State Ex Rel. Nagle v. Sullivan

40 P.2d 995, 98 Mont. 425, 99 A.L.R. 321, 1935 Mont. LEXIS 7

• Court: Montana Supreme Court
• Decided: January 3, 1935
• Docket: No. 7,364.
• Status: Published

Opinions

Opinion:

PER CURIAM.

Application for writ of quo warranto by the State on the relation of Raymond T. Nagle, as Attorney General, against W. P. Sullivan and A. C. Baumgartner.

The State Fish and Game Commission, composed of five members, and as it now exists, was created by section 3650, Revised Codes of 1921. Section 3651 provides for the appointment of the members of the commission by the Governor, and that the selection shall be made without regard to political affiliations, “but for the sole welfare of the fish, game, and wild life of the state.” It is then provided that the members first appointed shall hold or serve for one, two, three and four years, and thereafter, on the expiration of these terms, the Governor shall appoint commissioners “to serve for four years, unless sooner removed.” The Governor is authorized to fill all vacancies and is given “the power to remove any member of said commission for cause or for the good of the commission.”

On May 23, 1932, all members of the existing commission having resigned, Governor Erickson made, and filed with the Secretary of State, the following appointments:

"William Steinbrenner, for the term ending April 15, 1933.

Harry P. 'Stanford, for the term ending April 15, 1934.

B. L. Price, for the term ending April 15, 1934.

W. P. Sullivan, for the term ending April 15, 1935; and

William F. Flynn, for the term ending April 15, 1936.

Steinbrenner was evidently appointed for a four-year term at the expiration of the term above specified. Each of the men named commissioner duly qualified in the manner prescribed by law and entered upon the discharge of the duties of his office.

On March 13, 1933, Governor Erickson resigned, and the powers and duties of the office of Governor devolved upon Lieutenant-Governor F. H. Cooney.

On April 17, 1934, the terms of commissioners Stanford and Price having expired, acting Governor Cooney subscribed and filed with the Secretary of State an instrument in writing in which he declared: “I have this day revoked and do hereby revoke the appointments heretofore made, of the following named members of the State Fish and Game Commission, said revocation being made for the good of the Commission: W. P. Sullivan, of Chouteau County, appointed for the term ending April 15, 1935; William F. Flynn, of Deer Lodge County, appointed for the term ending April 15, 1936; William Steinbrenner, of Missoula County, appointed for the term ending April 15, 1937.”

On the same day acting Governor Cooney subscribed and filed with the Secretary of State the following declaration: “I have this day appointed and do hereby appoint the following named persons to be members of the State Fish and Game Commission: A. C. Baumgartner, of Great Falls, Cascade County, for the term ending April 15, 1935, to fill the vacancy caused by the removal of W. P. Sullivan; P. G. Gutensohn, of Whitefish, Flathead County, for the term ending April 15, 1936, to fill the vacancy caused by the removal of William F. Flynn; J. J. Harper, of Anaconda, Deer Lodge County, for the term ending April 15, 1937, to fill the vacancy caused by the removal of William Steinbrenner; Pay G. Lowe, of Glendive, Dawson County, for the term ending April, 1938; W. C. Keil, of Billings, Yellowstone County, for the term ending April 15, 1938.”

The above-named five men took the usual oath of office and filed the required bonds, and thereafter, on April 19, 1934, met in the office of the Fish and Game Commission, claiming to constitute that commission, and proceeded to transact business as such, and on the following day, Sullivan, Flynn and Steinbrenner met in that office, claiming to constitute the commission, and likewise proceeded to transact business.

On April 21, 1934, the Attorney General filed his complaint herein, reciting the foregoing facts, and alleged the importance of the duties of the commission and their orderly discharge, and that Sullivan and Baumgartner each contend that the other is attempting to usurp, and is usurping and unlawfully holding and exercising the powers of the office, and that he cannot determine who is right. The relator prays that the defendants be required to try their rights before the court, and that the court determine which one of the defendants, if either, is entitled to the office.

Defendant Sullivan filed an answer and cross-complaint, in which he alleged that his attempted removal was void and of no effect, as the sole ground of the Governor’s action was the refusal of the commission to appoint a game warden of the Governor’s selection, and the action was taken without notice, hearing or opportunity to be heard.

Defendant Baumgartner filed an answer and cross-complaint, and a reply to Sullivan’s pleadings, wherein he alleged, on information and belief, many matters which, if proved, would constitute grounds for removal of the members of the commission, and alleged, on information and belief, that these matters were known to the Governor and were the moving cause of the order of removal. He admitted that Sullivan was removed without notice and hearing but alleged that such preliminaries were not necessary.

Sullivan thereafter filed a motion _ to strike all matter in the Baumgartner pleadings reflecting on the members of the commission as conclusions, surplusage and immaterial allega tions, “unless and until the Executive assumes to act after accusation in writing, notice and hearing.”

The matter was set for hearing on June 27, 1934, before Honorable Lyman H. Bennett, Judge of the Fifth Judicial District, and at the opening of the trial, Sullivan moved for judgment on the pleadings, on the ground that no one of the Baumgartner pleadings raises “a question of fact upon the material issues,” but show upon their face that Sullivan is entitled to the relief for which he prays.

It was agreed that the motion to strike and the motion for judgment should be submitted together, and they were argued, submitted and taken under advisement. On September 12, 1934, Judge Bennett made and filed an order granting the motion for judgment, and declaring that it disposes of the motion to strike. Formal judgment in quo warranto, in favor of Sullivan and against Baumgartner, followed. Hence the appeal.

The sole question presented here is whether or not the Governor had authority to remove Sullivan without notice and an opportunity to be heard in his defense.

At common law an officer could only be removed for cause and after a hearing (Throop on Public Officers, 358), but this result followed from the English rule that offices were incorporeal hereditaments and one might have an estate in them. (23 Am. & Eng. Ency. of Law, 328.) The American concept of a public office is that of a public trust or agency created for the benefit of the people, and in which the incumbent has not a property right, to be administered under legislative control in the interest of the people. (Newton v. Mahoning County, 100 U. S. 548, 25 L. Ed. 710; Robinson v. White, 26 Ark. 139; Ford v. Board of State Harbor Commissioners, 81 Cal. 19, 22 Pac. 278; State v. Hobart, 12 Nev. 408; People ex rel. Robertson v. Van Gaskin, 5 Mont. 352, 6 Pac. 30; Territory v. Carson, 7 Mont. 417, 16 Pac. 569; Lloyd v. Silver Bow County, 11 Mont. 408, 28 Pac. 453.) Where an office is created by statute, it is wholly within the control of the legislature (People ex rel. Robertson v. Van Gaskin, above), and “is taken in full view of all the vicissitudes of legislative action, including removal for such cause as the legislative assembly may deem sufficient.” (State ex rel. Bullock v. District Court, 62 Mont. 600, 205 Pac. 955.)

This being the American view of the nature of a public office, the doctrine has been developed by the courts of this country that, when a definite term of office is not fixed by law, the appointing power may remove the appointee at pleasure and without notice or opportunity to be heard (Throop on Public Officers, 358), and, in any case, the legislature may, if it sees fit, provide for the removal of an incumbent without notice or hearing (State ex rel. Payne v. District Court, 53 Mont. 350, 165 Pac. 294; People v. Draper, 67 Misc. 460, 124 N. Y. Supp. 758; Trimble v. People, 19 Colo. 189, 34 Pac. 981, 41 Am. St. Rep. 236; Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; Eckloff v. District of Columbia, 135 U. S. 240, 10 Sup. Ct. 752, 34 L. Ed. 120), but the extent of the power and the manner of its exercise is to be determined by the wording of the applicable statute.

Where provision is made for the appointment of an officer, but no definite term is prescribed, the appointing power may remove the appointee at will, without notice or opportunity to be heard. (Throop, above, 358; Patten v. Vaughan, 39 Ark. 211; People v. Shear, 73 Cal. xix, 15 Pac. 92; Newsom v. Cocke, 44 Miss. 352, 7 Am. Rep. 686; People v. City of Brooklyn, 149 N. Y. 215, 43 N. E. 554; Keenan v. Perry, 24 Tex. 253; Ex parte Hennen, 13 Pet. (U. S.) 230, 10 L. Ed. 138; Field v. Commissioners, 32 Pa. St. 479.)

The power to appoint carries with it, as an incident, in the absence of constitutional or statutory restraint, the power to remove (Touart v. State, 173 Ala. 453, 56 So. 211; Cameron v. Parker, 2 Okl. 277, 38 Pac. 14; Sponogle v. Curnow, 136 Cal. 580, 69 Pac. 255; Sanders v. Belue, 67 S. C. 171, 38 S. E. 762), but provision for appointment for a fixed term constitutes such restraint, and, in the absence of any provision for summary removal, one appointed for a fixed term can be removed only for cause. (23 Am. & Eng. Ency. of Law, 437, and cases cited from many jurisdictions.)

This phrase “for cause,” as used in this connection, means for reasons which the law and sound public policy recognize as sufficient warrant for removal (Street Commissioners v. Williams, 96 Md. 232, 53 Atl. 923; In re Nichols, 57 How. Pr. (N. Y.) 395), that is “legal cause” (Attorney General v. Crowley, 75 N. H. 393, 74 Atl. 1055, 139 Am. St. Rep. 725), and not merely a cause which the appointing power, in the exercise of discretion, may deem sufficient. (State v. Common Council of City of Duluth, 53 Minn. 238, 55 N. W. 118, 39 Am. St. Rep. 595.) It follows, inevitably, that when a statute provides for an appointment for a definite term of office, without provision otherwise, or provides for removal “for cause,” without qualification, removal may be effected only after notice has been given to the officer of the charges made against him and he has been given an opportunity to be heard in his defense. (Mechem on Public Offices and Officers, 287; Welch v. Ware, 161 Cal. 641, 119 Pac. 1080; Abrams v. Daugherty, 60 Cal. App. 297, 212 Pac. 942; Carter v. Durango, 16 Colo. 534, 27 Pac. 1057, 25 Am. St. Rep. 294; Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; State v. Smith, 35 Neb. 13, 52 N. W. 700, 16 L. R. A. 791; Honey v. Graham, 39 Tex. 1; Hallgren v. Campbell, 82 Mich. 255, 46 N. W. 381, 21 Am. St. Rep. 557, 9 L. R. A. 408; Willard’s Appeal, 4 R. I. 595.) The rigorous application of the rule can only be evaded in such cases by an express grant of power to remove at will.

“It is the fixity of tenure that destroys the power of removal at pleasure otherwise incident to the appointing power. * * ® The reason of this rule is the evident repugnance between the fixed term and the power of arbitrary removal. The effect of the rule is that the right to hold during a fixed term can only be overcome by an express grant of power to remove at pleasure. An inferential authority to remove at pleasure cannot be deduced, since the existence of a definite term, ipso facto, negatives such an inference and implies a contrary presumption, i. e., that the incumbent shall hold to the end of his term, subject to removal for cause.” (State ex rel. Gallagher v. Brown, 57 Mo. App. 203, expressly adopted by the supreme court in State ex rel. Mosconi v. Maroney, 191 Mo. 548, 90 S. W. 141; State v. Crandell, 269 Mo. 44, 190 S. W. 889.) While a few cases to the contrary may be found, the foregoing declarations are supported by the overwhelming weight of authority.

Under this class of statutes, the requirement of notice and hearing cannot be evaded by any subterfuge. (Throop, above, 350; State ex rel. Campbell v. Board of Police Commissioners, 88 Mo. 144, affirming 14 Mo. App. 297.)

When the applicable statute provides that the appointing power may remove the appointee for such case as he (or they) “may deem sufficient” or assign in the order of removal, or contains a provision having a similar meaning, it is held to grant discretionary power, thus negativing the necessity for notice and hearing. (See O’Dowd v. Boston, 143 Mass. 443, 21 N. E. 949; Roth v. State ex rel. Kurtz, 158 Ind. 242, 63 N. E. 460; Trimble v. People, above.)

In the case at bar, the tenure is for a fixed term, to-wit, four years “unless sooner removed,” which phrase implies power in the appointing power to remove (Townsend v. Kurtz, 83 Md. 350, 34 Atl. 1123, 1126; State ex rel. Little v. Mitchell, 50 Kan. 295, 33 Pac. 104, 105, 20 L. R. A. 306), but the statute does not, in express terms, grant discretionary power to the Governor, unless such a grant can be read into it by reason of the use of the phrase “for the good of the commission.” We cannot construe this phrase alone, for it must be remembered that the statute reads, “for cause or for the good of the commission,” and, in construing a statute, “every word, phrase, clause or sentence employed is to be considered and none shall be held meaningless, if it is possible to give effect to it” (Campbell v. City of Helena, 92 Mont. 366, 16 Pac. (2d) 1), and the intention of the legislature must be ascertained and followed, if it is possible to do so, gathering that intention, first, if possible, from the plain meaning of the words employed. (Clark v. Olson, 96 Mont. 417, 31 Pac. (2d) 283.) The plain meaning of the words “for cause” has been demonstrated; they cannot be read out of the statute, but the two phrases employed in the disjunctive must, if possible, be harmonized and given effect. In this connection, reference to precedent from other jurisdictions is of slight aid; no case construing the exact phraseology of our statute, and few interpreting statutes of similar tenor, can be cited.

In the case of Ward v. Board of Regents of the Kansas State Agricultural College, (C. C. A., 8th Circuit) 138 Fed. 372, it is in effect held that the provision granting to the board power to remove any teacher “whenever the interests of the college shall require,” standing alone, vests arbitrary power in the board.

In Massachusetts it has been held that the power to remove a street commissioner “when the best interests of the town so requires” authorized summary removal, but this conclusion was reached by holding that the Act should be construed as reading as it did before an, apparently, unauthorized change was made by striking from the statute the phrase “in the judgment of the selectmen,” which had preceded the phrase “the best interests of the town so requires.” (Lacy v. Selectmen, 240 Mass. 118, 133 N. E. 90.)

The decision in Wilcox v. People, 90 Ill. 186, contains language which would justify a holding that the power granted the Governor to remove a member “for the good of the commission,” standing alone, would do away with the necessity for notice and hearing; but a reading of the opinion discloses that the court there held that, because the Constitution provided that “the Governor shall have power to remove any officer he may appoint, in case of incompetency, neglect of duty, or malfeasance in office, and he may declare his office vacant and fill the same,” neither the legislature nor the courts may dictate to the Governor in what manner he shall perform his duty. This latter declaration is grounded upon the theory, existing in some jurisdictions but not in this state, that, because the three departments of government are co-ordinate and independent, the courts cannot, in any case, review or control the action of the Governor.

The nearest approach to the case at bar is found in the provision for the removal of officers in civil service positions “for cause or when the good of the service shall be sub-served thereby,” which provision is held to require notice and hearing before action may be taken. (Pratt v. Board of Police, 15 Utah, 1, 49 Pac. 747; State ex rel. Eckles v. Kansas City, (Mo. App.) 257 S. W. 197.) These cases may stand on a somewhat different footing from the instant ease, but in the Pratt Case the court based its holding on the broad ground “that any man should be condemned unheard is contrary to every principle of natural justice, and courts are not inclined to countenance such arbitrary power unless under the mandate of positive law; nor will they aid by judicial interpretation.” The court then deduces the intention of the legislature from all the provisions of the Act.

In determining the intention of our legislature in employing the two quoted phrases in the disjunctive, a brief review of the history of the Fish and Game Department will be enlightening.

This department was created in 1901 and, from its creation up to 1917, was under the exclusive control of the Governor, who appointed a game warden for a fixed term of four years (sec. 1949, Rev. Codes 1907), but who was, by the express declaration of the Act, removable “at the will” of the Governor (sec. 1952), and who appointed deputies removable at his will. (Sec. 1953.) The Legislative Assembly of 1907 created a Fish Commission, consisting of the game warden and two members to be appointed by the Governor for a term of four years, with no reference made to removal (Chap. 176, Laws of 1907); in 1911 two members were added to the commission (Chap. 18, Laws of 1911). Later this commission was converted into a Fish and Game Commission, consisting of the fish and game warden and four members to be appointed by the Governor “by and with the advice and consent of the Senate,” for the term of four years (sec. 8, Chap. 173, Laws of 1917), and again no provision was made for the removal of these appointees. It is therefore clear that up to the time of the enactment of the present law (Chap. 193, Laws of 1921), the Governor had no discretionary power over his appointees as members of this commission, but that, under all of the authorities, they could be removed for cause after notice and hearing.

The present law deprives the Governor of the power of appointment and removal of the fish and game warden, and vests these powers in the commission, whose power to remove this officer is absolute, as he is to “continue in office at the pleasure of said commission.” (Sec. 3655, Rev. Codes 1921; amended sec. 3, Chap. 192, Laws of 1925.)

If the Governor now has discretionary power to remove a member of the commission, it is because the power is expressly granted by the Act of 1921. The Act of 1917, followed by that of 1921, clearly denotes the intention of the legislature to remove the Fish and Game Department from the control of the Governor and to create a commission entirely divorced from political activity, and of which there will be, at all times, a majority of experienced members — a continuing body removed from political control and manipulation. (See secs. 3651, 3658, Rev. Codes 1921.) This plain policy might be practically overthrown and the clear intention of the legislature defeated, if power rests in the appointing authority in every instance summarily to remove one, or all, of the members of the commission for reasons existing only within the breast of the higher authority, and without notice of the charges and opportunity to disprove, if possible, any reflection cast upon his, or their, personal or official reputation. (Bannerman v. Boyle, 160 Cal. 197, 116 Pac. 732.)

It has been held that where removal is authorized “for the good of the service” the “natural inference would be that in some respect the petitioner has failed to perform his duties, or was incompetent or inefficient, or was an unsuitable person for the position for which he was appointed” (Ayers v. Hatch, 175 Mass. 489, 56 N. E. 612), and that, unless the statute clearly indicates a contrary intention, “the law, in accordance with the principles of justice, principles which are fundamental and eternal, will require that notice be given before any person be passed upon, either in person, estate or any matter or thing to which he is entitled.” (State ex rel. Reid v. Walbridge, 119 Mo. 383, 24 S. W. 457, 41 Am. St. Rep. 663.)

Having at all times up to 1921 denied to the Governor the authority to remove members of the commission, the legislature, in the present Act, again provided for a fixed term of four years, but added the phrase “unless sooner removed,” which phrase implies power in the appointing authority to remove (Townsend v. Kurtz, 83 Md. 350, 34 Atl. 1123, 1126; State ex rel. Little v. Mitchell, 50 Kan. 295, 33 Pac. 104, 105, 20 L. R. A. 306). The legislature specifically declared, however, that the removal shall be “for cause,” and then added the phrase, “or for the good of the commission.” The employment of these two phrases in the alternative would indicate that the legislature had in mind that, although its intention was that the members should be removable for cause, there might be additional reasons, not strictly within the definition of “legal cause” why, at times, a member of the commission should be removed in the best interests of the people served, and therefore vested this additional authority in the Governor.

We do not assume to declare that, under this construction of the power granted, a condition might not arise which would justify the Governor in removing a member of the commission without notice and hearing “for the good of the commission”; but we do hold that whenever the charges on which the Executive proposes to act involve malfeasance, misfeasance or nonfeasance in office, or directly reflect upon the official or personal integrity of the incumbent whom he proposes to remove, the statute requires notice and the opportunity to disprove, if possible, the charges made.

Defendant Baumgartner’s pleadings offer to show that the Governor had ample cause for the removal of Sullivan and based Ms action thereon, -which. brings the case within this rule. His attempt to justify the action is unavailing as an ex post facto showing of cause cannot cure failure to give the necessary notice of hearing on such charges (Board v. Williams, 96 Md. 232, 53 Atl. 823); “every condition precedent must be fulfilled to give validity to the act of removal.” (23 Am. & Eng. Ency. of Law, 450.)

After a careful and painstaMng consideration of the pleadings and of the law governing, we are convinced that the judgment on the pleadings was justified.

Judgment affirmed.