State v. Carneall, 10 Ark. 156 (1849)

July 1849 · Arkansas Supreme Court

10 Ark. 156

State vs. Carneall.

A sheriff cannot be deprived of his office for failing to return his assessment list within the time preseribed'by law, without a judicial ascertainment of the delinquency, on due notice, &e.

So much of Sec. ‘¿1th, Chap. 139, Digest, as authorizes the Governor to declare the office of sheriff vacant, &c., on the exparte certificate of the county judge, &e., that the sheriff has failed to return his assessment list, is repugnant to the constitution.

That section, section 31 of the same chapter, and section 12 of chapter 151 Digest relate to the same subject matter, and when taken together furnish a complete and adequate mode of proceeding against the sheriff for such delinquencies.

On Quo Warranto.

At the present term of this court (July 1849), by the direction of the Attorney General, the clerk issued a writ of Quo Warranto to the sheriff of Crawford county, commanding him to summon John Carneall to appear before the court, &c., to answer unto the State, and to show by what warrant he exercised the franchise of sheriff of Crawford county, “for that the said John Carneall has forfeited the said office, in this, that since his election to said office the said John Carneall has failed to file the assessment of said county of Crawford as required by law, which fact was certified to the Governor of the State of Arkansas by the presiding judge of the county court of said county, wherefore the commission of the said John Carneall was by the Governor of said State declared vacated, and a writ of election issued for an election of sheriff of said county on the 3d day of July, 1849, to fill the said vacancy,” &c. — (Issued 25th July.)

On the 30th July, the defendant filed the following response to the writ:

“And the said John Carneall comes into the Honorable the Supreme Court here, in obedience to the command of the writ of Quo Warranto issued against him, and shows and pleads as a legal and sufficient warrant for holding the office, and exercising the powers, and using the franchise of sheriff of Crawford county in the State of Arkansas :

That on the first Monday of August, 1848, at a general election held in Crawford county, agreeable to law, he received a majority of the qualified votes for the said office, and was found to be, and declared duly elected sheriff of Crawford county for the constitutional period, and which election was, in accordance with the statute in that behalf provided, certified and returned to the Secretary of State:

“ And that afterward, to mt: on the-day of-, A. D. 184 — , he was duly commissioned as such sheriff of Crawford county, in manner and form as prescribed by the constitution and laws of said State; and that immediately after the reception thereof he took the oath prescribed by the constitution and laws of the State, before a person competent to administer the same, and that such oath was then endorsed upon the said commission:

“ That, within fifteen days after the receipt of said commission, he entered into bond to the said State with good and sufficient security, and which bond was approved by the county court of Crawford county, and was recorded in the Recorder’s Office of that county in conformity with law, such approval being endorsed upon the said bond :

“That afterwards, to wit: on the 10th day of January, 1849, he filed in the office of the clerk of the county court of said Crawford county the affidavit required by the seventh section of the law concerning the State revenue, as contained in the Digest at page 871, and to which he craves leave to refer:

“ That he also, before he entered on the discharge of the duties of assessor and collector, gave,bond and security to the State, to the satisfaction of the county court of Crawford county, in double the amount of taxes levied for the State and county purposes, conditioned according to the law in that behalf made and provided :

“ And the respondent thereupon entered upon the discharge of the duties of sheriff and ex officio assessor and collector of Crawr ford county, as he might well do, and he pleads that by the aforesaid premises he was and is fully warranted to act as, and to be the sheriff of Crawford county, until the expiration of his constitutional term of office without hindrance or molestation, any thing in said writ of Quo Warranto to the contrary notwithstanding:

“And the said respondant pleads the said election, qualification , .giving bonds, and the other foregoing acts and things as a sufficient warrant for exercising the franchise of sheriff of Crawford county aforesaid, and continuing so to do. And he prays that the same, may be so adjudged by this honorable court, and he discharged.” Carneall — By 8. H. Hempstead.

To which response, the Attorney General replied as follows:

“ And the State of Arkansas, by John J. Clendenin, Attorney General, comes into court here, and says that by reason of any thing contained in the plea of the said John Carneall, she ought not to be precluded from having judgment of ouster against him in this behalf, because she says that the said John Carneall, as sheriff of Crawford county, and by virtue of his office as assessor and collector thereof, in disregard of the law oí the land and his duty in that behalf, failed to return and file in the office of the clerk of the county court of Crawford county, the original assessment list of taxable property of the county of Crawford for the year 1849, together with a certified copy thereof, on or before the 25th day of March, 1849, as he ought to have done; and by reason of which failure his said office of sheriff became forfeited from and after the last mentioned day; and afterwafds, to wit: on the 4th day of June, 1849, R. P. Pryor, presiding judge of the county court of Crawford county, certified such failure and forfeiture to the Governor of the State of Arkansas, in the words and figures following, to wit:

1 State of Arkansas, ) County of Crawford. 3

In accordance with the 37th section of chapter 139 of the Digest of the Statutes of Arkansas, I, Richard P. Pryor, presiding judge of the county court of Crawford county aforesaid, do hereby certify that John Carneall, as assessor of said county, has not yet filed his assessment list, and has wholly failed to file the same, as required by said 37th section.

Given under my hand, this 4th day of June, 1849.

R. P. PRY OR, Presiding Judge of the County Court of Cranford county.

To THE GOVERNOR OR THE STATE OF ARKANSAS. ’

“ And thereupon John Selden Roane, Governor of the State of Arkansas, within ten days thereafter declared the said office of sheriff of Crawford county vacant, and issued a writ of election on the 3d day of July, 1849, in accordance with law in that behalf made and provided, and the said John Carneall had forfeited the same.

“ By means of which premises the said John Carneall ceased to be sheriff of Crawford county, and cannot now, by virtue of the election, commission, qualification, and other acts in his plea specified, exercise the duties of the office of sheriff of Crawford county.

“ And the said State prays judgment of ouster,” &c.

To this replication, the counsel of defendant demurred, and assigned the following causes of demurrer:

“ 1. That defendant could not constitutionally be deprived of the office of sheriff for any neglect of duty, without a regular judicial ascertainment of the default, and conviction therefor by a competent court:

“2. That the forfeiture alluded to in the replication could not be visited upon him, nor the existence of it legally declared, otherwise than by the judgment of his peers, and hence the Governor could not declare the office vacant, and issue a writ of election to fill it.

“3. That the law under which the proceeding in the replication was had is repugnant to the constitution, and utterly void, and cannot deprive him of his said office.

“ 4. That the replication does not show a sufficient ground to entitle the said State to the judgment of ouster therein prayed.”

The Attorney General and Mr. Hempstead argued the demurrer orally; and afterwards Mr. H. handed the Reporter the following bi’ief:

S. H. Hempstead, in support of the demurrer, argued that the election, commission, and qualification of Carneall gave him a vested right to the office until he was superseded in a manner compatible with the constitution. This proceeding was ex parte, he had no opportunity to be heard any where, was not apprized of the specific matter urged against him, and was unlawfully and with “hot haste” deprived of his rights. On principles of natural justice every man has the privilege of a hearing and de-fence before condemnation; and every judgment, order, or proceeding, in the absence of actual or constructive notice, is void. The precise point made by the pleadings, mnd insisted on by the Attorney General as a forfeiture of the office of sheriff, is that Carneall failed to file the assessment list of Crawford county for 1849 by the 25th March of that year, as required by law. {Digest 874-876.) It is true that the 37th section of the revenue law warrants the course which seems to have’ been pursued in this case, but it is unconstitutional and ought to be disregarded, because (1) it does not provide for any indictment or presentment by a grand jury, thus infringing the spirit, if not the letter, of our bill of rights; because (2) it does not provide for giving notice to the person implicated of the nature of the accusation, nor does it afford him a reasonable opportunity to be heard in his defence; because (3) a penalty can only be inflicted or forfeiture declared by a competent judicial tribunal after a due and proper ascertainment thereof, and that this tribunal, having no original, criminal, or penal jurisdiction, cannot make that ascertainment on this writ of Quo Warranto; and because (4) in that section judicial and executive powers are improperly blended together, and the governor thereby made a judge and executioner.

The 31st section of the revenue law {Digest 874) declares the failure to file the assessment list a misdemeanor in office, and, on conviction thereof, “subjects the delinquent to fine and removal from office,” and the 12th section of the law concerning sheriffs (Digest 940) authorizes the court, when any sheriff shall be found guilty of a misdemeanor in office, to declare such office vacant, and transmit a copy of .the judgment to the Governor for his action. Now these sections are founded on principles of justice, and embody the spirit of the constitution; and the other, although enacted last, must yield to them — these pointing out the correct mode of procedure in cases like the present and the other being positively illegal. Whenever a proper proceeding is instituted, Mr. Carneall will be very ready to respond to it, and does not shrink from investigation, but he does not choose • to be sacrificed in this summary mode without a hearing.

Mr. Justice Walker

delivered the opinion of the Court.

This writ of quo warranto was issued against the defendant requiring him to show by what authority he exercises the franchise of sheriff of the county of Crawford in this State. In his plea for answer he sets forth an election, commission and every other requisite duty to entitle him to that office. The State replies that he forfeited that right by failing to return and file in the office of the clerk of said county the original assessment list of taxable property of said county for the year 1849, together with a certified copy thereof, on or before the 25th of March, 1849, and that by reason of such failure,' upon the certificate of the judge of the county court of said county to the Governor of that fact, the Governor, on the 3d of July, 1849, declared the said office vacant, and that the same is vacant.

To this replication the defendant demurred, and we-are called upon to decide whether an officer, duly installed into office, can, within the constitutional period of his term, be deposed from office by an ex parte certificate of neglect of official duty without notice or trial.

Such a course seems to have been contemplated by the 37th sec. Dig. 876, which provides that if the assessment list is not returned by the sheriff at the time and in the manner prescribed by law, he shall forfeit his office, and that the judge of the county court, three justices of the peace, or six creditable householders shall certify such failure to the Governor, who shall, within ten days thereafter, declare the office vacant. Take this as the only statute on the subject, and the question would fully arise as to whether the sheriff could be deposed from office until charged before some competent tribunal and afforded an opportunity to disprove the alleged neglect of official duty. This privilege is so reasonable and just in itself, indeed so indispensably necessary to the protection of the rights of the citizen, that, independent of the safeguards thrown around Mm by the constitution, we would reluctantly see them invaded.

This section, however, does not stand alone. The 31st section of the same act provides that any assessor, who shall fail to file his assessment list by the time specified in this act, shall be guilty of a misdemeanor in office, and on conviction shall be fined and removed from office. The 12th Sec. Dig. 940 provides that when any Sheriff shall be found guilty of a misdemeanor in office, the Court, before whom the trial shall be had, shall declare the office vacant, and shall eause a copy of the record to be certified to the Governor. These sections relating to the same offence furnish a complete and adequate redress in such cases.

The summary mode which has been resorted to in this instance, however it might tend to facilitate the collection of the revenue by stimulating the officer to a prompt discharge of his duty, must yield to the constitutional rights of the citizen and officer; not that he has a right to retain the office for a moment after he has violated the law, but that before he shall be deprived of it, he shall be heard in defence before a competent tribunal.

The demurrer must be sustained'