The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1913-01-08

once. There are certain officers. Of
course. who cannot be removed ex-
cept by impeachment. They are NAM
cd In section l96 Of the constitutions:
The governor and other state and ju.
dicial officers. excepting county
judges. justices OF the peace aud no.
lice magistrates. Section 1877 q
Htdes that all officers not liable to I'm.
peachment shall be subject to remoya
Tor misconduct. malfcasance. crimc or
m,sdeamanor IN office. or for habitunl
d~runkenness or gross incompetcncv-
Fol- any of these causes, the Officer
may he removed as provided by law.
1t does not say that the oflcer NAV
ne removed by an action in court fn.
these causes. but as provided bv law
the makers of the constitution had
IN mind a summary action, a. specdv
remed n they placed no Limitation
upon the power Of the legislature, OK
to those officers who were not snhtcct
10 mpeachmen under section l9G.
There should be. then. a. power 10
removal. and where better can II he
placed than In the officer in whom
rs vested all the executive power of
the state and who is commanded to
take care that the laws be faithfully
: eSeeuted. The first objection made
this power for political purposes. and
would remove his enemies ana an
point his friends to office. This rea,
son has been before the courts in
constituting such laws, and the courts
nave Invariably held that the respon-
slpillty to the people of the officer Ia
~ oam TINS power is given will, of
course. prevent him from removing
ernor would ever dare to uae fhi.
power for political purposes, for such
a use would kill him politically. But
70 avoid all question of the power he
ing used for political purposes. Let
there be a provision in the law that II
n not be used for political pur-
poses. but only for cause. It could
not under our constitution be used for
Poiiticai purposes. for the causes for
which the officer might be removed
are named in the constitution. Before
the governor could remove an of1cer
ne would have to charge the officer
with one OF the offenses named in sec.
tton 1877 Of the constitutions: miscon-
DUCT. ma~ifeasance. crime or misde-
meanor in office. or for habitual
drunkenness. or gross incompetency.
legislature make provision for re.
moval and the governor remove.
Inc next objection. and the that
seems to have the greatest weight
with the public generally, is that It ia
giving an executive officer judicial
power. and, therefore. demonstrations
al. This question has been many
times in the courts and there are au-
thorities on both sides. but the great
weight Of authority holds that it is
not judicial power within the meaning
Of that term. and that such laws. are
not unconstitutional. A very elabor.
ate and learned discussion Of this sub.
ject is to be found in the case of Ter
ritory Of Dakota V. Cox, 6 Oak, sol.
This case has not been followed in
some particulars in either North or
South Dakota, but the decision on the
question of judicial power stands un-
challenged. I quote from said deci-
sion on page sos:
Yet II the power be clearly judi.
cial. 1t cannot. as already shown, be
exercise of such power by him would
be a usurpation and his action illegal
and void. What. then. is judicial
power? 1t is said to be the power to
hear and determine but this detini-
ton is too comprehensive; every adj
ministrative and executive officer il
required to hear and determine many
facts upon which his action is based.
All the political and executive depart
lIlcIlNS VI Ilo 8OSCTulIlOuL are IClulEGSl
to pass. upon controverted questions OF
fact, boards of canvassers, boards vt
equalization. boards of county CONF
rnissioners. and other administrative
officers are continually passing upon
questions of the greatest moment to
the citizen. Involving the right Of Of
flee. the disbursement Of the public
revenue in the erection of bridges and
public buildings, and the opening OF
13~1 W1n 20 la RNS-- IL ~O,,> - AA>n
erty n in levying and collecting
Of taxes, often involving civil rights
and sometimes, where the administra-
ton of the government is concerned.
rights Of persons and property; and
while the determination of such ques-
tons involves Judgment and discre-
ton and the examination Of dif1cult
and controvertcd questions Of fact,
and while the decision Of such admin
%istrative officer upon such hearings is
final, yet his action Is not judicial. In
the case of State vs. Hawkins, lately
determined in the supreme court of
Ohio. where the governor Of that
state had removed the police COM
missioners of Cincinnati. and 1t was
urged that his action was illegal and
void upon the ground that the power
Of removal was judicial and could not
be conferred upon the executive. that
SOU4I III al dUlc T0NlcW OIL Tue AI0GFI~
ran authorities upon this question.
holding that the power Of removal is
executive and not judicial, says: "The
first claim is upon the assumed ground
that the power conferred upon the
governor by the statute to remove any
Of them for official misconduct Is ju-
dicial in its nature, and. though con-
ferred by the act. canot he exercised
as the judicial power of the state Is.
by section l, article 4. of the consti-
tuition. conferred upon the courts OF
the state only. This Is not to be re-
garded as an entirely new question. It
has been much discussed by courts
and writer's without being able to for
mulate any general rule upon tho
subject. What is judicial power cam
not be brought within ring fence Of
a definition. 1t is, undoubtedly pow
err to hear and determines: but this is
not peculiar to the judicial Office.
Man, of the acts of the administra-
tive and executive officers involve tho
exercise Of the same power. 1T may
he safely conceded that power to hear
and determine rights of property and
person between private parties Is ju-
dicial. and can only be conferred on
the courts. But such a definition does
not necessarily include this case. Tho
incumbent of an office has not. under
our system of government. any prop
erty in it. His right to exercise tits
not based upon any contract or grant.
1t is conferred on him az a public
trust. to be exercised for the benefit
OF the public. Such action by adj
m%inietrative or executive officers is
not judicial in the sense that it be-
longs exclusively to the courts. 1t
n H. 80 g.