(concurring).
It seems to me that the opinion of the majority misapplies a well known and salutary rule of construction;, and for this reason I feel impelled to express my views on the question. The divergence of our views in applying a cardinal rule of construction will doubtless call to mind the motto of Mr. Sedgwick, “Great is the mystery of judicial construction.” Article 15 of our Constitution provides for the impeachment of certain officers, and the procedure thereof. Sec. 1 reads as follows:
“The governor and all State officers, judges of the Supreme and circuit courts, chancellors and prosecuting attorneys, shall be liable t'o impeachment for high crimes and misdemeanors, and gross misconduct in office; but the judgment shall go no further than removal from office and disqualification to hold any office of honor, trust or profit under this State. An impeachment, whether successful or not, shall be no bar to an indictment.”
Sec. 2 provides that the House of Representatives shall have sole power of impeachment and all impeach-merits shall be tried by the Senate. Sec. 3 provides that the Governor, upon the joint address of two-thirds of the members elected to each house of the General Assembly, for good cause, may remove certain officers, including the prosecuting attorney.
Sec. 27 of art. 7, provides that the circuit court shall have jurisdiction upon information, presentment or indictment, to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance or misfeasance in office.
In construing this section, the court has held that county and township officers may be removed for incompetency, upon information filed by the prosecuting attorney. State v. Jackson, 46 Ark. 137. But if the removal is sought for an indictable offense, the proceeding must be by indictment. Haskins v. State, 47 Ark. 243. The Jackson ease recognized the rule that if the removal is for criminal conduct the crime is punishable in a separate proceeding. The impeachment of the prosecuting attorney is provided in art. 15. The proceedings for the removal of the officers named in Art. 15 do not seek to have such officers punished for their misconduct, but merely to remove them from office and are of a civil note. See note to 20 A. & E. Ann. Cas. at page 112. That the proceedings are of a civil nature only was recognized by the framers of the Constitution, for they provided that an impeachment, whether successful or not, should be no bar to an indictment. Sec. 6395 of Kirby’s Digest provides that prosecuting attorneys may be indicted for any misdemeanor in office or neglect of duty, and punished by fine, not less than fifty, nor more than one thousand dollars. This section was a part of the Revised Statutes.
Section 2450 of Kirby’s Digest, which is a part of our criminal code, provides that where justices of the peace, sheriffs, coroners, surveyors, jailers, county assessors, prosecuting attorneys, constables, city or police judges, clerks and marshals shall be convicted upon an indictment for malfeasance, or misfeasance in office, or for wilful neglect in the discharge of their official duties, or for any offense which by the statute law or Constitution creates a forfeiture of their offices, the court shall render a judgment of removal from office in addition to the other penalties and punishment prescribed by law. Thus it will be seen that this section provides as part of the punishment that if the prosecuting attorney or other officers named shall be convicted of an offense which creates a forfeiture of their office, the court in addition to the other punishment shall render a judgment of removal from office. This section in no. manner is in conflict with the Act of March 9, 1877, providing for the suspension of the officer pending his trial and for his removal after his conviction. That Act applies only to proceedings for the removal of officers under sec. 27 of art. 7. It is a practice act passed for the purpose of carrying into effect that provision of our Constitution and has no application whatever when the officer- is indicted for a crime in a separate proceeding. Allen v. State, 32 Ark. 241; State v. Whitlock, 41 Ark. 403. So it will be seen that the two acts were passed for different purposes and do not in any manner conflict with each other. Besides prosecuting attorneys cannot be removed under sec. 27, art. 7 of the Constitution and the Act of March 9, 1877, first referred to could in no sense be repugnant to sec. 2450 as far as prosecuting attorneys are concerned.
Again it is insisted that art. 15 of the Constitution having provided how the officers named therein shall be removed, its provisions are exclusive. It is a cardinal rule of construction that whenever a State Constitution prescribes a particular manner in which a power of removal shall be executed, it prohibits every other mode of exercising that power. The object sought to be accomplished by art. 15 of the Constitution is to protect the people from, unworthy or corrupt officials and not to punish the offender. The article having prescribed a method for the removal of the officers therein named, that method is exclusive, and éüch officers may not be removed from office in any other way when that is the prime object of the proceedings. The Constitution is the paramount law, and an Act of the Legislature can not conflict with it. The same article provides for the indictment or criminal prosecution of the officers named as a part of the punishment upon conviction. Section 2450 provides that the prosecuting attorney is to be removed from office in addition to the other punishment fixed by the Legislature. It is true the removal of the officer is accomplished in each instance; but there is no conflict in the two eases. In impeachment proceedings, the removal of the officer is the sole object to be accomplished and that can only be done in the manner provided by the Constitution. When the offender is indicted and prosecuted in the criminal courts, his removal upon conviction is made by the Legislature a part of his punishment, and his removal is only incidental to the purpose to be accomplished. If the opinion of the majority is to obtain, an official designated in art. 15 might be convicted of malfeasance in office in the criminal courts and yet could not be removed from office unless the Legislature was in session and would present impeachment proceedings.
I think the views I have expressed are in accord with the principles announced in State ex rel. Thompson v. Crump, (Tenn.) L. R. A. 1916 D-951. The Constitution of Tennessee contains a provision relative to the impeachment of State officers similar to our Constitution. It also provides that the offender shall be liable to indictment. A subsequent section provides that justices of the peace and other civil officers not before named, for crimes or misdemeanors in office shall be liable to indictment in such courts as the Legislature may direct; and upon conviction, shall be removed from office by said court and shall be subject to such other punishment as may be prescribed by law.
The Legislature passed an Act having for its purpose the removal of certain officers by civil proceedings. A bill was filed in the chancery court under it to remove from office the mayor of the city of Memphis for misconduct in office. Objection was made that the act was in conflict with the section of the Constitution of Tennessee last referred to. The Supreme Court of Tennessee held that it was not, and affirmed the decree of the chancery court removing the mayor from office under the Act. The court said that the vice of the argument consisted in the assumption that the section designs primarily to provide a method for the removal of the civil officers therein mentioned, and that such was not the real object of the section. The court said that the dominant purpose of the section was to provide for the indictment or criminal prosecution of the civil officers indicated and that the removal of the officer is incidental. The court held that inasmuch as the Constitution had not undertaken to regulate proceedings for the removal of officers when such proceedings are civil in character that it was competent for the Legislature to formulate a scheme of its own. There the removal of the officials could be accomplished by each proceeding. Here we have the converse of the proposition, and in the application of the principles above announced I am of the opinion that the Legislature had the authority to provide for the indictment and prosecution of the officers named in art. 15, and as part of the punishment upon conviction to give the court power to remove the accused from office. In my judgment the opinion of the majority lays down a rule which might cause great embarrassment in the administration of our criminal laws; and for this reason I have ventured to express at length my dissent to the opinion of the majority although for reasons hereinafter stated I concur in the judgment.
I concur in the judgment because I do not think the act under which the court acted in the temporary suspension, of the prosecuting attorney is valid. The act is amendatory of the act of March 9, 1877, providing for the suspension of any county or township officer. As we have already seen that act applies only to prosecutions for removal from office under sec. 27, art. 7 of the Constitution. Allen v. State, supra, and State v. Whitlock, supra. It is a practice Act when removals from office by indictment are sought under that section of the Constitution. It will be remembered that when the alleged cause of removal under that section is for an indictable offense, the proceeding must be by indictment. The prosecuting attorneys of the State do not come within the provisions of that section and the power of suspending them can not be conferred by amending an Act regulating the practice under that section. That the Legislature had the power to give the court the authority to suspend the prosecuting attorney during the pendency of an indictment against him by an independent Act passed for thqt purpose is settled by the reasoning of the court in Allen v. State, supra, and Griner v. Thomas, 101 Tex. 36, 16 A. & E. Ann. Cas. 944. I do not think, however, the Legislature could confer this power by amending the practice Act above referred to by inserting in it the prosecuting attorney along with the officers designated by sec. 27, art. 7, of the Constitution.
Again it is insisted that the power of temporary suspension is included in the power to remove. In State v. Peterson, 50 Minn. 244, 52 N. W. 655, the court in discussing this question said, “But, says respondent, authority to provide for the removal does not carry with it the power to provide for the suspension of an officer. Whether the power to suspend is included generally in thepower to remove, so that the former may be exercised independently of the latter, we need not consider. But we are very clear that the power of temporary suspension, so far as necessary and ancillary to the power to remove, is included in the latter. This is under the familiar doctrine of implication, that, where a Constitution gives a general power or enjoins a duty, it also gives by implication every particular power necessary for the exercise of the one or the performance of the other. Cooley Const. Lim. 78.” See also Griner v. Thomas, 101 Tex. 36, 16 A. & E. Ann. Cas. 944. It will be noted, however, that in both of those cases the paramount object to be accomplished was the removal from office of an officer guilty of malfeasance in office and the court held that the power to remove includes the power of temporary suspension pending the trial of the officer. That principle does not apply here, however, for the removal of the officer is not the primary object sought to be accomplished, but it is only incidental. The primary object to be accomplished here is the punishment of the defendant and his removal from office only follows after conviction as a part of the punishment. In such a case the suspension of an officer pending his trial for malfeasance or misconduct in office is not included as necessarily ancillary to the power to remove from office after conviction. As we have just seen the power of removal is a part of the puhishment and to include in it the power of temporary suspension would be to punish the offender before conviction.
Therefore, it is only where the power to remove from office is the primary object that it includes the power of temporary suspension pending the trial of the officer.
Mr. Justice Wood authorizes me to state that he concurs in the views I have herein expressed and for the reasons just given we concur in the judgment while we express our dissent to the opinion of the majority.