147 Minn. 383 | Minn. | 1920
Lead Opinion
The relator was county attorney of Hennepin county for the term beginning on the first Monday in January, 1919. On May 17, 1920, one Fred M. Mason petitioned the Governor to remove him from office, on the ground that he had been guilty of malfeasance in the performance of his official duties. After an extended hearing, at which much evidence was submitted, the Governor found the charges true, and made an order removing him from the office of county attorney. The relator sued out a writ of certiorari from this court.
The courts-can in no way interfere with the exercise of the powers which the Constitution vests in the Governor as chief executive officer of the state, but the power of amotion from office is not given him by the Constitution, but rests only on an act of the legislature, and it is settled in this state that his action in removing an officer from office may be reviewed by a writ of certiorari. State v. Eberhart, 116 Minn. 313, 133 N. W. 857, 39 L.R.A.(N.S.) 788, Ann. Cas. 1913B, 785, in which the prior decisions are reviewed and analyzed. In that case the removal of a county attorney from office was sustained, the court saying:
“The decision will not be reversed if there is any evidence of a legal and substantial basis reasonably tending to support it.”
In the present case the original petition charged, in paragraph 2, that the relator had received bribes from one Michael Weisman under an agreement to use his official position to protect certain persons in the commission of certain crimes without specifying either the persons or the crimes, and then charged, in paragraph 3, that pursuant to the receipt of such bribes he had wilfully and feloniously conspired with Oscar Martinson, Michael Weisman and 11 other persons named therein to receive, transport and conceal a large quantity of intoxicating liquor unlawfully imported into this state from the Dominion of Canada, and for fuller details referred to a complaint made to a United States commissioner, charging him with this offense, a copy of which was attached to the petition. At the opening of the proceedings on the second day of the hearing, the petitioner was permitted to amend the petition by inserting two additional paragraphs therein: One to the effect that, on or about January 15, 1920, the relator had received a bribe of
The principal contentions of the relator are: (1) That the petition could not be amended by inserting additional charges therein after the hearing had been begun; (2) that the findings are manifestly and palpably against the preponderance of the evidence; (3) that evidence of other offenses than those charged in the petition was improperly received.
1. The statute provides that the Governor may remove from office any county attorney, or any of certain other specified officers,
“Whenever it appears to him, by competent evidence, that either has been guilty of malfeasance or nonfeasance in the performance of his official duties; first giving to such officer a copy of the charges against him, and an opportunity to be heard in his defense.” G. S. 1913, § 5724.
The next section provides for the appointment of a commissioner to take and report the testimony, and that each witness shall subscribe his name to his testimony when the same is reduced to writing. In the present case a commissioner was appointed who took down and made a record of the testimony, but the testimony was taken before 'the Govern- or in person and the various rulings throughout the hearing were made by the Governor. It will be observed that the statute does not limit the time nor' prescribe the manner in which charges shall be presented, but merely provides that the accused officer shall be furnished a copy of the charges and be afforded an opportunity to make his defense. This requires a hearing, the purpose of which is to determine whether the officer has been guilty of the alleged misconduct. The Governor, upon whom the statute imposes the duty to determine this question, is not a court, and is not bound by the strict rules which govern trials in court. State v. Common Council of City of Duluth, 53 Minn. 238, 55 N. W.
2. The Governor found three charges true, namely: That the relator was a party to the so-called liquor conspiracy; that he had received a bribe in the Max Brooks case; and that he had received a bribe in the cases of the four women indicted for keeping houses of ill-fame. Any one of these findings, if sustained by the evidence, furnished a sufficient ground for the order of amotion. The relator does not claim that there is no evidence to support these findings, and could not well do so, for the witness, Michael Weisman, testified directly and positively that he made the arrangement with the relator in each of these instances, and paid
The province of this court in reviewing proceedings brought before it by writ of certiorari is well defined. It may examine the evidence, but only for the purpose of ascertaining whether it furnished any reasonable or substantial basis for the decision. It cannot reweigh the evidence for the purpose of determining where the preponderance lies, nor substitute its judgment as to the credibleness of the testimony of a witness fox that of the tribunal charged with the duty of determining the facts. State v. City of Duluth, 125 Minn. 425, 147 N. W. 820; State v. Common Council of City of Duluth, 53 Minn. 238, 55 N. W. 118, 39 Am. St. 595; State v. Dart, 57 Minn. 261, 59 N. W. 190; State v. Eberhart, 116 Minn. 313, 133 N. W. 857, 39 L.R.A.(N.S.) 788, Ann. Cas. 1913B, 785; 5 B. C. L. title Certiorari, §§ 3, 14, 16; McNiff v. City of Waterbury, 82 Conn. 43, 72 Atl. 572, and note appended to report of that case in 135 Am. St. 247.
The relator points out several particulars in which the testimony of Weisman does not accord with that of other witnesses, and also points out various facts tending to discredit him and tending to show the improbability of portions of his testimony, as well as the fact that he admits that his testimony squarely contradicts his previous statements, but these were matters to be taken into account by the trial tribunal in weighing his testimony, and will not warrant this court in saying that his testimony should have been rejected. According to his own story, Weisman was an accomplice in the different crimes to which he testified, but the rule, requiring the testimony of an accomplice to be corroborated, is statutory and does not extend to such a proceeding as this. Nevertheless the fact that a witness is an accomplice is sufficient reason for scrutinizing his testimony closely, and the Governor undoubtedly scrutinized Weisman’s testimony closely, for he calls attention in his findings to various facts and circumstances, shown by other
From the testimony of Assistant District Attorney Anderson, it appears that on the day before Martinson’s arrest relator asked Anderson over the telephone whether Special Agent Campbell was investigating Martinson’s doing-s, and was informed that Anderson did not know; that about seven o’clock 'that evening Anderson told relator over the telephone that “there is something very important in the air;” that relator asked: “Has it gone too far to be headed off?” that Anderson replied: “Have Oscar Martinson in my office at nine o’clock in the morning and we will go over it;” that about an hour later relator and Martinson came to Anderson’s home where relator, after saying: “This has got to be stopped,” asked Anderson to tell them what could be done and whether there was any way to reach or influence District Attorney Jacques or Special Agent Campbell; that Anderson assured them that Jacques and Campbell could not be swerved from doing their duty, but would make no arrests without good cause, and suggested that relator and Martinson have an interview with Campbell for the purpose of convincing him that there was nothing to the matter he was investigating; that they arranged to meet Campbell at Anderson’s office at nine o’clock the next morning, and that after Martinson left the room relator stepped back and asked again what it was about, to which Anderson replied: “I don’t know, unless it is some whiskey proposition.” It is conceded that they did not appear at Anderson’s office the next morning, but went together to the office of an attorney at or about the time set for the meeting with Campbell, and that Martinson was arrested shortly thereafter for complicity in the liquor conspiracy and subsequently pleaded guilty to the charge. The relator admitted the interviews with Anderson, but claimed that he was merely trying to help Martinson and had no knowledge that the matter concerned himself personally. From the testimony of Martinson it appears that, after learning that the grand jury proposed to investigate the sheriff’s office and the county
A careful examination of the record satisfies us that there is substantial evidence supporting the decision, and we cannot review the evidence for the purpose of ascertaining whether we would draw the same conclusions from it that were drawn by the tribunal appointed by law to determine the truth or falsity of the charges.
3. Proof of other offenses of the same nature as the offenses charged, and which tend to show that the defendant was pursuing a general scheme or course of conduct which embraced the commission of such offenses, is 'admissible for purposes of corroboration even in criminal trials. State v. Wilson, 72 Minn. 522, 75 N. W. 715; State v. Ames, 90 Minn. 183, 96 N. W. 330; State v. Monroe, 142 Minn. 394, 172 N. W. 313; State v. Whipple, 143 Minn. 403, 173 N. W. 801; State v. Ettenberg, 145 Minn. 39, 176 N. W. 171.
The other offenses which the petitioner sought to prove, in the present proceeding, were all of the same nature as those charged in the petition, and proof of them was admissible, under the above rule, for the purpose of showing that the offenses charged were .part of a general course of conduct. As the decision is not predicated, upon these other offenses, there is no occasion to consider them further. It may be that the rule against hearsay, if strictly enforced, would have excluded some of the evidence received, but, in such proceedings, the Governor is not bound to enforce 'the technical rules of evidence, and his decision cannot be
4. The relator, the sheriff, Weisman and nine or ten others were indicted in the Federal court for the so-called liquor conspiracy. The sheriff, Weisman and some others entered a plea of guilty. The relator stood trial and was acquitted by the jury. That such u conspiracy existed, and that large quantities of intoxicating liquor were brought into the city of Minneapolis in violation of law is beyond dispute, but the relator has at all times stoutly asserted, not only that he was not a party to it, but that he had no knowledge of it. He now urges, in effect, that his acquittal in the Federal court exonerated him from this charge, and that this charge ought not to have been considered in reaching a decision in the present proceeding. The prosecution in the Federal court was for an alleged violation of a Federal law, and the judgment there rendered would not bar a prosecution in a state court for the violation of a state law, although based on the same act. State v. Holm, 139 Minn. 267, 166 N. W. 181, L.R.A. 1918C, 304, and cases cited therein. Furthermore this proceeding is not a criminal prosecution, but an investigation authorized by statute to determine whether the relator has been guilty of misconduct warranting his removal from office, and, even if the acquittal had been in a state court, it would not have closed the door to such an investigation. The indictment alleged a violation of the criminal laws, this petition alleges á violation of his duties as a public officer. The offenses are not the same, even if predicated on the same act, and neither proceeding can operate as a bar to the other. See 8 E. C. L. title Criminal Law, §§ 116, 118, 128, 135, 136. See also State v. Lee, 29 Minn. 445, 13 N. W. 913; State v. Harris, 50 Minn. 128, 52 N. W. 387, 531; City of Virginia v. Erickson, 141 Minn. 21, 168 N. W. 821. While these cases were of a different nature, the reasoning in the decisions applies with greater force to such a case as the present.
It follows from what we have said that the writ must be and is discharged.
Concurrence Opinion
(concurring).
I find no corroboration of Mike Weisman worthy of consideration showing either that Nash was a party to the whiskey conspiracy or that
Dissenting Opinion
(dissenting).
I dissent. The removal statute provides 'that the Governor may remove from office any county attorney whenever it appears to him by competent evidence that such officer has been guilty of malfeasance or nonfeasance in the performance of his official duties. The proceedings are judicial in their nature and may be reviewed on certiorari: First, to see whether the removing power had jurisdiction and kept within it; second, whether the charges were sufficient in law; and third, whether the evidence furnished a legal and substantial basis for the removal. State v. Common Council of City of Duluth, 53 Minn. 238, 55 N. W. 118, 39 Am. St. 395. To hold otherwise is not only to reverse our former decisions, but to ascribe to the Executive arbitrary power at variance with our American institutions and spirit. We see no reason why the executive power of removal, involving -as it does quasi judicial functions, should not, within the limits stated, be subject to review in the same manner as judgments of courts in general. For every wrong there is a remedy, and if this relator has suffered wrong there must be some method of review, and certiorari, it seems, is the remedy.
It is well settled by the decisions that removal proceedings of the character of those under review, are highly penal in their nature and governed by the rules of law applicable to criminal prosecutions. State v. Hasty, 184 Ala. 121, 63 South. 559, 50 L.R.A.(N.S.) 553, Ann. Cas. 1916B, 703. They are of a quasi judicial character and must insure a fair trial. Hawkins v. Common Council of City of Grand Rapids, 192 Mich. 276, 158 N. W. 953, Ann. Cas. 1917E, 700. They are pronerly held to be governed by the constitutional guarantees and statutory pro
Competent evidence, as used in the -statute, means evidence legally sufficient, that is, legal in quality. This court will examine the evidence, not for the purpose of weighing it, but to ascertain whether it furnished any legal and substantial basis for the removal. State v. Common Council of City of Duluth, supra.
The principal finding on which the order of removal is based, is the alleged complicity of relator in a conspiracy to import intoxicants into this state. The conspiracy is.claimed to have been participated in by relator, one Weisman, Martinson (at -the time sheriff of Hennepin county) and 13 other persons, whose names it is unnecessary to mention. Participation of relator consists, it is alleged, of an agreement on his part to remain in his office at night during the unloading of various cars of liquor shipped from Canada, in order that he might see that persons participating in the unloading, if arrested, were promptly released on bail; that in consideration for such promise he was paid at various times large sums of money by Weisman. Weisman is the only witness who testified to such arrangement or to the payment of any money. Martinson was examined as a witness, but his testimony is so confused and contradictory that it cannot be made the basis of credibility. None of the other 13 alleged conspirators were called. Weis-man and Martinson are acknowledged accomplices with relator, but their testimony stands wholly uncorroborated. It is the rule in this state (G. S. 1913, § 8463), and has been since territorial days, that a conviction for crime cannot be sustained on the testimony of an accomplice, unless corroborated by such other evidence as tends to convict the accused of the commission of the offense. The corroboration is not sufficient where it merely shows the commission of the offense or the circumstances thereof. I am convinced, in view of the long settled policy of our law, that the expressions “competent evidence” and ffiegal and substantial basis for action” require a holding that in cases of this character- there must be some corroboration of accomplices.
1. That the first car came in around Christmas; that, as soon as he was advised by Bants (another conspirator) that it was' unloaded, he paid relator $1,000; that he got the currency from his safety deposit box at the bank; that the bank records showed the visit. To 'corroborate this story the bank vault records were produced showing a visit by Weisman to the vault on December 26, 1919. This testimony was completely destroyed by the record evidence from the railroad company, showing that the car did not arrive at St. Paul until December 29, and did not reach Minneapolis until December 31, and was not unloaded until January 1 or 2.
2. That the second car came during the first week after Christmas; that the day after it was unloaded he paid to relator $1,000; that he paid the money the first week after Christmas. He first testified that he got the money from one Goldberg and a Canadian fellow, after which he testified that he got it from one Posnick (another conspirator); that it was from the proceeds of the sale of the first car, part of which had been sold a couple of days after its arrival. It was proven that this second car did not arrive at Minneapolis until January 6, 1920; that it was not unloaded until January 7. The money could not, therefore, have been paid the first week after Christmas, nor could $1,000, paid the first week after Christmas, have been derived from the proceeds of the sale of the first car, for the first car was not unloaded until January 1 or 2, and no sales were made according to the witness’ testimony for a couple of days thereafter. Posnick was not called as a witness.
3. That the third car came to St. Paul on January 12; that the next morning he saw in -the public press that a man had been killed in connection with the unloading; that he took the paper to the relator’s office on the morning of the thirteenth, showed him the article and upbraided him for not fixing things in St. Paul; that the relator then called up Mr. Dickey, Assistant United States Attorney, in St. Paúl, and ar
4. That the fourth car he knew nothing about, except that Banks told him relator had got part of the contents of the car. Banks was not called as a witness, which leaves this testimony purely hearsay.
Corroboration of 'Weisman’s testimony is found by the Governor, in the fact that relator made a visit to Mr. Dickey at St. Paul, on January 15, but this was not the tMrteenth, and at that time the trial of a criminal case was in progress by the assistants in relator’s office, in which Weisman was the principal witness. The relator testifies that, at the request of his assistant who was trying the criminal case, he went to St. Paul to ask Mr. Dickey to defer the arrest of Weisman until after the criminal case then on trial was submitted to the jury. This testimony is supported by the Assistant County Attorney, Floyd B. Olson, and by Mr. Dickey. It is significant that Mr. Beinardy, who testified to seeing Mr. Nash at the office of Mr. Dickey, was told by Mr. Dickey at the time that a trial was going on at Minneapolis in which Weisman was the principal witness, and that Mr. Nash was there to see him about holding up the arrest of Weisman until the case was com
5. The next charge on which the Executive grounds the removal is the so-called Eoss case. Weisman testified, and his testimony is supported by that of one Chesnut, attorney for Eoss, that in April or May, 1919, Eoss was under indictment, charged with stealing an automobile, and that the indictment was nolled by the relator. Weisman testified that $1,300 was collected at the National Hotel and, in the presence of one Murphy, the clerk, counted out to him, Weisman, and that he paid it to the relator on the day following the dismissal of the Eoss case. This testimony is without corroboration, and it was shown by the records that Eoss was never indicted, that the grand jury reported no bill against him. The clerk, Murphy, at the hotel, testified that no such thing as related ever occurred at the hotel.
7. The next charge relates to the prosecution of four women for conducting houses of ill-fame; from these women Weisman claims that he collected $500 each, and that he paid the same to the relator to let them off easy; that he paid it -to relator in the office of John P. Nash, going from the immediate presence of Franklin C. J ones, who was a member of the grand jury; that the subject of his conversation with Jones was the purchase of some land near Lake George in Anoka county. Mr. J ones was called and testified that there was no such occasion, and that he had not talked with Weisman about Lake George property since 1917. The attorney for the women was called by the prosecution, but he testified that the county attorney’s office made no recommendation in the matter.
It is manifest that the showing on behalf of the prosecution in this proceeding is totally lacking in credibility. There can be no inference drawn but that it was deliberately false. I am unable to understand how such testimony given by the principal witness can be converted into truth by proving a few isolated facts consistent with such falsehoods. Turning to the side of justice. The charges as to relator’s complicity in the liquor conspiracy were fully tried in the. -Federal court, under a prosecution by the United States District Attorney; and the jury there, as in my opinion it would be compelled to do here, returned a verdict of acquittal. No other verdict could stand.
While this court will not apply to proceedings of this character the strict rules of evidence pertaining to the trial of causes in court, still
