State v. Martin
| Decision Date | 12 October 1912 |
| Docket Number | 17,728 |
| Parties | THE STATE OF KANSAS, ex rel. JOHN S. DAWSON, as Attorney-general, etc., Plaintiff, v. RALPH MARTIN, as Sheriff, etc., Defendant |
| Court | Kansas Supreme Court |
Decided July, 1912.
Original proceeding in quo warranto.
Judgment of ouster.
SYLLABUS BY THE COURT.
1. OUSTER--Suspension from Office Pendente Lite. The title "An act providing for the removal of unfaithful public officers and providing a procedure therefor," is broad enough to cover a provision for the suspension of an officer prior to the final hearing in an action for his removal, and provisions imposing upon various officials new duties intended to aid in procuring the removal of officers guilty of misconduct.
2. OUSTER--Statute Valid--Constitutional Law. Assuming that an act providing a method for the removal for misconduct of all state, district, county, township and city officers (excepting judges of the supreme and district courts and members of the legislature) is inoperative as to the incumbents of state offices created by the constitution, because they can be removed only by impeachment, this consideration does not affect the validity of the act as to other officers.
3. OUSTER--Sheriff--Duty Under Prohibitory Law. Compliance by the sheriff with the statute requiring him to give information to the county attorney respecting violations of the prohibitory law is not excused by the fact that no action has been taken upon similar information previously given.
John S. Dawson, attorney-general, S. N. Hawkes, assistant attorney-general, S. M. Brewster, special assistant attorney-general, for the plaintiff; Keplinger & Trickett, of Kansas City, of counsel.
H. W. Currey, of Webb City, Mo., and Ferry, Doran & Dean, of Topeka, Edward M. Tracewell, William J. Moore, Andrew H. Skidmore, and Stephen L. Walker, all of Columbus, for the defendant.
The attorney-general brought this action against the defendant to oust him from his office as sheriff of Cherokee county, on account of the willful neglect of duties enjoined upon him by law. Upon a preliminary hearing the defendant was suspended. A motion was made to set aside the order of suspension on the ground that the statute under which the action was brought (Laws 1911, ch. 237) is unconstitutional. This motion was overruled, a memorandum opinion being filed in which it was said that the grounds of the holding would be stated upon the final decision. (The State, ex rel., v. Martin, 85 Kan. 879, 118 P. 1119.)
The objections made to the validity of the act are that its subject is not clearly expressed in the title (Const. art. 2, § 16); and that so much of it as relates to removing the incumbents of offices created by the constitution is ineffective because the constitutional provision for their removal by impeachment is exclusive, and that this forms such an essential part of the legislation that its invalidity makes the whole enactment void.
The title is "An act providing for the removal of unfaithful public officers and providing a procedure therefor." The body of the act contains a provision that in a proceeding for the removal of an officer he may be temporarily suspended pending the final decision, but only upon notice and hearing and a finding of good cause therefor. An order of suspension under such circumstances is a part of the procedure of removal and need not be separately mentioned in the title. New powers are given to various officials by other portions of the act, but as their ultimate purpose is to procure the removal of unfaithful officers, they are sufficiently covered by the title selected.
The act purports to provide for the removal, upon proof of misconduct, of all state, district, county, township or city officers, excepting justices of the supreme court, district judges and members of the legislature. The constitution provides that the incumbent of a state office created by that instrument may be removed by impeachment. (Const. art. 2, § 28.) It seems probable that the legislature can not provide for the removal of such an officer in any other manner. (Falloon v. Clark, 61 Kan. 121, 58 P. 990.) But assuming this portion of the act to be void, the validity of the remainder is not impaired. Considered as having relation only to those officers who are amenable to such regulation, the act is complete and unobjectionable, no part of it being dependent upon the provisions in relation to those who are immune. The legislature has expressed its purpose that all state, district, county, township and city officers (excepting judges of the supreme and districts courts and members of the legislature) should be removable by civil action. As to a certain class of state officers this turns out to be beyond its power. Clearly the desire to have these particular officers made subject to removal was not an inducement for the legislation as to the others. The legislature could in its pleasure (save for the section of the constitution referred to) have made the act applicable to any class or classes of officers. It did not need to include the county officers in order to reach the state officers. The situation is wholly different from that presented in such cases as Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 565, 46 L.Ed. 679, 22 S.Ct. 431. There one section of an act penalized certain conduct on the part of any person. Another section provided that certain classes of persons were exempt from its provisions. The section granting the exemption was held void on the ground that it resulted in a denial of the equal protection of the laws. The entire act was declared invalid because if enforced without the obnoxious section it would have produced a result not contemplated or desired by the legislature--the punishment of persons whom the law-makers did not wish to be punished.
Because the grounds of the ruling were not more fully stated at the time the motion to set aside the order of suspension was decided, a petition for a rehearing of that matter has been allowed to remain pending without action. It is now overruled, but in a petition for rehearing on the merits the defendant may present any of the questions involved.
The charges made against the defendant are substantially these:
1. That he knew of an effort to prevent the enforcement of the prohibitory law by raising a fund for the bribery of public officers, and took no steps to prevent its success.
2. That he executed a warrant which commanded him to seize all the intoxicating liquor to be found at a certain...
To continue reading
Request your trial
-
Myers v. United States
...State v. Henderson, 145 Iowa, 657, 124 N. W. 767, Ann. Cas. 1912A, 1286; Markey v. Schunk, 152 Iowa, 508, 132 N. W. 883; State v. Martin, 87 Kan. 817, 126 P. 1080; State v. Sheppard, 192 Mo. 497, 91 S. W. 477; State v. Sanderson, 280 Mo. 258, 217 S. W. 60; State v. District Court, 53 Mont. ......
-
Chapman v. Boynton
...attorney, State v. Bowden, 80 Kan. 49, 101 P. 654; no action taken on previous report, sheriff not excused thereby, State ex rel. v. Martin, 87 Kan. 817, 126 P. 1080. State v. Finch, 128 Kan. 665, 280 P. 910, 66 A. L. R. Laws 1891, c. 131: Sale of all liquors or drugs that will produce into......
-
State ex rel. Wyckoff v. Ross
... ... phrases. The precise question now under consideration was not ... raised in that case nor discussed in the opinion, but some of ... the cases cited on page 246 of 29 Wyo. particularly ... Robert Dollar Co. v. Canadian C. & F. Co., 220 N.Y ... 270, 115 N.E. 711, and State v. Martin, 87 Kan. 817, ... 126 P. 1080, sustain our view that general terms may be ... limited without erasing any certain words or phrases from the ... act. The subject is thoroughly discussed in the New York case ... just cited, and also in State v. Smiley, 65 Kan ... 240, 69 P. 199, 67 L. R. A ... ...
-
Wentz v. Thomas
... ... state highway commission of the state of Oklahoma, under ... and by virtue of the laws of the state of Oklahoma, and that ... she is in possession of ... Henderson, 145 Iowa, 657, 124 N.W. 767, ... Ann. Cas. 1912A, 1286; Markey v. Schunk, 152 Iowa, ... 508, 132 N.W. 883; State v. Martin, 87 Kan. 817, 126 ... P. 1080; State v. Sheppard, 192 Mo. 497, 91 S.W ... 477; State v. Sanderson, 280 Mo. 258, 217 S.W. 60; * ... * * ... ...