The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1913-01-08
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this test, 1t Is not a Judicial power. 1t
Is a power often conferred upon the
courts, and its exercise is highly ju-
dicial in it's character; 1t often in
wolves close and contested questions OF
fact, and nice and delicate discrimina-
ton in the application Of law. but 1t
is the subject-matter and not the pro-
cedure that determines Jurisdiction
1.-THE authorities holding that remov-
al from office is a judicial power and
car be exercised only by the courts
Office Is in the nature Of a property
right, and that the citizen ran be de-
prived of it only by due process OF
law while the other line Of decisions
holds that under our form of govern
ment, there is no property in an Of
flee, that offices and officers are 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 oD-
ject Of the examination necessary to
| determine such forfeiture is such as
will establish the fact not to the sat
isfaction of, OF for the benefit of, the
incumbent, but to the satisfaction OF
the executive department which is
F, charged with the execution Of the
laws, and that hence the removal may
be summary, or upon such investiga-
. ton as may be prescribed by the legis-
! lative department.
der the modern decisions, for there
are no property rights in office in the
United States today excepting in the
state Of North Carolina. And while l
might quote from numberless deci-
sions in support of this principle /
shall only call attention to one more
from the state of Minnesota, under a
/ constitution very similar to ours. the
case Of State We. Peterson. so Mimi.
239. Under the Minnesota laws of
1881, Chap. 108. the governor had the
power to suspend and remove county
~treasurers for m~alfeasance or non
%feasance in Office. Such action was
instituted against Mr.. Peterson, the
treasurer of Hennepin county. The
defense claimed that the power Of re-
moval from office is judicial in its ma
ture and could be exercised only by
the judicial tribunals of the state. and
that under the constitution the legis-
lature has no authority to provide for
the removal of a county treasurer ex-
cept by judicial proceedings in court.
Mitchell, Judge, said: Whether the
power Of removal from office for off,
cial misconduct is judicial in its Ia
ture is a question that has been much
discussed, and upon which the courts
in this country are not agreed. Some
courts hold the affirmative, seeming
to proceed upon the ground that al
incumbent has a property in his Of
flee, of which he cannot be deprived
without the judgment of a court, aft
er due notice and a hearing. This
view is. Of course. in accordance with
l Cha a0otrira NJ aNranoNn Iouy uyhinh
regarded an office as a hereditament.
Other authorities hold that the power
of removal from office is administra-
tive. and not judicial. These proceed
upon the theory that. under u sys-
tenn of government, public Office Is q
public trust, and not private property:
that the right to exercise 1t is not bas-
ed upon any contract or grant. but
that the office is conferred upon the
incumbent as a public agent. to be e x
ercised for the benefit Of the public.
the constitution Of this state it is un-
necessary to determine which of these
doctrines is correct. 1t may he con.
coded. for the purposes of this case
that the power of removal from Office
is judicial, and that an incumbent
cannot be removed except after notice
and q hearing. Article 10 of the con.
stltutlOn, AFTER providing In sectlon ]
for the removal of state officers and
Judges of the supreme and distric,
courts by impeachment, then provides
in section 2 that the legislature of the
state may provide for the removal Of
inferior officers from office for NAL
feasance or n~onfeasance In the per-
Torrance of their duties."'
This is Just what our constitution
does. 1t provides for the impeach.
ment Of certain state officers In Sec
1876. and in Sec. 1877 expressly gives tc
the legislative assembly the power tt
make provisions for the removal Of al
other officers. So the constitutions Of
Minnesota and North Dakota are alike
in this respect. and IL 1t was not nee.
essary to decide the question under
the Minnesota constitution 1t follows
that 1t Is immaterial under the con.
stitution Of our state. Quoting again
from the opinion in the Minnesota
case. the court said. In reference ia
the power Of removal:
1.-THE power thus conferred 10 plen-
airy. and confers authority upon the
legislature to vest the power of re.
moyal. and the determination of the
Question whether cause for removal