State v. Alcorn

• Decision Date: 14 November 1890
• Citation: 14 S.W. 663
• Parties: STATE <I>ex rel.</I> HICKMAN v. ALCORN.
• Court: Texas Supreme Court

Page 663

14 S.W. 663

STATE ex rel. HICKMAN v. ALCORN.

Supreme Court of Texas.

November 14, 1890.

Appeal from district court, Hemphill county; FRANK WILLIS, Judge.

Freema E. Miller, W. H. Grigsby, W. H. Woodman, and J. K. Little, for appellant. B. M. Baker and Davis & Harris, for appellee.

STAYTON, C. J.

This proceeding was instituted by the state to remove Robert Alcorn from the office of county and district clerk of Roberts county, on the ground that he had been guilty of willful official misconduct in that he had failed and refused to keep his office at the county-seat of the county. The case made by the pleadings is thus substantially stated in brief of counsel for appellee: "The petition alleged that prior to December 20, 1888, Roberts county was unorganized and attached to Wheeler county for judicial purposes, but that on said day a petition was filed with the commissioners' court for Wheeler county, with the requisite number of signatures, praying for the organization of said county, and thereupon said county was organized, and that an election was held on January 10, 1889, for the election of officers of said county and location of a county-seat therein, and the returns of that election were made to the commissioners' court of Wheeler county, and that said returns were duly canvassed by said court, the vote counted, and the town of Miami, in said county, declared to be selected as the county-seat thereof; and that for several months thereafter, the offices as well as the terms of the district and commissioners' court were held at the said town of Miami, but that the defendant had willfully, for several months, failed and refused to keep his office and records at Miami, but kept the same at Oran, another place in said county. There was attached to the petition, as an exhibit, a transcript of the orders of the commissioners' court of Wheeler county, which showed that at said election the town of Miami received 111 votes and the town of Bennett 56 votes, and that those representing the interest of said town of Bennett appeared before said court before the result was declared, and proposed to show fraud in the election, and that the town of Bennett received a majority of the votes cast at said election; but the commissioners' court refused to hear evidence of fraud, and were controlled alone by the face of the returns. The defendant answered that the town of Miami was more than five miles from the geographical center of Roberts county, and the town of Bennett within five miles of such center; and the town of Miami, having failed to receive two-thirds of the votes cast at said election, was not, and had never been, the county-seat; that at said election, the town of Bennett in fact received a majority of the votes cast, for that at precinct No. 2, where, according to the face of the returns, Miami received forty-eight votes and Bennett no votes, there were but two legal votes cast, the other forty-six being forged and fictitious votes, and that in said 111 votes counted for Miami there were included thirty-seven forged and fictitious votes, pretended to have been cast for said town in precinct No. 1; that thereafter, to-wit, on the 6th day of November, 1889, the commissioners' court for Roberts county, believing that there had been no selection for a county-seat, and that the county was without a permanent county-seat, at a regular term of said court passed an order declaring Roberts county to be an organized county, and that no permanent county-seat had been selected therefor, and directed the county judge, A. A. PARSELL, to order an election for the purpose of fixing and establishing a permanent county-seat for said county; and said county judge, pursuant to said order, on the 15th day of November, 1889, ordered an election to be held at the several voting precincts in said county for the purpose of locating and selecting a county-seat therefor, the election to take place on December 10, 1889, of which due notice was given. Pursuant to said order and notice, said election was held on December 10, 1889, and the returns thereof made to said county judge, and were by him canvassed, and the result thereof ascertained, declared, and entered in the minutes of said court, and that at said election the town of Oran, within less than five miles of the center of said county, was the only candidate, and, having received fifty-one votes, was adjudged to be the permanent county-seat for said county by an order entered upon the minutes of said court, and that the town of Oran is the same as Bennett, the name having been changed as a matter of convenience. As soon as the result of said election was declared, as aforesaid, the defendant was ordered by the said commissioners' court to remove and maintain his office at said town of Oran, and to keep the records of his office there, and since said order all of the offices in Roberts county have been held at Oran, as well as all the terms of the commissioners' court, and all the records of said county have been kept at said town, and the defendant has been advised and believes that the town of Oran is in fact the county-seat of said county, and that it was his duty to maintain his office there, and that, if he has been in error as to his duty, it was not willful or intentional." Plaintiff excepted to the answer, and the exceptions were sustained as to that portion alleging that Miami had not been selected by two-thirds of the votes polled, or even a majority of the legal votes polled, but were overruled as to that portion of the answer tending to show that the defendant acted in good faith.

The court charged the jury, in substance, that Miami was in fact the county-seat of Roberts county; but that, if the defendant in good faith believed that Oran was the county-seat, and such belief was not due to negligence or fault on his part, and if, pursuant to that belief, he held and maintained his office at Oran, he would not be guilty of official misconduct within the meaning of the law. It is stated in brief of counsel for appellant that it was agreed on the trial as follows: "(1) All of the allegations of fact in the petition, except those charging willfulness or bad faith on the part of defendant; (2) all of the allegations of fact in the answer, except those setting up good faith of the defendant, and except that Miami is more than five miles from the center of Roberts county," — were true. We find in the transcript what purports to be such an agreement, but it is not contained in the statement of facts, nor brought before us by bill of exception in such manner that it can be regarded as a part of the record. The statement of facts shows that some agreement as to proof made by the parties was offered in evidence, but that agreement was not copied into the statement of facts; but, from the record before us, the statement of facts, signed by the judge, contained the following words: "Clerk will here copy agreement as to evidence, filed May 23, 1890, in full." In pursuance of rule 82a, the clerk has simply copied, as it was his duty to do, the statement of facts signed by the judge. The agreement found in the record cannot therefore be considered for any purpose.

There was evidence other than the action of the commissioners' court directing appellee to keep his office at Oran, which tended to show that he was acting in good faith in so doing, under the belief that that place was in fact and in law the county-seat of Roberts county; and, under the issue submitted to the jury, there was a verdict in favor of respondent. The law makes it the duty of clerks of the district and county courts to keep their offices at the county-seats of their respective counties. Rev. St. art. 706. The constitution provides that clerks of district and county courts may be removed from office for official misconduct. Const. art. 5, § 24. The statute declares that, "by `official misconduct,' as used in this title with reference to county officers, is meant any unlawful behavior in relation to the duties of his office, willful in its character, of any officer intrusted in any manner with the administration of justice or the execution of the laws; and under this head of `official misconduct' are included any willful or corrupt failure, refusal, or neglect of any officer to perform any duty enjoined on him by law." Rev. St. art. 3393. It was the duty of appellee to keep his office at the county-seat, and, if he willfully failed, refused, or neglected to do so, was subject to removal.

The conduct of appellee, however, may have been unlawful, and in a general sense may have amounted to official misconduct; but this furnished no sufficient reason for his removal from...