Rogers v. Morrill

• Decision Date: 09 November 1895
• Citation: 42 P. 355,55 Kan. 737
• Parties: WILLIAM ROGERS v. E. N. MORRILL, as Governor of the State of Kansas.--SAME v. O. L. MOORE
• Court: Kansas Supreme Court

42 P. 355

55 Kan. 737

WILLIAM ROGERS v. E. N. MORRILL, as Governor of the State of Kansas.--SAME v. O. L. MOORE

Supreme Court of Kansas

November 9, 1895

Original Proceeding in Mandamus.

MANDAMUS by William Rogers against E. N. Morrill; and quo warranto by William Rogers against O. L. Moore. Judgments for the defendants respectively.

The statement of the cases, made by MARTIN, C. J., is as follows:

These cases were heard together, and both involve the title of William Rogers to the office of regent of the state university. The action of mandamus was commenced June 6 1895, for the purpose of compelling E. N. Morrill, as governor, to set aside and hold for naught his order of May 22, 1895, removing Mr. Rogers from the office of regent. The second action was quo warranto, brought June 21, 1895, the petition being substantially the same as the alternative writ in the former case, with the additional allegation that O. L Moore had been appointed in his place as regent by the governor on or about May 22, 1895, and asking that said O. L Moore be required to show by what right and authority he held said office. A motion was filed to quash the alternative writ of mandamus, and a general demurrer was interposed to the petition in quo warranto.

The proceedings resulting in the order of removal were under chapter 239, Laws of 1889, entitled, "An act providing for the appointment of committees to investigate the affairs of state institutions and conduct of officers." This act authorizes the governor, lieu-tenant-governor, and speaker of the house of representatives, on charges filed with the governor, "whereby the management or administration of the affairs of any charitable, educational, or penal institution, or the official conduct of any officer in charge of or otherwise connected with any of said institutions, shall be called into question upon the grounds of corruption, venality, inefficiency, misconduct, immorality, or inattention to duties," to appoint a committee, consisting of two senators and three representatives, to investigate and report upon the charges, after notice to the accused officer; and upon filing their report, including the testimony, with the governor, with such recommendation as they may deem just and appropriate, the governor is empowered to dismiss from the public service or reinstate the officer, according to the finding and report of the committee. Charges were filed against Mr. Rogers, as regent, on March 22, 1895, embracing specifications, among others, of being guilty of drunkenness, and frequently under the influence of intoxicating liquors, using the same to excess, and that his conduct and example were detrimental to the best interests of the university, and very injurious to its welfare. A committee, consisting of K. E. Willcockson and A. S. Cooke, senators, and Alexander Warner, I. E. Lambert and J. F. Pancake, representatives, was appointed to investigate and report upon said charges, which they proceeded to do. Mr. Rogers appeared by his counsel, the late Hon. Solon O. Thacher, and filed a paper in the nature of a demurrer or challenge to the jurisdiction of the court, the points made being as follows, viz.:

"1. Chapter 239, Laws of 1889, by virtue of which this committee is appointed, only applies to the 'official conduct' of this respondent as regent of the state university, and all inquiries touching his life or character, his acts or words not in any manner connected with, or used, or employed or committed in the discharge of his duty as such regent, is not a subject of inquiry by any one.

"2. The charges before this honorable committee in no way assail or impugn a single official act of this respondent as regent, but each and every one of them relate to matters entirely disconnected with his conduct as regent. Not one of the charges is averred to touch any official act of this respondent, or to have been in the remotest manner done in the course of the discharge of his 'official duty.'

"3. This respondent is not charged with either 'corruption, venality, inefficiency, misconduct, immorality, or inattention to duties in his official conduct;' the only subject of inquiry of this committee, as pointed out by the second section of said chapter 239, being the 'official conduct' of this respondent. And this respondent protests that his position or office as regent aforesaid cannot be questioned on any other or different ground than that named in the statute; that for any act or word or thought not connected with the discharge of his 'official duty' as regent, he is not amenable to the provisions of said chapter 239."

Said challenge, in the nature of a demurrer, was overruled by the committee. On the completion of the investigation and on May 18, 1895, K. E. Willcockson, Alexander Warner, and I. E. Lambert, being a majority of the committee, made their report, the substantial part of which reads as follows:

"We find from the testimony (which is transmitted with this report) that the said William Rogers is and has been, since the commencement of his term of office as a member of the board of regents of the University of Kansas, addicted to the excessive use of intoxicating liquors.

"We further find that his conduct and the example he sets are detrimental to the best interests of the state university, and we recommend that he be removed."

The minority filed a report more favorable to Mr. Rogers. The governor, following the recommendation made in the majority report, removed Mr. Rogers, as regent, May 22, 1895, and then appointed said O. L. Moore in his place and stead.

Motion quash the alternative writ.

S. O. Thacher, and W. C. Webb, for plaintiff.

F. B. Dawes, attorney general, for defendants.

MARTIN C. J. JOHNSTON, J., concurring.

OPINION

MARTIN, C. J.:

I. It is contended that all that part of chapter 239, Laws of 1889, which purports to authorize the removal of an officer is in contravention of the first clause of § 16 of article 2 of the constitution, which reads: "No bill shall contain more than one subject, which shall be clearly expressed in its title." It is said that the title of this act authorizes only the appointment of committees of investigation of the affairs of state institutions and the conduct of officers, and does not include the power of removal. It will be observed from the statement of facts that this objection was not made before the investigating committee, but it is not too late to raise it now. We had before us the question of the sufficiency of the title of this act to justify removal in Lynch v. Chase, ante, p. 367, (40 P. 666, 668,) but did not find it necessary to decide it, because there was another statute under which the governor might act in removing a warden of the penitentiary. Mr. Justice JOHNSTON, delivering the unanimous opinion of the court, said:

"It has been repeatedly held that § 16 of article 2 of the constitution is not to be enforced in any narrow or technical spirit, but that a liberal interpretation should be placed upon the language employed in the title to express the subject of the act. The provision, as has been held, must be applied in a fair and reasonable way, so that it will not embarrass or defeat the proper and legitimate exercise of the legislative functions. It is not necessary that the title should be an abstract of the entire act, but it is deemed to be sufficient if the title fairly indicates, though in general terms, its scope and purposes. Everything connected with the main purpose and reasonably adapted to secure the objects indicated by the title may be embraced in the act without violating the constitutional inhibition. The title in the present case, although somewhat restricted, provides for the creation of a tribunal to inquire into the affairs of state institutions and the conduct of officers. It clearly indicates that an investigation or hearing is to be had before this tribunal, and anything reasonably adapted to carry out that purpose may be fairly regarded an embraced within the title. Whether the title is sufficiently broad to justify a removal by the governor upon the coming in of the report of the committee is unnecessary to the disposition of the present case."

It was there held that the title was broad enough to include the authority of the committee to report to the governor, and we think it not unreasonable to say that it may also fairly include the right of the governor to act upon the report, and that a member of the legislature would not be deceived or misled by this title into the supposition that no legislation would be attempted under it looking to a report of the committee and making such report effectual, either by the action of the governor or otherwise. The main purpose of this clause of the constitution was to prevent surreptitious legislation, and we do not think that a provision of this nature for making the report of the committee effectual can truly be said to partake of such character. It is well settled that it is the duty of the courts to uphold legislation when they can do so without manifest violence to any constitutional principle, and that doubts should be resolved in favor of its validity, rather than against it; and by a liberal interpretation this legislation as to the power of removal may properly be said to be embraced within the title of the act.

II. The findings of the committee are included within the charge though they are not so broad; lint it is contended by counsel for the plaintiff that the report does not show official misconduct. It appears therefrom that the plaintiff is, and has been since the commencement of his term of office as regent, addicted to the excessive use of intoxicating liquors, and that his conduct and example are detrimental...