Dullam v. Willson
| Decision Date | 23 April 1884 |
| Citation | 53 Mich. 392,19 N.W. 112 |
| Court | Michigan Supreme Court |
| Parties | DULLAM, Relator, v. WILLSON. |
An information in quo warranto proceedings charged official misconduct and neglect of duty. The plea denied the charge. A replication was filed, which merely reiterated the charges contained in the information, without specifying the acts of neglect and misconduct relied upon. It seems that such a replication is open to demurrer.
It seems that How.St. � 651, permitting the governor to remove any state or county officer except the state treasurer and judges, is void, because at the time it was adopted the governor had no judicial power under the constitution.
An unconstitutional statute does not become valid by the amendment of the constitution.
Constitutional provisions must be construed with reference to each other when relating to the same subject matter.
The governor's power of removal (Mich. Const. art. 12, � 8) can only be exercised for the specific causes mentioned in the constitution, and upon charges which shall specify the particular acts or neglect relied on to make out the cause alleged; and the respondent must have notice of these charges and specific allegations, and reasonable notice of a time and place when and where he will have an opportunity for a hearing thereon, upon which he may produce proofs. And the governor has judicial power to examine into and pass upon these charges.
Quo warranto.
J.J. Van Riper, Wm. P. Wells, and James W. Romeyn for relator.
Howard & Thayer and I.P. Christiancy, for respondent.
In January, 1881, respondent was nominated and duly appointed one of the trustees of what was then known as the Michigan Institution for Educating the Deaf, Dumb, and the Blind, and now known as the Michigan Institution for Educating the Deaf and Dumb. The respondent duly qualified by taking and subscribing the oath of office, and entered upon the duties of said office. His term was for six years from the first Tuesday in February, 1881. On the second day of July A.D.1883, Hon. J.W. Begole as governor of the state of Michigan, filed in the office of the secretary of state a writing or certificate of removal from office, as follows, viz.:
--which has ever since remained of record in the executive office, and a copy thereof was filed on said second day of July, in the office of the secretary of state, and has ever since remained there of record.
(2) On the same second day of July said governor gave notice to said Willson of his removal from said office by a notice in the words and figures following:
The governor, also, on the second day of July appointed the relator a trustee to fill the vacancy occasioned by the removal of Willson, who refused to surrender up the office to relator, and continues to hold, use, and exercise the office of trustee, whereupon, on the relation of said Dullam, the attorney general filed an information in this court in the nature of a quo warranto, alleging that James C. Willson had usurped, intruded into, and unlawfully holds and exercises the office of a trustee of the Michigan Institute for the Education of the Dumb and Blind since said second day of July, 1883. The respondent interposed a plea in which he set forth his appointment and commission, and that he had entered upon the duties of his office; that he had continued faithfully to perform its duties, and had not been guilty of the official misconduct or habitual neglect of duty as such trustee as asserted, intimated, or claimed by the governor in the writing or certificate signed by him; that the notice touching or referring to his removal, dated July 2, 1883, was the only notice he ever received from the governor, and aside from that he never received any notice or intimation from the governor that any complaint or claim had ever been made to or by the governor that he had been guilty of any official misconduct or habitual neglect of duty in his office; and that he is still entirely ignorant of what official misconduct and neglect of duty he had been guilty of or that the governor claims he has been guilty of.
A further plea contained the same allegation as the first, except the denial of having been guilty of any official misconduct or habitual neglect of duty. The people demurred to the first plea, and also replied to that part denying the official misconduct and habitual neglect of duty, asserting affirmatively that said Willson was guilty of official misconduct and habitual neglect of duty as declared by the governor, and they demurred to the second plea. The respondent demurred to the replication, and the people joined in the demurrer.
Looking at this case as a matter of pleading, I think the demurrer to the replication is well taken. It was incumbent on the relator to state in his replication the specific acts of official misconduct and habitual neglect of duty the respondent was guilty of. As it stands, the respondent is no more apprised from the replication of what he is to meet than he is from the language of the information itself. But as both parties have disregarded all objection to the form of the pleadings, and have argued the cause on its merits, I shall proceed to consider the case on the questions presented in the briefs of counsel. That issue is whether, under the constitution and laws of Michigan, the governor has power to remove a state officer by such action as was taken in this case, viz.: an act of removal evidenced by writing, under the hand and seal of the executive, filed in the executive office, with notice thereof to the officer removed, communicating to him the alleged grounds of removal, but without giving him notice of charges, complaint, or claim of official misconduct or neglect of duty, or opportunity of hearing, or defense. The question is one of considerable delicacy, as it requires one of the co-ordinate branches of the government to pass its judgment on the acts of another, and the presumption is that the executive department had the same desire to keep within constitutional limits as either of the other two. From the nature of our government, acting under a written constitution prescribing the jurisdiction and powers of each branch, it devolves upon the judiciary to decide upon the acts of the other departments whenever it is claimed that such action is not in harmony with the fundamental law, and an appeal is made to it to decide the controversy. In this instance we are relieved from those embarrassments which arise when the judicial department is applied to for the writ of mandamus to compel the executive to do some act in the executive or administrative department of government where courts seldom or never interfere, as is well illustrated by many authorities cited on the brief of relator's counsel.
The constitution (article 12, � 8) provides that: "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, and 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, *** 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 term of office, and report the causes of such removal to the legislature, at its next session." This provision was not contained in the constitution of 1835. It was added to the present constitution, by amendment, by the legislature of 1861, (Laws 1861, p. 588,) ratified by the people in 1862.
An existing statute--Comp.Laws 1871, � 618, (How.Comp. � 651)--provides that the secretary of state, auditor general, and all state and county officers, except the state treasurer and judges, may, for official misconduct, or habitual or willful neglect of duty, at any time during the recess of the legislature, be removed, and the vacancy supplied during such recess by the governor. This provision was in the Revised Statutes of 1846, c. 15.
The information alleges that the removal was made in pursuance of the statute; and from the fact that the executive order removing the respondent follows the language of the statute instead of the constitution, and fills the vacancy until the next session of the legislnture, instead of the unexpired term, I am convinced that the action was had under the statute. But if the power exists under the constitution, it is immaterial that a misrecital is made as to its source, and would not invalidate the exercise of the power. I am satisfied that the statute furnishes no valid basis for the power of removal, because repugnant to the constitution of 1835, which...
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