Brown v. Duffus

• Decision Date: 12 May 1885
• Citation: 23 N.W. 396,66 Iowa 193
• Parties: BROWN v. DUFFUS
• Court: Iowa Supreme Court

23 N.W. 396

66 Iowa 193

BROWN v. DUFFUS

Supreme Court of Iowa, Davenport

May 12, 1885

Proceeding upon a Writ of Habeas Corpus.

Discharge from custody prayed for by the petitioner denied and he remanded.

Nourse & Kauffman and James G. Day, for petitioner

Galusha Parsons and A. J. Baker, Attorney-general, for defendant and the State.

ADAMS J. SEEVERS, J., dissenting. BECK, CH. J., took no part in its decision.

OPINION

ADAMS, J.

On the seventh day of April, 1885, the petitioner, John L. Brown, presented to this court, in session at Davenport, a petition averring, in substance, that he was wrongfully restrained of his liberty at the city of Davenport by one J. H. Duffus, and he asked that a writ of habeas corpus should issue to test the legality of his imprisonment. The court granted the writ, which was served on Duffus, and he made return thereto. The Hon. A. J. Baker, attorney-general, and the Hon. Galusha Parsons, employed as special counsel for the state, appeared for the defendant, Duffus, but in the name of the state, and filed a motion to quash the writ; also, a demurrer to the petition, and an answer to the petition. The petitioner filed a demurrer to the return to the writ, and to the answer filed in the name of the state. He also filed a reply to the answer. The proceedings were then continued to the April term, at Dubuque, where the several questions raised were presented at one hearing, and submitted together for determination.

We do not deem it necessary to set out the pleadings in full. The first question presented in argument pertains to the jurisdiction of the court to grant the writ, under the circumstances shown; the second, to the constitutionality of a certain provision of statute. The undisputed facts appear to be that the petitioner, Brown, is auditor of the state of Iowa, and was such on the fourth day of March, 1885, having been duly elected as such at the annual election of state officers in 1884; that on the day above mentioned Buren R. Sherman, governor of the state, filed an information against him before a justice of the peace of Polk county, in which he accused Brown of a misdemeanor in continuing to exercise the functions of his office as auditor after he had been suspended from the exercise thereof; that Brown was arrested and brought before the justice, and, having filed a plea of not guilty, and having waived an examination, he was held to bail, and gave a bond, with the defendant, Duffus, and one Pierce, as sureties; that afterwards Pierce gave Duffus an order in writing, as provided by statute, authorizing him to arrest Brown for the purpose of surrendering him to the sheriff of Polk county in exoneration of the bail; that under such order Duffus arrested Brown in the city of Davenport, where this court was then in session, and upon petition by Brown the writ of habeas corpus was granted by this court, as above set forth.

The petitioner does not deny that the governor made an order suspending him from exercising the functions of his office as auditor, and does not deny that he continued to exercise the functions of such office after the order was made and does not deny that there is a provision of statute which makes such continuance a misdemeanor; but his position is that the statute authorizing the governor to make such suspension is unconstitutional and void, and that the order of suspension was consequently a void act, and that his continuing to exercise the functions of his office was accordingly not a misdemeanor, but a duty, which, under his oath of office, he was bound to perform. The state not only asserts the constitutionality of the statute, and the legality of all things done under it, but contends in addition that, even if the statute were unconstitutional, and the petitioner did not commit a misdemeanor in continuing to exercise the functions of his office after the order of suspension, the restraint imposed by Duffus is not illegal, as shown upon the face of the papers; and if not, that the court had no power to grant the writ, and ought now to sustain the motion to quash it. This question presents itself upon the threshold, and demands our first attention.

The position of the state is that Duffus incurred a liability for the appearance of Brown in the district court; that he incurred such liability under the statute which gave him a right to surrender Brown to the sheriff, and exonerate himself and his co-surety, and that he cannot properly be deprived of such right by a proceeding which should result in taking Brown from his custody and setting him at large. It must, we think, be conceded that Brown, having invited Duffus and Pierce to become his sureties, cannot be allowed to resort to any proceeding which should have the effect to render them liable upon the bond. But Brown proposes to test, in advance of his discharge, the question of the constitutionality of the statute under which it is said that his criminal liability has arisen; and his position is that, if the statute shall be held unconstitutional, and his innocence shall accordingly be declared by a court having jurisdiction to determine the same, the state could no longer have any claim upon his sureties; and we have to say that we think that his position in this respect must be sustained. In our opinion, then, the court had jurisdiction to grant the writ.

It is claimed by the state, however, that the arrest of Brown by Duffus is collusive, and that there is enough upon the face of the papers and proceedings to show such fact. But it is certain that, under the statute, Duffus had a right to arrest Brown, whether he was willing to be arrested or not; and we think that, however willing Brown might be that Duffus' rights should be accorded to him, we cannot say that the restraint is fictitious, and that Brown cannot be allowed to test the legality of it. Indeed, it seems to us that, as the question involved pertains simply to the constitutionality of a statute, and as its speedy determination is of considerable importance to the public interest, the mode adopted for its determination is rather to be commended than otherwise.

We come next to consider the statute under which the governor acted, and the constitutionality of which is drawn in question. The statute consists of sections 759, 760, 761 and 762 of the Code, which are as follows: "Sec. 759. Whenever, in the judgment of the governor, the public service requires it, he shall appoint a commission of three competent accountants who shall examine the books, papers, vouchers, moneys, securities and other documents in the possession or under the control of any state officer, shall make out a full, complete and specific statement of the transactions of the said officer with, for, or on behalf of the state, showing the true balances in each case, and report the same to the governor, with such suggestions as they may deem proper.

"Sec. 760. Whenever any commission appointed as aforesaid, or under the provisions of section one hundred and thirty-two of chapter nine of title two of this Code, shall report that any officer has been guilty of any defalcation or misappropriation of the public money, or that his accounts, books and papers are improperly or unsafely kept, and that the state is liable to suffer loss thereby, the governor shall forthwith suspend such officer from the exercise of his office, and require him to deliver all the moneys, books, papers and other property of the state to the governor to be disposed of as hereinafter provided.

"Sec. 761. After such suspension it shall be unlawful for such officer to exercise any of the functions of his office until such suspension shall be revoked; and any attempt to exercise said office after such suspension shall be deemed a misdemeanor, and shall subject the offender for each offense to the penalty of not more than one year's imprisonment in the county jail, and not more than one thousand dollars' fine, to be recovered and enforced as provided by law.

"Sec. 762. In every such case of suspension the governor shall appoint some suitable person to fill temporarily the office, and such person, having qualified as required by law, shall perform all the duties and enjoy all the rights to the said office belonging, until the removal of the suspension of his predecessor, or the election of a successor."

The governor, believing that the public service required the appointment of a commission to examine the books, papers etc., of the auditor, appointed P. D. Ankeny, George W. Bristow and John C. Parish, who reported to him on the seventh day of February, 1885. The report is lengthy, and we cannot properly set it out. It is sufficient to say that, if correct, it showed that the auditor's accounts, papers and books were improperly and unsafely kept, and that the state was liable to suffer loss thereby. The governor, proceeding under this report and the statute above set out,...