66 Iowa 193 | Iowa | 1885
Lead Opinion
On the seventh day of April, 1885, the petitioner, John L. Brown, presented to this court, in session at Davenport, a petition averring, in substance, that he was wrongfully restrained of his liberty at the city of Davenport by one J. H. Duffus, and he asked that a writ of habeas corpus should issue to test the legality of his imprisonment. The court granted the writ, which was served on Duffus, and he made return thereto. The Hon. A. J. Baker, attorney-general, and the Hon. Galusha Parsons, employed as special counsel for the state, appeared for the defendant, Duffus, but in the name of the state, and filed a motion to quash the writ; also, a demurrer to the petition, and an answer to the
The petitioner does not deny that the governor made an order suspending him from exercising the functions of his office as auditor, and does not deny that he continued to exercise the functions of such office after the order was made, anch
The ¡position of the state is that Duffus incurred a liability for the appearance of Brown in the district court; that he incurred such liability under the statute which gave him a right to surrender Brown to the sheriff, and exonerate himself and his co-surety, and that he cannot properly be deprived of such right by a proceeding which should result in taking Brown from his custody and setting him at large. It must, we think, be conceded that Brown, having invited Duffus and Pierce to become his sureties, cannot be allowed to resort to any proceeding which should have the effect to render them liable upon -the bond. But Brown proposes to test, in advance of his discharge, the question of the constitutionality of the statute under which it is said that his crim'inal liability lias arisen; and his position is that, if the statute shall be held unconstitutional, and his innocence shall accordingly be declared by a court having jurisdiction to determine the same, the state could no longer have any claim upon his sureties; and we have to say that we think that his
“ Sec. 760. Whenever any commission appointed as aforesaid, or under the provisions of section one hundred and thirty-two of chapter nine of title two of this Code, shall report that any officer has been guilty of any defalcation or misappropriation of the public money, or that his accounts, books and papers are improperly or unsafely kept, and that
“ Sec. 761. After such suspension it shall be unlawful for such officer to exercise any of the functions of his office until such suspension shall be revoked; and any attempt to exercise said office after such suspension shall be deemed a misdemeanor, and shall subject the offender for each offense to the penalty of not more than one year’s imprisonment in the county jail, and not more than one thousand dollars’ fine, to be recovered and enforced as provided by law.
“Sec. 762. In every such case of suspension the governor shall appoint some suitable person to fill temporarily the office, and such person, having qualified as required by law, shall perform all the duties and enjoy all the rights to the said office belonging, until the removal of the suspension of his predecessor, or the election of a successor.”
The governor, believing that the public service required the appointment of a commission to examine the books, papers, etc., of the auditor, appointed P. D. Ankeny, George W. Bristow and John 0. Parish, who reported to him on the seventh day of February, 1885. The report is lengthy, and we cannot properly set it out. It is sufficient to say that, if correct, it showed that the auditor’s accounts, papers and books were improperly and unsafely kept, and that the state was liable to suffer loss thereby. The governor, proceeding under this report and the statute above set out, made the order of suspension in question, and appointed Mr. J. W. Oattell to fill temporarily the office. But the petitioner refused to obey the order, and continued to hold possession of the books and papers until he was compelled to yield the possession by force. He relies, in the first place, upon article 4, § 22, of the constitution, which provides that “ a secretary of state, auditor of state and treasurer of state shall be elected
In Brown v. Grover, above cited, the court said: “"When the term of office is fixed by the constitution, and the method of trial and cause of removal is prescribed by the constitution, it is not competent for the legislature to prescribe any other method or cause for the removal of such officer.” Several others of the cases cited hold substantially the same doctrine. The constitution of Iowa provides for the removal of an officer by impeachment, and does not provide for removal by the governor. There is much ground for contending, therefore, that, if the statute in question provides for the removal of an officer by the governor, it cannot be sustained. But the state contends that the statute does not so provide. To determine whether it does, we must have recourse to a careful examination of its language. The principal provision is in these- words: “The governor shall forthwith suspend such officer from the exercise of his office.” In our opinion the suspension of an officer from the exercise of his office is not necessarily to be construed as a removal. It would, perhaps, be equivalent to a removal during the time of suspension, so far as the officer’s most important right is concerned, if the officer by such suspension were to be deprived of his emoluments; but the statute does not provide that he shall be. If a statute is susceptible of any reasonable construction which will render it constitutional, it is our duty to adopt such construction as will sustain it.
Again, the statute contemplates that the suspension may be temporary. This is not consistent with the idea of a removal in any proper sense. It is undoubtedly the duty of the governor to promptly investigate the matters specified in the adverse report, and hear such explanation and evidence as the officer may offer, and to remove the suspension, if he is satisfied that the report is incorrect, or that proper amends will be made, and the public interest protected. We are aware that in Lowe v. Com., above cited, the supreme court of Kentucky, in passing upon a similar statute, seemed to regard the- suspension .of the acts of an officer as equivalent to a removal, and held the statute unconstitutional upon that ground. But we are not certain that the distinction which we make was especially insisted upon by the state. Besides, we do not feel greatly influenced by a single decision in a sister state upon such a question. The court of final jurisdiction in each state must judge mainly for itself of the meaning of the statutes of the state, and especially where the construction to be given involves a question of the constitutionality of the statute. The court must weigh its own doubts, if it has any, and sustain a statute even as against strong doubts, if it can be done by any reasonable construction.
We are aware that the power given the governor might be
Remanded.
Dissenting Opinion
dissenting. — Being unable to concur in the foregoing opinion, it is proper that I should briefly state the grounds upon which I base my dissent. I concede that the governor was not required to determine whether the statute was constitutional or not, and therefore he had the power to appoint the commission, and, upon the coming in of the
Upon receiving the report of the commission, the governor, in his discretion, has the authority to suspend the officer; and, if the governor does so, the officer is deprived of the right to perform the duties of the office; and if the suspension is lawful, it is, to say the least, doubtful whether the officer is entitled to the emoluments of his office during the time it is in force. 1 regard it as undoubtedly true that, by reason of the suspension, the plaintiff has been deprived of a substantial right. If the commission reports that the state is “ liable to suffer loss,” the governor is not required to examine into the truth of the report, or to hear any excuses or explanations the officer may desire to make; but, on the contrary, the statute provides that he “ shall suspend such officer from the exercise of his office, and require him to deliver all the money, books, papers and other property of the state to the governor.”
It is intimated in the foregoing opinion, as I understand, that the governor should, after suspending the officer, proceed promptly to investigate the truth of the report. But
The conclusion reached by me is that the statute in question is unconstitutional, because no provision is made whereby the plaintiff has the right to test the truth of the charges against him before some tribunal or person vested with judicial powers. The restraint of the plaintiff is illegal, and he should be discharged.