Hartigan v. Board of Regents of West Virginia University
| Decision Date | 09 March 1901 |
| Citation | 38 S.E. 698,49 W.Va. 14 |
| Parties | HARTIGAN v. BOARD OF REGENTS OF WEST VIRGINIA UNIVERSITY. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. 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.)
2. A writ of prohibition does not lie to prevent the Board of Regents of the West Virginia University from executing a resolution of that board removing a professor. (By a Majority of the Court.)
3. A professor in the West Virginia University is not a public officer. (By a Majority of the Court.)
4. Removal of officers discussed.
5. 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.)
1. By the terms of the statute authorizing their creation professorships in the state university are, as to the removal of the incumbents, quasi public offices, and no such removal can be operative or valid until good cause shown after notice, and an opportunity of defense has been afforded the incumbent proposed to be removed.
2. By good cause is meant some just cause affecting materially the interest and well-being of the university.
3. The acts of the regents of the university in its government and control in all proper cases are subject to review by the courts by certiorari, mandamus, and prohibition, when such writs are necessary to prevent such regents exceeding or abusing their legitimate powers.
4. A rule, regulation, or by-law adopted by the regents inconsistent with the charter statute of the university is void.
5. The ex parte order of the circuit court refusing an alternative writ of mandamus or a rule in prohibition is not reviewable by writ of error, but an original application should be made for such refused writs to this court, the refusal order satisfying the requirements of rule 13 of this court (23 W.Va. 829).
Application of J. W. Hartigan for a writ of prohibition against George C Sturgiss and others. Writ denied.
W. W Arnett, W. R. D. Dent, and Frazier & Frazier, for petitioner.
Mollohan McClintic & Mathews and John A. Campbell, for respondents.
BRANNON P.
The Board of Regents of the West Virginia University removed Dr. 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. 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. Dr. Hartigan contests the validity of the action of the regents on several grounds, the chief ground being the want of notice to Dr. 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 with, and has assumed, the high duty 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 made 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 cause 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, if 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 accountability 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 power 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 administerial 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, 9 S.E. 23; Goff v. Wilson, 32 W.Va. 405, 9 S.E. 26; People v. Morton, 156 N.Y. 136, 50 N.E. 791, 66 Am.St.Rep. 547; State v. Hawkins, 44 Ohio St. 98, 5 N.E. 228; Keenan v. Perry, 24 Tex. 253; High, Extr. Rem. § 118. Prohibition does not lie to restrain executive action. 16 Enc. Pl. & Prac. 1108. Are the courts, under any guise, to take 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 governance 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 law-makers have chosen not to make the action of the board the subject of lawsuits.
Dr Hartigan attacks the action of the regents as taken at the...
To continue reading
Request your trial