State ex rel. Thompson v. Reichman

• Decision Date: 09 August 1916
• Parties: STATE EX REL. THOMPSON, ATTY. GEN., v. REICHMAN, SHERIFF. [a1]
• Court: Tennessee Supreme Court

188 S.W. 225

135 Tenn. 653

STATE EX REL. THOMPSON, ATTY. GEN., v. REICHMAN, SHERIFF. ^[a1]

Supreme Court of Tennessee.

August 9, 1916

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

Petition by the State, on the relation of F. M. Thompson, Attorney General, for the removal from office of J. A. Reichman Sheriff of Shelby County. From an order dismissing the petition, the relator appeals. Reversed, and decree for removal entered.

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

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

FRIERSON Special Judge.

This is a petition filed by the Attorney General of the state in the chancery court of Shelby county to remove the defendant from the office of sheriff of that county under the provisions of chapter 11, Acts 1915, entitled "An act to provide for the removal of unfaithful public officers, and providing a procedure therefor."

The petition contained many charges. Some of them, however, were considered by the chancellor insufficient, even if true, to warrant a removal and were stricken out. There was then a very full hearing on the remaining charges with the result that the chancellor held that no misconduct or neglect of duty sufficient to justify a removal was shown and dismissed the petition.

The charge of the petition which has been the subject of the chief controversy, relates to the laws against the sale of intoxicating liquors. It is stated in great detail. But the substance of it is that, during his term as sheriff, defendant has not only failed and neglected to enforce these laws, but, through an agreement or understanding with the officials of the city of Memphis, has permitted saloons to be run in violation of law.

Both parties introduced a great mass of evidence touching this charge. From a consideration of this evidence, we think the following facts are established with but little conflict between the witnesses. Since the passage of the act of 1909 extending the four-mile law (Laws 1909, c. 1), which made the sale of intoxicating liquors in Memphis unlawful, the handling of the liquor question in that city has assumed a new phase with each new act passed by the Legislature to secure the enforcement of the law. From 1909 to March 1, 1914, the law seems to have been entirely ignored. The saloons seem to have been recognized and, in a measure, regulated by the city officials. During this period, for a part of the years 1910 and 1911, the defendant was police commissioner of the city of Memphis. He knew the conditions, but made no effort to enforce the liquor laws. On the contrary, as he admits, he recognized the existence of saloons and assumed to regulate them by requiring that they close each night at midnight, and remain closed all day Sunday. This condition continued and the saloons seem not to have been disturbed from any source until March 1, 1914, when what is known as the "Nuisance Act" went into effect (Laws 1913 [2d Ex. Sess.] c. 2). Then began a period during which the only effort to enforce the law was through injunction bills filed by the District Attorney General or special counsel employed by the Governor. The city authorities still did nothing. But several hundred injunction bills were filed and a great many places closed and a large number of dealers were sent to the workhouse for violating the injunctions. Just what the conditions were during this period is the subject of some controversy, but we think it fairly appears that intoxicating liquors continued to be sold in many places in the city in varying degrees of openness. There was undoubtedly some effort at secrecy and concealment to guard against surprise by the special counsel in charge of the injunction suits and the officer working under him. But no danger seems to have been apprehended from any other source. Some places maintained bars; others did not. In many places liquors were served in the rear of barber shops, restaurants, and small grocery stores. In some lunch counters were used as blinds, and, in others, sales were made behind interstate shipping house signs. The main difference, perhaps, was that stocks of liquors were not kept conspicuously displayed, but were kept more or less concealed, or where they could be quickly removed.

These were the conditions in the city when, in August, 1914, defendant was elected sheriff, and on September 1, 1914, when he assumed the duties of that office. They remained unchanged until about February 1, 1915. During that time he did nothing toward enforcing the liquor laws in the city of Memphis except to serve the process from the chancery courts in some 300 injunction cases. There were, however, a number of roadhouses and other places outside of the city where liquors were being sold. These he seems to have endeavored to break up. He was advised by his counsel that he had no right to make searches or to arrest, without a warrant, for a misdemeanor, unless committed in his presence. But notwithstanding this, he had his deputies make a number of raids, arrest a good many people, and destroy a considerable quantity of liquor. He also, through his deputies, secured the indictment of a considerable number of persons for selling liquors outside of the city.

But, on January 29, 1915, the act for the removal of unfaithful officers, known as the "Ouster Law," went into effect. Immediately the defendant and the city officials held a conference. The mayor made a public announcement that the liquor laws would be enforced in Memphis. Defendant announced that, co-operating with the city officials, he would enforce the law in the county. And, for a short time, there seems to have been a very fair enforcement of the liquor laws in Memphis. But, soon after the passage of the ouster bill, the policy of enforcing the law through injunction suits was abandoned and nothing further was done in that line except to wind up the suits already commenced.

Then, about May 1, 1915, the city officials adopted a new policy. Through the police, lists were made of all the places in the city in which it was known that liquor was being sold. Each dealer was arrested, but if he would turn over to the arresting officer "a forfeit" of $50, he was left undisturbed in his place. If he did not appear at the city court, his $50 was forfeited to the city, and this ended the matter. If he appeared, he was fined $50. In neither event was he bound over to the grand jury. Defendant admits that he knew of this practice. Some effort is made to deny that it was understood that the periodical payment of this $50 would enable the dealer to continue his unlawful business without molestation. But it had this effect and we cannot doubt, from the record, that it was so intended and understood. Under this plan, Memphis again had fairly open saloons. In places there was still some secrecy. Some places were being run in violation of injunctions, and precautions had to be taken. Others were selling on the sly and trying to avoid paying an occasional "forfeit" of $50 to the city. But there were a great many open saloons.

These were the conditions prevailing during defendant's term of office and at the time the petition in this cause was filed. For misconduct and neglect of duty in permitting them to exist, the mayor and other city officials have been removed. State v. Crump, 134 Tenn. 121, 183 S.W. 505. The question now is whether they also furnish ground for removing defendant from the office of sheriff. If he was responsible for them or if they were due to his neglect of any duty which the law imposed on him, he is unworthy and must be removed. But if he has neglected no duty, if the law did not require him to do the things it is insisted he did not do, and we should remove him because of the conditions we have described, we would do judicial violence to the law--the worst kind of lawlessness.

For the state, it is insisted that it was his duty to suppress these lawless saloons, arrest the offenders and report them to the grand jury. For the defendant, it is insisted that he was under no duty to do detective service to discover violations of the law; that he had no authority to arrest for misdemeanors, without a warrant, unless the offense was committed in his presence; that it was not only not his duty, but would be unlawful for him to swear out a warrant on information; that no sales of liquor were made in his presence; and that, therefore, he neglected no duty which the law imposed on him when he failed to put an end to the conditions of which complaint is made.

To determine this issue, it is necessary to understand just what the duties of a sheriff are. The office of sheriff is a most ancient one. It carries with it, in America, all of its common-law duties and powers except as modified by statute. We have several statutes which bear on the question and which, taken together, set out the duties of the sheriff very much as they existed at common law.

Aside from the ordinary duties to execute and return process, to attend upon the courts, and to take charge of the jail, the following statutes, as set out in Shannon's Code, are applicable:

Sec. 452. "The sheriff and his deputies are conservators of the peace, and, to keep the peace, prevent crime, arrest any person lawfully, or to execute process of law, may call any person or summon the body of the county to their aid."

Sec. 6892. "Public offenses may be prevented by the intervention of the officers of justice (1) by requiring security to keep the peace; and (2) by suppressing riots, unlawful assemblies, and breaches of the peace."

Sec 6893. "Whenever the officers of justice are authorized to act in the prevention of public offenses, other persons who, by their command, act...