Nelson v. State

• Decision Date: 17 April 1913
• Court: Alabama Supreme Court
• Parties: NELSON et al., Jury Com'rs, v. STATE ex rel. BLACKWELL, Solicitor.

62 So. 189

182 Ala. 449

NELSON et al., Jury Com'rs, v. STATE ex rel. BLACKWELL, Solicitor.

Supreme Court of Alabama

April 17, 1913

Rehearing Denied May 5, 1913

Appeal from Law and Equity Court, Morgan County; A.H. Alston, Judge.

Impeachment proceeding by the State, on the relation of Samuel Blackwell as solicitor, etc., against James S. Nelson and another, as jury commissioners of Morgan county. From an adverse judgment, defendants appeal. Reversed and remanded.

McClellan J., dissenting.

Callahan & Harris and O. Kyle, all of Decatur, for appellants.

R.C Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., E.W Godbey, of Decatur, and W.R. Walker, of Athens, for appellee.

SAYRE J.

This is the case of an information for the impeachment of two members of the jury commission of Morgan county. The information contains four charges proceeding under the authority of sections 173 and 175 of the Constitution, which, when read together, authorize the impeachment of jury commissioners "for willful neglect of duty, *** or any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith."

Count 1, so to speak of the first charge stated in the information, proceeds for willful neglect of duty, in that defendants, after having emptied the jury box preparatory to refilling the same, did unlawfully and willfully leave out of said box and fail to place therein the names of certain male citizens of the county, designated separately in some dozen specifications, who were eligible for jury service and whose names had been duly entered upon the jury roll and upon cards prepared in accordance with the direction of the statute, all which facts were then and there known to defendants. The remaining counts proceed for the commission of an offense involving moral turpitude, to wit, the offense of unlawfully withdrawing or removing the names of eligible jurors from the jury box after the box had been replenished and the jury roll made up. A further statement of the detailed averment of these counts is unnecessary.

An examination of the statute under which defendants were acting (Acts Sp.Sess. 1909, pp. 305-320) reveals the fact that duties of two distinct classes are thereby imposed upon jury commissioners. For one, they are required to prepare a jury roll to contain the name of every male citizen of the county possessing the prescribed qualifications of jurors and not specifically exempt. The statute provides a clerk, and contemplates that he shall perform the clerical labors of the commission, keep its records, and certify to their contents. To the end that every male citizen possessing the prescribed qualifications and not exempt may be enrolled, and none other, the commission may summon witnesses, administer oaths, and take testimony touching the qualifications of any person residing in the county. The jury roll is the evidence of the commission's judgments. The determination of the qualifications of prospective jurors involves the judicial function. "Whenever the law vests a person with power to do an act and constitutes him a judge of the evidence on which the act may be done, and at the same time contemplates that the act is to be carried into effect through the instrumentality of agents, the person thus clothed with power is invested with discretion, and is quoad hoc a judge." 23 Cyc. 504. For the other, duties of a mechanical, clerical, and administrative nature are imposed. It will be noted that the information would seem to avoid a charge of dereliction in respect to the preparation of the jury roll or in the determination of the qualifications of the persons whose names were placed thereon. Its effect is to charge official misconduct, misfeasance, malfeasance, or nonfeasance in the performance of duties mechanical, clerical, or administrative.

The specific effect of count 1 has been stated. It charges the willful doing, or the willful failure to do, an act which may with propriety be designated as either a nonfeasance, misfeasance, or malfeasance, for these terms cover a certain common field within which the act or omission charged seems to fall.

Impeachment proceedings are highly penal in their nature, and are governed by the rules of law applicable to criminal causes. Constitutional and statutory provisions on the subject of the procedure in such cases, are to receive strict construction in favor of the accused. State v. Buckley, 54 Ala. 599; State v. Robinson, 111 Ala. 482, 20 So. 30; State v. Lovejoy, 135 Ala. 64, 33 So. 156.

Section 7 of the act provides that any commissioner, or clerk of a commission, who neglects to perform any duty imposed upon him by the act, is guilty of a misdemeanor. The averment of the count or charge in question is that the jury box had been emptied preparatory to refilling. It is not charged that the box was unlawfully emptied. And section 12 of the act makes it entirely clear that the commissioners must at times and in a certain event empty the jury box preparatory to refilling it. At such times they are also to make and certify a new jury roll. For aught appearing to the contrary in the averments of the count, the commissioners had an indubitable right to enter upon the business of creating a new jury roll and the refilling of the box, and of necessity while so engaged they had a right to change or revise any previous judgment in respect to the qualification of any prospective juror, and this right they might exercise, proceeding, of course, in good faith as a commission organized and sitting for the purpose of discharging their duties under the statute, until all questions were finally determined; and probably the statute contemplates that the determination of finality shall be evidenced by the delivery of the refilled jury box to its custodian of statutory appointment, thus putting it beyond the power and control of the commission. In such revision and in making the contents of the jury box answer to their judgment by leaving out or failing to place therein the names of persons adjudged to be ineligible, though that judgment be erroneous, the commissioners, whatever else may be said of their course, are not neglecting their official duty. Provided only they act in good faith as a commission, they are discharging their duty under the law, incompetently and mistakenly it may be, but acting nevertheless virtute officii, and it may be with most anxious regard for their responsibilities under the law. In that case they are untouched by the criminal section of the statute or the constitutional provision on the subject of removal from office on the ground of willful neglect of official duty. If the commissioners act incompetently or their judgments are corrupt, they may be removed for those causes; but on no just or reasonable construction of the Constitution, the statute, and the facts averred can they be held to have neglected their duty under the statute.

The remaining counts were intended to express the pleader's conclusion that jury commissioners are guilty of an act involving moral turpitude whenever they withdraw from the jury box the name of an eligible prospective juror after the box has been replenished and the jury roll made up. The theory of these counts or charges is that section 27 of the statute makes certain acts felonies and so attaches to them the quality of moral turpitude. The section reads: Any person who shall unlawfully place in, or withdraw from, the jury box any name or names of persons, or destroy, cancel, or remove such jury box, or place on or erase from the jury roll the name of any person, or destroy, mutilate, conceal, or remove such jury roll, shall be guilty of a felony, etc.

Why the pleader, in the pursuit of any consistent theory of the statute, should have alleged that the persons whose names were withdrawn were eligible as jurors does not appear. The terms of the section make no distinction between the withdrawal of the names of eligible and ineligible persons. Jury commissioners have the undoubted power in the first place to determine judicially the eligibility of prospective jurors, and if the section has reference to the acts of commissioners, and was intended to punish the withdrawal of the names of eligible persons only, that would give them the power to judge again of eligibility. But this point is of no material consequence. As we have said, the section does not discriminate, and the averment of eligibility must be treated as unnecessary and redundant.

Section 27 says nothing of intent. Offenders against it are made felons without regard to intent. If it applies to commissioners, it does not as to them perfectly define the several acts denounced as felonies, for the letter of the statute in other places, and the exercise of the functions for which the commission was created, require that at some time they do most of the things denounced, nor is any negation of their power to do these things at any time to be found except in the negative implied by section 12, where they are commanded to make and certify a new jury roll and refill the box when the box is exhausted or so far depleted that it will probably be exhausted at the next drawing of jurors. In Jury Commission v. State, 59 So. 594 this implied negation was held effectual to deprive the jury commission of power and jurisdiction except in the conditions specified in section 12, and to render proper a writ of mandamus to compel the restoration of the status quo ante, where the commissioners had assumed to act in the absence of such conditions. In that case it was also held that the existence of the conditions calling for the making of a new jury roll was to be found by the commission, and that must be the case; for, while the duty of preparing a...