State ex rel. Ulrick v. Sanchez

• Citation: 32 N.M. 265,255 P. 1077
• Decision Date: 27 December 1926
• Docket Number: Nos. 3079, 3102.,s. 3079, 3102.
• Parties: STATE ex rel.ULRICKv.SANCHEZ.STATE ex rel.CHAVEZv.CLARK.
• Court: Supreme Court of New Mexico

32 N.M. 265

255 P. 1077

STATE ex rel.ULRICK

v.SANCHEZ.STATE ex rel.CHAVEZ

v.CLARK.

Nos. 3079, 3102.

Supreme Court of New Mexico.

Dec. 27, 1926.Rehearing Denied Feb. 19, 1927.

Syllabus by the Court.

Under Const. art. 5, § 5, the Governor has power to remove any officer appointed by him, including those appointed by and with the consent of the Senate. (Parker, C. J., dissenting.)

Under Const. art. 5, § 5, the Governor is not required to make charges, to give notice, or to accord a hearing, before exercising the removal power.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Two proceedings in quo warranto by the State, on the relation of George L. Ulrick, and on the relation of Martin Chavez, directed to Felipe Sanchez y Baca and to John S. Clark, respectively. From a judgment for defendants on demurrers to the complaints, the relators appeal. Cases considered together on appeal. Affirmed.

Under Const. art. 5, § 5, the Governor is not required to make charges, to give notice, or to accord a hearing, before exercising the removal power.

C. J. Roberts, of Santa Fé, for appellant Ulrick.

E. R. Wright, of Santa Fé, for appellant Chavez.J. O. Seth, of Santa Fé, for appellees.

BICKLEY, J.

The State of New Mexico by its Attorney General, on the relation of George L. Ulrick, filed a complaint in quo warranto in the district couart of Santa Fé county against Felipe Sanchez y Baca to oust him from the office of associate commissioner of the state tax commission of the state of New Mexico. The defendant appeared and filed a demurrer to the complaint, for the reason that the complaint failed to state facts sufficient to constitute a cause of action, which was sustained by the trial court, and, the plaintiff and relator electing to stand upon the complaint, judgment was entered dismissing the complaint on the merits. The plaintiff appealed, and seeks a review of the action of the court in sustaining the demurrer and entering judgment for the defendant. In the brief of appellant Martin Chavez in case No. 3102 it is stated that that action was brought on the relation of Martin Chavez against John S. Clark to oust him from the office of associate commissioner of the state tax commission of the state of New Mexico. The cause was disposed of by the district court upon like pleadings and proceedings and in the same manner as was case No. 3079. Both cases, so far as it is necessary to consider, involved the same points. By agreement of counsel, the two cases are to be argued and considered together upon the briefs filed in the two cases. It is also agreed that the facts involved in the two cases are substantially identical.

The cause of action was primarily based upon the following alleged facts, to wit: That relators were duly appointed, qualified, and acting associate commissioners of the state tax commission, having been appointed by the Governor of the state of New Mexico on the 21st day of January, 1921, and 12th day of March, 1923, respectively, by and with the advice and consent of the Senate of New Mexico, to serve for a period of six years thereafter; that, while thus acting, the Governor, by executive order, attempted to remove them from office for alleged incompetency, and on or about the same date appointed the said Felipe Sanchez y Baca and John S. Clark to said office; that said purported order of removal and said purported appointments were without authority of law, and were void, because no specific charges constituting the alleged incompetency were filed, and no notice was served upon the relators as to the time and place of hearing; that the relators had not been appointed by the Governor alone, but by the Governor, by and with the advice and consent of the Senate. It is alleged that the relators were notified in writing to resign on or before a date mentioned, or show cause at that time why they should not be removed for incompetency; that thereafter, without any hearing of any kind, the governor entered an order removing said relators, and issued to the defendants commissions to the office, and caused the adjutant general of the state of New Mexico to forcibly remove relators from the office room occupied by them in the state capitol building, and deliver possession of said office to defendants; that subsequently the Governor caused to be served upon relators an executive communication, fixing a date for relators to appear before the Governor to show cause, “if any you have, why you should not have been, and should not be, removed for incompetency.” The language last above quoted was followed by certain specifications of the grounds of incompetency. It is alleged that thereafter a certain purported hearing was had before the Governor, at which time relators appeared in person and by counsel. After protesting and excepting to the proceedings up to that point, and objecting to proceeding further on the ground of lack of power in the Governor to remove relators, and challenging the sufficiency of the specifications of the charges, and challenging the regularity of the proceedings generally, the relators filed their respective answers, whereupon further hearing was had embracing oral testimony on behalf of relator Ulrick, an ex parte affidavit, declarations by the Governor concerning his information and conclusions, based upon ex parte conversations, his personal observations, and his offer to examine the relators under oath, and his proposal to further examine the records of the office of the state tax commission. These proceedings were duly objected to upon the grounds theretofore stated, and upon the further grounds that the ex parte statements were inadmissible, because relators had no opportunity to cross-examine; that the Governor could not legally base his information for removal upon statements made to him, in the absence of relators, and without an opportunity to cross-examine; that it was improper for the governor to consider the records of the office of the state tax commission without informing the relators of the portions of the records which he considered supporting the charge of incompetency; that the Governor could not legally rely upon his personal knowledge of alleged elements of incompetency without making specifications of the facts within his knowledge so relied upon, and other objections challenging the legality of the proceedings.

The executive orders stated that the removal of each of the relators was on the ground of their incompetency.

The cause is here upon two propositions, to wit: First, that the Governor does not have the power of removal of officers appointed by him by and with the advice and consent of the Senate. Second, that a public officer who has under the law a fixed term of office, and who is removable only for specified causes, cannot be removed without notice and hearing upon charges specifying the particulars constituting the causes for removal, and that the charges must be established by evidence, and that it is the province of the court to ascertain whether the charges stated a ground of removal with sufficient precision and definiteness to inform the officer with what he was to meet, whether notice was given him, whether there was a hearing, and whether there was any substantial evidence in support of the charges.

[1] As to the first proposition it is urged by appellants that they are not subject to removal by the Governor because they are state officers appointed by the Governor, by and with the consent of the Senate, and can only be removed by impeachment proceedings. It is not contended by appellants that they may be removed by the Governor only by and with the consent of the Senate, or upon the address of the Senate, but that the Governor has no power whatever in the matter; the power of impeachment vesting solely in the Legislature. The provisions with reference to impeachment are found in sections 35 and 36 of article 4 of the Constitution, and are as follows:

“Sec. 35. The sole power of impeachment shall be vested in the House of Representatives, and a concurrence of a majority of all the members elected shall be necessary to the proper exercise thereof. All impeachments shall be tried by the Senate. When sitting for that purpose the Senators shall be under oath or affirmation to do justice according to the law and the evidence. When the Governor or Lieutenant-Governor is on trial, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without the concurrence of two-thirds of the Senators elected.

Sec. 36. All state officers and judges of the district court shall be liable to impeachment for crimes, misdemeanors and malfeasance in office, but judgment in such cases shall not extend further than removal from office and disqualification to hold any office of honor, trust or profit, or to vote under the laws of this state; but such officer or judge, whether convicted or acquitted shall, nevertheless, be liable to prosecution, trial, judgment, punishment or civil action, according to law. No officer shall exercise any powers or duties of his office after notice of his impeachment is served upon him until he is acquitted.”

We first, therefore, consider who are “state officers,” as that term is used in the provisions concerning impeachment.

“The term ‘state officers' is sometimes construed as only the heads of the executive departments of the state elected by the people at large, such as Governor, Lieutenant Governor, State Treasurer, Attorney General, and the like, and it should be so construed when used without circumstances indicating any other intent. In its more comprehensive sense it includes every person whose duty appertains to the state at large. The exact sense in which the term is used in any particular law must often be determined by ordinary rules for judicial construction. State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500, [508].” 4 Words and Phrases,...