State v. Sheppard

• Decision Date: 22 December 1905
• Citation: 192 Mo. 497,91 S.W. 477
• Parties: STATE ex rel. HENSON v. SHEPPARD.
• Court: Missouri Supreme Court

91 S.W. 477

192 Mo. 497

STATE ex rel. HENSON v. SHEPPARD.

Supreme Court of Missouri.

December 22, 1905.

1. CONSTITUTIONAL LAW — STATE CONSTITUTION — RULE OF CONSTRUCTION.

The Legislature of the state has all legislative power not prohibited to it in the state constitution.

2. OFFICERS — REMOVAL — STATE CONSTITUTION — CONSTRUCTION.

Const. art. 14, § 5, provides that in the absence of any contrary provision all officers shall hold office during their official terms and until their successors are elected and appointed or qualified, and section 7 declares that the General Assembly in addition to all other penalties shall provide for the removal from office of county, city, town, or township officers on conviction of willful, corrupt, or fraudulent violation or neglect of official duty. Held, that the Legislature was not thereby limited to the passage of laws providing for the removal of officers for conviction of willful violation of neglect of official duty, but under the clause "in addition to other penalties" the Legislature was authorized to provide for such removal for such acts as in its discretion should be deemed sufficient ground therefor.

3. CLERKS OF COURTS — REMOVAL FROM OFFICE — GROUNDS — INFORMATION FOR FELONY.

Rev. St. 1899, § 528, provides that if any clerk shall knowingly and willfully do any act contrary to the duties of his office, or shall fail to perform any act or duty required of him by law, he shall be deemed guilty of a misdemeanor in office. Section 529 authorizes his removal on information that he "has been guilty of a misdemeanor in office," and section 536 declares, in addition to the mode provided for such removal in section 529, that any clerk may "for any misdemeanor in office be removed and otherwise punished by indictment in the circuit court." Sections 8853 and 8854 also provide that any officer who shall fail to personally devote his time to the performance of the duties of his office or shall be guilty of willful, corrupt, or fraudulent violation or neglect of any official duty shall forfeit his office and be removed, etc. Held, that under such sections the circuit judge was without jurisdiction to remove a clerk of the circuit court from office because he had been informed against for murder wholly disconnected with his office.

4. SAME — CLERK PRO TEM — APPOINTMENT.

Where a clerk of the circuit court was informed against for murder not connected with his office as clerk, the circuit judge had jurisdiction to appoint a clerk pro tem. for the purpose of performing the duties of clerk solely with reference to the prosecutions pending against the clerk.

In Banc. Application for writ of prohibition by the state, on relation of one Henson, against Jesse C. Sheppard. Writ allowed.

N. A. Mozley, J. M. Atkinson, D. B. Deen, and Phillips & Phillips, for relator.

LAMM, J.

Suggestion for prohibition Relator is the duly elected, qualified, and acting clerk of the circuit court within and for Butler county. Respondent is the duly appointed, qualified, and acting judge of said court. On the 22d day of June, 1905, there were filed in said court by Joseph T. Davidson, prosecuting attorney of Butler county, two informations. In one, Henson stands charged with feloniously, willfully, deliberately, and premeditately, with malice aforethought, assaulting one William Heck with a loaded shotgun on the 14th of April, 1905, and then and there feloniously killing said Heck by said assault and weapon; in the other, he is charged with murdering one Sylvester H. Adams on the same day, in the same manner, and with a similar lethal weapon. Henson, being arrested and refused bail, was released on bond by proceedings in habeas corpus in this court, and by an entry of record in the Butler circuit court the cases were set down for hearing on August 14, 1905.

An abridgment of the proceedings below will not be uninstructive on the issues presented here. Attending thereto, it appears that on the 15th of July, Henson filed in propria persona sedente curia a suggestion to the effect that he was clerk of the circuit court of Butler county with the ex officio duty of issuing process, swearing witnesses and jurors, making record entries, and having the custody of court files and records; that he stood charged in informations preferred and on file in said court with the crime of murdering two men, Heck and Adams, was in custody of the law, but was innocent of said charges; that as clerk he had custody of the papers and the files in the cases wherein he was defendant, and was burdened with the duty of issuing subpœnas, etc., and writing record entries ordered by the court therein; that he neither wished to incur the unseemly embarrassment or the responsibility incident to the personal performance of clerical duties in said causes, and to that end had agreed with the prosecuting attorney that some competent person be appointed by the court to perform the duties of circuit clerk respecting said causes only, which agreement was to be spread of record, to the end that the state, as well as Henson, be precluded from questioning the legality or validity thereof; that the prosecuting attorney receded from the agreement, and, inasmuch as he had done so, he (Henson) now requested the court to designate some suitable person to qualify as a clerk pro tem., or as deputy circuit clerk, and who might be charged with the safe-keeping of all files and papers, issue all process, write all record entries, and do all things required by law necessary to be done in and about said causes only, or, in lieu thereof, that the court designate some suitable person to act as clerk of said court respecting said causes only, and that the record show that such person so designated as clerk was designated upon the motion and at the request of defendant in said causes, or that such other and additional orders be entered of record as will effectually bind defendant respecting the same. Notwithstanding said suggestion so made by Henson, the prosecuting attorney, acting, we doubt not, out of abundance of caution, concluded to follow lines laid down by himself. To that end he filed in the said court his ex officio complaint on the 21st day of July, 1905, whereby he set forth his own official title and duties, as well as Henson's, and averred that Henson shot and killed Adams and Heck on the 14th day of April, 1905, in said Butler county, and for the said killing stood charged in two informations with murder in the first degree; that the trial is fixed for August 14, 1905; that Henson is under bond in the sum of $10,000 in each case, and has custody of the records and files in said causes; that in order to get ready for trial it is now necessary to have process issued for witnesses and make various and divers entries of record in said causes, wherefore it is declared and insisted upon that Henson is incapacitated to be the custodian of his own bonds and recognizances, to be the custodian of the evidence taken before the coroner's jury and the committing magistrate, to be custodian of the informations preferred against him, to issue process for witnesses against himself, and to make record entries in either of said causes; and the complaint ends with a prayer that the court make an order suspending said Lida M. Henson "from doing or performing any of the duties of the clerk of the circuit court of Butler county, Missouri, and to maintain and enforce such order of suspension so long as said charges of murder in the first degree against him * * * shall remain pending and undetermined" in said court, and to "appoint some competent person to perform all the duties of clerk of said court so long as said suspension order remain in force." Subsequently, and on the 24th day of July, 1905, defendant, through counsel, demurred to the aforesaid complaint, substantially on the grounds following: (1) For that the complaint does not purport to be based on knowledge furnished by the court, in the shape or form of notice, to said prosecuting attorney, stating the charges against said defendant, nor is it based on the oath or affirmation of any other person or persons; (2) for that none of the charges relate to any misdemeanor in the office of circuit clerk, and the defendant, before conviction, is presumed to be innocent of the charges actually preferred; (3) for that the circuit court is without power to grant the relief prayed for in said complaint; (4) and for that said complaint does not state facts sufficient to state a cause of action. So much for the status below.

On the 25th day of July, relator served notice on respondent of his intention to apply here for a writ of prohibition, and on the 1st day of August did present his petition for such writ, which in substance sets forth the aforesaid facts and avers, inter alia, that notwithstanding his said demurrer filed below, wherein the attention of respondent was directed to his lack of power, and notwithstanding the fact that the said complaint of the prosecuting attorney does not charge relator with the commission of any misdemeanor or misdeed whatever in relation to his duties as clerk of said court or in office, respondent assumed jurisdiction to hear said complaint and did hear the same, and without authority or jurisdiction was proceeding to suspend relator from his said office and appoint some other person in his stead, and would have appointed some other person to fill said office, had not relator served him with notice of his intention to apply here for a writ of prohibition; that upon the service of said notice respondent announced to relator and all concerned that he would withhold final judgment until the 12th day of August, 1905, at which time he would in all things sustain the complaint of the prosecuting attorney, and would suspend relator from office and appoint some other person in his stead, unless this court interfered for relator's protection; that respondent is without power to...