Lease v. Freeborn

Per Curiam: This case has been submitted to us upon the petition and the demurrer thereto. It is insisted that there was no vacancy upon the board of trustees of the charitable institutions of the state in March, 1893, and, therefore, that the allegations in the petition do not show that Mrs. Mary E. Lease was ever a member of the board, or, if she was ever a member, that her time expired on the 1st of April, 1893. This is purely technical, and in no way touches the merits of the case. The petition alleges that in March, 1893, Mrs. Lease was appointed by the governor, confirmed by the senate, and qualified as a member of the board of trustees for the term of three years. In view of the statute and the public records of the senate, the petition may be considered as amended, and as alleging that the term of office of Mrs. Lease commenced on April 1, 1893. (Gen. Stat. of 1889, ¶ 6533.) Of course, her appointment, confirmation and qualification necessarily preceded the commencement of her term of office. The allegations that the attempt to remove or oust her from office was made in December, 1893, clearly show she not only held the office after March, 1893, but also show she was recognized as a member of the board after March, 1893, and is in the line with the allegation that her term of office extended to three years. We think the other allegations in the petition sufficiently allege an unlawful removal and a wrongful ouster, and, therefore, that the general demurrer must be overruled. The petition states that the governor, without any cause or warrant of law, attempted to remove Mrs. Lease from office, and attempted to prevent her from acting as a member of the board; that the defendant, J. W. Freeborn, has obtained a [754] commission from the governor for the same office, and has usurped and intruded himself into the office, thereby depriving her of all of her rights thereto, and from receiving the emoluments thereof. The petition concludes, “that the defendant, J. W. Freeborn, has forcibly and illegally dispossessed her of the office, aud is now unlawfully and wrongfully holding the same.” If the petition alleged that Mrs. Lease had been removed upon charges,, after notice and hearing thereon, then it might be assumed, in the absence of other allegations, that her removal was within the provisions of some statute; but the petition does not allege that any charges-have been made, or any notice served, or any hearing had. The constitution ordains that the “trustees of the benevolent institutions shall be appointed by the governor by and with the advice and consent of the senate,” but does not declare-the term or tenure of office of the trustees. Section 2, art. 15, of the constitution, ordains: “ The tenure of any office not herein provided for may be declared by,law; when not so declared, such office shall be held during the pleasure of the authority making the appointment.” Section 2, chapter 130, Laws of 1876, declares that the term or tenure of office of the trustees, after 1879, shall be three years. The obvious meaning of § 2 of art. 15 of the constitution is that, in those offices the term or tenure of which is not fixed by law, the incumbent may be removed at the pleasure of the appointing power, but where the term or tenure is declared by law, then the officer shall hold for the full term. (The People v. Jewett, 6 Cal. 291; The People v. Hill, 7 id. 97; The People v. Freese, 76 id. 633; Mech. Pub. Off. 385.) It is well settled by the authorities, that it is only where no term or tenure is fixed by the constitution or the statute that an officer holds at the pleasure of the appointing power. (Jacques v. Litle, 51 Kas. 300; Mech. Pub. Off, §§ 445, 454; 19 Am. & Eng. Encyc. of Law, pp. 562f, 562g; The State v. Police Comm’rs, 88 Mo. 144; Kibby v. Cold, 63 Iowa, 659; [755] Throop, Pub. Off., §341.) Of course, any trustee may be removed “for good cause shown,” but this fact becomes a condition precedent, and the cause or'causes enumerated must be alleged, and the party notified and the causes examined. (The State v. St. Louis, 90 Mo. 19; Page v. Hardin, 8 B. Mon. 648, 672; 1 Dill. Mun. Corp., 4th ed., 240-256.) The mere silence of the statute with respect to notice and hearing will not justify the removal of an officer whose term or tenure is declared by law, without knowledge of the charges and an opportunity to explain his or her conduct and defend his or her course and character. (Jacques v. Litle, supra.) This case differs from The State v. Mitchell, 50 Kas. 289, because the statute expressly provides that the “executive council may at any time remove the railroad commissioners, or any of them.” No such provision exists concerning the trustees of the charitable institutions. , Upon tbe hearing of the demurrer, it was argued on the part of counsel for tbe defendant, and also by tbe attorney general, that the trustees and other persons connected with the charitable institutions could only be removed by charges presented in writing to the governor, after notice and hearing under the provisions of chapter 239, Laws of 1889, Gen. Stat. of 1889-, ¶¶ 5958-5960; and it was suggested that the petition ought to have alleged that its provisions had not been complied with. It is unnecessary for us to determine in.this case whether a removal can be had upon a hearing before the governor alone, or before the special tribunal created by chapter 239, Laws of 1889, or until malfeasance or misfeasance in office has been established in the courts. The petition does not allege any notice, hearing, or trial. It is not claimed by any of the counsel that there has been any trial before any officer, tribunal, or court. We therefore need not diScuss the precise mode of procedure for removal from office. “Sufficient unto the day is the evil thereof.” If Mrs. Lease has been arbitrarily or capriciously removed without any cause or warrant of law, as alleged in the petition, she is entitled to be restored to all of her rights. She cannot be ousted excepting for cause, and, [756] before being ousted, she is entitled to be heard in her own ■defense. All the Justices concurring.