Yoe v. Hoffman

59 P. 351, 61 Kan. 265

• Court: Supreme Court of Kansas
• Decided: December 9, 1899
• Docket: Nos. 11,611, 11,612
• Status: Published

Opinions

The opinion of the court was delivered by

Smith, J.:

The proceedings by virtue of which the defendants in error were removed were instituted under chapter 239, Laws of 1889. (Gen. Stat. 1897, ch. 6, §§33-35; Gen. Stat. 1899, §§ 6362-6364.)

1. Investigation confined to charges filed with governor. The action of the committee in permitting amended charges to be presented against the defendants in error without the same having been brought to the attention of the governor, and proceeding thereunder to investigate the charges made in the same, we do not think was justified under the law. Section 1 of the act requires that the governor shall determine whether the charges are to be deemed worthy of credit, and whether they emanate from a reliable and trustworthy source. He cannot suspend an officer until he has passed upon the credit and reliability of the charges made. This position is fortified by the language used in section 3 of the act, requiring the governor either to dismiss or reinstate the officer “ named in thy complaint,” according to the findings and report of the committee.

The amended charges never having been brought to his attention, we think the committee was without jurisdiction to consider the same or act thereon. The governor acted under the affidavit filed is his office on the 29th day of March, 1899, and the investigating committee was appointed in pursuance thereof; and it is but fair to the persons whose conduct was under investigation to confine the inquiry to the charges which moved the governor to act in causing the committee to be appointed and the officers removed during the investigation. To permit an investigation to proceed upon a complaint not brought to the attention of the governor would result in a trial being had upon charges which the executive might not deem trustworthy or entitled to credit. Mr. Justice Johnston, however, does not concur in this view,, and is of the opinion that the committee had full jurisdiction to pass upon all the charges contained in the amended complaint.

The original affidavit accused the defendant in error Limbocker with having drawn from the treasury the sum of fifteen dollars per month for providing meals to the students at the college; that such service was not within the act making provision for the payment of said regents, and was unlawfully and wrongfully drawn, all of which said Limbocker well knew ; that C. B. Hoffman, while acting as regent, aided and abetted said Limbocker in drawing said sum of fifteen dollars per month for his alleged service in conducting a place where students and others were fed at the college ; and further, that Limbocker and Hoffman, while acting as regents of the Kansas State Agricultural College, during the month of July, 1897, did, with others, transact business of vital importance to the college without a quorum, which was secret and unlawful in this, that they hired teachers, fixed salaries, made appropriations, and transacted such other business as came before them, without at any time having a quorum to transact business, all in violation of law, and with the full intent and purpose of overriding and thwarting the will of the majority of the members of the board who, prior to that time, had been present. The findings of the committee on these two charges are as follows:

“ FINDINGS.

“ First charge. We find that John N. Limbocker and C. B. Hoffman were, at and during the time complained of in said charge, regents of the Kansas State Agricultural College, and that John N. Limbocker was the president of said board of regents, and the said C. B. Hoffman was treasurer.

“A revolving fund of $300 was appropriated and set aside by Regent and Treasurer Hoffman, and placed to the credit of John N. Limbocker in the Dickinson County Bank, for the purpose of maintaining a dining-hall where meals were to be furnished to students, members of the faculty and other persons visiting said college, at such prices and on such terms as provided by the board of regents.

“We further find, that by order of the board of regents the sum of $250 was set apart for the use and benefit of the department of domestic science, and that a part of said sum, the exact amount of which your committee is unable to state because of the indefinite and uncertain data furnished upon that point, was expended in the purchase of furnishings and materials for the operation of said dining-hall.

“We further find, that Regent John N. Limbocker was by the said board of regents of which he was a member engaged and employed as the purchasing agent for said dining-hall at the salary of fifteen dollars per month ; that pursuant to said employment, and while acting as a regent of said college, he entered upon the discharge of the duties as such purchasing agent, on or about the 1st of September, 1898, and continued to so act until the date of his suspension, which occurred on the 29th day of March, 1899.

“ We further find, that the treasurer of said college paid to said John N. Limbocker, for services aforesaid, the sum of $105.

“Second charge. We find that the meetings alleged to have been held on the 2d, 3d, 5th and 6th days of July, 1897, were held without any quorum being present at any of said meetings, and that teachers were hired, salaries were fixed, appropriations of money were made and a vast amount of other business was transacted during said time; that at no time during the July meeting after the first day of said month was there a quorum present, and that only three regents, to wit, Hudson, Hoffman, and Limbocker, were present.

“We further find, that among other matters of business that were transacted during the month of July, and when no quorum was present, a manifesto was issued and published setting forth various reasons for change in the management of the college, and that said manifesto purported to be the act of all the board of regents of said college, when in fact and in truth the only regents present and giving sanction to said manifesto were Regents Hoffman, Hudson and Limbocker.

“That the minutes of said meeting held on the 2d day of July, 1897, recite that the ‘board met,’-when in fact and in truth only three members of the board met; that there was no recitation in the minutes of said meeting held on the 2d day of July, 1897, that showed that no quorum was present, but the minutes of July 3, 5 and 6 show that no quorum was present and no business transacted except to adjourn.

“We further find, that at the September, 1897, meeting of the said board of regents a resolution was -passed approving the minutes of the said meeting as held on June 30 and ending July 6, inclusive, and alleging that each and every part thereof was adopted and made a part of the regular action of the board of said meeting, and thereby declaring the same to be fully ratified and confirmed as done at said July meeting.

“We further find, that during the interim between July and September Regent Kelley died and Mr. G. M. Munger was appointed in his place, and attended and participated in said September meeting, and the votes in favor of said ratification were cast by Hoffman, Hudson, Limbocker and Munger. But there was no correction of the minutes óf said July meeting to show that no quorum was present.”

The finding that regent Limbocker was employed by the board as purchasing agent for the students’ dining-hall, at a salary of fifteen dollars per month, during the time he was performing his legal duties as regent, and that he was paid by the treasurer of the college $105 for services as such purchasing agent, brings his acts within the prohibition of section 400 of chapter 100 of the General Statutes of 1897 (Gen. Stat. 1899, § 2317), which reads :

“All officers, state and county, and all officers appointed or elected for the purpose of overseeing and directing any of the public improvements of the state, and all officers holding and exercising any office of trust or profit under and by virtue of any law of the state, are hereby prohibited from taking any contract, or performing or doing or of having performed or done, for their own profit, any work in and about the office holden by them, or in or about any work over which they have in whole or in part the supervision, direction or control, and from furnishing any materials used in any such work, and from furnishing for the use of any institution, public work, county, township or other interest, the protection of which interest is a part of the duties of his office, any firewood, clothing, materials for building, or other thing required by such institution, public work, county, township or other interest so in the keeping, in whole or in part, of such person.”

Limbocker profited to the extent of fifteen dollars per month by doing work in and about the office of regent held by him. He did work for the college for a compensation, under contract with the board of regents, in a matter over which he had, as one of the regents, in whole or in part, direction or control. It matters not that the regents, under the law, are given general supervision of the college and the direction and control of all expenditures. (Gen. Stat. 1897, ch. 57, §9; Gen. Stat. 1899, §6541.) They cannot, in the exercise of such authority, employ one of their number to do any work in or about the office held by him, or over which he has any supervision. The purpose of the law is to remove a regent from all temptation. Section 7, chapter 57, General Statutes of 1897 (Gen. Stat. 1899, § 6530) (reads : “No one connected with the college as professor, tutor, teachers or employee, shall be a regent.”

‘ wrongful intent tmnecessary. Counsel for defendants in error contend that mere errors of judgment on the part of the regents, or negligence attributable to a misconception of duty, without fraud, is insufficient to au- ** thorize a removal. We do not so understand the statute. The case of State v. Hastings, 37 Neb. 96, 55 N. W. 774, cited by counsel, is not applicable. That proceeding was an impeachment, authorized by the constitution of Nebraska to be tried before the supreme court. The court held that the proceeding was to be regarded as a- criminal prosecution in which the quantum of proof to warrant a conviction must show guilt beyond a reasonable doubt. The court in deciding that case used this language: “It should be remembered in the first place that this is a criminal prosecution and we are not to enter upon the field of conjecture in search of a theory upon which the respondents may be pronounced guilty.”

So, in the case of Triplett v. Munter, 50 Cal. 644, which was a trial upon an information charging the receipt of illegal fees, the court held that the statute under which the respondent was sought to be removed from office was highly penal in its nature. In McMaster v. Herald, 56 Kan. 231, 42 Pac. 697, the court quoted approvingly from Lynch v. Chase, 55 Kan. 367, 368, 40 Pac. 669, as follows :

“In a summary proceeding for the removal of officers under the statute the same formality and precision are not required as in a trial before a court, and the accused cannot claim the benefits, incidents and common-law rights pertaining to such a trial.”

Again, in Lynch v. Chase, supra, in commenting on the nature of proceedings under this statute, the court said :

“As the committee does not constitute a court, and as the incidents and common-law rights of a court trial are not required, the objections made in regard to certain informalities and irregularities are unavailing. . . . The evidence was heard and considered by a tribunal created for that purpose, and the duty of determining its sufficiency belongs to that tribunal, and not to the court. Testimony was offered to sustain and refute the charges, and the weight and sufficiency of that testimony, as well as the fact of whether cause was shown, were concluded by the determination of the committee and the action of the governor.”

In criminal prosecutions, where the statute contains nothing requiring acts to be done knowingly, and the acts done are not malum in se, or infamous, but are merely prohibited, the offender is bound to know the law, and a criminal intent need not be proved. [The State v. Bush, 45 Kan. 138, 25 Pac. 614.) In Falloon v. Clark, ante, p. 121, 58 Pac. 990, 992, it is said:

‘ * The only ground of removal by impeachment is ‘misdemeanor in office,’ and these words, we think, are used in a parliamentary sense, and mean misconduct in office. It is something which amounts to a breach of the conditions tacitly annexed to the office, and includes any wrongful official act or omission to perform an official duty.” (See, also, State v. Leach, 60 Me. 58; Rogers v. Morrill, 55 Kan. 737, 42 Pac. 355.)

It is contended that, while the committee finds that Limbocker was paid fifteen dollars monthly by the treasurer of the board of regents, there is no finding to show out of what fund he was paid. The report contains the following:

“We further find, that Regent John N. Limbocker was by said board of regents, of which he was a member, engaged and employed as the purchasing agent for said dining-hall at the salary of fifteen dollars per month. . . .We further find that the treasurer of said college paid to said John N. Limbocker for services aforesaid the sum of $105.”

The additional finding is made that the regents set aside for the use and benefit of the department of domestic science the sum of $250, and that a part of that sum was expended in the purchase of furnishings and materials for the operation of said dining-hall. It would be a forced and unnatual deduction to conclude that the money paid to Limbocker by the treasurer was not appropriated out of the funds of the college.

The second finding, that meetings were held on July 2, 3, 5, and 6, 1897, by three regents only, viz., Hudson, Hoffman, and Limbocker, and that teachers were hired, salaries' fixed, and appropriations of money made, and a vast amount of other business transacted, shows misconduct of the clearest kind. Seven regents constitute the board, and a majority constitute a quorum. (Gen. Stat. 1897, ch. 57, §§ 5, 8 ; Gen. Stat. 1899, §§ 6529, 6532.) While it is true that in September, 1897, at a meeting of the board, the minutes of the said meetings, as held on June 30 and ending July 6, inclusive, were ratified and confirmed, the ratification was done, however, by four members, one of whom (Munger) was not a regent at the time the July meetings were held, but was appointed afterward to fill a vacancy.

In the minutes of the meeting held by Hudson, Limbocker and Hoffman on July 2, there was no recital that a quorum was not present. This was one of the meetings at which the committee found that a vast amount of business was transacted, such as hiring teachers, fixing salaries, etc. While but three members were present and acted, the minutes were so written as to carry the presumption that a legal quorum participated. The attempt subsequently to ratify the acts of a minority of the board could have no reference to the meeting of July 2, for there was no showing on the records of the board that any action done at that meeting needed ratification. There was nothing indicating that a majority was not present.

3 signatures to findings3 sufficient. Complaint is made that the committee violated section 3 of the act authorizing the investigation, which provides: “Having concluded their investigation the committee shall, under £he evidence and by a majority vote of the whole number of the committee, determine the truth or falsity of the charges. ’ ’ The record of their proceedings shows no vote on the truth or falsity of the charges. Nine separate findings, however, were made in writing, designated as findings in the matter, and returned to the governor. These were signed by all the committee except one. A vote is an indication of the opinion of one individual among many when making a choice. The recital of a formal vote by the members of the committee on the charges would have been no more certain evidence of their assent and concurrence in the truth of the charges than the return of the findings to the governor, duly signed.

oí testimony Again, it is insisted that the committee being required “to make a complete report of their findings and transmit the testimony in the case to the governor, a filing with him of the stenographic notes of the testimony is insufficient. We do not regard this omission as more than an irregularity, nowise affecting the validity of the findings or impairing the duty of the governor to act thereon. The findings govern the action of the executive. The law reads : “ The governor shall thereupon either dismiss from the public service or reinstate the officer or officers named in the complaint, according to the findings and report of the committee.” This proceeding was. a summary one, the same precision and accuracy not being required as in a trial before a court. (Lynch v. Chase, supra.)

The findings show sufficient grounds for the removal of the defendants in error from their offices as regents.The judgments of the court of appeals will be reversed and the orders of ouster entered by that court against the plaintiffs in error vacated and set aside, with directions to proceed further in accordance with this opinion.

Johnston, J., concurring.