The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-03-01

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 ''in
his opinion" does not alter the case.
IL 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 a few courts
hold that the hearing should be be-
fore a court of law. Perhaps the
expression Gin his opinion1 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-
ion" Of 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, "that 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 q 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 a 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 a part are,
after the hearing, found to be true,
and it is a 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 op-
portuuity to be heard is essential, tor
no one ought to be condemned with
out chance to defend himself.
"When the removal is not discre-
tiOnary, but must be for u 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, 90 Mo-,
10, "a; Dullam V. Wilson, % Mich,
392, 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, % Pa, st. %, 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,
c.. j., ave are unwilling to believe
that the Governor intended without
cause to remove an officer appointed
for 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. It exists only where the
officer fails and neglects faithfully
to perform the duties of his
office 1t is true that the exc
cutive is made the Judge; and
that his opinion or judgment is con-
elusive so far as relates to the question
of removal. But that judgment is not
to be pronounced without notice, with
out any charge or specification and
without any opportunity given to the
officer to make his defense. The re-
putation and the right of the incum-
bent to the office for the term specified
in his commission are involved; and
he has right to know the accusation
and TO be heard in his defense"
In Dullam v. Wilson, SO Mich, 1872,
the constitution provided: ''The Gov
ernor shall have power and it shall be
his duty@ > #to examine into the con-
dition and administration of any pub
lie office and the acts of any public
officer, elective or appointed, to re-
move from office for gross neglect of
duty, or for corrupt conduct in Office
or any other misfeasance or malfeas-
ance therein : and to appoint a
successor, and report the
causes of such removal to the Legis-
lature at its next session." The Court
said, per Champlin, J., "He (the Gov
ernor) is not authorized to exercise
the power (of removal) at his pleasure
or caprice. It is only when the causes
named exist that the power conferred
can be exercised. It follows as a nee
essary consequence that the fact must
be determined before the removal can
be made. It is also clear that the fact
must be determined by some tribunal
invested with judicial power, for de-
whether specified causes
exist is the exercise of judicial func-
tons. Judicial determination of facts
must rest upon and be preceded by
notice, proof and hearing"
In State ex rel DenisOn VS.. City of
st. Louis, so Mo, 10, the statute pro-
vided: "Any appointed officer may be
removed by the mayor or council for
cause" The statute provided express
" for hearing in the case of re-
moval of an elected officer, but not in
the case OF Il TeLlONdI VI all dppOIHIeu
officer. This would seem to imply
that no hearing need be given in the
latter case, but the Court held differ
emily, in the words above quoted from
this case.
In Field v Commonwealth, 81 Pa,
st. AIS, the Court held that an oppOr-
tunity to be heard must be given be.
fore removal, where the appointment
is either during good behavior for a
limited or unlimited period, or where