State ex rel. Wehe v. Frazier

• Decision Date: 12 March 1921
• Citation: 182 N.W. 545,47 N.D. 314
• Court: North Dakota Supreme Court

182 N.W. 545

47 N.D. 314

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

March 12, 1921

Certiorari proceedings in District Court, Burleigh County Nuessle, J. to review the action of the Governor in removing the relator as a commissioner of the Workmen's Compensation Bureau.

The Governor has appealed from the order and from the judgment entered.

Judgment construed and affirmed.

Affirmed.

Foster & Baker, and Simpson & Mackoff, for appellant.

Upon the refusal of the respondent to be sworn at the hearing to be examined as a witness as to matters material to the inquiry at the instance of the Governor, it was legal for the Governor to render judgment as upon nil dicit, confession or default. Comp. Laws 1913, § 7870.

This court has held that § 7870, providing for the examination of the adverse party applies to a proceeding for the removal of an officer. State v. Borstad, 27 N.D 539, 147 N.W. 380.

Judgment as by default or nil dicit may be entered against a defendant where his plea or answer is stricken out. 23 Cyc. 749; Belton v. Smith, 45 Ind. 294; Followed in Nelson v. Neeley, 63 Ind. 197.

There is very respectable authority to the effect that a public officer appointed for a fixed time subject to removal generally for cause may be removed without notice and hearing. People v. Welty, 75 Ill.App. 514; Hertel v. Boismenue, 229 Ill. 478, 82 N.E. 298; Wilcox v. People, 90 Ill. 186; People v. Higgins, 15 Ill. 110; People ex rel. Platt v. Stout, 19 How. Pr. 176, 11 Abb. Pr. 17; Territory v. Cox, 6 Dak. 510.

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

Even if Commissioner Wehe had defaulted and not appeared at the time set for the alleged hearing before the Governor, the Governor would not have had the right to remove him for said default without the introduction and taking of some evidence to support some of the alleged charges. State ex rel. Wehe v. Frazier, opinion of Dist. Court herein.

Function of writ to correct proceedings where boards and tribunals act without their jurisdiction. Where there is no writ of error or appeal, nor any other plain, speedy, and adequate remedy, a writ of certiorari will issue. State ex rel. Bone v. Sioux Falls, 25 S.D. 3, 124 N.W. 693; State ex rel. Dollard v. Hughes County, 1 S.D. 292, 10 L.R.A. 588, 46 N.W. 1127; State ex rel. Tedford v. Knott, 207 Mo. 167, 105 S.W. 1040; Riley v. Crawford (Iowa) 165 N.W. 345.

The Governor may be enjoined by injunction, and the issue determined whether or not his removal of a state official was according to law; and, if not, he may be permanently enjoined and the official restored to office, if not legally removed therefrom. State ex rel. Poole v. Peake, 22 N.D. 457, 40 L.R.A. (N.S.) 354, 135 N.W. 197; Ekern v. McGovern, 154 Wis. 152, 142 N.W. 595; Shaw v. Frazier & Wehe, 39 N.D. 430, 167 N.W. 510.

Certiorari is the proper remedy to review the decision of the governor in removing an official from office. State ex rel. Nash v. Burnquist (case not yet reported, decided Dec. 17, 1920); State ex rel. Martin v. Burnquist (Minn.) 170 N.W. 201; State ex rel. Kinsella v. Eberhart, 116 Minn. 33, 133 N.W. 857.

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

OPINION

Statement.

BRONSON J.

This is a certiorari proceeding by the relator to test the validity of his removal by the Governor as a commissioner of the Workmen's Compensation Bureau. The Governor has appealed from the order of the trial court overruling a motion and a demurrer to the application and, from the judgment in certiorari, determining the removal to be invalid. The facts in the record are as follows:

Pursuant to chapter 162, Laws of 1919, the Governor on March 31, 1919, appointed the relator as a commissioner of the Workmen's Compensation Bureau for the three-year term. The relator qualified and entered upon the performance of his duties. In December, 1919, at a special session of the legislature, chapter 162, Laws 1919, was amended by chapter 73, Spec. Sess. 1919, so as to increase the membership of the bureau to five members and to extend the term of the relator until the second Monday in January, 1923. This act became effective as a law on July 1, 1920. On April 19, 1920, the Governor, through a letter to the relator, upon charges therein preferred, temporarily suspended him as a commissioner until final determination thereof. In general, the letter charged that the relator had carried on a private law practice; that he had used bureau supplies; that he had shown generally a lack of executive ability, irascibility, and incompatibility of temperament; That at public hearings he had conducted himself detrimentally to public interest; that employees of the bureau had tendered their resignation by reason of his presence, and with difficulty were retained as employees; and that his presence impaired the efficiency of the bureau's operation. This was followed by a letter, dated April 20, 1920, to the relator, directing him to show cause, before the Governor on April 23, 1920, why his suspension should not be made permanent.

In response to this letter, the relator appeared before the Governor. He filed written objections to the jurisdiction of the Governor to take any action; these were overruled. The Governor stated that he did not know that it was necessary to have a hearing at all, but, in order to give the relator a chance to answer the charges made, this hearing was called; that he called him there to show, if he had any evidence or any reasons to produce, why the order issued suspending him should not be enforced. The relator asked whether the affidavits would be served upon him so he could see their contents. In the record there are contained numerous affidavits which set forth stated derelictions of the relator, and upon which the Governor, in his return, has asserted that cause was shown for his action in removing the relator as a commissioner. The Governor stated that they were not serving any affidavits; that the general trend of the affidavits was contained in the letter he wrote the relator; that the letters will speak for themselves. The relator asserted that he was willing to answer and make a reply, but that no charges had been made; that there were no charges to which to reply; that he wanted to know what the charges were, in order to defend them. The Governor replied by stating that the charges were set forth in the letter; that there was nothing to the procedure, unless the relator wanted to answer those charges then. The relator asserted that he was willing to answer; that he denied each and every part of each and every allegation, matter, statement and thing contained in the letter and also in the affidavits, so far as they charged the relator with any official misconduct in office, although he did not know the contents thereof. The Governor inquired whether the relator was ready to take up the charges and the relator answered in the affirmative. The Governor then stated that the relator had been given an opportunity to come there and answer the charges that had been made. But, if he was going to object to his jurisdiction, he did not see that there was anything further to take up at that time. Counsel, appearing against the relator, stated that the Governor, in a matter of this kind, made his rules and procedure; that the relator had asked to come before him; that if he objected to his jurisdiction, the place for him was before the court, not before the Governor; that the Governor has investigated, and that he investigates as he pleases. The Governor asked relator if he wished to be sworn, and the relator replied that he refused to be sworn until he knew what the specific charges were; that he came there to answer any charges the Governor had; that he demanded the right of cross-examination, and the calling of any witnesses to which he might be entitled in defense. The Governor then stated that there were charges made against the relator set forth in the letter; that he would like to ask him some questions concerning the affidavits under oath; that, if he wished to be questioned, they would proceed; if not, this would end the hearing. Then followed the following colloquy between the Governor and the relator.

"Mr. Koffel: Do I understand the Governor's position to be that he refuses to produce any witnesses or record he may have, and that he wants to ask the defendant, under oath, concerning his entire record as a public officer?

"Governor Frazier: The whole situation is this, as to whether or not Mr. Wehe wants to answer the questions in regard to these charges that have been made against him, at this time. If he wants to answer to them, this is his opportunity.

"Mr. Koffel: As stated before, we are willing to answer them.

"Mr. Wehe: Let the records show that we are ready to answer when they have produced their case and that we are willing to answer when given a hearing.

"Governor Frazier: If you want a hearing--

"Mr. Wehe: We demand a hearing, and we refuse to answer any questions before their witnesses are produced. We are right here willing at all times to produce our defense on any and all specific charges.

"Governor Frazier: Then you do not want to be sworn?

"Mr. Wehe: I absolutely refuse to be sworn at this time.

"Governor Frazier: Then the meeting is adjourned."

No further hearing was held. The record shows that the affidavits were neither produced at the hearing nor served upon the relator.

Subsequently the relator was debarred from personal attendance upon the duties of the office, but since the...