State ex rel. Clapp v. Peterson
| Decision Date | 22 June 1892 |
| Citation | 52 N.W. 655,50 Minn. 239 |
| Parties | State of Minnesota ex rel. Moses E. Clapp, Atty. Genl., v. Hans O. Peterson |
| Court | Minnesota Supreme Court |
May 27 1892, Argued
An application for reargument was denied July 15, 1892.
Information filed in this court April 16, 1892, by Moses E. Clapp Attorney General, praying that its writ issue to Hans O Peterson, commanding him to appear and show quo warranto he holds the office of County Treasurer of Hennepin County. On the order of the Chief Justice the writ issued returnable April 28, 1892, at the opening of court on that day. The information stated that the respondent Hans O. Peterson was duly elected County Treasurer for the term commencing January 5, 1891; that he accepted the office, and on March 21, 1892 the Public Examiner made report to the Governor that Peterson had not properly accounted for $ 1,278, received by him in June, 1891, from the City of Minneapolis, and that Peterson had received $ 515.35 interest on deposits of County funds in banks, which interest he had not accounted for as county funds. It further stated that the Governor thereupon suspended Peterson from his office by an order made March 26, 1892, and gave notice thereof to the County Auditor, and that the Auditor notified the County Commissioners and called a meeting of that Board to appoint a Treasurer ad interim; that they met and appointed T. J. Buxton, who accepted and gave bond and took the oath of office, and on April 4, 1891, demanded of Peterson possession of the office and of the public property in his custody; that Peterson refused to deliver over the office or property, but held, used, and usurped the office without right or warrant, and contrary to law.
The respondent appeared and demurred to the information, that it did not state facts sufficient to constitute a cause of action; that Laws 1881, ch. 108, contravenes the Constitution, and that the suspension was not made within this state. On his request the information was amended so as to state that the Governor was at Chicago, Ill., when the order of suspension was made by him.
Moses E. Clapp, Atty. Genl., and H. W. Childs, for relator.
It is immaterial where the Governor signed the order suspending Peterson from his office of County Treasurer. It was attested by the Secretary of State and sealed with the great seal of the State, and is not to be questioned by this court in this matter. Nowhere more than in the case at bar will the court feel inclined to observe the limitations of the respective jurisdictions of the three departments of government. It is always observant of the right of one of those departments, even in trivial affairs, to protect itself from the encroachments of the others, and it must be a plain case indeed where an act of the chief executive, done with due deliberation and solemnity, will be declared void by the court. Supplement, 135 Mass. 596; Appeal of Hartranft, 85 Pa. 433.
At a very early day, it was res judicata in the office of the Attorney General, that the temporary absence of the Governor, is not such a vacancy as would authorize the Lieutenant Governor to exercise the duties of Governor ad interim. Opinions Attorneys General, 41.
On its face the order appears to have been made at the capital of this State; and although it may have been in fact signed beyond the boundaries of the State, it cannot be possible that such fact will vitiate the signature, or the order of suspension. As the custodian of the chief executive power, it is for the Governor alone to say when or how he shall exercise that power. State v. Warmoth, 22 La. Ann. 3; Western Railroad Co. v. DeGraff, 27 Minn. 1; Rice v. Austin, 19 Minn. 103, (Gil. 74.)
When the Governor is absent from the State for a short time his commands are given by telegram, or through the mails or otherwise, to his confidential subordinates; and offices are filled, men are extradited, and all the important functions of that department are performed in his absence as though he were present. A document issuing from the executive chamber bearing the name of the Governor, must be everywhere received unchallenged and unquestioned. This is really an administrative question which the Governor determines for himself. He may err in judgment and labor under a misapprehension as to the scope of his official duty under the law, but the responsibility rests with himself alone. The law must leave the final decision upon every claim and every controversy somewhere, and when that decision has been made, it must be accepted as correct. The presumption is just as conclusive in favor of executive action, as in favor of judicial. Sutherland v. Governor, 29 Mich. 321.
The law of 1881, ch. 108, is not unconstitutional. Const. Art. 13, § 2; Dullam v. Willson, 53 Mich. 392; Page v. Hardin, 8 B. Mon. 672; Clay v. Stuart, 74 Mich. 411; State v. Doherty, 25 La. Ann. 119; Keenan v. Perry, 24 Texas, 260.
A similar question was really involved in the case of State v. State Board of Medical Examiners, 34 Minn. 387.
An office is not a contract, and the incumbent is not protected by the provisions of the Federal constitution against the impairment of the obligation of a contract. Donahue v. County of Will, 100 Ill. 94; Conner v. Mayor, etc., 5 N.Y. 285; Hyde v. State, 52 Miss. 673; Allen v. State, 32 Ark. 243; Mechem, Pub. Of. § 345; Commissioners of Hennepin Co. v. Jones, 18 Minn. 199, (Gil. 182.)
Power to remove carries with it the right to suspend. Shannon v. Portsmouth, 54 N.H. 183; Westberg v. City of Kansas, 64 Mo. 493; State v. Police Com'rs, 16 Mo.App. 50.
A judicial sentence is not essential to remove from office. State v. Prince, 45 Wis. 610; Ex parte Wiley, 54 Ala. 226; State v. Frazier, 48 Ga. 137; Patton v. Vaughan, 39 Ark. 211; State v. Hawkins, 44 Ohio St. 98; People v. Whitlock, 92 N.Y. 191.
Jas. W. Lawrence, Rea & Hubachek, and Kitchel, Cohen & Shaw, for respondent.
The Governor had not the power to execute the order of suspension outside the State. The only issue of law before the court on this branch of the case is, was the Governor while outside the limits of the State, clothed with authority to execute the order suspending the respondent from office? If it was not lawful for the Governor to execute the order outside the State, the order is invalid, and respondent is not bound to submit to it. He submits his contention to this court. His present right to exercise the functions of his office depends upon the decision of the question thus raised. The people created this court, clothed it with ample power, and imposed upon it the duty to decide this, and all like controversies. De Chastellux v. Fairchild, 15 Pa. 18; Appeal of Hartranft, 85 Pa. 433; Mayor of Baltimore v. State, 15 Md. 376; State v. Fidelity & Cas. Ins. Co., 39 Minn. 538.
No act authorizing the Governor to remove an elective officer can be constitutional. The power of removal is judicial in its nature, and can be exercised only by the judicial officers of the government. Page v. Hardin, 8 B. Mon. 672; State v. Pritchard, 36 N. J. Law, 101; Dullam v. Willson, 53 Mich. 392; People v. Stuart, 74 Mich. 411; Metevier v. Therrien, 80 Mich. 187; Honey v. Graham, 39 Texas, 1; Territory v. Ashenfelter, 4 N.M. 85.
The Constitution, Art. 13, § 2, does not authorize the Legislature to provide for the removal of a county treasurer except by a proceeding in the courts of the State. The constitutional authority given to the Legislature to provide for a removal does not carry with it the right to provide for the suspension of inferior officers. Gregory v. Mayor, etc., 113 N.Y. 416.
Assuming that the Legislature might confer upon the Governor the power to suspend and remove a county officer, Laws 1881, ch. 108, is unconstitutional. An examination of the Act shows the following memorable features: the treasurer is suspended before hearing, and before the formulation of any charges against him. § 1. No charges are reduced to writing or furnished to the treasurer until after the order of suspension has issued, and until after he notifies the Governor that he desires a hearing. § 3. Bardwell v. Collins, 44 Minn. 97; Feller v. Clark, 36 Minn. 338; In re Invest. Comn., 16 R. I. 751.
The respondent, by his demurrer to the information, assails the constitutionality of Laws 1881, ch. 108, providing for the suspension and removal of county treasurers, by the governor, for malfeasance or nonfeasance in office.
His contention is that the power of removal from office is judicial in its nature, and can be exercised only by the judicial tribunals of the state; and that, under the constitution, the legislature has no authority to provide for the removal of a county treasurer except by judicial proceedings in court.
Whether the power of removal from office for official misconduct is judicial in its nature is a question that has been much discussed, and upon which the courts in this country are not agreed. Some courts hold the affirmative, seeming to proceed upon the ground that an incumbent has a property in his office, of which he cannot be deprived without the judgment of a court, after due notice and a hearing. This view is, of course, in accordance with the doctrine of common law, which regarded an office as a hereditament. See State v. Pritchard, 36 N.J.L. 101; Dullam v. Willson, 53 Mich. 392, (19 N.W. 112.)
Other authorities hold that the power of removal from office is administrative, and not judicial. These proceed upon the theory that, under our system of government, public office is a public trust, and not private property; that the right to exercise it is not based upon any contract or grant, but that the office is conferred upon the incumbent as a public agent to be exercised for the...
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