154 Wis. 157 | Wis. | 1913
Lead Opinion
We will endeavor, so far as practicable, to' discuss this case, separating it into logical order of subjects involved, and first give attention to the dominant reason assigned by the trial court for the order complained of.
I.
There is no controversy before us but that the decision below, to the effect that the courts should not and cannot properly interfere with the action of the executive of. a state within the scope of his authority, is sound doctrine, as the language used was probably .intended to be understood. Eor
The claim of appellant below that the scope of the governor’s authority did not extend to forcibly putting his appointee in possession of the office in dispute and, therefore, no immunity of respondents from being dealt with by judicial remedies can be successfully claimed for the illegal act, seems to have been sustained in the course of the trial court’s decision. Such an act was, seemingly, thought not to be within the rule above stated, but it was left somewhat involved at the end, and the decision placed wholly on the doctrine of Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169, upon the supposition that whether appellant was a de facto officer depended upon whether Anderson had the prima facie de jure right, and therefore neither question was triable in this action for equitable relief, such relief being dependable upon whether appellant occupied a status of at least the dignity of a de facto officer.
The idea that it is not competent in an action of this sort to determine whether the plaintiff is a de facto officer is quite novel. We venture to say neither principle nor authority supports that feature of the trial court’s decision. The question of de facto right was decided in Ward v. Sweeney, sufficiently for the case, and was' one of the grounds for the result, and regarded sufficient. The trial court grievously erred in supposing that Barendt v. McCarthy, 160 Cal. 680, 118 Pac. 228, supports the conclusion. There the person out of was endeavoring to regain possession by a suit in equity against his adversary. The court proceeded far enough to determine that the defendant was at least an officer de facto and was in possession. So, it will be seen, the case is authority against rather than in support of the posjtion that in this suit it was not competent to solve the question of whether ap
Having committed the error aforesaid, the court easily misapplied Ward v. Sweeney and misconceived its purport.
The facts in Ward v. Sweeney were these: There was an officer in possession claiming a de facto status. He entered equity against one claiming the title de jure and threatening to take possession by force, to' determine the question of who had the better title and, incidentally, to prevent being forcibly dispossessed in the meantime. The case turned on the following points: (a) Can an equity action be maintained to try the title to an office ? (h) Is a temporary restraining order proper except under sec. 2774, Stats., to preserve the status quo and in a proper action to try the title to the office? (c) Is temporary protection by injunction in such an action proper at all, except in case of imminent danger of a forcible disturbance of the officer’s possession, detrimental to the public interests ? (d) Should such protection be afforded at all in favor of the one in possession and not appearing clearly to be at least a de facto officer ?
The writer, with the late Justice BabdeeN, dissented from the decision of the court so far as it might be regarded as holding that equity will not freely protect a de facto officer from imminent danger of being forcibly dispossessed by an adverse claimant in an effort to settle his right by wager of battle, and so far as it was held that the power to grant in-.junetive protection, under all circumstances, is referable to the statute and so not proper except as ancillary to an action to try title. Without -questioning the decision itself, it is conceded by the court now that some of the reasoning upon which it was based is unsound.
An action in equity, whether instituted' by one in or one out of possession of an office, to try the title, is one thing; an
That an equitable action for the protective measure of relief mentioned is proper, was vigorously maintained, independently, in the Sweeney Case, and not questioned in the opinion of the court except, as applicable to the particular circumstances there dealt with, and, further, upon the theory that the power to grant temporary equitable relief is restricted to the scope of the Code provision, sec. 2774 of the Statutes. It may be safely affirmed that, in general, an officer de fado in possession is-entitled to equitable interference to prevent forcible disturbance thereof other than in judicial proceedings. The . authorities cited in Ward v. Sweeney would seem ample in support of that doctrine. 2 Beach, Injunctions, § 1380; 2 High, Injunctions (4th ed.) § 1315; Sullivan v. Haacke, 5 Ohio N. P. 26; Parsons v. Durand, 150 Ind. 203, 49 N. E. 1047; Harding v. Eichinger, 57 Ohio St. 371, 49 N. E. 306; Goldsworthy v. Boyle, 175 Pa. St. 246, 34 Atl. 630.
Nothing of moment to'the contrary of the foregoing is cited by counsel for respondents, while in support thereof appellant’s counsel cited many authorities, the following being a few of the most significant: Stenglein v. Beach, 128 Mich. 440, 87 N. W. 449; School Dist. v. Weise, 77 Minn. 167, 79 N. W. 668; Palmer v. Foley, 45 How. Pr. 110;
A de facto officer has no need of instituting an action of quo warranto or any other action to try a controversy over the title to the office, in order to protect his possession. It is the business of the claimant who is trying to break in to resort to such remedy. The one in possession may use physical means, reasonably, to prevent being dispossessed, or he may resort to the more peaceful remedy of an action in equity for that purpose, as appellant did. The latter is to be preferred, and the court should not do anything to encourage a resort to the former. As remarked in Palmer v. Foley, 4 Jones & S. 14, referred to in Ward v. Sweeney, and often quoted-with approval, “The earliest jurisdiction, if not at” one “time the chief business of the court of chancery, was in assault, trespasses, and a variety of outrages. ... In respect to the use of preventive process, the jurisdiction ought to be, and therefore is, the same; and if it is proper in one case to exercise the jurisdiction to prevent a wrong threatened to be done to mere property, how much more proper is it to use the same power to arrest premeditated wrong to the person or personal rights ?”
The following from Sullivan v. Haacke, supra, is quite apropos to the case in hand:
“The action shows itself to be that, familiar to equity practice, wherein an individual in possession of an office seeks to restrain another who claims the office from by force and violence ejecting him, instead of resorting to the dignified,*200 peaceful, and orderly methods provided by law for gaining possession.” . . . “A claimant to public office, even though he have title, cannot, through the exercise of physical force and violence, divest possession from his predecessor.” . . . “The spectacle of claimants to high and important public office, charging themselves at fisticuffs over who shall have possession, and this at the very portals of the public courts, is not in harmony with the policy of the law, and is not 'one whereon a peace-loving, law-abiding public delights to gaze; and . . . the courts in the name of the public, for the preservation of the public peace, and in vindication of public dignity, will command peace and obedience to the orderly forms of law.”
This further from Palmer v. Foley, supra, is quite appropriate to the case:
“The defendant is not in possession of the office. . . . He stands in no better attitude than a mere stranger, except that he may invoke the aid of the attorney general to proceed against the present incumbent to try the title to the office. But at present he cannot have the possession of the office, nor can he enforce a recognition of himself as the legally constituted officer. He must wait until the disputed question is determined in his favor by a judgment in a proper action. The plaintiff desires that he . . . may be undisturbed in the office” he claims to legally fill, “and instead of asserting his right by bringing to his aid the maxim of the law, Domus sua caique ed hdissimum refugkmn, he adopted a measure more conformable to peace and order.”
The unfortunate occurrence giving rise to this litigation, of the attempted taking of law into one’s own hands — making an assault upon the commissioner’s quarters and threatening to use physical violence in a more personal way, to enforce submission, while he was performing his duty as he saw it, and his duty in fact so long as he honestly believed he had not been legally removed from office, — a duty not only to himself but to the public — to defend his possession against an unlawful intrusion — and what might be the-result in the fu
In the foregoing we have assumed, without discussion or reference to authority, that the governor’s official duty did not extend'to forcibly putting Mr. Anderson into possession of the office of commissioner of insurance. Neither principle nor authority can be found to support any such exercise of authority. We will not dignify the matter by even discussing it. It is really too plain for reasonable controversy that the governor does not possess any such authority. The learned circuit judge was evidently convinced of that, notwithstanding he left the matter of whether the executive could be interfered with, in case of his usurping such author
The suggestion made in the Sweeney Case of want of jurisdiction to grant temporary injunctional protection except as given by statute, is so obviously wrong that the court will not let this opportunity for correcting it go by without doing so. It was- doubtless permitted to go into the decision before by mere oversight. We are constrained to say that, since it is contrary to the law as well understood ever since our judicial system was established. Power in equity, as it existed at common law, was lodged by the constitution in the court. The legislature is powerless to restrict it and has never attempted to do so. The practice has been in harmony with this from the first. The court as early as Trustees, etc. v. Hoessli, 13 Wis. 348, held that “when the complaint lays a foundation for an injunction it will be granted whether asked for as a final judgment or as a provisional remedy, in all cases where it would have been allowed under the old chancery practice. The statute on the subject enlarges rather than restricts the power of the court over the remedy by injunction.” See, also, Lutheran E. Church v. Gristgau, 34 Wis. 328. In DePauw v. Oxley, 122 Wis. 656, 100 N. W. 1028, the court remarked on the same subject: The statute “confessedly was intended to enlarge the duty of the court as it existed under the former chancery practice.”
In the case last cited it was held that not only all the power existing at common law regarding injunctive relief was vested in the court by the constitution, but an added power was afforded by statute, and, it was remarked, following previous cases on the subject, where the papers on an application, for an order preserving the status quo pending the final result of the case show a reasonable probability of plaintiff’s ultimate success, it is well nigh an imperative duty of the
There is nothing to the contrary of the foregoing, we venture to say, to be found in our hooks, 'except as suggested in the Sweeney Case. Had it not been for the inadvertence, there made and now criticised, possibly this unfortunate litigation would not have arisen. Denial- of power, or hesitation to use it until some calamity shall have occurred, are both unfortunate. Power should he used discreetly and efficiently; neither denied where it exists, nor used with such timidity as to bring the administration of the law into contempt and encourage infractions of it.
We may now safely restrict Ward v. Sweeney to this: (a) The court will not recognize a controversy as to title to an office as a primary right constituting'a proper major subject for adjudication in equity; (b) The right in such a case being strictly legal, as a primary matter, it must he dealt with by legal remedies; (c) The right of a de facto officer to remain in undisputed possession of an office as opposed to forcible efforts of an adverse claimant to gain possession, until the de jure right of the latter shall have been judicially established, is a proper primary subject for equitable vindication with all the judicial instrumentalities essential to that end; (d) Whether the circumstances in any given case are such as to render use of the injunctive power of the court advisable or demandable, is matter of administration and not of power.
The foregoing is as far as it is necessary to go to demonstrate that Ward v. Sweeney does not, as the trial court sup
So if appellant was a do facto officer, and of that anon,— the circuit judge, as said, did not pass upon the matter — and the fact that the author of the disturbance was the governor did not chapge the ordinary rule — and of that we are about to speak, — the court not only had power and duty to act as it was invoked to act, but Ward v. Sweeney rules the case in appellant’s favor instead of in respondents’ favor and entitles appellant to a reversal as regards any question decided by the circuit court adversely to him.
IL
Thus it will be seen demonstrated that the supposed safe basis for the judgment appealed from has no sustaining quality and, unless the result be, right because of some question of law erroneously decided by the trial court against respondents, a reversal must follow. Counsel who stand for the judgment appreciate that, seemingly, and confidently press upon our attention a proposition of radical character which does not seem to have received any favor below further than is indicated by the suggestion in the learned judge’s decision that “this court has refused to issue temporary restraining orders which would in any way interfere with the exercise of the broad powers vested in the chief executive of a state. The
The broad language thus used might be very misleading to the casual professional reader, and particularly so to the nonprofessional, without having definitely in mind some important legal principles which will be mentioned. Confined to the literal sense of the words, “exercise of the broad powers vested in the chief executive of a state,” illustrated by Att’y Gen. ex rel. Taylor v. Brown, which involved the exercise of a power so vested, the language is accurate; extended to the exercise of power not so vested — to the usurpation of power,— the language rather points favorably to the contention of counsel for respondents which we are about to discuss.
We hesitate to think the learned court intended to go further than to hold that the executive of a state is only answerable directly to the people in respect to the exercise of the power which he possesses; his conduct in that respect being a subject for political consideration at the bar of public opinion and the people at the polls — leaving him answerable at the bar of the court, as the. representative of the people, in regpect to violations of law by assumption of power which he does not possess. It is quite certain that the learned circuit judge did not mean, “this court will refuse to issue a temporary restraining order which in any way interferes with the exercise” of power assumed “by the executive of a state” to be vested in him, hut which he does not in fact possess, and the exercise of which could not occur except by a violation of law — a usurpation,- — because the judge proceeded to consider the subject and held that the “broad powers vested the executive of a state” do not include power, personally or by his agent, to violently ejéct a person from an office when he shall have declared it vacant and to install his appointee therein as the successor, -and to further hold that in a proper
It were better if the learned'judge had carefully, expressly, differentiated between “interfere with the exercise of the broad powers vested in the chief executive of a state,” which plaintiff’s counsel were not urging, and interfere with the exercise of assumed power not possessed in fact, which was the subject of complaint. The failure to thus differentiate left the initial decision liable to be considered obscure or contradictory, which has called for this expose in order to do justice thereto.
The full scope of the proposition dealt with below, as above indicated, and now urged with great confidence is this: The governor of a state, acting in the name of his office, regardless of whether what he does or the manner of doing it is within or without the scope of his authority, cannot be interfered with by the courts. He is answerable only to the legislature under the impeachment feature of the constitution, or to the people. He is entirely independent of the courts, in acting as governor, regardless of whether his acts be legal or illegal. If he violates private rights, acting as governor, there is no jurisdiction in the court to afford redress for the wrong by interfering with him or his agents.
That is a striking proposition, as it is put up to us for consideration, though not a novel one, even here. The boldness with which it is pressed upon our attention, in view of the fact that it was most emphatically condemned here more than fifty years ago, is strange, passing strange. Some authorities are cited to our attention supposed to give some support thereto, without appreciating, seemingly, that in general they deal with matters decided by the governor within his jurisdiction, and that, in case of anything said suggesting authority outside of it regardless of judicial restraint, it is mere obiter and not supported by any principle grounded in
A brief discussion of our system of government will not be amiss at this point. When it was established the people had in their keeping the whole power of sovereignty, which was of old deemed to be centered in a personal head as the agency of God on earth. Their effort to form a government to exercise that power contemplated a new system — one essentially different from any existing in the old world. The courts were no longer to be the agencies of a personal sovereign deriving authority from on high instead of from the people, but they were to be agencies of the latter. Sovereign authority was to be regarded as in the people, exercisable by the people through their chosen agencies, and for the people. It was divided into three grand divisions, viz., executive, legislative, and judicial; each to be the supreme agency within its particular sphere and to be subordinate outside of it. So the structure was builded. So it exists and must continue to exist until the people who wrought it see fit to change it.
No right is more sacred under such system than that of an individual to appeal to the judicial forum of his country for redress of any wrong perpetrated upon him. Without that right neither life, liberty, nor the pursuit of happiness would be secure, and the very purpose for which, in contemplation of our constitution, “governments are instituted among men” would fail utterly. To conserve that purpose, not to destroy it, executive power was conferred on the governor, coupled with the restraint and balance afforded by judicial authority to confine it within its jurisdiction, not to l-egulate it, by dealing with all judicial questions, — a guaranty which distinguishes our constitutional liberties from the
Anything contrary to the foregoing is a relic of an ancient system where there were no private rights, strictly speaking— only privileges. In the separation from old-world systems and the erection of a new one in this country, the former, contemplating merely graces, was succeeded by the latter, contemplating inherent rights, and among those rights those of life, liberty, and the pursuit of happiness — a system of real rights in place of a system of mere privileges enjoyable only through grace.
We must go on at some length, not attempting however any full exposition of the constitution, from an original standpoint, as to questions which were long ago supposed to be set at rest and must now be so regarded no matter what other courts have said or may say on the subject. To go over
The subject in hand is so important in every way, and it is of such moment to refresh the memory of the older members of bench and bar and to inculcate upon the minds of those of lesser experience the great truths spoken in this court before the days of those now in service, that we feel justified in restating such truths in a general way, and quoting at some length the inimitable, forensic, and eloquent logic with which they were in those early days spread upon our pages.
Under our system, when a judicial question arises it is within the competency of the court to deal with it, not stopping to consider, necessarily, who are the parties. Whenever there is a violation of law, perpetrated or threatened, it is competent for the courts to apply a remedy. It is not bound to desist — indeed it has no right to desist — because, perchance, of the violator being the governor of the state or his agent, for then the offender is outside the scope of his duty and, as before indicated, he is a mere individual, regardless of his name or title.
In the foregoing, as we have already sufficiently indicated, it is not doubted that the governor within the scope of his authority is beyond the reach of the courts; but a violation of private rights, we reiterate,'is not within such scope, and when that occurs by him or his'agents the wronged party may appeal to the courts of his country for redress.
'As said by this court in Att’y Gen. ex rel. Bashford v. Barstow, 4 Wis. 561, so long as the court merely proceeds
How can one be familiar with Att'y Gen. ex rel. Bashford v. Barstow and doubt for a moment that the governor as a violator of law stands no different than any individual ? Arguments similar to those we have heard to the contrary in this case were made then with a logic, eloquence, and force unexampled before in this court and never equaled since. There the record stands — an inexhaustible fountain of wisdom on the subject discussed. All the actors at the bar realized that they were engaged in a contest which was to settle for all time in this state the underlying principles of our governmental system- — settle them untrammeled by any false no
How the sentiments leading up to and characterizing the final result in Att’y Gen. ex rel. Bashford v. Barskow grow as we contemplate them, and fill the soul with admiration for our form of government, and gratitude to those who placed its dominant principles on such an enduring foundation. Some of those sentiments, in the language of that day, may well be repeated here as best voicing our own conception.
“This government is nothing but a division of the powers of the government, nothing more.” “Sovereignty is not in one of the departments, nor in all of them.” This is not only a popular government, but it is a representative government— one where the officers are but agents and not rulers of the people — “one where no man is so high as to be above the constitution and no one so low as to be beneath its protection.” That was the first significant official evidence here of full ■appreciation of how widely our system varies from those of old by which many courts have set the judicial compass to determine the real nature of constitutional rights. It has been followed with few lapses since. It was followed in Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, in rejecting the heresy that found early lodgment in the jtirispru-dence of this country, that there is no natural right to transmit property by will or inheritance; and again m Will of Dardis, 135 Wis. 457, 115 N. W. 332; and again in Will of
It is somewhat strange that, notwithstanding the real logic of the change effected by the declaration ánd successful conflict for independence on our shores, courts sometimes seem to have failed in appreciation that it was independence of the system of government characterized by individual possession of mere privileges emanating from a personal sovereign which was declared for, fought for, and won in the smoke and din of battle and by the sacrifice of blood and treasure, — a substitution for the old system of one based on inherent individual rights, recognizing nothing in the nature of sovereign authority but that inherent in the people and delegable by the people to co-ordinate departments in such manner as the people might see fit, coupled with constitutional restrictions and guaranties.
Notwithstanding the light of the old notion of personal sovereignty and the system upon which it rested was extinguished in the struggle characterizing the birth of the new system on our shores, which arose in all its unspeakable beneficence from the ashes of the old like the beautiful flower from the ashes of Hyacinthus, and has ever since pervaded the land and is fast extending its blessings to include all mankind, the old, like Banquo’s ghost, appears in apparition from time to time, called forth, as it were, from the human tendency— product of heredity — reaching back through the ages — to bow at a personification of personal sovereignty. It would be most lamentable if such false conceptions should find any place in our jurisprudence after the early most emphatic rejection of it and the frequent affirmances of such rejection.
It must not be understood that there is any want of appreciation here of the fact that much deference is due to the co-ordinate department of the government, vitalized by the governor. It is the pleasure and the duty of the courts to pay that deference and, perhaps, to resolve reasonable doubts as to where mere deference ends in favor of the executive department. But the court must not go so far as to cast any doubt upon its own authority to deal with all judicial questions, regardless of whether it may necessarily call in question some act of the governor. It may very properly hesitate, and even decline, to use its authority in any coercive way as to him, where there is any measure of discretion to do so, but not even venture to doubt that it possesses the power to act when action is necessary. No one can tell how soon action may be necessary to stay the hand which might accomplish most serious mischief, as was the case giving rise to Att’y Gen., ex rel. Bashford v. Barstow, 4 Wis. 567.
• Some courts have given the weak excuse for doubting their right to send a writ to a governor, directly or indirectly questioning his executive act, that the court might be powerless to enforce obedience — even suggesting the possibility of executive control of the militia having to be contended with; as if a court with knowledge of its constitutional authority would be justified, under any circumstances, in not using it merely because the one who would be otherwise acted upon, even though he be the chief conservator of the law, might commit treason, as it were, rather than submit to duly con
Judges of great eminence and text-writers the most learned have discoursed along the same line as the foregoing. Justice Field, speaking for the court in McCauley v. Brooks, 16 Cal. 39, said this: “There is nothing in this.distribution of powers which places one department above the law or makes either independent of the other. There is no such thing as absolute independence.” And further, in effect, where power is given a department it is to be implied that there is independence within the scope therof. If it oversteps its line the judiciary will vindicate the violated right.
For a further example of the many illustrations in the books of what has been said, Justice ValeNtiNe, speaking for the court in Martin v. Ingham, 38 Kan. 641, 17 Pac. 162, thus expounded the constitutional system:
“There is no express provision in the constitution, nor in any statute, exempting any member of the executive department, chief or otherwise, from being sued in any of the courts, . . . and if any one of such officers is exempt . . . it must be because of some hidden or occult implications of the constitution or the statutes, or from some inherent and insuperable barriers found in the structure of the government itself. ... In all other cases it is not the rank or character of the individual officer, but the nature of the thing to be done, which governs. No other officer is above the law. . . . The different departments of the government are not independent of each other. ... It is said that if the governor opposes the order or judgment of the court, it cannot be enforced. . . . But are the courts to anticipate that the governor may not perform his duty? ... No one should suppose that he would fail in his duties. No department should ever cease to perform its functions for fear that some other department may render its acts nugatory. .K. . Each of the different departments is superior to the others in some respects. . . . Each department in its own sphere is supreme. But each outside of its own sphere is weak and must obey.”
We indorse without qualification the sentiments of the courts to which we have alluded. We refuse, utterly, to follow those jurisdictions which would place the gubernatorial office above the law — speak of it as entirely independent of either of the other co-ordinate departments of the government as regards their respective jurisdictions — or hold that it is not subordinate to and subject to obey when the court within its jurisdiction commands. We must refuse to follow the lead which would either deny possession of the authority delegated to courts by the people or hesitate to exercise it for fear of being efficiently opposed by a breaking of the law by the officer who stands as the ideal personification of government by law. We hold firmly to all the court said and decided on the subject in Att’y Gen. ex rel. Bashford v. Barstow, 4 Wis. 567. To deny possession of the power plainly lodged in the court by the constitution and which is inherent in the system itself — either from want of appreciation of the principle distinguishing such system from the one it displaced, or supposed want of power — on the ground that the governor, from his position, has greater physical power of resistance to the enforcement of the law than the court could lawfully overcome, — would be a failure of judicial duty characterized by want of judicial courage. Those who would lean on the latter reason fail to appreciate that no government can be. stronger than the people, and that the people may be depended upon to efficiently strengthen the arm of either one of its co-ordinate departments as necessary to enforce submission to duly constituted authority. The people may always be depended upon, in the last analysis, to support firm vindication of official trust.
We contemplate with much satisfaction that in the early
“Tlie attribute to awe and 'majesty
Wherein doth sit tbe dread and .tear of kings.”
On the other hand, it was contended that sovereignty was in the people and only there, the governor being a mere agent to do the people’s will, answerable to them within his jurisdiction, but amenable to the court as the superior agency of the people on all judicial questions, the same as any other individual; that any infraction of the law by him is neither justifiable nor defendable by his mere status as governor, and that what is the law, what a violation of it, and the consequences thereof, are judicial questions.
With inimitable power of logic the proper place of the judiciary in our system and ^importance of maintaining it was pressed upon the attention of the court to nerve it to the uttermost in solving the controversy — these inspiring words, being indulged in from the bar: “When discontent, violence and anarchy shall succeed to law and order — when the people and public officers shall depart from the constitution and desert the ship of state, I have a hope that the last glimpse that will be caught of organized government will be the judiciary, — that courts may be seen as long as any vestige of a state shall remain, still ready'to direct — still speaking the law with an even mind, dispensing justice with an even hand, sitting serene and unmoved, above the influence of fear and of faction, still abiding by that motto so peculiarly their own — fiat justitia,, ruat coslum.”
The result was, as before indicated, unqualified support of the contention for the supremacy of the courts on all questions
Can there be any doubt, in view of the foregoing, of the power and the duty of the court to deal with every question in this case of violated right ? Is not the idea that such duty stops at the threshold of the executive office, or anywhere short of its full performance, the veriest heresy ?
Many of the authorities cited to our attention in support of the proposition under discussion, rightly understood, are in harmony with what has been said, and as to those which are contrary thereto they are not worthy of being followed. As has been clearly indicated in this opinion, Att’y Gen. ex rel. Taylor v. Brown, 1 Wis. 513, upon which some reliance has been placed in support of the proposition urged by counsel for respondents, is in the same class with People ex rel. Broderick v. Morton, 156 N. Y. 136, 50 N. E. 791; Jones-
We do not need to go into the subject at length as to the extent to which the executive may directly or indirectly be reached within the scope of his duties. ' That he can be as to mere ministerial matters in cas'd of clearly violating a duty, but not in the field of discretion, is strongly supported. Here there was neither ministerial nor, discretionary duty to do the act sought to be enjoined; that is, the forcible instalment of Mr. Anderson in the office of commissioner of insurance. Besides, the question is raised as <to whether there was not actual usurpation in the proceeding itself for the removal of appellant, which will be discussed further on. So the case as to the'primary right involved really only deals with matters of jurisdiction. In general, where it is suggested that neither the governor nor his agents can be dealt with whether within or without the scope of executive authority — that, the alleged offender being governor or the agent of the governor,
III.
Counsel for respondents do not seem to insist very confidently or particularly that appellant was not a de facto officer. But since under some circumstances that question might be very vital to this litigation, it seems best to treat it briefly.
Much might be said as to what is the precise nature of that special status denominated “de factoA person may be a de facto officer and have no real title at all to the place he assumes to have the right to. If one is in possession of an office, performing its duties, and entered by right or such claim of right as not to be classible as a usurper, or have been in
This broad definition of what constitutes an officer de facto, formulated by Lord Holt in Parker v. Kett, 1 Ld. Raym. 652, 12 Mod. 467, and given special significance by Lord Eulenborough and the full King’s Bench in 1865, Rex v. Bedford Level, 6 East, 356, was demonstrated in State v. Carroll to cover the subject under discussion as it has ever since stood in England and generally in this country: “One who’ has the reputation of being the officer he assumes to be although he is not such in point of law.” The supreme court of Massachusetts added the weight of its sanction thereof in Petersilea v. Stone, 119 Mass. 465. The text-writers give like sanction, expressing the American view to be, that it is color of authority, not color of Jitle, which distinguishes an officer de facto from a usurper. Throop, Public Officers, § 623; Mechem, Public Officers, § 317.
The question of whether a person in office has a de facto right thereto, it would seem from the - foregoing, can in all ordinary cases only safely be solved by principle. It is not best to rely on case law and tie to some particular adjudication involving facts somewhat similar to those to be presently dealt with. The principle governing the matter is definitely settled in the unwritten law, is plain, simple, and easily understood. If one finds another in the apparent enjoyment of an office, having entered by right or a good-faith claim of right, or been in possession so long that there is a presumption in his favor in that regard, that one need not,
Prior to State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296, no attempt had been made here to state any general or even particular limitation of the customary rule; the court being content to deal with each particular situation as it arose. It is significant that,., though in many instances prior thereto, commencing with Tolle v. Stone, 1 Pin. 230, whether the particular status involved a- de facto officer was important, the answer was most always in the affirmative. They were not referred to in State ex rel. Jones v. Oates, but a rule was made for the peculiar situation in hand in the nature of an exception to the common rule.
One would assume from examination of the many cases preceding State ex rel. Jones v. Oates and the many others subsequent thereto, that there could hardly be conceived a situation of an office de jwrb and an entry and retention in good faith with all the environments of- an officer of that character, without the person in possession being at least an officer de facto until such time as an adjudication of his title should occur, so the precise situation giving rise to the particular case is important.
These are the facts of the Oates Case: The incumbent of the office and his adversary were rival candidates for the place for a new term. The latter in due course obtained the regular certificate of election, his* majority being one out of a poll of 4,645 votes. The former refused, upon due demand, to surrender possession, claiming, notwithstanding the
For the particular situation it was apparent to the court that an affirmative answer might lead to very serious consequences — that it might make a very harmful rule. The court felt warranted in determining the matter in the negative and without precedent, proceeding to that end to meet the particular emergency by this process of reasoning:
“A de facto officer is one who is in possession of an office and discharging its duties under color of authority. . . . By color of authority is meant authority derived from an election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer. . . . Tested by this rule, it is apparent that the defendant is in no proper sense a de facto officer as against the relator. There has been no canvass or determination by any one in his favor, nor has he any certificate, commission, or authority from any person, officer, or board purporting to authorize him to discharge the duties of the office.”
Thus it will be seen the opinion in State ex rel. Jones v. Oates was confined to a very narrow compass, namely: Is a
The case was quite different, it will be observed, from one involving a claimed forfeiture of a term of office by removal for cause, the person in possession of the place and alleged to have been removed having bis commission entitling him to remain and insisting in good faith that the proceedings to annul such commission are invalid.
The general rule that possession with color of authority and performance of the duty of the office creates the de facto status was not denied in the Oates Case, but rather affirmed, though there was a suggestion that color of authority means “■authority derived from an election or appointment, however irregular or informal.” It may be that the court, arguendo, went rather farther than was necessary in an effort to state a sound basis for the decision, instead of resting it upon the exigencies of the particular situation and upon a permissible exception to the general rule. As said before, courts in general distinguish color of title from color of authority, bolding that the former may exist without the other and that no election or appointment is essential to a de facto status, — only those general appearances suggesting and giving confidence to people having occasion to perform official business with the office that the one in possession, performing the duties thereof and claiming the right, in good faith, to do so, is the officer in fact which be appears to be. To harmonize with the current of authority the decision would need to be restrained to the idea that, in the particular circumstances, there can be
The first instance of rival claimants dealt with here after State ex rel. Jones v. Oates, and where that was cited, was in Deuster v. Zillmer, 119 Wis. 402, 97 N. W. 31. The officer there held over in defiance of the person who had been elected his successor. The former was held to be an officer de facto, though his term had expired, because the latter had not been “declared,” as in the Oates Case, “duly elected to that identical office as his successor.” It was distinguished from the former case on that ground. The Oates Case was again referred to in State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628, but the person having the prima fade right was in possession of the office. It was again mentioned in State ex rel. Manitowoc v. Green, 131 Wis. 324, 111 N. W. 519. There was a successor in that instance, and a holding over without right as against the prima facie title, though not under the precise circumstances of the Oates Case. The perspn so holding over was held to be the officer de facto. Thus, it will be seen, the tendency has been to restrain the Oates Oase to its particular facts and the exception those facts gave rise to.
Applying the foregoing here, it is considered that appellant was the commissioner of insurance, at least de facto, when he sought protection against the efforts to forcibly disturb his possession of the office rooms and records. The case is not within the exception created by State ex rel. Jones v. Oates, because the term for which appellant was appointed had not expired by operation of law and he had in his possession the
IV.
If the foregoing conclusion be not correct, in my opinion that did not warrant leaving the rival claimants — one in possession. claiming in good faith to have a right to remain and the other out of possession claiming the right to enter — to contend and settle the matter by physical force. The course in State ex rel. Jones v. Oates was by orderly judicial proceedings, not by violence. If the rule there be applicable here, then Anderson had a clear legal right to possession and a clear legal judicial remedy by mandamus to accomplish that which was sought by an assault upon the office quarters and threatened assault upon appellant himself, if necessary to cause his submission. Would it not be a most serious reproach to our system to hold that under such circumstances the courts must or will stand idly by and see a respectable, distinguished citizen, in high station, — in good-faith possession of one of the most important offices in the state and convinced of his duty to retain the place, subject to judicial remedies, — treated as an outlaw, while the one seeking possession and the one seeking to assist the claimant to gain possession have but to ask in order to have the right vindicated by a
Thus I cannot escape the conclusion that, from any fair viewpoint, appellant had a cause of action in equity when he initiated these proceedings. If he was a de facto officer, that
v;
At this point it seems best, since a majority concür, to consider the broad question of how far a court of equity may or should go in a case of this sort. That involves the mixed question of how far the court may go as matter of jurisdiction in the technical sense, and how far in the more limited sense of judicial policy; and perhaps the still further element of how far as matter of broader judicial policy, not trenching upon jurisdictional grounds in any sense. True, in view of the decision reached on other questions, this subject might be passed without expression of opinion; biit, as circumstances might have existed rendering it vital, those who concur on the particular points have concluded that the subject' might well be dealt with and, with due deference to those who do not agree with the final result and those who do, yet might prefer not to join in an opinion either way as to the particular matter— it is thought that what is here said is appropriate to the case, will be helpful hereafter, and will not embarrass any member of the court in any event. If it were not thought such could be accomplished, out of deference to any one who does not agree as to the particular question or wish to express an opinion thereon in this case, though concurring in the general re-
The question is this: Should the court rest, in a case of this sort, having reached a point calling for judgment vindicating .the primary right — the right to immunity from being forcibly dispossessed by illegal methods, — leaving the more important question, the right to The' office, undetermined ?
That is an important question. It has been taken largely for granted that either the court is without jurisdiction to, or in any event should not, try the title de jure in an equity action to quiet the right of possession against forcible attempts to disturb it. Must parties in such- a case, though in the court having jurisdiction to settle the whole controversy, depart with but partial relief, and none as to the ultimate matter, and come back, not really in another form of action, because we really have but one, but asking another form of relief; a part of the same form as before and, from a practical standpoint, including it? Under our liberal Code of Procedure, rightly understood and administered, is it true that such devotion to mere form is necessary, commendable, or really right? If there be expressions in opinions which would sustain such course, or even precedents, and there be no .jurisdictional impediment in the way, has not the time come, and is this not a good opportunity, to eliminate them from- our jurisprudence and go back to the conception embodied in the Code ?
The learned court below supposed its power was included in very narrow limits by the mere form of relief appropriate to satisfy the primary subject of the litigation, the mere right of immunity from forcible ejection, and even, as we have seen, supposed there was incompetency to determine the' matters of fact essential to that right. So it was' decided that there was no jurisdiction to look into the merits at all, respecting the right de jure between appellant and his adver
The circuit court relied, evidently, on Ward v. Sweeney, 106 Wis. 44, 60, 82 N. W. 174, and similar cases, without taking note of the fact that in all such the primary right involved in the litigation was the actual title to the office. Counsel for respondents have been unable to discover any authority on that, as indicated by their few cited examples, other than such as to show that an action in equity will not lie to try title. That must be admitted, but it does not meet the question. This action is not to try the title but to protect the possession pending trial as to the de jure right. As we have before indicated, such right is legal in character, and whenever a judicial question is • raised in respect thereto, primarily, it is a legal question and a subject for the appropriate legal remedy. But while a legal right, in case of there being an adequate legal remedy to vindicate it, can only be the subject of a legal action and legal relief, where the right is equitable, or the title is legal and of. necessity no legal remedy will reach the mischief of its violation or threatened violation, or when a legal right is incidental to an equitable cause of action, then the boundless resources of equity will meet the case, and such is the perfection of our system that there is no wrong within the competency of the individual to commit, which is above the grade of those mere moral in
Thus it is plain that the right of possession was the primary right here, not the title to the office. So the ground of the decision below, and of respondents’ position here, fails. Another elementary principle comes in at this point. Where a court of equity has acquired jurisdiction of the parties and the subject matter for one purpose, it may properly adjudicate all cognate questions and settle the whole controversy, though the connecting matters would not, of themselves, form a primary subject for equitable interference. The mere statement of this would seem to be sufficient. There is no principle of equity jurisprudence with which the profession is more familiar. We therefore pass it without citation to support it.
In view of the foregoing principles, it seems very clear, without reference to authority, that there is no jurisdictional difficulty in the way of the trial court finally disposing of the whole controversy between the parties. The , right to protection against violent disturbance pending settlement of the title was the primary right. The right to the office was incidental thereto and had to be judicially settled some time. The questions involved were practically all questions of law. No possible prejudice could arise because of absence of legal methods of reaching the final result. Why then turn the parties out of court to come back upon the same facts and in practically the same action under a different name and seek, primarily, a different form of relief? It seems that such a course would be contrary to the letter and spirit of the Code and contrary to the light in which it has been viewed here in recent years, though it may have been overlooked somewhat at times. When the framers of the Code abolished all old
That stated principle has been considered so grounded in our jurisprudence that it has been customary, from an early date, to merely state and apply it as occasion arose, without hesitating to justify the application by reference to authorities. The constitutional guaranty of the right of trial by jury was “that such right shall remain inviolate.” So it has been held that it extends no further, and restricts the freedom of equity authority no more, than was the case at common law. Thereby, and by removal, through the _Code, of jurisdictional difficulties as regards the particular form of action and particular court to vindicate a particular right, all substantial interferences with settling the rights of parties, regardless of the nature of the relief required, once they were in court in good faith and it had acquired grasp upon the general controversy required to be settled, to do full jus
We see no reason why the principle stated may not he applied to a case of this sort. The fact that there has been no such application heretofore'here makes no difference. Principles should rule in the judicial field, not mere precedents. In no other w.ay can the law preserve anything like the cast of a science. In High on, In junctions, after discussing the rule that an equity action is not maintainable for the purpose of trying the title to an office, it is said ns a result of reviewing the authorities, the rule applies “only to cases where the title to the office is the sole issue involved, and where the bill is filed for the primary purpose of determining that issue. And where the question as to the title to public office arises merely incidentally to the determination of á suit of which a court of equity otherwise has jurisdiction, the rule has no application.” § 1315a. (4th ed.). The author ventures to state that, as a logical deduction from the ruling principles of equity jurisprudence. While it is rather against the generally accepted theory, we see no escape from the conclusion.
In the circumstances of this case it seems that establishment of the real status of the office is peculiarly within the field of equity jurisprudence. Appellant is in possession. To prove his right, the facts-aliunde the record had to -be examined. No possible prejudice can occur to respondents or to the public by the title being finally quieted in this action. On the contrary, every legitimate private, as well as every public, interest would be best promoted by the entire controversy being brought to a termination at the earliest practicable moment and without the useless expense and expenditure of money and time which would be involved in another action. Why then should the idea that equity cannot take
It seems the court should decide in this case, and as an established principle of our practice, that where the controversy as to the title to an office is incidental and germane to a proper subject of primary right in a suit for equity relief, and the court having the case in charge has all the parties interested before it, it has competency to and will settle the incidental as well as the primary controversy, where it clearly appears that justice will be best subserved thereby.
VI.
In view of the probability of the last question discussed taking the course indicated, the reargument was had on the question of whether the executive, in administering the power of removal under sec. 970 of the Statutes, is required to proceed by due process of law; whether that, in the circumstances of this case, entitled appellant to reasonable notice of hearing of the particulars of the charge made against him, reasonable opportunity to be heard in respect thereto in person and by counsel and by his witnesses, to know the adverse evidence to be considered, exercise the right of cross-examination, and present all material evidence in his behalf; and, if so, whether such right was denied to appellant; and, if so, whether the result reached was valid; and, further, whether it is a jurisdictional requirement to competency to render a judgment of removal in such a case that the evidence, in
If results already reached were not sufficient for the case, there is a still broader one than ’any heretofore discussed, except possibly that of the constitutional power of this court in its relations to the executive department of the state. As the case developed in our consultations, it assumed such magnitude and character that the particular right involved sank somewhat into insignificance. The constitutional question before referred to and the general features of the case challenged our attention to the right 'of the individual as guaranteed by the fundamental law. ' So, on the one hand, there was questioned the power of the judicial department to deal with violations of private rights when ¡it came to questioning the validity of executive action; and on the other there was raised, by the very nature of the transactions in evidence, the question of whether the constitutional guaranties of private rights had not been violated. If we passed the danger respecting the proper place of the judicial department in our system being invaded, there was left the danger of private rights being held successfully viciable and a precedent being established greatly weakening the dignity of such rights, at the-very foundation thereof. Neither of the parties in this litigation would wish to prevail as to the particular right at so great peril to the public welfare as that of having that question decided wrong or even passed unnoticed. The distinction and high character and patriotic devotion to their own high ideals of government by the people through the people’s .chosen agents, which they must be assumed to conceive to be founded in our fundamentals, is proof enough for that. So the parties and the particular alleged violated right seemed to form but a mere background to the questions the
Is validity of an order of removal under sec. 910 of the Statutes dependable upon the constitutional guaranty of due process of law being observed, and, if so, are the common-law requirements a part of the statute as to hearing, upon reasonable notice to the party interested of time, place, and questions involved, and proceeding with substantially the essentials of a fair judicial investigation and determination, to and inclusive of a result supported, in some reasonable view, by evidence, — especially in case of an office for a fixed term ?
If the stated proposition be resolved in the negative, then we manifestly have a condition in this state not dreamed of when our system of statutes was originated. Then there were but few officers within the particular removal provision. Now there are hundreds. A system of government, largely by commissions with membership both as to the major and subordinate factors composed of men of high character and special attainments, has been developed. A maximum of special knowledge on the part of the incumbents is required, with a minimum of political interference, if the complicated system is to have any fair opportunity to attain somewhere near to the ideal of efficiency its originators designed to accomplish, and all hoped for. In view of that, as well as of the overshadowing importance of preserving the integrity of constitutional guaranties of private rights, the question of whether the executive possesses the power of summary removal as to the vast number of important public offices, unrestrained by those principles of natural justice which char
Tbe proposition, as stated, might be further narrowed without sacrificing any of its-essentials, and might be greatly expanded so as to develop many important details. To take tbe latter course and discuss each of such details at length would extend this opinion to a very great length without, perhaps, any corresponding added dignity or element of demonstrated truth as to tbe result. However, tbe discussion vill unavoidably extend to considerable detail, though attempting to tie as closely as practicable to tbe real gist of tbe matter as indicated in tbe proposition stated.
Notwithstanding expressions here and there which would give rise to doubt if one were not grounded in the real philosophy of the law, — courts in general hold and this court has •held, as we shall see in the course of this opinion, that neither any personal nor property right, in the broad sense of those terms, not even a status, or anything which can be the subject of rightful private possession to enjoy, valuable in a pecuniary sense or in promoting any fundamental right,— except in case of a mere granted privilege, subject to be recalled by the terms of its acquirement, — can be taken from its possessor, against his will, without the due process of law of the constitution, — a proceeding judicial in character, characterized by the common-law safeguards against injustice, unless some other procedure is provided by the written law. Why does that not apply to the right to hold and enjoy an office, with its honor and emoluments, to which one has been elected or appointed?
Counsel for respondents answer the foregoing in the negative, in part upon the theory that an office is not property and, therefore, that the due process of law of the constitu-
Much confusion, it seems, has arisen from a confusion of terms in the cases dealing with the subject under discussion. True, in the Starlcweather Case, to show that one of a statutory removal tribunal is not disqualified because he is not so circumstanced as to be competent to exercise that judicial power conferrable only on courts after the manner of the common law, it was said that the power to remove public officers is not judicial but administrative, to be exercised in a judicial manner, and that the right to an office is not property or a vested right, — evidently meaning, not property in the sense that it is not of such a nature that it cannot be taken away arbitrarily and except upon rendering just compensation, but may be taken upon any condition of its bestowal. The opinion of the court, when carefully read, seems to express that idea very clearly. That is in perfect harmony with Dullam v. Willson, as will be seen by a careful study of that case. There the power of removal for a cause specified in the written law and established by investigation and found by application of judgment to proof was said to be judicial, -and that such essentials — by necessary implication and as plainly as if written into the law in unmistakable words — require the power to be exercised with all the common-law and ordinary safeguards, founded in natural justice, for the protection of private rights — so required by the constitutional guaranty of due process of law — hearing upon reasonable notice of time, place, and charges and after the manner of fair judicial investigation. What was called judicial power in the one case was called administrative power, exercised judicially, in the other, — the power generally de
The broad principles of natural justice, which, as indicated, require hearing before condemnation, are older than this court or the courts of this country. They obtained here before the Revolution through grace of the sovereign, embodied in Magna Carta. “No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or in any ways destroyed, nor will we pass upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land.” It was incorporated into our fundamentals by the general declaration upon which the constitution was grounded, and pervades in its spirit the whole instrument. It is inherent in the very system, as said by an eminent text-writer. Story, Const. (5th ed.) § 1938. No special guaranty was necessary, as in the Fifth and Fourteenth amendments to the national constitution, as regards the inviolability of liberty or property- except by due process of law and under the protection of the principle of equality before the law.
No court has dignified the ideas above expressed more constantly or conspicuously than our own, as we shall see in the course of this opinion. When we carefully analyze our
" What is due process of law ? There is nothing very technical about it when we view the subject broadly. Due process of law means, in brief, the law of the land — including the unwritten law. It is, simply, that which must be followed in depriving any one of anything which is his to enjoy until he shall have been divested thereof by and according to the law of his country. Whether the proceedings relate to liberty or property, in the technical sense, and be of a strictly judicial nature, or to mere privilege, immunity, status, or anything else of value, which commonly are of a quasi-judicial nature, incidental to or as a part of administrative authority, and reviewable by courts as to jurisdictional matters, or, of a purely ministerial nature where the thing is a mere creature of the law granted upon condition of being so dealt with, due process of law pervades and rules them all.
The mistake has influenced some courts, that due process of law calls for the interference of a court — judicial proceedings, in the technical sense, and therefore that it only appertains to property in the sense of things of absolute ownership — things which may be bought and sold and passed by will or inheritance. By or according to the law of the land covers the whole field — everything appertaining to right is to be dealt with according to law — administrative power, such with the concomitant of quasi-judicial authority, legislative methods, judicial power in the technical sense — each in its proper sphere is due process of law. In Kennard v. Louisiana, 92 U. S. 480, 481, in dealing with a fixed term of office 'and power of removal for cause, on appeal from the state court presenting questions similar to those discussed here, the
Further illustrating the subject, the supreme court of Michigan in Att’y Gen. ex rel. Rich v. Jochim, 99 Mich. 358, 58 N. W. 611, said, in effect: If one accept office from which by the law'of the land he is subject to be removed in any , particular way, then deprival that way is due process of law. If he takes an office which is in the power of the legislature to abolish and he is thereby deprived of it, his removal is by due process of law.
The suggestion that the special guaranty as to liberty and property does not extend to the right to an office because it is not, strictly speaking, the one or the other, is far too narrow a view of the constitutional idea, as what has been said sufficiently shows. The special guaranty as phrased was adopted doubtless, as distinguished commentators have said, to cover in a particular way all that is included in the gen
That the protection of due process of law extends to rights, in the broadest sense of the term, has always been fully recognized here and most significantly in State ex rel. Milwaukee Med. College v. Chittenden, 127 Wis. 468, 107 N. W. 500. The court there said:
“One of the fundamental principles of our system of government is that no one shall be condemned, as to his person or his property, without due process of law. That is well within the letter, and, manifestly,' within the spirit of the Fourteenth amendment to the national constitution, within our constitutional guaranty as to a firm adherence to the fundamental principles of justice (sec. 22, art. I, Const.), and that comprehensive, basic guaranty making the constitution as a whole a recognition of and pledge for the preservation of all inherent rights, and especially rights to life, liberty, and the pursuit of happiness.”
“Due process of law does not mean merely according to the will of the legislature, or the will of some judicial or quasir judicial body upon whom it may confer authority. It means according to the law of the land, including the constitution with its guaranties and the legislative enactments and rules duly made by its authority, so far as they are consistent with*243 constitutional limitations. It excludes all mere arbitrary dealings with persons or property. It excludes all interference not according to the established principles of justice, one of the most familiar of them being the right and opportunity for a hearing, to meet opposing evidence and oppose with evidence, according to the established principles of fair investigation to determine the justice of the case, before judgment affecting personal or property rights shall be pronounced.”
The foregoing only puts in another form the idea as phrased by the most eminent of our elementary expounders of 'the constitution as to the scope of the constitutional guaranties. At secs. 1928 and 1950, Story on the Constitution (5th ed.), it is said:
Due process of law “covers every right to which a member of the body politic is entitled under the law. The limbs are equally protected with the life;’ the right to the pursuit of happiness in any legitimate calling or occupation is as much guaranteed as the right to go at large and move about from place to place.” ' “The word liberty’ . . . implies the opposite of all those things which, besides the deprivation of life and property, were prohibited by the Great Charter.” “None of our liberties are to be taken away except in 'accordance with established principles; none can be forfeited except upon the finding of legal cause, after due hearing.”
It would seem that what was said by the court in the Chit-tenden Case should be considered ’ a sufficient answer to any contention which is or could be now made, that the right .to a public office, whether considered as property in the technical sense or merely in the broader sense of a thing of value'to the possessor, or just a right which the possessor is at liberty to possess and which is promotive of his legitimate desires and his happiness — a right not w-ithin the field of property at all, — is under the protecting guaranty of the constitution.
JFrom the foregoing it will be seen that we must distinguish between an office held subject t.o summary right of removal
The distinction mentioned is noted by .all the text-writers. Eor example:
“The general rule is that where a definite term of office is not fixed by law, the officer, or officers by whom a person was appointed to a particular office may remove him at pleasure, and without notice, charges, or reasons assigned. ... It is conceded, in all the cases, that where a fixed term is assigned to the office, the appointing power has no absolute power of removal.” Throop, Public Officers, § 354.
At common law in all cases except where an office is held absolutely at pleasure, “an officer could be removed only for cause and after a hearing.” Throop, Public Officers, § 362.
“In this country, the rule is, that where an officer holds his office for a certain number of years, £if he sháll so long behave. himself well,’ he cannot be removed, even for misbehavior, without notice and a hearing. So where he is appointed for a fixed term, and removable only for cause, he can be removed only upon charges, notice, and an opportunity to be heard.” Throop, Public Officers, § 364.
To the same effect are Dillon, Mun. Corp. (4th ed.) § 473; Mechem, Public Officers, § 454.
One might call the roll of all the highest courts of the country which have dealt with the subject in support of the foregoing. It is no exaggeration to say, as was said at the bar, that there is practical unanimity in the adjudications in this country in respect to the matter, that courts which started
Eor the better appreciation of the cited cases we will quote from a few of them.
In Page v. Hardin, 8 B. Mon. (47 Ky.) 648, while the power of removal was held exercisable by the governor, it was nevertheless said that the proceedings, in conformity with fundamental principles of justice, were required to be judicial in their general characteristics. “We shall not,” said the court, “argue to prove that in a government of laws a conviction whereby an individual may be deprived of valuable rights and interests, and may, moreover, be seriously affected in his good fame and standing, implies a charge and trial and judgment, with the opportunity of defense and proof. . . . Such a proceeding for the ascertainment of fact and law, involving legal right, and resulting in a decision which may terminate the right, is essentially judicial, and has been so considered elsewhere.”
This language, spoken for the court in State ex rel. Reid v. Walbridge, 119 Mo. 383, 24 S. W. 457, is particularly applicable here:
“In the case presented, the power to amove the officer is ‘for cause,’ and no notice is mentioned as requisite to be given to the officer to be proceeded against. But 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 ór estate or any other matter or thing to which he is entitled. And though the statutes do not in terms require notice, the law will imply that notice was intended. . . . And what the law will imply is as much part and parcel of a legislative enactment as though set forth in terms. . . . Notice in this case . . . had been given and charges preferred, and this court, following the authorities elsewhere, has decided that even where the removal is ‘for cause’ that still notice must be*247 given. . . . But ... if an officer be removed, it belongs to tbe courts to determine' tbe sufficiency of tbe cause alleged.”
Further on tbe same subject from People ex rel. Schumann v. McCartney, 34 App. Div. 19, quoting from People ex rel. Kasschau v. Police Comm’rs, 155 N. Y. 40, 49 N. E. 257:
“Tbe relator was not subject to removal except for some legal cause, to be ascertained and adjudged as matter of fact upon a bearing. . . . Tbe proceeding was judicial in character, and hence tbe tribunal before' which tbe investigation was bad could not dispense with tbe usual form of procedure. . . . "When a party is protected in tbe enjoyment of a public office . . . from removal except for cause, to be ascertained and adjudged upon a bearing of a judicial nature, and it appears that be has been removed without any proof of tbe facts upon oath, tbe determination ... is clearly erroneous as matter of law.”
And tbe court further said, for tbe particular case:
- “Tbe relator cannot be deprived of bis position upon evidence satisfactory to tbe commissioner, unless that evidence is procured in the course of a judicial investigation, where the relator has been informed of tbe charge against him and has bad an opportunity of examining tbe witnesses against him_and of presenting evidence in bis own behalf. On tbe bearing at which tbe evidence satisfactory to tbe commissioner was elicited, . . . tbe entire proceeding was a mere mockery of justice.”
The following from Field v. Gomm. 32 Pa. St. 478, is peculiarly applicable: The court differentiated between Ex parte Hennen, 13 Pet. 230, where the circumstances did not exist, as in this case, and those where such circumstances do characterize the subject, and observed as to the latter by quoting the language of Lord Campbell in In re Poole [Reg. v. Archbishop of Canterbury, 28 L. J. Q. B. 154], then said to be a late English case:
“There could be no doubt his grace bad acted most conscientiously but ... be bad taken an erroneous view of tbe*248 subject. . . . He was bound to bear the appeal and he had not heard it. It was one of the first principles of natural justice that no man should be convicted without first being heard. . . . That had been the uniform principle on which this court, from the most ancient times, had acted; and he recollected hearing a very aged judge once say, and not irreverently, that the Almighty and Omniscient Being would not condemn our first parents without their being first heard.” 32 Law Times, 230.
The following is from the opinion of Justice Campbell in Dullam v. Willson, 53 Mich. 392, 19 N. W. 112:
“The action of all persons, official or private, which is in violation of constitutional rights is simply null and void and needs no reversal. . . . The fact, then, that the statute and the constitutipn, in giving the governor power to remove, prescribe no methods of examination, can in no way relieve him from the necessity — even if he is to pass personally on the facts — of having specific charges of misconduct communicated to the officer, and established by proof, with full opportunity to the respondent to examine and cross-examine witnesses, and be heard on the facts and the law.”
In People ex rel. Metevier v. Therrien, 80 Mich. 181, 45 N. W. 78, the point was urged upon the attention of the court, as in this case, that the act of the governor could not be inquired into, and the court replied:
“The governor cannot foreclose the right of the court to preserve to such officers their constitutional rights. The right to hold this office is just as sacred in the eye of the law to Metevier as the right to .hold property he has earned. It is a property right, and one of which he can only be divested by strict conformance with the statutes.”
In other words, as the court said, by due process of law.
We have thus quoted at much length from authorities elsewhere because our own court has not dealt with the subject under discussion very frequently and not, perhaps, significantly, except as to the requisite in general of due process of
“That every man is entitled to his day in court, and must have it, and cannot be affected in his person or his property, unheard or without the privilege secured to him of appearing or being represented in his own defense, if he so desires, is a maxim the force and importance of which every good lawyer appreciates, and one which no court ever surrenders.”
VI a.
Since some confusion has arisen, as before indicated, respecting whether a proceeding of the nature of that under consideration is judicial or administrative in character, all referable, it seems, to the remark in State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304, and repeated in State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748, and supposed by counsel for respondents to be applicable to this case, that the power is not judicial but on the contrary is administrative though required to be exercised in a judicial manner, we will give some further attention thereto, though, as said before and must clearly appear upon principle and authority heretofore cited, it is essentially judicial, wanting only the circumstance of being exercisable by a court, and the different terms are merely different methods of describing the same thing. The better term to use is quasi-judicial. That accurately describes the power. A brief review of the adjudications in this court will leave no room for doubt as to its judicial character or but that the idea pressed upon us that it is administrative, so far as affecting the right of a com
In State ex rel. Gill v. Watertown, 9 Wis. 254, the power of removal “for due cause” was held to require due cause in some reasonable view in the judgment of the court; that what constitutes “due cause,” in the ultimate analysis, is purely a judicial question. There, as here, counsel to support the contrary relied on Att'y Gen. ex rel. Taylor v. Brown, 1 Wis. 513, in respect to the power exercised under the law respecting removals for cause being so far removed from judicial character that the result was not reviewable by the courts. It was replied thereto that, within its jurisdiction, a removal body, competent to act for due cause, cannot be interfered with by the courts; but that what constitutes due cause is a judicial question; that to assign a cause and pronounce upon its existence is one thing, and whether the assigned cause answers to the call for “due cause” is wholly a legal question, to be determined, in the last analysis, by the courts; that the initial tribunal cannot make an innocent matter “due cause” by assigning it as such. There was the clearest of indication that a removal tribunal, required to exercise discretion, possesses judicial power in a proper sense and that its determination as to all jurisdictional questions is a subject for review under the superintending control power of the courts.
In Randall v. State, 16 Wis. 340, tbe court was more em
In Larkin v. Noonan, 19 Wis. 82, the court was still more emphatic, bolding that the removal power of the governor is analogous to that exercised by a court in the trial of a case. “He is required,” said the court, “to furnish the accused with a copy of the charges made against bim and give bim an opportunity of being beard in bis defense.” True, in the particular case, a bearing was required by statute, but, as we have seen and shall further see, that, by necessary implication, is written into every power of removal for cause which is required to be established by proof, especially in case of the office being for a fixed term. “This,” continued the court, “involves, as a consequence, a trial — a legal investigation into the truth of the charges. Witnesses may be subpoenaed, sworn, and examined. Testimony must be taken, weighed, and considered, and, although the proceeding is summary and no trial by jury allowed, yet it conforms in important particulars to proceedings in judicial tribunals. If the charges are sustained by satisfactory evidence, the governor may remove the delinquent officer. If the charges are not proven, the officer must be acquitted. Hence, in the bearing of causes of this nature, the governor acts in a' q«¿m-judicial capacity, and the proceeding is analogous in its most essential features to a judicial bearing and investigation.”
In State ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172, tbe court further advanced — stepping perhaps beyond safe boundaries in bolding a quasi-judicial body to have such characteristics of a court that what would disqualify a judge to preside in tbe latter and render a judgment void rendered
So it is plain that the power of removal under sec. 970, Stats., is judicial in character, — it is of the same nature as the power called by the Michigan court in Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, “judicial,” and it is misleading to differentiate between the term “judicial power” and “administrative power judicially exercised,” — they mean the same thing as applied to proceedings of the nature of those under consideration. To the same general effect are Gaertner v. Fond du Lac, 34 Wis. 497; Oshkosh v. State ex rel. Perkins, 59 Wis. 425, 18 N. W. 324, and many other cases decided by this court to which reference might be made.
VI b.
Before proceeding to the last vital question involved in the resubmission, we will recur to the subject of whether the right to an office once obtained, with its honors and emoluments, is property in the constitutional sense. That is not essential to the solution of the final result, as we have seen, but it has been much argued both to support the idea that the due-process-of-law feature of the constitution does not include it and the idea that removal proceedings are not judicial. The case might turn on those contentions if they were sustained. So it is manifestly appropriate, even though not necessary, to
I marvel that after the extraordinary pains taken by the fathers of our system to make its principles so broad as to encompass in its protecting folds every right of every character, essential to or promotive of human liberty and happiness, there should be any attempt to narrow it by construction’ instead of viewing them in the broad spirit which led to the constitution. As said by commentators, it was not supposed in the beginning that anything in the nature of protection of private right from tyrannical aggression, other than the principles of the common law, was needed, so the general declared purpose of the effort to form a new government was included, and in the detail statement of principles the special guaranty as to private rights was omitted. The danger involved in that led in the very beginning of the administration under the constitution to the addition of ten amendments supposed to be broad enough to cover all such matters. That the intention was not to leave any of them out is most manifest. Among those added specific guaranties is that as to due process of law and that other as to taking of property for public use without just compensation. •, Later, because of changed conditions giving rise, to the thought that possibly the principle so definitely declared might, by some narrow construction, not be wholly efficient, the guaranty as to due process of law was repeated, amplified, so to speak, by guaranteeing against the making or enforcing any. law abridging the privi
Now in contemplation of the industry thus exercised to afford protection to the individual from injustice of any sort, can it be possible it was thought the terms “liberty” and “property” would not include more than freedom from unjust physical restriction and things subject to be bought and sold, or stop short of freedom for one to possess anything and to enjoy it as property, if valuable in any sense, which may lawfully administer to his reputable desires and happiness? Why stop with tangible things — things subject to transfer and measurement accurately in money? If a thing has a pecuniary value or a real value to its possessor, it seems it has a property element in the constitutional sense and freedom to enjoy it is liberty in a broad sense. I think it is dealing with technicalities to restrict “property” so as to exclude the right to an office, once acquired, until deprived of it by law,— acquired, perhaps, by years of effort in preparation for its duties, and by the legitimate expenditure of money. We may adhere to all that was said in State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304, and Slate ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748, that it is not a vested property right. Certainly it is not, — in that, by the very terms of its bestowal, it is subject to be taken away and has neither assignable nor inheritable features; but it has a pecuniary value, and that is sufficient. The framers of the constitution did not intend any narrow conception of the
I think the disposition on the one hand to take the broad view above indicated, and on the other to take a narrow view which would minimize the scope' of the constitutional guaranties, ánd the tendency of some judicial writers to combat principle with mere argument in reaching for logic to support a decision which needs no support but some elementary principle, as would be seen by searching, for it, instead of relying on argument rather than on thinking, — has caused unfortunate confusion. That, I think, will be quite well illustrated .before I close this discussion.
If I do not accomplish anything more in this treatment, I hope to remove anything like confusion as regards the terms under consideration in our own decisions, and demonstrate the position of our court on the side of the broad progressive view of the constitution which renders its principles, as was intended, adaptable to the protection and conservation of every right which concerns legitimate human welfare. Many distinguished courts have referred to an office as property, while others, and a minority I think, hold that an office, or the right to an office, often confusing the two terms, is not property. Many text-writers have added to the general confusion. It cannot well be said that both sides have used the term “property” in the same sense. ‘ There must be some line of harmony. Where is it? That is the question. To find it and bring it into sufficient significance to pervade even here, so it will not be thought there is any want of harmony between the various expressions used, or between them and the court’s general conception of constitutional principles as found in its definitions, is sufficient to warrant this effort.
An examination of the decisions leads to the conviction that
Thus the efforts to give support .to the idea that the right to an office is not property seem futile. They originated in
In Nichols v. MacLean, 101 N. Y. 526, that view was adopted, upon the elementary principle that an office is of pecuniary value to its possessor, and that having such value, in the broad sense, it is property. ANdkgws, J., speaking for the court, said:
“The right to an office, till terminated by lawful methods, is as perfect as the title to real and personal property. It is not property in the sense that chattels or lands are property of the owner. But an office has a pecuniary value although pi’imarily it is an agency for public purposes.”
To the same effect are People v. Wells, 2 Cal. 198, 203; Stale ex rel. Childs v. Wadhams, 64 Minn. 318, 324, 67 N. W. 64; People ex rel. Metevier v. Therrien, 80 Mich. 187, 196, 45 N. W. 78; State ex rel. Jennett v. Owens, 63 Tex. 261; Hoke v. Henderson, 15 N. C. 1, 17; Plimpton v. Somerset, 33 Vt. 283; Board of Police Comm’rs v. Pritchard, 36 N. J. Law, 101; Page v. Hardin, 8 B. Mon. 672; Comm, ex rel. Bowman v. Slifer, 25 Pa. St. 23; King v. Hunter, 65 N. C. 603; Balling v. Board, 79 N. J. Law, 197, 74 Atl. 277; and many other cases that might be referred to.
That is the logical basis foi’ all to rest upon. Subject to termination of the right by due process of law, it is property. In view of the foregoing it seems best that the broad view of the terms “liberty” and “property,” as it must have been entertained in the beginning, should prevail, instead of restricting it for the purpose of supporting the idea of control over legislative office; which needs no support but the simple one that the person who takes such a thing at the hands of the people does so with the condition subsequent inhering in the right. Nothing but that need have been referred to in sustaining the decision in any of the cases where the non-property idea was adopted.
So we may safely bring together .the apparently conflicting
The result is, it seems, that for all the purposes of this case, even if the result were to depend upon it, the right to -an office and to take its emoluments is property, as much as ány-thing of value which any one could be possessed of subject to contingencies by which it might be taken from him, and that the right cannot be constitutionally violated except according to the law of the land.
VIL
From what has preceded it remains to be seen whether the common-law right as to the manner of exercising the power of
The repeal of the common law máy' be express or implied. That there was no express repeal in this case is indisputable. Whether there was an implied repeal depends upon.construction. Therefore some rules for construction are important.
One of the cardinal rules for construction of a statute, especially where it affects private rights, when so obscure as to require the meaning to be read out of it by construction, is that it should be viewed favorable to continuation of the common law rather than as a repeal of it, where there is a. permissible choice between the two. Another such rule is that we may look to the whole of the act of which that to be construed forms a part, .to the conditions to be dealt with from ■the standard of the lawmakers'at the origin of the enactment, — the history of the legislation, — especially in case of its adoption from another state, — and the more in case of its having been judicially construed there before adoption here, and, further, the effects and consequences.
In view of those rules, courts in general, as we have already: seen, hold that the common-law manner of proceedings, said to be grounded in the principles of natural — of eternal — justice, must be held to be still in force, in the absence of either an express repeal of it or a repeal by very clear or, as sometimes .said, necessary inferences. That the repeal must be very plain, the discussion which has preceded amply demonstrates.
So it seems, if the argument of counsel for respondents, on the theory that a repeal of the common law be fairly inferable from the statute, be conceded, it is far from sufficient. But it hardly seems just or reasonable to say of the statute that
If there is nothing else to produce the conclusion that the legislature did not intend to abrogate the constitutional safeguard, the very consequences of the contrary would justify, yea require, searching in the obscurity, if obscurity exists, for some meaning which would avoid the peril. The fact that a very good despot may make the very best of governments, and that the peril suggested is so very remote that the thought of it should not have efficiency, does not meet the case. Experience has shown how very fair men lose their balance and become unsafe in times of great public excitement; that then their acts often do not so much “wait upon their judgment” as upon the passions, the prejudices, the selfishness, the ambitions 'and intoxication of place. Hence the importance of that wise admonition, “the blessings of a free government can only be maintained by a firm adherence to justice, moderation, temperance, frugality, and virtue, and a frequent recurrence to fundamental principles.” There is no more important of such principles than the one that private rights should be guarded, so far as feasible, beyond even the possibility of arbitrary unjust interference, and, to that end, that all the checks upon abuse of power and balance between powers found in the constitution, read in the light of the unwritten rules of natural justice, should be maintained
The reasons suggested above were deemed by the Michigan court in Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, sufficient to compel rejection of the theory of implied statutory repeal in such circumstances as we have here. We can no better point what has been said than by quoting this language of that court:
“The exercise of such a power in such a manner, would be too despotic for any attempt at vindication in a country which boasts of the utmost liberty compatible with the safety of the state, and is entirely opposed to the genius of our free institutions. ... If it exists it places in the power of the governor, at his mere will or caprice; to remove all state officers, except legislative and judicial; and to fill their places with his own partisans, thus revolutionizing the whole administration. of the state. ... It is no answer to say that it may never be done. It is sufficient to know that it could be done. . .. . The impossibility of sustaining the governor’s action here' . . . appears by comparing its necessary results with the rest of our constitutional scheme of government. If he could remove respondent as he did . . . every officer of the government may be removed as soon as the legislature adjourned and every office can be .filled with the governor’s nominees and the whole system will be annulled.”
There are many authorities to the same effect. A good selection of them appears in appellant’s brief.
“If the intention of the legislature is clear, the courts, as in duty bound, will give it effect, but if it is doubtful, the doubt will be resolved against arbitrary power and in favor of a trial before judgment.” People ex rel. Maloney v. Douglass, 195 N. Y. 145, 87 N. E. 1070.
“It is a dangerous principle to apply power where it is not conferred by legislative authority in clear and distinct terms.” People ex rel. Brown v. Woodruff, 32 N. Y. 355.
Other courts have spoken in the' same way in support of the view that a repeal of the common-law safeguards in such
Turning now to the history of the statute, it is this': The system embodied therein, if. it did not originate, existed, in New York when the work was done for adoption here prior to 1849. It was incorporated into the revision of that year at ch. 11. Doubt was expressed on the argument whether it came directly from the New York model (art. IV, title VI, ch. 5, R. S. N. Y. 1836), or indirectly, being copied from ch. 15, R. S. Mich. 1846, but we see little if any reason for doubting the former. The phraseology and general arrangement follow much more closely, and the ideas as well, the New York than the Michigan statutes. Moreover, it is almost certain there was little acquaintance with the latter when the work was done here. The time between the two was brief. There was a later revision in New York (1846), but the time was too brief between its promulgation and the work here to afford opportunity for familiarity.
The general scheme of Michigan was doubtless taken from New York. All features — particularly provision for exercising the power of removal without specifying the manner of executing the power being associated with sections as to minor offices containing such specification — are in the Michigan statute, much the same as in ours. That feature was referred to by counsel for respondents in support of the view that a repeal of the common law was intended. That was the condition when the Michigan court dealt with the subject of removals in Dullam v. Willson, 53 Mich. 392, 19 N. W. 112. True, the statute was then declared unconstitutional upon the theory that it contemplated exercise of judicial power and
From what has been said it is evident that all the Michigan court said-in Dullam v. Willson as to the necessity for a common-law bearing in executing a power like the one in question, would bave occurred just the same bad the statute on the subject of removals been held valid. It was just as applicable to the statute as to the constitutional provision. It related to the nature of the power and not to the manner of expressing it. That shows, by necessary inference, that the idea did not receive any favor at all that a part of a system of statutes phrased like ours, even when associated with other parts providing for manner of exercising the power, could be properly read as inferentially repealing the common-law method of dealing with rights. On the contrary, sucb idea was most emphatically repelled.
It is useless to review, in detail, the citations by respondents’ counsel in support of their contention. We will refer especially only to the three relied upon from our own jurisdiction. They are the best of all, particularly because of inclination to follow, closely, our own decisions in case of the court having spoken upon the particular subject.
Eirst in order is State ex rel. Kennedy v. McGarry, 21 Wis. 496. The statute there concerned the removal of a minor county officer. It was a special statute dealing only with the administration of affairs in Milwaukee as to the inspector of the house of correction. It provided that “Said board shall also appoint one inspector for said house of correction, who shall be the principal keeper of said house of correction, and who shall hold his office for the term of two years, commencing on the first Monday of January succeeding his appointment, unless sooner removed by said board for incompetency, improper conduct, or other cause satisfactory to said board. The cause of such removal shall be particularly assigned in writing, and entered upon the minutes of said board, with the ayes and noes upon the adoption of the vote for such removal.”
Next we have State ex rel. Willis v. Prince, 45 Wis. 610. That involved power of a county board to remove its clerk “when, in their opinion, he is incompetent to execute properly the- duties of his office, or when, on charges and evidence, it shall appear to said board that he has been guilty of official misconduct, or habitual or wilful neglect of duty, if, in the opinion
All the statutory steps requisite to execution of the power seem to have been followed. Nevertheless the trial court reviewed the judgment of the board upon its merits, taking evidence, and reversed the board’s order.
This court found no jurisdictional defects. The proof of the charge was of such nature that the board, as matter of course, could take judicial notice of it, so to speak, as a court, in general, can of matters in its own official record. The cases showed that the board acted upon the refusal to satisfy all the conditions of its records. There was no question but that a statutory cause was assigned and that the evidence to support that cause was'before the board and all rights to which the officer was entitled had been accorded him. This court, necessarily, reversed the circuit court upon the ground that, since the county board did not commit any jurisdictional error, and acted upon its “opinion” with the facts before it, as it was expressly empowered to do by the statute, its decision was final. We are unable to see why counsel for respondents see anything in the ease, as it appears in the published report or aided by the briefs used on presentation of the case here, which in any way affects the question in hand in favor of respondents.
The last case is State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 148. That involved a removal under the civil service law as to state employees having more or less of an official status. The powqr was given to the appointing officer to remove “for just cause,” the act of removal to be characterized by his furnishing the person removed “his reasons for the same and allow him a reasonable time in which to make an explanation. The reasons for removal and the answer thereto shall be filed in writing with the commission.” The statute, as will be seen by its very language, repelled the
The New York model, as before indicated, empowered the governor to remove any of a specified class of officers, saying nothing whatever as to the manner of administering the power, while as to a class of officers having to do with handling of public moneys the most summary power of removal was given to the governor “in case it shall appear to him on the report of the comptroller that such treasurer or other officer has, in any particular, wilfully violated his duty.” Note the words “appear to him.” In this the peril of having a person,' after having shown unfitness for handling public moneys, in place at all, was appreciated. The statute dealt with a class of situations requiring prompt action — not waiting for anything except the report of the officer who from his position would most likely be correctly advised of the incompetence.
The feature aforesaid of the New York statute was adopted here in see. 7 of the 1849 statute. There was no change except such as was necessary to adapt it to difference in conditions. There was no such office here to conserve the interests of the state in respect to its finances, as comptroller. The feature made prominent in the New York statute by the words “appear to him on the report of the comptroller”' was preserved with like prominence by the words “may be re
Substantially all the officers mentioned in the next section of our act of 1849 were by the New York act made removable by the senate on the recommendation of the governor — no specification as to cause being made. That was there associated with another section giving the governor power to remove any officer appointed by him, no requirement being made as to cause or manner of executing the power. That scheme was changed for our system as to a class of officers, including the one in question, making them, for specified causes, subject to be “removed by the governor upon satisfactory proof.” While counsel for respondents argue that there is no difference between the terms “in case it shall appear to him on sufficient proof” in the section which deals with officers with respect to which the public interests would naturally require quick action, and the term “upon satisfactory proof” in respect to officers where no such harsh action would be likely to be necessary, still our judgment is not convinced. The latter class of officers includes important positions, public as well as private interests. Time would naturally be required for investigation, deliberation, and the careful application, in a judicial way, of judgment to proof in case of executing the power of removal as is customarily required in the exercise of such powers and was required, quite universally, at the time of the adoption of the statute as to important officers. Eor those the term was used: “be removed by the governor upon satisfactory proof.” We cannot escape the conclusion that a different method of executing the power may have been intended as to the first class than the second. True, it is the governor in the one case as a tribunal who is to be satisfied in any event, but why did the legislature use the term, confining the opinion specifically to the governor in one ease and inferentially in the other? Does it not seem that its pur
The result of our study of the statute which has been told in the foregoing quite briefly, considering the labor put upon the question, is that we cannot see in it any implied repeal of the common-law requirement for administering the power granted. If we could indulge in the premise with which the learned counsel for respondents started, that the repeal should or may be found if it be fairly inferable, and proceed to the end uninfluenced by “effects and consequences,” the rather striking difference between the two sections, and the dignity which the foundation principles of the common law and of the constitution as regards protection of property and personal rights against aggression and spoliation should have — must have, in dealing with such a subject, we might discover the legislative intent in the statute which the learned
VIII.
Thus we have seen the governor, under sec. 970, Stats., is a quasi-judicial tribunal exercising administrative with added judicial functions, and his acts are, to a certain extent, reviewable by the courts under “supervisory control power,”-— the power as to circuit courts being conferred by sec. 8, art. VII, of the constitution. State ex rel. Milwaukee Med. College v. Chittenden, 127 Wis. 468, 107 N. W. 500; People ex rel. Mayor v. Nichols, 79 N. Y. 582. An officer exercising such power, necessarily, as we have seen, acts in a quasi-judicial capacity and the matter of procedure must be of a quasi-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. As other courts have said, it is of little consequence what name is given to the
To preserve logical order of decision the scope of superintending control power as regards judicial tribunals may well be restated here. - It is no different when the governor acts as the tribunal than in any other ease. His competency to exercise the power is one thing, and exercise of it in a particular case without the conditions precedent thereto is another. The former is legal while the latter is not. Such a tribunal may have jurisdiction of certain subjects, but that alone does not give competency to act in any particular instance. There must be jurisdiction of the kind of subjects. That, in general, is referable to the written law. There must also be jurisdiction of the parties and the particular matter, obtained as provided by the written law in case of provision being made therefor therein, otherwise by the unwritten law. Having acquired jurisdiction in the particular instance, in proceeding to and inclusive of the finality the tribunal must keep within its jurisdiction. Eull exercise of the power involves application of honest judgment-^-reasonably fair human judgment — to the situation in hand to and inclusive of the close. No one with competency to act can properly do so in an arbitrary, unreasonable manner or beyond the scope of the authority. Action within the power is exercise of legal discretion. Action outside of it is not exercise of such discretion as the law permits, but is abuse of it. In the former
Thus the proceedings of our quasi-judicial tribunals are subject to the superintending control judicial power which extends to preventing usurpation, coercing activity without acting upon the judgment as to how to act, keeping the tribunal within its jurisdiction, and correcting excesses of it. This broad field of activity, as is apparent, does not invade at all the doctrine that the discretionary acts of such a tribunal are-not the subject of judicial review. There can be no discretionary acts except within the discretionary field. The extent of it is overstepped when the boundary of jurisdiction is. passed. Entrance there is into a forbidden field and all acts therein are, as indicated, violations of law and void.
The doctrine stated is elementary; though its emphatic restatement at this time and even reiterations of it for purpose of emphasis, seem appropriate to the case under its peculiar circumstances. Such doctrine has been applied here in a great variety of situations, as the following significant instances will show: Milwaukee I. Co. v. Schubel, 29 Wis. 444; State ex rel. Moreland v. Whitford, 54 Wis. 150, 11 N. W. 424; State ex rel. Wood Co. v. Dodge Co. 56 Wis. 79, 13 N. W. 680; State ex rel. Heller v. Lawler, 103 Wis. 460, 79 N. W. 777; State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046; State ex rel. Augusta v. Losby, 115 Wis. 57, 90 N. W. 188; State ex rel. N. C. Foster L. Co. v. Williams, 123 Wis. 61, 100 N. W. 1048; State ex rel. Milwaukee Med. College v. Chittenden, 127 Wis. 468, 517, 107 N. W. 500.
These cases amply illustrate that the dividing line between
The power of supervisory control in the situation suggested may be used in many ways to secure an adjudication as to the void-act. It may be dealt with directly by either of the juris
Thus, upon principle and authority, in this form of action, or any other where the matter becomes material, all questions which go to the validity of the decision may be considered, and such decision affirmed or reversed according to whether jurisdictional error was committed or not. All other questions are foreclosed by the exclusive jurisdiction of the tribunal. In Speed v. Detroit, supra, it was said, no matter how the question comes up, the thing forming the subject of the controversy being- vital, it would be a reproach to the law if courts were so infirm as to be obliged to treat it as valid, or even voidable. The void act being the result of excess of jurisdiction of a quasi-judicial tribunal, it is of very little consequence how its validity may be challenged, whether directly or indirectly.
There is no principle more sanctified by time and universality than the foregoing. As applied to the circumstances here the language of Lord Campbell in Ex parte Ramshay, 18 Q. B. 173, has been regarded as among the classics, and it is found quoted over and over again as expressing the rule in the absence of some unmistakable written law to the contrary :
“This instrument [the order of removal] is not absolutely conclusive. . . . The exercise of authority to dismiss from office ... is subject to the control of the courts. ... We*277 may assume that the chancellor' has duly exercised his jurisdiction till the contrary is proved. But we think that it would have been open to Mr. Ramshay to show that he was removed without notice of any charges against him, or without opportunity of his being heard in his defense, or that no evidence was adduced to support the charge, or that the complaints made against him were not of inability or misbehav-iour in his office, and were of a,nature, that, if proved or admitted, they could not disqualify him for office,” . . . within the meaning of the act of Parliament. “The chancellor has authority to remove a judge of -a-county court only on the implied condition prescribed by the principles of eternal justice. . . . He cannot legally act upon such an occasion without s'ome evidence being adduced to support the charges. Where the party complained qgainst has a fair opportunity of. being heard, where the charges if true amount to inability or misbehaviour [within the meaning of the law], and where evidence has been given in support of them, we cannot inquire into the amount of evidence or the balance of evidence, the chancellor, acting within his jurisdiction, being the constituted judge upon the subject.” , .
The jurisdictional requisites were phrased by Chief Justice Shaw in Murdock v. Phillips Academy, 12 Pick. (29 Mass.) 244, about this way: (1) Citation to the officer to appear and reasonable time therefor; (2) Notice to him of the charges to be answered; (3) Reasonable time assigned for proofs; (4) Liberty of counsel to- defend his cause and except to proofs and witnesses; (5) Conclusion upon the proofs and -answer. They may otherwise well be stated in language commonly used here thus: (1) Reasonable notice of time, place'.of hearing, and of charges constituting a proper subject-ior investigation; (2) Reasonable opportunity to defend characterized by full disclosure of adverse evidence according^) the established principles of fair judicial investigation to determine the justice of the case; (3) A decision upon proofs "of record supporting it in some reasonable view.
Testing the situation by the jurisdictional features suggested,-it would be doing the greatest injustice to the gov-
That several serious jurisdictional errors characterized the proceedings is too plain for argument. No one would seriously claim that such proceeding had hardly a semblance of the common-law requirements — a proceeding after the manner of such before a quasi-judicial tribunal. A conclusion that such a hearing was requisite to validity of an adverse determination practically ends the matter. There were these radical departures from the field of authority:
(a) There was practically no notice of a hearing with reasonable opportunity to prepare for and make a defense. The time of notice was less than an hour. Nothing short of a full day would do under ordinary circumstances. There were no extraordinary circumstances warranting a shorter time, but rather there were circumstances demanding a longer time. The office was one of the most important, as we have said, in the state, and the proceedings were instituted at a time of great official activity and requirement. The power of the governor in such a case is a substitute for the power of impeachment. What would be thought of the legislature if, upon one hour’s notice, it should proceed against the governor, in face of his solemn protest of unprepáredness for the
The precedents are few as to what is a reasonable notice 'and time to prepare for a hearing.in a case of this sort, but there- are some. A notice somewhat exceeding twenty-four hours'was held sufficient in People ex rel. Donovan v. Board of Fire Comm'rs, 77 N. Y. 153. The same time was passed without comment in Kennard v. Louisiana, 92 U. S. 480. In People ex rel. Schumann v. McCartney, 34 App. Div. 19, four hours’ notice was said to be equivalent to no notice at all. In People ex rel. Jordan v. Martin, 152 N. Y. 311, 46 N. E. 484, a rule requiring two days’ notice was treated as reasonable. A few hours’ notice is not consistent with due process of law. U. S. v. Fisher, 222 U. S. 204, 32 Sup. Ct. 37. In a serious matter one should not l)e required to answer the same or, even the next day. Roller v. Holly, 176 U. S. 398, 20 Sup. Ct. 410.
Nothing further need be said on this branch except that it must be considered that there was the merest mockery as to the element of notice.
(b) The right of appellant to a fair hearing, with reasonable opportunity to defend according to the essential of fair judicial investigation, was plainly violated. The governor had no right to act upon personal information not disclosed so as to afford fair opportunity to meet it. All should have been disclosed to appellant and made a matter of record. People ex rel. McAleer v. French, 119 N. Y. 502, 23 N. E. 1061; Rex v. Fishermen of Faversham, 8 Term Rep. 352; Capel v. Child, 2 Cromp. & J. 558. As said in Stale ex rel. Milwaukee Med. College v. Chittenden, 127 Wis. 468, 107 N. W. 500, the law contemplates that the members of such a tribunal will “proceed with dignity and fairness commonly expected of tribunals exercising judicial or quasi-judicial authority;” that they will “act upon proof of some sort reason
A reasonable opportunity to be beard in such an important matter, especially since no time for preparation was afforded, was not satisfied by tbe period of part of an hour, in defiance of appellant’s sworn statement tbat such time was entirely inadequate for bim to suitably present tbe evidence and tbe law. Reasonable opportunity to present evidence was not satisfied by closing tbe bearing while appellant’s most important witnesses were present and waiting to testify. Tbat competency to condemn appellant was about to expire by tbe intervention of a co-ordinate branch of tbe government, affords no excuse for tbe refusal to accord appellant bis constitutional rights. Tbe governor could not properly thus run a race with tbe approaching intervention without imperiling bis jurisdiction. To do so intentionally, to tbe manifest prejudice of appellant, could not appear otherwise than illegal. Purposely rushing such an important matter, one of tbe most important tbat could engage executive attention, to a finish before the legislature could have time to convene, frankly proclaiming bis purpose in tbat regard as an excuse for cutting off appellant without opportunity to present bis most important evidence, is too clearly jurisdictionally unfair to be consistent with tbe right to a fair bearing.
We will not pursue this matter. It seems certain tbe gov
(c) If we were able to reach this stage of tbe ease without discovering a fatal jurisdictional defect, there would be left tbe question of whether there was any legitimate basis in the evidence for the finding of fact upon which the removal order was grounded. I will now turn briefly to that.
The charge against appellant was in these words, following substantially the language of the statute: “Said Herman L. Ekern did serve on and under the political committee and as'manager of the political campaign” for one L. L. Johnson, who was then and there a candidate for the office of speaker of the assembly of the state of Wisconsin, contrary to the provisions of sec. 1666?/ of the Statutes.
It will serve no valuable purpose to restate the evidence. It appears in substance in the statement of facts which heads this opinion. Suffice it to say that I fail to discover proof to sustain the charge in any reasonable view of the statute. Certainly, it seems, the legislature did not purpose preventing the commissioner from having his choice among aspirants
On the face of the record, I feel bound to say, there is no real basis for the decision that appellant violated the statute.
If the proof justified a finding that appellant acted for Mr. Johnson, in the nature of a committee or as member of a committee, in the promotion of his candidacy, still I think there is no proof of there having been a political committee or manager, in the statutory sense. The law must be restricted to the common, ordinary meaning of words. Notwithstanding the ingenious argument of counsel to the contrary, it seems the legislature evidently used the term “political committee”
I am of tbe opinion not only that there was no evidence to. reasonably support tbe charge against appellant from any fair viewpoint, but that the charge itself was not within tbe statute. Tbe governor unwittingly traveled into tbe realms of doubtful construction, and that is not permissible in any case, especially not to maintain such an extraordinary power as that asserted. A meaning was adopted which it seems tbe legislature did not contemplate putting into law. Otherwise hardly any man of sufficient individuality to be competent to fill tbe high and responsible office of-commissioner of insur-
I am conscious that this opinion has been extended to a very great length, — I trust not too great. The questions, as I have before remarked, are of such overshadowing importance that the particular right involved, though of much dignity, is of little importance beside the proper decision of the important questions upon which its conservation depends. I have endeavored, to the best of my ability, to do justice to the court, to such questions, and to the vindication of that broad construction of private rights and the inviolability thereof believed to be laid down in the constitution, and the judicial power and willingness to use it to vitalize such conception.
We must remark in closing, that we have not been unmindful at any time of the regard which this court should have for the high office of governor. A solemn duty rests here in that regard. It is a matter of great delicacy to deal with the governor’s action and condemn it as void, but when duty requires it the duty must be performed. Any one who would hesitate when the duty is plain, because of the exalted station of the co-ordinate department of government, is unworthy to be a trustee of the judicial power delegated by the people. With due deference to the co-ordinate department and full appreciation of its independence within the scope of its authority, we must, with the courage which should characterize the supreme judicial office, vindicate the paramount authority here to determine what the law is, what acts constitute a violation thereof, and what are the legal consequences. The moment it shall be established that either of the other departments is independent of the judiciary in that field, the guard which the people placed in the constitution to conserve
To recapitulate the points in this opinion:
The governor within the scope of his authority is independent of the judicial department of the state. He can neither be compelled to act or not to act, or his act called in question.
If the governor acts beyond the scope of his authority and violates private rights, the injured party may appeal to the courts for redress and be entitled thereto regardless of the offici¡¿ status of the wrongdoer, though such status may have much to do with thp manner of redress.
The courts, except in some extreme cases of hardship not admitting of any other remedy, will not act coercively in respect to the governor; that not from want of power but on grounds of public policy.
The public policy which shields the governor from judicial coercion except in dire necessity, does not apply to his agents, though the court will not, from the same policy, act then co-ercively to restrain the vitalization of the executive will unless there is some clear, apparent necessity therefor.
If a person takes office by lawful means and remains therein in good faith believing that he has, de jure, right to do so, and his possession is characterized by all the usual appearances of right, he has color of authority and has de facto status until the end of his term or some other has been duly declared successor to him in the particular office.
A person in possession, under the circumstances before stated, does not lose his de facto status before the end of the term for which he was elected or appointed by,-reason of the
Subject to the exception suggested, a person in good-faith possession of a public office and to all appearances entitled, thereto de jwre> is at least a de facto officer.
If a person has possession of an office and is entitled, thereto de jure or de facto, or there is a fair question as to-whether he has not, at least, the latter status, he is entitled to protection by injunction against being dispossessed by violent and unlawful means.
The remedy by action for injunction may be used in the circumstances stated in the foregoing, though there be no action pending to try the title to the office and the only purpose-is to preserve the existing condition of things until the adverse claimant shall have established his right by legal means-
A controversy between rival claimants for an office as to. which has the title is not a proper primary subject matter for equitable interference, but the right to immunity from being dispossessed by violent and unlawful methods is such a subject matter.
Though an equitable action will not lie to try title to an office, where the question of title is incidental and germane to some proper subject matter of primary interference in equity the incidental matter may be litigated to effect, under the rule that a court of equity having jurisdiction of the parties and a proper primary subject matter for -a legitimate purpose may retain jurisdiction to do full justice between the parties, including all the incidental germane matters, and,, even, when the action is grounded in good faith at the start, if the primary subject matter entirely drops out for failure-of proof.
Where the power of summary removal from public office-
Where a person holds a public office ad libitum purely, he may he removed at the pleasure of the officer having the power ,of removal.
Where the power of summary removal is expressly or by necessary inference conferred by statute, the removal may occur without hearing except such as the statute expressly requires.
■Where a person holds office for a term fixed by law, but is subject to removal for cause, or a particular cause, unless the written law expressly or by necessary implication provides to the contrary the power of removal must be exercised upon charges satisfying the calls of the statute, reasonable notice of the charges and the time when the hearing will be had in respect thereto, reasonable opportunity to be heard in p.erson, by counsel,, and by witnesses, to meet the adverse witnesses, hear their testimony and cross-examine them, and know all of, and have opportunity tb meet, the proofs to be considered, — in short, a hearing after the manner for fair judicial investigation and determination accordingly.
The right to hold and enjoy a public office is of'pecuniary value and in a broad sense is a .property right and matter of personal liberty within the protection of the declared purpose •of the constitution, within art. Y and see. 1, art. XIV, of the amendments to the federal constitution.
Due process of law, within the constitutional guaranties, limits the exercise of the power o'f removal to those proceedings expressly provided by statute, or, where none are so provided, to the methods which by the common law are required .according to established principles of natural justice.
Whether the governor, exercising the power of removal, acquired jurisdiction to act and proceeded to a finality without
In exercising the power of removal for cause and upon notice and hearing, the governor acts as a tribunal and, the same as any other inferior body exercising quasi-judicial authority, his act may be reviewed, under the supervisory control power of the court, for j urisdictional error whenever the same comes in question directly or collaterally.
Whatever a quasi-judicial tribunal does within its jurisdiction, regardless of the mere judicial error committed, is final, but any material excess is jurisdictional and renders the result void.
An inferior tribunal required to decide upon evidence commits a clear violation of law in deciding without any evidence or contrary to any reasonable view of the evidence, and such violation is jurisdictionally fatal to the result.
The prohibitory clause of sub. 2, sec. 196 6y, as to the commissioner of insurance not serving on or under any political committee, or as manager for any political campaign, has reference to those committees and campaign activities recognized and regulated by statute, particularly by the several sections of the Corrupt Practices Act. Sec. 94 — 1 to sec. 94 — 39. It has no reference to mere personal preferences or favors, or activities, for one of a body elected as the result of a political campaign, as presiding officer of the body.
The facts upon which the decision is grounded, as to the governor’s jurisdiction to make the order of removal, are undisputed and indisputable. All that is shown by the record as made in behalf of respondents. Therefore, it would be a useless delay in the administration of justice and prejudice to public interests to remand this case for any less purpose than a speedy termination of the litigation by judgment on the merits according to the prayer of the complaint, and, as germane thereto, judgment that at the time of the commence
By the Court. — So ordered. .. ...
Concurrence Opinion
I concur in the opinion of Mr. Justice Mae-shall to this extent:
(1) Sec. 970, Stats., under which the removal of the. appellant was attempted, authorizing removal for cause proven, must be construed to require due process of law, i. e. charges, notice thereof, and a hearing. State v. Smith, 35 Neb. 13, 52 N. W. 700, 16 L. R. A. 791.
(2) There was in this case less than an hour’s notice, and the governor refused to hear the appellant’s witnesses Johnson and Rosa. This was insufficient as to notice and inadequate as a hearing, consequently the attempted removal was without jurisdiction and void. U. S. v. Fisher, 222 U. S. 204, 32 Sup. Ct. 37.
(3) Thera being no lawful' removal there was no vacancy, hence no power to appoint a successor. The appellant is the de jure commissioner of insurance and entitled to an injunction to restrain trespasses, actual and threatened, for the purpose of seizing upon his office, the property and emoluments thereof.
(4) The governor has no power, jurisdiction, or authority, as against even a de facto officer in possession of the office, to install the appointee of the former before a judgment in quo warramio in favor of such appointee.
To avoid unseemly clashes between co-ordinate branches of the government and to avoid the condition which must necessarily ensue should the governor personally violate the in-junctional order, the court will not unnecessarily issue an in-junetional order against the governor. But the appellant is entitled to such order against the subordinates acting under the order of the governor in the unlawful attempt to wrest
There is doubtless much good law and much elevated and inspiring sentiment in the opinion of Brother Maes hall, but .1 have not had time to go over it with that care which ought to be preliminary to a formal approval of all that is said therein.
Dissenting Opinion
(dissenting). The order appealed from should be affirmed for two reasons: (1) Because the certificate of appointment held by Mr. Anderson gave him the prima, facie right to the office and the right to the possession thereof until the question of title was tried in an appropriate proceeding brought for that purpose, and (2) because the governor had the right under sec. 970', Stats., to remove Mr. Ekern without hearing or notice, and the courts have no jurisdiction to pass upon the sufficiency or insufficiency of the evidence on which action was taken, and Mr. Anderson was both the de facto and de jure commissioner of insurance.
Practically every substantial question of law involved in the case, with possibly a single exception, has already been passed upon by this court. This being so, the decisions of foreign jurisdictions are of little consequence unless they suffice to convince the court that it should overrule its former decisions. I think our decisions and our statute law meet the case we have before us fully and fairly, hence this dissent.
The title to a public office cannot be tried in an equity action. Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169; State ex rel. Lochschmidt v. Raisler, 133 Wis. 672, 114 N. W. 118; State ex rel. McCoale v. Kersten, 118 Wis. 287, 95 N. W. 120; State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296; State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628.
An injunction will not lie to preserve the statics quo in favor of a person in possession of an office and making a good-faith claim of title thereto, unless it clearly appears that
The holder of a certificate of election is entitled to the possession of an office pending the trial of title thereto as against an incumbent in possession who_ makes a good-faith claim of title. This was expressly decided in La Pointe v. O’Malley, 46 Wis. 35, 55, 50 N. W. 521, where it is said that when the canvass “shows the election of an individual to a particular office, and he qualifies within the time and in the manner prescribed by law, he is entitled to the office as against every other person laying claim thereto, until the result of the election -so declared is set aside by the judgment of some competent court in a direct proceeding for that purpose. In such
The same question came before the court in State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296, and it was again held that a certificate of election carried with it the- prima fade right to the office as against an incumbent in possession claiming title, and that such' prima fade right included the right to the possession of the office pending the trial of title thereto. After stating the rule the court uses the following language: “To this, we think, there is but one exception, and that is when the office is already filled by a de facto■ officer.” Page 638. This exception is carried into some of the subsequent cases: State ex rel. McCoale v. Kersten, 118 Wis. 287, 293, 95 N. W. 120; State ex rel. Rinder v. Goff, 129 Wis. 668, 683, 109 N. W. 628. It is fair to assume that the court in these cases used the language of the Oates Case in the light of the explanation there given as to what was meant by it. It is there said in effect that the words “de facto officer” did not refer to one who might be a de facto officer as to the general public. Oates was in possession and was clearly such an officer, and he was ousted by mandamus in favor of the relator, who held the certificate of election. He was ousted because it was said that as to the relator, Jones, he was not a de facto officer. So the decision is that a claimant in possession is not a de facto officer as against the certificate holder and therefore has no right of possession as against him. Not only are the cases of La Pointe v. O’Malley and State ex rel. Jones v. Oates direct authority to the point that the holder of a certificate of election is entitled to the possession of the office pending a trial of title thereto as against an incumbent in possession, but the subsequent cases of State ex rel. McCoale v. Kersten, supra; State ex rel. Rinder v. Goff, supra;
These eases state the law as it should be. Where there is a controversy between an incumbent in possession and one holding a certificate of election, one'or the other should hold the office until the controversy is settled. Possession at best is only slight evidence of title. ‘ As between two such claimants it is eminently just and reasonable to give some effect to the certificate of election and to say that it carries the right to the possession of the office until the title is determined. This is not only a just rule, but one that avoids unseemly struggles to obtain or retain possession. The party in possession forfeits no rights and suffers no injury by surrendering possession ad interim. Every one had the right to suppose that the rule of law was firmly grounded in our jurisprudence until the present controversy arose.
I do not. think that any satisfactory reason can be given why the rule referred to should not apply here. A certificate of appointment from the executive, where the law empowers him to appoint, is entitled to the same weight and effect as is a certificate of election from a canvassing board in the case of an elective office. If- one gives the right of possession, surely the other does. So far as I have been able to ascertain, there is no conflict in the cases on the point. In fact the decisions go further and hold that mandamus will lie to put the holder of a certificate of appointment in possession of the office pending the trial of title thereto and will oust the party in possession although he claims to be legally entitled to the office. In re Sells, 15 App. Div. 571, 44 N. Y. Supp. 570; Conklin v. Cunningham, 7 N. M. 445, 38 Pac. 170; Beebe v. Robinson, 52 Ala. 66; Casey v. Bryce, 173 Ala. 129, 55 South. 810 ; Hubbell v. Armijo, 13 N. M. 482, 85 Pac. 1046; Cameron v. Parker, 2 Okla. 277, 38 Pac. 14; Elledge v.
It Ras been urged that in tbe O’Malley and Oates Oases the terms of office under which the incumbents gained possession of the offices had expired and that the controversies arose over new terms, while in the instant case Mr. Ekerris term had not expired, and that therefore there is a well grounded distinction between the former cases and the present one. A number of the cases just cited dealt with removals made during a term of office. The logic of the argument is not convincing. The governor had the right to terminate the term of office of the incumbent for certain causes. His order of removal is entitled to as much weight and consideration as is his certificate of appointment. There had been a prima facie valid removal of Mr. Ekern as well as a prifna facie valid appointment of Mr. Anderson. Until the de jure right could be determined, no injunction should issue to preclude the appointee from taking office.
For the reasons stated, if for no other, the circuit court properly dissolved the injunction. I think it was Mr. Ekerris duty under the law to have surrendered the office under protest and to then bring his action in ’an orderly way to try title. If successful, he would lose no right by so doing, not even the right to collect the salary and emoluments of the office while he was out of possession.
The next and the only question which I desire to discuss at any length is one of statutory construction. At the request of the court a reargument was made on the question of whether “due process of law” was observed in removing Mr. Ekern. I have never conceived that the question of “due process of law” was involved in the slightest degree. If the governor followed the statute in making the removal, it was valid. If he did not, it was a nullity. The legislature which creates an office has plenary power to provide how removal shall be
An office is not property, nor is the right to hold office a vested right. State ex rel. Starkweather v. Superior, 90 Wis. 612, 619, 64 N. W. 304; State ex rel. Cook v. Houser, 122 Wis. 534, 603, 100 N. W. 964; State ex rel. Wagner v. Dahl, 140 Wis. 301, 303, 122 N. W. 748; Crenshaw v. U. S. 134 U. S. 99, 10 Sup. Ct. 431, and cases cited. The guaranty of “due process of law” by the Eifth and’Fourteenth amendments to the federal constitution is extended only to life, liberty, and property. The right to hold an office created by legislative act does not involve any of these three things. If due process of law is involved at all in the present case, then a removal in whatever manner the statute provides is due process of law.
As is well said in State ex rel. Buell v. Frear, 146 Wis. 291, 298, 299, 131 N. W. 832:
“The privilege of holding a public office is not in its nature of the class of rights which are guaranteed by the constitution as the natural and inalienable rights of every citizen. It has never been treated as a natural right in our governmental system. It is in its nature a privilege which is extended to the citizens of the state upon such conditions and terms as the people in their sovereign capacity may determine.”
The case of State ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172, was distinguished from the StaA-kweaiher Case in that it was there decided that a license to sell liquor was a vested property right of which the owner could not be deprived without due process of law, and that in a proceeding to revoke the license the town chairman, who had hired a minor to purchase liquor, was disqualified from sitting on the trial of the saloonkeeper.
The decision in the Starkweather Case was vigorously attacked by the able counsel who appeared for the relator in State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964, and was just as vigorously defended by the court, speaking through Mr. Justice Mabshall. The discussion will be found on pages 573 to 581 of the opinion. I may be pardoned for quoting a few excerpts from it:
“We recognize the doctrine of the Starkweather Case to be now, after the lapse of nearly ten years and the approvals thereof indicated, firmly established. The maxim stare de-cisis et non quieta movere must prevail against all efforts to disturb it.” Pages 574, 575.
And again: “Can there be any possible doubt as to the truth of the proposition, that what belongs to the people to do with as they deem best, those things respecting which their will is unrestrained by any constitutional limitation, they can grant upon the condition, among others, that the enjoyment thereof shall be solely secured by such remedies and administered by such tribunal as they may see fit % If there is, then the scores of boards and councils and commissions which every day act judicially in respect to such matters, without a thought on the part of anybody conversant with the law that*299 their decisions are subject to judicial review, should have im-jmediate legislative attention. Does not every board of review pass upon, or have power to do so, the valuation for purposes of taxation of the property owned by the relatives and business associates of its members ? And how about the assessor, who sits as a member of such board, though its function is to pass upon, in a judicial way, his own work ? Many other illustrations quite as striking- could be given, all demonstrating the decision in the Starkweather Case is in perfect harmony with the existing, order of things, generally, and showing that the disquisitions found in some judicial literature respecting purity of judicial methods, as to members of ■a tribunal such as the one in question, applying to them the test for a judge as to qualifications for the performance of his official duties, are all wrong. Such things sound well to the ear, as do all lofty sentiments regarding the preservation of spotless judicial integrity and shielding the courts even from danger of every opportunity for a well grounded suspicion as to their decisions being influenced by ulterior matters, hut when illegitimately applied to a mere ministerial officer in the performance of administrative duties, merely because he is clothed with some discretion in the matter, denominated quasi-judicial authority, are liable to lead to judicial error and to promote harmful impressions among the people.” Pages 575, 576.
Speaking further of the nature of the power of a political committee to determine who were the nominees for office, the discussion proceeds:
“But we choose to rest the competency of the members of such committee on the broad doctrine of State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304. It was a mere administrative body, not a court in any sense, nor were its members expected to exercise the functions of judges, strictly speaking. The matter to be dealt with was a mere legislative privilege, grantable upon any condition the legis-. lature saw fit to impose. The tribunal was given unqualified authority in respect thereto, so long as it proceeded within its appropriate sphere. Hone of the rules disqualifying judges-*300 or jurors Rave any application to such, a situation.” Page 581.
If it were possible to approve of the holding in the Stark-weather Case that the power to remove an officer was administrative, by emphatic iteration and reiteration, the doctrine was approved in State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964. It had already been quoted with approval in Nehrling v. State ex rel. Thal, 112 Wis. 637, 639, 88 N. W. 610, and was subsequently approved in State ex rel. Wagner v. Dahl, 140 Wis. 301, 303, 122 N. W. 748. The point expressly decided in the eases referred to was decided sub silentio or else overlooked in State ex rel. Gill v. Watertown, 9 Wis. 254; State ex rel. Kennedy v. McGarry, 21 Wis. 496; and State ex rel. Willis v. Prince, 45 Wis. 610. The question should be at rest in this state so far as the courts are concerned if the doctrine of stare decisis means anything. It is true it is said in the Starkweather Case that the administrative power of removal must be exercised in a judicial manner. This expression can mean nothing more than that, when notice and hearing is required by law as it was in that ease, the proceeding should be carried on somewhat like court proceedings.
So.I think that clearly the only question arising on the point under consideration is: Does the statute require the giving of a notice of hearing and an opportunity to be heard as a condition precedent to removal? If it does not, whatever was accorded to the plaintiff in the way of a notice and hearing was given as a matter of grace and not of right, and he has no cause to complain about the inadequacy of the opportunity afforded to be heard. In this connection it will be observed that the statute does not expressly provide for notice or hearing, and if either is required it must be read out of the statute by implication. It may be further observed that such requirements cannot be interpolated into the statute unless it
Sec. 970, Stats., under which the plaintiff was removed, was first enacted by the legislature of 1849 as part of a comprehensive scheme governing and regulating removals from office. It has been continuously on our statute hooks since that time without material amendment. The legislative intent with which we must deal is that of the legislature which enacted the original law. The entire enactment referred to embraces secs. 4 to 10, inclusive, of ch: 11, R. S. 1849, and is as follows:
“Sec. 4. The governor may remove from office any sheriff, coroner, register of deeds, or district attorney, giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.
“Sec. 5. The judge of the circuit court shall have authority, in term time or in vacation, to remove any clerk of the circuit court in any county within his district, when in his opinion he is incompetent to execute properly the duties of his office; or when on charges and evidence such judge shall be satisfied that he has been guilty of official misconduct, or habitual or wilful neglect of duty, if, in the opinion of such judge, such misconduct or neglect shall be a sufficient cause for removal; but no such clerk shall be removed for such misconduct or neglect, unless charges thereof shall have been preferred to said judge, and notice of the hearing, with a copy of the charges, delivered to such clerk, and a full opportunity given him to be heard in his defense.
“Sec. 6. The board of supervisors of any county may remove the clerk of their board, when in their opinion, he is incompetent to execute properly the duties of his office; or when on charges and evidence it shall appear to said board that he has been guilty of official misconduct, or habitual or wilful neglect of duty, if in the opinion of said board such*302 misconduct or neglect shall be a sufficient cause for removal; but no such clerk shall be removed for such misconduct or neglect, unless charges thereof shall have been preferred to said board, and notice of the hearing, with a copy of the charges delivered to such clerk, and an opportunity given him to be heard in his defense, and in no case shall such removal be made unless two thirds of all the supervisors entitled to a seat in such board shall vote therefor.
“Sec. 7. Any collector or receiver of public moneys, appointed by the legislature, or by the governor, by and with the advice and consent of the senate, or of both branches of the legislature, except those officers for whose removal provision is otherwise made by law, may be removed by the governor, in case it shall appear to him on sufficient proofs, that such collector or receiver has in any particular wilfully violated his duty.
“Sec. 8. All officers, except senators in Congress and those specified in the preceding section, who are or shall be appointed by the governor, by and with the advice and consent of the senate, or of both branches of the legislature, or by the legislature without the concurrence of the governor, may, for official misconduct, or habitual or wilful neglect of duty, be removed by the governor upon satisfactory proofs, at any time during the recess of the legislature, and the vacancy filled by appointment made by him, until such vacancy shall be regularly supplied; but no such appointment shall extend beyond twenty days after the commencement of the next meeting of the legislature.
“Sec. 9. All officers who are or shall be appointed by the governor for a certain time, or to supply a vacancy, may be removed by him.
“Sec. 10. All officers, except senators in Congress, who are or shall be appointed by the legislature, or by either branch thereof, may be removed by such body or branch making the appointment.”
Sec. 4 of the above statute is now sec. 968 of our Statutes; sec. 5 is amended and incorporated in our present sec. 973; sec. 6 corresponds to our present sec. 974; sec. 7 to our present sec. 969; and sec. 8 to our present sec. 970, being the sec
It will he observed that sec. 4 covers the constitutional offices of sheriff, coroner, register of" deeds, and district attor-nej, which were also elective 'offices. It was there expressly provided that the removal could only be made after such an .officer was furnished a copy of the charges against him and was given an opportunity to he heard in his defense. So that the matter of requiring a notice and hearing when they were considered desirable was sharply called to the attention of the legislature in the first section of the act which dealt with removals. This provision was in fact drawn in the language of sec. 4 of art. VI of the constitution, which had been adopted the preceding year.
. Sec. 5 also provides for the removal of a constitutional and an elective officer, to wit, the clerk of the court. The constitution was silent as to how he should he removed, so that the legislature might make such provision for it as was deemed wise. See sec. 10, art. XIII, Const. The section provided for two classes of causes for removal: (1) incompetency; (2) official misconduct or habitual or wilful neglect of duty. It was clearly the purpose of the legislature to authorize the summary removal of the clerk for incompetency without notice or hearing, because the statute, required neither when removal was made for this cause. As to the second class of causes, however, the statute carefully specified that the clerk coul,d not he removed for “misconduct” or “neglect” unless “charges thereof shall have been preferred” and “notice of the hearing with a copy of the'charges” he “delivered to such clerk and a full opportunity he given him to he heard in his defense.” Here again the question of notice and hearing was
Sec. 6 dealt with the removal of county clerks and vested the power of removal in county boards. Here again if the removal was made for incompetency no notice or hearing was required. If made for “official misconduct or habitual or wilful neglect of duty,” it could only be made on notice and hearing. We have in this section a plain statement that notice and hearing should be given in the cases where it was desired that they should be given, and an omission of any reference to either in the case where manifestly it was not intended that they should be required.
Sec. 7 brings us to appointive officers and provides for the removal by the governor of any collector or receiver of public moneys appointed by the legislature or by the governor with the advice and consent of the senate, except as otherwise provided for, “in case it shall appear to him on sufficient proofs” that such officer “has in any particular wilfully violated his duty.”
In making a removal for incompetency under sec. 5 the
Sec. 8 of the act of 1849, being our present sec. 970, under which the governor acted in the instant case, provided that all officers, with certain designated^ exceptions, who are or shall be appointed by the governor with the advice and consent of the senate, may “for official misconduct or habitual or wilful '
Tbe difference between secs. 7 and 8 in reference to tbe method of removal is one of verbiage only. Under sec. 7 the governor may remove on “sufficient” proofs and under see. 8 on “satisfactory” proofs. Tbe two words in this connection are practically synonymous and interchangeable. What is sufficient in tbe way of proof is ordinarily satisfactory, and what is satisfactory is sufficient. If this be not so, and there is a difference in tbe degree of proof required in tbe two cases, there is nothing in their use which indicates that a notice and bearing must be given in tbe one case and may be refused in tbe other. Tbe proofs required must be sufficient or satisfactory to tbe governor and to no one else. They may be both sufficient and satisfactory and even conclusive without either notice or bearing. If tbe legislature bad intended that notice and bearing should be required under sec. 8, it would have said so as it did in reference to all removals made under sec. 4 and as it did as to two of tbe three specified causes for removal under secs. 5 and 6. Tbe matter of notice and bearing was present in tbe legislative mind when tbe original law was passed. Tbe fact that they were required in some cases and omitted in others is proof conclusive that tbe legislature did not desire to require them in cases where they were not expressly provided for. In such a case silence is as plainly exclusion as tbe use of express words would be.
I can only read out of tbe law of 1849 tbe conclusion that sheriffs, district attorneys, coroners, registers of deeds, clerks of tbe courts when removed for official misconduct or wilful neglect of duty, and county clerks when removed for like causes, could only be removed on notice and bearing, because tbe legislature has said so in plain words, and that all other officers whose removal was provided for might be removed without notice or bearing, because tbe legislature carefully
The scheme for removals was comprehensive and carefully worked out. As to elective and constitutional officers, safeguards were thrown around removals, with two exceptions. Clerks of the courts did their work under the eyes of the circuit judges, and when a judge became satisfied that a clerk was incompetent he might summarily remove him. .Clerks of county boards did their work under the eyes of county boards, and such boards were empowered to summarily remove for incompetency. As do appointive offices created by the legislature, the power of removal as to all officers provided for in secs. 7, 8, and 9 was .vested in the chief executive officer of the state. As to those provided for in sec. 10 the power.of removal was vested in the legislature itself. Removals under secs. 7 and 8 could only be made on sufficient or satisfactory proofs. Removals under secs. 9 and 10 might be made at will without proofs and without notice. I think there is just as much reason for saying that a removal made under either of the two latter sections^must be made on notice and hearing as there is for saying that notice and hearing is required under sec. 7 or sec. 8 or for removals for incompetency under secs. 5 and 6.
It is fair to assume that the legislature thought that a person who could be trusted to fill the office of governor could be trusted to deal fairly with officeholders whom he was empowered to appoint, and that cases might arise where prompt action was-necessary for the public good, and that it was not wise to tie the hands of the governor when such action might well work to the detriment of the state. Governmental power must fie vested somewhere, and the fact that it may be abused does not prove that the power must not be conferred. It would seem quite as logical to give a notice and hearing to
It has, I think, been the uniform practice of the legislature to expressly provide for a notice and hearing as a condition precedent to removal from office, where it was intended that no removal should be made without such notice and hearing.
By sec. 381, Stats., the board of regents of the state university have the power to remove the president or any professor, instructor, or officer of the university when in their judgment the interests of the university require it.
Sub. 3 of sec. 404 confers a like power on the board of normal school regents. This latter statute was construed in Grillan v. Board of Regents, 88 Wis. 7, 58 N. W. 1042, and it was held that the power of removal was plenary and could be made at pleasure and without cause.
Sec. 397 provides that any normal school regent may be removed for cause, upon reasonable notice, by a vote of two thirds of all of the regents.
Sec. 507 provides for the removal of school district officers, and that they must be removed on written charges which must be served on such officers, and can only be removed after a notice and hearing upon the charges.
Sec. 772a provides that the supervisor of assessment may be removed by the county board for incompetency, fraud, or wilful neglect of duty, on charges preferred and ten days’ notice in writing of the hearing thereon, and that a copy of the charges must be served with the notice.
Sec. 925 — 36 provides for the removal of certain city officers- by the common council. It expressly states that no such officer shall be removed except for cause, nor unless charges are preferred against him and opportunity given him to be heard in his defense.
Sec. 925m — 309 provides for the removal of certain officers in cities operating under the commission form of government,
Sec. 976 provides for tbe removal of town officers and requires that removal be made only after notice and bearing.
Sec. 990 — 22 provides for'the removal of persons in tbe employ of tbe state under tbe civil service law. Tbe appointing officer is required to furnish bis subordinate the reasons for removal and to allow him a reasonable time in which to make an explanation, and such reásons with tbe answer thereto are required to be filed with tbe civil service commission. Tbe cause of tbe removal must be neither religious nor political.
Tbis statute was construed in State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748, and it was held that tbe power of tbe removing officer was plenary so long as legal cause for removal was specified.
Sec. 975 provides for tbe removal of a county superintendent of schools. Tbe statute requires it .to be made on notice and bearing.
Secs. 1059a and 1059b provide for tbe removal of assessing officers and members of boards of .review, and tbe following section provides that such removal be made after notice and bearing.
See. 1231 empowers tbe supervisors of a town to remove tbe superintendent of highways for neglect or refusal to perform bis duties. It contains no requirement for either notice or bearing. ‘
Sec. 1747 — 3 provides for tbe removal of grain and warehouse commissioners “for cause by tbe governor in tbe same manner as county officers may be. removed.”
Sec., 1747 — 30 provides for tbe removal of grain inspectors by tbe grain and warehouse ■ commission whenever they have been guilty of any improper official act or are found to
Sec. 1797- — 1 provides for tbe removal of railroad commissioners and that sucb removal must be made on notice and bearing.
There are a number of other statutes which provide for removals, but these serve to illustrate that the legislature has had in mind the matter of requiring removals to be made on notice and hearing when it was considered desirable that they should be so made, and that in cases where neither notice nor hearing is provided for none need be given. State ex rel. Wagner v. Dahl, supra.
In the very first case which arose in this state under a statute like our sec. 970, Chief Justice Dixon, speaking for the court, stated clearly and concisely just what the power was of the body in which the right to remove was vested. The board of supervisors of Milwaukee county removed the inspector of the house of correction during his term, which was fixed by law at two years. The board was authorized to remove for “incompetency, improper conduct, or other cause satisfactory to said board.” The court held that the words “other cause satisfactory to said board” meant a kindred cause, so that in fact the statute permitted a removal for incompetency, improper conduct, and other like causes. The statute was silent in reference to giving a notice and hearing to the accused official. MeGarry insisted that he was entitled to have the removal proceedings carried on in a judicial way, and that the order of removal was void because this had not been done. Unsworn statements prejudicial to the accused were received and the right of cross-examination was denied. If a hearing means anything, it means that the right to cross-examine exists. The court disposed of the contentions made
“That part of the answer in which it is alleged that persons w'ere examined and made' statements before the hoard touching the charges made against the defendant, but without being sworn as witnesses, and that the defendant was not permitted to cross-examine them, is also irrelevant. It was certainly very proper for the board to notify the defendant of their intended proceedings, and to allow him to appear and take part in them, and to produce and examine witu esses, which it seems he did do; hut the hoard was not hound to do so. It might have proceeded to order his removal ex parte, and without notice to him, and without any examination of witnesses, formal or otherwise; and i-f it could have done that, then it could dispense with the oath to those persons who were examined, or refuse to allow the defendant to cross-examine. The most that can he said of it is, that it was a refusal to extend to him the same degree of consideration and favor which was shown when he was notified to appear and permitted to examine witnesses in his own behalf. The justice or injustice of the proceeding are not matters which can he examined here.” State ex rel. Kennedy v. McGarry, 21 Wis. 496.
I cannot think that there is any such difference between the statute involved in the Kennedy Case and the one involved in the present case as would justify the placing of a different construction on the latter from what was placed on the former. Sec. 910 provides for removal for official misconduct and for wilful or habitual neglect of duty. The statute in the McGarry Case provided for removal for incompetency, improper conduct, anil other like causes. See. 970 provides that the removal must he on proof satisfactory to the governor. The other law contained no such provision. But, as already stated, proof satisfactory to the governor does not mean proof taken after a notice is given and a hearing is had. The notice and hearing that is required by many statutes is for the protection of the officer, not for the informa
The other eases in this court dealing with the question are in entire harmony with the McGarry Case. A review of them will he found in State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748. I think the case of Nehrling v. State ex rel. Thal, 112 Wis. 637, 88 N. W. 610, is in harmony with the other decisions of this court. Under the statute there involved a removal might he made for “misdemeanor, incompetency, or inattention to the duties” of the office. The statute was silent as to how the proceeding should he carried on. The plaintiff was permitted to he heard, but made pretty much the same complaint about the character of the hearing that McG-arry did in his case. The court said: “The act nowhere requires or suggests that any witness shall be produced, much less sworn and exámined, in the investigation resulting in such removal. The act seems to contemplate a summary investigation by the trustees, — of course giving such official an opportunity to be heard.” This last clause is clearly obiter and is no less clearly ill considered and inconsistent with what precedes it. An investigation is not summary where a party is given an opportunity to he heard, and giving such an opportunity is wholly inconsistent with the idea that the party may not produce or swear witnesses in his behalf.
The discussion on this branch of the case has already been carried to too great a length. Under what I believe to he a fair construction of sec. 970,1 do not think the plaintiff is entitled as of right to a notice and hearing, no matter to what extent fairness would demand it in the instant case. The question is one for the legislature to settle and not the courts. The decisions of this court I think fully justify my interpretation of the statute. This case should not be confounded
Where the law confers the administrative duty upon an officer to remove another from office 'for a specified cause or causes, and no provision is made for a review of his decision on the questions of fact involved, such conclusion is final, and the only judicial question is whether the cause assigned was a legal cause. Stale ex rel. Kennedy v. McGarry, 21 Wis. 496; State ex rel. Gill v. Watertown, 9 Wis. 254; State ex rel. Willis v. Prince, 45 Wis. 610; State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748; State ex rel. Davern v. Rose, 140 Wis. 360, 122 N. W. 751; State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964; State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304; State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587; State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046.
If notice and hearing were not required in the instant case, the only question which the court, could inquire into was whether or not the cause for removal specified in the order was a lawful one.
Where the governor removes an officer and assigns a statutory cause for removal, the courts will not place him on trial in reference to the motives which actuated him and will not pass upon his bad faith or alleged arbitrary action in making the removal. Where a co-ordinate department of government performs an authorized duty, the courts have no more right to impugn the motives which actuated such-department than would the department in question have the right to impugn the motives of this court in deciding a case which properly came before it. This was decided at an early day in reference to the legislative department of government in Fletcher v. Peck, 6 Cranch, 87, and has never been departed from by the courts. It was also decided at an early day in this court
“But it would be alike unbecoming and unwarranted on our part to inquire into the motives of the governor in the exercise of a discretion given to him alone, in any case. He is responsible for his acts in such case, not to the courts, hut to the people; and whenever experience shall have demonstrated the impolicy or impropriety of clothing the chief executive officer of the state with a power of removing inferior officers, at his discretion, or ‘when he shall believe the best interests of the state demand such removal,’ it may then be the time for the people, in whose hands alone is the remedy, to eradicate the supposed evil. But courts are created to construe the laws as they are, not to declare what they should be.
“It is no part of our duty to impugn the action of the governor in such a case, but on the contrary, we are bound to hold him justified in whatever conclusion he may have formed. In this case, therefore, whatever may have influenced the executive in the removal of Mr. Taylor, has no claim to our attention; it is wholly foreign to the question before us, and can have no bearing upon it.”
The case is an important one, dealing as it does with the power of a co-ordinate department of the government. It would be more satisfactory if the decision could he made by a unanimous court. The case has been very fully considered and no doubt each member of the court has given it the best thought and study he is capable of. I cannot bring myself to see the law as does the majority of the court, and duty impels me to say so and to refuse to assume responsibility for the decision reached. I have not sought to follow or discuss the reasons or arguments contained in the elaborate opinion of the court. I simply desire to state my own reasons in my own way for reaching the conclusion that the order appealed from should be affirmed.
I may be wrong, but it seems to me that the opinion of the court ruthlessly slaughters a number of our decisions in or
As before stated, I do not care to go into an analysis of the court’s opinion. There are many propositions stated in it with which I am in accord. There are many others which I cannot assent to. I summarize my own conclusions as follows:
1. The certificate of appointment held by Mr. Anderson gave him the prima facie right to the office of insurance com
2. Upon its production it was Mr. Ekern’s duty to vacate the office under protest and commence an action to try title to the office.
3. An injunction should not issue against the person having the prima, facie right to the office, nor in any event in favor of the incumbent except on a clear showing that he had the better title to the office.
4. Where an injunction is sought.in such a case the court will inquire into the merits of the case as disclosed by the motion papers to ascertain whether the party in possession is clearly entitled to the office.
5. An office created by the legislature is not property, and the right to hold it is not a vested one.
6. The legislature may prescribe any method of removal from such an office it sees fit, and a removal made by the prescribed method is due process of law.
7. Where no provision of the constitution or of statute law requires that notice and hearing be given before a removal can be made, neither notice nor hearing is a necessary condition precedent to a valid removal.
8. It was clearly the intention of the legislature when it enacted what is now sec. 970, Stats., that the governor might remove the officers whom he was thereby authorized to remove without notice or hearing.
9. When the determination of a question of this kind is vested in some tribunal other than the courts, and no appeal from or review of the decision reached is provided for by statute, such decision is final and conclusive, if such tribunal acts within its jurisdiction.
10. The only inquiry left open to the courts in this proceeding is whether the cause assigned for removal is one for which the statute authorizes a removal to be made. If it
11. The order of removal in this case assigns a statutory cause for removal, and it is therefore conclusive on the courts.
12. Injunction will not lie against a co-ordinate and equal branch of the government, and neither will the courts inquire into the motives of the legislature or the governor in performing an official act.
I do not wish to he understood'as assenting to everything in the opinion of the court not covered by the foregoing propositions. I simply set forth the salient points on which I base my conclusion.
Dissenting Opinion
(dissenting). I fully agree with Mr. Justice Baehes. I think he states accurately the law a£ it is, or rather the law as it was before the decision of this ease.
If I could agree with my brethren of the majority that sec. 970, Stats., requires notice and hearing, I should have no doubt that the attempted removal'was wrongful because of the absence of sufficient notice and- hearing. I cannot, however, so construe sec. 970, for the reasons stated by Judge Baeiogs.
I wish to add a few words of a general nature. I am no worshiper of precedents. I have joined in the slaughter of precedents on numerous occasions and felt that I was rendering good service to the commonwealth. Nor do I attribute any special sanctity to decisions in which the opinions have come from my own hand.. If they be wrong in principle or have outworn their usefulness owing to changed conditions or increasing knowledge, let them have short shrift.
State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296, and State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304, are no more my progeny than they are the progeny of the entire court, except that I was chosen to cut and fit
The most serious infirmity in the decision in this case, as I regard it, is, not that it refuses to follow precedent, but that it is really a step backward — a signal to retreat rather than to advance. The present case is a case where a very important state office is at stake, but the principles decided apply as well to every ministerial officer however insignificant whose removal is provided for by a statute similar to sec. 970, and there are many of them. Every such officer is by this decision fortified and entrenched in his office. Proceedings to remove him on the part of his superior will be of little avail so far as immediate results are concerned. If he can persuade a court that he is acting in good faith, he can practically deny the power of his superior to remove him and remain in his office for months while the necessary slow processes of the law in circuit and supreme court are reaching a result. The arm of the superior officer will be rendered nerveless, and the man who is charged with responsibility for results will have practically no certain means of achieving results because unable to command efficient service from his subordinates. Such is not the genius of the democracy of today, much less of the democracy of the future. That democracy will unquestionably elect a few men as the heads of its various departments, and demand of them results. While
And so I say that this decision is a step backward; it tends to hamper the responsible heads of departments of the government; it seeks to return to the exploded idea that there is some private property right in an office, whereas the true idea is that it is simply an opportunity to serve the state.
The idea that some designing man will build up a despotism on the ruins of our liberties, if he be given the right of removal from office without notice or hearing, cannot be seriously entertained. There is no such danger in these days. It is the merest myth. The danger is rather that the responsible head of a governmental department will not have authority enough over his working force to perform the duties which the people have placed upon him and for the performance of which he is directly responsible. For this reason I regard the present decision as an unfortunate step in the wrong direction. I have no fear that it will have any very serious results ; the legislature can always provide in express' terms for removal without hearing, and doubtless will do so more and more as time goes on and the trpe theory of efficient government, becomes more fully understood.
