62 So. 189 | Ala. | 1913
Lead Opinion
This is the case of an information for the impeachment of two members of the jury commission of Morgan county. The information contains four charges proceeding under the authority of sections 173 and 175 of the Constitution, which, when read together, authorize the impeachment of jury commissioners “for willful neglect of duty, * * * or any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith.”
Count 1, so to speak of the first charge stated in the information proceedings, for willful neglect of duty, in that defendants, after having emptied the jury box preparatory to refilling the same, did unlawfully and willfully leave out of said box and fail to place therein the names of certain male citizens of the county, designated separately in some dozen specifications, who were eligible for jury service and whose names had been duly entered upon the jury roll and upon cards prepared in accordance with the direction of the statute, all which facts were then and there known to defendants. The remaining counts proceed for the commission of an offense involving moral turpitude, to wit, the offense of unlawfully withdrawing or removing the names of eligible jurors from the jury box after the box had been replenished and the jury roll made up. A further statement of the detailed averment of these counts is unnecessary.
An examination of the statute under which defendants were acting (Acts Sp. Sess. 1909, pp. 305-320) reveals the fact that duties of two distinct classes are thereby imposed upon jury commissioners. For one, they are required to prepare a jury roll to contain the names of every male citizen of the county possessing the prescribed qualifications of jurors and not specifically exempt. The statute provides a clerk, and contemplates that he shall perform the clerical labors of
The specific'effect of count. 1 has been stated. It charges the Avillful doing, or the willful failure to do, an act which may Avith propriety be designated as either a nonfeasance, misfeasance, or malfeasance, for these terms cover a certain common field within which the act or omission charged seems to fall. '
Impeachment proceedings are highly penal in their nature, and are governed by the rules of law applicable to criminal causes. Constitutional and statutory provisions on the subject of the procedure in such cases,
Section 7 of the act provides that any commissioner, or clerk of a commission, who neglects to perform any duty imposed upon him by the act, is guilty of a misdemeanor. The averment of the count or charge in question is that the jury box had been emptied preparatory to refilling. It is not charged that the box was unlawfully emptied. And section 12 of the act makes it entirely clear that the commissioners must at times and in a certain event empty the jury box preparatory to refilling it. At such times they are also to make and certify a new jury roll. For aught appearing to the contrary in the averments of the count, the Commissioners had an indubitable right to enter upon the business of creating a new jury roll and the refilling of the box, and of necessity while so engaged they had a right to change or revise any previous judgment in respect to the qualification of any prospective juror, and this right they might exercise, proceeding, of course, in good faith as a commission organized and sitting for the purpose of discharging their duties under the statute, until all questions were finally determined; and probably the statute contemplates that the determination of finality shall be evidenced by the delivery of the refilled jury box to its custodian of statutory appointment, thus putting it beyond the power and control of the commission. In such revision and in making the contents of the jury box answer to their judgment by leaving out or failing to place therein the names of persons adjudged to be ineligible, though that judgment be erroneous, the commissioners, whatever else may be said of their course, are not neglecting their official duty. Provided only
The remaining counts were intended to express the pleader’s conclusion that jury commissioners arc guilty of an act involving moral turpitude whenever they withdraw from the jury box the name of an eligible prospective juror after the box has been replenished and the jury roll made up. The theory of these counts or charges is that section 27 of the statute makes certain acts felonies and so attaches to them the quality of moral turpitude. The section reads: Any person who shall unlawfully place in, or withdraw from, the jury box any name or names of persons, or destroy, cancel, or remove such jury box, or place on or erase from the jury roll the name of any person, or destroy, mutilate, conceal, or remove such jury roll, shall be guilty of a felony, etc.
Why the pleader, in the pursuit of any consistent theory of the statute, should have alleged that the persons whose names were withdrawn were eligible as jurors does not appear. The terms of the section make no distinction between the withdrawal of the names of eligible and ineligible persons. Jury commissioners have
Section 27 says nothing of intent. Offenders against it are made felons without regard to intent. If it applies to commissioners, it does not as to them perfectly define the several acts denounced as felonies, for the letter of the statute in other places, and the exercise of the functions for which the commission was created, require that at some time they do most of the things denounced, nor is any negation of their power to do these things at any time to be found except in the negative implied by section 12, where they are commanded to make and certify a new jury roll and refill the box when the box is exhausted or so far depleted that it will probably be exhausted at the next drawing of jurors. In Jury Commission v. State, 178 Ala. 412, 59 South. 594, this implied negation was held effectual to deprive the jury commission of power and jurisdiction except in the conditions specified in section 12, and to render proper a writ of mandamus to compel the restoration of the status quo ante, where the commissioners had assumed to act in the absence of such conditions. In that case it was also held that the existence of the conditions calling for the making of a new jury roll was to be found by the commission, and that must be the case; for, while the duty of preparing a new roll and refilling the box is put on them in the event of a probable exhaustion, no
It may be that a proper construction, though strict, of section 27 of the statute would hold the penalty therein prescribed was intended for jury commissioners who do any of the acts denounced in their mere individual capacity, or even where they undertake to act in their corporate capacity as members of an organized commission under a corrupt and false color of office, and such is the intimation of the argument in Jury Commissioners v. State, supra. But it is inconceivable, and no language of the statute requires us to hold otherwise, that the legislature intended that the individual members of a jury commission, which proceeds to adjudge the occasion and necessity for action and then in good faith takes action as a commission, virtute officii, should be held for- felons when they mistake the law or the facts.
We think there is no necessity for a discussion of the disputed proposition that the doing of an act malum prohibitum only, and done ignorantly or under a mistaken apprehension of the law, must be taken to imply necessarily moral turpitude when the act is by statute denounced as a felony without regard to the intent with Avhich it is done. The charge of the last three counts of the information is that defendants, when they unlawfully drew names from the jury box, acted under color of their office as jury commissioners of Morgan county. Without saying Avhether any additional averment Avas necessary to make good this charge, Ave note that the import of the averment as made is that defendants acted under the mere shadow and false color of their office; that is, corruptly or with wicked and vicious motive. — 7 Cyc. 402. It was therefore incumbent On the state to prove corruption, and the question
Recurring now to the first charge of the information, we will consider briefly what is there meant by willful neglect. Let it be noted that we are considering “willful neglect” according to its meaning in the Constitution and not “willful neglect” as used in the statute, for the proceeding here is not an indictment under the statute, but is an impeachment proceeding under the Constitution. The Constitution does not authorize the impeachment of an officer on the ground that he has committed a misdemeanor unless the misdemeanor involves moral turpitude, and it is perfectly clear that not all misdemeanors, particularly statutory misdemeanors, involve moral turpitude. Nor does the Constitution any more in terms authorize impeachment for felonious offenses unless they involve intrinsic moral turpitude, or unless the Legislature by denouncing as a felony an act inherently lacking in moral quality thereby changes and fixes its moral character for the worse. The power to do that may be doubted. Confessedly, “willful” has various meanings; but its meaning in any particular place or connection is to be determined upon consideration of the uses and purposes it is there serving.' We do not intend, however, to decide that “willful neglect” in the Constitution means anything different from “willful neglect” in the statute. That question is not presented. We are directing attention only to the principle that the intention of the framers of the Constitution must in this proceeding under the Constitution be given effect in any event.
That “willful neglect,” as used in the Constitution, means something more than simple neglect, or the neglect of mere inadvertence, is obvious. The contention for the state is that “willful,” as used in the Constitu
“Willful neglect,” being one of several grounds of removal from office, must be interpreted in connection with the other grounds with which it is associated in the Constitution, which are also made causes of impeachment. Those other grounds are: Corruption in office; incompetency; intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties; any offense involving moral turpitude Avhile in office, or committed under color thereof, or connected therewith. Speaking of these causes of removal from office, Judge
Our common observation of the administration of governmental affairs establishes the fact, and due cognizance of it cannot be avoided, that some duties put upon public officers are of so.little relative consequence that their neglect in ordinary times attracts no attention. Though not in accord with the legal theory that all men know the law — a theory very necessary for some purposes — it is also a fact that capable, careful, and conscientious officers may be unacquainted with provisions that may be tucked away in the corners of obscure statutes. And statutes are not infrequently framed so dubiously, they often deal with matters of such intrinsic difficulty, that anxious and intelligent officials cannot know what they mean until the courts have declared their meaning. We think the statute defining the duties and responsibilities of the defendants in this case may not unfairly be said in some of its provisions to furnish an example of this fact. For these reasons administrative and executive officers, who are not required or expected to be learned in the law, continually re sort to counsel for advice in the discharge of their duties. Indeed, it is not difficult to conceive cases in which a failure to do so would be accepted by the common understanding as evidence of negligence or inefficiency.
Recurring to Chief Justice Beasley’s opinion in State v. Cutter, supra, it was argued for the prosecution in that case, as it is here, that as the fees to which the justice was entitled were fixed by law, his guilty knowledge was undeniable. But the court said: “The argument-
The Constitution, in providing for the removal of unfit officers, proceeds to ends more in accord with the dictate of natural justice and along broader and more liberal lines than do strict and often harsh criminal statutes which prescribe punishment for every transgression of the law. Accordingly, we are clear to the conclusion that whatever might be said in the case of a prosecution under the criminal provisions of the Jury Commission Act, and however an overruling' public policy and necessity might conclude the commissioners in some contingencies against saying they did not know the law and had been advised by counsel, if defendants in this impeachment proceeding fairly stated the facts of their situation to legal advisers of good repute for
An inspection of the record will show that in several particulars the trial court failed to observe the principles which should have governed the case. The judgment of impeachment will be reversed and the cause remanded.
Reversed and remanded.
Dissenting Opinion
(dissenting.) — I ani unable to agree with the majority in their interpretation of willful neglect of duty, and therefore dissent without reference to other questions decided on this appeal. On the trial of the impeachment charges against the sheriff of Hale county (styled State of Alabama, ex rel. Attorney General v. William Martin, 180 Ala. 458, 61 South. 491), it was necessary to interpret willful neglect of dtoty as employed in section -173 of our Constitution. After as thorough an investigation and consideration of this inquiry as I could bestow, my conclusion was that willful neglect of duly, as there employed, was this: “An intentional failure or omission of an officer to perform a plain and manifest duty which he is able to perform when he omits to do so.” After still further consideration of this matter of particular inquiry, my conviction of the meaning of the phrase remains as previously expressed. As I read them there is no judicial
In addition to the pertinent considerations adverted to in my opinion in the case of the Sheriff of Hale County, ante, which seem to me to be entitled to influence and effect in attaining a conclusion in the premises, it appears that if this cause for .impeachment, willful neglect of duty, is interpreted as comprehending evil or had motive or intent in not observing a plain and manifest duty, and so requiring the establishment of that element in order to make out a case of willful neglect of duty, one result would be to make the cause willful neglect of duty cover, at least in a large degree, another of the canses, viz., corruption in office, as the controlling-word in .that phrase has been defined by eminent jurists and textwriters. See Wight v. Rindskopf, 43 Wis. 344, 351; C. City Ry. Co. v. Olis, 94 Ill. App. 323; 10 Cyc.
It seems to me that to interpret willful neglect of duty as requiring, as a condition to guilt thereof, the then entertainment by the officer of a bad or evil motive or intent in not observing a plain and manifest duty, is, necessarily, to establish a standard against the public policy that is the immediate outgrowth of public necessity; and to surround officers, even confessing an intentional failure to perform a plain and manifest duty, with such a large degree of practical immunity from removal for willful neglect of duty that I cannot believe was the intent of the makers of the present Constitution and of its predecessors. The ascertainment of the standard the organic writers established in providing for removal from office of the officer who willfully neglects a plain and manifest duty cannot, in my opinion, be soundly or wisely affected by any degree of common knowledge (if such there be) that officers do not perform their plain and manifest duties or that some plainly exacted duties are of trivial consequence.
If these factors (if they exist) are given such an effect in interpreting the organic law in the particular under view, the consequence, as I see it, is to not only clothe officers with a practical discretion above positive law establishing their duties, but to qualify the exaction of the best service by officers and thus oppose what seems to me to be a manifest public policy that is the