State ex rel. Thompson v. Reichman

• Decision Date: 11 October 1916
• Citation: 188 S.W. 597,135 Tenn. 685
• Parties: STATE EX REL. THOMPSON, ATTY. GEN., v. REICHMAN.
• Court: Tennessee Supreme Court

188 S.W. 597

135 Tenn. 685

STATE EX REL. THOMPSON, ATTY. GEN., v. REICHMAN.

Supreme Court of Tennessee.

October 11, 1916

Appeal from Chancery Court, Shelby County; F. H. Heiskell Chancellor.

On petition for rehearing. For former opinion, see 188 S.W. 225. Petition dismissed.

G. T Fitzhugh, of Memphis, and F. M. Thompson, Atty. Gen., for appellant.

T. K Riddick and C. M. Bryan, both of Memphis, for appellee.

FRIERSON Special Judge.

In a very earnest petition to rehear we are asked to reconsider our opinion in which it was held that the defendant should be removed from the office of sheriff of Shelby county.

When the cause was heard three members of the court were absent and their places occupied by special judges. In view of this fact, an oral argument of the petition has been permitted, and the conclusions now announced reached by the court, composed of four regular members and the writer sitting as a special judge.

As counsel seem to be under some misapprehensions, we will restate briefly what was decided.

The facts which we held justified defendant's removal were these:

(1) During the Tri-State Fair, which was held in September, 1914, in Shelby county outside the corporate limits of the city of Memphis, intoxicating liquors were sold openly on the fair grounds, and he was present and took no steps to prevent it, although he had previously said that to permit it would be to prostitute his office.

(2) During his term as sheriff, although, with the exception above stated, he made an honest effort to enforce the liquor laws in the rural districts, he did nothing toward enforcing them in the city of Memphis, except to serve such process as was placed in his hands, in spite of the fact that during at least a part of the time there were a great many open saloons running, and he knew that during a portion of his term the city authorities were doing nothing either to prevent or punish violations of the liquor laws, and during another part of his term they were merely arresting liquor dealers, requiring, in each case, the payment of $50 to the city, and binding no one over to the grand jury, but leaving offenders undisturbed in their places of business, and immune from punishment under the laws of the state.

None of these facts have been challenged by the petition to rehear or the argument in support of it except it is insisted that, though liquor was being sold in many places, there is "no definite and sufficient proof" that any of these places were open saloons, or, if so, that defendant knew of them. But this contention does not deny that he knew that the city authorities were, in effect, shielding numerous offenders from prosecution by exacting tribute to the city and leaving them free to continue their unlawful business. He, therefore, knew that, to the extent of protecting them from punishment in the state courts, the city officials were in league with the offenders. We are, however, entirely satisfied that, at least for a considerable time before this proceeding was commenced, there were many open saloons in Memphis, not a few of them in the business section of the city, and some of them being conducted with such openness that sales over the bar could be observed from the street. The record shows that there were numerous places in Memphis where complete strangers could and did go, and, without question or difficulty, purchase intoxicating drinks, and have them served just as such drinks are ordinarily purchased and served in saloons, and that many of them had all the well-known indicia of open saloons. And the evidence leaves no doubt that these facts were generally known in the community. We have accepted as true defendant's statement that he was not in a saloon during his term and did not actually see a sale of liquor. Indeed we have found, in the record, no reason to doubt his entire truthfulness as a witness. But his testimony, as a whole, admits a knowledge that the city authorities were permitting liquor dealers to continue their business upon the payment of an occasional $50, and contains no denial of the circumstances shown from which he could have had no doubt that these laws were being ignored and extensively violated. And the slightest effort would have given him actual knowledge of the conditions. The saloons were as open to him as to the public. In entering them, he would no more have been a trespasser than any other citizen. The record satisfies us that the persons in charge of these places felt perfectly secure from interference by the sheriff or his deputies, and that their appearance would have caused no suspension of operations and they could easily have seen what the other witnesses saw. The conclusion must be that he did not see open saloons and liquor sales because it was not his policy to see them. That this was, in fact, his attitude is obvious from the testimony that on one occasion he learned that the city authorities had arrested, for liquor selling, the keeper of a place where some of his deputies were accustomed to eat lunch, and advised them not to go there any more. Under these circumstances it cannot be unfair to hold him to the duties which rest upon a sheriff who knows that saloons are being run openly in his county. We have accordingly based his removal upon his total and intentional neglect of any effort to suppress saloons or other places where liquor was sold openly.

We have not undertaken to determine what degree of failure to suppress bootlegging or other secret methods of selling liquor would justify the removal of a sheriff. It is sufficient now to say that the law is not unreasonable and does not require impossibilities of the sheriff any more than of any other person. The inquiry always must be whether he has made an honest and reasonably intelligent effort to do his duty. If he has done this, the courts will not remove him, though his efforts may not have been wholly successful. In other words, his right to hold his office depends upon the good faith of his efforts rather than upon the degree of his success. The fact that a few or many violations of the law have occurred in his county will never, without more, justify his removal. His good faith, or lack of it, must be determined by the circumstances of each case. In the present case we are relieved of the necessity of going into these questions, because we are dealing with a defendant who expressly admits facts which show that, so far as the city of Memphis is concerned, he had every reason to believe that the law was being constantly violated and made no effort to do anything.

In concluding that the facts stated above required defendant's removal, we made the following rulings as to the duties of a sheriff:

(1) He is the chief conservator of the peace in his county and expressly required to keep the peace, and to prevent and suppress public offenses and breaches of the peace.

(2) Ordinarily he may rightfully assume that the police officers of incorporated towns and cites will do their duty, and hence will be guilty of no serious neglect of duty if he gives but little attention to police matters in such places. But if he knows, or has reason to believe, that they are neglecting their duty or are in league with offenders, his duties are the same as in the rural districts.

(3) He is not a mere process server, but his duties require initiative on his part in the enforcement of laws against public offenses. It is therefore his duty to exercise the powers conferred upon him, and to use the means provided by law to accomplish the prevention and suppression of public offenses.

(4) He must use a reasonable degree of diligence to inform himself of conditions in his county, and will be derelict if he shuts his eyes to what is generally known in the community, or purposely avoids information, easily acquired, which will make it his duty to act.

(5) If he has notice of any public offense, it is his duty to act in its prevention.

With respect to the means which the law affords for the performance of these duties, we held:

(1) For any public offense committed in his presence the sheriff may, without a warrant, arrest and take before a justice of the peace the offender for punishment.

(2) For a misdemeanor committed, but not in his presence, he has no authority to arrest without a warrant.

(3) To prevent any offense, which is also a breach of the peace, threatened in his presence, he may arrest without a warrant and use such force as may be reasonably necessary to prevent the threat being carried into execution.

(4) If he knows or has reason to suspect that any person is armed for the purpose of committing certain offenses, he may arrest without a warrant and take before a justice of the peace such person, to the end that a bond to keep the peace may be required.

(5) Except as just stated, he is in no case authorized to make an arrest without a warrant, upon suspicion or information received from others that a misdemeanor, whether also a breach of the peace or not, has been committed or is about to be committed.

(6) He has no authority to swear out a warrant merely upon facts of which he has been informed by others. In such cases he may report the matter to the grand jury, with the names of his informant and such other witnesses as may be known to him.

(7) But if he knows of his own knowledge such facts as reasonably make a case, he may himself swear out a warrant and then arrest the offender.

The authorities were cited in our former opinion. And the rulings as stated are not now questioned, except in so far as they impose upon the sheriff the duty of taking the initiative. It is conceded that his powers are correctly set out above. But it is denied that he is under any positive duty to...