PARTIALLY DISSENTING OPINION. I disagree with the majority opinion holding that the case of Monette v. State, 91 Miss. 662, 44 So. 989, 124 Am. St. Rep. 652, should be overruled. A municipal policeman is a public officer, he is employed by the public to serve the public and is paid by the public. There is no substantial conflict in the authorities to that effect. 42 Am. Jur., Chapter on Public Officers, sec. 16; Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169; Ware v. State ex rel. Poole, 111 Miss. 599, 71 So. 868.
The following constitutional provisions and ordinances of the city should be taken into consideration in determining the question whether Glover was an officer removable at the pleasure of the city authorities:
Section 38 of the ordinances of the city provides that all officers appointed or elected by the mayor and city council shall hold their respective offices during the pleasure of the council appointing them, and their term of office shall expire, of course, with the council appointing them.
Section 20 of the ordinances provides, among other things, that the mayor and council shall have the power to remove at pleasure any officer appointed or elected by them.
Section 8 of the ordinances provides that the mayor and councilmen shall hold their offices for two years.
Section 20 of the Constitution of 1890 reads: "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 274 of the Constitution provides, among other things: "All statute laws of this state repugnant to the provisions of this Constitution, except as provided in the next three sections, shall continue and remain in force until the first day of April A.D. 1892, unless sooner repealed by the legislature." *Page 485
Section 175 of the Constitution is in this language: "All public officers, for wilful 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."
Construing these constitutional provisions together in connection with the city ordinances referred to, it seems to me demonstrates that any ordinance or part thereof in conflict with Sections 20 and 274 of the Constitution was repealed after the 1st day of April, 1892. If that be true, then the result is Glover was a public officer with a term of two years, or for the balance of the term of the appointing power, and he could not be removed under Section 175 of the Constitution except for "wilful neglect of duty or misdemeanor in office" and conviction thereof on indictment. If a policeman is removable from office at the pleasure of the appointing power regardless of his qualifications, that, of course, would be true of all deputy officers appointed by the heads of departments of the state, including county and municipal. Think of the insecurity of such a position, to illustrate: Here is an officer highly competent to perform the duties of his office and is doing so; without cause the head of the department appointing him can kick him out at any time, he could do so alone for the purpose of making a place for a kinsman or a political ally. Such a power would be detrimental to the public welfare. The remedy alone to put him out of office would be that provided by Section 175 of the Constitution, "wilful neglect of duty or misdemeanor in office." If the case of State ex rel. Brown v. Christmas, 126 Miss. 358, 88 So. 881, holds to the contrary it is unsound and ought to be overruled. It is in conflict with the Monette case, supra, which holds that a policeman is a public officer.
I agree, however, that the judgment of the trial court should be affirmed for the reasons set out in O'Neal v. Fairley,190 Miss. 650, 200 So. 722. It was held in that *Page 486 case that quo warranto would not lie as a remedy to put a claimant to an office in possession thereof unless another was occupying the office claiming the right so to do. That is exactly what we have here. Glover is seeking to be restored to an office unclaimed and unoccupied by anyone else.