Lindley v. Davis

The opinion of the court was delivered by Mason, J.: The state board of administration on December 27, 1924, made an order removing the chancellor of the state university from that position. On the same day the chancellor brought an action in the district court asking an injunction against the enforcement of the order, the operation of which was stayed pending the hearing. On January 5 judgment on the pleadings in favor of the defendants was rendered in the district court, and the plaintiff appeals. The plaintiff contends that the board of administration can remove the-chancellor of the university only for cause. The board asserts that he is removable at its pleasure. The statute contains two seemingly conflicting provisions, one [559] supporting the plaintiff’s view, the other that of the board. They are: “The board of administration shall appoint a chancellor, who shall be the chief officer of the university, the head of each department thereof, and whose duties and powers otherwise than prescribed in this act shall be prescribed by the board of administration. ... . The said chancellor shall hold his place at the pleasure of the board.” (R. S. 76-304.) “It shall be the duty of the board of administration to appoint a superintendent or other chief executive officer of each institution under its control, and said officer shall hold his office unless removed by' the said board of administration for official misconduct, neglect of duty, incompetency, or other cause; belief or political affiliation of such officer shall not be sufficient cause.” (R. S. 76-121.) “In case any superintendent or other executive officer of either of the institutions under the control of the state board of administration shall fail, neglect or refuse to abide by the rules and regulations of such board or shall fail to carry out in good faith any order of such board, the said board shall have power to remove such officer from his office.” (R. S. 76-105.) If these conflicting statutes stood upon equal footing in point of time of their enactment there would be good ground for invoking the rule that the general provision must yield to the specific, thus giving effect to that relating to the chancellor alone. The provision that the chancellor should hold his office during the pleasure of the appointing power (then the board of regents) originated in 1889 (Laws 1889, ch. 258, § 8.) The section containing it was rewritten in the revision of 1923, but the only change made other than verbal was to substitute the new appointing power, the board of administration, for the old. In 1905 the board of control was given the appointment of heads of state institutions other than the university, the appointees to hold until removed for cause. (Laws 1905, ch. 475, §§ 24, 21.) In 1917 the board of administration was created, and the university, as well as the other state institutions, was placed under its supervision. (Laws 1917, ch. 297, § 14.) In the revision of 1923 the name of'the board of administration was substituted for that of the board of control in the sections of the act of 1905 above cited. The plan of having the head of the university hold office until removed for cause instead of being removable at pleasure was therefore the later expression of the legislature on that particular subject, and should have the preference under the rule for construing the provisions of a statute, so far as they are the same as those of any prior statute, as a continuation of them and not as a new statute. (R. S. 77-201, sub* div. first.) [560] But the statute authorizing the chancellor of the university to hold the position until removed for cause is in conflict with the provision of the state constitution that— “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, but the legislature shall not create any office the tenure of which shall be longer than four years.” (Art. 15, § 2.) The chancellor is obviously an officer. He is described in one statute as a “superintendent or other chief executive officer” of a state institution and in another as the chief officer of the university. He is the head of a governmental department. A statute fixing a definite term of office at more than four years or an indefinite tenure during good behavior is to that extent void, and the incumbent holds at the pleasure of the appointing power. (Lewis v. Lewelling, 53 Kan. 201, 36 Pac. 351; Haney v. Cofran, 94 Kan. 332, 146 Pac. 1027.) It is suggested in behalf of the plaintiff that although the chancellor holds his position at the pleasure of the body which appointed him, there are limits to arbitrary conduct in this respect beyond which the board may not go, and that the pleadings raise an issue of fact in this regard. In an English -case, where the head master of Rugby was dismissed by the governing body and the validity of the act was challenged in court, language was used indicating the power to remove in order to be beyond judicial review must be honestly and fairly exercised. There, however, the court refused to interfere, Vice Chancellor Malins saying: “It is impossible for this court, when parliament has put it so absolutely in the power of the governing body, to interfere. I repeat, according to the construction of the act of parliament, my opinion is that every head master of a public school — that is, of the great public schools, for I believe every one of them is subject to this act — that every head master is as much at the mercy of the governing body as a coachman is at the mercy of his master, and can be dismissed with or without reason.” (Hayman v. Rugby School, 43 L. J. Ch. 834, 855; L. R. 18 Eq. 28.) Possible conditions might of course exist justifying a court in disregarding an order removing an officer who held only at the pleasure of the body making it, such, for instance, as actual corruption or its equivalent. But the fact of its having been due to prejudice or passion will not justify a judicial retention in office of one whose title to it has been thus terminated. We do not regard the allegations of the petition as tendering an issue of fact proper to be determined by the court. [561] It is suggested further that, conceding, for the purpose of the argument, that the board had the power to displace the chancellor without reason other than its own pleasure, it undertook to remove him for cause and is confined to that method. We think the pleadings show the order of removal to have been made in the exercise of the plenary and absolute power of the board, the allegations of its answer in that connection having rather the color of explanations of the motives which actuated it than of grounds authorizing its course. The judgment is affirmed. Harvey, J., not sitting.