State ex rel. Wyckoff v. Ross

• Decision Date: 26 August 1924
• Docket Number: 1267
• Citation: 228 P. 636,31 Wyo. 500
• Parties: STATE EX REL WYCKOFF v. ROSS, GOVERNOR
• Court: Wyoming Supreme Court

228 P. 636

31 Wyo. 500

STATE EX REL WYCKOFF v. ROSS, GOVERNOR

No. 1267

Supreme Court of Wyoming

August 26, 1924

On reserved questions from the District Court, Laramie County WILLIAM A. RINER, Judge.

Petition by the State on the relation of Fred Wyckoff, for a writ of prohibition to be directed to William B. Ross, as Governor of the State of Wyoming.

E. E Enterline, Lin I. Noble, W. L. Simpson, C. W. Axtell, W. L Walls, E. E. Lonabaugh, F. M. Perkins and C. A. Zaring for relator.

District courts have power to issue writs of prohibition, Const. Art V, Section 10; relator has no other available remedy, 32 C. J. 258, Howe v. Dunlap, (Okla.) 72 P. 365; Littleton v. Burgess, 14 Wyo. 173, Marbury v. Madison, 1 Cranch 163; an office is not property, State v. Grant, 14 Wyo. 57; the writ is not restricted to courts eo nomine, 22 R. C. L. 14-17; Speed v. Council, 98 Mich. 360; State v. Court (Mont.) 224 P. 866; it may be directed to the Governor, Atty. Gen. v. Barstow, 4 Wis. 742; Ekern v. McGovern, 154 Wis. 157, 46 L. R. A. (NS) 796; State v. Verago, 187 N.W. 830, 23 A. L. R. 491; People v. Shawver, (Wyo.) 222 P. 11; Section 36, Chap. 117, Laws 1921 covers separate subjects and provides for the removal of all officers, and violates Art. III and Sections 19 and 24 of the Constitution, it is therefore void; 22 R. C. L. Sec. 272, p. 566; In re Breene, 14 Colo. 401, 24 P. 3; State v. Barrett, 27 Kans. 213; State ex rel Abelman v. Douglas, (Nev. 208 P. 422; State v. Tobin, (Wyo.) 226 P. 681; Lamar Canal Co. v. Co., 26 Colo. 370; 58 P. 601; Burcher v. People, 41 Colo. 495; People v. Freidrich (Colo.) 185 P. 657; Commonwealth v. Williams, 79 Ky. 42, 42 Am. Rep. 204; Lowe v. Commonwealth, 3 Metc. (Ky.) 240; Board v. Dist. Atty., 42 Colo. 449; Craig v. State, 31 Tex. Cr. 29-30; officers removal by impeachment are not excepted, State v. Grant, 14 Wyo. 41; State v. Court, 62 Mont. 603; Gay v. Court, 41 Nev. 330, 3 A. L. R. 224; it must be tested by what it authorizes to be done, State v. Peterson, 27 Wyo. 185; State v. Stewart, (Mont.) 161 P. 309; State ex rel Holliday, 115 P. 204; under the Section the Governor is empowered to remove any officer failing to perform duties imposed by the Act, or any officer guilty of intoxication or drunkenness; no exception is made as to officers removable by impeachment only; the Legislature is powerless to add to the causes for removal, specified by Art. III, Section 19 of the Constitution, People v. Shawver, (Wyo.) 222 P. 11, 22 R. C. L. 268; the statement of one cause of removal is an implied prohibition to include others, Mechem 1st Ed. p. 457; the universal rule is that the Legislature cannot add to the constitutional grounds for removal of officers, Low v. Com., 3 Metc. (Ky.) 237; Brown v. Grover, 6 Bush 1; State v. Walta, 11 La. Ann. 489; Goodin v. Thomas, 10 Kans. 191; State v. Draper, 50 Mo. 353; State v. McNeeley, 24 La. Ann. 19; People v. Draper, 15 N.Y. 532; State v. Baker, 38 Wis. 71; Com. v. Sutherland, 3 Serg. & R. 145; Removal of Public Officers, 25 A. L. R. 201; State v. Court, 92 Wash. 375; Briggs v. McBride, 17 Ore. 640, 21 P. 878; State v. Duluth, 53 Minn. 238; Kindrick v. Nelson, (Ida) 89 P. 750; Cooley's Const. Lim. 6th Ed. 78 and note; People v. Holland, 155 N.Y. 270, 49 N.E. 775; the act could not apply to state and judicial officers, Art. III, Section 18, State v. Grant, 14 Wyo. 54; People v. Shawver, supra; invalidity of part of an act invalidates the whole, if the various parts are dependent upon each other, Com. Co. v. Boldinger, 147 F. 419; Shwartz v. Town of Gallup (N. M.) 165 P. 345; Light Co. v. Nix, (Okla.) 156 P. 293; Dunn v. City, 13 Mont. 158; State v. Stewart, (Mont.) 161 P. 309; State ex rel Abelman v. Douglas, (Nev.) 208 P. 422; Ry. Co. Westley, 178 F. 619; Co. v. Pigg, 217 U.S. 91; Ballard v. Cotton Oil Co., 34 So. 533; People v. Capelli, (Cal. App.) 203 P. 837; Welch v. Nelson et al, 23 Wyo. 409; Epperson v. Howell, 28 Idaho 338, 154 P. 621; State ex rel Pincock, Sheriff v. Franklin, (Utah) 226 P. 674; the section violates Art. 1, Section 34 of the Constitution, requiring laws to have uniform operation; in limiting the classification to officers having duties imposed by the Act, State v. Sherman, 18 Wyo. 169; State v. LeBarron, 24 Wyo. 519; the Act delegates judicial power to an executive officer in violation of Art. II, Section 1, Const.; Arbuckel v. Pflaeging, 20 Wyo. 372; Richter v. State, 16 Wyo. 437; State v. Brooks, 14 Wyo. 393; Farm Invest. Co. v. Carpenter, 9 Wyo. 110; State v. Burdick, 3 Wyo. 588. The performance of a judicial act is the exercise of a judicial function, U. P. R. R. Co. v. U. S., 99 U.S. 700; School Dist. v. Lambert, 28 Ore. 209; Meacham Pub. Ofrs. 664; Flourney v. City, 17 Ind. 169; ministerial and judicial acts are distinguishable, Longfellow v. Quimby, 48 Amer. Dec. 525; Hughes v. Streeter, 76 Amer. Dec. 777; if its qualities make the act judicial it continues to be judicial, no matter what official undertakes to perform it, Roby v. Comr's., 92 Md. 150; official action the result of judgment or discretion, is a judicial act, Grider v. Tally, 77 Ala. 422; Marlette, v. State, 100 Ala. 42; People v. Jerome, 73 N. Y. S. 306; Ex Parte Kellogg, 6 Vt. 509; Dullam v. Willson, 53 Mich. 392; In re Saline Co. 45 Mo. 52; Central Pac. Ry. Co. v. Gallatin, 99 U.S. 761; the rule is clearly stated in Zanesville v. Co., 64 O. S. 67 and Yancey v. Hyde, 121 Ind. 20; Hovey v. Noble, 116 Ind. 350; the Section covers arbitrary power in violation of Art. I, Section 7, Const., and Art. I, Section 8 requiring administration of judicial questions in the court, Eckhern v. McGovern, supra; the Section is in violation of Art. I, Section 6 in that relator is sought to be deprived of his rights without due process of law; relator has a fixed right to the office of County Attorney during his term and until his successor is elected or appointed, Art. VI, Section 4, Const., Ry. Co. v. Gallatin, supra.

David J. Howell, Atty. Gen. and Ray E. Lee, as Special Assistant Atty. Gen. for respondent.

Most of the questions submitted involve the validity of Section 36, Chap. 117, Laws 1921, authorizing the Governor to remove officers refusing to perform duties imposed by the Section, or who are guilty of intoxication or drunkenness; intoxication and drunkenness constitute misconduct or malfeasance in office, and are grounds for removal, McComas v. Krug, (Ind.) 42 Amer. Rep. 135; State v. Welsh, 109 Ia. 19; State v. Henderson, (Ia.) 124 N.W. 767; Moulton v. Selby, (Me.) 89 A. 944; legal causes for removal are set forth in People v. Shawver, (Wyo.) 222 P. 11; as to the exercise of judicial or arbitrary powers by the Governor and the sufficiency of the title of the act, we cite Lee v. Comr's., 3 Wyo. 53; Reals v. Smith, 8 Wyo. 170; State v. Grant, supra; State v. Peterson, (Minn.) 52 N.W. 655; Gay v. Court, (Nev.) 171 P. 156, 3 A. L. R. 224; Moore v. Strickling, (W. Va.) 50 L. R. A. 279; State v. Court, (Mont.) 165 P. 294, and with a special reference to the sufficiency of the title, Lewis Suth. Stat. Const. Vol. 1, Section 3; In re Fourth Jud. Dist., 4 Wyo. 133; In re Boulter, 5 Wyo. 329; Comr's. v. Stone, 7 Wyo. 280; Inv. Co. v. Carpenter, 9 Wyo. 110; Koppala v. State, 15 Wyo. 398; State v. Hall, 27 Wyo. 224; and State v. Snyder, 29 Wyo. 163; the general purpose of the act as stated in the first Section is the exercise of police power for the protection of public health, peace, safety and morals; one of the steps considered necessary to secure its enforcement was a provision to secure the proper performance of duty by peace officers, and give the Governor autority to remove officers failing or refusing to perform duties imposed upon them by the Act or who shall be guilty of intoxication or drunkenness; an officer guilty of intoxication or drunkenness is not in position to enforce the Act, the object of which is to prevent intoxication and drunkenness; other authorities showing the sufficiency of the title to this Act are City v. Lamprecht Co., 88 F. 449; Suth. Sec. 136; Gustavel v. State, 54 N.E. 123; attention may be directed to a multitude of statutes relating to different subjects and providing for the removal of officers for neglect to perform their duties, and providing other penalties not mentioned in the title, none of which have been questioned; provisions for the removal of officers for failure to perform duties described by the Act are generally considered germaine to the Act as a whole and necessary for its enforcement; In re Atwell's Estate, 93 Minn. 462; this court has construed many of the Acts referred to and recognizes the principle of construction contended for; relator is not entitled to a jury trial, Gay v. Court, 41 Nev. 330; Ekern v. McGovern, supra does not sustain the contention that removal proceedings must be tried in the courts, the Act is not special, McGarvey v. City Treas., 17 Wyo. 120; State v. Sherman, 18 Wyo. 169.

Relator's reply.

At common law, power to remove an officer is concurrent with the power to appoint; Section 318 C. S. is declaratory of the common law; authorities cited by respondent, 29 Cyc. at Page 1370; Rankin v. Jauman, 4 Ida. 53; Atty. Gen. v. Jockim, 99 Mich. 358; Cameron v. Parker, 2 Okla. 277 are not applicable to the facts here; In Dullam v. Wilson, 53 Mich. 392 a statute was held unconstitutional in attempting to delegate judicial power to the Governor; Minnesota has no provision in its Constitution providing for powers of the Governor; cases cited in that State are not authority on the point; we cite the additional case of Bell v. Judicial District, 28 Nev. 280 as to the sufficiency of the title of the Act here in question.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

Chapter 117 of the...