44 So. 809 | Miss. | 1907
delivered the opinion of the court.
This is an appeal by the state from the circuit court of
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 in
We think there was error in the judgment of the court, and that judgment is reversed, and the demurrer overruled, and the cause remanded.