State ex rel. Wehe v. North Dakota Workmen's Compensation Bureau

Birdzell, J. The plaintiff filed a petition in the district court of Burleigh county for a writ of mandamus to compel the defendants to issue a warrant for $208.33 as the plaintiff’s salary attaching to the office of Workmen’s Compensation Commissioner for the month of April, 1920. Upon the petition the district court issued an order to show cause. On the return day an answer was filed in which it was alleged that the plaintiff had been removed from his office by the Governor acting under chapter- 162, Sess. Laws 1919. The answer also alleges the proceedings in connection with the removal in substance as follows : Prior to the 19th day of April, 1920, charges were made to the governor that the plaintiff was carrying on a private law practice contrary to the provisions' of the Workmen’s Compensation Act; that he was incompetent and lacked the kind of qualifications which were necessary to the discharge of the duties of his office; that the Governor investigated the charges and suspended the plaintiff on April 19th, serving upon the defendant notice to that effect. The notice was contained in a letter written by' the Governor and directed to the plaintiff. The letter apprised the plaintiff that evidence had been presented. to the Governor to the effect that since his appointment and qualification he had been carrying on a private law practice, utilizing the stenographic help employed by the bureau in connection therewith; that he used office supplies of the bureau; that such practice had resulted in delaying the work of the bureau, particularly in the adjustment of claims; that through lack of executive ability, irascibility, incompatibility of temperament, lack of comprehension of the spirit of the Workmen’s Compensation Law, and general inefficiency, he has been a detriment to the bureau and particularly to the claim department; that at a public hearing conducted by the minimum wage commission, held during the month of February, he conducted himself in a manner detrimental to the public interest, was tactless in his examination of witnesses, and disrespectful and offensive to a number of them; that on account of his temperament and his intolerance toward employees of the bureau, several efficient employees had tendered their resignations and declined to remain in the employ of the bureau if plaintiff was continued as a commissioner. Plaintiff was apprised that the charges, if true, were of such a nature as to require complete — 151 — severance of his connection with the bureau; and that, failing to receive any statement from plaintiff or his resignation on or before the 22d of the same month, the Governor would consider it his duty to remove plaintiff summarily. He was notified of his suspension, to continue until final determination. The answer further alleges that on April 20th, the Governor caused to be served upon the plaintiff a notice in writing directing him to show cause before him at the Governor’s office on April 23d, why the suspension should not be made permanent. That at the time set for the hearing on April 20th, plaintiff appeared and objected to the jurisdiction of the Governor and caused to be served upon him a statement of his objections to the jurisdiction, which statement states the objections in substance as follows: The Governor has no power to suspend the respondent for any cause or upon any grounds; that no specific charges have been served upon respondent, setting forth any cause for his removal; that the Govern- or’s letter of April 19th was too indefinite and uncertaiñ to apprise respondent of the making of charges against him or to enable him to make preparation to contest and disprove any charges; that on account of the vague character of the charges as stated in the letter, respondent demanded to be apprised more fully; and that the time of notice was too short and the proceedings summary and arbitrary. The answer then proceeds to allege that on April 23d the determination was made by the Governor removing the plaintiff from the office on the grounds stated in the previous letter of April 19th; that a voucher for plaintiff’s salary for the period of April 1st to 23d, 1920, had been allowed in the sum of $159.85. A demurrer was interposed to the return upon the ground that it did not allege facts sufficient to constitute a defense to the petition. The demurrer was sustained and the defendants have appealed from the order. The only question presented upon this appeal is whether or not the answer or return states facts which prima facie in law justify the removal. Section é of chapter 186, Session Laws 1919, the Workmen’s Compensation Law, provides: “A workmen’s compensation bureau is hereby created in the Department of Agriculture and Labor consisting of the Commissioner of — 152 — Agriculture and Labor and two workmen’s compensation commissioners, to be appointed by the Governor, who shall devote their entire time to the duties of the Bureau,” and', “prior to April 1, 1919, the Governor shall appoint, and may remove for cause, two workmen’s compensation commissioners,” . . . etc. This is not a proceeding to review the action taken before the Governor, and we cannot pass upon the sufficiency of the evidence to prove the existence of a legal ground for removal. The evidence upon which the Governor acted is not before us. We can only pass upon the sufficiency of the facts alleged in the answer to constitute' a defense to the application for a writ of mandamus. The respondent relies upon the familiar principle that where offices are created with definite terms and the incumbents are removable for cause, sufficient legal cause must exist to warrant the removal. Also that officials not removable at pleasure are entitled to a hearing for the purpose of ascertaining whether or not sufficient cause for removal exists, and that the hearing must be one at which they are given reasonable opportunity to be present, to know the nature of the charges against them, to cross-examine witnesses, and to adduce testimony to disprove the charges. Throop, Pub. Off. §§ 362, 365; Mechem, Pub. Off. § 454. We do not question any of these propositions, but we do not deem them determinative here. The answer alleges that notice was given to the petitioner of the character of the charges against him. These charges, if substantiated, in our opinion, amount to legal cause for removal. This would hardly seem to be debatable. It also alleges that a time and place was set when the petitioner would be given an opportunity to present his answer to the charges. It states the facts as to his appearance in response to the notice and of the steps taken by him at the time to protect his rights. His response was an argument against the jurisdiction of the Governor to' exercise removal powers and a statement that the charges were too vague and indefinite to admit of response. Presumably, the petitioner placed his defense to the attempted removal proceedings before the Governor upon the strongest grounds he had. Had he desired to take any other steps to preserve his rights, that was the time and place to take them. The reasonable inference to be drawn from his statement of the objections to the proceedings before the Governor is that he did not demand to know the identity of his accusers, — 153 — to know the character of evidence presented against him, nor to exercise the right to cross-examine those responsible therefor. Neither did he seek to introduce affirmative evidence to disprove the charges. On the contrary, he chose the procedure as indicated above, of objecting to the jurisdiction and to the lack of definiteness in the charges made. As to the indefiniteness of the charges, it would seem that they were about as specific as laymen are apt to make charges in matters of this kind. If drawn by lawyers accustomed to the niceties of criminal pleading by indictment or information, they might have been made to conform more nearly to the petitioner’s notion of definiteness; but we fail to see wherein they did not charge with substantial clearness grounds which amount to legal cause for removal. More specific reference to the answer may conduce to a more perfect understanding of our views. This proceeding, being here upon a demurrer to the answer and no evidence having been taken in the district court, Ave have no means of knowing the proceedings before the Governor except as they are alleged in the answer. Paragraphs 8 and 9 of the answer read as follows: “Defendants allege that on or about 3 o’clock, p. m. on said 23d day of April, 1920, which Avas the hour designated for said hearing on said order to show cause, the said Laureas J. Wehe appeared at the said office of the said Governor Lynn J. Frazier, and objected to the jurisdiction of the said Governor Lynn J. Frazier in said proceedings, and then and there Laureas J. Wehe caused to be served on the said Governor Lynn J. Frazier a written statement of his objections to the jurisdiction of the said Governor Lynn J. Frazier in said proceedings, copy of Avhich said Avriting is hereto attached, made a part hereof, and marked, for identification, ‘Exhibit C.’ “Defendants alleged that thereafter on said 23d day of April, 1920, a determination was duly made by said Governor Lynn J. Frazier removing said Laureas J. Wehe from the office of Workmen’s Compensation Commissioner,” etc. Manifestly, if the defendant in the removal proceedings on the 23d day of April, 1920, filed his objections to the proceedings, as alleged, and departed, the Governor could proceed to a determination of the matter upon the merits upon Avhatever evidence was before him. .And it is equally clear that if the defendant filed the objections above re — 154 — ferred to and demanded a ruling which was met by a refusal to rule, the hearing would have been terminated at that moment without giving the defendant an opportunity to defend. But the allegation in paragraph 9 is that thereafter “a determination was duly made.” This allegation cannot be true if the defendant was denied a ruling on his objections and an opportunity to be heard. It is a rule established by the Code that in pleading a determination of an officer of special jurisdiction the determination may be stated to have been duly given or made. Comp. Laws 1913, § 7460. It being specifically alleged here that the determination was duly made, the answer is not open to objection on demurrer unless from the other facts pleaded the loss of jurisdiction affirmatively appears. The answer does not show the nonexistence of any prerequisite steps to a valid determination, and we are of the opinion that they should not be found by implication. In view of the record made, there is no merit in the contention that the time of notice was too short, and there is no analogy between this case and the case of Eckern v. McGovern, 154 Wis. 157, 46 L.R.A. (N.S.) 796, 142 N. W. 595, relied upon by the respondent. While the foregoing opinion sufficiently indicates the views of the majority with reference to the issues raised by the demurrer to the answer, it may be well to mention the doubt entertained by the court as to the right of the petitioner to test the legality of his removal in a proceeding to compel ministerial officers to issue a salary warrant. In an opinion prepared by Mr. Chief Justice Christianson it is held that the plaintiff is not entitled to the writ for the reason that no ministerial duty devolves on the defendants to issue a salary warrant in favor of one against whom a removal order has been made. The majority, though agreeing to the result to which that opinion leads, does not adopt it, and our opinion is not to be construed as an implied holding on the question. In view of the discussion contained in that opinion, however, we deem it proper to say that we do not regard the question as settled by the cases of State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025, and State ex rel. Langer v. McDonald, 41 N. D. 389, 170 N. W. 873. The holding in these cases is merely to the effect that an incumbent whose term has expired cannot justify his failure to perform the ministerial act of delivering the office to a successor who presents a valid certificate of election, and when the rem — 155 — edy of mandamus is resorted to by the successor the court will not countenance the withholding of possession pending the trial of title to the office but will promptly issue the writ. If the opinion of the Chief Justice is sound, a claimant armed with an executive appointment and an executive order of removal fair on their face would be entitled to invoke the remedy of mandamus to gain immediate possession as against an officer who has not been legally removed, since that opinion gives to the removal order the same weight as it gives to a certificate of election. There is no adverse claimant in the case at bar. Recent authorities indicate a trend towards greater liberality in regard to the issues that may properly be tried in mandamus proceedings affecting public officers. 2 Bailey, Habeas Corpus, § 248; 18 R. C. L. 260, 264, 265. And there is much to be said in favor of this measure of protection against executive usurpation. We express no opinion upon this question. It must be apparent that the majority in this ease does not attempt to determine the ultimate right of the relator to the office. It cannot do so upon this appeal because the matter is not here. It only determines the sufficiency of the answer as against the demurrer and this is all that can properly be decided. It would seem tó be equally apparent that the concurring opinion of the Chief Justice goes much further in the direction of supporting executive usurpation, such as was condemned in the case of Eckern v. McGovern, supra, than does the opinion adopted by the majority. The order appealed from is reversed. Robinson, Bronson, and Grace, JJ., concur.