Remley v. Matthews , 1907 Ark. LEXIS 245 ( 1907 )

Hart, J.,

(after stating the facts.) M. C. Strong was suspended from office under section 7992, Kirby’s Digest, which reads as follows, to-wit:

“Whenever any presentment- or indictment shall be filed in any circuit court of this State against any county or township officer, for incompetency, corruption, gross immorality, criminal conduct amounting to felony, malfeasance, misfeasance, or nonfeasance in office, such circuit court shall immediately order that such officer be suspended from his office until such presentment or indictment shall be tried. Provided, such suspension shall not extend beyond the next term after the same shall be filed in such circuit court, unless the cause is continued on application of the defendant.”

Section 7993 provides for the removal of such officer upon conviction. It will be observed that Strong was not removed from the office of sheriff, but was only suspended pending the indictments against' him.

Remley was appointed sheriff on the 20th day of October, 1906, under section 7995 of Kirby’s Digest authorizing, the Governor to temporarily appoint an officer in the place- of the suspended officer.

This presents for our consideration the question, who was entitled to qualify as collector of the revenue ’of Chicot County in 1906, Strong or Remley?

In the case of Crowell v. Barham, 57 Ark. 197, Cockriee, C. J., said: “The offices of sheriff and collector, though usually exercised by the same person, are as separate and distinct as though held by different incumbents. Ex parte McCabe, 33 Ark. 396; Falconer v. Shores, 37 Ark. 306. If the sheriff became collector by reason of qualifying as sheriff, there would be strong ground for contending that his general deputy was also deputy collector, as was held' in the case of People v. Otto, 77 Cal. 45. But under our statute the sheriff becomes collector only when he qualifies as collector. He has the right by virtue of his office to become collector, but he may forfeit the right without forfeiting the office of sheriff.' In that event the law authorizes .the substitution of another in the office.”

It seems clear then that Strong, and not Remley, had the right to qualify as collector; for the reason that Strong was’ still sheriff. He did not cease to be sheriff because of his suspension pending the indictments against him.

Strong’s suspension from the office of sheriff only disabled him from discharging the duties of the office, and did not take away the office itself. Only a removal from office could do that. He was still the sheriff, and by virtue of holding that office had the right to qualify as the collector of revenue. 1

Strong failed to give the bond of collector within the time-prescribed by law, and upon a certificate by the clerk to that effect the Governor appointed Remley to that office, pursuant to section 7042 of Kirby’s Digest. This was a valid appointment; for section 46, art. 7, of the Constitution leaves the office of collector under legislative control. Falconer v. Shores, 37 Ark. 386. In that case the court said: “Upon the failure of a sheriff to give bond as collector of revenue within the time prescribed by law, the Governor is required, upon notice of such failure from the county clerk, to declare the office vacant and fill it by appointment.”

We are now brought to consider the length! of his term. As we have seen, appellant was appointed pursuant to section 7042 of Kirby’s Digest. Section 7044 provides .that he shall hold the office until -the next general election, and until his successor is elected and qualified. In the case of Alston v. Falconer, 42 Ark. 114, it is hel-d that where a person is appointed collector pursuant to the statutes supra, he is by law entitled to hold it until - the next general election and until his successor is 'elected and qualified. See also Falconer v. Shores, supra.

Reversed and remanded with direction to enter judgment in accordance with this opinion.