State ex rel. Churchill v. Hay

• Decision Date: 18 June 1895
• Citation: 45 Neb. 321,63 N.W. 821
• Parties: STATE EX REL. CHURCHILL, ATTY. GEN., v. HAY ET AL.
• Court: Nebraska Supreme Court

45 Neb. 321

63 N.W. 821

STATE EX REL. CHURCHILL, ATTY. GEN.,

v.HAY ET AL.

Supreme Court of Nebraska.

June 18, 1895.

Syllabus by the Court.

1. A subsequent statute treating of a subject in general terms, and not expressly contradicting the more positive provisions of a prior special act, will not be construed as a repeal by implication of the latter, if any other reasonable construction can be adopted.

2. The provision of section 7, art. 7, c. 83, Comp. St., for the hearing by the board of public lands and buildings of charges against certain officers, is cumulative only, and was not intended as a repeal of the prior provision for the removal by the governor for cause of the superintendent of the hospital for the insane at Lincoln (Comp. St. c. 40, § 11).

3. The power conferred upon the governor to remove certain public officers for cause is an administrative, and not a judicial, function, and orders made in the exercise of that power are not reviewable by the courts.

4. The limit of judicial interference in such case is to protect public officers, removable for cause only, in their right to a hearing upon specific charges.

5. Certain findings examined, and held to sustain the order based thereon removing the respondent from the office of superintendent of the hospital for the insane at Lincoln.

Original proceeding in quo warranto on the relation of the attorney general against John T. Hay and others to determine the right to the office of superintendent of the hospital for the insane. Judgment of ouster.A. S. Churchill, Atty. Gen., in pro. per.

Webster, Rose & Fisherdick, for respondent.

Hay. C. Hollenbeck, J. W. C. Abbott, and M. B. Reese, for respondent Abbott.

POST, J.

This is an original proceeding in the nature of a quo warranto on the relation of the attorney general under the provisions of section 714 of the Civil Code, for the purpose of determining which of the respondents is entitled to the office of superintendent of the hospital for the insane at Lincoln. The questions we are called upon to decide are all presented by the pleadings of the respondents, hence further reference to the information will not be required in this opinion.

It appears from the pleadings that the respondent Hay, hereinafter referred to as Dr. Hay, was by Hon. Lorenzo Crounse, governor, appointed to the office in dispute, his appointment taking effect April 1, 1893. The authority for such appointment is found in section 10, c. 40, Comp. St., as follows: “The governor of the state, shall appoint a superintendent and may appoint two assistant physicians for the hospital of the insane, one of whom shall be a woman, who shall hold their offices for a term of six years, unless sooner removed as hereinafter provided.” It is by section 11 of said chapter further provided that, “The superintendent of said institution shall be a physician of acknowledged skill and ability in his profession, and a graduate of a regular medical college. He shall be the chief executive officer of the hospital and shall hold his office for the term of six years unless sooner removed by the governor for malfeasance in office or other good and sufficient cause.” On the 20th day of April, 1895, Hon. Silas A. Holcomb, governor, caused to be served upon the respondent above named the following notice:

“Lincoln, Nebr., April 20, 1895. To J. T. Hay, M. D., Hospital for the Insane, Lincoln, Nebr.--Sir: I beg to hereby notify you that information and complaints in the nature of charges have been presented to me affecting your management of the hospital for the insane at Lincoln, Nebr., over which you have heretofore had control as superintendent, specified as follows: First. That the management of said hospital while under your control has been extravagant, costing the taxpayers of the state a much greater sum of money than like institutions similarly situated in adjoining states. Second. That as superintendent of said hospital you have grossly neglected your duty in permitting and allowing your subordinates and employés to wantonly and cruelly assault, abuse, and maltreat the patients in said hospital for treatment. Third. That you have been negligent in your duties, in absenting yourself from said hospital while the assistant physician therein was also absent. Fourth. That you have been guilty of misconduct in office by attempting to influence your employés and subordinates from giving testimony in the courts of justice, and by attempting to induce them to withhold facts and thereby defeat the ends of justice when criminal proceedings were being tried in the courts involving certain persons in defrauding the state out of large sums of money. Fifth. That you have not properly or in a suitable manner treated the patients intrusted to your care for mental diseases with which they have been afflicted, but on the contrary you have grossly neglected to treat such patients, and have thereby greatly impaired the usefulness of said hospital as a place for the treatment of the insane. Sixth. That under your administration of said hospital patients therein have been frequently assaulted and abused in an unnecessary manner, and thereby bringing scandal and disgrace upon said institution. Seventh. That the management of said hospital by you as superintendent has been wasteful and extravagant, incompetent, and insufficient. You are required to appear at my office April 30th, A. D. 1895, at 2:00 p. m., and to show cause, if any you have, why you should not be removed from the said office of superintendent for said institution. Silas A. Holcomb, Governor.”

On appearing before the governor in response to the foregoing citation, Dr. Hay interposed certain objections to the proceeding, which will be hereafter noticed, and which having been overruled, a hearing was had, resulting in the following finding and order:

“State of Nebraska, Executive Office, Lincoln, May 18, 1895. J. T. Hay, Hospital for Insane, Lincoln, Neb.--Sir: I beg hereby to inform you of the conclusions reached by me in the matter of the investigation of the management of the Nebraska Hospital for the Insane at Lincoln during the period of your incumbency as superintendent. From the investigation made by me I find that during the management of the hospital for the insane by you the expenses of maintaining the patients have been greater than necessary, and that there has not been that degree of economy exercised which the taxpayers of the state have the right to expect from those employed in the public service. (2) Also that the attendants employed by you and under your control have wantonly and unnecessarily abused and maltreated patients in your charge, and that the patients have not been given that kindly care and treatment from those having them in charge which by reason of their unfortunate condition they should receive. (3) Also that the medical treatment of patients, especially in the violent ward, known as the ‘Third Ward,’ has not been modern, nor in accordance with what experience has demonstrated to be best for patients in hospitals for the insane, in this: The administration of sedatives and narcotic drugs by yourself, your assistants, and attendants had a harmful effect upon the patients committed to your care. ...