Sheffield v. Heslep

• Decision Date: 17 January 1944
• Docket Number: 4-7303
• Citation: 177 S.W.2d 412,206 Ark. 605
• Parties: Sheffield v. Heslep
• Court: Arkansas Supreme Court

177 S.W.2d 412

206 Ark. 605

Sheffield v. Heslep

No. 4-7303

Supreme Court of Arkansas

January 17, 1944

Appeal from Phillips Chancery Court; A. L. Hutchins, Chancellor.

Affirmed.

John C. Sheffield and W. P. Brickell, for appellant.

Leo J. Mundt, J. G. Burke, A. M. Coates, George K. Cracraft, John I. Moore, and J. M. Jackson, for appellee.

OPINION

McFaddin, J.

This appeal involves the deputy prosecuting attorneyship of Phillips county.

On January 6, 1943, J. H. Moody, prosecuting attorney of the First Judicial Circuit, by written instrument, duly appointed John C. Sheffield as deputy prosecuting attorney for Phillips county, (in said judicial circuit). The appointment stated it was: "for the period of January 6, 1943 to December 31, 1944." This appointment was duly approved by the circuit judge, and Sheffield took the proper oath, and the appointment and oath were filed and recorded and Sheffield entered into the performance of his duties.

On August 12, 1943, J. H. Moody, (the said prosecuting attorney), by written instrument, revoked the appointment of Sheffield and, in the same instrument containing the revocation, appointed Douglas S. Heslep as deputy prosecuting attorney of Phillips county. This instrument of appointment was duly approved by the circuit judge on August 14, 1943, and Heslep took the proper oath on that day, and the instrument and oath were filed and recorded, and Heslep undertook the performance of his duties.

On September 2, 1943, Sheffield, as a citizen and taxpayer and also as deputy prosecuting attorney, filed suit against Heslep in the Phillips chancery court; and Sheffield alleged: (1) His own appointment for the full time stated, and (2) his continued performance of the duties as deputy prosecuting attorney, and (3) the invalidity of the attempted revocation by Moody, and (4) Heslep's alleged disqualification to serve as deputy prosecuting attorney, because Heslep was an elected member of the General Assembly of the state of Arkansas for the period from January 19, 1943, to December, 1944, and was thus disqualified under the Constitution from accepting the appointment as deputy prosecuting attorney. Sheffield prayed that Heslep be enjoined from interfering with Sheffield in performing the duties and collecting the fees as deputy prosecuting attorney. Heslep, in his demurrer, claimed that the complaint did not state facts sufficient to constitute a cause of action.

It should here be mentioned that Sheffield joined W. G. Dinning, Jr., as a defendant in the suit, alleging that Dinning had assisted Heslep in handling cases in the municipal court. Dinning filed an answer disclaiming the deputy prosecuting attorneyship, for himself or anyone else and stated that he had only acted as an accommodation to Heslep. This answer of Dinning seems to have been treated by all parties as a complete disclaimer; so we treat the cause as one between Sheffield and Heslep.

The chancery court sustained the demurrer of Heslep, and Sheffield's complaint was dismissed upon his refusal to plead further. This appeal challenges the correctness of the action of the chancery court in sustaining the demurrer. Many interesting questions are raised, among others being: (a) Whether the deputy prosecuting attorneyship is an office or merely an employment, and (b) whether Heslep is ineligible to serve as deputy prosecuting attorney because of his status as a member of the General Assembly of the state of Arkansas as that status is affected by art. IV of the Constitution and § 10 of art. V of the Constitution. For the reasons hereinafter stated we forego a decision on either of these matters and discuss only the two points hereinafter mentioned.

I. Is Sheffield Still the Deputy Prosecuting Attorney in Phillips County? This involves the question of whether the revocation of the appointment of Sheffield is a valid revocation and we hold that the answer to this question is found in the last clause of § 10888 of Pope's Digest which section reads: "Such deputy shall receive no fees or salary from the state for his services and may be removed at any time by the prosecuting attorney appointing him."

This was § 3 of act 59 of 1893 and § 6012 of Sandels and Hill's Digest of 1894, and § 6391 of Kirby's Digest of 1904, and § 8311 of Crawford & Moses' Digest of 1921. In all the various changes in the law since 1893 concerning the appointment and duties of deputy prosecuting attorneys this quoted section has remained unchanged. Act 80 of 1895, act 220 of 1905, act 492 of 1919, and act 286 of 1937 -- each and all -- left undisturbed the right of the prosecuting attorney to remove his deputy at any time. The fact that the appointment of Sheffield stated that it was from January 6, 1943, to December 31, 1944, could not repeal the statute which gave the prosecuting attorney the right to remove a deputy at any time. The relationship of a prosecuting attorney to his deputy is necessarily so close that the Legislature wisely provided that the prosecuting attorney had the right to remove his deputy at any time. In Cobb v. Scoggin, 85 Ark. 106, 107 S.W. 188, a prosecuting attorney was alleged to have made a contract with his deputy for the division of the fees, and the deputy sued for an accounting. This court held that the duties and fees of the deputy prosecuting attorney were fixed by statute and that an agreement to vary the statute was contrary to public policy, and was therefore void. Likewise, in the case at bar, the attempt (if such there was) to appoint a deputy for a fixed period without right of revocation would vary the statute and be contrary to public policy and therefore void.

The cases hold that a bond required by statute is read in the light of the statute, and the stautory...