Territory v. Sanches

• Decision Date: 26 February 1908
• Citation: 94 P. 954,14 N.M. 493,1908 -NMSC- 022
• Parties: TERRITORY v. SANCHES.
• Court: New Mexico Supreme Court

94 P. 954

14 N.M. 493, 1908 -NMSC- 022

TERRITORY v. SANCHES.

Supreme Court of New Mexico

February 26, 1908

Syllabus by the Court.

Under the provisions of section 844 of the Compiled Laws of 1897, a justice of the peace, constable, or sheriff is removable from office for "official misdemeanors" committed by him while holding the same office in a preceding term, at least if there has been no intervening term held by another.

[Ed Note.-For cases in point, see Cent. Dig. vol. 43, Sheriffs and Constables, § 14.]

The fact that an act by such an officer is punishable as a crime does not affect his liability to removal from office for the same act.

Whether by the terms of section 854 of that statute one accused and on trial under it is entitled to trial by jury, quaere; but if it is accorded to him by the court, it should be conducted as in other similar judicial proceedings.

A proceeding under the statute in question is so far a civil cause in its nature that the trial court has the right to direct a verdict against the defendant, if the evidence would warrant such a direction in a civil cause, and if the facts thus found, or any of them, constitute as a matter of law any one of the grounds for removal enumerated in the statute, to enter a judgment of removal.

Appeal from District Court, Torrance County; before Justice Edward A. Mann.

Proceeding by the territory for the removal of Manuel Sanches y Sanches from the office of sheriff. Judgment of removal entered, and defendant appeals. Affirmed.

This was a proceeding in the trial court under section 844 of the Compiled Laws of 1897 for the removal of Manuel Sanches y Sanches from the office of sheriff of Torrance county. It was begun by a sworn complaint made by Fred Fornoff, a citizen of the territory, to the district court for Torrance county, and filed in the office of the clerk of that court January 19 1907. It charges the defendant with habitual and willful neglect of duty, of gross partiality, of oppression, of corruption, of extortion, and of willful maladministration as sheriff, and specifies eight "instances of such official misdemeanors." The defendant asked for a jury trial on the charges thus made, which was granted by the court and had at a term of said court held in Torrance county in February 1907. At the conclusion of the evidence, the court, on motion of the district attorney, directed the jury to return a verdict for the plaintiff, "as to the charges contained in paragraphs numbered 1, 4, 6, 7, and 8 of the complaint, and for the defendant as to count three of the complaint. The second and fifth charges had been dismissed on motion of the plaintiff." As to some of the acts charged on which the verdict was against the defendant, it appeared that, as alleged, they occurred before the beginning of the term of office in which the defendant was serving as sheriff at the time the complaint was made and the trial had, but within the next preceding term of the same office which he held for that term. It also appeared that, in specification numbered 1, the defendant was charged with doing that which was punishable as a criminal offense, if it was done. A judgment of removal from office was entered by the court, and the cause is here on appeal from that judgment.

George W. Prichard, for appellant.

A. B. Fall, Atty. Gen., and F. W. Clancy, Dist. Atty., for the Territory.

ABBOTT J.

Several questions of much interest and moment are before us for determination in this cause. As the case usually is with questions on which good lawyers could reasonably differ, they have been decided in opposite ways by different courts of last resort among the more than half a hundred courts of that class in this country, and we are much in the same position we should be in if there had been no decision whatever on them, since we are not constrained by the unquestioned authority of adjudged cases to adopt conclusions which might seem to us contrary to reason and justice.

It is essential to determine at the outset, and to bear in mind throughout, the true nature and purpose of the proceedings brought here for review. They could hardly be better expressed than in the words of Kent, J., in State v. Leach, 60 Me. 58, 11 Am.Rep. 172, in which the state was represented by its Attorney General, Hon. Thomas B. Reed: "The object of the removal of a public officer for official misconduct is not to punish the officer, but to improve the public service, and to free the public from an unfit officer." To the same effect is Rankin v. Jauman, 4 Idaho, 53, 36 P. 502. With this clear statement, which cannot be gainsaid, as a guide, we shall be prepared to deal with the first claim of error for the defendant, discussed in the brief in his behalf, namely, that the trial court erred in holding that the defendant could be removed from office for acts done by him while holding the same office in the term immediately preceding the one in which his trial took place. The weight of authority in numbers is probably with the defendant on that point. But is a public officer less unfit to hold his office, or are the people less injuriously affected by his holding it, because the act demonstrating his unfitness was committed on the last day of one term of office rather than on the first day of the next succeeding term? There can be but one answer to that question. The reasoning of the court in State v. Welsh, 109 Iowa 21, 79 N.W. 369, seems to us so absolutely sound and conclusive that we quote from the opinion: "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 the 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. 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. *** 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 of acts committed in that previous. The same was true of the impeachment of Judge Hubble of Wisconsin, and Gov. Butler of Nebraska. *** 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 the terms. The commission of any of the prohibited acts the day before quite as particularly stamps him as an improper person to be intrusted with the performance of the duties of the particular office as though done the day after. The fact of guilt with respect to that office warrants the conclusion that he may no longer with safety be trusted in discharging his duties."

It is also urged for the appellant that, because one of the acts of which he was found guilty by the verdict is made a criminal offense by statute, he cannot be removed from office because of it. But we again apply the test that the procedure for removal is not penal in purpose, but remedial and protective. The fact, if it should appear to be one, that an act on which a charge of official misconduct was based was also a criminal offense, should strengthen rather than weaken the case for removal. 23 Am. & Eng. Ency. 443, and cases cited, note 4; Hopkins v. Scott, 38 Neb. 669, 57 N.W. 391.

We come, then, to the manner in which the charges were dealt with by the court. It...