State v. Johns

• Decision Date: 14 July 1926
• Docket Number: 20033.
• Citation: 139 Wash. 525,248 P. 423
• Parties: STATE ex rel. DAVIS v. JOHNS.
• Court: Washington Supreme Court

248 P. 423

139 Wash. 525

STATE ex rel. DAVIS v. JOHNS.

No. 20033.

Supreme Court of Washington, En Banc.

July 14, 1926

Action in the nature of quo warranto by the State, on the relation of J. H. Davis, against Paul H. Johns, to try title to the office of Regent of the State University. Respondent's general demurrer to the information sustained, and writ denied.

Askren Main, and Bridges, JJ., dissenting.

Wright Froude, Allen & Hilen, Preston, Thorgrimson & Turner Chadwick, McMichen, Ramsey & Rupp, and Peters & Powell, all of Seattle, for relator.

John H Dunbar, of Olympia, and Burkey & Burkey, Hayden, Langhorne & Metzger, and H. G. Rowland, all of Tacoma, for respondent.

MITCHELL J.

This is an action in the nature of quo warranto to try the title to the office of regent of the state university. The information alleges: That heretofore the then Governor appointed the relator to the office for the term of six years beginning on the second Monday of March, 1922, and that he accepted the appointment and qualified, and ever since the second Monday of March, 1922, he has been a duly appointed, qualified, and acting regent of the university. That on the 4th day of May, 1926, the Governor filed with the secretary of state and the secretary of state thereafter forthwith sent a certified copy by registered mail to relator of a certain purported order of removal, as follows:

'I, Roland H. Hartley, Governor of the state of Washington, being satisfied that James H. Davis, duly appointed and acting member of the board of regents of the University of Washington, has, in my judgment, been guilty of misconduct in office, do by virtue of the power in me vested hereby remove the said James H. Davis from his said office as said member of the board of regents of the University of Washington, and the vacancy in such office existing by reason of such removal I do hereby fill by the appointment of Paul H. Johns, of Tacoma, Wash., as member of the board of regents of the University of Washington for such unexpired term ending the second Monday in March, 1928.'

That on May 7, 1926, over the protest of relator, the respondent usurped the office, assumed and continues to perform the functions of the office to the exclusion of relator, who is rightfully entitled to such office. That other than as set forth in the order no charge has been filed against the relator, nor has he had any notice of charges against him, nor has any hearing been had as to any charges against him, nor any other order of removal served or filed. That he has no knowledge or notice of what fact or facts, if any such there be, the Governor considered constituted misconduct of which the relator is stated in the order to have been guilty. A general demurrer to the information has been filed.

The office in question is under the appointive power of the Governor by and with the advice and consent of the Senate. Constitution, art. 13, § 1. The power of removal is with the Governor. Article 5, § 3, of the Constitution provides:

'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.'

Pursuant to the provisions of the Constitution the Legislature, Session Laws 1893, p. 247, enacted what are now sections 10988, 10989, and 10990, Rem. Comp. Stat. The first section reads:

'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.'

The second section reads:

'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 reasons 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 postoffice address of the officer removed.'

The third section provides that at the time of making the removal from office the Governor shall appoint some one 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. There is no contention in this case by counsel that a regent of the university is liable to impeachment.

Counsel for the relator, referring to former decisions of this court upon which counsel for respondent rely, have cited and quoted from later cases of this court which they claim evince a modification of such former decisions. Those cases thus cited have been considered, and are found to have arisen where the officer sought to be removed and the applicable procedure therefor were distinctly different from those where the appointive and removal power lay with the Governor. They are not in point. We are so satisfied they are not in point that we refrain from analyzing them or further distinguishing them, because we are convinced that the language in them now seized upon on behalf of the relator must yield to the maxim, not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used.

Without stating them as mentioned in the briefs, we think all points and contentions raised by the relator may be discussed by a consideration of former decisions of this court holding adversely to all such points and contentions. The first case, State ex rel. McReavy v. Burke, 8 Wash. 412, 36 P. 281, arose after the act of the Legislature of 1893 for the removal of officers. It was a case of removal by the Governor of a member of the state capitol commission, who had been appointed by the Governor under the provisions of an act of the Legislature approved March 21, 1893 (Laws 1893, p. 462). The act provided for a commission of five members, three to 'be appointed by the Governor by and with the advice and consent of the senate.' The commissioner removed, however, had been appointed after the Legislature adjourned, and there had been no confirmation. The case was decided in March, 1894. Tersely stated, it was to the effect that for the purposes of that case the act of 1893 for the removal of officers not liable to impeachment, and certain parts of the act of 1893 creating the capitol commission, should be construed together, and that so construing them the legislative intent was plain that the tenure of such appointive member should be indefinite and such officer liable to removal without a hearing for misconduct, malfeasance, or incompetency when the Governor should be satisfied that any such cause existed.

The next case was State ex rel. Howlett v. Cheetham, 19 Wash. 330, 53 P. 349, decided May, 1898, adversely to the relator. He had been removed by the Governor from the office of arid land commissioner, to which he had been appointed by the Governor for a fixed and definite term under the provisions of the act. Session Laws 1895, p. 452. In that case two distinctions were sought to be made over the McReavy Case. In the former the term was for an indefinite time, here it was fixed; there, as it was argued, the validity of the removal act was not clearly settled by the opinion; here in was insisted 'if the act of 1893 cannot be construed as providing for notice and a hearing on the causes assigned it is unconstitutional and void.' In the opinion the court said that the relator contended that the holding in the McReavy Case was in his (Howlett's) favor on the ground that the term here is a fixed and definite one. Answering the contention, the court said:

' But what was said in the opinion there with reference to the weight of authority upon the giving of notice and an opportunity to appear and defend in cases of fixed terms was as to those cases where the act did not provide otherwise. Section 2, art. 5, of the Constitution is as follows:

"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 Constitution left it entirely to the Legislature. It is clear that the power of removal may be vested in the Governor without any right of appeal, and in construing the act the court held that it provided for a removal by the Governor without notice whenever he was satisfied that the incumbent had been guilty of misconduct or malfeasance in office, and that his action was not subject to the control of the courts, the intention being to provide for a summary removal of minor state officers without the delays occasioned by protracted litigation.'

We have italicized certain of the language used, as it explains what the court meant by 'the weight of authority,' spoken of in the McReavy Case, to the effect that it proceeded from those jurisdictions where there was an absence of such procedural directions as those contained in our written law. Another important statement in the language quoted, in the light of points raised in the present case, is, 'it is clear that the power of removal may be vested in the Governor without any right of appeal,' in a summary way.

Still another case is that of State ex rel. Fay v Easterday, 20 Wash. 709, 54 P. 1135, decided November 18, 1898. The relator had been removed by the Governor from the board of regents of the state university, as is the present case. He presented all the questions, pertinent to his case, that had been urged in the two former cases including the validity of the removal act, in his pleadings and written arguments. In the same manner he alleged and argued that the office of regent of the university was a...