State v. Patterson

• Decision Date: 20 May 1914
• Docket Number: No. 22578.,22578.
• Citation: 105 N.E. 228,181 Ind. 660
• Parties: STATE v. PATTERSON.
• Court: Indiana Supreme Court

181 Ind. 660

105 N.E. 228

STATE

v.PATTERSON.

No. 22578.

Supreme Court of Indiana.

May 20, 1914.

Appeal from Circuit Court, Lake County; Cassius M. Greenlee, Special Judge.

Proceedings by the State of Indiana against James A. Patterson, to remove him from the office of prosecuting attorney of the Thirty-First judicial circuit for negligent failure to perform his official duties. Judgment for the defendant, and plaintiff appeals. Affirmed.

Thomas M. Honan, of Indianapolis, and George E. Hershman, Otto J. Bruce, and Edwin C. Davis, all of Crown Point, for the State. John H. Gillett, C. B. Tinkham, and Ralph W. Ross, all of Hammond, for appellee.

MORRIS, C. J.

Action by appellant against appellee, prosecuting attorney of the Thirty-First judicial circuit, to remove him from office for the alleged negligent failure to perform his official duties. The action is based on the provisions of section 35 of an act approved March 8, 1897. Acts 1897, p. 282; section 9662, Burns 1914. An accusation, consisting of 11 articles or paragraphs, in each of which it was alleged that appellee had refused or neglected to perform some alleged duty devolving on him as prosecuting attorney, was filed in the Lake circuit court. The appellee appeared and waived the issuance of a citation, and demurred to each paragraph. The demurrer was sustained, and, appellant declining to plead further, judgment was rendered for appellee.

The various articles of the accusation are predicated on the alleged failure or refusal of appellee to perform his official duties relating to the prosecution of alleged offenses relating to gambling, gaming devices, houses of ill fame, illegal sales of intoxicating liquor, and Sunday labor. In sustaining the demurrer to the accusation, the trial court filed a written opinion, which is copied in appellee's brief, and from which it appears that the demurrer was sustained on the theory that section 9662, Burns 1914, does not warrant the removal of a prosecuting attorney from his office because of neglect to perform his official duties.

It is contended by appellant that the court's ruling was erroneous, because, as asserted, the section of the statute (section 9662, Burns 1914) which denounces neglect of official duty on the part of “any officer within the jurisdiction of the court” must be held to include prosecuting attorneys, and that no valid constitutional objection can be urged against the enactment. Appellee seeks to meet this contention with the assertion that, construing the act as a whole, the section in controversy should not be held as declaring the legislative intent to apply to prosecutingattorneys, but that, if such intention must be imputed, the act must be held unconstitutional to that extent.

[1] Section 12 of article 7 of our Constitution, relating to the judiciary, reads as follows: “Any judge or prosecuting attorney who shall have been convicted of corruption or other high crime, may, on information in the name of the state, be removed from office by the Supreme Court, or in such other manner as may be prescribed by law.” It is claimed by appellee that a prosecuting attorney cannot be removed from office for any cause other than “corruption or other high crime.”

Sections 7 and 8 of article 6 of our Constitution read as follows:

“(7) All state officers shall for crime, incapacity, or negligence be liable to be removed from office, either by impeachment by the house of representatives, to be tried by the senate, or by a joint resolution of the general assembly; two-thirds of the members elected to each branch voting, in either case, therefor.”

“(8) All state, county, township and town officers may be impeached, or removed from office, in such manner as may be prescribed by law.”

In McComas v. Krug (1882) 81 Ind. 327, 42 Am. Rep. 135, this court held that these two sections should be construed together as providing that state officers may be removed from office either by legislative impeachment, or in such other manner as may be provided by law, for crime, incapacity, or negligence, and that, for the same causes, county, township, and town officers may be removed as prescribed by law.

Appellant contends that prosecuting attorneys are included in the class of officers named in section 8 of article 6, above quoted. This court has held the contrary. In State ex rel. v. Tucker (1874) 46 Ind. 355, 359, it was said: “Judges of the circuit court and prosecuting attorneys are not state, county, or township officers. Article 5, § 18, Const.” In State ex rel. v. Friedley, 135 Ind. 119, 126, 34 N. E. 872, 874, 21 L. R. A. 634, it was held: “The judge and prosecuting attorney are constitutional officers; they are so designated in the organic law, and are neither state nor county officers.” In Board v. Albright, 168 Ind. 564, 575, 81 N. E. 578, it was held that prosecuting attorneys are not county officers. Indeed, if judges and prosecuting attorneys are state or county officers, within the meaning of sections 7 and 8 of article 6, of our Constitution, it was wholly unnecessary to provide in section 12 of article 7 for their removal for corruption or other high crimes. We are not warranted in treating as meaningless any clause, or even word, found in the organic law. Greencastle v. Black, 5 Ind. 557;Denney v. State, 144 Ind. 503, 529, 42 N. E. 929, 31 L. R. A. 726.

Section 1 of the act in controversy (section 9628, Burns 1914) indicates that the Legislature did not consider judges or prosecuting attorneys as state officers, for it provides that “all state officers and all judges and prosecuting attorneys are liable to impeachment.”

[2] Appellant contends, however, that, if it be conceded that a prosecuting attorney is not a state or county officer, the Legislature had the power under the last clause of section 12, art. 6, of our Constitution, to provide for the removal of prosecuting attorneys from office for negligence. In our opinion, the clause “or in such other manner as may be prescribed by law” cannot be held as relating to causes for removal, though it would manifestly warrant the creation or designation of some...