State ex rel. Hamilton v. Grant

• Decision Date: 01 August 1905
• Citation: 14 Wyo. 41,81 P. 795
• Parties: STATE EX REL. HAMILTON v. GRANT, STATE AUDITOR
• Court: Wyoming Supreme Court

81 P. 795

14 Wyo. 41

STATE EX REL. HAMILTON v. GRANT, STATE AUDITOR

Supreme Court of Wyoming

August 1, 1905

Rehearing Denied 14 Wyo. 41 at 60.

ORIGINAL proceeding in mandamus.

Mandamus to compel the State Auditor to issue a warrant for the salary claimed by the relator, Octavius A. Hamilton, as Superintendent of Water Division No. 4. The relator had been removed by the Governor, and his successor appointed. Claiming that the removal was illegal, and that he continued to hold the office, the relator instituted this proceeding to determine his right to the salary alleged to be due.

Writ denied.

H. W Moore, for the plaintiff and relator.

Chapter 59, Laws 1905, providing for the removal of a certain class of state officers, is void as authorizing the removal without due process of law, there being no provision for notice and hearing. An act allowing an officer having a fixed term to be removed without an opportunity to be heard is a nullity. (Coleman v. Glenn, 103 Ga. 458; Dullam v Willson, 53 Mich. 392; Alderman, &c., v Darrow, 13 Colo. 460; Benson v. People, 10 Colo. App., 176; State ex rel. v. St. Louis, 90 Mo 19; Chase v. Hathaway, 14 Mass. 221; People ex rel. v. Brooklyn, 106 N.Y. 65; State v. Donovan, 89 Mo. 448; Andrews v. King, 77 Me. 231; Ham v. Board, 142 Mass. 90; Todd v. Dunlap, 99 Ky. 449; State ex rel. v. Sullivan, 58 Ohio St. 504; People ex rel. v. Com'rs., 103 N.Y. 370; People ex rel. v. McGuire, 27 A.D. 593; People v. Jewett, 6 Cal. 291; Collins v. Tracy, 36 Tex. 546; Lease v. Freeman, 52 Kan. 750; Jacques v. Little (Kan.), 33 P. 106; State v. Hewitt (S. D.), 52 N.W. 975; Carter v. Durange, 16 Colo. 534; State v. Smith (Neb.), 52 N.W. 700; Biggs v. McBride, 17 Ore. 640; Carson v. Harrison, 113 Ind. 434; 106 N.Y. 676; State ex rel. v. Hoglan, 64 Ohio St. 332.)

Under the constitution, a state officer can be removed only by impeachment. (Art. 3, Secs. 18 and 19; Nolan v. State ex rel., 118 Ala. 154; Brown v. Grover, 6 Bush., 1; Lowe v. Commonwealth, 3 Metc. (Ky.), 237; People ex rel. v. Harland, 17 A.D. 165; Ex parte Hogg, 36 Tex. 14; Bunnells v. State, Walker (Miss.), 146; State v. Wiltz, 11 La. Ann., 439.) The act in question violates the constitutional provision that no person shall be deprived of life, liberty or property without due process of law. (Art. 1, Sec. 6.) And also that provision which denies the existence of absolute power over the lives, liberty and property of freemen. (Art. 1, Sec. 7.) The superintendent of a water division is a state officer. (Const., Art. 8, Sec. 2; R. R. Co. v. Mayor, 1 Hilton (N. Y.), 562; People ex rel. v. Hurlbut, 9 Am. Rep., 103.)

The rule that an officer is not removable without notice and hearing applies even to an officer unknown to the common law, but created by statute; and mandamus may be resorted to for the restoration of one unlawfully removed from a public office. (High on Mandamus (3d Ed.), Secs. 68, 69, and cases cited; Pratt v. Com'rs., 15 Utah 1; Morton v. Broderick, 118 Cal. 474; Kipley v. Luthardt, 178 Ill. 525; Johnson v. Galveston, 11 Tex. App., 462; Hawke v. McAllister (Ariz.), 36 P. 170; State v. Callaham (N. D.), 61 N.W. 1025; Miles v. Stevenson, 80 Md. 358; Eastman v. Householder, 54 Kan. 63; Keough v. Board (Mass.), 31 N.E. 387; Delgado v. Chares (N. M.), 25 P. 948; Metsker v. Neally (Kan.), 21 P. 206; Ex parte Lusk, 82 Ala. 519; Comm. v. Gibbons, 196 Pa. St. 97; State ex rel. v. City, 107 La. 633; Sugden v. Partridge, 174 N.Y. 88; Thompson v. Troup, 74 Conn. 121; Schmulbach v. Speidel, 50 W.Va. 553; Akerman v. Board, 118 Ga. 334.) The relator alleges that he is occupying the office, thus presenting a stronger case than in the authorities cited, and entitles him to the warrant claimed. (As to who are de facto officers counsel cited 48 Mo. 214; 52 Mo. 508; 81 Mo. 14.)

W. E. Mullen, Attorney General, for the respondent.

Mandamus is not the proper remedy to afford the relief demanded. Rev. Stat. 1899, Sec. 4213, defines the proceeding by quo warranto, and that proceeding is the only one in which the contested right of one to hold an office may be determined. (Mechem Pub. Off., Secs. 217, 478; McCrary on Elections, Sec. 388; People ex rel. v. Gotting, 133 N.Y. 569; 17 Ency. Pl. & Pr., 407, 408, 410; State v. Lynn (Neb.), 48 N.W. 881; 2 Spelling on Ex. Rem., Sec. 1778; People ex rel. v. Infant Assy., 10 L. R. A., 381; State ex rel. v. Barker (Ia.), 57 L. R. A., 244.)

The authority of the Legislature is supreme, except as controlled by the limitations imposed by the organic law. (State ex rel. v. Henderson, 4 Wyo. 535.) And its authority over public officers is complete and absolute, subject to constitutional provisions or prohibitions. (Reals v. Smith, 8 Wyo. 170; Lee v. Board, 3 Wyo. 52.)

Section 18, Article 3, of the Constitution, prescribing the officers subject to impeachment, would seem by the use of the term "state officers" to refer to only those officers whose jurisdiction is general throughout the state, and who are heads of executive departments of the state government. (R. R. Co. v. Mayor, 1 Hilton (N. Y.), 562.) The jurisdiction of a superintendent of a water division is limited to his own division, and he is not the head of an executive department; but the State Engineer is the head of his department. He is not such an officer as is contemplated by Section 18. (State v. Hewitt, 3 S.D. 187; State v. Smith, 6 Wash., 496.) The reasons stated in writing by the Governor and filed with the Secretary of State constitute misconduct in office within the meaning of Section 19 of Article 3 of the Constitution. Misconduct, as the word is employed in that section, includes not only any wrongful official act, but also neglect, malfeasance, omission to perform any official duty, or conducting the office in a generally incompetent manner. Yoe v. Hoffman, 61 Kan. 265; State v. Stover, 113 Mo. 208; Miller v. Roby, 9 Neb. 471.)

A public office is not a contract, nor can it be regarded as the property of the incumbent. (Reals v. Smith, 8 Wyo. 159.) Notice to the officer and a hearing was not required, since the statute provided for none, and the Legislature had the power to pass such an act. (Williams v. Gloucester, 148 Mass. 256; People v. Carver, 5 Colo. App., 156; O'Dowd v. Boston, 149 Mass. 443; Conklin v. Cunningham, 7 N. M., 445; Trainor v. Board, 89 Mich. 162; Atty. Gen'l. v. Jochim, 99 Mich. 358; Trimble v. People, 19 Colo. 565; Peo v. Orr, 22 Colo. 142; State v. Burke, 8 Wash. 412.)

T. S. Taliaferro, as amicus curiae.

The constitution, while mentioning the office of Water Superintendent, leaves the appointment and provisions for the office entirely to the Legislature. (Sec. 4, Article VIII.)

"The power of the executive and judicial departments is a grant, not a limitation, while the powers of the legislative department are absolute, except as restricted and limited by the constitution which the people have adopted." (State v. Henderson, 4 Wyo. 535.) "What the people may do by an original and new constitution, the Legislature may do with reference to public officers, except as restricted by constitutional provisions." "In general subject to constitutional provisions or prohibitions, the authority of the Legislature over public offices is complete and absolute." (Reals v. Smith, 8 Wyo. 170, 171; Lee v. Board of Commissioners, 3 Wyo. 52.) The constitution, therefore, invests the Legislature with absolute control and regulation over the office of Water Superintendent. The Legislature fixed and may shorten or lengthen the term of office as they see fit, and there is certainly nothing in the constitution which prohibits them from providing for the removal of appointees who prove themselves unfit. (People v. Squires, 14 Cal. 13; Ex parte Wiley, 54 Ala. 226.)

Not only is there no limitation in the constitution upon the power of the Legislature to pass a law providing for the removal of public officers, such as Water Superintendent, but on the contrary the constitution especially provides for and authorizes such a law.

The words "Governor and other state and judicial officers" in Section 18 of Article 3 clearly include only those state officers of the same class and character as the Governor--that is, elective and not appointive state officers. The words "other state officers" include only officers ejusdem generis as the Governor, namely, those elective state officers enumerated in Section 11, Article IV, of the Constitution. (People v. Dolan, 5 Wyo. 253, and cases cited; State v. Clarke, 21 Nevada, 333; State v. Krueger, 134 Mo. 262.)

We refrain from quoting further authority, for the Supreme Courts of two states have already decided this question in construing identical provisions in their respective constitutions. (State v. Hewitt, 3 S.D. 187; State v. Smith, 6 Wash., 496.)

To give any other interpretation to Section 18 would not only render absolutely nugatory Section 19, but would also make meaningless the clause "unless sooner removed by law" in Section 4 (2d) of Article 6 of the Constitution. (Trimble v. People, 19 Colo. 187.)

This Section 4 (2d) of Article 6 containing the above clause has been held to include appointive state officers, such as Water Superintendent. (State v. Henderson, 4 Wyo. 535.) It is a well known rule of construction, announced by this court in reference to the constitution in Board of Commissioners v. Burns, 3 Wyo. 691, that, "The whole instrument must be examined with a view to arriving at the true intent of each part. Effect must be given, if possible, to the whole instrument and to every section and clause." Both reason and authority point to the same conclusion, that it was never intended to place any constitutional limitations upon the power of the Legislature to provide for the removal of appointive...