Hyde v. Board of Comrs of Wells County

• Decision Date: 21 November 1935
• Docket Number: 26203
• Citation: 198 N.E. 333,209 Ind. 245
• Parties: HYDE, County Highway Superintendent, v. BOARD OF COMRS OF WELLS COUNTY
• Court: Indiana Supreme Court

198 N.E. 333

209 Ind. 245

HYDE, County Highway Superintendent, v. BOARD OF COMRS OF WELLS COUNTY

No. 26203

Supreme Court of Indiana

November 21, 1935

The Board of Commissioners of Wells County, having preferred charges against Charles E. Hyde as a basis for removing him from the office of county highway superintendent, rendered a judgment of removal, and, from a similar judgment of the circuit court, the Superintendent appeals.

Affirmed.

Appeal from Delaware Circuit Court; Leonidas A. Guthrie, judge.

Simmons & Simmons and Sturgis, Stine & Sturgis, all of Bluffton, for appellant.

E. C Vaughn and Eichhorn, Gordon & Edris, all of Bluffton, for appellee.

OPINION

FANSLER, Judge. Appellee,

the board of commissioners of the county of Wells, preferred charges against appellant as a basis for removing him from the office of county highway superintendent of Wells county. Appellant was notified of the charges, and appeared at the time fixed for hearing, and filed an answer. Evidence was heard, the cause taken under advisement, and the board of commissioners rendered judgment sustaining the charges and dismissing appellant. Appellant appealed to the Wells circuit court, where appellee moved to dismiss on the ground that the proceeding before the board of commissioners was a special action, administrative in character, and that an appeal does not lie. The motion to dismiss was overruled, and appellant filed a motion for a change of venue from the county. The cause was sent to the Grant circuit court, and, upon application of appellee, the venue was again changed to Delaware county. The cause was submitted to the court for trial, and a jury was impaneled to aid the court in passing on the facts. There was judgment sustaining the charges of malfeasance in office and removing appellant from the office of county highway superintendent.

The only errors assigned are predicated upon the overruling of appellant's motion for a new trial and his motion in arrest of judgment.

Appellant does not question the sufficiency of the evidence to sustain the charges of malfeasance. It is contended that the circuit court had no jurisdiction of the subject-matter. This is upon the theory that this is a special action; that the circuit court on appeal has no greater jurisdiction of the subject-matter than had the board of commissioners; that the board of commissioners had no power or authority to prefer charges against appellant, and, therefore, become the plaintiff in an action against appellant in its own court; and that the statute providing for removal of appellant by the board of commissioners is unconstitutional for the reason that there is no provision for the giving of notice of the time and place of hearing; that due process of law requires that the statute shall provide for notice of some kind, and that a notice not provided by law is, in legal contemplation, no notice.

Appellant's contention apparently rests upon the supposition that he has some property right in the office in question, which is protected by the due process clause of the Fourteenth Amendment to the Federal Constitution. But this view is not sustained by the authorities. Taylor v. Beckham (1900) 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187; People v. Kipley (1897) 171 Ill. 44, 49 N.E. 229, 41 L. R. A. 775; Taylor v. Beckham (1900) 108 Ky. 278, 56 S.W. 177, 49 L. R. A. 258, 94 Am. St. Rep. 357; Attorney General v. Jochim (1894) 99 Mich. 358, 58 N.W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606.

It may be that a public office may be considered property within the protection of constitutional provisions as to due process in controversies between two individuals for possession of the office. It was said by the Supreme Court of California: 'As between the office holder and individuals in their private capacity, and perhaps as against any authority except the sovereign power itself acting in pursuance of a power of removal expressly reserved or necessarily implied from the nature of the office, the officer is entitled to the full protection of the law in his right to hold the office, practically to the same extent as if it were private property. But here we have a controversy between the office holder and that functionary of sovereignty who is invested with the power of removal, and the question is whether or not the officer has a right to the office which the sovereign power which conferred it must respect as private property. The authorities are uniform that in such a controversy the office has not the characteristics of property.' In Matter of Carter (1903) 141 Cal. 316, 74 P. 997.

The right to hold office is a privilege. The office is created by the state for the public good, and not for private benefit. Where the Constitution confers certain rights upon a public officer, those rights may not be invaded by the Legislature. But the office in question is a legislative one, and the Legislature had full power to provide for the removal of the incumbent by any agency it chose, summarily or for cause.

It is generally held that, where an officer holds for a fixed term, and is only removable for cause, he is entitled to notice and a hearing, notwithstanding the statute providing for removal is silent on those questions. The statute in question here provides for hearing, and appellant was given more than ten days' notice, and did appear, and had opportunity to be heard in his own defense. The statute (section 8506, Burns' 1926) which creates the office of county highway superintendent provides: 'The county highway superintendent may be removed by the board of commissioners, after a hearing for incompetency, malfeasance or neglect of duties, but such board of commissioners shall not interfere with the county highway superintendent in his duties of hiring or discharging employees.'

The authorities cited by appellant to support the contention that a notice not authorized by law is, in legal contemplation, no notice, involve proceedings intended to affect personal or property rights protected by constitutional provisions. But, as pointed out, the rights involved in holding a public office do not come within the protection of those provisions. The right to hold the office is subject to the limiting conditions provided for in the statute creating it. The Legislature might have provided that the county highway superintendent should serve at the pleasure of the board of county commissioners, in which case he might have been removed at any time, without notice or hearing. It was said by the Supreme Court of Missouri, in State v. Walbridge (1893) 119 Mo. 383, 24 S.W. 457, 460, 41 Am. St. Rep. 663: 'In the case presented, the power to amove the officer is 'for cause,' and no notice is mentioned as requisite to be given to the officer to be proceeded against. But the law, in accordance with the principles of justice, -- principles which are fundamental and eternal, -- will require that notice be given before any person be passed upon, either in person, estate, or any other matter or thing to which he is entitled; and though the statutes do not, in terms, require notice, the law will imply that notice was intended. * * * And what the law will imply is as much part and parcel of a legislative enactment as though set forth in terms.'

Since the statute provides for a hearing, which must be construed as an opportunity for the officer to be heard, it necessarily contemplates that he be apprised of the charges against him, and therefore it is but reasonable to construe the enactment as intending that notice shall be given. It is true that the time at which the notice be given is not fixed, but in such cases notice at a reasonable time before the date of hearing is considered as intended. Notice was served on appellant on March 18, 1931, and the date of hearing fixed in the notice was April 2, 1931. We must construe this to be reasonable notice.

Appellant contends that the board of county commissioners had no authority to prefer charges against him, and thus become the plaintiff in an action against appellant in its own court, and then try and decide the merits of the action. But the statute must be construed as authorizing the board of commissioners to conduct a hearing upon the question of whether or not the highway superintendent is incompetent, or guilty of malfeasance, or neglect of duty, and that no formal complaint or charges are necessary. It is a special proceeding which the Legislature has a right to establish if it sees fit. It may be argued that it is unjust to provide for the trial of the superintendent by those who are in a sense his accusers; but this is no reason why the Legislature may not so provide. It must be remembered that appellant's personal or property rights are not affected by the proceeding. The only question involved, and to be determined, is whether or not the privilege of holding the office shall be withdrawn. Statutory provisions for the removal of officers by executive, legislative, and ministerial agencies, upon hearing, for causes suggested or filed by the removing body, are not uncommon.

In Hastings v. Board of Com'rs (1933) 205 Ind. 687, 188 N.E. 207, this court considered the question of whether or not there was a right to an appeal to the circuit court from the judgment of the county commissioners removing a county highway superintendent. Neither the majority nor the minority opinions in that case were intended to indicate a view that the Constitution requires that the board of county commissioners shall function entirely ministerially or entirely judicially. In State ex rel. Board v. Board, etc. (1908) 170 Ind. 595, 85 N.E. 513, 521, it is said:

'We will now consider the objection that said act violates section 10 of article 6 of the state...