The State ex rel. Henson v. Sheppard

• Decision Date: 22 December 1905
• Parties: THE STATE ex rel. HENSON v. SHEPPARD, Judge
• Court: Missouri Supreme Court

91 S.W. 477

192 Mo. 497

THE STATE ex rel. HENSON v. SHEPPARD, Judge

Supreme Court of Missouri

December 22, 1905

Writ made absolute.

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

(1) The facts are admitted by the pleadings, hence, the court has only to pass upon a question of law. (2) We do not understand that respondent, or his counsel, claim that the proceeding to suspend relator from his office has any reference, even remotely, to the statute of the State in relation to the removal of circuit clerks from office, but if such claim is made, the most casual examination of the statute in connection with the motion filed by the prosecuting attorney to suspend, will demonstrate its utter fallacy. The motion to suspend relator avers that he is wholly incapacitated to act as clerk because the prosecuting attorey has filed two informations against him charging murder in the first degree and it avers nothing else. The statute provides that where a circuit clerk has been guilty of a misdemeanor in office charges to remove him from office shall be filed by the prosecuting attorney, and, pending the hearing on said charges, the court may suspend him. Hence, it is too plain for argument that, so far as statutory warrant is concerned suspension cannot be had except as incidental to the proceeding to remove. In other words, suspension per se is not provided for by the statute. R. S. 1899, secs. 529 to 534; R. S. 1899, secs. 8853-8854. (3) Where, as in this State, express provision is made for the removal of a circuit clerk from his office, and the grounds of such removal are limited to misconduct in office, he can be removed for no other cause, and the misconduct must be of a kind affecting the performance of his official duties. State ex rel. v. Hickson, 41 Mo. 211; 7 Cyc. Law and Procedure, 204-5; 6 Am. and Eng. Ency. Law (2 Ed.), 136; Dowling v. Smith, 9 Md. 242; Colt v. State, 28 Ark. 417; Ex parte Lehman, 60 Miss. 967; 10 Cen. Dig., 83; Honey v. Graham, 39 Tex. 11. And where the mode of procedure is pointed out by statute for the removal from office of a clerk, it must be followed. 7 Cyc. Law and Procedure, 205. The Constitution provides: "All officers, subject to the right to resign, shall hold office during their official term, and until their successors shall be duly elected or appointed and qualified." This plain provision of the Constitution says relator shall hold his office during his official term and until his successor shall be duly elected or appointed and qualified. But seemingly determined to put the question beyond the possibility of cavil, the same Constitution provides: "The General Assembly shall provide for the removal from office of county . . . officers on conviction of willful, corrupt or fraudulent violation of official duty." Art. 14, sec. 7. Suppose the General Assembly should pass a law providing that a circuit clerk should be suspended from office whenever the prosecuting attorney shall file an information against him charging murder, it could not be upheld, for the reason that such an act would be out-side the constitutional grant to legislate upon that subject. (4) The General Assembly, however, in dealing with this subject, has kept itself commendably within the limits of constitutional warrant by providing that a circuit clerk may be removed from office upon conviction of misdemeanor in office, by providing also that charges must be filed, which the clerk may put in issue, and that a jury trial may be had. (5) As will be seen by certified copy of the motion attached to the petition for the writ in this case, relator offered in the court below to disqualify as clerk so far as the two cases against him were concerned and asked that a temporary clerk be appointed, which motion the court overruled. Relator is now willing that a temporary clerk for said two cases be appointed and that he may have the custody and care of all records, files and papers belonging to said cases and perform all of the duties of clerk respecting the same, but he denies that said judge has any power or right to suspend him from office generally merely because he is charged with murder in said court.

LAMM, J. Brace, P. J., absent.

OPINION

In Banc

Prohibition.

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 22nd 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 premeditatedly, 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, of 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 subpoenas, 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 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 remains 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...