Henry JAMES, Jr.
v.
James B. HUNT, Jr.
No. 7826SC930.
Court of Appeals of North Carolina.
October 2, 1979.*485 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas F. Moffitt, Raleigh, for defendant-appellee.
James, McElroy & Diehl by William K. Diehl, Jr. and Allen J. Peterson, Charlotte, for plaintiff-appellant.
MORRIS, Chief Judge.
The trial judge held that until the defendant has made his final decision after a hearing on the merits, no justiciable "case or controversy" exists and that, therefore, the case is not "ripe" for judicial scrutiny at this time. We disagree. Plaintiff's complaint raises two questions: Whether the Administrative Procedure Act (G.S. 150A-1 et seq.) is applicable and must be followed in the removal proceedings initiated by defendant and whether defendant has the authority to suspend plaintiff pending a hearing on the merits.
It is true that plaintiff is entitled to a hearing. This is conceded by defendant and affirmatively averred in his counterclaim. After such a factual hearing is held, appeal may be had from the determination resulting therefrom. Plaintiff does not seek, in this action, to have any factual controversy settled. The question of whether the facts constitute cause for removal is not now before us. The only issues sought to be determined are questions of law.
The Declaratory Judgment Act (G.S., Chapter 1, Art. 26) provides that courts shall have the power to "declare rights, status, and other legal relations" regardless of whether "further relief is or could be claimed". G.S. 1-253.
By G.S. 1-254 provision is made for any person interested "under a deed, will, written contract or other writings constituting a contract" or whose rights may be affected by a statute, ordinance, contract, or franchise to have determined "any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise . . ." and G.S. 1-255 sets out those who may apply for a declaration of rights or legal relations with respect to trusts or estates of decedents, infants, lunatics, or insolvents. However, G.S. 1-256 specifically provides that "[t]he enumeration in §§ 1-254 and 1-255 does not limit or restrict the exercise of the general powers conferred in § 1-253 in any proceedings where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty" (emphasis supplied) and G.S. 1-264 declares that the Declaratory Judgment Act is intended to be remedial, that "its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered".
"The courts have on numerous occasions stated that the Uniform Declaratory Judgment Act furnishes a particularly appropriate method for determination of controversies relative to the construction and validity of a statute, provided there is an actual or justiciable controversy between the parties in respect to their rights under the statute. (Citations omitted.)" Woodard v. Carteret County, 270 N.C. 55, 59-60, 153 S.E.2d 809, 812 (1967).
Here plaintiff alleges that defendant must follow the procedure set out in the *486 Administrative Procedure Act. (Chapter 150A, General Statutes of North Carolina.) Defendant maintains this statute should be construed as having no application under these circumstances. Plaintiff urges that defendant has no authority to suspend him pending final determination on the merits. Defendant, on the other hand, urges a construction of the statutes, G.S. 65-50 and G.S. 143B-13(d), to allow for suspension.
We think this is clearly an appropriate case for declaratory judgment. See Jernigan v. State, 279 N.C. 556, 184 S.E.2d 259 (1971).
We now discuss the problem of whether, in removing plaintiff, the defendant must follow the procedure set up in the Administrative Procedure Act.
Article 9, Chapter 65 of the General Statutes of North Carolina, is entitled "North Carolina Cemetery Act". That Act establishes "in the Department of Commerce a North Carolina Cemetery Commission with the power and duty to adopt rules and regulations to be followed in the enforcement of this Article". G.S. 65-49. The Governor is given the power to appoint the seven members of the Commission (for fixed terms with staggered expiration dates), and is also given "the power to remove any member of the Commission from office for misfeasance, malfeasance, and nonfeasance according to the provisions of G.S. 143B-13 of the Executive Organization Act of 1973". G.S. 65-50.
Section 13 of Chapter 143B (Executive Organization Act of 1973) is entitled "Appointment, qualifications, terms, and removal of members of commissions". It provides that commission members must be residents of the State, establishes criteria for the use of the Governor in selecting appointees, sets out the events the happening of which would create a vacancy in a commission membership, delineates proscribed political activities, and specifically provides: "In addition to the foregoing, any member of a commission may be removed from office by the Governor for misfeasance, malfeasance, and nonfeasance." G.S. 143B-13(d).
It is clear from the statutory provisions that members of the Commission are not removable at the pleasure of the Governor, nor does defendant so contend. Indeed the statutory provisions specifically provide that the removal must be for cause. This is entirely necessary, given the duties and purpose of the Commission. It is charged "with the power and duty to adopt rules and regulations to be followed in the enforcement" of the North Carolina Cemeteries Act, including the licensing of cemeteries operating in this State. It must act with entire impartiality. The duties of the Commission are neither political nor executive. They are predominantly quasi-judicial and quasi-legislative. Its members are required to exercise the judgment of experts in the field "appointed by law and informed by experience". Illinois Central Railroad Co. v. Interstate Commerce Commission, 206 U.S. 441, 454, 27 S. Ct. 700, 704, 51 L. Ed. 1128, 1134 (1907).
The question of removal of appointees by the Chief Executive Officer of the United States has often been discussed and reference is frequently made to a trilogy of cases in which the problem is discussed in much detail. See Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160 (1926); Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935), and Wiener v. United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377 (1958). In Humphrey, the Court considered whether President Roosevelt had the power to remove a member of the Federal Trade Commission because he felt that the aim of his administration with respect to the work of the Commission could best be carried out with personnel of his own choosing despite the provision in the Federal Trade Commission Act that "[a]ny Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office." 295 U.S. at 620, 55 S.Ct. at 870, 79 L.Ed. at 1614. The Court, in holding that removal by the President could only be for cause, said:
"The authority of Congress, in creating quasi legislative or quasi judicial agencies, *487 to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.
The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings `should be free from the remotest influence, direct or indirect, of either of the other two powers.' Andrews, The Works of James Wilson (1896), vol. 1, p. 367. And Mr. Justice Story in the first volume of his work on the Constitution (4th ed.) § 530, citing No. 48 of The Federalist, said that neither of the departments in reference to each other `ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.' And see O'Donoghue v. United States, supra (289 U.S. 516, 530, 531, 53 S. Ct. 740, 77 L. Ed. 1356, 1361, 1362). The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission, which is not only wholly disconnected from the executive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments." 295 U.S. at 629-30, 55 S.Ct. at 874-75, 79 L.Ed. at 1619-20.
Our Court, in 1897, in holding that the Governor had the right to suspend a member of the Railroad Commission of North Carolina, said:
"We realize the responsibilities of this court in settling the line of demarkation between the legislative, executive, and supreme judicial powers, which, by constitutional obligation, must be kept forever separate and distinct. This vital line must be drawn by us alone, and we will endeavor to draw it with a firm and even hand, free alike from the palsied touch of interest and subserviency and the itching grasp of power. Should the legislative or executive departments of the state cross that line, we will put them back where they belong; but upon us rests the equal obligation of keeping upon our own side. This is a question not of discretion, but of law; a matter not of expediency, but of right.
.....
Upon the foregoing authorities, we are of opinion that the disputed provisions of the act are constitutional, and that the power of suspension rests in the hands of the governor, which, when exercised in an orderly manner, is not reviewable by the courts (whether the action of the governor was justified by the facts, which he alone could find, is not for us to say)." State ex rel. Caldwell v. Wilson, 121 N.C. 425, 471-72, 28 S.E. 554, 562 (1897).
The statutory authority of defendant to remove appointees to the Cemetery Commission for cause is not objectionable as constituting a delegation of legislative or judicial power to the executive branch of government. State v. Morton, 140 W.Va. 207, 84 S.E.2d 791 (1954). See generally 38 Am.Jur.2d, Governor, § 8 (1968).
A case strikingly similar to the case before us is Hall v. Tirey, Okl., 501 P.2d 496 (1972). A member of the State Board for *488 Property and Casualty Rates brought an action to review the Governor's action in removing him from office. The trial court held that the record before the hearing examiner did not contain sufficient evidence to justify removal. On the Governor's appeal, the Supreme Court held that the proper procedure for the appointee to obtain review of the Governor's action was by petition for writ of mandamus in the trial court to require the State's payroll officer to pay the compensation the appointee claimed. The Governor had notified the appointee that he could request a hearing and suspended him pending final determination of the matter. The appointee challenged the Governor's power to suspend him and refused to obey the executive order. The Governor appointed a hearing examiner whose function was to conduct the presentation of evidence but not to make a decision or find facts. A transcript was prepared for the Governor who entered a final order of removal. The order contained findings of fact and conclusions of law. The Court, after holding that the Governor had the power to suspend and remove, noted that the appointee claimed that his removal was subject to judicial review under the Administrative Procedure Act. The Court adopted the rationale of Humphrey's Executor in holding that judicial review was appropriate but held that the Administrative Procedure Act did not apply to removals by the Governor.
We think this is a logical conclusion. The early opinions in other states indicate that the propriety of a Governor's exercise of his power of removal was not reviewable at all. See Annot., 52 A.L.R. 7 (1928) and Annot., 92 A.L.R. 998 (1934). In recent years, courts have shown an increased willingness to review. See Humphrey's Executor, Weiner, and Hall, supra. However, we find no case nor indication by any court that the courts should bind the Governor to any statutory procedure unless the Constitution of the state or the statutory provisions giving him the power of removal specify a specific procedure therefor. Here, G.S. 65-50 gives the Governor the power to remove a member of the Cemetery Commission for cause "according to the provisions of G.S. 143B-13 of the Executive Organization Act of 1973". There is no reference to the Administrative Procedure Act. Nor does G.S. 143B-13(d), which gives the Governor power to remove for cause any member of a commission, refer to the Administrative Procedure Act. Had the General Assembly intended for the Governor to be bound by the provisions of the Administrative Procedure Act, it could have referred to that Act rather than the Executive Organizations Act. Absent a specific legislative enactment requiring removals by the Governor to be subject to the Administrative Procedure Act, we do not believe the Act is applicable to removals by the Governor, and we so hold.
We turn now to appellant's contention that the Governor had no power or authority to suspend him. It is true that the statutes giving the Governor the power of removal do not specifically include the power of suspension. However, the suspension of public officers pending a removal for cause seems to be fair and it is quite often essential. Although there is some authority contra [see, e. g., Cull v. Wheltle, 114 Md. 58, 79 A. 820 (1910) and Gregory v. Mayor of City of New York, 113 N.Y. 416, 21 N.E. 119 (1889)], "[t]he power to suspend is generally considered as included in the power of removal for cause, since a suspension is merely a less severe disciplinary measure". 63 Am.Jur.2d, Public Officers and Employees, § 256 (1972). In State ex rel. Carlson v. Strunk, 219 Minn. 529, 18 N.W.2d 457 (1945), the Governor had suspended and removed one Wenzel as Commissioner of Conservation, under a statute giving him the power to remove, and had appointed an acting commissioner on the day Wenzel was suspended. The Court upheld the suspension and quoted with approval from State ex rel. Clapp v. Peterson, 50 Minn. 239, 244, 52 N.W. 655, 655-56 (1892), where the Court said:
"Whether the power to suspend is included generally in the power to remove, so that the former may be exercised independently of the latter, we need not consider. *489 But we are very clear that the power of temporary suspension, so far as necessary and ancillary to the power to remove, is included in the latter. This is under the familiar doctrine of implication, that, where a constitution gives a general power or enjoins a duty, it also gives by implication every particular power necessary for the exercise of the one or the performance of the other. Cooley, Const. Lim. 78.
`As is well said in State v. Police Com'rs, 16 Mo.App. [48] 50: "The suspension of an officer pending his trial for misconduct, so far as to tie his hands for the time being, seems to be universally accepted as a fair, salutary, and often necessary incident of the situation. His retention at such a time of all the advantages and opportunities afforded by official position may enable and encourage him, not only to persist in the rebellious practices complained of, but also to seriously embarrass his triers in their approaches to the ends of justice."' * *
`The safety of the state, which is the highest law, imperatively requires the suspension, pending his trial, of a public officer,especially a custodian of public funds,charged with malfeasance or nonfeasance in office. Suspension does not remove the officer, but merely prevents him, for the time being, from performing the functions of his office; and from the very necessities of the case must precede a trial or hearing.' (Italics supplied.)" 219 Minn. at 532-33, 18 N.W.2d at 459.
Accord: Burnap v. United States, 252 U.S. 512, 40 S. Ct. 374, 64 L. Ed. 692 (1920); State ex rel. Thompson v. Seigler, 230 S.C. 115, 94 S.E.2d 231 (1956). See also Caldwell v. Wilson, supra. The view above expressed appears to us to be by far the better reasoned view. We, therefore, hold that the Governor did not exceed his power and authority when he suspended appellant.
We do not discuss the cause for the suspension and removal. That is not before us. We merely hold that the Governor has the power to suspend and remove for cause and that the Administrative Procedure Act has no applicability to the Governor's removal for cause.
The trial court correctly dismissed the action but the matter is remanded for the entry of judgment in conformity with this opinion.
PARKER and HARRY C. MARTIN, JJ., concur.