Attorney General v. Bairley

Beooke, J.

(after stating the facts). The proceedings for removal are based on the statute (1 Comp. Laws 1915, § 245 et seg.). Section 245, after providing for the filing and service of charges with the governor, provides:

“But no such officer shall be removed for such misconduct or neglect unless charges thereof shall have been exhibited to the governor as above provided and a copy of the same served on such officer and an opportunity given him of being heard in Ms defense.”

Section 246 follows:

“Sec. 7. The governor may direct the attorney generalj or the prosecuting attorney of the county in which such officer may be, unless such prosecuting attorney be the officer charged, to conduct an inquiry into the charges made, and the said attorney general or such prosecuting attorney shall thereupon give at least eight days’ notice to the officer accused, of the time and place at which he will proceed to the examination of witnesses in relation to such charges, before some circuit court commissioner, or judge of probate, for the same county, and he shall also, at the time of giving such notice, serve on the officer accused a copy of such charges.”

The earlier portion of section 245 provides for removal by the governor “when he shall be satisfied from sufficient evidence submitted to him as hereinafter provided that such officer is incompetent to execute properly the duties of his office, or has been guilty of official misconduct,” etc. It is the contention of the defendant:

“(1) The statute under which proceedings were brought to oust defendant is in the nature of a penal statute and must be strictly construed.

“ (2) The provisions of the statute directing where and how the hearing shall be held are mandatory. The word 'may’ in the first line of section 246, 1 Comp. Laws 1915, means 'shall.’

“(3) The procedure must follow the course of the common law and conform to the jurisdictional requisites of a judicial proceeding.”

1. The first proposition advanced by the defendant is undoubtedly the law. Dullam v. Willson, 53 Mich. at page 416; Metevier v. Therrien, 80 Mich. 187. But this conclusion is not decisive of the question.

2. The real point in issue is raised by the second proposition of defendant to the effect that the word “may” in the first line of section 246 is mandatory and should be read as “shall.” Upon this point, we are unable to agree with the contention of counsel for the defendant. Reading the entire statute, sections 245 to 252 inclusive, it is our opinion that it was the legislative intent to permit the governor to himself hear and determine the truth of the charges preferred; or, in his discretion (under section 246), he may direct the attorney general or the prosecuting attorney to proceed with the examination of the witnesses in relation to such charges before the circuit court commissioner or judge of probate of the county in which the officer, against whom the charges are made, resides. If the prosecution is placed in the hands of the attorney general or the prosecuting attorney of the county, the statute must be strictly followed. Dullam v. Willson, supra; Clay v. Stuart, 74 Mich. at page 413.

But nowhere in the statute can we find any mandatory language, requiring the governor to direct the prosecution to be made by the attorney general or a prosecuting attorney, except in cases where charges are made against a prosecuting attorney (section 250), when it is made mandatory upon the governor to “direct the attorney general, or the prosecuting attorney of some county adjoining that in which the accused resides, or some attorney at law, to conduct the inquiry into such charges,” etc. The very fact that the language of the provision as to prosecuting attorneys in section 250 is riiandatory and that as to other officials (in section 246) is permissive, is to our minds persuasive of the legislative purpose. While such inquiries may be, and, according to experience in this State, usually are, conducted by the attorney general or by a prosecuting attorney under the direction of the governor, there is no sound reason, in our opinion, why the governor, if he so chooses, may not, under the provision of section 245, himself conduct the inquiry, provided all the rights of the defendant mentioned in said section are properly safeguarded.

3. If, by this contention, defendant means that the safeguards provided by the statute for the prevention of injustice to defendant must be strictly observed, he is undoubtedly right. But, while the power exercised by the governor is quasi judicial in character, it is limited in scope and must be exercised in strict compliance with the Constitution and laws bearing upon the question.

The principal argument in behalf of defendant is based upon the assertion that when reference is made under sections 246, 247 and 248, there is secured to defendant the right to the process of subpoena, which is not provided for if the investigation is made personally by the governor under the provision of section ■245. If there is any merit in this contention, it is a matter that should receive legislative rather than judicial attention.

We find in the record no denial of the sufficiency of the testimony offered before the governor in support of the charges made.

Judgment of ouster from the office of sheriff of Monroe county will follow.

Moore, C. J., and Steeke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.