Speer v. Wood

• Citation: 193 S.W. 785,128 Ark. 183
• Decision Date: 26 March 1917
• Docket Number: 289,253
• Parties: SPEER v. WOOD
• Court: Supreme Court of Arkansas

193 S.W. 785

128 Ark. 183

SPEER v. WOOD

No. 289, 253

Supreme Court of Arkansas

March 26, 1917

Prohibition to Garland Circuit Court; Scott Wood, Judge; writ ordered.

Writ of prohibition awarded.

Rector & Sawyer and C. T. Cotham, for petitioner.

1. The circuit court had no jurisdiction to remove petitioner from office; its action was without authority and void. The Act March 9, 1877, is unconstitutional and void. Impeachment and address are the only means for removing State officers. Art 7, § 27, Const.; Ib. Art. 15; 85 Ark. 89; 32 Cyc. 689; Throop on Pub. Officers, par. 341-3, 392; 3 Mete. (Ky.), 237; 11 La.Ann. 437; 6 Bush, (Ky.) 1; 79 Ky. 42; Cooley Const Lim. (7 Ed.) 99; 29 Cyc. 1414; Wharton on Cr. Law, Vol. 3 (11 Ed.), 2088; Mechem on Public Officers, par. 475; 3 Brew. 526; 85 Minn. 41; 23 A. & E. Enc. 431; 54 Ala. 226; 3 Cowan, 703; 54 N.H. 154.

2. The new statute authorizing suspension is an ex post facto law as applied to petitioner. 3 Dall. 386; 33 So. 209; Sedgw. on Stat. & Const. Law, 557, 909; Pomeroy Const. Law, 532-5; 90 N.Y.S. 134; 170 U.S. 351. See also 49 Ark. 503; 54 Ala. 599.

Martin Wootton & Martin, for respondent.

The Act is not unconstitutional. The Act merely amends Kirby's Digest, §§ 7992-4. Art. 15, § 1, etc.; Kirby's Digest, § 2449, etc; Art. 27, § 7, Const.; Ib. Art. 3, § 2; Art. 6, § 12; Art. 6, § 22; Art. 3, § 6; Kirby's Digest, § 3452.

The Legislature has all powers not expressly or by necessary implication, taken from it. 6 R. C. L., §§ 43, 45. To justify a court in declaring an Act unconstitutional the case must be clear. 6 R. C. L., § 73. The Act does not conflict with Art. 15, Constitution. One mode of removal does not exclude all others. Impeachment and address are not the only mode. 70 So. 61; 68 Id. 621; 1 Miss. 146; 79 Ky. 42; 3 Brev. 526; etc.

Like legislative Acts have been sustained under similar constitutional provisions. 159 P. 985; 15 Am. Dec. 322; 91 S.W. 477; Am. Ann. Cases, 1916, A-1148; 42 Am. Rep. 135.

The Act is not in conflict with Art. 7, § 27, Const., and is not an ex post facto law. Suspension is a mere incident to the right of removal upon conviction. 81 Ark. 60; 32 Id. 242; 36 P. 502; 104 S.W. 1058; 6 R. C. L., § 26, 34; 81 Ark. 60-2; 94 Neg. 445; 50 L. R. A. (N. S.) 277; Am. Ann. Cases, 1914 B. 519. Under these authorities the petitioner has no right of property in the office from which he was suspended, and the Act of suspension takes away from him no legal rights, nor imposes upon him a legal burden or inflicts a penalty. The Act is valid.

MCCULLOCH C. J. HART, J., concurring.

OPINION

MCCULLOCH, C. J.

The petitioner, G. H. Speer, is prosecuting attorney in and for the Eighteenth Judicial Circuit, and is under indictment returned by the grand jury of Garland county charging him with criminal misconduct. The circuit court is about to enter an order suspending the petitioner from office during the pendency of the indictment, and a writ of prohibition is sought to restrain the court from entering the order. The power to suspend petitioner from the office of prosecuting attorney is asserted under the terms of a statute approved March 1, 1917, amending sec. 7992 of Kirby's Digest, which before being amended read as follows: "Whenever any presentment or indictment shall be filed in any circuit court of this State against any county or township officer for incompetency, corruption, gross immorality, criminal conduct amounting to a felony, malfeasance, misfeasance or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the court is continued on the application of the defendant." The amendment merely incorporates the words "prosecuting attorney" so as to make the provisions of the Act apply to that officer. The indictments against petitioner were returned by the grand jury prior to the enactment of the statute referred to, and it is contended that even if the statute is valid so far as it operates prospectively it cannot be given retroactive effect so as to apply to proceedings instituted prior to its passage. We pretermit discussion of the question of retroactive effect of the statute and also the suggestion that the indictments against petitioner each fail to charge a public offense, and we turn immediately to the real question at issue, whether the statute is valid in attempting to authorize the removal of a prosecuting attorney by judgment of the circuit court.

The contention of the petitioner is that the Constitution provides adequate methods for the removal of public officers, which are exclusive and do not contain authority for the circuit court to remove a State officer, and that it is beyond the power of the Legislature to confer such authority. It is contended on the other hand by the respondent that the constitutional provisions on the subject only have reference to removal from office, and not being exclusive, leave the Legislature possessed of full power to provide for removal of officers as a part of the punishment for crime. The Constitution of 1874, art. 15, provides for the impeachment of State officers before the senate sitting as a court of impeachment, the sole power of initiating the proceedings being vested in the House of Representatives. It is provided that the impeachment "whether successful or not, shall be no bar to an indictment." There is a further provision in that article for the removal of State officers by the governor upon the joint address of two-thirds of the members elected to each house of the General Assembly. Those provisions, it is to be observed, apply only to State officers, and it has been decided by this court that prosecuting attorneys are State officers within the meaning of the constitutional provisions. Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380. Sec. 27, art. 7, of the Constitution of 1874, reads as follows: "The circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office."

It is thus seen that there is a constitutional scheme provided for the removal of all officers, State, county and township. It is true that the method of impeachment before the General Assembly is a peculiar one, not analogous to other proceedings in civil or criminal jurisprudence, and the Constitution expressly provides, as before stated, that an impeachment shall not constitute a bar to indictments for any crime involved in the charge. The provision for impeachment of State officers might, if standing alone in the Constitution, be susceptible to the construction that it is not intended as an exclusive method of removal of such officers, but when considered in its relation to the other provisions prescribing a different method of removal of county and township officers, it is evident that the framers of the Constitution intended to erect an exclusive scheme of dealing with the subject of removals from office. The other provision with respect to the power of the circuit court was not intended merely as a method of removal but also for the purpose of adding, to that extent, to the punishment of the criminal offense committed by the public official. Such is the construction placed on that section by this court. Haskins v. State, 47 Ark. 243, 1 S.W. 242. In that case the proceeding was against a county officer, but it was sought to remove him by information filed by the prosecuting attorney, and this court held that when the alleged cause of removal constituted an indictable offense, the proceeding must be by indictment, and not by information. That construction of the constitutional provision necessarily stamps it as one for the punishment of crime by removal from office. Unless we treat the provisions referred to as exclusive, then there is no effect at all given to the one concerning the jurisdiction of the circuit court to remove county and township officers, and it may as well have been omitted. The circuit court is, under the Constitution, the general residuum of all jurisdiction not otherwise vested, and in the absence of any constitutional provisions on the subject the Legislature would have power to authorize the circuit court to remove county and township officers. That section was, therefore, inserted, not merely as a grant of power, but also as a limitation, and we must so construe it to give it any effect at all. If, in other words, the framers of the Constitution had intended to leave intact the legislative power to remove officers both State and county as a punishment for crime, it would have been unnecessary to incorporate sec. 27 of art. 7. Judge Cooley laid down as one of the rules of construction "that when the Constitution defines the circumstances under which a right may be exercised or a penalty imposed, the specification is an implied prohibition against legislative interference to add to the condition, or to extend the penalty to other cases." (Cooley's Const. Lim. 7th Ed. p. 99). That rule of construction has been followed in many decisions, notably by the Kentucky court of appeals in the case of Lowe v. Commonwealth, 60 Ky. 237, 3 Met. 237, where it was said "that wherever the Constitution has created an office and fixed its term, and has also declared upon what grounds and in what mode an incumbent of such office may be removed before the expiration of his term, it is beyond the power of the Legislature to remove or suspend him from office for any other reason or in any other mode...