The determinative question presented by the pleadings is: Has the Governor the power and authority to remove a member of the State Fish and Game Commission without notice and hearing? It will be observed that section 3651, Revised Codes 1921, provides for the appointment of the members of the commission to serve for four (4) years unless sooner removed and the Governor is given power to remove any member of the commission "for cause or forthe good of the commission."
The right to hold office is not a vested right and the legislature may within the limits imposed by the Constitution provide methods by which the incumbents of office may be removed from office before the expiration of their term. (Cline v.Superior Court of Los Angeles County, 184 Cal. 331,193 P. 929; Attorney General v. Jochim, 99 Mich. 358, 58 N.W. 611, 41 Am. St. Rep. 606, 23 L.R.A. 699; State ex rel. Payne v.District Court, 53 Mont. 350, 165 P. 294; State ex rel.Bullock v. District Court, 62 Mont. 600, 205 P. 955; Lynch v. Chase, 55 Kan. 367, 40 P. 666; State ex rel. Hamilton v.Grant, 14 Wyo. 41, 81 P. 795, 116 Am. St. Rep. 982, 1 L.R.A. (n.s.) 588.)
It has been uniformly held that the power to appoint carries with it, as an incident, in the absence of constitutional or statutory restraint, the right to remove the appointee. (Touart v. State, 173 Ala. 453, 56 So. 211; Taylor v. Kercheval, 82 Fed. 497; Cameron v. Parker, 2 Okla. 277, 38 P. 14; Town ofDavis v. Filler, 47 W. Va. 413, 35 S.E. 6; Sponogle v.Curnow, 136 Cal. 580, 69 P. 255; Sanders v. Belue,78 S.C. 171, 58 S.E. 762.)
Since the right to hold office is not a vested right, the authorities hold that the legislature may, unless restricted by constitutional provision, provide methods for the removal of an officer before the expiration of his term. (22 R.C.L. 561, *Page 428 sec. 265, 46 C.J. 983.) So, too, it has generally been held that the legislature has the power to provide for the removal of an officer without notice and hearing. (State ex rel. Payne v.District Court, supra; People v. Draper, 67 Misc. 460,124 N Y Supp. 758; People v. Whitlock, 92 N.Y. 191; Donahue v.Will County, 100 Ill. 94; Eckloff v. District of Columbia,135 U.S. 240, 10 Sup. Ct. 752, 34 L. Ed. 120; People v.Higgins, 15 Ill. 110; State v. Prince, 45 Wis. 610; State v. Doherty, 25 La. Ann. 119, 13 Am. Rep. 131; Trimble v.People, 19 Colo. 189, 34 P. 981, 41 Am. St. Rep. 236; Lynch v. Chase, 55 Kan. 367, 40 P. 666; Townsend v. Kurtz,83 Md. 350, 34 A. 1123; Sweeney v. Stevens, 46 N.J.L. 344; 46 C.J. 989.)
Generally, the authorities hold that where an officer is appointed for a definite fixed time, he can only be removed for cause and then only after notice and hearing, but where an officer is removable at pleasure, his removal may be affected merely by a declaration of removal. (46 C.J. 993.) It may be conceded for the sake of argument that if section 3651 merely gave the Governor the power to remove a member of the commission for "cause," the removal could only be affected by notice and hearing, so that it becomes apparent that the determination of this case depends upon the construction to be placed upon the words, "or for the good of the commission." It is our contention that these words place discretionary powers in the Governor and that when he, acting in good faith, deems it for the good of the commission, he may remove any member at any time without notice or hearing. An examination of the authorities will disclose no statute exactly like our section 3651, supra, but reference to the cases dealing with statutes somewhat similar to ours will be helpful. They support our contention. (See State exrel. Hamilton v. Grant, 14 Wyo. 41, 81 P. 795, 116 Am. St. Rep. 982, 1 L.R.A. (n.s.) 588; State v. Crandall, 269 Mo. 44,190 S.W. 889; People v. Draper, 67 Misc. 460,124 N.Y. Supp. 758; State v. Burke, 8 Wash. 412, 36 P. 281; Ayres v.Hatch, 175 Mass. 489, 491, 56 N.E. 612; Hertel v.Boismenue, *Page 429 229 Ill. 474, 82 N.E. 298; Lacy v. Selectmen of Winchendon,240 Mass. 118, 133 N.E. 90; O'Dowd v. Boston, 149 Mass. 443,21 N.E. 949; Attorney General v. Donahue, 169 Mass. 18,47 N.E. 433; State v. Crandall, 269 Mo. 44, 190 S.W. 889; Roth v. State, 158 Ind. 242, 63 N.E. 460; In re Carter, 141 Cal. 316,74 P. 997; Trimble v. People, 19 Colo. 189,34 P. 981, 41 Am. St. Rep. 236; State v. Cheetham, 19 Wash. 330,355, 53 P. 349.)
It can hardly be said that in view of the history of the legislation (set forth in the brief) dealing with the Fish and Game Commission and the deputy game wardens that the clause "or for the good of the commission" was not inserted for a purpose. It is not unusual to grant to the Governor power to remove an appointee without notice and without a hearing. Indeed, numerous officers under our laws may be removed by the appointing power at will. (Citing many sections of the Codes.) It is significant that the game warden and deputy game wardens may only be removed after notice and hearing, but the Game Commission may be removed by the Governor "for the good of the commission," and there is not any provision of any kind or character made for hearing or for notice of charges preferred. (In this connection see State v.Crandall, 269 Mo. 44, 190 S.W. 889.)
No rule of law is better settled in Montana than that in construing a statute the court will give meaning to every word, phrase, clause and sentence therein if it is possible to do so. (In re McLure's Estate, 68 Mont. 556, 220 P. 527; Stange v.Esval, 67 Mont. 301, 215 P. 807; City of Billings v.Public Service Commission, 67 Mont. 29, 214 P. 608.) If, then, "or for the good of the commission" means what the legislature very clearly intended it to mean, there is no difficulty in giving the section a practical construction and giving meaning to each and every word and clause therein contained. We think it is clear that under section 3651 two methods are provided for the removal of the members of the Fish and Game Commission — first, the Governor may remove for cause, that is, by giving notice and having a hearing, or, second, *Page 430 if the Governor in the exercise of discretion deems it "for the good of the commission," he may remove the members thereof without a hearing.
If the Governor had jurisdiction to remove members of the commission without notice and hearing, we earnestly contend that the court is without jurisdiction and that the Governor's findings and the order of removal are final and conclusive. (46 C.J., secs. 173, 174, pp. 994, 995; 12 R.C.L., pp. 1008, 1010; 52 A.L.R., p. 7; In re Richardson, 247 N.Y. 401, 160 N.E. 655; Inre Rice, 226 N.Y. Supp. 585.) Courts are practically unanimous in construction of the word "cause" as used in section 3651, Revised Codes 1921, as meaning legal cause, with notice and opportunity to be heard. The words "for cause" have a definite, defined and legally construed meaning — "legal cause." The cause must be one which specially relates to and affects the administration of the office and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. (46 C.J. 986, sec. 148.) Power to remove a person from office "for cause" means that 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. (Inre Nichols, 57 How. Pr. (N.Y.) 395, 6 Abb. N.C. 474; 22 R.C.L., p. 571, sec. 282.)
Where the appointment is made for a definite term (as here), 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 must first be determined after notice has been given to the officer of the charges against him and he has been given an opportunity to be heard in his defense. (Dullam v. Willson, 53 Mich. 392,19 N.W. 112, 51 Am. Rep. 128.) That this is true although the word "notice" or the procedure *Page 431 for notice and hearing is not set forth in the statute expressly is clear from the opinion of the supreme court of Missouri in the case of State ex rel. Reid v. Walbridge, 119 Mo. 383,24 S.W. 457, 41 Am. St. Rep. 663; see, also, Welch v. Ware, 161 Cal. 641,119 P. 1080.)
"Under such provision of the Code the respondent could only be legally removed after an opportunity to be heard on charges preferred against him." (Abrams v. Daugherty, 60 Cal. App. 297,212 P. 952.)
Common-law rule: In the absence of statutory provisions relating to removal of public officers, the rule is that a public officer can be removed only for cause, and he is entitled to notice and a hearing in order that he may have an opportunity to defend. (Knox County v. Johnson, 124 Ind. 145, 24 N.E. 148, 19 Am. St. Rep. 88, 7 L.R.A. 684; McGregor v. Gladwin County,37 Mich. 388; Hallgren v. Campbell, 82 Mich. 255,46 N.W. 381, 21 Am. St. Rep. 557, 9 L.R.A. 408; Williard's Appeal,4 R.I. 595, 597; Hayden v. Memphis, 100 Tenn. 582, 47 S.W. 182;Richards v. Clarksburg, 30 W. Va. 491, 4 S.E. 774.)
Rule under statute: It is well established in most jurisdictions that where a public officer is elected or appointed for a fixed term, and provision is made generally for his removal for cause, the power of removal cannot, in the absence of the positive mandate of statute, be exercised without notice and a hearing. (Porter v. Murphy, (1907) 7 Ind. Ter. 395, 104 S.W. 658; Lynch v. Chase, 55 Kan. 367, 40 P. 666; Andrews v.Police Board, 94 Me. 68, 46 A. 801; Street Commrs. v.Williams, 96 Md. 232, 53 A. 923; Ham v. Board of Police,142 Mass. 90, 7 N.E. 540; State v. St. Louis, 90 Mo. 19,1 S.W. 757; Williams v. St. Louis, (1908) 213 Mo. 403,111 S.W. 1165; Haight v. Love, 39 N.J.L. (10 Vroom) 476, 23 Am. Rep. 234; Biggs v. McBride, 17 Or. 640, 21 P. 878, 5 L.R.A. 115;Com. v. Slifer, 25 Pa. St. 23, 64 Am. Dec. 680; Gordon v.State, 43 Tex. 330; Pratt v. Board of Police etc. Commrs.,15 Utah, 1, 49 P. 747.) *Page 432
Appellant contends, however, that the addition of the words "for the good of the commission" made it discretionary with the Governor, and he could remove summarily when he determined in his own mind it was best for the commission. It is contended that the wording of the statute is in effect, "The Governor is hereby given the power to remove any member of said commission for cause or as he sees fit." If we give the meaning of "at his discretion" to the latter part of said sentence, it completely nullifies the words "for cause." What, then, is meant by "for the good of the commission"? We have searched diligently for a statute with the exact wording of our statute, without avail, but we do find statutes carrying the wording, for cause or for the good of theservice," in relation to civil service, which is certainly identical wording, the word "service" merely taking the place of "commission" in our statute. The cases of State v. KansasCity, (Mo.) 257 S.W. 197, Ayers v. Hatch, 175 Mass. 489,56 N.E. 612, and Pratt v. Board of Police Fire Commrs.,15 Utah, 1, 49 P. 747, bear out the proposition that "cause," "good cause" or "for the good of the commission" are all synonymous. Either relates to something of a substantial nature directly affecting the rights and interests of the public, something which the law and sound public opinion will recognize as a good reason for another occupying the place, and fitting perfectly into the general definitions of "cause" quoted supra. If there is cause for the removal of an officer, then it is for the good of the commission or board. It is for the good of the public. "It is not customary to confer on officers the power to make removals at will." (22 R.C.L. 563, sec. 267; Speed v.Detroit, 98 Mich. 360, 57 N.W. 406, 39 Am. St. Rep. 555, 22 L.R.A. 842.)
The framers of this Act intended to take it out of politics. (See secs. 3651, 3658, Rev. Codes 1921.) Why should the legislature have provided for a majority of the board to hold over under the terms of their appointment unless they contemplated guarding against frequent and sudden changes in the entire policy? The case of Bannerman v. Boyle, *Page 433 160 Cal. 197, 116 P. 732, is pertinent here. (See, also, Roth v.State, 158 Ind. 242, 63 N.E. 460.) We cannot accept the interpretation urged by appellant, as it is then impossible to harmonize and reconcile all parts of the statute. Conflicting intentions in the same statute are never to be supposed or so regarded. (59 C.J. 999, sec. 596.)
Section 422 of the Revised Codes of 1921, provides: "Every office of which the duration is not fixed by law is held at the pleasure of the appointing power." The above is taken from and exact in form and wording to the Code of California, i.e., Cal. Pol. Code, section 878. This has been extensively construed in California and taken as meaning that this is an exception and that the adverse is generally true. (21 Cal. Jur., p. 981, sec. 146.) Thus even where the statute is silent as to the powers of removal, method or procedure, where the term is fixed by law as in the case of claimant Sullivan, cause must be shown, with notice and an opportunity to be heard. (People v. Jewett,6 Cal. 291; People v. Mizner, 7 Cal. 519; Bannerman v.Boyle, supra; Boyd v. Pendegast, 57 Cal. App. 504,207 P. 713.)
The fact that several causes for removal are specified does not lessen the necessity of notice, hearing and a chance to defend. If the statute had carried several causes, such as "misconduct in office," "corruption," "immorality," etc., they would be nothing more than a direction as to for what reasons removal may be had, but still carry the absolute requirement of notice and opportunity to be heard, and proof within the terms of the statute. The fact that this statute says for the "good of the commission" is merely a specification of a reason for removal and does not have any effect to release the Governor from the law relative to judicial inquiry. (46 C.J. 990; Dullam v. Wilson,53 Mich. 392, 19 N.W. 112; Shurtleff v. United States,189 U.S. 311, 23 Sup. Ct. 535, 47 L. Ed. 828; see, also, State v.Frazier, (1921) 47 N.D. 314, 182 N.W. 545.)
The authorities cited by counsel for appellant are inapplicable to the case at bar. They all involve one or more of *Page 434 three elements which are foreign to this case, i.e., (1) In some of them the statute expressly granted wide discretionary power to the removing officer which would negative any implication of necessity of notice and hearing. (2) In others, the statute expressly provided for some procedure, other than notice and hearing, such as the filing of charges with the Secretary of State or a city clerk, and in the face of such specific provision, no other proceedings could be presumed necessary. (3) In the third type of case cited by appellant, the officer removed did not hold a definite, fixed term and hence clearly held his position at the "pleasure" of the appointing power. Application for writ of quo warranto by the State on the relation of Raymond T. Nagle, as Attorney General, against W.P. Sullivan and A.C. Baumgartner.
The State Fish and Game Commission, composed of five members, and as it now exists, was created by section 3650, Revised Codes of 1921. Section 3651 provides for the appointment of the members of the commission by the Governor, and that the selection shall be made without regard to political affiliations, "but for the sole welfare of the fish, game, and wild life of the state." It is then provided that the members first appointed shall hold or serve for one, two, three and four years, and thereafter, on the expiration of these terms, the Governor shall appoint commissioners "to serve for four years, unless sooner removed." The Governor is authorized to fill all vacancies and is given "the power to remove any member of said commission for cause or for the good of the commission."
On May 23, 1932, all members of the existing commission having resigned, Governor Erickson made, and filed with the Secretary of State, the following appointments:
William Steinbrenner, for the term ending April 15, 1933.
Harry P. Stanford, for the term ending April 15, 1934. *Page 435
B.L. Price, for the term ending April 15, 1934.
W.P. Sullivan, for the term ending April 15, 1935; and
William F. Flynn, for the term ending April 15, 1936.
Steinbrenner was evidently appointed for a four-year term at the expiration of the term above specified. Each of the men named commissioner duly qualified in the manner prescribed by law and entered upon the discharge of the duties of his office.
On March 13, 1933, Governor Erickson resigned, and the powers and duties of the office of Governor devolved upon Lieutenant-Governor F.H. Cooney.
On April 17, 1934, the terms of commissioners Stanford and Price having expired, acting Governor Cooney subscribed and filed with the Secretary of State an instrument in writing in which he declared: "I have this day revoked and do hereby revoke the appointments heretofore made, of the following named members of the State Fish and Game Commission, said revocation being made for the good of the Commission: W.P. Sullivan, of Chouteau County, appointed for the term ending April 15, 1935; William F. Flynn, of Deer Lodge County, appointed for the term ending April 15, 1936; William Steinbrenner, of Missoula County, appointed for the term ending April 15, 1937."
On the same day acting Governor Cooney subscribed and filed with the Secretary of State the following declaration: "I have this day appointed and do hereby appoint the following named persons to be members of the State Fish and Game Commission: A.C. Baumgartner, of Great Falls, Cascade County, for the term ending April 15, 1935, to fill the vacancy caused by the removal of W.P. Sullivan; P.G. Gutensohn, of Whitefish, Flathead County, for the term ending April 15, 1936, to fill the vacancy caused by the removal of William F. Flynn; J.J. Harper, of Anaconda, Deer Lodge County, for the term ending April 15, 1937, to fill the vacancy caused by the removal of William Steinbrenner; Ray G. Lowe, of Glendive, Dawson County, for the term ending April, 1938; *Page 436 W.C. Keil, of Billings, Yellowstone County, for the term ending April 15, 1938."
The above-named five men took the usual oath of office and filed the required bonds, and thereafter, on April 19, 1934, met in the office of the Fish and Game Commission, claiming to constitute that commission, and proceeded to transact business as such, and on the following day, Sullivan, Flynn and Steinbrenner met in that office, claiming to constitute the commission, and likewise proceeded to transact business.
On April 21, 1934, the Attorney General filed his complaint herein, reciting the foregoing facts, and alleged the importance of the duties of the commission and their orderly discharge, and that Sullivan and Baumgartner each contend that the other is attempting to usurp, and is usurping and unlawfully holding and exercising the powers of the office, and that he cannot determine who is right. The relator prays that the defendants be required to try their rights before the court, and that the court determine which one of the defendants, if either, is entitled to the office.
Defendant Sullivan filed an answer and cross-complaint, in which he alleged that his attempted removal was void and of no effect, as the sole ground of the Governor's action was the refusal of the commission to appoint a game warden of the Governor's selection, and the action was taken without notice, hearing or opportunity to be heard.
Defendant Baumgartner filed an answer and cross-complaint, and a reply to Sullivan's pleadings, wherein he alleged, on information and belief, many matters which, if proved, would constitute grounds for removal of the members of the commission, and alleged, on information and belief, that these matters were known to the Governor and were the moving cause of the order of removal. He admitted that Sullivan was removed without notice and hearing but alleged that such preliminaries were not necessary.
Sullivan thereafter filed a motion to strike all matter in the Baumgartner pleadings reflecting on the members of the commission as conclusions, surplusage and immaterial allegations, *Page 437 "unless and until the Executive assumes to act after accusation in writing, notice and hearing."
The matter was set for hearing on June 27, 1934, before Honorable Lyman H. Bennett, Judge of the Fifth Judicial District, and at the opening of the trial, Sullivan moved for judgment on the pleadings, on the ground that no one of the Baumgartner pleadings raises "a question of fact upon the material issues," but show upon their face that Sullivan is entitled to the relief for which he prays.
It was agreed that the motion to strike and the motion for judgment should be submitted together, and they were argued, submitted and taken under advisement. On September 12, 1934, Judge Bennett made and filed an order granting the motion for judgment, and declaring that it disposes of the motion to strike. Formal judgment in quo warranto, in favor of Sullivan and against Baumgartner, followed. Hence the appeal.
The sole question presented here is whether or not the Governor had authority to remove Sullivan without notice and an opportunity to be heard in his defense.
At common law an officer could only be removed for cause and[1, 2] after a hearing (Throop on Public Officers, 358), but this result followed from the English rule that offices were incorporeal hereditaments and one might have an estate in them. (23 Am. Eng. Ency. of Law, 328.) The American concept of a public office is that of a public trust or agency created for the benefit of the people, and in which the incumbent has not a property right, to be administered under legislative control in the interest of the people. (Newton v. Mahoning County,100 U.S. 548, 25 L. Ed. 710; Robinson v. White, 26 Ark. 139;Ford v. Board of State Harbor Commissioners, 81 Cal. 19,22 P. 278; State v. Hobart, 12 Nev. 408; People ex rel.Robertson v. Van Gaskin, 5 Mont. 352, 6 P. 30; Territory v. Carson, 7 Mont. 417, 16 P. 569; Lloyd v. Silver BowCounty, 11 Mont. 408, 28 P. 453.) Where an office is created by statute, it is wholly within the control of the legislature (People ex rel. Robertson v. *Page 438 Van Gaskin, above), and "is taken in full view of all the vicissitudes of legislative action, including removal for such cause as the legislative assembly may deem sufficient." (Stateex rel. Bullock v. District Court, 62 Mont. 600,205 P. 955.)
This being the American view of the nature of a public office, the doctrine has been developed by the courts of this country that, when a definite term of office is not fixed by law, the appointing power may remove the appointee at pleasure and without notice or opportunity to be heard (Throop on Public Officers, 358), and, in any case, the legislature may, if it sees fit, provide for the removal of an incumbent without notice or hearing (State ex rel. Payne v. District Court, 53 Mont. 350,165 P. 294; People v. Draper, 67 Misc. 460, 124 N.Y. Supp. 758;Trimble v. People, 19 Colo. 189, 34 P. 981, 41 Am. St. Rep. 236; Lynch v. Chase, 55 Kan. 367, 40 P. 666; Eckloff v.District of Columbia, 135 U.S. 240, 10 Sup. Ct. 752,34 L. Ed. 120), but the extent of the power and the manner of its exercise is to be determined by the wording of the applicable statute.
Where provision is made for the appointment of an officer, but no definite term is prescribed, the appointing power may remove the appointee at will, without notice or opportunity to be heard. (Throop, above, 358; Patten v. Vaughan, 39 Ark. 211; People v. Shear, 73 Cal. xix, 15 P. 92; Newsom v. Cocke,44 Miss. 352, 7 Am. Rep. 686; People v. City of Brooklyn,149 N.Y. 215, 43 N.E. 554; Keenan v. Perry, 24 Tex. 253; Exparte Hennen, 13 Pet. (U.S.) 230, 10 L. Ed. 138; Field v.Commissioners, 32 Pa. St. 479.)
The power to appoint carries with it, as an incident, in the[3-5] 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,67 S.C. 171, 38 S.E. 762), but provision for appointment for a fixed term constitutes such restraint, and, in the absence of any provision for summary removal, one appointed for a fixed *Page 439 term can be removed only for cause. (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. Pr. (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 an appointment for a definite term of office, without provision otherwise, or provides for removal "for cause," without qualification, removal may be effected only 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. (Mechem on Public Offices and 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, 21 Am. St. Rep. 557, 9 L.R.A. 408;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 the fixity of tenure that destroys the power of removal at pleasure otherwise incident to the appointing power. * * * The reason of this rule is the evident repugnance between the fixed term and the power of arbitrary removal. The effect of the rule is that the right to hold during a fixed term can only be overcome by an express grant of power to remove at pleasure. An inferential authority to remove at pleasure cannot be deduced, since the existence of a definite term, ipso facto, negatives such an inference and implies a contrary presumption, i.e., that the *Page 440 incumbent shall hold to the end of his term, subject to removal for cause." (State ex rel. Gallagher v. Brown,57 Mo. App. 203, expressly adopted by the supreme court in State ex rel.Mosconi v. Maroney, 191 Mo. 548, 90 S.W. 141; State v.Crandell, 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, 350;State ex rel. Campbell v. Board of Police Commissioners,88 Mo. 144, affirming 14 Mo. App. 297.)
When the applicable statute provides that the appointing power may remove the appointee for such case as he (or they) "may deem sufficient" or assign in the order of removal, or contains a provision having a similar meaning, it is held to grant discretionary power, thus negativing the necessity for notice and hearing. (See O'Dowd v. Boston, 143 Mass. 443, 21 N.E. 949;Roth v. State ex rel. Kurtz, 158 Ind. 242, 63 N.E. 460;Trimble v. People, above.)
In the case at bar, the tenure is for a fixed term, to-wit, four years "unless sooner removed," which phrase implies power in the appointing power to remove (Townsend v. Kurtz,83 Md. 350, 34 A. 1123, 1126; State ex rel. Little v. Mitchell,50 Kan. 295, 33 P. 104, 105, 20 L.R.A. 306), but the statute does not, in express terms, grant discretionary power to the Governor, unless such a grant can be read into it by reason of the use of the phrase "for the good of the commission." We cannot construe[6] this phrase alone, for it must be remembered that the statute reads, "for cause or for the good of the commission," and, in construing a statute, "every word, phrase, clause or sentence employed is to be considered and none shall be held meaningless, if it is possible to give effect to it" (Campbell v. City of Helena, 92 Mont. 366, 16 P.2d 1), and the intention of the legislature must be ascertained and followed, if it is possible to do so, gathering that intention, first, if possible, from the plain meaning of the words employed. (Clark v. Olson, 96 Mont. 417, *Page 441 31 P.2d 283.) The plain meaning of the words "for cause" has been demonstrated; they cannot be read out of the statute, but the two phrases employed in the disjunctive must, if possible, be harmonized and given effect. In this connection, reference to precedent from other jurisdictions is of slight aid; no case construing the exact phraseology of our statute, and few interpreting statutes of similar tenor, can be cited.
In the case of Ward v. Board of Regents of the Kansas StateAgricultural College, (C.C.A., 8th Circuit) 138 Fed. 372, it is in effect held that the provision granting to the board power to remove any teacher "whenever the interests of the college shall require," standing alone, vests arbitrary power in the board.
In Massachusetts it has been held that the power to remove a street commissioner "when the best interests of the town so requires" authorized summary removal, but this conclusion was reached by holding that the Act should be construed as reading as it did before an, apparently, unauthorized change was made by striking from the statute the phrase "in the judgment of the selectmen," which had preceded the phrase "the best interests of the town so requires." (Lacy v. Selectmen, 240 Mass. 118,133 N.E. 90.)
The decision in Wilcox v. People, 90 Ill. 186, contains language which would justify a holding that the power granted the Governor to remove a member "for the good of the commission," standing alone, would do away with the necessity for notice and hearing; but a reading of the opinion discloses that the court there held that, because the Constitution provided that "the Governor shall have power to remove any officer he may appoint, in case of incompetency, neglect of duty, or malfeasance in office, and he may declare his office vacant and fill the same," neither the legislature nor the courts may dictate to the Governor in what manner he shall perform his duty. This latter declaration is grounded upon the theory, existing in some jurisdictions but not in this state, that, because the three departments of government are *Page 442 co-ordinate and independent, the courts cannot, in any case, review or control the action of the Governor.
The nearest approach to the case at bar is found in the provision for the removal of officers in civil service positions "for cause or when the good of the service shall be subserved thereby," which provision is held to require notice and hearing before action may be taken. (Pratt v. Board of Police,15 Utah, 1, 49 P. 747; State ex rel. Eckles v. Kansas City, (Mo.App.) 257 S.W. 197.) These cases may stand on a somewhat different footing from the instant case, but in the Pratt Case the court based its holding on the broad ground "that any man should be condemned unheard is contrary to every principle of natural justice, and courts are not inclined to countenance such arbitrary power unless under the mandate of positive law; nor will they aid by judicial interpretation." The court then deduces the intention of the legislature from all the provisions of the Act.
In determining the intention of our legislature in employing the two quoted phrases in the disjunctive, a brief review of the history of the Fish and Game Department will be enlightening.
This department was created in 1901 and, from its creation up to 1917, was under the exclusive control of the Governor, who appointed a game warden for a fixed term of four years (sec. 1949, Rev. Codes 1907), but who was, by the express declaration of the Act, removable "at the will" of the Governor (sec. 1952), and who appointed deputies removable at his will. (Sec. 1953.) The Legislative Assembly of 1907 created a Fish Commission, consisting of the game warden and two members to be appointed by the Governor for a term of four years, with no reference made to removal (Chap. 176, Laws of 1907); in 1911 two members were added to the commission (Chap. 18, Laws of 1911). Later this commission was converted into a Fish and Game Commission, consisting of the fish and game warden and four members to be appointed by the Governor "by and with the advice and consent of the Senate," for the term of four years (sec. *Page 443 8, Chap. 173, Laws of 1917), and again no provision was made for the removal of these appointees. It is therefore clear that up to the time of the enactment of the present law (Chap. 193, Laws of 1921), the Governor had no discretionary power over his appointees as members of this commission, but that, under all of the authorities, they could be removed for cause after notice and hearing.
The present law deprives the Governor of the power of appointment and removal of the fish and game warden, and vests these powers in the commission, whose power to remove this officer is absolute, as he is to "continue in office at the pleasure of said commission." (Sec. 3655, Rev. Codes 1921; amended sec. 3, Chap. 192, Laws of 1925.)
If the Governor now has discretionary power to remove a member[7] of the commission, it is because the power is expressly granted by the Act of 1921. The Act of 1917, followed by that of 1921, clearly denotes the intention of the legislature to remove the Fish and Game Department from the control of the Governor and to create a commission entirely divorced from political activity, and of which there will be, at all times, a majority of experienced members — a continuing body removed from political control and manipulation. (See secs. 3651, 3658, Rev. Codes 1921.) This plain policy might be practically overthrown and the clear intention of the legislature defeated, if power rests in the appointing authority in every instance summarily to remove one, or all, of the members of the commission for reasons existing only within the breast of the higher authority, and without notice of the charges and opportunity to disprove, if possible, any reflection cast upon his, or their, personal or official reputation. (Bannerman v. Boyle, 160 Cal. 197,116 P. 732.)
It has been held that where removal is authorized "for the good of the service" the "natural inference would be that in some respect the petitioner has failed to perform his duties, or was incompetent or inefficient, or was an unsuitable person for the position for which he was appointed" *Page 444 (Ayers v. Hatch, 175 Mass. 489, 56 N.E. 612), and that, unless the statute clearly indicates a contrary intention, "the law, in accordance with the principles of justice, principles which are fundamental and eternal, will require that notice be given before any person be passed upon, either in person, estate or any matter or thing to which he is entitled." (State ex rel.Reid v. Walbridge, 119 Mo. 383, 24 S.W. 457, 41 Am. St. Rep. 663.)
Having at all times up to 1921 denied to the Governor the authority to remove members of the commission, the legislature, in the present Act, again provided for a fixed term of four years, but added the phrase "unless sooner removed," which phrase implies power in the appointing authority to remove (Townsend v. Kurtz, 83 Md. 350, 34 A. 1123, 1126; State ex rel.Little v. Mitchell, 50 Kan. 295, 33 P. 104, 105, 20 L.R.A. 306). The legislature specifically declared, however, that the removal shall be "for cause," and then added the phrase, "or for the good of the commission." The employment of these two phrases in the alternative would indicate that the legislature had in mind that, although its intention was that the members should be removable for cause, there might be additional reasons, not strictly within the definition of "legal cause" why, at times, a member of the commission should be removed in the best interests of the people served, and therefore vested this additional authority in the Governor.
We do not assume to declare that, under this construction of the power granted, a condition might not arise which would justify the Governor in removing a member of the commission without notice and hearing "for the good of the commission"; but we do hold that whenever the charges on which the Executive proposes to act involve malfeasance, misfeasance or nonfeasance in office, or directly reflect upon the official or personal integrity of the incumbent whom he proposes to remove, the statute requires notice and the opportunity to disprove, if possible, the charges made.
Defendant Baumgartner's pleadings offer to show that the[8] Governor had ample cause for the removal of Sullivan *Page 445 and based his action thereon, which brings the case within this rule. His attempt to justify the action is unavailing as an expost facto showing of cause cannot cure failure to give the necessary notice of hearing on such charges (Board v.Williams, 96 Md. 232, 53 A. 823); "every condition precedent must be fulfilled to give validity to the act of removal." (23 Am. Eng. Ency. of Law, 450.)
After a careful and painstaking consideration of the pleadings and of the law governing, we are convinced that the judgment on the pleadings was justified.
Judgment affirmed.