State Ex Rel. Davis v. Johns

248 P. 423, 139 Wash. 525, 1926 Wash. LEXIS 679

• Court: Washington Supreme Court
• Decided: July 14, 1926
• Docket: No. 20033. En Banc.
• Status: Published

Opinions

Mitchell, J.

This is an action in the nature of quo warranto to try the title to the office of regent of the state university.

The information alleges that, heretofore, the then governor appointed the relator to the office for the term of six years beginning on the second Monday of March, 1922, and that he accepted the appointment and qualified and ever since the second Monday of March, 1922, he has been a duly appointed, qualified and .acting regent of the university; that on the 4th day of May, 1926, the governor filed with the secretary of state, and the secretary of state thereafter forthwith sent a certified copy by registered mail to relator of a certain purported order of removal, as follows:

“I, Roland H. Hartley, governor of the state of Washington, being satisfied that James H. Davis, duly appointed and acting member of the board of regents of the university of Washington has, in my judgment, been guilty of misconduct in office, do by virtue of the power in me vested hereby remove the said James H. Davis from his said office as said member of the board of regents of the university of Washington and the vacancy in such office existing by reason of such removal I do hereby fill by the appointment of Paul H. Johns of Tacoma, Washington, as member of the board of regents of the university of Washington for such unexpired term ending the second Monday in March, 1928.”;

that on May 7, 1926, over the protest of relator, the respondent usurped the office, assumed and continues to perform.the functions of the office to the exclusion of relator, who is rightfully entitled to such office; that, other than as set forth in the order, no charge has been filed against the relator, nor has he had any notice of charges against him, nor has any hearing been had as to any charges against him, nor any other order of removal served or filed; and that he has no knowledge' or notice of what fact or facts, if any such. there be, the governor considered constituted misconduct of which the relator is stated in the order to have been guilty. A general demurrer to the information has been filed.

The office in question is under the appointive power of the governor by and with the advice and consent of the senate. Constitution, art. 13, § 1. The power of removal is with the governor. Article 5, §3 of the constitution provides:

“All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law.”

Pursuant to the provisions of the constitution, the legislature, Session Laws of 1893, p. 247, enacted what are now §§ 10988, 10989 and 10990, Rem. Comp. Stat. [P. C. §§ 6650-6652]. The first section reads:

“The governor of the state of Washington is hereby authorized and empowered to remove from office' all state officers appointed by him not liable to impeachment for incompetency, misconduct or malfeasance in office.” [Rem. Comp. Stat., § 10988.]

The second section reads:

“Whenever the governer is satisfied that any officer not liable to impeachment has been guilty of misconduct, or malfeasance in office, or is incompetent, he shall file with the secretary of state a statement showing his reasons with his order of removal, and the. secretary of state shall forthwith send a certified copy of such order of removal and statement of causes by registered mail to the last known postoffice address oí the officer removed.” [Rem. Comp. Stat., § 10989.]

The third section provides that, at the time of making the removal from office, the governor shall appoint some one to fill such office who shall forthwith demand and receive from the officer removed the papers, records and property of the state pertaining to the office, and shall perform the duties of such office. There is no contention in this case by counsel that a regent of the university is liable to impeachment.

Counsel for the relator, referring to former decisions of this court upon which counsel for respondent rely, have cited and quoted from later cases of this court, which they claim evince a modification of such former decisions. Those cases thus cited have been considered, and are found to have arisen where the officer sought to be removed and the applicable procedure therefor were distinctly different from those where the appointive and removal power lay with the governor. They are not in point. We are so satisfied they are' not in point that we refrain from analyzing them or further distinguishing them, because we are convinced that the language in them now seized upon on behalf of the relator must yield to the maxim, not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used.

Without stating them as mentioned in the briefs, we think all points and contentions raised by the relator may be discussed by a consideration of former decisions of this court holding adversely to all such points and contentions. The first case, State ex rel. MoReavy v. Burke, 8 Wash. 412, 36 Pac. 281, arose after the act of the legislature of 1893 for the removal of officers. It was a case of removal by the governor of a member of the state capitol commission, who had been appointed by the governor under the provisions of an act of the legislature approved March 21, 1893 (Laws of 1893, p. 462). The act provided for a commission of five members, three to “he appointed by the governor by and with the advice and consent of the senate.” The commissioner removed, however, had been appointed after the legislature adjourned and there had been no confirmation. The case was decided in March, 1894. Tersely stated, it was to the effect that, for the purposes of that case, the act of 1893 for the removal of officers not liable to impeachment, and certain parts of the act of 1893 creating the capitol commission, should be construed together and that, so construing them, the legislative intent was plain that the tenure of such appointive member should be indefinite and such officer liable to removal without a hearing for misconduct, malfeasance or incompetency, when the governor should be satisfied that any such cause existed.

The next case was State ex rel. Howlett v. Cheetham, 19 Wash. 330, 53 Pac. 349, decided May, 1898, adversely to the relator. He had been removed by the governor from the office of arid land commissioner, to which he had been appointed by the governor for a fixed and definite term under the provisions of the act. Session Laws of 1895, p. 452. In that case two distinctions were sought to be made over, the McReavy case. In the former, the term was for an indefinite time, here it was fixed; there, as it was argued, the validity of the removal act was not clearly settled by the opinion; here it was insisted “if the act of 1893 cannot be construed as providing for notice and a hearing on the causes assigned it is unconstitutional and void.” In the opinion, the court said that the relator contended that the holding in the McReavy case supra, was in his (Howlett’s) favor on the ground that the term here is a fixed and definite one. Answering the contention the court said:

11 But what was said in the opinion there with reference to the weight of authority upon the giving of notice and an opportunity to appear and defend in cases of fixed terms was as to those cases where the act did not provide otherwise. Section 3, art. 5, of the constitution is as follows:

“ ‘All officers not liable to impeachment shall be sub ject to removal for misconduct or malfeasance in office, in such manner as may be provided by law.’

“The constitution left it entirely to the legislature. It is clear that the power of removal may be vested in the governor without any right of appeal, and in construing the act the court held that it provided for a removal by the governor without notice whenever he was satisfied that the incumbent had been guilty of misconduct or malfeasance in office, and that his action was not subject to the control of the courts, the intention being to provide for a summary removal of minor state officers without the delays occasioned by protracted litigation.”

We have italicized certain of tjie language used, as it explains what the court meant by “the weight of authority,” spoken of in the McReavy case, to the effect that it proceeded from those jurisdictions where there was an absence of such procedural directions as those contained in our written law. Another important statement in the language quoted, in the light of points raised in the present case, is “it is clear that the power of removal may be vested in the governor without any right of appeal,” in a summary way.

Still another case is that of State ex rel. Fay v. Easterday, 20 Wash. 709, 54 Pac. 1135, decided November 18, 1898. The relator had been removed by the governor from the board of regents of the state university, as in the present case. He presented all the questions, pertinent to his case, that had been urged in the two former cases including the validity of the removal act, in his pleadings and written arguments. In the same manner he alleged and argued that the office of regent of the university was a constitutional office under art. 13, § 1, of the constitution and that an incumbent was not subject to summary removal by the governor. But this court, in a memorandum decision, held that the case was controlled by the decisions in the two former cases. Each of the three cases was presented and decided upon a complaint tested by a general demurrer.

It is contended that the act of the legislature cannot be held to be constitutional nor an order or removal by the governor valid, except the order comply with the terms of the statute; and that, to effect a removal, the governor must set forth in his order facts or acts, and not simply conclusions which, in his judgment, constitute the misconduct complained of. It is said that this court has not held contrary to that contention and further that such course was not followed in this case.

In the McReavy case, supra, the substantive portion of the order was:

“I, J. H. McGraw, Governor of the State of Washington, being satisfied that John McReavy, a duly appointed and qualified and active member of the State Capitol Commission, has been guilty of misconduct in office, do by virtue of the power in me vested hereby remove the said John McReavy from his office as a member of the said State Capitol Commission, and the vacancy existing by reason of such removal I do fill by the appointment of Thomas Burke of King County, Washington.”

The order of removal in the Rowlett case is set out in full in the report of that case, 19 Wash. 330, 53 Pac. 349. The order in the Fay case was in the same form. The governor’s order in the present case has already been given herein. It will be noticed that, in substance, the orders in the four cases are precisely alike. In the McReavy case, supra, this argument was made on behalf of the relator:

“One other question remains. If the court shall be of opinion that the general statute on the subject of removals furnishes the rule governing the action of the executive in this case, then the removal was not effected in the manner provided by that statute. The order of removal did not specify the reasons for the removal. It is too manifest to require argument that the statute meant to require more than a statement of the statutory grounds for removal.”

In the Eowlett ease, supra, the same contention was made, that is, that the removing authority must strictly pursue the terms of the statute, else his action is void, and then, upon reciting the order made by the governor in that case, it was said by the relator: “This document does not state the facts on which the action of the governor is based, but states the legal conclusion.” In the Fay case a similar contention was made.

Now, the argument that we have not held contrary to the rule that to make an order valid it must “comply with the terms of the statute” and “set forth facts or acts and not simply conclusions” is made, as we understand, because there was no specific discussion of this point in either of the opinions in the three cases referred to. However, as already stated the complaint in each of those cases was challenged by a general demurrer which, of course, allowed the relator to claim that the terms or language of the governor’s order did not comply with the requirements of the statute and that therefore the general demurrer should not prevail. That issue, among others, was distinctly presented by the relator in each case and decided adversely to him. It is, of course, the rule that where a litigant presents several issues in support of his demand for a single relief to a court, if the decision be in his favor upon a discussion of less than all the issues, it means that the issue or issues not discussed are not decided at all, but only those that are discussed. On the contrary, if the decision is against him, although the court may discuss less than all the issues presented, it means necessarily that all the issues presented have been con sidered and decided against him for the reason that if any one of them is valid he must prevail. On principle the situation is similar to that discussed in Fidelity & Deposit Co. of Maryland v. United States, 187 U. S. 315. It was a case in which the plaintiff moved for judgment under a rule of court for failure of the defendant to file with his plea a sufficient affidavit of defense. The defendant contended that the court had no power to enact the rule and that it was invalid, in that it deprived defendant of due process of law and the right of trial by jury. The court said:

“The rule was formerly number 75 and has existed a long time. The Court of Appeals of the District has sustained its validity in a number of cases. This court also sustained its validity in Smoot v. Rittenhouse, decided January 10,1876.

“The case is questioned as authority because, it is said, that £if this court upheld a rule of such important character and doubtful validity it would give the grounds of it's decision.’ But the objection assumes that the court had doubts. The better inference is that the court regarded the grounds of challenge to the validity of the rule as without foundation. And its validity was challenged and necessarily passed on, which disposes of the contention that the decision was based on another point.”

Such in effect is the present situation. Here are three cases in this court, in each of which the relator presented this very issue that had to be decided against him, else he was entitled to prevail. In each case he lost. Such decision was reached not simply once or twice, but three times. It is a series of decisions. The cases are records of this court. Two of them are called to our attention by the relator, and all three of them by the respondent.- They are landmarks serving as precedents that we do not feel at liberty to ignore or disregard.

There is another view of the matter. It is a practical, recognized view. The section of the constitution referred to on the subject of removal of officers was not self-executing as to the manner of removal. The legislature was to provide for that. It did so provide by the act of 1893. The McReavy case, supra, involved an interpretation of that act and, while it was held that the order made by the governor in that case complied with the law, the opinion did not set out a copy of the order. Four years later, when the Howlett case was written, the governor’s order in that case was written out in full in the opinion as reported. By that means the legislature, always watchful of the court’s view's in the interpretation and construction of statutes, was given to understand that that form of an order complied with the terms of the statutes, in the opinion of the court. That was the second time the statute had been presented to the court for interpretation, each case involving this precise question, and the course pursued in the Howlett case, supra, of setting out the governor’s order was, by undeniable implication, equal to saying to the legislature that such an order complied with the terms of the law as the court understood the intention of the legislature. And still further, in the Howlett case, after referring to the construction of the law announced in the McReavy case, supra, significantly it was said: “Additional weight at this time is lent to that construction of the act by reason of the fact that several sessions of the legislature have been held since then and no change been made.” That was said more than a quarter of a century ago since which time there have been fourteen biennial sessions of the legislature “and no change made.” In all fair reason, we think it must be held that the situation is as if in the act of 1893 for the removal of officers, the form of the governor’s order em ployed in this and the former cases had been set out for the guidance of the governor, whereupon, according to the doctrine of all those other cases no want of validity in the act or regularity in the procedure can be declared in the present case.

Nevertheless, neither have the authorities from other states cited on behalf of the relator been overlooked. As we see it no useful purpose can be accomplished by discussing them. -The particular procedure or circumstances in each of those cases controlled. A large percentage of such cases were before this court in the consideration of our former cases. We cannot refrain, however, from mentioning more particularly the case of People ex rel. Emerson v. Shawver, 30 Wyo. 366, 222 Pac. 11, spoken of by counsel as a very recent one and “probably the best case upon the subject under discussion.” That case contains an elaborate discussion of many things, some of which are foreign to the questions here. It was a case involving the validity of an order of removal by the governor of the state engineer. Section 19 of art. 3 of the constitution of that state, like the provision of our constitution on the subject, provided: “All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law.” An act of the legislature of that state purported to give the governor much broader power as to causes for removal than did the constitution. It was held by the court that the statute, in so far as it attempted to authorize a removal for other than misconduct or malfeasance in office, as stated in the constitution, was void as affecting the office of state engineer created by the constitution. It was further held that the misconduct or malfeasance, for which such an officer might be removed, pertained only to acts or omissions relating to the performance of official duties. The opinion sets out the order of removal, from which it appears that it contains.no language which eo nomine or its equivalent is found in the constitutional provision or applicable portion of the statute. On the contrary it is a long, somewhat involved statement of grievances, of which the court said: “The relator is charged in that statement, and also in the statement directed and sent to him, with having allowed his commission as state engineer to be presented to the senate for confirmation without the governor’s knowledge or consent. That is all.” And it was held by the court that that conduct did not at all relate to official conduct of the state engineer as contemplated by the removal law, and hence the order of removal was invalid. That is, it was a case wherein the statement of the governor was entirely beyond and without the scope of the law. That, of course, presented a situation or case subject to judicial inquiry. Such is not the situation in the present case.

We appreciate counsel’s criticism of the operative effect of our law, thus interpreted and applied, with regard to the embarrassment caused reputable persons upon being removed from office. The same arguments were made in all of the other cases. That, however, has to do with the policy of the law, within the control of the legislature, and with which the courts have nothing to do in the absence of the invasion of some guaranteed right which we cannot find in this case under the uniform holdings of this court in the former cases.

The respondent’s demurrer' is sustained. As we understood at the hearing, the relator does not desire to amend his pleadings.

Writ denied.

Tólman, C. J., Fullerton, Parker, and Holcomb, JJ., concur.