I cannot agree with the conclusion reached by a majority of the court, and I think the matter is of such vital importance that it warrants careful consideration by every member of the court, and that the placing of my view in a dissenting opinion is here justified.
The opinion, as I view it, deprives the supreme executive power of the state of the right to function in the manner permitted by the statutes and prescribed by the Constitution *Page 252 of the state. As it seems to me, it runs counter to the opinions heretofore expressed by this court, as found collated under the applicable provisions of the Constitution, and the governing statutes, as embodied in the latest compilation, the Compiled Statutes of Oklahoma, 1921. It also runs counter to the decisions of the United States Supreme Court touching revocations by the President of judicial authority in those chosen to exercise it, under a Constitution less definite than that of Oklahoma.
The construction placed on the meaning of the statutes of the state, that on their face are plain and unambiguous, is not only strange, but startling. Comparisons with Greece and Babylon, and a dissertation upon the recall of judges, and a reference to intrigues of some of our English ancestors, and how we have striven to get away from such things, undoubtedly are matters that we should ever be mindful of. Perhaps a comparison of executive power exercised by the King of Siam, and also by the Sultan of Turkey, might help us in Oklahoma, but if while journeying from Siam to Turkey the author had stopped in faction-torn China and borrowed a copy of the Oklahoma Constitution we loaned them some years ago, and ascertained how its inhabitants construed it, more light would have been shed on the proper solution of the question involved, and the opinion thereby could have been made better.
Apparently, the opinion holds that the executive, in making and revoking appointments, is governed by different rules, depending on the kind of function the appointee is to discharge. Apparently, also, the second section of the syllabus indicates that the powers vested in the one who for the time being is Governor vary with a change of personnel.
The fifth section of the syllabus holds that a section of the statutes giving the Governor "power to remove any officers appointed by him" is not applicable to a temporary appointment to an office judicial in nature, but applies to all other kinds, thereby reading into an act of the Legislature an exception or proviso, though there was none when in 1913 the Revised Statutes were enacted, after two codifications, one by the majority, and one by the minority, of the Code Commissioners. Of course, the same consideration should be had and the same principles applied by the court in reviewing the action of the appointing power that apply to statutes, i. e., that there should be no doubt as to the unconstitutionality of the act of the Executive, acting under constitutional provisions, before this court would find itself warranted in declaring an act of the Governor of the state unconstitutional. Without these matters being taken into account, immediately judicial decisions themselves are liable to become unconstitutional. It then becomes an arbitrary substitution by the court of its views of public policy for the discretion reposed by the Constitution in the Executive, in whom the appointing power is by the Constitution lodged. For its abuse, the Executive is responsible to the people, rather than to this court.
In my view, the provisions of that branch of the Constitution cited concerning the, division of governmental power are strictly applicable here, but they do not appear controlling. In the first article and first chapter, as found in the Compiled Oklahoma Statutes of 1921, at page 307, by reason of the provision in the Enabling Act, there is conferred upon the Governor the power to remove any officer originally appointed by him, when not made to fill a vacancy, and clearly, under the decisions, he alone passes upon the fitness of his appointee to continue, and it is practically conceded everywhere that the courts cannot constitutionally interfere with his discretion.
This decision reads into an act of the Legislature some things that are not in it. It makes an exception where there was none. It sets aside and holds for naught the action of the Chief Executive in revoking an appointment, made by the Executive, in a matter entrusted to him by the Constitution and by the legislative act, which act had been subjected to the scrutiny of trained codifiers and approved by a former Governor.
Under section 1, art. 4, forbidding the judicial department from exercising the powers properly belonging to the executive and legislative branches, it seems to me that the decision, as promulgated by the majority, is clearly violative of the letter and spirit of the cited article of the Constitution, as the inhibition works upon the judicial as well as the other branches of government. However, there is found in the majority opinion [page 247, 300 P. 733], after discussion of the impulses of Jefferson, the politician, and Marshall, the jurist, the following:
"Marshall said: 'It is to the last degree important that he (the judge) should be rendered perfectly and completely independent with nothing to control him but God and his conscience.' And in so saying he merely reiterated Biblical law: 'Ye shall not be *Page 253 afraid of the face of man, for the judgment is God's.' (Deut. 1:17)."
Perhaps had the 16th and all of the 17th paragraphs of First Deuteronomy been set out, the quotation would have here more aptly applied. However, the great mistake of a late emperor, commonly known as the "Kaizer," was that he too used only a portion of the verses, and thought that his judgment was God's judgment, and that they were in partnership, and the man was the managing partner. This was ruinous, as we all now can see.
Perhaps the admonitions contained in the 11th paragraph of the 4th Epistle of James might not be amiss in this connection:
"1. Speak not evil one of another, brethren. He that speaketh evil of his brother, and judgeth his brother, speaketh evil of the law, and judgeth the law: but if thou judge the law, thou art not a doer of the law, but a judge."
And also the Saviour's precept to his disciples:
"Render therefore unto Caesar the things which are Caesar's, and unto God, the things that are God's."
The majority opinion quotes largely from Corpus Juris. That authority, properly looked into and examined closely with proper research, is a very safe guide, but must be used cautiously as the foundation of an opinion on the constitutional question and statutes involved here. The grave danger is that the opinion is likely to be filled with an enlargement of "Corpus," at the expense of "Juris."
The decision of the majority in this case has a great many elements, however, of "sui-juris" and "sui-geneuis". If one will examine our Constitution, and also our decisions, and analyze them in the light shed by an ordinary dictionary, and the decisions of the Supreme Court of the United States, some of which are referred to in the opinion expressing the majority view, the "fogs will vanish" and the "sunlight will appear," and the solution of the problem here involved would not be difficult or hazardous. Extracts from briefs, however, are dangerous. Several cases from other states are collated, but they do not appear to be controlling on the question here involved — many do not refer. The facts of the case must always be borne in mind, also their application. The filling of a vacancy in the office of judge is one thing, and the appointment of a temporary officer is another thing. The method of the filling of the vacancy is such as may be prescribed by law. Its effect is also such as the law prescribes.
Evidently the majority do not recognize that in the present case there are two offices, each held by different parties, and selected in different ways. Judge Chappell's place is not vacant; he is still a Judge of the Criminal Court of Appeals, duly elected and qualified. If he should die, resign, or be removed, there would be a vacancy, and as soon as it was filled by the Governor, his power to further interfere would end. However, the office about which Judge Rowe and Judge Dickerson are contending is different. That office is appointive, and arises by operation of law as a result of Judge Chappell's disqualification to act in the special instance, the Governor being empowered by statute to name the incumbent, and also being allowed by statute to remove him, thus avoiding any question of power to remove being implied, arising from power to fill, as prescribed by the statute, in force by constitutional mandate. As well might we argue that the office of sheriff and deputy sheriff are the same, as to argue that Judge Rowe's desired office is the same as that of Judge Chappell.
The suggested question made on page 249 [300 P. 735] of the opinion, about the Governor's power to interfere with a successor of a judge of this court, by removing him if his decisions were not satisfactory, is scarcely worthy of consideration as an argument in support of the proposition taken.
An inspection of the typewritten opinion of the majority in this case shows a citation of certain authorities, and a statement of certain acts of the Legislature, as found in the present digest known as the compilation of 1921. The provisions of the Constitution are cited on the subject of the removal of officers, but it will be observed that they are elective officers, that are spoken of in the Constitution; at least, the quotations that were set forth clearly are confined to officers that are elective.
In the body of the opinion, the court quotes section 6, art. 8, that is a part of the impeachment provision of the Constitution, to the effect that the Legislature should pass laws for the purpose of carrying out the provisions of article 8, which appears to be the only place where the removal of officers is referred to in a general way. However, in the black letter type, accompanying the section, the compiler has added the words, "Legislature may pass additional laws." At page 243 [300 P. 729] of the opinion, there is a statement that the Legislature had *Page 254 obeyed the constitutional mandate by enacting sections 2394 to 2425 of the Compiled Statutes. The slightest inspection, however, of the article on the subject of the removal of officers contained in the Compiled Statutes would have shown that the following annotation was at the bottom:
"History. RL 5592, Dak. 1387; S. 1890, 3827, as am. by 1895, p. 96."
By referring to the Revised Laws of 1910, section 5592, the actors in this case could have found a history of these statutes on the subject of removal of officers, and they would have found that these statutes practically all go back to 1890, with some slight amendments, one of which, 5608 in the R. L., 2410 in the Compiled Statutes, was inserted by the codifiers. By an inspection of the Compiled Oklahoma Statutes of 1921, they would have discovered that this court had held in the case of State v. Davenport, 79 Okla. 297, 193 P. 419, that the remaining portion of the sections cited was a special act and was cumulative, being enacted in the year 1917, and the first section being 2411, C. O. S. 1921, and is as follows:
"2411. Officers subject to removal. All state officers not subject to impeachment under section 1, article 8, of the Constitution, and all county, city and municipal officers may, in addition to the methods now and causes provided by law, be removed from office as herein provided."
The other portions of the chapter referred to and commented on as a foundation for holding in this case that the Governor could not remove Mr. Rowe, could scarcely be said to have been enacted by the Legislature in obeying the constitutional mandate, for the reason that the Compiled Statutes themselves indicate that they came over from Dakota, and were a part of the statute of 1890, several years before the birth of Oklahoma, though amended by the Territorial Legislature before the Constitution was made.
A further investigation would have shown that these statutes were in force in Oklahoma at the time the Constitutional Convention met, and were carried over as a part of the statutory law of the state of Oklahoma by virtue of the terms of the Enabling Act, and as prescribed by section 2 of the Schedule to the Constitution.
An investigation would have shown that the provisions, now run into C. O. S. 1921, as being the second section of the first article, as follows:
"2. May remove officers appointed. The Governor shall have power to remove any officers appointed by him, in case of incompetency, neglect of duty, or malfeasance in office; and may then fill the same as provided in cases of vacancy"
— came over in the same manner, and that both sections were in force when the case of Cameron v. Parker, 2 Okla. 277,38 P. 14, was decided, cited at section 2, art. 5, of the Constitution, in both the R. L. 1910, and C. O. S. 1921.
It will therefore be seen that both of these statutes were before the members who framed the Constitution of the state of Oklahoma, together with their judicial construction, and were permitted to stand by them without change, though both were probably re-enacted by the Legislature in the year 1913, wherein Revised Laws were adopted. The Schedule put both in operation. If they had decided to change those provisions of the statute, they certainly would have done so, but instead of that, they did provide for impeachment of certain elective officers, though they made it imperative on the Legislature to pass laws on the subject, which was probably done by the Legislature in 1915, article 2, C. O. S. 1921, p. 346.
The argument that could legitimately be made from this review undoubtedly is that the Constitution makers intended to let the ordinary rules apply and permit the appointing power to be a revoking power. In the present case, the appointing power is the Governor, and nothing whatever is said limiting his power to revoke. The schedule in the Constitution put in force the statute conferring on the Governor the power to appoint and to remove all appointive officers, selected by him. Under these conditions, it was the duty of the Governor to remove Mr. Rowe, and appoint some one else, whenever in his judgment the interest of the state so required.
The Legislature saw fit to provide for a codification of the laws of this state, and a re-enactment of them in what is known as the Revised Laws of 1910. A history of the Oklahoma statutes can be found in the front of volume 1, and the majority of the court probably would not again make the same error if they would read the foreword of that edition, as well as the revisor's notes and the act appointing the Code Commission, and the act adopting the Revised Laws of Oklahoma, and the act providing for annotating, indexing, and publishing the Revised Laws of Oklahoma. After doing this, and appreciating its effect, and turning to the provisions of the Constitution of the state of Oklahoma, as published in the Revised Laws *Page 255 of Oklahoma, they would have found that section 8 of article 6 commanded the Governor to cause the laws of the state to be faithfully executed, and the decision of Cameron v. Parker,2 Okla. 277, was there cited on the subject of appointment and removal.
Under the head of section 2, art. 6, vesting the supreme executive power, the court would have found an annotation in black letter type, as follows:
"Official acts of Governor cannot be interfered with, nor controlled. State v. Huston, 27 Okla. 606, 113 P. 190."
They would also have found:
"Removal of appointee — Governor has right to hear and determine evidence against official, pass upon it and remove him from office, where statute confers power of removal upon him. This is not a judicial power. Cameron v. Parker,2 Okla. 277, 38 P. 14. Courts may not review proceedings before Governor, so long as he acts within limits of power conferred upon him. He is exclusive judge of sufficiency of charges. Id. Removal of appointee of Governor. Power of Governor under territorial laws construed. Id. Same — power of removal exists in absence of statute. Id. Same — court will only inquire into facts sufficiently to determine if law has been observed. Id."
By searching the general index, under the head of "Governor," the court would have found at page 2394, the following:
"Removal of appointive officers, 8052."
By reference to that section, one would find that it reads as follows:
"8052. May remove officers appointed. The Governor shall have power to remove any officers appointed by him, in case of incompetency, neglect of duty, or malfeasance in office; and may then fill the same as provided in cases of vacancy."
So that, as applied to that statute, we can say that it was not only brought over by the Enabling Act, but also by the Constitution makers themselves, as they saw fit to provide how elective officers could be removed, thereby leaving the above section in full force and vigor, which was later re-enacted by the Legislature in adopting a revision.
Nowhere, so far, does there appear in the acts or contemporaneous constructions anything whatever to require the decision of the majority in this case. The contrary is shown in practically everything. Section 13 of article 6 specially commits to the Governor the authority to fill vacancies, and to commission all officers. Section 45, art. 5, confers power upon the Legislature, and requires it to pass all necessary laws to carry into force the constitutional provisions. It is made the duty of the Governor by statute, in case of a disqualification of a member of the Criminal Court of Appeals, to appoint someone else, having the proper qualifications, to act in his stead. See Childs v. State, 4 Okla. Cr. 474, 113 P. 545. The functions of the regular judge are merely suspended by the disqualification in the particular instance, but it is not a case of filling a vacancy. The judge still survives. A deputy is merely named by the Governor.
In the present case, the Governor was empowered to appoint, and under the decisions that are cited in the respective places, describing that power, it is clearly held that the power to appoint carries with it the power to revoke. As applied to this case, it matters not whether the outgoing executive or the incoming executive appointed in the first instance. The power of appointment inheres in the office, not in the individual holding it, though through the medium of that individual, the appointment may be made. The power of revocation inheres in the same office, in the absence of a constitutional provision forbidding.
Where the supreme executive authority is conferred upon the Governor, as in our Constitution, and the further provision is made that he shall cause the laws to be faithfully executed, a question might arise as to whether or not the Legislature itself could prevent the appointing power from revoking by inserting a special forbidding provision, under a Constitution and statute worded like ours. That, however, is not this case. In this case the legislative authority has specially declared that the appointing authority can revoke. Such declaration was before the Legislature at the time it passed the law empowering the Governor to appoint a temporary officer to fill the place of a disqualified judge. If the Legislature had desired to limit that power, it would have been compelled to have said so, according to all rules of interpretation.
The reasoning of the court in this case does not seem to run on symmetrical lines, either logical, grammatical, or rational. At page 243 [300 P. 730] of the opinion, can be found the following example of the line of reasoning:
"Section 1, art. 4, Constitution of Oklahoma, reads as follows:
" 'The powers of the government of the state of Oklahoma shall be divided into three separate departments: the legislative, executive, *Page 256 and judicial; and except as provided in this Constitution, the legislative, executive, and judicial departments of government shall be separate and distinct, and neither shall exercise the power properly belonging to either of the others.'
"It is urged that section 2, C. O. S. 1921, be considered in pari materia with the provisions of section 2394, 2425, C. O. S. 1921. This we cannot do for we must consider the constitutional provisions under which the statutes exist. These constitutional provisions are sections 2 and 6 of article 8, and section 1 of article 4, supra. So considering the constitutional provisions, we find a lack of harmony when section 2 is considered in pari materia with sections 2394, 2425, supra. Conversely, when we consider sections 2394 to 2425, supra, as exclusive in remedy for the removal of a judicial officer nonimpeachable, and section 2, C. O. S. 1921, as applicable to executive officers only, the whole scheme of removal is workable and without incongruity, and without constitutional infraction.
"In the case of City of Ardmore v. Sayer, 54 Okla. 779,154 P. 356, this court held:
" 'The question now presented is whether the power or authority of the mayor to appoint, carries with it the power of removal. Such seems to be the general rule adopted in this state, unless prohibited by statute.'
"Therein it was held that the power to remove was prohibited by provisions of the charter.
"Herein we hold the power to remove is prohibited by provisions of the Constitution. Cameron v. Parker, 2 Okla. 277,38 P. 14.
"It is not to be understood that we hold the exercise of power to remove from office is necessarily a judicial matter. It is not so generally considered in this country. There are some authorities that hold a hearing to determine cause for removal is a judicial matter, but those authorities proceeds upon the theory that there is a property right in the office — that it is a hereditament."
At page 244 [300 P. 730], we find the following:
"The Cameron Case holds:
"No one has a right of property in an office such as would bar the executive from removing him if cause presented where the statute, confers that power, or even without a statute, an executive officer may exercise the power of removal,unless expressly prohibited, for the power of appointment, under the law, carries with it the power of removal.'
"Withal the power to remove a judicial officer may be, as in this case, an exercise of the function of the judicial department of government inhibited by section 1, art. 4, of the Constitution, supra. Witness the fact that the special judge last purported to be appointed voted to grant a rehearing and to stay the mandate in the Ingram cases — saying at the time that he was not informed as to the merits of that controversy. We do not hold it to be true, but it is possible for an executive to direct a vote of one appointed by him, and it is possible that an executive could, if he possessed the power, recall a judge in the event he thought the judge's vote or action in error, and thus continue ad infinitum until he controlled the decision."
Beginning about the middle of page 244 [300 P. 730], and running to page 246 [300 P. 732], is an argument drawn from a great many sources, and made up of several component parts that probably might be described as an animated animadversion, interspersed with reference to judicial expressions, and among others, that of Mr. Justice Brandeis, in the 272 U.S. 107, 71 L.Ed., 100 At this stage of the argument, the case of United States v. Guthrie, decided in 1854, and the remarks of Mr. Justice McClain therein, together with a contrast between Jefferson and Marshall, and the recall of judges in Babylon and Greece, and a side journey to Siam and Turkey, with a reference to Ernest v. Canary, 139 Okla. 128, 281 P. 574, holding that when the parties agreed upon a judge pro tempore, he was a judge until he got through, is the matter covered by the argument, and the deduction is made at page 248 [300 P. 734] as follows:
"So that when a regularly elected judge of the Criminal Court of Appeals certifies his disqualification as to particular cases, and a special judge is appointed to sit in consideration and final determination of such cases, such special judge occupies the same status as the regular judge. His term of office is thus fixed 'for the trial and determination of such cases,' and such special judge is subject to removal only by the procedure fixed by law for the removal of such regular judge."
Again, at page 249 [300 P. 735], we find the following:
"If the Governor possessed power to remove a special judge of the Criminal Court of Appeals by virtue of section 2, C. O. S. 1921, as contended, he would likewise have power to remove Justices of the Supreme Court appointed by him, either in the event of vacancies or disqualifications of the regular members, should we all disqualify in this case, and should the Governor fill our places by appointment, if such were the law, he would be at liberty to remove them in the event he did not like the decision, and appoint a new court to consider rehearing, and thus completely control the action, conduct, *Page 257 and administration of judicial decisions. Such is not the law. Happily it is not the law, for such a situation would be tyrannous and utterly destructive of an independent judiciary.
"It, therefore, follows that the act of the Governor in issuing the order of revocation and cancellation of the Commission made, executed and delivered to the respondent, Rowe, under which he qualified and was serving, is without legal force and effect. Likewise, the appointment of Honorable J.T. Dickerson was void, as no vacancy existed. When once Special Judge Rowe was regularly appointed and qualified, the Governor's power was exhausted unless and until a vacancy in the office occurred in the manner provided by law."
Again the opinion says:
"We now apply the rule of strict construction to section 2, C. O. S. 1921, relied upon as a vesture of authority for removal in the Chief Executive of a judicial officer.
"(a) The statute is general in its terms, it does not specifically vest authority in the Chief Executive to remove a judicial officer.
"(b) The statute prescribes the causes for which the Governor has power to remove any officer appointed by him, whereas neither in the order of removal nor elsewhere is it shown that the purported removal was for any of the causes provided (incompetency, neglect of duty, malfeasance in office).
"(c) Section 2, art. 8, Constitution, supra, establishes the policy of our basic law — it provides 'all elective officers, not liable to impeachment, shall be subject to removal from office in such manner and for such causes as may be provided by law.' While section 2, C. O. S. 1921, enumerates causes, it does not prescribe the manner of proceedings to establish the cause, nor the manner of removal, whereas the subsequent enactments providing grand jury procedure deal comprehensively with the subject by enumerating the causes and establishing procedure to determine the existence of the cause and specifying the manner of removal, of 'any officer not subject to impeachment elected or appointed' to office.
"(d) Section 2, C. O. S. 1921, probably was intended originally (1890 — sec. 6553) to apply only to such offices as the Governor has power to fill originally by appointment, and was never intended to apply to such offices as were filled originally by the people in elections, and where subsequently by necessity (temporary disqualification of incumbent) the incumbent was replaced.
"We have reviewed the decision of Bynum v. Strain,95 Okla. 45, 218 P. 883, and find nothing therein contained contrary to the views herein expressed in reference to judicial officers. That cause concerned the removal of an executive officer as most forcibly therein stated. That case considered whether the sufficiency or lack thereof of cause for removal presented a judicial question or the exercise of executive discretion and held the latter.
"We have read with much interest the cause of Myers v. U.S., 71 L.Ed. 160. In the first paragraph of that opinion the scope of the decision was limited to 'power of removingexecutive officers of the United States' by the President under the provisions of the federal Constitution. The limitation of the decision to removal of executive officers by the chief executive authority is reiterated throughout the text, emphasized by the dissenting opinions therein, and thereafter restated by the Supreme Court of the United States in the case of Springer v. Government of the P. I., 227 U.S. 189, which subsequent decision appears to us to be a counterpart of the Myers Case, and in which it is emphasized that the separation of the tripartite division of governmental powers is basic and vital; that the principle is implicit that these powers shall be forever and distinct from each other."
At page 250 and page 251 [300 P. 736] there is a discussion upon the proposition of one of the parties having a commission issued by Governor Holloway, and the other being removed by executive order. However, very little importance seems to be attached to these provisions by the author of the opinion, and it is not thought by the writer that it was at all vital to the decision, as the commission of Judge Rowe does not run in the name of the state of Oklahoma as prescribed by section 13, art. 6, of the Constitution, set out under it, if here applicable. The writer is not advised as to whether or not the orders designating special judges have heretofore been in form in the name of the state, but his information is that they have not, but the practice largely has been by simple executive order.
At page 243 [300 P. 730] of the opinion, the following is found:
"It is our opinion that section 2, last quoted, is not applicable for the removal of the respondent for the reason that the appointment herein sought to be vacated was a judicial appointment. There is no case presented and we know of none where under a constitutional provision such as contained in section 1, art. 4, infra, it has been held that an executive could, by reason of a statute, or independent of statute, recall an appointment to office in an independent branch of government; whereas, on the other hand, there are many cases to the contrary, some of which are hereinafter cited."
The Constitution of the United States is not as explicit as ours is in conferring supreme *Page 258 executive authority upon the President. That Constitution prescribes that certain officers shall be named by the President, with the consent and advice of the Senate, and judicial positions have been created since by acts of Congress, wherein judges have been appointed and terms fixed, by and with the advice and consent of the Senate, who have been removed by the Executive without being compelled to account to anybody for that action.
Had the author of the majority opinion searched a little further, and especially the dissenting opinion of Justice Brandeis, 71 L.Ed. 218, from which a quotation is found on page 245 [300 P. 731], he would have found a reference to the case of McAlister v. U.S. 141 U.S. 174, 35 L.Ed. 693, which was a case wherein President Cleveland, by executive order, probably a letter, removed Mr. McAlister from a judgeship, and Mr. W.H. Taft, later the Chief Justice of the Supreme Court of the United States, was counsel for the United States, and the opinion was rendered by Mr. Jusitice Harlan, affirming the action of President Cleveland. At that time, there were statutes prescribing what the President could do, and what the President could not do about removals, and the course of legislation was reviewed, and notwithstanding the word "courts" was used in the prohibitory legislation, the Supreme Court of the United States held that the power of the Executive to dismiss Mr. McAlister from service was complete.
Some dissenting opinions were filed, among others that of Mr. Justice Fields. In that he refers to the case of U.S. v. Guthrie, so strenuously quoted from here, and also the case of U.S. v. Fisher, 109 U.S. 143, and he specially says that the case went off on other grounds.
It has not been thought by the writer that in this case more was necessary than to turn to our own Constitution and our own statutes. on the subject, and to take the annotation of each one and run the cases in order to reach a correct conclusion. This view, however, does not appeal to the majority in this case.
By referring to the statute of 1921, inferentially one can get the history of these acts, and under section 8 of article 6, we find an annotation, put there by somebody, with reference to the removal of an appointee, and that is as follows:
"Removal of appointee. Duty of Governor to see that laws are faithfully executed, and in removing an officer, the Governor acts under his official oath to support, protect, and defend the Constitution and laws, and is responsible to the people for the faithful execution of his high office, and whether wisely or unwisely administered, the source of such responsibility is the same. Cameron v. Parker, 2 Okla. 277."
Under section 2 of the same article, we find also the annotation which is quoted above. We also find the section 2 of art. 1 of the compilation of 1921, heretofore referred to, as being in full force and vigor.
However, if we turn to those things that the members of the Constitutional Convention were familiar with, viz., the federal and territorial Supreme Court decisions, we will find that it has never been questioned until now in this jurisdiction that where an officer was appointed, as this man was, the appointive power could not revoke. It appears to the writer that this decision is a clear misinterpretation, by the majority, of plain statutes and a plain Constitution.
The Myers Case, that has been referred to in the majority opinion, can be found in the 71 L.Ed. 160, and while it was rendered after the Constitution of Oklahoma was made, and was decided by a divided court, Mr. Chief justice Taft delivering the opinion, and Mr. Justice Holmes, Mr. Justice McReynolds, and Mr. Justice Brandeis delivering dissenting opinions, scarcely can there be found an expression in either of the original opinions that would warrant this court in disregarding the plain words of our Constitution, or to claim that because our Constitution divides the administration of affairs in this state into three divisions, under the guise of judicial decision the appointive power of this state can be controlled, much less that this court would disregard a plain legislative provision, far older than the court itself.
Referring to the dissenting opinion of Mr. Justice McReynolds, it will be seen that he nowhere claims that when the Constitution has prescribed that power exist in the Executive, any exception should be made by the Legislature. At page 183, he says:
"Constitutional provisions should be interpreted with the expectation that Congress will discharge its duties no less faithfully than the Executive will attend to his. The Legislature is charged with the duty of making laws for orderly administration obligatory upon all. It possesses supreme power over national affairs and may wreck as well as speed them. It holds the purse; every branch of the government functions under statutes which embody its will; it may impeach and expel all civil officers. The duty is upon it 'to make all laws which shall be *Page 259 necessary and proper for carrying into execution' all powers of the federal government. We have no such thing as three totally distinct and independent departments; the others must look to the legislative for direction and support. 'In republican government, the legislative authority necessarily predominates.' The Federalist, XLVI., XLVII. Perhaps the chief duty of the President is to carry into effect the will of Congress through such instrumentalities as it has chosen to provide. Arguments, therefore, upon the assumption that Congress may willfully impede executive action are not important."
At page 224, he refers to the McAlestler Case in the following language:
"McAlester v. U.S. (1891) 141 U.S. 174, 35 L.Ed. 693, 11 Sup. Ct. Rep. 949. Plaintiff was appointed district judge for Alaska 'for the term of four years from the day of the date hereof, and until his successor shall be appointed and qualified, subject to the conditions prescribed by law.' He was suspended and the Senate confirmed his successor. He sought to recover salary for the time between his removal and qualification of his successor. Section 1768, Rev. Stat., authorized the President to suspend civil officers 'except judges of the courts of the United States.' This court reviewed the authorities and pointed out that judges of territorial courts were not judges of courts of the United States within sec. 1768, and, accordingly, were subject to suspension by the President as therein provided. This argument would have been wholly unnecessary if the theory now advanced, that the President has illimitable power to remove, had been approved."
The headnotes in Cameron v. Parker, 2 Okla. 277, 38 P. 14, are as follows:
"1. Mandamus — Office, Title to — Mandamus will not lie to try the title to a public office. (Ewing v. Turner, 2 Okla. 94,35 P. 951).
"2. Same — It may be stated as a general rule, in an action in mandamus, that, where a relator shows a prima facie title to a public office, he is entitled to the aid of mandamus, to obtain possession of the books, records, insignia, paraphernalia, and official belongings of such office; and in granting the writ, the court will not go behind such showing and try the title thereto. (Ewing v. Turner, supra.)
"3. Governor — Officer Removed by — Courts Have no Power to Review His Actions — So long as the Governor's action in removing an officer is within the limits of the power conferred upon him by statute, the courts cannot interfere to arrest his action or review the proceedings before him. He is the exclusive judge, so far as the courts are concerned, of the sufficiency of the proof of the charges, and his findings are not reviewable by any court.
"4. Constitution — That clause of the Bill of Rights, that 'no person shall be deprived of life, liberty or property, without due process of law', is not infringed by a statute giving the Governor power to remove a Superintendent of Public Instruction from office for incompetency, neglect of duty, or malfeasance in office, without a trial in a court of law, there being no such thing as title or property in a public office, within the meaning of that section.
"5. Public Officer — Removal of — The power conferred on the Governor of the territory by par. 5976, Statutes of 1893, is administrative and not judicial, and, therefore, not in conflict with par. 9 of the Organic Act conferring judicial power on the courts of the territory.
"6. Appointment — Removal of Officer — No one has a right of property in an office such as would bar the executive from removing him, if cause presented, where the statute confers that power, or even without a statute, an executive officer may exercise the power of removal, unless expressly prohibited, for the power of appointment, under the law, carries with it the power of removal under the law."
The reasons for the action of the parties concerned in this litigation are not disclosed, but under the law, the executive authority, as I view it, in this case, was within its rights in revoking the appointment of the respondent, and I cannot believe that the opinion of the majority, holding it void, is warranted by the statutory law or the Constitution.
As applied to the statutes here, this court has, in effect, repealed a statute that has been in existence practically during all of Oklahoma's history, and repudiated a general doctrine that has been acquiesced in for years. It has repudiated its own decisions. This decision says to the future Executive that no mistake made by him in appointing a special judge can by him be corrected. It will be used as a support for the hands of a designing Executive and to tie the hands of a conscientious one. It will lead to destruction. I think the decision clearly in violation of the Constitution, and sets at naught worthy precedents.
I, therefore, cannot agree with the views expressed in the majority opinion, and register this dissent. *Page 260