Hartung v. Manning

• Decision Date: 19 December 1923
• Parties: HARTUNG v. MANNING et al.
• Court: North Dakota Supreme Court

50 N.D. 478

196 N.W. 554

HARTUNG

v.MANNING et al.

Supreme Court of North Dakota.

Dec. 19, 1923.

Syllabus by the Court.

Under the provisions of chapter 161, Laws 1915, the state game and fish board may remove its employees and appointees at pleasure.

Under the statute, special meetings of the game and fish board may be called by the president for any time and for any place in the state.

The game and fish board passed a resolution that all game wardens be “laid off,” together with another directing their secretary to notify all wardens “of the expiration of their terms of office.” Held, to work an absolute removal from office, not a temporary suspension.

Upon appeal in special proceedings and in jury cases tried to the court without a jury, the Supreme Court will not try the case de novo, but the findings of the trial court are presumed to be correct.

Evidence examined, and it is held, that the trial court's finding that petitioner had notice of his removal from office is not opposed to the preponderance of the evidence.

Appeal from District Court, Burleigh County; J. A. Coffey, Judge.

Mandamus by T. N. Hartung against C. N. Manning and others, as members of the Game and Fish Board of the State of North Dakota, and others. From judgment of dismissal and order denying new trial, petitioner appeals. Affirmed.William Langer, S. L. Nuchols, and Charles L. Crum, all of Bismarck, for appellant.

George F. Shafer, Atty, Gen., for respondents.

BUTTZ, District Judge.

In 1922 there was a legal contest over the personnel of the state game and fish board. On April 1, 1921, the petitioner was appointed a state-wide deputy game warden by the old board, known as the Bloom-Stucke board. At a meeting of the new board, known as the Manning-Dickinson board, held at Jamestown on April 20, 1922, it was resolved “that all game wardens now working, including chief game wardens and their clerks, be laid off on the first day of May, 1922,” and that “the secretary be instructed to notify the several game wardens of the expiration of their terms of office.” The secretary, Hogue, was also a member of the old board and in sympathy with them. He acted for and as a member of each of these rival boards. That litigation resulted favorably to the new board. State v. Bloom (N. D.) 193 N. W. 940.

[1] The authority of the game and fish board to remove a warden from office without preferring charges and without hearing is admitted by petitioner; and such is the law. Laws of 1915, c. 161, § 8; State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234. But he insists: (1) That the meeting of April 20, 1922, was not legally held; (2) that the board did not remove him, but attempted only to temporarily suspend him, which he contends it had no power to do; and (3) that he never received notice, express or implied, of his removal and continued to perform the duties of his office during May, June, July, and August, and that he is entitled to his salary and expenses during that time. He brings this proceedingto compel defendants to allow his salary and expense accounts for this period and to cause a warrant to be issued in payment thereof.

[2] There is no merit in the contention that the meeting at which petitioner was removed from office was illegally held. The president of the board has authority to call special meetings whenever, in his judgment, it becomes necessary. The record is silent as to how this particular meeting was called, but it does appear that all members and officers of the board were present and participated in that meeting without objection. The service of notice of such meeting by the president could have accomplished no more.

[3] That the action of the board contemplated an absolute removal and not a temporary suspension is evident. While the words “laid off” were used in the resolution, immediately following is the resolution direction the secretary to notify these wardens “of the expiration of their term of office.” We can suggest no English conveying more clearly an intent to fully and finally discharge them.

[4] The petitioner relies principally on his claim that he received no notice, either express or implied, of his removal, and that having continued to act in ignorance thereof, the board is estopped to deny him compensation and expense account. The trial court found he did receive notice. There can, in this cause, be no trial de novo of the issues of fact by this court. The findings of the trial court come here with all presumptions in favor of their correctness and with the burden resting upon the party alleging error of demonstrating the existence of such error. He must be able to show this court that such findings are against the preponderance of the testimony. Jasper v. Hazen, 4 N. D. 1, 58 N. W. 454, 23 L. R. A. 58;Dowagiac Mfg. Co. v. Hellekson, 13 N. D. 257, 100 N. W. 717;Ruettell v. Insurance Co., 16 N. D. 546, 113 N. W. 1029;Roberts v. Little, 18 N. D. 608, 120 N. W. 563;Griffith v. Fox, 32 N. D. 650, 156 N. W. 239;State Bank v. Maier, 34 N. D. 259, 158 N. W. 346;Stavens v. Elevator Co., 36 N. D. 9, 161 N. W. 558;Richards v. N. P. Ry. Co., 42 N. D. 472, 173...