State ex rel. Wehe v. Frazier

• Decision Date: 12 October 1921
• Court: North Dakota Supreme Court

184 N.W. 874

48 N.D. 381

STATE OF NORTH DAKOTA, ex rel Laureas J. Wehe a commissioner of the North Dakota Workmen's Compensation Bureau, Respondent, v. LYNN J. FRAZIER, as Governor of the State of North Dakota, Appellant

Supreme Court of North Dakota

October 12, 1921

Appeal from the District Court of Burleigh County, Nuessle, J.

Defendant appeals from an order denying motions for an amendment and modification of a judgment.

Affirmed.

William Lemke, Atty. General; George K. Foster, Asst. Atty. General Philip Elliott and C. A. Marr, for appellant.

There can be no doubt that at its inception the suspension was valid. The power to suspend an officer is incidental to the power to remove for cause. 29 Cyc. (Officers) 1405; State v. Megaarden, 85 Minn. 41, 88 N.W. 412; 89 Am. St. Rep 334; State v. Peterson, 50 Minn. 244; 52 N.W. 655; Chase v. Providence, 36 R. I. 331, 89 Atlantic 1066; Am. Cas. 1916 C. 1257; Griner v. Thomas, 101 Tex 36; 104 S.W. 1058, 69, 16 Ann. Cas. 944; State v Linge, 26 Mo. 496; State v. Police Commissioners, 16 Mo.App. 48; Shannon v. Portsmouth, 54 N.H. 183.

One who does not perform the duties of an officer because of unfitness should not receive the salary for that office, and such is established law. 29 Cyc. (Officers) 1424, note 35 and cases cited.

L. J. Wehe, and Theodore Koffel, for respondent.

The Governor has no power unless specifically given to him by statute to suspend an officer during the pendency of the removal proceedings. (Unless the officer should be a treasurer or custodian of public funds, and then an exception is made in some of the cases cited.) Throop on Pub. Off. Sec. 404, p. 394; Metsker v. Neally, 41 Kans. 122; Mech. Pub. Off. Sec. 453, p. 286; Gregory v. Mayor, 113 N.Y. 416, aff'g. 11 N.Y. 506; Emmet v. Mayor, 38 N.Y. 607, following State v. Jersey City, 25 N.J.L. 435-8; 29 Cyc. 1405, § 3.

A judgment cannot be amended so as to vary the rights of the parties as fixed by the original decision. 23 Cyc. 868; Tyler v. Shea, 4 N.D. 377; 61 N.W. 468; Barnes v. Hullet, 29 N.D. 136, 50 N.W. 562.

"But after an order entered, as dictated by the Judge, has been construed and affirmed by the Supreme Court an amendment cannot be allowed on the ground that the construction placed on it was not what the judge intended." 29 Cyc. 867, 867.

CHRISTIANSON, BRONSON, and BIRDZELL, JJ., concur. GRACE, C. J., ROBINSON, J., (dissenting).

OPINION

PER CURIAM.

This is a sequel to State ex rel. Wehe v. Frazier, 182 N.W. 545, wherein this court modified and affirmed a judgment of the district court of Burleigh county. After the remittitur was sent down, the district court made an order for judgment, pursuant to which judgment was entered in that court. Subsequently, the attorneys appearing for the Governor moved that the order for judgment and the judgment be amended and modified in certain particulars, which will hereinafter be noted. These motions were denied, and the Governor has appealed from the orders denying such motions.

This litigation arose out of proceedings before, and orders made by, the Governor purporting to suspend and remove the relator, Wehe, from the office of workmen's compensation commissioner in this state.

On April 19, 1920, the Governor wrote a letter to the relator, Wehe, stating that on account of certain reasons specified therein the Governor had suspended the said Wehe "from the office of workmen's compensation commissioner, such suspension to continue until the final determination of this matter." This was followed by a letter dated April 20, 1920, directing Wehe to show cause before the Governor on April 23, 1920, why his suspension should not be made permanent. In response to this latter letter the relator appeared before the Governor, and, after certain proceedings there had, the Governor made an order removing Wehe from the office of workmen's compensation commissioner; such order being entered on April 23, 1920. Subsequently Wehe instituted a mandamus proceeding to compel the Workmen's Compensation Bureau to issue to him his salary warrant for the month of April, 1920. In the answer in that proceeding it was asserted as a defense that said Wehe had been suspended by the Governor on April 19, and removed on April 23. It was further alleged, as a defense in that action, "that a voucher for plaintiff's salary for the period of April 1 to 23, 1920, had been allowed in the sum of $ 159.85." See State ex rel. Wehe v. North Dakota Compensation Bureau et al., 180 N.W. 49, 50.

In November, 1920, said Wehe applied to the district court of Burleigh county for a writ of certiorari for the purpose of reviewing the validity of the alleged removal proceedings had before the Governor. The trial court determined such proceedings, and the orders of suspension and removal entered therein by the Governor, to be irregular, illegal, and void, and entered judgment as follows:

"It is hereby ordered and determined that the proceedings of the defendant, Lynn J. Frazier, as Governor of the state of North Dakota, had and taken in connection with the removal of the plaintiff, Laureas J. Wehe, were irregular, illegal, and void, that no evidence was given nor trial had before said defendant to justify such removal, and the same is here in all things reversed, annulled, and set aside, and that the order and determination of the suspension and removal of said plaintiff by said defendant from the office of workmen's compensation commissioner of the state of North Dakota be, and the same is hereby, annulled, vacated, and set aside.

"And it is further ordered and adjudged and determined that the plaintiff, Laureas J. Wehe, be, and he hereby is, reinstated in his said position of workmen's compensation commissioner of the state of North Dakota, with all the rights, privileges, and emoluments, with interest thereto pertaining, as of the 23d day of April, 1920, the date of his illegal suspension and removal, as fully as if said order of removal had never been made."

The Governor appealed from that decision to this court. This court held that the relator had not been accorded a hearing as provided by law, and that the proceedings had in the removal proceeding before the Governor were irregular, and that the order of removal was null and void. In the opinion in that case this court said:

"In the legislative act under consideration, the Legislature has granted to the Governor the power of appointment and of removal, but it has expressly provided that the removal must be for cause. § 4, c. 162, Laws 1919; chap. 73, Spec Sess. Laws 1919. An express legislative limitation was placed upon this executive power of removal. This limitation prescribed the exercise of a legal discretion in addition to an executive discretion. This limitation, as has been stated, the Legislature had the right to prescribe. A removal for cause means for a legal cause. State v. Common Council, 53 Minn. 238, 55 N.W. 118, 39 Am. St. Rep. 595; Townsend v. Tobey, 71 Minn. 379, 74 N.W. 150; State v. Donovan, 89 Me. 448, 36 A. 982; Andrews v. Board, 94 Me. 68, 46 A. 801; State v. Walbridge, 119 Mo. 383, 24 S.W. 457, 41 Am. St. Rep. 663; Hayden v. Memphis, 100 Tenn. 582, 47 S.W. 182. When the Legislature deemed it proper to prescribe a legal cause as the basic ground for the removal of the office involved, necessarily there then applied those fundamentals in Anglo-Saxon jurisprudence, essential and recognized in any free and democratic government, namely, the right of the accused to a hearing, to be confronted with his accusers, and to the right of defense. See People v. Therrien, 80 Mich. 187, 195, 45 N.W. 78. * * *

"This court, therefore, has already adopted, without dissent, the principle that a legal cause in such case must exist and must be established at a hearing. It is merely trite to state that a legal cause is a judicial cause. It follows, accordingly, that the Governor, in exercising his power in such removal proceeding, necessarily acts in a quasi judicial manner, that his orders, quasi judicial in character are subject to judicial jurisdictional review, and that such review does not serve to interfere with any purely executive prerogative. * * *

"It is evident from this record that the Governor did not appreciate the extent of this legislative prescription. It is quite apparent that he doubted whether it was necessary that charges be preferred or a hearing be given; that he considered to a considerable extent that he might exercise this right of removal as a pure act of executive discretion based upon facts that might have been brought to his attention ex parte as the chief executive. By reason of such construction of his powers, it is further evident from this record that the Governor overlooked and ignored, in order to exercise his power of removal for cause, the necessity of granting a hearing to the relator where the relator might learn the nature of the charges against him, and might have an opportunity to answer the same, cross-examine witnesses, and adduce testimony to disprove such charges. Manifestly such hearing was not accorded the relator. It was jurisdictional for the exercise of the power of removal. No legal cause for removal was established at the hearing. The affidavits upon which the order for removal was based were neither produced nor presented. Accordingly, it follows that the order of removal must be determined illegal and void, unless the act of the relator in refusing to be sworn as a witness has conferred a jurisdiction to order a removal, as if upon default.

"(3) Refusal of relator to be sworn: It may be granted that the Governor had the right to examine the relator as a witness. State v. Borstad, 27 N.D. 533, 147 N.W 380, Ann. Cas. 1916B 1014. The exercise of this right,...