§ 638. Removal for cause; tribunal. Assuming the existence of a cause for removal with regular or statutory proceedings leading to this end, it is still, nevertheless essential that the charges be considered by a tribunal especially provided by law 248 or one having, by reason of its general powers, jurisdiction to consider and render a competent judgment.249 Such a tribunal involves the essentials of authority to act, competency in respect to a hearing, and determination of the charges and impartiality with respect to the person charged.250 5 N. D. 359; Myrick v. McCabe, 5 N. D. 422; Minnehaha County v. Thorne, 6 S. D. 449; Bland v. State (Tex.) 38 S. W. 252; Taylor v. City Council of Tacoma, 15 Wash. 92. 248 State v. Whitlock, 41 Ark. 403; People v. Onahan, 170 Ill. 449, 48 N. E. 1003; Gibbs v. Board of Aldermen of Louisville. 99 Ky. 490, 36 S. W. 524; Hoke v. Richie, 100 Ky. 66, 37 S. W. 83, 38 S. W. 132; Com. v. Willis, 19 Ky. L. R. 962, 42 S. W. 1118; State v. Judge of Civil Dist. Court, 50 La. Ann. 655, 23 So. 886; Andrews v. King, 77 Me. 224; State v. Common Council of Duluth, 53 Minn. 238, 55 N. W. 118; State v. Ward, 70 Minn. 58, 72 N. W. 825; State v. Walker, 68 Mo. App. 110; City of Hoboken v. Gear, 27 N. J. Law (3 Dutch.) 265; State v. Pritchard, 36 N. J. Law, 101; People v. Trustees of Village of Saratoga Springs, 4 App. Div. 399, 39 N. Y. Supp. 607; In re Guden, 171 N. Y. 529, 64 N. E. 451, affirming Matter of Guden, 71 App. Div. 422, 75 N. Y. Supp. 794. The action of the governor in removing officers under Const. art. 10, § 1, is executive and the exercise of the power is not subject to review by the courts. Saunders v. Wagener, 42 Tex. 562; State v. Common Council of Watertown, 9 Wis. 254. 249 In re Curtis, 108 Cal. 661, 41 Pac. 793; Trustees of Gillett v. People, 13 Colo. App. 553, 59 Pac. 72; Graham v. Cowgill, 13 Kan. 114; Yoe v. Hoffman, 61 Kan. 265, 59 Pac. 351. Where the removal of an officer is attempted under Session Laws of 1889, c. 239, which gives to a legislative committee power to investigate charges against certain public officials, courts of competent jurisdiction have the right to deter mine whether the charges on which such proceedings are based are sufficient to justify a removal and are within the provisions of the statute. Citing the following: Carter v. City of Durango, 16 Colo. 534; Andrews v. King, 77 Me. 230; Williams v. City of Gloucester, 148 Mass. 256; State v. City of Duluth, 53 Minn. 238; State v. Hastings, 37 Neb. 96; People v. Thompson, 94 N. Y. 451; State v. Patrick, 124 N. C. 651; Dubuc v. Voss, 19 La. Ann. 210, 92 Am. Dec. 526. People v. Therrien, 80 Mich. 187, 45 N. W. 78; State v. McClinton, 5 Nev. 329; Com. v. Allen, 70 Pa. 465. 250 Fuller v. Ellis, 98 Mich. 96, 57 N. W. 33. A member of a board of control is not disqualified from participating as one of the board in hearing and determining charges against an officer because of his signing the original charges against that official. People v. Common Council of Auburn, 85 Hun, 601, 33 N. Y. Supp. $639. The proceedings. The proceedings relative to the removal of a public official for cause are generally prescribed by statute and as these differ widely in different states or even from time to time in the same state, no general principle can be stated relative to them except such as may have been already suggested in the preceding sections, namely, the authority for removal, the giving of notice to the person charged, the existence of and consideration by a competent and impartial tribunal and the rendition of a judgment or order in the manner prescribed by law. 251 The privilege of holding an office and performing its duties where a removal can only be effected for cause before the expiration of the term of office or service, establishes the right in an incumbent which the law protects and of which he can only be deprived after an orderly course of procedure or by due process of law which includes as their fundamental essentials, the conditions already enumerated.252 Statutory or constitutional provisions fixing the manner in which 165. Certain members of the common council are not disqualified from participating in and determining charges against a city attorney in proceedings to remove from office because of the fact that they were a committee of tne council appointed to investigate and prefer the charges. But see People v. Village of Saratoga Springs, 4 App. Div. 399, 39 N. Y. Supp. 607. A village trustee who prefers charges is disqualified to sit as a member of the trial tribunal for otherwise he would act as both accuser and judge. People v. Diehl, 165 N. Y. 643, 59 N. E. 1128. 251 Miles V. Stevenson, 80 Md. 358, 30 Atl. 646; Attorney General v. Berry, 99 Mich. 379; State v. Dart, 57 Minn. 26; Bradford v. Ter., 2 Okl. 228, 37 Pac. 1061; Taylor v. City Council of Tacoma, 15 Wash. 92, 45 Pac. 641; McDonald V. Guthrie, 43 W. Va. 595, 27 S. E. 844; Roberts v. Paull, 50 W. Va. 528, 40 S. E. 470. The resignation of an officer pending proceedings to remove will terminate them. Nehrling v. State, 112 Wis. 637, 88 N. W. 610. Witnesses in a proceeding for the removal of a public officer need not be sworn under Laws 1882, c. 328, §§ 3, 7. State v. Common Council of Superior, 90 Wis. 612, 64 N. W. 304. Proceedings for the removal of a city officer before the city council are not governed by the strict rules of criminal trials and a charge is sufficient if it informs the defendant with the substance of the accusation against him. 252 Allen v. State, 32 Ark. 241; Kilburn v. Law, 111 Cal. 237, 43 Pac. 615. Such a proceeding is regarded as criminal in its character; not civil. Cobb v. Smith, 102 Ga. 585, 27 S. E. 763. The prosecution for the removal of a public officer under Ga. Civil Code, § 4366, is a quasi criminal proceeding. Evans v. Populus, 22 La. Ann. 121. Where the arbitrary power of removal is public officials may be tried for misdemeanors or misconduct in office or impeached, are exclusive and where no provision is made for trial by jury, an official charged with the commission of an offense is deprived of this right.253 Constitutional provisions of course control and legislative enactments in contravention of them will be considered void.254 Where the legislative power is unrestricted by the constitution, it is free to act in the passage of leg islation respecting removals. § 640. Evidence. Where charges have been made against a public official on a hearing, only that evidence can be considered which is competent, relevant and material, determined with reference to the charges given by the legislature to the governor, the exercise of this power will be presumed to have been for a good cause. Com. v. Cooley, 83 Mass. (1 Allen) 358; Murdock v. Phillips Academy, 29 Mass. (12 Pick.) 244; State v. Dart (Minn.) 59 N. W. 190. The resignation of an officer will not abate pending proceedings for his removal on account of malfeasance in office. People v. City of New York, 19 Hun (N. Y.) 441. Before an officer can be removed a specific charge must be served upon him with a reasonable time to appear and answer it and an opportunity with the aid of counsel to examine and rebut the evidence produced, Mere politcial bias or personal dislike of the officer having the power of removal is not a "cause" under a provision for removal from office by the mayor for cause. Wishek v. Becker, 10 N. D. 63, 84 N. W. 590. Under Rev. Code, c. 24, § 5743, an action for the removal of a county judge cannot be brought by a private person. Bradford v. Ter., 2 Okl. 228, 37 Pac. 1061. Quo warranto is the proper proceeding to remove a county clerk for maladministration in office. Com. v. Pennsylvania Beneficial Institution, 2 Serg. & R. (Pa.) 141. But see People v. Thompson, 94 N. Y. 451. 253 Woods v. Varnum, 85 Cal. 639, 24 Pac. 843; Trimble v. People, 19 Colo. 187, 34 Pac. 981; Hays v. Simmons, 6 Idaho, 651, 59 Pac. 182; State v. Jorda, 26 La. Ann. 374; State v. Peterson, 50 Minn. 239. But see State v. Walbridge, 119 Mo. 383, 24 S. W. 457. 254 Nolen v. State, 118 Ala. 154, 24 So. 251. "A tax assessor can be removed from office only in the mode prescribed by the organic law; that is, by impeachment under section 3 of article 7 of the constitution. That provision of the act of February 28, 1887, which undertakes to authorize the governor to 'suspend' tax assessors, and appoint tax commissioners to perform the duties of assessors so 'suspended,' and providing that such suspension of an assessor shall continue indefinitely, or, more accurately speaking, perpetually, 'unless the general assembly by joint resolution restore him to his office,' is violative of the constitution, and void." People v. made.255 Ordinarily, these questions are for the determination of the tribunal as questions of law while the sufficiency of the evidence is a question of fact also for their determination.256 To justify a removal, it is not necessary to show on the part of the person charged a wrongful intent 257 unless statutory provisions require it, and ignorance of the law is also usually considered no defense. § 641. Remedies in case of a wrongful removal. Where a removal from office has been wrongfully made, even if under some established course of procedure the party thus wrongfully removed is not given, usually, the right to recover any damages which he may have sustained, 258 but only the right to recover his compensation or fees for the time during which he may have been wrongfully deprived of the office.259 Special remedies may Hill, 7 Cal. 97; Lowe v. Com., 60 Ky. (3 Metc.) 237; Brown v. Grover, 69 Ky. (6 Bush.) 1; Page v. Hardin, 47 Ky. (8 B. Mon.) 648; Com. v. Williams, 79 Ky. 42; State v. Wiltz, 11 La. Ann. 439. 255 Yoe v. Hoffman, 61 Kan. 265, 59 Pac. 351, reversing 9 Kan. App. 394, 58 Pac. 802. The proceedings and evidence introduced thereunder must be confined to the charges made against the official. 256 Ponting v. Isaman, 7 Idaho, 581, 65 Pac. 434; State v. City of New Orleans, 107 La. Ann. 632; People v. Martin, 15 Misc. 6, 36 N. Y. Supp. 437; People v. Barker, 1 App. Div. 532, 37 N. Y. Supp. 555. A removal from office on the charge of physical incapacity not warranted by the evidence. People v. Wright, 7 App. Div. 185, 40 N. Y. Supp. 285; In re Odell, 28 App. Div. 464, 51 N. Y. Supp. 122; People v. Magee, 57 App. Div. 281, 67 N. Y. Supp. 906; People v. Dooling, 60 App. Div. 321, 70 N. Y. Supp. 26; People v. Coler, 159 N. Y. 569, 54 N. E. 1094. But see People v. Diehl, 165 N. Y. 643, 59 N. E. 1128, and Hawkins v. Kercheval, 78 Tenn. (10 Lea) 535. 257 Yoe v. Hoffman, 61 Kan. 265, 59 Pac. 351, reversing 9 Kan. App. 394, 58 Pac. 802, citing McMaster v. Herald, 56 Kan. 231. But see Quintanilla v. State, 23 Tex. Civ. App. 479, 56 S. W. 614, and State v. Alcorn, 78 Tex. 387, 14 S. W. 663. 258 Rowe v. Bateman, 153 Ind. 633, 54 N. E. 1065, 55 N. E. 754. Where the prosecution for the removal of a public officer upon an accusation in writing verified by the oath of the person fails, costs cannot be recovered either against the state or the party making the accusation. 259 Sweeney v. Coulter, 23 Ky. L. R. 2391, 67 S. W. 264; Long v. Coulter, 23 Ky. L. R. 2389, 67 S. W. 272; State v. Bovee, 24 La. Ann. 594; Galveston County v. Ducie, 91 Tex. 665, 45 S. W. 798; Griggs v. Weston County Com'rs, 5 Wyo. 274. The rule stated in the text, it is hardly necessary to add, only applies where there has been a wrong be given also by specific statutes.260 The official wrongfully removed may be guilty of such laches or acquiescence as will prohibit a consideration of his claims. 201 § 642. Removal by impeachment. Constitutions may provide for the removal of a public officer by impeachment, the language relative to this, establishing the tribunal, the course of procedure including notice and hearing and the acts, the commission of which will warrant either the commencement of the proceedings or the rendition of a judgment of impeachment.262 The Federal Constitution provides 203 that "the ful removal. If it appears that the charges of misconduct are well founded, no right for compensation will exist. See Westberg v. City of Kansas, 64 Mo. 493. There are also cases which hold that even where there is a wrongful removal, no right to recover compensation exists on the ground that compensation is merely incident to services actually rendered, not to the right to the office. This is especially true where fees and commissions constitute the compensation provided by law. Saline County Com'rs v. Anderson, 20 Kan. 298; Auditors of Wayne County V. Benoit, 20 Mich. 176; City of Hoboken v. Gear, 27 N. J. Law, 265; Dolan v. City of New York, 68 N. Y. 274; McVeany v. City of New York, 80 N. Y. 185. 260 Eastman v. Householder, 54 Kan. 63, 37 Pac. 989; People v. Drake, 43 App. Div. 325, 60 N. Y. Supp. 309. Where an officer holds office at the pleasure of a board of public works, he cannot maintain mandamus for reinstatement after removal although this was done in an irregular way and without notice to him. 201 People v, Lantry, 27 Misc. 160, 57 N. Y. Supp. 770; In re Hayes, 56 App. Div. 20, 67 N. Y. Supp. 340; People v. Guilfoyle, 61 App. Div. 187, 70 N. Y. Supp. 442. 262 State v. Savage, 89 Ala. 1, 7 So. 7, 7 L. R. A. 426; State v. Tally, 126 Ala. 25, 15 So. 722; State v. Buckley, 54 Ala. 599; In re Opinion of Justices, 167 Mass. 599. County commissioners are not "officers" subject to impeachment within the meaning of the Constitution, part 2, c. 1, § 2, art. 8. Opinion of Judges, 3 Neb. 463. During impeachment proceedings against the governor of a state, he is incapable of performing his public duties. State v. Hill, 37 Neb. 80, 55 N. W. 794, 20 L. R. A. 573. The legislature has no authority to prepare articles of impeachment against an ex officer. State v. Leese, 37 Neb. 92, 55 N. W. 798, 20 L. R. A. 579. The authority to adopt and present amended articles of impeachment rests alone with the joint convention of the two houses of the legislature. State v. Hewitt, 3 S. D. 187, 52 N. W. 875, 16 L. R. A. 413. The phrase "State official" as used in Const. art. 16, § 3, does not apply to a trustee of the state agricultural college though he is appointed under the provisions of the Const. art. 14, § 4. |