Craig v. Jensen, 8165

• Decision Date: 29 March 1938
• Docket Number: 8165
• Citation: 278 N.W. 545,66 S.D. 93
• Parties: LEO F. CRAIG, Appellant, v. LESLIE JENSEN, Governor of the State of South Dakota, Respondent.
• Court: South Dakota Supreme Court

66 S.D. 93

278 N.W. 545

LEO F. CRAIG, Appellant,

v.

LESLIE JENSEN, Governor of the State of South Dakota, Respondent. South Dakota Supreme Court Appeal from Circuit Court, Minnehaha County, SD Hon. J.R. Cash, Judge #8165—Affirmed Doyle & Mahoney, Sioux Falls, SD Tom Kirby, Sioux Falls, SD Attorneys for Appellant. E.D. Barron, T.M. Bailey, Sioux Falls, SD Attorneys for Respondent. Opinion Filed Mar 29, 1938

RUDOLPH, Judge.

On the 15th day of June, 1937, the Governor of this state caused to be served upon the plaintiff, Leo F. Craig, who is a member of the Board of Charities and Corrections, written charges alleging that the said Craig had been guilty of misconduct in the performance of the duties of his office. The alleged acts constituting the misconduct were set forth in detail. The Governor thereafter fixed a time for hearing upon the said charges and gave the plaintiff notice of the time fixed. A hearing was held at which the plaintiff, Craig, appeared personally and by counsel, and evidence was submitted. The Governor thereafter entered written findings of fact, and upon such findings entered his order removing the plaintiff as a member of the Board of Charities and Corrections. After the entry of the order of the Governor, the circuit court of Minnehaha County, upon the application of the plaintiff, issued its writ of prohibition, prohibiting the Governor from further proceeding with the removal of the plaintiff until the further order of the court. A hearing was had upon the writ thus issued, and the court thereafter entered its finding of fact and conclusions of law upon which it based a judgment vacating and setting aside the writ of prohibition which it had entered. The plaintiff has appealed.

The statute under which the Governor acted, is section 7009, Rev. Code 1919, which provides as follows:

“All constitutional state officers not liable to impeachment may be removed by the governor, after notice and hearing, for crimes, misconduct or malfeasance in office or for drunkenness or gross incompetency.”

Appellant makes no contention here that he was not given notice or that he was not given a hearing and afforded an opportunity to defend against the charges of the Governor. The single contention of the plaintiff upon this appeal is that there was no evidence presented to the Governor at the hearing sufficient upon which to base the order of removal. This contention makes it necessary for us to first consider the extent of the review by the court of the evidence presented to the Governor.

The above-mentioned section 7009 of our Code was without question adopted pursuant to section 4 of article 16 of the Constitution of this state, which provides:

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

The Legislature has seen fit to vest in the Governor this power of removal provided in the Constitution. It should be noted that under this constitutional and Code provision, the Governor is not vested with an unlimited power of removal. The power may be exercised only for certain specified causes. If none of the specified causes for removal exist, the Governor is without power. As stated in the early case of State ex rel. Holmes v. Shannon, 64 N.W. 175, 179:

“By expressly enumerating the causes for which such an officer may be removed, the constitution not only limits the causes, but limits removals to cases where such causes exist. We must not be understood as saying or meaning that such cause must first be judicially declared to exist before any power of removal can be exercised, but we do mean to say that the constitution plainly and unmistakably does forbid the removal of such an officer at the pleasure of anybody, whether governor, legislature, or court. It not only projects a theory, but it declares a rule, and establishes the plan that constitutional officers, at least, unless otherwise provided in the constitution, do not hold their office during the will or pleasure of any officer or department of state.”

The Governor not having the power under the Constitution to remove except for the specified causes, we believe that there must be some review by the court in a proper proceeding to examine the evidence, otherwise the Governor might remove a constitutional officer not subject to impeachment arbitrarily and at will, and thereby deprive such officer of a right he has under the Constitution. Much has been written in judicial opinions and in texts concerning the exact manner, whether executive, judicial, or quasi-judicial in which the Governor acts when he purports to remove an officer for cause. However, in view of our constitutional provision, we deem it unnecessary to attempt to precisely classify the actions of the Governor in this proceeding. We think it clear, under this constitutional provision, that the Governor is not acting in a purely executive capacity. His acts are limited to the specified constitutional causes for removal, and are not subject to that unlimited discretion which inheres in a purely executive act. See State ex rel. Wehe v. Frazier, 182 N.W. 545. And this constitutional provision differentiates the power of the Governor to remove, from the power of the President of the United States to remove, an inferior officer appointed by him, as that power is defined in the case of Myers v. United States, 47 SCt 21, 71 LEd 160. There is no limitation contained in the Federal Constitution upon the power of the President to remove inferior officers appointed by him. We have been unable to find in any other state a constitutional provision and statute similar to ours. North Dakota under an identical constitutional provision has vested the power of removal of constitutional officers not subject to impeachment in the courts by direct judicial proceeding. See section 197, Constitution of North Dakota; North Dakota Comp. Laws 1913, §§ 10467 to 10482. Florida has a constitutional provision relating to the general subject, but the final power of removal is left with the state Senate. Constitution of Florida, art. 4, § 15. The Florida court has held that their constitutional provision “defines a complete scheme under which the power of removal is accomplished by making it a joint action on the part of the Governor and the Senate.” State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 135, 92 ALR 989. Obviously, our constitutional provision is not similar to that of Florida. There is no “complete scheme” of removal under our Constitution, but a simple mandate that officers within its meaning shall not ‘be removed except for certain specified causes. However, even in the absence of constitutional provision, where the Legislature has vested in the Governor the power of removal only for specified causes, it is quite generally held that the court may consider the evidence. See annotations, 52 ALR 8, 92 ALR 998. We believe such should be the rule under our constitutional provision.

It should be noted that no provision for an appeal from the action of the Governor is provided by the statute. The Governor’s action is final, except in so far as it might be reviewed in some other proceeding. The present proceeding is one in prohibition. The Governor, not acting in a purely executive capacity, and it being contended that he is exceeding his authority under the Constitution, we believe this proceeding is proper. Our Code section 3019, as amended by chapter 424, § 1, Laws 1921, defines this proceeding, as follows:

“The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings, administrative or judicial, or [of] any tribunal, corporation, board or person, when such proceedings are without or in...