Gordon v. State

• Decision Date: 01 January 1875
• Citation: 43 Tex. 330
• Parties: JOHN F. GORDON v. THE STATE.
• Court: Texas Supreme Court

43 Tex. 330

JOHN F. GORDON

v.THE STATE.

Supreme Court of Texas.

1875.

APPEAL from Guadalupe. Tried below before the Hon. John P. White.

The main points in the above cause may be summed up as follows: W. H. Burgess, Esq., as district attorney, &c., on the 26th of December, 1874, the last day of the Guadalupe District Court, filed a motion against appellant to remove him from the office of sheriff of Guadalupe county. Gordon asked time to employ and consult counsel, and the court adjourned until that evening, when the case being called, Gordon's counsel claimed that he had not been served with a notice or copy of the charges against him, whereupon the court adjourned until the following Wednesday, and Gordon was served with a copy of the rule to show cause why he should not be removed from office.

On Wednesday Gordon, by his counsel, objected to being tried in chambers, but his objection being overruled, he was by an order removed from office.

Another election having been ordered by the proper authority, Gordon was, on the 30th of January, elected sheriff by the voters of Guadalupe county, and shortly thereafter duly commissioned by the Governor as sheriff. At the next term of the Guadalupe District Court, without notice to Gordon, the court entered an order for his removal, on the ground that he was not eligible for the office after removal during the term for which he was elected; and if eligible, he was removed for the causes for which he had been removed previous to the election of January 30, 1873.

Gordon afterwards appeared and moved to set aside the order removing him, because (1) he had no notice of any charge against him; (2) he had no opportunity of explaining or answering the causes assigned for his removal; (3) no cause was alleged for his removal which existed after the date of his election and commission as sheriff; and (4) his former removal did not render him ineligible to hold the office when re-elected by the people.

This motion was overruled, and exceptions taken to the action of the court, and Gordon has appealed.

The Attorney General for the State filed a motion to dismiss the appeal for want of jurisdiction and for want of sufficient appeal bond.

W. E. Goodrich, for appellant.

The Supreme Court of Texas has held in several cases that it had revisory jurisdiction over cases of this kind. (Davis v. The State, 35 Tex., 121;Ex parte King, 35 Tex., 657;Stewart v. The State, 37 Tex., 576.)

The Supreme Court of West Virginia has held the same view. (3 West Va., 367.)

In Keenan v. Perry, 24 Tex., 260, the court say: “But it is insisted for appellee that the removal is inoperative because the Governor did not assign the causes of the removal. The answer to this is, that the law did not require him to assign the causes. * * * The law makes no provision for ascertaining the existence of the causes, or for revising the action of the Governor by any other authority or tribunal.” And further down on same page it is said: “As no court or tribunal is clothed with authority by the law to revise the action of the Governor in removing the officer, and his decision as to the existence of the causes is not elsewhere examinable, it is not perceived what useful purpose would be subserved by assigning the particular causes upon which he acted. The authority to require it would imply a power of revision which is not given by law.” And again on page 264: “It is only said that the officer shall continue in office during the prescribed period, unless sooner removed for specified causes, not that the causes shall be assigned. If that had been intended as a precedent to the removal, or as a limitation or restriction upon the removing power, it would have been easy to have so expressed it.”

The Constitution requires that the cause for removal be spread upon the records of the court, and without doubt for the obvious reason that the cause may be seen and known, and, if necessary, revised and corrected by appeal. (Davis v. The State, 35 Tex., 124.)

The appellant assigns as errors his being removed from office without being allowed a hearing, and his being removed for causes alleged to have existed previous to his election to the office and to his being commissioned as sheriff by the Governor, and for which he had been before tried.

The order of removal of March 5, 1875, shows that he was not given a hearing, and that his removal was for causes which existed previous to his election, and that he had once before been tried and removed from office for the identical causes there set out.

Was Gordon entitled to be heard on the charges, or is the power in the District Court to remove an arbitrary one? Our own court say that the power is not an arbitrary one. (See 35 Tex., 121, 657;37 Tex., 576.)

It is a cardinal principle in the administration of justice that no man can be divested of his rights until he has had an opportunity of being heard. (7 How., Miss., 127; 1 Hill, N. Y., 139; 4 Hill, N. Y., 146; 1 Curtis, 325.) And many other authorities could be cited to the same effect.

Our Bill of Rights, section 16, says: “No citizen of this State shall be deprived of * * * property, privileges, * * * or in any manner disfranchised, except by due course of the law of the land.”

Where the sheriff fails to return an execution, make a levy, or advertise and offer for sale property levied on, and even where he fails or refuses to pay over money collected by him under execution, when demanded by the plaintiff in execution or by his attorney, he is entitled to three days' previous notice before the motion against him can be tried. (Paschal's Dig., arts. 3781, 3796, 5106.)

Yet here he was turned out of office without notice, without being allowed a hearing, and for causes upon which he had previously been tried; and every one of which, as the order of removal itself shows, was of date previous to his election by the people and of his being commissioned by the Governor.

Though every charge against appellant may be true, yet not one of them goes to show that he is not competent to discharge the duties of the office, and they only amount to negligence--gross negligence, it may be--but only negligence; and he doubtless would, after his removal from and re-election to the office of sheriff, have corrected these faults had he been allowed to hold his office.

True, the judge, in the first order of removal, says that Gordon is unfit to longer hold and exercise the office of sheriff; but he preludes this by saying it is for the causes set out in the motion against him.

Did the removal of Gordon the first time render him ineligible to the office?

The only power in the judge to remove is derived from section 41 of Art. V of the Constitution.

The power is to remove for causes spread upon the minutes; not to remove and declare ineligible. This is extraordinary power, and the process summary. Is the power to remove to carry with the greater punishment a disqualification to hold the office?

We believe that criminal laws and laws quasi criminal are strictly construed, and the penalty never construed to be greater than that which the statute prescribes. (Forshey v. Railroad Company, 16 Tex., 526;Frazier v. Moore, 11 Tex., 759.)

The same rule of construction applies to summary proceedings in civil actions. I will only cite the rule in cases of attachments, where the affidavit for attachment must be positive as to the ground, and not that the affiant believes it, though it may be impossible for him to know that the party whose property it is proposed to attach is secreting or about to secrete the same for the purpose of defrauding his creditors. (Chevallier v. Williams, 2 Tex., 243.)

Our Constitution, Art. III, sec. 14, says: “No person shall be eligible to any office, State, county, or municipal, who is not a registered voter in the State.”

The oath of office, section 1, Art. XII, places further restrictions upon the right to hold office.

And section 2, Art. XII, provides that “laws shall be made to exclude from office, &c., those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes.”

Gordon was eligible, as far as the Constitution provides, unless the court should hold that by reason of his having been removed by the judge he becomes ineligible to hold the office.

George Clark, Attorney General, for the State.

See Const., Art. V., sec. 18; Keenan v. Perry, 24 Tex.

Attention is also called to the fact that the appeal is from the second order of removal made by the judge of his own motion. No complication as to the State being made a party can therefore arise, and the appeal is wholly ex parte. It is in no sense a suit, nor is the order of the court below a judgment for absence of parties.

Terrell & Walker, also for appellant, argued the question of jurisdiction, citing Davis v. The State, 35 Tex., 122;Ex parte King, 35 Tex., 657;Jackson v. The State, 21 Tex., 673;Keenan v. Perry, 24 Tex., 253; 1 Burns' Justice, 361, 364; 1 McKenney's Jus., 353; Rex v. Little, 1 Bur., 613; Rex v. Cordorn, 4 Bur., 2279; Taylor v. Porter, 4 Hill, 146; Story on Const., sec. 1789; Ex parte Heyfron, 7 How., (Miss.,) 127; Ex parte Ireland, 38 Tex., 344.

The argument on the main question is given in full.

No valid cause for removal was spread upon the minutes of the court, as required by the Constitution, and the judgment removing the officer should be reversed.

We will not discuss whether the first order removing the officer, made as it was in vacation, effected the object intended or not. Until the cause of removal is spread upon the minutes of “the court” it would seem that the officer could not be removed, and we cannot see how a cause ascertained in chambers in vacation could be spread upon the minutes of a court not then in session. But be this as it may, Gordon acquiesced in the order and appealed to the...