I dissent. The majority opinion holds, in effect, that the district court was in error in granting the writ of prohibition in the comparatively unimportant particular wherein it denies the power of the Governor to proceed further with the hearing looking to the removal of the members of the Highway Commission, but upholds the contentions of the members of the commission and affirms the district court in denying the power of the Governor to remove the members of the commission upon the hearing had.
The Governor, as the executive head of the state government, is vested with broad discretionary powers and the majority opinion creates a dangerous precedent by unreasonably restricting such discretionary powers in the removal by the executive of members of his official family, his appointees. The fact that the members of the present commission are not the *Page 450 appointees of the present Governor is of no moment to the controversy. Upon the Governor practically alone rests the responsibility of the credibility of his administration, and to deny him the practical control of his appointees, particularly in the expenditure of public funds, goes a long way towards the destruction of the right to hold the Chief Executive responsible for the efficient administration of a government of which he is the head and which was one of the chief purposes of having a single individual the executive head of the government.
It is my opinion that the reasoning of Chief Justice Taft in the case of Myers v. United States, 272 U.S. 52,47 Sup. Ct. 21, 25, 71 L.Ed. 160, is unanswerable. That opinion defines the powers of appointment and removal of the President as such powers relate to the appointment of inferior executive officers, and the reasoning applies to the Chief Executive of a state, as well as the Chief Executive of the nation. It was there said in part: "The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. * * * As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him. * * * The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. * * * To hold otherwise would make it impossible for the President, in case of political or other difference with the Senate or Congress, to take care that the laws be faithfully executed."
This is my first ground of dissent from the majority. My second is that by analogy to the procedural practice in courts of law, the Governor's decision was clearly justified as a "judgment on the pleadings." *Page 451
In the case of State ex rel. Nagle v. Sullivan, 98 Mont. 425,40 P.2d 995, 99 A.L.R. 321, upon which the majority largely rely, the attempted removal was made summarily, without notice or hearing. In the action at bar specific notice was given setting out in detail the matters and things with which the Governor charged the members of the commission as having done illegally. Amongst such charges was that two members of the board had appointed the third to do and perform certain things for a stipulated compensation, and under such authority the member so authorized had drawn out of the state treasury more than $5,000. The members of the commission in their answers admitted this accusation, but now contend that they were not accorded a hearing in fact, because they were not permitted to show "good faith" in such acts. When a plain and palpable violation of law is admitted, where is the necessity for granting a hearing to show good faith? That such act of a board of public officials is in derogation of sound public policy and the law is everywhere accepted as is shown by numerous decisions in the books, and both the law and common sense will sustain the statement without incumbering the record with useless citations.
The ban placed upon the Governor by the writ issued out of the district court is raised by the majority opinion in order that the Governor may proceed with further hearing if he desires, and at such hearing additional charges may be made and the defense of good faith urged. After such hearing it will then be within the power of the Governor to render his decision irrespective of the evidence produced, and it still remains within the power of the Governor, acting within the broad discretionary powers vested in him, to determine whether he will remove the members of the commission or not, and neither this court nor any other may review that determination unless it is clearly shown that such discretionary power has been exercised arbitrarily or capriciously (State ex rel. School District v. Cooney,102 Mont. 521, 59 P.2d 48), and it would be a courageous judiciary that would hold it *Page 452 capricious in the Chief Executive to call to account or dismiss a public servant who expends public funds in the manner it is admitted they have been expended by the admissions in the answers in this proceeding.