167 N.W. 510 | N.D. | 1918
Lead Opinion
(after stating the facts as above). The first question to be determined is whether §§ 685 to 695 of the Compiled Laws of 1913 are unconstitutional for the reason that they delegate to the governor judicial powers and are in violation of § 85 of the Constitution, which provides that “the judicial power of the state of North Dakota shall be vested in a supreme court, district courts, county courts, justices of the peace, and in such other courts as may be created by law for cities, incorporated towns and villages.”
We think they are not. In the first place not only do the statutes provide for the taking of testimony and for a full hearing before the governor, but for an appeal to the courts and a trial de novo also. See § 690.
Section 690, while not perhaps as complete and detailed in its provisions as it might be, is nevertheless sufficiently definite to provide for a legal appeal and for a trial de novo in the district court in'the manner followed in the cases of appeals from justices and county courts where a trial de novo is asked, that is to say, in the same general manner “as actions originally commenced” in the district courts. See §§ 8620 and 9172, Comp. Laws 1913.
This certainly amounts to due process of law.
In the second place the Constitution expressly provides:
Section 197. “All officers not liable to impeachment shall be subject to removal for misconduct, malfeasance, crime or misdemeanor in office or for habitual drunkenness or gross incompetency in such manner as may be provided by law.”
Section 130. “The legislative assembly shall provide by general law for the organization of municipal corporations, restricting their powers as to levying taxes, etc.”
This latter provision has been construed in Glaspwell v. Jamestown,
We are here dealing with departments of government, and not with mere private rights. Atty. Gen. ex rel. Rich v. Jochim, 99 Mich. 358, 367, 23 L.R.A. 699, 41 Am. St. Rep. 606, 58 N. W. 611. Section 130 of the Constitution, which confers upon the legislature the power to provide for the organization of municipal corporations, in no way limits that power except in the matter of levying taxes, borrowing money, and contracting debts. The legislature was given the power to provide any method of government it chose or for any method of selecting officers. It could have provided for the appointment of municipal officers by the governor alone.' There is nothing in the provision that prevents the legislature from providing for the election of such officers and the holding of their offices subject to the governor’s right of removal.
While the power to remove from office is generally regarded 'as a power possessed by the courts, in the absence of an express or implied grant to another authority in the government, this power may be exercised by the legislature or may be delegated by the legislature to some other authority. 28 Cyc. 433; 29 Cyc. 1371; Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502; State ex rel. Clapp v. Peterson, 50 Minn. 239, 52 N. W. 655.
It is generally held that the power of removal from office is not a judicial but an administrative power, though it should be exercised in a judicial manner. The exigencies of the government often require the prompt removal of corrupt or unfaithful officers, and, such being the case, the legislature has the power to provide for removal. Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502; Re Guden, 171 N. Y. 529, 64 N. E. 451; Cameron v. Parker, 2 Okla. 277, 38 Pac. 14; State ex rel.
The state indeed “is not so bound by the term, ‘due process of law,’ that it is impossible for it to investigate its agents without subjecting itself, so far as their removal is concerned, to the delays and uncertainties of strict judicial action.” Atty. Gen. ex rel. Rich v. Jochim, 99 Mich. 358, 23 L.R.A. 699, 41 Am. St. Rep. 606, 58 N. W. 611; State v. Borsted, 27 N. D. 533, 147 N. W. 380, Ann. Cas. 1916B, 1014.
The same considerations apply to the objection that, although § 690 provides for an appeal and a trial de novo, it denies that trial in the particular county of the official’s residence.
As we have before pointed out, the matter is administrative rather than judicial, and involves the right to a public office rather than private property rights. Atty. Gen. ex rel. Rich v. Jochim, supra. It is also to be remembered that in the case of Barry v. Traux, 13 N. D. 131, 65 L.R.A. 762, 112 Am. St. Rep. 662, 99 N. W. 769, 3 Ann. Cas. 191, we held that the right to a trial by a jury in the county of one’s own residence is not unconditional, but is always subject to the exception that the case may be removed either upon the application of the prosecution or the defendant when necessary to secure a fair and impartial trial. It was evidently the feeling of the legislature that in matters such as that before us an impartial trial could not be held in the county of residence on account of the political feeling which must necessarily there exist.
The case is not one where a jury is guaranteed by the Constitution. Although the right to an office often involves property, it is not strictly a property right. See Atty. Gen. ex rel. Rich v. Jochim, supra. The office is created by the legislature, and the holding of it is not based on any personal or primary rights. When the petitioner was elected he accepted the office subject to the limitations which were placed thereon .and subject to the method of removal which the statute provided. It is also to be noted that the defendant, though denied the right to a trial in his own county, may select any other that .he chooses.
Nor does the fact that § 3835 of the Compiled Laws of 1913, which was passed as chapter 67 of the Laws of 1911 and chapter 29 of the Laws of 1913, provides for a popular recall of city commissioners, alter the situation. At the most two remedies are afforded the public
The grounds of relief, too, are entirely different, and that afforded by § 38 of chapter 4=5 of the Laws of 1907, which provides for recall, is-much more comprehensive than that afforded by chapter 685 of the' Compiled Laws of 1913. Section 65 of the Compiled Laws of 1913 merely provides for a removal in the case of “misconduct, malfeasance, crime in office, habitual drunkenness, or gross incompetency,” that, is to say, for direct wrongdoing or gross incompetency. Section 3835 of the Compiled Laws of 1913 requires no reason to be given, and merely provides that “the holder of any elective office in cities which may adopt or have adopted the commission plan of government under any of the laws of this state applicable thereto may be removed at any time-by the electors qualified to vote for a successor of such incumbent.”
Under this act all that is necessary is a petition for removal, and no fault or crime or kind of malfeasance need be specified or mentioned. It is clear that under it persons may be removed for political fault merely, and, in fact, without any fault. Its intention was clearly to-retain in the people the political control over their city officers and the-control of the legislative policies of such officers.
Its enactment was due to the fact that the commission form of government removed city officers in a measure from the direct control of their wards and constituencies, and that the legislature feared that in certain instances such officers might adopt policies of government and of legislation which they might not approve.
The act in question also clearly provides that “this said method of removal shall be cumulative and additional to the methods heretofore provided by law.” Though this provision uses the words, “heretofore provided by law,” it also clearly expresses the intention that the method shall be cumulative. Even if it provided otherwise it would not be controlling upon the legislature of 1913, which passed the Removal Act which is before us, as it is elementary law that no legislature can tie the hands of its successors.
Nor is there any merit in the contention that the statutes before us interfere with the right of home rule and local self-government. These rights are often imaginary rather than real, and are all subject to con
As we have before pointed out, cities are of legislative creation, and the power of the legislature to exercise control over them is conferred by the Constitution.
We are not unaware of the decision of this court in the case of Ex parte Corliss, 16 N. D. 470, 114 N. W. 962, but, as pointed out by us-in the case of Runge v. Glerum, 37 N. D. 618, 164 N. W. 284, that case merely forbids interference with officers, such as sheriffs and district attorneys, whose offices are provided for and “embedded” in the-Constitution, and does not in any manner hold it unlawful for the legislature to control officers and offices which are not of constitutional creation or the policies of cities which it alone has the power to create.
Nor is there any merit in the contention that the petition is indefinite,, and that conclusions rather than facts are pleaded.
Even if the petition were defective in the particulars stated, and on this we express no opinion but rather incline to the contrary view, tibisis a writ of prohibition, and a writ of prohibition is only issued when an inferior court or tribunal is acting without jurisdiction. Where an inferior court has jurisdiction of the matter in controversy, prohibition will not lie. The writ does not lie to prevent a subordinate court from deciding erroneously or from enforcing an erroneous judgment in a. ease in which it has a right to adjudicate. 23 Am. & Eng. Enc. Law,, 198, 200. There can be no doubt that the governor of North Dakota had jurisdiction in the matter which is before us.
This brings us to a consideration of the question whether § 685 of the Compiled Laws of 1913, under which the removal is sought to be effected, is in any event applicable to the’president of a city commission. Does the word “mayor,” which is used in the statute, include such an officer? Do the words, “or other police officers,” also include him?
We are satisfied that the term, “or other police officers,” does cover such an official. We realize that there is a contrary holding in the case of People v. Gregg, 59 Hun, 107, 13 N. Y. Supp. 114, 115. That case, however, was a criminal case, and all that the charter of the city provided was that “as the head of the police of the city he shall preserve peace and order therein.” And all that the statute provided was that it should be unlawful for any police official in the several cities.
There was in the statute no enumeration of officers, and there was nothing in the charter or in the statute which specifically imposed any police duties on the mayor.
In our opinion § 685 of the Compiled Laws of 1913 expressly sets .apart and enumerates as subject to its provisions all of what may be termed the administrative police officers of a city. The word “police” has been defined as “that species of superintendence by magistrates which has principally for its object the maintenance of public tranquility among the citizens. The officers who are appointed for this purpose are also called the police.
“The word ‘police’ has three significations. The first relates to the measures which are adopted to keep order, the laws and ordinances on •cleanliness, health, the markets, etc. The second has for its object to procure to the authorities the means of detecting even the smallest attempts to commit crime, in order that the guilty may be arrested before their plans are carried into execution and delivered over to the justice •of the country. The third comprehends the laws, ordinances, and other measures which require the citizens to exercise their rights in a particular form.
“Police has also been divided into administrative police, which has for its object to maintain constantly public order in every part of the •general administration; and judiciary police, which is intended principally to prevent crimes by punishing the criminals. Its object is to punish crimes which the administrative police has not been able to prevent.” Bouvier’s Law Dict.
There is, in our minds, no doubt that the president of a city commis•sion belongs to such administrative police body, and that he is included in the phrase, “mayor, chief of police, deputy, sheriff, or other police •officers.” We are cognizant of the rule known as ejusdem generis, and that “where general words follow the enumeration of particular classes of persons or things the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The particular words are presumed to describe certain species, and the general words to be used for the purpose of including other species of the same genus. The rule is based on the obvious rea
It is to be noticed, however, that this quotation, which undoubtedly expresses the law, speaks of particular classes, and not of any particular class, and it is clear that what the genus is must be determined by all which are mentioned.
It is also clear to us that the president of a city commission belongs to the genus and is therefore included within the term, “or. other police officer.” Though not in all of his powers and duties, identical with a mayor, he is certainly an officer of like kind and character. He is certainly a member of the administrative police.
Section 3833 of the Compiled Laws of 1913 provides that “whenever, in the laws not repealed by this act, the words ‘town council, city council, or village board’ appear, it shall mean board of city commissioners; the word ‘mayor’ or ‘president’ shall mean president of the board of city commissioners. Whenever the words ‘city commissioner’ are used in this chapter they shall be construed to mean and include village commissioners.”
Section 3834 provides: “All the provisions of law now in force or which may hereafter be passed by the legislative assembly in relation to the powers, duties or privileges of the president of boards of trustees of towns or villages, or mayors of cities, are hereby granted to the president of the board of city commissioners, and except where inapplicable all the provisions of law now in force or hereafter passed by the legislative assembly in relation to the powers, duties or privileges of town or village trustees, or other municipal boards thereof, or the powers, duties or privileges of city councils are hereby granted to the board of city commissioners provided for in this chapter; provided, cities incorporated under this chapter shall for all purposes according to their respective population retain the classification otherwise provided by law.”
Section 3195 provides that “the president of said board of commissioners shall be the executive officer of said city, and shall see that all the laws thereof are enforced.”
-, Section 3571 provides: “Ho [the mayor] may exercise within the city limits the powers conferred upon sheriffs to suppress disorder and keep the peace.”
Section 3573 provides: “He [the mayor] shall perform all such duties as are or may be prescribed by law or by the city ordinances, and shall take care that the laws and ordinances áre faithfully executed.”
“Police,” says Clark’s Dictionary, on page 906, “is -the function of that branch of the administrative machinery of the government which is charged with the preservation of public order and tranquility, promotion of public health, safety and morals, and the prevention and detection and punishment of crimes.”
We are satisfied that the president of a city commission has such police powers, and that he is a member of the administrative branch of the city police. It may be, as suggested by counsel for the petitioner, that, under the commission form of government, there is a city police commissioner who in a large measure acts as a chief of police. It may also be true that appointments and removals are made by the commissioners as a whole rather than by the president of the commission, and
It is no doubt true that the president of a city commission has no veto power, and has not the control of legislation which was formerly possessed by the mayor. It may be that the president of a city commission has not the unlimited power to discharge employees and officers, but he has none the less imposed upon him the duty to enforce the laws even if he has not the power to make them. He has none the less the duty to see that all the police officers perform theirs.
He has the unlimited power to summon and control a special police force when such police force is necessary. He certainly has not the power to connive at a maladministration of the law.
This again leads us to a determination of the question (though the same is hardly necessary) whether the term “mayor” as used in § 685 of the Compiled Laws of 1913 includes the president of a city commission.
We are satisfied that it does. Section 3833 of the Compiled Laws of 1913 and a section of the very act which created the Commission form of government provides: “Whenever, in the laws not repealed by this act, the words, 'town council, city council, or village board,’ appear, it shall mean board of city commissioners ; the word 'mayor’ or 'president’ shall mean president of the board of city commissioners. Whenever the words 'city commissioners’ are used in this chapter they shall be construed to mean and include village commissioners.”
Section 3831 also provides: “All the provisions of law now in force or which may hereafter be passed by the legislative assembly in relation to the powers, duties or privileges of the president of boards of trustees of towns or villages or mayors of cities, are hereby granted to the president of the board of city commissioners, and except where inapplicable all the provisions of law now in force or hereafter passed by the legislative assembly in relation to the powers, duties or privileges of town or village “trustees, or other municipal boards thereof, or the powers, duties or privileges of city councils are hereby granted to the boai’d of city commissioners provided for in this chápter; provided, cities incorporated under this chapter shall for.all purposes according to their respective population retain the classification otherwise provided by law.”
This is evidenced not merely by the statutes referred to, but by the fact that since the passage of the act which created.the commission form of government in 1907 the legislature has almost uniformly adopted the practice of using the words, “mayor” and “city council,” interchangeably, and in acts which relate clearly to the presidents of city commissions and to such commissioners. See § 2825, chap. 58, of the Laws of 1909; § 2826, chap. 58, of the Laws of 1909; § 26, chap. 92, of the Laws of 1907; § 1, chap. 49, of the Laws of 1909; § 1 chap. 55, of the Laws of 1909; § 2, chap. 56, of the Laws of 1909 ; § 1, chap. 69, of the Laws of 1911; § 2775, chap. 70, of the Laws of 1911; § 2776, chap. 70, of the Laws of 1911; chap. 71 of the Laws of 1911; chap. 69 of the Laws of 1911.
The judgment of the District Court is affirmed.
Dissenting Opinion
(dissenting). It seems to me that the first question to be determined in this case is whether the statute authorizing removals by the governor includes the president of a city commission among the officers subject to such removal. And I am frank to confess that I have not found.this question to be as simple or easy to solve as have some of my brethren. The great fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. This intention must first be sought in the words and language employed, and where the meaning of the language used is plain there is no occasion to resort to other means of interpretation. And such language must be given effect by the courts, or they would be assuming legislative authority. 36 Cyc. 1106; Sutherland, Stat. Constr. § 237. It is only where the language of a statute has a doubtful meaning, or where its provisions are contradictory, or where an adherence to the strict letter
The statute authorizing the governor to remove certain officers does not specifically enumerate the president of a city commission, and the question is whether the legislature intended to and did include such officer in the terms, “mayor” or “other police officers.” The statute in question was enacted by the legislative assembly in 1913. In the message of the retiring Governor Burke, delivered on January 8, 1913, he strongly recommended the enactment of such legislation. He called attention to the fact that each platform upon which he had been elected governor in 1908 and 1910 contained a plank in favor of such law, and that bills providing therefor had been introduced in the legislative sessions in 1907, 1909, and 1911. The reason urged by Governor Burke for the enactment of such Removal Statute was that the Oonstitution commanded the governor to enforce the laws of the state, and that the power to remove should be vested in the governor in order to enable him to carry out this constitutional command. In support of his argument, he referred to the power vested in the President of the United States and his duties under the Federal Oonstitution to see that “the other executive and administrative officers of the government faithfully perform their duties, which are prescribed by the statutes. See House Journal 1913, pp. 185-189. The law under consideration was enacted by the legislative assembly to which Governor Burke delivered this message. It was entitled “An Act Providing for the Removal of Oounty, Township, Municipal and Other Officers.” Laws 1913, chap. 132. The same legislative assembly, at the same session, and in fact on the same day, enacted another act “to provide for a means of removal of elective officers by the will of the people.” This law applied to and authorized the removal of “the holder of any elective office in cities which may adopt or have adopted the commission plan of government,” by the electors of such cities. Laws 1913, chap. 79.
It is true, the adoption of this latter method of removal did not necessarily signify any intention on the part of the legislature that this method should be exclusive, as the legislature might, if it desired, provide two methods of removal. But the significant fact still remains that the legislature at the same time considered and enacted two laws for the removal of public officers. It considered not only the methods
The laws of this state provide two different plans of city government. The first plan is the one generally adopted in this country. It is a complete copy in miniature of the government of the United States and of the state. The mayor is the chief executive officer, with no legislative power except that of veto. The city council constitutes the legislative department. The second plan is known as the commission plan. It originated in Galveston, Texas, after the great inundation in 1900. There are fundamental differences between the two systems. In discussing the two forms of city government, a well-known legal writer has said: “Its [the commission plan’s] essential feature is to center responsibility, and render the officers directly accountable to the people by providing fewer head officers; and its chief merit, as claimed by its advocates, is that it simplifies municipal administration. It usually incorporates the referendum, initiative, and the recall. The names of candidates for office, who are few, are arranged alphabetically on the ballot, and emblems or devises and party names are forbidden. The officers are elected at large, and do not represent wards or districts, but
“The commission plan seems to have sprung from the conception that municipal government is merely a business question, and therefore it should be conducted in substantially the same manner as a large business corporation. That is, the conduct of the affairs of the local government should be assimilated as far as practical to the most efficiently managed private business. . . .
“Apart from the commission plan mentioned, the disposition to increase the powers of the mayor and thus center the responsibility upon this official appears to be the present idea in this country in municipal governmental development. The fundamental principle is that the office of mayor should be ‘clothed with dignity and real authority,’ and that he should have ample power to control fully the administration of all municipal affairs. In addition to the veto power, which is his chief agency in legislation, many thinkers and writers contend that he should have ‘the sole right to appoint and the unrestricted power to suspend or remove subordinate officials or heads of departments.’ . . .
“The idea of the autocratic mayor, which contemplates giving him all executive and administrative power and restricting the governing or legislative body, which may not be inaptly termed “the cure or kill remedy,” while objectionable in some respects, appears in the opinion of many to offer the best solution of the municipal problem touching the selection of officers and the centering of responsibility.” McQuillin, Mun. Corp. §§ 92, 93.
Speaking of the commission plan, a-critical student of city government says: “The healthful kernel of this new movement is that it rests upon an abiding faith in the efficacy of public control. It places responsibility for good government exactly where it belongs, namely, on the people themselves, and makes necessary the development of a well-organized public, opinion.” Rowe, Problems of City Government, chap. 8, p. 190.
A reference to our statutes will show the aptness of these observations. The mayor appoints all the appointive officers of the city, including the city auditor, city assessor, city attorney, and chief of police. Comp. Laws 1913, §§ 3580-3612. He is also authorized to fill by
Considerable importance is attached by the majority members to § 3796, Comp. Laws 1913. This section provides: "Whenever the president of the hoard of city commissioners shall deem it necessary, in order to enforce the laws of the city, or to avert danger, or protect life or property, in case of a riot or any outbreak, or calamity or public disturbance, or when he has reason to fear any serious violation of a law or order or any outbreak, or any other danger to said city or the inhabitants thereof, he shall summon into service, as a special police force, all, or as many of the citizens as in his judgment and discretion may be necessary and proper; ...” This language speaks for itself. The powers conferred by this section upon the president of a city commission are for unusual occasions. It is interesting to note in this connection that the mayor of the city is authorized not only to call on the male inhabitants of the city to aid in enforcing the laws and ordinances, but may also call out the Militia to aid in suppressing riots or rather disorderly conduct, or to carry into effect any law or ordinance, subject only to the authority of the governor as commander in chief of the Militia. Comp. Laws 1913, § 3576. Manifestly § 3796 is not intended to and does not vest the president of the city commission with power to appoint policemen of the city except in cases of emergency, such as riot or other unusual disturbance, but
Reference is also made in the majority opinion to §§ 3833 and 3834, Comp. Laws 1913. These sections were part of the act providing-for the commission form of city government. The act was entitled “An Act to Provide for a Commission Form of Government in Cities Which Shall Adopt the Provisions of This Act.” Manifestly many provisions, such as the levy of taxes and special assessments, and other statutory provisions relative to the administration of city affairs, would be equally applicable to either form of government. The existing statutes, however, referred to the “mayor”'and “city council.” Consequently, in order to avoid the necessity of • re-enacting these provisions as a part of the law providing for the commission form of government, or to avoid any doubt as to what provisions were applicable,, the legislature said: “Whenever, in the laws not repealed by this act, the words, 'town council, city council, or village board,’ appear, it shall mean board of city commissioners; the word 'mayor’ or 'president’ shall mean president of the board of city commissioners.” Whenever the words, “city commissioners,” are used in this chapter they shall be construed to mean and include “village commissioners.” Comp. Laws 1913, § 3833. And “all the provisions of law now in force- or which may hereafter be passed by the legislative assembly in relation to the powers, duties or privileges of the president of boards of trustees of towns or villages, or mayors of cities, 'are hereby granted to the-president of the board of city commissioners, and except where inapplicable all the provisions of law now in force or hereafter passed by the legislative assembly in relation to the powers, duties or privileges of town or village trustees, or other municipal boards thereof, or tiie powers, duties or privileges of city councils are hereby granted to the board of city commissioners. ...” Comp. Laws 1913, § 3834. The legislature in enacting these provisions obviously had in mind only-city government. The sole purpose of these sections was to make-applicable, as far as practicable, under the commission form of government, the general provisions of law applicable alike to both plans of city government. These provisions should be applied for the purpose intended. It should not be assumed that a subsequent legislature in
It has been said that “it is generally safe to reject an interpretation that does not naturally suggest itself to the mind of the casual reader, but is rather the result of a laborious effort to extract from a statute .a meaning which it does not at first seem to convey.” Ardmore Coal Co. v. Bevil, 10 C. C. A. 41; 21 U. S. App. 96, 61 Fed. 151; Shultis v. MacDougal, 162 Fed. 331, 340. The majority opinion demonstrates quite clearly that the interpretation placed upon § 685, Comp. Laws 1913, is not one which “naturally suggests itself.” It is only by a laborious effort, and by applying terms contained in statutes passed by other legislative assemblies for wholly different purposes, that the majority is enabled to say that this section applies to the president'of a city commission.
When we consider the fundamental differences between the two forms of city government; that the same legislature on the same day passed two removal measures; that one of those specifically authorized removal of a mayor by the governor, but was silent as to the president of a city commission, while the other expressly authorized the removal of the president of the city commission by the electors of the city, but did not authorize the removal of a mayor in this manner, — it seems to me that no one can say that the legislature intended to include the president of a city commission in the first removal measure.
In view of what I have said, it is unnecessary for me to express any opinion on the constitutional questions raised. But inasmuch as the majority members have found it necessary to consider this question, I deem it proper to say that I am of the opinion that the Removal Statute under consideration is constitutional, I am not prepared, however, to concur in the discussion of the constitutional questions in the majority opinion. Whether the legislature has power to authorize "the removal of an elective officer by the governor without permitting such review is a question of grave importance and considerable doubt, and one upon which I express no opinion. The question is clearly not involved in this case, as the Removal Statute before us provides for a judicial review of all questions.
Some reference is made in the majority opinion to § 130 of the .state Constitution, and it is intimated that this section confers upon
The section reads: “The legislative assembly shall provide by .general law for the organization of municipal corporations, restricting their powers as to levying taxes and assessments, borrowing money and contracting debts, and money raised by taxation, loan or assessment for any purpose shall not be diverted to any other purpose except by authority of law.”
Manifestly this section does not confer upon the legislature any power or authority to deal with municipal corporations which it would not possess under the grant of legislative power. On the contrary it is rather a limitation upon the general grant of legislative power. It is a declaration of a constitutional policy with respect to the legislation relating to municipal corporations which the legislature is commanded to enact.
No one doubts the legislative power by appropriate laws to create, dissolve, supervise, or direct the conduct of the affairs of municipal corporations. This power, however, is subject to the limitations found in the state and Federal Constitutions, and this court has not hesitated to adjudge invalid statutes relating to municipal corporations which violated the state Constitution.
Thus, in Glaspell v. Jamestown, 11 N. D. 86, 88 N. W. 1023, this court held that it was beyond the power of the legislature to authorize proceedings for changing the boundaries of cities to be instituted in the district courts, for the reason that the power exercised in changing •such boundaries was legislative and consequently could not be vested in the courts. And in Plummer v. Borsheim, 8 N. D. 565, 80 N. W. 690, this court held invalid as an unreasonable and arbitrary classification a statute relating to the organization of school townships.
Dissenting Opinion
(dissenting). This is an appeal from an order of the district court by Judge Cole, dismissing a writ restraining proceedings by the governor to remove W. S. Shaw from the office of president of the city commissioners of Minot. The defense is: (1) That the complaint does not state a cause for removal; (2) that the statute does not authorize a removal; (3) that the statute is not constitutional.
The statute reads thus: The governor may remove from office any
The complaint is in effect that as president of the city commissioners, W. S. Shaw knowingly permitted to be kept numerous places in Minot,, where intoxicating liquors were sold and given away, and that he permitted bawdyhouses, gambling houses, to be kept within the city; that he is a member of the Elks Lodge and visited the place known as the-“Elks Home,” where people assembled for the purpose of drinking-intoxicating liquors, and that on many occasions he did there drink intoxicating liquors and participate with the club in the illegal sale-of intoxicating liquors.
The same might be said of the mayor of St. Paul, Minneapolis, and nearly every other city. They all permit numerous things to be done-which they cannot well prevent. They belong to clubs and may innocently participate in the doings of the clubs. The Lord knowingly permits the doing of such things and still he has an absolute power to= prevent them. The clergy and some of the best men on earth do knowingly permit the doing of many things which by extra vigilance and. self-sacrifice they might prevent. No facts are stated to show that: Mr. Shaw is a bad or immoral man, or that he is a drunkard or that, he is incompetent, or that he is not the choice of the voters of Minot. So far as the record shows, were he removed from office to-day, to-morrow or in a few days the people of Minot might re-elect him. If his. recall is demanded by the citizens of Minot, they have a plain, speedy,, and adequate remedy. They have only to file with the city auditor a proper petition demanding a recall and the election of a successor. Then the board of city commissioners must fix a date for holding such election. The person subject to removal may be a candidate; and the-candidate receiving the highest number of votes is elected.
Aside from all that, there is a regular judicial procedure by which an officer may be removed for crime or malfeasance in office. 2. The
On the constitutional validity of the act, it is proper to consider what might be done under it or under similar acts. An office is property, it affords a living. It is an annuity. It is probable that the office in question gives an annuity of $1,000 a year. In some cities (not in this state) the head of a city commission is hired for his expertness and is paid from $5,000 to $10,000 a year. Now if a statute may authorize the governor or any other person in a summary manner to deprive any city commissioner of his annuity, why may he not in like manner under a similar statute deprive any person of his lands and possessions? Such was the power exercised by the great feudal lords. But now we have written constitutions, both state and Federal, which provide that no man shall be deprived of his property without due process of law. That includes and guarantees a hearing and a trial according to the law of the land and the established course of judicial procedure. By the constitution the judicial power of the state is vested in the courts. They alone are given jurisdiction to hear and determine matters of legal dispute regarding personal and property rights. When .a charge is made that a person is guilty of ■ misconduct in office and he denies the charge, then, to establish it and to deprive him of his office and his annuity, there must be a trial by some competent tribunal, the taking of testimony, deliberation, and determination. The tribunal must have jurisdiction, which means a right to speak and determine the law and the facts of the case.' This power is judicial. It. is given exclusively to the courts and it may not be given to the governor.
The case presents another feature which was considered in a case arising under a statute authorizing the governor to appoint a temperance commissioner to act in any county as a state’s attorney in the prosecution of liquor cases. The act was held void. The court said: The constitutional method of local administration of laws cannot be changed by the legislative assembly because they are of opinion that the local officers will not honestly administer such duties. In adopting the Constitution the people decided that the local officers will administer the law better than anyone else, and the legislative department is powerless to impeach their judgment. Ex parte Corliss, 16 N. D. 410, 114 N. W. 692.
There is great wisdom in permitting those of the same community to manage their own local affairs. They grow in sympathy and mutual kindness. They observe the precept: “Bear ye one another’s burdens,” and they naturally resent interference from outsiders. It is sure to do more harm than good.
The act is not constitutional. It does not authorize the removal of any city commissioner, and the complaint does not state facts showing a cause for removal.