Moulton v. Scully

• Decision Date: 26 February 1914
• Parties: MOULTON v. SCULLY.
• Court: Maine Supreme Court

89 A. 944

111 Me. 428

MOULTON

v. SCULLY.

Supreme Judicial Court of Maine.

Feb. 26, 1914.

[Copyrighted material omitted.]

Haley and Bird, JJ., dissenting.

Report from Supreme Judicial Court, Cumberland County, at Law.

Information in the nature of quo warranto by Lewis W. Moulton against Everett G. Scully to test respondent's title to the office of sheriff of Cumberland County. On report. Information dismissed.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, KING, HALEY, HANSON, and PHILBROOK, JJ.

Wm. R. Pattengall, of Waterville, and Irving E. Vernon and William H. Gulliver, both of Portland, for relator.

Scott Wilson and Eben Winthrop Freeman, both of Portland, for respondent.

SPEAR, J. While the report of the proceedings in this case is quite long and many questions of law and fact are raised by the relator, yet only three pertinent inquiries are involved.

The relator was elected and qualified as sheriff of Cumberland county for the term of office beginning January 1, 1913. On the 2d day of April following, the Senate and House of Representatives passed in concurrence the following resolve:

"State of Maine.

"Resolve in favor of the adoption of an address to the Governor for the removal of Lewis W. Moulton, sheriff for the county of Cumberland.

"Resolved, that both branches of the Legislature, after due notice given, according to the Constitution, will proceed to consider the adoption of an address to the Governor for the removal of Lewis W. Moulton, sheriff for the county of Cumberland, for the causes as following:

"First, because the said Lewis W. Moulton, who is now holding office of sheriff for the county of Cumberland, and who has held said office continuously since the first day of January, A. D. 1913, willfully or corruptly refuses or neglects to perform the duties required of him as such sheriff by section sixty-nine of chapter twenty-nine of the Revised Statutes of this state as amended by chapter forty-one of the Public Laws of nineteen hundred and five, and particularly his duties as said sheriff in enforcement of the law against the illegal sale of intoxicating liquors and the keeping of drinking houses and tippling shops.

"Resolved, the House of Representatives concurring, that these resolutions and statements of causes of removal be entered on the journal of the Senate and a copy of the same be signed by the president of the Senate and served on said Lewis W. Moulton by such person as the president of the Senate shall appoint for that purpose, who shall make return of such service upon his personal affidavit without delay, and that the first day of April, at eleven o'clock in the forenoon, be assigned as the time when the said Lewis W. Moulton may be admitted to a hearing in his defense."

This resolve, with the evidence of its service upon the relator, became the foundation of the hearing and subsequent request of removal, by address, although the Governor acted affirmatively, the attack here made is upon the regularity of the legislative, not the executive, action. The address reads:

"The Senate and House of Representatives in Legislature assembled present this address to the Governor and request the removal from office of Lewis W. Moulton, sheriff of Cumberland county, for the causes following: Because the said Lewis W. Moulton, who is now holding the office of sheriff for the county of Cumberland and who has held said office continuously since the first day of January, A. D. 1913, willfully or corruptly refuses or neglects to perform the duties required of him as such sheriff by section sixty-nine of chapter twenty-nine of the Revised Statutes of this state, as amended by chapter forty-one of the Public Laws of 1905, and particularly his duties as said sheriff in enforcement of the laws against the illegal sale of intoxicating liquors and the keeping of drinking houses and tippling shops."

To the action of the Legislature, in moving and adopting the address, and of the Governor in removing Sheriff Moulton, he has filed objections and assigned 22 causes of error in the proceedings.

But in view of the constitutional jurisdiction of the tribnunal that initiated and concluded the proceedings, we are of the opinion that but three of the objections raised authorize or permit of consideration by the court.

If we now proceed to discover the jurisdiction assumed by the Legislature in this case, we find it conferred by article 9, § 5, of the Constitution, and reads as follows: "Every person holding any civil office under this state, may be removed by impeachment, for misdemeanor in office; and every person holding any office, may be removed by the Governor, with the advice of the Council, on the address of both branches of the Legislature. But before such address shall pass either House, the causes of removal shall be stated and entered on the journal of the House in which it originated, and a copy thereof served on the person in office, that he may be admitted to a hearing in his defense."

By this provision it will be observed that the Legislature in address proceedings is required to do three things: (1) State the causes of removal and enter them upon the journal; (2) serve notice on the person in office; and (3) admit him to a hearing. Otherwise than this there is no limitation upon the power of the Legislature in the conduct and determination of these proceedings. Whether address or impeachment should have been invoked is a question of interpretation and will be noted later.

It is not in controversy that the Legislature did the three things required. But the objection is that it did not do them right, and consequently had no jurisdiction. It is the opinion of the court that the objection is not well taken. The address proceedings originated and proceeded under section 5, art. 9, of the Constitution. It was a constitutional trial by a co-ordinate department of the government, the Legislature acting as a constitutional tribunal and limited in authority only by the language of article 9, § 5. This limitation requires the assignment of causes, notice and hearing, in case of address, as jurisdictional facts. Accordingly, the causes stated must be legal causes. The causes contemplated by the Constitution can be neither trivial nor capricious. They must be such as specially relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. They must be causes attaching to the qualifications of the officer, or his performance of his duties, showing that he is not a fit or proper person to hold the office. See "Cause," Words and Phrases, vol. 2, p. 1009. It must also appear that the notice required is reasonable, and an opportunity afforded for a hearing.

Under this definition it would seem a sound conclusion that the causes stated in the resolution of address constituted a statement of legal causes within the contemplation of the constitutional requirement. To make the statement clear, it is necessary to repeat the causes stated, in connection with the statute cited, in order that the precise import of the causes may be fully understood. The resolution contains the following allegations: "First, because the said Lewis W. Moulton, who is now holding office of sheriff for the county of Cumberland, and who has held said office continuously since the first day of January, A. D. 1913, willfully or corruptly refuses or neglects to perform the duties required of him as such sheriff by section sixty-nine of chapter twenty-nine of the Revised Statutes of this state, as amended by chapter forty-one of the Public Laws of nineteen hundred and five, and particularly his duties as said sheriff in enforcement of the law against the illegal sale of intoxicating liquors and the keeping of drinking houses and tippling shops."

The statute referred to, as amended, reads as follows: "Sheriffs and their deputies and county attorneys shall diligently and faithfully inquire into all violations of law, within their respective counties, and institute proceedings in case of violations or supposed violations of law, and particularly the law against illegal sale of intoxicating liquors, and the keeping of drinking houses and tippling shops, gambling houses or places, and houses of ill fame, either by promptly entering a complaint before a magistrate and executing the warrants issued thereon, or by furnishing the county attorney promptly and without delay, with the names of alleged offenders, and of the witnesses. Any sheriff, deputy sheriff or county attorney, who shall willfully or corruptly refuse or neglect to perform any of the duties required by this section, shall be punished by fine not exceeding one thousand dollars or by imprisonment not exceeding one year." The causes here assigned clearly and fully state a case of "nonfeasance," which is defined as "an omission to perform a required duty at all, or a total neglect of a duty; the omission of an act which a person ought to do." See "Nonfeasance," Words and Phrases, vol. 5, p. 4821. In fact, the title of chapter 41, Public Laws 1905, is "An act providing penalties for nonfeasance of duty by sheriffs," etc. Under the statute cited, there can be no question that nonfeasance specially relates to and affects the administration of the office of sheriff, and is of a substantial nature directly affecting the rights and interests of the public; and, as such nonfeasance is punishable by fine or imprisonment, it manifestly constitutes a charge of unfitness to hold office.

As the relator appeared with counsel and was fully heard in an exhaustive trial that lasted several days, no question can be raised as to notice or hearing. We can assume that these jurisdictional requirements are established, and hereafter in referring to jurisdiction it will be upon the assumption that these two requirements are settled.

But it is urged that the causes stated were...