McMaster v. Herald, No. 10397

No. 10397 | Kan. | Jul 15, 1895

The opinion of the court was delivered by

Martin, C. J.

: I. The defendant challenges the right of the governor to investigate any charge of official misconduct with a view to removal from office. He contends that such a power cannot be conferred upon the governor, nor, indeed, upon any other person, officer, or tribunal, but the courts. This would be an interesting question, if new, but it is not new. It received very full examination and consideration in the case of Lynch v. Chase, 55 Kan. 367" court="Kan." date_filed="1895-01-15" href="https://app.midpage.ai/document/lynch-v-chase-7890111?utm_source=webapp" opinion_id="7890111">55 Kan. 367, 40 Pac. Rep. 666. It was there held, Mr. Justice Johnston delivering the opinion of the court, that it is within the power of the legislature to provide a summary method of removing incompetent and unfaithful officers, and to that end it may confer authority upon executive officers ; and that while the proceeding to remove from office for cause involves the examination of facts and the exercise of judgment and discretion by the executive officer, his action is not judicial in the sense that it belongs exclusively to the courts. Many executive acts involve the exercise of judgment and discretion, including the power to hear and determine, and yet the acts and the power cannot be held to be judicial. In order properly to exercise an executive function it is often a requisite preliminary to hear evidence to guide and direct the judgment of the executive as to the course to pursue, and it is not necessary, under our constitution, to refer all such questions to the courts. Even where the tenure of an office is declared by law, but power is given to remove for cause or for official misconduct, all that seems necessary is due notice of the charge preferred, and a hearing thereon, with opportunity to the accused officer to be heard in his own defense. (Jacques v. Litle, 51 Kan. 300" court="Kan." date_filed="1893-05-15" href="https://app.midpage.ai/document/jacques-v-litle-7889226?utm_source=webapp" opinion_id="7889226">51 Kan. 300, 303 ; Lease v. Freeborn, 52 id. 750, 755 ; Eastman v. Householder, 54 id. 63, 67; Lynch v. Chase, supra, and cases cited.) We are entirely satisfied with the conclusion reached in the case first and last cited, and therefore need not further pursue this line of inquiry.

II. It is further contended that findings 1 and 2 do not show official misconduct, and that the charge referred to in finding 3 was not sustained by the evidence. As to findings 1 and 2, it is said that, by section 5 of said chapter 206, Laws of 1889, the commissioner is made the exclusive judge of the qualifications of the applicant for registration until the close of the books, and that any applicant who feels aggrieved by his decision may appeal to the board of supervisors, and upon this proposition is based an argument that no official misconduct can arise from the refusal of the commissioner to register any person. This argument is fallacious. Of course, it is the duty of the commissioner to decide in the first instance who is and who is not entitled to registration, and he should not be held responsible for any honest mistake of judgment; but it is declared by the findings that registration was refused with the intent wilfully to deprive voters of their right when the defendant knew that they were legal voters in the wards or precincts in which they offered to register. It would be official misconduct for the commissioner to drive an applicant to the necessity of an appeal when he well knew that such applicant was entitled to register and to vote. An appeal is presumably given for the purpose of rectifying honest mistakes of the commissioner in doubtful cases as to the right of the applicant. Many persons entitled to exercise the right of suffrage might be deprived of it for want of understanding as to the method of taking an appeal, or for the want of time to prosecute it before the board of supervisors, which is not convened until after the close of the registration, and finally adjourns its session seven days before the election. Findings 1 and 2 plainly show official misconduct. Finding 3 shows corruption in office, which certainly is official misconduct. It is said in behalf of the defendant that the charge on which this finding is based was disproved, but we are bound by the findings of the governor. We have no evidence that the proceeding before him was not fairly conducted. The defendant was present personally and by counsel, and introduced evidence in his own behalf. This evidence is not before us, and we know nothing of the facts, except as found by the governor and from the statements of counsel in their arguments and briefs.

Complaint is made that the proceedings before the governor were irregular, in that copies of the newspaper clippings ought to have been attached to the copy of the charges served upon him, and that the affidavit of Kimball, of which he had no notice until after the first day’s proceedings, should not be considered as part of the charges preferred against him. The clippings, however, formed no real or substantial part of the charges, and the findings of the governor were not based thereon ; and it seems, from the admissions of counsel in their brief, that evidence was introduced by the defendant before the governor touching the charge made in the Kimball affidavit. In Lynch v. Chase, supra, it was said that

“In a summary proceeding for the removal of officers under the statute, the same formality and precision are not required as in a trial before a court, and the accused cannot claim the benefits, incidents and common-law rights pertaining to such a trial.”

There is nothing to indicate that the defendant was not given a fair opportunity to be heard in his own defense. The clippings were of no consequence, except to show that there was some dissatisfaction with the defendant's administration of the office; and as to the charge contained in the Kimball affidavit, the defendant had 12 days to meet it before the close of the hearing.

Judgment of ouster will be entered against the defendant, and the plaintiff placed in the possession of the office of commissioner of elections of the city of Topeka.

All the Justices concurring.