Attorney General ex rel. Rich v. Jochim

99 Mich. 358 | Mich. | 1894

Hooker, J.

By Constitution (art. 8, § 4), and by statute (How. Stat. § 202), the Board of State Canvassers is made to consist of the Secretary of State, State Treasurer, and Commissioner of the State Land Office. It is the duty of this board to canvass the returns from the various counties of the State, and declare the result, of elections for State officers and upon constitutional amendments. At the spring election in the year 1893, four amendments to the Constitution were voted upon by the electors of the State, one of which provided for an increase of the salaries of several of the State officers, including the Secretary of State and the Commissioner of the State Land Office. These amendments were, by the Board of Canvassers, declared carried. Subsequently, the returns were recanvassed by the board, in obedience to a writ of mandamus issued by this Court, when it was found and declared that the amendment relating to salaries was defeated. Proceedings were then taken by the Governor, which culminated in an order by him removing each of said officers from his office, and declaring the same vacant; and, respondents refusing to surrender their respective offices, informations in the nature of quo ivarranto were filed in the name of the Attorney General, upon relation of the Governor, to try their right to such offices. This is the proceeding against the Secretary of State.

The 'questions in the case are raised by the replication and the demurrer of respondent thereto. In answer to the plea, which asserts respondent’s election and accession to the office of Secretary of State, the replication sets up in detail the facts upon which the relator’s claim is based, viz.: That relator was the duly elected and acting Governor of this State; that, as such, it became and was his duty, under section 8 .of article 12 of the Constitution, to inquire into the condition and administration of the office of Secretary of State, and the manner in which respondent performed the duties of such office, for the purpose of determining whether said respondent had been guilty of gross neglect of duty in relation to his duties as a member of the Board of State Canvassers, and to remove respondent from said office for gross neglect of duty, if he should be found guilty thereof; that, a charge of that kind having come to the knowledge of the relator, he caused written notice to be served upon the respondent, which notice required him to appear before the relator, and show cause why he should not be removed from his office of Secretary of State for gross neglect of duty in connection with the canvass of the returns in relation to said amendment relating to salaries of State officers, such notice containing specific charges of neglect, as follows:

“Executive Office,

“ Lansing, February 6, 1894.

“To John W. Jochim, Secretary of State, Joseph F. Hambitzer, State Treasurer, and John G. Berry, Commissioner of the State Land Office, Composing the Board of State Canvassers.

“ Gentlemen: Public charges have been made, and have come to my knowledge, that gross errors were made in the canvass of the returns of votes given in the various counties at the election held in this State on the first Monday in April, A. D. 1898, for and against the adoption of Joint Resolution No. 10, approved March 9, 1893, entitled ‘Joint Resolution proposing an amendment to section one (1), article nine (9), of the Constitution of this State, relative to the salaries of State officers,’ by which it was made to appear that such amendment to the Constitution had been ratified and approved by a majority of the electors voting thereon, whereas, it is alleged that, by a true and correct canvass of the returns of such votes, the said amendment was defeated. Under the power granted and duty imposed upon me, as Governor of this State, by section eight (8) of article twelve (12) of the Constitution, it became necessary to inquire into the administration and condition of your several offices, and especially into the manner in which you have, severally and collectively, performed the duties of the Board of State Canvassers, of which you are ex officio members, for the purpose of determining whether you have been guilty of gross neglect of duty in the matter of canvassing the said returns.

“You are therefore severally cited and required to appear before me, at the executive office in the city of Lansing, on the 15th day of February, 1894, at 1 o’clock in the afternoon, then and there to answer to the following specific charges, viz.:

“ 1. That you, the said John W. Jochim, Secretary of State, Joseph F. Hambitzer, State Treasurer, and John G. Berry, Commissioner of the State Land Office, who are the Board of State Canvassers under the Constitution and laws of this State, were, each and every one of you, guilty of gross neglect of duty, in this: That you did not, nor did either of you, examine the statements or returns of votes from the several counties, filed in the office of the Secretary of State, showing the number of votes cast for and against said proposed amendment to the Constitution relative to the sa'aries of State officers, by the electors in this State at the election in April, 1893.

“ 2. That you were severally guilty of gross .neglect of duty, in this: That you did not, nor did either of you, ascertain and determine the result of such vote, nor perform with due and proper care the duties relating to canvassing the statements and returns from the several counties of the votes given at such election for and against said proposed amendment to the Constitution, required of and imposed upon you, as members of the said Board of State Canvassers, by the Constitution and laws of this State.

“3. That you were severally guilty of gross neglect of duty, in this: That you made, and suffered to be made, gross errors in the canvass of the statements and returns filed in the office of the Secretary of State of the votes given in the several counties at said election in April, 1893, for and against said proposed amendment to the Constitution, by which it was falsely made to appear that such proposed amendment had been approved and ratified by a majority of the electors voting thereon, whereas, by a true and correct canvass of the said statements and returns, the said proposed amendment was defeated.

“4. You are further required, then and there, to show cause why you, and each of you, should not be removed from office for gross neglect of duty.

“John T. Eioh, Governor.”

The replication farther alleges that the respondent appeared by counsel before relator, and moved to vacate the notice and dismiss the charges, for reasons following:

“1. The Governor has no power, under section 8 of article 12, or any other provision of the Constitution, to remove the respondents, or either of them, from their respective offices, for any misconduct on'their part, or on the part of either of them, as members of the Board of State Canvassers.

“2. The power of the Governor, under section 8, article 12, of the Constitution, is confined to the official misconduct of the officers therein named, in the performance of the duties appertaining to each of said officers, separately and severally considered; and it does not include such duties as are performed by such officers, jointly with others, as members of constitutional or statutory bodies or boards.

“ 3. The House of Representatives, under sections 1, 2; and 3, article 12, of the Constitution, has the sole power to direct an impeachment of these respondents for misconduct in the performance of their duties when acting as a Board of State Canvassers, and the Senate has exclusive jurisdiction to try any such impeachment.

“4. The charges set forth in the notice served upon these respondents are wholly insufficient and fatally defective, for the reason that it is not alleged therein that the neglect of these respondents, or any of them, was intentional, or that they, or either of them, have knowingly and designedly neglected any official duty, or that they, or either of them, have neglected to perform any duty with an evil intent, or for any improper, illegal, or culpable purpose.

“ 5. The charges contained in said notice do not make or state a case of gross neglect of duty, within the meaning of section 8, article 12, of the Constitution; and the Governor, sitting as a court of impeachment, has no jurisdiction or power to render judgment of removal thereon.

“ 6. The notice served on respondents is void because it is not ‘ In the Name of the People of the State of Michigan,’ as required by section 85 of article 6 of the Constitution, and it is not authenticated by the great seal of the State, as required by section 18 of article 5 of the Constitution.

“7 The Board of State Canvassers is created by the Constitution of this State, and, in the performance of their duties and functions, the members of said board, in the absence of conduct on their part amounting to a criminal offense, are not subject to the control or interference of the Governor of the State, or of any other branch or department of the government; and, excepting the power of the Legislature to determine any case where the decision of the State Board of Canvassers is contested, they are answerable or amenable only to the peoplé of the State, by whom they were elected to their respective offices.”

It is further alleged that the motion was denied; that evidence was introduced in support of the information, as follows:

1. The returns from the several counties, showing the vote upon said amendment.

2. The canvass of said returns, purporting to have been made and signed by respondent and the other-members of the Board of State Canvassers upon May 16, 1893, from which it appears that the said amendment was carried by a majority of 1,821 votes.

3. The canvass of said returns subsequently made by said officers, under the order of the Supreme Court, showing the defeat of said amendment by 11,455 votes.

4. Vouchers showing the amounts paid to respondent and the other members of said board for their expenses in making said canvasses.

5. A stipulation by counsel that a short time prior to May 16, 1893, respondent was notified by his clerks that a tabulated statement showing the votes for and against said amendment had been prepared, and was ready to be signed by the members of the -State Board of Canvassers; that thereupon respondent notified the other members of said board by telegram, in response to which they came to Lansing, and signed said tabulated statement prepared by their clerks; that neither of them compared or examined the returns from any county, nor did they compare them with the tabulated statement aforesaid; that they relied upon what their clerks stated about such statement being correct, and, believing it to be so, signed it; and that was all that they had to do with it.

The replication further states that no evidence was offered upon the part of respondent; that an order adjudging respondent guilty, and removing him from his said office, was thereupon made, and duly served upon said respondent, upon the 19th day of February, 1894. As stated, a demurrer to this replication was filed.

The important questions presented by this record are (1) the power of the Governor to remove respondent; (2) the sufficiency of the cause alleged. The jurisdiction of this Court to review or pass upon the official acts of a coordinate branch of government was not disctissed. It was referred to in the brief of counsel for the relator, with an express disavowal of a desire to raise the question. We shall therefore omit a discussion of that subject.

Whatever authority the Governor has to remove respondent must be found in section 8 of article 12 of the Constitution, which reads as follows:

“The Governor shall have power, and it shall he his duty, except at such time - as the Legislature may be in session, to examine into the condition and administration of any public office, and the acts of any public officer, elective or appointed, to remove from office for gross neglect of duty, or for corrupt conduct in office, or any other misfeasance or malfeasance therein, either of the following State officers, to wit: The Attorney General, State Treasurer, Commissioner of Land Office, Secretary of State, Auditor General, Superintendent of Public Instruction, or members of the State Board of Education, or any other officer of the State, except legislative and judicial, elective or appointed, and to appoint a successor for the remainder of their respective unexpired term of office, and report the causes of such removal to the Legislature at its next session.”

It is contended that this section is in violation of the amendment of the Constitution of the United States which provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” Const. U. S. Amend. 14, § 1. As the Constitution of this State contains the same provision (section 32, art. 6), no new right was conferred upon officeholders, nor was any modification of the- power of the Governor to remove officers under section 8, art. 12, Consequent upon the adoption of the fourteenth amendment. Any question that can now be raised upon the latter could have been raised under the former at any time 'since section 8, art. 12, was adopted; and all decisions upon section 32, art. 6, are applicable to this provision of the fourteenth amendment, unless in contravention of federal decisions thereon. To sustain this point it must appear (1) that the removal from office is a deprivation of the respondent of his property; and (2) that it was sought to be accomplished without due process ■of law.

A public office cannot be called “property,” within the meaning of these constitutional provisions. If it could be, it would follow that every public officer, no matter how insignificant the office, would have a vested right to hold his office until the expiration of the term. Public offices are created for the purposes of government. They are delegations of portions of the sovereign power for the welfare of the public. They are not the subjects of contract, but they are agencies for the State, revocable at pleasure by the authority creating them, unless such authority be limited by the power which conferred it. In the case of City of Wyandotte v. Drennan, 46 Mich. 480, Mr. Justice Cooibv, in giving the opinion of the Court, said:

“It is claimed, however, that, when the salary is fixed at the time when the office is accepted, the acceptance is presumed to have the salary in view, and a contract is thereby effected between the officer and the city, which neither can change without the consent of the other. This is a position that has frequently been taken, and almost as often overruled. Nothing seems better settled than that an appointment or election to a public office does not establish contract relations between the person appointed or elected and the public. The leading case of Butler v. Pennsylvania, 10 How. 402, has been universally regarded as having settled that question, and it has been followed by decisions in numerous cases. The salary or other compensation is therefore at the discretion of the legislative authority of the State, or of such other authority as the Legislature has seen fit to intrust it to. This was indirectly recognized in Chapoton v. Detroit, 30 Mich. - 636, — a case which is in point here.

“ It is said on behalf of the defendant in error that the principle above stated rests on .the right of the officer to resign and give up his office at any time; and it is further said this right did not exist in the case of this officer, because he could only resign to the common council, — the very body that reduced the salary, — and the council might keep him in by refusing to accept his resignation. Whether the council could in this way compel the recorder to continue in the performance of his duties we do not care to consider in this case, because we think the legislative authority over the subject does not depend upon the existence or non-existence of any such power. Offices are created for the public good, at the will of the legislative power, with such powers, privileges, and emoluments attached as are believed to be necessary or important to make them accomplish the purposes designed. But, except as it may be restrained by the Constitution, the Legislature has the same inherent authority to modify or abolish that it has to create; and it will exercise it with the like considerations in view. Whoever accepts a public office must accept it with this principle of constitutional law in view; and, if his compensation is reduced below what seems to him reasonable, it may be a hardship, but it is not a legal wrong. The legislative power is ample, and he is supposed to know when he takes the office that it is liable to be exercised.”

The Legislature may remove officers, not only by abolishing the office, but by an act declaring it vacant, as was done by Act No. 140, § 13, Laws of 1891. Throop v. Langdon, 40 Mich. 673; Auditors v. Benoit, 20 Id. 184. And it may lodge the power to remore from statutory offices in boards or other officers, subject to statutory regulations. And, while it cannot remore incumbents of constitutional offices, it is not because of an inherent difference in the qualities of the office, but because the power to remore is limited to the power that creates. The constitutional officer is an agent of gorernment. There is the same lack of the ingredients of contract, and the same power to abolish the office or remore the officer by amendment of the Constitution. City Council v. Sweeney, 44 Ga. 463; Butler v. Pennsylvania, 10 How. 402.

The fact that some cases hold that remorals from office cannot, in some instances, be made, except upon cause shown, upon notice, specific charges, and after a hearing in its nature judicial, does not militate against this doctrine. ' These cases simply hold that remorals are limited by the power of the people 'or Legislature, through the Constitution or statute; not that a rested property right is inrolred in the holding of office, or that remoral is beyond the power which creates the office and the officer. Nor does it follow that remoral from office is a depriration of the officer of property, because it must be for cause, upon specific charges, and after an opportunity to be heard. Many cases may be found that speak of the disgrace of remorals, and the right to hold an office under election. Of these the case of Page v. Hardin, 8 B. Mon. 672, perhaps, goes the furthest.

The case of Dullam v. Willson, 53 Mich. 393, discusses section 8, art. 12, holding that it was not designed to confer upon the Gorernor power to remore without charges and hearing; but it recognizes tlie power of the people orer public offices, and sustains the authority of the Governor, under this section, to remove for cause. Mr. Justice Champlin says:

“That under the amendment the Governor was vested with the power of determining whether the specified causes exist, appears to me too plain for serious contradiction. I fully concur in the views expressed upon this point by the learned counsel for the respondent (Judge Christiancy), wherein he says: ‘It was competent, by constitutional amendment, to authorize him to exercise such judicial power. And while this amendment gives the power of removal only for the causes which it specifies (which, though similar- in character, are not identical with those specified in the statute), and the question of the officer’s guilt is one judicial in its nature, yet the amendment imposes a duty and confers upon the Governor the power “ to examine into the condition and administration of the office and public acts of the officers” to which it applies, and to remove them from office for the causes there enumerated; thus, in effect, giving him the right to try the question whether the officer is guilty or not, and to remove him from his office.’ The counsel for the respondent, while granting this, insist that such removal cannot be made without charges, notice, and an opportunity for defense, and this I consider the important question in the case. Unless it is the manifest intention of the section under consideration that the proceedings should be ex parte as well as summary, a removal without charges, notice, and an opportunity for defense cannot be upheld.”

Again, as all statutory offices are taken subject to legislative action, so all constitutional offices are taken subject to constitutional changes, and both are upon the terms and subject to the conditions existing by law. One of the constitutional conditions upon which the respondent took his office was that he would be subject to removal by the Governor, under article 12, § 8. Frey v. Michie, 68 Mich. 328; Fuller v. Attorney General, 98 Id. 96.

But conceding, for the argument, that the office is a vested property right, what is the “ due process of law ” to which the respondent is entitled, under the constitutions of this State and the United States? Counsel contend that it can mean nothing less than a trial by the constitutional judiciary, and perhaps a jury. If so, it must be because the constitutional office differs from the statutory office, as several cases hold that removals from the latter may be made without the interventipn of courts. Dullam v. Willson, 53 Mich. 392; Clay v. Stuart, 74 Id. 415; Wellman v. Board of Police, 84 Id. 558, 91 Id. 427; Fuller v. Attorney General, 98 Id. 96. But this language of the constitutions means less than that. The words “due process of law," as used in the Constitution (article 6, § 32), mean the law of the land, by which are to be understood laws which are general in their operation, and not special acts of legislation passed to affect the rights of particular individuals against their will, and in a way in which the same rights of other persons are not affected by existing latos. Sears v. Cottrell, 5 Mich. 251. Due process is not necessarily judicial process. Administrative process, which has been regarded as necessary in government, and sanctioned by long usage, is as much due process as any other. Weimer v. Bunbury, 30 Mich. 201. In this case the treasurer of the city of' Niles did not collect and pay over to the county treasurer certain taxes, whereupon, in accordance with the statute, the county treasurer issued a warrant to the sheriff, commanding him to levy and collect the amount from the property of' the city treasurer. It was held not to invade article 6, § 32.

The federal decisions also qualify the claim of respondent’s counsel. In Ex parte Wall, 107 U. S. 265, it is said that what is due process of law in the state is regulated by the law of the state. The requirement of the Constitution that a person cannot be deprived of his property without due process of law does not imply that all trials in the state courts, affecting property, must be by j“y.

“Due process of law does not require a plenary suit and a trial by jury in all cases where property or personal rights are involved. * * * It is, in all cases, that kind of procedure which is suitable and proper to the nature of the case, and sanctioned’ by the established customs and usages of the courts.”

See, also, Railroad Co. v. Town of Bristol, 14 Sup. Ct. Rep. 437.

In Den v. Improvement Co., 18 How. 272, Curtis, J., says:

“ For, though ‘ due process of law ’ generally implies and includes cCctor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, yet this is not universally true.”

This case, by an exhaustive review of English and American authorities, vindicates summary methods on the part of the government to obtain its due from a tax collector, analogous to the proceedings in the case of Weimer v. Bunbury. Certainly, the resort to similar proceedings by the government to reclaim its offices may be equally necessary and justifiable. In a discussion of this subject in the case of Davidson v. New Orleans, 96 U. S. 103, Mr. Justice Miller said:

• “ The history of the English mode of dealing with public debtors, and enforcing its revenue laws, is reviewed [referring to Den v. Improvement Co., supra], with the result of showing that the rights of the crown,' in these cases, had always been enforced by summary remedies, without the aid of the usual course of judicial proceedings, though the latter were resorted to in the exchequer court when the officers of the government deemed it advisable. And it was held that such a course was ‘due process of law/ within the meaning of that phrase, as derived from our ancestors, and found in our Constitution.

“It is’not a little remarkable that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been -exercised has been watched with jealousy, and subject to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in. the judicial forum or the more enlarged theater of public discussion. But while it has been a part of the Constitution, as a restraint upon the power of the states, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, or property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision, as found in the fourteenth amendment. In fact, it would seem from the •character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of' the legislation on which such a decision may be founded."

See, also, Springer v. U. S., 102 U. S. 586; Hilton v. Merritt, 110 Id. 97, 107; Campbell v. Holt, 115 Id. 620; Railway Co. v. Humes, 115 Id. 512; Provident Institution v. Jersey City, 113 Id. 506; Garrison v. City of New York, 21 Wall. 196.

From these authorities, it appears that the State is not so bound by the term' “due process of law," in the Constitutions, that it is impossible for it to invest its agents with its offices without subjecting itself to the delays and uncertainties of strict judicial action in cases of emergency. While in many cases (and, under the decision in the case of Dullam v. Willson, perhaps in this) the power of removal is a limited and restricted one, to be exercised along given lines and with prescribed formalities, as already stated, it is not by reason of an inherent right of property in the officer, bringing him within the protection of the fourteenth amendment, but because of the limitations of the law. The Michigan cases already cited settle for this State the authority of the Governor, under the Constitution.

It is said, however, that the Governor, in this case,' made his own charges and employed his own counsel, and is therefore to sit as judge in his own case. One of the duties of the Governor, under section 8, art. 12, is to investigate the State offices. He -is given inquisitorial power, that he may ascertain their condition, for the public welfare. No other means is provided for acquiring the necessary information. If he discovers irregularities of particular character, it is his duty to remove the officer, and supply his place by appointment, reporting his action to the Legislature at the next session. Dullam v. Willson is authority for the proposition that the incumbent is entitled to notice of the charge, and an opportunity to be heard in his defense. This necessarily implies that the Governor's action is, in a sense, judicial. But it does not follow that the investigation must be made by some other person or officer, who must make complaint to the Governor; that the complainant must procure counsel; or that the Governor is necessarily interested, and thereby disqualified from hearing and determining, because he per-' forms the other duties which are specifically -imposed upon him by this section .of the Constitution. It is %io uncommon thing for judges to order arrests, and prosecution for acts committed in their presence, such as contempts, perjury, and perhaps other offenses, and they are _ not thereby disqualified. There i's nothing in the record to show any interest upon the part of the Governor, further than to ascertain the condition of the office, and to act upon the information obtained as the Constitution requires. It is the duty of the Governor to investigate, using all lawful means to go to the bottom of any real or supposed irregularity. To that end, he may use clerks and expert accountants, if necessary, — and it is lair to presume that the State would recognize the expenses as legitimate obligations. The law does not require a complainant, nor prevent the Governor from committing the interests of the State to competent lawyers, official or otherwise. Finally, the Governor acts judicially upon the accumulated; evidence, and such explanations by way of defense as the respondent may offer. In this respect his action is similar to that discussed in Fuller v. Attorney General, which discussion it is unnecessary to repeat.

We come next to the charges. It is contended that they are insufficient, because the act is not alleged to have been intentional, and because it was not gross neglect to permit an erroneous canvass by clerks; further, that the act was not within the provision of section 8, because it was an act done by the respondent as a member of the Board of C^ivassers, and not as Secretary of State, and that the only remedy was by impeachment by the Legislature. To these is impliedly added, and strenuously argued, that the Legislature could not impeach for gross neglect, and that, therefore, the Governor could not remove for such neglect. It is true that before the defalcation of the State Treasurer, in 1860, the Governor could not remove a constitutional officer, and that a defaulting treasurer had the lawful authority to continue to receive the public funds until the Legislature should convene, and proceed by impeachment to secure his removal. Doubtless, this condition of affairs, as counsel assert, led to the adoption of the amendment of 1862, viz., article 12, § 8. It is also true that section 1, art. 12, gives to the Legislature the sole power to impeach civil officers for corrupt conduct in office, or for crimes and misdemeanors. If no further power of impeachment existed than as mentioned in section 1, it must be conceded to follow that the Governor was granted a broader power of removal than the Legislature had by way of impeachment. But the people had the undoubted power to authorize removals by the Governor for causes not theretofore mentioned as a ground for impeachment. They certainly made it his duty to remove for gross neglect, and we cannot accept the proposition that the amendment was not intended to include that which it especially mentions in terms unmistakable to the common understanding. Nor do we think there is any merit in the' point that the duty of canvassing the returns is not the official duty of the Secretary of State. By virtue of his office, he is one of three who constitute a hoard. Without his office, he could not act, and we think the part performed by him is an official act of the Secretary of State.

It remains to discuss the character of the charges made. 'The only duties of the Board of State Canvassers are to •canvass the returns, and determine and certify the result, •of elections. Theirs is the culminating act of the army of persons who have had to do with the receiving' and counting, recording and transmitting, of the votes which signify the will of the people. Section 202 of Howell’s Statutes makes it the duty of these officers to attend, and form the Board of State Canvassers. Their duties are specifically pointed out. The times when they are to meet are provided by law. No provision is made for deputies or clerics, "but all go to show that this important duty is to be performed by them in person, as the certificate signed by them asserts. It is not confided to inferior officials, but to three of the State officers of greatest dignity and importance. It appears to have been the design of the lawmakers to place the votes of the people in the keeping of the most responsible officers of the State; and no argument ought to be necessary to show that it was not •expected that the returns would, upon their arrival, be turned over to an irresponsible clerk in the secretary’s ■office, having no official relation to the canvass, whose tabulation should be the canvass, and that the mere signing of their three names to his production should constitute a full compliance on the part of these officers with the law prescribing the duties of the State canvassers. Section 207 requires an examination by the board of the several statements of the votes, and that they make a statement of the whole' number of votes cast for each office, while section 209 makes it their duty to certify such statement to be correct. A mere failure to certify could be called- “ neglect.” What shall be said of it when the certificate is made without knowledge of, or any attempt to ascertain, the fact? An officer is elected for two years. Who shall count and keep the money of the State, or keep its great seal, for a couple of years, is not a matter of .vital importance; but an amendment of the Constitution changes, perhaps for all time, the fundamental law, releasing or reclaiming by the people some right or power over the Legislature and officers, the consequence of which may be stupendous. In the present instance, it was a matter of money,— several thousand dollars a year; and, while many may feel that the defeat of this amendment was unfortunate, it is vastly more unfortunate to have the will of the people thwarted, though it be the result of carelessness only, or neglect on the part of the board to perform the only .duty imposed upon them by law. Looking at the circumstances from his official standpoint, the Governor may well have said this, though not willful, was only possible by reason of the grossest neglect of official duty. It certainly was some one's duty to move at once with a view to the correction of the error, and the prevention of its recurrence.

While there is an inclination upon the part of the average American to accept good intentions as an excuse for mistakes,, it is not for the general public good that responsible public offices shall be confided to, or remain in the custody of, those whose duties and responsibilities rest so lightly upon them as to permit the public interests to be injured or endangered through neglect; and when such neglect, from the gravity of the case, or the frequency of the instances, becomes so serious in its character as to endanger or threaten the public welfare, it is gross, within the meaning of the law, and justifies the interference of the executive, upon whom is placed, by this amendment, the responsibility of keeping the affairs of State in a proper condition. We cannot think that the term “ gross neglect ” means only intentional official wrongdoing. Such acts would hardly be described by the word “ neglect.”

It is said that this section confides great power to the Governor. This is true; but the governorship is an exalted office, — one which .ought to carry with it a presumption of integrity of character and breadth of mind commensurate to its importance. It would be a sad commentary upon free government if it were otherwise.* But the powers of the Governor are carefully restricted, and there is no occasion to pursue the illusive phantoms of possibility. 0When abuses arise, they will doubtless be speedily and effectively met.

It remains to notice the sixth objection raised. It is as follows:

“The notice served on respondents is void because it is not cIn the Name of the People of the State of Michigan/ as required by section 35 of article 6 of the1 Constitution, and it is not authenticated by- the great seal of the State, as required by section 18 of article 5 of the Constitution.”

It is enough to say that section 35, art. 6, applies to the judicial department only, while the other provision (section 18, art. 5) certainly ought not to apply to a case where the Governor is citing the custodian of the great seal before him upon charges. But such citation is not such an official act as needs authentication. It has no importanee, and is of no personal interest to others than'those cited, and falls within the multitude of daily acts, which, while official in a sense, do not require authentication by the great seal.

The demurrer must be overruled, and judgment of ouster entered against the respondent.

The other Justices concurred.