McCran v. Gaul

White, J.

(dissenting). 1 vote to reverse because I think, as contended by counsel for the defendant and conceded by the attorney-general for the state, that the action of the governor in finding the defendant guilty of neglect of duty and misconduct in office after a hearing, is “judicial” in character. Our constitution vests all judicial power in the courts, which courts it expressly enumerates. This enumeration, besides the Court of Errors and Appeals, the Supreme Court, &c., &c., includes the court of impeachment and also such inferior courts as shall from¡ time to time be established. The governor is not included in this enumeration. His eoosti*179tutional powers are exclusively “executive.” Chief Justice Beasley, ira State v. Pritchard, 36 N. J. L. 101, after going over the whole subject in his masterly manner, said: “It is obvious, therefore, that the governor of this state is not possessed of a particle of judicial capacity.”

What is it, then, that the legislature has done in providing in the Public Utility act of 1911, that “Tire governor may remove any commissioner for neglect of duty or misconduct in office, giving him a copy of the charges against him and an opportunity of being publicly heard ini person or by counsel in Ms own defence upon not less than ten days’ notice?”

1. is it the creation of an additional court of impeachment? If we accept the contention of the attorney-general that this judicial action of the governor under this legislation is final and absolute and not subject to supervision or review in any manner whatsoever by the courts, then an affirmative answer to this question would seem inevitable, because under the constitution the court of impeachment alone of the courts of first instance renders decisions which are not subject to appeal to or review by any higher or other tribunal. Of course, such a view would render the act unconstitutional.

2. Or is what the legislature lias done by this section, the creation of am inferior court “or judicial body for a special purpose,” using the language of Chief Justice Gum-mere speaking for this court in Voight v. Board of Excise, 59 N. J. L. 358? If so, the Supreme Court may, under its constitutional jurisdiction by its writ of certiorari, review the action of such inferior judicial tribunal. But the Supreme Court’s writ of certiorari cannot reach tire governor of the state, a co-ordinate branch of' the state government, or if it can, thte Supreme Court is helpless to enforce obedience to the writ because the person of the governor, wlm is the personification of the sovereignty of the people of the state, cannot be taken into custodjr by the sheriff under process for contempt. This construction, therefore, of the provision in question renders it unconstitutional, because *180an infringement of the constitutional jurisdiction of the Supreme Court.

3. Or does what the legislature has d'one constitute a vesting in the executive of the state of an administrative, in the sense of ministerial, power depending for the legality of its exercise upon the existence of the fact upon the hap-' pening of 'which only the power springs into being, but the existence of which fact can he challenged and tried out in the courts, thereby sustaining or defeating, as the case may be, the attempted exercise of the power ? This view, I think, is supported by what seems to me to be the obvious meaning of the section in question, namely, that it is the act of betrayal of his public trust by the commissioner himself which forfeits his office, and not the order of the governor removing him, as it would he if mo term .for the office were prescribed and the governor consequently had the power to remove at will, or if, with the term prescribed, the statute expressly gave the governor the power of removal at will. This latter situation is, I think, the “statutory specification” which Chief Justice Beasley meant in the Pritchard case, supra, when he said: “I have not been able to perceive any intimation, not even the least, either in the constitution of this state, its system of laws or legal observances, that this right of superintendence over, or power to remove from) public office, except in instances of statutory specifications, has been delegated to the executive 'head of the government.” It is the “power to remove” which the great Chief Justice thought might be given the governor by-statute, and not the power to try amid adjudge a forfeiture of' office resulting from malfeasance therein., If this view is the correct one the information filed in this ease .is insufficient, and, therefore, the demurrer to it should have, been sustained, because such information does not allege that this defendant was guilty of any specified act of neglect or misconduct, nor does it even in general termfe say that the. defendant was -guilty of neglect or misconduct. All that it says is .that the governor, after charges filed and a hearing after ten days’ notice, found the defendant gfuilty of neglect and misconduct and removed him from *181office. The defendant, therefore, had no opportunity to traverse by a plea the existence of the fact that he was. guilty of the offences, the commission of which alone forfeited his office.

Of course, I agree that if some person other than the governor of the state had been given this power to try, find guilty, and remove from office this defendant for betraying his office in the manner prescribed in tbe act, such other person would constitute “a judicial body for that purpose” and as such would be an inferior judicial tribunal, as provided for in the constitution, whose actions Would be subject to review by the Supreme Court through its writ, of certiorari (In re Roebling’s Estate, 108 Atl. Rep. 359); and I also agree that tbe decision and judgment of rempval of such special judicial body could n'ot be attacked collaterally in information in the nature of quo warranto proceedings, brought practically to enforce tbe decision. But," as above pointed out, to hold the governor to bo such a special judicial tribunal would render the act void, by making it create under the constitutional authority to establish inferior judicial tribunals, a judicial tribunal which was not in fact inferior because no appeal could be taken from its decisions, and it was not subject to the writ of certiorari of the Supreme Court.

To me it is unthinkable that under our form of government a man who has tbe right by law to hold an office (if it continues to exist.) during- a fixed term, unless he, by his own misconduct, betrays that office, can be removed before tbe expiration of tbe term because of snob betrayal without being tried and found guilty thereof in the courts, where by our constitution all judicial power is lodged. I am Well aware that public office is not private property. .N"either is a man’s good reputation nor his right to pursue happiness, nor indeed, his right to life itself, a property right. But all of these rights are protected by our constitution and by our laws through the medium of our courts and can only be taken away by due process of law. Can it be that the right of the holder of a public office with a fixed term, to serve his fellow*182men in that office and to receive the honors and emoluments thereof until the end of that term, unless he shall, by his own betrayal of his office, forfeit it, is not a subject entitled to the protection of the courts, because it is mot a property right? Surely not. Most good citizens hold their good name, their good repute and esteem among their fellowmen, of more value than mlere property. Nor is this view confined exclusively to good citizens. lago, who certainly was not a good citizen, seems to have been mo vied by the same sentiment when be said:

"Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals crash; ‘tis something, nothing; ‘Twas min'e, ‘tis his, and has been slave to thousands ;
But he that lilches from me my good name llobs me of that which not enriches him And makes me poor indeed.”

And im Campbell v. Gilkyson, 78 N. J. L. 327, Chief Justice Gumanere, speaking for this court and quoting Matter of Hathway, 71 N. Y. 238, and United States v. Hartwell, 6 Wall. 385, said that a public office is “the right to exercise generally, and in all proper cases the functions of a public trust or employment, and to receive the fees and emoluments belonging to it, and to hold the place and perform! the duty for the term and by the tenure prescribed by law,” and this court there held that this right enjoyed the full protection of our courts against unlawful invasion under cover of unconstitutional legisla tion.

But it is said the interest of the public is paramount and that in that interest the governor must not be hampered in the speedy, summary removal of faithless officials. 'The answer to this is that if that were the purpose of the legislature in tire Public Utility act it should have given the governor the power to remove at will. If it intended the members of this commission, practically one of the most if not the most important of the tribunals in the state, to be subject to removal at the pleasure of the governor it should have said so. This it did not do. On the contrary, as I view it, it said *183that the governor should not have the removal-at-will power, but that the members should hold office for a definite term unless they, by their own official neglect or misconduct, themselves forfeited their office®. In this connection it is interesting to note that not only did the counsel for all of the defendants contend, but the attorney-general for the state expressly admitted, that the defendants had not been guilty of any intentional wrong-doing or neglect, that is, had not been guilty of what is ordinarily understood as malfeasance in office. The charges themselves and the findings of guilt seem to substantiate this view. Apparently the most that is contended for is that, in the judgment of those who framed the charges and of the governor who sustained them, the members of this commission should, under1 the discretion vested in them by the act, have acted differently in certain specified ways than they did act. I find great difficulty in differentiating a removal for such an alleged cause from a removal under a pure removal-at-will powe), winch latter I do not think the legislature intended the governor to have.

Rut, however that may be, my conclusion is that if: the provision in question of the act can be sustained at all it can only be sustained by holding that it is not the action of the governor in removing the defendant from office, but the betrayal of a public trust by the defendant himself which works the forfeiture of his office, and that an declaring such forfeiture the governor’s acts are administrative, or ministerial, if you will, and that in proceedings by information in the nature of a quo warranto to actually oust defendant from office, the latter has the right to raise -an issue of his guilt and to baae that issue tried out in the courts established by the constitution and in the manner prescribed by law. That opportunity the information! in this ease did not give him, because it did mot allege his guilt, and the demurrer, I think, should have been sustained.

1 am requested, by Justices Swa.yze, Kalisch and Katzenbach and Judges Williams and Heppenheimer to say that they concur in the views herein expressed.

*184For affirmance — The Chancellor, Ghiee Justice, Parker, Bergen, Taylor, Gardner, Ackerson, JJ. 7.

For reversal—Swayze, Kalisci-i, Tyatzenbaoh, White, Heppenjieimer, Williams, JJ. 6.