Dawson et als. v. Phillips.

• Decision Date: 21 March 1916
• Citation: 78 W.Va. 14
• Court: West Virginia Supreme Court
• Parties: Dawson et als. v. Phillips.

78 W.Va. 14

Dawson et als.

v.Phillips.

Supreme Court of Appeals of West Virginia.

Submitted March 14, 1916.

Decided March 21, 1916.

1. Officers Proceedings to Remove Parties "Criminal Proceedings. ''

Proceedings for the removal of public officers, pursuant to section 7, chapter 1, serial section 222, Code 1913, are not criminal proceedings, and may be instituted and prosecuted, under the direction of the court, by citizens and taxpayers. (p. 15).

2. Same Proceedings to Remove Filing of Charges Compliance with Statute "Shall" "Entered of Record."

The requirement of said statute that the charges against such public officers '' shall be reduced to writing and entered of record by the court," is mandatory, and must be literally complied with as a prerequisite to valid process against the defendant to answer the same. The mere filing of the petition of complainants containing the charges and the issue of process thereon, will not satisfy the other requirements of the statute. (p. 16).

3. Action Civil or Criminal Proceeding to Remove Officer Limi-

tations Application of Statute.

The statute of limitations applicable to criminal prosecutions for such offenses is inapplicable to proceedings under said section 7, of chapter 7, of the Code. (p. 18).

4. Officers Grounds for Eemoval Validity of Statute.

Said statute providing for the removal from office for '' official misconduct, incompetence, habitual drunkenness, adultery, neglect of duty, or gross immorality" is not unconstitutional, for adding grounds of removal not specified in section 6, of Article IV, of the Constitution. The grounds specified in the statute are fairly comprehended in the several classes of offenses named in the Constitution. (p. 18).

Error to Circuit Court, Morgan County.

Action by B. E. Dawson and others against J. A. Phillips. Judgment for plaintiffs, and defendant brings error.

Reversed.

Stuart W. Walker and H. W. Allen, for plaintiff in error.

W. Bayer and II. H. Emmert, for defendants in error.

Miller, Judge:

The judgment complained of, pronounced January 6, 1915, in a summary proceeding instituted in the circuit court, under section 7, chapter 7, serial section 222, Code 1913, adjudged that specifications numbered 2, 4, and 5, had been sustained by the evidence, and that for his misconduct in the office of president and commissioner of the county court of Morgan County, as charged, defendant be and he was thereby removed from office in accordance with the provisions of said section.

The proceeding was begun upon the petition of Dawson and sixteen others, describing themselves as citizens, voters and taxpayers of said county, presented to the court, charging defendant with official misconduct in ways specified, and upon which petition the clerk was ordered to issue a summons containing a copy of said charges to be served on defendant, requiring him to appear before the court on January 2, 1914, to answer the same.

The statute referred to provides for the removal of officers specified, including commissioners of the county court, but does not specify by whom the charges may be preferred or prosecuted. Certainly this must be done by some one, and by whom more appropriately than by citizens and taxpayers of the county 1 It is suggested that the proceedings are criminal or quasi criminal in nature, and that no one but the public prosecutor should be permitted to institute or prosecute the same.

In the few cases of this character which have reached this court the proceedings seem to have been begun and prosecuted by citizens and taxpayers just as in this case. McDonald v. Guthrie, 43 W. Va. 595; Moore v. Strickling, 46 W. Va. 515; Roberts v. Paul, 50 W. Va. 528. We see no reason why under said statute they should not be so instituted and prosecuted. While the charges preferred may constitute criminal offenses, and proceedings under said statute may for some purposes partake of the nature of criminal proceedings, they are not strictly so, or even quasi criminal. Besides they arc entirely under the control of the court, and we have no doubt, after the charges have been preferred and properly formulated, and "entered of record by the court," as the statute provides, the court may for reasons deemed proper direct the proceedings to be conducted by the prosecuting attorney; but unless moved to do so, and for some potent reason of public justice, we do not see that any error prejudicial to the defendant would be committed by permitting the proceeding to be begun and prosecuted by citizens and taxpayers.

The first point of serious import presented for reversal of the judgment is that conceding the charges to have been "reduced to writing," within the meaning of the statute, they were not "entered of record by the court," as the law prescribes, and when, as it is provided, "summons shall thereupon be issued by the clerk of such court containing a copy of the charges," etc. The language of the statute is: "The charges against any such officer shall be reduced to writing and entered of record by the court," etc. It is contended on behalf of defendant that this provision is mandatory, and compliance therewith a prerequisite to any valid proceeding against him; that the statute is not directory, and that the charges contained in the petition cannot be substituted for the required "entry of record," nor the filing thereof constitute a substantial compliance with the plain mandate of the statute.

In the cases of Moore v. Strickling and McDonald v. Guthrie, supra, the statute seems to have been literally complied with. The charges were "reduced to writing" and "entered of record" in the order book, preliminary to the issuing of the summons by the clerk. It would seem the legislature must have employed the word "shall" and the phrase '' entered of record'' advisedly, for the word '' file'' is often employed in the Code, particularly in chapter 125, relating to rules and pleading, with its usual and ordinary meaning. The word "file," referring to papers in judicial proceedings, usually means to place them in the custody of the clerk or court, and among the court records. "Filing" originally signified placing papers on a thread or wire for safe keeping. Black's Law Dictionary. When a pleading or other paper is filed in a suit or action it becomes, of course, by virtue of the statute, a part of the record of the case;, and if the legislature had intended the mere filing of charges against the officers mentioned in the statute it would have undoubtedly employed words appropriate to indicate that purpose. Having used language of a different import the mandatory words "shall be * * * entered of...