In re Moson

• Decision Date: 17 December 1920
• Docket Number: No. 22065.,22065.
• Citation: 147 Minn. 383,181 N.W. 570
• Parties: In re MASON. In re NASH, Co. Atty.
• Court: Minnesota Supreme Court

147 Minn. 383

181 N.W. 570

In re MASON.

In re NASH, Co. Atty.

No. 22065.

Supreme Court of Minnesota.

Dec. 17, 1920.

Application by Fred F. Mason to Hon. J. A. A. Burnquist, Governor of the State of Minnesota, for the removal of William M. Nash, County Attorney of Hennepin County, for malfeasance in the performance of his official duties, on which the Governor made an order removing Nash from his office, and he sues out a writ of certiorari from the Supreme Court. Writ discharged.

Quinn, J., dissenting.

Syllabus by the Court

While the courts cannot interfere with the exercise of the powers which the Constitution vests in the Governor, his action in removing an officer from office may be reviewed by writ of certiorari, as that power rests only on an act of the Legislature.

The Governor may permit the petition for the removal of an officer to be amended by inserting additional charges therein, if the officer be given proper opportunity to meet such additional charges.

Such proceedings are not governed by the strict rules which govern trials in court, and a decision supported by competent and relevant evidence cannot be reversed because other incompetent evidence may have been received.

Proceedings for amotion from office are authorized for the good of the public service, not as a punishment of the officer, and are remedial rather than penal in their nature.

The evidence may be examined, under a writ of certiorari, only for the purpose of ascertaining whether it furnished any reasonable or substantial basis for the decision. The record contains competent evidence supporting the decision, and whether it should be taken as true, or rejected as false, was for the tribunal vested with the power of amotion to determine.

The rule that a defendant cannot be convicted in a criminal prosecution on the uncorroborated testimony of an accomplice does not apply in such a proceeding as this, yet such testimony should be carefully scrutinized.

Proof of other offenses, of the same nature as those charged, which tended to show a general course of conduct which embraced the commission of such offenses, was admissible for the purpose of corroboration.

The fact that the relator had been indicted, tried and acquitted in a federal court, on one of the charges set forth in the petition, did not bar the Governor from hearing and determining that charge in this proceeding. M. H. Boutelle and Fowler, Schmitt, Carlson & Furber, all of Minneapolis, for applicant.

C. L. Hilton, Atty. Gen., and Albert F. Pratt, Asst. Atty. Gen., for respondent.

TAYLOR, C.

The relator was county attorney of Hennepin county for the term beginning on the first Monday in January, 1919. On May 17, 1920, one Fred M. Mason petitioned the Governor to remove him from office on the ground that he had been guilty of malfeasance in the performance of his official duties. After an extended hearing at which much evidence was submitted, the Governor found the charges true and made an order removing him from the office of county attorney. The relator sued out a writ of certiorari from this court.

[1] The courts can in no way interfere with the exercise of the powers which the Constitution vests in the Governor as chief executive officer of the state; but the power of amotion from office is not given him by the Constitution but rests only on an act of the Legislature, and it is settled in this state that his action in removing an officer from office may be reviewed by a writ of certiorari. State ex rel. v. Eberhart, 116 Minn. 313, 133 N. W. 857,39 L. R. A. (N. S.) 788, Ann. Cas. 1913B, 785, in which the prior decisions are reviewed and analyzed. In that case the removal of a county attorney from office was sustained; the court saying:

‘The decision will not be reversed if there is any evidence of a legal and substantial basis reasonably tending to support it.’

In the present case the original petition charged, in paragraph 2, that the relator had received bribes from one Michael Weisman under an agreement to use his official position to protect certain persons in the commission of certain crimes without specifying either the persons or the crimes; and then charged, in paragraph 3, that pursuant to the receipt of such bribes he had willfully and feloniously conspired with Oscar Martinson, Michael Weisman and 11 other persons named therein to receive, transport and conceal a large quantity of intoxicating liquor unlawfully imported into this state from the Dominion of Canada, and for fuller details referred to a complaint made to a United States commissioner, charging him with this offense, a copy of which was attached to the petition. At the opening of the proceedings on the second day of the hearing, the petitioner was permitted to amend the petition by inserting two additional paragraphs therein, one to the effect that, on or about January 15, 1920, the relator had received a bribe of $500 from Michael Weisman to use his official position to prevent one Max Brooks from being brought to trial upon an indictment which had been returned against him by the grand jury of Hennepin county; the other to the effect that, on September 3, 1919, he had received from Weisman the sum of $2,000 as the consideration for using his official position to bring about the imposition of a fine, without a prison sentence, upon four women named therein who had been indicted for keeping houses of ill fame in the city of Minneapolis.

The principal contentions of the relator are: (1) That the petition could not be amended by inserting additional charges therein after the hearing had been begun; (2) that the findings are manifestly and palpably against the preponderance of the evidence; (3) that evidence of other offenses than those charged in the petition was improperly received.

[2][3][4] 1. The statute provides that the Governor may remove from office any county attorney, or any of certain other specified officers--

‘whenever it appears to him, by competent evidence, that either has been guilty of malfeasance or nonfeasance in the performance of his official duties; first giving to such officer a copy of the charges against him, and an opportunity to be heard in his defense.’ Section 5724, G. S. 1913.

The next section provides for the appointment of a commissioner to take and report the testimony, and that each witness shall subscribe his name to his testimony when the same is reduced to writing. In the present case a commissioner was appointed who took down and made a record of the testimony, but the testimony was taken before the Governor in person and the various rulings throughout the hearing were made by the Governor. It will be observed that the statute does not limit the time nor prescribe the manner in which charges shall be presented, but merely provides that the accused officer shall be furnished a copy of the charges and be afforded an opportunity to make his defense. This requires a hearing, the purpose of which is to determine whether the officer has been guilty of the alleged misconduct. The Governor, upon whom the statute imposes the duty to determine this question, is not a court and is not bound by the strict rules which govern trials in court. State ex rel. v. Common Council, 53 Minn. 238, 55 N. W. 118,39 Am. St. Rep. 595;State ex rel. v. Megaarden, 85 Minn. 41, 88 N. W. 412,89 Am. St. Rep. 534;State ex rel. v. Eberhart, 116 Minn. 313, 133 N. W. 857,39 L. R. A. (N. S.) 788, Ann. Cas. 1913B, 785. The statute is remedial rather than penal in its nature; it provides for the removal of an unfaithful officer to protect the public, secure the faithful performance of official duties, and keep the public service above reproach, not to punish the officer for his derelictions. 22 R. C. L. 573, § 284; Territory v. Sanches, 14 N. M. 493, 94 Pac. 954, and note appended to report of case in 20 Ann. Cas. 109; also note found in 135 Am. St. Rep. 250. The restrictions which hedge about a trial in court on an indictment and limit the power to amend the indictment do not apply; and we find no warrant in the statute for saying that only one charge or set of charges may be considered, and seen no reason why additional charges may not be presented, either independently of the original charges, or by way of amendment to them. The question to be determined is whether the accused officer has so misconducted himself in respect to the performance of his official duties that the good of the public service requires his removal from office. And the officer, or special tribunal, charged with the duty to determine this question, may, in our opinion, in the proper exercise of his discretion, permit the presentation of further and additional charges setting forth facts which, if true, have a direct and material bearing upon the question to be determined. Of course, the accused officer must be given a proper opportunity to meet the additional charges after they have been furnished to him. In the present case, the relator was given ample opportunity to present all his evidence and make a full defense.

[5] 2. The Governor found three charges true, namely: That the relator was a party to the so-called liquor conspiracy; that he had received a bribe in the Max Brooks Case; and that he had received a bribe in the cases of the four women indicted for keeping houses of ill fame. Any one of these findings, if sustained by the evidence, furnished a sufficient ground for the order of amotion. The relator does not claim that there is no evidence to support these findings, and could not well do so, for the witness, Michael Weisman, testified directly and positively that he made the arrangement with the relator in each of these instances, and paid him $500 on behalf of Max Brooks, $2,000 on behalf of the four women, and $2,000 on behalf of the parties who were illegally bringing liquor from Canada into Minneapolis. The relator's contention is that the findings rest on the testimony of Weisman, and that...