I dissent. It is always with considerable reluctance that I take a stand which voids legislative action. But my oath of office imposes upon me the duty above all other considerations of upholding the constitution.
Unlike the legislative or executive officers, the judiciary must disregard all political or personal reasons and interests, and call the cards as it sees them. And since I am unable to reconcile the section of the statute here involved, with the constitution and the legislative powers therein defined, I cannot let any personal feelings or interests have sway, but must dissent from the opinion of the majority of my associates. And since the section of the statute involved in this case, and the opinion of the majority, in my judgment not only contravenes the constitution but does so in a dangerous precedent, "a decent respect for the opinions of mankind impels me to set forth the reasons" for my dissent. I must add one item to the statement of facts set forth by Mr. Justice WOLFE.
On June 16, 1941, Governor Maw wrote and signed a letter to each of the relators, dating them June 30, 1941, and left them at the governor's office with directions to mail or deliver the letters to relators on June 30, 1941. The letters advised the recipients that a question had arisen as to the right of the legislature to terminate an office, and on advice of the attorney general, the governor "this day made the attached Executive Order affecting your term of office." With each letter was enclosed and delivered to relators the following:
"Executive Order "I, Herbert B. Maw, Governor of the State of Utah, by virtue of the authority vested in my do hereby order that W.D. Hammond be and *Page 19 he is hereby removed from the office of Road Commissioner and I do hereby declare the said office of Road Commissioner formerly held by W.D. Hammond to be vacant.
"In Testimony Whereof I have hereunto set my hand and caused to be affixed the Great Seal of Utah.
"Dated at the Capitol the 30th day of June, 1941.
"(Signed) Herbert B. Maw "Governor"
Said order was not attested by the secretary of state nor was the Great Seal of the State of Utah affixed thereto, nor was said order ever entered in the Record of Official Acts in the office of the secretary of state. Governor Herbert B. Maw left the State of Utah on June 22, 1941, and did not return to the state until July 13, 1941, during which period Secretary of State E.E. Monson was by virtue of Sec. 11 of Art. 7 of the State Constitution, acting governor with all the duties and powers of the governor devolved upon him; and during such period he only could exercise the powers of the governor, and was entitled to the salary and emoluments of that office.
Relators, Hammond and Abbott, Democrats, appointed by Governor Blood, with the consent of the Senate, as members of the State Road Commission bring this action in quo warranto against defendants, Maxfield and Evans, Democrats, appointed by Governor Maw, with the consent of the Senate as members of the Engineering Commission, to determine the right to office as members of the State Road Commission for the period from July 1, 1941, and present the following questions for our determination:
1. Can the legislature by a simple declaratory act, that is, simply by enactment of a statute so declaring, terminate the tenure or term in office, or occupancy of an office created by the legislature, of an office holder appointed by the governor with the consent of the senate, for a definite term of years fixed and prescribed by statute, without charges and a hearing or without abolishing the office? *Page 20
2. If question 1 be answered in the negative, can the governor remove such office holder by simple executive order without charges and a hearing?
3. If question 2 be answered in the affirmative, was the purported removal attempted by the governor in this case effective?
4. If question 1 and 2 be answered in the negative, may the legislature and the governor, concurring and acting conjointly, remove such office holder without charges and hearing, and without abolishing the office?
These questions involve the interpretation or examination and application of Secs. 26 and 27 of Art. 1, Art. V, Secs. 1, 10, 19, and 21 of Art. VI, Secs. 1, 5, 9, and 10 of Art. VII, and Sec. 1 of Art. VIII, of the state constitution. A proper understanding of the matter suggests the necessity for a review of the background and setting out of which this case arises.
The constitution framed and adopted created a government dividing the powers of government into three separate and distinct departments, and providing that no person charged with the exercise of the powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted. (Italics added.) Art. V. By Art. VI, § 1, the legislative power is vested in the Legislature of the State of Utah. (Italics added.) Art. VII, Sec. 1, declares that the
"Executive Department shall consist of Governor, Secretary of State, State Auditor, State Treasurer, Attorney General, and Superintendent of Public Instruction * * * [who] shall perform such duties as are prescribed by this Constitution and as may be prescribed by law."
Sec. 5 provides:
"The Governor shall see that the laws are faithfully executed; he shall transact all executive business with the officers of the government * * * and may require information in writing from the officers of the Executive Department." (Italics added.) *Page 21
Sec. 10 vests in the governor the power to appoint all state and district officers whose offices are created by the constitution or by law where some other method of election or appointment is not provided. Art. VIII vests the judicial power of the state in the Senate, sitting as a court of impeachment, in a supreme court, in district courts, and other courts as may be established by law.
The attitude and objective of the framers of the constitution is clearly set forth in two resolutions adopted by the convention early in its proceedings. We quote them:
"Resolved that it be the sense of this convention that in providing for the number of public offices and the salaries to be paid therefor, the same to be as few in number and as low in amount as is consistent with the times and the efficiency of the services to be performed."
"Resolved, as the sense of this convention, that the constitution shall contain only the general plan and fundamental principles of the State government together with suchlimitations of power thereof as may be deemed wise and expedient for the preservation of civil, political and religious liberty.
"Resolved further that matters purely of a legislativecharacter, not intended as necessary limitations of power, should not be inserted in the constitution, but left to the legislature, acting within its constitutional powers." (Italics added.)
After these declarations of attitude, purpose and objective, the convention wrote into the constitution itself two provisions to govern its application and interpretation. In Art. 1 we read:
"Sec. 26. The provisions of this Constitution are mandatoryand prohibitory, unless by express words they are declared to be otherwise." (Italics added.)
"Sec. 27. Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government."
We thus have the foundation, both by the resolutions of the convention and the declarations of the constitution itself, for that document's interpretation, and for the declaration that except for the general grant of the three governmental *Page 22 powers or functions to the separate and distinct departments the constitution is an instrument of limitations and not of grant; that its provisions are to be construed as limitations on governmental powers, both as to the existence of the power and as to the exercise thereof by another department other than the one in which it is vested in the general grants of governmental function. Thus it is mandatory that the legislative function, i.e., the making or enacting of laws, be done by the legislature as the depository of the legisla-power; and it prohibits the exercise or performance of the legislative function by the judicial or the executive departments except to the extentexpressly assigned to the governor by Sec. 8 of Art. VII relative to the signing or vetoing of bills passed by the legislature. So too the constitution is mandatory that the executive department, as depository of the executive power, shall exercise the executive functions of government and perform the duties of carrying into operation and effect all acts passed by the legislature; it shall transact all executive business and see that the laws are faithfully executed. By this grant of power the constitution prohibits the exercise of these powers by the legislature or the judiciary. Likewise the constitution is a mandate that courts set up by the constitution or by laws pursuant thereto alone shall exercise the judicial function. Do not be confused by the fact that the Senate when sitting as a court of impeachment performs judicial duties. When so sitting it is not as a part of the legislature but as a part of the judiciary, as a court with a specially limited constitutional jurisdiction, under the express provisions of Sec. 1 of Art. VIII pursuant to Art. V of the constitution.
However, as the state grew and developed and life and conditions became more complicated, the legislature from time to time created and set up various bodies and commissions, charging each of them with the performance of certain duties and the execution of certain laws and policies declared and enacted by the legislature. Generally such bodies and commissions, having been created and the members *Page 23 thereof appointed, became by the law of their creation independent bodies, subject to no supervision or control except that exercised by the legislature in the way of holding the purse strings through its biennial appropriation. And some of the bodies were given independent funds, that is, funds derived from special specified sources and therefore not within the biennial appropriations of the legislature. While most of the duties they performed were executive duties and most of the business they did was executive business, they were for the most part divorced entirely from the supervision or control of the constitutional depository of the executive power of the state, except that small limited control by the governor in the power of appointment of the membership, all of which with one exception was for a definite term of years fixed by the legislature. Thus it came about that much of the executive power of the state was exercised, not by or under the direction of the constitutional depository of executive powers, not by or through officers chosen by and amenable to the people, but by numerous separate and independent legislatively created offices. Many of the duties and powers of the executive department were thus dissipated and scattered. There was no unified command; no unity of control; no way to regulate or co-ordinate the workings or activities or expenses. There were no brakes or legal limitations on the expansive power of these bodies or of their personnel. The state found itself not with an executive department as provided in the constitution but with a hundred odd executive departments.
When the twenty-fourth session of the legislature convened in January, 1941, Governor Herbert B. Maw called the attention of the legislature to these matters and requested it to reorganize the state government as to all these legislatively created commissions and administrative bodies. He pointed out that it had been the past policy of legislatures to create new departments and commissions in ways which permitted them to grow and expand without appreciable control either by the executive or the legislature, and *Page 24 were set up to operate as independent units without proper supervision. He then said:
"As a result of these practices, the state government has grown and expanded until the original divisions defined in theconstitution have increased in numbers until today, well over a hundred institutions, commissions, divisions, and organizations will petition this legislature in their budget requests for funds with which to carry on their several activities. * * * There are too many administrative divisions of our state government * * * the business of the state is supervised by so many executives * * *. The fourth factor which should meet with your disapproval is the independence of each of the departments. * * * In fact oursis not a state government. Rather it is a government of a hundredseparate units. * * * It is against the principles of sound economy to permit a few commissions and department heads to expend three fourths of all the state's revenues without any adequate legislative and executive control. * * * The faults described above can be corrected through (1) The elimination of the scores of boards, commissions, departments and other official agencies created by the past legislatures which now carry on the State's functions * * * (2) the classification of the state's activities into as few units as possible; and (3) the creation of an organization to administer each classification. * * * It is recommended that now existing commissions, boards, and othergovernments units created by past legislatures be dissolved and that of the functions of the state be assigned to the following newly created departments. (Enumerating titles) * * * I have submitted this plan of reorganization of the state to you. * * * The state organization should therefore be of such a nature as to make each department head directly responsible to thegovernor, who in turn will be held accountable by the people. * * * In all cases the various commissions should be responsibleto the governor." (Italics added.)
Had the legislature followed the recommendations of the governor and eliminated, dissolved, and abolished all existing boards and commissions — had it even followed the recommendation of the governor to the extent of abolishing ordissolving the State Road Commission — this suit would not have arisen. But because the legislature failed to follow the course of reorganization recommended by the governor, and refused to dissolve and abolish the existing boards and commissions, and sought simply to change the personnel — sought to eliminate and abolish the existing office holder, *Page 25 the existing commissioner, rather than the office or commission — this action resulted and presents to us the questions above set forth for solution and answer.
1. Can the legislature, by a simple declaratory act, terminate the incumbency or term in office of a member of a state commission appointed for a definite term of years, without abolishing the office? In other words, were relators ousted as members of the State Road Commission by virtue of Sec. 36-2-1, R.S.U. 1933, as amended in Chap. 13, Laws of 1941, and by Sec. 3 of that chapter?
Sec. 36-2-1, R.S.U. 1933, provided as far as material here:
"The state road commission shall be composed of three members, appointed by the governor by and with the consent of the senate, whose terms of office shall be six years, beginning on the 1st day of December. Each Commissioner shall hold office until his successor is appointed and qualified. The governor shall appoint a successor to the member of said commission whose term expires on the 1st day of December, 1933, and appointments shall be made so that the term of one member shall expire on the 1st day of December in each odd numbered year."
While some changes were made in the section in 1935 and 1939, the part quoted was not changed or affected. By Chap. 13, Laws of Utah 1941, the legislature amended that part of Sec. 36-2-1, quoted above, to read:
"The state road commission shall be composed of three members. The members of the engineering commission shall serve as themembers of the state road commission and shall enforce the provisions of law relating to state highways." (Italics added.)
A new section 3 was added, which reads:
"The terms of office of the members of the state road commission heretofore appointed shall terminate as and when the members of the engineering commission shall have been appointed and shall have qualified." (Italics added.)
These are the only references to the engineering commission in the whole fabric of the law relative to the state roads. *Page 26 In all cases it is referred to as the "state road commission." In the Laws of 1933, 1935, 1937, 1939, and 1941, the state road commission as to its membership, duties, powers and name is preserved intact with no changes in its powers except in minor details. The duties were comprehensive and have never been substantially changed. We shall not set out the statutory provisions in detail as they ran through the laws from 1933 to date, but they reveal that there were no substantial changes in the duties of the commission or the characteristics of the office, the tenure of office or any other thing that would substantially change the office or its duties. In fact, the defendants frankly admit this when they say in their brief:
"We cannot take issue with the general statement made by the relators, that the state road commission as a body corporate, continues unchanged."
Neither can issue be taken with the statement that the defendants in the discharge of the duties imposed upon the State Road Commission act not as members of the Engineering Commission but as members of the State Road Commission. The fact that they are ex officio members of the State Road Commission does not put the administration of the laws relative to state roads in the hands of the Engineering Commission. It still leaves everything astheretofore in the State Road Commission, not in the EngineeringCommission. It does not provide that the Engineering Commissionshall perform the duties of the State Road Commission but merely makes the same people members of both commissions. It does not abolish or in any substantial way change the State Road Commission except to change its personnel. It is still the same road commission, with simply a new membership.
By Chap. 119, C.L.U. 1909, the State Road Commission was first created. That act provided:
"There is hereby created a State Road Commission, consisting of the Governor of the State, the State Engineer, the State Treasurer, *Page 27 one member of the faculty of the Agricultural College of Utah selected by the Board of Trustees * * * and one member of the faculty of the University of Utah * * *."
By Chap. 5 of Title 41, C.L. of U. 1917, the State Road Commission was changed to consist of the governor, secretary of state, attorney general, state auditor and state engineer. No one would contend that any act done by such State Road Commission was an act done by the governor as governor. Perkins v. Board ofCounty Com'rs, 271 Ill. 449, 111 N.E. 580, Ann. Cas. 1917A, 27. The present road commission by its same name may sue and be sued, has a seal, contracts, etc., as the same State Road Commission as before the act of 1941. It must therefore be conceded that the legislature of 1941 did not follow the recommendation of the governor and eliminate, dissolve, or abolish the State Road Commission and assign its duties to the Engineering Commission, but simply sought by Sec. 3, quoted above, to change the personnel, to oust the existing members of the road commission to create a vacancy so other persons could assume the office of state road commissioner.
Has the legislature constitutional power to do this? Art. V of the constitution reads:
"The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted."
This sets up the form of government and is limiting and prohibitory. It clearly withholds from the legislative department any executive powers. Art. VI vests in the legislature the full law making power, and only that power, except that pertaining to impeachments and the consent of the senate in appointments to office. It is sometimes loosely said that all power not expressly prohibited is vested in the legislature. This statement is loose and misleading. The *Page 28 legislative power, the full law making power, except as noted above, is the only power vested in the legislature. While it has an exclusive monopoly in that field, it has no power beyond the limits of constitutional law making. The creation of offices not created by the constitution, specifying the duties and powers thereof, providing the methods of filling the office, the length of term and compensation therefor are proper exercises of legislative power. Those things are essentially legislative functions. So too is the abolition of an office or changes in its duties or compensation. The rights which the legislature may create it may abolish as to the future, but it cannot abolish rights which have already become actual, existent rights, so as to take from one a vested or present right, except as provided in the constitution for eminent domain.
But the execution of the laws, carrying them into effect, enforcing and seeing to it that the duties and obligations imposed by law are observed and performed are not legislative functions. They are in nature and by the express terms of the constitution executive functions. Art. VII — Sec. 5:
"The Governor shall see that the laws are faithfully executed; he shall transact all executive business," etc.
So too appointment to office is an executive function. Of course in creating an office the legislature may provide for the method of filling it; it may at times even provide who should fill the office, as when it creates an office and provides that it shall be filled ex officio, that is, by some other public officer. But here such matter is somewhat moot because the legislature expressly provided that the members of the road commission should be appointed by the governor, thereby in this case clearly making it an executive function. It must of necessity follow that the power of summary removal of an appointive officer, to the extent that it exists at all, is in the appointing power. If such were not the case, there would not be the proper functionary independence *Page 29 of the three departments of government. To give one department the power of summary removal of the appointees or officers of another department would be to make one department wholly subservient to the will of the other, and might effectually prevent such department from exercising or performing any of its functions. To give the legislature the power of summary removal and control of the governor's appointments on the State Road Commission, the duties of which are mostly executive, would be contrary to the constitution and directly nullify the primary purpose of the governor's re-organization program — that of returning the exercise of the executive powers of the state government to the executive department as provided in the constitution.
It is often stated in the authorities that the legislature can create offices, and the party having the elective or appointive power creates the officer. Neither can abolish what the other has created. The legislature may abolish any office it created even during the term of an existing incumbent. Prince v. Skillin,71 Me. 361, 36 Am. St. Rep. 325; Attorney General v. Jochim,99 Mich. 358, 58 N.W. 611, 23 L.R.A. 699, 41 Am. St. Rep. 606;Nichols v. MacLean, 101 N.Y. 526, 5 N.E. 347, 54 Am. Rep. 730; Booten v. Pinson, 77 W. Va. 412, 89 S.E. 985, L.R.A. 1917A, 1244. Note 25 Am. Dec. 703; Hall v. Wisconsin,103 U.S. 5, 26 L. Ed. 302; State Prison v. Day, 124 N.C. 362,32 S.E. 748, 46 L.R.A. 295; 22 R.C.L. 579.
"Offices created by the Legislature may be abolished by the legislature. The power that creates can destroy. * * * The term of an office may be shortened, the duties of the office increased, and the compensation lessened by the legislative will." State ex rel Yancey v. Hyde, 129 Ind. 296,28 N.E. 186, 188, 13 L.R.A. 79; Gilbert v. Board of Com'rs, 8 Blackf., Ind., 81. "While the legislature may abolish an office and thereby abrogate the rights and duties of the officer it cannot leave the office standing and abolish the officer." 22 R.C.L. Sec. 295, p. 581. Malone v. Williams, 118 Tenn. 390,103 S.W. 798, 121 Am. St. Rep. 1002. *Page 30
A statute which legislates an officer out of office in the middle of his term, and devolves his duties upon another but does not abolish the office, is unconstitutional. Acklen v. Thompson,122 Tenn. 43, 126 S.W. 730, 135 Am. St. Rep. 851; 22 R.C.L., supra. In State v. Christensen, 84 Utah 185, 35 P.2d 775, this court in both prevailing and dissenting opinions discussed this question. The prevailing opinion at page 783 of 35 P.2d says:
"A more difficult question is presented with respect to the other objections urged against the validity of the act under review. It is said in 46 C.J. 973 that: `The legislature has no power to create a vacancy in order to evade the constitution or to defeat the will of the people, and, where there is in fact no vacancy, cannot create a vacancy by declaratory enactment. The reasons for which an office will become vacant, however, may in the absence of constitutional inhibition be fixed by the legislature. Thus it may, unless so inhibited, add new causes producing vacancy in office to those already provided in the constitution. A statute declaring a vacancy in an office on the failure of one duly elected thereto to qualify, when applied to an officer not elected to succeed himself, is unconstitutional as contrary to a constitutional provision that the term shall extend until the successor shall be elected and shall qualify.'
"* * * While the lawmaking power may not by declaratory enactment create a vacancy, it may within constitutional limitations add new causes which produce a vacancy."
From the dissenting opinion we also quote:
"The seriousness of the removal of a person from a public office was tersely stated by Chief Justice Cooley of the Michigan Supreme Court in the case of McGregor v. Board of Supervisorsof Gladwin County, 37 Mich. 388: `The removal from a public office is a matter of serious consequence, and it is plain that all the facts which would justify it ought properly to be of record, and my brethren think it essential.'
"* * * The Legislature cannot declare an office vacant. It may declare what acts, or omissions, or facts may be grounds for a forfeiture or the making of a finding upon facts upon which the courts may decree a forfeiture or a vacancy." (Italics added.)
A somewhat similar situation was before the Supreme Court of Pennsylvania in Commonwealth ex rel. Smillie v. *Page 31 McElwee, 327 Pa. 148, 193 A. 628, 633. The legislature created a board for the assessment and revision of taxes to be composed of members appointed by the auditor general. Section 2 of the act read:
"Upon the effective date of this act, the terms of the members of the board of revision of taxes * * * shall cease and terminate and the members appointed by the Auditor General shall take office for the term for which appointed." Act May 28, 1937, P.L. 939.
It was contended that the act did not abolish the office held by incumbents and that the legislature could not remove an appointive officer prior to the expiration of his term without abolishing the office. We quote from the decision of the court:
"The abolition of certain offices is a legislative function but the abolition of officers is not. The act challenged makes no attempt to abolish the Board for the Assessment and Revision of Taxes created by the act of 1931. It leaves the office, both inname and functions, undisturbed and unaffected, but it does attempt to replace the incumbents with selections of the auditor general. As the Legislature did not appoint the incumbents, itcannot remove them. Their titles to office did not come from theLegislature. What under our system of government the Legislaturedoes not create it cannot destroy." (Italics added.)
If the act now before us be viewed as a legislative removal or termination in office of the members of the State Road Commission, in effect an ousting of them from office, it is a legislative usurpation of power. In placing it upon the statute books the legislature stepped out of its constitutional bounds, and when it does so its acts are of no validity. It is contended that this act was part of a governmental reorganization and that it abolished the office of member of the State Road Commission although it did not abolish the Commission, and as such can be upheld as within the legislative power. Did it abolish the office of member of the State Road Commission? Does it even reflect an intention on the part of the legislature to abolish such office? That such questions must be answered in the negative is so obvious *Page 32 as to stamp incredibility on any contradiction. The act itself, Sec. 36-2-1, of Chap. 13, Laws of Utah, First Special Session 1941, expressly states:
"The state road commission shall be composed of three members,"
the same identical words of the same section since 1933. As the Supreme Court of Pennsylvania said in Suermann v. Hadley,327 Pa. 190, 193 A. 645, 648:
"Generally speaking, in analyzing governmental reorganization statutes, or those changing the method, conduct or operation of a municipality, one of its departments or other agency of government, which embody a comprehensive plan or system as they relate to office holders, the difficulty encountered is indetermining whether the change is of sufficient moment tosustain a finding of legislative intent to abolish the officesaffected and to oust the incumbents as an incident thereof, orwhether the Legislature merely proposes the removal of incumbents, * * *." (Italics added.)
The power of the legislature with respect to removal of appointive officers can be exercised in three ways: First, where the act of creation of the office attaches to the office a condition of tenure or the right of removal; second, where there is a complete abolishment of the office or a repeal of the act creating it; third, where the legislature sets up a newcomprehensive system of one of its agencies, differing somaterially from the system it supplants in its power, methods ofoperation, and functions, not merely in name or details of powers or functions, as to make it incompatible with thecontinued existence of the prior agency.
The prevailing opinion says:
"If that is the case it would seem that the State Road Commission could have been abolished and its duties given to the State Engineering Commissioners."
Up to that point where that statement is made there is but little in the prevailing opinion with which I disagree. The trouble is that the legislature did not abolish the State Road Commission and give its duties to the Engineering Commission. *Page 33 It abolished the State Road Commissioners and made the same men who were members of the Engineering Commission, members of the Road Commission. The Engineering Commission does not, and by the law cannot, exercise the powers and perform the duties of the State Road Commission. The Engineering Commission does not even have supervisory power over the Road Commission. No one would contend that the Engineering Commission could lawfully enter into contracts for road building or condemn rights of way, or be subject to suit on a road contract, or enter into a cooperative contract with the United States Bureau of Roads for road construction and maintenance. (It may be noted that the prevailing opinion, up to this point of its discussion is well documented with authorities, but the discussion from there on is without authority except ipse dixit.)
The legislature did not proceed in either of the ways indicated. It sought by a simple declaratory enactment stating the relators' terms of office were terminated to oust them from office, at the same time preserving and maintaining the office under the same old set up, with powers, terms, and emoluments changed in no substantial particulars. I must therefore hold that the legislature was without power by simple declaratory enactment to terminate the term of office of relators, they being appointees of the governor and essentially executive officers or agents. Further reasons why the legislative effort is void will appear in the discussion of the next question.
2. Can the governor by simple executive order remove the relators as members of the State Road Commission without charges being preferred and without a hearing?
The provisions of the constitution relative to appointments and removal from office are contained in Sec. 10 of Art. VI, providing that either house of the legislature with the concurrence of two-thirds of all members elected may expel amember for cause. Sec. 19, Art. VI, provides that the governor and other state and judicial officers, except justices of the peace, shall be liable to impeachment for high *Page 34 crimes, misdemeanors, or malfeasance in office, but only aftercharges and a trial and conviction as provided. Sec. 21 declares that "all officers not liable to impeachment shall be removed for any of the offenses specified in this article, in such manner asmay be provided by law." Art. VII, Sec. 10, authorizes the creation of offices by law. Pursuant to the constitution which vested in the legislature the power to provide a means or method for ousting officers not liable to impeachment, the legislature enacted Sec. 87-2-3, R.S.U. 1933, which section is still in full force and effect. It reads:
"All officers who are or shall be appointed by the Governor alone, or by the governor by and with the consent of the senate, may, for official misconduct, habitual or willful neglect of duty, or for other good and sufficient cause, at any time during the recess of the legislature be removed, and the vacancy filled during such recess by the governor."
Sec. 36-2-1, R.S.U. 1933, in setting up the road commission and providing for appointments for six year terms, provides,
"Any member of the commission may be removed for cause by thegovernor." (Italics added.)
This language was retained in the enactment of 1935 (Chap. 35, L. of U. 1935), and repeated again by the reenactment in Chap. 46, L. of U. 1939. And the legislature of 1941, in creating the Engineering Commission, whose members by virtue of that act become ex officio the members of the State Road Commission, preserved the same form that "any member of the commission may be removed for cause by the governor." Chap. 9, Laws of Utah, First Special Session 1941. So in creating the commission of finance the legislature provided, "Any member of the commission may be removed for cause by the governor." Chap. 10, L. of U., First Special Session 1941. So too members of the Fish and Game Commission. Chap. 11, First Special Session 1941. The same provision is found in the Commission *Page 35 of Business Regulation, Chap. 5, First Special Session; the Public Welfare Commission, Chap. 66, Laws of Utah 1941; the Industrial Commission, Chap. 15, First Special Session. Now when it came to the Publicity and Industrial Development Commission, Chap. 75, L. of U. 1941; the Bank Commissioner, Chap. 3, First Special Session; and the Liquor Commission, Chap. 20, First Special Session; the legislature declared that those commissioners held office at the "pleasure of the governor" or could be removed "at the pleasure of the governor."
R.S.U. 1933 provides the governor can remove members of the Industrial Commission for inefficiency, neglect of duty, malfeasance or misfeasance in office, Sec. 42-1-3; Bank Commissioner, removable at the pleasure of the governor, Sec. 7-1-1; Insurance Commissioner, removable only for specified misconduct, Sec. 43-2-6; Public Utilities Commissioners, removable by the governor only on grounds specified, Sec. 76-1-2; Director of Registration — four year term, no provision for removal, Sec. 79-1-2; State Engineer, four year term, no provision for removal, Sec. 100-2-1. It is evident therefrom that the legislature was providing by law for the removal of state officers not subject to impeachment, and very definitely provided by law the method of removal of members of the State Road Commission, — to wit: by the governor for cause. When the legislature has provided a method and grounds of removal that excludes other methods of grounds for removal.
It is argued that just because Sec. 21 of Art. VI provides that the legislature shall provide a manner of removal of officers not subject to impeachment for the causes mentioned in Art. VI does not preclude the legislature from fixing other grounds for removal. We need not consider that question because here the legislature did provide other grounds for removal andprovided the manner in which it should be exercised: "may be removed for cause by the governor." If relators were not removed "for cause" and in the manner contemplated by the constitution and statute, *Page 36 they were not removed even though it were held that the constitutional provision was not a limitation as to the causes for removal, which we need not decide. That the expression, "removed for cause" used in the statute, means some specific cause other than the "pleasure of the governor," is evident from the acts of the legislature itself. The section vesting removal power generally in the governor, quoted supra, reads "for official misconduct, habitual or willful neglect of duty, or for other good and sufficient cause." Clearly this means a cause incompatible with a faithful discharge of the duties of the office; a cause which is such as to undermine public confidence in the integrity of its officers. So too the fact that some officers are by the statute creating the offices made removable "for cause" while others are removable "at the pleasure of the governor" evidences an intention of the legislature that "for cause" was not to mean "at the Governor's pleasure" or "for political reasons." Note that there is a natural division or line of demarcation between the officers removable for cause and those removable at the pleasure of the governor. The former class, road commission, engineering, finance, fish and game, business regulation and industrial commissions, which have to do with executing definite specific laws and prescribed policies; commissions whose work carries on continually, overlapping from year to year, involving definite types of businesses and detail where efficiency must come from experience, where the legislature has prescribed with reasonable detail what should be done, are protected and made removable only "for cause" thus assuring such public service shall not be disturbed for reasons of political or personal feeling, and assuring some continuity in office by staggered terms. On the other hand, the liquor commission which has to do with regulating and conducting a business directly affecting the health and morals of society and doing active police work, duties and policies which the legislature could not so well prescribe in detail and which could not therefore be kept so well within bounds, it was thought *Page 37 advisable to give the governor, an officer directly amenable and responsible to the public, a freer power of removal. He could then be held to a more direct responsibility. So too with the Publicity and Industrial Development Commission. It is charged with the responsibilities of "providing opportunities * * * and creating and sponsoring a program of industrial development." Since this body had to largely seek out and create its own duties and the legislature could not well fix its responsibilities or duties, it naturally was put under more close supervision and control of the chief executive, who could be held accountable to the people. Such is also the holding of the authorities.
The words "for cause" in the phrase "removal for cause" mean for reasons which the law and sound public policy recognize as sufficient warrant for removal — that is "legal cause" and not merely a cause which the appointing power in the exercise of discretion may deem sufficient. State ex rel. Matson v.O'Hern. 104 Mont. 126, 65 P.2d 619; State ex rel. Holt v.District Court, 103 Mont. 438, 63 P.2d 1026, 1028;Narragansett Racing Ass'n v. Kiernan, 59 R.I. 79, 194 A. 49. The phrase "remove for cause" means some cause concerning the fitness or ability of the incumbent to perform the duty imposed upon him. It means inefficiency, incompetency, or other kindred disqualification. Street Com'rs of Hagerstown v. Williams,96 Md. 232, 53 A. 923, 925. Power to remove a person from office for cause means that a reason must exist which is personal to the individual sought to be removed, which the law and sound public opinion will recognize as a good reason for another occupying the place. In re Nichols, 57 How. Prac., N.Y., 395, 404; State exrel. Eckels v. Kansas City, Mo. App., 257 S.W. 197; State exrel. Rawlings v. Kansas City, 213 Mo. App. 349, 250 S.W. 927;Drake v. State, 53 N.J.L. 23, 20 A. 747.
Defendants argue that the governor's power of removal is inherent and unlimited because he has the appointive power. The argument as made is somewhat ingenious because inconsistent with itself. They first argue that the *Page 38 legislature has the right of summary removal, and then argue that the right of removal is by its very nature under the constitution inherent in the executive as the appointing power. The only cases cited to uphold the governor's right of summary removal without cause are three Federal cases: Myers v. United States,272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160; Humphrey's Ex'r v. UnitedStates, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611; Morgan v.Tennessee Valley Authority, 6 Cir., 115 F.2d 990. Those cases are not very persuasive. That they should not be persuasive should appear clear in view of the number of times this Utah court has spoken on the subject. See Silvey v. Boyle, 20 Utah 205,57 P. 880; People v. McAllister, 10 Utah 357, 37 P. 578;Pratt v. Board, 15 Utah 1, 49 P. 747; Heath v. Salt LakeCity, 16 Utah 374, 52 P. 602; Pratt v. Swan, 16 Utah 483,52 P. 1092. See, also, Mecham on Public Officers, Sec. 445, also the annotations from 99 A.L.R. infra. The latter two are based upon the Myers case. As pointed out in that case the Federal Constitution vests the whole executive power in the president. The state constitution does not vest it wholly in the governor. Sustaining the cited cases decided by this Court, note the well reasoned opinion of State ex rel. Green v. Collison, 9 W.W. Harr., Del., 245, 197 A. 836, at page 848 wherein it is stated:
"The decisions of the federal courts with respect to the power of the President to effect removals from office ought not to be regarded as controlling, * * * In general, it is to be said that Governors of states do not exercise the arbitrary power accredited to the President. When exercised it is by virtue of specific constitutional provision, or by statute where no limitation of the legislative power exists."
Again, the Federal Constitution contains no provisions like our Sec. 21 of Art. VI, requiring the legislature to provide by law the manner of removal of officers not subject to impeachment. It is a refutation of the absolute power of removal by the governor. *Page 39
The general rule as manifested in the decisions of state courts as to limitations on the executive power of removal is that while the removal power is in the executive, the legislature, may, because it creates the office, fix limitations upon or provide the causes or conditions upon the exercise of that power. When the legislature created the office of member of the State Road Commission and authorized the governor to fill that office by appointment, it attached thereto three conditions: One, the term of office was for a period of six years; two, removal could only be made by the governor; three, such removal could only be for cause. In Hanchett v. Burbidge, 59 Utah 127,202 P. 377, 378, this Court said:
"Unless otherwise provided by law, the power of appointment embraces the power of removal. In the course of the opinion inSkeen v. Browning, 32 Utah [164], 168, 89 P. [642], 643, the principle is stated as being: `Moreover, it may be said to be an inherent right of the power that appoints — creates — theofficer to also have the power to remove him, and, unless thispower in some way is limited by some statutory provision, it, as a general rule, prevails.'" (Italics added.)
This court said in Sheriff of Salt Lake County v. Board ofCommissioners, 71 Utah 593, 268 P. 783, 784:
"When the term or tenure of a public officer is not fixed bylaw, the general rule is that the power of removal or suspension, unless controlled by statute, is an incident to the power of appointment."
Where it is stated that an officer may be removed for cause, it follows that he may not be removed except for cause. Where removal is for cause, notice and opportunity to be heard are necessary. Where office is held for a definite term, notice and hearing are necessary.
State ex rel. Nagle v. Sullivan, 98 Mont. 425,40 P.2d 995, 998, 99 A.L.R. 321, involved the State Fish and Game Commission. The members were appointed for definite terms. A commission had been appointed by a former governor and some were here attempted to be removed by his successor. The terms of two of the former commissioners *Page 40 had expired, and the new governor subscribed and filed with the secretary of state a proclamation stating, substantially as here, that the terms of office of the other members were revoked. The opinion says:
"The power to appoint carries with it, as an incident, in the absence of constitutional or statutory restraint, the power to remove (Touart v. State, 173 Ala. 453, 56 So. 211; Cameron v. Parker, 2 Okla. 277, 38 P. 14; Sponogle v. Curnow,136 Cal. 580, 69 P. 255; Sanders v. Belue, 78 S.C. 171,58 S.E. 762), but provision for appointment for a fixed term constitutessuch restraint, and, in the absence of any provision for summaryremoval, one appointed for a fixed term can be removed only forcause (23 Am. Eng. Ency. of Law 437), and cases cited from many jurisdictions.
"This phrase `for cause,' as used in this connection, means for reasons which the law and sound public policy recognize as sufficient warrant for removal (Street Commissioners v.Williams, 96 Md. 232, 53 A. 923; In re Nichols, 57 How. Prac. N Y, 395), that is `legal cause' (Attorney General v.Crowley, 75 N.H. 393, 74 A. 1055, 139 Am. St. Rep. 725), and not merely a cause which the appointing power, in the exercise of discretion, may deem sufficient (State v. Common Council ofCity of Duluth, 53 Minn. 238, 55 N.W. 118, 39 Am. St. Rep. 595).It follows, inevitably, that when a statute provides for anappointment for a definite term of office, without provisionotherwise, or provides for removal `for cause,' withoutqualification, removal may be affected only after notice has beengiven to the officer of the charges made against him and he hasbeen given an opportunity to be heard in his defense. Mechem's Public Offices Officers, 287; Welch v. Ware, 161 Cal. 641,119 P. 1080; Abrams v. Daugherty, 60 Cal. App. 297,212 P. 942; Carter v. Durango, 16 Colo. 534, 27 P. 1057, 25 Am. St. Rep. 294; Lynch v. Chase, 55 Kan. 367, 40 P. 666; State v.Smith, 35 Neb. 13, 52 N.W. 700, 16 L.R.A. 791; Honey v.Graham, 39 Tex. 1; Hallgren v. Campbell, 82 Mich. 255,46 N.W. 381, 9 L.R.A. 408, 21 Am. St. Rep. 557; Willard's Appeal,4 R.I. 595. The rigorous application of the rule can only be evaded in such cases by an express grant of power to remove at will.
"`It is fixity of tenure that destroys the power of removalat pleasure otherwise incident to the appointing power. * * * Thereason of this rule is the evident repugnance between the fixedterm and the power of arbitrary removal. The effect of this ruleis, that the right to hold during a fixed term can only beovercome by an express grant of power to remove at pleasure.
"`An inferential authority to remove at pleasure can not be deduced, since the existence of a defined term, ipso facto, negatives such *Page 41 an inference, and implies a contrary presumption, i.e., that the incumbent shall hold to the end of his term, subject to removal for cause.' State ex rel. Gallagher v. Brown, 57 Mo. App. [199], 203, expressly adopted by the Supreme Court in State exrel. v. Maroney, 191 Mo. [531], 548, 90 S.W. 141; State v.Crandall, 269 Mo. 44, 190 S.W. 889. While a few cases to the contrary may be found, the foregoing declarations are supported by the overwhelming weight of authority.
"Under this class of statutes, the requirement of notice and hearing cannot be evaded by any subterfuge. Throop, above, 359;State ex rel. v. Board of Police Commissioners, 88 Mo. 144, affirming 14 Mo. App. 297." (Italics added.)
This Montana case is in 99 A.L.R. 321 and is annotated. While there are general statements in the note which are subject to qualifications under constitutional and statutory provisions like ours, the note contains a quite complete collection of cases and we will therefore refer to the propositions sustained by the cases cited therein.
99 A.L.R. 354 note:
Removable for "cause."
"The circumstance that an officer can only be removed for `cause' ordinarily gives rise to a strong inference that some sort of a hearing must be accorded him and that he is entitled to reasonable notice thereof."
The note then cites cases from twenty-seven jurisdictions, including Utah, as supporting this point.
99 A.L.R. 358 note:
Removable for specified causes.
"In general, where the causes for which an officer may be removed are specified in the statute or Constitution, notice and hearing are essential."
Cases from thirty jurisdictions supporting this proposition are cited.
99 A.L.R. 363 note:
Officer holding for fixed term.
"In the ordinary case an officer whose tenure of office is for a fixed period cannot be removed without notice and an opportunity to be heard." *Page 42
The note cites cases from thirty-two jurisdictions, including the State of Utah, supporting this proposition and adds this general comment:
"The basis for the rule is that definiteness of term indicates that the officer is entitled to hold office for the full time for which he was appointed or elected, unless in the meantime removed for substantial cause, the necessity of cause for a removal implying that there shall be a hearing as to the existence of the cause."
99 A.L.R. 382 note:
"However, the authorities in general recognize such a rule, and uphold the implied authority of the appointing power to remove the officer without notice and hearing, only where histerm of office is not a fixed one." (Italics added.)
We refer now only to the principles as stated in some of our Utah cases.
Silvey v. Boyle, 20 Utah 205, 57 P. 880, 881, following the portion of the opinion hereinabove quoted, says:
"This court has frequently held that such an officer can only be removed upon charges preferred against him, and an opportunity given him to be heard in his defense. People v. McAllister,10 Utah 357, 37 P. 578; Pratt v. Board, 15 Utah 1, 49 P. 747;Heath v. Salt Lake City, 16 Utah 374, 52 P. 602; Pratt v.Swan, 16 Utah 483, 52 P. 1092. We are therefore of the opinion that the court properly held that the relator was entitled to the emoluments of the office until May 10, 1898, when, as appears to be conceded, the office was finally abolished."
In People ex rel. Murphy v. McAllister, 10 Utah 357,37 P. 578, at page 581 this court said:
"It is evident that the discretion here intended is to be exercised after a hearing for cause, as provided in the first part of the section. The legislature has further provided to the same effect in subdivision 87 of section 1755, Comp. Laws Utah 1888, which empowers the council `to appoint police and watchmen and to define their powers and duties, and to remove all officers of the city for misconduct, and to provide for filling such vacancies as may occur in any elective office, and to create any office that may be deemed necessary for the good government of the city; to regulate and prescribe the powers, duties and compensation of all officers of the city not herein provided for.' Under *Page 43 this section the council has the right to remove only formisconduct, and this applies to all officers of the city." (Italics added.)
So too are the texts:
Mecham on Public Officers, Section 445:
"Where tenure of office is not fixed by law, and no other provision is made for removals, either by the constitution or by statute, it is said to be a sound and necessary rule to consider the power of removal as an incident to the power of appointment.
"But this power of arbitrary removal is to be limited to these circumstances, and if the tenure is fixed by law or if the officer is appointed to hold during the pleasure of some other officer or board than that appointing him, the appointing power cannot arbitrarily remove him."
Section 452: "Authority to remove for cause cannot be construed as an implied authority to remove at pleasure."
Section 454: "Where the appointment or election is made for a definite term or during good behavior, and the removal is to be for cause, it is now clearly established by the great weight of authority that the power of removal cannot, except by clear statutory authority, be exercised without notice and hearing, but that the existence of the cause, for which the power is to be exercised must first be determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity to be heard in his defense."
As to whether the legislature can add causes for removal other than those stated in the constitution we need not decide. Both the constitution and the statute were binding upon the executive and the term of office was definitely provided by law. The removal here attempted without notice and a hearing was a nullity.
The decision therefore that the attempted removal as here done, both by the legislature and by the governor, was a nullity, renders it unnecessary to decide the third and fourth questions. The record discloses that the term of relator, Abbott, has now expired. However, under the statute he holds until his successor is appointed and qualified. Therefore the writ should issue as prayed for.