State v. Purchase

• Citation: 222 N.W. 652,57 N.D. 511
• Decision Date: 28 December 1928
• Court: United States State Supreme Court of North Dakota

222 N.W. 652

57 N.D. 511

STATE OF NORTH DAKOTA, Respondent, v. GEORGE H. PURCHASE, Appellant

Supreme Court of North Dakota

December 28, 1928

Appeal from the District Court of Logan County, Jansonius J.

Affirmed.

L H. Connolly, for appellant.

"If a party who appeals from the judgment of an inferior court does not file a bond with a surety to the adverse party, as required by statute, the superior court has no jurisdiction of the action. Stanton v. Ballard, 133 Mass. 464; Brown v. Chicago, M. & St. P.R. Co. 10 S.D. 633, 66 Am. St. Rep. 730, 75 N.W. 198; Oshkosh Waterworks Co. v Oshkosh, 106 Wis. 83, 81 N.W. 1040; Gruetzmacher v. Wanninger, 113 Wis. 34, 88 N.W. 929; Bullard v. Kuhl, 54 Wis. 544, 11 N.W. 801; Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N.W. 85." Aneta Mercantile Co. v. Groseth, 20 N.D. 137, 127 N.W. 718.

"The mere order permitting an amendment of a pleading is of no effect unless and until it is complied with. Kimball v. Gearheart, 12 Cal. 28; Briggs v. Bruce, 9 Colo. 282, 11 P. 204; Hayne, New Trial, p. 169, § 57. By not making the amendment asked plaintiff must be treated as having abandoned it. But the amendment which the judge certified he intended to allow is wholly insufficient as a pleading to entitle plaintiff to invoke the bar of the Statute of Limitations." Satterlund v. Beal, 12 N.D. 122, 95 N.W. 518.

"While the power exercised by the governor is quasi judicial in character, it is limited in scope and must be exercised in strict compliance with the Constitution and laws bearing upon the question." Groesbeck v. Bairley (Mich.) 176 N.W. 403.

"The legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject, is clear, certain, and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms. 2 Lewis's Sutherland, Stat. Constr. 2d ed. 701. Courts determine only by construction the scope and intent of a law when the law itself is ambiguous or doubtful." State v. Rother, 56 N.D. 934, 219 N.W. 574.

George H. Drowley and William Langer, for respondent.

"In all such cases it is hardly necessary to observe that where there is a right of appeal, it is a right reserved to the parties to the action. So, in this case the petitioners performed the office of informing, or of complaining or charging the respondents with official misconduct, crime, misfeasance, or malfeasance in office; they are in effect complaining witnesses and are not in reality parties to the action." State v. Grubb, 48 N.D. 1212, 189 N.W. 326.

Burr, J. Nuessle, Ch. J., and Burke, Birdzell, and Christianson, JJ., concur.

OPINION

BURR

In 1927 the defendant became the duly elected, qualified and acting state's attorney of the county of Sioux in this state. On the 15th day of August, 1927, charges of misconduct in office, malfeasance, and habitual drunkenness were made against the defendant by five qualified electors of the county of Sioux and filed with the governor, but no indemnity bond was filed or approved at that time. The governor of the state thereupon issued an order suspending the defendant from the office of state's attorney, appointing the Hon. C. L. Crum as special commissioner to hear the testimony, and the Hon. Scott Cameron, a competent attorney, to appear on behalf of the state and prosecute the proceedings. The answer of the defendant to the complaint is in effect a general denial. After the parties appeared before the commissioner at the time and place set for hearing, an adjournment was had and on the hearing being resumed an amended complaint was filed on behalf of the state, signed by four of the relators and one additional person, and verified by the five signers. The defendant claims the commissioner had no power to permit an amended complaint to be filed. To this amended complaint, "oral answer was interposed -- denying each and every allegation contained in the complaint, except that defendant admitted that he was the duly elected, qualified and acting state's attorney for Sioux county, North Dakota, and it was further stipulated and agreed by and between the attorneys for the state and the attorney for the defendant that the answer served to the original complaint stands as answer of the defendant to the amended complaint." Testimony was taken and during the trial various objections were made by the defendant as epitomized in the specifications of error and objections set forth hereinafter. The testimony having been reduced to writing the commissioner made his report to the governor without findings or recommendations. This report was filed on the 20th day of October, 1927, and on the 22d day of November, the hearing was had before the governor. At that time the defendant objected to the jurisdiction of the governor to proceed further with the removal proceedings on the following grounds:

1. That at the time the proceedings were commenced no indemnity bond had been filed with or approved by the governor.

2. That the amended complaint had not been signed by five duly qualified electors of the county of Sioux.

3. That the governor had not directed the attorney general of the state to file any complaint and no verified complaint or amended complaint was ever verified by the attorney general.

4. That no order was issued by the governor requiring the commissioner to hear or determine any matters set forth in the amended complaint.

5. That no proof whatever was submitted showing the signers of the amended complaint were electors of the county of Sioux.

6. That one of the signers was not an elector of the county of Sioux.

7. That the governor had not set the date of hearing within ten days after the filing of the commissioner's report. The governor required the necessary indemnity bond to be given and it was furnished, and on the 23d day of November, 1927, the governor issued his order removing the defendant from the office of state's attorney, basing his decision upon the testimony taken and reported to him by the commissioner, and finding the defendant guilty of misconduct, neglect of duties in office, and habitual drunkenness. Thereupon the defendant appealed to the district court of the county of Logan, the appeal being taken upon grounds similar to the objections heretofore set forth and on the additional grounds that the findings of the governor as to misconduct, neglect of duty, and habitual drunkenness were not sustained by the evidence, and that chapter 230 of the Session Laws of 1927 is unconstitutional as violating the 7th and 14th Amendments to the Constitution of the United States and sections seven and thirteen of the Constitution of this state.

The district court of the county of Logan heard this appeal in April, 1928, and affirmed the action of the governor in removing the defendant from the office of state's attorney. Thereupon the defendant appealed to this court, on the grounds, in brief, that no indemnity bond had been filed at the time the proceedings were instituted; that no proof had been submitted showing the signers of the complaint or amended complaint to be electors of the county of Sioux; that no valid or proper amended complaint had been served upon him; that Mr. Scott Cameron had no right or power to verify the amended complaint, not being the attorney general of the state; that one of the signers to the amended complaint was not an elector of the county of Sioux; that no date of hearing had been set by the governor of the state of North Dakota to be held on a day not more than ten days from the date of the filing of the commissioner's report, and that more than ten days elapsed after the filing of the commissioner's report before the date was set by the governor;" that the evidence is not sufficient to show the defendant guilty of misconduct, neglect of duties, or habitual drunkenness, and there was not sufficient evidence introduced to show him guilty of any misdeeds, or habitual drunkenness, that would affect or did affect the performance of his official duties as state's attorney.

A proceeding to remove from office is not a criminal one. State ex rel. Payne v. District Ct. 53 Mont. 350, 165 P. 294. "Such proceeding for removal from office is an administrative function not judicial though it is exercised in a judicial manner." State v. Dahl, 140 Wis. 301, 122 N.W. 748. It is "not intended as a punishment for crime, and while such proceedings in some respects resemble a criminal action they are only quasi criminal, and negative the idea of their being criminal." Archbold v. Huntington, 34 Idaho 558, 201 P. 1041. "Such proceedings are authorized for the good of the public service, not as a punishment of the officer, and are remedial rather than penal in their nature." Re Nash, 147 Minn. 383, 181 N.W. 570.

In the same case of Re Mason, 147 Minn. 383, 181 N.W. 570, the court held that the proceedings for the removal of a state's attorney "for malfeasance in the performance of his official duties are not governed by the strict rules which govern trial in court."

The right to hold office is neither a vested right nor a property right. It is an employment and the public may prescribe rules for removal. After election or appointment the officer has the right to hold the office and enjoy the emoluments unless removed by law. When these rules for removal are enacted they become exclusive, and are construed strictly for the purpose of determining whether the charges laid are contained therein. This is the basis for the apparently contrary authorities such as Atty. Gen. v. Bairley, 209 Mich 120, 176 N.W. 403. The strict construction is required in order to ascertain whether the charge is included in the statute. When once found to be...