State Ex Rel. Davis v. Johns

I yield ready concurrence to that portion of the majority opinion which holds that this court has previously decided that the governor has power summarily to remove, without notice or a hearing, all state officers appointed by him not liable to impeachment (of which a regent of the state university is one), and that therefore the questions presented by relator, which seek to modify or change the law there announced, should be deemed to be settled. It is not wise to unsettle the law of the state nor the construction of its statutes.

But I find myself wholly unable to agree with the doctrine of the majority opinion upon the more important point involving the necessity of the order of removal following the provisions of the statute. The statute [Rem. Comp. Stat., § 10989], provides:

"Whenever the governor is satisfied that any officer not liable to impeachment has been guilty of misconduct, or malfeasance in office, or is incompetent, he shall file with the secretary of state a statement showing his reasons with his order of removal, and the secretary of state shall forthwith send a certified copy of such order of removal and statement ofcauses by registered mail to the last known postoffice address of the officer removed." [Italics ours.]

It will be seen that the legislature has required the governor to file with the secretary of state "a statement showing his reasons with his order of removal," and that "a copy of such order of removal and statement of causes" shall be sent to the officer removed. It is conceded that the order of removal did not comply with the statute, unless the words "has been guilty of misconduct in office" are construed to be "a statement showing the reasons" and "a statement of causes." That they cannot be so construed I shall presently show, but wish first to state my reasons for *Page 538 failure to agree with the majority that the question has been previously decided. It is admitted that in none of the three cases referred to in the majority opinion, and heretofore presented to this court involving this statute, was anything said in the opinion regarding this question. How, then, is it determined that the court decided this question? By resort to the briefs of the parties filed at the time of the hearing of those cases. But I cannot believe that the law decided in a given case is to be determined by the briefs rather than the deliberate written decision of the court. I fail to find any analogy between the case of Fidelity Deposit Co. of Maryland v. UnitedStates, 187 U.S. 315, cited in the majority opinion, and this case. The quotation from the opinion in that case shows that the court had sustained the validity of the rule in question, but failed to give the grounds of its decision. In the present case the validity of the order, so far as the statement of reasons was concerned, was never sustained in any case, if we can rely upon the written decision of the court.

When every court, that has had this same question presented to it, has decided that relator's contention was so meritorious that it must be upheld, even though it required the setting aside of an order promulgated by a coordinate branch of the government (a thing not lightly to be regarded), it will not do for us to say that, in all three of the cases cited, this court not only decided against the relator, but deemed the contention so devoid of merit as to be unworthy of discussion. It is, of course, true that, where a party to an action has presented several questions in his brief, any one of which would necessitate a reversal of the trial court, and the decision is against him, it will be presumed as to him, and to him only, that the court decided against all his contentions, although no mention *Page 539 is made in the decision of some of them. He cannot thereafter raise these questions, for the decision states the law of the case presented. But it has no binding effect, except as to the particular litigant, and states no rule of law for the guidance of other courts or the bar of the state. A decision which does not even refer to a question, and in which the court that rendered it cannot find an expression indicating in the slightest degree that the question was before it, cannot be said to be a decision thereon, nor to state any law with reference thereto. One illustration will suffice: It is said that there is a sufficient reason for holding that the court did decide in theMcReavy, Howlett and Fay cases, supra, that the order complied with the statute in this: that the order in theHowlett case (similar to the one here in question), was set out in full in the decision, and thereby the legislature were given to understand that such an order complied with the statute, and the legislature has not seen fit to change it. But legislatures can have no greater knowledge of a decision of the court than do the members of the bar of the state generally. The decision in each case expressly held this, and this only: That the relator was not entitled to a notice and a hearing, whether the term of office was for a definite or an indefinite period. How, then, can it be assumed that the legislature understood that the court decided a question not referred to in the decision? Shall they also resort to the briefs instead of to the opinion to find out what the decision was? Certainly not.

I have stressed this point not so much because of its practical effect in the instant case, but because it undermines every decision of this court, and, if followed, no member of the bar of the state can safely rely upon any of our decisions without first inspecting the briefs that were filed. *Page 540

But there is a greater and more compelling reason why we should not hold that the particular question was even considered by the court in either of the three cases cited, viz.: to have decided that the order did comply with the statute would be not only to disregard the plain words of the statute, but to fly in the teeth of the decisions of practically every court that has decided the question. No court disregards the plain words and evident intent of a statute without stating in its decision what appears at least to it a compelling reason therefor. No court decides against the overwhelming weight of authority from other jurisdictions without attempting to show that the weight of authority is unsound, and stating a refusal to be bound thereby.

Turning our attention to the statute, it may be well to consider the argument made by counsel for defendant that an order which specifies that removal is made because of "misconduct in office" is a "statement of reasons" and a "statement of causes," as required by the statute. It was said that the words are to be construed synonymously, — the words were so used in the order. Using them synonymously, what is the effect? The statute says the governor may remove for misconduct in office and that, in his order of removal, he shall state the reasons. Look at the result: "I remove you because you have been guilty of misconduct in office, and my reason is that you have been guilty of misconduct in office." Can anything more be required to show the utter futility of such a construction?

But there is another way to determine whether it was the intent of the legislature to use the words synonymously, and that is, to consider the purpose sought to be attained.

The Constitution provides that: *Page 541

"Removal from Office: — All officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office in such manner as may be provided by law." Const. art. 5, § 3.

It is apparent at once that, acting under this provision, the legislature would not have the power to provide that such officers as were not liable to impeachment could be removed at the will or pleasure of the chief executive.

But waiving for the moment such a constitutional prohibition, and assuming that no restriction existed, it will be seen that the legislature had three methods to choose from in providing for removal of such state officers: First, after notice and a hearing upon the charges; second, by summary removal after a determination by the governor that the charges were true; and third, by summary removal at the will or pleasure of the governor.

We have already decided in the McReavy, Howlett and Fay cases, supra, that the legislature did not intend to provide for removal by the first manner specified, and it is not even contended by defendant that it was intended to be exercised under the third specification. Since, therefore, the removal was not to be after notice and a hearing, nor to be at the will of the chief executive it follows that it was intended as a summary removal after determination by the governor that the charges were true, and that any construction which has the effect of either requiring notice and a hearing, or of permitting removal at the will of the governor, is not to be countenanced. The refusal to allow removal at the will and pleasure of the governor demonstrates a clear intention to place a limitation upon the exercise of that power. Therefore, the statute provides that whenever the governor is satisfied that the officer has been guilty of misconduct or malfeasance *Page 542 or is incompetent he may remove. There is no limitation upon the manner in which the fact of incompetency, misconduct or malfeasance may be determined. He may investigate in any manner he sees fit, and, if he is satisfied of the existence of facts which amount to incompetency, misconduct or malfeasance, he may summarily remove. Nor will courts interfere with his findings. He may decide wrongly, but there is no relief, if the facts which he finds to be true are such as amount to a specification of removal under the statute.

Now it is at once apparent that, if the executive may say in the order of removal that the officer is guilty of "misconduct in office," there is no limitation whatsoever upon the power. Suppose, for instance, that a governor should desire to remove for political reasons, or for reasons which he erroneously deems amount to misconduct in office, all that he need do is file an order of removal reciting that the officer is removed for "misconduct in office." Of course, the court will not assume that the order in this case was made for any reason other than because of the existence of actual facts found by the governor, which amount to "misconduct in office." The high position which he holds under the mandate of the people of this state should be sufficient assurance to us that the order was made only after sufficient facts were found by him. But neither the court nor the people can know whether the power was rightfully exercised, unless the limitations in the statute be observed and the facts stated in the order of removal as required. Nor is the limitation prescribed by the statute without its direct benefit to the governor. In times of political upheaval, there is always a tendency to question the good faith of removals. Especially is this true, when the official removal has been appointed by a former governor and his term of office has not expired. If the removal be made because *Page 543 of drunkenness, immorality or any other act which amounts to misconduct in office, the electorate will readily concede the justice thereof, and approve the dismissal from office. On the other hand, the custom of removing officials appointed by a previous administration, for no other reason than a natural desire to replace them with officers of their own choosing, is so well known to the public that, if removal be made on the mere statement that the officer has been guilty of misconduct in office, it will be variously believed that a real ground of dismissal did not exist, else it would be stated.

A just and proper decision herein is of the highest importance, for we are prescribing the proper method of the exercise of the power of removal by the chief executive, not for the present, but, in the absence of further legislative enactment, for all those who follow.

It is not at all inconceivable that future executives, relying upon the majority decision, will remove from office for personal or political reasons under the blanket indictment, "misconduct in office." The history of legal literature is replete with such attempted usurpation of power, and it is our duty, distasteful though it may be in the present case, because of our high regard for the incumbent, to guard against such action by a proper interpretation of the statute.

An investigation of the cited cases discloses none from any jurisdiction where a court has held that the legal conclusion, "misconduct in office," was a sufficient statement of the reasons for removal. In some of them the question was not decided, but in every case where reference has been made to the provision requiring a statement of reasons, the court has stated that it was to effectuate a limitation upon the power.

It would be a work of supererogation to attempt to call attention in a dissenting opinion to all the cases *Page 544 dealing with the question here involved. But reference to a few of them may be made with profit.

In State ex rel. Hamilton v. Grant, 14 Wyo. 41, 81 P. 795, 82 P. 2, 116 Am. St. 982, 1 L.R.A. (N.S.) 588, a superintendent of a water division of the state of Wyoming was removed by the governor for incompetency. The governor stated his reasons for finding that the superintendent was incompetent, by detailing facts which showed incompetency. The constitutional provision of that state providing for removal from office is identical with our own. Pursuant thereto the legislature of that state passed an act which, upon comparison with our own, will show that it gave the governor far greater power than ours, but is almost identical with regard to requiring the reasons for removal. It follows:

"Any officer or commissioner of the state of Wyoming who shall hold his office or commission by virtue of appointment thereto by the Governor, or by the Governor by and with the advice and consent of the Senate, may be removed by the Governor from such office or commission for maladministration in office, breach of good behavior, willful neglect of duty, extortion, habitual drunkenness, or any other cause deemed by the Governor to justify and warrant such removal; provided, reason for such removal shall be filed in the office of the Secretary of State in writing, subject to inspection by any person interested."

The superintendent claimed that he could not be removed without notice and a hearing. The court held that this contention was not well founded, saying:

"From an examination of the authorities, therefore, it seems correct to say that when the Legislature has conferred power on the Governor to remove an appointive officer having a definite term, and the statute does not provide the procedure, it will not be presumed that such removal may be made without notice and a hearing; but if the authority is expressly given to *Page 545 proceed summarily, no such notice is necessary. If, therefore, the statute under which the removal was made in this case had closed at the semicolon before the proviso, it might be a question whether notice to the officer and a hearing on charges might not be required. But the Legislature, having declared that removals may be made, proceeds to prescribe the method or conditions under which such removals may be made. Having conferred the power upon the Governor in language which is plenary, it adds: `Provided, reason for such removal shall be filed in the office of the Secretary of State in writing, subject to inspection by any person interested' — thereby declaring theexpress conditions and limitations under which the Governor mayact. Having entered upon the realm of limitation, the enumeration of one condition precludes the idea that there should be others not expressed. `Expressio unius est exclusioalterius.' To our minds the language of the proviso is inconsistent with the idea of a hearing. The sole restraint uponthe action of the Governor is the filing of his reasons for theremoval and the consequent check of public opinion. [Italics ours.] . . . There is no claim advanced by counsel for relator that the reasons assigned by the Governor are not such as, if true, would constitute maladministration or misconduct in office, and they seem to us to be well within these terms."

In O'Dowd v. City of Boston, 149 Mass. 443, 21 N.E. 949, an employee on a city ferry boat questioned the right of the city board to discharge him, on the ground of drunkenness, without notice and a hearing. The statute provided that the "Board might remove such subordinates for such acts as they might deem sufficient and shall be assigned in their order for removal."

It will be observed that the relator there was discharged for drunkenness, which is a statement of the reason, or a statement of fact, and not a legal conclusion. *Page 546 The court held that no notice and hearing were required. The court said:

"If it was intended that the removal was to be upon charges and an adjudication, there was no occasion to say more than that it was to be for cause, and especially none for the requirement of an order for removal in which the cause should be assigned. There must be a cause in fact for every removal, though in a removal at pleasure no cause need be given, and none can be judicially known. The intention of the statute seems to be to qualify a removal at pleasure, by requiring a record to be made of the cause."

The court thereupon states the reason back of the limitation, as follows:

"In adopting a new rule applicable to all cases, we do not think that the language of the statute indicates an intention to adopt the former rule of removal at pleasure, or the former exception to it, of a technical removal for cause, but to allow summary removals without hearing, with the condition that the cause of the removal should be put on record. This wouldnaturally have an effect to prevent improper removals, and, incase of a removal for cause for which it could not lawfully bemade, would make redress possible, giving to the person removedthe same remedy he would have had the removal been forsatisfactory cause found after a hearing. It may be doubted whether there would be much benefit to either officers or subordinates in a compulsory hearing before an absolute power which would not voluntarily give a hearing when justice required it. With or without a hearing there is a record of cause of removal and the appeal in either case is to public opinion." [Italics ours.]

In Hoffman v. Yoe, 9 Kan. App. 394, 58 P. 802, a regent of the state agricultural college of Kansas brought suit in quowarranto to retain his seat as a regent after being displaced by an order of removal signed by the governor, and another appointed in his *Page 547 place. The law of Kansas provided for a hearing upon the charges, so that the court's decision upon that question is not authority in the instant case; but the reasoning advanced by the court for holding that the statute relating thereto should be strictly followed is not only enlightening, but so manifestly just, as well as applicable to the present case, that we quote therefrom:

"The reputation of a citizen of the state, holding an office, ought not to be besmirched, a stigma of reproach fixed to it and the citizen deprived of a valuable right, except for some serious misfeasance or nonfeasance in respect to his office; or some conduct of immorality that renders him unfit for its performance. Otherwise honorable men would be deterred from accepting an office, and serving the state to its best interests. The state would be deprived of the services of its best citizens, and its interests turned over to political adventurers and speculators in public office. It is evident that the Legislature did not intend that these state officers should be at the caprice or mercy of the chief executive, or of a legislative committee convened at his suggestion."

In Underwood v. Board of County School Commissioners,103 Md. 181, 63 A. 221, there was presented to the court the question of whether trustees of a school district could remove a school teacher under a notice which stated:

"We, the undersigned trustees of above named school believe it for the best interest of the school that we notify you that your services as teacher of the aforesaid school will not be required after the 10th day of October, 1904."

The laws of Maryland in effect at the time of the removal provided that,

"Said teachers may be removed at any time said board of district school trustees may think proper, after thirty days notice in writing; provided further, *Page 548 that the said board of district school trustees shall furnish in writing when required by the teacher so notified the reasons for dismissal."

The court in holding that the statement, that "it was for the best interests of the school" that the teacher be dismissed, did not state any reasons for dismissal, said:

"Unless the reasons are given the public may think it was because the teacher was incompetent, or possibly it might affect the standing of such teacher in other respects. Therefore, when the Legislature made this change in the law, it meant something, and could not be complied with by such a reply as was given by these trustees — `We believe it for the best interests of the school.' That might be because the teacher was incompetent, not sufficiently educated, bad-tempered, unhealthy, of questionable character, of some political or religious faith not satisfactory to the trustees, or for one or more of many reasons that might be suggested. Mrs. Nally acted promptly in calling for reasons, and the county board ought to then have required them to be given. The letter of September 10th furnished none, other than might have been read into the notice of September 8th; for, if the trustees had a proper conception of their duties, it would be presumed that they believed it was for the best interests of the school that she be notified, else they would not have done it; but why they did so believe this statute required them to disclose, when called upon by the teacher."

The most recent case involving this question is People exrel. Emerson v. Shawver, 30 Wyo. 336, 222 P. 11. That was an action in quo warranto, where one who had been removed as state engineer brought an action to determine his right to the office. The statute in force under which the governor removed the engineer was the same as the one which we have set out in Stateex rel. Hamilton v. Grant, supra. In that case the governor set forth his reasons for the discharge *Page 549 of the state engineer in detail. The court, upon investigation, found that they were not such as to amount to misconduct or misfeasance in office. The majority opinion seeks to distinguish that case upon the ground that, since the conduct of the appointee complained of did not relate to the official conduct as contemplated by the removal law, the case presented was one subject to judicial inquiry. This is but another way of saying that, if the governor in that case had merely said in the order that the engineer was removed for misconduct in office, the removal would be valid, but if the governor gave his reasons therefor it would be invalid. This, in effect, is to deny the purpose of requiring reasons to be stated. A short quotation from the opinion will show that the court did not base its decision upon such ground. After quoting approvingly from State ex rel.Hamilton v. Grant, supra, where it was held that no notice and hearing upon the charges were required, the court called special attention to the following language from that case:

"There is no claim advanced by counsel for relator that the reasons assigned by the Governor are not such as, if true, could constitute maladministration or misconduct in office, and they seem to us to be well within those terms."

The court then proceeds:

"Thus it seems that the court then deemed it necessary to the validity of the removal proceedings that the reasons assignedshall be such as to constitute misconduct or malfeasance inoffice. And, upon a careful consideration of the question in this case, the court is now of that opinion. Indeed, it is conceded that the court may inquire into the facts of the removal to determine whether the Governor has kept within his jurisdiction, and, therefore, whether the cause assigned is one for which the removal is authorized by law. And we agree with the respondent's contention that judicial cognizance of the Governor's action does not *Page 550 reach beyond the jurisdictional inquiry. But that the court may go that far, where the removal is authorized only for cause or for causes specified in the Constitution or statutes, is, we think, well settled; at least that is the prevailing rule, and we think more reasonable than a rule denying the right of judicial inquiry or review in such cases. That is to say, the court may inquire into the existence of the jurisdictional facts among which are:

"`Whether the charges upon which the removing power acted were legal cause of removal, or whether the cause was sufficiently specified.' 22 R.C.L. 574; 29 Cyc. 1410; 23 Ency. Law (2d Ed.) 429; Mechem on Pub. Off. Sec. 456; Throop on Pub. Off. Secs. 392-398; Village of Kendrick v. Nelson, 13 Idaho 244,89 P. 755, 12 Ann. Cas. 993; State v. Hawkins, 44 Ohio St. 98,5 N.E. 228; State v. Hay, 45 Neb. 321, 63 N.W. 821; State v.Frazier, 47 N.D. 314, 182 N.W. 545. . . .

"`An officer exercising such power, . . . acts in a quasijudicial capacity, and the matter of procedure must be of aquasi judicial character, and as the officer is an inferior tribunal, as such he must be amenable to the court when acting in excess of the jurisdiction conferred. . . . Neither this nor any of the numerous authorities go further than to hold that excess of jurisdiction is jurisdictional. Whether the Governor, exercising the power of removal, acquired jurisdiction to act and proceed to a finality without excess of jurisdiction, may be inquired into whenever the result is called in question collaterally or directly.'

"In a note to State ex rel. Kinsella v. Ebarhart, 39 L.R.A. (N.S.) 788, it is said:

"`But it seems that the courts will look into the question of the Governor's power and jurisdiction, and of the legality of existence of the ground assigned by the Governor.'"

These cases correctly announce the principles applicable to the construction of the statute here involved and, in the performance of our duty of interpreting the law, we should so hold. *Page 551

It may be said that, if it be assumed that facts existed which justified the governor in determining that the relator was guilty of misconduct in office, then the only result of an adverse decision herein would be that the governor would then file a new statement which would show his reasons and, since we will not question his findings if they are such as amount to misconduct in office, this proceeding cannot avail to keep relator in his office as regent. It may be admitted that such would be the practical effect thereof. But such an argument leaves out of consideration the very vital interest relator has in requiring that the record state what things he has done that amount to misconduct in office. It may well be doubted whether relator seriously desires longer to hold an office which, involving sacrifice of time, energy and money, returns no reward other than that contained in the satisfaction of having served the state. But that no man of spirit will permit his good name to be publicly besmirched, if he can honestly avoid it, is too well known to require argument. If the legislature had left the removal at the will or pleasure of the governor, no stigma would attach by a removal before the expiration of the term of office. But when the order of removal is such as to make a public record of an absolute finding of guilty of misconduct in office, it is but bare justice to say that to the sacrifice of time, energy and money there shall not be added that of one's good name, unless facts can be stated which justify it. It would be far easier to obtain the services of able men when the dismissal is at the will of the governor with all its attendant precarious political tenure than under the construction we have now given this statute, which does not allow removal at will, but requires a record of guilt without any finding of fact which the relator may deny, and which compels him, in order to attempt to maintain his *Page 552 good name and standing in the state, to search in vain for a cloud of unknown witnesses that he may deny everything in general and nothing in particular.

With respectful deference to the opinion of the majority, I must decline to follow it. The order of removal should be set aside, with permission to file a new one setting forth the reasons for the removal.

MAIN and BRIDGES, JJ., concur with ASKREN, J.

MACKINTOSH, J., was unable to participate in this case.