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WILLIAM B. ALEXANDER, SENATOR; JOSEPH L. BLOUNT, REPRESENTATIVE; ELLIS B. BODRON, SENATOR; THOMAS L. BROOKS, REPRESENTATIVE; EDWARD H. BEULOW, JR., REPRESENTATIVE; THOMAS H. CAMPBELL, III, REPRESENTATIVE; ARCHIE L. CATES, REPRESENTATIVE; DONALD RAY CHAMBLISS, REPRESENTATIVE; AUBREY MITCHELL CHILDRE, SENATOR; ROBERT L. CROOK, SENATOR; ALGIE ARNOLD DAVIS, SENATOR; GLEN S. DeWEESE, SENATOR; LAWRENCE G. DUBAZ, JR., REPRESENTATIVE; W. EDWARD ELLINGTON, SENATOR; THOMAS A. GOLLOTT, SENATOR; CARL J. GORDON, JR., SENATOR; J. K. GRESHAM, SENATOR; RICHARD E. HALL, REPRESENTATIVE; R. G. HUGGINS, REPRESENTATIVE; H. L. MERIDETH, JR., REPRESENTATIVE; THEODORE J. MILLETTE, REPRESENTATIVE; JOE HENRY MULHOLLAND, SENATOR; C. B. NEWMAN, REPRESENTATIVE; CHARLES RAY NIX, SENATOR; EDGAR H. OVERSTREET, SENATOR; EMMETT H. OWENS, REPRESENTATIVE; F. EDWIN PERRY, REPRESENTATIVE; JOHN WILLIAM POWELL, SENATOR; DON W. RICHARDSON, REPRESENTATIVE; JAMES C. SIMPSON, REPRESENTATIVE; GEORGE P. SMITH, SENATOR; Q. EMERSON STRINGER, JR., SENATOR; W. TERRELL STUBBS, REPRESENTATIVE; JOHN H. WALDROP, SENATOR; THOMAS H. WALMAN, REPRESENTATIVE; AND CHARLES L. YOUNG, REPRESENTATIVE v. THE STATE OF MISSISSIPPI

NOVEMBER 23, 1983

WILLIAM B. ALEXANDER, SENATOR; JOSEPH L. BLOUNT, REPRESENTATIVE; ELLIS B. BODRON, SENATOR; THOMAS L. BROOKS, REPRESENTATIVE; EDWARD H. BEULOW, JR., REPRESENTATIVE; THOMAS H. CAMPBELL, III, REPRESENTATIVE; ARCHIE L. CATES, REPRESENTATIVE; DONALD RAY CHAMBLISS, REPRESENTATIVE; AUBREY MITCHELL CHILDRE, SENATOR; ROBERT L. CROOK, SENATOR; ALGIE ARNOLD DAVIS, SENATOR; GLEN S. DeWEESE, SENATOR; LAWRENCE G. DUBAZ, JR., REPRESENTATIVE; W. EDWARD ELLINGTON, SENATOR; THOMAS A. GOLLOTT, SENATOR; CARL J. GORDON, JR., SENATOR; J. K. GRESHAM, SENATOR; RICHARD E. HALL, REPRESENTATIVE; R. G. HUGGINS, REPRESENTATIVE; H. L. MERIDETH, JR., REPRESENTATIVE; THEODORE J. MILLETTE, REPRESENTATIVE; JOE HENRY MULHOLLAND, SENATOR; C. B. NEWMAN, REPRESENTATIVE; CHARLES RAY NIX, SENATOR; EDGAR H. OVERSTREET, SENATOR; EMMETT H. OWENS, REPRESENTATIVE; F. EDWIN PERRY, REPRESENTATIVE; JOHN WILLIAM POWELL, SENATOR; DON W. RICHARDSON, REPRESENTATIVE; JAMES C. SIMPSON, REPRESENTATIVE; GEORGE P. SMITH, SENATOR; Q. EMERSON STRINGER, JR., SENATOR; W. TERRELL STUBBS, REPRESENTATIVE; JOHN H. WALDROP, SENATOR; THOMAS H. WALMAN, REPRESENTATIVE; AND CHARLES L. YOUNG, REPRESENTATIVE
v.
THE STATE OF MISSISSIPPI, BY AND THROUGH BILL ALLAIN, ATTORNEY GENERAL



EN BANC.

PATTERSON, CHIEF JUSTICE, FOR THE COURT:

The separation of governmental powers is the basis of this suit. Article I, Sections 1 and 2 of the Mississippi Constitution provides:

THE CONSTITUTION

 OF THE STATE OF MISSISSIPPI ADOPTED NOVEMBER 1, A.D., 1890

 Section 1. The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

 Section 2. 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.

 In broad terms the issue presented is whether Article I, Sections 1 and 2 should be interpreted faithfully to accord with its language or whether it should be interpreted loosely so that efficiency in government through permissive overlapping of departmental functions becomes paramount to the written word.

 The executive, legislative and judicial departments of the state all serve the same constituency and are, of course, subject to and bound by the terms of the same state constitution. The interpretation of the constitution becomes the duty of the judicial department when the meaning of that supreme document is put in issue. As long ago as 1823, Runnels v. State, Walker (1 Miss.) 146, held it the duty of the judiciary to declare void any legislative enactment which may be

 repugnant to the provisions of the constitution and that this duty is paramount to the authority of the legislature. This coincides with the genesis federal case, Marbury v. Madison, 1 Cranch 170, 2 L.Ed. 60 (1803), which held that congressional enactments contrary to the constitution are void, thus establishing the great difference in this nation's government from that of other nations. See also, State v. Wood, 187 So. 2d 820 (Miss. 1966).

 It is universally accepted that the highest judicial tribunal of a state is the paramount authority for the interpretation of that state's constitution, subject only to the Constitution of the United States. In Highland Farms Dairy v. Agnew, 300 U.S. 608, 613, 81 L.Ed. 835, 840, 57 S. Ct. 549, 552 (1937), Justice Cardozo for the United States Supreme Court stated: "A judgment by the highest Court of a state as to the meaning and effect of its own constitution is decisive and controlling everywhere."

 We are presently presented with interpretation of our constitution as it affects the rights and prerogatives of the executive and legislative departments of government.

 We need express, to avoid misunderstanding, issues which are not presented. The litigants are each public officials having been duly elected to their respective positions. There is no intimation or charge of malfeasance, dishonesty or immorality in office or in the character of any litigant. Rather the issue is whether the members of the legislature have overstepped the restrictions imposed on them by the constitution and thereby encroached upon the powers constitutionally vested in the executive department.

 This cause originated on April 7, 1982, when the legislators filed suit against Bill Allain in his official capacity as the Attorney General of the State of Mississippi. In response to an opinion letter from the Attorney General, the legislators sought a declaratory judgment:

 1. That their concurrent service on the named state boards and commissions did not violate Article I, Sections 1 and 2 of the Mississippi Constitution of 1890; *fn1 and,

 2. That the statutes providing for such service were constitutional. *fn2

 Later in the same day the Attorney General, in his official capacity, brought an action against the legislators seeking a declaratory judgment:

 1. That the named boards were in the executive department of government;

 2. That the named statutes were unconstitutional insofar as they authorized legislators to serve as or to appoint members of the boards;

 3. That the legislators were in violation of Article I, Sections 1 and 2 of the Mississippi Constitution of 1890.

 Additionally the Attorney General sought a final judgment:

 1. Ousting defendants-legislators, with the exception of Charles Young and Edgar Overstreet, from the legislature, or, alternatively, ousting them from the boards; and

 2. Ousting Charles Young from the Board of Corrections.

 Having been consolidated for trial, the causes were heard November 15-18, 1982, in the Circuit Court of the First Judicial District of Hinds County. On February 3, 1983, the trial court entered its final judgment, to become effective January 1, 1984, declaring the controverted statutes unconstitutional to the extent they authorized legislators to sit on the boards. Additionally the court declared the legislators were removed from the boards and, with the exception of Charles Young, ousted from the legislature.

 On appeal there are presented four major issues:

 1. Whether the Mississippi Constitution forbids legislators to serve on the subject boards;

 2. Whether and to what extent the Mississippi Constitution prohibits legislative involvement in appointments to the executive department; and

 3. Whether the legislature may constitutionally vest in the senate the power to confirm certain executive appointments; and

 4. Assuming answers favorable to the Attorney General on one or more of these questions, what should

 be the form and substance of the relief granted?

 Our task is the application of Article I, Sections 1 and 2 of the Mississippi Constitution of 1890, as we interpret it, to the facts of this case. In this enterprise, we are guided by several maxims of constitutional interpretation.

 First we note that the constitution is presumed capable of ordering human affairs decades beyond the time of ratification, under circumstances beyond the prescience of the draftsmen. Albritton v. City of Winona, 181 Miss. 75, 102-103, 178 So. 799, 806 (1938). In Moore v. General Motors Acceptance Corp., 155 Miss. 818, 125 So. 411 (1930), Justice Griffith stated for the court the underlying principles of constitutional interpretation.

 So it is that words, separately considered and in the strictly technical sense in which used in a Constitution, and as defined at the day of their original use therein, do not of themselves immovably fetter the sense or intention, for, if that were held to be the case, the Constitution intended to stand for all time, or at least for a long time, would by such restriction make of itself only a temporary document; it would so enchain itself as to be incapable, in a healthful and uniform manner, of any expansion or development or movement with the living current of the times, and would thereby hold within its embrace the certain means of its own ultimate destruction.

 155 Miss. at 823-24, 125 So. at 413.

 Applying these maxims, we seek the intent of the draftsmen, keeping in mind "the object desired to be accomplished and the evils sought to be prevented or remedied." 155 Miss. at 822, 125 So. at 412.

 By 1890 separation of powers was no longer a mere political theory from the untested works of Locke and Montesquieu. *fn3 There was available years of experience by the federal sovereign whose constitution implied but did not express separation of powers. Additionally, there was the example of other states of the union, each of which had divided its powers of government into three branches.

 Most important is Mississippi's history. Each of our previous constitutions - those of 1817, 1832, and 1869 - explicitly required the executive, legislative and judicial powers be vested in separate and distinct departments of government. By 1890, our citizens had enjoyed 73 years of statehood with our government so organized.

 With the knowledge and experience available to the draftsmen of the Constitution of 1890, this conclusion seems inescapable: By articulating the doctrine of separation of powers in our constitution, the framers avoided the vagueness of the implicit doctrine of the Constitution of the United States.

 More significant are the changes made in 1890 in the statement of the doctrine. First, while the Constitution of 1869 reserved Article I for our bill of rights, regulating the separation of powers to Article III, the Constitution of 1890 reversed the order. This restructuring manifests the primacy of separation of powers in the state government.

 The 1890 draftsmen made another meaningful change by adding to Section 2 the following sentence: "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." Three previous constitutional conventions, 1817, 1832, and 1869 had failed to make any such provision. The draftsmen of those Constitutions had merely declared the powers of government should be separated. The Constitution of 1890 for the first time provided a penalty, automatic and severe, for those who violate its provisions. We conclude, as we must, from this history and language that the drafters of the 1890 Constitution intended to strengthen the constitutional mandate for separation of powers in this state.

 Not only was this convincing sentence added, but contemporaneously with it, there was an important deletion. The three predecessor constitutions had provided for exceptions to the requirement that the powers of government be kept separate. For example, Article II, Section 2 of the Constitution of 1817 provided:

 No person or collection of persons, being of one of these departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

 Identical "except as otherwise provided" language appears in Section 2 of the article on separation of powers contained in the Constitutions of 1832 and 1869, but was deleted in the Constitution of 1890. We must conclude the intention of the draftsmen was that there be no exceptions to the mandates that the powers of government be held and exercised in three separate and distinct departments and that no person holding office in any one department should have or exercise any power properly belonging to either of the others. Having decided the constitutional draftsmen intended that the three departments of government be separate and distinct, we comment on the purpose of the separation. We again refer to Moore v. General Motors Acceptance Corp., 155 Miss. 818, 125 So. 411 (1930), wherein Justice Griffith stated the primary considerations for constitutional interpretation, "To ascertain and give effect to the intent of those who adopted it, to constantly keep in mind the objective desired to be accomplished and the evils sought to be prevented or remedied." 155 Miss. at 822, 125 So. at 412.

 The objectives desired to be accomplished and the evils sought to be prevented by separation of governmental powers were articulated by the authors of The Federalist. In that work James Madison stated:

 . . . It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. The Federalist, No. 48 (J. Madison) (J. Cooke ed. 1961).

 Thomas Jefferson also wrote of the necessity of internal restraints on the powers of government:

 . . . An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies

 of magistry, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. Jefferson, "Notes on the State of Virginia" , 1781-1785, ch. 13, as reprinted in "the Complete Jefferson" by Padover, Ch. XIV, pp. 648, 649.

 Book v. State Office Building Commission, 149 N.E. 2d 273, 294 (Ind. 1958).

 In his farewell address George Washington observed,

 The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position.

 Book v. State Office Building Commission, 149 N.E. 2d at 294.

 See also, Blackstone, Commentaries on the Laws of England, 146 (7th Ed. 1775); Alexander Hamilton, The Federalist, No. 51; Montesquieu, The Spirit of Laws, 151 - 154 (T. Nugent Translation 1949); Charles Warren, Case and Comment, Vol. 35, No. 2, page 3; Book v. State Office Building Commission, 149 N.E.2d at 294-295.

 Authoritatively, the United States Supreme Court in O'Donohue v. United States, 289 U.S. 516, 530, 77 L.Ed. 1356, 1360 (1932), addressed the significance of division of governmental powers into three departments:

 This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital . . . namely, to preclude a comingling of these essentially different powers of government in the same hands. . . If it be important thus to separate the several departments of government and

 restrict them to the exercise of their appointed powers, it follows . . . that each department should be kept completely independent of the others.

 See also, Springer v. Phillipine Islands, 277 U.S. 189, 201, 72 L.Ed. 845, 849, 48 S. Ct. 480 (1927).

 The authorities acknowledge that inevitably, as government endures and enlarges, there will be areas in which the functions of the separate bodies will clash with the idealistic concept of absolute separation of powers. See United States v. Nixon, 418 U.S. 683, 41 L.Ed.2d 1039, 94 S. Ct. 3090 (1974); Broadus v. State ex rel. Cowan, 132 Miss. 828, 96 So. 745 (1923); Tenneco v. Barr, 224 So.2d 208 (Miss. 1969). Accepting the inevitability of such conflict we need to examine the scope and depth of the legislative intrusions, if there be such. Indeed, if the encroachment be occasional and thought necessary for efficiency in government, and if the transgression be into an administrative matter with no inherent danger of enlargement, then the argument of appellants that efficiency in government requires some overlapping has definite force. However, if the duties and responsibilities of the boards and commissions are ongoing and are in the upper echelons of governmental affairs, as are the boards and commissions under consideration, then the legislative trespass reaches constitutional proportions. At all times, we heed the vice intended to be prevented by the draftsmen by choice of words written into the constitution.

 The legislators rely heavily on Jackson County v. Neville, 131 Miss. 599, 95 So. 626 (1923). That case, however, is consistent with the view we take here.

 Jackson County concerned the constitutionality of a statute that required both a circuit judge and the governor to pass on the correctness of a fee and expense claim submitted by an auditor concerned with the books and records of county officers. The court labeled this function "quasi-judicial," relegating it to a minor administrative role without the potential of eroding the prerogative of either the executive or judicial departments.

 Our only reservation regarding Jackson County is the inclusion of a quotation from Joseph Story's work on the Constitution of the United States in which he stated the ...


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