State ex rel. Douglas v. Megaarden
| Citation | 88 N.W. 412,85 Minn. 41 |
| Decision Date | 16 December 1901 |
| Docket Number | 12,897 - (214) |
| Parties | STATE ex rel. WALLACE B. DOUGLAS v. PHILIP T. MEGAARDEN |
| Court | Supreme Court of Minnesota (US) |
Writ of quo warranto issued from the supreme court on the relation of the Attorney General, directed to Philip T. Megaarden commanding him to show by what warrant he held and exercised the office of sheriff of Hennepin county. Writ of ouster granted.
Removal of Sheriff from Office.
The governor has authority to remove a sheriff from office whenever it appears to him, by competent evidence, that * * * such officer has been guilty of malfeasance or nonfeasance in the performance of his official duties, upon proceedings provided for in G.S. 1894, §§ 893-903.
Suspension from Office.
In the enactments referred to no provision is to be found authorizing the suspension of a sheriff pending proceedings for his removal, but that power impliedly exists as incidental to the executive authority to remove, and may be exercised by the governor in a proper case.
Power to Suspend.
The power to suspend an officer during investigation under the statutory provisions referred to is not arbitrary, but involves the exercise of discretion and good judgment by the governor, to be exercised when reasonable grounds shall indicate a necessity therefor.
W. B Douglas, Attorney General, W. J. Donahower, Assistant Attorney General, F. H. Boardman and C. L. Smith, for relator.
John A. Steele and A. Y. Merrill, for respondent.
Quo warranto upon the information of the attorney general in behalf of the state against Philip T. Megaarden, sheriff of Hennepin county, to oust him from the possession of that office during proceedings before the governor for his removal.
Respondent demurred to the information, which issue presents two questions: (1) Are the allegations of the information sufficient to show that the executive was authorized to order an investigation for the removal of the sheriff? (2) Did the order for such investigation authorize the governor to suspend the sheriff during the course of the procedure for his removal?
1. The information alleges that respondent was elected sheriff of Hennepin county at the general election of 1900; that he qualified and entered upon the office in January, 1901; that the public examiner subsequently made an examination into his official affairs for the years 1899, 1900, and 1901; that on November 25, 1901, the examiner reported to the governor that the sheriff had made improper charges against the county in excess of legal right, and had collected the same on verified claims presented to the board of county commissioners. The examiner instituted a charge, based upon his inquiry, to the effect that the sheriff was guilty of all the acts, matters, and things set out and specified in such report. The governor, on November 30, following, caused a notice to be served upon the sheriff, which is made a part of the information, and appointed three commissioners to hear evidence and report within a time fixed therein for the purpose of determining whether the sheriff should be removed from office.
It is claimed that by the statements in the report of the public examiner it does not appear that the alleged acts of malfeasance occurred during respondent's present term of office. This claim rests upon the conceded fact that there is no positive averment in the information that Megaarden was sheriff previous to January 1, 1901. It is only necessary to say with reference to this claim that the office of sheriff has long been deemed in this country so important that such officer will be recognized in all the courts of his state, and his appointment or retirement from office need not be proved. Hence this court will take judicial notice that respondent was holding such office, as the fact was, for the term previous to 1901. 1 Jones, Ev. § 109, and cases cited.
It was further insisted for respondent that a county officer cannot be investigated in removal proceedings for acts of misconduct committed previous to the term when he is holding office. We cannot hold this contention well taken in this case. Many charges by the public examiner relating to the term previous to the sheriff's incumbency, set forth in the information, are of the same nature as one specific act occurring during his present term, and it is further stated therein that large sums of money illegally collected during the previous years are still retained by him. We have no doubt that the presentation of unfounded claims for services by a sheriff to the county board for allowance which had been collected during a previous term and retained into a succeeding one, particularly if such course of malversation had been knowingly and wilfully continued for a considerable period, as alleged in this information, would amount to official misconduct which would justify his removal from office. While we ought not to hold that the strict rules which apply to pleadings in courts of justice must prevail in removal proceedings before the governor, enough should undoubtedly be made to appear to show that the officer to be investigated has been guilty of malfeasance or nonfeasance in the performance of his official duties. Without entering into details, we are satisfied from the facts set forth, the complaint of the public examiner, including the facts in his report, was sufficient to authorize the action of the executive in ordering an investigation.
2. The governor acted upon the complaint of the examiner, appointed a commission as provided in G.S. 1894, § 894, and fixed a time for the return of their report. He also made an order suspending the sheriff during the proceedings for removal, of which due notice was given, but respondent has ever since continued in possession of the office in defiance of the order of suspension. Whether he was right or wrong in this respect is the important question before us, involving the power of the governor to make the order of suspension.
No doubt such power is conferred where the proceedings are to remove a county treasurer. It is explicitly given by statute. Laws 1881, c. 108; G.S. 1894, § 904, et seq. Can it be exercised in the case of a sheriff? The answer to this question disposes of this controversy.
It was urged in behalf of the state that under Laws 1878, c. 83, § 3 (G.S. 1894, § 412) the power was conferred upon the governor to suspend a county officer upon the report of facts by the public examiner justifying that course. A careful examination of this statute has not satisfied the court that such power is authorized therein. While it may have been thought sufficient to vest that authority in the executive, such purpose is so obscurely expressed that we prefer not to rest our conclusions upon its provisions. The importance of protecting the interests of the state in this respect will undoubtedly receive the attention it deserves from the commission for revision and the next legislature. If such power was intended in that law to apply to sheriffs, it should have been clearly expressed, and not left open to doubt.
Provisions for the removal of county officers other than treasurers are to be found in G.S. 1894, c. 9, which, excluding therefrom the provisions for the suspension and removal of county treasurers, is the...
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