Fugate v. Weston

Epes and Hudgins, JJ.,

concurring in the conclusion that section 366 of the Tax Code is unconstitutional.

We concur in the conclusion reached in the opinion of Holt, J.; but we are of opinion that an office is not property and that neither the fourteenth amendment of the Constitution of the United States nor the corresponding provisions of the Constitution of Virginia (Const, section 11) have any application to this case.

In order that we may make our views clear, we state as briefly as is possible and without discussing the authorities, the reasons upon ’which we base our conclusion that section 366 of the Tax Code is unconstitutional.

We think section 366 of the Tax Code by necessary implication, if not by express provision, makes the General Assembly the sole judge of whether the cause for which the Governor has suspended an officer in fact exists, and excludes the courts from all jurisdiction to pass upon this question.

Where the Constitution provides for an office, prescribes the method of electing or appointing the officer, fixes his term of office, and makes no provision for his suspension or removal, except to provide that the General Assembly may declare the circumstances under or the causes for which he may be suspended or removed, the Constitution by an implication, which is as strong as an express prohibition, prohibits the suspension or removal of such officer except for “cause,” which cause must be a cause relating to and adversely “affecting the administration of the office and of a substantial nature directly affecting the rights and interests of the public.”

*122Where the General Assembly is without power under the Constitution to suspend or remove an officer except for cause, or to authorize his suspension or removal except fo»• cmse, then legal cause for suspension or removal must exist in fact before the officer may be suspended or removed. The existence of cause is a sine qua non to the exercise of the power to suspend or remove, that is, it is jurisdictional.

The ultimate determination of the existence of a jurisdictional fact is always essentially and inherently a judicial function.

Therefore, in cases involving the suspension or removal of such constitutional officers, the ultimate determination of whether cause for suspension or removal in fact exists, is essentially and inherently a judicial function.

The power to make laws for future application relative to the suspension or removal of a public officer and to prescribe by whom and under what conditions he may be suspended or removed is essentially a legislative power.

But the power to execute and apply the law to specific cases and to adjudicate upon questions arising thereunder rests elsewhere, and cannot be exercised by the General Assembly unless the power to do so be expressly or by implication granted to it by the Constitution.

While the exercise of the power of suspension or removal may be primarily an executive function, it becomes an essentially judicial function, whenever by express provision of or implication from the Constitution or statute the exercise of the power is so conditioned that the person or body authorized to exercise the power is empowered in the exercise thereof to make a final and conclusive determination of a question which is essentially a judicial question, as is the ultimate determination of the existence of cause for the suspension or removal of a constitutional officer such as county treasurer.

Sections 5 and 39 of the Constitution of Virginia separate and distribute the powers of government; and section 39 pro*123vides that “Except as hereinafter provided, the legislative, executive and judicial departments shall be separate and distinct, so that neither exercise the powers properly belonging to either of the others, nor any person exercise the power of more than one of them at the same time.”

By reason of the mandate and the prohibition contained in section 5 and section 39 of the Constitution, neither the Governor nor the General Assembly can exercise an essentially and inherently judicial function, unless expressly or impliedly authorized by the Constitution to do so.

Section 56 of the Constitution provides that the “General Assembly may declare the cases in which any office shall be deemed vacant where no provision is made for that purpose in this Constitution.” It is contended that this language expressly empowers the General Assembly to exercise the power of suspension or removal of a county treasurer, even though the exercise of the power involve the ultimate determination of an essentially judicial question, or the exercise of an essentially judicial function; and that, therefore, section 366 of the Tax Code is not unconstitutional.

Section 56 of the Constitution, we think, is not susceptible of such construction. It does no more than reiterate the power of the General Assembly under its general grant of power (section 40 and section 63) to prescribe the circumstances under which an office shall be deemed to- have become vacant, or the “causes” for which an officer may be removed.

It has been suggested that this court may, upon a petition for writ of mandamus, such as is here before the court, or upon a writ of quo warranto, hear and ultimately determine whether cause for which an officer has been suspended -under section 366 of the Tax Code in fact exists; and that, therefore, this section is constitutional. This could not possibly be true unless the ultimate determination of this question be essentially a judicial function, for if it be not essentially a judicial function, but an executive function, or only a quasi *124judicial function, this court may not assume to exercise it. So far as we have been able to find all cases which hold that the power ultimately to determine whether cause for suspension or removal by the Governor in fact existed is not essentially a judicial question, hold that the courts have no power to hear and determine whether cause for suspension or removal in fact exists, if there was any evidence before the Governor of the existence thereof. See the cases on this subject collected in at note in 52 A. L. R., p. 7-33.

The legislature in section 366 has undertaken to empower the Governor to suspend an officer, and to empower the legislature to perform to the exclusion of the courts the essentially judicial function of making the ultimate determination of whether cause for suspension or removal of a constitutional officer exists. For this reason section 366 is unconstitutional, and void. The power to suspend implies a suspension to some time, and the time specified for the suspension is until the legislature restore him to office. Section 366 so inseparably connects the power of the Governor to suspend with the exclusive power of the legislature ultimately to determine whether cause for suspension existed, that it is impossible to hold the power of the Governor to suspend constitutional and the power assumed by the legislature unconstitutional. ' The whole section must stand or fall together.

It is to be noted, however, that the General Assembly may restore the officer although cause for removal in fact exists, or may by mere non-action make his removal permanent though no cause in fact exists; and there is no' provision for notice or a hearing, nor way by which the General Assembly may be required to take any action, while non-action is made a judgment of removal.

The power of the General Assembly to provide an effective and quick mode of accomplishing the suspension or removal of a defaulting officer does not stand or fall with the *125constitutionality or unconstitutionality of section 366 of the Tax Code.

We entertain no doubt that the General Assembly may empower the Governor, when he has reason to believe that an officer has been guilty of misfeasance, malfeasance, or is incompetent, to institute an ouster proceeding under section 2705, Virginia Code 1919, in the courts for the amotion of the officer, and upon the institution of such proceeding to suspend the officer pending a judicial determination of the matter; or that the legislature may empower the Governor to remove an officer; when he has reason to believe that a cause for removal which has been provided by statute exists, provided the removed officer is afforded an opportunity to have a court of competent jurisdiction ultimately determine de novo whether such cause in fact exists. In both of these cases the Governor would be exercising an executive power. But section 366 of the Tax Code neither makes provision for nor, if constitutional, permits the accused officer or the public to have the question of the existence of the cause for which the Governor has suspended an officer ultimately determined by a court.