Ellis v. Parsell
| Decision Date | 20 March 1894 |
| Citation | 58 N.W. 335,99 Mich. 381 |
| Court | Michigan Supreme Court |
| Parties | ELLIS, Attorney General, ex rel. FULLER v. PARSELL. |
Information in the nature of quo warranto by Adolphus A. Ellis, attorney general, at the relation of Otis Fuller, against Eugene Parsell. On relator's motion to strike rejoinders from the files. Granted in part, and cause set for hearing on remaining rejoinders treated as demurrers.
Geer & Williams and William O. Webster, for the motion. George E. Nichols, opposed.
The attorney general, by direction of this court, in Fuller v. Ellis, 57 N.W. 33, filed an information in the nature of quo warranto against the respondent. The information alleges, substantially, that the respondent has usurped intruded into, and unlawfully holds the office of warden of the state house of correction and reformatory at Ionia, and has so unlawfully held the same for a long time, to wit, for 90 days last passed, and still continues so unlawfully to hold and exercise the same. The information also alleges that Otis Fuller, the relator, is lawfully entitled to said office, having been appointed to the same on September 27 1893, and on the same day took the oath of office, and filed it with the auditor general, and that on the 7th day of November, 1893, he filed his approved bond with the auditor general. He therefore prays for process against the respondent. The respondent filed a plea in which he sets up that he lawfully holds said office by reason of his appointment thereto by the board of control thereof on the 7th day of October, 1891, for the period of four years therefrom, and that he had during all of said time, and now has, the executive ability essential to the proper management of the officers and employes under his jurisdiction, and to maintain proper discipline in every department, and that up to this time he has continued faithfully to perform the duties of said office. A replication was filed by the relator to this plea, in which it is denied that the respondent has the executive ability essential to the proper management of the officers and employes of said state house of correction and reformatory at Ionia, and to maintain proper discipline in every department, and denies that the respondent, after he assumed the office, faithfully performed the duties thereof, as in said plea mentioned; and to this end the attorney general says that the respondent was removed therefrom by the board of control on September 27, 1893, for the reason that the respondent did not have the executive ability essential to the proper management of the officers and employes of said reformatory, and did not maintain proper discipline in every department thereof, and did not faithfully perform the duties of said office. These facts are set up at great length in the replication, admitting the appointment of the respondent to the office by the board of control, the appointment by the governor of a new board of control, the charges and specifications of charges made by the board against the respondent, and their action thereon and their order of removal of the respondent from the office, the substance of which is set out in Fuller v. Ellis. Six rejoinders were filed to this replication. By the first one the respondent alleges what he had before alleged in his plea,-that he did have the executive ability essential to the proper management of the officers and employes of said reformatory, and to maintain proper discipline in every department thereof, and that he did faithfully perform the duties of said office of warden as in said plea alleged; and of this he puts himself upon the country, and prays judgment. In his second rejoinder he alleges, substantially, that after the passage of Act No. 118 of the Public Acts of 1893 the governor, by virtue of said act, assumed to appoint the board of control, requiring of each member thereof the political test named and mentioned in section 2, and by reason thereof appointed two Republicans and one Democrat,- the said governor himself being ex officio member of said board, and also being a Republican,-and that the said governor would not have appointed the Democratic member of said board, had he been a Republican, or the Republican members, had they been Democrats, but that he made said appointment of these parties upon said board because of their political belief and for political reasons; and as to this the respondent puts himself upon the country. In the third rejoinder he denies that proceedings were legally had and taken by said board by which an investigation was ordered, by adoption of the resolution set forth in relator's replication, and denies that said board was ever legally organized, or that notices of said hearing were duly served upon each member of said board of control, or that any findings or order of removal were duly given respondent, and also denies that on the 27th day of September, 1893, or at any other time, the said alleged board of control did then and there remove him from his said office, and denies that he is not entitled to the rights, privileges, and emoluments belonging to said office since September 27, 1893; and as to this he puts himself upon the country. In the fourth rejoinder he alleges that the governor and the two Republican members of the board, together with the relator and other evil-disposed persons, whose names are as yet to him unknown, prior to the said 27th day of September, 1893, to wit, upon the 13th day of July, 1893, the 7th day of August, 1893, the 1st day of September, 1893, the 11th day of September, 1893, the 21st day of September, 1893, and divers other days and times between the said 13th day of July and the said 27th day of September, 1893, did wickedly, maliciously, devising and intending to bring contempt, discredit, and dishonor on the administration of a public office, to wit, warden of said state house of correction and reformatory at Ionia, then legally and lawfully held by this respondent, and to deprive him of then and there holding the office, and exercising the duties and receiving the benefits and emoluments thereof, and to deprive him of his good name, fame, and reputation, as well as to unjustly subject him to pains and penalties, conspire, combine, confederate, and agree together to vilify and defame this respondent, and did falsely and maliciously charge and accuse him of having been guilty of certain great corruption, neglect, official misconduct, and lack of ability in said office, and with having at divers times in his said office, and in the exercise of said duties, unlawfully and wantonly, not practiced rigid economy in all matters pertaining to said prison, as provided by section 44, Act No. 118 of the Public Acts of 1893, and with not having the executive ability essential to the proper management of the officers and employes under his jurisdiction, and to enforce proper discipline in the prison, as provided by section 5 of said act, and with having paid out moneys not permitted or allowed by law, and having employed persons without legal right so to do, and with not being in constant attendance at said prison, as required by section 7 of said act, to the great damage, disgrace, and infamy of this respondent, and to the great discredit and dishonor of the administration of said office; and the respondent alleges that the sole object of said combination, confederation, unlawful and fraudulent agreements, was for the purpose of ousting him from his said office of warden, without cause and without evidence, and installing therein, for political purposes, and the private and personal interests of said John T. Rich, (governor,) James T. Hurst, and Louis Kanitz, (the Republican members of said board;) and to this he puts himself upon the country. By the fifth rejoinder the respondent alleges his innocence of the charges brought against him by the board, and denies all the charges and specifications therein contained, and again alleges that his removal was brought about by the conspiracy between the governor and the Republican members of the board, for political purposes, and to bring discredit upon him in the administration of the affairs of said office; and to this he puts himself upon the country. The sixth rejoinder alleges that, in pursuance of said conspiracy, charges were preferred, and the order of removal made by the board, the parties thereto still knowing and understanding that the removal was not because of any act of the respondent in the discharge of his duties as warden, nor because of any dereliction of duty, nor because he was guilty of any of the charges so made, but for political purposes only; and as to this he puts himself upon the country. The sixth rejoinder also sets out that he was removed by the said board maliciously and arbitrarily, and for political purposes, and that the Republican members of the board conspired together to defame and to bring him into disgrace and infamy.
The six rejoinders were filed in the...
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