Rowe v. Bateman
| Decision Date | 24 October 1899 |
| Docket Number | 18,340 |
| Citation | 54 N.E. 1065,153 Ind. 633 |
| Parties | Rowe et al. v. Bateman et al |
| Court | Indiana Supreme Court |
Mandate Modified Dec. 20, 1899.
From the DeKalb Circuit Court.
Appeal dismissed.
A. E Davis, F. S. Roby, D. M. Linke, W. L. Taylor Attorney-General, Merrill Moores and C. C. Hadley, for appellants.
A Zollars, C. H. Worden, C. A. O. McClellan, D. A. Garwood, J. E. Rose and J. H. Rose, for appellees.
On April 6, 1897, appellants instituted this proceeding in the lower court against the appellees, John W. Bateman, and Isaac Hague, then county commissioners of DeKalb county, for the purpose of impeaching them for official misconduct, and thereby removing them from office, under § 35 of an act of the legislature approved March 8, 1897, entitled "An act for the impeachment and removal from office of public officers." (Acts 1897, p. 278.)
The complaint disclosed that appellees were elected commissioners of said county in 1894, and that the official term of Hague expired on the 3rd day of December, 1897, and that of Bateman on the 2nd day of December, 1898. All of the alleged acts of omission and commission, upon which this proceeding is based, are expressly charged in the complaint or accusation filed by appellants to have occurred prior to the enactment of the above mentioned statute. Appellees filed written objections to the sufficiency of each specification or grounds of impeachment; and these objections were by the court sustained to each and all of said specifications; to which ruling of the court appellants excepted, and, refusing further to plead, judgment was rendered that they take nothing by their action. From this judgment they have appealed, and assign error on the court's ruling in sustaining the objections of appellees to their complaint.
The only question discussed by the learned counsel representing the respective parties is the right, under the act in question, to remove the appellees from the office in controversy, for the alleged misconduct in office occurring prior to the passage of said act. It is contended, upon the part of counsel for appellees, that to give section thirty-five of this statute a retroactive effect, so as to subject appellees as public officials to the penalty therein provided, for acts done before the statute was passed, would make the law ex post facto in its operation, and thereby render it antagonistic to both the State and federal Constitutions.
The sole object of this proceeding, as we have seen, was to secure the removal of the appellees from the office of county commissioners, which each held at the time the action was instituted. The record fully reveals the fact that the respective terms of the appellees have expired pending this appeal, that of Hague having terminated December 3, 1897, and that of Bateman on December 2, 1898; and we may assume, therefore, that these appellees as former officials, at the close of their respective terms, surrendered their offices to duly chosen and qualified successors and from said time ceased to be incumbents thereof; hence, if we were to decide adversely to appellees, upon the questions discussed, and reverse the judgment of the lower court and remand the cause for further proceedings, there could be nothing of a practical result thereby gained, as appellees are no longer incumbents of the office from which it was originally sought to remove them, and a judgment of removal, under the circumstances, would be useless and inoperative.
The only real question, therefore, as originally involved in this case, has been by lapse of time eliminated and nothing now remains for our decision but an abstract proposition in regard to the retroactive operation of the statute of 1897. We can not even assume that this question will arise in the future, and, if we could so presume, it would not be proper for us to decide it in advance.
In the case of People v. Troy, 82 N.Y. 575, there was an appeal from a judgment denying the relator's petition for a mandamus to compel the common council of the city of Troy to appoint certain police commissioners. It appearing that the official term, over which the controversy arose, had already expired, it was held in that case that the appeal ought to be dismissed. The court said:
Gordon v. State, 47 Tex. 208, was a proceeding to remove Gordon from the office of sheriff for official misconduct. The court adjudged him unfit to hold the office and declared it vacant. From this judgment he appealed. His appeal was dismissed for want of jurisdiction, the court giving, however, as an additional reason for its action, that the term of office of the sheriff had long since expired, and that therefore a decision on the question of his removal would be useless and inoperative.
In the case of Gamewell, etc., Co. v. Municipal Signal Co., 61 F. 208, the appellee in the lower court obtained an injunction restraining the appellant from infringing certain letters patent. Pending that appeal, the patent involved expired. The court in that case, for the reason that the letters patent had expired, declined to consider whether the injunction was or was not properly granted by the lower court, and dismissed the appeal on its own motion.
The ruling which we here assert and enforce is fully sustained by the decisions of this court in Wallace v. City of Indianapolis, 40 Ind. 287; Stauffer v. Salimonie, etc., Co., 147 Ind. 71, 46 N.E. 342; Manlove v. State, ante, 80; State, ex rel. v. Board, etc., ante, 303, and authorities there cited.
It follows, for the reasons stated, that the appeal herein ought to be dismissed. It is therefore dismissed on the court's motion.
On Petition to Modify Mandate.
Jordan, J.--The lower court in this action adjudged that the defendants recover costs from the plaintiffs, appellants herein. The latter, by the Attorney-General, have petitioned this court to modify its judgment in this appeal so as to adjudge that no cost be recovered or taxed against them, and further to order the trial court to modify its judgment to the extent that no costs thereunder be adjudged against appellants in that court.
The proceeding, as stated in the original opinion, is based on section thirty-five of the impeachment act of 1897 (Acts 1897, p. 278), and the accusation filed in the case, it appears, was verified by the oaths of the individual members of the grand jury of the DeKalb Circuit Court, and also by the oaths of the prosecuting attorney and his deputy; and these persons appear to have been made the plaintiffs in the action below, and are appellants in this appeal.
Section twenty-one of this statute provides that "An accusation in writing against any district, county, township, or municipal officer or justice of the peace or prosecuting attorney may be presented by the grand jury of the county for or in which the officer accused is elected or appointed." Section twenty-two provides that the accusation must state the offense charged in ordinary and concise language without repetition. The next section requires that the written accusation be delivered by the foreman of the grand jury to the prosecuting attorney of the county, except when the latter is the accused officer and that this official must cause a copy thereof to be served...
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