State Ex Rel. Hyatt v. Hamme

Clare:, 0. J. The statute under which this proceeding is based is to be found in sections 3208-3212, inclusive, of 0. S. It was originally chapter 671, Public-Local Laws 1913, and applied only to Guilford County. By chapter 288, Laws 1919, it was made applicable to the whole State. Section 3208, C. S., provides: “Any city prosecuting attorney, any sheriff, police officer, or constable shall be removed from office by the judge of the Superior Court upon charges made in writing, and hearing thereunder for the following causes: 1. For willful or habitual neglect or refusal to perform duties of his office. 2. For willful misconduct or maladministration in office. 3. For corruption'. 4. For extortion. 5. Upon conviction of a felony. 6. For intoxication, or upon conviction of being intoxicated.” The officer may be removed for misconduct or failure to perform the duties of his office, whether such failures were willful or habitually negligent ; the statute was evidently enacted for the protection of the public, and not for the punishment of the delinquent officer. It is not a criminal proceeding for his punishment, but is.a civil proceeding brought in the name of the State upon the relation of five qualified electors in the county. Territory v. Sanches, 20 Ann. Cas., 109, and note on page 112. The delinquent officer is not entitled to have the issues of fact tried by a jury. An office is not property within sec. 19, Art. I, of the Constitution. Mial v. Ellington, 134 N. C., 131, and citations thereto in Anno. Ed. This statute does not provide for any appeal from the findings and judgment of the Superior Court, but the appeal is authorized by C. S., 638, which is as follows: “An appeal may be taken from every judicial order of the judges of the Superior Court upon or involving a matter of law or legal inference.” Consequently, this Court has no jurisdiction to review the findings of fact made by the judge below under sec. 8, Art. YI, of the Constitution. *688 In Mechem on Officers, sec. 457, be says: “Misconduct, willful maladministration, or breach of good behavior, in office, do not necessarily imply corruption or criminal intention. The official doing of a wrongful act, or the official neglect to do an act which ought to have been done, will constitute the offense, although there was no corrupt or malicious motive.” In Throop on Officers, sec. 367, it is said: “Where such an official act or omission has occurred, the officer may be removed therefor without reference to the question whether it was done maliciously or corruptly,” citing Minkler v. State, 14 Neb., 181, and S. v. Leach, 60 Me., 58. In the latter case it is said: “Misconduct does not necessarily imply corruption or criminal intention. We think the Legislature used the word in its more extended and liberal sense. This statute is not, strictly speaking, a penal statute, but is rather remedial and protective.” In the courts of nearly all the States which have similar statutes it is held that it is in the nature of a civil proceeding for the protection of the public from misconduct, neglect of duty, or inefficiency by providing a speedy investigation and removal of the officers named. Such a power is sometimes vested in the Governor or other executive officer, but in others, as in this State, the power is vested in the courts. It is not a criminal proceeding, and it is held that though the act for which the officer is removed may also be punishable as a crime, this does not affect his liability to removal for the same act. Territory v. Sanches, 20 A. & E. Anno. Cas., 109, and notes thereto. This is true also as to impeachments, Art. IY, sec. 3. , Upon the facts found by his Honor, it should be unnecessary in any tribunal to debate whether the defendant should be removed from office under the clear intent and purport of this statute. It appears that: 1. A'prosecuting attorney accepted employment and a fee in a civil action from one whom he was prosecuting on a charge of being a habitual criminal and violator of the law, and he put in evidence his own letters to her, a woman of the town, addressing her as “My dear Miss Holmes,” and making appointments with her to come to his office from time to time. 2. He also went to her house, according to his own statement, feigning drinking and drunkenness, and tried to get her to sell him liquor in order to induce her to commit a crime for which he would convict her. 3. He, being prosecuting attorney, according to his own statement, went to the prostitute’s house, and in her bedroom and in her presence took off his outer clothing with a view to being caught by the officer in this compromising position, in order that he, as prosecuting attorney, might obtain evidence against the woman, he having arranged, he says, with the policeman to make his own escape, and that the policeman *689 should perjure himself by testifying that he did not recognize the man who was with the woman. Upon his own statement, the defendant endeavored to procure the woman to commit two distinct and separate offenses against the law, with a view of convicting her of such offenses, and also was guilty of an attempt to procure the policeman to perjure himself. It was unnecessary, as his Honor held, for him to pass upon the question whether when the defendant went to the house of the prostitute his purpose was as alleged by the State, or that stated in the defendant’s evidence. Upon the facts found by the judge from the evidence of the defendant, the court properly adjudged “the said defendant is guilty of misconduct in office, which said misconduct does bring his office into contempt, and renders said officer inefficient to conduct the duties thereof,” and removed him from office. There can be no two opinions upon that subject, and the necessity for just such a statute as this could not be more strongly presented than by the facts of this case, for without such an act the public sense of propriety and decency would have been outraged by his remaining in office. The learned counsel for the defendant puts his defense almost entirely upon the ground that the defendant was found guilty by the judge most, largely, if not altogether, on the specifications of misconduct stated in the defendant’s own testimony rather than upon the allegations of- fact specified in the petition. C. S., 3210, provides that, “The petition shall state the charges against the accused, and may be amended.” This is a civil proceeding, and if the additional facts and circumstances stated in the defendant’s testimony had come out in the evidence for the State, the defendant might well have alleged that he was taken by surprise and unprepared to meet them. The court might thereupon have permitted an amendment of the charges, and, in his discretion, have given the defendant time to answer and to produce his witnesses, but when, as. here, the additional facts in proof of the charge of misconduct in office are stated by the defendant himself, and the judge finds those statements, to be true, the defendant has no ground to complain. He could not, and did not, ask time to produce witnesses to contradict his own testimony, which fully authorized, and indeed required, the judge to remove him from office. No error.