State v. Mitchell

• Decision Date: 06 May 1893
• Citation: 33 P. 104,50 Kan. 289
• Parties: THE STATE OF KANSAS, on the relation of John T. Little, Attorney General, v. WILLIAM M. MITCHELL
• Court: Kansas Supreme Court

33 P. 104

50 Kan. 289

THE STATE OF KANSAS, on the relation of John T. Little, Attorney General, v. WILLIAM M. MITCHELL

Supreme Court of Kansas

May 6, 1893

Decided January, 1893.

Original Proceeding in Quo Warranto.

ALL the material facts are stated in the opinion, filed May 6, 1893.

John T Little, attorney general, and S. O. Thacher, for plaintiff:

In the case at bar, the act establishing the board of commissioners and the entire law upon the subject of railroads, consisting of 28 sections, approved March 6, 1883, is one entire act. This act was a substitute for house bills 269, 240, 190, 200 201, 32, 33, 98, 26, and 47. The investigation of these various bills shows that the question was before the house, and was discussed, giving the executive council the right to remove its commissioners for cause, but these bills finally culminated in the act under consideration. It will certainly not be seriously contended for a moment that the legislature intended that the council should only remove for cause, when, having that matter under consideration in the bills which finally became merged into law, it struck out cause, and made it discretionary with the council.

On the power of the council to remove without cause, see Mechem on Public Officers, §§ 448 and 454, and note 1, on page 454, and cases cited. See, also, 44 Ohio St. 104, 105; 46 N.J.L. 344; 92 N.Y. 191; 73 id. 437; 32 Pa. 482; 13 Pet. 258, 259; Mech. Pub. Off., §§ 459, 460; 92 Am. Dec. 528. But when the appointing power can remove only for "cause or good cause shown," this fact becomes a condition precedent, and the cause or causes enumerated must be specially alleged, the party notified, and the causes examined. 49 N.Y. 582.

Offices created by the constitution and having a definite term cannot be vacated before the expiration thereof without a trial of some sort; but the legislative offices, or offices created by legislature, may be filled, vacated or abolished as the legislature may prescribe. They are wholly within the legislative control; the elements of a contract, either as to tenure or compensation, do not enter into them. Pom. Stat. Law, § 553; Cooley, Const. Lim. 276 and note; Dill. Mun. Corp. 245 and 250. The leading case to which both textbooks and decisions refer, in discussing the power to remove from office without assigning cause or notice, is Ex parte Hemnen, 13 Pet. 258, 259. A large number of cases have followed this decision, settling that a discretionary power to remove officers may be exercised without notice. Hallgreen v. Campbell, 82 Mich. 255; 21 Am. St. 557. See, also, Butler v. Pennsylvania, 10 HOW 402; Crenshaw v. United States, 134 U.S. 99, 104, 105; Conner v. New York, 2 Sandf. 355; Conner v. New York, 5 N.Y. 285; The State v. Douglass, 26 Wis. 428; Bryan v. Cattel, 15 Iowa 538; Hennon v. Perry, 24 Tex. 253.

The question before the court is important, and somewhat tinged with a political aspect. In the opening of the opinion of Justice Brinkerhoff, in The State, ex rel., v. Kennon, 7 Ohio St. 546, are pertinent observations from a high source, on the reluctance, yet pressure, a court must often feel in passing on questions colored with a partisan hue.

David Overmyer, for defendant:

Where a statute delares the tenure of an office, the incumbent holds by that tenure. The constitution, § 1, article 15, is as follows:

"The tenure of any office not herein provided for may be declared by law; when not so declared such office shall be held during the pleasure of the authority making the appointment."

I hold that it means that when the tenure of any office not provided for by the constitution is declared by law, then that same office is not to be held merely during the pleasure of the authority making the appointment, but is to be held during the term so declared. Section 7 of article 11 of the California constitution is substantially the same as § 2, article 15, of our constitution. Respecting its meaning, the California court says:

"The obvious meaning of which is, that in those offices the term of which is not fixed by law, the incumbent may be removed at the pleasure of the appointing power, but where the tenure is defined, then the officer shall hold for his full term. The language, 'where the duration is not provided by law, shall hold at the pleasure of the authority making the appointment,' is to be taken in a negative sense when the duration has been provided, and the rule expressio unius est exclusio alterius must govern."

See The People, ex rel., v. Jewett, 6 Cal. 291.

Our constitution, then, means that where the tenure of the office has been declared by law, the incumbent does not hold the office at the pleasure of the appointing power, but for the "full term." Where an office is created by the legislature, and the tenure or term of office is fixed by law, the incumbent holds such office during said term or tenure, subject, of course, to removal for cause. The office of railroad commissioner is an office created by the legislature. The whole inquiry, therefore, is, Has the term or tenure of said office been declared by law? If it has, the incumbent of the office does not hold it subject to the pleasure of the authority making the appointment. If it has not, then the incumbent does hold subject to the pleasure of the authority making the appointment. It certainly cannot be denied that the act of 1883, § 2, which provides for the railroad commission, declares the tenure or term for the office.

It will be observed that, under said § 2, when a commissioner is elected to fill a vacancy, he does not hold at the pleasure of the appointing power, but holds for a definite period, to wit, the residue of the term made vacant by resignation or otherwise; and the last word of the sentence is the word "term," and the term of service of one who fills the vacancy is for the residue of the term. What term? Why, the term declared by law, namely, three years from some given date, which was the date of the appointment.

The removal clause of § 2, chapter 124, Laws of 1883, to the effect that the executive council may at any time remove such commissioners, or any of them, and elect others to fill a vacancy, is a provision upon the subject of removal from office independent of, and in no sense qualifies the clear and absolute character of, the declaration of the term or tenure. Having fixed the term, any provision following which does not inhere in the description of the period of the natural term, if it would have the effect to cause the office to be held at the pleasure of the authority making the appointment, must be held unconstitutional and void.

It is settled by authority that the office cannot at one and the same time be held by an incumbent by virtue of a term declared by law, and at the pleasure of the appointing power. It may be held either way, but it cannot be held both ways at the same time, for the existence of a term is totally repugnant to the idea of the holding at the pleasure of the appointing power. The two ideas are irreconcilable. See Mech. Pub. Off., § 385; Speed v. Crawford, 3 Metc. (Ky.) 207; Webster's Dict., word "Term."

It is established by all of the authorities that it is only where no term or tenure is fixed by the constitution or the statutes that the incumbent holds at the pleasure of the authority making the appointment. See Am. & Eng. Encyc. of Law, pp. 562f, 562g; The People, ex rel., v. Hill, 7 Cal. 97; The State, ex rel., v. Chatburn, 63 Iowa 659; Collins v. Tracey, 36 Tex. 546; The State, ex rel., v. Police Commissioners, 88 Mo. 144.

J. G. Wood, of counsel for defendant.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the 25th day of March, 1891, William M. Mitchell was elected railroad commissioner of the state, as provided by § 2, chapter 124, Laws of 1883, for the term commencing April 1, 1891. (Gen. Stat. of 1889, P 1326.) Mitchell qualified and entered upon the duties of his office. On the 8th day of February, 1893, at a regular session of the executive council of the state, Mitchell was removed from the office as such commissioner, and John Hall was elected to fill the vacancy caused by the removal.

On the part of the plaintiff, the contention is, that the executive council, under the statute, has the power to remove the commissioners, or any of them, at its discretion, and elect others to fill their places. On the other hand, the defendant claims that his term of office has been declared by the statute to be three years; that his term has not expired; that he does not hold the office subject to the order of the executive council, and, therefore, under the provisions of the constitution, that he has not been legally removed. Section 1 of article 15 of the state constitution ordains that --

"All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law."

Section 2 ordains that --

"The tenure of any office not herein provided for may be declared by law; when not so declared, such office shall be held during the pleasure of the authority making the appointment; but the legislature shall not create any office the tenure of which shall be longer than four years."

The office of railroad commissioner is created by the legislature, by the statute. It is not an office specifically provided for in the constitution. The legislature might have devolved the duties of such an office upon the executive council, or any member thereof. It is conceded that the legislature, in creating the office, had the right to declare the term or tenure thereof, and also that if the term or tenure of the office is not fixed by the statute, the office is held during the pleasure of the executive council, the...