94 Neb. 794 | Neb. | 1913
Lead Opinion
From a judgment of the district court for Buffalo county, removing appellant, who will be referred to as defendant, from the office of county judge of that county, he prosecutes this appeal.
The action ivas instituted by appellees, who will be designated as plaintiffs, to remove defendant from his office for causes enumerated in section 1, art. II, ch. 18, Comp. St. 1913. ' The district court, by consent of parties, referred the case to Honorable T. O. C. Harrison to take testimony and report findings of fact and conclusions of law. The findings of fact and conclusions of law by the referee were adverse to defendant. No proper bill of exceptions of the evidence taken before the referee has been preserved in the record. The case must therefore be determined purely upon the questions of law raised by the motion for a new trial and assigned here, one of which is that the district court is without jurisdiction to remove a county judge; in other words, that the statute, under which the complaint was filed and prosecuted, in so far as it permitted the removal of a county judge for any
Section 1 of the act referred to provided: “All county officers, including justices of the peace, may be charged, tried, and removed from office for official misdemeanors in the manner and for the causes following: First. For habitual or wilful neglect of duty. Second. For gross partiality. Third. For oppression. Fourth. For extortion. Fifth. For corruption. Sixth. For wilful maladministration in office. Seventh: For conviction of a felony. Eighth. For habitual drunkenness,” Section 2 provided: “Any person may make such charge, and the district court shall have exclusive original jurisdiction thereof by summons.” Section 3 provided that the proceedings should be as nearly like those in other actions as the nature of the case would admit of. Section 4 provided that the complaint should be by “an accuser against the accused,” and should contain the charges with the necessary specifications, and be verified by the affidavit of any elector of the state. Section 5 provided that it would be sufficient that the summons require the accused to appear and answer a complaint for “official misdemeanor;” and that a copy of the complaint must be served with the summons. Section 6 provided that no answer or other pleading after the complaint is necessary, but that the defendant might move to reject the complaint or demur thereto upon any ground rendering such motion or demurrer proper. Section 7 provided that the questions of fact should be tried as any other action, and if the accused should be found guilty judgment should be entered removing him from his office and declaring the office vacant. This act was adopted in 1800. Turning to the constitution of 1800, we find the following provisions :
Section 28, art. II, provided: “The house of representatives shall have the sole power of impeachment, but a majority of the members elected must concur therein. Impeachments shall be tried by the senate; and the senators,
Section 29 provided: “The governor, secretary of state, auditor, treasurer, and judges of the supreme and district courts, shall be liable to impeachment for any misdemeanor in office; but judgment in such cases shall extend only to removal from office, and disqualification to hold any office of honor, trust or profit, under this state; but the party convicted or acquitted shall nevertheless be liable to indictment, trial and punishment, according to law. All other civil officers shall be tried for misdemeanors in office in such manner as the legislature may provide.”
Section 81 provided: “The legislature may declare the cases in which any office shall be deemed vacant, and also the manner of filling the vacancy where no provision is made for that purpose in this constitution.”
In Brittle v. People, 2 Neb. 198, 211, Mr. Justice Ckotjnse gives us alittle inside information as to the birth of this constitution: “As is well known, the constitution was originally drafted in a lawyer’s office by a few self-appointed individuals. These importuned the legislature then sitting to submit it to a vote of the people.” On page 214, in speaking of the matter again, the learned justice said: “Yet we have seen that it was born in a law office, instead of a convention; that it was made by no one under any authority whatever; and that it might as well have been made by any one else as by those who did draft it. Again, we have noted that it was submitted by nobody lawfully empowered, to do so; that no one was obliged to vote, and no one could be punished for voting a thousand ballots at the pretended election. And we have further seen that, whether carried by a majority vote in fact or not, we are nevertheless a state working under the constitution so voted for.” It is not surprising that the people were not satisfied with a constitution drafted, submitted, and voted for under the conditions above outlined,
It-will be conceded on all sides that there was no conflict betwen the statute set out and the quoted provisions of the constitution of 1866; and the important question involved is what change, if any, was made by the constitution of 1875? To that point we now direct our attention. Further reference to sections of the constitution will be to the constitution of 1875.
Section 18, art. XYI, provides: “If this constitution be adopted the existing constitution shall cease in all its provisions on the first day of November, A. D. 1875.” In Wheeler v. City of Plattsmouth, 7 Neb. 270, in considering that section, we held: “The old constitution did, then, cease in all its provisions, and must be considered, except as to transactions past and closed, as if it never existed.”
Section 1, art. VI, provides: “The judicial power of this state shall be vested in a supreme court, district courts, county courts, justices of the peace, police magistrates, and in such other courts inferior to the district courts as may be created by law for cities and incorporated towns.”
Section 4, art. X, provides: “The legislature shall provide by law for the election of such county and township officers as may be necessary.”
Section 13, art. XVI, provides: “The general election of this state shall be held on the Tuesday succeeding the first Monday of November of each year, except the first general election, which shall be on the second Tuesday in October, 1875. All state, district, county, precinct and
Section 14 provides: “The terms of office of all state and county officers, of judges of the supreme, district and county courts, and regents of the university shall begin on the first Thursday after the first Tuesday in January next succeeding their election.”
Section 15 provides: “The supreme, district and county courts established by this constitution shall be the successors respectively of the supreme court, the district courts and the probate court, having jurisdiction under the existing constitution.”
Section 10 provides: “The supreme, district, and probate courts now in existence shall continue, and the judges thereof shall exercise the power and retain their present jurisdiction until the courts provided for by this constitution shall be organized.”
Section 20, art. Ill, provides: “All offices created by this constitution shall become vacant by the death of the incumbent, by removal from the state, resignation, conviction of a felony, impeachment, or becoming of unsound mind. And the legislature shall provide by general law for the filling of such vacancy, when no provision is made for that purpose in this constitution.”
Section 14, art. Ill, provides : “The senate and house of representatives in joint convention shall have the sole power of impeachment, but a majority of the members elected must concur therein. Upon the entertainment of
Section 5, art. Y, provides: “All civil officers of this state shall be liable to impeachment for any misdemeanor in office.”
An examination of these sections of the constitution shows not only that the office of county judge is a constitutional office, but that the framers of the constitution deliberately segregated that office from other offices elected within a county, and placed county judges in a separate and distinct class with judges of the supreme and district courts, and has, in substantially every instance, classed county courts with the supreme and district courts as a
If we are right in this, then how can such officers be removed? Has the constitution provided for their removal and determined how their offices shall become vacant? The answer must be in the affirmative. The provision of section 29, art. II of the constitution of 1866, supra, that the governor, secretary of state, auditor, treasurer, and judges of the supreme and district courts should be liable to impeachment, and that all other civil officers should be tried for misdemeanors in office in such manner as the legislature may provide, is completely superseded by sections 14 and 20, art. Ill, and section 5, art. V, of our present constitution. It will be seen that section 5, art. V, adds to the causes for impeachment specified in section 20, art. Ill, the additional causé of “misdemeanor in office.” This general term is broad enough to cover any cause set forth in section 1, art. II, ch. 18, supra, and it is significant that the framers of the constitution added this general cause, so as to cover every kind and character of maladministration in office, but adhered to the method of- removal, viz., by impeachment. Having provided, fully, by section 20, art. Ill, and section 5, art. V, the grounds
It is claimed that this court has adopted the other view in State v. Lansing, 46 Neb. 514, 530. This claim is not well founded. The facts in that case are: In 1891 Lansing was elected county judge of Lancaster county and duly qualified and discharged the duties of his office for the full term. At the general election in 1893 he was re-elected and a certificate of election issued to him, but he did not execute an official bond and file the same in the office of the county clerk within the time required by law. The relator charged that, by reason of iiis failure to so file his bond, together with.his oath of office, the office had become vacant. At the election of 1894, which would be during the middle of that term, the relator was a candidate for election to fill the vacancy. The section of the statute which Judge Lansing failed to comply with provides: “Official
Plaintiffs also place reliance in Donahue v. County of Will, 100 Ill. 94, which, they insist, was approved and followed in State v. Oleson, 15 Neb. 247. The office involved in Donahue v. County of Will was the office of county treasurer, and that involved in State v. Oleson county sheriff. For the reasons which we have set out in this opinion, we think a clear distinction must be drawn between the office of county judge and county offices properly so called. But even as applied to the office of county sheriff, the opinion in State v. Oleson was written with grave misgivings as to the soundness of the holding in Donahue v. County of Will. The opinion by Mr. Chief Justice Cobb, in concluding (p. 250), says: “I think, upon a careful consideration of the whole subject, that it is safe to follow this precedent, though that the case is entirely free from doubt cannot be said.” We think State v. Oleson is clearly distinguishable from the case at bar.
In’ Lowe v. Commonwealth, 60 Ky. 237, it is held: “Wherever the constitution has created an office and fixed its terms, and has also declared upon what grounds and in what mode an incumbent of such office may be removed before the expiration of his térm, it is beyond the power of the legislature to remove such officer or suspend him from office for any other reason or in any other mode than the constitution itself has furnished.” In Commonwealth v. Williams, 79 Ky. 42, it is said: “Mr. Cooley says That, Avhen the constitution defines the circumstances under Avhich a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases.’ Constitutional Limitations, p. 78, 4th ed.” The opinion then cites Lowe v. Commonwealth, and quotes the holding of that case as above set
Counsel for defendant cite People v. Board of Supervisors, 40 Mich. 585. In that case the syllabus holds: “Probate judges are not county but state officers, and are not subject to the control of any authority inferior to the legislature.” In the opinion (p. 588) it is said: “It is very clear to us that the duties performed by probate judges are in no sense services performed for their respective counties, and that they are in no sense county officers. They exercise a portion of the judicial and prerogative power of the state, and cannot be subjected to the- direction of any body inferior to the legislature. * * * The legislature is the only body having charge of the state interests. It cannot be liable to the local passions and prejudices which may and often do produce confusion in local affairs, and which, if allowed free action, may destroy the independence and break up the business of one of the most important branches of our judicial system.” In the brief of counsel for plaintiffs, the only comment made upon the Michigan case is that “this decision is overruled by implication in the later case of Secord v. Foutch, 44 Mich. 89.” We have examined that case, but are unable to discover how it in any manner overrules or departs from the case of People v. Board of Supervisors, supra.
After a careful examination of our constitution and of every case cited by counsel on both sides, we are constrained to hold that the only method of removing a county judge from office is by impeachment. It follows that the district court was without jurisdiction in the present action.
A number of other important and very interesting questions are discussed in briefs of counsel, but, inasmuch as the conclusion we have reached on the question of jurisdiction Anally disposes of the case, they will not be considered.
Revebsed and dismissed.
Concurrence Opinion
concurring.
The constitution of 1875 provides: “All civil officers of-this state shall be liable to impeachment” (article Y,
The various provisions of the constitution bearing upon this question are not as definite as might be wished. The
Dissenting Opinion
dissenting.
I am unable to concur in the majority opinion, and deem the matter of such importance as to require my reasons to be stated. The majority opinion holds that a statute providing for the removal of county officers for misdemeanors in office was repealed by the adoption of the constitution of 1875, at least so far as the office of county judge is concerned.
The solution of the question presented depends upon the construction to be given certain sections of the constitution of 1875. Bearing in mind the rule that repeals by implication are not to be favored, and the rule of constitutional interpretation that the courts in endeavoring to ascertain the meaning of language used in the instrument may look to existing conditions at the time the constitution was adopted — practically a corollary of the ancient rule that courts will look to the old rule, the mischief, and the remedy — it seems to me that the intention of the constitutional convention is not difficult to ascertain. The constitution of 1866 (article II, sec. 29) provided for the removal by impeachment of the judges of the supreme and district courts and the four officers of the executive department of the state only, but gave the legislature poAver to provide for the removal of county officers and justices of the peace for misdemeanors in office by proceedings “analogous to impeachment,” as Judge Irvine says in Hopkins v. Scott, 38 Neb. 661, 669. The statute in question was enacted in the exercise of this power. The new constitution changed the impeaching body from the house to the legislature as a whole, provided a neAV court for the trial of impeachments, and added to the list of impeachable officers by making “all civil officers of this state * * * liable to impeachment.” Article V, sec. 5.
In the opinion great stress is placed upon the fact that the powers and jurisdiction of county courts are enumerated in article YI of the constitution relating to the judiciary department. I can see no reason for distinguishing in tliis respect between the county court and other inferior courts or judicial officers named in the article. Section 1 provides: “The judicial power of this state shall be vested in a supreme court, district courts, county courts, justices of the peace, and police magistrates, and in such other courts inferior to the district courts as may be created by law for cities and incorporated towns.” Section 21 of the same article provides that, “in case the office of any judge of the supreme court, or of any district court, shall become vacant * * * the vacancy shall be filled by appointment by the governor,” etc.; and that “va
As to county judge,- the constitution says: “There shall he elected in and for each organised county one judge, who shall be judge of the county court of such county .” Const, art. YI, sec. 15. The amount of his compensation is fixed by the legislature. He received it in a manner directed by that body, and from fees collected in the county. By no allowable stretch of the imagination can he be said to be a “civil officer of this state.” The meaning of the phrase “officers of the state,” or “state officers,” has many times been construed. While in one sense almost every county and city officer indirectly is an officer of the government of the state, used in such a connection the courts interpret the Avords “civil officers of this state” to mean officer of the state, as distinguished from those of any county, municipality, or other goArernmental subdivision. State v. Dillon, 90 Mo. 229; Opinion of Justices, 167 Mass. 599; Turner v. Cotton, 93 Tex. 559; Ex parte Wiley, 54 Ala. 226; In re Speakership, 15 Colo. 520, 11 L. R. A. 241. I can see nothing in the reasoning of the opinion as to the office of county judge Avbich is not equally applicable to the offices of justice of the peace or police magistrate. I can noAvliere find authority conferred upon this court to draw a line between justices of the peace, police magistrates, and county judges, when the constitution itself draws no such line. The argument that, if the legislature has poAver to provide for the removal of county judges, other Avise than by impeachment, it also has the power to remove judges of the supreme and district courts and state officers in like manner seems to be unsound. Where in the constitution special reference has been made to particular officers, and a special tribunal created for the impeachment of such officers, the special provisions control.
The case of Lowe v. Commonwealth, 60 Ky. 237, relied upon in the opinion is entirely consistent with these views. The legislature has no power to enact a statute such as this and make it apply to the office of supreme and district judge or state officers, because as to such officers, to quote
With respect to the quotation from the case of People v. Board of Supervisors, 40 Mich. 585: This case was decided in 1879. The opinion was written by Judge Campbell, the controversy being over whether the county supervisors had the power to change the compensation fixed by the legislature for probate judges, and it was held that the power to fix salaries lay in the legislature. The very next year the same judge, in Secord v. Foutch, 44 Mich. 89, which was an action to try the title to the office of probate judge, said: “The facts were all agreed upon, but the circuit judge, on the hearing, decided he had no jurisdiction, and dismissed the case. He did so on the ground that this court had held that the judge of probate was not a county officer, but was a part of the judiciary system of the state. Such judges are not ‘state officers’ in the sense in which that term is used in the statutes.” The former case, therefore, is no authority upon the point presented.
To sum up: The constitution of 1866 provided for the impeachment of certain officers therein named. The constitution of 1875 added to the number of executive officers, ;md provided: “All civil officers of this state shall be liable to impeachment,” etc. The statute was in force providing for the removal of county officers, as was done in this case, and nothing in the new constitution, either directly or impliedly, repealed it. It seems to argue very little practical common sense in the constitution makers to say they took the view that the cumbersome and unwieldy machinery of impeachment was necessary in order to remove a county judge for misdemeanors in office. I am satisfied that the wisdom, the experience and the sound judgment of that distinguished body of men was such that they never contemplated the possibility of such a construction of the constitution as is adopted by the majority opinion.
Concurrence Opinion
concurring.
I agree to the judgment dismissing this case, but prefer to base my opinion upon what I conceive to be the conceded facts of the case.
As I understand the case, there is nothing in the evidence tending in any degree to show any moral turpitude in any act of defendant. True, during his previous terms he charged and collected more fees in certain cases than the law allowed, under the belief that it was his duty to make such collections. Under the provisions of our statute he became liable to each and every person so overcharged, the amount of damages being fixed by law, and that without reference to his knowledge or intention at the time of making the charge. But, the effort to remove one from office is an entirely different matter. As I understand the record, the charges were made under the belief that they were legal, and that all were accounted for to the proper officers of the county and nothing retained or appropriated to his own use; in short, that he had erroneously construed or read the law, but without any intention of profiting thereby. If public officers are to be turned out of office and disgraced for every error in judgment, no matter how conscientiously committed, there would seem to be no protection to any person from the highest to the lowest officers of the state, whether executive or judicial. To remove a man from office should require evidence of an intention to do wrong. At any rate, where such intention is so fully negatived as to convince the mind that no wrong was intended, the effort to remove should fail.
