Ex parte King

• Citation: 35 Tex. 657
• Parties: EX PARTE W. H. KING.
• Decision Date: 01 January 1871
• Court: Supreme Court of Texas

35 Tex. 657

EX PARTE W. H. KING.

Supreme Court of Texas.

1871.

1. The statutory requirements as to service of citations in error are not applicable when an ex parte order of a district judge, made of his own motion, and removing a district clerk from office, is brought to this court by writ of error. In such a case the writ of error was necessary to invoke the jurisdiction and the supervisory powers of the supreme court; but no service of citation in error upon the district attorney was necessary.

2. Though the constitution of 1869 confers power upon the district judges to remove sheriffs and district clerks from office, for cause spread upon the minutes of the court, yet these provisions do not invest a district judge with an arbitrary power to remove such officers for any cause which he may see proper to spread upon the minutes of his court. The officer cannot be rightfully removed unless he is guilty of some breach of the trust implied by law in the tenure of his office. Only such incompetency, nonfeasance or misfeasance, corruption or partiality in office, as would amount to a forfeiture of the right to enjoy it, can rightfully call into exercise the judge's power to remove.

3. Since the adoption of the common law, in the year 1840, the constitutions of Texas have been framed with reference to it, and by its principles and modes of procedure their interpretation has been and must be controlled; and hence, when the present constitution clothed the district judges with the power to remove sheriffs and district clerks, it was intended that such power should be exercised in obedience to the rules of the common law. The proper mode of procedure, therefore, is to enter a rule nisi, requiring the officer to show cause why he should not be removed from his office. This rule nisi may be entered by the judge of his own motion, or upon the relation of another; but in every case the cause of removal must be set forth in plain and intelligible words, and with issuable allegations affording the inculpated officer an opportunity to contest and disprove them. General allegations of incompetency, or wholesale charges of any kind, will not suffice.

4. On reversing a district judge's order removing from office a district clerk, this court reinstates the clerk, who, in the present case, was afforded no opportunity of defending himself in the court below.

ERROR from Anderson. Tried below before the Hon. John G. Scott. The case is fully disclosed in the opinion of the court.

Thos. J. Jennings and Thos. Smith, for the plaintiff in error. Art. 1, sec. 16, of our state constitution, says: “No citizen of this state shall be deprived of life, liberty, property, privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land.” Sec. 23 of the same article says that “every thing in this bill of rights is excepted out of the general powers of government, and shall forever remain inviolable.”

The first section of the first article of our state constitution declares the constitution of the United States, and the laws and treaties made in pursuance thereof, to be the supreme law of the land, etc. In this connection, the attention of this honorable court is invited to the latter clause of the fifth amendment to the constitution of the United States (Oldham & White's Dig. p. 7), referring to rights of persons, where it is declared that no person shall “be deprived of life, liberty, or property, without due process of law,” etc.

To show that the plaintiff in error was deprived of his property and privileges without “due course of law” (keeping in mind the fact that he was dismissed without notice, without a hearing, and without any charges made against him), we invite the attention of this court to the case of Taylor v. Porter, 4 Hill, 146, in which Mr. Justice Bronson, of the supreme court of New York, referring to and expounding a similar clause in the constitution of that state, says: “The meaning of the section is, that no member of the state shall be disfranchised or deprived of any of his rights or privileges, unless the matter shall be adjudged against him, upon a trial had according to the course of the common law.”

Judge Story, in his Commentaries on the Constitution, section 1789, referring to the clause quoted by us from the fifth amendment, supra, says: “This clause, in effect, affirms the right of trial, according to the process and proceeding of the common law.”

In the case of Greene v. Briggs, 1 Curt. 325, Mr. Justice Curtis, of the supreme court of the United States, referring to the words, “due course of the law of the land,” says: “The exposition of these words, as they stand in magna charta, as well as in the American constitution, has been that they require due process of law, and in this is necessarily implied and included the right to answer and contest the charge, and the consequent right to be discharged from it, unless it is proved.” Vide Hoke v. Henderson, 4 Dev. 15; The People v. Berberrick, 11 How. Pr. 322; 2 Kern. 209; 3 Kern. 378--all reasserting the doctrine so explicitly declared by Judges Story, Curtis and Bronson, in the cases above cited.

The question now arises, does the ninth section, art. 5, of our state constitution, authorize the district judge to remove the clerk by simply spreading an order to that effect upon the minutes of the district court, reciting therein statements, the truth of which the clerk has had no opportunity whatever of contesting, of being notified of the contemplated action of the court, and having “his day in court,” and being heard by himself or his counsel, in resisting the summary action of the district judge?

We respectfully submit that an interpretation of sec. 9, art. 5, of our state constitution, which would give to the district judge the right to thus summarily remove the clerk, without notice, without trial, and without charges, according to the “due process of the law of the land,” would put that section in conflict with the fifth amendment to the constitution of the United States, which Judge Story says (Story, Const. § 1789), “affirms the right of trial, according to the process and proceedings of the common law.” Vide also 1 Curtis, 325; 4 Hill, 146,supra.

The authority conferred upon the district judge by the ninth section, art. 5, of our state constitution, must be exercised according to the “due process of the law of the land,” and that authority exists in subordination to the constitution of the United States, as expounded by Judges Story and Curtis, in the cases above cited--the latter instrument being expressly declared and acknowledged by our state constitution, to be “the supreme law of the land.”

The attention of this court is now specially called to the case of Ex Parte Heyfron, 7 How. (Miss.) 127, which, we think, is directly in point, and decisive of this case in favor of the plaintiff in error. In that case Heyfron, an attorney of the court, was stricken from the rolls by the court, on charges of embezzlement, but without notice, or any opportunity being afforded him of appearing, either in person or by counsel, and defending himself. The case at bar is a stronger one in favor of plaintiff in error (King) than the case of Heyfron, in this, that in Heyfron's case there were charges preferred; in this case there were none. Neither had an opportunity, however, of being heard, nor even notice of the proceeding. The supreme court of Mississippi, in Heyfron's case, say, “It is a cardinal principle in the administration of justice, that no man can be condemned, or divested of his rights, until he has had the opportunity of being heard. He must, either by service of process, publishing, notice, or in some other way, be brought into court; and if judgment is rendered against him before this is done, the proceedings will be as utterly void as though the court had undertaken to act where the subject matter was not within its cognizance.”

It will hardly be insisted, that because King was clerk of the court in which the judgment complained of was rendered, he therefore had notice of the action of the court. If it should be so insisted, however, we respectfully ask the attention of this court to the case of Jones v. Kenny, Hardin (Ky.), 96, in which the court say, “It seems that a court does not possess the power to render judgment against a person simply from the fact that he was in court, unless he was brought in by legal process.”

In the case at bar there was no notice, no process, no calling upon King to appear in court and answer to any charge whatever, but simply a peremptory order made by the judge, and entered upon the minutes of the court, declaring W. H. King unfit for the office, and sweeping him from official existence as suddenly, and doubtless as much to his amazement, as if stricken by the lightning of heaven.

Wm. Alexander, Attorney General, contra, moved to dismiss, because there had been no legal service of citation in error upon the district attorney.

Long &...