State ex rel. Kositzky v. Prater

Decision Date08 July 1922
Citation189 N.W. 334,48 N.D. 1240
PartiesSTATE ex rel. KOSITZKY v. PRATER.
CourtNorth Dakota Supreme Court


Syllabus by the Court.

Where, concerning the office of the Commissioner of University and School Lands, the statute provided that the Commissioner's term of office should be for two years and should be at all times subject to the immediate control of the board who appointed him, and where in the revision and codification of the law in 1895 the statute was changed so as to provide for the Commissioner a term of two years subject to removal by the board, and where upon an investigation of the legislative history of the act no legislative intent is disclosed to change the law or the legislative policy, it is held:

(1) The general presumption obtains that the codifiers did not intend to change the law as it formerly existed.

(2) Changes made in the revision of the statute by alteration of the phraseology will not be regarded as altering the law unless there is a clear intent shown so to do.

(3) In ascertaining the legislative intent reference may be had to the prior statute.

(4) The statute, now sections 285 and 296 Comp. Laws 1913, upon principles of statutory construction, grants to the board an arbitrary right of removal.

Additional Syllabus by Editorial Staff.

The power of removal of a public officer may be exercised in a manner prescribed by the Legislature, such power not being subject to the restrictions of Const. §§ 196, 197, concerning the removal of certain officers by impeachment and other officers upon stated grounds.

Appeal from District Court, Burleigh County; Nuessle, Judge.

Mandamus by the State of North Dakota, on the relation of Carl R. Kositzky against William J. Prater. From judgment granting relator a peremptory writ, the defendant appeals. Affirmed.William Langer, of Bismarck, W. S. Lauder, of Wahpeton, and George E. Wallace, of Bismarck, for appellant.

Sveinbjorn Johnson, Atty. Gen., and George F. Shafer, Asst. Atty Gen., for respondent.


This is a proceeding of mandamus involving the office of Commisioner of University and School Lands. The trial court found that the relator was entitled to the office. The defendant has appealed from the order.

The facts are not disputed. They are as follows: The defendant was appointed Commissioner on September 1, 1921, for a period of two years. He qualified and took office. On April 8, 1922, the board by resolution removed the defendant, declared the office vacant, and thereafter appointed the relator to fill the same. No charges were preferred; no notice thereof served. The board assumed the power to declare such office vacant in its discretion without the necessity of preferring charges of misconduct, malfeasance, crime, or misdemeanor in office, habitual drunkenness or gross incompetency, and without making any findings that some or all of such charges were true.

The defendant maintains that he was appointed for a specific term; that the statute prescribes a specific term (sections 285, 296, C. L. 1913); that he was not holding such office at the pleasure or discretion of the board; that in the absence of statutory authority the rule of the common law, and the rule applicable here, is that a public officerholding a definite term can be removed only for cause after notice and hearing. The relator contends that the term of the defendant was not for a definite two-year period, but is subject to the limitation “subject to removal by the board,” which necessarily implies that the board, in its discretion, may sooner remove the Commissioner; that the Legislature might abridge the term by express words, or might specify an event upon the happening of which the term would end. There is practically no controversy upon the law. It is practically conceded that a public officer, appointed for a definite term with a delegated power of removal granted to the appointive power, can only be removed for cause after notice and hearing. This is the rule of the common law. Hallgren v. Campbell, 82 Mich. 255, 46 N. W. 381, 9 L. R. A. 408, 21 Am. St. Rep. 557;People v. Whitlock, 92 N. Y. 191. See Mechem on Public Officers, § 445.

[2] It is likewise conceded that where a public officer is appointed for a term not designated, or indefinite, the appointing power may exercise its right of removal at its pleasure at any time without notice or hearing. State v. Archibald, 5 N. D. 359, 66 N. W. 234; 22 R. C. L. 562. In the former case the power of removal is conditional; in the latter, arbitrary. 29 Cyc. 1408. The office involved is statutory. It was wholly within the power of the Legislature to prescribe the method of appointing and of removal. 22 R. C. L. 561; State ex rel. Wehe v. Frazier (N. D.) 182 N. W. 545. This legislative power of removal concerning a public office created by statute is not subject to the restrictions of the constitutional provisions concerning the removal of certain officers by impeachment or other officers upon stated grounds. Sections 196, 197, Const.; State v. Archibald, 5 N. D. 359, 379, 66 N. W. 234; State ex rel. Wehe v. Frazier, supra. The power of removal may be exercised in a manner prescribed by the Legislature. State ex rel. Shaw v. Frazier, 39 N. D. 430, 434, 167 N. W. 510. Accordingly, the question presented upon this appeal is entirely one of statutory construction and interpretation. If the statute read, “Subject to removal for cause,” or “subject to removal without cause,” no difficulties would be apprehended in either construction or interpretation. Likewise, if the statute fixed specifically a term for two years with an independent power of removal, otherwise stated, the difficulties of interpretation and construction would be less pronounced. However unpleasant the function may be, it nevertheless is made our duty to ascertain the legislative intent concerning the power of removal, which in the statute might have been fully and clearly expressed without doubt by the use of two simple words. This court may neither reverse a legislative policy nor confer a right of office unless the legislative intent appears so to do. People v. Woodruff, 32 N. Y. 355, 363.

The board of university and school lands was first created by Chapter 25, Laws of 1890. This act gave the board full control of all public lands, and the investment of permanent funds derived therefrom. This act was supplemented by chapter 146, Laws of 1890, which granted to the board the control of school and university lands and the investment of funds arising therefrom. The Legislature, in 1893, amended the acts mentioned. It granted to the board the power to appoint a commissioner. The pertinent provisions are as follows:

Sec. 3. Authority.-Subject to the provisions of article 9 of the Constitution and the provisions of this act, such board shall have full control of the selecting, appraisement, sale, rental, disposal and management of all school and public lands of the state, and the investment of the permanent funds derived from the sale thereof, on from any other source, and shall have power to appoint a competent person to act as the general agent of the board in the performance of all their duties pertaining to the selection, sale, lease, contracting in any manner allowed by law, and the general management and control of all matters relative to the care and disposition of the public lands of the state, all of whose acts at all times shall be subject to the approval and supervision of the board, and whose term of office shall at all times be subject to their immediate control. The title of such agent shall be that of Commissioner of University and School Lands, and before entering upon his duties as such shall take the oath of civil officers and give a bond in the penal sum of ten thousand dollars ($10,000), with not less than two sureties, to be approved by the board; said bond to be recorded in the office of the Secretary of State and filed, when recorded, in the office of the State Auditor.”

Sec. 12. Term of Office of Commissioner of University and School Lands.-The first term of office of the commissioner provided for in this act, shall be for three years from the date of his appointment or until his successor shall be appointed and qualified, and after the expiration of the first term, all succeeding terms shall be for two years. In case of vacancy by death, removal, resignation or any other cause, the Board of University and School Lands shall fill the same by appointment.” Chapter 118, Laws of 1893.

For purposes of showing the authority granted, I have underscored some of the words in the statute quoted.

In 1893 the Legislature provided for the appointment of a revising commission by the Governor. Each of the commissioners was required to qualify by taking an oath of office and filing the same with the Secretary of State. The law provided that such commissioners should hold their office for the term of two years, or until the duties prescribed shall be duly performed, unless sooner determined by law. It was made generally the duty of this commission to examine, revise,and codify the laws and to prepare the same for publication. Chapter 74, Laws of 1893.

In 1895 some seven different Codes, prepared by the Revising Commission, were introduced in the Legislature as bills and enacted into laws. By legislative act these Codes were not printed as session laws of the state. Chapter 26, Laws of 1895.

Among these Codes was the Political Code for the state of North Dakota. It is embodied in the Revised Codes of North Dakota for the year 1895. Sections 170 and 179 thereof read as follows:

Sec. 170. Board, Powers of. Subject to the provisions of article 9 of the Constitution and the provisions of this article, such board shall have the full control of the selecting, appraisement, rental, sale, disposal and management of all school and public lands of the state, including the real property donated to the territory of Dakota under the provisions...

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