Opinion
No. 30476.
March 6, 1933.
1. OFFICERS.
Under statutes respecting removal, officer cannot be removed without previous conviction of crime, if any, which doing of prohibited act constitutes (Code 1930, sections 245, 2907).
2. OFFICERS.
Under constitutional provision respecting removal, removal from office for commission of crime must be based on conviction therefor (Constitution 1890, section 175).
3. OFFICERS.
Under constitution, judgment of conviction must be rendered in trial on presentment or indictment by grand jury, to warrant removal of officer (Constitution 1890, section 175).
4. QUO WARRANTO.
In proceeding to remove district supervisor, court dismissing case improperly taxed costs against individuals, named as relators, having no interest other than that common to all citizens (Code 1930, sections 3053, 3062).
5. QUO WARRANTO.
Words "on relation of another," in quo warranto statute, refer to person at whose instance and for whose benefit proceeding is instituted (Code 1930, section 3054).
APPEAL from Circuit Court of Marshall County.
J.A. Lauderdale, Assistant Attorney-General, and Smith Smith, of Holly Springs, for appellants.
Two concurrent remedies exist for the removal of officers. Confusion has resulted from a misapprehension of the relation which exists between a proceeding in quo warranto, and the acts made criminal by statute, which, in addition to other penalties, make mandatory the removal of the convicted officer. The remedy by quo warranto for the removal of public officers is a creature of the early common law, brought forward by statute in this state. This remedy existed for the relief of society long before the Mississippi Legislature enacted the statutes mentioned, setting out certain acts, the doing of which constituted a crime for which certain punishment was prescribed, including, on conviction, in addition to the other penalties, the mandatory removal of the officer. The penalties attached to convictions under these statutes in no wise take away or affect the ancient right to resort to quo warranto for the removal of the officer guilty of the misconduct. The fact that the doing of the acts described in these statutes is made criminal, does, however, afford additional ground for the removal of officers who have committed the acts described and inhibited by the statute, even where such acts were not crimes at the common law.
Only in the instance of duelling, which seems to be unique among the cases in which the removal of an officer for misconduct may be had, is the state limited solely to quo warranto for that purpose. In the other cases he may be removed as well by criminal prosecution as by proceeding in quo warranto, in fact may be proceeded against both criminally and by quo warranto at the same time.
People v. Holden, 28 Cal. 123; Hamilton v. Annapolis, etc., Co., 1 Md. Ch. 107; Kane v. People, 4 Neb. 509; Section 3053, Mississippi Code of 1930.
If the Legislature had intended that quo warranto should lie only after criminal conviction, the statute might have so stated in unequivocal terms. It cannot be assumed that the Legislature intended other than what is plainly stated in the statute, nor that the plain words used have other than their ordinary meaning.
If "conviction" can be construed to have any application to quo warranto proceedings, it means simply "judgment." The argument that criminal conviction is an indispensable condition precedent to the removal of an officer by quo warranto, is submitted to be wholly untenable.
Davis v. Repp, 75 A. 169, 170; 79 New Jersey Law, 394.
All of the crimes charged are infamous. It is argued by appellee that only "infamous crimes" may work a forfeiture of office, that only felonies are infamous, and that no felonies were charged against the defendant in the information. It is clear, however, that even granting to appellee the proposition stated above, that the argument must fail because felonies were charged in the information.
Fine or imprisonment in the county jail constitutes "infamous punishment."
Early v. Winn, 109 N.W. 633, 129 Wis. 291.
Petit larceny, though a misdemeanor as provided by Revised Statutes 1909, section 4925, belongs to the class of crimes known as crimen falsi.
Hartwig v. Hartwig, 142 S.W. 797, 799, 160 Mo. App. 284; 2 Words Phrases 2d 1057; Draven v. New Haven Taxicab Co., 5 Words Phrases 3d 214-5.
Moral turpitude is anything done contrary to justice, honesty, modesty, or good morals.
In re Williams, 167 P. 1149, 1152, 64 Okla. 316, 5 Words Phrases 3d 214-5; Ex parte Tsunetaro Machida (D.C. Wash.), 277 Fed. 339; Moore v. State, 67 So. 789, 791, 12 Ala. App. 243; Bartos case (D.C. Neb.), 13 F.2d 138-9; 5 Words Phrases 3d 214-5; State ex rel. Stinger v. Krueger, 217 S.W. 310, 313, 280 Mo. 293.
Public policy requires the remedy by quo warranto against an offending officer, without precedent criminal conviction.
With great deference it is submitted that it has been demonstrated from the words of the statutes themselves and the decisions of courts upon them and similar acts, that no prior criminal conviction is required before an officer may be removed by quo warranto. That, if this is true, or if the case should be deemed doubtful, considerations of public policy may be resorted to.
State of N. Dakota ex rel. v. Gamble Robinson Co., 9 A.L.R. 98; State, etc. v. Business Mens' Athletic Club, 178 Mo. App. 548, 163 S.W. 901; Toncray v. Budge, 14 Idaho 621, 95 P. 26.
Lester G. Fant, Sr., and Jr., of Holly Springs, for appellee.
In some cases conviction of a crime is the fact which disqualifies.
There are some acts the mere doing of which forfeits an office.
There are other acts which constitute crimes, the conviction of which is a disqualifying fact. Conviction of accepting a bribe is an example. That conviction disqualifies a man for office. But there is no law that accepting a bribe, as distinguished from conviction of it, disqualifies. This distinction is beyond question.
Section 245, Mississippi Code of 1930; Brady v. Howe, 50 Miss. 607 (1874), at page 625; Jones v. Alcorn County, 56 Miss. 766.
No acts are charged in the information except those the conviction of which would be the only disqualifying fact.
It was the duty of the appellants to point out one specific act charged in the information the doing of which forfeits an office. This they have not done.
The only two acts the doing of which forfeits an office are duelling and being in default of public money unaccounted for.
Constitution of the State of Mississippi, sections 19 and 43.
The appellants have not attempted to cite another provision of law for forfeiture of office not predicated upon conviction. Nor do they contend that the defendant was charged either with duelling or with being in default of public money unaccounted for. The conclusion is that the appellants are unable to point to a single act charged in the information the mere doing of which forfeits an office.
It is the conviction which is the disqualifying fact.
Constitution of the State of Mississippi, section 175.
The section making conviction of bribery a disqualification reads ". . . he shall, on conviction, be forever disqualified from holding any public office. . . ."
Mississippi Code of 1930, sec. 802.
It is clear, therefore, that when the statute reads "on conviction" it means on criminal conviction.
Brady v. Howe, 150 Miss. 607.
The costs were properly taxed against the individual relators. The appellant has argued that the costs were improperly taxed against the individual relators. If so, it is not assigned as error.
Rule 6, Revised Rules of Supreme Court, 161 Miss. 904; Eaton v. Hattiesburg (Miss.), 117 So. 534 (1928).
When an information is upon the relation of a private individual, it shall be so stated in the petition and proceedings, and such individual shall be responsible for costs as plaintiffs are in other cases.
Section 3064, Mississippi Code of 1930; Section 681, Mississippi Code of 1930; Section 682, Mississippi Code of 1930; Bernheim v. State, 28 So. 28.
Argued orally by L.A. Smith, Sr., for appellant, and by Lester G. Fant, for appellee.
This is a quo warranto proceeding filed by a district attorney, "acting on the relationship of" certain designated persons, "citizens and taxpayers of the Fifth supervisor's district of Marshall county, Mississippi," wherein it is sought to remove the appellee from the office of supervisor of the Fifth supervisor's district of Marshall county because of alleged conduct said to be prohibited by sections 242, 243, 244, 919, 1069, 1070, and 2905, Code of 1930. A demurrer to the petition was sustained, the cause dismissed, and costs therein were adjudged against the persons on whose relation the petition states the district attorney acted in filing the petition. Both the state and the persons against whom costs were adjudged have appealed.
A motion by the appellee to dismiss the appeal is so obviously without merit that it will be overruled without further reference thereto.
Sections 3053 and 3062, Code of 1930, are in part as follows: Section 3053. "The remedy by information in the nature of a quo warranto shall lie, in the name of the state, against any person or corporation offending in the following cases, viz.: First. — Whenever any person unlawfully holds or exercises the functions of any public office, civil or military, or franchise, or any office in any corporation, city, town, or village, and to try the right to any such office. Second. — Whenever any public officer has done or suffered to be done, or has omitted to do any act, the doing or omission of which works a forfeiture of office."
Section 3062. "If judgment [in a quo warranto proceeding] be against the defendant, finding that he has been exercising the functions of an office without authority, he shall be removed from office and debarred therefrom."
Section 245 of the Code provides that any member of a board of supervisors who violates the provisions of sections 243 and 244 of the Code "shall be guilty of a misdemeanor and on conviction thereof, shall be fined not less than twenty-five dollars and not more than five hundred dollars, or not more than six months in the county jail, or both said fine and imprisonment in the discretion of the court, and upon conviction, he shall be removed from office."
Under section 2907 of the Code, "If any public officer, state, district, county, or municipal, shall be convicted of misconduct or misdemeanor in office, or of any felony or other infamous crime, or of corruption in office or peculation therein, . . . the court, in addition to such other punishment as may be prescribed, shall adjudge the defendant removed from office, and the office of the defendant shall thereby become vacant."
None of these statutes provide for the removal of an officer without a previous conviction of the crime, if any, which the doing of the prohibited act constitutes.
Section 175 of the Constitution is as follows: "All public officers, for wilful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury; and, upon conviction, shall be removed from office, and otherwise punished as may be prescribed by law." Under this, and similar sections of previous Constitutions, this court has uniformly held that removal from office for the commission of crime must be based on a conviction therefor. Runnels v. State, Walk. 146; Newsom v. Cocke, 44 Miss. 352, 7 Am. Rep. 686; Hyde v. State, 52 Miss. 665; Ex parte Lehman, 60 Miss. 967; Moore v. State (Miss.), 45 So. 866; Lizano v. City of Pass Christian, 96 Miss. 640, 50 So. 981; Miss. State Board of Health v. Matthews, 113 Miss. 510, 74 So. 417.
But it is said by counsel for the appellant that the liability for removal from office results, not from the conviction, but from the doing of the prohibited act. In this counsel are in error, as will appear from the authorities supra; within limitations, such can be the statutory provision, Hyde v. State, 52 Miss. 665; Brady v. Howe, 50 Miss. 607; but the statutes here under consideration contain no such provision.
Again, it is said by counsel for the appellant that the word "conviction" in the Constitution, and the word "convicted" in the statutes, are used in the broad sense, and as the equivalent of the words "judgment" and "adjudged," citing Keithler v. State, 10 Smedes M. 192, and that the adjudication of the doing of the prohibited act can be made and a judgment so declaring can be rendered in a quo warranto proceeding.
A complete answer to this is that the Constitution requires the judgment of conviction to be rendered in a trial on a presentment or indictment by a grand jury. Newsom, Moore, and Lizano Cases, supra.
The court committed no error in sustaining the demurrer and dismissing the case, but should not have taxed the costs thereof against the persons on whose relation the petition stated that the district attorney acted. These parties had no interest in the proceeding other than that common to all citizens of the county, were improperly made relators therein, and the allegation of the petition so doing is surplusage.
Section 3054 of the Code provides that the proceedings "shall be by information, in the name of the state, by the attorney-general or a district attorney, on his own motion or on relation of another, and, in a case to try the right to an office, on the relation of the claimant thereof." These alleged relators made no claim to the office, and the words, "on relation of another," of the statute, refer to a person at whose instance, and for whose benefit, the proceeding is instituted; "and who is quasi the plaintiff in the proceeding." Black's and Bouvier's Law Dictionaries.
The judgment of the court below will be reversed in so far as it adjudges costs against the persons on whose relation the proceeding is said to have been brought, and they will be relieved therefrom.
Reversed, and judgment here in accordance with this opinion.