State ex rel. Bell v. Hufty

Spoffokd, J. The present relator, John M. Bell, having produced a commission as Sheriff of the parish of Orleans, vice Joseph Hufty, removed, and having given the bond and taken the oath prescribed by law, was, some days since, recognized by this court as its executive officer. In so recognizing him, this court acted upon the presumption that all things had been rightly done; there was no eontestatio litis, and the showing made expa/i'te was apparently regular upon its face. — 305 — We did not, and do not, regard that action on our part as decisive of the present issue. For the first time we have a controversy touching this matter presented before us according to the forms of law, upon a devolutive appeal from the decision of a tribunal having original jurisdiction, which this court has not. . The defendant has appealed from a judgment of the Sixth District Court of New Orleans, ordering him to surrender to the relator all the papers and other effects belonging to the office of the Sheriff of the parish of Orleans. There is no dispute as to the power of the Governor to appoint a Sheriff in case the office becomes vacant from any cause during a term. Const., Art. 80. There is no dispute as to the fact that the relator, Bell, has been so appointed with the advice and consent of the Senate, and that he is duly qualified to fill the office. . Then the sole question is, was there a vacancy when the relator was appointed? If there was, the judgment of the District Court is right; if there was not, it was wrong. The defendant, Sufty, is admitted to have been the legal Sheriff of the parish of Orleans until the 21st day of February, 1856, when it is alleged that he was removed from office by the following address of a majority of both Houses of the General Assembly : “An Address removing from office Joseph Sufty,- Sheriff of the parish of Orleans. “ Whereas, freedom of suffrage and the inviolability of the ballot-box are the only basis of republican government; and whereas, the great palladium of American-liberty has been overthrown and trampelled under foot at the late general election held in New Orleans on the 5th November, 1855, whereby the free expression of the popular will has been illegally suppressed by partisan Commissioners of Elections, who arrogated to themselves the power to disfranchise legal voters, and by bands of lawless men who not only drove peaceful citizens from the polls by intimidation, violence and bloodshed, but even after the polls had been closed, destroyed more than thirteen hundred legal votes which had been received during the election by the Commissioners, to the truth of which outrages the whole population of New Orleans bear witness; and whereas, the late Governor of this State has urged the Legislature to “ crush the evil at once, and before it' has taken root, and by the most pointed and energetic means;” and whereas, the Legislature is constituted by the organic law the grand inquest of the State, for the protection of the elective franchise from tumult, violence and other improper practice, and to vindicate the constitutional rights of the people rising above andinot the subject-matter of ordinary judicial investigation, but totally independend'ent of and not to be confounded with individual claims to office; and whereas,, the 97th Article of the Constitution declares that “ all civil officers, except the Governor and Judges of the Supreme and inferior courts, shall be removable by an address of a majority of both Houses, except those the removal of whom has been otherwise provided for by this Constitution;” and'whereas, a Sheriff is a- civil officer, whose removal is not otherwise'provided for by the Constitution ; and whereas, it has been indubitably established to the satisfaction of this Legislature that the constitutional, rights of the citizens of New Orleans have been grossly violated in the later election for Sheriff of the parish of Orleans; Therefore, be it resolved by the Se'nate and House of Representatives, of. the — 306 — State of Louisiana in General Assembly convened, a majority of the members of both Houses concurring in this address, that Joseph, Hufty, commissioned as Sheriff of the parish of Orleans, be and he is hereby removed from the office of Sheriff of the parish of Orleans. Be it further resolved, that this address be presented to the Governor of this State in compliance with the Constitution thereof, and that the same take effect from and after its passage. (Signed,) William W. Pugh, Speaker of the House of Representatives. (Signed,) 0. H. Mouton, Lieutenant Governor and President of the Senate. Approved, February 21st, 1856, (Signed,) Robert 0. Wicklihpe, Governor of the State of Louisiana.” If this address, thus approved, effected a removal of Joseph Hufty from the office of Sheriff, there is an end of the case. The objection of form, upon the ground that the address purports itself to remove the defendant from office, whereas the Article 97 of the Constitution requires the Executive to intervene upon the request of the Legislature, appears to be untenable. The address was presented to the Governor, and approved by him. His official approval and signature consummated the act. Constitution, Art. 54. The constitutionality of this Act of removal being then the only matter of inquiry necessary to the determination of this cause, we proceed to its investigation in the following order: 1st. Has the power of removing a Sheriff by means of an address of a majority of the members of both Houses been expressly conferred by the Constitution in any case ? 2d. If it has, are there any restraints or limitations laid down elsewhere in the Constitution, which rendered the exercise of the power, in this particular case, null and void ? I. Article 97 of the Constitution is in these words: “All civil officers, except the Governor and Judge of the Supreme and inferior courts, shall be removable by an address of a majority of both Houses, except those the removal of whom has been otherwise provided by this Constitution.” It is conceded that the Sheriff is a civil officer, and that the power of remov. ing him by address is expressly granted under this Article, unless he comes within the last exception, to wit: those officers, the removal of whom has been otherwise provided by this Constitution. Accurately speaking, the Constitution itself nowhere else provides a mode of removing Sheriffs. . But it is contended that Article 89, under the title of “Impeachment,” (title 5,) brings Sheriffs within the exception to Article 97 by declaring that “the Legislature shall provide by law for the trial, punishment and removal from office of all other officers of the State” [i. e. except those enumerated in the preceding Articles] “by impeachment or otherwise.” The power of impeachment or prosecution for misdemeanor in office, which in case of conviction involves a removal from office as an incident, and the power of removal without impeachment or prosecution, are concurrent powers, both of which are clearly recognized by the Constitution, and neither of which excludes the other. — 307 — The theory of our representative government is, that offices are created, not for individual emolument, but for the public good. And the object of the Constitution was to provide not only for the punishment of official delinquents, which would involve their dismissal from office, but also a mode of removing civil officers against whom no accusation of crime could be made or sustained, whenever the public good should require such removal. The Governor alone seems to have been exempted from the possibility of removal without impeachment or prosecution and trial for crime. Thus, “the Judges of all courts shall be liable to impeachment, but for any reasonable cause, which shall not be sufficient ground for impeachment, the Governor shall remove any of them on the address of three-fourths of the members present of each House of the General Assembly. In every such case, the cause or causes for which such removal may be required shall be stated at length in thé address, and inserted in the journal of each House.” Constitution, Art. 73. Clerks of the inferior courts are put upon a peculiar footing. “The Judges of the several inferior courts shall have power to remove the Clerks thereof for a breach of good behavior, subject in all cases to an appeal to the Supremo Court.” Constitution, Art. 77. But as a breach of good behavior may not amount to a crime, Clerks of courts would also seem to be embraced in the purview of Article 89, which commands the Legislature to provide by law for the trial, punishment and removal from office, by indictment or otherwise, of all officers of the State, except the Governor,' Lieutenant Governor, Attorney General, Secretary of State, State Treasurer, Judges of the Supreme Court,"and all Judges of the inferior courts, save Justices of the Peace; the “ trial, punishment and removal from office” of those officers, by way of impeachment, having been provided for in the preceding Articles 85, 86, 87 and 88. The Commissioners of the Board of Public Works also fall within the scope of Article 89, for whose trial, punishment and removal from office, by indictment or otherwise, the Legislature is bound to provide, although a special mode of removing them is provided by the Constitution itself in Article 133 : “The Commissioners may be removed by the concurrent vote of a majority of all the members elected to each House of the General Assembly; but the cause of the removal shall be entered on the journal of each House.” The last clause in Article 97: “Except those the removal of whom has been otherwise provided by this Constitution,” seems, therefore, to refer to Clerks of the inferior courts and to Commissioners of Public Works, and, perhaps, might also be held to embrace members of the General Assembly, each House of which is empowered by Article 21 to expel a member with the concurrence of two-thirds. All other civil officers (saving also the Governor and Judges of the Supreme and inferior courts) “shall be removable by an address of a majority of both Houses.” The construction contended for by the appellant, if carried out, would nullify and make surplusage of the whole Article 97. If the removal of all other officers is provided by Article 89, much more is the removal of the Governor; Lieutenant Governor, Attorney General, Secretary of State, State Treasurer and Supreme and inferior Judges provided in Articles 85, 86 and 87, under the same title of impeachment. Judgment in cases of impeachment extends to^ removal from office, and perpetual disqualification therefor.' Constitution, Art. — 308 — 87. And between Articles 86 and 89 a possible removal of all officers of the State by impeachment or trial and punishment in a proceeding analogous thereto, (by indictment or otherwise,) has been provided for, so that, according to this view, nothing remains for Article 97 to operate upon; the saving clause takes every officer in the State out of its scope; the grant of power in the body of the Article is wholly withdrawn by the proviso. It is impossible thus to violate the plainest canons of interpretation. The Act of March loth, 1855, (p. 370) relied upon by the appellant, fully recognizes the'two-distinct but co-existing modes of removal indicated so clearly in the Constitution Itself. That Act is entitled “an Act to determine the manner and regulate ’the proceedings in impeachments.” It provides only for cases where there is personal accusation of some offence against the officer himself. Even then, in section-3, it provides that if the House shall deem it expedient, after the preliminary investigation, it may abandon the impeachment and fall back upon the alternative-and .milder course, of removal by address. Conviction under impeachment forever disables the convict from holding office; a simple removal ¡by address entailsmo-such disability. An impeachment implies a personal and ignominious punishment for guilt; a removal by address need not imply any criminality.on the party-removed; it merely asserts that his interests must yield to 'the public weal. We, therefore, conclude that the-Constitution in express terms conferred upon a majority of both Houses the power of removing the Sheriff, by an address presented to the 'Governor, upon his approval thereof. II. The-second branch Of <our inquiry-then is, are there any restraints or limitations laid down elsewhere in the Constitution which rendered the exercise of the power of removal by address, imthis instance, null and void? We say '“elsewhere in the Constitution',” because, if the power is expressly granted, we disclaim the right'to limit or- control it by considerations outside of the Constitution. We are not .the makers but the expounders merely of the paramount law. We. cannot add one jot or tittle to its terms. We cannot, by glosses and interpretations, subtract one particle from its substance. It would be rebellion in,-a. Judge to say that-a plain, and unqualified grant of power given by the Constitution to.a ¡particular department of the government was null, be-cause he:-thoughtit was against “ common right.” And it would be an assumption of -sovereign authority for the Judge to say: “ I will construe, qualify and ,pare away this unqualified grant of .power, so as to make it consort with my .ideas of common right:” .Fixing our eyes, then, on Article .9.7 of the Constitution, as the source and •measure of the legislative ¡power in this.instance, we find it to be untrammeled iby.any conditions or reservations. It says simply that the class of officers to '.which -the Sheriff belongs “ shall be removable by an address of a majority of (the.members of both Houses.” ¡Looking at provisions for the removal of other officers, we find each qualified ün a way peculiar to itself. - -“.For any reasonable cause, which shall not be sufficient ground for impeachment, the-Governor shall remov.e-.any of-them, [the Judges of all courts] on the address of three-fourths of the members present of each House of the General Assembly. In -.every such case, the cause or causes for which such removal may be required, shall be stated at length in the address and inserted in the journal of each House.’” .Constitution, Art. ,73. — 309 — ' Clerks of the several inferior courts may be removable by the Judges thereof, “ for breach of good behavior; subject in all cases to an appeal to the Supreme Court.” Constitution, Art. 77. Commissioners of Public Works “may be removed by the concurrent vote of a majority of all the members elected to each House of the General Assembly ; but the cause of the removal shall be entered on the journal of each House.” Constitution, Art. 133. When we consider how carefully every word is weighed in framing the fundamental law of a sovereign State, the omission in Article 97 of all these various qualifications affixed to the power of removal in other cases, becomes significant of a purpose. It leads us to the conclusion that the makers of the Constitution intended to leave the power of removing the civil officers embraced in Article 97 absolutely to the prudence of a majority'of both Houses of the General Assembly, unless the exercise of the power in a particular case should come in conflict with a positive inhibition contained elsewhere in the same instrument. Article 105 : “ No ex post facto law, nor any law impairing the obligation of contracts shall be passed, nor vested rights be divested, unless for purposes of public utility, and for adequate compensation previously made.” It has been contended for the appellant that such an inhibition is found in It is hardly tenable to say that a man can have a “vested right” to any public office under our form of government. Certainly it cannot be said of a Sheriff, when, in the language of the 80th Article of the Constitution, the very tenure of his office is, that he shall hold it “for the term of two years, unless sooner removed.” Again, it was said that an implied restraint upon the power of removal by address is to be found in Article 103 of the Constitution: “Prosecutions shall be by indictment or information. The accused shall have a speedy public trial by an impartial jury of the vicinage; he shall not be compelled to give evidence against himself; he shall have the right of being heard by himself or counsel; he shall have the right of meeting the witnesses face to face, and shall have compulsory process for obtaining witnesses in his favor.” But here was no prosecution. No accusation was made against the defendant. No accusation was necessary. The argument that the Act was void because the defendant had no hearing and no notice, confounds the unrestricted power of removal by address under Article 97 with the distinct but concurrent power of removal which results from a successful impeachment or prosecution for misdemeanor, when the party accused must have a trial, pursuant to the Articles under the head of impeachment. This distinction, founded in reason, and recognized both by the Constitution and laws, has already been developed. Finally, it was urged that the address in this case was an usurpation by the Legislature of a judicial power, and therefore within the prohibition of Article 2 of the Constitution. The power of removing an officer upon address of the two Houses is not a judicial power, but is essentially administrative. As we have seen, this proceeding, having for its end the public welfare and not the punishment of an individual, is not at all in the nature of an impeachment, which requires a trial, and of which, in case - of conviction, the removal from office is a mere consequence, making a necessary part, but only a part, of the sentence. — 310 — Even if there were something of a judicial character in the proceeding, it would not be void on that account, because the Constitution itself has vested unqualified power over this subject in the legislative department, and the case would come within the saving clause of Article 2: “No one of these departments, \_i. e. the legislative, executive and judiciary,] nor any person holding office in one of them, shall exercise power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.''' We therefore find no other Article of the Constitution which so modifies Article 97 as to render the exercise of the removing power in this particular case null and void. But as it has been pressed with much earnestness that the verdict and judgment in favor of the defendant, Hufty, when the present relator, Bell, contested his election in the First District Court of New Orleans, before any commission had been issued, formed a peremptory bar to action of the Legislature in this matter, we remark : 1st. There is no element of the res judicata in that judgment which could bar the power of removal under Article 97. The question in one case was, shall Mr. Hufty receive a commission ? in the other, shall he be removed from office ? There were two contending parties in one case, each urging that he could count the greater number of votes in his favor; in the other there were no parties, the act being an act of administration intrusted by the Constitution, without qualification or control, to a particular department of the government. 2d. The judgment in the case contested between Bell and Hufty is not disturbed, but has had its full force and effect. That judgment declared the defendant the Sheriff elect. It was no more and no higher evidence of title to the office than the return of the proper officer in his favor would have been in case there had been no contest. The judgment was final, just as the return would have been if not contested within the legal delay. No appeal lay from it. No new trial could be granted. No second suit could be instituted by Bell contesting the election of Hufty. The judgment secured to the defendant the commission and station of Sheriff of the parish of Orleans- for two years, “unless sooner removed.” No verdict and no judgment could expunge that condition from the tenure of his office,.for it was-inserted' in his-commission by the Constitution itself. The defendant,, therefore, has had the fruits of his judgment; he has been Sheriff of the parish.of Orleans; until removed he reaped its emoluments, and his right to do so, and the binding force of his official acts until his successor was qualified, can never be questioned, for the judgment of the First District Court is unreversed and irreversible. 3d. There are reasons assigned for the act of removal,-in the preamble to the address, other than those pleaded in the controversy between Bell and Hufty upon the legal inquisition into the state of the vote. 4th. If the Act of removal was within the constitutional competency of the Legislature, uncontrolled by a superior power, as we have found it to be, the reasons assigned by the preamble to the address could not, in any case, vitiate the Act, so as to authorize the judiciary to annul it. The independent and coordinate department of the government to which this whole business has been exclusively confined is composed of men who, like ourselves, act under the sanction of official oaths, and who render their account, not to us, but to their consti — 311 — tuents, the people. When they do an act within their constitutional sphere, we, as Judges, have no right to say whether the reasons they give for it are good, bad or indifferent, much less to veto the Act because we find the reasons for it open to criticism. As well might it be said that another department of the government might set aside the final judgments of this court, because the reasons assigned for such judgments are lacking in solidity. To the people alone are the two Houses responsible for the purity of their motives, the sufficiency of their reasons, and the wisdom of their conduct in this matter. We, therefore, pass in silence what was said at bar, on the one side, as to the hardship of removing an officer for no alleged fault of his, and without a hearing, and on the other, as to the necessity of teaching all men to revere the sanctity of the ballot-box and the freedom of the elective franchise, which are the life of republican institutions. These arguments touch a question of expediency only; they were doubtless considered in the legislative halls before the measure was adopted, and may be considered again in popular assemblies where legislators give an account of their stewardship; but they cannot with propriety be permitted to disturb the deliberations of this tribunal, removed, as it is and ever should be, from the arena of political strife.