77 Va. 415 | Va. | 1883
delivered the opinion of the court.
The first question raised in this case is as to the nature of the proceedings. The respondents say that mandamus will not lie in this case; that they can be removed from office only by quo
Without entering at length into a discussion of the nature and origin of the writ of mandamus, it is sufficient to say it is an extraordinary remedy in cases where the usual and ordinary modes of proceeding are powerless to afford remedies to the party aggrieved, and when without its aid there would be a failure of justice.
Wherever there is a right to execute an office, perform a service, or exercise a franchise, more especially if it he a matter of public concern, and a person is dispossessed of such right and has no other specific adequate remedy, then the court ought to assist by mandamus upon reasons' of justice, as expressed by the writ, and upon reasons of public policy, to preserve the peace, good order and good government. It ought to he used on all occasions when the law has established no specific remedy. Whatever may he the rule elsewhere, it may he safely laid down as the doctrine of this court that mandamus is the true specific remedy for a wrongful deprivation of an office. What other specific adequate remedy has these petitioners, if they are clearly entitled to this office? If, as suggested, quo warranto should he adopted, and the petitioners should succeed there, they would not thereby he put in possession of what they seek, but might still be put to the necessity of mandamus for relief. They might-succeed by quo warranto in removing their adversaries from the office, and yet need the mandamus to put them in possession. Ho proceeding that will give them less than they ask can he said to afford them a specific and adequate remedy, if they are entitled to what they seek. Under the quo warrcmto information, judgment might remove the occupants, hut would not install the claimants. They might still find it .necessary to ask'other process against some other person or officer who might deem it his or their duty to keep them out.
It is earnestly contended by respondents that this college is a private corporation and not under the control of the governor, or any other public authority, and this is the second question upon which we are to pass.
In 1854 the Medical College was incorporated, with a board of visitors—-nineteen in number, and the said visitors were named in the charter.
By the seventh section it was provided,'that “whenever any vacancy shall occur in the said board by reason of death, resignation or otherwise, then the governor shall All the same, selecting the visitors so appointed from each of the grand divisions of the state.”
The board of visitors were required to make an annual report to the second auditor, such as is required by the twelfth section of the eighty-third chapter of the Code.
In the charter, the legislature reserved the right at its pleasure to modify, alter, or repeal the charter, provided for an acceptance by the then existing faculty, and disclaimed any intention by the legislature to reflect on the trustees of Hampden-Sidney College, or the faculty of the medical school in Eichmond.
Before the passage of this act there was a medical school in Eichmond, which was under the patronage of Hampden-Sidney College. Dissensions between the faculty of the medical school and the trustees of Hampden-Sidney College led to the act of incorporation seen above. In 1860 the legislature appropriated $30,000 to this college upon the condition that the college authorities should execute and record a deed conveying all the property of the college to the literary fund of the state; this deed to be drawn by the attorney-general and approved by the
Strictly speaking, public corporations are such only as are founded by the government for public purposes—where the whole interest belong also to the government.
The Trustees of Dartmouth College v. Woodward, 4 Wheaton, 669. See opinion of Story, judge.
This medical college is in every sense a public corporation, made so in the manner already stated. The visitors of this college are then holding under an act of the legislature a public office or employment, subject to the control and direction of the state—to be appointed and to be removed by competent public authority. The visitorial power of this college is therefore in the state of Virginia, and to be exercised under the laws of the state. What is the competent public authority vested by law with the power to remove the visitors of the said college? This is the last and only question in this controversy about which there can be any real dispute.
To this question, in fact, has been mainly directed the efforts
What are the terms of the charter of this college concerning the visitors appointed thereunder ?
The legislature not only incorporates the college, but appoints the hoard of visitors; it reserves the right to modify, alter or amend the charter at its pleasure. It grants to the governor of this state certain powers, and so far as these powers are granted and no further, can they be exercised by the governor. Under our system of government, the governor has and can rightly exercise no power except such as may be bestowed upon him by the constitution and the laws. The charter of this college confers on him the power to fill by executive appointment such vacancies as may occur in the office of visitor of this college by death, resignation or otherwise. The power to fill vacancies as they have occurred for the last twenty-nine years, comprising the existence of the college has been exercised by many successive governors of this state, and has never been questioned or denied.
But, as is disclosed by the proceedings here, on the 22d day of September, 1882, the governor removed the entire hoard of vis itors of the college. The said.hoard of visitors deny the power or authority of the governor to so remove them, and refuse to give possession of the college to petitioners here, who have been designated by the governor as their successors, and this court
If we consider this charter in the light of the circumstances which surrounded its enactment, we are strengthened in our views. When it was enacted, the state was not the owner, as
This much for the executive cotemporaneous construction of this charter. What has been the legislative construction of the same? The attorney-general, in the argument of this case here, exhibited two bills introduced into the legislature of the state at its last session, having for their object the removal of the board of -visitors of this college. If the legislative construction of this charter was that the governor already had the
We have searched in vain the many cases referred to by the attorney-general to find one like the case at bar. In Hennen’s Case, 13 Peter's, 225, much relied on, the supreme court of the United States maintain the power of the courts to remove their clerks, because their original appointment is placed there by the act of congress, and no power concerning them reserved by congress, and a life tenure was held to be at variance with all our institutions. In Newsom, v. Cocke, 44 Miss. 352, the question turned upon the act of the legislature, which, in express terms, gave to the governor the power in all cases to remove from office, in every case where he had the power to appoint. And so in the case of Williams v. Boughner, 6 Caldwell, 487. The act of the legislature gave the governor the power to remove the commissioner for cause, and the whole question was, whether the governor could remove without cause. The case of the United States v. Avery, Deady's R., proceeded upon the precise ground already stated as to Hennen’s Case, 13 Peter’s, 225. It is not deemed necessary to review in detail the many authorities cited; it may suffice to say that none are like this case. In Bouldin’s Case, 6 Leigh, 639, the removal was conceded to the judge, as to one of the officers of his court appointed by himself; and in McDougal's Case, 27 Gratt. 133, the right of the judge was maintained to remove for cause an officer appointed by himself.
In the case of The Commonwealth, &c. v. Bussiel, 5 Serg’t & Rawle, 451, cited as parallel by the attorney-general, we find
But no case has been cited, and no case, we beliéve, can he cited, where an officer appointed hy the legislature is held to he removable hy the governor without express authority to that end, and where the power to fill a casual and occurring vacancy, a power to appoint expressly limited, has been ever held to carry with it, either a general power of appointment or the authority to remove, and so create a vacancy in order to fill it.
To conclude, we are of opinion that the power of visitation as to this college, is in the state, and by the charter expressly reserved in the legislature, and' not granted to the governor. We hazard nothing in saying that there is no such thing in this state as a visitor holding, as in England, by life tenure. These visitors in this case hold simply at the will of the legislature, subject to be removed whenever the legislature shall so provide— the legislature has -not so provided; and so the writ in this case must be denied.
Mandamus denied.