Moore et al. v. Strickling.

• Decision Date: 22 April 1899
• Citation: 46 W.Va. 515
• Court: West Virginia Supreme Court
• Parties: Moore et al. v. Strickling.

46 W.Va. 515

Moore et al.

v.Strickling.

Supreme Court of Appeals of West Virginia.

Submitted February 6, 1899

Decided April 22, 1899.

1.Removal of Public Officer Jury Trial.

Under the provisions of chapter 48 of the Acts of 1897, an officer against whom charges are preferred under the supervision of the circuit court is not entitled to a jury trial. (McWhorter, Judge, dissenting.) (p. 520).

2.Public Office Constitutional Law Property.

A public office is not property, within the meaning of the constitutional provision that "no person shall be deprived of life, liberty or property without due process of law and the judgment of his peers." It is a mere public agency, revocable according to the will and appointment of the people, as expressed in the constitution and the laws enacted in conformity therewith. (p. 519).

3.Gross Immorality.

Gross immorality is willful, flagrant, or shameless immorality. (p. 525.)

4.Public Officer House of Lit Fame Gross Immorality.

If a public officer, whose duty it is to prosecute the keeper and inmates of a house of ill fame, resorts to the same for immoral pnrposes, he is guilty of gross immorality, and thereby forfeits his office. (p. 526).

5. Review on Appeal Evidence.

The credibility of witnesses and the weight of evidence are for the trial court, and the Appellate Court will not disturb its finding, unless plainly contrary to the preponderance of the evidence. (p. 526).

Error to Circuit Court, Tyler County.

Application of S. Moore and others for the removal from office of James H. Strickling, prosecuting attorney. From the judgment of removal, defendant brings error.

Affirmed.

T. P. Jacobs and D. F. Pugh, for plaintiff in error. Howard & Handlan, for defendants in error.

Dent, President:

On the 22d day of July, 1898, J. H. Strickling, prosecuting attorney of the County of Tyler, was found guilty of gross immorality by the circuit court of such county, under the following specification and charge, denominated specification No. 25, to wit: "It is further charged and averred that during all the year 1897, and during which time James II. Strickling was prosecuting attorney of the county of Tyler, he was grossly immoral and guilty of grossly immoral conduct in this: That he did on divers occasions visit a certain house of ill fame in the town of Sistersville, county of Taylor, in the state of West Virginia, then and there kept by one Nellie White; that on several occasions during the year 1897 he remained in the said house of ill fame all night, drinking excessively, and conducting himself in a grossly immoral manner, with a number of lewd men and women living and associating together in the said house," and thereupon removed from said office. The charge was preferred by several private citizens of the county. The defendant obtained a writ of error to this Court.

The first error relied on is the refusal of the circuit court to allow the defendant a trial by jury by virtue of section 10, Art. III., Constitution, to wit: "No person shall be deprived of life, liberty or property without due process of law and the judgment of his peers." The defendant claims that his office is his property, and it is subject to this provision of the Constitution. In support of such claim he relies on the opinion of Judge Green in the case of Dryden v. Swinburn, 15 W. Va. 248, where he uses the language that a public office is a franchise, and therefore property, and also Phares v. State, 3 W. Va. 567, where it was held that an incumbent had a vested right in his office. These are but mere intimations that the right to exercise an office is a matter of value, and were not intended to establish the doctrine that such right, however valuable, is property, within the meaning of the constitution. In Throop, Pub. Off. section 16, it is said: "Many ancient offices were in England inheritable and assignable, and were treated as incorporeal hereditaments. But these were common-law offices, depending chiefly upon usage; and the doctrine did not extend to judicial offices or other offices pertaining to the administration of justice. Offices created by statute confer no life estate or irrevocable tenure, unless the statute expressly so provides." In section 17 it is said no office ill the United States is a hereditament, and in section 18: "But in some American cases the office, or the right to exercise an office, is styled property in an absolute and unqualified sense, and it has been said that the right to exercise an office is 'as much a species of property as any other thing capable of possession.' With respect to this remark a learned judge says that 'it was rather a figure of speech than a judgment determining an office to be property. It was a strong mode of expressing the right which one elected to an office has to hold and enjoy it against all intruders and unfounded claims, which is as perfect a right, beyond doubt, as the title of any individual to his property, real or personal. But the nature of that right and its liability to control by legislative action is quite a different thing.' And in a recent case in the New York court of appeals, Andrew, Judge, approving the remarks last cited, adds: 'It is true that in this country offices are not hereditaments, nor are they held by grant. The right to hold an office and to receive the emoluments belonging thereto does not grow out of any contract with the State, nor is an office property in the same sense that cattle or land are the property of the owners.' An office has a pecuniary value, although primarily it is an agency for public purposes." "An office is a mere right to ex- ercise a public function or employment, though it is an entity and may exist in fact, though it be without an incumbent, and it is not property; nor are the prospective fees of an office the property of the incumbent; nor is it a subject of sale, purchase, or incumbrance." 19 Am. & Eng. Enc. Law, 381. In the case of State v. Hawkins, 44 Ohio St., on page 109, 5 N. E. 233, Judge Minshall says: "The incumbent of an office has not, under our system of government, any property in it. His right to exercise it is not based upon any contract or grant. It is conferred on him as a public trust, to be exercised for the benefit of the public. Such salary as may be attached to it is not given because of any duty on the part of the public to do so, but to enable the incumbent the better to perform the duties of his office by the more exclusive devotion of time thereto." This view is sustained by the decided and overwhelming weight of authority.

In the case of Donahue v. Will Co., 100 I'll. 94, it is said: "It is impossible to conceive how, under our form of government, a person can own or have title to a governmental office. Offices are created for the administration of public affairs. When a person is inducted into an office, he thereby becomes empowered to exercise its powers and perform its duties, not for his, but for the public benefit. It would be a misnomer and a perversion of terms to say that an incumbent owned an office or had any title to it." State v. McGarry, 21 Wis. 496; State v. Prince, 45 Wis. 610; Keenan v. Perry, 24 Tex. 253: State v. Doherty, 25 La. Ann. 119; Taft v. Adams, 3 Gray, 126; Ex parte Wiley, 54 Ala. 226; Thompson v. Holt, 52 Ala. 491; State v. Frazier, 48 Ga. 137; Doug an v. District Court, 22 Am. Law Reg. (N. S.) 528; Patton v. Vaughan, 39 Ark. 211; People v. Stratton, 28 Cal. 382; Woods v. Varnum, 85 Gal. 639, (24 P. 843): Smith v. Mayor, etc., 37 N. Y. 518; Conner v. Same, 5 N. Y. 285; State v. Davis, 44 Mo. 129; Prince v. Skillin, 71 Me. 361; People v. Murray, 70 N. Y. 521; Rankin v. Jauman (Idaho) 36 P. 502; 6 Am. & Eng. Enc. Law (2nd Ed.) 981. Some of the decisions have adopted the theory that an office is property, under the mistaken view that the common-law doctrine that an office is a hereditament applied to the offices of this country, which is undoubtedly fallacious. Plimpton v. Somerset, 33 Vt. 283; Board v. Pritchard, 36 N. J. Law, 101; Page v. Hardin, 8 B. Mon. 672; Com. v. Slifer, 25 Pa. St. 28, are cases of this character. In North Carolina it is held that an office is property, and that the incumbent has the same right to it that he has to any other property (King v. Hunter, N. C. 603), subject, however, to legislative control in all that concerns the interests of the public (Hoke v. Henderson, 15 N. C. 1). In the late case of Attorney General v. Jochim, 99 Mich. 358, (58 N. W. 611,) the supreme court of Michigan held: "A public office cannot be called 'property, ' within the meaning of section 1 of the fourteenth amendment to the Constitution of the United States and section 32 of article 6 of the Constitution of Michigan, which provide that no person shall be deprived of life, liberty, or property without due process of law." In the still later case of People v. Akin, 49 N. E. 229, it is held by the supreme court of Illinois, on an exhaustive review of authorities, that "the trial of charges against officers for their removal is not within the constitutional provision of trial by jury. A public office, or the prospective fees of an office, are not the property of the incumbent, within the constitutional provision against depriving a man of property. The constitutional provision for trial by jury does not apply to special summary jurisdictions, unknown to the common law, and not providing that mode of trial." Public offices belong to the people, and are to be both conferred and taken away according to their will and appointment, and a person who accepts a public office does so subject to all the constitutional and legislative provisions in relation thereto. Attorney General v. Jochim, cited. The Constitution provides, in Art. IV., section 6, 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...