State ex rel. Olson v. Welford
| Decision Date | 20 April 1935 |
| Docket Number | No. 6356.,6356. |
| Citation | 260 N.W. 593,65 N.D. 522 |
| Parties | STATE ex rel. OLSON, Highway Com'r, v. WELFORD, Acting Governor, et al. |
| Court | North Dakota Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Certiorari in this state will lie only to review acts in excess of jurisdiction; it will not review the sufficiency or insufficiency of the evidence where jurisdiction is shown; it is an appropriate proceeding to review the jurisdiction of the Governor in a proceeding to remove the highway commissioner. State ex rel. Wehe v. Frazier, 47 N. D. 314, 182 N. W. 545.
2. The Governor in exercising the power of removal pursuant to the provisions of section1 of chapter 125, S. L. 1933, acts in a quasi judicial capacity, and his acts in that behalf are subject to review in a certiorari proceeding.
3. Where the Legislature as provided that the Governor may remove an officer for a prescribed cause, the prerequisites to jurisdiction in that behalf are: Reasonable notice of time, place of hearing, and of charges stating the cause for removal; reasonable opportunity to defend, characterized by full disclosure of adverse evidence according to the established principles of fair judicial investigation to determine the justice of the cause; a decision upon proofs of record supporting it.
4. Where a removal proceeding is in course of review by certiorari and there is a controversy as to the title to the office involved between the de facto incumbent and one claiming by appointment in his place, the claimant seeking to obtain possession of the office by other than lawful means may be enjoined during the course of the certiorari proceeding from interfering with the incumbent in the performance of the functions of the office.
5. Chapter 125, S. L. 1933, creating the office of state highway commissioner, fixing the duration of the term of office, empowering the Governor to remove the commissioner for stated reasons, defining the commissioner's powers and duties, and fixing his compensation, is not subject to challenge as contravening section 61 of the Constitution of North Dakota, since the title reading, “An Act creating the office of State Highway Commissioner, defining his powers and duties, and fixing the compensation of said commissioner, and repealing Chapter 153 of the Laws for 1931,” sufficiently expresses the subject of the act.
6. The record is examined, and it is held, for reasons stated in the opinion, that in the instant case the Governor had jurisdiction and that his decision is final.
Original certiorari proceeding by the State of North Dakota, on the relation of Ole H. Olson, as State Highway Commissioner, against Walter Welford, as Acting Governor of the State of North Dakota, and another, to review the order of the Acting Governor in removing the relator as State Highway Commissioner.
Affirmed.
Chas. L. Crum and C. Liebert Crum, both of Bismarck, for relator.
P. O. Sathre, Atty. Gen., and Chas. A. Verret, Asst. Atty. Gen., for respondent.
R. C. Morton, of Bismarck, amicus curiæ.
The respondent Welford is Acting Governor of the State of North Dakota. The relator, Ole H. Olson, was on the 23d day of January, 1935, appointed as highway commissioner pursuant to the provisions of chapter 125, S. L. 1933. He duly qualified and entered upon the performance of the duties of the office and claims to be the lawful incumbent at this time. Chapter 125, among other things, provides:
Ҥ 1. The office of State Highway Commissioner is hereby created and established, which shall consist of one person, to be appointed by the Governor for a term of three years, and until his successor is appointed and qualified, and who shall be subject to removal by the Governor for neglect of duty or for nonfeasance or malfeasance in office. * * *
§ 6. In addition to the foregoing powers and duties, the State Highway Commissioner shall be the chief executive and administrative officer of the offices and departments above enumerated. He shall have charge of the records of the State Highway Department. He shall cause minutes of his acts to be kept and accurate and complete books of account to be kept, and to supervise the signing of vouchers, orders for supplies, materials and any other expenditures. He shall have authority, and it shall be his duty to employ all engineers, assistants, clerks, agents, attorneys and other employees, as may be required for the proper transaction of the business of his office, or of the State Highway Department; fix their titles, determine their duties, the amount of their bonds in the State Bonding Fund, if any are required, their compensation and discharge them in his discretion; sign and execute all documents and papers, contracts and agreements for highway construction, and purchase of machinery, materials and supplies. * * *
§ 7. Such State Highway Commissioner shall not pay, to exceed the maximum sums hereinafter stated, for the following classes of employees, to-wit:
On March 26, 1935, the respondent Governor Welford served the relator Olson with a written notice, wherein he advised the relator that complaint had been made that the relatorwas guilty of neglect of duty and of nonfeasance and malfeasance in office, in that the relator had failed to maintain the highways under his direction and supervision in a proper condition of repair and had failed to employ competent employees and subordinates; that he had permitted certain of his agents and employees in the highway department to be overpaid contrary to the provisions of the statute fixing the maximum compensation for such agents and employees; that he had used the agents and facilities of the highway department in obtaining information for purposes other than highway purposes; that on account of these defaults his resignation was requested; that if he should not accede to such request a hearing would be set to take evidence in support of the charges thus made against him to the end that he might be removed, which hearing was set to be had on April 5, 1935.
The relator interposed an answer to the charges as contained in the notice wherein he alleged that the charges were vague and indefinite, and demanded a bill of particulars. He further interposed a qualified general denial, and with respect to the charges of failure to keep the roads in proper condition alleged that all had been done that could have been done under the circumstances, that if they were in bad condition this was owing to the failure of his predecessors to properly care for and maintain them, and that he had neither time, opportunity, nor means wherewith to wholly remedy their objectionable condition. With respect to the charge of overpayment of salaries, he alleged that there had been no overpayment; that such payments as were made were in accordance with the schedule that had been set up long prior to the time of his incumbency of the office. He further challenged the constitutionality of chapter 125, S. L. 1933, under which these removal proceedings were had, on the ground that the subject of the act, in so far as it deals with the governor's power of removal, is not expressed in the title thereof, and that accordingly the same is unconstitutional as being contrary to the provisions of section 61 of the Constitution.
The relator refused to resign. A hearing was had on the day set in the notice. Thereafter the Governor made an order reciting that, “It appearing satisfactorily * * * that legal causes have been shown and established at said hearing for the removal of said Ole H. Olson from the office of State Highway Commissioner * * *,” and ordered that the relator be removed from office and declared the office vacant. At the same time the Governor, in writing, appointed the respondent W. J. Flannigan to the office of highway commissioner.
Thereupon the respondent Flannigan proceeded to the office of highway commissioner and demanded of the relator that he surrender the office and the appurtenances thereof to Flannigan. This demand was refused. The Governor thereupon ordered a peace officer, designated by him, to proceed to the office of the highway commissioner and to demand the office and the possession thereof under threat of prosecution for resistance of an officer. This was done. Olson turned the keys over, protesting that he did so only to prevent a dispossession by force and because of the threat of prosecution. Flannigan took possession. Olson consulted his attorney but persisted in an attempt to continue as highway commissioner. Flannigan also purporting to function as commissioner, proceeded to discharge certain employees of the department. Thereupon the relator Olson applied to this court for an appropriate writ to procure a review of the removal proceedings and for a temporary restraining order restraining Flannigan during the pendency of such proceedings and until the propriety thereof could be determined from continuing...
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