State ex rel. Johnston v. Foster

The opinion of the court was delivered by Horton, C. J.: -'The defendant has filed a motion for a new trial. "Various reasons are alleged. "We shall refer to those discussed by counsel upon the hearing of the motion. The provision in the act of 1881, prohibiting the manufacture and sale of intoxicating liquors, except for specific purposes, that, “ If any county attorney shall fail or refuse to faithfully perform any duty imposed upon him by this act, he shall be deemed guilty of a misdemeanor, and on conviction thereof in the district court, shall be fined in any sum not exceeding five hundred dollars, and on such conviction shall be deemed to be removed from office,” does not furnish the exclusive remedy for the removal of county attorneys for misconduct in office, and does not conflict with or abrogate §180, ch. 25, page 312, Comp. Laws of 1879, which reads: “If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure.” . That provision of the prohibitory law affords merely an additional or cumulative remedy. Somewhat similar provisions in regard to persons holding public offices were adopted subsequently to the enactment of § 180. Thus: “Every person exercising or holding any office or public trust, who shall be guilty of willful and malicious oppression, partiality, misconduct, or abuse of authority in his official capacity, or under color of his office, shall, on conviction, be punished by imprisonment in the county jail for a term not — 39 — exceeding one year, and fined not exceeding one thousand dollars.” Also: “Every person who shall be duly convicted of any of the offenses mentioned in the preceding section, . . . shall be forever disqualified from holding any office of honor, trust or profit under the laws of this state, and from voting at any election.” Further: “ Every officer or person holding any trust or appointment, who shall be convicted of any willful misconduct or misdemeanor in office, or neglect to perform any duty enjoined on him by law, where no special provision is made for the punishment of such misdemeanor, misconduct, or negligence, shall be punished by fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment.” This is supplemented as follows: “Every officer who shall be convicted of any official misdemeanor or misconduct in office, or who shall be convicted of any offense which by this or any other statute is punishable by disqualification to hold office, shall, in addition to the other punishments prescribed for such offenses, forfeit his office.” (Comp. Laws of 1879, ch. 3.1, §§ 207, 209, 212, 213.) It has never been claimed, and cannot be claimed, with reason, that these sections, enacted subsequently to the statute relating to counties and county officers, were intended by the legislature to be the exclusive remedy for the removal of county officials guilty of misconduct, or were adopted as a substitute for said §180. The latter section provides for a civil action, reaching only to the possession of the office and its emoluments; the other sections provide for criminal proceedings which, in addition to the forfeiture of the office, subject the guilty official to the infliction of a fine or imprisonment in the county jail, or to both fine and imprisonment. If a county attorney is removed from office by a civil action for the forfeiture of his office on account of his misconduct, he is not thereby relieved from criminal prosecution. The removal of the defendant by the proceedings commenced — 40 — against him in this court will not render him less ■ amenable to prosecution for his official misconduct in the district court of his county. That the legislature did not intend a criminal prosecution to be the exclusive remedy against a county attorney who fails or refuses to perform the duties imposed upon him by the prohibitory law, is apparent, because it is expressly provided therein that— “It shall be the duty of the county attorney, under penalty of forfeiture of his office, to prosecute any and all persons guilty of any violation of the provisions of this act.” This is a separate and independent clause from the provision relating to the trial and conviction o'f an unfaithful county attorney by a criminal prosecution in the district court of his county, and is in harmony with said §180. Counsel refer to The State v. Wilson, 30 Kas. 661, as decisive that the declaration of the forfeiture of the office 'of county attorney can only follow his conviction and sentence in the district court of his county. Counsel, in their reference and argument, are in error. In the case to which we are referred, the action was brought to oust a defendant from the office of mayor of a city of the first class. Said §180, and the provision last quoted from the prohibitory act, have no application to city officials. It was expressly decided in the case cited, that the legislature may provide for the forfeiture of office for misconduct, independent of any criminal action, but that the statute relating to cities made no provision that a mayor shall forfeit his office ipso facto by reason of any act or omission of the character of those charges in the case then before the court. The most that can be urged upon this point of the effect of the decision in the case of The State v. Wilson, supra, is that the legislature by enacting in the prohibitory law a special provision that a county attorney, who fails or refuses to perform his duty, shall be guilty of a misdemeanor, and prosecuted in the district court of his county, intended thereby to cover the entire ground of criminal prosecutions against a county attorney who fails to comply with the duties imposed upon him by that law, .and to this extent supplanted — 41 — the provisions of the crimes act providing for criminal prosecutions for official misconduct. In the Wilson case, the removal was denied, because the statute failed to declare a forfeiture for the misconduct complained of; therefore, that case is not.conclusive in this, as the statute expressly provides for a forfeiture of the office of county attorney for the misconduct alleged in the petition. It was insisted in the preliminary motions prior to the impaneling of the jury, also upon the trial, and it is again insisted, that this proceeding is a criminal one, and if not in form a criminal prosecution, that at least it is in substance a criminal one, whatever the procedure may be. Not so. This is not an action to recover a fine or penalty, as was the case of Sanders v. A. T. & S. F. Rld. Co., instituted in the district court of Lyon county. (22 Kas. 1.) It is not an action for which any punishment by imprisonment or fine may be inflicted upon the defendant. It is not an action for punishment at all. The purpose of the proceeding is to remove the defendant from office, and this may be done by a civil action in the manner provided in the code of civil procedure. (Comp. Laws of 1879, ch. 25, p. 312, § 219, [§180]; The State v. Allen, 5 Kas. 213.) Notwithstanding this proceeding and the result attending it, the defendant may be prosecuted in his county for his failure and refusal to faithfully perform the duties imposed upon him by the prohibitory act, and if convicted, may be fined in any sum not exceeding $500. In such an action, he could not plead this proceeding in bar; and in this proceeding he cannot defend on the ground that as the statute makes his misconduct in office a misdemeanor, he cannot be ousted by a civil action. The objections made to the charge of the court are threefold. Of these in their order. The following language thereof is criticised: • “A county attorney cannot be controlled.by the wish or sentiment of the people of his county in the prosecution of the violators of any law. A county is a political division of the state, and the county attorney within his county is a representative of the state. After-he has commenced prosecutions under the prohibitory act against parties guilty of the violation of the — 42 — provisions of that law, and has been furnished with the names of witnesses by whom the violations can be proved, he is not to be deterred from his duty by mere public clamor.” A careful consideration of the arguments presented convinces us that this instruction is not erroneous. A county attorney, before entering upon the duties of his office, must take and subscribe an oath that “he will support the constitution of the United States and the constitution of the state of Kansas, and faithfully discharge the duties of his office.” After the utterance of this oath, he cannot sit down with folded hands and refuse to perform the duties imposed upon him, solely upon the ground that the sentiment of the community or county in which he resides is in opposition to the enforcement of the criminal laws of the state. Such action on his part would tend to increase lawlessness. Under such a doctrine, the more lawless the community, the less the criminal prosecutions. Such action would be a temptation for malefactors to create sentiment against the criminal laws, and to a great degree the law-loving and law-abiding citizens would be at the mercy of the vicious and criminal classes. The state owes the duty to its citizens to protect them in the full enjoyment of all their rights, and if the lawless element of any community or county happens, for the time being, to be in the majority, the orderly, peaceable and quiet citizens ought not to be subjected to their domination. The laws of the state ought not to be suspended at the will of any class, much less of a class who flagrantly avow their determination to defy law. The county attorney within his county, to a certain extent, is a representative of the'State. He is to prosecute in his county for the state. He is the officer upon whom the state relies for the prosecution of all criminal offenses within his jurisdiction. „If he fails or refuses to act, the law is voiceless and powerless. It is paralyzed. It protects no one needing protection; it punishes no one deserving punishment. If a county attorney vigilantly and earnestly discharges his duty by frequent prosecutions in a community seemingly indifferent to the enforcement of law, his action will of necessity call — 43 — the attention of the public to the disregard of law and the dangerous consequences following therefrom; his action will oftentimes awaken a community to a just realization of its duty, and arouse its members from indifference to a willing obedience to all that the law demands; his action will oftentimes result in enlightening public sentiment and in crysfalizing public opinion in favor of the enforcement of all the laws. If a county attorney may willfully refuse to act in one particular class of criminal offenses on account of the opposition to be expected from the sentiment of the community in which he resides, he may refuse, for like cause, to act in all classes of criminal offenses. Thus, if he has the discretion to say he will not attempt to enforce the prohibitory law in his county, he has also the discretion to refuse to enforce the statute relating to murder, larceny, forgery, and the other crimes. It cannot be that a county attorney has such discretion or power. If it were so decided, “’Twill be recorded for a precedent; And many an error, by the same example, Will rush into the state.” If a law enacted by the legislature has not the support of public sentiment, this may be, under some circumstances, a reason for its amendment or repeal, but it is not a good defense for a county attorney, upon whose lips is fresh the oath of office, for refusing to attempt its enforcement. It is claimed that the court failed to charge the jury of the defense set forth by the defendant, and also failed to bring to the attention of the jury that the defendant had made or set up any answer to the petition filed against him. After the impaneling of the jury, the defendant filed the following written admissions: “First, That the defendant is county attorney of Saline county, as alleged in the petition. “Second, That the persons named in the petition were guilty of violating the prohibitory law, as stated therein. “Third, That the defendant was notified of such facts, and knew the same of his own personal knowledge. “Fourth, That after the notification, he filed complaints — 44 — against these parties, for such offenses, before the justice of the peace named in the petition. “Fifth, That said cases were continued from time to time, with the consent of counsel on both sides. “Sixth, That said cases were dismissed by the justice of the peace, with the consent of this defendant, upon the payment of all costs by the defendants.” These admissions rendered it unnecessary to refer to the answer of the defendant, as they changed the issues made up by the pleadings. By the admissions, the issues in the case were narrowed to the question of the conduct of the defendant in prosecuting and dismissing the criminal cases commenced by him; thereafter, it was only necessary for the state to prove that he acted corruptly or with bad motives, to make out its case. After such admissions, the state was called upon only to establish by the preponderance of the evidence that the continuances of the cases from May 14, 1883, to the 1st of September, 1883, were inexcusable, and that the cases were dismissed by the defendant to shield the persons therein charged with offenses from the consequences and penalties of their acts; or that the cases were dismissed by him because he had deliberately resolved not to enforce the prohibitory law in his county, or prosecute the violators thereof. The reading of the answer to the jury, in view of the admissions, would have misled them and called their attention to issues not before them for consideration. It is further claimed that the charge of the court did not refer to the evidence given by the defendant and in his behalf concerning the reasons for the various continuances of the criminal cases brought by him and the grounds, for their dismissal. On the day that the cases were dismissed before the justice of the peace, the defendant filed in writing, with the justice, the following reasons therefor : “First. I believe from the information I have received from all parts of the county that it-is not the wish of the people to have this class of cases prosecuted at this time. Their reasons are: the expense that will be incurred upon the county, the uncertainty of conviction in some instances, and the bad feeling and trouble each prosecution will bring, etc. — 45 — “Second. The sentiment, as I now learn it, seems to have been the feeling of the people at the last general election. “Third. No person has come to me, and in earnest requested me, as county attorney, to attempt to enforce the prohibitory law in this county. “Fourth. The city of Salina has ample and valid ordinances for enforcing said law, and it is the feeling of the people in the county, I believe, that Salina should attend to it, be responsible for, and pay the expenses for it — that is, the enforcement of the prohibitory law. “Fifth. I believe these prosecutions to have been suggested by the sheriff of Saline county under mistake as to the sentiment of the people of the county, or for some ulterior reason, or by the mistaken advice of his friends, and not with an actual intent to enforce said law. “ Sixth. I ought, at least, to have the assistance of a prosecuting witness. No one has offered to be such. “Seventh. I stand ready to enforce the prohibitory law, and all laws, upon any person coming forward willing to sign and swear to a complaint; that is, where the statements show that an offense has been committed.” Upon the trial, evidence was offered on the part of the defendant that the cases were continued before the justice from time to time on account of professional engagements of counsel on one side or the other, and that the cases were finally dismissed because the justice refused a continuance on August 31, 1883, to enable the defendant and the attorney opposing him in those cases to attend the following September session of this court. We charged the jury that “evidence had been introduced before them tending to prove the various continuances of the cases commenced by the defendant, and the proceedings attending their dismissal,” and stated to the jury that “the law presumes an officer performs his duty, and in this case the burden of the proof was upon the state.” We declared, however, to the jury, “that the written reasons furnish no excuse or justification for the defendant in this action — of ouster against him — for dismissing the cases.” We are fully satisfied with this declaration. The written reasons show — 46 — upon their face that the defendant was not favorable to the enforcement of the prohibitory law in his county, and that he attempted, by the filing of the paper containing his reasons for dismissing the cases, to excuse himself for the non-performance of his duties upon his belief that it was not the wish of the people to have that class of cases prosecuted. Further than this, in his reasons he unnecessarily and improperly censured the sheriff of Saline county for the performance of an official duty. We submitted to the jury, in the language of the charge, the question whether the defendant was acting in good faith in the prosecution and dismissal of the cases. The evidence pro and oon upon the question of the conduct of the defendant, and the motives by which he was actuated, was fully and elaborately discussed before the jury. The counsel were given wide latitude in their arguments, and upon the part of. the defendant, counsel earnestly and ably commented upon all the evidence tending to establish that the continuances of the cases were necessary, and that the dismissals thereof were caused by matters over which the defendant had no control. The argument to the jury on their part-was that the defendant acted in all respects faithfully and honestly in the discharge of his duties. The jury were informed, “If he was influenced to dismiss the cases by a desire to shield and protect the persons against whom he had filed his complaints from punishment for their acts, their verdict should be for the .state.” They were further informed, “If the defendant, at the time of the dismissal, had deliberately resolved not tQ enforce the prohibitory law in his county, and filed, his motion for the. dismissal of the cases for that reason, the state was entitled to a verdict.” In behalf of the defendant, the jury were directed, “That as county attorney of Saline county, he had discretionary power, within certain limits, in instituting and prosecuting criminal actions in his county, and if he honestly exercised that discretion, either in bringing the same or failing — 47 — to bring the same, or in the conduct and disposition of the cases after they were brought, he could not be removed from his office.” The jury were further directed that, “If, after consideration of all the evidence, they should find the defendant, in the exercise of his discretion and acting in good faith, dismissed the cases commenced by him for reasonable cause, the verdict must be in his behalf; that in fact, the main question in the case for the jury to determine was, whether the defendant acted in good faith in the discharge of his duties as county attorney in the cases named in the petition. If he did not, their verdict must be against him; if he faithfully discharged his duties, the verdict must be for him.” We have considered all the exceptions taken to the charge, and find none of them tenable. Upon the evidence presented, we do not conceive the charge was partial or misleading, or in any manner prejudicial to the rights of the defendant. We do not think the instructions asked for on the part of the defendant conflicting with the law as declared in the charge, ought to have been given. We think the case was fairly submitted to the jury in such a manner as to permit them intelligently and impartially to pass upon the issue presented. It was for them to say whether the criminal cases were dismissed by the defendant from corrupt or bad motives, or whether they were dismissed on account of the reasons testified to by the defendant and his witnesses. The witnesses who testified concerning the dismissal of the cases were before the jury in person; The jury saw them, and heard them testify. It was the jury’s province to determine their credibility; to believe or disbelieve them. Evidently from the verdict, the jury did not believe the defendant prosecuted the criminal cases in good faith, or that he dismissed them for any reasonable or sufficient cause. The verdict is sustained by sufficient evidence, and we cannot say that it is against the weight or preponderance of the evidence. Something has been said that if the defendant acted from ignorance of the law, or a misconception of his duty, he ought not tó be removed. In brief, that he ought not to suf — 48 — fer for any error of judgment. It is an answer to all this, that the defendant did not claim to be ignorant of his duty. He did not base his defense upon a mistake of judgment or ignorance; he attempted to show upon the trial that the cases dismissed by him were finally disposed of for other and different reasons than those contained in his written statement filed with the justice of the peace; but, even if the defendant had made the defense contended for, it is doubtful, in a civil action of this' character, whether he could resist ouster upon the ground that he mistook the law, and therefore failed or neglected to perform his official duty. The fourth defense in the answer copies in full the act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and avers that it is contrary to and against the constitution of the United States, and the laws passed in pursuance thereof. This much of the answer presented no defense whatever, and might well have been stricken from the pleading. In our opinion, there is no provision of the prohibitory act referred to in the charge, or involved in this case, violative of the ■constitution of the United States, or of any act of congress. In consideration that many of the questions arising in this case have been passed upon and settled by the decision of this court in The State v. Allen, supra, we think it unnecessary to make further comments upon the matters submitted to us. Many of the questions of law involved in this case were decided in that case, and generally, we have applied to this ■case the principles of law stated therein. , . The motion for a new trial will be denied, and upon the verdict of the jury, the court finds that the defendant has forfeited his office as county attorney; and it is therefore ordered that judgment be entered that he be removed therefrom. All the Justices concurring.