I have examined the transcript of the record in this case, including all pleadings, evidence, and the finding of facts by the trial judge. In the consolidated cases the defendant was charged with many acts of wilful misconduct in office, bribery, misappropriation of seized whisky, and/or failure to report it within five days after seizure, and that he knowingly and wilfully refused to enforce the criminal laws of the state. The defendant requested a jury to try the issues.
At the beginning of the trial the defendant's counsel submitted a number of special issues of fact, which embraced the above mentioned charges to be submitted to the jury. They were never submitted. The trial judge, at the conclusion of all the evidence, completely exonerated defendant of every accusation involving moral turpitude. A decree of ouster was entered upon two of the issues, as follows:
"Issue of Fact No. 4: `Did he, the defendant Bernard F. Vandergriff, while Sheriff, and as such wilfully and knowingly fail to comply with section 11225 of the Code of Tennessee by failing to report to the Clerk of the Circuit Court of Anderson County, Tennessee, whiskey seized by him as such Sheriff.' *Page 394
"Issue of Fact No. 6: `Did he, Bernard F. Vandergriff, as such Sheriff, wilfully or knowingly fail to make arrests, or to cause raid to be made, or take other lawful means to suppress same, upon information received that certain persons were violating the law by retailing liquor and beer unlawfully, or possessing or operating gambling devices at their places of business, or otherwise violating the law.'"
The charge is made in the ouster petition that the defendant failed to make report of seized whisky within five days thereafter and from whom seized. The trial judge found as a fact that the audit of defendant's liquor reports showed a failure to account for 122 pints of whisky and three cases of whisky. He also found a failure to make report of other small amounts of whisky. The Court expressed the opinion that defendant knew he was to file such reports.
There is no doubt but that the defendant and his deputies seized large quantities of whisky. The Clerk of the Court stated she saw at least from 75 to 100 gallons poured out at one time. There is other proof to the effect that the jail was full of whisky. Some was turned over to the State Commissioner of Finance and Taxation and some sold by order of the court. The defendant contended he did not know he was to report seized whisky within five days, not that he was never to report it at all. I think the weight of the evidence is contrary to the Court's finding of fact, that is, that he wilfully and knowingly failed to make the report. He was no doubt very careless about it, but, considering the vast amount which he seized and did account for, there should be no order of ouster simply because what he actually seized failed to tally with warrants. There should be no condonation even of acts of official dereliction, but they are not a ground of ouster *Page 395 unless the evidence shows his conduct to be wilful. If the sheriff was merely negligent in keeping his records, or by his negligence or that of his deputies some of the whisky disappeared and was not therefore reported, this is not such "wilful and intentional misconduct' as would justify his removal from office. Thus it was said in State v. Reichman, 135 Tenn. 685, at page 692, 188 S.W. 597, 599, Am. Cas. 1918B, 889:
"The inquiry always must be whether he has made an honest and reasonably intelligent effort to do his duty. If he has done this, the courts will not remove him, though his efforts may not have been wholly successful. In other words, his right to hold his office depends upon the good faith of his efforts rather than upon the degree of his success. The fact that a few or manyviolations of the law have occurred in his county will never,without more, justify his removal."
I am convinced from a reading of the record that the evidence greatly preponderates against the second finding of fact, i.e., issue of fact number 6. The defendant was found to have "wilfully or knowingly failed to make arrests" or "cause raids to bemade" upon information. I find that in no instance did he ever fail or refuse to serve any warrant lawfully issued and addressed to him.
The holding of this Court in the Reichman Case, supra, as to the duty of peace officers, and especially sheriffs, in suppressing every form of lawlessness, should not be departed from. Every peace officer in the state is thus advised as to his duties and responsibilities and no evasion of the law should be condoned or excused. This decision is, and should be, regarded as the controlling principle in every ouster proceeding against peace officers.
The admitted facts in the Reichman Case, however, are far different from what appears in the instant case. In *Page 396 that case the sheriff contended he was under no duty to be a detective and discover violation of law; that he had no authority to arrest without a warrant unless the offense was committed in his presence, and that it would be unlawful for him to swear out a warrant. To this the Court strongly disagreed, responding in language that was unmistakable, holding:
"He is not a mere process server, but his duties require initiative on his part in the enforcement of laws against public offenses. It is therefore his duty to exercise the powers conferred upon him, and to use the means provided by law to accomplish the prevention and suppression of public offenses.
"He must use a reasonable degree of diligence to inform himself of conditions in his county, and will be derelict if he shuts his eyes to what is generally known in the community, or purposely avoids information, easily acquired, which will make it his duty to act.
"If he has notice of any public offense, it is his duty to act in its prevention."
The sheriff cannot close his eyes to crimes that are open and notorious, and refuse to act upon the theory that he must have a warrant for the suppression of every act of lawlessness not committed in his presence; nor can he evade his duty when he has information from a reliable source. Now in the Reichman Case there were saloons in Memphis almost without number, open and notorious, and operators were being permitted to pay a fine and continue in business. The sheriff did absolutely nothing to enforce the law except to serve process in injunction cases.
There is proof in the instant case that whisky was being sold in Anderson County in violation of law, especially at certain clubs such as V.F.W. Club, the Embassy, and some others, and that gambling (cockfighting) was going *Page 397 on at the Volunteer Club. It is insisted by the relators that the defendant was advised of these law violations and that he failed and refused to act. The relators do not claim that he refused to apprehend offenders in every instance, in fact, it is not true, since he raided and made repeated arrests at one or more of these places. Some of them were closed by injunction under the nuisance act. When he heard that slot machines were being operated at the V.F.W. Club he notified the persons in charge that it would not be permitted and they at once desisted. There is proof in the record, and not denied, that many night clubs and roadhouses along the main highways had been closed by the sheriff.
I think it might be conceded that he did not make a raid or an arrest upon every occasion when information came to him of the violation of law. But this alone is insufficient to justify a judgment of ouster as there is no evidence of a wilful neglect of official duty. Adverting to the violation of law at the Embassy Club which was located on the highway between Clinton and Knoxville, and the alleged failure of the defendant to raid it, I find that Chief Burdett of the Highway Patrol testified as follows:
"Q. I will ask you if you don't know of your own knowledge that Mr. Vandergriff, Sheriff of Anderson County, didn't raid this same club (Embassy) a number of times with some of the Highway Patrol? A. Yes, sir.
"Q. And he has made every effort to your knowledge to clear up any law violations that might have been over there? A. Yes, sir."
It is shown by this witness, who was stationed nearby at Knoxville, that the defendant raided a number of places and was cooperative with the State Patrol. He asked the Chief for men to assist him in enforcing the law. The above testimony is not disputed. Of course, there was *Page 398 law violation in Anderson County, just as there is more or less in every county. But the situation confronting the defendant when he went into office was most unusual. He had been in the army for four and one-half years. During that time the county's population had grown from a comparatively small number to where it required a great many officers to maintain order. The town of Oak Ridge had developed from a vacant field to a conglomerate population of 75,000 people. They came from everywhere and overflowed the countryside all the way from Harriman to Knoxville. Many of the employees lived as far away as fifty miles or more. A vast number lived in trailor cars. Naturally, there were many law violators who flocked to this area hoping to reap a harvest. This influx of people of unknown character, purpose, and origin, called for vigilance on the part of peace officers. I think it is remarkable that in these circumstances the defendant was able to prove, and did prove, that his record as sheriff was one of the best in the history of the county.
Now, with great deference to the able trial judge, I think he failed to properly apply the law to the facts shown in the record. There is no doubt the defendant failed to arrest some law violators. He was young, inexperienced, and in some degree was poorly advised. But I think he is not shown to have wilfully refused to enforce the law. The mere fact that he failed to arrest for some law violations, if he was acting in good faith, is not enough to justify his removal. As this Court observed in the Reichman Case, 135 Tenn. at page 692, 188 S.W. at page 599, Ann. Cas. 1918B, 889, "The fact that a few or many violations of the law have occurred in his county will never, without more, justify his removal." *Page 399
In discussing grounds of ouster from office, Mr. Justice COOK said in State ex rel. v. Perkinson, 159 Tenn. 442,19 S.W.2d 254:
"Proceedings under the Ouster Law should not be brought except in clear cases of official dereliction. The statute was intended to remove public officials for wilful misconduct and for acts involving moral turpitude."
For the foregoing reasons I feel constrained to concur in reversing and remanding the case. *Page 400