Bynum v. Strain

KENNAMER, J.

(dissenting). I cannot concur in the majority opinion, as I do not believe the right conclusion has been reached, and believe that it is in conflict with controlling constitutional and statutory provisions, and the great weight of the authorities-

Section 1, article 14, of the Constitution, and section 4225, Comp. Stat. 1921, provide:

“The Governor shall appoint, by and with the advice and consent of the Senate, a Bank Commissioner, who shall hold office for the term of four years, and until his successor is appointed and qualified. * * *”

Section 4172, Comp. Stat. 11921, provides:

“The Bank Commissioner and the members of the Banking Board shall be subject to removal by the Governor for cause. * * *”

Section 417®, Comp. Stat. 1921, authorizes the Banking Board to remove any commissioner, assistant commissioner, or any employe of the Banking Department, who shall be guilty of any misconduct in office or for ineompeteney. The order of removal involved in this case is not sought to be justified upon the ground “for cause.”

It is quite plain from a consideration of the constitutional statutory provisions relating to the office of Bank Commissioner that the term of office is fixed at four years; that the framers, of the Constitution and the Legislature, in enacting Jaws,' as directed by section 1, article 14, of the Constitution, supra, in order to safeguard the interest of the people in obtaining the services of an experienced and competent, person to fill the office of Bank Commissioner, only authorized the Governor to appoint such commissioner- by and with the consent of the highest legislative branch of the government, the Senate, and required such commissioner to be appointed for a term of four years. Evidently it was intended to protect such commissioner from being summarily removed in an arbitrary and capricious manner by limiting the power of the Governor to remove only for cause, and, in providing for the removal of the commissioner by the Banking Board, specifically enumerated the grounds upon which such commissioner might be removed. It is a most serious objection to the conclusion reached in the majority opinion that all of these constitutional and statutory safeguards are by judicial construction stricken down and the legal effect of the opinion is to make the Bank Commissioner subject to removal at the pleasure of the Governor, instead of for cause. This-conclusion is contrary to the great weight of authority, and the better rule, founded upon reason, is that a public officer holding an office for a fixed term, subject to removal for cause, cannot be removed without

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notice and a hearing. He is entitled to such notice in order that he may have an opportunity to defend and the fact that the statute fails to expressly provide for such notice does not affect this rule. 22 R. C. L., secs. 266, 282 and 286; Barrett v. Duff, (Kan.) 217 Pac. 918 ; Christy v. Kingfisher, 13 Okla. 585 , 76 Pac. 135 ; Jacques v. Litle (Kan.) 33 Pac. 106 ; Territory v. Ashenfelter (N. M.) 12 Pac. 879 ; State v. Grant (Wyo.) 82 Pac. 2 ; State v. City of St. Louis (Mo.) 1 S. W. 757 ; Benson v. People (Colo.) 50 Pac. 212 ; Beggs v. Mc-Bridge (Ore.) 21 Pac. 878 ; Haggerty v. Shedd (N. H.) 74 Atl. 1055 ; State v. Hewitt, 8 S. D. 187, 44 Am. St. Rep. 788 ; Field v. Commonwealth, 32 Pa. St. 478; People v. Douglass (N. Y.) 87 N. E. 1070 .

In the recent case of Barrett v. Duff, supra, the court held:

“Where the term of office is fixed by statute the power of removal does not exist in the executive so far as provided by statute. The executive power to appoint to office does not include the power to remove unless the tenure of office has not been declared by law.”

The Supreme Court of Massachusetts in the case of Bailey v. Board, 135 N. E. 877 , held:

“Where the power is given to remove a public officer for cause, a removal is not authorized without notice and hearing, but where the officer is appointed during pleasure or -where the power of removal is discretionary, it may be exercised without notice or hearing.”

The Supreme Court of Nebraska in the case of State v. Smith, 52 N. W. 700 , announces the rule as follows:

“Where the incumbent is elected or appointed for a definite termi and is removable only for specified cause, the power of removal cannot be exercised until there have been preferred against him specific charges of which he shall have notice and an opportunity afforded him to be heard in his defense.”

The Supreme Court of Ohio in the case of State v. Hoglan, 60 N. E 627, held:

“When a public officer may be removed for specified causes, such facts must be stated as in judgment of law constitute the cause relied on, and an opportunity to be heard before he can be legally removed' by the mayor.”

’This rule is based upon sound reasoning, and gives to the statute requiring cause some meaning and a useful field of operation. Had it been the intention of the framers of the Constitution and the Legislature to have made the term of office of the Bank Commissioner one at the pleasure of the Governor of the state, undoubtedly some language would have been used evidencing such intention.

The text-writers and authorities, almost with unanimity, hold that the phrase “for cause,” as is used in such statutes, means “legal cause”, and manifests an intention on the part of the Legislature to protect an appointive officer with a fixed term from being arbitrarily and capriciously removed by the removing power. 22 R. C. L. p. 571; State v. City of Duluth (Minn.) 55 N. W. 188 ; Board v. Williams (Md.) 53 Atl. 923 ; McCulley v. State (Tenn.) 53 S. W. 134 ; Height v. Love, 39 N. J. Law, 14; People v. Fire Commissioners, 7 N. Y. 445 ; State v. McGarry, 21 Wis. 502 ; Ayres v. Hatch (Mass.) 56 N. E. 612 .

The Supreme Court of Maryland in the case of Board v. Williams, supra, held:

“The phrase ‘for cause’ does not mean the arbitrary will of the appointing power, for that might be the outgrowth of mere whim, caprice, prejudice, or passion, which would in reality be no cause at all; but the phrase ‘for cause’ must mean some cause affecting or concerning the ability or fitness of the incumbent to perform the duty imposed upon him. Cause must be one affecting the officers’ capacity or fitness for the office.”

Of course, it may' be observed here that the plaintiff in error defended this action in the trial court upon the theory that it was an action to try title to office and for that reason the defendant in error, present incumbent of the office of Bank Commissioner, could not maintain the action. It is quite obvious that counsel for the plaintiff in error could, no doubt, better assert this contention, in view of the well-established rules of law supported by the above authorities herein cited- Such contention is more reasonable under the admitted facts than that the plaintiff in error has legal title to the office in question, and that such could by him be established in a proper action. But in the case of Brady et al. v. Sweetland et al., 13 Kan. 37 , in an opinion by Mr. Justice Valentine, the court hold that a party claiming an office cannot take forcible possession of it, but he musl prosecute his action of quo warranto in order to determine his right to said office, and that a party in possession of an office is entitled to an injunction against a party attempting to take forcible possession or usurp the duties of such office. The court approved the rule announced in this case

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in the case of Walton v. Donnelly, 83 Okla. 233 , 201 Pac. 367 .

The rule is that a de facto officer in possession may protect that possession against the interference of a stranger to the office, before he has established bis title thereto, and injunction will lie at the instance of such de facto officer to prevent forcible ouster, and courts of equity have jurisdiction in such cases. 29 Cyc. 1416; City of Huntington v. Cast et al. (Ind.) 48 N. E. 1025 ; Guillotte v. Poiency (La.) 5 L. R. A. 403; Brady v. Sweetland (Kan.) 13 Kan. 37 (Old Series 41) ; Reemelin et al. v. Mosby (Ohio) 26 N. E. 717 ; Armijo v. Baca (N. M.) 6 Pac. 398 ; State ex rel. Fairbanks v. Superior Court of Snohomish County (Wash.) 48 Pac. 741 ; Appeal of Town Council et al. (Pa.) 15 Atl. 730 ; Carson v. Durant (Ind.) 49 N. E. 1047 ; Poyntz et al. v. Shackelford (Ky. App.) 54 S. W. 855 ; Pomeroy’s Equitable Remedies -(1st Ed.) vol. 5, see. 355; Rhodes v. Driver (Ark.) 65 S. W. 106 ; Ekern v. McGovern (Wis.) 142 N. W. 595 . This rule, however, does not apply to elective officers whose terms have expired according to the law prescribing the term of such offices. This is on the ground of public policy. But it is quite obvious that there is a distinction to be drawn where the incumbent of an office seeks to enjoin the holder of a certificate issued pursuant tó a general election held according to law, and the instant ease, for in such eases the term of office has expired by operation of law. But in the instant case, although the defendant in error was issued a commission for four years and confirmed by the Senate, and the law provides that he may hold the office for said term, unless removed for cause, it appears after he has served only a few months of his term, without any notice to him of any unfaithfulness in the discharge of his public duties, he is discharged in the same manner that the superintendent of a factory would discharge one of his employes.

■It is clear from the allegations of the petition for injunction that when Strain requested the Governor to advise him of the real reasons for his abrupt removal, no suggestion came from the Governor that Strain as Bank Commissioner had in any way failed to faithfully and honestly perform the duties of the office, but, on the other hand, the Governor indicated he was displeased at the action of Strain in refusing to allow one of the Governor’s friends an attorney fee of $25,000 in connection with the liquidation of a failed bank. No contention was made by the Governor that the fee was a just debt, but it - was suggested, “We must take care of our friends.” These allegations of the petition by' the demurrer are admitted to be true.

It is apparent from the admitted facts that Strain was not removed for any legal cause. The majority opinion in legal effect converts the term of office of Bank Commissioner to one at the pleasure of the Governor, instead of for four years, as provided by law.

The majority opinion seeks to justify such conclusion upon the theory that the chief executive of the state is not subject to the laws of the state in performing his executive duties. This is a most dangerous doctrine, and is not supported in reason nor by authority.

This court in the recent opinion of Peebly v. Childers, State Auditor, No. 14569, 95 Okla. 40 , 217 Pac. 1049 , held that the Governor of this state, in approving or disapproving bills passed by both houses of the Legislature, acts, in a legislative capacity, and can exercise only the granted power, and if he exercises such power in a different mode than authorized by the Constitution, his act will be wholly ineffectual for any and every purpose, and amounts to no more than a futile gesture. So t in the instant case the Governor in removing the Bank Commissioner performs an act in the nature of a quasi judicial act, and if he acts without the law or in any manner unauthorized by law, his act is void. The validity of his act presents a judicial question of which the courts of the state have jurisdiction. In 29 Cyc. 1410, the rule is stated:

“The determination of what is cause under such a provision may be reviewed by the courts.”

See State v. Hoglan, 64 Ohio St. 532 , 60 N. E. 627 .

In the case of Ekern v. McGovern, supra, the court held:

“When a judicial question arises, it is within the competency of the judicial department to deal therewith, not stopping, necessarily, to consider who are the parties. It is not bound to desist because of the alleged wrongdoer being the Governor or a person acting by his direction.

“The basic idea of the state Gonstitu tion -is that this ‘is a popular' representative government, the officers being mere agents, not rulers of the people — one where no' man is so high as to be above the Constitution, and no one so low1 as to be beneath its protection.’ ”

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The doctrine of this case is sound, and I fully agree with the rules therein announced. The law is supreme, and not the Governor, and when his acts are performed in violation of the plain provisions of the statute, and when such acts invade the rights of any citizen, such citizen is entitled to redress in the courts.

For the reason herein stated, I dissent.