57 N.W. 193 | N.D. | 1893
The contest in this case is over the title to the' offices of trustee of the North Dakota Agricultural College and Experimental Station. The defendants, being in actual possession of such offices, are sought by this action, to be removed therefrom, and the relators ask at the same time that the right to hold and exercise the functions of such offices be adjudged to be in them, and that they be given actual possesion of the same. The issue of law before us was raised in the court below by demurrer to defendants’ answer to the complaint. The demurrer was overruled, and the relators have appealed from the order overruling the demurrer. The question before us is therefore whether the answer states a good defense, in view of the averments in the complaint. It appears from the pleadings that the defendants had been duly appointed to the offices which they were holding, and that their respective terms of office had not expired. Whatever title the relators have to the offices rests upon the action of the governor in removing the defendants from such offices, and in appointing the relators to fill the alleged vacancy created by such removal. We are pointed to Ch. 95 of the Laws of 1893 as containing the grant to the executive of this power of removal. It is not controverted that the proceedings were in all respects in conformity with the provisions of this law. The only question is whether at the end of those proceedings the governor had the power to remove the defendants from office. Wé are therefore called upon to construe' this act. The first section
A casual examination discloses the fact that this statute is somewhat disconnected, crude, and incomplete; yet its construction is not difficult. The particular language which it is claimed confers this power of removal is found in the last portion of the fourth section, and is this: “He [the examiner] shall report to the' governor the result of his examination, which shall be filed in the executive office, as well as any failure of duty by any financial officers, as often as he thinks required by the public interests, and the governor may cause the result of such examinations to be published, or at his discretion to take such action for the public s'ecurity as the exigencies demand.” We expressly refrain from expressing an opinion as to whether or not this language confers upon the governor the power of removal of any officer under any ciixumstances. A decision- of such a question is not necessary to the decision of this case. Conceding, for the purposes of this case, that the contention of the relators that this ambiguous language vests the power of removal in the governor
It is further urged that, at the time Ch. 95 was adopted by the legislature of this state, it had, so far as this question is concerned, received a construction by a District Court of the Territory of Dakota favorable to the relators, and that, therefore, the legislature must be presumed to have enacted it in the light of such interpretation, and with the purpose of having it incorporated in, and form a part of, the act itself. There are two answers to this contention. The decision which construed Ch. 124 of the Laws of 1887 was not the decision of the court of last resort. It was a nisi firms decision. See Territory v. Coxy, 6 Dak. 501. We know of no case holding that such a construction of a statute is controlling, within the rule which incorporates in an act taken from another jurisdiction the settled construction thereof in such jurisdiction as the time it was enacted. But, in addition, we find that very material changes have been made in the law. The act of 1893 differs in several important particulars from the act of 1887, as will hereafter be shown. The section of Ch. 95 which it is insisted vests in the governor the power of removal is § 4. The section which declares it to be the duty of the examiner to examine the books and accounts of the public institutions of the state is § 3. Of course, the mere fact that the language which it is claimed gives the governor power to remove is not found in the same section which makes it the duty of the examiner to examine the books and accounts of the public institutions is not necessarily of controlling weight. The question still remains, what matters had the legislature in view when they conferred the alleged power upon the governor? This necessitates an analysis of § § 3 and 4. Section 3 makes it the duty of the examiner, among other things, to examine the. books and accounts of all public institutions under the control of the state. This section is silent as to what is to be done with any report which the examiner shall make of the result of his examination. Indeed, it nowhere requires him to make any report at all of such examination. But
We come now to the change which has been made in the statute. Section 2 of Ch. 95 of the Laws of 1893 is not to be found in Ch. 124 of the Laws of 1887. This section makes it the duty of the examiner to examine, at least once a year, the books and accounts of several state, as well as county, officers. No argument can be made in favor of the position that the language of § 4, conferring power upon the governor, is applicable to the public institutions mentioned in § 3, which cannot with equal force be employed to show that this same language is applicable also to the officers mentioned in § 2. If then, the legislature literally intended to vast the power of removal of the officers of public institutions in the governor, it intended to vest in him the power to remove the state officers mentioned in § 2. But this would render the law to that extent unconstitutional. State officers can be removed from office only by impeachment. The legislature cannot vest in the governor the power to remove them from office for any cause. Const. § § 196, 197. Had Chief Justice Tripp, in the Yankton Asylum Case, (Territory v. Cox,) been compelled to impute to the legislature the intent to violate a constitutional provision in order to place upon the statute the construction he placed upon it in that case, he would never have reached the conclusion that he did. He would not have strained the language of § 4 only to reach the conclusion that the legislature had attempted to disregard the plain language of the constitution by essaying to confer upon the governor the power to remove a state officer. Sections 2 and 3 stand, under the terms of statute, upon the same footing with respect to the alleged power of removal. If it is not conferred in § 4 with respect to the officers mentioned in § 2, neither is it conferred with respect to the officers of the public institutions mentioned in § 3. Nor are
It is insisted that, unless the power of removal exists, the work of the examiner is futile, and the statute is stripped of its efficacy, so far as the public institutions are concerned. This reasoning loses sight of the fact that the conciousness of a public official that his conduct is constantly watched by the examiner will deter him from attempting to violate his trust. The chances of detection are greater, discovery of dishonestly will follow more closely the dishonest act, and the proof will be more easily attainable, because the examiner has full power to examine into all matters which could be ascertained only with great difficulty were there no one vested with authority to look into the officer’s books and accounts. As a result of such examination, proceedings may be instituted in court, under the statute to remove the unfaithful officer, or he may be indicted. See, as bearing upon the question of removal by proceedings in court, § § 1387 to 1391, both inclusive, and § § 7080 to 7095, both inclusive, of the Comp. Laws. Were it not for constant supervision by the examiner, many officers would be able to conceal their official delinquencies until their terms of offices had expired. If the examiner performs his duty, wrongdoing in office will be speedily detected, and removal from office by proceedings in court under the statute will follow.
Several interesting canstitutional questions were discussed in the argument. But the views we entertain as to the construction of the statute render it unnecessary that we should settle them in
The order of the District Court is affirmed.