State ex rel. Danforth v. Kuehn

DixoN, C. J. . The question of statutory construction involved is very plain. The statute provides that the annual meeting of the trustees “shall be held upon the third Wednesday in October in each year, in the hospital building, when the trustees shall choose one of their number president, and a secretary and' treasurer, for the year then ensuing, and until their successors are elected and qualified.” The question presented is, whether these words require that the, treasurer shall be a member of the board of trustees. We answer, very clearly not. The language of the statute is clearly calculated to show that such was not the legislative intent. It is, “ one of their num [233] ber president, and a secretary and treasurer ; ” thus showing, by a kind of antithesis, that the design was not that the secretary and treasurer must be members of the board. If the intention had been to require the secretary and treasurer to be also members of the board, some different form of expression would have been used, as, “ and one secretary and one treasurer,” or other equivalent mode of speech testifying such intention, which could have been very easily done, if that had been the purpose of the framers. It was argued that the board of trustees are a corporation, or quasi corporation, charged with the administration of a certain public charity, and as such corporation, actual or quasi, are clothed with the power of amotion of the officers elected by them; and that the election by them of a successor to the relator as treasurer was a removal of the relator from the office. The statute nowhere declares the board of trustees to be a corporation, or body in that nature, but designates the members individually as persons holding office. They are so spoken of in section two of the act; while section three declares that “ the trustees, before entering upon the duties of their office, shall take and subscribe an oath,” etc. It is not easy to perceive, therefore, how the board can be regarded in any sense as a corporation, but only as officers of the state appointed to exercise certain public functions and employments. As public officers it is certain that the power of amotion is not given to them by the statute. But if the board were a corporation, and so possessed of the power of amotion as incident to its corporate existence, it would not then follow that it could remove the relator arbitrarily and without cause. No such power would exist, unless expressly given by the legislature. The power to remove, as an incident, would only be to remove for good cause shown; and that cause must be something affecting the character and qualifications of the incumbent, and showing his unfitness or want of capacity longer to discharge the duties of his position. These [234] principles are more or less exemplified by several cases which have been before this court, and need not be further considered here. State ex rel. Gill v. Common Council of Watertown, 10 Wis., 254; State ex rel. Graham v. Chamber of Commerce, 20 id., 68; State on complaint of Kennedy v. McGarry, 21 id., 496; Dickinson v. Chamber of Commerce, 29 id., 45. If, therefore, the appointment of Grimmer to the offiee of treasurer could be looked upon as an. exercise of a power of amotion possessed by the board, and as a removal, or attempted one, of the relator from the office in regular course of proceeding, still the action of the board must have failed for want of any cause shown for such removal. The relator is a person holding office for a fixed term, that is, for one year from the time of his election and thereafter until his successor is elected and qualified. He does not hold durante bene plácito, or at the pleasure of the body electing him. If he did, like postmasters, collectors of revenue, and many other officers under the federal and ■ state governments, then the appointment of a successor would operate as a removal, and the power of amotion would be quite unnecessary. Having been regularly elected to the office, the term of which is yet unexpired, and no resignation, disqualification or removal having intervened, it follows that the relator is still the lawful treasurer and person entitled to demand and receive from the defendant, the treasurer of the state, the moneys mentioned in the relation and admitted by the return to belong to the hospital funds. It follows, also, that the demurrer to the return must be sustained. By the Court. —It is so ordered.