The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-03-07


hold that the removal is discretionar,
would be to nullify the words of tn
statute which specify the causes TO
which the removal may be made
Section 8 of the same Act provide
, that leach assessor shall appoint, ant
at his pleasure remove, as many
deputies as may be re
CURED By plain words, the
deputies are made removable a
pleasure. If the assessors were in
tended to be removable in the same
way, why were not similar words
used? Why were certain accuses spec.
flied? Obviously, the Legislature in
tended that the tenures of office should
be different in the two cases. A dep.
uty is removable at pleasure, an asses
sor for cause only. The expression Sin
his opinion" does not alter the case.
1t merely expresses what would be
true without the expression. For,
where an officer is removable for
cause, the hearing is had before the
removing officer; though few courts
hold that the hearing should be be-
fore court of law. Perhaps the
expression Gin his opinion was
inserted to show beyond doubt
that the Minister is the one to de-
eide whether the causes exist. Whe-
Their the causes exist or not must rest
sin the opinion of some one, and the
fact that it is so expressed in the stat
ute does not negative the idea that
there must be hearing. The "opin-
iOnn of a judge is often mentioned in
statutes, but this does not mean an
''opinion" without a hearing. An
opinion is very different thing from
discretion, or pleasure. Nor is the
case altered by the proviso, shat in
case of any such removal the said
Minister shall, within two weeks
| thereafter, give such person a state
ment in writing of the reasons and
specific facts relied on for such remov-
al" If the removal can be made for
cause only, under the first part of the
section, the requirement, in the pro-
viso, of a statement thereafter of the
particular causes relied upon is not
sufficient to show that, taking the
whole section together, removal may
be made at pleasure. Indeed, this
proviso clearly implies that removal
can be made only for cause, for it re-
fers to the "reasons and specific facts
relied on for such REMOVAL 1t
is entirely consistent with the idea
that a hearing is required For, it
may be that of the charges preferred
against the assessor, only part are,
after the hearing, found to be true,
and it is statement of these only
that is required. The proviso does
not imply that the official is then,
that is, after his removal, to know for
the first time what charges there are
against him, but that he is to know
then what charges are found to have
been proved against him. 1t is true,
no hearing is provided for in the
statute, and this would appear, at
first thought, to indicate that no hear
ing need be given. But once admit
ting that the removal can be made
only for cause, it follows that an OPP
portunity to be heard is essential, for
no one ought to be condemned with
out a chance to defend himself.
"When the removal is not discre-
tionary, but must be for a cause, as is
the case here, and nothing is said as to
the procedure, specification of the
charges, notice, and an opportunity to
be heard are essential" State ex rel.
Denison V. City of St. Louis, 80 Mo-,
10, "a; Dullam V. Wilson, IS Mich,
1872, 400; Dillon, Nun. Corp, Sec. 253.
There are authorities, it must be adj
mitted, which hold that under stat
utes similar to ours, no opportunity to |
be heard need be given. But these |
appear to be opposed to the decided /
weight of authority and to funda-
mental principles of justice.
In Commonwealth ex rel. Bowman
V. Slifer, 25 Pa, st. 23, the statute
provided: "Whenever in the opinion
of the Governor, the said Adjutant-
General fails and neglects faithfully
to perform the duties of his office, the
Governor shall remove him from
office" The Court said, per Lewis,
G. j., ave are unwilling to believe
that the Governor intended without
cause to remove an officer appointed
for a term of years before the term
had expired. That he possessed the
power of removal is conceded; but the
power is to be exercised upon cause
shown. 1t exists only where the
officer fails and neglects faithfully
to perform the duties of his
1ffice.' 1t is true that the exc
,utive is made the Judge; and
that his opinion or judgment is con-
elusive so far as relates to the question
If removal. But that judgment is not
% be pronounced without notice, with
,ut any charge or specification and
any opportunity given to the
officer to make his defense. The re-
outation and the right of the incum-
yent to the Office for the term specified
n his commission are involved; and
lie has right to know the accusation
md to be heard in his defense"
In Dullam V. Wilson, SO Mich, 392,
he constitution provided: 'fThe Gov
,rnor shall have power and it shall be
lis duty* = #to examine into the con-
lition and administration of any pub
ic office and the acts of any public
,ff1eer, elective or appointed, to re-
move from office for gross neglect of
luty, or for corrupt conduct in office
" any other misfeasance or malfeas-
nee therein 8 and to appoint a
uccessor, and report the
auses of such removal to the Legis-
AZURE at its next session." The Court
aid, per Champlin, J., HE 1.-THE Gov
rnor) is not authorized to exercise
he power (of remOvaD at his pleasure
II l. |