59 P. 351 | Kan. | 1899
Lead Opinion
The opinion of the court was delivered by
The proceedings by virtue of which the defendants in error were removed were instituted under chapter 239, Laws of 1889. (Gen. Stat. 1897, ch. 6, §§33-35; Gen. Stat. 1899, §§ 6362-6364.)
The amended charges never having been brought to his attention, we think the committee was without jurisdiction to consider the same or act thereon. The governor acted under the affidavit filed is his office on the 29th day of March, 1899, and the investigating committee was appointed in pursuance thereof; and it is but fair to the persons whose conduct was under investigation to confine the inquiry to the charges which moved the governor to act in causing the committee to be appointed and the officers removed during the investigation. To permit an investigation to proceed upon a complaint not brought to the attention of the governor would result in a trial being had upon charges which the executive might not deem trustworthy or entitled to credit. Mr. Justice Johnston, however, does not concur in this view,, and is of the opinion that the committee had full jurisdiction to pass upon all the charges contained in the amended complaint.
The original affidavit accused the defendant in error Limbocker with having drawn from the treasury the sum of fifteen dollars per month for providing meals to
“ FINDINGS.
“ First charge. We find that John N. Limbocker and C. B. Hoffman were, at and during the time complained of in said charge, regents of the Kansas State Agricultural College, and that John N. Limbocker was the president of said board of regents, and the said C. B. Hoffman was treasurer.
“A revolving fund of $300 was appropriated and set aside by Regent and Treasurer Hoffman, and placed to the credit of John N. Limbocker in the Dickinson County Bank, for the purpose of maintaining a dining-hall where meals were to be furnished to students, members of the faculty and other persons visiting said college, at such prices and on such terms as provided by the board of regents.
“We further find, that Regent John N. Limbocker was by the said board of regents of which he was a member engaged and employed as the purchasing agent for said dining-hall at the salary of fifteen dollars per month ; that pursuant to said employment, and while acting as a regent of said college, he entered upon the discharge of the duties as such purchasing agent, on or about the 1st of September, 1898, and continued to so act until the date of his suspension, which occurred on the 29th day of March, 1899.
“ We further find, that the treasurer of said college paid to said John N. Limbocker, for services aforesaid, the sum of $105.
“Second charge. We find that the meetings alleged to have been held on the 2d, 3d, 5th and 6th days of July, 1897, were held without any quorum being present at any of said meetings, and that teachers were hired, salaries were fixed, appropriations of money were made and a vast amount of other business was transacted during said time; that at no time during the July meeting after the first day of said month was there a quorum present, and that only three regents, to wit, Hudson, Hoffman, and Limbocker, were present.
“We further find, that among other matters of business that were transacted during the month of July, and when no quorum was present, a manifesto was issued and published setting forth various reasons for change in the management of the college, and that said manifesto purported to be the act of all the board of regents of said college, when in fact and in truth the only regents present and giving sanction to said
“That the minutes of said meeting held on the 2d day of July, 1897, recite that the ‘board met,’-when in fact and in truth only three members of the board met; that there was no recitation in the minutes of said meeting held on the 2d day of July, 1897, that showed that no quorum was present, but the minutes of July 3, 5 and 6 show that no quorum was present and no business transacted except to adjourn.
“We further find, that at the September, 1897, meeting of the said board of regents a resolution was -passed approving the minutes of the said meeting as held on June 30 and ending July 6, inclusive, and alleging that each and every part thereof was adopted and made a part of the regular action of the board of said meeting, and thereby declaring the same to be fully ratified and confirmed as done at said July meeting.
“We further find, that during the interim between July and September Regent Kelley died and Mr. G. M. Munger was appointed in his place, and attended and participated in said September meeting, and the votes in favor of said ratification were cast by Hoffman, Hudson, Limbocker and Munger. But there was no correction of the minutes óf said July meeting to show that no quorum was present.”
The finding that regent Limbocker was employed by the board as purchasing agent for the students’ dining-hall, at a salary of fifteen dollars per month, during the time he was performing his legal duties as regent, and that he was paid by the treasurer of the college $105 for services as such purchasing agent, brings his acts within the prohibition of section 400 of chapter 100 of the General Statutes of 1897 (Gen. Stat. 1899, § 2317), which reads :
“All officers, state and county, and all officers appointed or elected for the purpose of overseeing and directing any of the public improvements of the state,
Limbocker profited to the extent of fifteen dollars per month by doing work in and about the office of regent held by him. He did work for the college for a compensation, under contract with the board of regents, in a matter over which he had, as one of the regents, in whole or in part, direction or control. It matters not that the regents, under the law, are given general supervision of the college and the direction and control of all expenditures. (Gen. Stat. 1897, ch. 57, §9; Gen. Stat. 1899, §6541.) They cannot, in the exercise of such authority, employ one of their number to do any work in or about the office held by him, or over which he has any supervision. The purpose of the law is to remove a regent from all temptation. Section 7, chapter 57, General Statutes of 1897 (Gen. Stat. 1899, § 6530) (reads : “No one connected with the college as professor, tutor, teachers or employee, shall be a regent.”
So, in the case of Triplett v. Munter, 50 Cal. 644, which was a trial upon an information charging the receipt of illegal fees, the court held that the statute under which the respondent was sought to be removed from office was highly penal in its nature. In McMaster v. Herald, 56 Kan. 231, 42 Pac. 697, the court quoted approvingly from Lynch v. Chase, 55 Kan. 367, 368, 40 Pac. 669, as follows :
“In a summary proceeding for the removal of officers under the statute the same formality and precision are not required as in a trial before a court, and the accused cannot claim the benefits, incidents and common-law rights pertaining to such a trial.”
Again, in Lynch v. Chase, supra, in commenting on the nature of proceedings under this statute, the court said :
“As the committee does not constitute a court, and as the incidents and common-law rights of a court trial are not required, the objections made in regard to
In criminal prosecutions, where the statute contains nothing requiring acts to be done knowingly, and the acts done are not malum in se, or infamous, but are merely prohibited, the offender is bound to know the law, and a criminal intent need not be proved. [The State v. Bush, 45 Kan. 138, 25 Pac. 614.) In Falloon v. Clark, ante, p. 121, 58 Pac. 990, 992, it is said:
‘ * The only ground of removal by impeachment is ‘misdemeanor in office,’ and these words, we think, are used in a parliamentary sense, and mean misconduct in office. It is something which amounts to a breach of the conditions tacitly annexed to the office, and includes any wrongful official act or omission to perform an official duty.” (See, also, State v. Leach, 60 Me. 58; Rogers v. Morrill, 55 Kan. 737, 42 Pac. 355.)
It is contended that, while the committee finds that Limbocker was paid fifteen dollars monthly by the treasurer of the board of regents, there is no finding to show out of what fund he was paid. The report contains the following:
“We further find, that Regent John N. Limbocker was by said board of regents, of which he was a member, engaged and employed as the purchasing agent for said dining-hall at the salary of fifteen dollars per month. . . .We further find that the treasurer of said college paid to said John N. Limbocker for services aforesaid the sum of $105.”
The additional finding is made that the regents set
The second finding, that meetings were held on July 2, 3, 5, and 6, 1897, by three regents only, viz., Hudson, Hoffman, and Limbocker, and that teachers were hired, salaries' fixed, and appropriations of money made, and a vast amount of other business transacted, shows misconduct of the clearest kind. Seven regents constitute the board, and a majority constitute a quorum. (Gen. Stat. 1897, ch. 57, §§ 5, 8 ; Gen. Stat. 1899, §§ 6529, 6532.) While it is true that in September, 1897, at a meeting of the board, the minutes of the said meetings, as held on June 30 and ending July 6, inclusive, were ratified and confirmed, the ratification was done, however, by four members, one of whom (Munger) was not a regent at the time the July meetings were held, but was appointed afterward to fill a vacancy.
In the minutes of the meeting held by Hudson, Limbocker and Hoffman on July 2, there was no recital that a quorum was not present. This was one of the meetings at which the committee found that a vast amount of business was transacted, such as hiring teachers, fixing salaries, etc. While but three members were present and acted, the minutes were so written as to carry the presumption that a legal quorum participated. The attempt subsequently to ratify the acts of a minority of the board could have no reference to the meeting of July 2, for there was
The findings show sufficient grounds for the removal of the defendants in error from their offices as regents.The judgments of the court of appeals will be reversed and the orders of ouster entered by that court against the plaintiffs in error vacated and set aside, with directions to proceed further in accordance with this opinion.
Dissenting Opinion
(dissenting) : I dissent from the judgment of the majority of the court. I dissent for two reasons: (1) Because it does not appear from the report of the legislative committee to the governor that the contract taken by Regent Limbocker to superintend the college dining-hall and the work performed by him under such contract was for a “profit” over and above the amount to which he was entitled as compensation for his services as a regent; (2) because the committee did not state in their report, or find any facts equivalent to a statement, that the taking of the contract, the doing of the work or the acceptance of the compensation for it, even if in the form of a profit beyond the compensation allowed by law, were done with a wrongful intent; and, likewise, because the committee did not state or report any facts equivalent to a statement that the records of the. meetings of the board of regents were incorrectly kept with any wrong intent. The statute for the violation of which Limbocker was removed from office is quoted in the opinion of my associates. It is an act of 1867 (ch. 132), and is entitled “An act to restrain state and county officers from speculating in their offices.” It
The compensation of the board of regents of the state agricultural college is not fixed in the form of fees and salaries, as in the case of most of the public officers of the state. It is provided for by annual appropriations, which are made to cover “salary, per diem, mileage and expenses,” and for the two fiscal years beginning July 1, 1897, and ending June 30, 1899, was fixed at fourteen hundred dollars per annum. (Laws 1897, ch. 133.) This appropriation act uses the words “salary and per diem,” but neither it nor any other act declares what such salary or such per diem shall be. The words are therefore used merely in the sense of “compensation.” The members of the board of regents are not continually engaged in the performance of the duties of their positions, but they perform them as the exigencies of the institution require, and at such times, covering such periods of days, as they may judge necesspn-y. They
Furthermore, it should be stated that the amount to which each member becomes entitled is not drawn directly by him from the state treasury, but the aggregate amount due all the members is drawn for them by the treasurer of the college upon his own voucher and is distributed by him to his fellow members. Such being the case, it is absolutely impossible to tell from the report of the legislative committee to the governor whether the sum of fifteen dollars per month, for which Regent Limbocker contracted to serve as purchasing agent of the college dining-hall, and which the treasurer of the college paid him, was paid as “salary” or “per diem” to which as regent he was entitled, or whether it was paid him as a monthly compensation over and above his usual salary or per diem. In either of these cases it would be a legitimate payment, provided it and all other payments to all the regents on account of salary, per diem,
But irrespective af the total failure of the report to convict Limbocker of having performed work pertaining to the duties of his office “for profit,” over and beyond that to which he was entitled out of the annual appropriation of $1400, but assuming, as a concession for argument’s sake, that it does show a performance of work for such profit, it is so lacking in another respect that no order of removal can be rightfully predicated upon it. It totally fails to state that any of the acts charged against either Limbocker
“Whenever charges shall be made by any person or 'persons, and circulated within the state or presented by such person or persons in writing to the governor, at any time when the legislature is not in session, and said charges shall be deemed worthy of credit or emanating from a reliable and trustworthy source, whereby the management or administration of the affairs of any charitable, educational or penal institution, or the official conduct of any officer in charge of or otherwise connected with any of said institutions, shall1 be called into question upon the grounds of corruption, venality, inefficiency, misconduct, immorality, or inattention to duties, an investigation shall be had as provided for in the second section of this act. Notice shall be given in writing to the official in charge of the institution, and also to the officer or each of the officers against whom complaint or charges have been made or preferred; which said notice shall contain the substance of the matter charged, and may be served upon the parties by any person selected by the governor for that purpose. Immediately following the service of such notice the governor shall relieve from duty the official against whom the charges are pending, which suspension shall continue during the period covered by the investigation.5 5
By this statute the essential elements of the charge, and consequently of the proof to sustain it, are “ corruption, venality, inefficiency, misconduct, immorality, or inattention to duties.5 5 The general rule applicable to all criminal prosecutions, both as to allegation and proof, is that a wrongful intent must be charged. (The State v. Eastman, 60 Kan. 557, 57 Pac. 109.) As to acts mala prohibita, that is, not bad in themselves btit only bad because forbidden, it is not necessary to
The only remaining ground covering the charges against the accused is misconduct. No reasonable person will contend that any of these charges can be included under the head of- “ corruption, venality, immorality, inefficiency, or inattention to duties.” If included at all within the statute, it is within the term “misconduct.” Misconduct is bad conduct. That is the shortest and best definition that can be given to the word either in its legal or its popular sense. It implies culpability — turpitude in a minor degree, at least. It'is a term applied to actions knowingly performed and wrongful in their nature but not necessarily of serious consequence. It, however, imports knowledge and wrongful intent. It is not a word descriptive of a character of act performed, but of a quality of mind possessed. No act, however harmful in its consequences, can be said to be misconduct unless it be performed with a motive more or less bad. The term is not a fit one to describe an act malum prohibitum, the wrong intent in which is presumed from the mere doing of the act. An act malum prohibitum is not inherently bad or vicious, but only bad or vicious by fiction of law. In the light of this universally accepted and obviQus meaning, of the word “misconduct,” the acts charged against Limbocker and Hoffman were innocent unless performed by them with a wrongful intent. All the authorities bearing on the subject support the view here taken.
Reference is made in the majority opinion to State v. Hastings, 37 Neb. 96, 55 N. W. 774, and it is said not to be applicable to this case because the proceeding there involved was an impeachment author
It may be admitted that under the previous decisions of this court, cited by the majority in their opinion, the prosecution before a legislative committee of a case for the removal of a public officer is not a criminal prosecution in the sense that guilt must be shown beyond a reasonable doubt, or in the sense of a compliance with the strict rules of criminal procedure upon the trial; but that is not to say, by any means, that the elements of the offense charged need not be proved by some degree of evidence. It may be that the element of wrongful intent need only be established by the greater weight of evidence, not to the exclusion of all reasonable doubt; but to say that such element of wrongful intent need not be proved at all is to fly in the face of all fair-mindedness and common sense. The case of State v. Hastings, supra, is directly in point in its application to this one. It was there ruled:
“But where such act (the misdemeanor charged) results from a mere error of judgment or omission of duty without the element of fraud, or where the alleged negligence is attributable to a misconception of duty rather than a wilful disregard thereof, it is not impeachable, although it may be highly prejudicial to the interests of the state.”
That, in my judgment, is the correct Tule of law, and it should have been accepted as such by the legislative committee and by the governor. In the case of Triplett v. Munter, 50 Cal. 644, a justice of the peace was charged with the statutory offense of “ charging and collecting illegal fees” and with the neglect or refusal “ to perform the official duties of his office.”
Returning to the subject of the definition of the word “ misconduct,” the case of Turnbull agt. Martin, 37 How. Pr. 20, is instructive. A statute of New York provided that the report of arbitrators should be set aside if “ the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in ■ refusing to hear any evidence, pertinent and material to the controversy, or any other misbehavior, by which the rights of any party shall have been prejudiced.” (3 Rev. Stats. N. Y., 1875, 844.) The arbitrators in a certain case violated several of the above provisions, but the court ruled that ‘ ‘ the statute by the terms ‘ misconduct ’ and ‘ misbehavior ’ contemplates acts evincing unfairness or contrary to all the principles of a just proceeding,” and that their award would not be disturbed, “without some evidence of fraud, corruption, partiality, or unfairness.”
The principle of non-liability of public officers to removal for illegal acts honestly performed was decided by this court in The State, ex rel., v. Scates, 43 Kan. 330, 23 Pac. 479. In that case a county commissioner was charged with various official acts illegally and corruptly performed, and quo warranto was instituted to remove him from office because thereof. Among the facts charged was the allowance of illegal claims against the county. The court ruled :
“ Where a board of county commissioners, upon the
This case is precisely in point. The fact that the action of the board of commissioners was upon the advice of attorneys gives no countenance to the idea that if they had not received it the law would have been ruled differently. The advice of attorneys is no shield against the consequences of a corrupt act. The bona fide taking of it, however, is evidence of lack of corruption. If evidence showing lack of bad motive in a public official charged with an illegal act may be shown by him in defense, it implies, of course, that the illegal act plus the bad motive must exist to justify his condemnation.
So far as the case against Limbocker under the first charge is concerned, the statute is difficult to understand and construe. Analyzing it as well as can be done, it seems to prohibit officers from taking contracts for their own profit for the doing of work in and about the offices holden by them, or performing or having performed for their own profit any work in and about such offices, or in or about any work over which they have in whole or in part the supervision, direction, or control. The interdicted acts, therefore, are the doing of work for profit and the taking of contracts for profit in and about public offices. Work and contracting to work are one element of the offense and profit is another. What is meant by “ work ” ? The statute thus far examined seems to give to -that word a broad and general meaning, comprehending probably any and all kinds of labor, manual, mental, or
The other finding, to wit, that Limbock'er and Hoffman falsified the records of the sessions of the board by reciting that on July 2 “ the board met,” when in fact a quorum was not present, is of a piece with the other one. It appears that at a subsequent meeting the action of those who were present on July 2 was ratified by a legal quorum of the board, evidencing thereby that what had been done on the day mentioned had in it no element of wrong or unfairness. Admit that no quorum was present on July 2, but that business of importance was transacted by less than a quorum in the name of the board as an entirety. It may have been so done with a previous understanding with absent members that it should be done and would be thereafter ratified, as actually was the case. There is no statute prohibiting an action by a minority of a board of regents in the name of the whole board if with the understanding by the majority that it may be so done. The exigencies of the college may have compelled the doing of the work on July 2, and it may have been impossible for a quorum of the regents to attend on that day. That the action of July 2 was taken without any wrongful intent is manifest from the fact that while the same number of regents
These charges are trivial. They were made and prosecuted, as everybody knows, for the purpose of ousting the officers named and thereby gaining political control of one of the educational institutions of the state. They were not made and prosecuted for the purpose of advancing the interests of the institution, but were conceived and prosecuted in that spirit of malignant partizanship which is the curse of American politics, and they do but provoke a retaliatory assault when the trembling balance of political majorities in this state shall go the other way. They were made and prosecuted to subserve the ends of office for politicians and not of education for the youth. Similar charges and proceedings by the office-seekers of my party shall never have countenance by me, nor will I be deterred from denouncing those made and conducted by political opponents as causeless, wicked, and despicable.