63 So. 559 | Ala. | 1913
— While ours is a popular form of government, under which nearly all officials are elected by the people, yet public office has been ever regarded as a public trust, and our lawmakers, while not contemplating or requiring infallibility, have expected a faithful and intelligent discharge of duty by those who
Section 173 of the Constitution provides for the method of impeaching certain officials therein enumerated and prescribes the causes for removal, and which are as follows: “Willful neglect of duty, corruption in office, incompetency, or interperance 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, or for any offense involving moral turpitude while in office or committed under color thereof.” Section 174 makes section 173 apply to probate judges and other officers therein named but who are omitted from said section 173, and section 176 provides that the penalty shall not extend beyond the removal from office and disqualification from holding office, under the authority of this state, for the term for which the officer was
It must be observed that, while the law affords ample means .for the indictment and punishment of unfaithful officers and for the removal of same for certain causes, the maximum penalty, under an impeachment proceeding, is the removal and disqualification to hold office under the state for the term only for which he was elected. If an officer is impeached and removed, there is nothing to prevent his being elected to the identical office from which he was removed for a subsequent term, and, this being true, a re-election to the office would operate as a condonation under the Constitution of the officer’s conduct during the previous term, to' the extent of cutting off the right to remove him from the subsequent term for said conduct during the previous term. It seems to be the policy of our Constitution to make each term independent of the other and to' disassociate the conduct under one term from the qualification or right to fill another term, at least so far as the same may apply to impeachment proceedings, and as distinguished from the right to indict and convict an offending official. In other words, if this respondent had been inpeached and removed from his first term, that fact could not affect his right to hold the subsequent term to which he was elected in 1910, and, as he was reelected in 1910, this fact alone forecloses the state from impeaching and removing him from the second term for acts done during the previous term. We therefore sustain the motion of respondent to strike from the information all grounds of impeachment based upon his conduct during the previous term of office.
We are not unmindful of the fact that there have been rulings by other tribunals, federal and state, wherein the conduct of the officer during the previous term of
■ While we have eliminated the acts of the previous term, as grounds .of impeachment, we have considered some of them-as evidential facts-, in so far as they are connected with or bear upon the respondent’s general course of conduct during the second term, for the limited purpose of inquiring into the motive and intent of the respondent as to the acts and omissions charged to him during the second term.- — Reeves v. State, 95 Ala. 31, 11 South. 158; Jones on Evidence, §§ 143-145.
The respondent questions, by demurrer, the charge that he neglected to issue executions from the county court upon the ground that, under the statute, it was not his duty to do so, and we are cited to subdivision 11 of section 3272 of the Code of 1907, which, among other things, requires the clerks of the circuit court to issue executions from the county court. There can be no doubt of the proposition that it is the duty of the circuit clerks to issue executions from the county court in the counties in which he is clerk of the county court, as well as clerk of the circuit court, and which is now and has been the case in many counties in the state. Section 4079 of the Code of 1907, however, makes it the duty of the clerk to issue executions, not circuit clerk alone, but all clerks, to issue executions from the courts of which they may be clerk, whether circuit, city, Or county court clerks. These two sections -have been in the Code for many years, and there is' a field of operation for both of them, as said subdivision 11 of section
Section 7102 of the Code authorizes the institution of impeachment proceedings in instances there mentioned by five resident taxpayers upon the conditions there provided. And section 7125 provides for the institution of same by the Attorney General as to all officers included in section 174 of the Constitution, “when the Supreme Court shall so order, or when the Governor shall, in writing, direct the same, or when it appears from the report of any grand jury that any such officers ought to be removed from office for any cause mentioned in the first section of this chapter.” It would seem that an order of the Supreme Court, a written direction by the Governor, or a report by a grand jury is necessary to give the Attorney General the authority to act, and if he does so without said authority the proceeding could probably be abated upon a proper plea.
The charges against this respondent are corruption in office, willful neglect of duty, and incompetency, but all of which are predicated upon his conduct in connection with the county court, and do not pertain to any of his acts as probate judge, or enjoined upon him as such, except as judge and clerk of the said county court.
The evidence shows certain inaccuracies, changes, and omissions upon the trial docket of the county court, or upon what was intended as the judgment entries, as would afford an opportunity for appropriating certain fines and costs without the slightest detection from an examination of the record and which could only be discovered by a resort to extraneous evidence. In other words, the proof shows that the respondent collected funds to which the county was entitled and withheld same until he was checked up by the state examiner of accounts, and which were not disclosed'by the county court record, and the existence of which had to be established by parol evidence; but we are unable to say,
The Constitution does not require the probate judges to be learned in the law, nor is perfection expected in all instances, whether the judge be a layman or one learned in the law; but records and judgments of the county court are so simple in form that the law contemplates that even a layman can make clear and accurate entries as to the disposition of the cases and can, at least, keep a correct record or memorial of the fines imposed and the costs taxed in any case, and that in this respect said record should not be doubtful, incomplete, or inaccurate. The law does not contemplate that judgments in county courts should be as formal and complete as those in which appeals therefrom are not de novo. Section 6720 of the Code prescribes a very simple form of judgment, and a substantial compliance with said form is sufficient. — State v. Jeter, 162 Ala. 3, 50 South. 330. As- the form is so brief and simple, we do not see how a failure to substantially comply with same could be an intelligent entry. The docket kept by this respondent, and upon which the judgment entries were made, was sufficient as such a book, and most of the entries may have complied, as to form, with the statute; but the trouble is that some of them omitted the amount of fine, and some contained unintelligent, double, and inconsistent entries, susceptible, perhaps, to explanation by parol evidence; but court records, even of the county courts, should speak the truth,
The state’s counsel argued that this respondent should be impeached for a violation of section 6838 of the Code as amended by the act of 1907, Special Session, p. 162, which prohibits the conversion of county funds by officers. As heretofore held, the state has not proven its charge of corruption beyond a reasonable doubt, and, if it must rely upon the commission of an offense as covered by the fourth ground in section 173 of the Constitution, to wit, the commission of an offense involving moral turpitude while in office or committed under color thereof, the said offense should be specifically charged, as is required by section 7103 of the Code of 1907. We find no charge in the information specifically covering a violation of the foregoing statute or charging a conversion thereunder by depositing county funds in bank without requiring a bond as security for same and as is provided in the act.
The charges as to willful neglect of duty are predicated mainly upon a failure to keep a proper docket, or record, of the cases and disposition of same, in the county court, the failure to promptly pay over fines and cost, and a failure to issue executions in certain cases. As heretofore held, we are not satisfied beyond a reasonable doubt that these acts and omissions were actuated by corrupt motives, or that the dereliction in this respect amounted to such willful neglect of official duty as is contemplated by the Constitution as grounds for impeachment and removal from office.- — Nelson v. State, 182 Ala. 449, 62 South. 189.
The evidence in this case does not show a course of conduct by this respondent, in the discharge of his duty
We therefore find and conclude that the respondent is not guilty as charged in the information, and judgment will be accordingly entered.