State Ex Rel. Nagle v. Sullivan ( 1935 )

I am unable to subscribe to the views of the majority in the disposition of this appeal. In consideration of the single question involved, it is important to remember that a public officer takes his office subject to legislative provisions respecting the power of removal. It is competent for the legislature to provide for the removal of an officer with or without notice and opportunity for hearing. The only question here is whether notice and an opportunity for a hearing are requisite before the Governor may remove a fish and game commissioner. The legislative intent as ascertained from the statute must govern.

The statute simply states that the Governor is given the power to remove any member of the commission "for cause or for the good of the commission." There are many cases holding that where the statute provides for the removal of an officer "for cause" without any qualifying words, it contemplates notice and a hearing. Other cases take the opposite view. (State v.Sanchez, 32 N.M. 265, 255 P. 1077, and cases therein cited;State ex rel. Hatton v. Joughin, 103 Fla. 877, 138 So. 392;State ex rel. Kennedy v. McGarry, 21 Wis. 502.)

In most of the cases holding that notice and hearing are essential, the statute or Constitution enumerates certain specified causes, such as malfeasance in office, drunkenness, incompetency and the like. Where the statute simply states that an officer may be removed "for cause" without any qualifying words and without specifying what constitutes a "cause," the removing power has authority to determine what shall constitute cause, as well as to determine whether that cause exists. (Compare Boyd v. Pendegast, 57 Cal. App. 504, 207 P. 713, and cases therein cited; State ex rel. Hatton v. Joughin,107 Fla. 850, 145 So. 174.) The removing power has a wide discretion in such cases.

Whatever may be said as to whether notice and hearing are necessary before an officer may be removed for cause where those mentioned above are the only grounds for removal and where the statute is silent on the question of notice, I think our statute bears irrefutable evidence that notice and hearing are not necessary to vest jurisdiction in the Governor to remove a fish and game commissioner, and this whether he is prompted to remove him for cause or for the good of the commission. The Governor's authority is found in section 3651, Revised Codes 1921. The Act in question was passed in 1921. The words "for cause" are used elsewhere in the same Act. Thus in the very next section of the Act, the Fish and Game Commission is given power "to discharge any appointee or employee of such commission, for or without cause, at any time." Can it be that under this section, if the commission decides to discharge an appointee for cause, it must give notice and conduct a hearing, whereas if the discharge is without cause, no notice or hearing is necessary? The question, of course, calls for a negative answer. The employees of course have no fixed term, but the legislature does not appear to have given a different meaning to the words "for cause" when speaking of the right of removal of one holding a fixed term.

Section 3655 provides that the commission shall appoint a fish and game warden, "who shall continue in office at the pleasure of said commission." Certainly, if this language is given effect, he is subject to removal without notice or hearing. But the same section also states that he "may be removed from office by said commission for neglect of duty, incompetency, or any other good cause." If the words "for cause" carry with them notice and hearing, then the warden could not be removed, though his tenure is at the pleasure of the commission, without notice and hearing. This is not the rule in any jurisdiction where the tenure is at the pleasure of the appointing power. Hence the words "for cause" as used in that section, are not qualified by the words "after notice and hearing."

As further evidence of the fact that the legislature did not intend that notice shall be given before the Governor may remove a commissioner, we have section 3661, which gives the commission authority to remove fish and game wardens whose tenure is fixed by the commission. (Sec. 3656.) It specifically provides that "any deputy in the first and second grade shall not be removed unless furnished with reason for removal and given a hearing in his own defense." The legislature was thus dealing specifically with the question of notice and hearing, and had it intended that notice should be given and a hearing held before the Governor could remove a commissioner, it would have said so. The effect of the Acts in question is to restrict the power of removal in the hands of the commission when dealing with first and second grade deputies so as to require that notice and a hearing be had. The legislature did not see fit to thus restrict the Governor in his power of removal.

As further evidence of the fact that the legislative session of 1921 did not deal with the words "for cause" with the understanding that they implied a notice and hearing, let us examine some of the other Acts passed by the same assembly.

Notice and a hearing were specifically provided for in section 29 of Chapter 216, Laws of 1921, which gave power of removal of certain designated officers for cause, viz., for official misconduct, inefficiency, incompetency or neglect of duty. If the words "for cause" already meant after notice and hearing, why make special provision for notice and hearing?

The same assembly also made special provision for notice and hearing before a police officer could be removed "for cause," such as being "incompetent or by age or disease, or otherwise has become incapacitated to discharge his duties." (Chap. 198, Laws of 1921.) These officers held during good behavior or until incapacitated. Again, why specifically provide for notice and hearing if they are implied when there is to be a removal for cause?

Also, the same assembly made provision for a hearing to remove from office drainage commissioners "for neglect of duty or malfeasance in office or for other good cause." (Sec. 92, Chap. 129, Laws of 1921.) These officers hold for a fixed term. (Sec. 18, Id.) Why specifically provide for a hearing if the words "for cause" imply one?

By Chapter 108, Laws of 1921, the Board of Examiners was given power "to discontinue in any or all state offices or to discharge any of said assistants, clerks or stenographers, for cause or otherwise, whenever in their judgment the best interests of the service requires such action." Was it incumbent upon that board, if it discharged an assistant "for cause," to first give notice and conduct a hearing, but if the discharge was without cause though for the best interests of the service, no notice or hearing was necessary?

Thus it will be seen that the authority and procedure for removals are intentionally varied. In some cases notice and hearing are essential, in others not; and this is true whether the tenure is for a fixed term or otherwise. These references to other legislative enactments of 1921, I believe, demonstrate that there was no thought on the part of that assembly that an officer could not be removed for cause without first giving notice and holding a hearing, except in those cases where notice and hearing were specifically provided for.

The history of the fish and game legislation does not support the contention that notice and hearing are required by section 3651, supra, as my associates have held. It shows a plain intent that notice and hearing are unnecessary. Chapter 176, Laws of 1907, Chapter 18, Laws of 1911, and Chapter 173, Laws of 1917, made no provision for the removal of members of the Fish and Game Commission. They were not, during the time those laws were in effect, subject to removal by the Governor at all. They were, however, subject to removal for misconduct or malfeasance in office (sec. 11687, Rev. Codes 1921), and were entitled to notice and hearing (secs. 11688 et seq.) because the statute specifically so provided. They were also subject to removal for collecting illegal fees or neglecting to perform their official duties (sec. 11702), and were entitled to notice and an opportunity to be heard, because the statute specifically so provided. (Sec. 11702.) By taking the Fish and Game Commission without the provisions of sections 11688 and 11702, which specifically provided for notice and hearing, and making provision for their removal by the Governor without making special provision for notice and hearing, the legislature manifested a clear intent that no notice or hearing was necessary.

What was said in Wilcox v. People, 90 Ill. 186, is here pertinent. The court there said: "It being found that the power of removal existed in the Governor, the inquiry remains whether it was validly exercised. Relators said not — that the power granted was judicial in its nature, and should have been exercised according to judicial methods, that is, there should have been a specific charge, notice of it, opportunity for defense and hearing, and proof to support the charge. Undoubtedly, the Governor can only remove for some one of the causes specified; but the removal here was for one of these causes — incompetency. The Governor ascertained the existence of the cause here, and made the removal on account of it. The Constitution is silent as to who shall ascertain the cause of removal or the mode of its ascertainment. It simply gives to the Governor the power to remove any officer whom he may appoint, in case of incompetency, etc. It follows, then, that it is the Governor who is to act in the matter to determine, himself, whether the cause of removal exists, from the best lights he can get, and no mode of inquiry being prescribed for him to pursue, it rests with him to adopt that method of inquiry and ascertainment as to the charge involved, which his best judgment may suggest as the proper one, acting under his official responsibility, and it is not for the courts to dictate to him in what manner he shall proceed in the performance of his duty, his action not being subject to their revision. The Constitution of this state not only declares that the powers of the government of the state shall be divided into three distinct departments, but has expressly prohibited the exercise of any of the powers properly belonging to one by either of the others."

In Bynum v. Strain, 95 Okla. 45, 218 P. 883, the court had this to say: "An appointee to such a position is selected by the chief executive for the purpose of aiding the executive in carrying out his sense of duties and responsibilites to the public and with the belief that such appointee will work in harmony with and aid the Governor in fulfilling his sense of duty to the public. It is the Governor, the chief executive, who is held responsible to the sovereignty for errors in his executive and administrative policies. The appointee is responsible to the chief executive, and, in the absence of express authority, the judiciary has nothing to do with the chief executive's judgment, conscience, sense of duty, or responsibilities."

Where there is a discretion in the removing power, as here, the power of removal may be exercised without notice or hearing. (Bailen v. Board of Assessors, 241 Mass. 411, 135 N.E. 877;Bryan v. Landis, 106 Fla. 19, 142 So. 650; Smith v. Mayorand Board of Aldermen, (R.I.) 127 A. 562.) In the Smith Case the statute gave the power of removal to the mayor "for such cause as he shall deem sufficient and shall express in the order of removal." It was held that no notice or hearing was necessary, the court saying: "The power of removal is for such cause as the mayor shall deem sufficient; it is the judgment of the mayor in regard to the sufficiency of the cause, not of the court, which is decisive. He can act on knowledge obtained by his own observation and investigation, and he is not restricted in the method by which he makes a decision, which is personal. To remove a public officer without a hearing may or may not be a wise or fair procedure; but the determination of such considerations is for the legislature, not the courts. So far as appears, the mayor and board of aldermen acted in good faith. If the removals are improper or unjust, the appeal therefrom is to the voters of the city." To the same general effect are: Hertel v. Boismenue,229 Ill. 474, 82 N.E. 298; Ayers v. Hatch, 175 Mass. 489,56 N.E. 612; State v. Burke, 8 Wash. 412, 36 P. 281; State v. Crandall, 269 Mo. 44, 190 S.W. 889; State ex rel. Hamilton v. Grant, 14 Wyo. 41, 81 P. 795, 82 P. 2, 116 Am. St. Rep. 982, 1 L.R.A. (n.s.) 588.

But assuming, for the sake of argument, that when the removal is for cause notice must be given and a hearing had, that does not solve the problem here. Here the statute authorizes removal "for cause or for the good of the commission." My associates say that, since Baumgartner has alleged the reasons why the Governor acted, he has made the case one where the removal was for cause. One fallacy in this holding is in supposing that all of the reasons alleged by Baumgartner constitute "cause" as distinguished from "the good of the commission." Some of the reasons alleged do not constitute "cause" in a legal sense, but may, in the opinion of the Governor, require the removal "for the good of the commission." Thus in the answer of Baumgartner there appear allegations to the effect that the Governor was prompted to remove the members of the commission for the good of the commission, because of discord and lack of harmony among the employees of that department which interfered with the harmonious and efficient conduct of the business of the office, and because of inefficient and unwise management and conduct of the affairs of the department, and because of a lack of sufficient interest in the affairs of the department. In consequence, it cannot be said that all of the grounds alleged in the answer of Baumgartner for making the order of removal, constitute "cause" within the meaning of the statute. Some of them are merely reasons which prompted removal "for the good of the commission." If any one ground stated is sufficient to warrant removal, it must be upheld. (State ex rel. Hardie v. Coleman, (Fla.) 155 So. 129, 92 A.L.R. 988.) Who is to determine whether removal is advisable for the good of the commission? Obviously, the Governor. This is clearly implied, and the power is as potent as if the statute so declared in terms; and no notice or hearing is necessary to establish the fact. (Lacy v. Selectmen of Winchendon,240 Mass. 118, 133 N.E. 90.)

In the Lacy Case the officer there involved was removable "when the public interest requires." It was held that no notice or hearing was necessary. The court in that case had before it a statute which formerly read: "When in the judgment of the selectmen the best interests of the town so requires, said superintendent may be removed from his office by said board." Before the Lacy Case was decided, the statute was amended by omitting the words "in the judgment of the selectmen." The court simply held that the omission of these words made no difference. And so in our statute, I cannot see where it should make a particle of difference if the statute read: "when in the judgment of the Governor, the good of the commission so requires." He is the one who must make the determination. I think the Lacy Case is in point on this question, as are also O'Dowd v. Boston,149 Mass. 443, 21 N.E. 949, State v. Crandall, supra, Stateex rel. Hamilton v. Grant, supra, and Ayers v. Hatch,175 Mass. 491, 56 N.E. 612.

The case of State ex rel. Eckles v. Kansas City, (Mo.App.) 257 S.W. 197, cited in the majority opinion, is not in point, for there the statute specifically provided that no person shall be removed "without first having received a written statement setting forth in detail the reasons therefor." This was not done. Likewise the case of Pratt v. Board of Police,15 Utah, 1, 49 P. 747, cited and quoted from in the majority opinion, is not in point. There, section 17 of the statute under consideration made specific provision for a hearing after suspension, in order to make determination of whether the good of the service would be subserved by a removal. It was simply held that that statute was controlling.

My associates, I believe, concede that if the removal is made for the good of the commission no notice need be given or hearing had. It is repeatedly stated in the record before us that this was the reason for the removal.

The second fallacy in the holding, in the majority opinion, that the removal was "for cause" and not "for the good of the commission," is that such a holding flies in the teeth of the order of removal. That order specifically states that it was done "for the good of the commission."

It must be assumed by the judiciary that the chief executive of the state performed his duties honestly and lawfully. (46 C.J. 995, note 65.) It seems to me this court is going far afield when it assumes, as it does in effect, that the order was simply a subterfuge to evade notice and hearing, and more especially when as yet there has been no hearing and no evidence adduced on the point — the question having arisen on motion for judgment on the pleadings.

Much is said in the majority opinion relative to the purpose of the legislature to divorce the Fish and Game Commission from political activities. The question whether such was the purpose of the legislature is debatable, to say the least. The statute says nothing about this matter specifically. Had the legislature desired to remove the department from political activities, why did it not do as it did in submitting the constitutional amendment to section 15, Article XII of the Constitution, found at page 760 of the 1921 Session Laws, dealing with the State Board of Equalization, wherein that same assembly specifically provided that "such members shall be so selected that the board will not be composed of more than two persons who are affiliated with the same political party or organization; providing further that each member * * * shall not * * * serve on or under any committee of any political party or organization, or take part, either directly or indirectly, in any political campaign in the interests of any political party or organization or candidate for office?"

It is true that the terms of the commissioners are so arranged that there will at all times in the usual course of events and providing there are no removals, be a majority of experienced members on the board. But the unusual sometimes occurs. It may occur as often by restricting the power of removal after notice and hearing, as without such restrictions. In other words, if the policy is to keep the department from political activities, that policy is no more interfered with in the one case than in the other. Notice and hearing have nothing to do with that policy.

In the majority opinion it is also stated that Sullivan's answer alleged that the sole ground of the Governor's action in removing him was the refusal of the commission to appoint a game warden of the Governor's selection. This was flatly denied by the reply filed by Baumgartner, and on motion for judgment on the pleadings this controversed issue cannot be taken as established.

I think the trial court erred in sustaining the motion for judgment on the pleadings.

Rehearing denied February 18, 1935.