145 W. Va. 592 | W. Va. | 1960
This appeal was granted from an order entered by the Circuit Court of Cabell County, removing from office the respondent Harry D. Day, justice of the peace of Gideon District, Cabell County, to which office he had been elected and qualified. The proceeding was prosecuted by Bussell L. Daugherty, prosecuting attorney of Cabell County, pursuant to provisions of Code, 6-6-7. The appeal was heard on the original record, the petitions for the appeal, and the briefs and oral arguments of the respective parties. An order was entered by this Court on August 5,1960, reversing the order appealed from, and the proceeding was remanded with directions that respondent be reinstated in the office from which he had been removed. This
The petition for removal contained eight specifications. A demurrer was sustained as to specifications Nos. 2, 6, 7 and 8. The prosecuting attorney offered no evidence in support of the allegations contained in specification No. 4. Specification No. 1 contained several charges, but a demurrer thereto was sustained as to each charge except the charge that the respondent “procured a bondsman to be surety for one Erwin Huff and charging the sum of Ten Dollars ($10.00) to be paid said defendant for his services in procuring said bondsman”. The issue as to specification No. 1, as limited by the trial court, was “whether or not the defendant charged and collected a fee of $10.00 for procuring a surety on a bond for the release of someone that was being tried by him and before him. ’ ’
The summary effect of the charge made by specification No. 3 was that the respondent issued a warrant for the arrest of Floyd McConnell, on an information sworn to by McConnell’s mother, charging him with appearing “in a public place in an intoxicated condition”, and after the arrest and incarceration of McConnell in the Huntington city jail by the Huntington city police, respondent escorted McConnell from the city jail, in Gideon District, to the Cabell County jail in Kyle District, and there tried him on the charge contained in the warrant. The issue as to specification No. 3, as stated by the trial court, and as agreed to by the prosecuting attorney, was: “I take it that that specification is open for proof as to acts done by the defendant outside of Gideon District and sentencing a man without either a plea of guilty or trial and conviction”.
Specification No. 5 charged that respondent issued three warrants for the arrest of Curtis Pulley; that Pulley, after hearing of the issuance of the warrants, voluntarily went to the office of respondent for the purpose of making “necessary defense thereto”; that
Though tbe opinion of tbe trial court on tbe merits of tbe case does not point out which of tbe charges against respondent was sustained by proof, be concluded: “* * * from tbe facts proved or admitted tbat tbe conduct of tbe Respondent is not in keeping witb tbe proper conduct required or expected of one in tbe business of administering justice. Acting in tbe dual capacity of constable and justice cannot be countenanced. Trying prisoners, if in fact they were tried, inside prison walls, filling out commitments outside bis own district, acting as agent in tbe procurement of bond for persons tried or to be tried before bim, and making tbe financial arrangements therefor, and tbe taking of personal property as collateral from persons in tbe jail or from members of such persons’ family, are all acts tbat are reprehensible, when committed by one in tbe position of administering justice. Tbe fountain beads of justice must be kept clean. They should be above question or reproach. Tbe sole and primary function of tbe justice of tbe peace is to administer justice, and to do so honorably”.
Code, 6-6-5, provides tbat “Any state officer * * * may be removed from office, * * * in tbe manner pro
As to the evidence offered in support of specification No. 1, little need be pointed out. There is no testimony to the effect that respondent “charged and collected” a fee of $10.00 for procuring a surety on a bond for any person, or even that he attempted to do so. Ada Huff, wife of the defendant named in the warrant, who made the arrangements for the surety, was asked: “Did you know of any arrangement where you were to give . somebody $50.00 and Squire Day $10.00?”; answered: “Oh, no”. True, Mrs. Huff discussed the question of surety with respondent and left with him certain personal property, over his protest as he testified, as security for the person who was to sign the bond as surety for the appearance of the person accused in the warrant, but such facts, even if cause for removal from office, were not significantly pertinent to the issue resulting from the charges made in specification No. 1.
As above pointed out, the only substantial questions raised by specification No. 3 related to whether respondent tried McConnell outside of Gideon District, respondent’s official district, or whether respondent imposed a sentence on McConnell without affording him a trial. The evidence, we think, conclusively shows that respondent went to the city jail in Gideon Dis-
Respondent testified to the effect, which was not denied, in relation to the reason he escorted the prisoners to the county jail, that his “constable refuses to do any kind of work of that sort”, and that the sheriff’s office “reluctantly told me that they couldn’t”, they had too much of their own work to take care of to handle any such work, and that he went to the city jail only on such occasions as “I have nobody to bring them up to my office”.
We think it clearly established that respondent afforded McConnell an opporunity to plead, and received a plea of guilty at the city jail, in Gideon District, and then imposed the sentence for which he was confined in the county jail. Certainly the evidence does not preponderate against that conclusion. There is no indication that McConnell asked for or was in any sense denied any further hearing. Though a justice of the peace may not “hear or determine” cases in a district other than the one for which he was elected, and may be prohibited from attempting to do so, Johnston v. Hunter, 50 W. Va. 52, 40 S. E. 448, he is a county officer, State ex rel. Ralich v. Millsop, Mayor, 138 W. Va. 599, 76 S. E. 2d 737, and his jurisdiction, civil and criminal, is co-extensive with the county in which his district is situated. Code, 50-2-1; Code,
As to the charge contained in specification No. 5, whether respondent, on appearance of Pulley in the office, ordered “Pulley to return with $26.00, or he
In Hunt v. Allen, 131 W. Va. 627, 53 S. E. 2d 509, a proceeding under Code, 6-6-7, for the removal from office members of a board of education, it was held: ‘ ‘ 5. The material allegations of a petition under Code, 6-6-7, going to the merits of the charges laid must be proved independent of the allegations of the petition.” See Daugherty v. Ellis, 142 W. Va. 340, 97 S. E. 2d 33; State ex rel. Rogers v. Board of Education of Lewis Co., 125 W. Va. 579, 25 S. E. 2d 537; Hamrick v. McCutcheon, 101 W. Va. 485, 133 S. E. 127; Dawson v. Phillips, 78 W. Va. 14, 88 S. E. 456. The pertinent statutory provision of Code, 6-6-7, requires that a person may be removed from office only “upon satisfactory proof of the charges”.
In Sharps v. Jones, 100 W. Va. 662, 131 S. E. 463, a proceeding prosecuted for the purpose of removing from office a member of a board of education, we held: “3. While charges for the removal of a public officer need not be set out in the strict form of an indictment,
It seems clear, therefore, from the facts detailed, in the light of the authorities cited, that petitioner failed to prove, by a preponderance of the evidence, at least, any substantial charge alleged in the petition for which removal from office is authorized or warranted, and that the order complained of was necessarily reversed, and the case remanded for the purposes stated in the order heretofore entered.
Reversed and remanded.