State ex rel. Hilton v. Essling

• Decision Date: 26 October 1923
• Docket Number: No. 23794.,23794.
• Citation: 195 N.W. 539,157 Minn. 15
• Parties: STATE ex rel. HILTON, Atty. Gen., v. ESSLING.
• Court: Minnesota Supreme Court

157 Minn. 15

195 N.W. 539

STATE ex rel. HILTON, Atty. Gen.,

v.ESSLING.

No. 23794.

Supreme Court of Minnesota.

Oct. 26, 1923.

Quo warranto by the State on the relation of Clifford L. Hilton, Attorney General, against Victor E. Essling. Writ quashed.

Syllabus by the Court

Section 5724, Gen. St. 1913, empowers the governor to remove from office ‘any collector, receiver or custodian of public moneys' for malfeasance or nonfeasance in the performance of his official duties. The language quoted embraces officers who collect, receive or have the custody of money belonging to the state or to a county, but not those who have custody only of money belonging to a city. Stone, J., dissenting in part. C. L. Hilton, Atty. Gen., and Giblin & Manthey, of Eveleth, for relator.

J. C. McGilvery, of Eveleth, George H. Spear, of Duluth, and Boyle & Montague, of Virginia, for respondent.

LEES, C.

Upon the relation of the Attorney General this court issued its writ, directed to the respondent Essling requiring him to appear and show by what warrant he held and exercised the office of mayor of the city of Eveleth. The information alleged that the Governor had suspended the respondent from office during the pendency of proceedings for his removal upon charges of malfeasance and nonfeasance in the performance of his official duties. At the hearing the respondent appeared, and moved that the writ be quashed. One of the grounds of the motion was that the Governor had no jurisdiction of the subject-matter of the information or of the person or office of the respondent.

Section 1, article 13 of the state Constitution provides for the impeachment and removal of the state officers mentioned therein, and section 2 of the same article grants power to the Legislature to provide for the removal of inferior officers for malfeasance or nonfeasance in the performance of their official duties. By virtue of section 2 of the schedule all laws in force in the territory of Minnesota, not repugnant to the Constitution, remained in force until they expired by their own limitation, or were altered or repealed by the Legislature. Accordingly sections 4 and 5, chapter 10 of the territorial laws incorporated in the Revised Statutes of 1851, remained in force when Minnesota became a state. These sections read as follows:

‘Section 4. The Governor may remove from office, any sheriff, coroner, register of deeds, or district attorney, whenever it shall appear to him, by competent proof, that either of such officers have been guilty of official misconduct or neglect, or have wilfully violated the duties of their offices, giving to such officer a copy of the charges against him, and an opportunity to be heard in his defense.

‘Section 5. Any collector or receiver of public moneys, appointed by the Legislature, or by the Governor, by and with the advice and consent of the council, or of both branches of the Legislature, except those officers for whose removal provision is otherwise made by law, may be removed by the Governor, in case it shall appear to him, on sufficient proofs, that such collector, or receiver, has, in any particular, wilfully violated his duty.’

In the revision of 1866, these sections were amended and combined, and appear as section 3, chapter 9, reading as follows:

‘The Governor may remove from office any clerk of the Supreme or district court, judge of probate, court commissioner, sheriff, coroner, register of deeds, county attorney, or county commissioner, any collector or receiver of public moneys, appointed by the Legislature, or by the Governor, by and with the advice and consent of the Senate, or of both branches of the Legislature, whenever it appears to him by competent evidence that either of such officers have been guilty of malfeasance or nonfeasance in the performance of his official duties, first giving to such officer a copy of the charges against him, and an opportunity to be heard in his defense.’

By chapter 45, Laws of 1868, the word ‘auditor’ was added after the word ‘coroner,’ and, as thus amended, the section appeared without change in the General Statutes of 1878, as section 3, chapter 9.

Chapter 21, Laws of 1881, amended section 3 so as to read as follows:

‘The Governor may remove from office any clerk of the Supreme or district court, judge of probate, court commissioner, sheriff, coroner, auditor, register of deeds, county attorney, county superintendent of schools, or county commissioner, county treasurer or any collector, receiver or custodian of public moneys, whenever it appears to him, by competent evidence that either of such officers have been guilty of malfeasance or nonfeasance in the performance of his official duties, first giving to such officer a copy of the charges against him, and an opportunity to be heard in his defense.’

Chapter 21 was carried into the Revision of 1905 with a few verbal changes of no importance, and appears there as section 2668. Chapter 462, Laws of 1913, added to the list of officers judges of municipal courts and justices of the peace, and, with this amendment, the law appears in G. S. 1913, as section 5724. Section 58, G. S. 1913, empowers the Governor to appoint officers whose election is not otherwise provided for by law, and at his pleasure to remove appointees whose term of service is not by law prescribed, and declares that he shall exercise such powers of appointment, suspension, and removal in respect to other officers as are conferred on him by law.

Whether the motion should be granted or denied depends on the answer to this question: If the matters set forth in the information and writ should be established by competent evidence at the hearing before the Governor, would he have authority under section 5724 to remove respondent from office? The answer depends on the interpretation of the statute. If the language of section 5724 is plain and unambiguous, there is no room for construction, for a statute must be given effect according to its terms, if the meaning of the language is unmistakable. In their literal sense the words ‘any collector, receiver or custodian of public moneys' are comprehensive enough to include city, village, town, and school district officers who handle public funds. But it is not plain and certain that the Legislature used them in this sense. It is our duty to endeavor to ascertain the legislative intention as expressed in the language used, and to give it effect, for the statute is to be viewed in the light of such intention, and is not to be construed according to the letter. Dun. Dig. 8940, 8943. To ascertain the intention of the lawmakers, we may properly consider the history and evolution of the statute. As already stated, the words in question were introduced by the amendment of 1881. They were substituted for the words ‘any collector or receiver of public moneys appointed by the Legislature or by the Governor,’ etc., as the same had appeared in the statute since territorial days. The territorial statute was inherited from Wisconsin, and by Wisconsin from Michigan. See section 13, chapter 15, Rev. Stat. Mich. 1846, and section 7, chapter 11, Rev. Stat. Wis. 1849. Section 1, article 2, chapter 4, Rev. Stat. Minn. 1851, required the Governor to appoint a territorial treasurer by and with the advice and consent of the council. Manifestly section 5 of chapter 10 referred to that officer. After Minnesota was admitted to statehood, section 5 could have no application to the office of treasurer, for that officer was elected by the people, and could only be removed by impeachment. There may have been other officers appointed by the Governor who collected or received public moneys to whom the statute was applicable, as, for example the warden of the state prison. Section 51, chapter 120, Minn. Stat. 1878. Prior to 1881, it is clear that there was no grant of authority to the Governor to remove a municipal officer who collected or received municipal funds only. Both before and after that time, when the Legislature created a city or village by special act, it lodged the power to remove municipal officers with the city or village council. In view of this fact, can it be said that by the amendment of 1881 the Legislature intended to invest the Governor with concurrent power? If so, there are two methods of procedure, an...