State ex rel. Hitchcock v. Hewitt
| Decision Date | 13 July 1892 |
| Citation | 52 N.W. 875,3 S.D. 187 |
| Parties | State ex rel. Hitchcock v. Hewitt et al., Board of Regents of Education. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Where an officer is appointed for a definite term, subject to removal for specified causes, he can be so removed only after notice to him of the cause assigned, and an opportunity given him to defend.
2. A trustee of the state agricultural college appointed by the board of regents of education, as provided by section 4, art 14, of the constitution, is not a "state officer," within the meaning of section 3, art. 16, of the constitution, providing that "state officers" are liable to impeachment.
3. The constitution, section 4, art. 16, having specified the causes for which such trustee may be removed, section 5, c. 6, Laws 1890, authorizing the board of regents to remove trustees for "sufficient cause," must be understood to mean by "sufficient cause" one or more of the causes so enumerated in the constitutional provision referred to.
Original proceedings in mandamus on the relation of A. E. Hitchcock against Edward F. Hewitt and others, as members of the board of regents of education, to compel them to restore him to the office of trustee of the agricultural college. Peremptory writ granted.
A. E Hitchcock, for plaintiff. Robert Dollard, Atty. Gen., for defendant.
This is an original application to this court for a writ of mandamus the attorney general, in behalf of the state, resisting the application on the merits, but filing a written expression of his opinion that the questions involved are of such public interest, and their early settlement so important, that they should be entertained and determined by this court in the first instance. The affidavit of the relator recites the following facts as the foundation of his application for the writ: That in the month of March, 1891, at a regular and lawful meeting of the board of regents of education of the state of South Dakota, he then being eligible, relator was duly and legally appointed and elected a member of the board of trustees for the South Dakota Agricultural College located at Brookings, for the term of five years; that he immediately qualified, and entered upon the discharge of his duties as a member of said board, and has ever since so continued; that on or about the 7th day of January, 1892, at a regular meeting, the said board of regents passed and adopted a resolution and order summarily removing said relator from said office of trustee of said agricultural college; that relator was not notified in any manner that said board would take action upon any such resolution or order, nor that any charges or complaint had been made against his official conduct; that the first and only notice relator received that such action was contemplated, or would be or had been taken, was a written notice thereof, signed by the secretary of said board of regents, informing this relator that he had been "relieved from duty as a trustee of said agricultural college by dismissal by authority of law and for cause;" that said board of regents has ever since refused, and still refuses, to recognize this relator as a member of said board of trustees of the agricultural college, or to allow him to further perform the duties of said office; that there is no incumbent of the office from which this relator was thus removed, and this relator desires to continue and perform the duties of said office; and that there is no plain, speedy, and adequate remedy in the ordinary course of law. Upon this affidavit relator asks a writ ofmandamus requiring the said board of regents of education to restore him to the use and enjoyment of the office of trustee of said agricultural college. The attorney general, upon the part of the state, filed a demurrer to this affidavit, on the ground that it did not state facts constituting a cause of action, or which entitled relator to relief.
The plaintiff, or relator, contends that the resolution and action of the board of regents were unauthorized and illegal for at least two reasons: (1) Conceding the authority of the board of regents to determine whether cause for removal existed, and then to act upon such conclusion, it could not legally exercise the power of removal, ex parte, or without investigation, after notice to plaintiff, and (2) that the statute authorizing the board of regents to remove trustees is in conflict with the constitution, and is therefore void. Both the board of regents of education and the board of trustees for the several educational institutions are constitutional boards. Section 3, art. 14, of the constitution, provides that "the state university, the agricultural college, the normal schools, and all other educational institutions that may be sustained, in whole or in part, by the state, shall be under the control of a board of nine members, appointed by the governor and confirmed by the senate, to be designated the 'regents of education,"' etc. Section 4 provides that etc. Chapter 6 of the law of 1890 is supplementary to these constitutional provisions, and designed to carry them into execution. Section 5 of said chapter 6 provides: "Said board of regents shall have power to remove any or all of such trustees for sufficient cause." Section 8, in enumerating the powers and duties of said board of regents, gives them "full power at all times *** to inquire and examine into *** the official conduct of the trustees," etc. Section 11 authorizes such regents, or any one of them, "to administer oaths, and examine any person or persons in relation to any matters connected with the inquiries authorized by this act." The relator's alleged grievance is that the board of regents, assuming to act under these provisions of said chapter 6, determined upon, and, so far as they could do so, effected, his dismissal and removal from his said office of trustee, without any notice to him, or knowledge on his part that such action was contemplated, and without any opportunity given him to be heard in his defense. The attorney general concedes that the preponderance of authority is against the power to remove for cause an officer whose term of office is fixed by law, without notice to him and an opportunity to be heard, but suggests that this question was very thoroughly discussed by Chief Justice TRIPP in Territory v. Cox, published in appendix to 6 Dak. 501; and the conclusion reached by that learned judge was in favor of the power of removal without notice, unless the law authorizing removal required notice. Not being the judgment of the supreme bench, the opinion is not claimed to govern under the rule of stare decisis. We have examined the opinion with great interest, both because of the acknowledged ability of its author, and because we found it a very thorough and elaborate discussion of questions closely connected with the one now presented to us. In the Cox Case, however, the question was whether or not, under the statute involved, the governor had the power of removal. It was a question of power rather than of the manner of its exercise. The statement of facts does not show whether the removed trustees had previous notice, and opportunity to appear before the governor, or not, but it does affirmatively appear that such executive action was only taken after investigation. Besides, in the decision of that case much importance was attached to the phraseology of the law under which the governor acted in making the removal. By it he was authorized, "at his discretion, to take such action for the public security as the exigency may demand." So that whatever authority was conferred was to be exercised at his discretion, and the case did not present the same question in this respect as would have been presented if such removal were only authorized to be made for cause shown. At all events, the controlling question in this case was not even an important question in that, if, indeed, a question at all.
We do not think it necessary, or even important, upon the first branch of this case, to discuss the abstract question whether, under statutes like this, the power of removal, or the proceedings by which its accomplishment is reached, are more distinctly judicial or executive. Such provisions have been a part of the statute law of England and of the American states for a century, and we shall at present confine our effort to ascertaining, if possible, how such provisions have usually been construed with respect to the exercise of the power of removal summarily, and without notice to the officer proceeded against, and, if we find that any particular construction or meaning has with great uniformity been given to such statutes, it will be entirely fair and reasonable to conclude that our own legislature enacted this law intending and expecting that it would and ought to be so construed. The history of judicial proceedings in England affords numerous examples of the attempted exercise of this power of removal in an ex parte manner. The Ramshay Case, 18 Q. B. 173, was one in which the lord chancellor undertook to summarily remove a judge of a county court under a statute authorizing him to make such removal for inability or misbehavior. The court, by Lord CAMPBELL, C. J., said: "The chancellor has authority to remove a judge of a county court only on the implied condition, prescribed by the principles of eternal justice, that he hears the party accused." The case of Queen v. Archbishop of Canterbury, 1 El. & El. 545 arose under an act of parliament providing that a curate...
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