Briggs v. Board of County Com'rs of Muskogee County

• Decision Date: 25 April 1950
• Docket Number: No. 34451,34451
• Parties: , 20 A.L.R.2d 727 BRIGGS v. BOARD OF COUNTY COM'RS OF MUSKOGEE COUNTY et al.
• Court: Oklahoma Supreme Court

Page 827

217 P.2d 827

202 Okla. 684, 20 A.L.R.2d 727

BRIGGS v. BOARD OF COUNTY COM'RS OF MUSKOGEE COUNTY et al.

No. 34451.

Supreme Court of Oklahoma.

April 25, 1950.

Syllabus by the Court.

1. The conviction of conspiracy to violate the laws of the United States by operating a wholesale liquor business in Muskogee County, Oklahoma, without paying the tax required by the Revenue Code, constitutes conviction of a crime which under the laws of this State is a felony, to wit: conspiracy. 21 O.S.1941 § 424.

2. Such a conviction of one holding an office in this State has the effect of vacating his office under and by virtue of the provisions of 51 O.S.1941 § 8.

R. M. Mountcastle, Kelly Brown, Muskogee, for plaintiff in error.

Mac Q. Williamson, Attorney General, Sam H. Lattimore, Assistant Attorney General, Ed. A. Edmondson, Jr., County Attorney, Muskogee County, Muskogee, for defendants in error.

ARNOLD, Vice Chief Justice.

Eddie J. Briggs was serving his second term as Sheriff of Muskogee County when he was indicted by a Federal Grand Jury under the conspiracy statute of the United States of the offense of conspiring to operate and the combined operation of a wholesale liquor business in Muskogee County. The indictment reads: 'That from on or about the 15th day of November, 1946, down to and including the 1st day of September, 1948, and continuously between said dates, in Muskogee County, Eastern District of Oklahoma, and at other places at this time to the grand jurors unknown, Fred Payne, Guy Payne, Velta Peters, Eddie J. Briggs, Gene Andrews and Harley Greenwood, hereinafter referred to and designated as defendants, in violation of Section 88 of Title 18, United States Code [1948 Revised Judicial Code, 18 U.S.C.A. § 371], did, willfully conspire, confederate, combine and agree together, with each other and with other persons at this time to the grand jurors unknown, to commit certain offenses against the laws of the United States as follows, towit: that they would carry on the business of wholesale liquor dealers in Muskogee County, in the Eastern District of Oklahoma, without paying special taxes for such occupation * * *.'

Upon trial Briggs was found guilty by the jury 'as charged in the indictment.' The conviction was appealed and affirmed by the United States Circuit Court of Appeals, Briggs v. U. S., 10 Cir., 176 F.2d 317, 320. In its opinion affirming the judgment and sentence that Court said: 'The evidence was amply sufficient to support the verdict of the jury that a conspiracy existed between the sheriff and Payne to engage in the wholesale liquor business * * *.'

Based on allegations of malfeasance in office during the second or present term of Briggs an ouster proceeding was brought in the District Court of Muskogee County. He was tried on the 10 counts set forth in the petition, acquitted on 8 of them, but the jury failed to agree on the other 2 and the case now pends on those 2 counts. For the obvious reason that the ouster proceeding is based on alleged malfeasance in office during the present term of office of Briggs while the conviction here relied upon as creating a vacancy in his office is based on overt acts occurring in a prior term of office, the ouster case is wholly immaterial here.

After the conviction of Briggs had become final the County Commissioners of Muskogee County gave Briggs written notice that on a day fixed in the notice they would determine if a vacancy existed in the office of sheriff by reason of his conviction in the Federal Court. Thereupon the instant action was instituted for the purpose of enjoining the said Commissioners from declaring the office vacant and from appointing some one to fill the vacancy. A temporary restraining order was issued and the case was tried on the application for permanent injunction. The injunction was denied and the Board of County Commissioners declared a vacancy existed and filled it.

The only assignment of error not hereinbefore disposed of is that: 'The judgment of the court was based upon a matter, or cause for removal, consisting of a conviction of a crime under a Federal statute, which is not a violation of any Oklahoma statute and is, therefore, no ground for removal from office.'

It is correctly conceded that a felony under the laws of this State is an infamous crime. Whether a crime is infamous or not is not determined by the nature of the offense, but the punishment prescribed for such offense. See Butler v. Wentworth, 84 Me. 25, 24 A. 456, 17 L.R.A. 764; Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909; Parkinson v. United States, 121 U.S. 281, 7 S.Ct. 896, 30 L.Ed. 959; United States v. De Walt, 128 U.S. 393, 9 S.Ct. 111, 32 L.Ed. 485; In re Medley, Petitioner, 134 U.S. 160, 169, 10 S.Ct. 384, 33 L.Ed. 835; In re Mills, 135 U.S. 263, 267, 10 S.Ct. 762, 34 L.Ed. 107; In re Claasen, 140 U.S. 200, 204, 205, 11 S.Ct. 735, 35 L.Ed. 409. If Briggs was convicted of an offense which is a felony under the laws of this State, his office became vacant by operation of law by virtue of 51 O.S.1941 § 8, which provides: 'Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office: * * * Conviction of any infamous crime or any offense involving a violation of his official oath; provided, that no conviction, as a cause of vacation of office, shall be deemed complete so long as an appeal may be pending, or until final judgment is rendered thereon.'

At all times hereinbefore mentioned 21 O.S.1941 § 424, was in force. It provides: 'If two or more persons conspire either to commit any offense against the State of Oklahoma, or to defraud the State of Oklahoma in any manner or for any purpose, and if one or more...