Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1913-01-09

1 ~
auired to pass upon contrOverted Ques-.
lions OF fact. boards OF canvassers. boards
OF equalization, boards of county commits
sioners, and other administrative officers
are continually passing upon questions
of The greatest moment to the citizen,
involving the righ, Of office, the disbnrsr-
mcnt of the public revenue In tho cree
ton Of bridges ana public buildings. ana
the opening Of highways, in liking the
values, OF property and In itvying and col
lecting Of taxes, often involving ciVil
rights and sometimes, where the admin
~istration Of the government Is concern
cd, rights Of persons and property; and
| while the determination On such questions
involves Judgment and discretion and the
| examination Of difficult and controvcrt-
ed questions Of. fact. and whi'c the de-
cision OF such administrative officer up-
on such hearings is final, yet his action
is not judicial. In the case OF state v,
Hawkins, lately determined IN the SUI
! preme Court Of Ohio. where tho Govern
or Of that state had removed the police
commissioners of Cincinnati. ard 1t was
, urged that his action was illegal and v"ih
upon the ground that the owe of re-
moval was judicial and could not be con-
rerre~ upon the executive. that court IN
| III nv J. VI wv t''''' 'NN'
iities upon this question. holding that the
power Of removal Is executive and not
judicial. says: THE lrst claim Is upm
the assumed ground that the power con-
, fcrred upon the Governor by the statute
to remove any Of them for official mis-
conduct Is judicial in its nature, ana,
though conferred by the act, cannot be
exercised as the judicial power of the
state Is, by section !, article 4. or the
constitution, conferred upon the courts
of the state only. This Is not to he re-
gardcd us an entirely new question. II
has been much discussed by courts ana
writers without being able to formulate
any general rule upon the subject. what
is judicial power cannot be brought with
ing ring fence of Il definition. 1t is,
undoubtedly, power to hear and deter
mine: but is Is not peculiar to the Ju-
diciar office. Many Of the acts of the
administrative and executive offices IN
| voive the 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 ius
dicial, and can only be conferred on the
courts. But such n definition does not
necessarily include this case. The in
cumbcnt Of an office has not, under our
l - Slt1l '" " VI "'S 'I>'N ~
it.. Ills right to exercise 1t IS not based
upon any contract or grant. 1t is con-
ferred on him as Il public trust, to be
exercised for the benefit of the public
such action by administrative or eX-
i %cci,tivc officers Is not judicial In the
sense that it belongs exclusively to the
courts. 1t may he so far judicial that
! such an officer so exercising judgment
and discretion in the determination OF
! cOntrovcrted questions of fact, may be
protected in an erroneous determination
of the matter before him., but not so Tar
judicial that the subject matter is cog
ni%able by the courts only. All judicial
power by the organic act, like the con-
situations of the states and of the ma
ton, is vested in the courts; a prohibi-
ton upon its exercise by the executive or
legislative department, hut the judicial
power therein conferred upon and limit
ed to the courts, IS that judicial power
which in the legal acceptation of the
words can be exercised only by the court.
1t is the power which Is confined to the
courts by the words of limitation in the
constitutions itself, that no person shall
be deprived of life, liberty, or property,
without due process of law I'm other
words, the courts have exclusive power
to hear and determine those matters
which a.ect the life or liberty or the
pronorty Of the citizen; all other rights,
while they may be in a sense judicial,
arc not 50 far within the Jurisdiction of
the courts tina their exercise by another
department would he void. Is the right
in. controversy Of that character? Does
it affect the life, the liberty or the prop
crty of the citizen? Judged by this test,
it is not n judicial power. 1T is Il power
often conferred upon the courts and its
exercise is highly judicial in its char
actor: it often involves close and con-
tested questions of fact, and nice and
delicate discrimination in the application
Of law, but it Is the Subjcct-matter and
not the procedure that determines juriS-
LECTION" "The authorities holding that
removal from office is Il judicial power
and can be exercised only by the courts
arc based upon the theory that an office
is in the Oaturc nj Il property right, ana
by due process Of law while the other
line of decisions holds that under our
form Of government, there is no proper
ty in an office. that offices and officers
arc for the benefit Of the people. and not
for the benefit of the officers. and that
whenever the officer fails to perform
! the duties of the office, the office be-
comes forfeited, and that the only OBJ
ject Of the examination necessary to de-
terminc such forfeiture is such as will
establish the fact not to the satisfaction
Of, or for the benefit Of, the incumbent,
bu- to the satisfaction of the executive
department which is charged with the OK
@ccution Of the laws, and that hence the
removal may he summary, or upon such
investigation as nay be prescribed by the
legislative department."
This is professionally the law under
the modern decisions, for there are no
property rights in offices in the United
States today excepting in the State of
North Carolina. And while l. might
quote from numberless decisions in sup
port OF this principle l shall only call
| attention to one more from the State of
Minnesota, under a constitution very
I similar t ours. the case Of State V. Pet
crsOn, 30 Minn., 800. Under the Mime
sofa avs If 1881, Chap. 108, the Govern
or had the power to suspend and remove
county trcaSurers for malfeasance or
| non feasunce in office. Such action was
instituted againts Mr.. Peterson. the
treasurer IF Hennepin county. The de-
Tense claimed thai the power Of removal
from office is judicial in its nature and
could be exercised only by the judicial
tribunals OF the state, and that under
| the constitution the legislature has no
authority 20 provide for the removal of 4
county treasurer except by judicial pro-
Iceedings in court. Mitchell, Judge, said:
Whether the power OF removal from Of.
flee for official misconduct Is judicial in