State ex rel. Holmes v. Shannon
| Decision Date | 15 August 1895 |
| Citation | 64 N.W. 175,7 S.D. 319 |
| Court | South Dakota Supreme Court |
| Parties | STATE OF SOUTH DAKOTA ex rel. HOLMES, State’s Atty., Plaintiff, v. SHANNON, Defendant. |
SHANNON, Defendant. South Dakota Supreme Court Original action in the nature of quo warranto Denied Coe I. Crawford, Attorney General John A. Holmes, States’ Atty., Hughes County Horner & Stewart of counsel Attorneys for plaintiff. Aplin & Lynch C. S. Patmer and Robert Dollard, of counsel Attorneys for defendant. Opinion filed Aug. 15, 1895
This is an action by the state in the nature of quo warranto, brought in this court, to test the right and authority of defendant, Shannon. to hold the office of regent of education, the governor having theretofore issued and served upon him his executive order of removal from such office, by virtue of the power conferred upon him by Chapter 124, Laws 1887, being section 117 et seq., Comp. Laws, and known as the “Public Examiners’ Law.” Upon the commencement of the suit this court issued an order to show cause why defendant, Shannon, should not be restrained from acting as such regent pending the trial of the question of his right so to do. Upon the return and hearing of such order, defendant demurred to the complaint for insufficiency, thus bringing before the court the question of the power of the governor under such law to make such removal. Without further statement of the facts, but merely premising that the obvious importance and almost necessity of an immediate decision of the question involved preclude the preparation of a properly formulated opinion, we shall attempt little more than a statement, without elaborate argument or array of authorities, of the principal reasons which influence and control our conclusions.
The attorney general, as counsel for the state, adopts the argument and conclusion of Chief Justice Tripp in Territory v. Cox, a nisi prius decision published in the appendix to 6 Dak. 501. It would certainly be supererogatory for the writer of this opinion to say that no words of his would add to the high estimation in which the legal utterances of Judge Tripp are held by the bench, the bar, and the people of this state, but it is significant that the learned judge himself has “some doubt” as to the correctness of his view of the immediate question involved, and reaches and states his conclusion with “some hesitation.” He says: “That this power of removal is an executive one, and that it may properly be left with the executive officer of the territory, I have no doubt; but whether it was the intention of the legislature to authorize, and whether it has authorized, the use of such power by the executive, I have some doubt.” Again he says: “I am constrained, after much study and with some hesitation, to adopt the construction that the legislature intended to authorize the governor to exercise all and every of his executive power in enforcing this examiners act.” Entertaining this frankly confessed doubt as to what the legislature intended by this law, Judge Tripp very properly, we think, concluded that he ought to resolve the doubt in favor of the construction given to the law by the executive, and did so.
If the meaning of the law is ambiguous and its intent doubtful, we must resort to all legitimate means to ascertain what the legislature did intend, for when we find the intent we have found what the law is. In this country the rule is practically universal that every law has a title. By it the general scope and ultimate purpose of the law itself is indicated. So important is the title of a law that most state institutions require such title to embrace the subject of the law itself, and invalidate such portions of a law as are not so embraced in the title. In case the body of a law leaves its intent in doubt, its title may and should always be resorted to, as an aid in discovering what was in the legislative mind. Suth. St. Const. § 211. The law under consideration was passed in 1887. Its title is: “An act to create the office of public examiner, defining the duties and dividing the territory into two examiner’s districts.” We are not now questioning the validity of this law, because repugnant to the provisions of our subsequently adopted constitution, but are simply looking at the title, to ascertain, if possible, what kind of a law the legislature thought it was enacting. Would any member of the legislature or any constituent expect to find under this innocent title, general authority conferred upon the governor to remove, at his discretion and without notice, two-thirds of all the officers in the state, whether constitutional or statutory, elective or appointive? Here and elsewhere we speak of the legislature “conferring or bestowing power upon the executive” rather for facility than accuracy of expression. Such a bestowal of almost unlimited power upon the governor would be unusual, and an extraordinary event in legislation; and we think it not unreasonable to presume that, if the legislature intended to invest the governor with such power, it would have given the law itself a more suggestive title than that of a bill for the appointment of public examiners. The duties of the examiner are carefully defined in a half-dozen long and perspicuous sections. but these, it would seem are only preliminary to the incomparably more important power conferred upon the executive in a half-dozen well-sounding words. which Judge Tripp, as already seen, concedes to be of doubtful meaning and intent.
It is also a cardinal principal of statutory construction that to ascertain the meaning of a doubtful phrase or provision, other parts of the same law may and should be considered (Suth. St. Const. § 215), and that words and phrases repeatedly used in the same statute will bear the same meaning throughout, unless a different intention clearly appears (Id. § 255). The governor’s power of removal is found, if at all, in section 4 of the law. This section makes it the duty of the public examiner to order and enforce a correct and uniform system of bookkeeping by territorial and county treasurers and auditors; to expose false and erroneous systems among such officers, and to ascertain the character and financial standing of all present and proposed bondsmen of territorial and county officers; to examine the books, accounts and vouchers of such officers, as well as the character and amount of securities held by them on public accounts, and the character and amount of any commissions, percentages, or charges for services exacted by such officers without warrant of law. The result of such examination is to be reported to and filed with the governor, and then follow the words in which is found the governor’s power of removal. They are: “The governor may cause the results of such examinations to be published, or at his discretion to take such action for the public security as the exigency may demand.” Now, compare this section with section 5 of the same law. That section requires the public examiner annually to visit each of the banks, insurance companies, and moneyed corporations of his district, and thoroughly examine into their affairs and financial condition; to inspect and verify the validity and amount of their securities and assets; to inquire into any infringement of the laws governing such companies or institutions. He is to make a report of the results of such examinations to the governor, and then, as in section 4, “the governor may cause the same to be published, or in his discretion take such action as the exigencies of the case may seem to demand.” If these very words, when used in section 4, mean that the governor may deprive any such officer of his office, then what do the same words mean when used in this section 5? Can the governor, if he thinks “the exigencies of the case may demand it,” remove any or all of the officers of the bank or insurance company which is the subject of the examiner’s report, or may he annul its charter, or declare its franchise forfeited, or compel it, by his executive order, to cease doing business?
It would be impracticable here to enumerate the particular things he might do under this authority, but, in our judgment, they could only be such acts as related to the curing of irregularities in their methods of business, and enforcing upon such institutions and their officers an observance of the laws governing the same. In the exercise of such power the governor would have and might properly exercise a wide discretion, but if, in his judgment, “the exigencies of the case” demand the severe and extreme remedy of deprivation of official or corporate functions, we think, if well advised, he would report the same to the attorney general, or some state’s attorney, for such action as would judicially test the question of forfeiture for misconduct. To our mind, it is no answer to this suggestion to say that such a construction would add nothing to the power of the governor, for he could do this even if the law did not authorize him to take such action as the exigency of the case demanded, because it would be the general right of any citizen of the state to do it. Such argument, to be of any force, must be based upon the assumption that the primary design of this law was to increase the power and authority of the governor, when, to us at least, it seems plain that its purpose was entirely other and differ ent, and that the power conferred upon him is only subsidiary and incidental to aid in enforcing correct and legal business methods and practices in these institutions, for the protection and security of the public.
Returning to Section 4, we would give these words the same construction and legal effect. Here again it is claimed that these words are meaningless unless they confer the power to remove from office, and here again we say that every provision and line of the law declares its general purpose to hunt out and correct irregularities, bad and unsafe methods, and abuses in the...
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