Lowe v. Commonwealth
| Decision Date | 20 February 1860 |
| Citation | 60 Ky. 237 |
| Parties | Lowe vs. Commonwealth. |
| Court | Kentucky Court of Appeals |
Chapter 91 of the Revised Statutes, (2 vol. Stanton's edition, 348,) contains the following provision:
Under this provision the county judge of Mercer county, in September, 1860, suspended appellant, as jailer of said county, until the next regular term of the county court, which occurred in October following.
At said term the county court — being satisfied from the evidence that appellant had negligently and improperly acted in his office of jailer, and that the public interest imperatively required his suspension — made the following order:
"This day came the parties by their respective attorneys, and they having been fully heard on the evidence and argument of counsel, and the court being satisfied that the public interest imperatively requires the permanent suspension of the defendant, Elisha Lowe, jailer of Mercer county, from the further discharge of official duties as such, it is ordered by the court that said Elisha Lowe be and he is hereby suspended from acting as such during the residue of the term of office for which he was elected."
The grounds for the suspension are set forth and appended to the order — having been entered upon the order book as required by law.
From this order Lowe has appealed to this court, and relies on several grounds for reversal.
As no appeal is allowed in such cases to the circuit court; and, as this court, in Gorham vs. Luckett, (6 B. Monroe,) — a case in some respects not unlike this — decided that the power of removal from office, for cause, when conferred upon a court, was a judicial and not an executive power, we suppose the order complained of is within the jurisdiction of this court, and shall therefore proceed to notice such of the errors assigned as are deemed important to the parties.
The first and most important inquiry involves the constitutional power of the legislature to enact the law under which this proceeding was had.
It is contended in behalf of appellant, that the constitution has prescribed the term of his office, and the grounds upon which he may be removed, as well as the mode of proceeding to effect such removal; and that, inasmuch as a permanent suspension from office is virtually a removal, the legislature could not empower the county court to suspend him at its discretion, and thus effect a removal from the office in a mode different from that furnished by the constitution.
The constitution provides for the election of a jailer for each county in the State, whose term of office shall be the same as that of the judge of the county court. (Article 6, sec. 1.)
It is also provided by the same instrument, that "judges of the county courts shall be elected by the qualified voters of each county, for the term of four years, and shall continue in office until their successors be duly qualified, &c." (Art. 4, sec. 30.)
So that, by the organic law, the term of office of a jailer is fixed at four years, and until his successor is qualified. It is therefore beyond the power of the legislature either to increase or diminish this constitutional term of office. Of this there can be no doubt.
But may not the incumbent of such office be removed for malfeasance or misfeasance in office, or for any other valid and sufficient cause, existing or occurring before the expiration of his term? And, if so, how is this to be done?
It seems to us that a sufficient answer to these inquiries is to be found by recurring to the provisions of the constitution touching removals from office.
Article 5 provides for the impeachment of all civil officers, and not only so, but prescribes the mode of impeachment, and by what power it shall be performed. It also declares that the judgment in such cases shall not extend further than to removal from office, and disqualification to hold any office of honor, trust, or profit; but that the party convicted shall nevertheless be subject and liable to indictment, trial, and punishment by law.
There is, however, another provision relating to the mode of proceeding against certain officers, which would seem to be directly applicable to the case in hand.
Section 36 of art. 4, provides as follows:
"Judges of the county court and justices of the peace, sheriffs, coroners, surveyors, jailers, county assessor, attorney for the county, and constables, shall be subject to indictment or presentment for malfeasance or misfeasance in office, or willful neglect in the discharge of their official duties, in such mode as may be prescribed by law, subject to appeal to the court of appeals; and upon conviction their offices shall become vacant."
Here then are two modes prescribed by the constitution...
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