State v. Burke

• Decision Date: 12 March 1894
• Citation: 36 P. 281,8 Wash. 412
• Parties: STATE EX REL. MCREAVY v. BURKE.
• Court: Washington Supreme Court

36 P. 281

8 Wash. 412

STATE EX REL. MCREAVY v. BURKE.

Supreme Court of Washington

March 12, 1894

Appeal from superior court, Thurston county; M. J. Gordon, Judge.

Information in the nature of quo warranto brought by the people of the state of Washington, on the complaint of John McReavy against Thomas Burke. Defendant obtained judgment. Relator appeals. Affirmed.

Turner, Graves & McKinstry, for appellant.

Jas. A. Haight, Asst. Atty. Gen., and A. F Burleigh, for respondent.

SCOTT, J.

By an act of the legislative assembly approved March 21, 1893, a board to be known as the "State Capitol Commission" was created for the purpose of erecting a state capitol building; said board to consist of five members, of whom three were to be appointed by the governor, by and with the advice and consent of the senate. The appellant was one of the members originally appointed by the governor to a position on said commission under the provisions of this act. He held this office until the 6th day of February, 1894, when the governor filed in the office of the secretary of state an order removing appellant from said office, and appointing respondent to fill the vacancy caused by the removal, a copy of which order was duly served on appellant. The respondent duly qualified and entered upon the duties of the office, and thereupon appellant brought this information in the nature of quo warranto in the superior court of Thurston county, for the purpose of trying the question of the title to said office, as between himself and the respondent; alleging in his information, after setting forth the facts hereinbefore stated, that the removal was made by the governor without authority, and without notice to him of the pendency of investigation of any charge or charges against him of misconduct in office, and without having given him any opportunity whatever to defend himself against any such charge or charges. To this information, respondent demurred on the ground that the same does not state facts sufficient to constitute a cause of action, and upon the further ground that it appears affirmatively from said information that the relator was duly and legally removed from said office, and the defendant duly and regularly appointed to fill the vacancy, and had duly qualified, and entered upon the duties of said office. The court below sustained the demurrer, and, appellant electing to stand upon his information, judgment was rendered in favor of the respondent, from which judgment the relator took his appeal to this court.

The act creating said board contained the following clause relating to the term of office: "The commissioners so appointed shall hold office till the completion of said building and the acceptance thereof by the state unless sooner removed for cause by the governor." No way was specified in said act as to the manner of such removal. The only other legislation upon the subject is found in an act approved March 10, 1893 which is as follows: "Section 1. The governor of the state of Washington is hereby authorized and empowered to remove from office all state officers appointed by him not liable to impeachment for incompetency, misconduct or malfeasance in office. Sec. 2. Whenever the governor is satisfied that any officer not liable to impeachment has been guilty of misconduct or malfeasance in office, or is incompetent, he shall file with the secretary of state a statement showing his reason with his order of removal, and the secretary of state shall forthwith send a certified copy of such order of removal and statement of causes by registered mail to the last known post-office address of the officer removed. Sec. 3. At the time of making the removal from office herein provided for, the governor shall appoint some proper person to fill such office, who shall forthwith demand and receive from the officer removed the papers, records and property of the state pertaining to the office and shall perform the duties of such office and receive the compensation thereof until his successor is appointed." This act seems to have been passed in pursuance of section 3, art. 5, of the constitution, which provides that: "All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law." The office in question is a state office, and such officers do not fall within the class of state officers liable to impeachment. The order removing appellant as a member of said commission specified that it was for misconduct in office. It is contended by appellant that he could not be removed until after a hearing upon charges, whereof he should have notice and an opportunity to appear and defend. It is conceded that no such notice was given, or hearing had. A long line of authorities have been presented, and an able argument made, upon the proposition that where an officer has been appointed for a definite term, and is only subject to removal for cause, he cannot be removed except in pursuance of a finding against him upon charges constituting a cause, of which he has had notice, and an opportunity to contest; and, while there are some cases to the contrary, we are well satisfied that the great weight of authority is with the appellant, and the question to be determined is whether this case falls within that class. This depends upon the question as to whether such term is a fixed and definite one, within the contemplation of such rule. The office is not one provided for by the constitution, but was created by legislative enactment. If the term depended solely upon the provision in the act that "the commissioners so appointed shall hold office till the completion of said building and the acceptance thereof by the state," we would regard it as a fixed and definite one,-as much so as if the act prescribed that the term should continue for two years. But it does not depend upon this provision, exclusively. In enacting the law the legislature recognized the fact that public interests might require the term of service of any particular appointee to be terminated before the completion and acceptance of the building, and consequently provided that the persons appointed should only so hold "unless sooner removed for cause by the governor."

It will be noticed that no cause is specified in the act, nor any manner of removal, other than it shall be by the governor. Owing to this failure to point out any method of removal, it seems clear that the legislature must have had in view the prior act relating to removals by the governor; and, if such is the case, the two acts should be construed together, in this connection. The fact that the last act contains the clause that it does with regard to removals lends force to the view that it was intended as a limitation of the term and that the term was intended to be an indefinite one, depending in part, as to its limitation, upon the happening of the contingency contained in the clause; otherwise, it would have been unnecessary to have inserted this clause, for the prior act conferred the power to remove generally upon the governor. The case presented varies in this respect from many of those cited, and strengthens the respondent's position. If the clause relating to removals by the governor in the act creating the board depended entirely upon the constitutional provision respecting removals, independent and exclusive of the prior legislative enactment, it would probably be inoperative, on account of indefiniteness in failing to prescribe any manner of proceeding; and it might be open to the further objection that the question to be determined is a judicial one, and the governor, as such, has no judicial power. Such power is expressly vested by our constitution in the courts. It is true the legislature may create other courts than those specified by the constitution; "inferior courts," according to the language used, but inferior, perhaps, only in the sense that the jurisdiction would be special and limited, and not general. There is no question but that the legislature could have constituted the governor, or any person or body it saw fit to, a court to determine such questions, and have made such determination final. But there was no attempt whatever to do this. It is a well-settled rule that legislative enactments should be so construed as to be given force and rendered operative, if practicable, under recognized rules of construction. Therefore, it seems necessary, in order to give the later act force in this particular, that it should be construed in conjunction with the prior act relating to removals from office. It is not contended by appellant that this act is unconstitutional, except only incidentally, in alluding to the fact that it lays down an additional ground for removals from office to those contained in the constitution, viz. the incompetency of the incumbent, which is not involved in this case. As appellant has not attacked the act upon constitutional grounds, in connection with this case, we do not question it; for it is well settled that the courts will approach such questions with the greatest caution, and that acts of the legislature will not be held void or unconstitutional unless the question is directly involved, and the conflict clearly apparent. Furthermore, if the act should be held unconstitutional as applying to an office created by the constitution, or as to one created by the legislature with a definite prescribed term, it seems to us it may yet have force in connection with the removal clause in the law creating this commission. Neither does ...