Attorney Gen. ex rel. Rich v. Jochim

Decision Date20 March 1894
PartiesATTORNEY GENERAL ex rel. RICH, Governor, v. JOCHIM.
CourtMichigan Supreme Court

99 Mich. 358
58 N.W. 611

ATTORNEY GENERAL ex rel. RICH, Governor,
v.
JOCHIM.

Supreme Court of Michigan.

March 20, 1894.


Quo warranto by the attorney general, on relation of John T. Rich, governor, against John W. Jochim, removed by the governor from the office of secretary of state. Judgment of ouster entered.

[58 N.W. 611]

Geer & Williams and Cahill & Ostrander, for relator. John Atkinson and Fred A. Baker, for respondent.


HOOKER, J.

By Const. art. 8, § 4, and by statute (How. st. § 202), the board of state canvassers is made to consist of the secretary of state, state treasurer, and commissioner of the state land office. It is the duty of this board to canvass the returns from the various counties of the state, and declare the result of election, for state officers, and upon constitutional amendments. At the spring election in the year 1893, three amendments to the constitution were voted upon by the electors of the state, one of which provided for an increase of the salaries of several of the state officers, including the three mentioned. These amendments were, by the board of canvassers, declared carried. Subsequently, the returns were recanvassed by the board, in obedience to a writ of mandamus issued by this court, when it was found and declared that the amendment relating to salaries was defeated. Proceedings were then taken by the governor, which culminated in an order by him removing each of said officers from his office, and declaring the same vacant; and, respondents refusing to surrender their respective offices, informations in the nature of quo warranto were filed in the name of the attorney general, upon relation of the governor, to try their right to such offices. This is the proceeding against the secretary of state.

The questions in the case are raised by the replication and the demurrer of respondent thereto. In answer to the plea which asserts respondent's election and accession to the office of the secretary of state, the replication sets up in detail the facts upon which the relator's claim is based, viz.: That relator was the duly elected and acting governor of this state; that, as such, it became and was his duty, under section 8 of article 12 of the constitution, to inquire into the condition and administration of the office of secretary of state, and the manner in which respondent performed the duties of such office, for the purpose of determining whether said respondent had been guilty of gross neglect of duty in relation to his duties as a member of the board of state canvassers, and to remove respondent from said office for gross neglect of duty, if he should be found guilty thereof; that, a charge of that kind having come to the knowledge of the relator, he caused written notice to be served upon the respondent, which notice required him to appear before the relator, and show cause why he should not be removed from his office of secretary of state, for gross neglect of duty, in connection with the canvass

[58 N.W. 612]

of the returns in relation to said amendment relating to salaries of state officers, such notice containing specific charges of neglect, as shown by the appended copy.1 The replication further alleged that the respondent appeared by counsel before relator, and moved to vacate the notice and dismiss the charges, for reasons mentioned therein;2 that the motion was denied; that evidence was introduced in support of the information, as follows: (1) The returns from the several counties showing the vote upon said amendment. (2) The canvass of said returns purporting to have been made by respondent and other members of the board of state canvassers upon May 16, 1893, from which it appears that the said amendment was carried by a majority of 1,821 votes. (3) The canvass of said returns subsequently made by said officers, under the order of the supreme court, showing the defeat of said amendment by 11,455 votes. (4) Vouchers showing the amounts paid to respondent and other members of said board for their expenses in making said canvasses. (5) A stipulation

[58 N.W. 613]

by counsel that a short time prior to May 16, 1893, respondent was notified by his clerks that a tabulated statement showing the votes for and against said amendment had been prepared, and was ready to be signed by the members of the state board of canvassers; that thereupon respondent notified the other members of said board by telegram, in response to which they came to Lansing, and signed said tabulated statement prepared by their clerks; that neither of them compared or examined the returns from any county, nor did they compare them with the tabulated statement aforesaid; that they relied upon what their clerks stated about such statement being correct, and, believing it to be so, signed it; and that was all that they had to do with it. The replication further stated that no evidence was offered upon the part of respondent; that an order adjudging respondent guilty, and removing him from his said office, was thereupon made, and duly served upon said respondent, upon the 19th day of February, 1893. As stated, a demurrer to this replication was filed.

The important questions presented by this record are (1) the power of the governor to remove respondent; (2) the sufficiency of the cause alleged. The jurisdiction of this court to review or pass upon the official acts of a co-ordinate branch of government was not discussed. It was referred to in the brief of counsel for the relator, with an express disavowal of a desire to raise the question. We shall therefore omit a discussion of that subject.

Whatever authority the governor has to remove respondent must be found in section 8 of article 12 of the constitution, which reads as follows: “The governor shall have power and it shall be his duty, except at such time as the legislature may be in session, to examine into the condition and administration of any public office, and the acts of any public officer, elective or appointed, to remove from office for gross neglect of duty, or for corrupt conduct in office, or any other misfeasance or malfeasance therein, either of the following state officers, to wit: The attorney general, state treasurer, commissioner of land office, secretary of state, auditor general, superintendent of public instruction, or members of the state board of education, or any other officer of the state, except legislative and judicial, elective or appointed, and to appoint a successor for the remainder of their respective unexpired terms of office, and report the causes of such removal to the legislature at its next session.” It is contended that this section is in violation of the amendment of the constitution of the United States which provides that “no state shall deprive any person of life, liberty, or property, without due process of law.” Const. U. S. Amend. 14, § 1. As the constitution of this state contains the same provision (section 32, art. 6), no new right was conferred upon officeholders, nor was any modification of the power of the governor to remove officers under section 8, art. 12, consequent upon the adoption of the fourteenth amendment. Any question that can now be raised upon the latter could have been raised under the former at any time since section 8, art. 12 was adopted; and all decisions upon section 32, art. 6, are applicable to this provision of the fourteenth amendment, unless in contravention of federal decisions thereon. To sustain this point it must appear (1) that the removal from office is a deprivation of the respondent of his property: and (2) that it was sought to be accomplished without due process of law. A public office cannot be called “property,” within the meaning of these constitutional provisions. If it could be, it would follow that every public officer, no matter how insignificant the office, would have a vested right to hold his office until the expiration of the term. Public officers are created for the purposes of government. They are delegations of portions of the sovereign power for the welfare of the public. They are not the subjects of contract, but they are agencies for the state, revocable at pleasure by the authority creating them, unless such authority be limited by the power which conferred it. In the case of Wyandotte v. Drennan, 46 Mich. 480, 9 N. W. 500, Mr. Justice Cooley, in giving the opinion of the court, said: “It is claimed, however, that, when the...

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