Dullam v. Willson

19 N.W. 112, 53 Mich. 392, 1884 Mich. LEXIS 692

• Court: Michigan Supreme Court
• Decided: April 23, 1884
• Status: Published

Opinions

Champlin, J.

In January, 1881, respondent was duly nominated and appointed one of the trustees of what was then known as the Michigan Institution for Educating the Deaf and Dumb and the Blind, and now known as the Michigan Institution for Educating the Deaf and Dumb. The'respondent duly qualified by taking and subscribing the oath of office, and entered upon the duties of said office. Iiis term was for six years from the first Tuesday of February, 1881. On the 2d day of July, A. D. 1883, Hon. J. W. Begole, as Governor of the State of Michigan, filed in the Executive office of State a writing or certificate of removal from office, as follows, viz.:

“Executive Oeeice, Lansing, July'2nd, 1883.

Whereas, it appears satisfactorily to me that James O. Willsou, holding the office of trustee of the Michigan Institution for Educating the Deaf and Dumb, has been guilty of official misconduct and habitual neglect of duty, as such trustee, I therefore remove the said James C. Willson from his said office of trustee of the Michigan Institution for Educating the Deaf and Dumb.

[l. s.] Josiah W. Begole.

By the Governor,

D. H. McComas,

Dep. See’y of State.”

—which has ever since remained of record in the executive office, and a copy thereof was filed on said second day of July in the office of the Secretary of State, and has ever since remained there of record.

On the same second day of July said Governor gave notice to said Willson of his removal from said office by a notice in the words and figures following:

“ Executive Office, Lansing, July 2nd, 1883.

To James G. Willson, Esq. — Dear Sir : I have this day, for your official misconduct and habitual neglect of duty, removed you from the office of trustee of the Michigan Institution for the Deaf and Dumb ; the reasons for such removal I shall lay before the Legislature at its next session in detail.

Yours respectfully, Josiah W. Begole.”

The Governor, also, on the second day of July appointed the relator a trustee to fill the vacancy occasioned by the removal of Willson, who refused to surrender up the office to relator, but continues to hold, use and exercise the office of trustee; whereupon, on the relation of said Dullam, the Attorney-General filed an information in this Court in the nature of a quo warranto, alleging that James C. Willson had usurped, intruded into and unlawfully holds and exercises the office of trustee of the Michigan Institute for the Education of the Dumb and Blind since said second day of July, 1883. The respondent interposed a plea in which he set forth his appointment and commission, and that he had entered upon the duties of his office; that he had continued faithfully to perform its duties, and had not been guilty of the official misconduct or habitual neglect of duty as such trustee as asserted, intimated or claimed by the Governor in the writing or certificate signed by him; that the notice touching or referring to his removal, dated July 2, 1883, was the only notice he ever received from the Governor, and aside from that he never received any notice or intimation from the Governor that any complaint or claim had ever been made to or by the Governor that he liad been guilty of any official misconduct or habitual neglect of duty in his office; and that he is still entirely ignorant of what official misconduct and neglect of duty he has been guilty of or that the Governor claims he has been guilty of.

A further plea contained the same allegations as the first, except the denial of having been guilty of any official misconduct or habitual neglect of duty. The People demurred to the first plea, and also replied to that part denying the official misconduct and habitual neglect of duty, asserting affirmatively that said Willson was guilty of official misconduct and habitual neglect of duty as declared by the Governor, and they demurred to the second plea. The respondent demurred to the replication, and the People joined in the demurrer.

Looking at this case as a matter of pleading, I think the demurrer to the replication is well taken. It was incumbent on the relator to state in his replication the specific acts of official misconduct and habitual neglect of duty the respondent was guilty of. As it stands, the respondent is no more apprised from the replication of what he is to meet than he is from the language of the information itself. But as both parties have disregarded all objections to the form of the pleadings, and have argued the case on its merits, I shall proceed to consider the case on the questions presented in the briefs of counsel.

That issue is whether, under the Constitution and laws of Michigan, the Governor has power to remove a State officer by such action as was taken in this case, viz.: an act of removal evidenced by writing, under the hand and seal of the executive, filed in the executive office, with notice thereof to the officer removed, comprunicating to him the alleged grounds of removal, but without giving him notice of charges, complaint or claim of official misconduct or neglect of duty, or opportunity of - hearing, or defense.

The question is one of considerable delicacy, as it requires one of the co-ordinate branches of the government to pass its judgment on the acts of another, and the presumption is that the executive department has the same desire to keep within constitutional limits as either of the other two. From the nature of our government, acting under a written constitution prescribing the jurisdiction and powers of each branch, it devolves upon the judiciary to decide upon the acts of the other departments whenever it is claimed that such action is not in harmony with the fundamental law, and an appeal is made to it to decide ,the controversy. In this instance we are relieved from those embarrassments which' arise when the judicial department is applied to for the writ of mandamus to compel the executive to do some act in the executive or administrative department of government where courts seldom or never interfere, as is well illustrated by many authorities cited on the brief of relator’s counsel.

The Constitution (article xii, § 8,) provides that: “ The Governor shall have power and it shall be his duty, except at such time as the Legislature may be in session, to examine into the condition and administration of any public office, and the acts of any public officer, elective or appointed, to remove from office for gross neglect of duty, or for corrupt conduct in office, or any other misfeasance or malfeasance therein, either of the following State officers, to wit: the Attorney General, * * * or any other officer of the State, except legislative and judicial, elective or appointed, and to appoint a successor for the remainder of their respective unexpired term of office, and report the causes of such removal to the Legislature at its next session.” This provision was not contained in the Constitution of 1835. It was added to the present Constitution, by amendment, ,by the legislature of 1861, (Laws 1861, p. 588,) ratified by the people in 1862.

An existing statute — Comp. L. 1871, § 618 (How. Stat. § 651) — provides that the Secretary of State, Auditor General and all State and county officers, except the State Treasurer and judges, may, for official misconduct or habitual or willful neglect of duty, at any time during the recess of the Legislature, be removed, and the vacancy supplied during such recess by the Governor. This provision was in the Bevised Statutes of 1816, ch. 15.

The information alleges that the removal was made in pursuance of the statute; and from the fact that the executive order removing the respondent follows the language of the statute instead of the Constitution, and fills the vacancy until the next session of the Legislature, instead of the unexpired term, I am convinced that the action was had under the statute. But if the power exists under the Constitution, it is immaterial that a misrecital is made as to its source, and would not invalidate the exercise of the power. I am satisfied that the statute furnishes no valid basis for the power •of removal, because repugnant to the Constitution of 1835, which vested no judicial power in the Governor. The statute, being void, was not validated by the amendment of 1862, and the question depends solely upon the constitutional amendment of 1862. That provision must be construed in ■connection with others in the instrument of which it forms a part. In that instrument we find grants of executive power, and grants of judicial power; and we find rights reserved to the citizen, and restraints upon the exercise of executive, legislative or judicial power, in depriving any person of life, liberty or property without due process of law. Article Y relates to the executive department; and while section •6 provides that the Governor “ shall take care that the laws be faithfully executed,” still the amendment under consideration was not added as a part of that article, but was added to article XII, which relates to “ impeachments and removals from office.” By this article the house of representatives has the sole power of impeachment; the senate, sitting as a court, constitutes tlie tribunal before whom the impeachment is to be tried, and their judgment extends no further than removal from office; and the court for the trial of impeachment cannot sit until the final adjournment of the Legislature. While the Legislature is in session the Govern- or’s power of removal, is wholly suspended. The only way ■a removal from office of State officers could be accomplished, before the adoption of the amendment of 1862, was by impeachment preferred by the house of representatives. The provisions for impeachment still remain a part of the •Constitution.

What was the object sought to be accomplished by the •amendment? It contains an important grant of power combining both executive and judicial functions. There must have been evils existing which, it was thought, made such amendment necessary, which, through some defect in the Constitution, could not be remedied. The journals of the two houses of the Legislature disclose the fact that when they met in 1861 it was made laid wn to them through the Govern- or’s message that the State Treasurer, who had occupied that position the preceding term, was a defaulter; and that his defalcation was known to the Governor long before the assembling of the Legislature. But he was powerless to remove the incumbent from office. lie could only be removed by impeachment, and that could not be done before his term of office expired without calling an extra session of the Legislature. It was apparent, also, that dereliction of duty of other State officers was as liable to occur at any time as had happened in the case of the State Treasurer, and that a removal during the recess of the Legislature might become necessary in order to protect the interests of the State, 'or to promote the public service; hence a joint resolution was introduced in the Legislature, and, after some amendments, was passed •and submitted to the people in its present form, and they adopted it as a part of the Constitution at the general election of 1862. It is to the credit of the State that a period of over twenty years has elapsed before it has been thought necessary by the executive to exercise the power conferred by that amendment.

It will be observed that the section of the Constitution under consideration only authorizes the Governor to remove for specified causes. He is not authorized to exercise the power at his pleasure or caprice. It is only when the causes named exist that the power conferred can be exercised. It follows as a necessary consequence that the fact must be determined before the removal can be made. It is also clear that the fact must be determined by some tribunal invested with judicial power, for a determination whether specified causes exist is the exercise of judicial functions. Judicial determination of facts must rest upon and be preceded by notice, proof and hearing. And the first question is, what is the proper tribunal in which such facts are to be ascertained % In my opinion this provision of the Constitution requires no legislation to make it effective. Head in the light of the history of the times, and the surrounding circumstances when it was adopted, the grant of power is to the Governor coupled with the duty enjoined to examine into the condition and administration of any public office, and to examine into the acts of any public officer, and to remove from office for gross neglect of duty, or for corrupt conduct in office,, any of the officers specified. The amendment for this purpose clothes him with judicial power. It is implied in the grant, and without it the grant would be nugatory and ineffectual to accomplish the purposes for which it was given.

This construction is the only one that can be given to the section which will remedy the evil from which relief was sought by its adoption. He acts in the place of a court of impeachment during the time the Legislature is not in session. An exigency may arise when it would require prompt action to protect the public service or the interests of the State. The delays incident to common-law prosecutions and convictions for malfeasance in office woxdd afford an inadequate, and, in some instances that might be suggested, no remedy. Besides, it should not be forgotten that the remedy by common-law prosecution existed, and could have been pursued before the amendment was adopted. The law, since 1846, had declared a vacancy in any office when the person holding the same was convicted of an infamous crime, or of any offense involving a violation of his oath of office (Rev. Stat. 1846, p. 81 ; 1 Comp. L. 1857, § 475), and the Governor was fully authorized to fill such vacancy. Sess. L. 1S51, p. 266; 1 Comp. L. 1857, § 490. To hold, therefore, after the amendment, the same prosecution and conviction must be had as before, to authorize the Governor to remove, would render the amendment not only a dead letter, but entirely unnecessary; for, as the law stood, conviction created a vacancy which the Governor might fill by appointment; and if a conviction must still be had by a prosecution in the common-law courts before the Governor can remove, we impute to ourselves the inconsistency of holding that the Governor must assume that there is an incumbent of an office, vacant under the statute, whom he can then proceed to remove under the Constitution.

That under the amendment the Governor was vested with the power of determining whether the specified causes exist, appears to me too plain for serious contradiction. I fully concur in the views expressed upon this point by the learned counsel for the respondent (Judge Christiancy), wherein he says: “ It was competent, by constitutional amendment, to authorize him to exercise such judicial power. And while this amendment gives the power of removal only for the causes which it specifies (which, though similar in character, are not identical with those specified in the statute,) and the question of the officer’s guilt is one judicial in its nature, yet the amendment imposes a duty and confers upon the Governor the power ‘ to examine into the condition and administration of the office and public acts of the officers’ to-which it applies, and to remove them from office for the canses there enumerated ,* thus, in effect, giving him the right to try the question whether the officer is guilty or not, and to remove him from his office.”

The counsel for the respondent, while granting this, insist that such removal cannot be made without charges, notice and an opportunity for defense, and this I consider the important question in the ease.

Unless it is the manifest intention of the section under consideration that the proceedings should be ex parte as well as summary, a removal without charges, notice and an opportunity for defense cannot be upheld. The exercise of such power, in such manner, would be too despotic for any attempt at vindication in a country which boasts of the utmost liberty compatible with the safety of the state, and is entirely opposed to the genius of our free institutions. I do not think the people, when they adopted this amendment, intended or supposed that they were placing such unlimited power in the hands of any man. If it exists it places it in the power of the Governor, at his mere will or caprice, to remove all the State officers, except legislative and judicial; and to fill their places with his own partisans, thus revolutionizing the whole administration of the State, and defeating the express will of the people who elected him. It is no argument to say it may never be done. It is sufficient to know that it could be done, and that the people, in adopting the amendment, never intended to grant the power by which .it might be done.

The history of judicial proceedings shows that it has been frequently the case that officers, invested with the power of removal for specified cause, have attempted its exercise in an ex parte and summary manner, not through any wrong motive, but from a misconception of the method 'in which such power should be exercised. In Ramshay's Case, 18 Ad. & El. (Nv S.) 190, it was said: “The chancellor has authority to remove a judge of a county court only on the implied condition prescribed by the principles of eternal justice, that he hears the party accused: he cannot legally act upon such an occasion without some evidence being adduced to support the charges; and he has no authority to remove for matters unconnected with inability or misbehavior; and where evidence has been given in support of them, we think we cannot inquire into the amount of evidence or the balance of evidence, the chancellor, acting within his jurisdiction, being the constituted judge upon this subject.” In Williams v. Bagot 3 B. & C. 786, Mr. Justice Bayley said: “It is contrary to common justice that a party should be concluded unheard.” The case of The Queen v. The Archbishop of Canterbury 1 El. & El. 545, arose under a statute which enacted that a curate, whose license shall have been revoked by the bishop, might ‘appeal to the archbishop of the province, who should confirm or annul such revocation as to him shall appear just and proper.’ An appeal was taken to the archbishop, who, without giving the appellant an opportunity to be heard, confirmed the revocation. Lord Campbell said: “No doubt the archbishop acted most conscientiously, and with a sincere desire to promote the interests of the church: but we all think that he has taken an erroneous view of the law. He was bound to hear the appellant, and he has not heard him. It is one of the'first principles of justice, that no man should be condemned without being heard.” Mr. Justice Wight-man said “that, ex debito justitite, every one has a right to be heard before he is condemned.”

An act of Parliament gave authority to the bishop to-j decide, upon affidavit or upon his own Imowledge, whether or not the duties of the parish had been inadequately performed, in consequence of the negligence of the incumbent, and whenever it should so appear to his satisfaction he could, by certain proceedings, appoint a curate in place of the incumbent. The bishop, proceeding upon his own knowledge, without notice .or an opportunity afforded to the incumbent, adjudged that the duties of the vicarage of the parish were inadequately performed by reason of the vicar’s negligence, and proceeded to appoint another person to the place. The incumbent refused to surrender to the new appointee. Lord Lyndhurst held that the language of the act imported inquiry, and a judgment as the result of that inquiry. He said: “ He is to form his judgment; it is to appear to him from affidavits laid before him: but, is it possible to be said that it is to appear to him, and that he is to form his judgment from affidavits laid before him on the one side, without hearing the other party against whom the charge of negligence is preferred, which is to affect him in his character and in his property ? That he is to come to that conclusion, without giving the other party an opportunity of meeting the affidavits by contrary affidavits, and without being heard in his own defense — without having' an opportunity even of being summoned for that purpose — as in the present instance; there being no summons, for the monition was proceeded in immediately, without any intimation whatever from the bishop of his intention to proceed, to the party against whom that requisition proceeds.” And he further held that when the bishop proceeded, “ on his own knowledge, the same course of proceeding is necessary; because a party has a right to be heard for the purpose of explaining his conduct; he has a right to call witnesses, for the purpose of removing the impression made on the mind of the bishop; he has a right to be heard in hig own defense.” Capel v. Child 2 Cr. & J. 558.

Under the constitution in force, in 1846, in the state of Kentucky, the secretary of state was appointed and commissioned by the governor to hold his office during good behavior, and to the end of the governor’s administration. The governor caused to be entered in the executive journal the following:

“ September 1st, 1846.

Whereas Benjamin Hardin, by his failure, willful neglect and refusal to reside at the Seat of Government, and perform the duties of Secretary, has abandoned said office, and said office, in the judgment of the Governor, has become vacant for the causes aforesaid, it is, therefore, declared by the Governor, and ordered to be entered on the executive journal, that the office of Secretary has become and is vacant. "Wherefore, to fill said vacancy, the Governor this day commissioned George B. Kinkead, Esq., to be Secretary till the end of the next General Assembly of Kentucky. And George B. Kinkead having qualified to his commission, entered upon the discharge of his duties.”

Here appears quite a similarity between the executive action of the governor of Kentucky and this action of the executive in this case in the method of proceeding. There was no notice given to Hardin previous to this action of the governor. Chief Justice Marshall, in delivering the opinion of the court said: “The secretary being removable for breach of good behavior only, the ascertainment of the breach must precede the removal. In other words, the officer must be convicted of misbehavior in office. And we shall not argue to prove that in a government of laws, a conviction whereby an individual may be deprived of valuable rights and interests, and may moreover t>e seriously affected in his good fame and standing, implies a charge and trial and judgment, with the opportunity of defence and proof.” Page v. Hardin 8 B. Mon. 672. As no judicial power was conferred upon the governor in such case, the court held that the conviction must be had before the. judicial tribunals of the state. I should reach the same conclusion in this case were it not that the amendment of 1862 confers judicial power upon the governor to act in the cases specified.

In Willard’s appeal 4 K. I: 601, it was held that a school committee of a town had power to remove their clerk, for just cause, after hearing, full opportunity having been given to him, upon charges presented, to defend himself against them. In Commonwealth v. Slifer, State Treasurer 25 Penn. St. 23, the case was this: The adjutant general holds his office for a specified term, “if he shall so long behave himself well and perforin the duties required by law.” The statute provided : “ Whenever, in the opinion of the governor, the adjutant general fails and neglects faithfully to perform the duties of his office, the governor shall remove him from office.” Before the relator’s term of office had expired the governor appointed and duly commissioned Thomas J. Power to be adjutant general, the respondent alleging as a reason for this action that the relator had not behaved himself well, and had not performed the duties required by law. No notice was given to relator of his removal, nor opportunity for defense. Chief Justice Lewis said: “No removal is shown or alleged, except that which is implied by the simple appointment of a successor. * * * We are unwilling to believe that the governor intended, without cause to remove an officer appointed for a term of years, before the term had expired. That he possessed the power of removal is conceded; but the power is to be exercised upon cause shown. It exists only where ‘ the officer fails and neglects faithfully to perform the duties of his office.’ It is true that the executive is made the judge; and that his ‘opinion’ or judgment is conclusive, so far as relates to the question of removal. But that judgment is not to be pronounced without notice, without any charge or specification, and without any opportunity given to the officer to make his defence. The reputation and the right of the incumbent to the office for the term specified in his commission are involved; and he has a right to know the accusation and to be heard in his defence.” In Meade v. Deputy Marshal 1 Brock. 324, Chief Justice Marshall said: “It is a. principle of natural justice, which courts are never at liberty to dispense with, unless under the mandate of positive law, that no person shall be condemned unheard, or without an opportunity of being heard.” Chase v. Hathaway 14 Mass. 222 was a case where a judge of probate proceeded and entered judgment upon an inquisition of lunacy without notice to the alleged lunatic. Chief Justice Parker said: “ There being’ no provision in the statute for notice to the party who is alleged to be incompetent, by reason of insanity, to manage his estate, it seems that the judge of probate did not think such notice essential to his proceedings. But we are of opinion that, notwithstanding the silence of the statute, no decree of a probate court, so materially affecting the rights of property and the person, can be valid, unless the party to be affected has had an opportunity to be heard in defence of his rights. * * * And whenever the legislature has provided that, on account of crime or misfortune, the public safety or convenience demands a suspension of these essential rights of the individual, and has provided a judicial process, by which the fact shall be ascertained, it is to be understood as required that the tribunal, to which is committed the duty of inquiring and determining, shall give opportunity to the subject to be heard in support of his innocence or his capacity.” See also Geddes v. Thomastown 46 Mich. 316; People v. Lord 9 Mich. 227; People v. Ingham County Treasurer 36 Mich. 416.

The line of authority is not by any means exhausted, but enough cases have been cited to show that the action of the Governor in this case, cannot be upheld as a legal and proper exercise of the power conferred upon him. There must be charges specifying the particulars in which the officer is subject to removal. It is not sufficient to follow the language of the Constitution. The officer is entitled to know the particular acts of neglect of duty, or corrupt conduct, or other act relied upon as constituting malfeasance or misfeasance in office, and he is entitled to a reasonable notice of the time and place when and where an opportunity will be given him for a heai'ing, and he has a right to produce proof upon such hearing. What length of time notice should be given we do not determine; it must depend, in a great measure upon the circumstances of each case.

I have examined carefully the authorities cited upon the brief of the learned counsel for relator in support of the position that no notice is required to be given, and that the action of the executive is final and conclusive. It is sufficient to say, without commenting specially upon .them, that the reasoning of those cases does not commend itself to my judgment. They appear to me to be opposed, not only to the decided weight of authority but also to the fundamental principles of justice. In what I have said upon the law of this case I have not cast the least imputation upon the motives of the executive. The same presumptions of good faith and honest desire to act within legal and constitutional limits are accorded to him as to either of the other co-ordinate branches of the government, and his motives are not the subject of criticism. I have no doubt that he acted under the impression that he was entirely within the line of his duty as well as of law, and that he believed that the removal of respondent was demanded by the best interests of the public service.

Be that as it may, the relator has not made out a case for the intervention of the Court, and judgment must be entered for respondent.

Sherwood, J., concurred.