Jones v. State

• Decision Date: 01 July 1912
• Citation: 149 S.W. 56,104 Ark. 261
• Parties: JONES v. STATE
• Court: Arkansas Supreme Court

149 S.W. 56

104 Ark. 261

JONES v. STATE

Supreme Court of Arkansas

July 1, 1912

Appeal from Pulaski Circuit Court, First Division; Robert J. Lea Judge; affirmed.

STATEMENT BY THE COURT.

Appellant who was constable of Big Rock Township, in Pulaski County Arkansas, was indicted by the grand jury of that county on May 23, 1912, for murder in the first degree. On May 25 the prosecuting attorney filed a petition asking the circuit court in which the indictment was pending to suspend the defendant from office. There was a demurrer to the petition which was overruled, judgment of suspension was entered, and appellant appealed.

Judgment affirmed.

Gus Fulk and Vaughan & Akers, for appellant.

1. The doctrine of ejusdem generis requires that the words "criminal conduct amounting to a felony" be held to mean criminal conduct of the same kind or class as other offenses mentioned in the statute, i. e., criminal conduct in office amounting to a felony. Kirby's Dig., § 7992; art. 7, § 27, Const.; art. 5, § 8, Id.; art. 2, § 17, Id.; Kirby's Dig §§ 617, 622, 685, 689, 690, 1613, 1874, 1954, 2449, 2450, 3553; 70 Ark. 326-331; 118 N.W. 276; 96 Ark. 89; 178 U.S. 510; 5 Wall. 107; 38 Ark. 519; 40 Ark. 97; 68 Ark. 34, 38; 70 Ark. 329; 131 Am. St. Rep. 399; 73 Ark. 600, 602; 61 Ark. 502, 503 and cases cited; 87 Pa.St. 365; 21 Wis. 496; 67 Ark. 156; 74 Ark. 534; 39 Ark. 211; 95 Ark. 114. See also 36 Cyc. 1119 et seq.; 81 Pa.St. 312; 42 F. 23, 24; 91 N.C. 545; 107 S.W. 1133; 136 Ill. 22, 25; 85 S.W. 328, 329; 131. Am. St. Rep. 339, 343; 2 Am. St. Rep. 373; Id. 382; 71 N.Y. 481; 84 N.Y. 565; 105 Am. St. Rep. 762; 9 Am. & Eng. Ann. Cases, 350, 358.

2. Grammatical analysis shows that the phrase "in office" qualifies or modifies every member of the series, "incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance." 1 N.M. 583; 65 Pa.St. 311; 100 Pa.St. 63; 70 Id. 311, 314; 2 Daly (N. Y.) 66; 15 Abb. Pr. (N. Y.) 290; 76 Ark. 303, 308, 322; 55 Ark. 502.

Hal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee.

1. It is patent that the doctrine of ejusdem generis is not applicable here.

"When general words in a statute follow an enumeration of particular things, such words must be held to include only such things or objects as of the same kind as those specifically enumerated." 95 Ark. 114, syllabus. The terms used in the statute involved in this case are all general, none specific.

2. Appellant's construction of the clause "in office" is not possible because it would result in an absurdity. See art. 7, § 27, Const., and Kirby's Dig., § 7992.

OPINION

WOOD, J., (after stating the facts).

Section 7992 of Kirby's Digest is as follows:

"Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer, for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on the application of the defendant."

Appellant contends that under the rule of ejusdem generis the words "criminal conduct amounting to a felony" must be held to mean criminal conduct in office amounting to a felony. Appellant also contends that the grammatical construction also leads to the conclusion that the phrase "in office" modifies the words "criminal conduct amounting to a felony," and that therefore appellant can not be suspended under the above section unless he has been indicted for official misconduct amounting to a felony.

This court has often recognized and applied the ancient maxim ejusdem generis in the construction of statutes. State v. Gallagher, 101 Ark. 593, 143 S.W. 98; Lee v. Huff, 61 Ark. 494, 502, 33 S.W. 846; Eastern Ark. Hedge Fence Co. v. Tanner, 67 Ark. 156, 9, 53 S.W. 886; Matthews v. Kimball, 70 Ark. 451, 8, 66 S.W. 651; St. Louis, I. M. & S. Ry. Co. v. Love, 74 Ark. 528, 534, 86 S.W. 395; State v. Chicago R. I. & P. Ry. Co., 95 Ark. 114.

In the opinion in the last case above cited Judge HART, quoting from Sutherland on Statutory Construction, tersely states the rule as follows: "When general words follow an enumeration of particular things, such words must be held to include only such things or objects as are of the same kind as those specifically enumerated. "

In Hempstead County v. Harkness, 73 Ark. 600, 84 S.W. 799, the court said: "It is an old and settled rule of statutory construction which confines the meaning of additional and general descriptive words to the class to which the preceding specific words belong."

But the rule has no application to the statute under consideration, for the reason that there are no specific terms in the statute followed by general terms. The phrase "criminal conduct amounting to a felony," under which appellant was suspended, is a general term, and this term is not preceded or followed by any more specific terms. The terms "incompetency," "corruption," and "gross immorality" preceding, as well as the terms "malfeasance," "misfeasance" and "nonfeasance" succeeding, the words "criminal conduct amounting to a felony" are general terms.

The rule could have no application for the further reason that the terms employed are so entirely unlike and antagonistic in meaning and kind that they can not be brought by any sort of construction within the application of the rule of ejusdem generis. The literal meaning of ejusdem generis is "of the same kind, class or nature." The words "gross immorality," immediately preceding the phrase under consideration, refers to individual or personal attributes and habits, as contradistinguished from official misconduct or derelictions. There may be gross immorality in, or upon the part of, an individual during the time he may be holding office, but there can not be such thing as "gross immorality in office."

The general terms "incompetency." "malfeasance," "misfeasance" and "nonfeasance" have reference to official conduct. The term "corruption" might have reference to acts constituting official corruption, or it might be applied to individual delinquencies not in connection with his office, constituting corruption or dishonesty, as the term is evidently intended to mean.

The phrase "criminal conduct amounting to a felony" may also be applied to official acts or to individual and personal acts, not connected with the office. But the term "gross immorality" could only be applied, as we have stated, to personal and individual qualities or characteristics, and not to official acts. Therefore, we are of the opinion that the well known canon of construction growing out of the application of the maxim ejusdem generis has no application to this statute.

There are no statutes making "incompetency," "corruption," and "gross immorality," as such, indictable offenses. Therefore, the Legislature must have intended by the use of these terms that when any one holding a public office was indicted for any "criminal conduct amounting to a felony," or for any offense which showed him to be corrupt or dishonest, or for any felony or misdemeanor which showed him to be "grossly immoral," and which, if proved, in the eyes of the law would render him incompetent to hold office, he should be suspended. In other words, the Legislature did not intend that an officer should perform the functions of his office while he was under presentment or indictment for...