State v. Frazier
| Decision Date | 02 February 1918 |
| Docket Number | 1915 |
| Citation | 167 N.W. 510,39 N.D. 430 |
| Court | North Dakota Supreme Court |
Rehearing denied April 27, 1918.
Application for a writ of prohibition to restrain further proceedings in the removal of public officers.
Appeal from the District Court of Ward County, Honorable A. T. Cole Special Judge.
Judgment denying writ and dismissing proceedings affirmed.
Affirmed.
McGee & Goss, for petitioner.
The office of president of a city board of commissioners is not included in or covered by the statute authorizing the governor to remove from office, for stated reasons, any of the officers there named. Code, § 685.
The statute is plain and definite, and the rule of construction is as follows: "It is a very well-settled rule that, so long as the language used is unambiguous, a departure from its natural meaning is not justified by any consideration of its consequences or of public policy, and it is the plain duty of the court to give it force and effect." 36 Cyc 1106, 1108, 1114, 1115; 162 F. 331, 340, 95 C. C. A. 615; 170 F. 529.
"An express mention is an implied exclusion." The mention in the statute by name of all the officers subject to removal as stated, by the governor, must be construed to exclude all other officers. 36 Cyc. 1132, 1137.
In the use of the word "Mayor" in the act, the legislature did not intend to include therein the president of a board of city commissioners.
"An act is not in pari materia though it may incidentally refer to the same subject, if its scope and aim are distinct and unconnected." Code, § 685; 4 Words & Phrases, 3478; People v. New York C. R. Co., 25 Barb. 199; Waterford v. People, 9 Barb. 161; Wheelock v. Myers 64 Kan. 47, 67 P. 632; 36 Cyc. 1147.
Removal statutes are penal in their nature and operation. They should not be stretched by judicial interpretation to cover offices not plainly within their terms for such reason. Such statutes are always refused application where the subject-matter is not within both the letter and the spirit of the statute. Minnehaha Co. v. Thorn (S.D.) 61 N.W. 688; State ex rel. v. Donohue, 135 N.W. 1030; State v. Roth, 144 N.W. 339; Myrick v. McCabe, 5 N.D. 422; State v. Borstad, 27 N.D. 533; State ex rel. v. Therrin (Mich.) 45 N.W. 78; McLaughlin v. Burroughs Bros. Atty. (Mich.) 51 N.W. 283; Dullam v. Wilson (Mich.) 19 N.W. 112; Hollman v. Yoe (Kan.) 58 P. 802; State ex rel. v. Meek (Iowa) 127 N.W. 1023; State ex rel. Hickman v. Alcorn (Tex.) 14 S.W. 663; Smith v. Ling, 68 Cal. 324, 9 P. 171; State v. Preston, 34 Wis. 675; State ex rel. v. McGovern (Wis.) 142 N.W. 595.
The rule of construction of penal statute is well settled. "If a penal statute of this state contains a patent ambiguity and admits of two equally reasonable and contradictory constructions, that which operates in favor of the party accused under its provisions is to be preferred." State v. Fargo Bottling Works, 124 N.D. 387.
"A court cannot create a penalty by construction, but must avoid it by construction, unless it is brought within the necessary meaning of the act creating it." 3 L.R.A. 924; State v. Fargo Bottling Works, 124 N.W. 387.
The office of president of a board of city commissioners is excluded under the rule, Ejusdem generis. This officer was left to removal by and under the recall act. "Other police officers" means officers of like kind, degree, and station to those with whom the term or phrase is coupled. Code, § 685; 36 Cyc. 1119; Re Barre Water Co. (Vt.) 9 L.R.A. 195; Rhone v. Loomis (Minn.) 77 N.W. 31; 17 Am. & Eng. Enc. Law, 278.
When charges are once filed there is no authority vested in the governor, the referee, or other prosecuting officer to amend them by making them more specific. People ex rel. Metevier v. Therrien (Mich.) 45 N.W. 78.
In all such cases the statute must be strictly followed in the first instance, and defective charges cannot be supplemented by the prosecuting attorney or other official conducting the inquiry. MacLaughlin v. Burrows (Mich.) 51 N.W. 283; Dullam v. Wilson, 53 Mich. 393, 19 N.W. 112; Metevier v. Therrien, 80 Mich. 188, 45 N.W. 78; Hoffman v. Yoe, 58 P. 802; State ex rel. Barker v. Meek, 127 N.W. 1023; State v. Willing, 129 Iowa 72, 105 N.W. 355; Wass v. Stephens, 128 N.Y. 123, 28 N.E. 21; State v. Preston, 34 Wis. 675; Com. v. Kneeland, 20 Pick, 220; Shaver v. Ingham, 58 Mich. 654, 55 Am. St. Rep. 712, 26 N.W. 162; Harrison v. State, 37 L.R.A. 154; Felton v. U. S. 96 U.S. 699, 24 L.Ed. 875; Evans v. United States, 153 U.S. 584, 38 L.Ed. 830; Spurr v. N.W. 174 U.S. 728, 43 L.Ed. 150; State v. Grassle, 74 Mo.App. 316; Tripplett v. Munter, 50 Cal. 644; Smith v. Ling, 68 Cal. 324, 9 P. 171; State v. Alcorn, 78 Tex. 387, 14 S.W. 663; State v. Scates, 43 Kan. 330, 23 P. 479; State v. Bourgeiois (La.) 14 So. 28; Ponting v. Isman, 7 Idaho, 581, 65 P. 434; State v. Roth, 144 N.W. 369; Ekern v. McGovern, 142 N.W. 595.
The charges here are too indefinite and evasive and uncertain. The primary requisite of a judicial hearing is that the accused shall be informed of what he is to meet and definitely of the person, time, and place, in order that he may properly prepare his proof and defense. State ex rel. Ekern v. McGovern (Wis.) 142 N.W. 545.
The statute in question is unconstitutional because it attempts to delegate judicial powers to other branches of government. 40 Am. St. Rep. 29; 5 R. C. L. 263; State ex rel. v. Blaisdell, 22 N.D. 86, 132 N.W. 869; State ex rel. v. Budge, 14 N.D. 532; Glaspel v. Jamestown, 11 N.D. 86; Bowman v. Silfer, 25 Pa. 28; Page v. Hardin, 8 B. Mon. 672; State v. Pritchard, 36 N.J.L. 101; Territory v. Cox, 6 Dakota 501; Eckern v. McGoveren (Wis.) 142 N.W. 595; State ex rel. Kinsella v. Eberhart (Minn.) 133 N.W. 857; State v. Peterson, 50 Minn. 239, 52 N.W. 655; Danohue v. County, 100 Ill. 94; State ex rel. Young v. Brill, 111 N.W. 639; McDermott v. Dinnie, 6 N.D. 278.
The remedy here is by writ of prohibition.
True the rule is that where this writ or remedy will later on be available in due course, objection to jurisdiction should first be made in the tribunal acting in excess of jurisdiction, to the end that the objection may be sustained and render the writ unnecessary. But such rule has its exception, and this case comes within the exception. Here the referee would have no power to act upon or sustain such objection, but, under the mandate of his appointing power, must proceed until the inquiry is finished. Charleston v. Littlepage, 51 L.R.A. 353, 80 S.E. 121; State v. Wear (Mo.) 33 L.R.A. 341; Board v. Holt, 51 W.Va. 435, 41 S.E. 337; Swinborn v. Smith, 15 W.Va. 483; Hein v. Smith, 13 W.Va. 358; Culpepper v. Gorrell, 20 Gratt. 484; note in 135 Am. St. Rep. 258, 260; State v. District Ct. (Mont.) 56 P. 216; Ex parte Yount, 209 U.S. 123, 52 L.Ed. 714; 10 Mod. Am. Law 579.
Relief in this class of cases lies irrespective of the official interested. State ex rel. Kinsella v. Eberhart (Minn.) 133 N.W. 857; Ekrem v. McGovern (Wis.) 142 N.W. 595.
William Langer, Attorney General, H. A. Bronson, Assistant Attorney General, D. V. Brennan, Assistant Attorney General, O. B. Herigstad, State's Attorney, R. A. Nestos, Assistant State's Attorney, for respondents.
The statute here under consideration is entirely adequate to sustain the action of the governor in removing the president of a city commission; that the word "mayor" as used in said statute includes the "president of a city commission;" that his duties as an "officer" and as "custodian of public funds" are the same in effect as those of a mayor. Laws 1911, chap. 77, §§ 63, 64; Laws 1907, chap. 45, §§ 63, 64; Comp. Laws 1913, §§ 685, 3833, 3834.
This method of removal of public officials as provided by this law is merely cumulative to the methods previously existing. The law governing cities under the council system, wherever it relates to the duties of a mayor is given a blanket application to the duties of the president of a city commission. Comp. Laws 1913, §§ 3577, 3835, 9744, 10,334, 10,468, 10,482; Sess. Laws 1913, chap. 29.
One of the great duties of a mayor is to see to it that all laws and ordinances are enforced. The same is true of a president of a city commission. Under the counsel system the mayor is the chief executive officer; under the commission form the president occupies the same position. Code, §§ 3795, 3796.
He is also a peace officer the same as a mayor. Code, §§ 3571, 3573, 3833, 3834, 10,364; Smith, Sheriffs, Coroners & Constables, p. 42; (Wis.) 120 N.W. 862; 107 P. 508; 59 Hun, 107; Black's Dict. 906.
"The writ of prohibition will not issue on account of errors or irregularities in the proceedings of a court having jurisdiction, or on account of insufficiency of averment or pleading, or upon matters of defense which may be properly raised in the lower court." 16 Enc. Pl. & Pr. 1126, and cases cited.
The law here in question is constitutional. It must be noted that nowhere in the Constitution or in the Code is there anything which negatives the power of removal, either in the courts or executive officers. There is no prohibition contained in the Constitution or statutes against the removal or suspension of city officers or the president of a city commission. All officers not liable to impeachment shall be subject to removal for misconduct, malfeasance, crime, or misdemeanor in office or for habitual drunkenness or gross incompetency in such manner as may be provided by law." Const. § 197; Comp. Laws 1913, §§ 3808, 10,334, 10,467-10,482.
The removal of an officer by the governor is not an act of punishment or for such purpose, but is designed to protect the people--the...
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