State v. Welsh

• Decision Date: 27 May 1899
• Parties: STATE OF IOWA, Appellant, v. JOHN W. WELSH
• Court: Iowa Supreme Court

79 N.W. 369

109 Iowa 19

STATE OF IOWA, Appellant, v. JOHN W. WELSH

Supreme Court of Iowa, Des Moines

May 27, 1899

Appeal from Johnson District Court.--HON. A. J. HOUSE, Judge.

ACTION to remove the defendant from the office of sheriff. From a judgment on a directed verdict, the state appeals.

Reversed.

Chas M. Dutcher and Chas. H. Burton for the State.

Ranck & Bradley, Baker & Ball, and J. J. Ney for appellee.

OPINION

LADD, J.

The bill of exceptions need only contain such matter as will enable the court to pass on the errors assigned. Philbrick v. Town of University Place, 106 Iowa 352 76 N.W. 742. Section 3675 of the Code does not change this rule. It provides for the preparation of a full and complete bill. A partial bill may be prepared in the same manner; and, if the errors assigned are based entirely on rulings on the admissibility of evidence or its effect, it is sufficient if the evidence offered and received, together with the objections, rulings, and exceptions, is duly certified and filed as therein directed. Nor must the precise language of the statute be followed. The officers are required only, in effect, to certify that the report "contains a full, true, and complete report of all the proceedings had." As applied to the evidence, the certificates did this, and were substantially like those approved in Hurlburt v. Fyock, 73 Iowa 477, 35 N.W. 482; Fleming v. Stearns, 79 Iowa 256, 44 N.W. 376. As the law formerly stood, the reporting of a trial was discretionary with the judge. State v. Frost, 95 Iowa 448, 64 N.W. 401. The effect of section 3675 is to make it mandatory upon the request of either party. The purpose is to preserve a record, and if the proceedings are in fact taken down in shorthand, and duly certified, they become such regardless of any preliminary order. It follows that the motion to strike the evidence should be overruled.

II. The defendant was re-elected sheriff of Johnson county at the general election of 1898, and during his second term commencing January 1st of the year following, this action for his removal was begun. On motion, the particular averments of official misconduct and neglect of duty during the first term were stricken from the petition on the ground that removals are only allowable for acts during the term being served. The statute contains no such limitation. The very object of removal is to rid the community of a corrupt, incapable, or unworthy official. His acts during his previous term quite as effectually stamp him as such as those of that he may be serving. Re-election does not condone the offense. Misconduct may not have been discovered prior to election, and, in any event, had not been established in the manner contemplated by the statute. The defendant was entitled to the office until his successor was elected and qualified. Code, section 1265. Being his own successor, the identical officer continued through both terms. His disqualification to continue in the particular office results from the commission of some of the prohibited acts during his incumbency. State v. Bourgeois, 45 La.Ann. 1350 (14 So. 28); Brackenridge v. State, 27 Tex. Ct. App. 513 (11 S.W. 630). This has been the uniform rule in impeachment trials, where, coupled with removal from office, is the penalty of disqualification to hold any office of honor, trust, or profit under the state. In New York, Judge Barnard was impeached during his second term for acts committed in that previous. The same was true of the impeachment of Judge Hubble, of Wisconsin, and Gov. Butler, of Nebraska. Whether the impeachment may take place after the expiration of the term or resignation is a mooted question. See arguments on the trial of Belknap before the United States senate. The supreme court of Nebraska, in an able and exhaustive opinion by Mr. Justice Norval, held, in State v. Hill, 37 Neb. 80 (55 N.W. 794), that, as the primary object is removal from office, ex-officials cannot be impeached, saying: "The object of impeachment is to remove a corrupt or unworthy officer. If his term has expired, and he is no longer in office, that object is attained, and the reason of his impeachment no longer exists; but, if the offender is still an officer, he is amenable to impeachment, although the acts charged were committed in his previous term of the same office." We do not overlook Thurston v. Clark, 107 Cal. 285 (40 P. 435), where in referring to the previous case of Smith v. Ling, 68 Cal. 324 (9 P. 171), holding an action for removal could not be maintained after the expiration of the term, the court said: "By parity of reasoning, an officer cannot * * * be removed from office for a violation of his duties while serving in another office, or in another term of the same office. Each term of office is an entirety, separate and distinct from all other terms of the same office." It is doubtless true that a removal cannot be had on account of misconduct in another office, but only so because such a provision may not be included among the statutory causes of removal. Speed v. Common Council of Detroit, 98 Mich. 360, 39 Am. St. 555 (57 N.W. 406). This may also be said of offenses committed previous to being inducted into the particular office. Com. v. Shaver, 3 Watts & Serg. 338; Tyrrell v. Common Council of Jersey City, 25 N.J.L. 536. For many purposes each term of office is separate and entire. This is especially true with respect to the obligation of sureties. But there is no reason for so holding as to the incumbent. Being his own successor, there is no interregnum. His qualification marks the only connection between his terms. The commission of any of the prohibited acts the day before quite as...