Hartigan v. Bd. Of Regents Of West Va. Univ.
| Decision Date | 09 March 1901 |
| Court | West Virginia Supreme Court |
| Parties | Hartigan v. Board of Regents of West Virginia University. |
A court has no jurisdiction to review the action of the Board of Regents of the West Virginia University removing a professor. (By Judges Poffenbarger and Brannon.) (p. 15).
A writ of prohibition does not lie to prevent the Board of Regents of the West Virginia University from executing a reso lution of that board removing a. professor. (By a Majority of the Court.) (p. 18).
A professor in the West Virginia University is not a public officer. (By a Majority of the Court.) (pp. 19, 20).
Removal of officers discussed, (p. 21).
Notice and hearing are not required of a proceeding by the Board of Regents of the West Virginia University for the removal of a professor. (By Judges Poffenbarger and Brannon.) (p. 25).
Application of J. W. Hartigan for a writ of prohibition against George C. Sturgiss and others.
Writ Denied.
W. W. Arnett, W. R. I). Dent and Frazier & Frazier, for petitioner.
Mollohan, McClintic & Mathews and John A. Campbell, for respondents.
Brannon, President:
The Board of Regents of the West Virginia University removed Doctor James W. Hartigan from the professorship of anatomy in that institution, and he asks this Court for a writ of prohibition against George C. Sturgiss, R. R. McMahon, John A. Campbell, James L. 1 Hamill, Albert H. Kunst, W. E. Powell, P. C. Eastham, James F. Brown and John J. Davis, individually and collectively as a Board of Regents, to prohibit them from carrying into execution the resolution of removal. Doctor Hartigan contests the validity of the action of the regents on several grounds, the chief ground being the want of notice to Doctor Hartigan of the proceeding to remove him, so that he might make defense, from which want of notice the act of removal is claimed to be void.
A question of gravity and public importance at once confronts us in the decision of this case. Has this Court, or any court, jurisdiction to review or reverse the action of the regents in this matter? Is the action of the Board of Regents subject to judicial review? The State; is charged, and has assumed, the high duly of popular education, and in the performance of this duty it has set. up an organism and endowed it with corporate life under the name of The West Virginia University. Though a corporation, it is not a private one created for private ends, but it is a. public corporation, a branch of the State government, an instrumentality which the State has brought into being to aid it in carrying out this duty of educating the people. It is an arm of the State government, a part of it. It belongs to that one of the three departments of the State government called the executive department. Though it is under the unrestricted control of the legislature, and supported by its appropriation of public money, because it performs public functions, yet the university is a branch of the executive department. But though the university is a branch of the State government executing public ends, still it is a separate corporate existence, managing its own affairs under statutory law, subject only to legislative regulation. It has its governing body, the regents appointed by the governor with the assent of the senate. Under chapter 45 of the Code the regents establish such departments of education, which we call professorships or chairs, in literature, science, art, agriculture and military tactics as they may deem expedient, and they make rules, regulations and. by-laws for the government of the institution. The Code gives them power to appoint professors to fill the chairs in the several departments. By common law this power of appointment carries with it the power of removal, unless restrained by statute; but this power is affirmed and in words conferred by the Code giving the Board of Regents authority "to remove them (professors) for good cause, but in case of removal the concurrence of a majority of the regents shall be required, and the reasons for removal shall be communicated in a written statement to the governor." We must not fail to notice that this statute, not only gives the regents power of removal, but it makes that power very wide, because it does not specify any cause constituting ground of removal such as incompetency, immorality or other specific cause, but leaves it to the regents to judge of the cause of removal, to say what is good cause. And further, we must not fail to note that the Code commands the regents to report the caust of removal to the governor, the head of the executive department, thus making them accountable only to the governor. What their accountability to him is, what his powers as to any improper action in removal may be, it is not necessary for us to say; but the Code in that provision warrants us in saying that the legislature contemplated accountability of the regents, it any, only to the chief of the executive department, the power that appoints them. "No intimation is breathed by the statute of their accountability to any court; but such accounability as is contemplated is to the executive. The proposition is asserted that every action of the regents may be made the subject of judicial review. That is what it amounts to practically. When a professor is to be removed he must have notice, trial and some writ from a circuit court upon the theory of erroneous action by the regents, to review that trial, and then an appeal to the Supreme Court. When the case is before the Board of Regents, under this theory, he must be allowed to have witnesses and counsel for full defense. So the case may be made one of almost interminable litigation, to the great harm of the university. And every case of removal may, probably would, be made the subject of protracted litigation. In the meanwhile' the incompetent professor would go on, and the harm to the university would be, or might be, very great. "Under this theory the courts would control the Board of Regents, would paralyze the arm of the executive, deprive the executive of its powers over the university plainly conferred by the legislature. Thus the courts would practically exercise jurisdiction over the university, administer its affairs in greater or less degree, according as the litigations might be few or numerous, notwithstanding the Code plainly intended to put its government in the hands of the regents. So far as I, by the compliment and favor of the people, have the honor to participate in the judiciary of the State, I am ready to disclaim the assumption of this power, which I would consider little less than usurpation. It would be an invasion of the functions of the executive department. There is no jurisdiction in this or any court to control the administe-rial action of the executive. The Constitution itself divides the government into three separate departments, and forbids each to trespass upon the domain and jurisdiction of the other. Fleming v. Guthrie, 32 W. Va. 1; (Goff v. Wilson, Id. 405; People v. Morton, 156 \. Y. 136; 66 Am. St. R. 547; State v. Haw kins. 44 Ohio St. 98; Keen an v. Perry, 24 Texas.253; High, Extra-ord. Legal Rem. s. 118. Prohibition does not lie to restrain executive action. 16 Ency. PL. & Pr. 1108. Are the courts, under any guise, to fake charge of the boards of directors of the hospitals for the insane, the penitentiary, the normal schools, the school for the deaf, dumb and blind, the reform schools, the home for the incurables, the West Virginia Colored Institute, the Bluefield Colored Institute, and all other institutions of such nature as may be established by the State? The question answers itself. The proposition seems utterly unreasonable. If the courts can take charge of one of them, why not take charge of all of them? Their administration and goverance belong to the executive department of the State, and the judiciary is forbidden by the Constitution from interference with them. Some one will ask, is the Board of Regents to do as it pleases, without control, erroneous as its action may be? Yes, so far as the courts are concerned. So the law is writ. The legislature has confided the power to them, as it must be confided to some hands, and the legislature has given no judicial process to revise the board's action, but in the matter of the removal of professors has required the board to report only to the governor. The lawmakers have chosen not to make the action of the board the subject of law suits.
Dr. Hartigan attacks the action of the regents as taken at the mere instance and caprice of the president of the university, and that action is assailed at the bar as imputable to worngful and malign motives on the part of the board towards Dr. Hartigan. It would be hard to select a Board of Regents of citizens standing higher for personal, worth and professional and business fitness and capacity than the members above named as composing that board, and we see no just warrant for us to impugn the motives of six out of nine of such regents as moved by anything else than what they considered the welfare of the university.
There is another reason why this Court cannot reverse the action of the regents. The writ of prohibition dons not lie in the case. If the action of the regents were subject to review by a court, it would be by certiorari, not prohibition. Certiorari is the proper writ to revise and reverse the action of inferior courts, boards or tribunals not of record, proceeding not according to the course of the common law, where no appeal or writ of error lies. Cunningham v. Squires, 2 W. Va. 422; Morgan v. Ohio River R. Co., 39 Id, 17, 21; Foe v. Machine Works, 24 Id. 517. If that Board of Regents had jurisdiction of the matter of the removal of a professor, and that it has no one...
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