The Lancaster gazette. (Lancaster, Ohio) 1846-1852, 1849-11-23

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breach Of good behavior. How was the
Court TO arrive at correct interpreta.
tion of this term? What was meant by
the Constitution in the use Of the phrase
good behavior" for which the Clerk
/ 1cou d be removed? IN one instance, only,
did they find the legislature undertaking
to define this term, and to declare for
what act the Clerk should be removable
by the Court that was where there was
Ian omission to make up the records of
the Court within six months after they
had been prepared for him. and they
affixed penalty afierp penalty for this omis-
sion; in some instances it was simply
the payment of costs, in others, indict-
ment; and a wight was also given to the
party aggrieved to sue for private dam.
ages. But in no instance, in respect to
either class of his duties, had the Legis.
Iature undertaken to give to this term of
"miSbehavior" definition. The Legis.
IatuFe in that particular provision of the
statute, did not place his removal upon
the ground of dishonest or corrupt in.
tentlons. Suppose, now. that the court
should find that the Clerk had not made
up the records for six months; ascertain
ing that naked fact, would they be bound
under that law to remove him! Ger
tainIy not. The language of the statute
was imperative; it used the term shall"
but all lawyers knew what it meant when
used in that connection. Suppose it
shouIG appear to the Court that the
Clerk was sick, and that he was advised
oy his subordinatos, untruly, that the re-
cords were made up, would any Court
then pronounce against him any of those
penalties strewn along the line Of his du-
ties! ....t -.f ..H. ..-.... '....
In the second class Of duties devolv-
ing by law on the Clerk, the most were
ministerial; some were judicial. ur as
sumed the shape of judicial functions. In
the view which the Court took of the
present question it was immaterial wheth-
er the Clerk acted in this instance as
judicial or ministerial officer; but if it
were necessary TO determine that ques.
ton, they should not hesitate 20 say that
in the particular act complained of he
did act as judicial officer. Whether
he acted in the capacity of Judge did
not depend on the magnitude of the ques-
ton he had to decde-it was not neces-
sary the fate Of empires or fmen should
depend on the particular judgment he
lpronounces.
1t would appear he acted in this in
stance ia judicial capacity. Why. if
otherwise, call to his aid those Justices
of the peace. they being judicial Off
cersl Why call on the Associate Judges,
in the absence of the Clerk, to perform
the same dutyl But whether it was in
the making of this abstract or in the is
suing of the certificates, that the Re-
spondent had offended made no differ
ence--the Court decided that. as "A iu-
dicaI or ministerial officer, mere mis-.
take, orerror of judgment was no cause
for removal. There should be dishon.
est or corrupt purpose. IT, in the case
of a judicial officer, man could be re-
moved from his office who committed a
mistake, who erred in judgment, acting
with no dishonest purpose. he, Judge
HAIRY doubted very much if the rule
were applied to himself he should occu.
py that seat very long--as he had been
told he had committed good many mis-
takes in the law a laugh and he had
no doubt he had There was not man
onthe bench but who would feel disturb
ed if the rule were to be applied. g.
If civil suit we're brought against Mr..
Roll, and the Court should find he was
acting in the making of this declaration
as Judge, the Court might sustain it,
if it were in the assertion of these rights
the Relators ad-nay, if there were no
other remedy than his removal. they
might listen to the proposition. Upon
what principle, however, were these
suits (referred to by the learned gentle
man who opened the case for the Rea-
tors susta aimed against the Judges ofolec-
tions who had refused vote to man
entitled to it? 1t was not criminal pro.
secutou, or application to remove Judge
from office, and the action was sustain
ed on the ground he had dno olherremedy;
and in this proceeding, if civil suit
were brought, the Court would undoubt-
edly render Judgment against the Clerk,
on the authority Of that case, and others
cited by Counsel. They might hold that
he was properly indicted, if an indict-
ment should be preferred, or they might
regard his act as breach of good beha.
vior if there were no other remedy.
- If the decision of the Clerk was final,
as the decision of a judge of an election
would be, whether a man had right to
vote or not, where there was no appeal
from it, and where there was good sense
in holding the Judge responsible. tech,
nically, to the party aggrieved, for the
purpose of determining the question of
right, then would the case assume a diff
ferent aspect. Suppose it were an ap.
peal on behalfof Mr. Heckewe der that
Mr.. Hoon was not properly elected, or
was not entitled to a certificate. Was
the declaration of the Clerk final on that
subject, or was there no way Mr.. Heck.
ewelderconld have his rights determinedl
Undoubtedly, plain way was pointed
out by the statute, TO take an appeal to
that court; and if they should find that
the clerk and Justices who declared Mr..
Hoon elected Recorder Of Hamilton
County, had made mistake, were they