State ex inf. Barker v. Crandall
| Decision Date | 21 October 1916 |
| Citation | 190 S.W. 889,269 Mo. 44 |
| Parties | THE STATE ex inf. JOHN T. BARKER, Attorney-General, v. U. G. CRANDALL, Plaintiff in Error |
| Court | Missouri Supreme Court |
Error to Buchanan Circuit Court. -- Hon. Nat M. Shelton, Judge.
Affirmed.
Lucien J. Eastin, William Reiter and Vinton Pike for plaintiff in error.
(1) The title and term of office of the commissioner are provided by Sec. 8770, R. S. 1909. The term is three years. He receives a salary of $ 500 per annum. If not property in a precise sense it is a right that is protected against "the whimsical sport of chance, caprice or of intermeddlers, or of any form of illegal and unauthorized interference." State ex rel. v. Shepherd, 192 Mo. 509. (2) The office is vacated if the incumbent accepts any office of public trust or emolument, or receives, knowingly, a nomination to an elective office without declining it within twenty days after the nomination. And the commissioner may be removed for official misconduct upon the Governor's being fully satisfied that the commissioner charged is guilty of the alleged official misconduct. Sec. 8770, R. S. 1909. (3) The power of removal is conditional. There is the fixed and definite term, and the appointing power was without authority to remove but for the final clause of section 8770, and that power could be exercised only on the condition that the Governor was fully satisfied after notice to and hearing of the accused commissioner, upon charges made by others or preferred by himself specifying acts whereof the official misconduct consisted. Mechem, Public Officers, 455; Throop Public Officers, 364; Cooley, Const. Lim. (6 Ed.), 134; Baggs Case, 11 Coke, 99; High, Extra. Leg. Rem. (2 Ed.), 69; 1 Dillon, Mun. Corp. (4 Ed.), sec. 250 et seq.; 29 Cyc. 1409; 19 Am. & Eng. Ency. Law, 562f, 562g; State ex rel. v Maroney, 191 Mo. 531; State v. St. Louis, 90 Mo. 19; Edward v. Kirkwood, 162 Mo.App. 581; State ex rel. v. Holtcamp, 245 Mo. 670; State ex rel. v. Moorhead, 256 Mo. 690; State ex rel. v Walbridge, 119 Mo. 383; State ex rel. v. Pol. Com., 14 Mo.App. 32; State ex rel. v. Brown, 57 Mo.App. 204; Gracie v. St. Louis, 213 Mo. 395; Hallgren v. Campbell, 85 Mich. 285; Coleman v. Glenn, 103 Ga. 461; Dullum v. Willson, 53 Mich. 392; Ter'y v. Aschenfeller, 12 P. 897; Page v. Hardin, 8 B. Mon. 672; Lease v. Freeborn, 52 Kan. 750; Todd v. Dunlap, 99 Ky. 461; Jacques v. Little, 51 Kan. 300; Field v. Com., 32 Pa. 478; Briggs v. McBride, 5 L. R. A. (Ore.) 115; State ex rel. v. Hewitt, 16 L. R. A. (S. Dak.) 413; State ex rel. v. Smith, 16 L. R. A. (Neb.) 791. (4) The Governor has only such powers as are delegated to him by or in accordance with the Constitution. That instrument is a limitation upon the powers of the General Assembly, but is a grant of power to the other departments. Cooley, Const. Lim. (4 Ed.), 138, 139 and 77-8. (5) The supreme executive power is vested in the Governor (Art. 5, sec. 4), but it is not defined by the Constitution. Field v. People, 2 Scam. 80. His duties are to "take care that the laws are distributed and faithfully executed," and he is made a conservator of the peace. Id., sec. 6. If not otherwise provided by law, he shall fill vacancies temporarily (Id., sec. 11), and with like exception shall commission all officers. Id., sec. 23. The power to appoint or elect officers is primarily in the people, and consequently the Governor has only such power in that regard as is delegated to him. Riley v. State, 141 P. 264; In re Dec. of Judges, 69 A. 555.
John T. Barker, Attorney-General, and Kenneth C. Sears for defendant in error.
Under Sec. 8770, R. S. 1909, the Governor may remove a police commissioner without notice or trial when fully satisfied that such commissioner is or has been guilty of official misconduct. People v. Draper, 124 N.Y.S. 758; State ex rel. v. Burke, 8 Wash. 412; Hartell v. Boismenue, 229 Ill. 474; O'Dowd v. Boston, 149 Mass. 433; People ex rel. v. Whitlock, 92 N.Y. 191; State ex rel. v. Williams, 6 S.D. 119; Ayres v. Hatch, 175 Mass. 489; Shurtleff v. United States, 118 U.S. 311; State v. McGarry, 21 Wis. 502; People v. Welty, 75 Ill.App. 514; State ex rel. v. Grant, 14 Wyo. 41; State ex rel. v. Cheetham, 19 Wash. 330.
OPINION
In Banc.
I. On the day of August, 1916, the Lieutenant Governor, William R. Painter, being then vested with all the authority of the absent Governor, filed, in the office of the Secretary of State, an order removing U. G. Crandall from the office of Police Commissioner of the City of St. Joseph, setting forth in the order of removal, as his reason, that he was fully satisfied of the "official misconduct" of the deposed commissioner.
Prior to this amotion the Lieutenant Governor telegraphed the commissioner to resign and received no response. Upon the failure of the commissioner to yield his office, the Attorney-General filed an information in the nature of a quo warranto, praying for a judgment of ouster against him.
The circuit court awarded the judgment prayed, from which the defendants sued out a writ of error to this court.
II. The Board of Police Commissioners is a statutory body lying in the appointment and removal of the Governor upon statutory conditions and for statutory reasons. It is charged with the preservation of peace, prevention of crime, the protection of the rights of person and property and the preservation of the health of the inhabitants of the cities of the State and to these ends is given full control of municipal policemen. [R. S. 1909, secs. 8772, 8773, 8774, 8778, 8779.] The tenure of office of the appointees to the board and the authority of the Governor to remove them is contained in certain portions of the statute providing for their qualification, to-wit:
The only question presented by this writ of error is whether or not this statutory power of removal is one resting, to the extent given, in the discretion of the Governor, or is only exercisable after formal and specific charges, a trial thereof giving an opportunity for the hearing of witnesses and evidence, and a finding of the guilt or innocence of the accused. In brief, whether a police commissioner can be removed by the Governor with or without a trial, provided the Governor is fully satisfied in his own mind of the official misconduct of such officer.
It is of the very essence of the duties of the Governor of the State, as the personal representative and head of the executive department, to provide by fitting agents for the enforcement of its laws, the security of the persons of its citizens and the protection of their property. No greater responsibility could be imposed under a free form of government than is involved in the performance of these duties; for unless its laws are respected and obeyed and the property and rights of its people preserved and upheld by its chief executive with all the power given to him under its Constitution and laws, the ends for which the State was organized by the people would cease to exist. Realizing the high responsibility and the correlative duties imposed thereby, the Legislature put in the hands of the Governor the power to maintain peace, enforce the law, prevent crime and protect property by the appointment of boards of police commissioners, which are given power to create, control, regulate and remove the members of the police forces in the large cities of the State. The statute clothing the Governor with power to appoint this board of control, limits the tenure of office of its members (in the city of St. Joseph) to three years, "except" the Governor shall remove any such appointee upon being fully satisfied of his official misconduct. The Legislature in express terms gave the Governor full power and made it his duty, whenever he was fully satisfied of the "alleged official misconduct" of any police commissioner, to remove him instantly from office, irrespective of his otherwise possible term. The Legislature made a wholly different provision in dealing with the power of the police commissioners to remove members of the police force and permitted that to be exercised only "for cause after a hearing by the board." [R. S. 1909, sec. 8773.] The Legislature exhibited great wisdom in thus restricting the power of amotion given to the subordinate board and thereby guarding against abuse or misuse of its functions, as might happen if the entire body of the police were subject to arbitrary removal; and, on the other hand, in freeing the hand of the Governor from any other restraint in the management and direction of the board of commissioners appointed by him, than his own judgment of their official misconduct formed to "his full satisfaction" by any method sufficient to enlighten a chief executive anxious to discharge with promptness his duty of enforcing the law through the men appointed by him to direct and regulate the entire police force, whose duty it is to suppress disorder, prevent crime and arrest offenders against the law. The supervisory control of the police force lodged in the Governor in virtue of his power to appoint and remove the board which directs the police, has its root in the organic law charging him "to take care that the laws are . . . faithfully executed," which is the first duty imposed upon him as the chief of the executive department of the State. [Constitution, art. 5,...
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