Emerson v. Hughes

• Decision Date: 29 July 1952
• Docket Number: No. 1807,1807
• Citation: 90 A.2d 910,34 A.L.R.2d 539,117 Vt. 270
• Parties: , 34 A.L.R.2d 539 EMERSON v. HUGHES et al.
• Court: Vermont Supreme Court

Page 910

90 A.2d 910

117 Vt. 270, 34 A.L.R.2d 539

EMERSON v. HUGHES et al.

No. 1807.

Supreme Court of Vermont.

July 29, 1952.

F. Ray Keyser, Chelsea, and F. Ray Keyser, Jr., Chelsea, of counsel, for petitioner.

Bernard R. Dick, Rutland, for petitionee.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.

JEFFORDS, justice.

This is a petition for a writ of prohibition whereby it is sought to prohibit the petitionees from proceeding any further with a certain bill in chancery for an injunction.

The petitionees are Judge Hughes, as the chancellor who issued the temporary injunction in question which is later set forth, Peter A. Bove, individually and as a member of the liquor control board of this State and Bernard R. Dick as attorney for the latter. As Mr. Bove is the petitionee whose interests are by far the most at stake in this action we will hereafter, unless otherwise noted, refer to the parties as petitioner and petitionee as though Mr. Bove were the sole petitionee.

The events as disclosed by the record leading up to the bringing of this petition are as follows:

The petitioner instituted removal proceedings against the petitionee as a member of the liquor control board. This proceeding was brought under the provisions of V.S. 47, § 6131 which are as follows: 'Removal. After notice and hearing the governor may remove a member of the liquor control board for incompetency, failure to discharge his duties, malfeasance, immorality or other cause inimical to the general good of the state. In case of such removal, he shall appoint a person to fill the unexpired term.' Written notice of the proceeding, dated March 18, 1952, setting forth specified charges, was served on the petitionee that same day. He was therein notified to appear before the petitioner on March 31 in the executive chambers in Montpelier to show cause why he should not be removed from his office.

On March 28 the petitionee by his attorney, Bernard R. Dick, brought a bill in chancery praying for the granting of a temporary injunction restraining the petitioner from holding the hearing under the above mentioned statute. The prayer was granted and an order was made by Judge Hughes restraining the petitioner from holding the hearing. The order, which was dated the same day as the bill, was to continue until further order of the court. This order was served on the petitioner on the same day it was issued.

On April 14 the petitioner brought this petition. A temporary order was granted prohibiting the petitionees from proceeding any further in their bill for an injunction and the order thereon until further order of Court. This order was served on the petitionees the day it was issued.

The broad question to be here determined is whether the court of chancery had jurisdiction to grant the temporary injunction restraining the petitioner from conducting the hearing in question. Petition of Green Mt. Post, 116 Vt. 256, 258, 73 A.2d 309; Bullard v. Thorpe, 66 Vt. 599, 601, 30 A. 36, 25 L.R.A. 605; 42 Am.Jur. 179; 73 C.J.S., Prohibition, § 37, p. 115.

The petitioner in his main brief claimed that the judicial branch of the government has no power to encroach upon the powers and duties of the executive branch. On oral argument, however, counsel for the petitioner conceded that under certain facts and circumstances and in a proper action at law his actions as governor would be subject to judicial control. Because of this concession certain cases much relied upon by the petitionee need not be considered. Thus the only remaining ground for the claim of error of the chancellor in granting the injunction advanced by the petitioner that warrants consideration is that equity has no jurisdiction to enjoin the removal of a public officer.

It is held by the overwhelming weight of authority that equity does not have such jurisdiction. For illustrative cases see In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402; White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199; Walton v. House of Reps., 265 U.S. 487, 44 S.Ct. 628, 68 L.Ed. 1115; Morgan v. Nunn, C.C., 84 F. 551; Cox v. Bd. of Fire & Police Com'rs, 55 Neb. 34, 75 N.W. 35; Heffran v. Hutchins, 160 Ill. 550, 43 N.E. 709; Sharpe v. Los Angeles, 136 Cal.App. 732, 29 P.2d 797; Miller v. Ala. State Bd., 210 Ala. 619, 98 So. 893; See also 43 Am.Jur., Public Officers, § 219; 43 C.J.S., Injunctions, § 116, p. 647; High on Injunctions, 4th ed. § 1313, p. 1329; Pomeroy Eq.Jur., 4th ed. § 1760, (337).

The petitioner in his main brief relied largely, if not wholly, in support of his claim of lack of jurisdiction in equity over cases such as this on the ground that equity will take jurisdiction only in cases in which property rights are involved and that no such right exists in the holding of a public office. The petitionee relies largely on Kenyon v. Chicopee, 320 Mass. 528, 70 N.E.2d 241, 244, 175 A.L.R. 430, in support of his claim that equity will take jurisdiction in cases involving personal as well as property rights. The opinion in that case was written by the present Chief Justice Qua of that court and contains a thorough examination of the rule as claimed by the petitioner and the cases supporting it, including some from that commonwealth. The holding in the case was that equity will protect personal rights by injunction upon the same conditions upon which it will protect property rights. It is then stated that in general 'these conditions are, that unless relief is granted a substantial right of the plaintiff will be impaired to a material degree; that the remedy at law is inadequate; and that injunctive relief can be applied with practical success and without imposing an impossible burden on the court or bringing its processes into disrepute.'

That case was a suit by Jehovah's Witnesses against a city and certain officers thereof to declare unconstitutional an ordinance and for injunctive relief against repeated prosecutions under the ordinance for distributing on the streets leaflets advertising free religious lectures. It was held that the ordinance was unconstitutional and that an injunction should be granted.

In his reply brief the petitioner makes the claim that equity has no jurisdiction over political questions or issues. This is one of the grounds listed by Professor Pomeroy in his work, supra, for lack of jurisdiction in equity over cases involving the removal of public officers. It is also the ground stated in several of the cases first above cited for their holdings to that effect. In the Kenyon case no political right or question was involved nor was any such in the illustrative cases referred to in the opinion in support of the holding made therein. That there is a well recognized distinction between the jurisdiction of equity over questions involving what might be termed mere or purely personal rights and those involving political questions or issues is illustrated in 28 Am.Jur. under the title 'Injunctions'. Sec. 21 is entitled 'Personal Rights' and deals with the jurisdiction of equity over 'mere personal rights'. Sec. 22 is entitled 'Political Rights' and deals with such jurisdiction in cases 'where the rights or questions involved are purely political'. It is stated that in such cases a court of equity will not, as a rule, assume jurisdiction. That the rights and questions in the case at hand are political is not and cannot be questioned. The only exception that we have found to the general rule that equity will not take jurisdiction over cases involving political rights or questions is that recognized in our jurisdiction to the effect that injunctive relief may be granted to an incumbent of a public office to protect his possession against the interference of an adverse claimant whose title is in dispute, until the latter shall establish his title at law. Brown v. Rock, 99 Vt. 415, 418, 133 A. 245.

Our holding is that equity does not as a general rule have jurisdiction to enjoin the removal of a public officer.

The petitionee says that the real issue in this case is not whether equity has such jurisdiction generally but whether equity may enjoin removal proceedings when the removing tribunal has not acquired jurisdiction over the officer sought to be removed because the latter had not received sufficient notice of the hearing to afford a reasonable opportunity to prepare his defense. As applied to the present case the claim is that the petitionee was denied due process of law because he was not given reasonable time within which to prepare his defense and for that reason the chancellor had jurisdiction to make the injunction order.

A de jure officer who can only be removed from an office having emoluments attached to it for cause cannot be deprived of his office without due process of law. Finneran v. Burlington, 89 Vt. 1, 5, 93 A. 254. Many cases from other jurisdictions cited by the petitionee are to this effect.

Notice and an opportunity to be heard are of the very essence of due process of law. In re Hanrahan's Will, 109 Vt. 108, 119, 194 A. 471.

The petitionee claims that when the petitioner acts under the removal statute he is acting in a quasi-judicial capacity. We agree as the statute requires removal for cause and notice. Rutter v. Burke, 89 Vt. 14, 28, 93 A. 842; Davidson v. Whitehill, 87 Vt. 499, 506, 89 A. 1081. This being so, the petitionee was entitled to notice, and an opportunity to be heard, and a reasonable time to prepare his defense. Rutter v. Burke, supra.

The petitionee in his bill for an injunction alleged that the notice in the removal proceeding was served on him just before midnight on March 18 ordering him to appear on March 31, that at the time of service the petitioner knew that this state was a member of the National Alcoholic Beverage Control Association and that the petitionee was its president, that this association had scheduled a week long meeting at New Orleans to commence on March 24 and that the...