Fugate v. Weston

• Citation: 156 Va. 107
• Case Date: March 19, 1931
• Court: Supreme Court of Virginia

Page 107

156 Va. 107 CHARLES D. FUGATE
v.
J. M. WESTON. Supreme Court of Virginia, Richmond. March 19, 1931.

Present, All the Justices.

1. PUBLIC OFFICERS — Removal — Constitutionality of Section 366 of the Tax Code, Authorizing the Governor to Suspend Officers Charged with the Collection of Public Revenue — Case at Bar. — The Tax Code, section 366, authorizes the Governor to remove 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, 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 to itself the right to determine if the action of the Governor is to be sustained. In the instant case the officer suspended by the Governor was a constitutional officer and the court was not called upon to consider the status of officers purely legislative.

Held: That section 366 of the Tax Code is unconstitutional, as it violates those provisions of the Constitution of Virginia relative to the division and separation of the powers of government.

2. PUBLIC OFFICERS — Removal of Treasurer — Constitutionality of Section 366 of the Tax Code, Authorizing the Governor to Suspend Officers Charged with the Collection of the Public Revenue — Case at Bar. — The question at issue in the instant case arising out of the suspension of plaintiff in error, a county treasurer, by the Governor, under section 366 of the Tax Code, was the constitutionality of that section. The section is unconstitutional. The vice in it lies, not in the fact that the Governor was authorized to suspend this treasurer, but that final determination of the conclusiveness of this act and of the existence in fact of the alleged cause upon which it is based is a question essentially judicial, and has been taken from the courts.

Original application for a mandamus.

The opinion states the case.

W. S. Cox, L. M. Robinette, W. L. Davidson, George P. Cridlin, Alfred J. Kirsh and Leon M. Bazile, for the respondent.

John R. Saunders, Attorney-General, and Edwin H. Gibson and Collins Denny, Jr., Assistant Attorneys-General, for the petitioner.

Opinion of 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, Virginia, 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."

Petition 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.

1 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

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is in violation of sections 5 and 39 of the Constitution of Virginia,^* 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 $7,022.68.

"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 remitted by the said J. M. Weston to the Comptroller of the State of Virginia on November 13, 1930.

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"The said J. M. Weston became treasurer of Lee county on January 1, 1924, and was re-elected 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 officeholder 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 Alexandria, 92 Va. 561, 23 S.E. 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

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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, sees fit to reinstate him, he is out forever.

It is to be remembered that we are dealing here with a constitutional officer (Constitution, sections 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,

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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...