Fuller v. Ellis
| Decision Date | 08 December 1893 |
| Citation | 98 Mich. 96,57 N.W. 33 |
| Court | Michigan Supreme Court |
| Parties | FULLER v. ELLIS, Attorney General. |
Application by Otis Fuller for a writ of mandamus to compel Adolphus A Ellis, attorney general, to institute quo warranto proceedings. Granted.
Geer & Williams, for relator. A. A. Ellis, Atty Gen., in pro. per.
The relator claims the office of warden of the state house of correction, and applies for a mandamus to compel the attorney general to file an information in the nature of quo warranto against the present incumbent. The respondent's answer sets up several reasons for refusing viz.: (1) The unconstitutionality of Act No. 118 of 1893 under which relator claims his appointment; (2) the want of sufficiently specific charges against the present incumbent in the proceedings for removal; (3) the disqualification of the board of control to pass upon the charges, by reason of the fact that one of the members of the board made the charge; (4) bad faith on the part of the board in its adjudication.
The constitutionality of the law is attacked upon the ground that section 8, art. 12 of the constitution restricts the power of removal of the warden to the governor. The section reads as follows: "The governor shall have power and it shall be his duty, except at such time as the legislature may be in session, to examine into the condition and administration of any public office, and the acts of any public officer, elective or appointed, to remove from office for gross neglect of duty, or for corrupt conduct in office, or any other misfeasance or malfeasance therein, either of the following state officers, to wit: The attorney general, state treasurer, commissioner of land office, secretary of state, auditor general, superintendent of public instruction, or members of the state board of education, or any other officer of the state, except legislative and judicial, elective or appointed, and to appoint a successor for the remainder of their respective unexpired terms of office, and report the causes of such removal to the legislature at its next session." There may be a question whether this provision of the constitution named should apply to any officers of the state not specifically mentioned in or provided for by the constitution. It is contended that it applies to all public officers whose dutles pertain to state affairs; and the case of Dullam v. Willson, 53 Mich. 392, 19 N.W. 112, is relied upon to sustain the proposition. That case arose upon proceedings before the governor against a trustee of the asylum for the deaf and dumb, at Flint. It turned upon the character of the charges, and there is perhaps room for the contention that the question suggested, viz. whether section 8 was broad enough to cover officers elected or appointed under acts of the legislature, is yet an open one. If, however, it should be conceded that the effect of that decision was to place the trustee within that section, does it follow that the warden of the house of correction is? The several departments and state institutions are by law placed in charge of specific officers and boards. From the first, these offices and institutions have been administered and operated through a constantly increasing force of subordinates, who worked under directions or regulations prescribed by their superiors. It may probably be said with safety that all of these subordinates are provided by law, and certainly many if not most of them rise to the dignity of public officers, as contradistinguished from mere contractors. Among these may be mentioned the deputies of the various state and county officers, and the superintendents, wardens, and possibly other subordinates of the state institutions. Many if not all of these have been removable by their superiors,-some at will, others for cause,-and the authority of the superiors seems not to have been questioned. Thus, we have a construction of the constitution acted upon for upwards of 30 years, since the adoption of section 8 of article 12. Previous to that time the same power had been exercised under the present and previous constitutions. The language of Mr. Justice Champlin in People v. Stuart, 74 Mich. 415, 41 N.W. 1091, a case of the removal of a county officer, shows the importance of the power. It is as follows: Again, the language of the amendment must be enlarged to make it cover subordinates. As preliminary to the exercise of the power of removal, it makes it the duty of the governor to examine into the condition and administration of the office, and the acts of the officer. It limits the removal to cases of gross neglect of duty, corrupt conduct in office, and misfeasance or malfeasance therein. It specifically mentions several of the state officers, and gives the governor power to appoint the successor in case of removal. We think that it was not intended that the governor should investigate the conduct of deputies and other subordinates, or that he should appoint their successors, both of which it would be proper for the head of the department, i. e. the state officer proper, or board, to do. We must assume that the framers of the constitutional amendment knew that officers named in the constitution were beyond the power, so far as removal is concerned, of any department of government, except as provided by the constitution, and that they also knew that all officers which the legislature might provide for by law were necessarily subject to the power which created the offices. We think, therefore, that it was not intended that section 8 should apply to subordinates. It was so held in the case of Portman v. Fish Com'rs, 50 Mich. 258, 15 N.W. 106, in which case the necessity of such a rule was pointed out. State v. Smith, (Wash.) 33 P. 974.
The constitutionality of the act giving power of removal to the board of control is also attacked under section 2, art. 3 of the constitution, which reads as follows: "No person belonging to one department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution." This is upon the theory that the right to an office, where removal is sought for cause, can only be tried by some officer belonging to the judicial department under the constitution. This subject has been discussed in the case of Dullam v. Willson, and mentioned in People v. Stuart, but in neither case was it necessary to decide the question. It needs no argument to show that constitutional rights cannot depend upon the importance of the office. If it be once admitted that incumbents of public offices created by the legislature have the constitutional right to have the question of removal determined by the judicial department, the rule must extend to every public officer in the state who is not removed from the operation of the rule by the constitution itself. These subordinate officers are elected or appointed under laws made by the legislature, which are subject to alteration or repeal at the will of the legislature, with the governor's approval, or without it, if a majority of two-thirds can be obtained; and the legislature may vacate the office directly as was done by the act of 1891, which was repealed by that in question. Thus, under this contention, we have a peculiar condition of things, viz. under the settled law the legislature may remove officers at will, but may only delegate the power to remove for cause to the judicial department. Again, the legislature has power to provide for state institutions, and the election of their officers. It may give the boards of trustees power of appointment and removal of subordinates at will, but under respondent's contention a legitimate limitation upon the power of removal, requiring removals to be reasonable and not arbitrary, results in the deprivation of the board of all power of removal, upon the theory that the act becomes purely judicial, being for cause. To make this more apparent: The legislature may remove subordinates at will. It may authorize the board of control to do the same, and without notice of reason. But, if it requires removals to be made by the board only when there is good reason for it, it confers no power of removal at all. Such is the absurd result that is reached when we assume that all removals for cause are acts of such a judicial nature that only the constitutional judiciary can perform them. The peculiarity of this is the more apparent when we examine the question in the light of the constitution. The section (8) which provides a forum for hearing questions with the view to the removal of state officers for causes therein mentioned is not as old as the constitution. From 1836 to 1862 there was no such provision. It is...
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