People ex rel. Clardy v. Balch

• Decision Date: 02 July 1934
• Docket Number: No. 40.,40.
• Citation: 268 Mich. 196,255 N.W. 762
• Parties: PEOPLE ex rel. CLARDY v. BALCH.
• Court: Michigan Supreme Court

268 Mich. 196

255 N.W. 762

PEOPLE ex rel. CLARDY

v.BALCH.

No. 40.

Supreme Court of Michigan.

July 2, 1934.

Original information in the nature of a quo warranto by the People of the State of Michigan, on the relation of Kit F. Clardy, against James B. Balch.

Dismissed.

Argued before the Entire Bench.

O. L. Smith, of Detroit, for relator.

Patrick H. O'Brien, Atty. Gen., Gerald K. O'Brien, Deputy Atty. Gen., and M. Thomas Ward, Asst. Atty. Gen., for respondent.

NELSON SHARPE, Chief Justice.

The Public Utilities Commission of this state consists of five members, appointed by the Governor. They hold office for the term of four years. Comp. Laws 1929, § 11006. On February 8, 1934, a petition, signed by three citizens, was presented to the Governor, William A. Comstock, in which three of the members of the commission, one of whom was Kit F. Clardy, the plaintiff in this proceeding, were charged with ‘gross, wilful and habitual neglect of duty’ and ‘malfeasance and misfeasance in office,’ and their removal prayed for. The Governor gave written notice that he would proceed with an examination of witnesses in relation thereto at his office on the 14th day of February, 1934, beginning at 10 o'clock in the forenoon of that day. A copy thereof was duly served on the three commissioners on February 9, 1934. It appears that the resignations of the other two commissioners were then in the hands of the Governor.

At the time set for the hearing, counsel for the plaintiff, appearing specially for him, filed motions to dismiss, which were denied. During their consideration, one of plaintiff's counsel stated that: ‘We would like the record to be positive and certain that we have appeared specially on each and every one of the motions, and objections and requests that we have heretofore made.’ And they took no further part in the proceedings. A number of witnesses were then sworn, and at the conclusion of the hearing on that day, the Governor, apparently being satisfied that the evidence was sufficient to justify the removal of plaintiff, asked his counsel if they desired a further hearing, and stated that, if they did not, plaintiff would be summarily removed, to which no positive reply was made. On convening the next morning, the Governor asked if plaintiff was represented, and, it appearing that he was not, the Governor announced that an order would be entered removing him from membership on the commission, and a written order to that effect was signed by him and filed with the secretary of state on that day. Soon thereafter, the Governor appointed James B. Balch, the defendant herein, a public utilities commissioner, and he duly qualified and took formal possession of the office on February 26, 1934. His appointment was confirmed by the state senate on the 8th day of March following. Thereupon the plaintiff petitioned this court for leave to file an information in the nature of a quo warranto to test the right of the defendant to hold such office. Such leave was granted and the information filed, to which the defendant has filed his answer.

The questions raised by the motions to dismiss which are discussed by counsel may be stated as follows:

1. Constitution precludes removal.

2. Notice insufficient and unreasonable.

3. Charges are all directed to the members of the commission, and not to plaintiff in his individual capacity.

4. Charges must state facts, not conclusions.

1. Article 9, § 7, of our Constitution reads as follows: ‘The governor shall have power and it shall be his duty, except at such time as the legislature may be in session, to examine into the condition and administration of any public office and the acts of any public officer, elective or appointive; to remove from office for gross neglect of duty or for corrupt conduct in office, or any other misfeasance or malfeasance therein, any elective or appointive state officer, except legislative or judicial, and report the causes of such removal to the legislature at its next session.’

Counsel for the plaintiff urges that the members of the commission are within the exception noted in this provision; that in the performance of their duties they are acting ‘in a legislative or a judicial or quasi judicial capacity.’ This claim is based upon a statement in the opinion in Rapid Railway Co. v. Utilities Commission, 225 Mich. 425, 428, 196 N. W. 518, 519, that, ‘It is an official board, and its orders certainly are of a quasi judicial nature.’

The term ‘quasi judicial’ is not found in any of our laws. When the power is conferred by statute upon a commission such as the Public Utilities, or a board such as the Department of Labor and Industry, to ascertain facts and make orders founded thereon, they are at times referred to as quasi judicial bodies, but their members are in no sense judicial officers within the meaning of that term as used in the exception in the constitutional provision. It clearly refers to the judicial officers provided for therein.

2. The act creating the Michigan Railroad Commission (Act No. 300, Pub. Acts 1909, Comp. Laws 1929, § 11018 et seq.) contained the following: Section 2(b). ‘The governor may at any time remove any commissioner for any neglect of duty or malfeasance in office. Before such removal, he shall give such commissioner & copy of the charges against him, and shall fix a time when he can be heard in his own defense, which shall not be less than ten (10) days thereafter.’

The act creating the Michigan Public Utilities Commission (Act No. 419, Pub. Acts 1919), in section 3 thereof (Comp. Laws 1929, § 11008), provides that: ‘All the rights, powers and duties now vested by law in said railroad commission shall be deemed to be transferred to and vested in said public utilities commission and shall be exercised and performed thereby, except as herein otherwise provided.’

We are not impressed that the word ‘rights' used therein was intended to refer to the ten days' notice in the Railroad Commission Act, as claimed by plaintiff. The ‘rights, powers and duties' vested in the Railroad Commission are such as can, and shall, be ‘exercised and performed’ by it.

The constitutional provision is self-executing. It requires no legislation to make it effective. Dullam v. Willason, 53 Mich. 392, 400, 19 N. W. 112,51 Am. Rep. 128. The grant of power to the Governor is coupled with the duty enjoined on him to examine into the acts of any public officer. When doing so, the officer must have a reasonable opportunity to make his defense.

Article 9, § 8, of the Constitution provides: ‘Any officer elected by a county, city, village, township or school district may be removed from office in such manner and for such cause as shall be prescribed by law.’

The distinction is apparent. In People ex rel. Johnson v. Coffey, 237 Mich. 591, 598, 213 N. W. 460, 462, 52 A. L. R. 1, this court said: ‘The provision of the Constitution, basic law made by the people themselves, constitutes the Governor the sole tribunal in such cases. No right of appeal or review is given. If he acts within the law his decision is final.’

The hearing was set by the Governor for February 14th. The notice thereof was served on the plaintiff on February 9th. Counsel claims that the time was insufficient in which to prepare his defense. Had he filed an answer to the petition, or requested additional time to do so, or at the conclusion of the hearing on the first day had he requested further time in which to make his defense, a different question would be presented. But, apparently relying upon the motions filed in his behalf, his counsel informed the Governor that they desired the record to show positively that they appeared specially and in support of the motions only. Under the record before us we cannot say that the time between the service of the notice and the day of hearing was so unreasonable as to oust the Governor of jurisdiction to hear the petition.

3. The charges set forth in the petition allege gross neglect of duty on the part of the members of the commission. Counsel urges that a charge upon which removal is predicated must be directed against the individual members and that: ‘Before such a charge can involve any individual member, it must be further alleged and proved that he has refused to take part in the necessary work involved in reaching an agreement as to the order of the commission to be issued.’

When considering applications for licenses or other matters in which authority to act is conferred upon the commission, the parties interested have no knowledge of the action of the individual members in relation thereto. The record discloses the action taken by it. Its failure to act is apparent and, in the absence of proof to the contrary, each of its members is chargeable therewith. On the hearing, the plaintiff might have testified or submitted proof that the neglect charged should not be attributed to him personally. The Governor had the right to assume that the plaintiff participated in all of its proceedings, as it...