50 So. 981 | Miss. | 1910
delivered the opinion of the court.
As the law now stands, in so far as it authorizes a removal of this character of public officer, section 175 of the constitution of 18901 of the state provides the exclusive mode, where the removal is sought on a charge of wilful neglect of duty, or misdemeanor in office. Under the above section the sine qua non to removal is presentment or indictment by the grand jury and conviction, before there can be any removal on account of the things named in the above section, to wit, wilful neglect of duty or misdemeanor in office. The appellant is a city marshal, elected by the popular vote of the city, and the mayor and board of aldermen are seeking to impeach and remove him because of wilful neglect and misdemeanor in office, the very causes which the 'constitution names in the above section, and which it provides as causes for removal only when the officer has been presented or indicted by a grand jury and convicted. The mayor and board of aldermen have not proceeded in the way required by the constitution, but are proceeding by virtue of an ordinance passed under the authority of section 3.332 of the Code of 1906, which gives the municipality power to pass ordinances providing “for the impeachment and removal of elective officers,” etc., and undertake to remove the marshal without indictment and conviction.
We do not deem it necessary to set out here the ordinance passed by the mayor and board of aldermen under this section of the statute. Suffice it to say that the ordinance does not conform to the requirements of the section of the constitution in question, in that it provides for the removal without indictment, trial, and conviction, and is therefore a nullity. While
But it is argued that the decision in those eases only applied to constitutional offices, and, since the city marshal is not a constitutional officer, these cases have no application. We do not think there is anything in this contention. Section 175 applies to “all public officers!,” and the city marshal is certainly a “public officer,” within the meaning of the constitution. It should be a serious thing to remove from office, before the expiration of his term, any officer whom the people have selected to govern them. It was designed by the constitution to make it a serious thing. Unless there is immediate and serious cause, the ballot is intended to be the method of removal, and it was not the purpose of the constitution makers
Reversed and remanded.