Ekern v. McGovern

CourtUnited States State Supreme Court of Wisconsin
Citation142 N.W. 595,154 Wis. 157
Decision Date02 June 1913
Syllabus by the Judge.

Plaintiff, while Commissioner of Insurance for a four-year term having three years to run, and prohibited by statute from “serving on or under any political committee or as manager of any political campaign for any party or candidate,” was charged before the Governor with violation of such duty in removal proceedings under section 970 of the statutes of 1911. Upon notice of less than one hour a hearing was had. Under protest of unfairness as to notice, time of, and conduct of the hearing, that there was no proof of any breach of duty, and that witnesses were present to testify in the Commissioner's favor on the subject, the Governor, suggesting undisclosed personal information, and that haste was required in order to close the matter in the few moments to elapse before commencement of the legislative session which would suspend the removal power, summarily closed the hearing, entered an order of removal and appointed a successor. Possession by the appointee having been refused, the Governor, through his agents, sought to place him in possession of the office quarters and accessories by force. This action was commenced to prevent it, temporary injunction being granted, presently terminating the existing violent efforts. Later the trial court refused to continue the restraint except to enable plaintiff to remove the cause to this court. Upon its so reaching, an armistice was agreed upon pending the decision.

Held the following principles of law are applicable and rule the case:

As to mere error of judgment on the part of the Governor in the exercise of his lawful authority, his acts are not reviewable by the court. Within his jurisdiction both he and those who act by his direction are immune from judicial remedies.

The Governor, jurisdictionally, has competency to remove the Commissioner of Insurance from office.

The power of removal does not include, or have incidental thereto, power to forcibly install a successor.

In an action by one in possession of an office to prevent an adverse claimant, or those acting in his support, from gaining possession by violence, it is competent to determine whether such person is, de facto, the officer he claims to be.

An action in equity will not lie for the primary purpose of trying the title to an office, that being, as primary matter, a subject for legal relief.

The judicial power of circuit courts in the field of equity as regards injunctive authority, temporary or otherwise, is not solely referable to section 2774 of the Statutes of 1911. Such courts have all such authority possessed in chancery at common law and such in addition as the statute confers. Trustees, etc., v. Hoessli, 13 Wis. 348, 354,Lutheran, etc., v. Gristgau, 34 Wis. 328, and De Paux v. Oxley, 122 Wis. 656, 100 N. W. 1028, 13 L. R. A. (N. S.) 173, affirmed. Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169, criticised.

An officer de facto, in good faith claiming the right to possession of an office, until the right, de jure, shall have been determined--if in imminent peril of forcible disturbance by an adverse claimant or those acting in his support--may maintain an action in equity to prevent such disturbance, and may, and should, have temporary injunctive protection pending determination of the right to permanent immunity from forcible dispossession.

An action in equity to try the title to an office is distinct from one under the foregoing rule. The former is equitable and permissible; the latter is legal and not permissible.

Sovereign authority, under our form of government, is in the people and exercisable through three major co-ordinate agency departments, viz.: Executive, legislative and judicial,--each being, within its particular jurisdiction, answerable only to the people, but subordinate outside thereof to the jurisdiction conferred by the people through constitutional mandate on its co-ordinate department.

When a judicial question arises it is within the competency of the judicial department to deal therewith, not stopping, necessarily, to consider who are the parties. It is not bound to desist because of the alleged wrongdoer being the Governor or a person acting by his direction.

The doctrine that the court will not reach the Governor, in the performance of his duties, or any one acting under his direction and by his authority in respect to any matter, applies only to acts within the scope of executive authority; outside thereof the principle of equality before the law renders him and his agents liable to judicial remedies the same as any other person, except in so far as the dignity of the place should, and does, protect him and them to some extent from coercive interference by judicial mandate.

On grounds of public policy the court will not act coercively as to the Governor except in case of extreme urgency.

The public policy which protects the Governor as a co-ordinate department of the government from being interfered with by judicial mandate, except in dire emergency, does not apply with full force to subordinates, acting by his authority.

The basic idea of the state Constitution is that this “is a popular representative government, the officers being mere agents, not rulers of the people,--one where no man is so high as to be above the Constitution and no one so low as to be beneath its protection.”

Consistent with the stated basic principle, no one is necessarily immune from judicial remedies, in case of having violated, or being in an attitude of threatening to violate, the rights of another.

A person who is in possession of an office by color of authority,--that is, having that appearance, in that he is performing the duties of the office and is being commonly recognized as entitled to do so,--is an “officer de facto” whether he has any valid title to the office or not.

“One who has the reputation of being the officer he assumes to be although he is not such in point of law,” if he is in possession of an office, in good faith claiming to be entitled to perform its duties, is, subject to the exception noted in the next rule, an officer de facto.

Any person in the good faith possession of an office, as stated in the foregoing rule,--holding over after expiration of the term for which he was elected or appointed,--is not a de facto officer so as to be entitled to equitable protection in his possession as against a person who shall have been, in due course, certified to have been elected or appointed his successor in the particular office and holds the evidence thereof showing prima facie title.

The principle of the foregoing exception to the general rule is that, in the particular circumtances stated, the evidence of the title, de jure, to the particular office for the particular term, afforded by the certificate, on grounds of public policy, has, provisionally, the force of a judicial determination, leaving no room for a good faith resistance thereto, other than by judicial remedies which a court of equity should take cognizance of. State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296, 39 Am. St. Rep. 912, limited.

The rule that an action in equity will not lie to determine the title to an office does not preclude the making of such determination in equity in case of that being incidental to some matter of primary right which is a proper subject for equitable interference and for which the court has taken jurisdiction and acquired jurisdiction of the parties.

In case of an action for equitable relief in the nature of protecting the right of a person in possession of an office from forcible interference until the title de jure shall have been judicially determined, and it appearing that such title must be determined before the entire controversy between the parties can be set at rest, and as matter of fact the title may as well or better be settled in the pending action as in another commenced for legal relief, the court may, and should, proceed to settle the entire controversy.

The foregoing is within the equitable rule that, where a court shall have obtained jurisdiction of the parties and of the subject-matter for a proper purpose, it may proceed and determine the entire controversy connected with the primary ground for relief which the plaintiff has, or in planting his action in equity in good faith supposed he had.

An officer, entitled to hold an office for a fixed term subject to removal only for cause, is, by common-law rules, unless the same shall have been abrogated by statute, entitled to protection against danger of unjust removal--being so entitled by due process of law, which excludes interference with personal or property rights except according to established principles of justice.

The established principles of justice, except as otherwise constitutionally provided by statute, secures to every person the right, before being condemned, as to his person or his property, as to anything materially affecting his constitutional right to life, liberty, and the pursuit of happiness, to reasonable notice of a hearing in respect to the matter, reasonable notice of the charges against him, reasonable opportunity to be heard by himself, his witnesses and his counsel, to know the opposing evidence and oppose it with evidence according to the principles of fair judicial investigation, and to have the final determination grounded on evidence in some reasonable view supporting it.

The right to an office, though not a vested property right, is property in that broad sense which includes everything of pecuniary value to its possessor; but whether property, in the broad sense, or merely a privilege, it is within the protection of the foregoing rule and within the constitutional guaranty of the state Constitution and the guaranties of due process of law and equal protection of the laws of the federal Constitution; State ex...

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110 cases
  • Fugate v. Weston
    • United States
    • Supreme Court of Virginia
    • March 19, 1931
    ...have taken no property from you and you have no right to complain" — a proposition which answers itself. In Ekern McGovern, 154 Wis. 157, 142 N.W. 595, 626, 46 L.R.A.(N.S.) 796, is this satisfactory statement as to the nature of an office: "So we may safely bring together the apparently con......
  • Butcher v. Rice
    • United States
    • United States State Supreme Court of Pennsylvania
    • June 30, 1959
    ...... incumbents are not de jure officers, they have no color of. authority and could not serve as de facto officers. 46 C.J. § 367, p. 1054; Ekern v. McGovern, 1913, 154. Wis. 157, 143 N.W. 595, 46 L.R.A.,N.S., 796.' (Emphasis. supplied). See also Fesler v. Brayton 145 Ind. 71,. 44 N.E. ......
  • State ex rel. Rodd v. Verage
    • United States
    • United States State Supreme Court of Wisconsin
    • May 17, 1922
    ...of this court to review the acts of the Governor is thoroughly considered and determined in the case of Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 46 L. R. A. (N. S.) 796. The field so thoroughly covered in that case will not again be traversed. If in the removal of the relator the Gov......
  • State v. Hedrick
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1922
    ...had full knowledge. With respect to the refusal to continue the hearing longer, the case is quite unlike Ekern v. McGovern, 154 Wis. 157, 142 N. W. 505, 46 L. R. A. (N. S.) 796. In that case less than an hour's notice was given, and practically no opportunity to offer evidence was afforded.......
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