State ex rel. Brown v. Christmas , 126 Miss. 358 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

These two cases involve the same question of law, and will be decided together.

On August 26,1920, M. A. Brown, the then land commissioner, appointed the relator, B. F. Brown, as his deputy,' pursuant to section 2904, Code of 1906 (section 5239, Hemingway’s Code), which provides that:

“The land commissioner shall be entitled to one deputy to assist him in the discharge of his duties, with power and authority to do and perform all acts and duties required by the land commissioner. The appointment shall be made in writing, and filed in the office of secretary of state, with a certificate that the deputy has aken an oath, and given bond in the sum of five thousand ($5,000) dollars, to faithfully discharge his duties as deputy.

In January, 1921, M. A. Broivn died, and R. D. Moore, who was appointed by the Governor to succeed him, appointed the appellee, Thomas R. Christmas, as his deputy. B. F. Brown claiming that a land commissioner’s deputy is a public officer, whose office does not terminate with the death of his principal, instituted a proceeding in the nature of a quo warranto to oust, the defendant, Christmas. In January, 1920, the present auditor of public accounts appointed the relator, Ben R. Guess, as his deputy pursuant to section 236, Code of 1906 (section 3495, Hemingway’s Code), which provides that:

“The auditor may appoint a deputy, with power and authority to do and perform all the acts and duties required of the auditor; the appointment shall be made in writing, and shall be filed in the office of the secretary of state, with a certificate that the deputy has taken an oath faithfully.to discharge his duties as deputy auditor. The auditor may take bond from his deputy and clerks as he may see proper, and may remove either at pleasure; but he shall be answerable for the acts of the deputy and clerks in the same manner as if done by himself.”

On February 1, 1921, the auditor discharged Guess and appointed the appellee, R. S. Miller, as his deputy. Guess, claiming that an auditor’s deputy is a public officer, and that consequently the provision of section 236, Code of 1906 (section 3495, Hemingway’s Code), authorizing the auditor to remove his deputy at pleasure, yiolates sections 20 and 175 of the Constitution, instituted a proceeding in the nature of a quo warranto to oust Miller. The trial in each case in the court below resulted in the dismissal of the petition.

Section 20 of the Constitution provides that:

“No person shall be elected or appointed to office in this state for life or during good behavior, but the term of all offices shall be for some specified period.”

Section 175 of the Constitution provides that: “All public officers, for willful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law.”

Section 3456, Code of-1906 (section 2794, Hemingway’s Code), 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.”

The question presented in each case for decision is: Is a mere deputy of a public officer within the meaning of sections 20 and 175 of the Constitution?

An office, broadly speaking, is a public charge or employment, and a public officer, also broadly speaking, is one who has some duty to perform concerning the public; but in .the constitutional sense — “The term ‘office’ implies a delegation of a portion of the sovereign power,.and the possession of it by the person filling the office.” Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169.

This definition carries with it ex vi termini the further idea that the power delegated must be exercised by the person in his own, and not in another’s right. A deputy does not come within the definition, for a deputy is — “One who is appointed, designated, or deputed, to act for another; one who by appointment exercises an office in another’s right.” 18 C. J. 784.

The statutes providing for the appointment of the two deputies here in question confer no power on them to be exercised independently of their principals, but power to' be exercised only for and in the name of their principals. In so far as the deputy auditor is concerned, the legislature could not confer upon him power to be exercised in his own right which under the Constitution belongs to his principal, for there would then be, in effect two auditors, and the Constitution provides for only one.

The legislature has uniformly construed sections 20 and 175 of the Constitution as not embracing mere deputies, as will appear from an examination of our statutes enacted since the adoption of those, sections, and this construction should not only be accepted by the courts, unless manifestly wrong, but is also in accord with the fact.

The case of Baker v. Nichols, 106 Miss. 419, 63 So. 1025, in which this court held that the position of a deputy sheriff is an office within the meaning of section 250 of the Constitution which provides that “all qualified electors, and no others, shall be eligible to office, except as otherwise provided in this Constitution,” is not in conflict herewith, for the ground of that decision is that section 4664, Code of 1906 (section 3081, Hemingway’s Code), by which the position of deputy sheriff is created, expressly designates it as an office. The position of clerk of the board of trustees of the penitentiary, which was held to be an office in Yerger v. State, 91 Miss. 802, 45 So. 849, is also designated as such by section 3598, Code of 1906 (section 6220, HemingW"ay’s Code), by which it is created, and the term fixed at one year.

A deputy auditor not being an officer within the meaning of sections 20 and 175 of the Constitution, the provision of the statute authorizing the auditor to remove him at pleasure is valid.

The deputy land commissioner not being an officer, and the statute containing no provision that can be construed to the contrary, the employment of the relator, Brown, as such would have ceased on the death of his principal except for the provision of section.3487, Code of 1906 (section 2825, Hemingway’s Code), that, “if any state or county officer shall die having a deputy, the deputy may continue to discharge the duties of the office in the name of the deceased officer as if he had not died, until the vacancy in the office shall be filled according to law,” etc., under which the relator’s employment ceased when his deceased principal’s successor qualified as such.

Affirmed.