complainant, still complaining, appeals to the court.

It is earnestly insisted that this court, in State v. Armstrong, 91 Miss. 513, 44 So. 809, holds that a mayor of a town cannot exercise the functions of á justice of the peace; the two offices being incompatible under Constitution 1890, section 2. As we interpret the opinion in that case, the court held that a duly elected justice of the peace vacated his office when he accepted the office of mayor. We can see no reason to question the soundness of this decision. There we had a man who had been elected to the office of justice of the peace by the electors of the district, and afterwards elected by the electors' of the town mayor of the town.- The statute ¡referred to in that case did not authorize, and probably could' not constitutionally authorize, a justice of the .peace to perform the duties of a mayor. The constitutional question raised in that case is thus referred to in the opinion:

‘ ‘ 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 section 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.”

The situation in the Armstrong Case was not, as in this case, a mayor exercising the powers of a justice of the peace under the statute within the corporate limits of the town of which he was mayor, , but just the reverse. All the court decided-in the Armstrong Case was that a judicial officer vacated his office when he accepted an executive office.

In this case the statute which makes a mayor of a town ex officio a justice of the peace within the corporate limits of the town is challenged. To • put the question in another way: Is section 3399, Code of 1906, unconstitutional? We do not think that the Armstrong Case decides or considers this question. This precise question was considered and answered in the negative in Bell v. McKinney, 63 Miss. 187, which was cited and approved in Riley v. James, 73 Miss. 3, 18 So. 930.

In Heggie v. Stone, 70 Miss. 39, 12 So. 253, we decided that it was not competent for the legislature to clothe the mayor of a town comprising a part of a district with the jurisdiction of the whole district.

It has not been decided that the legislature could not create an inferior court by making the mayor of a town ex officio a justice of the peace, but this court did expressly decide to the contrary in Bell v. McKinney, supra.

So we believe that the chancery court reached the proper conclusion when it sustained the demurrer to the hill.

Affirmed.