Davis v. State

| Tex. | Jul 1, 1872

Ogden, J.

The Constitution is the fundamental law of the land, prescribing in general terms the rights and duties of every citizen, whether in a private or official position ; and it is, or should be, one entire and harmonious rule for the government of every department of the political organization, whether legislative, executive or judicial; and though composed of many parts, or clauses, yet each should agree, and harmonize with all. It is therefore the duty of the courts to so construe each part, if possible, that no one clause shall conflict with,, or contradict any other.

Section sixteen of the Bill of Rights provides that,, “No citizen of this State shall be deprived of life, liberty, property or privileges, or in any manner disfranchised, except by due course of the law of the land.” This clause is imperative, and should be obeyed by every department of the government, and every individual citizen of the State.

The appellant has appealed from an order and decree of the district court in this cause, and complains that-he has been deprived of an important privilege and franchise, in violation of this imperative mandate of the Constitution. That, by an order of the district judge, he has been removed from the office of sheriff of Henderson county, without having been served with any written process whatever; that he was deprived of a proper and legitimate hearing in court, and denied the right of trial by jury. It therefore becomes important, in order to a just disposition of this case, to know the constitutional power of the district court in making removals of the sheriffs, and what are the necessary formalities to be observed in making such removals.

Section 18, Article 5, of the Constitution, reads thus ;■ “ One sheriff for each county shall be elected by the qualified voters thereof, who shall hold his office for four years, subject to removal by the judge of the district court for said county, for cause spread upon the minutes of the court.” The evident intent and purpose of this clause of the Constitution was to put the sheriff directly under the immediate supervision and control of the judges, with full power and authority to remove summarily, for any cause, whether punishable as a crime or not, yet which might hinder and delay the business of the court, if not wholly defeat the ends of justice. Cases might, and often do arise, in which, if the judge were compelled to go through the tedious process of indictment, and trial by jury, in order to free the office of sheriff, or clerk of the court, of a-worthless or bad incumbent, it would be wholly impossible to execute the law, or maintain the dignity or authority of the court. The sheriff and clerk are emphatically subordinate officers of the court, and it is-believed that the framers of the Constitution intended to make the tenure of their offices dependent upon the faithful, prompt and efficient performance of all the duties of the same, determinable by the presiding judge alone, for cause spread on the record.

We are unable to discover how Section 18, Article 5, can in any way conflict with Section 16, of the Bill of Rights, as the former prescribes the due course of law required by the latter; nor can we see the force of the objection that appellant was denied the right of a trial by jury, as the case presented by the record was not one about which a jury could determine, there being no law to direct their judgment, excepting that clause of the Constitution which directs that the removal shall be done by the judge. The removal by the judge was in the nature of a fine or punishment for contempt, and we can see no reason or wisdom of a rule which would deny to the judge the right and power to maintain his •authority. In the case at bar a rule was entered against the sheriff to show cause, in writing, why he should not be removed. This order answered every purpose of a warrant or citation, as the sheriff is supposed to be always in court, and acquainted with the orders and rules. The sheriff obeyed the rule, and filed his answer and affidavits in support of the same, and we can see no error in the action or ruling of the court in this respect, which would authorize this court in disturbing the judgment. The Constitution, however, requires that the cause of the removal shall be spread on the records of the court, and without doubt, for the obvious and important reason that the order and cause may be seen and known, and, if necessary, to be revised and corrected by appeal.

The answer and defense of appellant, and the order of the court, and the cause of the removal, as there stated, have been carefully examined. From the order of the court, we learn that appellant was removed from office for a contempt of court, in disobeying the “order and command” of the judge, pronounced in open court, to take two prisoners to the Anderson county jail, for safe keeping, and that in consequence the prisoners escaped. It further appears that no order was entered upon the records of the court to that effect, and that no writ, or copy of any such record, ever issued to said sheriff, authorizing or ordering him to take said prisoners to Anderson county; and that consequently the prisoners were kept in Henderson county by the sheriff, who attempted to have said prisoners guarded in his ■own county. There is no evidence in the record of this ■cause, going to show that the sheriff had willfully or negligently permitted the prisoners to escape, or been guilty of any contempt of court, or neglect of any ■duty, excepting in failing to take the prisoners to Anderson county during vacation, in obedience to the order and command of the judge, pronounced in open court, and without any written order or authority whatever. And for the reason stated, we think there' was error in the order and decree of the court, in removing the appellant from the office of sheriff; as the sheriff could not legally have removed said prisoners'from one county to another, without a written order and authority for that purpose. While we fully recognize the authority given by the Constitution to the judges to-remove sheriffs for cause, yet we must also admit the-fact that the power is an extraordinary one, to be executed out of the usual course for the administration of' the law, and should therefore never be called into operation, excepting in cases of great necessity, and for-clear and manifest cause; and even then with great, caution, and in strict conformity with the authority given. The judgment of the district court, in removing the appellant from the office of sheriff of Henderson county, is reversed, and a mandate to reinstate him. in said office is hereby awarded.

Ordered accordingly.