Ex parte Lehman

Chalmers, J., delivered the opinion of the court. The order of the court, for disregarding which the relator was imprisoned as for a contempt, was unmistakably an order of removal or suspension from office. It was so treated and regarded by the judge who made it and by the officer who disobeyed it, and such it plainly was. If there exists under any circumstances power in the circuit courts of this State to remove or suspend from office the clerks of these courts before conviction by a petit jury, their orders assuming to do so must be obeyed until reversed, however wrongful they may be in the particular case; since it is only where a court has undertaken to make an order which it is without jurisdiction to make in any state of case that its commands may' be disregarded with impunity. Ex parte Wimberly, 57 Miss. 445. The question presented, therefore, is this, Can a circuit court in this State by its own order, without a trial and conviction [975] of any offence remove, or temporarily suspend from office, for any cause whatever, the circuit clerk of a county? We have no hesitation in answering this question in the negative — circuit clerks with us are constitutional officers elected by the people for fixed terms of office. By sect. 26 of Art. VI. of the Constitution they are made amenable to indictment or prosecution by a grand jury, and trial by a petit jury for wilful neglect of duty or misdemeanor in office, and are to be removed from office when convicted; and this constitutional clause is put in operation and made more effective by sect. 417 of the Code of 1880, which makes it the duty of the court, upon conviction, to adjudge that the party be removed from office, and provides that the vacancy shall be filled as in other cases. Plainly these constitutional aud statute methods of removal are exclusive of all others. The Legislature has not attempted in any portion of bur statute laws to provide for the suspension from office of any officer after indictment and pending trial for a criminal offence or a misdemeanor in office. Such a law, if enacted, and if it operated as a practical removal from office before conviction, would be of doubtful constitutionality, since it would give to an indictment that effect which the Constitution attaches to conviction only, and inflict punishment before trial. The validity of such a statute was upheld in Allen v. The State, 32 Ark. 241, but repudiated in Lowe v. The Commonwealth, 4 Metc. (Ky.) 241; Bunn v. Grove, 6 Bush, 3. Certainly in the absence of legislation no such power can reside in the circuit court. It is true that the clerk is in many respects the arm of the court, the instrument by which it evidences its will and perpetuates a memorial of its proceedings, but he is an arm created aud an instrument furnished by the common master of both, who has provided the appropriate and exclusive method by which each shall be dismissed from his service, aud it is no more within the power of the judge to remove the clerk in violation of that method than it is within the power of the clerk to remove the judge. [976] The circumstances of the present case seem to have presented in their inception a plausible excuse for the action taken by the circuit judge, or, at least, to demonstrate that his action was prompted by the desire to protect the public interests. Four indictments, for falsifying the records of the court by is-, suing forged witness certificates in State cases for the corrupt and felonious purpose of defrauding the county had already been presented by the grand jury against the clerk, and while this proceeding by habeas corpus was pending in the court below nine more indictments for similar offences were brought in. The clerk was in the official possession of these indict-meuts and of all the evidences by which the State proposed to establish his guilt; but he offered to turn these over to the custody of the appointee of the court, and to yield, possession of the office itself so far as to permit its duties in relation to the indictments against himself to be discharged by another. The court declined to modify its order in the manner suggested and insisted upon his unconditional obedience to the order as entered ; by which order he was pei'emptorily removed or suspended from every function and privilege of the office, deprived of all its emoluments, and another person was appointed in his stead. This order is sought to be upheld by sect. 2279 of the Code, which authorizes, the appointing of a clerk or sheriff pro tempore when there is a vacancy in the office, or the incumbent is absent or unable to or refuses to discharge the duties of the position ; but it is manifest that the section has no application to the facts here existing. The clerk here was not absent nor did he refuse nor was he unable to discharge the duties of the position, and however unfit he might be morally to occupy such a place this was a question for the voters of the county and not for the judge. If convicted the law removes him ; if acquitted, even upon the doctrine of reasonable doubt, he must remain in office until the expiration of his term. The utmost power ofthe court was to take care that he should not use his official position to obstruct [977] bis own trial orto remove the evidences of bis guilt, and with this view its order should have been modified in the manner suggested bj the relator. It may be troublesome properly to execute such an order, but while no trouble is too great to insure justice and the infliction of proper punishment, it is better that the greatest criminal should go unpunished than that the Constitution should be violated by those* whose first and highest duty is to guard and protect it. If it need citation of authorities to show that no court can remove or suspend a constitutional officer save after conviction of an offence which authorizes it it is found in many cases and denied by none. Hyde v. The State, 52 Miss. 675 ; Page v. Hardin , 8 B. Mon. 673 ; Newson v. Cock, 44 Miss. 362; Lowry v. Tullis, 32 Miss. 147 ; Honey v. Graham, 89 Texas, 11; Cury v. Stewart, 8 Bush, 563. Our conclusion is that, inasmuch as there is no state of facts which will make valid an order of removal before conviction, the relator was not guilty of contempt in disregarding the order made in this case. Wherefore, the judgment of the court below is reversed and the relator discharged.