In re Mason

181 N.W. 570, 147 Minn. 383, 1920 Minn. LEXIS 758

• Court: Supreme Court of Minnesota
• Decided: December 17, 1920
• Docket: No. 22,065
• Status: Published

Opinions

TAYLOR, 0.

The relator was county attorney of Hennepin county for the term beginning on the first Monday in January, 1919. On May 17, 1920, one Fred M. Mason petitioned the Governor to remove him from office, on the ground that he had been guilty of malfeasance in the performance of his official duties. After an extended hearing, at which much evidence was submitted, the Governor found the charges true, and made an order removing him from the office of county attorney. The relator sued out a writ of certiorari from this court.

The courts-can in no way interfere with the exercise of the powers which the Constitution vests in the Governor as chief executive officer of the state, but the power of amotion from office is not given him by the Constitution, but rests only on an act of the legislature, and it is settled in this state that his action in removing an officer from office may be reviewed by a writ of certiorari. State v. Eberhart, 116 Minn. 313, 133 N. W. 857, 39 L.R.A.(N.S.) 788, Ann. Cas. 1913B, 785, in which the prior decisions are reviewed and analyzed. In that case the removal of a county attorney from office was sustained, the court saying:

“The decision will not be reversed if there is any evidence of a legal and substantial basis reasonably tending to support it.”

In the present case the original petition charged, in paragraph 2, that the relator had received bribes from one Michael Weisman under an agreement to use his official position to protect certain persons in the commission of certain crimes without specifying either the persons or the crimes, and then charged, in paragraph 3, that pursuant to the receipt of such bribes he had wilfully and feloniously conspired with Oscar Martinson, Michael Weisman and 11 other persons named therein to receive, transport and conceal a large quantity of intoxicating liquor unlawfully imported into this state from the Dominion of Canada, and for fuller details referred to a complaint made to a United States commissioner, charging him with this offense, a copy of which was attached to the petition. At the opening of the proceedings on the second day of the hearing, the petitioner was permitted to amend the petition by inserting two additional paragraphs therein: One to the effect that, on or about January 15, 1920, the relator had received a bribe of $500 from Michael Weisman to use his official position to prevent one Max Brooks from being brought to trial upon an indictment which had been returned against him by the grand jury of Hennepin county; the other to the effect that, on September 3, 1919., he had received from Weisman the sum of $2,000 as the consideration for using his official position to bring about the imposition of a fine, without a prison sentence, upon four women named -therein who had been indicted for keeping houses of ill-fame in the city of Minneapolis.

The principal contentions of the relator are: (1) That the petition could not be amended by inserting additional charges therein after the hearing had been begun; (2) that the findings are manifestly and palpably against the preponderance of the evidence; (3) that evidence of other offenses than those charged in the petition was improperly received.

1. The statute provides that the Governor may remove from office any county attorney, or any of certain other specified officers,

“Whenever it appears to him, by competent evidence, that either has been guilty of malfeasance or nonfeasance in the performance of his official duties; first giving to such officer a copy of the charges against him, and an opportunity to be heard in his defense.” G. S. 1913, § 5724.

The next section provides for the appointment of a commissioner to take and report the testimony, and that each witness shall subscribe his name to his testimony when the same is reduced to writing. In the present case a commissioner was appointed who took down and made a record of the testimony, but the testimony was taken before 'the Govern- or in person and the various rulings throughout the hearing were made by the Governor. It will be observed that the statute does not limit the time nor' prescribe the manner in which charges shall be presented, but merely provides that the accused officer shall be furnished a copy of the charges and be afforded an opportunity to make his defense. This requires a hearing, the purpose of which is to determine whether the officer has been guilty of the alleged misconduct. The Governor, upon whom the statute imposes the duty to determine this question, is not a court, and is not bound by the strict rules which govern trials in court. State v. Common Council of City of Duluth, 53 Minn. 238, 55 N. W. , 39 Am. St. 595; State v. McGaarden, 85 Minn. 41, 88 N. W. 412, 89 Am. St. 534; State v. Eberbart, 116 Minn. 313, 133 N. W. 857, 39 L.R.A. (N.S.) 788, Ann. Cas. 1913B, 785. The statute is remedial rather than penal in its nature; it provides for the removal of an unfaithful officer to protect the public, secure the faithful performance of official duties, and keep the public service above reproach, not to punish the officer for his derelictions. 22 R. C. L. 573, § 284; Territory v. Sanches, 14 N. M. 493, 94 Pac. 954, and note appended to report of ease in 20 Ann. Cas. 109; also note found in 135 Am. St. 250. The restrictions which hedge about a trial in court on an indictment and limit the power to amend the indictment do not apply, and we find no warrant in the statute for saying that only one charge or set of charges may be considered, and see no reason why additional charges may not be presented, either independently of the original charges, or by way of amendment to them. The question to be determined is whether the accused officer has so misconducted himself in respect to the performance of his official duties that the good of the public service requires his removal from office. And-the officer, or special tribunal, charged with the duty to determine this question may, in our opinion, in the proper exercise of his discretion permit the presentation of further and additional charges setting forth facts which, if true, have a direct and material bearing upon the question to be determined. Of course, the accused officer must be given a proper opportunity to meet the additional charges after they have been furnished to him. In the present ease, the relator was given ample opportunity to present all his evidence and make a full defense.

2. The Governor found three charges true, namely: That the relator was a party to the so-called liquor conspiracy; that he had received a bribe in the Max Brooks case; and that he had received a bribe in the cases of the four women indicted for keeping houses of ill-fame. Any one of these findings, if sustained by the evidence, furnished a sufficient ground for the order of amotion. The relator does not claim that there is no evidence to support these findings, and could not well do so, for the witness, Michael Weisman, testified directly and positively that he made the arrangement with the relator in each of these instances, and paid him $500 on behalf of Max Brooks, $3,000 on behalf of the four women, and $3,000 on behalf of the parties who were illegally bringing liquor from Canada into Minneapolis. The relator’s contention is that the findings rest on the testimony of Weisman, 'and that Weisman was impeached and discredited to such an extent that his testimony should be rejected as unworthy of belief.

The province of this court in reviewing proceedings brought before it by writ of certiorari is well defined. It may examine the evidence, but only for the purpose of ascertaining whether it furnished any reasonable or substantial basis for the decision. It cannot reweigh the evidence for the purpose of determining where the preponderance lies, nor substitute its judgment as to the credibleness of the testimony of a witness fox that of the tribunal charged with the duty of determining the facts. State v. City of Duluth, 125 Minn. 425, 147 N. W. 820; State v. Common Council of City of Duluth, 53 Minn. 238, 55 N. W. 118, 39 Am. St. 595; State v. Dart, 57 Minn. 261, 59 N. W. 190; State v. Eberhart, 116 Minn. 313, 133 N. W. 857, 39 L.R.A.(N.S.) 788, Ann. Cas. 1913B, 785; 5 B. C. L. title Certiorari, §§ 3, 14, 16; McNiff v. City of Waterbury, 82 Conn. 43, 72 Atl. 572, and note appended to report of that case in 135 Am. St. 247.

The relator points out several particulars in which the testimony of Weisman does not accord with that of other witnesses, and also points out various facts tending to discredit him and tending to show the improbability of portions of his testimony, as well as the fact that he admits that his testimony squarely contradicts his previous statements, but these were matters to be taken into account by the trial tribunal in weighing his testimony, and will not warrant this court in saying that his testimony should have been rejected. According to his own story, Weisman was an accomplice in the different crimes to which he testified, but the rule, requiring the testimony of an accomplice to be corroborated, is statutory and does not extend to such a proceeding as this. Nevertheless the fact that a witness is an accomplice is sufficient reason for scrutinizing his testimony closely, and the Governor undoubtedly scrutinized Weisman’s testimony closely, for he calls attention in his findings to various facts and circumstances, shown by other evidence, which corroborated that testimony. In saying that the rule requiring an accomplice to be corroborated does not apply to this proceeding, we are not to be understood as intimating that Weisman’s testimony was uncorroborated, for the record discloses several corroborative facts and circumstances, of which the following are examples:

From the testimony of Assistant District Attorney Anderson, it appears that on the day before Martinson’s arrest relator asked Anderson over the telephone whether Special Agent Campbell was investigating Martinson’s doing-s, and was informed that Anderson did not know; that about seven o’clock 'that evening Anderson told relator over the telephone that “there is something very important in the air;” that relator asked: “Has it gone too far to be headed off?” that Anderson replied: “Have Oscar Martinson in my office at nine o’clock in the morning and we will go over it;” that about an hour later relator and Martinson came to Anderson’s home where relator, after saying: “This has got to be stopped,” asked Anderson to tell them what could be done and whether there was any way to reach or influence District Attorney Jacques or Special Agent Campbell; that Anderson assured them that Jacques and Campbell could not be swerved from doing their duty, but would make no arrests without good cause, and suggested that relator and Martinson have an interview with Campbell for the purpose of convincing him that there was nothing to the matter he was investigating; that they arranged to meet Campbell at Anderson’s office at nine o’clock the next morning, and that after Martinson left the room relator stepped back and asked again what it was about, to which Anderson replied: “I don’t know, unless it is some whiskey proposition.” It is conceded that they did not appear at Anderson’s office the next morning, but went together to the office of an attorney at or about the time set for the meeting with Campbell, and that Martinson was arrested shortly thereafter for complicity in the liquor conspiracy and subsequently pleaded guilty to the charge. The relator admitted the interviews with Anderson, but claimed that he was merely trying to help Martinson and had no knowledge that the matter concerned himself personally. From the testimony of Martinson it appears that, after learning that the grand jury proposed to investigate the sheriff’s office and the county attorney’s office, he and the relator went to a judge of the district court and asked him to remove a certain grand juror from the panel. Kelator denies this. The judge testified that the relator and Martinson came to him in reference to one of the grand jurymen about March 15, 1920, and that "the conversation had reference to a claim, at least, that some of the grand jurymen wanted to investigate both the county attorney’s office and the sheriff’s office.” In view of the circumstances, we think that the testimony as to the active efforts of the relator to "head off” these investigations had corroborative force. While Martinson unreservedly admitted his own part in the transaction, his testimony gives the impression that he wished to avoid disclosing facts which affected others, and is not explicit as to several matters, yet we think his testimony, taken as a whole, has corroborative value.

A careful examination of the record satisfies us that there is substantial evidence supporting the decision, and we cannot review the evidence for the purpose of ascertaining whether we would draw the same conclusions from it that were drawn by the tribunal appointed by law to determine the truth or falsity of the charges.

3. Proof of other offenses of the same nature as the offenses charged, and which tend to show that the defendant was pursuing a general scheme or course of conduct which embraced the commission of such offenses, is 'admissible for purposes of corroboration even in criminal trials. State v. Wilson, 72 Minn. 522, 75 N. W. 715; State v. Ames, 90 Minn. 183, 96 N. W. 330; State v. Monroe, 142 Minn. 394, 172 N. W. 313; State v. Whipple, 143 Minn. 403, 173 N. W. 801; State v. Ettenberg, 145 Minn. 39, 176 N. W. 171.

The other offenses which the petitioner sought to prove, in the present proceeding, were all of the same nature as those charged in the petition, and proof of them was admissible, under the above rule, for the purpose of showing that the offenses charged were .part of a general course of conduct. As the decision is not predicated, upon these other offenses, there is no occasion to consider them further. It may be that the rule against hearsay, if strictly enforced, would have excluded some of the evidence received, but, in such proceedings, the Governor is not bound to enforce 'the technical rules of evidence, and his decision cannot be reversed because incompetent or irrelevant evidence was received, if it is sufficiently supported by other competent 'and relevant evidence.

4. The relator, the sheriff, Weisman and nine or ten others were indicted in the Federal court for the so-called liquor conspiracy. The sheriff, Weisman and some others entered a plea of guilty. The relator stood trial and was acquitted by the jury. That such u conspiracy existed, and that large quantities of intoxicating liquor were brought into the city of Minneapolis in violation of law is beyond dispute, but the relator has at all times stoutly asserted, not only that he was not a party to it, but that he had no knowledge of it. He now urges, in effect, that his acquittal in the Federal court exonerated him from this charge, and that this charge ought not to have been considered in reaching a decision in the present proceeding. The prosecution in the Federal court was for an alleged violation of a Federal law, and the judgment there rendered would not bar a prosecution in a state court for the violation of a state law, although based on the same act. State v. Holm, 139 Minn. 267, 166 N. W. 181, L.R.A. 1918C, 304, and cases cited therein. Furthermore this proceeding is not a criminal prosecution, but an investigation authorized by statute to determine whether the relator has been guilty of misconduct warranting his removal from office, and, even if the acquittal had been in a state court, it would not have closed the door to such an investigation. The indictment alleged a violation of the criminal laws, this petition alleges á violation of his duties as a public officer. The offenses are not the same, even if predicated on the same act, and neither proceeding can operate as a bar to the other. See 8 E. C. L. title Criminal Law, §§ 116, 118, 128, 135, 136. See also State v. Lee, 29 Minn. 445, 13 N. W. 913; State v. Harris, 50 Minn. 128, 52 N. W. 387, 531; City of Virginia v. Erickson, 141 Minn. 21, 168 N. W. 821. While these cases were of a different nature, the reasoning in the decisions applies with greater force to such a case as the present.

It follows from what we have said that the writ must be and is discharged.