269 Mo. 44 | Mo. | 1916
Lead Opinion
I. On the - day of August, 1916, the Lieutenant Governor, William R. Painter, being then vested with all the authority of the absent Governor, filed, in the office of the Secretary of State, an order removing U. G. Crandall from the office of Police Commissioner of the City of St. Joseph, setting forth in the order of removal, as his reason, that he was fully satisfied of the “official misconduct” of the deposed commissioner. * Prior to this amotion the Lieutenant Governor telegraphed the commissioner to resign and received no response. Upon the failure of the commissioner to yield his office, the Attorney-General filed an information in the nature of a quo warranto, praying for a judgment of ouster against him.
The circuit court awarded the judgment prayed, from which the defendants sued out a writ of error to this court. ’
The only question presented by this writ of error is whether or not this statutory power of removal is one resting, to the extent given, in the discretion of the Governor, or is only exercisable after formal and specific charges, a trial thereof giving an opportunity for the hearing of witnesses and evidence, and a finding of the guilt or innocence of the accused. In brief, whether a police commissioner can be removed by the Governor with or without a trial, provided the Governor is fully satisfied in his own mind of the official misconduct of such officer.
It is of the very essence of the duties of the Governor of the State, as the personal representative and head of the executive department, to provide by fitting agents for the enforcement of its laws, the security of the persons of its citizens and the protection of their property. No greater responsibility could be imposed under a free form of government than is involved in the performance of these duties; for unless its laws are respected and
The question was also presented to the St. Louis Court of Appeals upon an issue as to the validity of a removal of the superintendent of the poorhouse by the commissioners on charitable institutions of that city, under an authority conferred upon that body by the charter to remove any appointed officer of that institution by unanimous vote and in pursuance of an ordinance reaffirming such charter power and providing “that before any such removal shall he made, the person accused shall have a full, open and impartial hearing before the commissioners.” [State ex rel. v. Brown, 57 Mo. App. l. c. 203.] It was held that the power thus given to the commissioners was one to remove for cause. In discussing the interpretation of the grants of power to remove appointive officers, it was said in that case, in consonance with the preceding decisions in this Sate and elsewhere, that:
“It is fixity of tenure that destroys the power of removal at pleasure otherwise incident to the appointing power. The reason of this rule is the evident repugnance between the fixed term and the power of arbitrary*52 removal. The effect of this rule is, that the right to hold during a fixed term can only be overcome by an express grant of power to remove at pleasure. An inferential authority to remove at pleasure cannot be deduced, since the existence of 'a defined term, ipso facto, negatives such an inference, and implies a contrary presumption, i. e., that the incumbent shall hold to the end of his term, subject to removal for cause.”
The foregoing language was expressly adopted by this court in State ex rel. v. Maroney, 191 Mo. l. c. 548, and is only quoted again in order to set forth its logical converse, to-wit: that where the power to remove is given, expressly or by necessary implication, in the enabling act by words or terms denoting that it may be exercised in discretion, such power to the extent thus given, is ex hypothesi one which may be exercised whenever in the mind and judgment of the donee of the power, the fact or thing exists upon which his discretion is rested.
In the case at bar the statute in express terms tells the Governor to remove any commissioner “upon his being fully satisfied” of “the alleged official misconduct” of such commissioner. It, therefore, falls within the exact terms of the proposition last stated and was necessarily included in the doctrine established when the foregoing decisions announced the rule of which that proposition is the logical converse.
The facts of the New York case are strikingly similar to the facts of the instant case and the legislative action in this State, which provides for a similar distinction, as has been shown, when referred to the power of removal of a member of the police force.
In the case of State ex rel. v. Burke, 8 Wash. 412, the statute authorized the Governor to remove the members of the Capitol Commission Board appointed until the completion and acceptance of the State building, unless sooner removed for cause by the Governor. It was said: “It seems to he well settled that the Legislature in creating an office may limit the duration of the term in any way it deems fit, if there is no constitutional provision which would fix the term. It might make it determinable at the pleasure of the Governor or any other person. In this case the power was entrusted to the Governor— to act, it is true, upon certain grounds — yet his action would he purely discretionary.” It was accordingly ruled the Governor might remove such officers without charges, notice or a trial, and that his power in this respect rendered an otherwise definite term an indefinite one, and that the use of the words “for cause” did not alter the nature of the power vested in the Governor, since the act specified no particular misconduct or wrong
In the case of Hertel v. Boismenue, 229 Ill. 474, a statute almost identical in language -with the one passed on by the Supreme Court of Washington was presented for review. The Illinois statute provided for the removal by the trustees of schools of a township treasurer appointed for a term of two years, for good and sufficient cause. The court held that this statutory provision was a mere generality uncoupled with any requirement of a formal charge or notice to the incumbent and that it might be exercised at will.
In the case of Ayers v. Hatch, 175 Mass. l. c. 491, provision was made in-the city charter for the removal by the mayor of any officer appointed by him for such cause as the mayor might deem sufficient. In that case the mayor exercised the authority thus given to him without preferring charges or giving notice and holding a trial, stating as his only reason that the removal was for “the good of the service.” The court held that this statute gave him a discretionary power for that reason to remove his appointee.
To the same effect are O’Dowd v. Boston, 149 Mass. l. c. 444; Attorney-General v. Brown, 1 Wis. 513; State v. McGarry, 21 Wis. 502; State ex rel. v. Grant, 14 Wyo. l. c. 57; People v. Welty, 75 Ill. App. l. c. 522; Trimble v. People, 19 Colo. l. c. 197; Wilcox v. People, 90 Ill. 186 ; State ex rel. Atty.Genl. v. Doherty, 25 La. Ann. l. c. 120.
It will be seen at a glance that the statute (Sec. 8770, supra) does not give a definite term to the appointee, for
As has been seen the words granting this power vested it wholly in the Governor of this State with authority to exercise it “upon his being fully satisfied” of the “official misconduct” of any commissioner. It will be noted that this language provides no method of inquiry on the part of the Governor before arriving at the mental state of satisfaction as to the official misconduct upon the existence of which his power to order a removal arises under the statute, the sole requirement being a state of personal satisfaction on his part that a member of the Board of Police Commissioners has been guilty of some official misconduct. The statute wholly refrains from specifying or defining this ground of removal by any terms of specification or definition. It simply made it the duty of the Governor to satisfy himself that the .party to be removed was guilty of some or any misbehavior or neglect of duty falling within the meaning of the general terms “official misconduct.” These are terms of the broadest generality and comprehensiveness and were designed by the lawmakers to enable the Governor to conduct a correspondingly wide inquiry with authority to act the moment he was “fully satisfied” that any such appointee was guilty of any dereliction of official duty. Discretionary power thus invested in the Governor was uncontrolled except that it could only be exercised with reference to improper conduct on the part of a police commissioner in discharging his duty as the direct representative of the Chief Executive in the maintenance of peace, suppression of disorder and the prevention of crime. The Governor was not authorized to
Respondent calls our attention to the ruling in the case or State ex rel. v. Maroney, supra. There is nothing in the discussion of the law in that case at variance with the legal principles applied in the case under review; for it quotes and affirms the previous decisions of this court from which the conclusions reached in the present case are deduced. In the Maroney ease the court was considering the power of a Board of Election Commissioners to remove, for causes specified in the statute giving them that power, certain judges and clerks appointed to conduct an election. Such officers were appointed for a term of ninety days and the Board of Commissioners given power to remove if any such appointee was “found not to possess the statutory qualifications or to be guilty of neglect of duty or of any
Of the Maroney case, it is enough to say that while not amiss in its statements of legal principles, it goes to the verge of the law in applying them to the facts in judgment and can only be supported on the ground of the technical meaning given to the word “find,” of which the word “found” in the act is the past participle.
Our conclusion is that the judgment of the trial court should be and is affirmed.
Concurrence Opinion
(concurring). — In this case the statute expressly provides neither a hearing nor a removal at pleasure. It is sometimes said that unless removal at