#### Russell L. Daugherty, as the Duly Elected, Qualified and Acting Prosecuting Attorney of Cabell County *v.*Harry D. Day, as a Justice of the Peace for Gideon District, Cabell County

(No. 12049)

Submitted August 5, 1960.

Decided August 5, 1960.

*593
      *John W. Daniel,*for plaintiff in error.

*Russell L. Daugherty, Raymond I. Lucas,*for defendant in error.

Griven, Judge:

This appeal was granted from an order entered by the Circuit Court of Cabell County, removing from office the respondent Harry D. Day, justice of the peace of Gideon District, Cabell County, to which office he had been elected and qualified. The proceeding was prosecuted by Bussell L. Daugherty, prosecuting attorney of Cabell County, pursuant to provisions of Code, 6-6-7. The appeal was heard on the original record, the petitions for the appeal, and the briefs and oral arguments of the respective parties. An order was entered by this Court on August 5,1960, reversing the order appealed from, and the proceeding was remanded with directions that respondent be reinstated in the office from which he had been removed. This *594opinion attempts to state tlie reasons impelling the entry of the order.

The petition for removal contained eight specifications. A demurrer was sustained as to specifications Nos. 2, 6, 7 and 8. The prosecuting attorney offered no evidence in support of the allegations contained in specification No. 4. Specification No. 1 contained several charges, but a demurrer thereto was sustained as to each charge except the charge that the respondent “procured a bondsman to be surety for one Erwin Huff and charging the sum of Ten Dollars ($10.00) to be paid said defendant for his services in procuring said bondsman”. The issue as to specification No. 1, as limited by the trial court, was “whether or not the defendant charged and collected a fee of $10.00 for procuring a surety on a bond for the release of someone that was being tried by him and before him. ’ ’

The summary effect of the charge made by specification No. 3 was that the respondent issued a warrant for the arrest of Floyd McConnell, on an information sworn to by McConnell’s mother, charging him with appearing “in a public place in an intoxicated condition”, and after the arrest and incarceration of McConnell in the Huntington city jail by the Huntington city police, respondent escorted McConnell from the city jail, in Gideon District, to the Cabell County jail in Kyle District, and there tried him on the charge contained in the warrant. The issue as to specification No. 3, as stated by the trial court, and as agreed to by the prosecuting attorney, was: “I take it that that specification is open for proof as to acts done by the defendant outside of Gideon District and sentencing a man without either a plea of guilty or trial and conviction”.

Specification No. 5 charged that respondent issued three warrants for the arrest of Curtis Pulley; that Pulley, after hearing of the issuance of the warrants, voluntarily went to the office of respondent for the purpose of making “necessary defense thereto”; that *595after being informed of tbe nature of tbe charges contained in tbe warrants, and after Pulley informed respondent tbat be was not guilty, respondent directed bim to see Roy Ellis, Jr. as to signing an appearance bond and fixed a day for trial; and tbat be was ‘ ‘ finally informed by tbe said Harry D. Day tbat be, tbe said Curtis Pulley was to be back in tbe office of tbe said Harry D. Day on Saturday, tbe 19tb day of September, 1959, before noon of tbat day witb tbe sum of $26.00 to pay tbe said Harry D. Day”, or be sent to jail. Tbe issue as stated in tbe opinion of tbe trial judge and as considered and beard by bim was, “I would consider tbe ordering of Pulley to return witb $26.00, or be would be sent to jail, to be improper, without a plea of guilty or a trial and conviction if such be tbe case. On this point I would overrule tbe demurrer and leave it to proof upon this point”.

Though tbe opinion of tbe trial court on tbe merits of tbe case does not point out which of tbe charges against respondent was sustained by proof, be concluded: “* * * from tbe facts proved or admitted tbat tbe conduct of tbe Respondent is not in keeping witb tbe proper conduct required or expected of one in tbe business of administering justice. Acting in tbe dual capacity of constable and justice cannot be countenanced. Trying prisoners, if in fact they were tried, inside prison walls, filling out commitments outside bis own district, acting as agent in tbe procurement of bond for persons tried or to be tried before bim, and making tbe financial arrangements therefor, and tbe taking of personal property as collateral from persons in tbe jail or from members of such persons’ family, are all acts tbat are reprehensible, when committed by one in tbe position of administering justice. Tbe fountain beads of justice must be kept clean. They should be above question or reproach. Tbe sole and primary function of tbe justice of tbe peace is to administer justice, and to do so honorably”.

Code, 6-6-5, provides tbat “Any state officer * * * may be removed from office, * * * in tbe manner pro*596vided in the following section: (a) when disqualified from holding the office under any provision of the Constitution of this State, or any law now in force, or which may hereafter be enacted, whether such disqualification arose before or after his induction into office; (b) for official misconduct, malfeasance in office, incompetence, neglect of duty, or gross immorality.” Section 7 of the same article provides for the removal of any county officer for any cause for which a state officer may he removed under Code, 6-6-5, ‘ ‘ or for any of the causes or on any of the grounds provided by any other statute”. We are not directed to, there is no contention that, any statutory provision other than those contained in Article 6 of Chapter 6 has any application to the facts of the instant case.

As to the evidence offered in support of specification No. 1, little need be pointed out. There is no testimony to the effect that respondent “charged and collected” a fee of $10.00 for procuring a surety on a bond for any person, or even that he attempted to do so. Ada Huff, wife of the defendant named in the warrant, who made the arrangements for the surety, was asked: “Did you know of any arrangement where you were to give . somebody $50.00 and Squire Day $10.00?”; answered: “Oh, no”. True, Mrs. Huff discussed the question of surety with respondent and left with him certain personal property, over his protest as he testified, as security for the person who was to sign the bond as surety for the appearance of the person accused in the warrant, but such facts, even if cause for removal from office, were not significantly pertinent to the issue resulting from the charges made in specification No. 1.

As above pointed out, the only substantial questions raised by specification No. 3 related to whether respondent tried McConnell outside of Gideon District, respondent’s official district, or whether respondent imposed a sentence on McConnell without affording him a trial. The evidence, we think, conclusively shows that respondent went to the city jail in Gideon Dis-*597triet, had the prisoner removed to the “corridor of the basement of the city jail”, and there informed him of the nature of the charge, to which a plea of guilty was made by McConnell, whereupon sentence was imposed. Thereafter, respondent “escorted” McConnell and another prisoner, who had been tried at the same time and place by respondent, to the county jail, something like a block from the city jail but in Kyle District. After reaching the county jail respondent executed commitment papers for McConnell and the other prisoner, and delivered them to the county jailer. It may be pertinent to note that McConnell had been committed to a mental hospital three times, and had been convicted approximately seventy times of public intoxication within a period of ten years.

Respondent testified to the effect, which was not denied, in relation to the reason he escorted the prisoners to the county jail, that his “constable refuses to do any kind of work of that sort”, and that the sheriff’s office “reluctantly told me that they couldn’t”, they had too much of their own work to take care of to handle any such work, and that he went to the city jail only on such occasions as “I have nobody to bring them up to my office”.

We think it clearly established that respondent afforded McConnell an opporunity to plead, and received a plea of guilty at the city jail, in Gideon District, and then imposed the sentence for which he was confined in the county jail. Certainly the evidence does not preponderate against that conclusion. There is no indication that McConnell asked for or was in any sense denied any further hearing. Though a justice of the peace may not “hear or determine” cases in a district other than the one for which he was elected, and may be prohibited from attempting to do so, *Johnston v.*Hunter, 50 W. Va. 52, 40 S. E. 448, he is a county officer, *State ex rel. Ralich v. Millsop, Mayor,*138 W. Va. 599, 76 S. E. 2d 737, and his jurisdiction, civil and criminal, is co-extensive with the county in which his district is situated. Code, 50-2-1; Code, *59850-18-1, as amended. Perhaps there is no clear or statutory justification for the actions of respondent in taking the plea at the city jail, in removing McConnell and the other prisoner to the county jail, or in filling out the commitment papers outside his own district. While such actions may be entirely unjustified in some circumstances, we think, in the circumstances clearly established in the instant proceeding, they are not of such nature as to warrant the removal of respondent from office. Any such action on the part of respondent is not specifically made ground for removal from office by provisions of Code, 6-6, and it may be seriously doubted whether such actions constituted causes for removal from office within the meaning of the provisions of that article, at least where no “official misconduct” or other evil practice in connection therewith is established by proper proof. See *Layne v. Hayes,*141 W. Va. 289, 90 S. E. 2d 270; *Alexander v. Ritchie,*132 W. Va. 865, 53 S. E. 2d 735; *Arbogast v. Shields,*123 W. Va. 167, 14 S. E. 2d 4; *Fisher v. Jackson,*107 W. Va. 138, 147 S. E. 541; *Kesling v. Moore and Cain,*102 W. Va. 251, 135 S. E. 246. As indicated by certain of the cases just cited, where a statute provides that an officer should be removed from office for a certain cause, no wilful misconduct need be established by proof. See also *Swim v. Leeber,*143 W. Va. 782, 105 S. E. 2d 137; *State ex rel. Thompson v. Morton,*140 W. Va. 207, 84 S. E. 2d 791; *State ex rel. Morrison v. Freeland,*139 W. Va. 327, 81 S. E. 2d 685; *Jordan v. McCourt,*135 W. Va. 79, 62 S. E. 2d 555; *Haislip v. White,*124 W. Va. 633, 22 S. E. 2d 361. In the instant case, however, we are cited, and have found, no statute which, according to the proof, was specifically violated by respondent. In *Kesling v. Moore and Cain, supra,*we held: “2. Misconduct in office is any unlawful behavior by a public officer in relation to the duties of his office, wilful in character.”

As to the charge contained in specification No. 5, whether respondent, on appearance of Pulley in the office, ordered “Pulley to return with $26.00, or he *599•would be seut to jail”, before any plea or trial, tbe evidence, we think, clearly preponderates in favor of respondent. Pulley was the only witness who testified in support of the charge, except a witness who attempted to corroborate him on rebuttal, while three witnesses for respondent testified to the effect that Pulley entered a plea of guilty and was fined, including costs, $26.00, and was given one week by respondent to obtain that amount, because he was a “sick man”, with the admonition that if the amount was not paid within the time allowed, he would be sent to jail. Notation on the “jacket” containing the pertinent papers seemingly supports the testimony of witnesses of respondent. It was hardly contended in oral argument of the prosecuting attorney that the charges under this specification were sustained by the proof. It can hardly be contended that the extended leniency, though without express statutory authority, without any indication of any favor or personal gain to respondent, constitutes sufficient ground for the harsh remedy of removal from an elective office.

In *Hunt v. Allen,*131 W. Va. 627, 53 S. E. 2d 509, a proceeding under Code, 6-6-7, for the removal from office members of a board of education, it was held: ‘ ‘ 5. The material allegations of a petition under Code, 6-6-7, going to the merits of the charges laid must be proved independent of the allegations of the petition.” *See Daugherty v. Ellis,*142 W. Va. 340, 97 S. E. 2d 33; *State ex rel. Rogers v. Board of Education of Lewis Co.,*125 W. Va. 579, 25 S. E. 2d 537; *Hamrick v. McCutcheon,*101 W. Va. 485, 133 S. E. 127; *Dawson v. Phillips,*78 W. Va. 14, 88 S. E. 456. The pertinent statutory provision of Code, 6-6-7, requires that a person may be removed from office only “upon satisfactory proof of the charges”.

In *Sharps v. Jones,*100 W. Va. 662, 131 S. E. 463, a proceeding prosecuted for the purpose of removing from office a member of a board of education, we held: “3. While charges for the removal of a public officer need not be set out in the strict form of an indictment, *600they should be sufficiently explicit to give the defendant notice of what he is required to answer and to enable him to make due preparation to contest and disprove the particular act or acts constituting the alleged offense charged against him.” See *Shields v. Romine,*122 W. Va. 639, 13 S. E. 2d 16; *Wysong v. Walden,*120 W. Va. 122, 196 S. E. 573; *Painter v. Heironimus,*97 W. Va. 579, 125 S. E. 525.

It seems clear, therefore, from the facts detailed, in the light of the authorities cited, that petitioner failed to prove, by a preponderance of the evidence, at least, any substantial charge alleged in the petition for which removal from office is authorized or warranted, and that the order complained of was necessarily reversed, and the case remanded for the purposes stated in the order heretofore entered.

*Reversed and remanded.*