State ex rel. Rodd v. Verage

• Decision Date: 17 May 1922
• Parties: STATE EX REL. RODD v. VERAGE, COUNTY CLERK, ET AL.
• Court: Wisconsin Supreme Court

177 Wis. 295

187 N.W. 830

STATE EX REL. RODD

v.VERAGE, COUNTY CLERK, ET AL.^a1

Supreme Court of Wisconsin.

April 11, 1922.

Dissenting Opinion May 16, 1922.

Per Curiam Order May 17, 1922.

Original certiorari proceeding by the State, on the relation of Hans Rodd, against John J. Verage, County Clerk, and another. Order vacated, annulled, and set aside.

Certiorari, sued out of this court to review the executive proceedings resulting in the removal of the sheriff of Oneida county.

Eschweiler and Doerfler, JJ., dissenting.Charles F. Smith, of Rhinelander, Goggins, Brazeau & Goggins, of Wisconsin Rapids, and Bird, Okoneski & Puchner, of Wausau (P. H. Martin, of Green Bay, of counsel), for relator.

M. B. Olbrich, of Madison, Sp. Counsel, for the State.

Wylie & Sutherland, of Madison, for defendant Asmundson.

OWEN, J.

On the 2d day of July, 1921, one Peter Christ was sentenced by the circuit court for Oneida county to imprisonment for four months in the county jail of that county for contempt of court, growing out of the violation by said Peter Christ of an injunctional order issued in an action pending in that court wherein the Rhinelander Paper Company was plaintiff and certain labor unions and various individuals were defendants. The injunction was issued because of labor troubles between the Rhinelander Paper Company and its former employés, and it restrained the defendants, and all persons to whom knowledge of the injunction should come, from intimidating, threatening, menacing, or offering abuse or physical violence to, the employés of the Rhinelander Paper Company or their families, and from in any manner interfering with the plaintiff in the securing of employés for the operation of its plant and business otherwise than by recommending, advising, or persuading persons by peaceful means not to enter into or continue in the employ of the plaintiff.

On the 26th day of October, 1921, the Governor pardoned the said Peter Christ. The relator, Hans Rodd, who was at that time sheriff of Oneida county, and who had the legal custody of said Peter Christ under and by virtue of the commitment, declined to recognize the validity of the pardon, and refused to release the said Peter Christ. Thereupon proceedings were instituted before the Governor looking towards the removal from office of said Hans Rodd, because of his alleged official misconduct in refusing to release said Peter Christ. As the result of such proceedings, the Governor executed an order removing the said Hans Rodd from office and later appointed the defendant, Charles Asmundson, as sheriff of Oneida county, to fill the vacancy caused by the alleged removal of said Hans Rodd.

Thereupon the said Hans Rodd applied to this court for a writ of certiorari, addressed to the defendant John J. Verage, in his capacity as county clerk of Oneida county, he being the legal custodian under the statute of the record of the removal proceedings before the Governor, commanding him forthwith to certify the proceedings had before the Governor, which writ was duly issued by this court. In compliance with the writ, the county clerk has returned the certified copy of the proceedings to this court, and the question to be determined is whether the order removing the said Hans Rodd from the office of sheriff of Oneida county was a valid exercise of executive power, and whether said removal was lawful, so as to create a vacancy in said office of sheriff.

[1] At the outset, this involves a consideration of the nature of the power reposed in the Governor to remove the relator from his office as sheriff. The power of this court to review the acts of the Governor is thoroughly considered and determined in the case of Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 46 L. R. A. (N. S.) 796. The field so thoroughly covered in that case will not again be traversed. If in the removal of the relator the Governor was acting in a quasi judicial capacity, this court may examine the proceedings to the extent of ascertaining whether the Governor acted within his jurisdiction, and as to that the only question debated here is whether the Governor is vested by the Constitution with arbitrary power of removal. It is contended on the part of defendant Asmundson, though not on the part of the Governor, that such is the nature of the Governor's constitutional power in the premises.

Section 4 of article 6 of the Constitution provides that the Governor may “remove any officer in this section mentioned, giving to such a copy of the charges against him and an opportunity of being heard in his defense.” The officers mentioned in the section are sheriffs, coroners, registers of deeds, and district attorneys. It will be noted that the provision does not expressly state that the removal shall be for cause. The question raised by counsel for the defendant Asmundson arises very naturally and immediately upon a reading of the language thus employed. Was it the purpose of the framers of the Constitution to confer arbitrary power of removal upon the Governor? If not, why were the words “for cause,” or similar language, omitted? If so, why serve a copy of the charges upon the officer to be removed? Why give him an opportunity to be heard in his defense? The omission of the words “for cause” justifies the contention of the defendant Asmundson, but an inherent sense of justice compels hesitation in the matter of its adoption.

[2] In this state a public office is regarded as a property right (Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 46 L. R. A. [N. S.] 796), and while, without doubt, the people, in adopting the Constitution, could have conferred the power of arbitrary removal upon the Governor, our conception of the nature of the right to hold office does not permit of a ready acquiescence in the proposition that arbitrary power of removal was intended to be conferred. The Constitution provides that the officers referred to shall be chosen by the qualified electors of the county. Having so provided, it does not seem likely that a provision would be inserted affording an opportunity for its complete nullification. If the provision we are considering is to be construed as conferring arbitrary power of removal upon the Governor, then it is apparent that the Governor may remove county officers who are distasteful to him for personal, political, or other reasons, and install officers of his own choosing to discharge the official functions of these various county officers. That idea is not only obnoxious to an inherent sense of plain and fundamental justice, but it is out of harmony with the genius and spirit of our institutions, and would seem to neutralize a fundamental principle of popular government, which was plainly intended to be intrenched in the fundamental law of the state.

That popular opinion approves of an arbitrary power of removal under some circumstances is conceded, as in the case of a head of a department who is held responsible for what is done by that department. But no such relation exists between the Governor and the county officers. It is true that the Governor is charged with the duty of enforcing the laws throughout the state, and that the sheriffs are at his command for that purpose. But the duties of the sheriff are quite definitely defined by law, and a small portion of his functions depends upon the commands of the Governor. He is a local officer, and certainly it is the popular notion that he should be chosen by the local electors. The suggestion that the Governor should have the arbitrary power of removal, because he may have occasion from time to time to direct the activities of the sheriff in the matter of enforcing the laws, is not persuasive to induce a construction of the Constitution which could be used to greatly neutralize the right of local self-government cherished by every community, and the argument completely falls so far as it is applicable to the office of register of deeds. The nature of the power conferred upon the Governor to remove the sheriff is identical with his power to remove the register of deeds. As to the latter office it is believed that no reason can be suggested for conferring an arbitrary power of removal on the Governor. On the other hand, it is not only appropriate but customary to provide for the removal of public officers who are unfaithful to their official duty or guilty of malfeasance or misfeasance in public office upon proof of official delinquency. The power thus to remove for cause fully protects the public interest and is compatible with the usual provisions to be found with reference to elective officers so far as our observations have gone. It is not customary, and certainly it is not consistent with the theory of our government, to vest in any person the power to arbitrarily remove any elective officer.

This conclusion finds confirmation in the practical construction accorded to the constitutional provision under consideration by the legislative and executive departments of the state. At an early date the Legislature carried this constitutional provision into the statutes of the state. Section 4 of chapter 11 of the Revised Statutes of 1849 provided that--

“The Governor may remove from office any sheriff, coroner, register of deeds, or district attorney, giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.”

This was taken literally from the constitutional provision. It was carried into the Statutes of 1878 and appeared therein as a part of section 968 until the year 1917, when the Legislature revised and codified the various statutory provisions relating to vacancies and removals from office. As so revised, it now appears as part of section 17.09, and provides that the sheriff, coroner, register of deeds, or district attorney may be removed by the Governor “for cause.” The procedure to be followed by the Governor in cases of removal of such county officers is provided by ...