State Ex Rel. Mitchell v. Medler

• Decision Date: 14 April 1913
• Citation: 131 P. 976,17 N.M. 644
• Parties: STATE EX REL. MITCHELL ET AL.v.MEDLER, DISTRICT JUDGE, ET AL.
• Court: New Mexico Supreme Court

17 N.M. 644

131 P. 976

STATE EX REL. MITCHELL ET AL.

v.MEDLER, DISTRICT JUDGE, ET AL.

Supreme Court of New Mexico.

April 14, 1913.

Syllabus by the Court.

An action for the removal of an officer from office, under the provisions of chapter 36, Laws of 1909, is a civil, and not a criminal, proceeding.

The words “immediately set down for trial,” as used in section 12, c. 36, Acts 1909, are not peremptory, but secure merely to the public and the defendant a preference of right of trial over other cases, and impress upon the proceeding as much expedition as within the power of the court (citing 4 Words & Phrases, 3403).

A writ of prohibition is not available as a writ of error, but is only available where there is a lack of jurisdiction.

Proceeding for a writ of prohibition by the State, on the relation of James P. Mitchell and others, against Edward L. Medler, Judge of the District Court of Lincoln county, and such court. Alternative writ of prohibition discharged.

As used in Laws 1909, c. 36, § 12, providing that an action for removal of an officer must be “immediately set down for trial,” the words quoted secure merely to the public and the defendant a preference of right of trial over other cases.

Holt & Sutherland, M. B. Thompson, and N. C. Frenger, all of Las Cruces, for relators.

Wade & Wade and Llewellyn & Llewellyn, all of Las Cruces, H. B. Hamilton, of Carrizoza, J. H. Paxton, of Las Cruces, and F. W. Clancy, of Santa Fé, for respondents.

PARKER, J.

This is a proceeding for a writ of prohibition against the district court of Lincoln county and the judge thereof, seeking to restrain them from entertaining jurisdiction of a cause there pending. It appears that the relators are the duly elected, qualified, and acting trustees of the town of Las Cruces, N. M. On February 22, 1913, in the district court of Dona Ana county, the grand jury of said court returned into open court a presentment or accusation charging the said relators with certain delinquencies as such trustees therein specified. Upon the coming in of the presentment, Judge Medler issued an order for the service of a copy of the same upon the relators, together with a notice to be and appear before said court on the 3d day of March, 1913, which was done. Upon the return day, a demurrer was interposed by the relators to the presentment, upon various grounds, which was overruled, and afterwards a motion was filed to make the presentment more definite and certain, which was likewise overruled, and afterwards an additional demurrer was filed and overruled by the court. It is alleged in the petition for the writ that the court required the relators to plead “guilty” or “not guilty” to the presentment, but this fact is denied by the respondents. The plea of “not guilty,” however, was entered. Thereupon counsel for the state in said cause moved the court for a change of venue of the cause to some other county, for the reason that a fair and impartial trial could not be obtained in the county of Dona Ana. This motion was sustained by the court, and a change of venue granted to Lincoln county, and the causes set down for trial in that county for March 19, 1913. Thereupon relators filed a demand for an immediate trial, and objected to any continuance of the cause to any future date or time, and objected to the change of venue and the setting of the cause for trial in Lincoln county on March 19th, and objected to the discharge of the jury theretofore in attendance upon the regular term of the court in Dona Ana county after the return of the accusation in court, and urged that the court in so discharging the jury, and so continuing the cause, had wholly lost jurisdiction over the defendants and the subject-matter of the action. This motion and objections were overruled by the court.

The proceeding was instituted in pursuance of the provisions of chapter 36 of the Laws of 1909. This act provides six different causes for removal of officers of various kinds, among whom are the relators. The act provides for a presentment by the grand jury to the district court of the county in and for which the officer accused is elected. The pertinent provisions are as follows:

“Sec. 5. The accusation must state the offense charged in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.”

“Sec. 8. The defendant may answer the accusation either by objecting to the sufficiency thereof, or any portion thereof, or by denying the truth of the same.”

“Sec. 13. The trial must be by jury and conducted in all respects in the same manner as a trial on an information or indictment for a misdemeanor.”

“Sec. 14. The form of verdict of the jury in such cases shall be ‘guilty’ or ‘not guilty.’ ”

“Sec. 15. Upon a conviction the court must pronounce judgment that the defendant be removed from office; and the judgment must be entered upon the minutes assigning therein the causes of removal.”

“Sec. 17. From a judgment of removal, appeal may be taken to the Supreme Court in the same manner as from a judgment in a civil action, but until such judgment is reversed, the defendant is suspended from his office, and pending the appeal, the office must be filled as in case of vacancy.”

“Sec. 10. All matters of procedure not otherwise herein provided for shall be governed by the Code of Criminal Procedure.”

“Sec. 16. The district attorney and the defendants are respectively entitled to such process as may be necessary to enforce the attendance of witnesses as upon a trial of an information or indictment.”

“Sec. 7. The defendant must appear at the time appointed in the notice and answer the accusation unless for sufficient cause the court has assigned another date for that purpose. If he does not appear, the court may proceed to hear and determine the accusation in his absence.”

“Sec. 12. As soon as the case is at issue, it must be immediately set down for trial and shall have precedence over all other cases on the docket.”

The argument of relators is based upon the following propositions:

(1) The proceeding is a criminal proceeding, and therefore, when the court changed the venue of the cause from Dona Ana county to Lincoln county, upon the application of the state and over the protest of relators, it lost jurisdiction of the parties and subject-matter, and the district court of Lincoln county acquired no jurisdiction thereof.

(2) The relators were entitled to an immediate setting of the case for trial, and when the court discharged the jury then in attendance upon the court, and changed the venue of the cause to Lincoln county, the court thereby lost jurisdiction to further entertain the proceeding.

(3) The presentment or accusation does not state facts sufficient to constitute a cause of action, and therefore the court did not acquire jurisdiction of the subject-matter.

[1] 1. The act in question is a curious, but by no means an unusual, conglomeration of provisions extracted from the principles of the civil and criminal law. Various states have acts quite similar in provisions, including California, Utah, Idaho, the Dakotas, and others. The determination of whether a proceeding instituted under a statute of this kind is a criminal or civil one has varied in the different states, and various reasons have been assigned why the proceeding has in one instance been held to be a criminal proceeding, and in another instance a civil proceeding, and in one or more instances a special proceeding. The divergence of opinion as to what a proceeding of this kind really is will be found to arise, we think, out of some peculiar feature of the statute in a given state not common to that of others.

For instance, in California the statute provides in substance the same as ours as to procedure and the effect of the proceedings, with this exception: That in that state the statute provides that, in addition to the judgment of removal from office, the court shall award judgment of $500 in favor of the informer. This judgment for $500 is construed by that court as in the nature of a fine, and consequently in that state they hold that the proceeding is criminal. Kilburn v. Law Judge, 111 Cal. 237, 43 Pac. 615. It is likewise provided in the Penal Code of California that “a crime or public offense is an act committed or omitted in violation of the law forbidding or commanding it, and to which is annexed, upon conviction thereof, the following punishment: * * * (4) Removal from office.” For this reason, also, they hold in California that the proceeding is criminal. Wheeler v. Donnell, 110 Cal. 655, 43 Pac. 1.

In Idaho they have the same provision in regard to a judgment for $500 in favor of the informer. Notwithstanding this provision, it is held in that state that the proceeding is not a criminal proceeding, and is not intended for punishment, but is intended to protect the people from corrupt or incompetent officials. Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502. The court says: “The right of the Legislature to provide for the summary removal of incompetent or unfaithful officers is no new doctrine; and such legislation is on lines distinct from that which provides for punishment for extortion, or the right of recovery by the injured party of the sum wrongfully procured by an official through color of office. It arises from the exigencies of government, and, if its enforcement is to be obstructed by all the delays and embarrassments incident to a jury trial, the aim and purpose of the law would be entirely defeated.”

In South Dakota it is said: “The necessity of the resolution, passed upon mature deliberation at a meeting of the board, to the effect that the charge be made and the action be instituted, is apparent, when we consider the grave consequences of a prosecution under a provision of law by which the accused may be summarily suspended from office by an order of the court, before trial, and at any...