Mcdonald v. Guthrie
| Citation | 27 S.E. 844,43 W. Va. 595 |
| Court | Supreme Court of West Virginia |
| Decision Date | 15 September 1897 |
| Parties | McDONALD v. GUTHRIE, Judge, et al. |
Constitutional Law—County Officers—Removal—Prohibition.
1. Chapter 48, Acts 1897, allowing proceedings for removal of commissioners of the county court by proceedings in the circuit court, is constitutional.
2. Does prohibition lie merely because the jurisdiction of the lower court depends on the question whether a statute giving it jurisdiction is constitutional? Per Brannon, J., it does not lie.
(Syllabus by the Court.)
Petition by J. S. McDonald against F. A. Guthrie, judge, and others, for a writ of prohibition. Denied.
Chilton, McCorkle & Chilton and S. C. Burdett, for petitioner.
Flournoy, Price & Smith, Mollohan & McClintic, and Brown, Jackson & Knight, for respondents.
BRANNON, J. McDonald being a commissioner of the county court of Kanawha county, a proceeding was instituted in the circuit court of that county by a number of its citizens to remove him from office, and he asked of this court a writ of prohibition to restrain that court from going on with the case. Thetheory on which his case here is put is that chapter 48, Acts 1897, allowing a proceeding in the circuit court for his removal, is no law, because repugnant to section 4, art. 9, of the state constitution, which is as follows: "The presidents of the county courts, the justices of the peace, sheriffs, prosecuting attorneys, clerks of the circuit and county courts, and all other county officers, shall be subject to indictment for malfeasance, misfeasance, or neglect of official duty, and upon conviction thereof their offices shall become vacant." McDonald's counsel would maintain that he must first be indicted for the wrongs imputed to him, and for which his removal is sought by mere petition in the circuit court, and not until conviction can he be removed. If this is so, what office does section 6, art. 4, of the constitution perform? It provides that "all officers elected or appointed under this constitution may, unless in cases herein otherwise provided for, be removed from office for official misconduct, incompetence, neglect of duty, or gross immorality, in such manner as may be prescribed by general laws." It is very broad, —"all officers elected or appointed under this constitution." But counsel say there is a limitation of its scope in the words, "unless in cases herein otherwise provided for, " and they further say that section 4, art. 9, does otherwise provide as to county officers in saying they are subject to indictment, and, if convicted, their office shall be vacant. If this were so, then section 6, art. 4, has no application to any county officer at all, because section 4, art 9, covers all county officers, and plainly makes mere conviction ipso facto operate a removal, without any other proceeding, and hence there is no call as to them for the proceeding for removal under the legislation authorized by section 6, art. 4. It would have no reference to any county officer, though its broad language applies it to "all officers elected or appointed under the constitution." I have no doubt that if, upon indictment for the offenses specified in section 4, art. 9, the party be convicted, the judgment would itself work his removal from office, without any other process to reinvestigate the facts; for, those facts having been once proven before a jury beyond reasonable doubt, —the highest test which the accused could demand, —why reinvestigate in another proceeding? If the party happens to be so convicted, that alone devests him of office as an unfit incumbent. He may refuse to yield, and proceedings for actual amotion become necessary; but that would be a proceeding by mandamus or quo warranto, wherein the record of conviction would be the only evidence required to dispossess him of actual possession, and It would not be a proceeding to investigate the original charge. The words "become vacant" show this. But indictment for the offenses specified Is not the only mode of removal. There may be no indictment, and yet the party may be guilty of those offenses; and there ought to be some process accessible to the county court or citizen having for its direct object such removal, and section 6, art. 4, says that it shall be as provided by general law, and such is the act of 1897. If the construction that, before removal, a county officer must be indicted and convicted, be correct, what would be done with one guilty of gross immorality? Section 4, art. 9, contemplates indictment only for malfeasance, misfeasance, or neglect of official duty, and gross immorality...
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Simms v. Dillon, 8667.
......Although this question has never been expressly decided by this court, it was raised in the case of McDonald v. Guthrie, Judge, 43 W.Va. 595, 27 S.E. 844, in which the constitutionality of an act of the Legislature was determined in the affirmative, but ......
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Jordan v. McCourt, 10269
......90] 6-6-7, originated, and similar in its provisions, was upheld in the case of McDonald v. Guthrie, 43 W.Va. 595, 27 S.E. 844, and in the case of Dawson v. Phillips, 78 W.Va. 14, 88 S.E. 456. It is true that in Arkle v. Board of ......
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Simms. v. Dillon, (No. 8667)
......Although this question has never been expressly decided by this Court, it was raised in the case of McDonald V. Guthrie, Judge, 43 W. Va. 595, 27 S. E. 844, in which the constitutionality of an act of the legislature was determined in the affirmative, but ......
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Simms v. Dillon
...... Although this question has never been expressly decided by. this court, it was raised in the case of McDonald v. Guthrie, Judge, 43 W.Va. 595, 27 S.E. 844, in which the. constitutionality of an act of the Legislature was determined. in the affirmative, ......