Fugate v. Weston

• Decision Date: 19 March 1931
• Citation: 157 S.E. 736
• Parties: FUGATE. v. WESTON.
• Court: Virginia Supreme Court

157 S.E. 736

FUGATE.

v.WESTON.

Supreme Court of Appeals of Virginia.

March 19, 1931.

Rehearing Denied April 10, 1931.

Tax Code, § 366 (Acts 1928, p. 207, c. 45), authorizes Governor to remove without notice every city or county treasurer, clerk, sheriff, or other officer charged with the collection of any of the public revenues for failure to execute and perform the duties required of such officer with reference to collection of the revenue and makes no provision for, nor does it permit the accused officer to have the question of the existence of the cause of his suspension ultimately determined by a court; the Legislature having reserved therein to itself the right to determine if the action of the Governor is to be sustained.

PRENTISS C. X, and GREGORY and BROWNING, JJ., dissenting.

Original petition for mandamus by Charles D. Fugate against J. M. Weston.

Petition refused.

John R. Saunders, Atty. Gen., for petitioner.

W. S. Cox, of Gate City, and Leon M. Bazile and Alfred J. Kirsh, both of Richmond, for respondent.

HOLT, J.

The original jurisdiction of this court is invoked in a petition for mandamus, filed by Charles D. Fugate, in which he charges, "that on the 29th day of November, 1930, the Honorable John Garland Pollard, Governor of Virginia, by virtue of the power conferred upon him by section 366 of the Tax Code of Virginia, issued an executive order whereby he suspended J. M. Weston as treasurer of Lee county, Va., for reasons and causes set forth in said order, and therein commanded and forbade the said J. M. Weston from collecting any more taxes and public revenues for the State of Virginia and the county of Lee, from that date; and in the same order the said governor appointed and commissioned him as the successor of the said J. M. Weston for the time of said suspension, with full power to collect the said taxes and public revenues of the said county of Lee and the Commonwealth of Virginia, with all powers and rights and duties as treasurer of the county."

Petitioner avers that he duly qualified as treasurer of said county on December 4, 1930, but that J. M. Weston, who had theretofore been elected its treasurer, had refused to comply with the executive order of the Governor and had declined to turn over said office and records as by that order directed.

Weston has filed a demurrer to this petition, in which he claims that section 366 of the Tax Code of Virginia, under which the Governor proceeded, is unconstitutional, because it is in violation of sections 5 and 39 of the Constitution of Virginia, ¹ relating to the separation and distribution of the powers of government. In short, it is said that this Tax Code section undertakes to invest the executive with judicial power.

Weston has filed no answer, but this stipulation, entered into on behalf of these litigants, appears in the record:

"That the audit of the accounts of J. M. Weston as treasurer of Lee county, made by the auditor of public accounts as of May 17, 1930, shows that on that date the said J. M. Weston was indebted to the county of Lee in the sum of $99,322.11; that on that date he was indebted to the State of Virginia in the sum of $4,399.09; and that on that date he had in cash or in cash items the sum of $8,127.02. A subsequent audit of the accounts of the said J. M. Weston, treasurer as aforesaid, as of October 22, 1930, made by the said auditor of public accounts, shows that on that date the said J. M. Weston was indebted to the county of Lee in the sum of $99,463.49; that on that date he was indebted to the State of Virginia in the sum of $323.07; and that on that date he had in cash or cash items the sum of $7,022.6S.

"The sum of $323.07, shown to have been due to the State of Virginia by the said J. M. Weston as of October 22, 1930, was remit-ted by the said J. M. Weston to the comptroller of the State of Virginia on November 13, 1930.

"The said J. M. Weston became treasurer of Lee county on January 1, 1924, and was reelected in November, 1927, at the general election held on the 8th day of that month for the term beginning January 1, 1928."

For the purposes of this case we shall assume that Weston has been guilty of gross malfeasance in office for which he may be removed by a proceeding under section 2705 of the Code, and also under said section 366 of the Tax Code, if this latter statute be constitutional. Weston's guilt or innocence is not in issue here. We will assume that he is guilty. What we are to determine is whether or not this Tax Code section violates those fundamental principles of the Constitution of Virginia relative to the division and separation of the powers of government and their proper distribution among the legislative, judicial, and executive departments thereof, for the urgency of the present necessity must not be permitted to override fundamental principles and dictate the decision of the question here presented. It is more important that they should be preserved than that some guilty office holder should be removed from office.

In the instant case the Governor acted upon the report of an auditor whose record merits the utmost confidence, but there is nothing in the statute which requires that action be based upon so solid a foundation. Some executive, less mindful of the high obligations of his office, might be willing to act upon some partisan report made for political purposes.

When we come to weigh a statute, the question is not what has actually been done under it, but what might have been done? Violett v. Alexandria, 92 Va. 561, 23 S. &. 909, 31 L. R. A. 382, 53 Am. St. Rep. 825.

This Tax Code section gives to the Governor power to remove every city or county treasurer, clerk, sheriff, or other officer charged with the collection of any of the public revenues, and this without notice. Its terms are: "The governor shall have power to suspend the treasurer of any county or city of this Commonwealth or other officer charged with the collection of the public revenues, from collecting the revenues of the State or of such county or city, for failure to execute and perform the duties required of such officer under the laws of the Commonwealth with reference to the collection of the revenue; and said officer shall not collect any further the revenues unless the general assembly by joint resolution restore him to office. The collection of the revenues in such city or county shall then be made by the person appointed by the governor for that purpose, and such appointee, after having qualified and given bond according to law shall discharge all the duties of the office to which he is appointed during the time of the suspension of his predecessor, and shall be amenable to all the rules, regulations, requirements, and responsibilities declared by the laws of this State pertaining to the collection of the public revenue." It makes no provision for, nor does it permit, the accused officer to have the question of the existence of the cause of his suspension ultimately determined by a court. So far from doing this, the Legislature has reserved to itself the right to determine if the action of the Governor is to be sustained. Since this right is reserved to the Legislature, it cannot be exercised by the courts if this statute be constitutional, and it is for the Legislature to say, without evidence and at pleasure, if the order of suspension is to be overruled. This "suspension, " so called, is in substance a removal. The officer is displaced without provision for a determination of his rights anywhere. Unless the Legislature, as a matter of grace, see fit to reinstate him, he is out forever.

It is to be remembered that we are dealing here with a constitutional officer (Constitution, §§ 110, 112), who was duly elected and whose term has not yet expired, and we are not called upon to consider the status of offices purely legislative.

It may readily be conceded that the Constitutional Convention, in framing our organic law, had power to confer upon the Governor and upon the Legislature judicial power, but it was at pains in section 39 to say that these powers should not be interchangeably authorized except by authority written into the Constitution itself. Before any act of the Legislature which purports to convey such authority can be sustained, it is necessary that it be possible to point out constitutional authority therefor. The presumptions are against it.

It may also be conceded that under the complex conditions of modern society it is not always possible to tell where the powers of one department end and those of another begin. Within this twilight zone incidental encroachments are at times unavoidable. Winchester & Strasburg R. Co. v. Commonwealth, 106 Va. 264, 55 S. E. 692. But such encroachments, unless authorized, must be incidental only. McCurdy v. Smith, 107 Va. 757, 60 S. E. 78. On the other hand, it is not necessary always to point to an express provision of the Constitution as authority when some act is unsupported by organic law. Private property cannot be taken for private uses in any circumstances, though it is not in terms forbidden.

In the case of Farmville v. Walker, 101 Va. 323, 330, 43 S. E. 558, 561, 61 L. R. A. 125, 99 Am. St. Rep. 870, the court said, Keith, P.: "It is true that it is not always necessary, in order to declare an act unconstitutional, to point out the precise limitation which it violates if it be repugnant to the spirit of the Constitution or of the institutions which the Constitution creates."

To remove a man from office because of embezzlement, without giving him a day in court, runs counter to those fundamental instincts of fair dealing which lie at the base of all governments.

"In harmony with these principles it has been held that a statute providing for the removal of an officer chosen for a fixed term, which makes no provision for giving him notice or for allowing him to be heard in his defense, is contrary to a constitutional provision that no person shall be...