State v. Prater
| Decision Date | 08 July 1922 |
| Docket Number | 358 |
| Citation | 189 N.W. 334,48 N.D. 1240 |
| Court | North Dakota Supreme Court |
Proceeding of mandamus in District court, Burleigh county Nuessle, J., to compel the defendant to deliver up the office of commissioner to the relator appointed by the board. The defendant has appealed from a peremptory writ in favor of the relator.
Affirmed.
Order affirmed, without costs.
William Langer, W. S. Lauder, Geo. E. Wallace, for appellant.
"We have not found any case where an officer who was appointed for a fixed term--and when the power of removal was not expressly declared by law to be discretionary--has been held to be removable except for cause, and wherever cause must be assigned for the removal of the officer he is entitled to notice and a chance to defend." Hallgren v Campbell, 82 Mich. 255; Field v. Com., 32 Penn St. 478; State v. City of St. Louis, 90 Mo. 19 (1 S.W. 757).
"In such a case, the rule is, and on principle must be, that the power of arbitrary removal is vested in the person or board vested with the appointing power, as incidental to the power of appointment, unless the law places a limitation on such power." Mechem Pub. Off. § 445; Throop Pub. Off. §§ 304-361; Ex Parte Hennen, 13 Pet. 230; People v. Robb, 126 N.Y. 180, 27 N.E. 267; Miles v. Stevenson, (Md.) 30 A. 646-648; Lease v. Freeborn (Kan. Sup.) 35 P. 817; People v. Fire Comm'rs. of New York, 73 N.Y. 441; People v. Shear (Cal.) 15 P. 92; Newsom v. Cocke, 44 Miss. 352; State v. City of St. Louis, (Mo. Sup.) 1 S.W. 757-758; People v. Hill, 7 Cal. 97; Smith v. Brown, 59 Cal. 672.
The authorities are practically unanimous and it is well settled that it is only where no term or tenure is fixed by the constitution or the statute that the officer holds at the pleasure of the appointing board.
The case of Lease v Freeborn, Kansas 35 P. 817 is typical of the holdings. People v. Jewett, 6 Cal. 291; People v. Hill, 7 Cal. 97; People v. Freese, 76 Cal. 633, 18 P. 812; Mechem Pub. Off. 385.
It is well settled by the authorities that it is only where no term or tenure is fixed by the constitution or the statute that an officer holds at the pleasure of the appointing power. Jacques v. Little, 51 Kan. 300, 33 P. 196; Mechem Pub. Off. 445, 454; 19 Amer. & Eng. Enc. Law, pp. 562 f, 562 g; State v. Board of Police Com'rs. 88 Mo. 144, 19 N.W. 824; Throop Pub. Off. 341.
Of course, any trustee may be removed "for good cause shown" but this fact becomes a condition precedent, and the cause or causes enumerated must be alleged, and the party notified, and causes examined. State v. City of St. Louis, 90 Mo. 19, 1 S.W. 757; Page v. Hardin, 8 B. Mon. 648, 672; 1 Dill. Mun Corp (4th ed.) 240-256.
Sveinbjorn Johnson, Attorney General, and Geo. F. Shafer, Assistant Attorney General, for respondent.
The office was created by the legislature and, of course, the legislature might abridge the term by express words or the legislature might specify an event upon the happening of which the term should end. People ex rel. Gere v. Whitlock, 92 N.Y. 190, 198.
In the case at bar the term is two years unless the board in its discretion should decide to cut it short and abridge it. This has been done by the Board of University and School Lands and was done on Saturday, April 8th, and of this the defendant and appellant cannot justly complain.
We take the position that the phrase in our statute "subject to removal by the board," and the phrase in the South Dakota statute "unless sonoer removed by him" mean by necessary implication one and the same thing, namely, they imply a discretion in the appointing power to remove at discretion and without specifying the constitutional causes required in the cases referred to in §§ 196 and 197 of the state constitution.
See State v. Kipp, supra, which we believe is on all fours in point and decisive of this case. See also People ex rel. Gere v. Whitlock, supra, and State ex rel Little v. Mitchell, 33 P. 104.
So, where the statute authorizing the appointment contains a reservation of the right of removal without preferring charges and this power is exercised by the removal of the incumbent and the appointment of another in his stead, the right of the former to the office will cease. State v. Somers, 53 N.W. 146; Townsend v. Kurtz, 83 Md. 331; 34 A. 1123.
This is a proceeding of mandamus involving the office of Commissioner of University and School Lands. The trial court found that the relator was entitled to the office. The defendant has appealed from the order.
The facts are not disputed. They are as follows: The defendant was appointed Commissioner on September 1, 1921, for a period of two years. He qualified and took office. On April 8, 1922, the board by resolution removed the defendant, declared the office vacant, and thereafter appointed the relator to fill the same. No charges were preferred; no notice thereof served. The board assumed the power to declare such office vacant in its discretion without the necessity of preferring charges of misconduct, malfeasance, crime, or misdemeanor in office, habitual drunkenness or gross incompetency, and without making any findings that some or all of such charges were true.
The defendant maintains that he was appointed for a specific term; that the statute prescribes a specific term §§ 285, 296, C. L. 1913); that he was not holding such office at the pleasure or discretion of the board; that in the absence of statutory authority the rule of the common law, and the rule applicable here, is that a public officer holding a definite term can be removed only for cause after notice and hearing. The relator contends that the term of the defendant was not for a definite two-year period, but is subject to the limitation "subject to removal by the board," which necessarily implies that the board, in its discretion, may sooner remove the Commissioner; that the legislature might abridge the term by express words, or might specify an event upon the happening of which the term would end. There is practically no controversy upon the law. It is practically conceded that a public officer, appointed for a definite term with a delegate power of removal granted to the appointive power, can only be removed for cause after notice and hearing. This is the rule of the common law. Hallgren v. Campbell, 82 Mich. 255, 46 N.W. 381, 9 L.R.A. 408, 21 Am. St Rep. 557; People v. Whitlock, 92 N.Y. 191. See Mechem on Public Officers, § 445.
It is likewise conceded that where a public officer is appointed for a term not designated, or indefinite, the appointing power may exercise its right of removal at its pleasure at any time without notice or hearing. State v. Archibald, 5 N.D. 359, 66 N.W. 234; 22 R. C. L. 562. In the former case the power of removal is conditional; in the latter, arbitrary, 29 Cyc. 1408. The office involved is statutory. It was wholly within the power of the legislature to prescribe the method of appointing and of removal. 22 R. C. L. 561; State ex rel. Wehe v. Frazier, 47 N.D. 314, 182 N.W. 545. This legislative power of removal concerning a public office created by statute is not subject to the restrictions of the constitutional provisions concerning the removal of certain officers by impeachment or other officers upon stated grounds. Sections 196, 197, Const.; State v. Archibald, 5 N.D. 359, 379, 66 N.W. 234; State ex rel. Wehe v. Frazier, supra. The power of removal may be exercised in a manner prescribed by the legislature. State ex rel. Shaw v. Frazier, 39 N.D. 430, 434, 167 N.W. 510. Accordingly, the question presented upon this appeal is entirely one of statutory construction and interpretation. If the statute read, "Subject to removal for cause," or "subject to removal without cause," no difficulties would be apprehended in either construction or interpretation. Likewise, if the statute fixed specifically a term for two years with an independent power of removal, otherwise stated, the difficulties of interpretation and construction would be less pronounced. However unpleasant the function may be, it nevertheless is made our duty to ascertain the legislative intent concerning the power of removal, which in the statute might have been fully and clearly expressed without doubt by the use of two simple words. This court may neither reverse a legislative policy nor confer a right of office unless the legislative intent appears so to do. People v. Woodruff, 32 N.Y. 355, 363.
The board of university and school lands was first created by chap. 25, Laws of 1890. This act gave the board full control of all public lands, and the investment of permanent funds derived therefrom. This act was supplemented by chap. 146, Laws of 1890, which granted to the board the control of school and university lands and the investment of funds arising therefrom. The legislature, 1893, amended the acts mentioned. It granted to the board the power to appoint a commissioner. The pertinent provisions are as follows:
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