Gray v. Independence County

Hart, J., (after stating the facts). In the case of Allen v. State, 32 Ark. 241, this court held that our statute providing for the suspension from office by the circuit court of any county or township officer against whom an indictment has been found for any of the crimes mentioned in the statute, until the charge is tried, is not unconstitutional. In Sumpter v. State, 81 Ark. 60, an earnest effort was made to induce the court to overrule its decision in that case. The court declined to do so, and, in a well considered opinion, reaffirmed the rule established by its former decision. Section 10335 of Crawford & Moses’ Digest provides that, when an indictment shall be filed against any county or township officer for certain crimes, including e criminal conduct amounting to a felony,’ such circuit court shall immediately suspend such officer from his office until the indictment is tried, provided the suspension shall not 0 extend beyond the next term after the indictment shall be filed, unless the cause is continued on application of the defendant. This court had this section of the statute under consideration in the case of Jones v. State, 104 Ark. 261, where it was held that the indicted officer may be suspended for any criminal conduct amounting to a felony, whether ' amounting to official misconduct or not. In short, the court held that the phrase, “criminal conduct amounting to a felony, ’ ’ may also be applied to individual and personal acts not connected with the office. In that case the suspended officer was indicted for murder in the first degree, and the judgment of .suspension was affirmed. It will be noted that the defendant was acquitted of the felony charge against him, and it is urged that, on this account, he is entitled to recover his salary during the period of time he was' suspended from office. "We think it is clear that he cannot recover. In the case of Allen v. State, supra, the court said: “Offices are not regarded in this country as grants or contracts, the obligation of which cannot be impaired, but rather as trusts or agencies for the public. They .are within the power of the Legislature, except so far as the Constitution may forbid interference with them. Coffin v. State ex rel. Norton, 7 Ind. 157.” In the case of Sumpter v. State, supra, the court quoted with approval from a decision of the .Supreme Court of the United States, to the effect that the nature of the relation of a public officer to the public is inconsistent with either a property or contract right, and that the salary is not compensation for services secured by contract, but compensation for services actually rendered. The general rule is that, if the office is vacant, it becomes, as to the suspended person, for the time being, as though it did not exist, and as to the public, the person appointed to fill the last vacancy is the sole incumbent of the office. Steubenville v. Culp (Ohio), 43 Am. Rep. 417; Shannon v. Portsmouth, 54 N. H. 183; Westberg v. Kansas City, 64 Mo. 493; Howard v. St. Louis, 88 Mo. 656, and Barbour v. U. S., 17 Ct. of Claims (U. S.) 149. It follows that the judgment will be affirmed.