State ex rel. Martin v. Burnquist
| Citation | 170 N.W. 201,141 Minn. 308 |
| Decision Date | 27 December 1918 |
| Docket Number | 21,175 |
| Parties | STATE EX REL. JAMES F. MARTIN v. J. A. A. BURNQUIST |
| Court | Supreme Court of Minnesota (US) |
February 4, 1919
Upon the relation of James F. Martin the supreme court granted its writ of certiorari directed to the Honorable J. A. A Burnquist, Governor of the state of Minnesota, and the district court of Dodge county, to review proceedings had in that court for the removal of relator from the office of judge of probate for that county. Reversed.
Officer -- removal for misconduct.
1. In order to warrant the removal of an elective public officer under section 5724, G.S. 1913, the misconduct complained of must have some connection with or relation to the performance of the officer's official duties.
Removal of probate judge for disaffection toward the government.
2. Acts and conduct in opposition to the policy of the Federal government in entering into the war with Germany, having no relation to the official duties of a judge of probate furnish no sufficient legal basis for an order by the Governor of the state removing an incumbent of that office.
Removal of officer -- taxation of costs.
3. In proceedings under G.S. 1913, § 5724, for the removal of a public officer for misconduct in office, where the order of removal is set aside by the supreme court on certiorari, the officer proceeded against is not entitled to costs and disbursements either against the Governor or against the persons who petitioned the Governor for his removal. Such proceedings are solely in the public interest and those who join do not become parties to the record or liable for costs. [Reporter.]
Fred W. Senn and Edgerton & Dohs, for relator.
The Governor of Minnesota has no jurisdiction to remove a judge of probate from office, because a judge of probate is not an "inferior officer." Minn. Const. art. 13, §§ 1, 2. If a judge of probate is an "inferior officer," within section 2, he can only be removed for malfeasance or nonfeasance in the performance of his official duties. G.S. 1913, § 5724. The office of a judge of probate may become vacant on his conviction of any infamous crime, or of any offense involving a violation of his official oath. G.S. 1913, § 5723. The probate court is a court of superior jurisdiction and enjoys the same presumptions of jurisdiction as superior courts of common-law jurisdiction. Its presiding officer therefore cannot be held to be an "inferior officer" within Const. art. 13, § 2. See 2 Dunnell, Minn. Dig. § 7770, and cases cited. The word "inferior" as applied to courts and found in constitutional and statutory provisions is used in a technical sense, and applies to courts which are created on such principles that their judgments taken alone do not import jurisdiction. 7 R.C.L. 974, 975.
Malfeasance is the doing of an act by an officer, either through ignorance, inattention or malice, which act must be done by virtue of his office, and which act he as an officer has no right to do at all, as where he acts without any authority at all, or exceeds, ignores or abuses his power to act as an officer. State v. McClellan, 113 Tenn. 616, 85 S.W. 267, 3 Ann. Cas. 992; Bell v. Josselyn, 3 Gray (69 Mass.) 309, 63 Am. Dec. 741; Coite v. Lynes, 33 Conn. 109. Not only must the misconduct be official, but it is essential that an evil intent or motive must accompany the act. There must be corruption which must be both averred and proved. There must be a corrupt motive or knowledge on the part of the officer that his official act is a violation of law. Com. v. Wood, 25 Ky. L.R. 1019, 76 S.W. 842; Stokes v. Stokes, 23 A.D. 552, 48 N.Y.S. 722. Malfeasance that justifies removal must be such as affects the officer's performance of duties of his office. The officer must be separated from the man. Mechem, Public Officers, § 457; State v. Coon, 14 Minn. 340, 342 (456, 459); State v. Wedge, 24 Minn. 150; State v. Peterson, 50 Minn. 239, 52 N.W. 655; State v. Ward, 70 Minn. 58, 72 N.W. 825; Sykes v. City of Minneapolis, 124 Minn. 73, 76, 144 N.W. 453; People v. Cocks, 149 A.D. 883, 134 N.Y.S. 808; State v. Common Council of Duluth, 53 Minn. 238, 55 N.W. 118, 39 Am. St. 595.
General Statutes 1913, § 5724, is strictly limited to a removal for malfeasance or nonfeasance in the performance of the officer's official duties. The legislature in adopting this section according to authority conferred by Const. art. 13, limited the grounds for removal specified by the Constitution, which (art. 13, § 2) authorizes removal for malfeasance or nonfeasance in the performance of the officer's duties, while section 5724 provides that they must be official duties.
Where a wilful intent to accomplish an evil purpose, denounced by law, is an essential element of the offense, the burden is upon the state to prove wilfulness. State v. Cowdery, 79 Minn. 94, 81 N.W. 750, 48 L.R.A. 92; Barber v. State, 78 Ala. 19; Chrisman v. State, 54 Ark. 283, 15 S.W. 889, 26 Am. St. 44; People v. Mooney, 127 Cal. 339, 59 P. 761; Roberts v. People, 19 Mich. 401; McCourt v. People, 64 N.Y. 583; Felton v. U.S. 96 U.S. 699, 702, 24 L.Ed. 875; Com. v. Kneeland 20 Pick. (Mass.) 206, 220; Potter v. U.S. 155 U.S. 438, 446, 15 S.Ct. 144, 39 L.Ed. 214.
None of the acts specified in the charges and specifications, evidence or findings, constitutes a violation of defendant's oath of office as probate judge, which is and was only that he would support the Constitution of the United States, the Constitution of the state of Minnesota, and faithfully and impartially discharge the duties devolving upon him as probate judge. Minn. Const. art. 4, § 29; G.S. 1913, § 5733.
On the facts, this case is within the ruling of this court in Lydiard v. Wingate, 131 Minn. 355, 155 N.W. 212, where the court uses the following language: "The interest which every citizen has in good government requires that the right be not unduly curtailed to express his opinion upon public officials and political leaders, to seek and convey information concerning their plans and purposes, and to freely criticize proposed methods and measures."
If the construction of the Espionage Act in U.S. v. Hall, 248 F. 150, is correct, then these proceedings must at once fail, because none of the statements made by relator was made to any person either within the military or naval forces of the United States, or about to be inducted into the army or navy, and there is no allegation nor proof that any of the statements alleged to have been made by relator either did or could have in any way affected or interfered with the operation or success of the military or naval forces of the United States, or either did or could have promoted the success of its enemies, or created any insubordination, disloyalty, mutiny or refusal of duty on the part of such military or naval forces. Nor is there allegation or proof that said statements, or any of them, were made with the intent to wilfully obstruct the recruiting or enlistment service of the United States, or that any of such statements either did or could have had any such effect. There is neither allegation nor proof that any of these alleged statements were ever made in the presence or hearing of any person in the military or naval forces of the United States, nor that said statements, if made, either did or could have in any way interfered with the operation and success of the military or naval forces of the United States, or created any insubordination, disloyalty, mutiny or refusal of duty on the part of such forces, or that they obstructed in any way the recruiting and enlistment service.
It will probably be claimed that the alleged statements of the relator constitute a violation of his official oath. This we emphatically deny. His oath of office was simply that he would support the Constitution of the United States, the Constitution of the state of Minnesota, and faithfully and impartially discharge the duties devolving upon him as probate judge.
There is neither allegation, nor proof that the defendant has not in all things and at all times supported the Constitution of the United States and also the Constitution of the State of Minnesota; nor is there any claim that he has not faithfully and impartially discharged the duties devolving upon him as probate judge.
Ambrose Tighe and H. J. Edison, County Attorney, for respondent.
The Minnesota Constitution (art. 13, §§ 1, 2) provides two methods of removal of public officers, and two only -- one by impeachment and the other by procedure under appropriate legislative enactment. Impeachment is the constitutional procedure for the removal of a Governor, secretary of state, treasurer, auditor, attorney general, and the judges of the supreme and district courts. They can be removed by impeachment only, and no other officers may be impeached. Section 2 of article 13 says that the legislature may provide for the removal of inferior officers from office, and in pursuance of this section, the legislature has enacted chapter 47, G.S. 1913, under which this proceeding is brought. A judge of probate is included in the statute as one of the officers to whom chapter 47 is applicable, but the relator says the legislature had no right to so include him because he is not an inferior officer. The argument amounts, therefore, to saying that a probate judge cannot be removed at all. He cannot be removed under section 1 because he is not there mentioned, and he cannot be removed under section 2 because he does not come within the category which it covers.
The relator seeks to avoid this dilemma of his own creation by citing G.S. 1913, § 5723. This provides (subdivision 5) that every office shall become vacant on the officer's conviction of any infamous crime or any offense involving a violation...
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