State v. Hill

• Decision Date: 05 June 1893
• Parties: STATE v. HILL. STATE v. BENTON.
• Court: Nebraska Supreme Court

37 Neb. 80

55 N.W. 794

STATE

v.HILL.

STATE

v.BENTON.

Supreme Court of Nebraska.

June 5, 1893.

Syllabus by the Court.

1. The power of impeachment conferred by the constitution upon the legislature extends only to civil officers of the state, and this power cannot be exercised after the person has gone out of office.

2. Private citizens are not amenable to impeachment.

3. The legislature has no authority to prefer articles of impeachment against ex-officials.

Original actions before the supreme court, brought for impeachment of Thomas H. Benton, late auditor of public accounts, and for impeachment of John E. Hill, ex state treasurer. Dismissed.P. H. Barry, C. D. Casper, and Geo. R. Colton, Managers. Geo. Doane, S. B. Pound, W. L. Greene, and G. M. Lambertson, for prosecution.

R. D. Stearns and John H. Ames, for defendant Benton.

J. H. Broady, for defendant Hill.

NORVAL, J.

The above-entitled cases present for decision the same question, and, for the sake of brevity, will be considered and disposed of together.

The legislature, on the 7th day of April, 1893, adopted articles of impeachment against the respondent Thomas H. Benton, late auditor of public accounts, charging him with having committed certain official misdemeanors while he was discharging the duties of the office aforesaid. On the 6th day of April, 1893, articles of impeachment against the respondent John E. Hill, ex state treasurer, for misdemeanors in office, alleged to have been committed by him during the time he was treasurer of the state, were adopted by the legislature. The articles of impeachment against each of the respondents were presented to and filed in this court on the 10th day of April, 1893. Subsequently a plea to the jurisdiction was filed by each respondent, the two being substantially alike, which alleges, in effect, that this court should not take further cognizance of said articles of impeachment exhibited and presented against him, because the respondent, at the time of the adoption of the same, and when the first resolution of impeachment against him was presented to the house of representatives, and at the time of the investigation which led up to said impeachment, as well as at all times since, and for a long time before, the first action in relation to said impeachment was taken and had, was not an officer of this state, but that he then was, and ever since had been, and now is, a private citizen of the United States and of this state; that the office to which he had been elected, and which he had filled, expired on the first Thursday after the first Tuesday in January, 1893, and that at the general election in 1892 his successor was duly elected, who qualified, was inaugurated, and installed into the office, as the successor of the respondent, on the 14th day of January, 1893, and that not until long after the date last aforesaid was the investigation commenced which resulted in said impeachment.

The question presented for our investigation is this: Should the plea to the jurisdiction be sustained? The proposition, stated in a different form, is: Has the legislature the power to prefer articles of impeachment against a party after his term of office has expired, he at the time of such impeachment being a private citizen, and not an officer of the state? The question is now for the first time submitted to this court for its consideration and judgment. An examination of the provisions of the constitution of Nebraska on the subject of impeachment is necessary in order to arrive at a correct decision. By section 14, art. 3, of the constitution the exclusive power of impeachment is conferred upon the two houses of the legislature when in joint convention. The section also declares that “a notice of an impeachment of any officer other than a justice of the supreme court shall be forthwith served upon the chief justice by the secretary of the senate, who shall thereupon call a session of the supreme court to meet at the capitol within ten days after such notice to try the impeachment. A notice of an impeachment of a justice of the supreme court shall be served by the secretary of the senate upon the judge of the judicial district within which the capitol is located, and he thereupon shall notify all of the judges of the district court in the state to meet with him within thirty days at the capitol, to sit as a court to try such impeachment, which court shall organize by electing one of its number to preside. No person shall be convicted without the concurrence of two-thirds of the members of the court of impeachment, but judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold and enjoy any office of honor, profit, or trust in this state; but the party impeached, whether convicted or acquitted, shall nevertheless be liable to prosecution and punishment according to law. No officer shall exercise his official duties after he shall have been impeached and notified thereof, until he shall have been acquitted.” Section 5, art. 5, provides that “all civil officers of this state shall be liable to impeachment for any misdemeanor in office.” Section 3, art. 16, reads as follows: “Drunkenness shall be cause of impeachment and removal from office.” The foregoing sections contain every provision to be found in the constitution relating to impeachment. That instrument designates the persons who may be impeached, namely, “all civil officers of this state.” It likewise specifies the grounds for impeachment. The constitution does not, in express terms, say that a private citizen can be impeached, nor does it contain words from which such an inference can be drawn. On the other hand, it is plain that the legislature has no power to impeach a person who has never held any public office in this state. It is civil officers who are amenable to impeachment. Section 5, art. 5, so declares. None others were intended to be included by the framers of the constitution. This is clearly manifest from the language of the instrument. Section 5, art. 5, makes any misdemeanor in office an impeachable offense; and section 3, art. 16, declares that drunkenness shall be cause for removal from office. These are the only grounds for impeachment enumerated in the constitution. Thus it will be seen that acts committed by a person while in office are alone impeachable. The provisions of section 14, already quoted, are not only in harmony with this construction, but they give strength to it. That section specifies the tribunals which shall try impeachments, and the person upon whom notice of the proceedings shall be served. It requires “that notice of an impeachment of any officer other than a justice of the supreme court shall be served upon the chief justice by the secretary of the senate, who shall thereupon call a session of the supreme court to meet at the capitol within ten days to try the impeachment.” It is further provided that, in case of the impeachment of a justice of the supreme court, notice thereof must be served upon a judge of the district court of the county in which the capitol is located, and such impeachment is to be tried before all of the judges of the district courts in the state. While the constitution makes ample provision for the trial of articles of impeachment, exhibited by the legislature against officers, it neither designates the tribunal which shall try impeachment proceedings against a private citizen, nor does it specify the person to whom notice in such a case shall be given. No power is conferred by the constitution upon this court nor upon any other tribunal, either in direct terms or by implication, to try an impeachment proceeding against a person who has never held an office. In Great Britain all subjects of the realm, whether in or out of office, are impeachable; but such rule does not prevail in this country. Here none but public officers are subject to impeachment. Story, Const. § 790; 9 Amer. & Eng. Enc. Law, 953.

Judge Story, in his valuable Commentaries on the Federal Constitution, after quoting section 4, art. 2, of that instrument, which reads: “The president, vice president, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,”--says: “From this clause it appears that the remedy by impeachment is strictly confined to civil officers of the United States, including the president and vice president. In this respect it differs materially from the law and practice of Great Britian. In that kingdom, all the king's subjects, whether peers or commoners, are impeachable in parliament; though it is asserted that the commoners cannot now be impeached for capital offenses, but for misdemeanors only. Such kind of misdeeds, however, as peculiarly injure the commonwealth by the abuse of high offices of trust, are the most proper, and have been the most usual grounds for this kind of prosecution in parliament. There seems a peculiar propriety--in a republican government, at least--in confining the impeaching power to persons holding office. In such a government all the citizens are equal, and ought to have the same security of a trial by a jury for all crimes and offenses laid to their charge, when not holding any official character. To subject them to impeachment would not only be extremely oppressive and expensive, but would endanger their lives and liberty by exposing them, against their wills, to persecution for their conduct in exercising their political rights and privileges. Dear as the trial by jury justly is in civil cases, its value as a protection against the resentment and violence of rulers and factions in criminal prosecutions makes it...