State ex rel. Hastings v. Smith

• Decision Date: 11 June 1892
• Citation: 52 N.W. 700,35 Neb. 13
• Parties: STATE EX REL. HASTINGS, ATTY. GEN., v. SMITH.
• Court: Nebraska Supreme Court

35 Neb. 13

52 N.W. 700

STATE EX REL. HASTINGS, ATTY. GEN.,

v.SMITH.

Supreme Court of Nebraska.

June 11, 1892.

Syllabus by the Court.

1. The act approved April 9, 1891, by which section 145, c. 12, Comp. St. 1889, (charter of the city of Omaha,) was so amended as to provide for the appointment as fire and police commissioners of said city of members of the three parties casting the largest vote at the last election, does not take effect until the expiration of the terms of office of the two commissioners who were appointed May, 1889.

2. The general provision in section 172 of the charter of the city of Omaha for the removal of officers of the city by the district court does not apply to members of the board of fire and police commissioners.

3. The provision of section 12, art. 5, of the constitution, empowering the governor to remove all officers appointed by him, applies only to officers mentioned in the constitution.

4. Where by law there is no fixed term of office, and the incumbent holds during the pleasure of the appointing power, the power of removal is discretionary, and may be exercised without notice or hearing.

5. Where the incumbent is elected or appointed for a definite term, and is removable only for specified cause, the power of removal cannot be exercised until there has been preferred against him specific charges, of which he shall have notice, and an opportunity afforded him to be heard in his defense.

6. By the charter of the city of Omaha the governor is authorized to remove members of the board of fire and police commissioners only for the cause therein named, viz., official misconduct, and upon charges specifying the particular act or acts to be proved, and an opportunity to be heard in their own defense.

7. The question whether the power to remove is judicial, in the sense that the officers named are entitled to have the question of cause therefore heard by the courts, and, if not, whether the action of the executive can be reviewed by the courts, is not raised in this case, and is not determined.

Original proceeding in mandamus by George H. Hastings, attorney general, against Howard B. Smith, for the purpose of testing his title to the office of member of the board of fire and police commissioners of the city of Omaha. On demurrer to defendant's answer. Demurrer overruled.

Geo. H. Hastings, Atty. Gen., V. O. Strickler, J. W. Edgerton, and Chas. Ogden, for relator, cited, as to the power of the legislature to abolish offices: People v. McMinn, 5 Cal. 357;Davis v. State, 7 Md. 151;People v. Banvard, 27 Cal. 470;Taft v. Adams, 3 Gray, 126;People v. Auditor of Public Accounts, 1 Scam. 537; Conner v. Mayor, etc., 2 Sandf. 355; Oregon v. Pyle, 1 Or. 149;Coffin v. State, 7 Ind. 157;Walker v. Peelle, 18 Ind. 264;Benford v. Gibson, 15 Ala. 521;Bryan v. Cattell, 15 Iowa, 538.

Lake, Hamilton & Maxwell, for respondent.

POST, J.

This is an original proceeding by the attorney general against the respondent for the purpose of testing the title of the latter to the office of member of the board of fire and police commissioners of the city of Omaha. The material part of the petition is as follows: “That on or about the 2d day of May, 1890, Howard B. Smith, respondent herein, was appointed by the Hon. John M. Thayer, who was at that time governor of the state of Nebraska, as a member of the board of fire and police commissioners of the city of Omaha, and thereupon entered into said office, and continued to occupy said office, and to exercise the duties thereof, until the 23d day of February, 1892. On the said 23d of February, 1892, the Hon. James E. Boyd, who was then and is now the governor of the state of Nebraska, by virtue of the authority vested in him by the constitution and laws of the state of Nebraska, removed the respondent for cause from said office of fire and police commissioner of the city of Omaha. That on the 23d day of February, 1892, D. Clem Deaver was duly appointed and commissioned by the Hon. James E. Boyd, governor as aforesaid, a member of the board of fire and police commissioners of the city of Omaha, to succeed Howard B. Smith, respondent. That he accepted said appointment, and immediately took the oath of office, and filed with the city clerk of the city of Omaha a good and sufficient bond, as required by law, and claims the right to exercise the duties and to enjoy the privileges of said office. Notwithstanding the appointment of said D. Clem Deaver to said office, said Howard B. Smith, respondent, did on the 23d day of February, 1892, and has continuously since that time, without any legal warrant, claim, or right, used and exercised, and still does unlawfully use and exercise, the office of fire and police commissioner in the city of Omaha, in place of said Deaver, and claims to be a member of said board of fire and police commissioners in place of Deaver, and to have, use, or employ all the rights, privileges, and franchises of said office, to the damage and prejudice to the rights of said city of Omaha, and also against the peace of the state of Nebraska. That the said Deaver is a member of the Independent party, one of the three political parties casting the highest number of votes at the municipal election held in the city of Omaha in December, 1890. That prior to the appointment of said Deaver, on the 23d day of February, 1892, as aforesaid, no member of the Independent party had been appointed as a member of the board of fire and police commissioners of the city of Omaha, as required by law, and that said Deaver is the only member of said board appointed who belongs to said party. Said relator, therefore, prays judgment that the respondent be declared not entitled to said office, and that he be ousted therefrom, and that D. Clem Deaver be declared entitled to said office, and installed therein, to assume the execution of the duties thereof.”

The answer, omitting formal and immaterial parts, is as follows: “That in the month of May, 1887, the Hon. John M. Thayer, governor of the state of Nebraska, appointed Christian Hartman, George I. Gilbert, L. M. Bennet, and this respondent fire and police commissioners of the city of Omaha. That said Hartman and Gilbert were reputed to be and were members of one political party, to wit, of the Democratic party, and said Bennet and Smith of a different political party, to wit, of the Republican party. That said Hartman and Bennet were appointed to serve for the term of four years. That said Gilbert and this respondent were appointed to serve for the term of two years. That all of said appointees duly qualified and entered upon the discharge of their duties as such commissioners, and continued in the discharge of their duties until the month of May, 1889. That in said month of May, 1889, George I. Gilbert and this respondent were reappointed and duly commissioned by the Hon. John M. Thayer, governor of the state of Nebraska, to serve for a term of four years thereafter. That said Gilbert and this respondent duly qualified and entered upon the discharge of their duties as fire and police commissioners of the city of Omaha, and have continued in the discharge of said duties down to the present time. That respondent's term of office does not expire until May 16, 1893. That in the month of May, 1891, the Hon. John M. Thayer, governor of the state of Nebraska, reappointed and commissioned Christian Hartman as fire and police commissioner of the city of Omaha for a term of four years, and appointed and commissioned Wm. Coburn, a member of the Republican party, for the term of four years, to succeed L. M. Bennet. That said Hartman and Coburn duly qualified and entered upon the discharge of their duties as fire and police commissioners of the city of Omaha, and have continued in the discharge thereof since said time. That on the 23d day of February, 1892, the Hon. James E. Boyd, governor as aforesaid, without authority of law, and without cause therefor, assumed to remove this respondent from his said office of fire and police commissioner of the city of Omaha. That on and before said day there were no charges of any name or nature, or of any description, against this respondent filed in the office of the governor of the state of Nebraska, or in the office of any other officer of the state of Nebraska, or of the city of Omaha. That notwithstanding the absence of any cause for such action, and notwithstanding the provisions of the constitution and statutes of Nebraska, said Boyd, on said 23d day of February, 1892, without any notice given his respondent, and without giving this respondent any opportunity to be heard, wrote this respondent the following letter: ‘State of Nebraska, Executive Department. Lincoln, February 23, 1892. Howard B. Smith, Esq., Omaha, Nebr.--Dear Sir: In accordance with the constitution and laws of the state of Nebraska, you are hereby notified that I have this day removed you, for cause, from the office of fire and police commissioner for the city of Omaha, and have declared said office vacant. Yours, truly, JAMES E. BOYD, Governor,’--and then and thereby assumed to remove this respondent arbitrarily from his said office. That letters of like import were also sent to said Gilbert and Hartman and Coburn. That thereupon said Boyd assumed, without authority of law, to reappoint, on the 23d day of February, 1892, said Coburn to succeed himself, and to appoint one George W. Shields to succeed said George I. Gilbert, and to appoint one C. V. Gallagher to succeed Christian Hartman, and to appoint D. Clem Deaver to succeed this respondent.”

To this answer a general demurrer has been filed by the state, thus presenting the real question involved, viz., the power of the governor, under the charter of the city of Omaha, to remove members of the board of fire and police commissioners for cause other than official misconduct, or for the cause named, without charges and an opportunity to be heard in their own...