180 N.W. 49 | N.D. | 1920
Lead Opinion
The plaintiff filed a petition in the district court of Burleigh county for a writ of mandamus to compel the defendants to issue a warrant for $208.33 as the plaintiff’s salary attaching to the office of Workmen’s Compensation Commissioner for the month of April, 1920. Upon the petition the district court issued an order to show cause. On the return day an answer was filed in which it was alleged that the plaintiff had been removed from his office by the Governor acting under chapter- 162, Sess. Laws 1919. The answer also alleges the proceedings in connection with the removal in substance as follows :
Prior to the 19th day of April, 1920, charges were made to the governor that the plaintiff was carrying on a private law practice contrary to the provisions' of the Workmen’s Compensation Act; that he was incompetent and lacked the kind of qualifications which were necessary to the discharge of the duties of his office; that the Governor investigated the charges and suspended the plaintiff on April 19th, serving upon the defendant notice to that effect. The notice was contained in a letter written by' the Governor and directed to the plaintiff. The letter apprised the plaintiff that evidence had been presented. to the Governor to the effect that since his appointment and qualification he had been carrying on a private law practice, utilizing the stenographic help employed by the bureau in connection therewith; that he used office supplies of the bureau; that such practice had resulted in delaying the work of the bureau, particularly in the adjustment of claims; that through lack of executive ability, irascibility, incompatibility of temperament, lack of comprehension of the spirit of the Workmen’s Compensation Law, and general inefficiency, he has been a detriment to the bureau and particularly to the claim department; that at a public hearing conducted by the minimum wage commission, held during the month of February, he conducted himself in a manner detrimental to the public interest, was tactless in his examination of witnesses, and disrespectful and offensive to a number of them; that on account of his temperament and his intolerance toward employees of the bureau, several efficient employees had tendered their resignations and declined to remain in the employ of the bureau if plaintiff was continued as a commissioner. Plaintiff was apprised that the charges, if true, were of such a nature as to require complete
The answer further alleges that on April 20th, the Governor caused to be served upon the plaintiff a notice in writing directing him to show cause before him at the Governor’s office on April 23d, why the suspension should not be made permanent. That at the time set for the hearing on April 20th, plaintiff appeared and objected to the jurisdiction of the Governor and caused to be served upon him a statement of his objections to the jurisdiction, which statement states the objections in substance as follows:
The Governor has no power to suspend the respondent for any cause or upon any grounds; that no specific charges have been served upon respondent, setting forth any cause for his removal; that the Govern- or’s letter of April 19th was too indefinite and uncertaiñ to apprise respondent of the making of charges against him or to enable him to make preparation to contest and disprove any charges; that on account of the vague character of the charges as stated in the letter, respondent demanded to be apprised more fully; and that the time of notice was too short and the proceedings summary and arbitrary.
The answer then proceeds to allege that on April 23d the determination was made by the Governor removing the plaintiff from the office on the grounds stated in the previous letter of April 19th; that a voucher for plaintiff’s salary for the period of April 1st to 23d, 1920, had been allowed in the sum of $159.85.
A demurrer was interposed to the return upon the ground that it did not allege facts sufficient to constitute a defense to the petition. The demurrer was sustained and the defendants have appealed from the order. The only question presented upon this appeal is whether or not the answer or return states facts which prima facie in law justify the removal.
Section é of chapter 186, Session Laws 1919, the Workmen’s Compensation Law, provides:
“A workmen’s compensation bureau is hereby created in the Department of Agriculture and Labor consisting of the Commissioner of
This is not a proceeding to review the action taken before the Governor, and we cannot pass upon the sufficiency of the evidence to prove the existence of a legal ground for removal. The evidence upon which the Governor acted is not before us. We can only pass upon the sufficiency of the facts alleged in the answer to constitute' a defense to the application for a writ of mandamus. The respondent relies upon the familiar principle that where offices are created with definite terms and the incumbents are removable for cause, sufficient legal cause must exist to warrant the removal. Also that officials not removable at pleasure are entitled to a hearing for the purpose of ascertaining whether or not sufficient cause for removal exists, and that the hearing must be one at which they are given reasonable opportunity to be present, to know the nature of the charges against them, to cross-examine witnesses, and to adduce testimony to disprove the charges. Throop, Pub. Off. §§ 362, 365; Mechem, Pub. Off. § 454. We do not question any of these propositions, but we do not deem them determinative here. The answer alleges that notice was given to the petitioner of the character of the charges against him. These charges, if substantiated, in our opinion, amount to legal cause for removal. This would hardly seem to be debatable. It also alleges that a time and place was set when the petitioner would be given an opportunity to present his answer to the charges. It states the facts as to his appearance in response to the notice and of the steps taken by him at the time to protect his rights. His response was an argument against the jurisdiction of the Governor to' exercise removal powers and a statement that the charges were too vague and indefinite to admit of response. Presumably, the petitioner placed his defense to the attempted removal proceedings before the Governor upon the strongest grounds he had. Had he desired to take any other steps to preserve his rights, that was the time and place to take them. The reasonable inference to be drawn from his statement of the objections to the proceedings before the Governor is that he did not demand to know the identity of his accusers,
More specific reference to the answer may conduce to a more perfect understanding of our views. This proceeding, being here upon a demurrer to the answer and no evidence having been taken in the district court, Ave have no means of knowing the proceedings before the Governor except as they are alleged in the answer. Paragraphs 8 and 9 of the answer read as follows:
“Defendants allege that on or about 3 o’clock, p. m. on said 23d day of April, 1920, which Avas the hour designated for said hearing on said order to show cause, the said Laureas J. Wehe appeared at the said office of the said Governor Lynn J. Frazier, and objected to the jurisdiction of the said Governor Lynn J. Frazier in said proceedings, and then and there Laureas J. Wehe caused to be served on the said Governor Lynn J. Frazier a written statement of his objections to the jurisdiction of the said Governor Lynn J. Frazier in said proceedings, copy of Avhich said Avriting is hereto attached, made a part hereof, and marked, for identification, ‘Exhibit C.’
“Defendants alleged that thereafter on said 23d day of April, 1920, a determination was duly made by said Governor Lynn J. Frazier removing said Laureas J. Wehe from the office of Workmen’s Compensation Commissioner,” etc.
Manifestly, if the defendant in the removal proceedings on the 23d day of April, 1920, filed his objections to the proceedings, as alleged, and departed, the Governor could proceed to a determination of the matter upon the merits upon Avhatever evidence was before him. .And it is equally clear that if the defendant filed the objections above re
In view of the record made, there is no merit in the contention that the time of notice was too short, and there is no analogy between this case and the case of Eckern v. McGovern, 154 Wis. 157, 46 L.R.A. (N.S.) 796, 142 N. W. 595, relied upon by the respondent.
While the foregoing opinion sufficiently indicates the views of the majority with reference to the issues raised by the demurrer to the answer, it may be well to mention the doubt entertained by the court as to the right of the petitioner to test the legality of his removal in a proceeding to compel ministerial officers to issue a salary warrant. In an opinion prepared by Mr. Chief Justice Christianson it is held that the plaintiff is not entitled to the writ for the reason that no ministerial duty devolves on the defendants to issue a salary warrant in favor of one against whom a removal order has been made. The majority, though agreeing to the result to which that opinion leads, does not adopt it, and our opinion is not to be construed as an implied holding on the question. In view of the discussion contained in that opinion, however, we deem it proper to say that we do not regard the question as settled by the cases of State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025, and State ex rel. Langer v. McDonald, 41 N. D. 389, 170 N. W. 873. The holding in these cases is merely to the effect that an incumbent whose term has expired cannot justify his failure to perform the ministerial act of delivering the office to a successor who presents a valid certificate of election, and when the rem
It must be apparent that the majority in this ease does not attempt to determine the ultimate right of the relator to the office. It cannot do so upon this appeal because the matter is not here. It only determines the sufficiency of the answer as against the demurrer and this is all that can properly be decided. It would seem tó be equally apparent that the concurring opinion of the Chief Justice goes much further in the direction of supporting executive usurpation, such as was condemned in the case of Eckern v. McGovern, supra, than does the opinion adopted by the majority.
The order appealed from is reversed.
Dissenting Opinion
(dissenting). The relator says that he is one of the workmen’s compensation commissioners of this state, and entitled to receive, and that the respondents should be compelled by writ of mandamus to issue and deliver to him, a warrant for his salary as such commissioner for the month of April, 1920. The respondents say that the relator was removed from office by the Governor on April 23, 1920, and has not since been, and is not now, a workmen’s compensation commissioner. A copy of the order of removal is attached to and made a part of the respondents’ return.
“The legal right of plaintiff or relator to the performances of the particular act, of which performance is sought to be compelled (by writ of mandamus) must be clear and complete.” 26 Cyc. 151.
The prevailing rule of law is that “mandamus will not lie to determine, either directly or indirectly, a disputed question of title to a public office.” Throop, Pub. Off. § 825. That is the established law in this state. State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025; State ex rel. Langer v. McDonald, 41 N. D. 389, 170 N. W. 873; Chandler v. Starling, 19 N. D. 144, 121 N. W. 198.
In State ex rel. Butler v. Callahan, supra, this court ruled that a person, who holds a certificate of election to an office and has qualified for such office by taking and filing the required oath of office and undertaking, is entitled to a writ of mandamus to compel admission to such office; that in such mandamus proceeding the court will not go behind the certificate of election; and that the prima facie title of the holder of such certificate cannot be defeated by averments in the return which involve the ultimate, or actual, title to the office; nor will the court “try and determine the question whether the facts set out in the answer do or do not involve the title.” This ruling was reaffirmed in State ex rel. Langer v. McDonald, 41 N. D. 389, 170 N. W. 873. In Chandler v. Starling, this court applied the same rule to a certificate of appointment by the Governor. That is, this court ruled that in mandamus such certificate of appointment is entitled to the same credence and must be given the same prima facie effect as a certificate of election; and that the court will not go behind it to determine whether the holder actually has title to the office.
While ordinarily mandamus is the proper remedy to compel the issuance of a salary warrant, where the salary is fixed by law and the proper authorities charged with the performance of such duties refuses
The respondents in this case were confronted with this situation: A person claiming to be the incumbent of a certain office made demand upon them to issue to him a warrant for his salary as such officer: but the Governor, who is vested with express authority so to do, had declared the person demanding such salary warrant to be removed from, and no longer an incumbent of, such office. If-the Governor actually had done what he asserted he had, viz., removed the relator from office, then the relator had neither prima facie nor actual title to the office. Of course, in order to issue a salary warrant to the relator the respondents must ignore the order of removal, or in effect take upon themselves the authority to adjudge it to be invalid. In these circumstances, can it be said that the law specially enjoined upon them, as a duty resulting from their offices, to issue a salary warrant to the relator ? That in the last analysis is the question here. And in my opinion that question must be answered in the negative.
Logically my remarks ought to end here,' but inasmuch as I differ from my associates both as to what issues may properly be tried in this proceeding, and the construction to be placed upon the return of the respondents, I deem it proper to indicate my views on these propositions.
Under the holding of the majority members the ultimate and actual title to the office is to be litigated and determined in this mandamus proceeding. This in my opinion is directly contrary to the principle established in State ex rel. Butler v. Callahan; State ex rel. Langer v. McDonald; and Chandler v. Starling, — supra.
The majority members hold that the return of the respondent sets forth facts sufficient to show that the relator, after due proceedings had before the Governor, was legally removed from office. While I do not believe that the question of the ultimate title of the relator to the
It will be noted that a workmen’s compensation commissioner is appointed for a definite term, and the Governor- is given no right to remove him from office except for cause. The majority members concede that it is “a familiar principle that where offices are created with definite terms and the incumbents are removable for cause, sufficient legal cause must exist to warrant the removal. Also, that officials not removable at pleasure are entitled to a hearing for the purpose of ascertaining whether or not sufficient cause for removal exists, and that the hearing must be one at which they are given reasonable opportunity to be present, to know the nature of the charges against them, to cross-examine witnesses, and to adduce testimony to disprove the charges.” Immediately following this statement, the majority members cite, Throop, Pub. Off. and Mechem, Pub. Off. § 454. Hence, I take it, that the majority members indorse what Mechem says on the subject, viz.: “Where the appointment ... is made for a definite term or during good behavior, and the removál is to be for cause, it is now clearly established by the great weight of authority, that the power of removal cannot, except by clear statutory authority, be exercised without notice and hearing, but that the existence of the cause, for which the power is to he exercised, must first he determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity-to be heard in his defense.” Mechem, Pub. Off. § 454.
The supreme court of Wisconsin has said that the jurisdictional requisites in such cases are: “(1) Reasonable notice of time, place of hearing, and of charges constituting a proper subject for investigation; (2) reasonable opportunity to defend, characterized by full disclosure of adverse evidence according to the established principles of fair judicial investigation to determine the justice of the case; (3) a decision upon proofs of record supporting it in some reasonable view.” Ekern v. McGovern, 154 Wis. 157, 46 L.R.A. (N.S.) 796, 142 N. W. 595.
Does the return in this case show that the relator was afforded these rights? The majority members say it does for the reason that in paragraph 9 of the return it is averred inter alia that on April 23d, 1920, “a determination was duly made by said Governor Lynn J. Erazier
The return or answer of the respondents alleges that on April 19, 1920, the Governor wrote a letter to the relator, commencing as follows: “Evidence has been presented to me to the effect” (here follows a statement in general teims of the alleged charges against the relator set out in the majority opinion). The letter continues: “In the light of this evidence, I feel it my duty to inquire what, if anything, you desire to state in your defense. As the charges, if true, are of such nature as to require the immediate severance of your connection with the Workmen’s Compensation Bureau. An immediate reply is requested. Failing to receive any statement from you, or your resignation on or before the 22d instant, I shall consider it my duty to remove you summarily from office. You are hereby notified that I have suspended you from the office of workmen’s compensation commissioner, such suspension to continue until the final determination of this matter.”
It further alleges that on April 20, 1920, the Governor issued the following notice to the relator: “You are hereby directed to show
It is further averred in said return that at the time appointed in the notice the relator and his counsel appeared before the Governor and filed written objections, among which were the following:
“That no specific charges have been made, filed with, or served upon the respondent setting forth any cause or causes, for his removal from office.
“That the letter of the Governor dated April 19th, is too indefinite and uncertain to apprise the respondent of the nature of the charges against him or to enable him to make due preparation to contest and disprove any charges that may have been filed or made against him as such official.”
“That the alleged charges, insinuations, and accusations attempted to be set out in said letter are so indefinite, uncertain, vague, and general, consisting of recitals and conclusions, that a person of common and ordinary understanding cannot ascertain therefrom' the nature of the charges or complaint attempted to be set forth and that, therefore, this respondent demands to be apprised more fully herein
As I construe the return or answer it was upon these proceedings, and these alone, that the Governor made the order of removal. He heard no witnesses, and received no evidence. If the order rests on anything at all it rests upon the “evidence” which tho Governor referred to in the letter of April 19th. But the relator could be removed only for legal cause, the existence of which must be determined after notice. Mechem, Pub. Off. § 454. “The Governor,” said the supreme court of Wisconsin (Ekern v. McGovern, supra) “had no right to act upon personal information not disclosed so as to afford fair opportunity to meet it. All should have been disclosed to appellant and made a matter of record.”
In the majority opinion it is said: “His [relator’s] response was an argument against the jurisdiction of the Governor to exercise removal powers and a statement that the charges were too vague and indefinite to admit of response. ’ Presumably, the petitioner placed his defense to the attempted removal proceedings before the Governor upon the strongest grounds he had. Had he desired to take any other
With all due deference to the views of my associates, it seems to me that those conclusions are wholly erroneous and contrary to the very principles they concede to be applicable to cases wherein it is sought to remove officers like the relator. When did it become the law that a party who makes an objection to the jurisdiction of a court, board, or officer; or to the sufficiency of a pleading or notice will be deemed by means of such objections to have placed his defense on the “strongest ground he had?” Manifestly, a party who makes such objections, should be and is entitled to a ruling on the objections, and if the objections are overruled, he is entitled to an opportunity to present a statement or pleading embodying his defense on the merits. Tie is also entitled to have the charges established by proofs of some sort, after notice. The officer empowered to remove may not determine in advance of the hearing that the charges are true, and ask the officer to disprove them. The incumbent of the office is presumed to be competent and to have performed his duties properly. That presumption must be overcome by evidence, after notice. As I construe the return there is no contention that that was done in this case.
The majority members say: “Had he [relator] desired to take any other steps to preserve his rights, then was the time and place to take them.” Just exactly what would the majority members have had the relator do? He interposed certain written objections, and asked, among other things, “to be apprised more fully herein.” The Governor did not say I overrule your objections, and rcfhse your request “to be apprised more fully herein.” According to the return, the only answer the Governor made was to make the order removing the relator from office. The relator had a right to make objections to jurisdiction, and to ask that the charges be made more definite and specific, He was entitled to have those objections and requests ruled on. He was justified in believing that if the Governor overruled his objec