This is an impeachment proceeding instituted by an information under the apparent authority of Code 1940, Title 41, §§ 180, 181, 182, by five resident taxpayers of Russell County, individually, and in the name of the State of Alabama on their relation and by their private counsel. The representative of the State — the attorney general — takes no part in the case.
The authority to impeach a sheriff is § 174 of the Constitution of 1901 for the causes set forth in § 173, which must be done by an original proceeding in this court. Section 174 is not self-executing, State ex rel. Attorney General v. Buckley, 54 Ala. 599, but directs the legislature to make provision for such an impeachment. The legislature has sought to do so and the statute now appears in Article 2, Title 41, beginning with § 178 of the Code.
Section 180 authorizes proceedings of impeachment under §§ 174 and 175 of the Constitution by the duly constituted prosecuting officers of the state "or upon the information of such other persons as are by this chapter allowed to institute the same;" etc. Sections 181 and 182 provide that five resident taxpayers of the county for which the officer sought to be impeached was elected or appointed may, by their own counsel, institute proceedings of impeachment under either of the sections of the Constitution above expressed (174 and 175) upon giving bond for the costs.
Section 182 contains requirements as to the contents of the information, stating that it "shall be signed by the attorney general, or solicitor, or by counsel, as the case may be; and when such information is by taxpayers, the names of such taxpayers must be joined as plaintiffs with the state." (Emphasis supplied.)
The defendant by motion and plea in abatement raises the question of the constitutionality of these provisions of the impeachment statute in so far as they attempt to confer on private citizens authority to institute the proceedings and prosecute the case through private counsel. This is a serious question and I have given it serious and prolonged study. I am mindful of the rule of construction before striking down a statute as unconstitutional (to "indulge the presumption that the enactment in question is constitutional, until clearly convinced to the contrary" Zeigler v. South N. Ala. R. Co.,58 Ala. 594, 596), but have become convinced within the terms of the rule that the provisions of the statute with respect to the matter considered do run afoul of established canons of constitutional construction and cannot stand.
An impeachment proceeding is highly penal in nature and is essentially a prosecution for crime and governed by the rules of law applicable in criminal cases. In order for the defendant to be convicted of any of the accusations charged in the information, the State of Alabama, not private citizens or private counsel, must prove his guilt to the satisfaction of this court beyond *Page 133 a reasonable doubt. State ex rel. Attorney General v. Robinson,111 Ala. 482, 484, 20 So. 30.
And constitutional and statutory provisions on the subject of the procedure in such cases, as in all other criminal cases, are to receive a strict construction in favor of the accused. Nelson v. State, 182 Ala. 449, 453, 62 So. 189.
The rule may be different in some other jurisdictions, many of which hold to the view that such cases are civil or only quasi criminal in nature; but in this jurisdiction this court, from its earliest history, has followed the English common law and consistently held that a proceeding of impeachment is a criminal prosecution against the accused. (Batson's case, infra, should not be construed as indicating the contrary.) Buckley's case, supra, 54 Ala. at page 620; State ex rel. Attorney General v. Tally, 102 Ala. 25, 15 So. 722; State ex rel. Attorney General v. Robinson, 111 Ala. 482, 20 So. 30; State ex rel. Garber v. Cazalas, 162 Ala. 210, 50 So. 296; State ex rel. Attorney General v. Latham, 174 Ala. 281,61 So. 351; Nelson v. State ex rel. Blackwell, 182 Ala. 449,62 So. 189; State ex rel. Attorney General v. Hasty, 184 Ala. 121,63 So. 559, 50 L.R.A., N.S., 553; Batson v. State ex rel. Davis,216 Ala. 275, 113 So. 300; State ex rel. Knight v. deGraffenried, 226 Ala. 169, 146 So. 531; State ex rel. Carmichael v. Baggett, 252 Ala. 540, 41 So.2d 584; State ex rel. Moore v. Blake, 225 Ala. 124, 142 So. 418.
With this clear principle embedded in our jurisprudence, the conclusion seems inescapable to me that any statute (without specific constitutional sanction, which we do not have) which seeks to endow private citizens, acting through private counsel, with the sovereign prerogative of prosecuting for crime is a complete non sequitur of the original concept and impinges upon our whole constitutional scheme.
It is axiomatic that only the state acting in its sovereign capacity is the proper party plaintiff in a criminal prosecution. The crime or the offense charged is not one against any individual, although usually the individual may be concerned or is the injured party. It is an offense against the sovereign, the state, and the sovereign alone is the one who prosecutes. Blackstone expresses the concept in his chapter on the King's Prerogative:
"In criminal proceedings, or prosecutions for offences, it would still be a higher absurdity, if the king personally sat in judgment; because in regard to these he appears in another capacity, that of prosecutor. All offences are either against the king's peace, or his crown and dignity, and are so laid in every indictment. For though in their consequences they generally seem (except in the case of treason and a very few others) to be rather offences against the kingdom than the king; yet, as the public, which is an invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law. * * *" — 1 Blackstone, Ch. 7, 258-259. See also 4 Blackstone, Ch. 1, p. 2.
Such also is the consistent construction in this country.
"An offense which is pursued at the discretion of the injured party or his representative is a civil injury. An offense which is pursued by the sovereign or the subordinate of the sovereign is a crime." Cooley on Torts, Second Ed., p. 96.
"The absolute theory of punishment * * * rests on the assumption that crime as crime must be punished; punitur quia peccatum est. But then comes the question, by whom? The State, as representing society at large, springs from a moral necessity. * * * Penal justice, therefore, is a distinctive prerogative of the State, to be exercised in the service and in the satisfaction of the duty of the State, and rests primarily on the moral rightfulness of the punishment inflicted. * * *" *Page 134 Wharton's Criminal Law, Vol. 1, § 10, pp. 10-11.
"* * * The real distinction between a tort and a crime is to be sought for, not in a difference between their tendencies, but in the difference between the methods by which the remedy for the wrong is pursued, a wrong for which the remedy is pursued by and at the discretion of the individual injured or his representative being a tort, and a wrong for which the wrongdoer is proceeded against by the sovereign or state for the purpose of punishment being a crime." 22 C.J.S., Criminal Law, § 4, p. 55.
Our own cases are consonant with this theory holding that "A criminal prosecution is also defined to 'be a prosecution in a court of justice, in the name of the government, against one or more individuals accused of crime.' * * * The issue is between the government and the prisoner on a question of the guilt or innocence of the latter." Ex parte Pepper, 185 Ala. 284, 293,64 So. 112, 115; City of Mobile v. McCown Oil Co., 226 Ala. 688,692, 148 So. 402.
And, of course, it is axiomatic that under our tripartite system of government the executive department is the branch of government which is vested with the authority to prosecute for crime. The legislative branch should not and cannot invade that field without specific constitutional sanction.
The framers of our Constitution, indeed of our several constitutions, must have had in mind this established principle of law when it was ordained that criminal prosecutions must be in the name of and by authority of the state. Section 170 of our present (1901) Constitution so provides in the following language: "The style of all processes shall be 'The State of Alabama,' and all prosecutions shall be carried on in the name and by the authority of the same, and shall conclude, 'against the peace and dignity of the state'."
This is a plain constitutional mandate stipulating that criminal prosecutions shall be carried on by the state in its sovereign capacity, not by private citizens as individuals or as using the name of the state, for in such latter case prosecutions would not be "by authority of the state." This is bound to be the meaning to be accorded the section; otherwise its impotency would be apparent and it should not have been embodied in the Constitution as a part of our organic law.
Authority for sustaining the provisions of the statute seeking to empower private citizens to institute and carry to conclusion a criminal prosecution of impeachment, in disregard of the proper officials who are charged with representing the state in criminal prosecutions, is claimed to be found in that part of § 174 of our Constitution providing for the impeachment of certain constitutional officers, including sheriffs, by the Supreme Court "under such regulations as may be prescribed by law." The argument is advanced that the quoted portion of the constitutional provision gave the legislature the power to enact the statute and we presume the argument would run that that constitutional provision would also give the legislature authority to enact any other kind of statute it so desired for setting up the machinery for the impeachment of these constitutional officers, whether such legislation should trench upon the executive branch or not. One sufficient answer to this contention is that that provision of § 174 certainly cannot be implied as conferring upon the legislature authority to disregard all other provisions of the Constitution. So when § 170 of our fundamental law specifically mandates that prosecutions shall be carried on in the name of and by authority of the State, it must be accorded that specific meaning, rather than implying that § 174 of the Constitution would give legislative competency to an act authorizing prosecutions to be carried on by private citizens through private counsel. "Such regulations as may be prescribed by law", as carried in § 174 of the Constitution, connotes more than merely statutory enactments. The supreme law is the Constitution and only when a legislative enactment conforms to constitutional requirements does it properly become a part of the body of the law which governs the body politic. *Page 135
When, therefore, the considered sections of the statute seek to endow private citizens with state sovereignty to prosecute at will these constitutional officers in criminal cases of impeachment, the statute not only ignores and disregards said provision, § 170, of our organic law, but violates the plainest principles of due process. The defendant in an impeachment trial is entitled to certain safeguards guaranteed the accused in any other criminal case, one of which is that he can only be prosecuted by the state through its duly constituted officials chosen for that purpose, and to transfer this sovereign power to an individual deprives the defendant of this elemental safeguard. For analogy see Zeigler v. South N. Ala. R. Co., supra.
Nor can I agree with what seems to me an utterly unsound proposition, as was advanced in consultation, that the mandate of said § 170, Constitution that all prosecutions shall be carried on "by authority of" the state means the "legislature" and when the legislature acted by passing the considered statute, then that is "by authority of the State of Alabama" within the meaning of said constitutional section. I regard that construction as so utterly unsound and at variance with all conception of tripartite government that it merits no answer but to state it.
Keeping in mind that this is a criminal prosecution by the state in its sovereign capacity for an alleged public offense, in which all of the elements of a criminal offense are immanent, including the principle of res judicata or former jeopardy, State ex rel. Attorney General v. deGraffenried, supra, it becomes even more apparent that the proceeding cannot be sustained when we consider a related principle, well established, that as a general rule "an individual cannot enforce a right owing to the government; certainly not in any case, unless he sustains an injury peculiar to himself." State ex rel. Foshee v. Butler, 225 Ala. 194, 195, 142 So. 533, 534. In line with this theory is the holding that not even a county can use the name of the state where it seeks "to enforce a claim which involves sovereign capacity, rather than one which relates to a function delegated to the county, and does not show a private right with the privilege of using the name of the state as a mere formal party." State ex rel. Chilton County v. Butler, 225 Ala. 191, 193-194, 142 So. 531, 533. See also 1 C.J.S., Actions, § 29, p. 1072. Hence, logical deduction would admit of no other conclusion if that theory is projected to its natural and logical consequence that less would be the power of a private citizen to exercise sovereign capacity to enforce a public right — prosecution for crime — under the guise of the considered statute, under the implication that § 174, Constitution, authorized it.
Herein, of course, lies the distinction between that status and a purely civil proceeding such as proceedings in quo warranto to test the right to public office.
This interpretation, it appears to me, squares more nearly with other related principles of established law. The control of and the authority and duty to prosecute criminal cases is not in private counsel employed by private citizens, but rests on duly elected public officials. In this court this duty rests exclusively on the attorney general, who is the chief law officer of the state. Ex parte State (In re Stephenson),113 Ala. 85, 21 So. 210; State ex rel. Seibels v. Curtis,18 Ala. App. 531, 93 So. 229; Ex parte State ex rel. Rains,225 Ala. 171, 142 So. 540; Cory v. State, 22 Ala. App. 341,115 So. 700; State ex rel. Chilton v. Butler, 225 Ala. 191,142 So. 531; Code 1940, Title 55, §§ 228, 244. And this court has observed that, in this court, there is no other officer entitled to use the name and authority of the state and that this tribunal can recognize no other representative of the state as its legal counsel in criminal cases. Ex part State (In re Stephenson), supra. But other counsel, with his permission, may assist. Stone v. State, 233 Ala. 239, 171 So. 362. Of similar holding is the Cory case, supra, where the Court of Appeals held that even the solicitor was without authority to represent the state before that appellate court in a criminal prosecution, but that the law committed to the discretion and judgment of the attorney general the prerogative of representing the state in such a case. Even the statute now under consideration nowhere intimates that after *Page 136 the information has been filed private counsel can prosecute the cause on behalf of their clients or on behalf of the state. Manifestly there would be no such authority had it been incorporated in the statute, since § 170 of our Constitution positively directs that all prosecutions shall be carried on "by authority of the State," necessarily implying that this authority is vested in the constitutional officer, the attorney general, who has the sole power and authority to represent the State in the Supreme Court in all prosecutions. With this long-settled construction, we do not think it can be implied from said § 174, Constitution, that private counsel representing private citizens could be authorized to take over the sovereign power of the state and prosecute a criminal case in this court.
The latest expression of this court with respect to the authority of the attorney general to represent the state in its sovereign capacity is State ex rel. Carmichael v. Jones,252 Ala. 479, 41 So.2d 280. In that case the court was construing a section of the Revenue Act providing that no case pending before a court affecting the revenue laws of the state shall be dismissed by counsel representing the state, whether specially employed counsel or otherwise, except by order of the department of revenue. The attorney general had entered into an agreement of settlement of a tax case pending in the circuit court of Montgomery County and the question presented a conflict of authority between the director of the department of revenue and the attorney general. On this question the court observed:
"In view of the broad powers vested in the attorney general both by common law and under various statutes, we cannot say with any degree of certainty that the quoted provision of § 139 was intended to apply to him. * * *
"In coming to this conclusion we thus rationalize. The attorney general is a constitutional officer, the chief law officer of the state, and on him are conferred various authorities and duties in connection with instituting and prosecuting in the name of the state, suits and other proceedings at law and in equity for the preservation and protection of the rights and interests of the state (Constitution, §§ 112, 137), and if § 139 were intended to so abridge his general authority over lawsuits instituted by him by subjecting his decisions in such matters to another executive head, not necessarily learned in the law, we think it should have said so by more specific language.
"The following provisions in the Code imposing various duties and conferring various powers on the attorney general are persuasive to this view: Code 1940, Title 55, §§ 228, 229, 234, 235, 236, 240, 244. We take particular notice of § 244, which in effect provides that all litigation concerning the interest of the state or any department thereof shall be under the direction and control of the attorney general. Taking into consideration the scope of authority and duty imposed on him by these statutes, we do not think they were intended to mark the limits or bounds of his authority, but to indicate certain specific duties and confer certain definite authority in the instances mentioned. Indeed, we intimated as much in McDowell v. State, 243 Ala. 87, 89, 8 So.2d 569, 570 * * *.
"The stronger current of opinion affirms that the attorney general's powers are as broad as the common law unless restricted or modified by statute." (Citing and quoting numerous authorities) 252 Ala. 483-484, 41 So.2d 283.
I see no escape from the foregoing interpretation. The contrary interpretation to the effect that private counsel may proceed in this criminal prosecution without regard to the duly elected constitutional officer who is vested with the sole authority and duty of representing the state in criminal cases in this court would lead to manifest incongruities. It would be to invest private counsel with discretionary power of proceeding or abandoning such impeachment prosecutions. They would therefore be invested with the power to confess any *Page 137 plea which the defendant might interpose, such as one of former jeopardy, as was done by the attorney general in the deGraffenried case. They would be empowered to enter into stipulations with respect to evidence whether in the interest of the state or not. They could, on behalf of the state, move for an order of nolle prosequi when the private ends of their clients had been achieved, although the interest of the state or the ends of justice might require a trial with an acquittal or conviction of the defendant. It would be in their discretion to persist in the prosecution of a case to promote the private animus of their client when a sound discretion might dictate a discontinuance. These and many more anomalies are suggested by adopting the interpretation contended for by the majority of my brethren.
To make the correctness of my position more manifest, let us suppose an analogy. Assume a statute which would authorize private citizens through private counsel to institute and prosecute in the circuit court a criminal case on information either as individuals or in the name of the state. The solicitor, of course, is the duly constituted official charged with the duty and empowered with the authority to represent the state in such prosecutions. Yet under such a statute his duty and authority could be ignored and disregarded while private citizens, through private counsel, could pursue the prosecution to conclusion. What a farce comedy it would be to witness the trial of such a criminal case. It would certainly be a show which runs counter to all conceptions of criminal trials, as well as confounding the constitutional concept of criminal prosecutions as embodied in said § 170 of our organic law, which specifically directs that they "shall be carried on in the name and by the authority of" the State of Alabama.
The Constitution framers evidently intended to avoid such a farcical situation by limiting the right of private citizens to institute prosecutions in cases of misdemeanors before justices of the peace or such other inferior courts by granting to the legislature such authority in the proviso of § 8 of the Constitution of 1901. But it is only in such minor criminal cases that this right has been accorded. That has been the policy of our law. Thomas v. State, 107 Ala. 61, 17 So. 941. An information is a very potent weapon in the hands of any one who might use it and the drafters of our Constitution evidently knew the seriousness of charging persons with criminal offenses and stipulated that it could only be done by grand jury indictment except in minor criminal cases. In view of the whole concept, therefore, it would seem to be a very violent departure from accepted constructions to say that the Constitution meant that the authority of the state of Alabama, with all the inherent power, could be exercised by private citizens to institute, through an information, a prosecution of impeachment in this court and carry it through to conclusion in disregard of the "authority of the State" of Alabama.
It is true the Buckley case, supra, held that an impeachment prosecution was a criminal case which might be instituted on information without indictment, but I do not read that case as anywhere interpreting the various sections of our Constitution as authorizing such a criminal prosecution to be carried on in disregard of the clear mandate of § 170 of the Constitution. The only pertinent principle enunciated in the Buckley case was that impeachment falls within the class of criminal prosecutions designated in § 8 of the Constitution which may be carried on without indictment. But this by no means is a holding that an impeachment prosecution may be carried on by an information filed by private citizens. Section 8 of the Constitution divided criminal prosecutions into three classes, including the proviso at the end of the section, to wit (as pertinent), (1) indictable offenses, (2) misfeasance and oppression in office (under which head comes impeachable offenses) which may be begun by information — it does not say information on behalf of private citizens — and (3) misdemeanors, which is specifically provided for in the proviso clause of the section, where under long practice private citizens have been permitted *Page 138 to institute them before justices of the peace and other inferior courts. There is still nothing in the way of holding, as I see it, that the second class of criminal prosecutions, where is included misfeasance and oppression in office, may be started by information only by the officer usually charged by law with instituting such criminal informations — in the circuit court the circuit solicitor, in the supreme court the attorney general.
A fundamental concept of our democratic system is the division of powers of government. They are divided into three distinct branches — legislative, executive and judicial, "each of which shall be confided to a separate body of magistracy". § 42, Constitution. Nor shall either of these distinct divisions of government exercise the powers of the other, "to the end that it may be a government of laws and not of men." § 43, Constitution. "* * * each of these departments is emphatically forbidden to exercise any of the powers belonging to either of the others, 'unless expressly directed or permitted by the constitution.' (Italics supplied.)" Montgomery v. State,231 Ala. 1, 3, 163 So. 365, 367, 101 A.L.R. 1394. The execution of the laws is vested in the executive department and of that department the chief law officer is the attorney general, Carmichael's case, supra; Stone v. State, supra, whose duty it is to prosecute and manage in the name of the state suits and other proceedings for the preservation of the rights and interests of the state. For a statute, without express constitutional sanction, to seek to invade the executive department by authorizing a proceeding of impeachment by private counsel, in disregard of the constitutional conception that prosecutions must be by the state and under the authority of the state's representatives lawfully charged with that duty, would seem to be an unconstitutional encroachment upon that department. It is the attorney general who is endowed with the prerogative of sovereignty to represent that executive department in the prosecution of criminal cases or in representing the state in its sovereign capacity in any other case, and for a statute to seek to transfer that prerogative to a private citizen is to my mind an unconstitutional encroachment by the legislative on the executive branch of government.
I do not wish to extend my remarks to undue length, but must notice some out-of-state cases cited by learned counsel for informants. To sustain their position that an impeachment proceeding in Alabama is not criminal in the sense that only the state may prosecute within the meaning of § 170 of the Constitution, they rely mainly on cases from some western states, such as California, Utah, Idaho, Nevada and Arizona.
It is to be observed from an examination of the constitutions and statutory systems of impeachment and removal of officers in those states, that they have a dual system, one for impeachment of high state officers and the other for the removal of lesser officers. The states seem to have followed the lead of California in setting up their systems, but generally they have constitutional provisions which provide that only the lower house of the legislature may institute impeachment proceedings with trial in the upper chamber. Generally, the officers liable for impeachment are designated in the constitutions, with the added constitutional provision that all officers not liable for "impeachment" shall be "removed" from office for certain specific offenses in such manner as may be provided by law. Then the statutes proceed to set up the dichotomous system, one for impeachment and the other for removal from office of the officers not liable to impeachment. Removal from office of these lesser officers is never termed "impeachment," since the constitution provides that such officers are not liable for impeachment. The method of removal is by judicial action in circuit or district courts by the accusation being presented either by the grand jury of the county or attorney general. Many of these states also provide for an alternative mode of removal of inferior officers for certain named offenses termed a "summary proceeding," under which an accusation may be filed by taxpayers of the county and the accused officer is summarily tried by the judge of the district court. Frequently appeal is denied. There is no *Page 139 contention in these cases that the proceedings to remove these inferior officers is an impeachment. There are, of course, other states having somewhat similar constitutional and statutory provisions. Reference may be had to these in 81 A.L.R. 1089 under the annotation "Nature of proceedings under statute providing for removal of officer on accusation by grand jury, etc." A number of cases from other states are also cited there, but all are annotated under cases arisang out of "removal statutes" as distinguished from an "impeachment" proceeding. See also 67 C.J.S., Officers, § 67(b), p. 290. The decisions seem to be divided on the issue of whether a removal proceeding under such statutes is civil, quasi criminal or criminal — most holding to the view that it is either civil or only partaking somewhat of a criminal proceeding — but it is to be noticed that there is no such distinction in Alabama jurisprudence either by our constitution, our statutes or our decisions, whether the proceeding for the removal of a public officer is in the senate, the supreme court, or the circuit court. It is an impeachment proceeding, which is a criminal prosecution, and the accused officer is entitled to those certain safeguards ordinarily accorded to a defendant in a criminal prosecution in Alabama. State v. deGraffenried, supra; Nelson v. State, supra. So if I were disposed to disregard what I consider the clear construction which is due to be accorded an Alabama impeachment proceeding, a distinction between the instant case and those cited by informants might be rationalized.
To conclude, then, it is my opinion that the considered provisions of the impeachment statute are clearly unconstitutional and should be stricken down.
STAKELY and GOODWYN, JJ., concur.
On the Merits.