dissenting. It is with regret that I do not agree with my brother judges in a case of such public importance. As a rule dissenting opinions are of but little value, and need not be written and recorded. Inasmuch as my grounds of dissent would not fully appear from the opinion of the majority, I deem it appropriate to write a dissenting opinion.
It is the settled law of this State that a public officer who has under the law a fixed term of office and who is removable only for definite and specified causes, cannot be removed without notice and an opportunity to make defense to the charges against him. Lucas v. Futrall, 84 Ark. 540. Many decisions to the same effect are cited in a ease note to 12 A. & E. Ann. Cas. 996-7.
In Miles v. Stevenson, 80 Md. 358, 30 Atl. 646, one of the cases cited, the court said: “It is the utmost stretch of arbitrary power and a despotic denial of justice to strip an incumbent of his public office and deprive him of his emoluments and income before its prescribed term has elapsed, except for legal cause, alleged and proved upon an impartial investigation after due notice.”
Mechem on Public Officers, at Sec. 454, in discussing the general question here under consideration, says: “In those eases in which the office is held at the pleasure of the appointing power, and where the power of removal is exercisable at its mere discretion, it is well settled that the officer may be removed without notice or hearing. But, on the other hand, when 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 charges made against him, and he has been given an opportunity to be heard in his defense. ” See also numreous cases cited by the Supreme Court of the State of Wisconsin in Ekern v. McGovern, 46 L. R. A. (N. S.) at pages 828 and 829; Throop on Public Officers, sec. 364.
So it has been uniformly held that when the statute provides that an officer may be removed for specified causes, or upon doing or failing to do some specific act, the board as the body making the removal and declaring the vacancy must first find the existence of the facts which entitles them to make such removal.
For the reason that the power conferred upon the board to remove the superintendent contemplates a hearing and determination of the truth or falsity of the charges, the action of the board is judicial in its nature, and as there is no appeal or writ of error provided in the statute, certiorari is the only remedy which the superintendent had to review the action of the board. In discussing the office of the writ of certiorari in Pine Bluff Water and Light Co. v. City of Pine Bluff, 62 Ark. 196, Mr. Justice Battle said: “At common law, the writ lies only to review the judicial action of inferior courts, or of public officers or bodies. When the action of the officers or public bodies is purely legislative, executive, and administrative, although it involves the exercise of discretion, it is not reviewable on certiorari. But it is not essential that the officers or bodies to whom it lies shall constitute a court, or that their proceedings, to be reviewable by the writ, should be strictly and technically “judicial, ” in the sense that word is used when applied to courts. It is sufficient if they are what is termed “ quasi judicial. ” It has been held that it lies to review the proceedings of officers and bodies, because they are quasi judicial, in the following cases, of supervisors, commissioners, and city councils in opening, widening, altering, or discontinuing public streets and highways, ” etc. The court further said that our statute (now see. 1315 of Kirby’s Digest) “was not intended to amend the common law by enlarging the office of the writ, but, presumably knowing its office at common law, the legislature adopted it, and made it a part of the code, as it was of the common law pleading and practice, and thereby intended to authorize the circuit courts by means of it, to review judicial and quasi judicial proceedings of officers, boards of officers, and inferior tribunals, and no other.” Hence the court held the ordinance under consideration in that case was purely legislative and was not reviewable on certiorari. The reason of course, being that to do so would be an enlargement of the writ.
Section 1316 of Kirby’s Digest was passed to enable the circuit court to properly exercise the power conferred upon it of reviewing the quasi judicial proceedings of officers and boards of officers. It meant to give either party the right to introduce evidence that might be competent to enable,the circuit court to properly review the action of the board. This is borne out by the concluding part of the section which provides that the acts of any board shall be only prima facie evidence of its regularity. If the lawmakers had intended only to supply the evidence taken or offered before the board, it would likely have provided for a record of the proceedings below by bill of exceptions or other appropriate method. It would not likely^have left it to so much a matter of conjecture as the introduction of affidavits and other evidence by the respective parties on the hearing. I am not aware that such an unusual method of supplying the record of what occurred before the board, as the opinion of the majority contemplates, was ever provided for in any other proceeding. The board was given the power under the statute to remove the superintendent for certain specified causes, and could only act after notice to the superintendent and a hearing of the facts. If the board should act without any evidence or contrary to any reasonable view of the evidence, its action is subject to review by the circuit court, and section 1316 was passed to enable the officer on the one hand to introduce evidence tending to show that the action of the board was not characterized by good faith, that it exceeded its jurisdiction, or that its finding was eontráry to any reasonable view of the facts as they existed; and on the other, to enable the board to show it acted in good faith'and that the facts reasonably supported the charges preferred against the officer. Such construction of the statute would not. amount to a trial de novo, in the circuit court, but would only be an appropriate method of reviewing the action of the board which was not required to make a complete record of its proceedings. It seems to me a strained construction of the statute to say that section 1316 was enacted simply as a means of supplying the record made before the board. It was rather passed to provide a full and comprehensive method of enabling the circuit court to arrive at the facts and properly review the action of the board, and such construction does not in any sense enlarge the scope of the writ of certiorari. In short my construction of section 1316 does not tend in any sense to enlarge the writ, but under it, the evident purpose of the act is to provide a method of conducting the inquiry before the circuit court and to enable it to take testimony in order that it may correctly and intelligently review the action of the board.
The opinion of the majority seems to give the finding of the board the same effect and binding force as the verdict of a jury in this court. That is to say, if any witness should testify to a substantial fact and the board should find according to his testimony, its finding must be upheld in the circuit court although his testimony was finreasonable and inconsistent, or that he might be contradicted by numerous credible witnesses. Appellants’ counsel have cited the eases of St. L., I. M. & S. R. Co. v. Bellamy, 113 Ark. 384, to sustain their contention that the finding of the board must be upheld by the circuit court if there is any evidence to support it. I do not regard that case or our earlier cases on the subject reviewed in it as having any bearing whatever on the principle at issue in this ease. In that .case the court properly held that the legislature has primarily the right to determine whether the public necessity and convenience require the establishment of a railway depot 'at a given point, and that having it, could delegate the powers to the railroad commission. There the court held that in cases where the Legislative determination of a question is committed to a board, council, commission or the like, the action of the board or commission is conclusive unless it is arbitrary. The principle was recognized in Shibley v. Ft. Smith & Van Buren Dist., 96 Ark. 410, where the court declared that it was a settled principle of law that where the Legislature has created a tribunal for the purpose of ascertaining and declaring the result of an election upon any subject, the decision of such tribunal is conclusive. Again in Little Rock v. Katzenstein, 52 Ark. 107, the court held that the action of a city council in including property in an improvement district, is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake. This is in application of the rule that the Legislature having delegated to the council the power to fix the boundaries of the district, the finding of the council on the subject committed to it is conclusive. In the case before us, the Legislature could not pass an act making the finding of the board conclusive. The reason as we have already pointed out is that due process of law requires that, in an office having the incidents of a fixed term but subject to be terminated for due cause, or some particular cause, required to be established by proof, the officer shall be notified of the charges against him and have an opportunity to defend before he can be removed. As we have already pointed out, the action of the board in cases like this is judicial in its nature and for this reason is subject to review by the courts, by certiorari because no other method of review is provided by the statute. This distinction is clearly pointed out by Judge Battle in Pine Bluff Water & Light Company v. Pine Bluff, from which I have so liberally quoted above. It will be remembered that in that case the court held that the ordinance under consideration was purely legislative and for that reason was not reviewable on certiorari. Of course I do not think the circuit court should weigh the evidence to decide where the preponderance .lies, but I think the finding of the board is subject to review if there is no evidence to reasonably support the charges from any fair viewpoint.
The opinion of the majority says that any other rule than the one adopted by it would make the board a conduit through which a decision on the removal of an unfaithful or inefficient officer would be passed up to the courts. I do not think so. The board had no inherent power of removal. It had only such power as it derived from the statute, and can only exercise that power in conformity with the statute. The superintendent is an officer of the State, and his removal is a matter-of serious importance. It would be unfortunate, indeed, if the board had no power to remove an unfaithful or inefficient superintendent. But- it would be equally unfortunate to give the finding of the board such binding effect as to enable it to exercise its power of removal in an oppressive and unreasonable manner. As we have already seen the action of the board is judicial in its nature and because it exercises judicial functions its action is subject to the supervision of the courts; and it is thus deprived of exercising its power of removal in an unreasonable manner.
I quote from the opinion of Mr. Justice Mitchell in the case of State v. City of Duluth, 53 Minn. 238, 55 N. W. 118, 39 Am. St. Rep. 595, as follows: “The sufficiency and the reasonableness of the cause of removal are questions for the courts. Dillon on Municipal Corporations, see. 252, and cases cited. This has been the settled law ever since Bagg’s ease, supra, and we are not aware of any respectable authority to the contrary. Of course, cases (many of which are cited by respondents) where an officer or body was vested with an absolute power of removal at discretion are not in point.
Upon examination of the charges in this case we are clearly of the opinion that they are not sufficient in law. Considering them as a whole they show on their face that they were not formulated in a very judicial frame of mind. They read more like a hostile declamation than a calm and deliberate statement of charges with a view to a fair investigation.”
What the learned Justice said is peculiarly appropriate to the facts of this case as will be hereinafter seen.
The statute provides that the board may remove the superintendent for inattention, neglect, misconduct or inefficiency in the discharge of his duties, or for other adequate cause. I think the causes for which the statute provides his removal must be found in his officials acts and conduct and affect the proper administration of the office. The charges and evidence must relate to something of a substantial nature directly affecting the administration of the office and affecting the rights and interests of the public.
Having. reached this conclusion as to the law of the case, it becomes necessary for me to restate the facts. The majority opinion has omitted certain evidence which I think is essential to a proper determination of the .issues. Then, too, the opinion, rather contains the conclusion of the judges as to the effect of the evidence than an abridgement of it. Section 4186 of Kirby’s Digest prescribes the duties of the superintendent, and evidently contemplates that he shall devote his whole time to the discharge of the duties of the office. His duties are manifold and a certain degree of discretion must necessarily be vested in him to enable him to properly discharge them.
Appellee was elected superintendent by the Board of Control about the first of January, 1916. During the spring the members of the board told another physician, who was a mutual friend of all parties that appellee was a good superintendent and his services were perfectly satisfactory.
Another witness testified that he had a conversation with one of the members of the Board about the efficiency of appellee, and the member said he regarded appellee as the best man in the State for the position.
Early in May, 1916, the Board called appellee in and handed him a paper demanding that he remove certain members of his staff and appoint other persons, named by them, in their places, and also that he discharge certain other employees. Appellee asked the members of the Board if they had any charges to make against him personally and was told they had not. The members of the Board and appellee went to the Governor’s office and discussed the matter, and the latter insisted, upon the changes, suggested by the Board being made. No charge of misconduct was made against any of the persons whose removal was demanded. Appellee refused to make the changes suggested by the Board and by the Governor. After several' conferences the Board asked appellee to resign, and upon his refusal preferred charges against him, which were served on him at 11:30 of the night of May 25, 1916, to be heard the next morning at 10:00 o’clock. The charges were substantially as follows:
1. Absenting himself from the Institution.
2. Failing to visit and inspect wards.
3. Permitting autopsies. .
4. Failure to consult with Board with reference to the employment and discharge of employees.
Through the efforts of mutual friends of the Governor, the members of the Board and of appellee, a compromise was effected on May 29, 1916. No record was made by the Board of these charges or their dismissal. It appears that the dissension between the Board and Dr. Bledsoe created a spirit of unrest among the employees and caused some confusion in the management and conduct of the institution. Dr. Bledsoe testified that to allay this, he made the compromise, believing that by so doing he was acting for the best interests of the institution. The members of the Board told mutual friends both before and after the compromise that they had no complaints against appellee personally, and were satisfied with his administration of the office, but that he must make the changes in his staff and other subordinates suggested by them. Subsequently there was another quarrel between appellee and the Board because appellee refused to discharge certain members of his staff and certain other employees. Appellee refused to make the changes in his staff and other employees as demanded by the Board. At six o’clock in the afternoon on June 6, 1916, charges were again preferred against appellee and he was notified to appear and answer them the next morning at 10 o’clock. The charges are in substance as follows:
1. Failing to devote his whole time to the duties of the office.
2. That he had absented himself from the institution when it was his duty to be there.
3. That he had failed to visit and inspect the wards as often as his duty required.
4. That he had failed to hold meetings of his staff as his duty required.
5. That he had illegally permitted autopsies to be held.
6. That during the past few weeks he has used his position to prejudice the people of the State against the Board and the Governor.
7. Charged with official misconduct in giving to the press his correspondence with the Board concerning the first disagreement between the Board and appellee.
Counsel in their brief for the Board do not argue that there is any testimony to support charges numbered 1, 2, 6 and 7; but inasmuch as reference has been made in regard to one of them in the majority opinion it has been deemed proper by me to also refer to them as being explanatory of the motives that actuated the Board in making the charges. In regard to charges numbers 6 and 7, it may be said that during the month of May when the first quarrel was had, certain letters passed between appellee and the Board which were published in the newspapers. In regard to charge No. 1, the evidence shows that appellee on one occasion, by permission of the Board went to Batesville, Ark., on Saturday night and was back at his post on Monday morning. That on another occasion, he went to Pine Bluff, leaving at 3 P. M., and returning next day. He was, also absent for one week in New Orleans. His absence at New Orleans was by permission of the Board, and was to attend a convention where it was thought he would gather some new and useful ideas in regard to running institutions of this kind. This was all the evidence on these charges and of course counsel abandoned them.
In regard to charge No. 2, one of the inmates of the hospital testified that he carried the mail to and from the city and worked at the telephone during the noon hour. That he usually got back from the post-office about 10:30 or 11 o’clock A. M., and 4 o’clock, P. M. That he had been doing this for three months. That he quite frequently met Dr. Bledsoe going away from the hospital as he returned. That he would frequently have telephone calls for him at the noon hour when he was not there. That sometimes he would meet him going away about 4 o’clock in the afternoon. Dr. Bledsoe, himself, gave a reasonable explanation of his absence. He said that it was frequently necessary for him to go to the State Capitol to consult the Board about obtaining supplies or to be down town on the same business. He also stated he has on a few occasions been absent on personal business or to go to a picture show with his family. This is all the testimony on this charge contained in the record and it furnished no ground whatever for dismissal. The undisputed evidence shows that no autopsies were made except in cases where no one claimed the body and an autopsy was necessary to determine the cause of the death of the deceased. The body was then interred in the same manner as other unclaimed bodies where no autopsies were held. The majority opinion does not even mention this charge and I only mention it as tending to show the Board was seeking any charge that might afford it a legal cause for removing appellee. It was not shown that the Board even objected to autopsies being held, or asked appellee not to hold them. This leaves for our consideration the only two charges that were pressed by the counsel for the Board to sustain its action in removing appellee, to-wit: ' Failing to attend staff meetings and to visit the wards. These are the charges relied upon by counsel to sustain the action of the Board in removing Dr. Bledsoe. In regard to the first, it may be said that the evidence shows that Dr. Bledsoe did not attend certain meetings of his staff during the month preceding his removal by the Board. It will be remembered that a quarrel commenced between Dr. Bledsoe and the Board about the first of May because he would not discharge his staff and other employees at the request of the Board. The hospital was divided into wards for the purpose of receiving patients, and certain members of the medical staff were designated for each ward. The incoming patient was mentally and bodily examined by the physician whose duty it was to receive him. A stenographer was assigned to the physician whose duty it was to examine the patient and his duty was to take down the result of the examination. A certain number of stenographers were employed for that purpose. After the quarrel between the Board and appellee, beginning May 1, 1916, the stenographers quit or were discharged. So during the month, of May while the dissension was hot between the Board and Dr. Bledsoe satisfactory stenographers could not be employed. The matters taken down by • the stenographers were the basis for the staff meetings which were held for the purpose of determining the particular mental disease of the patient and to better enable them to be treated. Dr. Bledsoe testified that during this time it was impossible to employ satisfactory stenographers and that it would take about a month to train to the work steno raphers who could be employed. His testimony on this point is not contradicted. It is reasonable and consistent and there was no reason to disregard it unless testimony tending to disprove it was introduced. Dr. Bledsoe’s private office adjoined the room in which the staff meetings were held, and on several occasions he did not go into the room where the staff meetings were held because he was engaged in other duties pertaining to the institution, having arranged with his chief assistant to call him in at any time that_ his presence was| required. The only remaining question is whether or not he visited the wards as often as necessary. The testimony on this question is as follows:
There are over two thousand patients in the Hospital and thirty-seven wards. The testimony of nine nurses shows that Dr. Bledsoe seldom visited their wards. Their testimony is contradicted by the records which are required to be kept on this matter, and also by Dr. Bledsoe who testified that he visited the wards where his presence seemed to be most required, and that he spent his whole time, in the discharge of his official duties. That the only time he was absent was when he went to see the members of the Board about supplies or occasionally to take his family to see a moving picture show. There are 37 wards in the institution. Dr. Bledsoe is only charged with having failed personally to visit seven of .them. He has eight assistants. It is admitted in the record that they faithfully performed their duties. It was their duty to visit the wards to which they were assigned and this it is conceded was done by them. It is also conceded that their duties were performed in an efficient and faithful manner. Every ward was visited one or more times each day by some member of his staff. On account of the number of wards and the number of patients in each ward, Dr. Bledsoe could not visit every ward each day and attend to his many other official duties. Hence he visited more frequently the wards where his presence seemed to be more needed. As to the 30 other wards it is not pretended that he did not visit them as often as necessary. Hence Dr. Bledsoe could not be discharged for failing to visit these wards. As a makeshift it is shown that he did not visit the laundry. It was the duty of Dr. Bledsoe to see that this department was conducted as the law requires. The man in charge of the laundry testified' that Dr. Bledsoe never visited his department. He does testify, however, that he conducted it as it ought to be and reported to Dr. Bledsoe. It will be remembered that there was a quarrel for nearly a month before charges were preferred. It seems from the record that the only complaint against Dr. Bledsoe was that he had not visited the laundry. It seems that the laundry was conducted as it should have'' been done and Dr. Bledsoe should of course not be discharged on that account. Dr. Bledsoe himself testified that he kept a general supervision over the farm and laundry.
There is an amount of ground around the institution which is planted in vegetables. It is shown that Dr. Bledsoe did not personally supérintend the growing of the vegetables therein. The farmer designated to manage this branch of the institution testified that the farm was conducted as it ought to be and his only complaint was that Dr. Bledsoe did not personally superintend it. I do not understand the record to show that many of the attendants testified that Dr. Bledsoe never spoke to them at all or that much of the testimony is to the effect that Dr. Bledsoe’s conduct towards the attendants was uncivil or discourteous. There is some testimony to the effect that Dr. Bledsoe was rude to some of his employees. He says that he is near-sighted and did not intend so to be. His rudeness unless it extended to illegality of conduct or to oppression under color of office is not ground for removal. This is so because the temperament of people is different. An apparent incivility may be due’ to poor eyes, to a preoccupied mind, or to a variety of’ other unintentional causes on the part of the person charged with being rude or discourteous, or it may be the result of prejudice, imagination or a variety of other causes on the part of the person alleging incivility. It must be remembered that the quarrel between the Board and Dr. Bledsoe commenced about the 1st of May. That it arose on account of his refusal to discharge certain members of his medical staff and other subordinates on the demand of the Board. That this quarrel continued until the compromise was affected during the latter part of the month, and that it was revived again in a week or so, when Dr. Bledsoe refused to make all the removals demanded by the Board. I think that a careful consideration of the whole record and a judicial review of it leads to the conclusion that whatever inefficiency resulted from not holding staff meetings or the lack of doing other things which had been regularly done before resulted from the unwarranted demands of the Board of Dr. Bledsoe and that the causes of removal designated in the statute could not result from a situation or condition caused by the Board itself making unwarranted demands on Dr. Bledsoe. Bach time charges were preferred against Dr. Bledsoe, he was given only a few hours’ notice to appear and defend against the charges. ' It may be seriously doubted if sufficient notice was given him to meet the charges but I make no point on that. I only mention this in connection with the other facts to show that .the Board did not act in a very judicial frame of mind; and that the charges did not eminate from minds desirous of exercising calm and deliberate judgment in investigating them. I think the whole matter resulted from the quarrel in regard to the removal of certain members of the medical staff and other subordinates and that the evidence as disclosed by the whole record did not afford any reasonable ground for the action of the Board in removing Dr. Bledsoe.
I am authorized to state by Mr. Justice Wood that he concurs in this dissent.