61 So. 491 | Ala. | 1913
This court is of the opinion that the state has failed to make out its case as to either of the charges laid in the information, and therefore conclude, and it is the judgment of the court, that the defendant is not gulty, and that he be discharged and go hence.
Section 173 of the Constitution of 1901, as presently important, reads: “The Govern- or, Lieutenant-Governor, Attorney General, State Auditor, Secretary of State, State Treasurer, Superintendent of Education, Commissioner of Agriculture and Industries, and Justices of the Supreme Court may be removed from office for willful neglect of duty, corruption in office, incompetency, or 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, or for any offense involving moral turpitude
This proceeding invokes this jurisdiction in respect-of the sheriff of Hale county. The charges against his conduct in or of office are willful neglect of duty and incompetency. His guilt or innocence cannot be adjudged without a definite judicial conception of Avhat acts or omissions or .official fitness or qualification these charges expressed in the fundamental law comprehend — what is requisite to constitute Avillfull neglect of duty or incompetency. Weight cannot be taken nor measure made Avithout a standard therefor. So guilt or innocence cannot be pronounced without a definitely understood, Avell-defined charge — to which the judicial mind may apply the evidence to determine guilt or innocence. I cannot suppose that it Avas the intent of the makers of the present Constitution, or of. preceding Constitutions containing similar causes for impeachment of officers, to commit to the Senate as a court of impeachment, or the Supreme Court exercising that great authority, any degree of discretion Avith respect to the removal of officers under the method of impeachment. On the contrary, my opinion is that the Constitution establishes definite, particular causes, for Avhich only those officers may be impeached. There-may be a measure of difficulty in arriving at a sound interpretation or construction of Avhat these causes comprehend; but, notAvithstanding, this furnishes no Avarrant for an assumption that any one of the causes for impeachment laid down in the Constitution is incomplete or may be supplemented or modified by recourse
From as full an investigation as I have been able to bestow, touching a subject about which a great deal, in text and decision, has been written, I find “willful neglect of duty,” as employed in section 173, is an intentional failure or omission of an officer to perform a plain and manifest duty Avhich he is able to perform Avhen he omits to do so. Since it is impossible to intentionally omit the performance of a duty Avithout a knowledge of the duty, the stated definition of “willful neglect of duty” implies knoAvledge of the duty so omitted to be performed. But to public officers in consequence of obvious public necessity must there be always and conclusively imputed a knowledge of their plain and manifest duties. No public officer can be heard to assert in justification or defense that he did not knoAv
Penal laws — to the violation of some of which a bad, corrupt, or evil motive or intent is essential — impose the terms and punishments upon the persons subject thereto without regal’d to their will. Not so with the public officer on whom the obligations of office rest by his own voluntary assumption alone. He promises, without constraint, to discharge for a reward the duties of the office he assumes. If he intentionally breaches that promise, knowing as must be implied his obligation thereby assumed with respect to plain and manifest duties, upon what moral or legal reason or consideration may there be rested the assertion that such an unfaithful officer shall still be immune from removal therefor unless, when his intentional infidelity was manifested he entertained, in the recesses of his conscious being, a bad motive or evil intent? I can conceive of none. If such motive or intent is read into the definition of willful neglect of duty, the well-founded twofold public purpose before alluded to must endure
There is, in my opinion, no just basis for a fear, if evil motive or bad purpose be not essential to guilt of willful neglect o.f duty as defined above, that upon public officers, subject to removal for that cause, will be imposed a too exacting performance of duty, where-from may follow disinclination on-the part of good citizens to serve in those public offices. Undoubtedly a public officer who intentionally omits the performance of a plain, manifest duty which he is then able to perform, has no right to even a charitable consideration that would invite his retention in a relation to which he has been consciously unfaithful. Such an officer has, it seems to me, not only proven unfaithful to an affirmative trust, voluntarily and for a reward assumed by him, but he has not observed the oath which he has taken to faithfully perform the duties of his office. Apart from the considerations stated, the following authorities are persuasive to the view that “willful neglect of duty,” as employed in section 173, does not import the necessity for evil motive or bad purpose, in order that a public officer may be guilty thereof.—People v. Brooks, 1 Denio (N. Y.) 457, 43 Am. Dec. 704; Commonwealth v. Barry, 3 Ky. (Hardin) 236, 237; Williams’ Case, 83 Ala. 68, 70, 3 South. 743; Harrison’s Case, 37 Ala. 154; 8 Words & Phra. pp. 74-77; State ex rel. v. Examining Board, etc., 43 Mont. 389, 117 Pac. 77, Ann. Cas. (1912C) 143; Odin Co. v. Denman, 185 Ill. 413, 57 N. E. 192, 76 Am. St. Rep. 45, 48; Minkler v. State, 14 Neb. 181, 15 N. W. 330; President, etc., v. State, 19 Md. 239; State v. McBrayer, 98 N. C. 623,
“Incompetency,” in this relation, was considered by this court in State ex rel. v. Lowe (in manuscript), Justice Sharpe wilting the opinion. It was delivered February 5, 1903. It Avas then pertinently said: “Incompetency is by the Constitution and statutes of this state mentioned as a distinct ground for impeachment of public officers, including solicitors, and therein the term stands Avithout qualification, except such as may be implied from the connection in Avhich it is used and the apparent object of its use. It is safe to assume that neither of the other grounds of impeachment is intended to cover or to be necessarily coupled with this one, and therefore it may be further assumed that the disqualification at Avhich it is aimed may exist independent of any willful neglect of duty, corruption in office, intemperance, or criminality. The exclusion of those other grounds leaves the term ‘incompetency’ little, if anything, to stand for other than mere incapacity for the performance of duties devolved by law on the official in respect of the particular office he fills. Such capacity on the part of the official is deemd essential to the accomplishment of the legislative purpose Avhich was to supply a remedy for inefficient administration of office. It is possible that incompetency of an official may exist by reason of either physical or mental conditions, and that it may bring detriment to the public AAdienever from any cause it may occur. * * * But the law must be interpreted so as to allow it to operate reasonably, and such interpretation excludes from the term “incompetency’ all such mere temporary incapacity as ordinarily attends, and is coterminous Avitlv acute disease. The incompetency AAdiich
“Incompetency,” as involved in this instance, is “incapacity for the performance of duties devolved by law” upon the sheriff of Hale. In this connection, “incapacity” is synonymous with “unfitness, unsuitableness,” for the service the law imposed upon the sheriff of Hale.—Lowe’s Case, supra. The undisputed evidence presented on the. trial was this: That the respondent as sheriff was himself the jailer of Hale county; that a janitor employed by the judge of probate was assigned to service at the jail; that on the 31st of December, 1912, there were a number of prisoners confined in the jail, among them one William Thomas who had been sentenced to death for crime; that his sentence had been suspended pending an appeal to this court; that on said date the janitor (as was his custom, we may assume as of fact) secured for and at the instance of Thomas and other prisoners six or seven small packages or sacks at the stores -in Greensboro; that among these were raisins and a vial of carbolic acid, the acid being ordered by Thomas, and the money therefor
The sheriff himself testified, and there ivas no evidence or inference opposed thereto, that he had been a deputy under his predecessor; that while in that service it was the custom not to inspect or investigate the contents of packages or parcels which were to go in to the prisoners; and that during his service as sheriff (about three years) that custom was continued by him, he making no inspection or investigation of contents of packages or parcels found when he went to the jail at the jail entrance; that it was his practice as sheriff to carry in to prisoners, or to allow to be carried in to them, ivrapped-up packages or parcels without inspection or investigation of their contents. The sheriff being shown, without dispute, to be entirely ignorant of the presence of carbolic acid among the packages which he thus contributed to have delivered, it is wholly immaterial whether Thomas had a malady that such acid would serve to ameliorate or cure, or whether it was a wise custom to have or leave such acids within
The two questions presented by the two charges are: Was this sheriff-jailer guilty of “willful neglect of duty” under sections 173-174 of the Constitution in delivering the packages as aforesaid to prisoners in his custody without inspection or investigation of their concealed contents? Or does the custom, the practice, observed by him in allowing packages or parcels, the contents of which are concealed from ordinary detection, to go in to prisoners without inspection or investigation, show him to be “incompetent?” By section 7191 of the Criminal Code upon the sheriff is imposed the legal custody of the jail in his county and of all prisoners lawfully committed thereto. With respect to the custody of prisoners, it is the manifest duty of the sheriff to not only exercise a high degree of care to prevent their escape or their subjection to harm from outside hostile sources, but also to exercise care to preserve his prisoners from injury to themselves or to each other. It is said in Shields’ Case, 104 Ala. 38, 16 South. 85, 53 Am. St. Rep. 17, that the sheriff is charged with the duty of protecting and preserving the jail and of keeping the prisoners safely until legally relieved of their custody. The degree of care must enhance pari passu-with the character of the prisoner, and with the cause for which his incarceration is effected. He should anticipate the motives that ordinary acquaintance with human nature would suggest as of likely entertainment by prisoners, especially those who stand charged or convicted of grave offenses. Not only may their efforts to escape entail danger to fellow prisoners who do not share that purpose, but they may under
I concur in the finding that the charges laid were not established.