Hyde v. State , 52 Miss. 665 ( 1876 )

Chalmees, J.,

delivered the opinion of the court.

This is an appeal from a judgment in quo warranto, declaring a vacancy in the sheriffalty of Clarke county. Appellant,. Hyde, was elected to the office of sheriff of said county at the general election in 1875, and qualified by taking the oath prescribed by the constitution, and by executing the separate bonds as sheriff and as tax collector required by the laws then in force, which laws provided, among other things, that the-bond to be given as tax coUector should be in one-half the . amount of the tax assessment of the year preceding its exe- ■ cution.

After the execution of these bonds by appellant, to wit, on 18th March, 1876, the legislature passed an act prescribing that tax collecting bonds of the sheriffs of this state should be in two-thirds the amount of the tax assessment of their several ■ counties for the preceding year, and requiring that the sureties thereon should be owners of freehold or leasehold estate in the counties where the bonds were given, equal in value to the .amount for which such sureties justified, over and above all exemptions and liabilities. Act of 1876, p. 8.

By the 1st section of this act sheriffs already in office were required to execute new bonds, in accordance with its provisions, on or before the first Monday in August, 1876, “and 'if any sheriff shall fail to give a new bond as tax collector, on • or before the first Monday in August, 1876, such sheriff shall thereby forfeit his office, and an election shall be held to fill the vacancy thereby created.”

Appellant having failed to execute the bond required by this act, on or before the day named, the district attorney, in the name of the state, instituted this proceeding by quo warranto, to have his office declared vacant. The answer admits the failure to give the bond, but challenges the constitutionality of the act requiring it, and claims that, even if the act be constitutional, this action was prematurely brought, because no successor had been elected to the office, nor had any election been ordered by the board of supervisors of the county.

Was the action prematurely brought?

The argument is : 1st, that it could not be instituted until "the board of supervisors, by ordering a n®w election, had . adjudicated a forfeiture and declared a vacancy; 2d, that by ■ the constitution of the state sheriffs are entitled to hold over until their successors are qualified, and that consequently . appellant could mot be treated as a usurper until the election . and qualification of his successor. Neither position is sound. The law declares that the failure to execute the bond shall work a forfeiture of the office. 'The instant, therefore, that the failure occurs, the right of action accrues to the state to have the forfeiture judicially ■declared. This right can in no manner be affected by a failure on the part of the supervisors to order an election. It will be ■observed that the ordering of the election is the, only duty •specifically devolved by the statute upon the board of supervisors, and that it is not declared that they shall pass upon the fact of the failure to execute the bond, and proclaim the vacancy. If we concede that the duty of ordering the election •carries with it the power to determine the necessity for it, it by no means follows that the possession of such power on the part •of the supervisors precludes the state from her action of quo warranto, which has been immemorially deemed the appropriate, .and is usually the exclusive, method of ejecting from office an •unlawful' incumbent.

The circuit court, under our system, is the appropriate tribunal for hearing and determining such writs, and when the jproper officer of the state comes and gives that court to understand and be informed that a certain person has usurped and entered upon a public office to which he is not entitled — that an incumbent, either by reason of/some act of commission or •omission, or by the expiration of his term, has lost the right to hold an office, but nevertheless continues to occupy and enjoy it, we must be referred to a statute very explicit and exclusive in its terms before we could hold that the circuit court had not the right to determine such an issue.” Nor is there any ■strength in the position that the circut court must wait until the supervisors order the election. It is not the ordering of the election, but the failure to execute the bond, which works ■the forfeiture. Upon an allegation by the proper officer that such failure has occurred, the court will inquire into the fact, •and, if found to be true, will pronounce the judgment of the law thereon. Section 22 of article 12 of our state constitution provides that all officers named therein (among which number are sheriffs), “shall hold their offices during the terms for which they were elected, unless removed by impeachment or otherwise, and until their successors shall be duly qualified to enter upon the discharge of their separate duties.” This manifestly refers to officers holding over after the expiration of their terms, and not to such as may have been adjudged to have forfeited their offices by the judgment of a court of competent jurisdiction. Such judgments, like all other judgments, take effect from their rendition, and produce an instantaneous, vacancy in the office.

Is the law unconstitutional?

It is said to infringe upon the constitution in two respects : 1st, by establishing a qualification for office different from that, in existence at the date of election; and, 2d, by providing a mode of removal different from that prescribed in the organic law. We willingly concede that it is not competent for the legislature to prescribe a qualification for office different from that exacted by the law in existence at the date of election, and. then to eject the incumbent because he does not possess-such new qualifications. In truth, where the office is a constitutional one, and the qualifications for it are laid down by that instrument, the legislature can prescribe no other qualifications whatever, either before or after an election. Those prescribed by the constitution can neither be enlarged nor diminished by legislative action.

But this in no manner affects the legislative power to specify" the character of bonds to be executed by fiduciary officers. The confusion springs from an improper use of the word “qualification,” or rather from a failure to note its double-meaning. Qualification,- in the sense in which we are discussing it, means the endowment or acquirement which renders eligible to place or position, and the giving of a bond can never be said to be a question of eligibility. When, on the contrary, we speak of an officer’s qualification as dating from the execution of his official bond, we refer, not to his capacity for, or eligibility to, the position, but to the act whereby he was-installed. It is not bis qualification for tbe office, but his act of qualifying in it, of which we speak. Appellant’s proposition, therefore, if fairly stated, should be that the legislature cannot prescribe a mode of induction into office different from that in force at the date of election, nor enact new and additional formalities after those originally in force have been complied with. As thus stated, the proposition cannot be maintained.

An office is not a contract, and, as is well settled, the incumbent is not protected by the prohibition of the federal constitution against the impairment of the obligation of contracts.

The office holder has no such vested right in the term, fees, salaries, or duties of the position as will prevent such legislation on those subjects as the priblic interest demands, provided in such legislation no provision of the state constitution is infringed.

That which the constitiition expressly prescribes or prohibits cannot be altered, but whenever that instrument simply creates the office, and leaves all else to be determined by legislative enactments, such enactments may be changed and modified as legislative wisdom may suggest.

Thus, the constitution of our state creates the office of sheriff and fixes his term. The office, therefore, cannot be abolished, nor the term altered by statute. But the constitution is silent as to the duties of the office, and as to the mode in which the state and individuals shall, be guaranteed in the faithful discharge of those duties.

As to the duties, it has been held that it is not competent to strip the sheriff of those which the common law has ever affixed to his office as inseparable therefrom, or to deprive him of those prerogatives which the settled policy and legislation of the state have'made equally inherent in the jjosition.

This is based upon the principle that the framers of the organic law had these duties and prerogatives in view in creating the office and in giving to it a name and designation which, ex vi termini, imported the possession and exercise of these traditional and well known powers. French’s case (MSS).

There is nothing said in the constitution on the subject of a bond by the sheriff, yet these functionaries have, time out of mind, been bonded officers. The framers of the constitution must have contemplated that they should remain so, and they remitted to the legislature full jurisdiction over the subject, untrammeled by constitutional restraints.

Persons elected to the office, therefore, take it subject to such regulations on this subject as the legislature may from time to time enact.

It is well settled that wherever an office has been created by the legislature it may be abolished by that body at pleasure, and it may be laid down with equal confidence with regard to offices created by the constitution, that all the duties connected therewith, not protected by that instrument, may be established, altered, and abolished at the will of the legislature, ■without regard to the pleasure or interests of the incumbent.

The holder of the office can only invoke the protection of the constitution as to those things expressly contained or necessarily implied in it. As to all others he is completely at the mercy of the legislative will. The State v. Smeeds, 26 Miss., 47; 7 Ind., 172; 21 ib., 32; 33 N. Y., 269 ; 3 Humph., 480; 15 Ala., 521.

This principle finds striking illustration in the history of the legislation of this state, with regard to this very subject of sheriffs’ bonds. None of our constitutions have ever contained any provision relative thereto, but the legislature has always exacted , bonds from these officials. By an oversight in the codifiers of 1871 there was no provision made in that book for the giving of bonds as tax collectors by the sheriffs. As soon as this omission was made apparent by the decision in French’s case (MSS.) the legislature was convened in extra session, and, by the act of July 31, 1875 (Acts of Special Session, p. 11), directed that such bonds should be executed on or before a day named, or in default thereof the office should become vacant.

- The sheriffs throughout the state complied with this demand, although they had been elected at a time when no bond as tax collector was by law required of them. Can it be supposed that they could have refused to do so, and yet have remained in office ? Can it be seriously argued that the state was powerless to prevent her entire revenue from passing into, or remaining in, irresponsible hands, without any security whatever? But it is said in the case at bar that appellant had given a bond which was ample to protect the interests of the state. This is a question which we cannot look into. He had not given the bond required by law. 'While it may be true that the legislature could not force a vacancy in his office by requiring him to do an impossible or grossly oppressive act, certainly a requirement that his bond should be equal in amount to two-thirds of the taxes he was to collect, and that his sureties should be real estate holders in the county, was neither grievous nor unreasonable.

It only remains to be considered whether there was anything unconstitutional in the manner of his removal from office.

The 26th section of the 6th article of the constitution provides “that clerks, sheriffs, and other county officers, for willful neglect of duty or misdemeanor in office, shall be liable to presentment or indictment by a grand jury, and trial by a petit jury, and, upon conviction, shall be removed from office.”

It is contended that, a mode of removing these officers being thus pointed out, no other mode can be resorted to, on the principle expressio unius est exdusio alterius. The principle' is sound if the removal be for an indictable misdemeanor or neglect of duty. As to those, the one manner of removal provided excludes all others. But, clearly, the failure to give a bond can fall within neither of these classes of offenses. Manifestly it is not a misdemeanor. While in one sense it may be said to be a neglect of duty, we do not think it is one for which an indictment would lie.

The neglects spoken of by the clauses under consideration are such as work evil to the state or to parties litigant; such, for instance,' as the willful refusal to execute process or to collect'taxes, or permitting an escape. For these things a sheriff may well be indicted, but it is impossible to conceive of a presentment and conviction for failing to give a bond, which he was entirely at liberty not to give, if willing to surrender his office.

The execution of the bond being a condition precedent to his entering upon or retaining the office, we are bound to infer that he failed to give it either from inability or because he preferred surrendering the position. To indict him in either event would be an absurdity.

We have seen that it was competent for the legislature to-exact of appellant the new bond required by the act of 1876, If so, it had the right to provide that his failure to execute it should work a forfeiture of his office, and for the purpose of ascertaining that forfeiture the proceeding by quo warranto is the ancient and appropriate remedy. This view derives great strength from a consideration of the fact that at the time of the adoption of our present constitution, and for many ¡years anterior thereto, we had upon our statute books (and it still remains there) a provision that if, after the qualification of a sheriff, the bond executed by him should become worthless, he should be cited to give a new and solvent bond, and upon failure to do so should forfeit his office.

This provision was adopted and kept in force under a clause of the constitution of 1832, identical with the one above quoted from the constitution of 1869. Const, of 1832, art. 5, § 28. The framers of our present constitution, therefore, in readopting said clause, may be presumed to have done so with the idea that it was not inconsistent with, and did not nullify, the statutory provision referred to.

Judgment affirmed.