Lynch v. Chase

• Decision Date: 19 June 1895
• Citation: 40 P. 666,55 Kan. 367
• Parties: J. B. LYNCH v. SETH W. CHASE
• Court: Kansas Supreme Court

40 P. 666

55 Kan. 367

J. B. LYNCH v. SETH W. CHASE

Supreme Court of Kansas

June 19, 1895

Original Proceeding in Quo Warranto.

ALL the material facts are stated in the opinion herein, filed June 19, 1895.

Judgment in favor of the plaintiff.

F. B Dawes, attorney general, for plaintiff.

Frank Herald, and Waters & Waters, for defendant.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This is an original proceeding in quo warranto to determine who of two contending persons is entitled to the office of warden of the state penitentiary. No controversy exists as to the facts upon which the title to the office depends, and, to facilitate the trial and secure an early decision, the facts have been embodied in the pleadings of the parties upon which the case has been submitted. J. B. Lynch, who brings the action, concedes that Seth W. Chase, the defendant, was duly appointed to the office for a term of four years, which began on the 1st day of May, 1893, and ends on the 1st day of May, 1897; but he claims that Chase has been legally removed from the office, and that he, Lynch, has been duly appointed in his stead.

It appears that on March 9, 1895, written charges were presented to Gov. E. N. Morrill, calling in question the official conduct of Seth W. Chase as warden, upon the grounds of inefficiency, immorality, misconduct, and inattention to the duties of his office. The governor, deeming the charges worthy of credit, and that they emanated from a reliable and trustworthy source, requested Lieut. Gov. James A. Troutman and speaker of the house of representatives Charles E. Lobdell to meet with him on March 18, 1895, and, in pursuance of that request, they did meet on the day named at the executive office and proceeded to select a committee of five members of the legislature, consisting of Senators J. W. Parker, of Johnson county, and Edwin Taylor, of Wyandotte county, and Representatives E. F. Caldwell, of Douglas county, H. J. Bone, of Clark county, and T. P. Wilson, of Barber county, to inquire into the truth of the charges presented to the governor, and to examine into the official conduct of Seth W. Chase as warden of the state penitentiary. After due notice had been given to the warden of the charges and of the time and place of a hearing upon the same, the committee organized and proceeded with the investigation, which continued from day to day for several weeks. Testimony was offered to sustain and also to refute the charges against the warden, who was present in person and by counsel throughout the investigation, and such witnesses as he desired were subpoenaed to testify in his behalf before the committee. On May 31, 1895, the investigation having been completed, the committee filed its report and findings with the governor, together with the testimony which had been taken. A majority of the committee found that several serious charges involving official misconduct and inefficiency were sustained by the testimony, and four members of the committee joined in recommending that he be removed from office and dismissed from the public service. The governor also examined the testimony in the case, and, upon consideration thereof, found that the charges had been proven, and that the defendant was guilty of inefficiency, inattention to duty, immorality, misconduct, and corruption in office. The governor thereupon determined that there was sufficient cause to remove the defendant from the office of warden, and a removal was accordingly ordered. Due notice of this order was served upon Chase, and immediately thereafter the governor appointed and commissioned J. B. Lynch as warden, who at once qualified in the manner required by law, and on June 7, 1895, demanded from Chase the possession of the office and institution. The demand having been refused, the present proceeding to obtain possession was begun by Lynch.

The decision of the controversy depends upon whether the proceedings for the removal of Chase were legal and effective. It must be considered that an arbitrary removal from the office at the will or pleasure of the governor is not permissible. The tenure of the office is fixed by law at four years, and there is no statutory provision which can be construed as an authority to remove at pleasure. The statute providing for the appointment of a warden, and fixing the tenure of the office, also provides that the governor may remove him from office for cause. (Laws of 1891, ch. 152, § 3.) Where there is no term or tenure fixed by the constitution or the statute, or where the office is to be held during the pleasure of the appointing power, the power of removal is discretionary and without control; but it is well settled that where an officer is chosen for a definite term, and provision is made for his removal for cause, the causes for removal must be alleged, the party notified, and a hearing had. (The State v. Mitchell, 50 Kan. 289, 33 P. 104; Jacques v. Little, 51 id. 300; Lease v. Freeborn, 52 id. 750.) Where the power of removal is definite, and the limits of its exercise prescribed, it must be exercised in the manner and upon the conditions provided by law. Where the statute gives power of removal for cause, without specifying the causes, the power is necessarily of a discretionary nature, and the removing authority is the exclusive judge of the cause and the sufficiency thereof; but where the statute specifies the causes for removal and prescribes the procedure, it would seem that removals could not be made for other causes nor in any other method than that prescribed by statute. In the present case the proceedings for investigation and removal were instituted by the governor, and the procedure authorized by chapter 239 of the Laws of 1889 appears to have been followed for the purpose of determining whether there was sufficient cause for a removal. The proceedings under that statute appear to be regular, and the report of the committee upon the charges made against the defendant shows sufficient cause for removal. The findings and report of that committee were made the basis of the action of the governor in removing the defendant from the office of warden.

It is first insisted that the judicial power of the state is vested in the courts, and not in the governor, and that therefore he had no right to try and determine the charges made against the defendant, nor to make an order or render a judgment which would operate to oust the defendant from his office. Although the power to hear and determine is of a judicial nature, it is such a power as is frequently conferred on executive and administrative officers. It does not follow that, because the governor or other functionary hears considers, and decides he performs a judicial function which belongs exclusively to a judicial officer or tribunal. We think the legislature has ample power to provide a summary method of suspending and removing incompetent and unfaithful officers, and that it may be accomplished without a judicial trial or judgment. The theory that a removal cannot be effected without a judicial trial and upon judgment of a judicial tribunal only prevails where it is regarded that the office is a hereditament or one in which the officer has a property or vested right which cannot be disturbed. Although this view is sanctioned by the common law, it is wholly inconsistent with our system of government. It has been said: "Officers are created for the administration of public affairs. When a person is inducted into an office he thereby becomes empowered to exercise its powers and to perform its duties, not for his, but for the public, benefit. It would be a misnomer and a perversion of terms to say that an incumbent owned an office or had any title to it." ( Donahue v. Will County, 100 Ill. 94.) The office is created for the public convenience, and the officer is the mere agent of the public, who, by virtue of his election or appointment, acquires the right to exercise the functions of the office and receive the prescribed compensation until the end of his term, or until such time as there may be a resignation or forfeiture of and removal from the office in the manner provided by law. In the absence of a constitutional limitation, the legislature has ample power to protect the public by providing a speedy and effective method for ridding the public service of officers who are incompetent, irresponsible, or dishonest, and to that end may prescribe the grounds which will operate as a forfeiture and provide what officer or tribunal shall determine the fact. The decided weight of authority is that, while the proceeding to remove from office for cause involves the examination of facts and the exercise of judgment and discretion by the executive officer, his action is not judicial in the sense that it belongs exclusively to the courts. (The State...