State ex rel. Mullis v. Mathews

PER CURIAM. This is an impeachment proceeding originally commenced in this Court by the filing of an information by E. E. Mullís and four other individuals in their own behalf and in the name of the State of Alabama on their relation, wherein they aver in twenty-four specifications that the respondent, H. Ralph Mathews, Jr., Sheriff of Russell County, is guilty of willful neglect of duty. [129] There is no charge of the other constitutional grounds of impeachment, viz., corruption- in office, incompetency, intemperance or an offense involving moral turpitude. The information alleges that E. E. Mulli9 and the four other individuals are resident taxpayers of Russell County, Alabama. It is signed “State of Alabama, on the information of,” followed by the signatures of the five individuals, who sign their names followed by the description, “Individually, as- resident taxpayers of Russell County, Alabama.” The information is also signed “Brown & McMillan, Counsel for Informants.” No one purports to sign the information as counsel for the State of Alabama. The Attorney General of the State has not signed his name to the information and he has not in any way appeared in this case to prosecute the case on behalf of the State. Private attorneys, as counsel for the individual taxpayers, appear on behalf of the plaintiffs, the State and the taxpayers, to prosecute this cause. The information in this case- is filed under the apparent authority' of Code 1940, Title 41, sections 181 and 182. By the pleadings, it is the insistence of defendant (1) that this statute does not authorize private counsel to sign or prosecute such an information on behalf of the State, and that if it does so such provision of the statute is unconstitutional; and (2) that said statute is unconstitutional in so far as it attempts to confer on private citizens or their attorneys authority to file or prosecute in the Supreme Court a constitutional impeachment proceeding in their names jointly with the name of the State, or otherwise. It is also insisted by the defendant that the several specifications of the information do not state grounds of impeachment. The insistence of counsel for respondent is that section 181, Title 41, Code, under which the information was instituted, is -unconstitutional and violative of sections 8 and 170 of the Constitution of 1901. The authority to impeach the sheriff is Under section 174 of the Constitution for the causes set forth in section 173. It must be done by original proceedings begun in this Court. The legislature is directed to make provision for such an impeachment. Section 174, supra, is not self-executing but it is necessary for the procedure to be enacted by the legislature. State ex rel. Attorney General v. Buckley, 54 Ala. 599. The legislature has done so. This now appears in Article 2, Title 41, beginning with section 178, Code. Sections 180, 181, 182 and 201, Title 41, Code, apply more directly to the questions here presented. Section 180, supra, authorizes proceedings under sections 174 and 175 of the Constitution (this includes sheriffs) “in the name of the State of Alabama, in the nature of an information, by the attorney general, or solicitor, or upon the information of such other persons as are by this chapter allowed to institute the sarnie; and all such proceedings shall be conducted, and all process shall issue, in the name of the State of Alabama.” Section 181, supra, provides that “Any five resident taxpayers of the * * * county * * * for which the officer sought to be impeached was elected or appointed, may institute proceedings of impeachment, under either of the sections of the constitution above expressed (174 and 175), upon giving bond” for the costs-. Section 182, supra, contains requirements as to the contents of the information, “and shall be signed by the attorney general, or solicitor, or by counsel, as the case may be ; and when such information is by taxpayers, the names of such taxpayers must be joined as plaintiffs with the state.” Section 201, supra, makes it “the duty of the attorney general to institute proceedings under this chapter, and prosecute the same against any officer included in section 174, article 7, of the constitution (including sheriffs), when the supreme court shall so order, or when the governor shall, in writing, direct the same, or when it appears from the report of any grand jury”, etc. The solicitor may institute the proceeding when it is begun in the circuit court under section 175, Constitution. An impeachment proceeding under section 174 of the Constitution is a criminal prosecution. State ex rel. Attorney General v. Buckley, 54 Ala. 599; State ex rel. Attorney General v. Tally, 102 Ala. 25, 15 So. 722; State ex rel. Attorney General v. Robinson, [130] 111 Ala. 482, 484, 20 So. 30; Batson v. State, 216 Ala. 275, 113 So. 300; State ex rel. Knight v. deGraffenried, 226 Ala. 169, 146 So. 531. Section 8 of the Constitution provides in substance so far as here material that no person for an indictable offense shall be proceeded against criminally by information except as noted, the exception including misdemeanors when so authorized by the legislature. Section 170 of the Constitution provides that “The style of all processes shall be ‘The State of Alabama,’ and all prosecutions shall be carried on in the name and by the authority of the same, and shall conclude'‘against the peace and dignity of the state’.” It was said in the Buckley case, supra, that impeachment proceedings fall in the class .of criminal prosecutions, mentioned in what is now section 8 of. the Constitution, which, do not require an indictment. On page 620 of 54 Ala. of the opinion it refers to section 7 of the Bill of Rights of the Constitution of 1875 in this connection, but it is evidently referring to section 9, and it places impeachment proceedings in the same class with criminal prosecutions ¡which may be begun by authority of law without an indictment. There is nothing in section 8 which is contravened by section 181, supra, or by the instant proceeding. Section 8 of the Constitution authorizes the legislature to make provision for the institution of prosecutions and proceedings in cases of misdemeanor without an indictment, which the legislature has done as manifested by section 327, Title 13, Code. It is also contended that section 181, supra, violates section 170 of the Constitution, to which we have referred. This proceeding is required to be and it is'styled in the name of the State of Alabama and prosecuted by its authority, sections 180 and 181, Title 41, Code, section 170, Constitution, and concludes “against the peace and dignity of .the state” see, Thomas v. State, 107 Ala. 61, 64, 17 So. 941, and therefore, it does not violate section 170 of the Constitution. It is also contended that sections 180 and 181, supra, do not authorize five -private individuals either to institute or conduct such a proceeding by the use of private counsel employed to do so without the authority of the attorney general. If is admitted in this case that the relators being five resident taxpayers employed private counsel without the authority of the Attorney General, and that it is proposed to conduct this proceeding in this Court by such private counsel without such authority in derogation of the power of the Attorney General to control the same. While section 181, supra, has been in the Code for a long time, not much use has been made of it. The case of State ex rel. Johnson v. Lovejoy, 135 Ala. 64, 33 So. 156, is the only reported case which we have observed in which the authority of that statute was exercised. The report of that case and its record in this Court do not indicate that any question was raised as to its conduct by privately employed counsel or the constitutionality of said statute. The original record of the case gives no indication that the attorney general participated or that there was objection because he did not participate or authorize private counsel to conduct such proceedings. It shows that a demurrer to the information was sustained on the ground that it did not conclude “against the peace and dignity of the state”. It was then amended in that respect. There was a judgment entered, finding that the charges were not proven beyond a reasonable doubt and, therefore, that respondent be discharged on that account. We think that case is not persuasive in reference to the question involved either for or against the contention of respondent in this case. Our records also show that on June 8, 1904, an information in the name of the State of Alabama on the relation of five named resident citizens and taxpayers of Lowndes County was filed in this Court for the impeachment of J. Carlton Wood, Judge of Probate of Lowndes County, Alabama. It was signed by Alexander D. Pitts and Pettus and Jeffries, designating themselves as “attorneys for the State of Alabama on the relation of said relators,” and security for costs was given. The Court thereupon [131] made an order setting the impeachment proceeding down for hearing. An amendment to the information was filed, which was signed by the same counsel and in the same capacity as the original information. This amendment added many specifications to the charge. Neither it nor the original showed that the attorney general participated in or authorized the proceeding or that there had been any order made for the proceeding either by the Supreme Court, the governor or the grand jury. The minutes of the Court show that said amendment was allowed by order of the Court. There also appears on the minutes of the Court a judgment which denied and overruled the motion by the respondent to quash the information as amended and to strike separately and severally the specifications numbered in said information and in the amendment thereto, and the charge upon which the specifications are based, and which also overruled the demurrers of the respondent to the information as amended and separately and severally to each specification of the same. The record does not show upon what grounds the motion to quash or to strike, or the demurrer, was based. So that, we do not know whether those motions and the demurrer raised the questions which are presented in the instant case. The record further shows that after said motions and demurrer were overruled, the respondent resigned as probate judge of Lowndes County and the proceeding was abated. So that, the proceedings in that case and the rulings made in it, like the Lovejoy case, supra, are not decisive of the case here involved. Our records also show that on June 9, 1916, an information was filed in this Court against Pal M. Daniel as sheriff of Russell County. State ex rel. Attorney General v. Daniel, 196 Ala. 704, 72 So. 1020. The information was in the name of William L. Martin, attorney general, prosecuting in the name of and for the State, and also a large number, much more than five, persons who declare that they join as plaintiffs in the action, and that they are resident taxpayers of Russell County, and appear under the law and statutes of the State as plaintiffs. Neither the information nor any other feature of the proceedings indicates that the attorney general was ordered to file the information by the Supreme Court, the governor or a grand jury report. The proceedings do not show that security for costs was given by the resident taxpayers named. To be supported by section 181, supra, as in the instant case, it was necessary for the taxpayers to give security for costs. As we have said that failure does not appear to have been presented to the Court by the respondent in the Daniel case, supra. So that, there is nothing in that status which we think would have any influence upon the questions here involved. It is noted, however, that a demurrer to the information on the ground that it did not conclude “against the peace and dignity of the state” was sustained and the information was amended so as to do so. It is our view that five resident taxpayers may institute an impeachment suit in this Court upon complying with sections 181 and 182, supra, and that the information required to be filed in doing so may be upon their relation, as authorized by section 180, supra. Referring now to the insistence made by respondent that although an impeachment against the sheriff may be instituted by five taxpayers in the name of the State, as authorized by sections 180 and 181, supra, it cannot be prosecuted by private counsel employed by relators, but must be prosecuted by or under the direction of the attorney general. It is also our view that the legislature may not only authorize an impeachment to be instituted as in section 181, supra, but may authorize it to be prosecuted by private counsel. Section 170, Constitution, requires it to be carried on in the name and by authority of the State of Alabama. .When the legislature authorizes it to be done in the name of the State, and prosecuted by privately employed counsel, the prosecution will thereby be conducted by authority of the State. The legislature exercises all the powers of the State, and may legislate without restriction except by the Constitution. So that, a prosecution by legislative authority is a prosecution by au [132] thority of the State within the meaning of section 170, Constitution. Construing sections 181 and 182, supra, in connection with other features of the daw, we have reached the conclusion that they authorize not only the institution of an impeachment by five resident taxpayers of Russell County, but also authorize them to prosecute the proceeding by such counsel as they wish to employ. Therefore, the grounds of demurrer, to which we have referred, are not well taken. We have also given consideration to the other grounds of demurrer. We think they have been heretofore considered in other impeachment cases instituted by the same constitutional authority, and have held that they are not well taken. So that, the demurrer to the information and its several charges and specifications is overruled. In response to the motion to require counsel to show by what authority they appear for the State, we think the showing made is sufficient, and that their appearance for the State is well supported. It is so ordered. LIVINGSTON, C. J., and BROWN, FOSTER and LAWSON, JJ., concur. SIMPSON, STAKELY and GOODWYN, JJ., dissent.