State v. Grubb

189 N.W. 326, 48 N.D. 1212, 1922 N.D. LEXIS 164

• Court: North Dakota Supreme Court
• Decided: July 7, 1922
• Status: Published

Opinions

Grace, J.

Grubb and Kirkilie were elected county commissioners of Burke county. Grubb was one of the parties of a contest for the office of county commissioner. The questions involved in that contest were finally determined by this court, a majority holding that he was duly elected to that office. See 187 N. W. 157.

In the present action, five electors, George White, Ed. J. Marks, W. G. Mitchell, Jake Dewing, and Louis Negaard, proceeding under a certain statutory law relative to the removal of certain officers as contained in article 2 of chap. 7, Session Laws of 1913, chap. 132, as amended by chap. 199, Session Laws of 1915, and other amendatory acts not necessary here to mention, made and filed with Lynn J. Frazier, as Governor of the State of North Dakota, certain charges, whereby they charged Grubb and Kirkilie, as county commissioners of Burke county, with misfeasance, malfeasance, crime and misconduct in office, specifically setting forth the corrupt official acts complained of. Gov. Frazier appointed H. H. Cooper of Kenmare, N. D., a commissioner to hear and report testimony for and against the accused and to file a report of such testimony. This having been done and the testimony taken and filed, Gov. Frazier then by a notice in writing, dated the 4th day of November, 1921, gave notice of a hearing to be held before him at his office at the state capítol, on the 12th day of November, 1921. In the taking of the testimony before Cooper, 'E. R. Sinkler, attorney at law of Minot, appeared for the petitioners, and in the capacity of Assistant Attorney General, and L. J. Palda, of the same city, appeared for the respondents. The testimony is of considerable length. This testimony was considered by' the Governor who made his order dated November 16, 1921, removing Grubb and Kirkilie from office.

The respondents on or about the 30th day of November, 1921, gave notice of appeal to the district court of Ramsey county from the removal order. Such right of appeal is provided by laws to which reference has heretofore been made. Thereafter the action was tried in the district court of Ramsey county, before C. W. Buttz, judge, who made findings of fact and conclusions of. law favorable to the respondents. The conclusions of law of the trial court were to the effect that the removal of the respondents by the order of the Governor was illegal and void; that they were the duly elected and qualified commissioners of Burke county and were entitled to judgment reinstating them as such; that Jake Dewing and Ed J. Marks, appointed by the Governor to fill the alleged vacancies by the removal of the respondents, were not legally appointed nor qualified commissioners of Burke county, and are not entitled tó hold or exercise the office of commissioners of that county, and on the 29th day of May, 1922, judgment was accordingly entered. Thereafter and on about the 31st day of May, these petitioners attempted to appeal from that judgment to the Supreme Court of this state.

The only question here necessary to decide is whether they are parties to the action; if they are, they have a right of appeal; if they are not, they have not that right. It will be noticed that the law in substance provides (chap. 199, Session Taws of 1915) that the official misconduct of the officers therein mentioned may be charged or informed against by five qualified electors of the county in which the person charged is an officer, except when the state’s attorney of the county is the person against whom charges are made, when other procedure is provided. As we view the substance of this law, it means that the function of the five electors is to bring the official misconduct to the notice of the state of North Dakota, which in subsequent proceedings becomes party plaintiff, and the officer against whom the complaint is made becomes party defendant. These are the only parties to the action, and so continue to be, not only in the proceedings before the Governor, but also in a subsequent proceeding in an appeal, if any, from his decision or order. The five petitioners discharge functions in initiating such a proceeding somewhat similar to those discharged by a grand jury, whereby formally and according to law, by information or indictment, it accuses one of the commission of a crime, which when done terminates its duties in that respect. Thereafter the state is'the party plaintiff, and the accused the party defendant. The same result might be shown by detailing the functions of a complaining witness, who gives information and makes complaint of the commission of a criminal offense to the proper count or judicial officer, and if the complaint is acted upon and further proceeding had, the state becomes the party plaintiff, and the accused the party defendant. In all such cases, it is hardly necessary to observe that where there is a right of appeal, it is a right reserved to the parties to the action. So, in this case, the petitioners performed the office of informing, or of complaining or charging the respondents with official misconduct, crime, misfeasance, or malfeasance in office; they are in effect complaining witnesses and are not in reality parties to the action. This being apparently clear, there is no right of appeal on /their part. If any might have appealed from the judgment of the district, court, it was one who was a party to the action; that is, either the state or the respondents.

The judgment was fávorable to the respondents, and they did not desire to appeal, and the petitioners in the circumstances here, not being parties to the action, had no right of appeal. Their attempted appeal is ordered dismissed. Neither party shall recover costs.

Bird.zell, C. J., and Robinson and Bronson, JJ., concur.