State ex rel. Martin v. Burnquist

141 Minn. 308 | Minn. | 1918

Brown, C. J.

Relator was the duly elected, qualified and acting judge of probate in and for the county of Dodge. On January 17, 1918, a petition in due form was duly, presented to respondent as Governor of the state, asking for his removal on the ground of alleged malfeasance in the discharge of his official duties. No neglect of duty or nonfeasance was charged. Subsequent proceedings, which were in all things regular, resulted in an order granting the prayer of the petition and removing relator from his said office. The proceedings and the order of removal were brought to this court for review on a writ of certiorari issued on the petition of relator.

Assignments of error challenge: (1) The jurisdiction of the Governor to entertain the removal proceedings at all, based on the contention that a judge of probate is not subject to removal by him, because not an inferior officer within the meaning of section 2 of article 13 of the state Constitution and therefore improperly included in section 5724, G. S. 1913, which grants the only authority the Governor has in the premises; (2) the competency of certain evidence which was received and considered by the Governor over the objection of relator. But as our conclusion on the merits of the case is that sufficient legal grounds for removal are not established by the evidence, as reduced and embodied in the findings of the Governor, it becomes unnecessary to consider the other questions and we pass them without comment or discussion.

Section 2 of article 13 of the Constitution provides that:

“The legislature of this state may provides 'for the removal of inferior officers from office, for malfeasance or nonfeasance in the performance of their duties.”

Pursuant to the authority thus conferred upon it the legislature enacted section 5724, G. S. 1913, and thereby granted to the Governor the power to remove any of the officers therein named, including the judge of probate.

“Whenever'it appears to him, by competent evidence, that either has been guilty of malfeasance or nonfeasance in the performance of his official duties.”

The language of the statute, as will be noticed, follows that of the Constitution, except that the word “official” is inserted before the word “duties,” thus perhaps emphasizing the character of misconduct for which a removal may be made, though there would seem to be no difference in point of substance.

The facts made the basis of the order complained of and upon which the Governor acted, as stated and expressed in the order of removal, are as follows:

(1) That James F. Martin is the duly elected and qualified Judge of Probate of Dodge county, in the state of Minnesota.

(2) That since the United States has entered the war with the empire of Germany, the respondent has made, on numerous occasions and to divers people in public places, and elsewhere, the following statements :

“(1) That this is not our Avar, but England’s Avar.

“(2) That we had no business in the war and that there Avas no reason for us going into the war.

“(3) That Ave didn’t get any true opinions from the press, and the reports of atrocities were fabricated for the purpose of embittering the Americans against Germany.

“(4) That Germany was justified in sinking the Lusitania.

“(5) That we didn’t have the right to send our boys across the water, and that the draft laws should never have been passed.

“(6) That the whole war is Avrong.

“(7) That the President kept us out of war as long as he did simply for the political effect, until he was elected, and then declared war.”

It may be said in further explanation of the case, that relator is an American citizen, 68 years of age, and has resided in Dodge county for upwards of.40 years. He has taken a prominent part in public affairs, and has held the office of judge of probate by repeated re-elections for the past 16 years; the duties of which so far as we are advised by the record have been performed with fidelity and to the entire satisfaction of the people of the county. His personal character is vouched for by his neighbors, including those who gave testimony against him in this proceeding. His sympathy has been strongly with Germany in the present war, whether by reason of hostility to England or other reasons is not important, and he has frequently so expressed himself, at his office and upon public streets, in language, emphatic speech, and in a tone of voice that left no doubt in the minds of those with whom he talked of his opposition to the war policy of this country. He may have acted in good faith, and in the belief that he was within his rights as an American citizen, but conceding the truth of the evidence against him, the record justifies the statement that his conduct, if nothing more serious, was at least clearly at variance with good citizenship, and contrary to the obligations every citizen owes to the government of his country.

The only question presented is whether the facts, as found by the Governor and explained and enlarged by the statement just made, constitute malfeasance in the performance of relator’s official duties sufficient in law to justify his removal. We answer the question in the negative.

The only authority in this state for the removal of an elective public officer, of the class to which the office of judge of probate belongs, so far as this case is concerned, is that granted and conferred by the provisions of the Constitution and statutes above quoted. The authority so granted is exclusive and renders inapplicable any remedy which, in the absence of statute, may perhaps exist at common law. The authority thus conferred limits the grounds of removal to acts constituting malfeasance in the performance of official duties, or such a failure to perform the duties as will constitute nonfeasance in office. Malfeasance in office, the basis of this proceeding, sometimes expressed as "misconduct in office,” has a well defined and a well understood meaning, and refers to and includes only such misdeeds of a public officer as affect the performance of his official duties, to the exclusion of acts affecting his personal character as a private individual; the character of the man must be separated from his character as an officer. Mechem, Pub. Officers, § 457; Throop, Pub. Officers, § 367; Craig v. State, 31 Tex. Cr. R. 29, 19 S. W. 504; State v. Kuehn, 34 Wis. 229; Com. v. Williams, 79 Ky. 42, 42 Am. Rep. 204; Dullam v. Williamson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128; State v. Welsh, 109 Iowa, 19, 79 N. W. 369.

In some jurisdictions the language of statutes granting the right of removal has been held broad enough to include misconduct wholly disconnected with the performance of official duties, but none of the courts have so construed or extended statutory authority couched in such plain and specific language as that found in the statutes of this state. The misconduct or malfeasance under our law must have direct relation to and be connected with the “performance of official duties,” and amount either to maladministration, or to wilful and intentional neglect and failure to discharge the duties of the office at all. This does not include acts and conduct, though amounting to a violation of the criminal laws, of the state, which have no connection with the discharge of official duties. A situation of that kind is covered by subdivision 5 of section 5723, G. S. 1913, wherein it is provided that the conviction of the incumbent of a public office of an infamous crime, or of any offense involving a violation of his official oath, shall of itself operate as a removal of the officer so convicted; the declaration of the statute is that the office shall upon such conviction become vacant. That statute, however, has no application to the ease, for relator has not been prosecuted or convicted either of sedition, as defined by chapter 463, p. 764, Laws 1917, or of any other crime. State v. Common Council of City of Duluth, 53 Minn. 238, 55 N. W. 118, 39 Am. St. 595; Bagg’s Case, 11 Coke, 93b; Lancaster v. Hill, 136 Ga. 405, 71 S. E. 731, Ann Cas. 1912C, 272, and note.

Just what acts or conduct would bring a particular case within the statute we do not stop to consider. Though it may be remarked, without deciding the point, that as to an officer who is charged by law with the duty of enforcing and maintaining law and order, it is probable that conduct similar to that charged against relator would constitute misconduct in the performance of official duties, aqd be ground for removal under the statute. But we are clear that scolding the President of the United States, particularly at long range, condemning in a strong voice the war policy of the Federal authorities, expressing sympathy with Germany, justifying the sinking of the Lusitania, by remarks made by a public officer of the jurisdiction and limited authority possessed by the judge of probate under the Constitution and laws of this state, do not constitute malfeasance in the discharge of official duties and therefore furnish no legal ground for removal.

We therefore find no sufficient basis for the removal of relator from his office, and the order of the Governor removing him must be vacated and set aside. State v. Eberhart, 116 Minn. 313, 133 N. W. 857, 39 L.R.A.(N.S.) 788, Ann. Cas. 1913B, 785. Subdivision 5, § 3, of chapter 261, p. 375, Laws 1917 (the Safety Commission Act), has no application. The removal proceedings were had under G. S. 1913, § 5724.

It is so ordered.

On February 4, 1919, the following opinion was filed:

Per Curiam.

In proceedings under section 5724,- G. S. 1913, for the removal of a public officer for misconduct in office, the officer proceeded against is not entitled to costs and disbursements against the Governor, where an order of removal is vacated and set aside by the supreme court on certiorari proceedings. Nor is he entitled to costs and disbursements against the persons who petitioned the Governor to institute the removal proceeding. Proceedings of this kind are solely in the public interest and those who may join, by petition or otherwise, in urging the Governor to commence the same' do not thereby become parties to the record nor subject themselves to the payment of costs on the dismissal or other unfavorable termination thereof. ■

The clerk’s taxation of costs is therefore reversed.