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1315.
STATE OF MICHIGAN,
E A PEEKS IN THIE MATTER
OF THE
REMOVAL
() F
JOHN W. JOCHIM, SECRETARY OF STATE, JOSEPH F. HAMBITZER,
STATE TREASURER, AND JOHN G. BERRY, COMMISSIONER
OF THE STATE LAND OFFICE
COMPRISING THE
BOARD OF STATE (ANWASSERS
BY AUTHORITY
L.A. N. SI N G
ROBERT SMITH & CO., STATE PRINTERS AND BINDEBS
1895

FEMOVAL PROCEEDINGS.
ORDER TO APPEAR.
ExECUTIVE OFFICE,
Lansing, February 6, 1894.
To John W. Jochim, Secretary of State; Joseph F. Hambitzer, State
Treasurer, and John G. Berry, Commissioner of the State Land Office,
composing the Board of State Canvassers:
GENTLEMEN-Public charges have been made and have come to my
knowledge that gross errors were made in the canvass of the returns of
votes given in the various counties at the election held in this State on
the first Monday in April, A. D. 1893, for and against the adoption of
joint resolution No. 10, approved March 9, 1893, entitled “Joint Resolu-
tion proposing an amendment to section one (1) article nine (9) of the
constitution of this State, relative to the salaries of State officers,” by
which it was made to appear that such amendment to the constitution had
been ratified and approved by a majority of the electors voting thereon;
whereas, it is alleged, that by a true and correct canvass of the returns of
such votes, the said amendment was defeated.
Under the power granted and duty imposed upon me as Governor of
this State, by section eight (8) of article twelve (12) of the constitution, it
becomes necessary to inquire into the condition and administration of
your several offices, and especially into the manner in which you have
severally and collectively performed the duties of the Board of State Can-
vassers, of which you are ea officio members, for the purpose of determining
whether you have been guilty of gross neglect of duty in the matter of
canvassing the said returns, e
You are therefore severally cited and required to appear before me at
the Executive Office, in the city of Lansing, on the fifteenth day of Feb-
ruary, 1894, at one o’clock in the afternoon, and then and there to answer
to the following specific charges, viz.:
1. That you, the said John W. Jochim, Secretary of State, Joseph F.
Hambitzer, State Treasurer, and John G. Berry, Commissioner of the
State Land Office, who are the Board of State Canvassers under the con-
stitution and laws of this State, were each and every one of you guilty of
gross neglect of duty in this that you did not, nor did either of you exam-
r; 2 . , ; O'C,
, , , 3,...i.a. “
4 REMOVAL PROCEEDINGS.
ine the statements or returns of votes from the several counties filed in
the office of the Secretary of State, showing the number of votes cast for
and against said proposed amendment to the constitution relative to the
salaries of State officers, by the electors in this State, at the election in
April, 1893. º
2. That you were severally guilty of gross neglect of duty in this that
you did not, nor did either of you, ascertain and determine the result of
such vote, nor perform with due and proper care the duties relating to
canvassing the statements and returns from the several counties of the
votes given at such election, for and against said proposed amendment to
the constitution required of and imposed upon you as members of said
Board of State Canvassers by the constitution and laws of this State.
3. That you were severally guilty of gross neglect of duty in this that
you made and suffered to be made gross errors in the canvass of the state-
ments and returns filed in the office of the Secretary of State of the votes
given in the several counties at said election in April, 1893, for and
against said proposed amendment to the constitution by which it was
falsely made to appear that such proposed amendment had been approved
and ratified by a majority of the electors voting thereon ; whereas by a
true and correct canvass of the said statements and returns the said pro-
posed amendment was defeated.
4. You are further required then and there to show cause why you and
each of you should not be removed from office for gross neglect of duty.
JOHN T. RICE,
- Governor.
STATE of MICHIGAN, S
Ingham County. |ss.
Arthur P. Loomis, of the city of Lansing in said county, being duly
sworn, says that on the 6th of February, 1894, he served personally on
John W. Jochim, Joseph F. Hambitzer and John G. Berry, a notice of
which the annexed is a true copy, by delivering to each of said persons,
personally, a true and correct copy thereof at the city of Lansing in said
county.
ARTEIUR P. LOOMIS.
Subscribed and sworn to before me this 6th day of February, A. D. 1893.
H. G. E.E.R.
Notary Public, Lapeer Co., Mich.
PROCEEDINGS
Had before Hon. John T. Rich, Governor of the State of Michigan,
sitting as a high court of impeachment, on February 15, 1894.
Respondents John W. Jochim, Secretary of State, Joseph F. Ham-
bitzer, State Treasurer, and John G. Berry, Commissioner of the State
Land Office, were present in person.
Smith, Lee & Day, attorneys for respondents, and Fred A. Baker,
of counsel, John Atkinson, of counsel for John W. Jochim, and Sybrant
Wesselius, of counsel, for John G. Berry, appeared for respondents,
BOARD OF STATE CANVASSERS. 5
Harrison Geer and Edward Cahill appeared in behalf of the people.
Mr. Lee: We have a motion we wish to submit.
And now come the said respondents, in their own proper persons, and
move the court to vacate the notice in this cause, and dismiss the charges
therein, and for the following reasons:
I.
The Governor has no power under section eight of article twelve, or any
other provision of the constitution, to remove the respondents, or either
of them, from their respective offices for any misconduct on their part, or
on the part of either of them, as members of the Board of State Canvassers.
II.
The power of the Governor under section 8, article 12, of the constitu-
tion, is confined to the official misconduct of the officers therein named,
in the performance of the duties appertaining to each of said officers sep-
arately and severally considered, and it does not include such duties as are
performed by such officers jointly with others as members of constitu-
tional or statutory bodies or boards.
III.
The house of representatives under sections 1, 2 and 3, article 12, of
the constitution, has the sole power to direct an impeachment of these
respondents for misconduct in the performance of their duties when act-
ing as a Board of State Canvassers, and the senate has exclusive jurisdic-
tion to try any such impeachment.
IV.
The charges set forth in the notice served upon these respondents are
wholly insufficient and fatally defective, for the reason that it is not
alleged therein that the neglect of these respondents, or any of them, was
intentional, or that they or either of them, have knowingly and design-
edly neglected any official duty, or that they or either of them have neg-
lected to perform any duty with an evil intent, or for any improper,
illegal or culpable purpose.
W.
The charges contained in said notice do not make or state a case of
gross neglect of duty within the meaning of section 8, article 12 of the
constitution, and the Governor, sitting as a court of impeachment, has no
jurisdiction or power to render judgment of removal thereon.
º -
VI.
The notice served on respondents is void, because it is not “In the
name of the People of the State of Michigan,” as required by section 35
w
6 REMOVAL PROCEEDINGS.
of article 6 of the constitution, and it is not authenticated by the great
seal of the State as required by section 18 of article 5 of the constitution.
VII.
The Board of State Canvassers is created by the constitution of this
State, and in the performance of their duties and functions, the members
of said board in the absence of conduct on their part amounting to a crim-
inal offense, are not subject to the control or interference of the Governor
of the State, or of any other branch or department of the government,
and excepting the powers of the legislature to determine any case where
the decision of the State Board of Canvassers is contested, they are
answerable or amenable only to the people of the State by whom they
were elected to their respective offices.
Mr. Lee: Now the discussion of this motion I shall leave to other
counsel in the case, especially Mr. Baker, who has given it very careful
comsideration. The part of the motion of which I shall speak is that in
relation to the powers of the Governor, under section eight, article
twelve of the constitution. The constitutional provision which was in
force prior to that amendment in reference to impeachments was the same
as it is now, so far as impeachment by the legislature is concerned, and
that provision was as follows: “The house of representatives shall have
the sole power of impeaching civil officers for corrupt conduct in office or
for crimes and misdemeanors.” I call the especial attention of your excel-
lency to the acts for which the legislature might impeach, being “corrupt
conduct in office or for crimes and misdemeanors.” Now, the provision
of the section under which your excellency is proceeding here provides
that you may remove for gross neglect of duty in office, and your excel-
lency is proceeding upon the theory, and the charges against these gentle-
men are for the reasons alleged, that they are guilty of gross neglect of
duty in not properly canvassing the returns.
In determining what the legislature had in mind in submitting that con-
stitutional provision, I think we ought to take into consideration the situ-
ation as it was, and the evil which they were seeking to correct, and the
statutory provisions relating to similar subjects in force at that time.
Of course, it is supposed and well understood that the journals of the
legislature are silent so far as any discussion is concerned for the reasons
for the amendment, but they grew out of the difficulty of the then preced-
ing State Treasurer. So far as the acts which they were seeking to cor-
rect were concerned, there was nothing suggested to the legislature for
any necessity for removing, except for the things which the legislature
itself, acting as a court of impeachment could remove from office. Now,
they could remove for culpable misconduct, or for crimes and misde-
II] 08. In OTS.
The statutory provisions in force at that time with reference to removal
were those contained in the compiled laws of 1857. Under section 476,
the Secretary of State, Auditor General and all State and county officers,
except the State Treasurer and judges of the supreme court, and circuit
courts, who are or shall be appointed by the Governor alone, or by the
governor by and with the advice and consent of the senate, or of both
branches of the legislature, or by the legislature without the concurrence
of the Governor, may, for official misconduct, or habitual or wilful neglect
BOARD OF STATE CANVASSERS. 7
of duty, at any time during the recess of the legislature be removed, and
the vacancy supplied during such recess by the Governor. That was the
statutory provision with reference to the removal of those officers, and it
provided that for habitual or wilful neglect of duty the Governor might
remove if the legislature was not in session.
The next section to which I wish to call your excellency’s attention is
478.
“The Governor shall remove all county officers chosen by electors in any
county, or appointed by him, eaccept county judges and judges of probate
and county clerks, and shall also remove all justices of the peace and
township officers chosen by the electors of any township when in his opin-
ion such officer is incompetent to eacecute properly the duties of his office,
or when he is satisfied that such officer has been guilty of official miscon-
duct, or of wilful or habitual neglect of duty, if in his opinion such mis-
conduct or neglect shall be sufficient cause for such removal. But no such
officer shall be removed for such misconduct or neglect, unless charges
thereof shall have been º: to the Governor, and a copy of the same
served upon such officer, and an opportunity given him of being heard in
his defense.”
Section 484 provides that the judge of the circuit court and the circuit
court commissioner shall have authority in term or vacation to remove
the county clerk when in their opinion he is incompetent to execute prop-
erly the duties of his office, or when, on charges and evidence, they shall
be satisfied that he has been guilty of official misconduct, or habitual or
wilful neglect of duty, if in their opinion such misconduct or neglect
shall be sufficient cause for such removal. But no such clerk shall be
removed for such misconduct unless charges thereof shall have been pre-
ferred before said judge or commissioner, and notice of a hearing, with a
copy of the charges delivered to such clerk, and a full opportunity given
him to be heard in his defense.
Section 485. “The office of State Treasurer, Commissioner of Land
Office, or of any other collector or receiver of public moneys, appointed by
the legislature, by the Governor alone, or by the Governor, by and with
the advice and consent of the senate, or of both branches of the legislature,
eaccept those officers for whose removal provision is otherwise made by
law, may be declared vacant by the Governor in case it shall appear to
him on sufficient proofs that such Treasurer, Commissioner or other
officer, has in any particular wilfully violated his duty.”
Then, I turn to section 5844 of the compilation of 1857, which is the
general provision: “When any duty is or shall be enjoined by law upon
any public officers, or upon any person holding any public trust or
employment, every wilful neglect to perform such duty, where no provi-
sion shall have been made for the punishment of such delinquency, shall
be deemed a misdemeanor.”
Now, those are the statutory provisions which were in force at this
time; and it was the view of counsel for these respondents that, taking
those, together with the constitutional provision then in force, the only
reasonable construction that can be placed upon section eight of article
twelve is, that the Governor can only remove where the conduct of
respondents is wilful neglect; such neglect as implied an intentional
wrong. Now, it is certain that the legislature could not confer upon the
Governor any power greater than they themselves possessed to impeach
for neglect of duty. They could only impeach for corrupt conduct in
8 REMOVAL PROCEEDINGS.
Office or for crimes and misdemeanors under section 5844, which makes a
wilful neglect of an official duty a misdemeanor. The legislature would
have power only to remove by impeachment from office State officers for
wilful or corrupt neglect of duty, or intentional neglect of duty, such
neglect as implies an intentional wrong. Now, under the statute then in
force I do not believe it could be urged by any of counsel that the Gov-
ernor would have power to remove for simple neglect of duty unless there
was some intentional wrong. He could only remove for wilful or habitual
neglect of duty, and I submit it to follow that by the term “gross negli-
ence” the legislature meant to include habitual and wilful negligence.
t has been held in a case, which Mr. Baker will call your attention to,
that in order to find wilful negligence there must be some intentional
neglect, which implies an intentional wrong, and under the charges
alleged here we do not understand that your excellency holds the respond-
ents here for any culpable neglect of duty, or any intentional wrong in
the matter.
We urge also in these proceedings, as has been held in this State by the
supreme court, in the case of Dullam vs. Wiſson, that your honor is sit-
ting as a court of impeachinent, and we urge to you that it is beyond the
power of your excellency to remove these people for any neglect, unless it
is wilful, intentional, wrongful neglect of duty, and that is all I care to
Say.
Mr. Baker: If the court please, it is proper in presenting this motion
that it be opened a little more fully, so that counsel upon the other side
may have a chance to reply to all the points, if they desire to.
As pointed out by my associate, prior to 1862 the only power to remove
State officers was vested in the senate. The senate could only exercise
that power upon articles of impeachment, which were to be presented by
a majority vote of the house of representatives. It took, therefore, the
concurrence of fifty-one men to start the prosecution, and when it came
to trial in the senate it required a two-thirds vote with twenty-two votes
to convict. No power was conferred upon the legislature to remove for
anything, unless 1t amounted to a criminal offense, unless it was a high
crime or misdemeanor within the meaning of the law, and no attempt has
ever been made to exercise the power of impeachment in this country
except for such offense. In 1860 or ’61, Mr. John McKinney was State
Treasurer, and there were some scandals connected with his office, and it
was found that in order to remove him from his office it was necessary to
have a session of the legislature to create impeachment. With all of the
expense that was incident to such a trial, and with that case before them,
and with that case in view, the legislature proposed a constitutional
amendment under which your honor is now acting.
Almost any one on the first blush, picking up that provision, would
conclude that the Governor had the power to act on his own motion, with-
out notice or anything of the kind, and proceed in accord, without notice
of anything akin to proceeding in court, either of law or impeachment,
and it is not surprising that Governor Begole, when he was in office, pro-
ceeded upon that theory, and undertook to remove a State officer without
notice and without trial or hearing. But, when that subject came to be
examined by the supreme court of this State, it was found that it was a
most extraordinary power, and that unless we were prepared to overturn
all the safeguards of the constitution, the safeguards that surround people
in office or out of office, it was necessary to give that constitutional pro-
BOARD OF STATE CANVASSERS. 9
vision a very narrow construction, and to put very important limitatons
upon the power of the Governor of this State when proceeding under that
section.
Your honor will have noticed before this that your honor’s power is
entirely suspended when the legislature is in session. Why? Simply
because a competent court is in existence, with all the safeguards that
surround the impeachment, to exercise the very power that your honor is
now seeking to exercise. So that, upon that important fact alone, it is
perfectly plain that the legislature did not intend to give the Governor any
other or different power than that possessed by the legislature itself. It
was not intended to enlarge the causes for which a person could be removed
from office. It simply provided that during the recess, if the Governor
was not disposed to call the legislature in session to consider the matter,
that he could himself, acting as a court of impeachment, investigate the
officer, prefer the charges and try them himself. It is true, if your honor
please, that it will be difficult to find a similar court anywhere in the
civilized world, sitting just as a court, as your honor's court is sitting,
with the same powers and functions, as established by the supreme court
of this State in the case of Dullam vs. Wilson. Anybody can understand
how the Governor of this State in investigating the different offices, or in
looking after the general welfare of the people of this State, may discover
criminal offenses—neglect of duty that amounts to criminal offense—and
how it would be proper for him to make charges before some competent
and disinterested tribunal to try those charges. But this provision,
under the decision of the supreme court, contemplated that your honor
should not only investigate and prefer charges, but that your honor should
also try them, so that we are in substantially the same position as if a
defendant in the circuit court was being prosecuted by the prosecuting
attorney and the prosecuting attorney was acting as circuit judge. And
it certainly is a very grave responsibility to put upon any officer, even if
he is the representative in the executive chair of a great people like that of
the State of Michigan, and in view of this responsibility, it seems to me
that your honor should be more careful of your jurisdiction, and be very
sure that you have this power before undertaking to exercise it.
My associate has pointed out that the word, “gross negligence,” as used
in this constitutional provision, evidently did not have the meaning that
your honor can remove from office simply because a man has neglected a
duty. There must be something more to it than that. He has pointed
out that under the statutes existing at the time this amendment was pro-
posed, in order to constitute a misdemeanor under the law, it would be
necessary for the officer to be habitually or wilfully negligent. An
examination of the authorities upon that subject has satisfied me that you
could charge a person with wilful negligence under the statutes making
that a criminal offense or misdemeanor. It must be shown that he had
been continually guilty of some acts of negligence. That is, if he was
habitually negligent, it would be right to infer that it was intentional and
wilful. So that, in the law, they amount to the same thing, the words
“habitual” and “wilful,” and when the legislature framed this constitu-
tional amendment, in my judgment, and I submit it for your considera-
tion, in using the word “gross” they simply undertook to describe those
acts of negligence which would be a criminal offense because they were
habitual and therefore wilful, or were wilful because they were intention-
ally done, designedly done, knowingly done, with some evil intent or
2
10 REMOVAL PROCEEDINGS.
purpose within the meaning of the criminal laws and statutes, and that
unless such a case can be made against a State officer, there is no power
with the Governor, or with any one, to remove him from his office.
But, if the court please (and in using the word “court” it is proper,
perhaps to make a little explanation. If we were here before your honor
as Governor of this State, in your executive capacity, the term would not
be proper. But the supreme court of this State has held that in exercising
this power you are exercising the power of the court. That it is a judicial
power, that you are sitting as a court of impeachment, and that you are
not in the mere performance of an executive duty. You have ceased, so
far as this case is concerned, your duties as an executive officer, and you
are now sitting as one of the highest courts in this State, for the determi-
nation of this case, and the rights of the accused who are before you. So
I shall use instead of the word “excellency” the word “court”), if the
court please, in addition to this question of gross negligence, which we
desire to present and insist upon, we also insist, and with a great deal of
confidence, that where the act of the officer is an act which he performs
jointly with others, a mere ea: officio duty, as it is alleged to be in the notice
of this case, the Governor of this State, as a court of impeachment, has
no jurisdiction over it whatever. At the first blush, that may not strike
your honor very forcibly. It will require a little study and a little expla-
nation, but when that is made, I think it will be perfectly apparent to
your mind that we are correct in this proposition.
You will remember that the case they had in hand was where a State
officer, a State Treasurer, had been guilty of malfeasance in his office. It
did not relate to any one who had been guilty of misconduct as a member
of a board, but when we come to read this constitutional provision we
find that the constitutional provision is directed at the duties, it is directed
towards the officers in the performance of their separate official and
several duties, and not to any duties that they may perform in a body
or board, and if they had intended to include the board they would have
used language to that effect. Now, it does not follow, as has been assumed
by some of the newspapers, some of the publications that have emanated
from this city, that a party could not be removed from office because of
misconduct on the part of the canvassers, or Board of State Canvassers.
That is not the point. The question is whether your honor has the power
to do it, or whether the legislature has such power, and what we insist upon
is, that when they framed this constitutional provision, and when they
used the words they did in this constitutional provision, they meant that
you should proceed against each officer separately for dereliction in the
performance of his duties connected with his office as such, and not in
the performance of any of his eac officio duties, or duties that he performed
collectively upon boards, although they are statutory boards, or constitu-
tional boards, because, your honor, the constitutional provision provides
that you are to examine into the administration yourself of the office.
You go down to the office of the State Treasurer and you investigate that
office, you go to the Commissioner of the State Land Office and investigate
that office, you go to the Secretary of State and you investigate that office,
but in the execution of that duty, and in the performance of that duty,
you do not reach the State Board of Auditors and you do not reach the
State Board of Canvassers.
Now, if the court please, remember the extraordinary nature of this
power, that it is a power that is simply to be exercised because you yourself
BOARD OF STATE CANVASSERS. 11
do not see fit to call the legislature in session, and if you had called them in
session the moment they met here your jurisdiction is gone, and that they
had in view a specific case, and that the case you have before you is a case
where the Board of State Canvassers have gone out of office, and where
the board, in reality, in law, and in fact, no longer exists.
The statute provides that they shall meet at a certain time, and shall
canvass the votes, and that they may adjourn, not exceeding five days,
plainly contemplating that at the end of five days, or when they do
adjourn, they have no longer any legal existence. They are not occupy-
ing that office. That board has gone out of existence, and if they are
reconvened they must be reconvened under the mandate of the supreme
court, to merely perform some duty which they had neglected and had not
performed.
Now, what I call attention to, and what I insist upon as a correct inter-
pretation of this constitutional provision, is that it was not directed to
misconduct of the State board, that no such purpose was in the mind of
the legislature, that was not in the mind of the people of this State when
they adopted it, and that they never dreamt of the Governor of this State
exercising any such power. Now, what duty appertains to the office of
the Secretary of State in regard to this? Some duties are put upon him
in regard to receiving the returns in advance of the meeting of the board,
but the Commissioner of the State Land Office has no duty in connection
with that. The only duty that the Commissioner of the State Land Office
has in regard to it is to attend the meeting of the board of canvassers, to
proceed in the canvass. If he shall wilfully, or for any evil or corrupt pur-
pose, refuse to attend, his attention being called to it, or if he should
refuse under any circumstances which showed that his conduct was wilful,
within these criminal definitions, he could be removed by your honor, by
this court, under this constitutional provision. But if he does attend to
the performace of that duty, it pertains not to his office as Secretary of the
State, when he is there he is performing eac officio duties, he is perform-
ing duties in conjunction with others—jointly with others—and is not
amenable to the jurisdiction of the Governor of this State, simply because
the people of this State in their constitution, have not provided for any
such thing, and it is certainly true (the supreme court established the
necessity of that in the Dullam-Willson case), it is certainly true that that
constitutional provision, considering the exceptional nature of the court,
considering the extraordinary power conferred, they will not construe
strictly, and will not enlarge, if the court please, in order to maintain the
jurisdiction of the officer, who has the power under the constitution of
this State to call the tribunal into existence, into being, that has
undoubted jurisdiction over it.
I assume that your honor has carefully read the decision of the supreme
court in the Dullam-Willson case, and that counsel for the prosecution in
this case have read it. There is certainly a great deal to be learned from
that opinion, and it is just as plain as can be that when you apply legal
principles to the construction of this constitutional provision, you have
got to find jurisdiction, as we insist it should be found in this case. The
jurisdiction of the court would be strictly construed on general principles,
regardless of this history, simply because of the application it imposes,
and because of the extraordinary power of the court of being the accusing
party and the tribunal that is to decide the case. That would be sufficient
to give this a narrow construction, and one of the ablest, if not the ablest,
12 REMOVAL PROCEEDINGS,
judge that ever sat in this State, held, in the Dullam-Willson case, that
your honor had no power unless there had first been conviction, and
there is much force to strengthen it in the argument, so that your honor
is confronted with two tribunals that have jurisdiction, the circuit court
for the county of Ingham having jurisdiction to determine the guilt or
innocence of these men, and the legislature having jurisdiction to deter-
mine their guilt or innocence, for the purpose of removing them from
their offices, and these two courts existing, having undoubted jurisdiction,
I submit that your honor should scan this jurisdiction carefully and hesi-
tate long, before exercising it, and that any argument that we make here
upon this question of jurisdiction is something that I have no doubt your
honor will give the most careful and deliberate consideration, standing
and sitting here as you do as a chief executive of one of the greatest states
in the American Union, representing two millions of people, and exercis-
ing the highest power, the highest judicial power, known to the State,
that of removing from office persons who were elected by the same constit-
uency and by the same vote which elected your honor, and it is certainly
enough to know that three men are accused before you who have been of
good enough repute, have been good enough in the communities in which
they live, and in this State, to be elected to these offices, and that perhaps
by the hasty and ill formed judgment of the court their reputation may
be ruined and a blot cast upon them forever. If the court please, I was
somewhat surprised at the character of the specifications or charges,
because I assume that in making any such charges the person who drafted
them would be careful enough at least to give us a good common law
information or indictment for neglect or wilful or corrupt neglect of duty
in a public office. It certainly would not be difficult to examine the
precedents and frame such charges, and it is evident from the nature of
these charges that the person who drafted them is proceeding upon the
theory that this is not a judicial proceeding, that it is a mere informal
thing, that anything will do in this court, and all you have got to do is to
say that they are guilty of gross negligence, without backing it up with
any fact or statement, or with any allegations of wrong, or wilfulness, or
design, or corrupt or evil intent. The charges have evidently been drawn
upon the theory that your honor is exercising an executive function, akin
to removal at your mere will, as the president of the United States removes
many officers, but I call your honor’s attention to the fact that the consti-
tution of this State, as explained by the supreme court in the Dullam case,
has decided that in this case no such power exists, that you cannot remove
officers at your mere pleasure or caprice, that you must have a good cause,
that that cause must amount to a criminal offense, and it must be substan-
tiated by proof before you upon specific charges. Now, then, if your
honor please, we find that the charges they have promulgated are of the
most general and indefinite character, and without legal meaning, without
a syllable in them from beginning to end indicating that the respondents
in this case intended, or even knew, that they were violating their duty,
when every one at all familiar with the facts in this case must know that
my clients were victims of this crime, and not parties to it, victims to it
as all the rest of the people of this State were victims, the same as your
honor and every one who lives in the State, and to say that a man can be
removed from office because he has been imposed upon, because he has
been misled, where he was perfectly honest, where he did not intend to
violate his duty, but supposed he was performing it, why, it is an absurd-
BOARD OF STATE CANVASSERS. 13
ity, and it can never be sustained as long as the principles of natural jus-
tice prevail in this community.
I desire, without taking too much time in presenting this opening, to .
call your attention to a recent decision in a sister state. In the state of
Nebraska some state officers were accused of misconduct in office. Under
the constitution of that state, it was necessary for their impeachment that
the impeachment should be directed by the house of representatives, and
it was so directed, but the constitution of that state, instead of providing
that the senate should try the impeachment, or that the Governor should
try the impeachment, provided that it should be tried by the supreme
court of the state, and in a case that was decided only last June, involving
the conduct of state officers of that state in regard to certain contracts in
connection with the state prison, this whole subject was examined from
beginning to end by the supreme court of that state, and the position that
we take in regard to the nature of this offense sustained from beginning
to end, and the parties acquitted, acquitted by the supreme court of the
state, sitting as a high court of impeachment.
1 cite the 55 N. W. R. One of the things the Nebraska officers did was
to allow accounts without looking into them enough so that money was
misapplied. I read from page 780: “By the proofs wnder this specifica-
tion is presented the vital question in the case, viz.: Whether the
respondents are impeachable for failing to detect and prevent the alleged
frauds against the state, or, as a broader proposition, what wnder our
constitution amounts to an impeachable misdemeanor.” And then he
goes on to discuss the question at length, and they quote from remarks
made by Senator Doolittle in President Johnson's impeachment. Senator
Doolittle in that case said, “But to say that a high public officer, with good
motives, and with an honest intent to obey, though he mistake the mean-
ing of the statute, can be found guilty of a high crime or misdemeanor,
which shall subject him to the heaviest punishment which can fall upon a
public man in high office, is to assert a doctrine never before heard of in
any court of justice.” And another point, in quoting from Pomeroy's
Constitutional Law, “Whenever the president or vice president, or any
civil officer, has knowingly or intentionally violated the eacpress terms of
the constitution or of a statute, which charged him with an official duty to
be performed, without a discretion, and whenever a discretion being left
within the bonds of which he has an ample choice, he eacercises that dis-
cretion in a wilful and corrupt manner, or even in a rash and headstrong
manner, unmindful of the ruinous consequences which his acts must pro-
duce, he is impeachable. It may be safely asserted that where the act of
official delinquency consists in the violation of some provision of the con-
stitution, or statute, which if denounced as a crime or misdemeanor, or
where there is a mere neglect of duty wilfully done with a corrupt inten-
tion, or where the negligence is so gross and the disregard of duty so
flagrant as to warrant the inference that it was wilful and corrupt, it is
within the definition of a misdemeanor in office; but where it consists of
a mere error of judgment or omission of duty, without the element of
fraud, or where the neglect is attributable to misconception of duty rather
than a wilful disregard thereof, it is not impeachable, although it may be
highly prejudicial to the interests of the state.”
I find that in the state of Texas they have somewhat recently considered
the same question, in State vs. Alcorn, 78 Tex., 387, which involved a case
where a county clerk refused to keep his office at the county seat. It
14 REMOVAL PROCEEDINGS.
was his duty under the law to keep it at the county seat, and he was
charged with a criminal offense, it being alleged, following the statute,
that he was wilful about it, and this whole subject was considered there,
and it was held that he was not guilty if he was acting under the honest
belief that he need not keep his office at the county seat. The court says
at one point: “The coupling of the words ‘wilful' and ‘corrupt' indicate
that bad motive is necessary under the statute to make the act wilful, and
that the fact that the act or omission was done in obedience to the will
was intentional is not enough. The word “wilfully, in the ordinary
sense in which it is used in statutes, means not merely voluntarily, but
with bad purpose.” A bad purpose—you may neglect your duty simply
because you don’t think of it, your attention has not been called to it, you
have not had experience in your office perhaps, and you neglect it simply
because you do not know about it; or, you may neglect it because you
want to, because you have some ulterior purpose, because you desire to
perpetrate a fraud, or permit one to be perpetrated; and they are just as
distinct as two things can be. This definition was expressed by the
supreme court of the United States, in 96 U. S., where a man had his
distillery plant built contrary to the laws of congress. They had certain
provisions as to how it should be built so the government could detect
fraud, and his plant was altogether out of whack so far as the acts of con-
gress were concerned, and he was charged with wilfully having it in that
way. The supreme court of the United States upon that charge held that
he did not, and that he did not know it even, that is, there was nothing
in the case to indicate that he intended to defraud the government, con-
struing the word “wilful” acts as requiring some bad purpose.
Now, in this allegation that they have served upon my clients in this
case, there isn't even an allegation that it was done designedly and inten-
tionally, or that it was done wilfully, or with any bad purpose or evil
intent. Then there is a case in the state of Wisconsin, State vs. Preston,
34 Wis., in which they lay the same rule which is universally held that
the word “wilful” when used as penalty means that the act was done
wrongfully, and in bad faith, without reasonable grounds for believing it
lawful, with evil intent, so that when we come to look at the words “gross
negligence,” we find that they mean habitual neglect, and therefore
equivalent to wilful neglect, or that they mean wilful neglect, and must
necessarily mean that in order to be in harmony with the constitution of
the State and the statutes of the State. It is perfectly plain that you
could not charge these respondents with the neglect of their duty in fail-
ing to personally examine the returns in the case of an election, unless it
could be urged and proven that it was intentional upon their part, and
that it was done with bad intent for some corrupt or dishonest or improper
purpose.
Now, it may look very heroic for your honor as Governor of this State
to remove these men, but what I call your honor's attention to is the fact
that when you come to look at your charges before you they are not
equivalent to a charge of an offense, that is, an impeachable offense
within the law; and no matter how much you might desire to remove
these officers, if you are exercising executive functions and have power to
remove them at your very pleasure that when you pass upon it as a court
when you come to pass upon it under your solemn obligation as a judge,
you are bound by the law, you are powerless under this law to do any-
BOARD OF STATE CANVASSERS. 15
thing, just precisely as the legislature itself would be powerless if they
were in session upon the facts of this case.
Now, it appears here that these charges have been served upon the
respondents and they appear here collectively as a board. Now, it would
strike almost anybody reading that constitutional provision that you
would have to proceed against each one of them separately. I merely call
your attention to that fact in construing this constitutional provision to
point out how evident it ILust be if you look at this carefully, look at the
necessity of putting limitations upon the power of the Governor, because
your honor is not the only man that will ever be Governor of Michigan;
we may have a Governor of Michigan that would sweep the entire State
officers from beginning to end upon some trifling and worthless charges,
and your honor is the first person who has been called upon to administer
the law under this constitutional provision, and you cannot overestimate
your responsibility and the importance of being guided by the constitu-
tion and of confining your power to the jurisdiction that is therein speci-
fied, because as I said before, it is just as plain as it can be that after you
have made that investigation, and preferred these charges, you cease to act
in your capacity as a mere executive officer, but you have become a court,
with all the functions and duties and responsibilities of the court, and
must act accordingly, and we therefore insist that this motion is properly
taken, and that these defendants should go without date, simply because
upon these points as made your honor has no jurisdiction further to
proceed.
I desire to call attention to one thing more. I do not want to charge it
as neglect of duty on the part of the Governor, but the constitution of
this State provides that when you act in your executive capacity you shall
do it under the great seal and it provides that when any judicial process
is issued it shall run in the name of the people of the State. Now, I
don’t suppose we have anything to do with the policy of these require-
ments. They are plain requirements of the constitution. They evidently
were overlooked by the person who prepared these charges. If you
are acting in your capacity as an executive officer, it is necessary to have
the seal of the State attached. If you are acting in your judicial capacity,
it is necessary to have the notice run therefor in the name of the people
of the State of Michigan. You are commanded to issue in that form, and
I call your attention to it at this time, not that I desire to make any argu-
ment in regard to it, but it is something that is worthy of consideration,
because I think it invalidates this whole proceeding.
Mr. Geer: If the court please, I shall agree with my brother Baker
that your honor today sits in the capacity of a court, for the purpose of
passing upon the charges that have been preferred against the respond-
ents. My brother in this case has acted upon the theory that the consti-
tution does not really mean what it says, and that as a matter of fact when
it says that your honor has a right to remove these respondents because of
gross negligence upon their part, in the discharge of any of the duties
which IIlay be prescribed by the constitution or the statute, as a matter of
fact it does not mean it. He says that there should have been set forth
in these charges the fact that it was done wilfully. Negligent and wilful,
may it please your honor, are two separate and distinct terms, and if he
had read all of section eight, article twelve, he would have plainly seen
that the terms of the constitution provide other reasons than that of gross
negligence. There were other charges (and except for the fact that my
16 REMOVAL PROCEEDINGS.
brother had seen fit to allude to it, I should not have spoken about it),
that in my honest judgment might have been made here as against these
defendants, but you will have to try the case that is here. That is what
I regret to say, that this gentleman should have gone outside and spoke
about where his clients stood today and about their fair fame
Mr. Baker: I call the gentleman to order. I made no argument about
any other case, and it is certainly improper for him to discuss any other
case, for there are no other charges preferred I said there were no other
charges, and these were insufficient, and we are here to meet these charges,
and not something else.
Mr. Geer: Didn't he discuss that his clients had simply omitted to do
something? Didn’t he say that?
Mr. Baker: Yes, sir
Mr. Geer: And today, may it please your honor, many a man, and
many a family, and the whole State, stands smirched, because, not of any
act upon their part, but because they failed to do that which the constitu-
tion of the State says that they should have done. That is what I have
to say, it is simply an omission of duty which they ought to have dis-
charged, and had they done it there would have been no occasion for the
grand jury at Mason, no occasion, may it please your honor, for removing
them or anybody else, because had they simply examined—
Mr. Baker: I think, your honor, that is entirely out of order.
Mr. Geer: You stated your clients —
Mr. Baker: I was talking from the record before me. I was not
talking about something else.
Mr. Geer: I am simply replying to the argument made by the gentle-
man, in that they did not charge that they wilfully did it. When a man
omits to do a duty, you cannot assume that he wilfully did it, because he
did not discharge his duty. That we are here today to investigate. That
is what we are here for today.
Now, I want to read the section, and your honor will see that we might
have made other allegations than those that were put in these charges,
but when I come to put in my proof I expect to be confined to that, and
shall not seek to go outside of it.
“The Governor shall have power, and it shall be his duty, eaccept at such
time as the legislature may be in session, to eacamine into the condition and
administration of any public office, and the acts of any public officer,
elective or appointed, to remove from office for gross neglect of duty, or
for corrupt conduct in office, or any other misfeasance or malfeasance
therein either of the following state officers, to wit:”
Now, I might have charged them, may it please your honor, with mal-
feasance, we might have charged them with wilful action on their part in
office. But it is simply in this case because they neglected to act that
this accusation is made, and the constitution plainly covers it. There
isn’t any necessity to go back to see what the constitution was prior to
the adoption of this, or to go back to see what the statute was, or the
methods of removal, prior to the passage of this constitution. It has been
wisely passed, because from acts in this State it became necessary, may it
please your honor, to west somewhere, and they wested it in the Governor
of this State, the power to investigate the offices, and these men stand
charged with, not an act on their part, but a gross neglect on their part to
discharge the duty which the constitution and the laws of the State has
devolved upon them, and in this case they are charged with what? With
BOARD OF STATE CANVASSERS. 17
acting as a board of canvassers, collectively and respectively, from having
neglected to discharge that duty properly, and because of an omission
upon their part to have discharged it properly, the result has followed as
has been shown in this case. That is all there is of it. It is perfectly
plain, perfectly simple. There isn’t any use of going back to see what
the law has been prior to its passage. There isn’t any occasion for them
to say that if the legislature was in session it might be there, because the
constitution has said, unless the legislature was in session, the proper
tribunal to try it was before your honor, and if the charges are proven in
the manner in which they are alleged they shall not go outside of that.
It may be something that your honor will dislike to do, but sitting here
as a court, although the executive of this State, if the laws have been vio-
lated by these men, they must suffer for it, not some one else.
Now, I want to call the court's attention bearing upon this subject, to
Throop on Public Officers, section 855: “The liability of a public officer,
at common law, to indictment and punishment, for neglect to perform, or
misconduct in the performance of, his official functions, is stated in some
of the books in very broad terms. Thus, in a justly celebrated work on
crimes, it is said: ‘WHERE AN OFFICER NEGLECTs A DUTY INCUMBENT
UPON HIM EITHER BY COMMON LAW OR BY STATUTE, HE IS INDICTABLE FOR
HIS OFFENSE; AND THIS WHETHER HE BE AN OFFICER OF THE COMMON LAW
OR APPOINTED BY ACT OF PARLIAMENT: AND A PERSON HOLDING A PUBLIC
OFFICE UNDER THE KING's LETTERS PATENT, OR DERIVATIVELY FROM SUCH
AUTHORITY, HAS BEEN CONSIDERED AMENABLE TO THE LAW FOR EVERY PART
OF HIS CONDUCT, AND OBNOXIOUS TO PUNISHMENT FOR NOT FAITH FULLY
DISCHARGING IT.’ And it is laid down generally that any public officer
is indictable for misbehavior in his office. There is also a further pun-
ishment of the forfeiture of the office for the misdemeanor of doing any-
thing contrary to its design. Where a duty is thrown upon a body of
several persons, and they neglect it, each one is individually liable to
prosecution for the neglect.”
Now, in this case, it is alleged that these three men, on the 16th day of
May, got together and canvassed these votes, and that they falsely or
wrongfully declared the result. Subsequently they got together (perhaps
that is more a matter of proof, but that is alleged in this case, that is a
question you are to try whether or not these three men, under and by
virtue of their office canvassed the votes of this State upon the amend-
ment correctly. It is one of the most important duties that the statute
has put upon these three men, that they shall canvass correctly the votes
of the electors), and because they neglected to perform that duty which
the statute and the constitution said they were to perform, this result has
come, and, however unpleasant it may be, your honor should not shirk
from it, not like to an abstruse proposition, but just simple, plain reason-
ing. My brother Baker says any ordinary man when he takes up that sec-
tion of the constitution, and, reading it, would suppose that your honor
was vested with the power to do that. But he says that is not so. The
English language is plain, but it cannot mean what it says, that it cannot
be possible that the constitution of this State ever intended to vest the
executive officer with the functions of a judicial officer; but it says so,
and that is not all, but in the Dullam-Willson case (and I am very familiar
with it, having had occasion to make use of it recently), they say and hold
that your honor has the power; and the only thing there was in that case,
3
18 REMOVAL PROCEEDINGS.
and why the action of Governor Begole was set aside, was because there
was no charges preferred, and there was no opportunity given to Mr.
Willson to be heard upon it. That is not this case. Charges are pre-
ferred here. They are specific, they allege their duty, and they allege the
omission of that duty, viz., that they did not canvass these votes and can-
vass them correctly, and while I say in reference to what I expect to show,
that I expect to be able to show evidence from their acts from which you
may infer even more than there is charged here, but I shall not, because
we expect to stand or fall by the charges alleged.
And it was their duty to canvass them and canvass them correctly. Do
they offer any reason here? Have they by their answer shown any reason
why they did not do it? But my brother Baker says it cannot be possible
that the constitution of this State ever intended it that way, arguing that
it would be your duty to call together the legislature of the State of Mich-
igan. Why, there was a reason for it, may it please your honor. People,
like individuals, many times prosper by their added stores. Now, in this
case, when McKinney, State Treasurer, after impeaching him, and at the
time and under the circumstances when there was great expense for the
purpose of covering that case, this constitutional provision, may it please
your honor, was adopted, and authority in your hands given, for certain
specific reasons, to remove people from office for gross neglect, which
stands at the head of this charge in this case made as against these
respondents, and that gross neglect consists in these men not doing that
which the statute said was their duty to have done. “There is also a
further punishment of the officer for the misdemeanor of doing anything
contrary to its design. Where a duty is thrown upon a body of several
persons, and they neglect it, each one is individually liable to prosecution
for the neglect.”
My brother argues that there is no power that when these men met on
the 16th of June, 1893, and declared what the result was, there wasn’t any
power anywhere to interfere with—
Mr. Baker: No, I didn’t make any such statement. What I said was
that the only power to correct it was in the legislature, and I say that yet.
Mr. Geer: Well, it has been corrected in another tribunal. And
when he says that matter of the 16th of June ceased to be a board of can-
vassers, they then went back into their private offices, Jochim as Secre-
tary of State; Berry, the State Land Office; Hambitzer, the State Treas-
urer; when they adjourn as a board they live no longer as ea officio, that
is the doctrine. Therefore, your honor, notwithstanding the constitution
of the State says you had a right to remove these men, he says you can't
do it, because they once held as members of the board, but are no more.
It seems to me reasonable at least to say that these men, may it please
your honor, must be responsible to the people of this State for the neglect
of duty that we have charged them with. After you shall have heard all
the persons, if your honor shall have become satisfied that they were not
guilty in the manner in which they are informed against, I expect you
will discharge them. But, on the contrary, if you are satisfied the other
way, your duty is equally as plain, and I expect your honor will do it.
You are not depriving them nf a legal right in removing these parties.
You haven't any power, because of the constitutional provision, nor
because of any specific charges, or any other reason, to deprive them of
their legal right in any other tribunal. You are not in this case depriv-
ing them, I am conceding that, providing you can give some good reason
BOARD OF STATE CANVASSERS. 19
to that tribunal, that this has not been done. You will never avoid this
investigation somewhere, and in order to investigate the acts of these men
you have got to commence where the law has placed it, and where the
constitution has placed it, and that is before your honor, where all the
proofs can be taken, and after it shall have been done, if your honor
determines they have a legal right, there is a proper tribunal in which
they may get that right adjusted. I have not the slightest doubt in the
world, may it please your honor, but that there will be...such a state of
facts shown in this case before your honor, when we shall proceed with
the proofs, that would not only warrant you to remove these men from
office, but at common law under the statute they might be indicted, not
for what they have done, but for absolutely, may it please your honor,
omitting to do that which they ought to have done. That is where it lies.
This is particularly the case if the thing required is of a ministerial or
other like nature, and there is reposed in the officer no discretion. The
statute says they shall do it. The constitution of the State, I am not
arguing what it says; but suppose for the purpose of the argument we say
that in canvassing it and tabulating it, that it was necessary that they
should at least look at some one return out of the eighty-four counties.
If men can shut their eyes and only say “It was your duty,” and the
other one says, “It was your duty,” and the third one says, “I have no
duty to perform, but our clerks can perform it,” I want to know, may it
please your honor, some reason why they shirk their responsibility and
put it on some irresponsible one under them.
Mr. Baker: Suppose the one who did examine the returns misled the
other two, would you convict them?
Mr. Geer: That might be supposable, but I would like to see twelve
men that could be selected anywhere within the commonwealth that would
believe such a story.
Mr. Baker: Well, I am stating a case, that suppose it was the duty of
each one of them to verify it by the return, you may suppose one of them
did it, but for any dishonest purpose he misstated the facts to the others,
and the fact of his statement would place these men precisely in the same
position that they are now when their clerks did it.
Mr. Geer: I haven’t any doubt about it, because it was their duty to
have looked into it. They might have wilfully intended to shut their eyes
and gone to their homes hundreds of miles away that they might not prove
it, and where a man is selected by the people of this State, and put into
the office of State Treasurer and Land Office, the people expect that they
are going to give a little attention, at least, to their business, and when
duties that the State says they shall perform, when these votes are cast by
them they shall be counted and they be declared, so the people may know
about it, that they have not done. I perhaps may go a little outside, but
no farther than you do, but when we show these things, then if they can
come into this court, or any other, and say that is not gross neglect of
duty, then I shall be willing to say your honor shall acquit them. Now,
I perhaps should not at this time argue the constitutional question; it
seems to me that should be argued somewhere else. The law makes it
your sworn duty, under the oath of your office, if you find any public
officer who has been guilty of neglect of any duty, you shall send for him
and find out what there is about it, seal or no seal; and we are here to
prove these charges are true, and, if they are proven true, it is your duty
to remove them.
20 REMOVAL PROCEEDINGS,
Mr. Cahill: The preliminary questions that have been presented here
are questions somewhat interesting to us and I know my brother would
not present any questions that he did not perfectly believe in himself and
they have been presented with some ingenuity and I have no doubt with
entire good faith upon his part.
The first proposition that counsel makes is reasoning from analogy with
the first provision of this article of the constitution that public officers can
only be impeached by the senate and house for the high crimes and mis-
demeanors, that it follows as a matter of analogy that when the constitu-
tion was amended in 1861 the people did not intend to confer upon the
Governor any greater power than had been conferred upon the court of
impeachment as originally constituted, to wit: The legislature and that
argument, may it please your honor, pre-supposes that the legislature had
no power to impeach, except for high crimes and misdemeanors, in a
technical sense, and in assuming that, I desire to say that the position my
brother takes is contrary to my inclination upon that subject.
Now, of course, this motion we had not an opportunity to see or to fore-
cast before we came here. We could not by any possibility prepare for
just the line of argument that my friends on the other side might advance.
But my recollection of the rule was such that I sent to the library for the
authorities upon that subject; and I desire to call your honor’s attention to
some of the authorities tending to show that the narrow rule and construc-
tion put by my friends here upon the constitutional power of the legislature
to impeach, is not the rule that is considered the law in this country. The
provision in our constitutions is similar to, the one in the United States
constitution. The officers of the United States may be impeached for
high crimes and misdemeanors; and the question naturally arises as to
what constitutes high crimes and misdemeanors, they not being defined
by the constitution itself. And it was early established, not only by judi-
cial decision, but by the ablest law writers upon that subject, that the
phrase “high crimes and misdemeanors” did not mean necessarily an
indictable offense. In other words, that the word “misdemeanor” has a
well understood meaning in the law. It is a low grade of criminal offense,
and yet when used in the constitution, as defining an impeachable offense,
it means something broader than it means in the technical language of the
law books.
And now I desire to call your attention to a very able article that is
cited in Meacham on Public Officers, where I got the reference, in the
American Law Register, Vol. 6; and this article is by Judge Lawrence of
Ohio. I cannot undertake to read from it at any length, but I will call
}. attention to one or two cardinal points laid down. In the first place
e says:
“It is absurd to say that impeachment is here a mode of procedure for
the punishment of crime, when the constitution declares its object to be
removal from and disqualification to hold office, and that the party con-
victed shall, notwithstanding, be liable and subject to indictment, trial,
judgment and punishment, according to law for his crimes. When, there-
fore, Blackstone says that an impeachment before the lords by #he cont-
mons of Great Britain in parliament is a prosecution of the already
known and established law, and has frequently been put un practice, he
must be understood to refer to the established parliamentary, not common
municipal, law as administered in the ordinary courts, for it was the
former that has been frequently put in practice.”
BOARD OF STATE CANVASSERS. 21
“Whatever crimes and misdemeanors were the subjects of impeachment
in England prior to the adoption of our constitution as understood by
dits framers, are, therefore, subjects of impeachment before the senate of
the United States, subject only to the limitations of the constitution.”
“The framers of our constitution, looking to the impeachment trials of
England, and to the writers on parliamentary and common law, and to
the constitutions and usages of our own states, saw that no act of parlia-
ment or of any state legislature, ever undertook to define an impeachable
crime. They saw that the whole system of crimes, as defined in acts of
parliament, and as recognized as common law, was prescribed for and
adapted to the ordinary courts. They saw that the high court of impeach-
ment took jurisdiction of cases where no indictable crime had been com-
mitted, in many instances; and there were them, as there yet are, two par-
allel modes of reaching some, but not all, offenders; one by impeachment;
the other by indictment. In such cases a party first indicted may be
timpeached afterwards, and the latter trial may proceed notwithstanding
the indictment. On the other hand, the King's Bench held, in Fitzharris’
case, that an impeachment was no answer to an indictment in that court.
The two systems are in no way connected, though each may adopt princi-
flºpplical to the other and each may shine by the other's borrowed
*g .”
Now, in Pomeroy's Constitutional Law, to which my brother Baker
referred, and from which he read an extract in the Nebraska case, the
writer says:
“The same considerations will apply with equal force to that branch of
the argument which is based upon the phrase, “high crimes and misde-
meanors.” Even had the words been “felonies and misdemeanors’ we
should not be obliged to take them in a strict technical sense. They would
be susceptible of a more general meaning descriptive of the classes of
wrongful acts of violations of official duty punishable through the means
of impeachment. But in fact, the language cannot be reconciled with an
assumed technical interpretation. The phrase ‘high crimes and misde-
meanors’ seems to have been left purposely vague. The words point out
the general character of the act as wnlawful. The conteact and the whole
design of impeachment clauses show that these acts were to be official
and the unlawfulness was to consist in a violation of public duty, which
migº or might not have been made as of an indictable offense.”
o, without taking your honor’s time to read further authorities upon
this subject, I state as a bald proposition of law, that if this case were now
upon trial before the legislature of this State, and these officers were there
charged with gross neglect of duty, that that would be within the mean-
.# of the constitution, a “high crime or misdemeanor,” or one or the
OUIn OT.
But, leaving that question for a moment, I contend that the constitu-
tion of this State, if necessary, has intended to give to the Governor of
this State a power which the constitution did not theretofore give to the
legislature. If my brother’s argument has any foundation, it is necessary
that these men should be found guilty of some indictable offense, or of
Some offense for which they could be tried in a common law court; then
I submit that the constitution has intended by the language used in the
1861 amendment to confer upon the Governor of this State a power which
an ordinary court did not have, an ordinary court of impeachment.
22 REMOVAL PROCEEDINGS,
Now, the language of this constitutional provision, to which your
honor’s attention has been called, I have no doubt you are familiar with,
and I do not see how my brothers could take the position they did, that
there were two kinds of offenses for the commission of which your honor
can exercise his authority as the executive of this State. There is the
gross neglect of duty. There is the wilful neglect of duty in office; and
; is the other vague, indefinite offense, malfeasance and misfeasance
IIT OfilC6,
Now, the argument is that the Governor of this State has no authority
to remove officers, except for misconduct in office; that is the argument.
They do not say that in so many words, but they say the officers must be
charged with wilful violation of a duty, or neglect of duty. Now, wilful
neglect of duty is corrupt conduct in office unquestionably. And I con-
tend, if your honor please, that the constitution, by separating these
grades of offenses, has intended to give the executive of this State the
power to act in those different classes of cases. If not, why? Let me
illustrate. Can it be said that in a question of as much importance as
this, where the officers of the State are charged with incorrectly canvass-
ing the votes, that involves the question of usurping the constitution of
the State, or thwarting the will of the people, can it be said that the
officers ought not to be removed from office for gross neglect in the per-
formance of that duty, which is to correctly canvass the votes? Why, in
determining whether or not the officers have been guilty of gross negli-
gence, or of mere neglect of duty, it always becomes necessary to consider
the importance of the duty devolved upon the officer. There are some
duties that a man might neglect because of their slight importance, and
his neglect of them might not be gross neglect in office; but where a high
duty like that of canvassing the votes for an amendment to the constitu-
tion of this State, or where the duty devolves upon an officer to determine
and canvass the vote to determine who shall be the executive officer of this
State, or where some such high duty as that is involved nothing would
prevent the officer from being guilty of gross neglect of duty. No man
has a right to delegate to others the performance of a duty, where it is on
so high and important a question where he might perhaps with propriety
delegate it, perhaps to some inferior officer, where it was with reference to .
some unimportant matter. So I say that the constitution has intended,
and if necessary for the purpose of this question conferred upon the Gov-
ernor the right to inquire into the question of whether or no these officers
have been guilty of gross neglect of duty.
Now, then, my friends say that there is no charge here of wilfulness.
We have not used that language. The constitution don’t use that
language. We use the language of the constitution. We charge them in
the language of the constitution with gross neglect of duty. Now, section
214 of the statute provides that the Board of State Canvassers shall then
proceed to examine such statements (the statements received from the
different counties), and to ascertain and determine the results, and shall
make a certificate, under their hands, stating the whole number of votes
given for, and the whole number of votes given against, such amendment
to the constitution, and that the eupon they shali determine whether such
amendment to the constitution has been approved and ratified by a major-
ity of the electors voting thereon, and shall make and subscribe such
statement, certifying such determination and deliver the same to the
Secretary of State.
BOARD OF STATE CANVASSERS. 23
Now, the specifications in this case are within that line. The duty thus
enjoined upon them, they did not ascertain and determine the result.
They did not proceed to examine the returns. That is what they are
charged with not doing. The statute says they shall proceed to examine
the returns. The charge is that they did not proceed to examine the
returns, that they did not ascertain and determine the result.
Now, we insist that that was gross neglect of duty within the meaning
of the constitution, and we think these gentlemen are properly called here
to answer to the charge which the Governor of this State has preferred
against them, and that the Governor of this State would have been derelict
in his official duty if he had omitted to cite these gentlemen to answer.
If they can give an excuse or reason why they omitted this sworn duty
that will satisfy your honor, that is another question, but that that duty
was enjoined upon them, and that they are charged with violating it, is
not disputed upon this motion.
Mr. Atkinson: If the court please, I desire to say a few words in addi-
tion to what Mr. Baker and Mr. Lee have said upon this subject. I am
sorry that lawyers when called before the chief executive of the State
should differ in their opinions as to the law upon a subject like this. And
I am still more sorry that any of them should become the least bit irri-
tated by anything that may be said. It is one of the most important
questions ever presented either to the Governor or to the courts of this
State. The people of this State have unquestionably elected the defend-
ants in this case to administer three important offices, and elected them
for the term of two years each. And the question involved in this case
is whether or not they will be removed from the offices which have been
entrusted to them, and those offices administered by others, not selected
by the people, but selected by the Governor.
Of course, this is an important question as to the construction of the
constitution. If the people have ordained that the Governor shall remove
these officers in a certain contingency, the others appointed by him will
represent as much the popular will as though selected by themselves.
Now, then, I was glad to see that the charges in this case were drawn
in the form they were. I supposed from the preliminary investigation
that had been made by the Governor of the State, suppose he was satis-
fied that these gentlemen had been guilty of a neglect to add up the figures
in the canvass upon the constitutional amendment, but that they had not
done it wilfully nor intentionally, that they had been negligent perhaps
in not correcting the work of their clerks or in taking the words of others
for the figures which they adopted in their official canvass, that there had
been no evil intent or wilfulness on their part. I read the charges in that
way.
Now, under the provisions of the constitution, you are authorized to act
in cases of gross neglect. My learned friends who have appeared here
have treated it as though the constitution read “neglect” instead of “gross
neglect.” There is a great difference. The term “gross neglect” implies
itself a criminal neglect. It implies some guilt, some purposely omitted
act, or some purposely committed act, and implying moral delinquency,
and that is not charged in this case. Gross neglect must be reckless, it
must have been an element of crime, it must have something about it that
should be punished, and the law never imposed punishment upon a man
for anything that has no evil intent connected with it.
ſ
24 REMOVAL PROCEEDINGS.
Now, if you look into the provisions of the constitution, and especially
into the history for which it was adopted, you will see the object in regard
to this power of the Governor was that he might see that the offices of the
State were not being continuously maladministered. For instance, a
Governor goes into investigate the office of the Treasurer and he finds
there that the moneys which are being received are not being properly
entered upon the books, that accounts are not being properly kept, and it
is during the vacation of the legislature that he finds that, it would give
him the power to investigate it. But as I understand it under the rule
laid down by the supreme court in the Dullam case, they found, if it is
continued neglect, a gross neglect, continuing so long that the party
must be considered wilful in the neglect, then he has the right to apply
his power and remove the officer and appoint another, so as to see that the
office is properly administered. In other words, it gives you power to
guard the people of this State against maladministration, but it never was
intended in my judgment to give you the power simply upon some act
already gone by, which cannot in the nature of things be repeated. You
are the guardian of the administration of our affairs, but not the criminal
court in which a man may be punished for some single act in its nature
non-continuous, and which cannot be repeated.
Now, what are you asked to do here? If you remove these gentlemen
from office you are asked to do it by way of punishment. You have no
fear that they will make another canvass of this kind. That could not be
well contended. They have learned a lesson as well as the rest of the
people of this State not to trust clerks in matters of this importance. The
same particular act, of course, can never be done again, and if your honor
removes them it isn’t for correcting the mistakes now. You don’t do it
for that purpose, because there is no such charge, but you remove them to
punish them for something they have done. That would be the sole
object, to punish them. Now, punishment should be dealt out by the
courts, and the governor has nothing to do with it at all until he comes to
exercise his pardoning power.
Now, your honor, when we read the constitutional provision, you will
notice that you are to look into the administration of the office. You are
to go and examine and see how that office is being carried on. It is an
important power which is given you, and it is a fact you have to examine
the affairs of that office to see how it is being carried on, to see whether
the mode in which it is being carried on is a safe one, one which the
people of this State would approve of.
Now, I would like to ask my friends whether they consider this consti-
tutional amendment has anything to do with the seasons, whether it is
affected by the fact whether it is summer or winter. It will be conceded
that under this constitutional provision that while the legislature is in
ºn they could not be impeached by the legislature under charges like
these. º
Mr. Cahill: Why, no; that was my argument they could not.
Mr. Atkinson: I know, but your authorities were the other way, every
authority you read was. But supposing the authorities, Pomeroy, and
others who have written upon this subjeui, iike Judge Lawrence, who
WIote an inflammatory article while the impeachment of Andrew Johnson
was pending before the senate, simply as a partisan, supposing they had
our statutes governing them which have been read to you by Mr. Lee,
that men could only be impeached for wilful or culpable neglect, or con-
BOARD OF STATE CANVASSERS. 25
tinued neglect, as our statutes fix it, it is another matter and what Mr.
Baker and Mr. Lee have argued to your honor is, that it was intended by
the constitutional amendment to give you the same power in vacation
which the legislature had when in session, and that by gross neglect the
legislature intended, and the people intended, in adopting that amendment,
to give you exactly the same power when the legislature was not in session
that the legislature had when it was in session, otherwise your honor will
see the absurdity of it. The legislature meets the first of January, we
will say, and continues in session until the fourth of July and during
that time a man could not be removed for that kind of neglect because
he could not be impeached, and after the first of July, and from that on
until the first of the next January a man could be removed, so that we
have a law for six months out of two years and no law for the other six
months. Now, that would be simply absurd. It would be law the last
half of the year and not law the first half. It would be law the year the
legislature was not in session, and not law the year that it was. You can
let it run by not calling a session of the legislature or you can destroy its
force by calling the legislature into existence.
Now, this constitutional provision was intended to last all the year round,
and it was intended that the powers conferred by it would be exercised by
the legislature when in session, and by you when it was not in session, but
a man had to be removed for precisely the same offense one part of the
year as the other, exactly the same, but when you come to see what causes
the legislature can remove a man for, why, Mr. Baker and Mr. Lee have
referred you to the statutes which require culpable, continued or wilful
neglect, otherwise the legislature would impeach and remove a man from
office. If it was left simply to the constitutional words, “high crimes and
misdemeanors,” why, that question would be left open for construction,
as these writers have contended, but in our State it has not been left
open, it has not been fixed by other statutes, and it is not any better
settled than that an eac post facto law can be passed.
Now, these charges do not contain any element of wilfulness. I was
sorry that my brother Geer should make a speech here in regard to these
charges that this investigation was going to be wider than the charges on
which the investigation was going to be conducted.
Mr. Geer: I did not intend to do that.
Mr. Atkinson: He volunteered the assertion on one or two little things
that are not in these charges. Now, we desire to confine ourselves strictly
to these charges. Why do we appear for these defendants in this case?
I should be sorry myself, and I have no doubt my associate with me would
regret it exceedingly, and your honor’s associate would regret, to advise
or suggest any action on the part of the Governor of this State which
would not hereafter stand the test of the courts.
In many respects, this action is probably beyond review. No certiorari
from the supreme court can make you send a return to that body. In
exercising your judicial powers here, you are exercising just as high
powers as the supreme court itself. You are the coordinate branch of
the courts, and I doubt whether they can be ever reviewed, provided you
have the constitutional right to pass upon this question.
Now, this is a power which the executive of this State I have no doubt
would be glad to be relieved of exercising, if there is any other power that
can do it, and your honor, the courts of the country can, and the power is
4
26 REMOVAL PROCEEDINGS.
given to the circuit court of this county to try these parties and if they
find that they have committed any offense to convict them, but under the
opinion of Judge Campbell, who gave the case such great consideration to
which reference has been made, on the conviction in that court, the Gov-
ernor of the State may then properly remove. I am aware that a major-
ity of the judges sitting on the bench held that your honor would have
the power to do it without waiting for the conviction in particular cases.
But in this case, if your honor has any doubt (you have not been trained
perhaps to the examination of legal questions, you are not supposed to
possess the technical knowledge possessed by the courts on these subjects),
but if you have any doubt as to whether these charges contain any
element that would warrant you according to the laws of the State in act-
ing upon them, you have the power to refer it to the courts of the State
and let the judges who are supposed to know all the law pass upon that
question.
Now, I do not know, of course, it is a question on which I have scarcely
assumed to make a suggestion to your honor as to what course should be
taken, but I do think, your honor, that when you come to examine these
constitutional provisions yourself you will see from your own innate sense
of justice that this was only intended to give you the power to act when
the legislature was not in session, in such cases as the legislature could
do when in session, and then by turning to the statutes of your own State
you will discover that the legislature when in session could not remove
these men from office on the charges that are here made against them.
The Governor: I am very much obliged to counsel for the pains they
have taken to give me information upon this subject. The lawyers seem
to radically disagree, and for the present the motion will be overruled, and
testimony will be taken upon the merits of the case. However, careful
consideration will be given to the references, and what was said, before
final decision is rendered. $
Mr. Wesselius: Before proceeding with the taking of the testimony, I
desire to say that I appear for Land Commissioner Berry, and for him
only, and I desire, without waiving any rights that may be his under the
motion that has been made, and expressly reserving his rights, that he be
presented with a bill of particulars of the evidence, if there is such against
him in detail, that he be furnished with the proofs upon which the court
is proceeding in this cause, and that he be given a trial separate and dis-
tinct from the trial which is to be accorded to the other respondents. We
are not given sufficient notice as to the charges which are brought against
him separately from the rest, if there is such. As is well known to the
court there is not in the land office any record of the evidence complained
of in this case, and in fact there are no records in his office relating to
the matter at all. We have no knowledge of any records relating to the
matter, and if the court has such knowledge we would like to be apprised
of what the records are, and what proofs are against us. We ask that the
trial be not only separated as to the hearing here, but we ask that the trial
be entirely separate and distinct as to time and place of hearing. We
think that in his case this is a reasonable request that should be accorded
by your honor.
Mir, Geer: The charge is against them joinily and severally, so that
your client has had every benefit.
Mr. Wesselius: I would like to ask why Mr. Berry should be put to
the expense and trouble of attending the trial of the other two.
&
BOARD OF STATE CANVASSERS. 2T
Mr. Geer: I can’t tell you. I think before I get through you will see
why he should be here. Of course, it purports to have been signed by all
of them. Of course, on the trial, if something should turn out that
should be of benefit to your client, he should have the benefit of it.
First, I desire to offer the returns from all the different counties in the
ºpon an amendment to the constitution, passed at the state election
Of 1893.
Mr. Baker: Where are they from? How do you know they are the
returns?
Mr. Geer: I will have the clerk sworn that they are the files in the
Governor’s office. º
Mr. Baker: We want to know where they came from.
Mr. Geer: They are the ones in the Governor’s office.
Mr. Baker: Are they marked “files P”
Mr. Geer: No, I don’t know whether they have been filed.
Mr. Baker: Does the Governor know they are the returns 2
The Governor: I have no answer to give. Of course, I have seen
them before.
Mr. Cahill: I should assume that an officer should take judicial notice
of papers belonging in his office.
Mr. Baker: Are these files returned from every county of the State?
Mr. Geer: Yes, sir.
Mr. Baker: And when were they received?
Mr. Geer: Immediately after the election.
Mr. Baker: Were they all here at the time the canvass was made?
Mr. Geer: Yes, sir,
Mr. Baker: Are they copies?
Mr. Geer: I will have him sworn.
... Mr. J. H. Cole sworn.
Examined by Mr. Geer:
Mr. Cole, you may look at these and see if these are the returns of
the different counties in this State which were on file in the Governor’s
office on the 16th of May, 1893?
A. No, sir; they are not.
Q. And state whether or not there were any returns from the different
counties in this State sent to the Governor’s office which were filed?
A. There were.
Q. What became of those returns?
A. They were delivered to some one in the Secretary of State's office;
whether it was Mr. Potter or Mr. Lindholm I cannot say, one or the
other of the two.
Q. State what their position was in Mr. Jochim’s office.
A. Mr. Lindholm is Deputy Secretary of State and Mr. Potter was a
clerk; I don’t know what kind of a clerk, but he was a clerk and assisted
in tabulating the returns.
Q. And after the returns that were filed in the Governor's office had
been borrowed by them, did you subsequently procure from the Secretary
# State, either from Mr. Jochim himself or a clerk in his office these
es?
A. I did not; no, sir. I learned they were afterwards procured,
afterwards sent back to his office, I understand Mr. Loomis got them.
Q. * they came back, had you seen them in the Governor’s office?
A. es, sir.
28 REMOVAL PROCEEDINGS.
Q. Look them over and see if you can identify them as being the
identical returns that were returned to the Governor's office by Mr.
Jochim.
Examined by Mr. Baker:
Q. Those are not the Governor's returns?
A. No, sir.
Q. What did you do with those that you received when they came to
the office? Did you mark them filed?
A. Oh, they were not marked.
Q. Did you assist in the tabulation?
A. No, sir.
Q. Or the Governor?
A. No, sir; only on the one for the good roads amendment. Mr.
•Goodrich and I went through that.
, Was there anybody in the Governor’s office looked them over or
tabulated them?
. No, sir.
You were in the office all the time?
Yes, sir.
Did you put it in the pigeon holes?
No, sir; they were filed in the vault.
And no attention paid to them?
No, sir.
Did the Governor look them over?
Well, I don’t know.
You never saw him look them over?
. No, sir.
Mr. Geer: I have looked them over.
Mr. Atkinson: Are they certified?
Mr. Geer: No, but they are certified to by the county clerk.
Arthur P. Loomis sworn.
Examined by Mr. Geer:
. Where do you live?
Lansing.
What is your business?
Governor’s private secretary.
As such, how long have you been acting in that capacity?
Since the first of January a year ago.
. Do you know of there being filed and sent to the Governor’s office,
from the county clerks from the different counties in this State returns
concerning the salary amendment?
A. Yes, sir; returns were received.
Q. And when they were received, where were they placed?
A. Well, they were placed in the vault.
Q. In the Governor’s office?
A. Yes, sir.
Q. And at any time after they had been placed there, state whether or
not those returns were borrowed by anybody from the Governor’s office?
A. They were borrowed by some one from the Secretary of State's
departineni.
d }, About what time did they get them as you remember? Fix the
ate?
i
gº
BOARD OF STATE CANVASSERS. 29:
A. I cannot fix the date. They were got of Mr. Cole, just the time I
cannot remember.
Q. You don’t recall what person in the Secretary’s office borrowed
them?
A. Well, he got them of Mr. Cole.
Mr. Baker: Was it along before or along after the canvass?
A. Oh, it was before the canvass.
Q. State how long they remained in the –? I will ask you whether
or not the Secretary of State or anybody in his office returned them to the
Governor’s office after borrowing them?
A. Well, there were some returns brought back from the Secretary of
State’s office. º
Q. State whether or not while the Secretary of State had it you people
there at different times tried to get the returns that they had taken from
the Governor’s office.
A. I did.
Q. Who did you see when you went there to ask for these returns?
A. I saw Potter and Warren, the clerks, first, and then Mr. Lindholm,
Deputy Secretary of State.
Q. Where was Mr. Jochim?
A. He was not there at the time I applied.
Q. Did you ever at any time apply to him?
A. I never applied personally to Mr. Jochim.
Q. State whether or no after a time you succeeded in getting any of
the returns from the Secretary of State's office.
A. Why, there were returns brought back to the office.
Q. Look at those and see if those are the ones that were returned.
A. Yes, sir,
Q. And after they were returned from the Secretary’s office to the
Governor’s office where had they remained?
A. Well, they remained in our vault until they were taken to Mason.
Q. State whether or no they are in the same condition that they were
when returned to the Governor’s office.
A. Why, so far as I examined; yes, sir.
Q. Did you assist in anyway in making a tabulation of the returns?
A. Yes, sir.
Q And whether they are in the same condition now that they were at
that time?
A. Why, I should presume so, without examining.
Q. They are so far as you know?
A. So far as I know.
Cross-examination by Mr. Baker:
Q. Are those the same returns that were filed in the Governor’s office
originally?
A. I think not. *
Q. You think not?
A. No, sir.
Q. In conducting the Governor’s office, does anybody mark papers
when they are received as “filed?”
A. No.
Q. So that there was no mark put upon the original returns showing
when they were received, or by which they could be identified?
30 REMOVAL PROCEEDINGS.
A. No, there is no mark giving the date on which they were received.
Q. Now, what makes you think those are the returns originally
received?
A. Well, I rely more on Mr. Cole for that.
Q. Is there any mark there in any way so that you can identify them
as not being the ones? *
A. Why, Mr. Cole wrote in the name of the county on some of the
returns on the back, and I would recognize his handwriting.
Q. Well, that would be written in when it was received?
A. The date would not.
Q. I know, but he would write in the name of the county on those
where it was blank, and you identify them in that way?
A. I could tell his writing.
Q. Are any of those in his writing?
A. I don’t see any—all better writing.
. Were any of the original returns in his handwriting? Can you
swear to that that they were?
A. I have seen his writing on some of the returns.
Q. Just the name of the county?
A. Yes.
Q. But you don’t know whether it is constitutional amendment returns
or State officers?
I saw it particularly on the State officers that was brought back.
sº you any way of telling us just when those were borrowed?
O, SIT,
How do you know it was before the canvass?
Oh, it would be my recollection it was before that.
Who came in there for them?
They were borrowed of Mr. Cole.
You didn’t see the party who came in?
No, I didn’t happen to be in the office at the time.
. As a matter of fact, they had not been marked “filed” and there
was no way of identifying them and no tabulation had been made at the
time they left the Governor’s office?
No tabulation, not to my knowledge.
What position has Mr. Cole?
Executive clerk.
What is your position?
Private secretary.
Any one else attached to the office?
. Why, janitor and Governor.
Mr. Cole recalled.
Examined by Mr. Geer:
Q. Mr. Cole, why do you know these are not the original files that
were filed in the Governor’s office?
A. Haven’t any of them got my writing on,
Q. In that way, you can tell?
A. Yes, sir.
Q. You say you are not able to fix the exact date when they were bor-
rowed from the Governor’s office?
A. No, sir.
Recross-examination by Mr. Baker:
Q. How many did you mark in that way?
i
BOARD OF STATE CANVASSERS. 31
. I don’t think there was any marked when they came.
Well, how many did you mark?
That I can’t tell. º
But sometimes they had the name of the county on the back?
. I don’t know anything about that, I know I marked on those that
had not been marked.
Mr. Lee: How many of those were marked when they came here?
A. I never counted them.
Continued by Mr. Baker:
Q. Did you take any receipt for them when they were taken out?
A. No, sir.
Q. Who came after them?
A. Two men came after them, Mr. Lindholm at one time, and Mr.
Potter, but which one of them took them I cannot say.
Q. Did you hand them over to them yourself?
A. I did; yes, sir.
Q. Then you can tell?
A. No, because I know they both came up and both told the reasons
why they wanted them.
What reason?
A. Oh, they said some returns had not come and for that reason they
wanted to get them to compare some returns in their office that did not
seem to be just right, and they wanted to get them to see where it was.
Mr. Potter, I think, made that statement to me.
Q. When those returns left, was there anybody in the Governor’s
office who knew what the result was as shown by them?
A. Only on the good roads amendment. We figured that up for Mr.
Goodrich. He borrowed our returns, and I assisted in tabulating them.
Q. Who is Mr. Goodrich?
A. Mr. Goodrich is road commissioner.
Q. Then you helped him tabulate?
A. Yes, sir.
Q. So at the time the returns left the Governor’s office there was
nobody connected with the office that knew what the result was?
I don’t know.
Well, so far as you know?
Oh, no, sir.
And you took no receipt for them?
No, sir.
. And you never received them back?
A. No, sir; only part of them.
Redirect examination.
By Mr. Geer:
Q. State what you did towards getting them back.
A. Well, I know that the Governor came to me one day and asked me
to go down and see Mr. Lindholm why the returns did not come back,
and I went down and asked him where the originals were, and he said he
had been away, and he said that in cleaning out his private office they
had been lost or destroyed.
Q. Did you know of Mr. Loomis going down afterwards and inquiring
for them?
A. No, sir.
Q. Had he been before?
;
i
3
2
REMOVAL PROCEEDINGS.
Yes, sir.
How many times? .
I dont know, several.
Did he succeed in getting them?
I don’t know.
But finally he did get them?
I know he went right down and they came back in two or three
d
S.
These came back?
Yes, sir.
Those you sent down there did not come back?
Part of them have since.
. Then do you say that they are not all of the returns in the Gov-
ernor's office?
A. Yes, sir.
Q. And that none of the original returns that came to the Governor's
office have been returned?
A. Yes, sir; part of them have.
Q. I mean in regard to the amendment?
A. No, sir.
Q. When you say “amendment” you mean the salary amendment?
A. Yes, sir.
By Mr. Wesselius:
Q. You have charge of these returns in the vault, Mr. Cole?
A. No more than any one else; no, sir.
Q. No rules of the office concerning it?
A. No, sir.
John W. Jochim, sworn.
Mr. Baker: Under the circumstances of this case, we object to your
swearing the defendant. We disagree very radically with the theory that
this is not a criminal prosecution, and as we understand the decision of
the supreme court of this State it is, and whether Mr. Jochim is sworn or
not will depend upon conference of counsel as to whether it will be advis-
able to have him go upon the stand, but under the circumstances as at
present advised we shall object to his being sworn as a witness against
himself as plainly in violation of all constitutional principles. We shall
advise him not to answer any questions.
Mr. Geer: Then I will put the question so that we may have the
benefit of it. Mr. Jochim, are you Secretary of State?
Mr. Baker: We object to it.
The Governor: I could not compel him to answer.
Mr. Geer: Do you refuse to answer?
Mr. Atkinson: Do you think you ought to put him in that position?
If you have no right to swear him, is it fair to prejudice the public
against him?
Mr. Geer: The record ought to be made against him.
Mr. Baker: What do you want of the record?
Mr. Atkinson: There is no court of review, the Governor will end it.
...Mr. Geer: I suppose he will take judicial notice that he is Secretary
UI NDUBU6),
Mr. Atkinson: If you don’t claim a right to examine him—.
Mr. Geer: I think I have a right to examine him; I haven’t any doubt
about it. There isn't anything criminal about this.
BóARD OF STATE CANVASSERs. 33
Mr. Atkinson: If you don’t claim the right to examine him, I would
suggest in all fairness that no questions ought to be asked, because it may
be published and the defendant prejudiced in the opinion of the public.
Mr. Geer: I think I have a right to do it. I have no doubt, it seems
to me, under the constitution itself. 0.
Mr. Baker: The Governor has held that we have no right—he is not
bound to answer.
Mr. Geer: I think we have a right beyond any question. I would like
to know how you can investigate it unless you can have him answer cer-
tain questions.
Mr. Atkinson: If I understood the Governor’s ruling, it was that he
was not bound to answer qustions against himself. We know that under
the sºlutional provision a man is not bound to give evidence against
himself.
Mr. Baker: You can’t compel him to testify. You can’t require him
to testify.
Mr. Atkinson: Of course, I don’t think you ought to ask questions
simply for the purpose of making public opinion.
Mr. Cahill: Of course, you don’t mean to say the constitution pro-
vides that no man shall give testimony against himself.
Mr. Atkinson: That no man shall be compelled to. I think the
attempt here, your honor, is to compel Mr. Jochim to give evidence
against himself, or if he refuses to put him in a position where it will
injure him in the community. Now, I ask counsel not to do it.
Mr. Geer: I won’t do it unless we are legally entitled to. I never
knew yet that I could not call the opposite party and have him sworn.
Mr. Atkinson: I know that to be the rule where we are trying a case
in the lower court in order to make the record. We are trying a case here
now before the highest tribunal in the State and there is no other review.
There is no earthly object in it except to injure him.
Mr. Geer: I don’t know how it can injure him. Perhaps we can avoid
all this. All I wanted to show by Mr. Jochim was that he is Secretary
of State and organized the Board of State Canvassers. In other words,
he had been notified by his clerks that the tabulated statements were
ready to be signed; as soon as he was informed of that fact he notified
the other members of the board; that the other members of the board
came there, and that they then and there signed them, but never looked
or compared any statement with the tabuluated statements. That is what
I expect to show by him.
Mr. Baker: That is the gist of your case, and we think you better
prove it by somebody else.
Mr. Atkinson: State your proposition again. Maybe we can agree.
Mr. Geer: I expect to show by the witness that Mr. Jochim was
notified a short time prior to the 16th of May by his clerks that a tabu-
lated statement containing the votes for and against the salary amendment
had been prepared and was ready to be signed by the members of the can-
vassing board; that thereupon Mr. Jochim notified Mr. Berry and Mr.
Hambitzer by telegram; that in response to that telegram they came here
and singed the original returns as have been prepared by their clerks—the
original statements; that they themselves, nor neither of them, ever com-
pared or examined the returns from a single county, neither examined
them nor compared them with the tabulated statements that had been
5
34 REMOVAL PROCEEDINGS. *
prepared by their clerks; that they relied entirely upon what their clerks
stated to them about its being correct, and believing it to be so, signed it,
and that is all they had to do with the business,
Mº Wesselius: As to whether Mr. Berry signed this on the 16th of
ay º
Mr. Geer: I don’t know as to that.
Mr. Atkinson: On behalf of Mr. Jochim, we will admit your state-
ment being in accordance with the facts.
Mr. Lee: I was going to add for Mr. Baker and myself, for Mr.
Jochim and Mr. Hambitzer also, we will say with Col. Atkinson, to be
added the fact that Mr. Jochim called them together as a board, we will
admit it to be the fact as stated.
Mr. Geer: I am frank to say that is a little different charge, but when
I got here he insisted it was done in that way; that is the way I stated it,
he said he notified them by telegram and that they came here, and I sup-
pose it was signed; that will be a matter of defense. --
Mr. Wesselius: The whole matter might be placed on the record as a
admission on the part of all the respondents and that Mr. Berry did not
sign these returns until at least one week after the date mentioned in the
certificate.
Mr. Geer: Oh, I know nothing about that.
Mr. Wesselius: Well, we will prove that then.
Mr. Geer: Oh, there is this, there isn’t any claim on the part of Mr.
Berry that he ever saw one of these returns. Am I not right?
Mr. Wesselius: Well, that will be a matter of defense.
Mr. Geer: Of course, we can prove that statement if it is not admitted,
or we will make this evidence calling these persons.
Mr. Baker: As I understand it, Mr. Hambitzer, who is a banker and
familiar with the duty of adding up figures, that he ran these columns up
to see whether they were footed right.
Mr. Geer: Well, I never heard of that.
Mr. Baker: Are they footed up right?
Mr. Geer: I don’t know; I suppose they had to be footed up right,
whether they are—
Mr. Baker: That is, as I understand your statement, they signed that
believing that it was a correct statement.
Mr. Geer: Yes, sir; that is what they said, that is all.
Mr. Baker: They supposed the clerks had done this work properly.
Mr. Geer: I never knew anything about Mr. Berry not signing at that
time.
Mr. Baker: As I understand it, Mr. Berry was not here, but when he
came he signed it.
Mr. Geer: Well, I don’t know as to that.
Mr. Baker: I guess there is no dispute as to the facts then.
Mr. Geer: I will offer now the original canvass, made on the 16th of
May, 1893, showing the number of votes given for and against the amend-
ment.
Mr. Atkinson: Mr. Geer, is this the whole return?
Mr. Geer: It is so far as the salary is concerned and the only question
is on the salary; it is the whole return and the only question is on the
salary amendment,
Mr. Atkinson: We will consider the original as in evidence.
Mr. Geer: Yes.
BOARD OF STATE CANVASSERs. 35
Mr. Atkinson: Is this the new canvass?
Mr. Geer: Yes, or I have the result there to show what the recanvass
shows where they did actually canvass,
Mr. Lee: When was the recanvass made?
Mr. Geer: On the 19th day of January, 1894.
Mr. Lee: We will admit that.
Mr. Geer: I want to offer in evidence a canvass made by the same
board on the 8th day of November, 1892, canvassed originally.
Mr. Baker: What is this about?
Mr. Geer: That is the canvass made by this board on the contest
between Richardson and Belknap, made the 14th of February. The
'object is to show that your clients had some knowledge and experience in
relation to canvassing at that time, it was no new thing upon their part.
Mr. Lee: Do you propose to show anything as to the manner in which
the canvass was made?
Mr. Geer: I will if you permit me to ask questions.
Mr, Baker: This is a canvass of the congressional election.
Mr. Geer: Yes, sir; and following that, I will now offer another one
that was dated—
Mr. Atkinson: Now, then, we have the original canvass, the new can-
vass, and the canvass of the Belknap-Richardson election. -
Mr. Geer: There is also another canvass of the supreme court, that
was in April, 26th of April. This canvass of the supreme court, this was
done on the 16th day of May, 1893. There is another one, I don’t know
where it was, the 25th or 26th of April.
Mr. Baker: Are those all in the same handwriting?
Mr. Geer: I don’t know, they are all signed by them, I don’t know
about that. The object of introducing that was to show upon two occa-
isions before this that the same board had canvassed votes.
Mr. Atkinson: It is understood then if there is any other canvass it
may be put in.
Mr. Geer: I may be mistaken about that, I thought there was another
canvass. Of course there were however two, if I understood it, the judges
of the supreme court and circuit court at that time.
Mr. Atkinson: And whatever canvasses they had made for the election
will be considered in evidence?
Mr. Geer: Yes, sir; and now I have a Lansing paper where this
result of the first canvass was published. I want to offer that in evi-
dence. Here is the paper that contains the published result of the can-
V8 SS,
Mr. Atkinson: The statute requires them to publish the result of
their canvass, does it?
Mr. Geer: Yes, sir; and the second publication, that is the corrected
one under the order of the court, was published the 3d of February, 1894,
in the State Republican. I offer that in evidence. It is the new
“CBITV8 SS.
Mr. Atkinson: On all the amendments or just one?
Mr. Geer: They were all recanvassed and the other was corrected.
The Governor: No, not corrected.
Mr. Geer: I suppose they were. Well, I will offer the evidence. I
understand the original amendments were not corrected, but I supposed
they were.
36 REMOVAL PROCEEDINGS.
Mr. Cole recalled.
Examined by Mr. Geer:
Q. Did you prepare the statements showing the alterations and
changes between the first and second canvassing, made by the State
Board of Canvassers?
A. I did.
Q. State whether this contains the different counties and the differ-
ence between the first and second canvassing?
A. It does on the salary amendment.
Q. But not on the others?
A. No, but it shows upon which it was taken.
Q. And it also shows the way in which they arrived at the amount,
does it not?
A. Yes, sir.
Mr. Geer: I offer that in evidence.
D. B. Ainger, sworn.
Examined by Mr. Geer:
Q. In what capacity are you acting in the office of Auditor General?
A. Deputy.
As such, do you have charge of the different vouchers that are
presented to that office?
A. They all pass through my hands,
Have you the vouchers that were presented and audited and paid
to the sº Board of Canvassers, Messrs. Hambitzer, Jochim and Berry?
eS, S11.
How many of them have you, for how many different offices?
There are three sets.
What is the earliest one—the date of it?
February 23d, February 13th and 14th.
Are these the vouchers?
Yes, sir.
That is the work for which the State Board of Canvassers did?
I think so.
That is Mr. Hambitzer’s signature?
Yes, sir.
That is Mr. Berry’s?
Yes, sir.
Is that Mr. Jochim’s?
. Yes, sir.
Mr. Geer: I now offer these in evidence, dated the 13th and 14th of
February, 1893.
Testimony closed.
The hearing was then adjourned until February 19, 1894, at one o’clock
in the afternoon.
BOARD OF STATE CANVASSERS. 37
PROCEEDINGS
FIad before John T. Rich, Governor of the State of Michigan, sitting as a
high court of impeachment, on February 19, 1894.
Respondents present in person and by attorneys.
The matter was thereupon submitted to the Governor without argu-
ment, for his decision and determination, and after mature deliberation,
the Governor thereupon made an order removing John W. Jochim from
the office of Secretary of State, Joseph F. Hambitzer from the office of
State Treasurer, and John G. Berry from the office of Commissioner of
the State Land Office.
ORDER OF REMOVAL,
ExECUTIVE OFFICE, !
Lansing, February 19, 1894.
To John W. Jochim, Secretary of State; Joseph F. Hambitzer, State
Treasurer, and John G. Berry, Commissioner of the State Land Office.
WHEREAs, Public charges have been made and have come to my knowl-
edge that gross errors were made in the canvass of the returns of votes
given in various counties at the election held in this State on the first
Monday in April, A. D. 1893, for and against the adoption of joint reso-
lution No. 10, approved March 9th, 1893, entitled “Joint resolution pro-
posing an amendment to section 1, article IX, of the constitution of this
State, relative to the salaries of State officers,” by which it was made to
appear that such amendment to the constitution had been ratified and
approved by a majority of the electors voting thereon; and, it is alleged,
that by a true and correct canvass of the returns of such votes the said
amendment was defeated; and
WHEREAs, Under the power granted and duly imposed upon me as
Governor of this State by section VIII of article XI of the constitution,
it became necessary to inquire into the condition and administration of
your several offices, and especially into the manner in which you have
severally and collectively performed the duties of the Board of State Can-
vassers, of which you are ea officio members, for the purpose of determin-
ing whether you have been guilty of gross neglect of duty in the matter
of canvassing the said returns; and
WHEREAS, You were severally cited and required to appear before me at
the executive office in the city of Lansing on the 15th day of February,
1894, at one o’clock in the afternoon, then and there to answer the follow-
ing specific charges, namely:
1. That you the said John W. Jochim, Secretary of State; Joseph F.
Hambitzer, State Treasurer, and John G. Berry, Commissioner of the
State Land Office, who are the Board of Canvassers under the constitu-
tion and laws of this State, were each and every one of you guilty of gross
38 REMOVAL PROCEEDINGS.
neglect of duty in this, that you did not, nor did either of you examine
the statements or returns of votes from the several counties filed in the
office of the Secretary of State, showing the number of votes cast for and
against said proposed amendment to the constitution relative to the Sala-
i.” State officers, by the electors in this State at the election in April,
2. That you were severally guilty of gross neglect of duty in this, that
you did not, nor did either of you ascertain and determine the result of
such vote, nor perform with true and proper care the duties relating to
canvassing the statements and returns from the several counties of the
votes given at said election for and against said proposed amendment to
the constitution required of and imposed upon you, as members of said
Board of State Canvassers by the constitution and laws of this State.
3. That you were severally guilty of gross neglect of duty in this that
you made and suffered to be made gross errors in the canvass of the state-
ments and returns filed in the office of the Secretary of State of the votes.
given in the several counties at said election in April, 1893, for and against
said proposed amendment to the constitution, by which it was falsely
made to appear that such proposed amendment had been approved and
ratified by a majority of the electors voting thereon; whereas, by a true
and correct canvass of the said statements and returns the said proposed
amendment was defeated; and
WHEREAs, You and each of you did appear by your respective attorneys
and in person on the 15th day of February 1894, before me at the execu-
tive office in pursuance to said notice; and
WHEREAs, After a full hearing and investigation of said charges I find
the following charges have been proven, viz.:
1. That you, the said John W. Jochim, Secretary of State; Joseph F.
Hambitzer, State Treasurer, and John G. Berry, Commissioner of the
State Land Office, who are the Board of State Canvassers under the con-
stitution and laws of this State, were each and every one of you guilty of
gross neglect of duty, in this; that you did not, nor did either of you
examine the statements or returns of votes from the several counties filed
in the office of the Secretary of State, showing the number of votes cast
for and against said proposed amendment to the constitution relative to
the salaries of State officers by the electors in this State at the election in
April, 1893.
2. That you were severally guilty of gross neglect of duty in this, that
you did not, nor did either of you, ascertain and determine the result of
such vote, nor perform with due and proper care the duties relating to
canvassing the statements and returns from the several counties of the
votes given at such election for and against said proposed amendment to
the constitution required of and imposed upon you, as members of said
Board of State Canvassers by the constitution and laws in this State.
3. That you were severally guilty of gross neglect of duty in this, that
you made and suffered to be made gross errors in the canvass of the state-
ments and returns filed in the office of the Secretary of State of the votes
given in the several counties at said election in April, 1893, for and
against said proposed amendment to the constitution, by which it was
falsely made to appear that such proposed amendment had been approved
and ratified by a majority of the electors voting thereon, whereas, by a
true and correct canvass of said statements and returns the said proposed
amendment was defeated; now
BOARD OF STATE CANVASSERS. 39
Therefore, by virtue of the authority vested in me by the constitution,
I, John T. Rich, Governor of the State of Michigan, do hereby remove
you, John W. Jochim, from your office of Secretary of State, and you,
Joseph F. Hambitzer, from your office of State Treasurer, and you, John
G. Berry, from your office of Commissioner of the State Land Office, for
gross neglect of duty, as members of the Board of State Canvassers, and
said offices of Secretary of State, State Treasurer and Commissioner of the
State Land Office, are hereby declared vacant. ..~
Given under my hand and the great seal of the State, at the Capitol, in
Lansing, this 19th day of February, 1894.
JOHN T. RICH,
By the Governor: * Governor.
AUGUST W. LINDHOLM, .
Deputy Secretary of State.
The said State officers refused to comply with the foregoing order made
by the Governor, and refused to vacate their said several offices as required
by said order.
Whereupon, proceedings in the nature of quo warranto were instituted
in the supreme court, by the Attorney General, on the relation of John
T. Rich, Governor, to test the title of John W. Jochim to the office of
Secretary of State, of Joseph F. Hambitzer to the office of State Treas-
urer, and of John G. Berry to the office of Commissioner of the State
Land Office.
lsº proceedings were commenced by information on February 21,
4
INFORMATION.
Attorney General vs. Jochim.
STATE OF MICHIGAN.—IN THE SUPREME COURT.
County of Ingham.—ss.
Adolphus A. Ellis, Attorney General of the State of Michigan, who
sues for the people of the State of Michigan, in their behalf, comes here
to the supreme court of said State on the 21st day of February, 1894, and
upon his own relation, according to the form of the statute in such case
made and provided, and gives the court now here to understand and be
informed that John W. Jochim, of Ishpeming, in the county of Mar-
quette, for the space of two days and upwards now last past, has held,
used and exercised, and still does hold, use and exercise the office of Sec-
retary of State in and for the State of Michigan, without any appoint-
ment, warrant or authority whatsoever therefor. Which said office of
Secretary of State, he, the said John W. Jochim, during all the time
aforesaid, has usurped, intruded into and unlawfully held and exercised,
and still does usurp, intrude into and unlawfully hold and exercise, with-
out any appointment, warrant or authority of law whatsoever, in contempt
40 REMOVAL PROCEEDINGS,
of the people of the State of Michigan, and to their great damage and
prejudice.
Whereupon the Attorney General prays the advice of the court here in
the premises, and for due process of law against the said John W. Jochim
in their behalf to be made to answer to the said people by what warrant
he claims to hold, use, exercise and enjoy the said office of Secretary of
State of said State of Michigan.
ADOLPHUS A. ELLIS,
CAHILL & OSTRANDER, Attorney General.
GEER & WILLIAMS,
Of Counsel.
Filed February 21, 1894.
PLEA.
Attorney General vs. Jochim.
STATE OF MICHIGAN.—SUPREME COURT.
ADOLPH.Us A. ELLIS, Attorney General,
(US.
JoHN W. JoCHIM, Defendant.
And now, to wit, on the 24th day of February, A. D. 1894, before
said court at Lansing, comes the said defendant, by Smith, Lee & Day,
his attorneys, and having heard the information on • file in this cause
against him read, he complains that under color of the premises in-the
said information contained, he is greatly vexed and disquieted, and that
by no means justly; because, protesting that the said information and the
matters therein contained are not sufficient in law, and that he need not,
nor is he obliged by law of the land to answer thereto; yet, for plea in
this behalf, the defendant says that he does not apprehend that the said
Attorney General will or ought further to impeach or implead him by
reason of the premises in the said information contained, because he says
that true it is that within this State there has been and now is a public
office of great trust and preeminence, touching the administration of the
affairs of this State, known as the office of Secretary of State, the same
being an office of profit to the incumbent thereof, as by the said infor-
mation is above supposed. -
And the defendant further says, that the people of this State, under and
by virtue of the constitution and laws have held, had and enjoyed, and
still have, hold and enjoy, the right, privilege and authority of electing,
by the qualified electors of the State, a Secretary of State at each general
election had and held in this State, that is to say on the Tuesday after the
first Monday in the month of November, in the year of our Lord one
thousand eight hundred and fifty-two, and on the like day and month in
every second year thereafter, for the term of two years, commencing on
the first day of January of the year next following such election.
BOARD OF STATE CANVASSERS. 41
And the defendant further says, that on, to wit, the eighth day of
November A. D., 1892, the same being the Tuesday after the first Monday
in the month of November of that year, a general election was duly had
and held in this State, and at such election, upon due notice, and pur-
suant to the statute in such case made and provided, the qualified electors
of the State voted for the following named persons for Secretary of State,
to wit, the defendant, John W. Jochim, and a number of other persons,
and of all of the persons for whom the qualified electors voted at said elec-
tion for Secretary of State, the said defendant received the greatest num-
ber of votes, and was then and there fully elected to the office aforesaid.
And the defendant further says, that afterwards, to wit, on the first day
of January, A. D. 1893, that being the first day of the term of office for
which as aforesaid, he was elected, having previously taken the oath of
office, and given the official bond required by law, he, the defendant,
entered into said office, and the discharge of the duties thereof, and from
thence hitherto has held and used, and still does hold and use the said
office, with the rights, privileges and emoluments thereunto belonging or
appertaining, by virtue of said election, as it was and is lawful and proper
for him to do; without this, that the defendant, the said office, rights,
privileges and emoluments in the said information above mentioned, or
any of them, has usurped and did usurp, etc., in manner and form as by
the said information is above alleged against him.
All which matters and things, this defendant is ready to verify and
prove, as the court shall award.
Wherefore he prays judgment, and that the said office, etc., by him
claimed in manner aforesaid, may be allowed and adjudged to him, and
that he may be dismissed and discharged by the court here, of and from
the premises above charged upon him.
SMITH, LEE & DAY,
FRED A. BAKER, Attorneys for Defendant.
JOHN ATKINSON,
Of Counsel.
Eiled February 23, 1894,
REPLICATION.
STATE OF MICHIGAN.—SUPREME COURT.
ADOLPHUS A. ELLIS, Attorney General, Relator,
Q)S.
John W. JocBIM, Respondent.
And now comes the said Adolphus A. Ellis, Attorney General of the
State of Michigan, and having heard read the said plea of John W.
Jochim, by him above pleaded, saith that for anything by him, the said
John W. Jochim, therein" alleged, the said people ought not to be barred
from having and maintaining their aforesaid information against him,
because protesting that the said plea of John W. Jochim and the matters
therein contained are insufficient in law to bar the said people from hav-
6
42 REMOVAL PROCEEDINGS.
ing and maintaining their aforesaid information against the said John
W. Jochim, for replication, nevertheless, in this behalf, the said Attorney
General saith: That true it is that said respondent on, to wit, the 8th day
of November, A. D. 1892, at a general election held in the State of Mich-
igan, was duly elected Secretary of State of the State of Michigan, and
that on, to wit, the first day of January, A. D. 1893, the said John W.
Jochim duly qualified and entered upon the discharge of the duties of
said office; yet, the said relator saith, that on, to wit, the 8th day of
November, A. D. 1892, a general election was duly had and held in this
State, and at such election, upon due notice, and pursuant to the statute
in such case made and provided, John T. Rich was elected Governor of
the State of Michigan by the qualified electors of said State, and after-
wards to wit, on the first day of January, A. D. 1893, that being the first
day of the term of office for which as aforesaid he was elected Governor,
having previously taken the oath of office, said John T. Rich entered into
said office, and the discharge of the duties thereof, and from thence
hitherto has held and still does hold said office of Governor by virtue of
said election, and it became and was the duty of said John T. Rich, as
Governor of the State of Michigan, imposed upon him by section VIII of
article XII of the consitution, to inquire into the condition and adminis-
tration of said office of Secretary of State, and the manner in which said
John W. Jochim performed the duties of said office, and the duties as one
of the Board of State Canvassers, of which said John W. Jochim, as Sec-
retary of State, was ea officio a member, for the purpose of determining
whether said John W. Jochim were guilty of gross neglect of duty, and
to remove the said John W. Jochim from his office of Secretary of State
for gross neglect of duty if he should be found guilty thereof.
That afterwards and on, to wit, the 6th day of February, 1894, it having
come to the knowledge of said John T. Rich, that it was claimed that said
John W. Jochim had been guilty of gross neglect of duty, as a member of
the Board of State Canvassers, written notice was served on said John W.
Jochim to appear before said John T. Rich, Governor, as aforesaid, and
show cause why he should not be removed from said office of Secretary of
State for said gross neglect of duty, which said notice is in words and
figures as follows: *
“ExECUTIVE OFFICE, |
Lansing, February 6, 1894.
To John W. Jochim, Secretary of State; Joseph F. Hambitzer, State
Treasurer, and John G. Berry, Commissioner of the State Land Office,
composing the Board of State Canvassers.
GENTLEMEN-Public charges have been made and have come to my
knowledge that gross errors were made in the canvass of the returns of
votes in the various counties at the election held in this State on the first
Monday in April, A. D. 1893, for and against the adoption of Joint Reso-
lution No. 10, approved March 9, 1893, entitled “Joint resolution propos-
ing an amendment to section one (1), article nine (9), of the constitution
of this State, relative to the salaries of State officers,” by which it was
made to appear that such amendment to the constitution had been rati-
fied and approved by a majority of the electors voting thereon; whereas, it
is alleged, that by a true and correct canvass of the returns of such votes
the said amendment was defeated.
Under the power granted and duty imposed upon me as Governor of
this State, by section eight (8) of article twelve (12) of the constitution,
BOARD OF STATE CANVASSERS. 43.
it became necessary to inquire into the administration and condition of
your several offices, and especially into the manner in which you have
severally and collectively performed the duties of the Board of State Can-
vassers, of which you are eac officio members, for the purpose of deter-
mining whether you have been guilty of gross neglect of duty in the
matter of canvassing the said returns.
You are therefore severally cited and required to appear before me at
the executive office in the city of Lansing on the fifteenth day of Febru-
ary, 1894, at one o’clock in the afternoon, then and there to answer to the
following specific charges, viz.:
1. That you, the said John W. Joohim, Secretary of State; Joseph F.
Hambitzer, State Treasurer, and John G. Berry, Commissioner of the
State Land Office, who are the Board of State Canvassers under the con-
stitution and laws of this State, were each and every one of you guilty of
gross nelgect of duty in this, that you did not, nor did either of you,
examine the statements or returns of votes from the several counties filed
in the office of Secretary of State, showing the number of votes cast for
and against said proposed amendment to the constitution relative to the
salaries of State officers, by the electors in this State at the election in
April, 1893.
2. That you were severally guilty of gross neglect of duty in this, that
you did not, nor did either of you, ascertain and determine the result of
such vote, nor perform with due and proper care the duties relating to
canvassing the statements and returns from the several counties of the
votes given at such election, for and against said proposed amendment to
the constitution required of and imposed upon you as members of said
Board of State Canvassers by the constitution and laws of this State.
3. That you were severally guilty of gross neglect of duty in this, that
you made and suffered to be made gross errors in the canvass of the state-
ments and returns filed in the office of the Secretary of State of the votes
given in the several counties at said election in April, 1893, for and
against said proposed amendment to the constitution, by which it was
falsely made to appear that such proposed amendment had been approved
and ratified by a majority of the electors voting thereon; whereas, by a
true and correct canvass of the said statements and returns, the said pro-
posed amendment was defeated.
4. You are further required then and there to show cause why you
and each of you should not be removed from office for gross neglect of
duty.
JOEIN T. RICEI.'”
A copy of which said notice was duly served on said John W. Jochim
on the 6th day of February, A. D. 1894.
That on the 15th day of February, 1894, the said John W. Jochim,
Secretary of State, as aforesaid; Joseph F. Hambitzer, State Treasurer,
and John G. Berry, Commissioner of the State Land Office, who were ea:
officio the Board of State Canvassers under the constitution and laws of
this State, appeared before the said John T. Rich, Governor, in person
and by counsel, in the executive office in the city of Lansing, and moved
to vacate the notice above referred to and dismiss the charges therein for
the following reasons:
1. The Governor has no power under section eight of article twelve or
any other provision of the constitution to remove the respondents, or
44 REMOVAL PROCEEDINGS.
either of them, from their respective offices for any misconduct on their
part, or on the part of either of them, as members of the Board of State
Canvassers.
2 The power of the Governor, under section eight article twelve of the
constitution, is confined to the official misconduct of the offices therein
named, in the performance of the duties appertaining to each of all
said officers separately and severally considered, and it does not include
such duties as are performed by such officers jointly with others as mem-
bers of constitutional or statutory bodies or boards.
3. The house of representatives, under sections 1, 2 and 3, article 12,
of the constitution, has the sole power to direct an impeachment of these
respondents for misconduct in the performance of their duties when acting
as a Board of State Canvassers, and the senate has exclusive jurisdiction
to try any such impeachment.
4. The charges set forth in the notice served upon these respondents
are wholly insufficient and fatally defective, for the reason that it is not
alleged therein that the neglect of these respondents, or any of them, are
intentional, or that they, or either of them, have knowingly and design-
edly neglected any official duty, or that they, or either of them, have neg-
lected to perform any duty with an evil intent, or for any improper,
illegal or culpable purpose.
5. The charges contained in said notice do not make or state a case of
gross neglect of duty within the meaning of section eight, article twelve
of the constitution, and the Governor, sitting as a court of impeachment,
has no jurisdiction or power to render judgment or removal thereon.
6. The notice served on respondents is void, because it is not “In the
name of the People of the State of Michigan,” as required by section
thirty-five of article five of the constitution, and it is not authenticated by
the great seal of the State as required by section eighteen of article nine
of the constitution. *.
7. The Board of State Canvassers is created by the constitution of this
State, and in the performance of their duties and functions, the members
of said board in the absence of conduct on their part amounting to a
criminal offense, are not subject to the control or interference of the Gov-
ernor of the State, or of any other branch or department of the govern-
ment; and excepting the power of the legislature to determine any cause
where the decision of the State Board of Canvassers is contested, they are
answerable or amenable only to the people of the State by whom they
were elected to their respective offices.
Which said motion, after being duly argued by counsel, and after
deliberation thereon, was overruled by said John T. Rich, Governor, as
aforesaid. Exception taken by respondent.
Thereupon counsel offered in evidence.
1. The returns from the several counties in this State showing the
votes given for and against the adoption of joint resolutioin No. 10,
approved March 9th, 1893, entitled “Joint resolution proposing an amend-
ment to section one, article nine, of the constitution of this State, relative
to the salaries of State officers,” at the election in April, 1893.
2. The canvass of said returns purporting to have been made and
signed by said John W. Jochim, and the other members of the Board of
State Canvassers, May 16th, 1893, from which it appeared that said amend-
ment was carried by a majority of 1,821. A copy of which is hereto
attached marked Exhibit “B,”
BOARD OF STATE CANVASSERS. Af 45.
3. The canvass made of said returns by said John W. Jochim and the
other members of the Board of State Canvassers by the Order of the
supreme court, from which it appeared that said amendment was defeated
by a majority of 11,455, which last mentioned canvass was the true and
correct canvass of the returns of the votes cast for and against said pro-
posed amendment. A copy of which is hereto attached and marked
Exhibit “C.”
4. Vouchers showing the amounts paid said John W. Jochim and the
other members of the Board of State Canvassers for their expenses in and
about making said canvasses, copies of which vouchers are hereto attached
and marked Exhibit “A.”
It was then stipulated by counsel for the respective parties as follows:
That John W. Jochim, Secretary of State, was notified a short time
prior to the 16th of May, 1893, by his clerks, that a tabulated statement
showing the votes for and against said salary amendment had been pre-
pared and was ready to be signed by the members of the State Board of
Canvassers; that thereupon said John W. Jochim notified Mr. Berry and
Mr. Hambitzer by telegram; that in response to that telegram they came
to Lansing and signed the tabulated statement prepared by their clerks;
that they did not themselves, nor did either of them, either compare or
examine the returns from a single county, neither did they examine them
nor compare them with the tabulated statements that had been prepared
by their clerks; that they relied entirely upon what their clerks stated to
them about its being correct, and believing it to be so, signed it, and that
is all they had to do with the business.
Respondents offered no testimony and the further hearing was con-
tinued to February 19th, 1894, at the same place at one o'clock in the
afternoon, at which time the said John W. Jochim, and the other mem-
bers of the Board of State Canvassers appeared in person and by counsel,
and the matter was thereupon submitted to John T. Rich, Governor,
without argument, for his decision and determination, and after mature
deliberation thereon said Governor made an order removing said John W.
Jochim from the office of Secretary of State, a copy of which said order is
in words and figures as follows:
“ExECUTIVE OFFICE,
Lansing, February 19, 1894.
To John W. Jochim, Secretary of State; Joseph F. Hambitzer, State
Treasurer, and John G. Berry, Commissioner of the State Land Office.
WHEREAs, Public charges have been made and have come to Iny knowl-
edge that gross errors were made in the canvass of the returns of votes
given in the various counties at the election held in this State on the first
Monday in April, A. D. 1893, for and against the adoption of joint reso-
lution No. 10, approved March 9th, 1893, entitled “Joint resolution pro-
posing an amendment to section 1, article IX, of the constitution of this
State, relative to the salaries of State officers,” by which it was made to
appear that such amendment to the constiuttion had been ratified and
approved by a majority of the electors voting thereon; and it is alleged
that by a true and correct canvass of the returns of such votes the said
amendment was defeated; and
WHEREAS, Under the power granted and duty imposed upon me as Gov-
ernor of this State by section VIII of article XII of the constitution, it
46 REMOVAL PROCEEDINGS.
became necessary to inquire into the condition and administration of your
several offices, and especially into the manner in which you have sever-
ally and collectively performed the duties of the Board of Canvassers of
which you are ea officio members, for the purpose of determining whether
you have been guilty of gross neglect of duty in the matter of canvassing
the said returns; and
WHEREAs, You were severally cited and required to appear before me
at the executive office in the city of Lansing on the 15th day of February,
1894, at one o’clock in the afternoon, then and there to answer the follow-
ing specific charges, namely:
1. That you, the said John W. Jochim, Secretary of State; Joseph F.
Hambitzer, State Treasurer, and John G. Berry, Commissioner of the
State Land Office, who are the Board of State Canvassers under the con-
stitution and laws of this State, were each and every one of you guilty of
gross neglect of duty in this; that you did not, nor did either of you
examine the statements or returns of votes from the several counties filed
in the office of the Secretary of State showing the number of votes cast
for and against said proposed amendment to the constitution relative to
the salaries of State officers, by the electors in this State at the election in
April, 1893.
2. That you were severally guilty of gross neglect of duty in this; that
you did not, nor did either of you ascertain and determine the result of
such vote, nor perform with true and proper care the duties relating to
canvassing the statements and returns from the several counties of the
votes given at said election for and against said proposed amendment to
the constitution required of and imposed upon you, as members of said
Board of State Canvassers by the constitution and laws of this State.
3. That you were severally guilty of gross neglect of duty in this, that
you made and suffered to be made gross errors in the canvass of the state-
ments and returns filed in the office of the Secretary of State of the votes
given in the several counties at said election in April, 1893, for and
against said proposed amendment to the constitution by which it was
falsely made to appear that such proposed amendment had been approved
and ratified by a majority of the electors voting thereon; whereas, by a
true and correct canvass of the said statements and returns, the said pro-
posed amendment was defeated; and
WHEREAs, You and each of you did appear by your respective attorneys
and in person on the 15th day of February, 1894, before me, at the execu-
tive office in pursuance to said notice; and
WHEREAs, After a full hearing and investigation of said charges I find
the following charges have been proven, viz.:
1. That you, the said John W. Jochim, Secretary of State; Joseph F.
Hambitzer, State Treasurer, and John G. Berry, Commissioner of the
State Land Office, who are the Board of State Canvassers, under the con-
stitution and laws of this State, were each and every one of you guilty of
gross neglect of duty, in this that you did not, nor did either of you,
examine the statements or returns of votes from the several counties filed
in the office of the Secretary of State, showing the number of votes cast
for and against said proposed amendment to the constitution relative to
the salaries of State officers by the electors in this State at the election i
April, 1893. J
2. That you were severally guilty of gross neglect of duty in this; that
you did not, nor did either of you, ascertain and determine the result of
BOARD OF STATE CANVASSERS. 47
such vote, nor perform with due and proper care the duties relating to
canvassing the statements and returns from the several counties of the
votes given at such election for and against said proposed amendment to
the constitution required of and imposed upon you, as members of said
Board of State Canvassers by the constitution and laws of this State.
3. That you were severally guilty of gross neglect of duty in this; that
you made and suffered to be made gross errors in the canvass of the state-
ments and returns filed in the office of the Secreatry of State of the votes
given in the several counties at said election in April, 1893, for and
against said proposed amendment to the constitution, by which it was
falsely made to appear that such proposed amendment had been approved
and ratified by a majority of the electors voting thereon; whereas, by a
true and correct canvass of said statements and returns the said proposed
amendment was defeated; now
Therefore, by virtue of the authority vested in me by the constitution.
I, John T. Rich, Governor of the State of Michigan, do hereby remove
you, John W. Jochim, from your office of Secretary of State, and you,
Joseph F. Hambitzer, from your office of State Treasurer, and you, John
G. Berry, from your office of Commissioner of the State Land Office, for
gross neglect of duty as members of the Board of State Canvassers, and
said offices of Secretary of State, State Treasurer and Commissioner of the
State Land Office, are hereby declared vacant.
Given under my hand and the great seal of the State, at the capitol, in
Lansing, this 19th day of February, 1894,
[ SEAL ] JOHN T. RICH,
Governor.
By the Governor:
AUGUST W. LINDHOLM,
Deputy Secretary of State.”
Which said finding and order of removal was duly filed and a copy
thereof duly served on said John W. Jochim.
And the said Attorney General therefore saith that the said John W.
Jochim on the 19th day of February, A. D. 1894, was removed from the
office of Secretary of State of the State of Michigan, by said John T.
Rich, Governor of said State, for gross neglect of duty after being heard
on charges preferred against him, and that since said 19th day of Febru-
ary, 1894, said John W. Jochim has not been Secretary of State of the
State of Michigan, and has not been entitled to the rights, privileges and
emoluments, belonging to and pertaining to said office, and this the said
Attorney General is ready to verify:
Wherefore the said Attorney General prays judgment, and that the said
John W. Jochim may be convicted of the premises charged upon him in
said information, and may be excluded of and from the office of Secre-
tary of State of the State of Michigan.
ADOLPHUS A, ELLIS,
Attorney General of the State of Michigan.
CAHILL & OSTRANDER,
GEER & WILLIAMS,
Of Counsel.
Filed February 27, 1894.
48 REMOVAL PROCEEDINGS,
CONSTITUTIONAL AMENDMENT (ExHIBIT B).
The undersigned, Secretary of State, State Treasurer, and Commis-
sioner of the Land Office, constituted by law the Board of State Canvass-
ers, met at the office of the Secretary of State, in Lansing, Michigan, on
Tuesday, the sixteenth day of May, A. D. 1893, for the purpose of can-
vassing and ascertaining the votes given at the general election, holden in
said State of Michigan, on Monday, the third day of April, A. D. 1893,
for constitutional amendment, proceeded to examine the statements
received by the Secretary of State, and declared the following as the
result of their investigation:
Relative | Relative
to the to the
wº salaries of salaries of
Counties. the severall the severall Totals.
State State
officers— | officers—
Yes. No.
Alcona--------- * tº º ºs 158 93 251
Alger---------------------------------------------------------------------- 104 9 113
Allegan------------------------------------------------------------------- 789 810 1,599
Alpena ------------------------------------------------------------------- 417 120 537
Antrim ----------------------------------------------------------------- 217 189 406
Arenac ------------------------------------------------------------------ 216 101 317
Paraga ------------------------------ ------------------------------------ 148 8 156
Barry-------------------------------------------------------------------- 844 978 1,822
Bay----------------------------------------------------------------------- 2,623 819 2,942
Benzie--------------------------------------------------------------------- 192 118 310
Perrien ------------------------------------------------------------------ 1,454 676 2,130
Branch ------------------------------------------------------------------- 396 2,206 2,602
Calhoun ----------------------------------------------------------------- 1,421 1,447 2,868
a88 ----------------------------------------------------------------------- 406 814 1,220
Charlevoix --------------------------------------------------------------- 452 134 586
Cheboygan --------------------------------------------------------------- 396 269 665
Chippewa ---------------------------------------------------------------- 223 113 336
lare-------------------------------------------------------------------- 117 96 213
Clinton ------------------------------------------------------------------- 636 1,371 2,007
Crawford------ ------------------------------------------------------- 135 41 176
Pelta ------------------------------------------------------ 4 - - - - - - - - - - - - - - 481 213 694
Dickinson----------------------------------------------------------------- 321 57 378
*ton --------------------------------------------------------------------- 750 2,157 2,907
Emmet - ----- sº sº ºr sº sº as sº sº, º sº, sº e º sme º sº is sº sa es as an º ºs sº is ess m º a mº as sº as is sº me was sº * * * * * * * * * * * 223 97 320
Genesee ------------------------------------------------------------------ 918 1,213 2,131
Gladwin------------------------------------------------------------------ 184 59 243
Gogebic ------------------------------------------------------------------- 252 43 295
G'd Traverse-------------------------------------------------------------- 496 406 902
Gratiot ------------------------------------------------------------------ 598 1,667 2,265
Hillsdale------------------------------------------------------------------ 999 1,379 2,378
Houghton ----------------------------------------------------------------- 1,055 220 1,275
uron ----------------------------------------------------------------- -- 468 967 1,430
Ingham ------------------------------------------------------------------ 1,143 2,044 3,187
Ionia * * * * * * * * * * * = • * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 582 1,738 2,320
Iosco --------------------------------------------------------------------- 416 188 604
Iron ---------------------------------------------------------------------- 629 21 650
Isabella ---------------------------------------------------------------- 868 830 1,198
Isle Royal -----------------------------------------------------------------|-------- |-------- |------ -
Jackson.------------------------------------------------------------------ 1,346 2,221 3,567
Kalamazoo --------------------------------------------------------------- 1,199 1,220 2,419
Kalkaska ----------------------------------------------------------------- 196 168 864
Kent -------------------------- «s * * * * * s = s. sº º sº tº gº tº s is tº sº tº º º sº * * 4,788 4,612 9,400.
Keweenaw----------------------------------------------------------------- 16 5 21
° ---------------------------------------------------------------------- 58 74 127
Papeer-------------------------------------------------------------------- 669 1,239 1,908.
BOARD OF STATE CANVASSERS.
49

Relative | Relative
tº to the to the
• salaries of salaries of
Counties. the several|the severall Totals.
State State
officers— | officers—
Yes. No.
Leelanau ------------------------------------------------------------------ 165 101
Lenawee -----------------------------------------------------------------. 1,710 1,800 3,510
Livingston -------------------------------------------------------------- 493 1,370 1,863
tice -------------------------------------- - - - - - - 90 8 98
Mackinac ----------------------------------------------------------------- 66 15 81
Macomb - .-- - - - - - - * us - - - - ºr - - - tº º - - - - - - - - s = - - - - - - - tº º º- - - tº tº - - - s 497 851 1,348
Manistee ---------------- - - -e ss me - - * * *- - - as * - - - * * - - ºr s = - - ºr es -- * * * * - * * * - - º ºs 529 365 894
Manitou------------------------------------------------------------------ * !------------ 2
Marquette---------------------- - - - - - - - - - - - - * *- - - -º º – - - - - - - - - - - - - - 1,868 315 2,183
Mason ------------------------------------------------------------------- 463 636 1,099
Mecosta ------------------------------------------------------------------- 423 611 1,034
Mºnominee --------------------------------------------------------------- 408 106 514
101800 ------------------------------------------------------------------ 245 310 555
Missaukee---------------------------------------------------------------- 166 158 324
Monroe-------------------------------------------------------------------- 507 1,458 1,965
Montcalm ---------------------------------------------------------------- 765 1,461 2,226
Montmorency-------------------------------------------------------------- 30 71 101
Muskegon ---------------------------------------------------------------- 1,426 671 2,097
9Way80 ---------------------------------------------------------------- 284 334 618
Oa ------------------------------------------------------------------- 1,546 1,987 3,533
Oceana-------------------------------------------------------------------- 495 847 1,342
Ogemaw---- - - - - - s = - - - ºr e-- - - - - - - tº assº - - -s as * - - - tº º- - - - - - - - sº * - - - sº sm -- * * 170 129 299
Ontonagon --------------------------------------------------------------- 269 23 292
Osceola ------------------------------------------------------------------ 154 287 391
Oscoda ------------------------------------------------------------------- 57 42 99
Otsego ---- - - - gº • - e s are - * use s sº - m as ºs- - as ºs m - sº s m - ºne s se - “as ºs 191 72 263
Ottawa -------------------------------------------------------------------- 774 986 1,760
Presque Isle--------------------------------------------------------------- 51 68 119
Roscommon--------------------------------------------------------------- 78 10 83
Saginaw ------------------------------------------------------------------- 2,020 1,492 3,512
Sanilac ------------------------------------------------------------------- 792 918 1,710
Schoolcraft --------------------------------------------------------------- 367 70 437
Shiawassee ---------------------------- • * * * - - * * * - - ºr - - * * * - * * * * - - - sº - - - - - - - - sº 971 1,401 2,372
St. Clair------------------------------------------------------------------- 1,212 396 1,608
St. Joseph---------------------------------------------------------------- 561 1,497 2,058
Tuscola------------------------------------------------------------------- 524 1,075 1,599
Van Buren ---------------------------------------------------------------- 611 1,771 2,382
Washtenaw --------------------------------------------------------------- 905 2,254 3,159
Wayne--------------------------------------------------------------------- 12,468 3,459 15,927
Wexford --------------------------------------------------------------- 585 476 ,061
Totals ---------------------------------------------------------------- 64,422 62,601 127,023
The whole number of votes given for the amendment to section 1 of
article 9 of the constitution of this State relative to the salaries of the
several State officers as provided for by joint resolution No. 10 of the laws
of 1893, was 127,023 and they were given as follows:
Yes-–64,422. No-62,601.
We, the said Board of State Canvassers, do hereby find and determine
that said amendment has been approved and ratified by a majority of the
electors of the State of Michigan.
Witness our hands at Lansing this 16th day of May, A. D. 1893.
JOHN W. JOCHIM,
Secretary of State.
J. F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
*
Commissioner of the State Land Office.
*
50 REMOVAL PROCEEDINGS.
CONSTITUTIONAL AMENDMENT (Exhibit C).
The undersigned Secretary of State, State Treasurer and Commissioner
of the Land Office, constituted by law the Board of State Canvassers, met
at the office of the Secretary of State, in Lansing, Michigan, on Friday,
the nineteenth day of January, A. D. 1894, for the purpose of canvassing
and ascertaining the votes given at the general election, holden in said
State of Michigan on Monday, the third day of April, A. D. 1893, for
constitutional amendment, proceeded to examine the statements received
by the Secretary of State, and declared the following as the result of their
investigation:
Relative | Relative
§ . § .
* * Of SOVeral || O1. Seve
Counties. State State Totals.
officers— | officers—
Yes. No.
* * * * * * * * * * as sº * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * s = ºr ºs ºs ºr sº se sº as ºr * * = sº tº as sº me as as as sº. 158 -- 93 251
* * * * * * * * * * * * * * * * * * * * * * * * me as is º ºs º ºs as as * * * * * * * * * * * * * * = e ºs s = s.s. s. sº sº me as sm ºr sº a sm as a as as sºn s = 104 113
* * * * * * * * * * * * * * * = * * * * * * * = * * * * * * * * * * * * * * * * * * * * * * = * * = * * * * * = * * * * * * ~ * = sº ºn 698 1,285 1,983
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * sº * * * * * * * * * sº m s tº gº ºn a sº me sm 417 12 537
** * * * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = * * * * = * * * * * * * * * * * * * * * * * * * * * * * * 217 189 406
* * * * * * * * * * * * * * * * * * * * * * = * * * * * * * * * * * * * * * * * * * * * * * = s.s as as * * * * * * * * * * * * * * * = 183 277 410
sº ºr * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = s. 148 156
* as * * * * * * * * * * * * * * * * * * * * * * * * * *s sº * * * * * * * * * * * * * * * * * * as ºr sm º ºse as me = * * * * * * * * * * * * * sº wº. 394 1,653 2,047
* * * * = * * * * * * * * * * * * * * * * * * * = as tº sº, sºme eas is sº * * * * * * * * * * * = m, sº see me ºs º ºs ºr mºm se is as * * * * same = s. 2,351 43 2,788
* * * * * * * * * * * * * * * * * *s s = * * * * * * * * * * * * * * s we sº *s as * * * * * * sº me as as º ºs ºr me sº s = es s ºs as * * * * = * * * * 192 118 310
* * * * * * * * * * * * * * * * * * * * * * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = s. 1,083 945 2,028
* = * * * * * * * * * * * * * * = * * * * * * * * * * * * = s.s., sº º sm º ºs = * = * * * * * * * * * * * * * * * * * * * * * * * = as sº s sº 896 2,206 2,602
sº tº º sm * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = me ºn ºs º ºs ºn a s as ºs as sº as as sº sº ºr = * * * as sº me º sº, as as s 1,066 2,034 ,100
* * * * * * * * * * * * * = * * * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * = as me sº me s sº me sm as me = * * * = as as ºr 406 814 1,220
* * * * * * * * * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * = sº as ame * * * * * = * * * * * * * * * * * = as as 849 234 583
* * * * * * * * * * * * * * * * * * * * * * * * * * * * *s m sº as sº me ºn tº sº º sº tº s = s = * * * * * * * * * * *s sº sº ºne º sº sº sº sº as 896 269 665
* * * = s.s as sº * * * * * *m tº º 'º - sº s = * * * * * * * * * * * * * * * * * * * * * * * *s s m ame º sº e s as sº sºa º ºs ºm º ºs me as sº sº gº as 113 222 $35
* = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = m, sº as tº º 96 117 213
* * * * * * * * * * * * = * * * * * * * * * * * * * * * * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = * * * 421 1,761 2,182
* * * * * * * * * * * * * * * * *s ºne º ºs ss as ºs sº sº as * = * * gº ºs º ºs sº sº º ºs 135 41 176
* = * * * * * * * * * * * * = * * * * * = ** as sº sº sº; ºr, as me tº as ºne ºr as sº sº me = * * * * * = as see s as as as s is sº as * * * * * * * * * * * = sº sº, sº s 481 213 694
* = * * * * * * * * * * * * * * * * * * * * * * * * * * * * = * * = * * * * * * * * * * * * * * * * * * * * * * * * = * = * = = 321 5 378
* * * * * * = * * * * * * * * * * = * * * * * * * * * * * = sº, sº sº sº sº, s = ess me as sº * * * * * * * * * * * * * * * * * * * * * * * * * s = = 750 2,157 2,907
* * * * * * * * * * * * * * * * * * * * * * * * * * * * = m, sº as * * * * = s. sº º ºs º as s sº as as ºn sº me is as ºs s = e º ºr s = ºs s = sº es as ºn 223 97 320
* = = * * * * * * * * * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * 742 1,568 2,310
* * * * = ** = * * * * * * * * * = s. s = * * * * * * * * * * * * * * * * * * * * * = * * * * * * * * * * * * * sº sº, sº me tº 184 59 . 243
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * s sº º ºs º is ºs º º sº sº e ºs ºr s = sº as sº me s as * * * * * = s. m = º ºs = 252 43 295
* * * * * * * * * * * * * * * * * * * as me a sº e º ºs tº me as s as º ºs e º mº m sº * * * * * * * = 4 e º me ºn sº * * * * * * = 496 406 902
* * * * * * * * * * * * * * = * * * * * * * * * * * * * * * * * * * sº as sº e s as tº ºr as sº ºs º ºn sº sº as ºs ºs ºs s sº s sº is sº º sºme as sº * * sº sº. 598 1,667 2,265
* * * * * * * * * * * * ~ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * sº sº, º sº sº, sº º sº sº, 645 2,822 2,977
* * * = * * * * * * * * * * * * * * * * * * * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = * * * * * 1,055 220 1,275
* * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * sº sº, º am as as sº sº gº se ºs ºs º ºs º ºs et s = * * * * 463 967 1,430
* * * * * * * * * * * * * * * = = * * * * * * * * * * = * = * * * * * * * * * * * as sº se sº ºr me = m as me m ºr was sº sº sºme sº as as ºs ºr sº as ºr ºs m. 1,143 2,044 3,187
* * * * * * * * * = = * * * * * * * * * * * = * * * * * * = - - - - - - - - - - - = * * * * * = = * * * * * * * * = = = * * * = * = = * = 582 1,738 2,320
* * * * * * * * * * * = ** = ** = * * * * * * * * * * * * * = as * * = - - - sº is sº sº, e = * = * ~ * = ** = as a - a. º. a. m. me • * * * * * * = e = 416 188 604
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = * * = * * * * * * * * = * * * = &m as sº sº me as sº tº sº se - ºr se - © 269 21 290
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = * * * * * * *s sº sº me ºr am as sº s = sº ºn as * * * as as sº ºr * 368 830 1,198
* * * * * * * * * * * = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = * * * * * * * * = a, sº as sº as tº me me as sm º ºss a 1,346 2,221 3,567
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * s as º ºs º ºs ºs sº ºn º ºs º gº as as is sº as me sº º tº sº m sº *s ºr sº 1,115 1,855 2,970
* * * * * * * * * * * * * * * * * * * * = * * * * * * * * * * * * *s ºr ºs º gº tº sº º sº º sº sº º sº me ºr ºs º ºs ºs s sº tº gº gº º ºs as sº 196 168 364
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = sm sº º sº ºr sm sº º s sº me sº was sº sº, º as as sº s º gº sm as º is sº sº ºm ess 4,788 4,612 9,400
* * * * * * * * * * * * * * * * * = -s. * * * * * * *= * * * * * * = * * * * * * = gº tº s mºs as sº sº as sº º sº as sm º ºs º ºs º ºs º º sº * * * 16 5 21
* * * * * * * * * * * * s = º sº * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = s. s = sº º sº º sm as º a sº sº me e º sº 53 74 127
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * = as * * * * * * * * * * * * * * = & E as ºs s m sm is sº me sº me s 552 1,664 2,216
= *s sº sm = me - as ºs eme m = * * * * * * * * * * * * * * * * * * * * * * * * = 165 101 266
* gº ºn was º ºs ºs as as ºr ºr * * * * * * * = * m = * * * * * * * * * * sº tº ºr sº 1,473 2,365 8,838
* * * * * * * * * = * * = * * * * * * * * * * * * * * * * * * * = m, sº º me = * * * * * * * * * * * * = m ms º sº see e s sº sº me me s 412 1,503 1,915
* * * sº m is º ºs º º ºs º ºs º as sº sº tº as s sº sº º ºs º ºs º ºs ss º ºs º º 90 8 98
s = * = m, me as tº as ºn as ºn sº * * * * * * * * * * * * * * * * * * & sº ºf Sº 66 15 81
* * * * * = * * * * = s. sº * = * * * * * * * * * * * * * * * = * * * * = * * * * * * * *m me sm as are es s = e ºss sm am sº as is ºs ºn as me s = * * 497 851 1,848
ºne mº m s m = sm is s sº ºn s = * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *s as me tº ºs e = m, m = as sm ºm º ºs ent s ºr as me s sº sº ºr s º 365 sº

BOARD OF STATE CANVASSERS. 51
Relative | Relative
ºilº.
ies. Of 80WO Of 88 Wor Totals.
Counties State State
officers— I officers—
Yes. O.
Marquette----------------------------------------------------------------- 1,868 315 2,183
88On -------------- * * * * * * * * * * * * as mº, º sº sº, sº ºr s sº sº as as ºn as * sm º º ºs º sº sº sº * * * * * * * * * * * * * * * * * 463 636 y
Mecosta ------------------------------------------------------------------ 423 611 1,034
Menominee --------------------------------------------------------------- 408 106
Midland------------------------------------------------------------------ 245 310 555
Missaukee---------------------------------------------------------------- 166 158 324
507 1,458 1,965
765 1,461 2,226
30 71 101
1,426 671 2,097
591 825
982 2,080 3,062
495 847 1,342
170 129 2
169 23 192
154 287 391
57 42
72 191 263
774 986. 1,760
51 68 119
10 83
2,020 1,492 3,512
7 1,383 1,850
167 70 23
786 1,700 2,486
1,212 936 2,1
479 1,909 2,388
524 1,075 1,5
611 1,771 2,
2,254 3,159
12,468 3,459 15,927
5 476 1,
Totals---------------------------------------------------------------- 59,317 70,772 130,089
Pursuant to a command of the supreme court made on the 18th day of
January, A. D. 1894, directed and delivered to the State Board of Canvas-
sers, commanding them to convene, as a Board of State Canvassers, and
recanvass the votes cast for and against the four amendments to the
constitution of the State of Michigan, cast at the April election in 1893,
we have this day met and made such recanvass and hereby declare the
following to be the result of such recanvass.
The whole number of votes given for the amendment to section 1 of
article 9 of the constitution of this State relative to the salaries of the
several State officers, as provided for by joint resolution No. 10 of the laws
of 1893 was 130,089 and they were given as follows:
Yes—59,317. No–70,772.
We, the said Board of State Canvassers, do hereby find and determine
that said amendment has not been approved nor ratified by a majority of
the electors of the State of Michigan.
Witness our hands at Lansing this 19th day of January, A. D. 1894.
JOHN W. JOCHIM,
Secretary of State.
JOSEPH F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
Commissioner of the State Land Office.
* e

52
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54 REMOVAL PROCEEDINGS.
AMENDMENTS TO THE CONSTITUTION.
The whole number of votes given for the amendment of section nine of
article fourteen of the constitution of this State relative to the works of
internal improvement, as provided for by joint resolution number nine of
the laws of 1893, was one hundred and twenty-five thousand six hundred
and eighty-eight, and they were given as follows: Yes, seventy thousand
five hundred and ninety-seven. No, fifty-five thousand and ninety-one.
We, the said Board of State Canvassers, do hereby find and determine
that said amendment has been approved and ratified by a majority of the
electors of the State of Michigan.
Witness our hands at Lansing this sixteenth day of May, A. D. 1893.
JOHN W. JOCHIM,
Secretary of State.
J. F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
Commissioner of State Land Office.
The whole number of votes given for the amendment to be known as
section forty-nine of article four of the constitution of this State relative
to the power of the legislature to enact laws for the creation of county and
township boards of highway commissioners as provided for by joint reso-
lution number eleven of the laws of 1893, was one hundred and twenty-
eight thousand five hundred and one, and they were given as follows:
Yes, sixty-eight thousand four hundred and eighty-six. No, sixty thou-
Sand and fifteen.
We, the said Board of State Canvassers, do hereby find and determine
that said amendment has been approved and ratified by a majority of the
electors of the State of Michigan.
Witness our hands at Lansing this sixteenth day of May, A. D. 1893.
JOHN W. JOCHIM,
Secretary of State.
J. F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
Commissioner of State Land Office.
The whole number of votes given for the amendment to section one of
article nine of the constitution of this State relative to the salaries of the
several State officers, as provided by joint resolution number ten of the
laws of 1893, was one hundred and twenty-seven thousand and twenty-
three, and they were given as follows: Yes, sixty-four thousand four hun-
dred and twenty-two. No, sixty-two thousand six hundred and one.
BOARD OF STATE CANVASSERS. 55
We, the said Board of State Canvassers, do hereby find and determine
that said amendment has been approved and ratified by a majority of the
electors of the State of Michigan.
Witness our hands at Lansing, this sixteenth day of May, A. D. 1893.
JOHN W. JOCHIM,
Secretary of State.
J. F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
Commissioner of State Land Office.
The whole number of votes given for the amendment to section eight of
article six of the constitution of this State relative to the jurisdiction of
circuit courts, as provided by joint resolution number twelve of the laws
of 1893, was one hundred and thirteen thousand seven hundred and
eleven, and they were given as follows: Yes, sixty thousand two hundred
and nineteen. No, fifty-three thousand four hundred and ninety-two.
We, the said Board of State Canvassers, do hereby find and determine
that said amendment has been approved and ratified by a majority of the
electors of the State of Michigan.
Witness our hands at Lansing, this sixteenth day of May, A. D. 1893.
JOHN W. JOCHIM,
Secretary of State.
J. F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
Commissioner of State Land Office.
Result of the recanvass of the four constitutional amendments, voted on
at the April election in 1893, made by command of the supreme court.
Pursuant to a command of the supreme court, made on the 18th day of
January, A. D. 1894, directed and delivered to the Board of State Can-
vassers, commanding them to convene and recanvass the votes cast for and
against the four amendments to the constitution of the State of Mich-
igan, cast at the April election in 1893, we have this day met and made
such recanvass, and hereby declare the following to be the result:
The whole number of votes given for the amendment to section nine of
article fourteen of the constitution of this State relative to the works of
internal improvement, as provided for by joint resolution number nine of
the laws of 1893, was one hundred and twenty-five thousand two hundred
and twenty-one, and they were given as follows: Yes, seventy-two thou-
sand seven hundred and forty-five. No, fifty-two thousand four hundred
and seventy-six.
Therefore, we, the said Board of State Canvassers, do hereby find and
determine that said amendment has been approved and ratified by a
majority of the electors of the State of Michigan voting thereon at said
election.
56 REMOVAL PROCEEDINGS,
Witness our hands at Lansing this nineteenth day of January, A. D.
1894
JOHN W. JOCHIM,
Secretary of State.
JOSEPH F. HAMBITZER,
State Treasurer.
JOHN G. BERRY, e
Commissioner of State Land Office.
The whole number of votes given for the amendment to be known as
section forty-nine of article four of the constitution of this State relative
to the power of the legislature to enact laws for the creation of county and
township boards of highway commissioners as provided for by joint reso-
lution number eleven of the laws of 1893, was one hundred and twenty-
eight thousand nine hundred and seventy-two, and they were given as
follows: Yes, sixty-nine thousand and fifty; no, fifty nine thousand nine
hundred and twenty-one.
Therefore, we, the said Board of State Canvassers, do hereby find and
determine that said amendment has been approved and ratified by a
. of the electors of the State of Michigan, voting thereon at said
election.
Witness our hands at Lansing this nineteenth day of January, A. D.
1894,
JOHN W. JOCHIM,
Secretary of State.
JOSEPH F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
Commissioner of State Land Office.
The whole number of votes given for the amendment to section eight
of article six of the constitution of this State relative to the jurisdiction
of circuit courts, as provided by joint resolution number twelve of the laws
of 1893, was one hundred and ten thousand, eight hundred and twenty,
and they were given as follows: Yes, sixty two thousand and twenty-
three. No, forty-eight thousand seven hundred and ninety-seven.
Therefore we, the said Board of State Canvassers, do hereby find and
determine that said amendment has been approved and ratified by a
. of the electors of the State of Michigan, voting thereon at said
election.
Witness our hands at Lansing this nineteenth day of January, A. D.
1894,
JOHN W. JOCHIM,
Secretary of State.
JOSEPH F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
Commissioner of State Land Office.
BOARD OF STATE CANVASSERS. 57
The whole number of the votes given for the amendment to section one
of article nine of the constitution of this State relative to the salaries of
the several State officers, as provided by joint resolution number ten of
the laws of 1893, was one hundred and thirty thousand and eighty-nine,
and they were given as follows: Yes, fifty-nine thousand three hundred
and seventeen. No, seventy thousand seven hundred and seventy-two.
Therefore, we, the said Board of State Canvassers, do hereby find and
determine that said amendment has not been approved nor ratified by a
. of the electors of the State of Michigan, voting thereon at said
election.
ºther our hands at Lansing this nineteenth day of January, A. D.
1894, 0.
JOHN W. JOCHIM,
Secretary of State.
JOSEPH F. HAMBITZER,
State Treasurer.
JOHN G. BERRY,
Commissioner of State Land Office.
DEMURRER TO REPLICATION.
STATE OF MICHIGAN, SUPREME CourT.
ADOLPH.Us A. ELLIS, Attorney General,
(US.
JoHN W. JocBIM, Respondent.
And now comes the said respondent, John W. Jochim, by Smith, Lee &
Day, his attorneys, and as to the plea of the said Attorney General pleaded
in reply to the plea of him the said defendant, says, that the said replica-
tion of the said Attorney General, is not sufficient in law, for the follow-
ing reasons:
1. The Governor sitting as a high court of impeachment has no juris-
diction over the respondent for gross neglect of duty or for corrupt con-
duct in office, or for any other misfeasance or malfeasance as a member of
the Board of State Canvassers, the power and jurisdiction of the Governor
under section 8 of article 12 of the constitution, being limited to the
§: of respondent directly appertaining to the office of Secretary of
tate.
2. The only court of tribunal having jurisdiction over the Secretary of
State, the State Treasurer, and Commissioner of the State Land Office to
remove them from office for official misconduct in the performance of their
duties as members of the Board of State Canvassers, is the State Senate
8
58 REMOVAL PROCEEDINGS.
sitting for the trial of an impeachment directed by the house of represent-
atives for corrupt conduct in office or for crimes and misdemeanors under
sections 1, 2 and 3, of article 12 of the constitution.
3. The Governor has no power or jurisdiction to remove respondent
from his office of Secretary of State for the causes set forth in the charges
so preferred by him, because it is not alleged therein that the neglect of
respondent was willful or intentional, or for any improper, unlawful or
culpable purpose.
4. The Governor has no power or jurisdiction to enter an order or
judgment removing the respondent from his office of Secretary of State,
because no evidence was introduced before, or submitted to the Governor,
tending to show that respondent had been guilty of any corrupt or willful
or otherwise criminal neglect of duty, or of any such gross neglect of
duty, as is contemplated and required by section 8 of article 12 of the con-
stitution; but on the contrary it expressly and affirmatively appears from
the evidence upon which the Governor acted in making his said order or
judgment of removal, that respondent and his associates signed the said
tabulated statement and false canvass of votes prepared by their clerks,
relying upon “what their clerks stated to them about its being correct,
and believing it to be so.”
5. Section 8 of article 12 of the constitution of this State has been
utterly void and of no force whatever, since the adoption of the fourteenth
amendment of the constitution of the United States, because it is in con-
flict with the provisions of said amendment that no state shall “deprive
any person of life, liberty or property without due process of law, or deny
to any person within its jurisdiction the equal protection of the laws.”
(1.) Under the constitution of Michigan a judgment of removal from
office rendered by the senate on an impeãchment directed by the house of
representatives, or by the Governor under section 8 of article 12, is equiv-
alent to a conviction of an infamous crime, with the disgrace and infamy,
incident thereto and resulting therefrom, of the person convicted, his
children and descendants,
(2.) Section 8, article 12 of the constitution of Michigan does not pro-
vide for an impartial, disinterested or competent tribunal for the deter-
mination of the guilt or innocence of the accused officer for the reason
that the Governor is authorized to make the preliminary investigation, to
formulate, make and prefer the charges, to conduct and control the prose-
cution, and to act as the prosecutor or prosecuting officer, and then to take
the place of court and jury, in the decision of the cause and the rendition
of judgment.
(3.) Except during the existence in England of the court of star
chamber, abolished in 1641, such a thing as an impeachment or criminal
proceeding in which the accuser or prosecutor has the power to deter-
mine the guilt or innocence of the accused has been unknown in English
or American law, and such a judicature, being necessarily inquisitorial,
and not accusatory, cannot constitutionally exist in these United States,
or in any one of them.
6. The motion to dismiss submitted to the Governor should have been
granted by him for the reasons therein stated, and said reasons are here
again relied upon as special causes of demurrer to the said replication of
the Attorney General.
7. The 8th section of article 12 of the , constitution is of no force or
effect because the record of the whole number of votes given for and the
BOARD OF STATE CANVASSERS. 59.
whole number of votes given against the said section as an amendment to
the constitution, at the general election in November, 1862, shows that no
returns were received from over half of the counties of the State, many of
them being among the most populous counties, and it does not appear
from said record or any record in the office of the Secretary of State, that
a special messenger was sent to obtain the returns from the missing coun-
ties as required by the joint resolution submitting said amendment to the
people, and section 92 of the compiled laws of 1857.
8. For other reasons manifest on the face thereof the said order of
removal is illegal, unconstitutional and void.
Wherefore this respondent prays judgment, etc.
SMITH, LEE & DAY,
JOHN ATKINSON, Attorneys for Respondent.
SYBRANT WESSELIUS,
FRED A. BAKER,
Of Counsel.
Filed, March 2, 1894.
INFORMATION.
Attorney General vs. Hambitzer.
STATE OF MICHIGAN.—IN THE SUPREME COURT.
County of Ingham.—SS.
Adolphus A. Ellis, Attorney General of the State of Michigan, who
sues for the people of the State of Michigan, in their behalf comes here
to the supreme court of said State, on the 21st day of February, 1894, and
upon his own relation, according to the form of the statute in such case
made and provided, and gives the court now here to understand and be
informed that Joseph F. Hambitzer, of Hancock, in the county of
Houghton, for the space of two days and upwards now last past, has held,
used and exercised and still does hold, use and exercise the office of State
Treasurer in and for the State of Michigan, without any appointment,
warrant or authority whatsoever therefor. Which said office of State
Treasurer, he the said Joseph F. Hambitzer, during all the time aforesaid,
has usurped, intruded into and unlawfully held and exercised, and still
does usurp, intrude into and unlawfully hold and exercise, without any
appointment, warrant or authority of law whatsoever in contempt of the
people of the State of Michigan and to their great damage and prejudice.
Whereupon the Attorney General prays the advice of the court here in
the premises, and for due process of law against the said Joseph F. Ham-
bitzer in their behalf to be made to answer to the said people by what
warrant he claims to hold, use, exercise and enjoy the said office of State
Treasurer of said State of Michigan.
ADOLPHUS A. ELLIS,
CAHILL & OSTRANDER, Attorney General.
GEER & WILLIAMS,
Of Counsel.
Filed February 21, 1894.
160 REMOVAL PROCEEDINGS.
PLEA.
STATE OF MICHIGAN.—SUPREME COURT.
ADOLPHUS A. ELLIS, Attorney General,
Q)S.
Joseph F. HAMBITZER, Defendant.
And now, to wit, on the 24th day of February, A. D. 1894, before
said court at Lansing, comes the said defendant by Smith, Lee & Day,
his attorneys, and having heard the information on file in this cause
against him read, he complains that under color of the premises in the
said information contained he is greatly vexed and disquieted, and that by
no means justly; because, protesting that the said information and the
matters therein contained are not sufficient in law, and that he need not,
nor is he obliged by law of the land to answer thereto, yet, for plea in this
behalf, the defendant says that he does not apprehend that the said Attor-
ney General will or ought further to impeach or implead him by reason of
the premises in the said information contained, because he says that true
it is that within this State there has been and now is a public office of
great trust and preeminence, touching the administration of the affairs of
this State, known as the office of State Treasurer, the same being an office
of profit to the incumbent thereof, as by the said information is above
supposed.
And the defendant further says, that the people of this State under and
by virtue of the constitution and laws have held, had and enjoyed, and
still have, hold and enjoy the right, privilege and authority of electing, by
the qualified electors of the State a State Treasurer at each general elec-
tion had and held in this State that is to say, on the Tuesday after the
first Monday in the month of November in the year of our Lord one thou-
sand eight hundred and fifty-two, and on the like day and month in every
second year thereafter, for the term of two years, commencing on the first
day of January of the year next following such election.
And the defendant further says, that on, to wit, the eighth day of
November, A. D. 1892, the same being the Tuesday after the first Monday
in the month of November of that year, a general election was duly had
and held in this State, and at such election, upon due notice, and pursuant
to the statute in such case made and provided, the qualified electors of the
State voted for the following named persons for State Treasurer, to wit,
the defendant, Joseph F. Hambitzer, and a number of other persons, and
of all of the persons for whom the qualified electors voted at said election
for State Treasurer, the said defendant received the greatest number of
votes, and was then and there duly elected to the office aforesaid.
And the defendant further says, that afterwards, to wit, on the first day
of January, A. D. 1893, that being the first day of the term of office for
which as aforesaid, he was elected, having previously taken the oath of
office, and given the official bond required by law, he, the defendant,
BOARD OF STATE CANVASSERS. 61 °
entered into said office, and the discharge of the duties thereof, and from
thence hitherto has held and used, and still does hold and use the said
office, with the rights, privileges and emoluments thereunto belonging or
appertaining, by virtue of said election, as it was and is lawful and proper
for him to do; without this, that the defendant, the said office, rights,
privileges and emolument in the said information above mentioned, or any
of them has usurped and did usurp, etc., in manner and form as by the
said information is above alleged against him.
All which matters and things, this defendant is ready to verify and
prove, as the court shall award.
Wherefore he prays judgment, and that the said office, etc., by him
claimed in manner aforesaid, may be allowed and adjudged to him, and
that he may be dismissed and discharged by the court here, of and from
the premises above charged upon him.
SMITH, LEE & DAY,
FRED A. BAKER, Attorneys for Defendant.
Of Counsel.
Filed February 23, 1894.
STIPULATION.
STATE OF MICHIGAN.—IN THE SUPREME COURT.
ADOLPHUS A. ELLIS, Attorney General,
(US,
*
JOSEPH F. HAMBITZER.
Information in the nature of a writ of quo warranto.
In this cause, it is stipulated and agreed by and between the Attorney
General, for and in behalf of the people of the State of Michigan, and
Joseph F. Hambitzer, respondent, that said cause stands in all respects,
in this court, upon the same merits and issue framed and submitted, in
the case of Adolphus A. Ellis, Attorney General, etc., against John W.
Jochim, respondent, heretofore argued and submitted to the court, and
that this cause and the rights of all parties therein shall abide the deci-
sion, result and order of this court, in the said case of Adolphus A. Ellis,
Attorney General, etc., against John W. Jochim, respondent, and that
said court file and enter in this cause the same order, result and deter-
mination as shall be filed and entered in the said cause of Adolphus A
Ellis, Attorney General, etc., against John W. Jochim.
SMITH, LEE & DAY,
Attorneys for Respondent,
GEER & WILLIAMS,
CAHILL & OSTRANDER.
A. A. ELLIS,
Filed March 17, 1894, Attorney General.
62 REMOVAL PROCEEDINGS.
INFORMATION.
Attorney General vs. Berry.
STATE OF MICHIGAN.—IN THE SUPREME COURT.
County of Ingham.—ss.
Adolphus A. Ellis, Attorney General of the State of Michigan, who
sues for the people of the State of Michigan, in their behalf, comes here
to the supreme court of said State, on the 21st day of February, 1894, and
upon his own relation, according to the form of the statute in such case
made and provided and gives the court now here to understand and be
informed that John G. Berry, of Vanderbilt, in the county of Otsego, for
the space of two days and upwards now last past, has held, used and exer-
cised and does still hold, use and exercise the office of Commissioner of
the State Land Office in and for the State of Michigan, without any
appointment, warrant or authority whatsoever therefor. Which said office
of Commissioner of the State Land Office, he the said John G. Berry,
during all the time aforesaid, has usurped, intruded into and unlawfully
held and exercised, and still does usurp, intrude into and unlawfully hold
and exercise, without any appointment, warrant or authority of law what-
soever in contempt of the people of the State of Michigan and to their
great damage and prejudice.
Thereupon the Attorney General prays the advice of the court here in
the premises, and for due process of law against the said John G. Berry
in their behalf to be made to answer to the said people by what warrant
he claims to hold, use, exercise and enjoy the said office of Commissioner
of the State Land Office of said State of Michigan. A.
ADOLPHUS A. ELLIS,
CAHILL & OSTRANDER, Attorney General.
GEER & WILLIAMS,
Of Counsel.
Filed February 21, 1894.
PLEA.
STATE OF MICHIGAN.—SUPREME COURT.

ADOLPHUs A. ELLIS, Attorney General,
Q)S.
JoBN G. BERRY, Defendant.
And now, to wit, on the 24th day of February, A. D, 1894, before said
court at Lansing, comes the said defendant by Smith, Lee & Day, his
attorneys, and having heard the information on file in this cause against
BOARD OF STATE CANVASSERS. 63
him read, he complains that under color of the premises in the said
information contained, he is greatly vexed and disquieted, and that by no
means justly; because, protesting that the said information and the mat-
ters therein contained are not sufficient in law, and that he need not, nor
is he obliged by law of the land to answer thereto, yet, for plea in this
behalf, the defendant says that he does not apprehend that the said Attor-
ney General will or ought further to impeach or implead him by reason
of the premises in the said information contained, because he says that
true it is that within this State there has been and now is a public office
of great trust and preeminence, touching the administration of the affairs
of this State, known as the office of Commissioner of the State Land
Office, the same being an office of profit to the incumbent thereof, as by
the said information is above supposed.
And the defendant further says, that the people of this State under and
by virtue of the constitution and laws have held, had and enjoyed, and
still have, hold and enjoy, the right, privilege and authority of electing,
by the qualified electors of the State a Commissioner of the State Land
Office at each general election had and held in this State, that is to say,
on the Tuesday after the first Monday in the month of November in the
year of our Lord one thousand eight hundred and fifty-two and on the like
day and month in every second year thereafter for the term of two years
ºins on the first day of January of the year next following such
election.
And the defendant further says that on, to wit, the 8th day of Novem-
ber A. D. 1892, the same being the Tuesday after the first Monday in the
month of November of that year, a general election was duly had and held
in this State, and at such election, upon due notice, and pursuant to the
statute in such case made and provided, the qualified electors of the State
voted for the following named persons for Commissioner of the State
Land Office, to wit, the defendant, John G. Berry, and a number of other
persons, and of all of the persons for whom the qualified electors voted at
said election for Commissioner of the State Land Office the said defendant
received the greatest number of votes, and was then and there duly elected
to the office aforesaid.
And the defendant further says, that afterwards, to wit, on the 1st day
of January, A. D. 1893, that being the first day of the term of office for
which as aforesaid, he was elected, having previously taken the oath of
office, and given the official bond required by law, he, the defendant,
entered into said office, and the discharge of the duties thereof, and from
thence hitherto has held and used, and still does hold and use the said
office, with the rights, privileges and emoluments thereunto belonging or
appertaining, by virtue of said election, as it was and is lawful and proper
for him to do; without this, that the defendant, the said office, rights,
privileges and emoluments in the said information above mentioned, or
any of them, has usurped and did usurp, etc., in manner and form as by
the said information is above alleged against him.
All which matters and things, this defendant is ready to verify and
prove, as the court shall award.
Wherefore he prays judgment, and that the said office, etc., by him
claimed in manner aforesaid, may be allowed and adjudged to him, and
64 REMOVAL PROCEEDINGS. |
that he may be dismissed and discharged by the court here, of and from
the premises above charged upon him.
SMITH, LEE & DAY,
FRED. A. BAKER, Attorneys for Defendant.
SYBRANT WESSELIUS,
Of Counsel.
Filed February 23, 1894.
STIPULATION.
STATE OF MICHIGAN.—IN THE SUPREME COURT.

ADOLPHUS A. ELLIS, Attorney General,
Q}S.
JoHN G. BERRY.
Information in the nature of a writ of quo warranto.
In this cause it is stipulated and agreed by and between the Attorney
General, in behalf of the people of the State of Michigan, and John G.
Berry, respondent, that this cause stands in all respects in this court,
upon the same merits and issue framed and submitted, in the case of
Adolphus A. Ellis, Attorney General, etc., against John W. Jochim,
respondent, heretofore argued and submitted to the court, and that this
cause and the rights of all parties therein shall abide the decision, result
and order of this court, in the said cause of Adolphus A. Ellis, Attorney
General, etc., against John W. Jochim, respondent, and that said court
file and enter in this cause the same order, result and determination as:
shall be filed and entered in the said cause of Adolphus A. Ellis, Attorney
General, etc., against John W. Jochim.
SMITH, LEE & DAY,
Attorneys for Respondent.
GEER & WILLIAMS,
CAEIILL & OSTRANDER.
A. A. ELLIS,
Attorney General.
Filed March 17, 1894.
Briefs were submitted by both parties, and the case was argued before,
the supreme court on March 6, 1894.
BOARD OF STATE CANVASSERS. 65
BRIEF OF GEER & WILLIAMS, OF COUNSEL FOR RELATOR.
The claim made that the Governor cannot remove respondent for gross
nelgect of duty as a member of the Board of State Canvassers is fallacious
because it erroneously assumes that he is not performing duties “directly
pertaining to the office of Secretary of State’’ when he is acting as a mem-
ber of the Board of State Canvassers. Any duty which the constitution
and laws of the State provide shall be performed by the Secretary of State
are duties “directly pertaining to the office of Secretary of State.” It
makes no difference whether it is something to be done by the Secretary
of State alone, or something to be done by him, together with other State
officers. Anything which the Secretary of State is required to do,
because he is Secretary of State, is a duty “pertaining to the office of
Secretary of State.”
II.
The construction which respondent’s counsel put upon article 12, sec-
tion 8, of the constitution is too narrow. The object of this amendment
was to provide a means for removing a public officer, who was not properly
discharging the duties of his office, when the legislature was not in ses-
sion. If it had been intended that the power should only be exercised in
case of willful or corrupt acts, it would have been easy to omit, “for gross
neglect of duty.” The term “gross neglect of duty '' implies neither a
willful nor corrupt act. If it were either of these, it would be something
more than gross neglect of duty. It seems idle, therefore, to argue that
the term, gross neglect of duty, was intended to cover willful or corrupt
acts only, when in the same connection the constitution provides for
removal for “corrupt conduct in office” in express terms.
Counsel for respondent in the hearing before the Governor cited, State
vs. Harding, 55 N. W. Rep., p. 774, a case decided by the supreme court
of Nebraska, and insisted that the question involved here was there
decided in respondents’ favor. A careful examination of that case will,
we think, disclose that it does not sustain respondents’ contention at all.
In that case, the respondents were ea officio members of the Board of
Public Lands and Buildings, and it was alleged that they were guilty of
improperly allowing and auditing claims against the State, growing out of
the erection of certain public buildings. Section 5, article 5, of the con-
stitution of Nebraska provides, “All civil officers of this state shall be
liable to impeachment for any misdemeanor in office.” It will be observed
that the term used is, misdemeanor in office, which we apprehend is a
somewhat stronger term than gross neglect of duty, but this distinction is
not particularly relied on here. Mr. Justice Post, who wrote the control-
ling opinion in the Nebraska case, reached the conclusion that the
respondents were acting judicially in allowing and auditing the account
and then held that, as they were acting judicially, they were not liable to
removal unless they acted wilfully or corruptly. If he was right in the
conclusion that they were acting judicially, the case was properly decided,
under the well established rule that judicial officers are only liable for
their willful or corrupt acts.
9
66 REMOVAL PROCEEDINGS,
Chief Justice Maxweli, who wrote a very able dissenting opinion,
reached the conclusion that they were not acting judicially but ministe-
rially, and that their conduct in office was such that they should have been
removed. The Nebraska case holds, therefore, in effect, that where
officers are acting judicially, they can be removed only for their wilful or
corrupt acts, but when acting ministerially, they can be removed for gross
neglect. This then is the distinction between that case and the one at
bar. The Board of State Canvassers were not acting judicially, but minis-
terially, and respondent cannot invoke that rule, which makes judicial
officers liable only for wilful or corrupt acts. They are liable to removal
for gross neglect of duty. That the Board of State Canvassers do act
ministerially in canvassing the returns, see
May vs. Board of Canvassers, 94 Mich., 512.
Andrews vs. Judge of Probate, 74 Mich., 285.
Call vs. Board of Canvassers, 83 Mich., 371.
Roemer vs. Board of Canvassers, 90 Mich., 27.
Luce vs. Mayhew, 13 Gray, 83.
Clark vs. Board, 126 Mass., 284.
III.
The claim of counsel that the fourteenth amendment to the constitution
of the United States nullifies section 8, article 2, of the State constitution
is not tenable. It assumes that life, liberty or property is involved and
that the hearing provided for before the Governor is not “due process of
law.” Both of these assumptions are erroneous. The incumbent of a
public office has no property right in, or title to the office.
State vs. Hawkins, 5 N. E. Rep., 228, and cases cited.
In Donahue vs. the county of Will, 100 Ill., 94, counsel for Donahue,
who was removed from the office of sheriff by the board of supervisors,
contended that the act of the legislature conferring the power of removal
on the board of supervisors was unconstitutional, as it deprived him of
property without due process of law. Walker, J., at page 103 says:
“We are referred to the second section of the bill of rights, which
declares, that “no person shall be deprived of life, liberty or property,
without due process of law,” as controlling this question; that under this
provision appellant could only be deprived of his title to or property in
the office by a trial and judgment in a court of law; that no other trial
before any other tribunal would be by due process of law, and that the
general assembly had no constitutional power to provide any other mode
of trial. It is impossible to conceive how, under our form of government,
a person can own or have a title to a governmental office. Offices are
created for the administration of public affairs. When a person is
inducted into an office, he thereby becomes empowered to exercise its
powers and perform its duties, not for his, but for the public benefit. It
BoARD OF STATE CANVASSERs. 67
would be a misnomer and a perversion of terms to say that an incumbent
owned an office, or had any title to it.”
The term, “due process of law,” is not confined to those proceedings
which are had in the courts. Judge Cooley in Weimer vs. Bunbury, 30
Mich., at page 21], says: “There is nothing in these words, however,
that necessarily implies that due process of law must be judicial process.
Much of the process by means of which the government is carried on, and
the order of society maintained is purely executive or administrative.” It
would, we think, be impossible to frame a definition of the term, “due
process of law,” which would be complete and appropriate under all cir-
cumstances.
In Stewart vs. Palmer, 74 N. Y., at page 190, Earl, J., says:
“It is difficult to define with precision the exact meaning and scope of
the phrase, ‘due process of law.” Any definition which could be given,
would probably fail to comprehend all the cases to which it would apply.
It is probably wiser, as recently stated by Mr. Justice Miller of the United
States supreme court, to leave the meaning to be evolved ‘by the gradual
process of judicial inclusion and exclusion, as the cases presented for deci-
sion shall require, with the reasoning on which such decisions may be
founded.” It may, however, be stated generally, that due process of law
requires an orderly proceeding, adapted to the nature of the case in which
the citizen has an opportunity to be heard, and to defend, enforce and
protect his rights.”
Judge 8. in his work on constitutional limitations at page 355,
after saying that “due process of law” is not confined to ordinary judicial
proceedings, but extends to all cases where property is sought to be taken
or interfered with, says that “due process of law in each particular case
means such an exertion of the powers of government, as the settled
maxims of law permit and sanction, and under such safeguards for the
protection of individual rights as these maxims prescribe for the class of
cases to which the one in question belongs.”
It was not contemplated by the framers of the constitution that the
executive department might not under certain circumstances exercise
judicial powers. The prohibition excepts cases expressly provided in the
constitution. Article 3, section 2 provides “No person belonging to one
department shall exercise the powers properly belonging to any other
except in the cases expressly provided in this constitution.”
This judicial power to determine whether a State officer has been guilty
of gross neglect of duty and to remove him from office if found guilty is
expressly reserved to the Governor under section 12, article 8. Counsel’s
position in this regard leads to this result, that no officer, however unim-
portant the office might be, could be removed in any of the methods pro-
vided by the statute or the constitution, but the exercise of this power of
removal has been upheld in numerous cases.
Clay vs. Stewart, 74 Mich., 71.
Dullam vs. Willson, 53 Mich., 393.
68 REMOVAL PROCEEDINGS.
IV.
If one can be guilty of gross neglect of duty without acting wilfully
or corruptly we think it will not be seriously claimed that respondent was
not guilty of gross neglect of duty within the meaning of section 8, article
12 of the constitution. The canvass of the returns cast for and against
the proposed amendment to the constitution is one of the most important
and responsible official acts which respondent was called upon to perform.
It involved the determination of whether the electors of the State had
voted to change the constitution. He gave this important matter no con-
sideration or attention whatever. We have then, respondent neglecting
his most important duty. It is gross neglect when considered with refer-
ence to the importance of the matter to be attended to, and also the entire
failure to give it any attention. No other element can be introduced to
make the neglect gross neglect, unless it cannot be gross neglect without
a corrupt motive.
W.
Counsel ask this court to hold that the eighth section, of article 12 is of
no force because they say the records show that no returns were received
from certain counties, and the records do not show that any messenger was
sent to those counties from which no returns were received. We do not
understand the law to be that the question whether the amendment was
ratified and is now in force can be determined in this way; but passing
that, we submit that the presumption is that all the votes cast for and
against the proposed amendment were returned and canvassed, and that a
special messenger was sent for the returns to those counties from which
none had been received. The fact that there is no record of the sending
of a special messenger is of no consequence as no record would be kept.
The fact that no votes were cast for or against the amendment in some
counties could be easily accounted for, if it were incumbent on us to give
a reason. The intense interest that was aroused in national affairs in the
first years of the war drew the attention of the people away from local
matters. As there is no evidence that any votes were cast that were not
returned and canvassed, we apprehend it will not be necessary to pursue
this question further
The constitutionality of the act giving the power to remove from office
to others than those connected with the judicial departments of the gov-
ernment has been repeatedly determined by this court. The question has
recently been very fully considered in Fuller vs. Ellis, 57 N. W.Rep., 33,
and in the exhaustive opinion written by Mr. Justice Hooker the question
seems to be so clearly stated and answered that it ought no longer to be a
matter of controversy.
We do not wish to be understood as conceding the law to be, that this
court has the power to review the acts of the Governor, in the premises, if
the Governor had jurisdiction to act at all. The Governor, however, does
not want to raise this question, but desires the judgment of this court on
the merits of the controversy.
GEER & WILLIAMS,
Of Counsel for Relator.
BOARD OF STATE CANVASSERS. 69
BRIEF OF CAHILL & OSTRANDER, FOR THE ATTORNEY
GENERAL,
I.
This is a proceeding by information in the nature of a writ of quo war-
ranto to try the respondent’s right to hold the office of Secretary of State.
There seems to us to be but one question for the consideration of this
court upon this record.
The Attorney General's replication sets up the removal of the respond-
ent from office, by the Governor, under section 8, article 12, of the consti-
tution. The demurrer of the respondent leaves open for discussion only
the question of the Governor’s jurisdiction over the subject matter and
over the person of the respondent. #
If the Governor has acted within his jurisdiction, his conclusions would
be, upon well settled principles, final as to all questions of fact, even in a
direct proceeding to review his action, if such a review were possible; but
in a collateral proceeding, like the present, the judgment of the Governor,
like that of any other court, officer or body acting within a lawful juris-
diction, is conclusive as to law and fact,
Throop on Officers, 396.
We start out then, with the proposition that respondent cannot question
in this proceeding.
a. The sufficiency of the accusation or charges further than to see
whether they name an offense over which the Governor has jurisdiction.
b. The form of the notice to appear and answer.
c. The tendency and weight of the testimony.
d. The conclusion or judgment reached. ©
If any of these questions could have been reviewed on certiorari, or
other direct proceeding, they cannot be in this suit, which is in effect,
one to enforce a judgment not appealed from, vacated or in any manner
impaired. The only question open is one of jurisdiction, in the officer
rendering the judgment.
II.
The first question raised by respondent, by his demurrer, is as to the
Governor's power to remove him from the office of Secretary of State, for
misconduct, as a member of the Board of State Canvassers. This goes to
the question of jurisdiction.
It is argued, that section 8, article 12, of the constitution applies only
to respondent in his office of Secretary of State, and was not intended to
cover any official misconduct, of which he might be guilty as a member of
the Board of State Canvassers.
It is urged, that if that had been the intention, the provision of the
constitution would have been framed so as expressly to include members
of that Board by name.
70 REMOVAL PROCEEDINGS.
That since the members of this Board were not expressly included by
name, they cannot be included by construction or implication but that it
must be assumed that the power of removal in such cases was intended to
be left with the legislature sitting as a court of impeachment. It seems
to be conceded that the house of representatives could impeach and the
senate could try the respondent and remove him from office for official
misconduct as a member of the Board of State Canvassers,
But if we look to section 1 for the grant of power to the legislature we
do not find as affecting this question any broader or more comprehensive
language than that used in section 8.
The language of section 1 is “Civil officers.” That of section 8 is (after
naming several offices) “or any other officer of the State except legislative
and judicial, elective or appointed.”
What basis is there for claiming that section 1 was intended to include
more or different officers than section 8?
If the Board of State Canvassers existed independent of the offices of
Secretary of State, State Treasurer and Commissioner of the State Land
Office the members of it would be included in the language “or any other
officer of the State.” -
But such board has no such independent existence. The officers named
do not merely perform the duties of members of that board; they consti-
tute the board, and without them there is no board.
Among other duties devolved upon the Secretary of State by the consti-
tution, are those of sitting as a member of the Board of State Auditors,
and Board of State Canvassers. These duties pertain to his office, and
cannot be separated from it. \
He could not be removed from the office of a member of such boards by
the legislature or any one else, except as he is removed from the office of
Secretary of State. Because so long as he holds the latter office he is and
will continue to be a member of such boards.
We are driven, then, it seems to us, to the conclusion either,
First, That official misconduct of a member of the Board of State Can-
vassers is misconduct in the office which constitutes him such member; or
Second, That such members are beyond the reach of any power of
removal, whatever their misconduct as such members may be.
The last proposition is not to be seriously entertained.
III.
Section 8 of article 12 of our constitution is not in conflict with the
fourteenth amendment to the federal constitution.
Clay vs. Stuart, 74 M., 411.
Sullivan vs. Haug, 82 M., 548.
Rennard vs. Louisiana, 92 U. S., 480.
Missouri vs. Lewis, 101 U. S., 30.
Hurtado vs. California, 110 U. S., 516.
%
It is a common provision in national, state and municipal governments,
that the president, governor or mayor shall have the power of removal for
BOARD OF STATE CANVASSERS. 71
cause. Such a power is absolutely essential to the proper exercise of pub-
lic functions, and is clearly within the authority of the sovereign power.
People vs. Whetlock, 92 New York, 191.
Dullam vs. Willson, supra.
IV.
If we are right in our views, as to the limitations of this inquiry, we
could properly stop here. Because, if the Governor had jurisdiction to
remove respondent from his office of Secretary of State, for gross neglect
of duty, as a member of the Board of State Canvassers, the demurrer
admits that he has removed him, and that, it seems to us, ought to end
the discussion.
But counsel for respondent will doubtless argue other questions, and
the case is too important in its present and ultimate results to justify us
in refusing to meet them on their own ground, or to discuss any question
which they deem material.
In this view we shall proceed to discuss the questions from the same
standpoint that it would have been proper to discuss them before the
Governor.
First, Had the Governor the power to remove respondent from office?
Second, Has that power been lawfully exercised?
The power, if any exists, is found in section 8, article 12, of the consti-
tution, and it is upon that provision that the Governor plants himself in
assuming to remove the respondent from office. Whether we read that
section of the constitution, casually or carefully, there seems to us but one
construction to be given to it.
It contains a clear grant of power to the chief executive of the State,
which it is made his duty to exercise: “To examine into the condition and
administration of any public office, and the acts of any public officer,
elective or appointed, and to remove from office for gross neglect of duty,
or for corrupt conduct in office, or any other misfeasance or malfeasance
therein, either of the following State officers (including the Secretary of
State), or any other officer of the State, except legislative or judicial,”
etc.
In Dullam vs. Willson, 53 Mich., 392, this court held that the power
conferred upon the Governor by this section, was, in a sense, judicial, and
was to be exercised in conformity to judicial proceedings.
That, as in judicial proceedings, the accused is entitled to be informed
of the nature and cause of the accusation, and have reasonable notice and
opportunity to be heard in his defense, so this constitutional power vested
in the Governor should be exercised subject to such conditions.
The validity of the constitutional provision, its purpose and object were
recognized and sustained.
In this case formal charges have been preferred in the language of the
constitution itself, containing specifications accurately setting out the
specific acts, which it is claimed constitute the offense charged, due notice
has been given to respondent, he appeared in person and by counsel and
contended himself, as if in an ordinary court, by pleading to the jurisdic-
tion, 1. That the Governor had no power to remove the respondent for
72 REMOVAL PROCEEDINGS,
misconduct as a member of the Board of State Canvassers. 2. That the
notice was defective. 3. That the charges were insufficient.
In Gager vs. Board of Supervisors of Chippewa Co., 47 Mich., 168, this
court, speaking of a similar proceeding before the board of supervisors,
said: “So far as time and notice of hearing are concerned, the board of
supervisors do not act in strictness as a court, but as a public board,
authorized to use their own time and methods subject only to the condi-
tions that no one shall be removed without charges and reasonable notice
or without full opportunity to be heard.”
In the same case, also, the question was made, that the charges were
not sufficiently definite, and did not contain allegations of official miscon-
duct. A reference to that case will show that the charges were of the
most informal kind and contained no specifications of time, place or cir-
cumstances.
They failed to aver the misconduct charged to have been wilful or cor-
rupt, or knowingly wrong.
None of the four charges constituted indictable offenses and yet, the
action of the board of supervisors in removing the officers was sustained.
The court, while conceding that the charges were not as definite as they
should be, saying, “It seems to us that the principal charges set out are
in their nature very plain acts of misfeasance, which if true would author-
ize a removal from office.”
It was claimed on the hearing before the Governor, that the charges and
specifications were defective in that they did not allege that respondent’s
neglect of duty was wilful.
The charge is in the language of the constitution, and it has been many
times held in this State, that a criminal offense charged in the language
of the statute is sufficient. º
People vs. Kent, 1 Doug., 42.
Rice vs. People, 15 Mich., 9.
Durand vs. People, 47 M., 332.
Wharton Cr. Pl. & Pr. § 220.
The specifications, however, charged omissions of official duty, which
could not have been otherwise than wilful, in the sense that they were
ºy. and that is all that is intended by wilful neglect of official
uty.
It is not necessary that it should appear that the respondent intended
the injury which has resulted from his act, in order to make him guilty
of wilful neglect. In fact, if it appeared that he intended the result, that
would exclude all idea of negligence and make him liable for corrupt con-
duct in office.
Neglect implies want of care, absence of intent. Wilful wrong implies
care, motive, intent. These are distinct and antipodal grades of offenses.
Neglect may be so gross that the law will impute wilfulness, but when
this occurs it ceases to be néglect and becomes intentional wrong, the less
is merged in the greater,
*-
BOARD OF STATE CANVASSERS. 73
“Negligence in a legal sense is a failure to observe for the protection of
the interest of others, that degree of care, precaution and vigilance which
the circumstances demand.”
Ray on Negligence of Imposed Duties.
“Negligence is the absence of care, according to circumstances.”
Turnpike Co. vs. R. R. Co., 54 Penn. St., 345.
“Negligence consists in,
1. Legal duty to use care.
2. A breach of that duty,
3. The absence of distinct intention to produce the precise damage, if
any, which follows.”
Shearman & Redfield on Negligence, sections 5 and 6.
“Negligence excludes the idea of wilful intention to do the wrong
accomplished. To illustrate: a railroad engineer may shut his eyes and
wilfully go to sleep. If while thus asleep he runs over a man, the test
which would determine whether his act was merely gross negligence or
was a wilful injury would be to ascertain whether when he shut his eyes,
he saw the man upon the track, or knew he would be there or not. If he
knew that he would inflict the injury, or intended to do so, his act would
cease to be negligence.”—Ibid 6.
Take another illustration: Suppose a section foreman, having charge of
a particular part of the track of a railroad, is required by his instructions
to go over the entire section every day, to inspect it; if he disobeys his
instructions and neglects to go over the road on a particular day, such
neglect is, in a sense, wilful, because voluntary, but if by reason of his
neglect a train is derailed, and passengers are killed, it could not be said
that he was intentionally guilty of their death. What he intended to do
was to neglect his duty. This was negligence. If he had intended the
resulting accident he would have been guilty of murder. "
The distinction between negligence and gross negligence is one of
degree, and not of kind.
In Willson vs. Brett, 11 M. & W., 113, Lord Cranworth said that gross
negligence is ordinary negligence with a vituperative epithet.
Davis, J., in Milwaukee R. R. vs. Arms, 91 U. S. 494, says, “Some of
the highest English courts have come to the conclusion there is no intel-
ligible distinction between ordinary and gross negligence.”
Bouvier says, “That ordinary negligence is the want of ordinary dili-
gence. Slight negligence is the want of great diligence; and gross negli-
gence is the want of slight diligence.”
10
74 REMOVAL PROCEEDINGS.
“Gross neglect is the want of that care, which every man of common
sense under the circumstances takes of his own property.”
2 Rent Comm. 560.
“Some writers classify negligence as gross negligence, ordinary negli-
gence and slight negligence; but this classification only indicates that
under the special circumstances great care and caution was required or
only ordinary or slight care.”
Cooley on Torts, 630.
“Gross negligence is an entire failure to exercise care or the exercise of
so slight a degree of care, as to justify the belief that there was an indif-
ference to the interests and welfare of others.”
International R. R. Co. vs. Cocke, 64 Texas, 151.
“So far as it is possible to define gross negligence it may be said to be
such absence of care, when the consequence of such want of care would
appear probable if the slightest thought were given; but when it is not
given, as would charge the person so negligent not necessarily, with an
intention to inflict the injury resulting from his negligence, but with the
same responsibility as though he had intended it.”
Ray on Negligence of Imposed Duties, 665.
Applying these general definitions to the conduct of an officer, aids’ us
to a proper understanding of what is meant by gross neglect of official
duty, We find the authorities to be in accord in holding that:
“Misconduct, wilful mal-administration, or breach of good behavior in
office does not necessarily imply corruption, or criminal intention. The
official doing of a wrongful act, or the neglect to do an act which ought to
have been done will constitute the offense, although there was no corrupt
or malicious motive.”
Mººm on Offices and Officers, 457 and 458, and cases
cited.
Throop on Public Officers, 368-69.
It was urged at the hearing before the Governor, that the provision of
the constitution under which the Governor has acted, being the amend-
ment of 1862, was to be construed in the light of the statutes in force at
the time of its adoption; and we were referred to How. Stat. 651, 653,
659 and 660, as indicating that the Governor's power to remove was con-
BOARD OF STATE CANVASSERS. 75
fined to cases of habitual or wilful neglect of duty, -such cases of inten-
tional wrong as would be indictable.
A complete answer to this proposition is furnished by this court, in
Dullam vs. Willson, supra, where it is said that the statutes referred to
are void, as being in conflict with the constitution of 1835. But if it were
not so the words “official misconduct,” used in that statute, are broad.
enough to cover gross neglect of duty.
It was urged, also, that section 1, of article 12, giving the power of
impeachment to the house of representatives, did not in terms authorize
such impeachment for gross neglect of duty, and that the general language
“crimes and misdemeanors,” would not cover neglect of duty unless it
was wilful in the sense of being intentional. That these words were to
receive the same construction in this section of the constitution that they
were known to have in the criminal law, and meant indictable offenses.
State vs. Hastings, 55 N. W., 775, was cited in support of that view.
We submit that the weight of authority in this country and England is
opposed to that view, and that the Supreme Court of Nebraska in State vs.
Hastings, expressly repudiated it, in the following language on p. 780:
“It is sufficient for our purpose at present to say that we are constrained
to reject the views of Prof. Dwight, Judge Curtis, and other advocates of
the doctrine that an impeachable misdemeanor is necessarily an indictable
offense, as too narrow, and tending to defeat rather than promote the end
for which impeachment, as a remedy, was designed, and not in harmony
with the fundamental rules of constitutional construction.”
We insist that the language of section 1, article 12, is broad enough to
cover gross neglect of duty, and that if respondent was on trial before the
Senate upon articles of impeachment containing only the charges here
made he could properly be convicted. *
Pomeroy's Const. Law, 725, 726, 727.
Judge Lawrence in 6 Am. L. Reg. 641.
W.
The duty which the respondent is charged with neglecting is one
expressly imposed by statute. How. St. 214.
It is so plainly declared, that ignorance or misapprehension of its
requirements could not be pleaded or admitted. It is so imperative in its
terms—relates to so important a duty—and involves interests of so grave a
nature as to leave no room to question its mandatory character.
It needs no argument or citation of authorities to show that disobedi-
ence of such a statute is neglect of official duty.
Was it gross neglect?
This is purely a question of fact as is the question of ordinary negli-
gence.
Cooley on Torts, 632.
76 REMOVAL PROCEEDINGS,
f
It is, as we have seen, a question of degree. And the degree of care
required depends always upon the character of the duty, and the con-
sequences that may result from the neglect of it.
“We are not to look solely at a man’s acts or his failure to act. The
term (negligence) is relative and its application depends on the situation
of the parties and the degree of care and vigilance which the circum-
stances reasonably impose. That degree is not the same in all cases; it
# vary according to the danger involved in the want of vigilance.’’—
1C1.
Tested by this rule, who shall say that the admitted neglect of duty by
the respondent was not gross?
Selected by the people and charged by law with the duty and high
responsibility of guarding the people of this State against fraud or
mistake in the expression of their will upon a proposed amendment to
the constitution, he, by his own confession, voluntarily abandoned that
post of honor and responsibility, and left the organic law of the State to
be outraged by imposition and fraud.
If there is room for a difference of opinion as to the character of this
nelgect of duty, the judgment of the Governor of the State, upon that
question of fact, is conclusive upon us all, as it is upon every other ques-
tion of fact involved in the performance of the high duty committed to
him by the constitution.
CAHILL & OSTRANDER,
Of Counsel.
BRIEF OF SMITH, LEE & DAY, FOR RESPONDENTS.
These are informations in the nature of a quo warranto to determine
the validity of a proceeding instituted by the Governor of this State
against the respondents, the Secretary of State, State Treasurer, and the
Commissioner of the State Land Office, to remove them from office
because of alleged gross negligence in reference to their duties when
acting as the Board of State Canvassers to canvass the returns of votes
cast in the several counties of the State at the April election in 1893,
upon the proposed amendment to the constitution relative to the salaries
of State officers.
The following are the specific charges preferred by the Governor:
1. That you, the said John W. Jochim, Secretary of State, Joseph F.
Hambitzer, State Treasurer, and John G. Berry, Commissioner of the
State Land Office, who are the Board of State Canvassers under the con-
stitution and laws of this State, were each and every one of you guilty of
gross neglect of duty in this, that you did not, nor did either of you,
examine the statements or returns of votes from the several counties filed
in the office of the Secretary of State, showing the number of votes cast
for and against said proposed amendment to the constitution relative to
the salaries of State officers by the electors in this State at the election in
April, 1893.
BOARD OF STATE CANVASSERS. 77
2. That you were severally guilty of gross neglect of duty in this, that
you did not, nor did either of you, ascertain and determine the result of
such vote, nor perform with due and proper care the duties relating to
canvassing the statements and returns from the several counties of the
votes given at such election for and against said proposed amendment to
the constitution, required of and imposed upon you as members of said
Board of State Canvassers by the constitution and laws of this State.
3. That you were severally guilty of gross neglect of duty in this, that
you made, and suffered to be made, gross errors in the canvass of the
statements and returns filed in the office of the Secretary of State of the
votes given in the several counties at said election in April, 1893, for and
against said proposed amendment to the constitution, by which it was
falsely made to appear that such proposed amendment had been approved
and ratified by a majority of the electors voting thereon; whereas, by a
true and correct canvass of the said statements and returns, the said pro-
posed amendment was defeated.
When the case was called by the Governor at the time fixed for hearing,
the respondents moved to vacate the notice and dismiss the charges for
the following reasons:
I.
The Governor has no power under section 8, of article 12, or any
other provision of the constitution, to remove the respondents, or either
of them, from their respective officers for any misconduct on their part,
or on the part of either of them, as members of the Board of State Can-
V8 SS6 I'S.
II.
The power of the Governor, under section 8, article 12, of the constitu-
tion, is confined to the official miscondut of the officers therein named, in
the performance of the duties appertaining to each of said officers separ-
ately and severally considered, and it does not include such duties as, are
performed by such officers jointly with others as members of constitu-
tional or statutory bodies or boards.
III.
The house of representatives, under sections one, two and three, article
twelve, of the constitution, has the sole power to direct an impeachment
of these respondents for misconduct in the performance of their duties
when acting as a Board of State Canvassers, and the senate has exclusive
jurisdiction to try any such impeachment.
IV.
The charges set forth in the notice served upon these respondents, are
wholly insufficient and fatally defective, for the reason that it is not
alleged therein that the neglect of these respondents, or any of them, was
intentional, or that they, or either of them, have knowingly and design-
78 REMOVAL PROCEEDINGS.
edly neglected any official duty; or that they, or either of them, have neg-
lected to perform any duty with an evil intent, or for any improper, illegal
or culpable purpose.
W.
The charges contained in said notice do not make or state a case of
gross neglect of duty within the meaning of section 8, article 12, of
the constitution, and the Governor, sitting as a court of impeachment,
has no jurisdiction or power to render judgment or removal thereon.
WI.
The notice served on respondents is void, because it is not “In the
name of the People of the State of Michigan,” as required by section 35
of article 5, of the constitution, and it is not authenticated by the great
seal of the State as required by section 18 of article 5 of the consti-
tution.
VII.
The Board of State Canvassers is created by the constitution of this
State, and in the performance of their duties and functions, the members
of said board, in the absence of conduct on their part amounting to a
criminal offense, are not subject to the control or interference of the Gov-
ernor of the State, or of any other branch or department of the govern-
ment, and excepting the power of the legislature to determine any case
where the decision of the State Board of Canvassers is contested, they are
answerable or amenable only to the people of the State by whom they
were elected to their respective offices.
The motion was overruled by the Governor, and the investigation pro-
ceeded without other pleading on the part of the respondents.
The following is a summarized statement of the testimony taken:
A short time prior to the sixteenth of May, Mr. Jochim, the Secretary
of State, was notified by his clerks that a tabulated statement containing
the votes for and against the salaries amendment had been prepared and
was ready to be signed by the members of the canvassing board. Mr.
Jochim thereupon notified Mr. Hambitzer and Mr. Berry, the other two
members of the board, by telegram, of that fact, who, in response to the
telegram, came to Lansing. The secretary organized the board, and
the canvass as prepared by the clerks, was signed by the members of the
board. None of the members of the board compared or examined the
returns from any of the counties with the tabulated statements that had
been prepared by the clerks in the Secretary’s office, but relying entirely
upon what the clerks stated to them as to its being correct, and believing
it to be so, signed it.
Then followed the admission in evidence of the canvass thus made by
the board, and the canvass subsequently made by the board upon the
order of the supreme court. There was also introduced in evidence, the
canvass made by the board on November 8, 1892, the canvass of the con-
gressional election, which was offered for the purpose of showing the
BOARD OF STATE CANVASSERS. 79
experience of the board in canvassing the election returns, as was stated
by counsel for the prosecution. Then were offered, the paper in which
the first and second canvasses of the salaries amendments were published,
and the tabulations made by Mr. Cole, the executive clerk of the execu-
tive department, showing the errors in the first canvass of the salaries
amendment and the vouchers for expenses allowed by the Board of State
Auditors to the members of the Board of State Canvassers in attending
the meeting at which the foregoing canvasses were made.
From the above statement of the proceedings, it is to be observed that
the case made against the respondents, is no stronger than the charges
preferred. They can, therefore, consistently with the facts, urge to the
court, as they urged to the Governor upon their motion that the charges
must be dismissed.
From the conceded facts in the record, these respondents acted, without
culpable motives, and in utmost good faith towards the interests of the
State; they signed the canvass of votes tabulated by clerks in the Secre-
tary’s office, supposing them to be trustworthy and reliable, “believing it
to be correct.” We urge therefore, that not only is it a fact that the charge
did not in the first instance confer upon the Governor jurisdiction, but
that no charge could be made within the facts shown by the record which
would confer jurisdiction within the terms of the constitutional provisions
under which the power of the Governor must be exercised in such cases.
Section 8 of article 12 of the constitution under which these proceed-
ings were instituted, reads as follows:
“The Governor shall have power, and it shall be his duty, except at
such time as the legislature may be in session, to examine into the condi-
tion and administration of any public office, and the acts of any public
officer, elective or appointed, to remove from office for gross neglect of
duty, or for corrupt conduct in office, or any other misfeasance or mal-
feasance therein, either of the following State officers, to wit: The Attor-
ney General, State Treasurer, Commissioner of Land Office, Secretary of
State, Auditor General, Superintendent of Public Instruction, or mem-
bers of the State Board of Education, or any other officer of the State,
except legislative and judicial, elective or appointed, and to appoint a
successor for the remainder of their respective unexpired term of office,
and report the causes of such removal to the legislature at its next
session.”
It is contended by counsel for the prosecution, that the Governor has
power to remove the respondents from office, notwithstanding the fact
that the members of the board were not actuated by any improper motives
in signing the canvass without comparing the tabulations with the returns
from the counties. This proposition, we maintain to be untenable. The
neglect of the respondents charged in the notice and proven at the hear-
ing, is not gross neglect within the meaning of the provisions of the con-
stitution above quoted.
The solution of this question must depend upon the language of this
section of the constitution; the intention of the legislature that framed
and proposed it for adoption by the people, and with reference to such
sources of judicial information as are resorted to by all courts in constru-
ing statutes.
State of R. I. vs. State of Mass., 12 Peters, 657.
80 REMOVAL PROCEEDINGS.
It is necessary to look to the history of the times, and examine the state
of things existing when this section of the constitution was framed and
adopted, to ascertain the old law, the mischief and the remedy.
Same case:
It is a well known fact of the history of that time, that at the session of
the legislature at which section 8 of article 12 of the constituiton was
framed and proposed, a joint committee of the senate and house of repre-
Sentatives was appointed to investigate the treasury department, and the
official acts of John McKinney, late State Treasurer, and also the previous
management of that department, and that the committee found and
reported to the legislature, that McKinney was a defaulter to a large
amount, and that the books in which the record of his transactions were
kept, had been deliberately burned by Hunter, his deputy, upon his
going out of office; that both McKinney and his predecessor, Holmes,
had sold the bonds of the State without receiving payment in full there-
for, under circumstances plainly indicating corrupt motives, and that the
legislature was advised that this fact had been known to the Governor for
some time prior to the expiration of McKinney’s term of Office.
Senate and House Documents, 1861. z
From the above history of this legislation, it is manifest, that the legis-
lature had under consideration, conduct of officers actuated by corrupt and
intentionally bad motives. There was nothing in the official misconduct
which the legislature of 1861 was investigating, that did, or could, sug-
gest to the members, the necessity of providing safeguards against the
acts of the officers named in the proposed amendment, done without inten-
tional wrong, through too great confidence in their subordinates. Until
the present time, nothing has occurred in the history of the State that
could call the attention of the legislature to the necessity for safeguards
against such conduct, or that could call to the minds of citizens, the pos-
sibility of a State officer being overreached by his subordinates.
Directing attention now to the law as it was at the time of the framing
and proposal by the legislature of section 8 of article 12 of the constitu-
tion, we find that the Governor had the following statutory powers:
“The Secretary of State, Auditor Genèral, and all State and county
officers, except the State Treasurer, and judges of the supreme and circuit
courts, who are, or shall be appointed by the Governor alone, or by the
Governor, by and with the advice and consent of the senate, or of both
branches of the legislature, without the concurrence of the Governor,
may, for official misconduct, or habitual or wilful neglect of duty, at any
time during the recess of the legislature, be removed, and the vacancy
supplied during such recess, by the Governor.”
“The Governor shall remove all county officers chosen by the electors
of any county, or appointed by him, except county judges, judges of pro-
bate and county clerks, and shall also remove all justices of the peace and
township officers chosen by the electors of any township, when in his
opinion such officer is incompetent to execute properly the duties of his
BOARD OF STATE CANVASSERS. 81
office; or when he is satisfied that such officer has been guilty of official
misconduct, or of wilful or habitual neglect of duty, if in his opinion such
misconduct or neglect shall be sufficient cause for such removal; but no
such officer shall be removed for such misconduct or neglect, unless
charges thereof shall have been exhibited to the Governor, and a copy of
the same served upon such officer, and an opportunity given him of being
heard in his defense.”
“The office of State Treasurer, Commissioner of the Land Office, or of
any other collector or receiver of public moneys, appointed by the legisla-
ture, by the Governor alone, or by the Governor, by and with the advice
and consent of the senate, or of both branches of the legislature, except
those officers for whose removal provision is otherwise made by law, may
be declared vacant by the Governor, in case it shall appear to him, on
sufficient proofs, that such treasurer, commissioner, or other officer, has
in any particular wilfully violated his duty.
Compiled laws 1857, Sections 476–478–485.
Under these provisions, the Governor was empowered to remove for the
causes specified, the Secretary of State, Auditor General, Attorney Gen-
eral, Commissioner of State Land Office, and State Treasurer, and other
officers who need not be named here.
With the power to remove the State Treasurer for official misconduct
already vested in the Governor, what purpose, it may be asked, had the
legislature of 1861, in proposing the constitutional amendment,
The purposes are manifest. The Governor under the statutes, had no
visitorial power. He was not authorized to investigate any of the offices
named. Rumors might come to him of official misconduct, but beyond
his constitutional power to call for a written report he was powerless to
investigate them. The Governor was powerless to satisfy himself either
that proceedings for removal should be instituted, or that the legislature
which was then the only body having power to investigate the affairs of
the State officers, should be called for investigation and impeachment.
The chief reason for the proposal of the amendment was, undoubtedly, to
confer upon the Governor, power to investigate and determine judicially,
the matter of official misconduct. The powers were made constitutional
instead of statutory because the committee of the Senate to which the
matter was referred, reported that the powers contained in the proposed
amendment could not be conferred by statute.
It was conceded, on the argument of respondent's motion, that the
powers of the Governor under this constitutional provision are not execu-
tive but judicial, and it was so held in the case of Dullam vs. Willson, 53
Mich., 392, where Mr. Justice Champlin, in the opinion of the majority
of the justices, said:
“It will be observed that the section of the constitution under consider-
ation only authorizes the Governor to remove for specified causes. He is
not authorized to exercise the power at his pleasure or caprice. It is only
when the causes named exist that the power conferred can be exercised.
It follows as a necessary consequence that the fact must be determined
before the removal can be made. It is also clear that the fact must be
11
82 REMOVAL PROCEEDINGS.
determined by some tribunal invested with judicial power, for a deter-
mination whether specified causes exist in the exercise of judicial func-
tions. Judicial determination of facts must rest upon and be preceded by
notice, proof and hearing. And the first question is, what is the proper
tribunal in which such facts are to be ascertained? In my opinion, this
provision of the constitution requires no legislation to make it effective.
Read in the light of the history of the times, and the surrounding circum-
stances when it was adopted, the grant of power is to the Governor
coupled with the duty enjoined to examine into the condition and admin-
istration of any public office, and to examine into the acts of any public
officer, and to remove from office for gross neglect of duty, or for corrupt
conduct in office, any of the officers specified. The amendment for this
purpose clothes him with judicial power. It is implied in the grant, and
without it the grant would be mugatory and ineffectual to accomplish the
purposes for which it was given.”
This construction is the only one that can be given to the section which
will remedy the evil from which relief was sought by its adoption. He
acts in the place of a court of impeachment during the time the legisla-
ture is not in session.
The Governor sitting then as a court of impeachment must be confined
to the same causes for removal of the officers named in this section, as
would the legislature when acting as a court of impeachment.
The legislature could impeach civil officers only “For corrupt conduct
§ º or for crimes and misdemeanors.” (Constitution, Art. 12,
ec, 1.
Hence, we say, that the words “gross negligence,” in section eight of
the same article of the constitution, were intended to express not merely
a negligence, but negligence consistent only with a corrupt motive or an
intentionally bad or improper purpose, . This is the only construction
that can be placed upon the words that will give to this entire article of
the constitution an harmonious construction, and which will guarantee to
the people of the State, and to the citizen, the protection which the con-
stitution was designed to confer, against the exercise of arbitrary and
autocratical power.
In the light of the statutory provisions above quoted, and the difficulties
the legislature was seeking to correct, no other construction can be placed
upon them. The causes for removal specified in section 476, are “official
misconduct or habitual or wilful neglect of duty.” In section 485, the
º is, that any officer named in the section “has wilfully violated his
uty. 2 3
Section 478 relates to county officers, and the grounds for removal are
that the officer “is incompetent to execute the duties of his office or *
$ % has been guilty of official misconduct or of wilful or
habitual neglect of duty.” As was urged before the Governor, upon the
argument of the motion, it would be absurd to suppose that the legisla-
ture intended to confer upon the Governor the power to remove from
office a State officer for a quality of negligence for which he would be
powerless to remove a county officer, and for which the power to remove
such official was, and is, nowhere vested by the constitution or laws of the
State. Still more absurd would it be to suppose that section 8, of article
12, of the constitution, vested in the Governor the power to remove a
State officer for a quality of negligence for which the legislature itself has
no power to impeach.
BOARD OF STATE CANVASSERS. 83
The legislature can impeach only “for corrupt conduct in office or for
crimes or misdemeanors.” In the matter at bar, neither the charges nor
the evidence discloses corrupt conduct on the part of respondents; on
the contrary, it appears from the record that they acted in an honest
belief that the canvass was correct. In the absence of corrupt motives it
would be difficult to find a person, even in the ordinary avocations of life,
who would contend that the acts of the respondents could be classified
under crimes or misdemeanors.
The legislature has defined the quality of official negligence that shall
be punishable as a misdemeanor as follows:
“When any duty is or shall be enjoined by law upon any public officer,
or upon any person holding any public trust or employment, every wilful
neglect to perform such duty, where no special provision shall have been
made for the punishment of such delinquency, shall be deemed a misde-
meanor.” (Compiled Laws 1857, Vol. II, section 5844.)
Under this section, wilfulness is a necessary element. In the light of
these constitutional and statutory provisions, the words “gross neglect of
duty” must have been designed to cover habitual neglect of duty which
would require the interference of the Governor to protect the State against
continuing injury or such wilful neglect as indicates intentionally wrong
conduct. ,
Referring to judicial constructions which have been placed upon the
words “wilful” or “wilful neglect, '' we find that in all cases penal in
their nature, as is the proceeding at bar, the courts have held that wilful-
ness consists in intentional wrong or corrupt conduct.
In the case of State vs. Kern, N. J. Law, 260, which was a case where
the defendant was prosecuted as a member of the board of public works
for letting a contract to clean the streets of Jersey City, without advertis-
ing, as required by the statute, the court said: “If the board of public
works had been forbidden to make a contract for cleaning streets without
the required advertisement, the doing of the prohibited act wilfully and
º evil intent, constitutes a criminal offense indictable at the common
8 W. 5 2.
In the case of State vs. Alcorn, 78 Texas, 387, 392–393, decided by the
supreme court of Texas, a case where the proceedings were instituted by
the State to remove Alcorn from the office of county and district clerk.
upon the grounds that he was guilty of wilful official misconduct, in that
he failed and refused to keep his office at the county seat of his county,
the court said:
“The law makes it the duty of clerks of the district and county courts
to keep their offices at the county seats of their respective counties.
“The constitution provides that clerks of district and county courts
may be removed from office for official misconduct.
“The statute declares that “by “official misconduct, ” as used in this title
with reference to county officers is meant an unlawful behavior in relation
to the duties of his office, wilful in its character, of any officer entrusted
in any manner with the administration of justice or the execution of the
laws; and under this head of official misconduct are included any wilful
or corrupt failure, refusal, or neglect of any officer to perform any duty
enjoined on him by law.”
“It was the duty of appellee to keep his office at the county seat, and if
he wilfully failed, refused, or neglected to do so was subject to removal.
84 REMOVAL PROCEEDINGS.
“The conduct of appellee, however, may have been unlawful and in a
general sense may have amounted to official misconduct, but this fur-
nished no sufficient reason for his removal from office, unless this unlawful
behavior or official misconduct was wilful or corrupt.
“We are of opinion that the word “wilful’ is not used in the statute in
its most general sense, for under that every act done in obedience to the
will may be said to have been done wilfully, even if the actor with the
lights before him honestly believed that he was discharging his duty
under the law, but was mistaken in this.
“We are of opinion that under the statute an official act done or
omitted cannot be said to have been wilful unless the officer knew or
believed that it was his official duty to do or omit the act, and with such
knowledge or belief obstimately, perversely, and with intent to do wrong
acted or failed to act.
“The coupling of the words ‘wilful' and ‘corrupt’ indicate that bad
motive is necessary under the statute to make the act wilful, and that the
fact that the act or omission was done in obedience to the will—was inten-
tional—is not enough.
“As was said in Commonwealth vs. Kneeland, 20 Pickering, 220, ‘the
word “wilfully,” in the ordinary sense in which it is used in statutes means
not merely “voluntarily,” but with bad purpose.' * 3% 3% 3%
“It is universally held that the word ‘wilful” when used in a penal
statute means with evil intent or without reasonable ground to believe the
act lawful. (Citing authorities.)
“The statute under consideration is one penal in character and must be
º as though it were one defining a crime and prescribing its pun-
ishment.”
In the case of State vs. Preston, 34 Wis., 675, decided by the Wiscon-
sin supreme court, which was an action to recover a penalty for “wilfully
obstructing a highway,” the court said:
“The word wilfully, as used to denote the intent with which an act is
done, is undoubtedly susceptible of different shades of meaning or degrees
of intensity, according to the context and evident purpose of the writer.
It is sometimes so modified and reduced as to mean little more than plain
tintentionally or designedly. Such is not, however, its ordinary significa-
tion when used in criminal law and penal statutes. It is there most fre-
quently understood not in so mild a sense, but as conveying the idea of
legal malice in greater or less degree, that is, as implying an evil intent
without justifiable excuse.” ”, “ ”
In Commonwealth vs. Kneeland, 20 Pick., 206, where the respondent
was indicted under the statute against blasphemy, Chief Justice Shaw
Says:
“The statute makes it penal wilfully to blaspheme the holy name of
God, etc. The word “wilfully,” in the ordinary sense in which it is used
in statutes, means not merely ‘voluntarily,” but with a bad purpose, and in
this statute must be construed to imply an intended design to calumniate
ºpºse the Supreme Being, and to destroy the veneration due
to Him.”
In Fulton vs. United States, 96 U. S., 699, the court said:
“Doing or omitting to do a thing knowingly and wilfully implies not
only a knowledge of the thing, but a determination with a bad intent to
do it, or to omit doing it.”
BOARD OF STATE CANVASSERS 85
The court emphasized its holding by quoting from Commonwealth vs.
Kneeland, cited above.
In the case of Chapman vs. Commonwealth, 5 Whart. Penn., 427, it
was held that the words “wilful” and “malicious” were equivalent terms,
In the case of Shaver vs. Inghram, 58 Mich., 649, which was a case
brought by the plaintiff against the defendant for unlawful discharge from
employment, Chief Justice Campbell, in discussing the question of dis-
obedience of orders, said, “Wilful disobedience, in the sense in which
the word is used by the authorities, means something more than a con-
scious failure to obey. It involves a wrongful or perverse disposition.”
In this case also the case of Gallo vs. Brouncker is quoted approvingly,
where it was held that “there must be moral misconduct, pecuniary or
otherwise, wilful disobedience or habitual neglect, to justify dismissal
from service for one year.”
On the argument of this case before the Governor, it was contended by
counsel for the prosecution that this action is not penal in its nature.
Such contention is contrary to the rule as established by the adjudicated
O8 S6S.
In the case of State vs. Hastings, 55 N. W. Rep., 774, the supreme
court of Nebraska sat as a court of impeachment and the court said:
“Another question which is suggested in this connection is the char-
acter of this proceeding, viz., whether it is to be regarded as a civil action
or as a criminal prosecution for the purpose of the production and the
Quantum of proof to warrant a conviction. It may be safely asserted that
the decided weight of authority in this country and England, if, indeed,
there exists a diversity of opinion on the subject, is that impeachment in
that respect must be classed as a criminal prosecution, in which the State
is required to establish the essential elements of the charge beyond a
reasonable doubt. Blackstone (4 Comm. 259) thus defines the proceed-
ing: “But an impeachment before the lords by the commons of Great
Britain in parliament is a prosecution of the already known and estab-
lished law, and has been frequently put in practice, being a presentment
to the most high and supreme court of criminal jurisdiction by the most
solemn grand inquest of the whole kingdom.” In the impeachment of
Belknap, Senator Wright used the following language: ‘Because it does
not satisfy me upon this point beyond a reasonable doubt, and because it
is quite wanting in everything like directness and force, * * * I feel
bound to vote, “Not guilty.” Language of similar import was used by
Senators Christiancy, Booth, Oglesby and others. But we are fortunately
not without judicial authority on the subject. In the impeachment of
Barnard (1872), the judges of the court of appeals of New York sat with
the senators, and appear to have been consulted upon all doubtful ques-
tions. Chief Justice Church (page 2070), speaking upon the subject
under consideration, said: ‘If I felt warranted in balancing the evidence,
and in determining that question in a civil action, I might come to the
conclusion that the evidence of payment was not reliable; but we are here
in a criminal case, where the respondent is entitled to the benefit of every
reasonable doubt, both upon the facts and the law, and I cannot say that
the evidence which has been produced is not sufficient to create some
doubt.’ Judge Andrew (page 2071) said: ‘I shall vote “Not guilty”
upon this article, upon the principal that this defendant is entitled to
every reasonable doubt, and that that doubt as to his guilt, according
86 REMOVAL PROCEEDINGS,
to the charge, exists in my mind upon the evidence in the case,” Like
views were expressed by other judges, but there was no dissent from the
opinions above quoted. And in State vs. Buckley, 54 Ala., 599, impeach-
ment is defined as a criminal proceeding without the right of trial by jury.
It is not alone in form, but also in substance, a criminal prosecution. As
said by Senator Sargent in Belknap's case (page 87): ‘A sentence of dis-
qualification is a humiliating badge affixed to high crimes and misde-
meanors in office, ’’’ -
If therefore we are correct in our contention that the words “gross neg-
ligence” are equivalent to “wilful negligence” from the adjudications
thus referred to upon the meaning of the word “wilful,” it must be appar-
ent to the court that the charges and facts as disclosed by the record, do
not bring the case at bar within the governor’s jurisdiction under the
constitutional provisions,
In the case of State vs. Hastings, above cited, the court said:
“It may be safely asserted that where the act of delinquency consists
in the violation of some provision of the constitution or statute, which, if
denounced as a crime or misdemeanor, or where it is a mere neglect of duty,
wilfully done, with a corrupt intention, or where the negligence is so
gross and the disregard of duty so flagrant as to warrant the inference
that it was wilful and corrupt, it is within the definition of a misdemeanor
in office. But where it consists of a mere error of judgment or omission
of duty without the element of fraud, and where the negligence is attrib-
utable to a misconception of duty, rather than a wilful disregard thereof,
it is not impeachable, although it may be highly prejudicial to the inter-
ests of the State.”
It is also said in this case that:
“Every controversy is important to the parties immediately concerned,
and this is no exception. But the question whether these respondents or
others shall serve the people, and the effect of a conviction upon them,
are of small concern compared with the principle involved. It is useless
to indulge in platitudes with regard to public trusts, or the binding obli-
gations of an oath of office. A favorite argument in state trials 300 years
ago was that, if the accused should be acquitted of the misdemeanor
charged, no one was impeachable, and the fact that it was frequently
employed during this trial proves that history repeats itself. It was then,
as it is now, the plea of necessity, the argument used when reasons were
wanting. According to the definition of official misdemeanors contended
for by the state, and which must be adopted to warrant a conviction, it
will be within the power of an aggressive majority of the legislature at
any future time to secure the removal of an obnoxious officer.
“It has been truly said that impeachment is a heroic remedy, to be
resorted to in extreme cases. The only precedents which tend to sustain
the position of the managers are early cases in England, while the law of
impeachment was in a state of evolution, and which have never been
recognized as authority in this country. It may also be asserted as a
fact known to every student of English constitutional history that the
decadence of impeachment as a remedy in England dates from about the
time the house of lords became illustrious for the learning and character
of its members, and that it is now practically obsolete in that country.
As said by Professor Dwight, (6 Amer. Law Reg. (N. S.) 282): “The
dramatic period of English history has passed away. There have been no
BOARD OF STATE CANVASSERS. 87
impeachments for fifty years, and doubtless will be none of special import-
ance unless a revolution takes place.' And the words of the late Justice
Miller, in speaking of Johnson’s impeachment, are quite as applicable to.
this: ‘It may also be said that, in view of the invitation which a success-
ful result in that effort to convict and remove him would have held out in
future times to exasperate majorities in the legislative body opposed to
the president and his manner of exercising the functions with which he
is charged by the constitution, to get rid of a president against whom
such personal hostility existed, the country is fortunate in the fact that
the great impeachment failed.’ Miller, Const. 172. It is better that the
State should be confined to the remedy afforded by the criminal code and
civil action on the bonds of its officers than an alternative so dangerous
and so liable to abuse as impeachment for technical violations of law,
errors of judgment, mistake of fact, or even neglect of duty such as is
disclosed by the proofs in this case.”
It was contended upon the argument of the motion before the Governor
on behalf of respondents, and is urged again here, that the Governor has
no jurisdiction to remove the respondents from the offices which they
respectively hold, for their action when acting as the members of the
board of State canvassers. It was said that the Board of State Canvassers
was functus officio. Some contempt was expressed by counsel for the
rosecution for this position, occasioned undoubtedly from a misunder-
standing of our position.
The Board of State Canvassers, so far as the canvass of the votes on the
constitutional amendment is concerned, is functus officio, and our posi-
tion is that the powers of the Governor under this section of the constitu-
tion, are to be directed towards the investigation of the conduct of the
officers named in this section of the constitution, as it relates to the
administration of the particular offices over which they preside, and not
as it relates to their conduct when acting as members of any board or
body whether it be constitutional or statutory. It was to protect the
State against a constantly recurring injury, or an injury that was likely to
recur in the offices named, that such powers were given to the Governor.
In answer to the position of respondents upon the argument of the
motion, that no jurisdiction had been obtained over the respondents
because of the fact that the citation issued by the Governor was not
attested by the seal of the State, and was not issued in the name of the
people of the State of Michigan, it was said that we had submitted our-
selves to the jurisdiction of the court; that “seal or no seal,” we were
here. It will hardly be contended by counsel, upon second thought,
unmoved by the heat of argument, that where the respondents appeared
as they did here specially for the very purpose of denying the jurisdic-
tion of the court, and moving to quash the proceedings because of the
defects named, that they submitted themselves to the court’s jurisdiction.
Such is not the law of the land.
In closing this brief it is proper to call the attention of the court to the
gravity of the situation in which we all find ourselves. The Governor’s
court of impeachment is a remarkable court, and the proceedings are
remarkable. In none of the sister states of this republic have the people
seen fit to confer upon one man the powers that by this clause of the con-
stitution have been conferred upon the Governor of this State. There are
provisions of some states under which the Governor sits with others in
(>
88 REMOVAL PROCEEDINGS,
impeachment proceedings, but in no state is he empowered to sit alone,
and in the history of Anlgo-Saxon jurisprudence we challenge counsel to
point out any tribunal upon which has been conferred the power to prefer
the charges, to weigh the evidence, and to pronounce sentence upon the
accused. This is not the fault of the court; it is not the fault of
counsel for prosecution, and we do not urge it in any spirit of complaint
against the people of the State because of its adoption, but we do urge it
to impress upon the court the remarkable power of the Governor, and the
extreme necessity of confining it within its legal limits under an intelli-
gent and sound construction of the comstitution. The proceedings them-
selves are most extraordinary. Not in the history of impeachment trials
held under laws and constitutions which have vouchsafed to the subject
constitutional liberties will be found a trial where the accused has been
brought to answer for conduct in which he has not been charged with
corrupt motives, and not in history will a conviction be found where the
evidence has not sustained the charges of corrupt conduct upon the part
of the accused.
When the political considerations which influence the judgment of the
public of today have passed away, these proceedings will be judged by the
record which is here before the court. A precedent is to be established,
which may be a wise example for those who are to come after us, or which
may furnish a dangerous precedent to political autocrats. \,
As important as it is to these respondents who have their all at stake,
that the judgment of the court should be lifted above all other considera-
tions except the constitution and the law, and the fixed and undoubted
purpose of the court to exercise its powers with the highest degree of
public justice, of still more importance is it to the people of the State,
that the court should look to the most remote results that will follow the
judgment that it shall pass, and that no principle of consitutional liberty
shall be violated, and that a precedent shall be established that shall be
not a menace to the people, but a safeguard against the exercise of auto-
cratic and despotic power.
SMITH, LEE & DAY,
Attarneys for Respondents.
|FRED A. BAKER,
Of Counsel.
BRIEF OF JOHN ATKINSON FOR RESPONDENT,
This is a proceeding by quo warranto, to test the validity of an order
recently made by the Governor, removing the respondent from his office,
The facts are few and simple. Mr. Jochim was elected Secretary of
State, in 1892, for the term commencing January first, 1893, and ending
December 31, 1894. tº a r *
At the spring election of 1893, an amendment, to the constitution,
regarding the salaries of certain officers, was submitted to and voted upon
by the people. º
The returns from several counties were sent as required by law to the
respondent's office. They were received and a tabulation was prepared
BOARD OF STATE CANVASSERS. 89
by clerks. Mr. Jochim was informed that the tabulation was ready and
by postal cards called the State Board of Canvassers together. When it
convened the tabulation was laid before it. It does not appear whether
the returns received from the several counties were, or were not, formally
submitted. The tabulation appeared to be regular upon its face. The
members of the board relying upon the clerks, and believing the work to
be correct, attached their official signatures. None of the members
acutally examined the returns from the counties.
Subsequent investigation shows, that in transcribing the returns from
the counties, frauds were committed, of such magnitude as to change the
result and make it appear that the amendment had been carried, while in
fact it had been lost.
The Governor, without any charges having been preferred by any third
party, and of his own motion, cited the respondent and his associates,
who formed the Board of State Canvassers, to appear before him, to
answer for gross negligence, in failing to examine the county returns,
and compare them with the tabulation, which they signed.
The defendants appeared as required by the citation, and objected to
the jurisdiction, on grounds some of whiêh will hereafter be more fully
considered. The Governor overruled the objection.
Mr. Harrison Geer and Judge Cahill, acting apparently for the Gov-
ernor, and having no official position in connection with the administra-
tion of the law in this State, appeared for the prosecution. They offered
to prove the facts as above stated. To avoid delay respondent and his
associates admitted them.
The Governor's counsel then read in evidence several canvasses pre-
viously made by the respondents. No error was pointed out in any of
them. It is presumed that they were introduced to show that the
respondents had had some experience in canvassing votes cast in the State.
It was also proved that respondent had rendered an account for attend-
ance at the meeting of the Board and had received the ordinary allow-
{{IlC68.
The Governor has made a written finding of facts, substantially the
same as alleged in his citation. He has ordered the removal of the
respondent and his associates from office and declared their offices vacant.
To avoid delay and an unseemly scramble for the offices counsel have
framed an issue and agreed to submit the question of the validity of the
Governor’s order to this court.
The technical legal questions involved will be treated very fully by
other counsel. What I shall say will be of a general nature, rather than
a legal or technical discussion.
To an ordinary mind the merits of the controversy lie within very nar-
row limits. They undoubtedly depend a good deal upon the mental qual-
ities of the parties to whom they are submitted. Men of equally high
character will arrive at opposite opinions as to them.
It should be remembered that respondent has been elected to his office
by the people of the State for a fixed period. If the order of the Gov-
ernor is sustained the will of the people as expressed is to a certain
extent annulled. The office, the duties of which Mr. Jochim has been
elected to discharge, will fall into other hands, and be administered by
one not selected by the people, but by the Governor.
12
90 REMOVAL PROCEEDINGS.
It must be conceded that in this respect the case is a serious one for
the people of this State. Our constitutional policy has been to admin-
ister our affairs through elective, and not appointive, officers. This policy
is not to be overthrown upon slight grounds. *
The case is one of almost tragic significance to the respondent. He has
been proud of the distinction, and the trust and confidence shown him by
his fellow citizens. He regards the order of the Governor as an infliction
upon him of a shame and humiliation, which is hard to overstate. He
feels that it degrades him, from the level upon which he has been living,
to one far below it. -
Mr. Jochim recognizes the fact that the Governor does not charge, and
no testimony has been offered, which imputes moral delinquency. He
cannot, however, bring himself to think, that unless he has committed
Solne crime, he should be made to suffer so great a degradation as a
removal from office. He insists that he has committed no crime, but like
the rest of the people of the State, has been the victim of fraud, in which
he had no part.
In the case at bar, the Governor claims to be acting under the amend-
ment to the constitution adopted in 1862; being section 8 of article 12,
and which reads as follows:
“The Governor shall have power and it shall be his duty, except at
such time as the legislature may be in session, to examine into the condi-
tion and administration of any public office, and the acts of any public
officer, elective or appointive, to remove from office for gross neglect of
duty or for corrupt conduct in office, or any other misfeasance or malfeas-
ance therein, either of the following State officers, to wit: The Attorney
General, State Treasurer, Commissioner of Land Office, Secretary of
State, Auditor General, Superintendent of Public Instruction, or mem-
bers of the State Board of Education, or any other officer of the State,
except legislative and judicial, elective or appointed, and to appoint a
Successor for the remainder of their respective unexpired term of office,
and report the causes of such removal to the legislature at its next
session.” . -
The Governor has held, that the respondent is guilty of gross neglect
of duty, under this section, in not having personally compared the county
returns with the tabulation, made by his clerks, and in signing the tabu-
lation, in reliance upon his clerks, and in the belief that it was correct.
By the statutes, respondent was required to record the returns sent him
by the counties, in a book to be kept by him for that purpose.
How., Sec. 203.
Having recorded the returns he was required to call the Board of Can-
vassers together, and to lay before it the statements received by him of
the votes given in the several counties. -
The board was to examine the statements and determine and declare
the result.
EIow., Sec. 214.
BOARD OF STATE CANVASSERS. 91
Respondent was then required to record the determination in a book
kept by him for that purpose. If the amendment had been declared car-
ried, he was to record it also, in the book in which the original act of the
legislature is recorded.
How., Sec. 215.
If the language is strictly construed, the whole work is to be done by
the Secretary of State himself. -
The amount of labor laid upon the Secretary of State, and which by the
exact wording of the law, he is required to personally perform, is very
great.
Aside from the duties required of him by the constitution, the statutes
of the State demand of him a volume of work which no man, though he
devoted every moment of his time to the task, could by any possibility
perform.
The follwing are among the duties which by statute he is required to
personally discharge :
The very first section of the statutes (see Howell, Sec. 1) requires him
to receive and perpetually keep all acts of the State legislature,
Section 6 requires him personally to be the depository of all acts and
joint resolutions of the legislature.
Section 4 requires the Secretary of State to personally arrange and bind
in a substantial manner all acts and joint resolutions of the legislature,
and to keep the same on file in his office.
Section 5 requires him to receive the enrolled acts and joint resolutions
of the legislature and bind the same in a volume, and requires him to cer-
tify on the frontispiece of said volume that the same contains the whole
of the original acts and joint resolutions of the legislature as enrolled by
the clerks, signed by the presiding officers of the senate and house of
representatives, and approved by the Governor. Also to certify which of
said acts have become laws under the constitution of the State without the
signature of the Governor.
Section 7 requires the Secretary of State to personally prepare and
cause to be published with the session laws of 1877, a full and complete
index of all the general laws enacted by the legislature during the years
between 1872 and 1877, such index to give briefly the subject matter of
the law, reference to the year, page of session of law, and to section of
compiled laws altered, amended or repealed. Such index is required to
be so arranged as to secure easy reference to compiled laws and any
changes made in the same by alteration, amendment or repeal.
Section 8 requires that a similar index shall be prepared and published
§ the Secretary of State with the session laws of each succeeding legis-
ature.
Section 10 requires the Secretary of State personally, within twenty
days after the close of each legislative session to carefully examine and
classify all acts passed, placing all acts of a general character which affect
the entire people of the State, and all joint or concurrent resolutions of
like general character, as well as amendments to the constitution, together
with so much of the annual report of the State Treasurer for the year as
.. f -
92 REMOVAL PROCEEDINGS.
will show an account of the receipts and disbursements of public moneys,
in one volume, to be entitled “Public Acts of Michigan.”
Section 10 also requires the Secretary of State to properly arrange the
foregoing volume with side notes and indexes so as to enable the reader
to secure ready references to any particular subject.
Said section also requires the Secretary of State to classify and com-
pile all acts of a local or municipal character, and publish the same separ-
ately in a volume or volumes, entitled “Local Acts.”
Section 11 requires the Secretary of State to distribute such foregoing
publications to a large number of public persons, officers, libraries, cor-
porations, state institutions, members of various boards, members of
legislature and certain other officials in various parts of the State.
; Section 14 requires the Secretary of State to keep on sale extra copies
of the session laws, and to account for all sales of the same to the State
Treasurer, and pay the money received therefor to the State Treasurer
monthly.
Section 19 requires the Secretary of State to publish an annual report
on births, marriages and deaths, and distribute the same to like persons
as are specified with reference to the distribution of public and local acts.
Also to deposit various numbers of said reports with certain State
institutions named in said section.
Section 22 requires the Secretary of State to personally advise with the
State printer as to the number of copies of any of the books or pamphlets
that are required by law to be published, which shall be published in each
W68.T.
The same section also makes it the duty of the Secretary of State to
advise with the several officers, boards of officers and all public institu-
tions making reports, as to the number of copies of their respective
reports which it is deemed necessary to publish.
Section 23 makes it the duty of the Secretary of State personally to
direct, or to oversee to the prompt distribution of all laws, journals, docu-
ments and reports published by the State whose distribution is not other-
wise provided for.
Section 24 makes it his duty to require a receipt from the several county
* for all books which the Secretary of State is required to send to
08CI).
The same section requires the Secretary of State to furnish blanks for.
said receipt, and to give full directions as to what officers the county
gº are required to deliver publications received from the Secretary of
tate. - t -
The same section also requires the Secreatry of State to notify each
person to whom any book or books are sent, either directly or in the care
of the county clerk. *
Section 33 requires the Secretary of State to furnish a set of territorial
laws to each of the judges of the supreme court and the circuit court, also
to each member of the legislature, two sets to each county clerk, and one
set to each judge of probate. s
Section 35 requires the Secretary of State to procure one or more com-
plete copies of the laws of the United States and see that the same is kept
deposited in the State Library.
Section 42 makes it the personal duty of the Secretary of State to pre-
pare a true and correct list of the members of each house of the legisla-
BOARD OF STATE CANVASSERS. 93
ture and deliver the same to the secretary of the senate and the clerk of
the house on the day prior to the regular session of the legislature in each
year, which list shall designate the districts respectively represented by
such legislators
Section 49 makes it the duty of the Secretary of State to prepare his
certificate of the date of the end of each session of the legislature, which
certificate is to be published with the laws of the session.
Section 111 makes it his duty to prepare and publish, and keep record
of the registration lists which are required to be sent to him by every city
and towship clerk in the State.
Section 146 requires him to give written notice to the sheriff of each
county of any vacancy which may occur in the office of any judge, regent,
board of education and other State offices, thirty days prior to the general
election succeeding such vacancy.
Section 147 requires the Secretary of State between the first days of
July and September preceding a general election to give notice, and cause
to be delivered to each sheriff, in writing, a notice stating what general
State officers will be chosen at the next election.
Section 148 requires him to give like notice of the number of senators
and representatives to be elected in each county, specifying the number
of each district and the limits thereof.
Section 149 requires the Secretary of State to immediately notify the
sheriff when any special election is ordered in any county, the time of
such election, the cause of the vacancy, name of the officer, and the time
when the term of such office will expire.
Sections 202-210 make him a member of the Board of State Canvassers
and specify the many detail duties for him to perform in that connection
as hereinbefore set forth. These duties are created in language similar to
that referring to other duties.
Section 265 requires him to be custodian of the great seal.
Section 268 lays upon him very grave duties in case of death of State
Treasurer, or in case of vacancy in that office.
Section 307 makes him member of the State Board of Auditors, and
º: * the succeeding twelve sections lay upon him an immense volume
OI WOTK.
Section 319 makes him a member of the State Board of Equalization.
Section 344 requires him to make contracts for certain supplies.
Section 346 requires him to advertise for certain sealed proposals for
furnishing certain supplies for the State.
Section 354 requires him to make an annual report,
Section 355 requires him to examine and correct the proof sheets of his
report, and superintend its publication.
Section 408 makes him a member of the board of trustees of certain
State assets.
Section 626 requires him to transmit notaries’ commissions to county
clerks whenever the same are issued by the Governor.
Section 642 requires him also to transmit other commissions granted by
the Governor,
Sections 823 to 856 lay upon the Secretary of State a great amount of
work in connection with the State census. “He shall prepare proper
blanks, etc.," and “shall transmit the same to the several county clerks,
etc.”
94 REMOVAL PROCEEDINGS.
The act relative to the registration of births, marriages and deaths, lays
important duties upon the Secretary of State, and the laws concerning the
compilation and publication of vital statistics require of him equally
extended labor. The items are too numerous to refer to.
Section 1539 requires the Secretary of State to examine and approve
the official bond of the State oil inspector.
Section 1632 requires him to provide suitable rooms for the meeting of
the State Board of Health.
Section 1782 requires him to give directions to the superintendent of
the poor in the several counties as to how they shall make their annual
reports.
Section 1783 requires him to notify the prosecuting attorneys of any
failures on the part of the superintendents of the poor to make reports,
Section 1784 requires him to make an abstract of the reports of super-
intendents of the poor, and lay the same before the legislature each
S6SSIOI),
Section 1810 requires him to prepare and transmit blanks on which the
supervisors make certain reports relative to maintenance of the poor.
Section 1812 requires him to furnish another set of blanks for a con-
densed report by the superintendent of the poor.
Section 1876 requires him to prepare and send to the superintendent of
the school for the blind once in each year a copy of all statistical informa-
tion received during the year concerning the blind.
Section 1924 lays upon the secretary laborious duties respecting the indi-
gent insane.
Section 2296 requires the secretary to make certain distributions of the
reports of the State Board of Agriculture.
Section 4220 lays upon him important duties respecting life insurance
companies.
Section 4277 lays upon him similar onerous duties respecting fire and
marine insurance companies.
Certificates of organization of many different kinds of companies are
required to be filed with the Secretary of State. These he must receipt
for and make record of.
Innumerable reports of various kinds of companies and corporations
must be filed with him. He must receipt for and make record of each.
Scores of various declarations, notices of increase of capital stock, of
location of offices, of transfer of corporate rights, etc., are to be filed with,
recorded and receipted for by the secretary.
Section 5212 requires him to see to the recording of conveyances to the
State, and to register and file all evidences of title to lands belonging to
the State. *
Section 5213 requires him to keep and record all confirmations of
university locations of all school lands, and State lands of every descrip-
tion.
Section 5218. All grants of land by the United States to this State
must be recorded by the secretary in a book kept by him for that purpose.
Section 5298. The secretary is also required to assist in making
appraisals of certain lands received by the State in payment of debts.
Section 5305. The secretary is also required to perform various duties
in connection with the granting of patents for lands by the State.
BOARD OF STATE CANVASSERS. 95
Section 5368. The secretary is made a member of the Agricultural
Land Grant Board which has charge of the lands granted by congress to
the State Agricultural College. He has important duties in this capacity.
Section 5412. The secretary is also a member of the Board of Control
for the reclamation of swamp lands. His duties in this body are onerous
and highly important.
Section 5488, The secretary is a member of the Board of Internal
Improvement, which performs the functions formerly discharged by the
Commissioner of Internal Improvement.
Section 5679. It is made the duty of the secretary to make record of
all patents of lands issued by the State, keeping the same in books duly
indexed, etc.
Section 8632. The secretary is also to notify the State Land Office of
the vacation of all land patents.
Section 8633. He is also to make publication of certain judgments in
favor of the State.
Section 8660. He must likewise publish notice of recoveries by the
State against corporations, etc.
Section 9664. This section requires the secretary to perform the very
important duty of providing and furnishing all sheriffs, jailers and keep-
ers of prisons and other penal or reformatory institutions with forms suit-
able for keeping the records of such institutions in a systematic and
uniform manner.
Section 9665. The secretary is required to direct how all annual reports
of all penal institutions shall be made to him.
Section 9667. The secretary is required to compile and annually pre-
sent to the Governor an abstract of the reports relating to jails, etc.
Section 9888. The secretary is required to perform certain services for
the Board of Corrections and Charities.
All articles of association are to be filed with, recorded and receipted for
by the Secretary of State. Something over seventy (70) different kinds
of corporations are included in the list. For some of these companies the
Secretary must prepare and furnish appropriate blanks for incorporation.
The secretary is also required to perform various services for the Gov-
ernor in the way of publishing his proclamations, etc.
Section 832p requires the Secretary of State to prepare blank
schedules for taking the census statistics of the State, and transmit the
same to the several county clerks for distribution to the census enumer-
ators. He is also required to prepare an elaborate pamphlet of instruc-
tions relative to taking the census.
Section 833p. It is made the further duty of the secretary, on the
return of the schedules duly filed, to examine the same and see that they
are perfect, and to condense, arrange, tabulate and properly prepare the
same for publication. He is then required to publish the same. In fact,
the entire laborious task of superintending the census is laid upon the
Secretary of State.
Section 834p. The secretary must also collect, compile, condense,
publish and distribute statistics of annual cereal products. He is also
required to supervise the publication of monthly crop reports, and reports
relative to wool, wheat, etc. Also reports of importance to pomologists,
horticulturists, etc.
96 - EEMOVAL PROCEEDINGS.
Section 838c requires him to furnish blanks for the collection of
apiarian statistics, and to publish annually in the farm statistics an
abstract of the information collected.
The late election laws and laws relating to the modified Australian bal-
lot now in force in Michigan put an immense labor upon the Secretary of
State. He must prepare and furnish printed instructions to voters, and
send the same to county clerks for distribution. The instructions
must be plain, explicit, and in foreign languages, if required. The sec-
retary must be an accomplished linguist if he discharges this duty
personally.
Section 787 i requires the Secretary of State to prepare and publish at
the close of each legislative session all laws enacted relative to townships
or the duties of township officers, and to distribute the same.
Section 3981 lays onerous duties upon the Secretary of State in the way
of furnishing copies of papers relating to the organization of certain cor-
porations—the same being for record in the office of the register of deeds
for the county where the corporation has its principal office.
Section 2887e2. The laws relating to the State Weather Signal Ser-
vice lay duties on the Secretary of State in the way of publishing a
monthly summary of observations.
Section 6222b. The laws providing for marriage licenses lay very great
duties on the Secretary of State. He is required to prepare and furnish
all blanks to county clerks, and practically to see that the system is prop-
erly and uniformly executed.
The foregoing are only some of the duties which the statutes lay upon
the secretary personally. The wording of the statute in each instance
would require him to perform the acts himself.
There are also in addition a great number of statutes which require him
“to cause” certain acts to be performed.
The Secretary of State has also by precedent become obligated to per-
form many acts not specifically enumerated in the statutes.
Among these are important duties assumed in connection with the
labors of the Electoral College of the State.
In short, it would seem that by long practice it has become the custom
for the Secretary of State to do about everything that is not directly laid
upon some other State officer. And whenever any act of a clerical nature
is required to be performed for the State, the secretary, unless the statute
2Otherwise directs, by custom assumes the task.
1. The respondent contends that while the statute apparently requires
him to personally receive, record and examine the election returns from
the several counties, its reasonable construction is, that he shall do this
work by others, and he is not guilty of gross negligence for not having
personally performed it. This leads to the first important question in
this case. What is gross negligence within the meaning of the constitu-
tion?
Courts have experienced great difficulties in defining negligence, and in
drawing a clear line between gross, ordinary and slight negligence
The general rule as applied to civil remedies seems to be that “gross
negligence is the failure to exercise even slight care.”
Beech on Contributory Negligence, Sec. 18.
J. & S. E. R. R. vs. Southwood, 25 N. E., 1093, Ia., 1890.
BOARD OF STATE CANVASSERS. 97
It is decided that it is not the want of ordinary care.
M. P. R. vs. Brown, 75 Tex., 267.
Do the specifications charge these officers with a failure to exercise
even slight care in the performance of their duties? The specifications
concede that the work of transcribing and tabulating the returns had been
done by clerks. There is no claim that the clerks were not competent, or
that the respondent had any reason to regard them as untrustworthy. The
records from which the tabulation was made are voluminous.
Can the head of a department who has appointed competent clerks
whom he believes to be trustworthy to do what is strictly clerical work,
be considered guilty of gross negligence for accepting their tabulations
when completed, and attaching his official signature to them?
It must be remembered that the proceeding before the Governor belongs
to the criminal, rather than to the civil, law. The offense charged is pun-
ished by one of the severest penalties known. It is a penalty which it
must be conceded should not be imposed, except in cases of serious fault.
It is rank injustice to impose such a penalty, where an officer has only
done what everyone in his situation is compelled to do. The people of
the State are not to be served by deposing one whom they have chosen to
administer a great office upon slight ground.
Judges frequently sign Court Journals upon the assurance of the clerk
that the judgments of the previous day have been written up in the usual
form. They often sign decrees, taking the word of the solicitor that they
are in accordance with the judgment rendered. The practice is not gen-
eral, and may not be commendable, but no one would say that a judge,
who relied upon the clerk or solicitor, and believing the statements made
to him to be true, attached his signature would be guilty of such a gross
neglect of duty as to justify his removal from office.
It is true in this case that a great fraud has been committed upon the
people. It has been committed by the clerks of the respondent. It is
not suggested or proved that he had any part in it. It has been hinted
that he may be responsible for the acts of his appointees. To answer this
suggestion it is important to bear in mind the difference between civil
and criminal responsibility. It is conceded that Mr. Jochim, as head of
his department, is civilly responsible for the acts of his subordinates. If
a clerk steals a postage stamp from his office, the secretary must account
for it. It is contended, however, that the rule is different, when we come
to the question of criminal responsibility. This difference is clearly
pointed out in the following cases: . Q
Miller vs. Lockwood, 5 Harris, Pa., 248, was an action to recover a
penalty of $50 for taking illegal fees. The register’s clerk, without the
knowledge of his principal, made the charge and received the money.
From the opinion: “The difference between a civil action and an indict-
ment for taking illegal fees is that in the indictment it must be shown
that the illegal charge was made ‘wilfully, fraudulently and corruptly;’
while in an action the officer is liable, although the charge was made by
mistake and without any intention to extort. Act of 25th of March, 1831;
5 Watts, 477; 17 Ser. & R., 75. In an indictment the officer might not
13
98 REMOVAL PROCEEDINGS.
be liable for the misconduct of his deputies, if unauthorized and unsanc-
tioned, but in a civil suit he is responsible for them.”
In the State vs. William Privett, 4 Jones, N. C., 100, where there was a
statute as follows: “Every species of unlawful trading with a slave which
is forbidden by this chapter, shall, when done by the agent or manager of
another in the course of the business in which he is employed, be deemed
to have been done by the consent and command of his principal or
employer, unless the contrary shall be proved,” etc. The trading was not
denied, but the defense was that the liquor was sold by the clerk of the
defendant contrary to his orders. The clerk swore that he had instruc-
tions from the defendant not to sell, at any time, to a slave without a
written order, The jury was directed “that the general instructions
alleged to have been given by the defendant to his agent, the clerk, would
be sufficient to rebut the presumption raised by the act if unreversed and
unexceptionable in their nature; that such instructions might be abrogated
expressly, or by a course of practice to the contrary, or by a special
approval; but unless there was some such reversal, the instructions sworn
to by the witness, would exempt the defendant from personal responsi-
bility. Held a correct charge.
Hanson vs. The State, 43 Ind., 550. Sale of liquor to minor in absence
of proprietor of a saloon and without his knowledge. Held that the pro-
prietor was not liable. The court say:
“Can we presume that the defendant where he left the bartender in
charge of the bar, made him his agent to sell to a minor, an act which
would be in violation of the law? There is no evidence that he authorized
any such sale.”
The following extract is quoted from Lauer vs. The State, 24 Ind., 131:
“But the case must be reversed, because there was nothing in the evi-
dence from which the inference could be drawn that the defendant either
did the acts charged in the indictment, or that they were done by his
authority or consent, express or implied, or even with his knowledge.
We must not hold men responsible for crimes committed by others, with-
out some proof that they either procured, counseled or advised their per-
petration. We know full well that in this class of cases the guilty may
sometimes escape for a failure of this proof, and that it may sometimes be
impossible to produce it in cases where it exists. But these considera-
tions are also applicable to every other class of crimes. The guilty
frequently go unpunished for lack of proof, but it is better than that the
innocent should be punished as well as the guilty.”
“The general rule is, that a master is liable in a civil suit for the negli-
gence or unskilfulness of his servant, when he is acting in the employ-
ment of his master; but that he is not subject to be punished by indict-
ment for the offenses of his servant, unless they were committed by his
command or with his assent. The following is a leading case on this sub-
ject: An indictment was found against the warden of a prison and his
deputy for the murder of a prisoner by keeping him in an unhealthy
place, etc. It was proved on the trial of the warden, that the act com-
plained of was done by the deputy alone, without the command or knowl-
edge of the principal. The court held that though the evidence showed
the deputy to be guilty of the offense charged, yet that the principal was
not liable. It was said by the court in that case, that though the defend-
ant was warden, yet it being found that there was a deputy, he was not,
BOARD OF STATE CANVASSERS. 99
as warden, guilty of the acts committed under the authority of his deputy;
that he should answer as superior for his deputy civilly, but not crimin-
ally: * * * that he is only oriminally punishable, who immediately
dºg the act or permits it to be done: Hale's P. C., 11.4.”
ee also,
Hipp vs. The State, 5 Blackf., 149.
L. & N. R. Co. vs. T. S. Blair, et al., 1 Tenn. Ch., 3.
Anderson vs. The State, 22 Ohio St., 305.
The State vs. John Dawson, 2 Bay, 360.
Reg. vs. Willmett, 3 Cox C. C., 281.
1 É. Pleas of the Crown, 331.
The foregoing cases show clearly the distinction between civil and crim-
inal responsibility.
To return to the duties assigned the Secretary of State.
It may be suggested that while many of the duties imposed by statutes
upon the Secretary, are such that in their nature they may be performed
by deputies, the particular duties in question are such as to require his
personal action. No doubt some of the many duties imposed must be
done by him, and others by subordinates. The question as to how each
duty shall be performed, is one which he in the first instance must decide.
Suppose that he makes a mistake in his decision, and holds that the
duties which he ought to personally discharge, may be discharged by
others. It will hardly be contended that for such an error of judgment,
he should be removed from office.
It has been suggested that the Governor is the final judge as to what
constitutes gross neglect under this constitutional provision, and that
whatever he holds to be gross neglect, must be so considered by the court.
This construction would give to the Governor such arbitrary power as to
lead us to the conclusion that it could never have been intended by the
people of the State to confer it upon any one man. It would leave every
officer of the State at the mercy of the Governor. Any possible neglect,
or no neglect at all, might be tortured into a cause of removal.
I insist that to give the Governor jurisdiction, even if it be held that
this provision of the constitution confers judicial powers upon him, to try
the officers named, and pronounce upon their guilt, the charge must
specify some offense, which is recognized by the law as gross neglect, and
that the sufficiency of the charge is a question for the courts.
If I am right in this contention it will be necessary for this court to
decide whether the offenses specified in the charges made by the Governor,
are covered by the provisions of the constitution already referred to.
It is submitted that removals from office, under section eight of article
twelve, can only be made for causes, for . which impeachments can be
instituted.
Impeachments from office can only be for “corrupt conduct in office or
for crimes and Imisdemeanors.” See section 1, article 12.
Section eight was made a part of the constitution, by amendment in
1862, for the purpose of giving the Governor in vacation the same power
concerning removals that the legislature possessed when in session, .
#
& 2 " " -
*
100 REMOVAL PROCEEDINGS.
It is not claimed that respondent has been shown by the charges made,
the testimony taken, or the findings of the Governor, to be guilty of cor-
rupt conduct in office, or crime or misdemeanor.
2. Assuming that the neglect specified brings the case within the
amendment of 1862, is the order made in this case valid?
The amendment itself is silent as to a trial. But this court has held
that before an officer can be deposed charges must be preferred, and he
must have a hearing.
Dullam vs. Wilson, 53 Mich., 393.
In that case removal was made under an act of the legislature which
was held to be void, and without any trial of any kind. The amendment
of º came under discussion. In the majority opinion this language is
l'ISOC! 3
“Unless it is the manifest intention of the section under consideration
that the proceedings should be ea parte as well as summary, a removal
without charges, notice and an opportunity for defense cannot be upheld.
The exercise of such power in such manner would be too despotic for any
attempt at vindication in a country which boasts of the utmost liberty
compatible with the safety of the State, and is entirely opposed to the
genius of our free institutions.” The dangers of such a proceeding are
elcquently pointed out by the court. It is suggested that if such things
were allowed, the Governor might, at his mere will, remove all State
officers, and fill the places with his partisans “defeating the express will
of the people who elected him.” A person reading these eloquent words
would become impressed with the idea that an accused officer had the
right to demand a trial before some impartial tribunal. The majority of
the judges, however, seem to hold that the Governor may inquire into the
administration of the office; that he may then prefer charges, cite the
officer to appear before him, prosecute the charges himself and then pass
judgment. *
To call such a proceeding a trial, and to intimate that it in any way
protects the liberty of a citizen is entirely unwarranted.
If the State had a Governor who would be willing to remove all State
officers, and fill their places with his own partisans, he would certainly
not be prevented from doing so by the difficulties attending a trial, in
which he was complaining witness, prosecuting attorney, judge and jury.
In the dissenting opinion of Judge Campbell, it is clearly shown that
in order to give the officer charged any protection whatever it is necessary
that he be tried before some court of competent jurisdiction and convicted
before he can be punished. I cannot myself see that the point was neces-
sary to a decision of the case. It seems to me that the removal was fatally
defective, because the law under which it was made was void, and because
there had been no trial of any kind. If I am right in this the question
remains an open one in this State, and I submit that the reasoning of
Judge Campbell is unanswerable.
The answer attempted is that unless the Governor can try the officer in
a summary way, the proceeding will be so slow as to render the constitu-
tional provision nugatory.
BOARD OF STATE CANVASSERS. 101
The proceeding need not be slow. On a complaint before a justice or
an indictment by a grand jury, the officer may be tried at the next term
of the circuit court. If this is not expeditious enough, legislation can
provide for greater speed. *
Justice should never be sacrified to speed. Experience shows that
when the clamor is loudest, deliberation becomes more and more desirable.
Suppose Governor Begole in Wilson’s case, after he had removed him,
without hearing or trial, had discovered his mistake and concluded to cite
him to appear before him and be tried, would any one contend that the
trial would possess any of the attributes of a judicial inquiry?
Under the 14th amendment to the federal constitution no man can be
deprived of life, liberty or property without due process of law.
An office is recognized as property.
What is due process of law?
In this case the Governor makes the charges, he employs private counsel
to prosecute them, and sits in judgment. If this order is sustained he
will have an office to bestow upon some favorite.
The right to present another with an office is property. It is like the
advowson familiar to the English law.
Bouvier Dic. Advowson.
CAN THE GOVERNOR SIT AS JUDGE IN THIS CASE 3
“Nemo protest esse judea, in propria causa” is a fundamental principle
of law. It is laid down by Lord Coke, as an absolute requisite of justice
and is referred to in Broome’s Maxims of the Law, as a principle, to which
there can be no exception, under any circumstance.
Broome’s Maxims, 116, and the cases cited there.
So far reaching is this general principle that it has been said that, even
an act of parliament, made against natural equity, as, for instance, one
which would make a man judge in his own case, is void in itself.
Cooley’s Const. L., 410, 411.
In the reign of James I, it was solemnly adjudged, that the king could
not take any case, whatever, out of any of his courts and give judgment
in it himself. 12 Rep., 63.
The courts of this country have uniformly held to this doctrine.
It has been suggested that the people may by constitutional provision
make a man a judge in his own cause,
Matter of Leefe, 2 Barb. Ch., 39.
This suggestion is not in accordance with correct reasoning. The
people possess no greater power than that possessed by the English
parliament.
102 REMOVAL PROCEEDINGs.
However the law may have been before the 14th amendment, since that
was adopted no man can be deprived of life, liberty or property, without
due process of law.
Cooley's Constitutional, 412, n.
The fourteenth amendment operates as clearly against any such consti-
tutional provisions, as it would against an act of the legislature. This
brings us back to the question, What is due process of law?
“Perhaps no definition is more often quoted than given by Mr. Web-
ster, in the Dartmouth College case: ‘By the law of the land is most
clearly intended the general law; the law which hears before it condemns;
which proceeds upon inquiry, and renders judgment only after trial. The
meaning is that every citizen shall hold his life, liberty, property and
immunities under the protection of the general rules which govern
Society. Everything which may pass under the form of an enactment is
not therefore to be considered the law of the land.”.”
Cooley's Constitutional Lmtn., 353.
“Due process of law undoubtedly means in the due course of legal pro-
ceedings according to those rules and forms which have been established
for the protection of private rights.”
Cooley's Constitutional Lmtn., 355,
The respondent cannot be deprived of his office, unless the judgment
taking it from him has been pronounced by a competent judge.
A judge may be disqualified from acting in the particular case, by
reason of being concerned as a party, or otherwise interested in the event
of the suit. If a judge assumes to decide a case, in which his personal
interest may come in conflict with his judicial indifference, the judgment
so rendered is null and void. - *
Black on Judgments, 174,
Under our statutes, no judge of any court, can sit in a cause in which
he is a party, or in which he is interested, or in which he would be
excluded from being a juror, by reason of consanguinity or affinity to
either of the parties.
Howell, Sec. 7245.
In Stockwell vs. Township Board, 22 Mich., p. 341, the question arose
as to whether the qualifications prescribed by the statute (Howell, 7245),
for a judge, would apply to special tribunals, and non-judicial officers,
who may be called upon to exercise judicial power; the court held that
such qualifications were imperatively demanded. The language is as fol-
lows: “The principle (that a judge cannot sit in a case in which he is
BOARD OF STATE CANVASSERS. 103
interested), has found express recognition in our statute, which declares
that "no judge of any court can sit as such in any cause, in which he was a
party, or in which he is interested.” Although the board (the township
board), may not be considered as having technically constituted a court,
3% $ * the principle itself, which derives no aid from legislation,
extends beyond the words of the statute and asserts itself wherever judicial
powers are employed by anybody appointed by law.”
The Governor in trying the respondent, if permitted to do so at all,
must be regarded as a special tribunal, as much bound by the statute in
question, as other special tribunals, like town boards.
One of the best recognized disqualifications occurs where a judge has
been counsel in any cause. It would scarcely be contended that a mem-
ber of a board, who had been counsel, could act judicially in the same
matter. In the case at bar, the lawyers, who appear to prosecute the
respondent, were the Governor’s agents and acted for him. He was as
much the prosecutor as if he had called the witnesses, and examined them
himself. The arguments which they made before him, were his argu-
ments and not theirs.
The supreme court of this State have held the statutes above referred
to, or more properly speaking the principle involved in this statute, to
apply to every kind of special tribunal, which exercises any kind of judi-
cial powers.
Pen. Ry. Vs. Howard, 20 Mich., p. 18.
Hasceig vs. Tripp, 20 Mich., p. 218.
Whipple vs. Circuit Judge, 26 Mich., p. 342.
Other American authorities on this point:
Black on Judgments, Sec. 174.
Cottle case, 5 Pick., 483. .
Coffin vs. Cottle, 9 Pick., 287.
Signourney vs. Sibley, 21 Id., 101.
Gay vs. Minnot, 3 Cush., 352.
Place vs. Manufacturing Co., 28 Barb., 503; 23 Ala., 85.
In urging these points only I do not mean to indicate any doubt of the
others raised by the pleadings. It seems to me, however, that upon the
record it is plain that the respondent has not been guilty of gross negli-
gence within the meaning of the constitution, and that he has not had
such a trial as he is entitled to under the 14th amendment to the federal
constitution.
Either objection is fatal to the order made.
JOHN ATKINSON.
104 REMOVAL PROCEEDINGS,
g
BRIEF OF FEED A. BAKER, OF COUNSEL FOR RESPOND-
ENT.
STATEMENT OF THE CASE.
Michigan was organized as a State preparatory to its admission into the
union by congress, by the adoption by the people of the constitution of
1835. The schedule to that instrument provided that the returns of the
election should be made to the president of the constitutional convention,
who was required to communicate the result to the State senate and house
of representatives, and also to the President of the United States.
Rev. Stat. 1838, p. 45, Secs. 9 and 10.
The constitution of 1835 did not create any board of state canvassers
to determine the result of elections of State officers, or of the vote on con-
stitutional amendments.
It simply provided that proposed amendments should be submitted to
the people ‘‘in such manner and at such time as the legislature shall pre-
scribe, ’’ etc.
Id., p. 43.
By an act approved March 25, 1836, the Secretary of State, Auditor
General and Treasurer were constituted State canvassers.
Laws of 1836, p. 16.
This board was continued in the revision of 1838.
Rev. Stat. 1838, p. 20.
Also in the revision of 1846, when for the first time they were author-
ized to canvass the returns on amendments to the constitution and to
ascertain and determine the result and make a record thereof.
Rev. Stat. 1846, pp. 51-52, Secs, 12, 13, 14.
The schedule to the constitution of 1850 provided that the returns
should be canvassed by the Auditor General, State Treasurer and Secre-
tary of State, in the presence of the Governor, who was required to make
proclamation of the result.
1 How. Stat., p. 74, Sec. 19.
BOARD OF STATE CANVASSERS. 105
f iºns 4 and 5 of article. VIII, of the constitution of 1850, are as
OliOWS :
“SEC, 4. The Secretary of State, State Treasurer and Commissioner
of the State Land Office, shall constitute a Board of State Auditors, to
examine and adjust all claims against the State not otherwise provided for
by general law. They shall constitute a Board of State Canvassers, to
determine the, result of all elections for Governor, Lieutenant Governor
and State officers, and of such other officers as shall by law be referred to
them. -
“SEC. 5. In case two or more persons have an equal and the highest
number of votes for any office, as canvassed by the Board of State Can-
vassers, the legislature, in joint convention, shall choose one of said per-
sons to fill such office. When the determination of the Board of State
Canvassers is contested, the legislature, in joint convention, shall decide
which person is elected.”
Id., p. 57.
The provision relative to the submission of amendments to the consti-
tution simply provides that, “if a majority of electors qualified to vote for
members of the legislature voting thereon, shall ratify and approve such
amendment or amendments, the same shall become a part of the constitu-
tion.”
Id., p. 72.
A general election law was passed in 1851, and the duty of canvassing
the returns on constitutional amendments was placed on the Board of
State Canvassers created by the constitution.
Laws of 1851, pp. 298, 299, Seos. 76, 77, 78.
It has remained there ever since.
1 Comp. L., 1857, p. 119.
1 Comp. L., 1871, p. 125.
1 How. Stat., 1882, p. 145.
It will be noticed that neither the Rev. Stat. of 1846 nor the act of
1851 expressly required the Secretary of State to send a special messenger
for missing returns on a constitutional amendment, although in both
statutes express provision was made for special messengers, if no returns
of the election of State officers were received from any county.
Rev. Stat., 1846, p. 50, Sec. 3.
Laws of 1851, p. 297, Sec. 68.
1 How. Stat., p. 144, Sec. 205.
14
106 REMOVAL PROCEEDINGS.
tº
It has been suggested that the omission of this express provision in the
constitutional amendment sections creates a corresponding difference in
the duty of the Secretary of State.
It is possible this would be so, if the question depends on the statutory
provisions alone, and no consideration is given to the constitutional funo-
tions of the Board of State Canvassers, or to the power of the legislature
to prescribe the manner in which a constitutional amendment shall be
voted on by the people, and to regulate the election thereon.
An examination of every joint resolution passed by the legislature since
1850, submitting a constitutional amendment, shows that with two excep-
tions they have uniformly contained a provision substantially of the fol-
lowing form:
“The ballots shall in all respects be canvassed and returns be made as
in elections of Governor and Lieutenant Governor.”
Laws of 1859, pp. 1100, 1102, 1105. Yº.
Laws of 1861, pp. 588, 591.
Laws of 1865, pp. 780, 794,
1 Laws of 1869, pp. 425, 428, 432.
Laws of 1870, p. 15.
1 Laws of 1871, pp. 399, 406.
Public Acts 1874, pp. 10, 35.
Public Acts 1875, pp. 305, 309.
Public Acts 1877, pp. 299, 301.
Public Acts 1879, pp. 312, 315, 317.
Public Acts 1881, pp. 408, 411, 412, 422, 424.
Public Acts 1883, pp. 237, 242.
Public Acts 1885, pp. 368, 375.
Public Acts 1887, pp. 466, 468, 471, 472.
Public Acts 1889, pp. 427, 428, 429.
Public Acts 1891, p. 322.
Public Acts 1893, pp. 431, 432, 434, 435, 438, 439.
Sometimes, instead of using the words “Governor and Lieutenant Gov-
ernor,” use has been made of the more general term “State officers;” and
after the amendment allowing amendments to be submitted at the judicial
election in April of the odd year, use has sometimes been made of the
words “Judges of the Supreme Court.”
The votes for judges of the supreme court are canvassed, and results
declared in the same manner as the votes for State officers at the general
biennial elections,
1 How. Stat., Secs, 6389, 249, 137.
It is possible the legislature could take the power to canvass the returns
on constitutional amendments from the Board of State Canvassers estab-
lished by the constitution, and vest it in a purely statutory board, of an
entirely different character; but it is certain the legislature has never
attempted to do anything of the kind. §
BOARD OF STATE CANVASSERS. 107
It is fair to presume that the legislature intends that the Board of State
Canvassers, in canvassing the returns on a constitutional amendment shall
exercise the same power, and be subject to the same right of the legisla-
ture itself to review the determination of the board as in the case of a
contest over the election of the Governor or of any other State officer.
The constitution of 1835 contains the following article:
ARTICLE VIII.
IMPEACHMENTS AND REMOVALS FROM OFFICE.
1. The house of representatives shall have the sole power of impeach-
ing all civil officers of the State, for corrupt conduct in office, or for
crimes and misdemeanors; but a majority of all the members elected shall
be necessary to direct an impeachment.
2. All impeachments shall be tried by the senate. When the Gov-
ernor or Lieutenant Governor shall be tried, the chief justice of the
supreme court shall preside. Before the trial of an impeachment, the
members of the court shall take an oath or affirmation truly and impar-
tially to try and determine the charge in question, according to the evi-
dence; and no person shall be convicted without the concurrence of two-
thirds of the members present. Judgment, in cases of impeachment,
shall not extend further than to removal from office, but the party con-
victed shall be liable to indictment and punishment according to law.
3. For any reasonable cause which shall not be sufficient ground for
the impeachment of the judges of any of the courts, the Governor shall
remove any of them on the address of two-thirds of each branch of the
legislature; but the cause or causes for which such removal may be
required shall be stated at length in the address.
4. The legislature shall provide by law for the removal of justices of
the peace, and other county and township officers, in such manner and
for such cause as to them shall seem just and proper.
Rev. Stat. 1838, p. 41.
The provisions of the constitution of 1850, on the same subject, are:
ARTICLE XII.
IMPEACHMENTS AND REMOVALS FROM OFFICE.
SECTION 1. The house of representatives shall have the sole power of
impeaching civil officers for corrupt conduct in office, or for crimes and
misdemeanors; but a majority of the members elected shall be necessary
to direct an impeachment.
SEC. 2. Every impeachment shall be tried by the senate. When the
Governor or Lieutenant Governor is tried, the chief justice of the
supreme court shall preside. When an impeachment is directed, the
108 - REMOVAL PROCEEDINGS.
senate shall take an oath or affirmation truly and impartially to try and
determine the same according to the evidence. No person shall be con-
victed without the concurrence of two-thirds of the members elected.
Judgment, in case of impeachment, shall not extend further than removal
from office, but the party convicted shall be liable to punishment accord-
ing to law. -
SEC. 3. When an impeachment is directed, the house of representa-
tives shall elect from their own body three members, whose duty it shall
be to prosecute such impeachment. No impeachment shall be tried until
the final adjournment of the legislature, when the senate shall proceed to
try the same.
SEC. 4. No judicial officer shall exercise his office, after an impeach-
ment is directed, until he is acquitted.
SEC, 5. The Governor may make a provisional appointment to a
vacancy occasioned by the suspension of an officer, until he shall be
acquitted, or until after the election and qualification of a successor.
SEC. 6. For reasonable cause, which shall not be sufficient ground for
the impeachment of a judge, the Governor shall remove him on a concur-
rent resolution of two-thirds of the members elected to each house of the
legislature; but the cause for which such removal is required shall be
stated at length in such resolution.
SEC. 7. The legislature shall provide by law for the removal of any
officer elected by a county, township, or school district, in such manner
and for such cause as to them shall seem just and proper.
1 How. Stat., pp. 59-60.
By an amendment proposed in 1861, and declared adopted, and as such
promulgated in the laws of 1862, the following section was added to article
12 of the constitution of 1850:
SEC, 8. The Governor shall have power, and it shall be his duty,
except at such time as the legislature may be in session, to examine into
the condition and administration of any public office, and the acts of any
public officer, elective or appointed, to remove from office for gross neg-
lect of duty, or for corrupt conduct in office, or any other misfeasance or
malfeasance therein, either of the following State officers, to wit: The
Attorney General, State Treasurer, Commissioner of Land Office, Secre-
tary of State, Auditor General, Superintendent of Public Instruction, or
members of the State Board of Education, or any other officer of the
State, except legislative and judicial, elective or appointed, and to appoint
a successor for the remainder of their respective unexpired term of office,
and report the causes of such removal to the legislature at its next
SOSSIOI). - -
1 How. Stat., p. 60,
The case now before the court is an information in the nature of a quo
warranto to test the validity of an order of removal purporting to have
been made by the Governor under, the foregoing section of the constitu-
tion. -
BOARD OF STATE CANVASSERS. 109
It appears by the replication of the Attorney General that at the gen-
eral election in November, 1892, John W. Jochim was elected Secretary
of State, Joseph F. Hambitzer was elected State Treasurer, and John G.
Berry was elected Commissioner of the State Land Office.
They took possession of their respective offices January 1, 1893, and
have since held them. *
At the April election, 1893, a number of constitutional amendments
were submitted to the people, and it was the duty of the Board of State
Canvassers to canvass the returns from the several counties, and determine
the result.
It appears that the clerks in the office of the Secretary of State made
the necessary tabulation of the returns as to one of these amendments,
and that the Board of State Canvassers relying upon the work of these
clerks as correct, signed the usual certificates of determination attached
to the tabulation. The board did not examine the returns from each
county and compare them with the tabulation; but it affirmatively appears
that the members of the Board of State Canvassers met as a board to make
this canvass, and signed the tabulation and determination prepared by the
clerks, believing the same to be correct.
Upon this state of facts, the question to be decided is whether the order
of the Governor removing the respondent from his office of Secretary of
State has any validity.
I.
The Governor has no power to remove respondent from his office of
Secretary of State for official misconduct on his part as a member of the
Board of State Canvassers.
In support of this proposition, I insist that the power of the Governor
cannot be extended beyond the duties directly appertaining to the office
of Secretary of State without violating all known rules of interpretation,
disregarding the plain intention of the legislature in submitting and the
people in adopting section eight of article twelve as an amendment to the
constitution, and assuming that the language used does not intelligently
express the object sought to be accomplished.
If the court will examine the case of The People vs. McKinney, 10
Mich., 54, it will be seen that John McKinney was State Treasurer for
the years 1859 and 1860, and that he was charged with and convicted of
having, in the months of August, September, October, November and
December, 1860, embezzled large sums of money from the State treasury.
It will be noticed that the embezzlements with which he was charged
took place during the last five months of his official term, and at a time
when the legislature was not in session, and, unless a special session was
called, would not be in session again until after McKinney’s term of office
had expired,
It appears from the retiring message of Governor Wisner of January 2,
# that he did not learn of the McKinney default until December 20,
0.
Austin Blair was elected Governor at the November election, 1860, and
in his inaugural message, January 2, 1861, he called attention to McKin-
* *
110 REMOVAL PROCEEDINGS.
ney’s defalcation, and referred the legislature for the facts to the retiring
message of his predecessor, Governor Wisner.
McKinney was proceeded against before a justice of the peace, and was
bound over for trial. The information upon which he was convicted was
filed against him at the May term, 1861, of the Ingham circuit, and
º him, as State Treasurer, with embezzlement under the following
statute:
“If any officer, clerk, or other person employed in the treasury of this
State, or in the treasury of any county, or in any other public office
within this State, shall commit any fraud or embezzlement therein, he
shall be punished by imprisonment in the State prison not more than
fourteen years,” etc.
2 Comp. Laws, 1857, Sec. 5771.
2 How. Stat., Sec. 9149.
Mr. O. M. Barnes, then in active practice, as counsel for McKinney,
argued that the language of the statute, in the use of the word
“employed,” indicated that it was not the intention to have it apply to
the State Treasurer himself, and that as to him, it was the intention of
the legislature to rely upon, and to bave resort to, its own power of
impeachment only.
All of the judges of the supreme court agreed that this construction of
the statute was not correct.
Mr. Justice Campbell, who dissented from the 'opinion upon one ques-
tion only, that relating to the sufficiency of the information, made the
following instructive comments:
“The ground of exemption from responsibility to the ordinary criminal
process, chiefly relied on, was that an impeachment is the appropriate
remedy for the official misconduct of high offigers of State.
If our system continued to operate in all respects like that of England,
perhaps this objection might prevail. But the House of Lords in trying
impeachments is regarded as a court of criminal jurisdiction, and not as
a legislative body. It tries as a court the impeachment which is pre-
sented by the commons, as the most solemn, grand inquest of the king-
dom: 4 Bl. Com., 259; 2 Hale P. C., 150. The cause is tried substan-
tially as in other courts, and judgment is given of fine or imprisonment as
well as of disability: 4 Bl. Com., 121. When Mr. Burke, in Hastings’
case, asserted that the House of Lords need not follow the rules of evidence
received in the ordinary criminal courts, he was overruled by the unani-
mous opinion of the judges. And the judgment must also be such as is
warranted by legal principles or precedents: Western’s Com., 114. There
is, therefore, no occasion in England to resort to any further remedy for
complete justice.
Our constitution declares that “judgment in case of impeachment shall
not extend further than removal from office.” This would, of course,
preclude any impeachment of a person out of office, and, if no other
remedy were provided, would save a delinquent in office from any penal
consequences. But in taking away the power of adequate punishment
from the senate, it is expressly declared that “the party convicted shall
be liable to punishment according to law:” Art. 12, Sec. 2. Instead,
BOARD OF STATE CANVASSERS. 111
therefore, of being an argument against extending the statute over State
officers, the change from the English system to our own renders it neces-
sary to make some such provision, in order to accomplish, under our laws,
what is done in England by impeachment alone. And, where the offender
is out of office, no question can arise concerning the priority of prosecu-
tions. Inasmuch as the lanaguage of our statute fairly covers the State
Treasurer, I think there is no rule of public policy which can reasonably
be supposed to exempt him from liability under it.”
People vs. McKinney, 10 Mich., 54, 106-107.
The case of MoRinney, beyond all question, suggested Sec. 8 of Art.
12, so that we have the undoubted historical fact that the kind of official
duties that the legislature and the people had in mind, were duties which
directly appertained to the office of each State officer named, and they did
not have in mind any official neglect or misconduct on the part of any
constitutional or statutory board of State officers. If they had intended
to include the ea officio boards they would have used appropriate language
to that effect, and not left it to mere inference.
They did not have any such case before them, suggesting an evil or
defect to be remedied, and it is evident they had no such intention;
neither did they give or attempt to give expression to any such purpose.
It is obvious that the extraordinary power vested in the Governor, and
the danger of its arbitrary exercise, prevents any extension of that power
by judicial construction or interpretation.
So far, I have considered the mere question of the proper construction
or application of Sec. 8 of Art, 12 as a part of the impeachment provi-
sions of the constitution, without reference to any other feature of that
instrument.
I now desire to consider the bearing on the question in hand, of certain
other provisions of the constitution of 1850, making a very plainly marked
and clear distinction between the duties of the incumbent of the office of
Secretary of State, appertaining to that office only, and his duties as a
member of the Board of State Canvassers.
The constitution itself constitutes the Secretary of State, the State
Treasurer, and the Commissioner of the State Land Office, a Board of
State Canvassers to canvass the returns and determine the results of elec-
tions of State officers, and if their determination is contested, the contest
is to be decided by the legislature in joint convention.
Under the constitution the biennial State election for the election of
State officers and members of the legislature is held in November of the
even years. No regular session of the legislature takes place between the
election and the first day of January following, when the official terms of
the new officers and members commence, and it certainly was not con-
templated that a legislature already voted out of office should during this
interval be called in special session, except on a most extraordinary public
exigency.
For this and other obvious reasons it is certain that jurisdiction to
decide a contested election of a State officer is vested in the incoming and
not in the outgoing legislature.
I12 REMOVAL PROCEEDINGS.
It is equally certain that it was the intention that every such contest
should be decided as a political and not as a judicial question. But what-
ever may be the nature of the power there is no doubt but that the juris-
diction of the legislature is exclusive.
Royce vs. Goodwin, 22 Mich., 496.
Dewey vs. Auditors, 32 Mich., 191.
There is an impression in some quarters that the present court has
either overruled or ignored these old decisions; but nothing could be far-
ther from the truth. In fact the present court has reaffirmed them, in
the opinions of the most positive, well considered and permanent char-
acter.
A recent case is that of Vance vs. Board of Canvassers, 95 Mich., 462,
* Mr. Justice McGrath, speaking for the court, among other things,
881C : …
*The principle upon which these cases rest was announced in Royce
vs. Goodwin, 22 Mich., 496, 501, where the controversy arose over the
title to the office of circuit judge. There the court says: ‘The constitu-
tion does not permit the regularity of elections to the more important
public offices, to be tried by the courts. It has provided that in all cases
where by the constitution or by statute, the result of elections is to be
determined by the Board of State Canvassers, there shall be no judicial
inquiry beyond their decision,” Again, in People vs. Harshaw, 60
Mich., 200, 202, it is said: “Our constitution in express terms vests all
the judicial power in courts, and no such power can exist in a legislative
body. It has nevertheless been deemed wise, to avoid the delays and
difficulties of legal disputes, to provide for a final adjudication of the title
to office, not only of members of the legislature, but of all the State
officers and judges either in the houses of the legislature or in the Board
of State Canvassers.” Our statute (How. Stat., Sec. 248) makes it the
duty of the county clerk of each county to certify the number of votes
cast for circuit judge to the State Treasurer. Section 249 requires the
Board of State Canvassers to proceed to the canvass and determination of
the election of circuit judges. Sec. 4 of Art. 8 of the constitution makes
it the duty of the Board of State Canvassers to determine the result of all
elections ‘for State officers, and of such other officers as shall by law be
referred to them; ' and Sec. 5 provides that “when the determination of
the Board of State Canvassers is contested, the legislature, in joint con-
vention, shall decide which person is elected.” In the cases cited the
inhibition is statutory; here it is constitutional. In view of these consti-
tutional and statutory provisions, it is unimportant whether or not circuit
judges are State officers within these provisions of the constitution. It is
sufficient that the determination of the result of elections for circuit judges
ts by law referred to the Board of State Canvassers. Contests respecting
the title to that office must be made before the legislature. That body
finally determines the very matters which the board of canvassers in the
present case propose to pass upon. As was said in Newton vs. Board of
Canvassers, “there can be no doubt of the right of the legislature, in joint
session, to ascertain, by means of the best evidence attainable, the actual
state of the vote.” The best evidence is the ballots themselves. The
/
BOARD OF STATE CANVASSERS. 113
house of representatives of the United States has on more than one occa-
sion exercised this authority, and has sent its committees into representa-
tive districts to recount the ballots; and the present house of representa-
tives of our own legislature recently sent its committee into legislative
districts to make investigations relating to contests respecting its own
members.”
It is true the constitution does not expressly provide that the Board of
State Canvassers shall canvass the returns and declare the result of a vote
of the people on the adoption of a constitutional amendment, and that its
determination may be reviewed by the legislature; but it is difficult to
escape the conclusion that such was the intention.
The statutory provisions authorizing the Board of State Canvassers to
canvass these returns were continued in force by the schedule to the con-
stitution of 1850, until the legislature should change them; and this the
legislature has never done.
The conclusion must be that the intent of the legislature is that any
contest about the vote on a constitutional amendment is to be investigated
and determined by the legislature itself the same as in a contest over a
State officer.
This contention is very strongly supported by the reasoning of the
court in a noted case in this State.
Sutherland vs. Governor, 29 Mich., 320.
At pp. 327-329, the court, per Cooley, J., said:
“One reason, very strongly pressed, why the Governor is subject to
process in cases like the present is, that the act required is not to be done
in performance of an executive duty imposed by the constitution, but is
in its nature a ministerial act, provided for by statute, and what might,
with equal propriety, have been required of an inferior officer, who,
beyond question, could have been compelled by mamdamus to take the
necessary and proper action in the premises. And the question is put
with some emphasis, whether, when individual interests depend upon the
performance of ministerial action, to which the party is entitled of right,
the question whether there shall be a remedy or not can depend upon the
circumstance that in the particular case the ministerial action is required
of a superior officer when there is no reason in its nature why it might
not have been required of an inferior.
“A view similar to this has been taken in some cases, and the courts
have undertaken to decide what are and what are not properly executive
duties, and to assert a right to control the Governor’s action in some
cases, while admitting their want of jurisdiction to do so in others. The
State vs. The Governor, 5 Ohio St., 528; Bonner vs. Pitts, 7 Geo., 473;
Cotten vs. The Governor, 7 Jones, N. C., 545; Chamberlain vs. The Gov-
ernor, 4 Minn., 309; Pacific R. R. vs. The Governor, 23 Mo., 353;
Magruder vs. The Governor, 25 Md., 173. These cases, for the most
part, are rested upon the dictum of Chief Justice Marshall in Marbury vs.
Madison, 1 Cranch, 137, that one of the heads of department in the
federal government might be compelled by mandamus to perform a mere
ministerial duty; a dictum which cannot be understood as expressive of
the opinion of that eminent judge that the president was subject to the
15
114 REMOVAL PROCEEDINGS.
like process, but which is wholly inapplicable to a case like the present,
unless it goes to that extent. For it cannot justly be claimed, when
federal and State governments have been formed, so far as distribution of
power is concerned, on the same general plan, that the executive of the
union can claim immunity from judicial process any more than the Gov-
ernor of one of the states. In many cases it is unquestionable that the
head of an executive department may be required by judicial process to
perform a legal duty, while in other cases, in our judgment, the courts
would be entirely without jurisdiction; and, as regards such an officer,
we should concede that the nature of the case and of the duty to be per-
formed must determine the right of the court to interfere in each particu-
lar instance. When the head of a department acts as the mere assistant
or agent of the eacecutive in the performance of a political or discretionary
act, he is no more subject to the control of the courts than the chief eacecu-
tive himself; but where a ministerial act is required to be done by him,
tndependently of the eacecutive, though in a certain sense he is an execu-
tive officer, it would be as idle to dispute his responsibility to legal pro-
cess as it would be to make the same claim to exemption on behalf of an
officer entrusted with similar duties of a lower grade. This is emphatic-
ally the case under the constitution of this State, which provides for the
election of State and inferior officers alike by the people, and makes the
chief officers of State below the Governor as independent of his control in
the performance of their duties as are the officers of the counties or of the
townships.
But when duties are imposed upon the Governor, whatever be their
grade, importance or nature, we doubt the right of the courts to say that
this or that duty might properly have been imposed upon a Secretary of
State, or a sheriff of a county, or other inferior officer, and that inas-
much as in case it had been so imposed, there would have been a judicial
remedy for neglect to perform it, therefore there must be the like remedy
when the Governor himself is guilty of a similar neglect. The apportion-
ment of power, authority and duty to the Governor, is either made by the
people in the constitution, or by the legislature in making laws under it;
and the courts, when the apportionment has been made, would be pre-
sumptious if they should assume to declare that a particular duty assigned
to the Governor is not essentially executive, but is of such inferior grade
and importance as properly to pertain to some inferior office, and con-
sequently, for the purposes of their jurisdiction, the courts may treat it
precisely as if an inferior officer had been required to perform it. To do
this would be not only to question the wisdom of the constitution or the
law, but also to assert a right to make the Governor the passive instru-
ment of the judiciary in executing its mandates within the sphere of his
own duties. Were the courts to go so far, they would break away from
those checks and balances of government which were meant to be checks
of cooperation, and not of antagonism or mastery, and would concentrate
in their own hands something at least of the power which the people,
either directly or by the action of their representatives, decided to entrust
to the other departments of the government.”
There does not appear to be any answer to this reasoning of Judge
Cooley, and I therefor submit, that if either of the following propositions
is correct, there is no doubt but that the legislature in joint convention
has full power to determine whether the Board of State Canvassers have
BOARD OF STATE CANVASSERS. 115
*
<!
W.
correctly declared the result of the vote of the people on a constitutional
amendment.
1. The constitution contemplates that the legislature may refer the
canvass of the returns on a constitutional amendment to the Board of
State Canvassers, with power in the legislature in joint convention to
review their action.
2. The statutory provisions relative to the canvass of the returns on
constitutional amendments, coupled with the legislative practice in sub-
mitting amendments show a clear intention to have the Board of State
Canvassers act in the same capacity and with like force and effect and
subject to the same power of review, as in elections of Governor and
other State officers.
The legislature acting in the manner directed by the constitution, and
expressing the judgment and will of all the people, would seem to be the
only tribunal having a power and jurisdiction appropriate and adequate to
determine whether the organic law has been amended. Such a question
is not for the Governor or the courts.
It must not be forgotten that under the constitution the Governor is
eligible for reelection, and even when not a candidate himself, he is
usually deeply interested in the success of the candidate of his party, not
only for the office of Governor, but also for each of the other State officers.
If the Board of State Canvassers should make a canvass and determina-
tion of an election unsatisfactory to the Governor, are the members of the
board subject to removal by him for alleged gross neglect or corrupt con-
duct in making such canvass and determination? Can it be the design
of Sec. 8, Art. 12, that between the State canvass and the coming together
of the newly elected legislature, the Governor can take jurisdiction over
any such controversy on charges of official misconduct against the mem-
bers of the board?
It would seem to be quite clear that Sec. 8, Art. 12, was not intended
to confer any such power.
In conclusion upon this question I submit the following from the
opinion of Senator Christiancy in the impeachment of Gen. William W.
Belknap for misconduct in his office of Secretary of War.
“Such being the nature and character of the proceeding by impeach-
ment, we are bound by the well settled principle of construction in all
courts, as well as by the nature of the question itself, to adopt a strict
construction of the constitutional provisions establishing this mode of pro-
ceeding. By this I do not mean that we are to adopt an interpretation or
construction contrary to what may clearly appear to our minds to have
been the intention of the convention which framed and of the people who
adopted it. But, unless clearly satisfied of the intention to include the
case before us, or so long as we have any reasonable doubt that such was
the intention, we should decline the eacercise of the power; while, if the
question were one of mere civil jurisdiction, we might perhaps properly
enough weigh conflicting probabilities, and sustain the jurisdiction if the
probabilities on that side seem to outweigh those upon the other, though
serious and reasonable doubts might remain whether such had been the
actual intention.”
Belknap's Impeachment, p. 317.
116 REMOVAL PROCEEDINGS.
II.
Section 8 of article 12 of the constitution of this State is in conflict with
the provision of the fourteenth amendment of the constitution of the
United States, that no State shall “deprive any person of life, liberty or
property without due process of law, or deny to any person the equal pro-
tection of the laws,” and since the adoption of said fourteenth amendment,
the said section 8 has been utterly void, unless it can be construed to mean
that the Governor cannot remove for any of the designated offenses until
the offending officer has been convicted by a jury.
The proceedings had before the Governor in the present case, are
founded upon the theory that the Governor in his executive capacity,
examined into the “condition and administration” of each of the offices
of Secretary of State, State Treasurer and Commissioner of the State
Land Office, and finding sufficient maladministration, in his judgment,
to justify it, he preferred the charges in question, conducted and con-
trolled the prosecution of these charges and employed counsel to repre-
sent and aid him in his capacity of prosecutor, and that notwithstanding
all this, he had the power to and did in his judicial capacity, pass upon
and determine the guilt or innocence of the accused officers, and having
found them guilty, pronounced judgment that they be removed from their
respective offices,
That is the precise theory of the opinion of the majority of the court as
prepared by Mr. Justice Champlin, in Dullam vs. Willson, 53 Mich., 392.
Thus at p. 399 the learned justice said:
“What was the object sought to be accomplished by the amendment?
It contains an important grant of power combining both executive and
judicial functions. There must have been evils existing which, it was
thought, made such amendment necessary, which, through some defect in
the constitution, could not be remedied.”
After referring to McKinney’s defalcations as having been made known
by Governor Wisner's message, the opinion at p. 400 continues:
“It will be observed that the section of the constitution under consider-
ation only authorizes the Governor to remove for specified causes. He is
not authorized to exercise the power at his pleasure or caprice. It is only
when the causes named exist that the power conferred can be exercised. It
follows as a necessary 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 a determination whether
specified causes eacist is the eacercise of judicial functions, Judicial deter-
mination of facts must rest upon and be precedeed by notice, proof and
hearing. And the first question is, what is the proper tribunal in which
such facts are to be ascertained? In my opinion this provision of the
constitution requires no legislation to make it effective, Read in the light
of the history of the times, and the surrounding circumstances when it
was adopted, the grant of power is to the Governor coupled with the duty
enjoined to examine into the condition and administration of any public
office, and to examine into the acts of any public officer, and to remove
from office for gross neglect of duty or for corrupt conduct in office, any
of the officers specified. The amendment for this purpose clothes him
BOARD OF STATE CANVASSERS. 117
with judicial power. It is implied in the grant, and without it the grant
would be nugatory and ineffectual to accomplish the purposes for which
it was given.”
Mr. Justice Sherwood signed this opinion without comment.
Chief Justice Cooley prefaced his signature with the following, to be
found on page 408:
“I concur both as to the right of the respondent to be heard upon
charges, and as to the power of the Governor under the constitution to
decide upon the charges.”
The significance of the memorandum so made by this distinguished
jurist and author is fully brought out by an examination of the dissenting
opinion of Mr. Justice Campbell, in which that learned judge, with his
characteristić ability, sound judgment, and unalterable adherence to the
fundamental principles of constitutional liberty, held that the Governor
had no power to remove until the accused officer had been convicted by a
jury in a regular criminal prosecution.
As all the judges agreed that the action of Governor Begole in his
attempted removal of Willson without charges and a hearing could not be
sustained, it was not necessary to go any deeper or further in the con-
struction of Sec. 8, Art, 12, that is, it was not necessary to decide whether
this section was a modification of the provision of the State constitution
that no person shall be “deprived of life, liberty or property except by
due process of law,” or was to be construed in subordination to it.
While the majority of the court undoubtedly proceeded upon the theory
that Sec. 8 was a modification of all other provisions of the constitution,
they, and presumptively the counsel in the case, overlooked the fact that
if Sec. 8 did modify the due process of law provision of the State consti-
tution, it was still invalid because in conflict with the fourteenth amend-
ment of the constitution of the United States, which puts a federal limita-
tion of the same precise character upon all State action, be it in either
the constitution or the statutes of the State.
It is equally clear that Judge Campbell held a conviction by a jury
necessary, before the Governor could act, because he proceeded on the
theory that it was not the intention that Sec. 8 of Art. 12 should be con-
strued, except as subordinate and subject to the controlling influence of
the constitutional requirement of due process of law.
This is shown by the following brief extract from his opinion, and also
by the whole course of his discussion.
I quote from bottom of p. 413:
“This is not merely ancient doctrine. The safeguards against wrong,
and the right to have charges determined by due process of law, which is
distinctly asserted by Lord Mansfield in Burrows, as the basis of these
rulings, are as clearly recognized under the grant of special remedies as
tn any other.”
From Judge Campbell's standpoint there was no occasion to look to the
federal constitution to find a limitation upon the power of the Governor
under Sec. 8 of Art. 12, for he found a sufficient limitation in other pro-
visions of the constitution of the State, and which provisions, in his judg-
gººd a controlling influence on the construction and meaning of Said
6C, Ö,
The fact is that in Dullam vs. Willson, the majority of the court simply
decided that the Governor could not remove eaccept on charges; and it
118 . REMOVAL PROCEEDINGS.
does not appear that any special consideration was given to the question:
whether the Governor could himself make the charges and occupy the
position of prosecutor (which has undoubtedly been his position in the
proceedings now under consideration), or whether Sec. 8 of Art. 12 does
not contemplate that the charges are to be preferred by the Attorney Gen-
eral as the chief law officer of the people of the State of Michigan.
The Court of Star Chamber under the Stuarts became the most odious
court known in English history, because of its exercise of inquisitorial
powers and its cruel and atrocious punishments.
Originally the court had been the instrument in the hands of the Crown
to maintain law and order and suppress anarchy, but by statute it could
only proceed upon bill or information, filed by the attorney general in
behalf of the king.
I quote from the statute of 3 Henry VII., c. I.
“That the chancellor and treasurer of England for the time being, and
the keeper of the King’s privy seal, or two of them, calling to them a
bishop, and a temporal lord of the King’s most honorable council, and
the two chief justices of the King’s bench, and common pleas, for the
time being, or other two justices in their absence, upon bill or informa-
tion put to the said chancellor for the King or any other, against any per-
son for any misbehaviour afore rehearsed shall have authority to call
before them by writ or by privy seal, the said misdoers,” etc.
If the question whether the Governor could make the charges and act
as prosecutor in person or by counsel had been before the court in Dullam
vs. Willson, and they had considered it, there is but little, if any, doubt
they would have held that the Governor could not in looking into the
condition and administration of an office, go so far as to formulate and
prefer the charges, and become responsible, either before the public or
himself for them, and in that way become the accuser and prosecutor in
the cause.
The learned judges did not consider the question or intend to express
any opinion upon it, for the simple reason that it was not before them,
and they had no occasion to pass on it.
In 1 Reeves’ History of English Law, pp. 33-34, the author, referring
to the administration of criminal justice in the time of Saxon Kings of
England, says:
“The bringing of criminals to justice was very much facilitated by the
police established in the reign of Alfred. The objects which next present
themselves are the proceeding, the mode of trial, and the proof; all of
which were very remarkable parts of the Anglo-Saxon jurisprudence, , (b)
The prosecutor or accuser, as he was called, made his charge; which it
would seem was sufficient alone to put the person accused on his defense.
The defense and answer to the charge was this: If it was a matter not of
great notoriety, but such as might admit of some doubt, the party purged
himself by his oath, and the oaths of certain persons (called thence com-
purgators) vouching for his credit, and declaring the belief they had that
he spoke the truth. If the compurgators agreed in a favorable declaration,
this was held a complete acquittal from the accusation. But if the party
had been before accused of larceny or perjury, or had any otherwise been
rendered infamous, and was thought not worthy or credit, he was driven
to make out his innocence by an appeal to heaven, in the trial by ordeal.
This was of several kinds. The two principal were by water and iron, by
BOARD OF STATE CANVASSERS. 119
water hot or cold, and by hot iron; the iron was to be one, two or three
pounds weight; and was therefore called simple, double or triple ordeal.”
Finlason in his notes makes the following comments:
“(b) The author does not give any intelligent account of it, and cites
no authority about it, and it will be manifest that he had not given much
attention to it, and had only attended to the two barbarous and primitive
modes of procedure by compurgation and ordeal. No authority is cited
for the next proposition, that a mere accusation was sufficient to put the
accused upon his defense; and it is quite contrary to the whole tenor of
the later Saxon laws and the cases recorded in the Mirror of Justice. As
early as the reign of Edgar and Ethelred mention is made of presentments
by twelve sworn freemen jurors, who answered to our modern jurors; and
Alfred is recorded to have hanged a judge who sentenced a man to be
hanged without an indictment or presentment on oath by such jurors or
sworn indicters. The laws of Ethelred begin ‘that every freeman have a
“borh’’ or borough that they may present him to every justice if he be
accused, but if he be infamous let him go to the ordeal,” so that the ordeal
was only for those who were not worthy of credit, and then only upon
sworn presentment. If the man could obtain compurgation he could
avoid the ordeal, which was the only ultimate resource, failing compurga-
tion, upon a charge made by the neighbors upon oath (Ang.-Sax. Laws,
v. 1, 282). And again the laws of Ethelred provided that in the hundred
twelve thanes or freeholders were to be sworn that they would accuse no
innocent man, nor conceal any guilty one (Ibid. 295), which is precisely
the present oath of the grand jurors.”
In England, the House of Lords have always exercised more or less
judicial power, and is now the court of last resort, the House itself, acting
upon the opinions and judgment of the members commonly known as the
law lords.
Originally the criminal jurisdiction of the lords seems to hawe been con-
fined to the trial of each other.
2 Reeves’ His, Eng. Law, pp. 291-292.
Continuing, the author shows the origin of trials by impeachment. At
bottom of p. 292 he says:
“All these prosecutions in parliament were brought forward by articles
eachibited; but who were the persons appointed to exhibit such articles
and to stand forth as prosecutors does not appear. Towards the latter end
of this reign (Edward III., 1327-1377) the commons took this burthen
wpon themselves and among their other petitions began to exhibit accusa-
tions for crimes and misdemeanors against offenders who were thought to
be out of the reach of the ordinary course of the law. In these prosecu-
tions, the king and lords were considered as judges. The first of these is
in the 42d year of the King, when Sir John Lee was impeached by the
commons for malpractice while steward of the household, and for fraud in
Some private transactions; concerning all which he was heard before the
great council. In the 50th year the commons prepared impeachments
(tgainst many delinquents and these were tried by the lords. Thus was
this formidable mode of prosecution by impeachment of the commons
first set on foot.”
120 REMOVAL PROCEEDINGS.
In Murray vs. Hoboken, etc., Co., 18 How., 272, Mr. Justice Curtiss,
speaking for the supreme court of the United States, had occasion to
point out the difference between administrative or executive process, such
as a distress warrant from the treasury department, and judicial process,
and in the course of his opinion he stated the essential elements of judi-
cial due process of law as follows:
“Tested by the common and statute law of England prior to the emigra-
tion of our ancestors, and by the laws of many of the states, at the time
of the adoption of this amendment, the proceedings authorized by the act
of 1820 cannot be denied to be due process of law, when applied to the
ascertainment and recovery of balances due to the government from a col-
lector of customs, unless there exists in the constitution some other pro-
vision which restrains congress from authorizing such proceedings.
For, though, “due process of law” generally implies and includes actor,
reus, judea, regular allegations, opportunity to answer, and a trial
according to some settled course of judicial proceedings (2 Inst., 47, 50;
Hoke vs. Henderson, 4 Dev., N. C., 15; Taylor vs. Porter, 4 Hill, 146;
Van Zandt vs. Waddel, 2 Yerger, 260, 599; State Bank vs. Cooper, Ibid.,
599; Jones’ Heirs vs. Perry, 10 Yerg., 59; Green vs. Briggs, 1 Curtis);
yet, this is not universally true. There may be, and we have seen that
there are cases, under the law of England after Magna Charta, and as it
was brought to this country and acted on here, in which process, in its
nature final, issues against the body, lands and goods of certain public
debtors without any such trial; and this brings us to the question whether
those provisions of the constitution which relate to the judicial power are
incompatible with those proceedings.”
The Latin words used in the definition so given by Judge Curtiss, are
explained in 3 Blackstone’s Com., p. 25:
“In every court there must be at least three constituent parts, the
actor, reus and judeac; the actor, or plaintiff, who complains of an injury
done; the reus, or defendant, who is called upon to make satisfaction for
it; and the judea, or judicial power, which is to determine the truth of
the fact, to determine the law arising upon the fact, and if any injury
. to have been done to ascertain, and by its officers, to apply the
remedy.”
In 1350, by statute, 25 Edward III., 5 stat., c. 3, it was provided that
one who had acted as a grand juror in finding an indictment could not be
one of the trial jury. This statute was undoubtedly merely declaratory of
a then old common law principle, and beyond question (being in force
long before America was discovered), it has always been common law in
this country.
The language of the statute is:
“It is accorded that no indicter shall be put in inquest upon deliver-
ance of the indictees of felonies or trespass if he be challenged for that
same cause by him which is so indicted.”
In Cooley's Constitutional Limitations (6th Ed.) pp. 506.509, will be
found the following interesting and instructive passages:
“There is also a maxim of law regarding judicial action which may have
an important bearing upon the constitutional validity of judgments in
some cases. No one ought to be a judge in his own cause; and so inflex-
ible and so manifestly just is this rule, that Lord Coke has laid it down
that “even an act of parliament made against natural equity, as to make a
BOARD OF STATE CANVASSERS. 121
man a judge in his own case, is void in itself; for jura naturae sunt
timmutabilia, and they are leges legum.”
“This maxim applies in all cases where judicial functions are to be
eacercised, and excludes all who are interested, however remotely, from
taking part in their exercise. It is not left to the discretion of a judge,
or to his sense of decency, to decide whether he shall act or not; all his
powers are subject to this absolute limitation, and when his own rights
are in question, he has no authority to determine the cause.” ” * *
“The people of the State, when framing their constitution, may possi-
bly establish so great an anomaly, if they see fit; but if the legislature is
entrusted with apportioning and providing for the exercise of the judicial
power, we cannot understand it to be authorized. in the execution of this
trust, to do that which has never been recognized as being within the
province of the judicial authority. To empower one party to a contro-
versy to decide it for himself is not within the legislative authority,
because it is not the establishment of any rule of action or decision, but
is a placing of the other party, so far as that controversy is concerned,
out of the protection of the law, and submitting him to the control of
one whose interest it will be to decide arbitrarily and unjustly.”
In a note the author makes a further comment upon the question,
whether the State could by constitutional provision establish a tribunal in
which a judge could decide a cause in which he was interested:
“Even this must be deemed doubtful since the adoption of the four-
teenth article of the amendments to the federal constitution, which denies
to the State the right to deprive one of life, liberty or property without
due process of law.”
Two cases in point:
Stockwell vs. Township Board, 22 Mich., 341.
C. & A. Rºy Co. vs Summers, 113 Ind., 10, 17.
I respectfully submit the respondent’s demurrer should be sustained.
FRED A. BAKER,
Counsel for Respondent.
The several cases were decided by the supreme court on March 20,
1894, the demurrer in each case being overruled, and judgment of ouster
entered.
The opinions were written by Judge Hooker, and are as follows:
16
122
REMOVAL PROCEEDINGS.
OPINION.
THE ATTORNEY GENERAL, EX REL. JOHN T. RICH, GOVERNOR, V. JOHN W.
JOCHIM,
Constitutional Law—State officers—Removal by Governor.
1. Section 35, article 6, of the constitution, which provides that “the style
of all process shall be, ‘In the Name of the People of the State of
Michigan,” ” applies to the judicial department only.
2. A citation by the Governor to State officers to appear before him, and
show cause why they should not be removed from office, is not an
official act, within the meaning of section 18, article 5, of the consti-
tution, which provides that “all official acts of the Governor, his
approval of the laws excepted, shall be authenticated by the great
seal of the State.”
3. Section 8, article 12, of the constitution, which provides that “the Gov-
ernor shall have power, and it shall be his duty, except at such time
as the legislature may be in session, to examine into the condition
and administration of any public office, and the acts of any public
officer, elective or appointed, to remove from office for gross neglect
of duty, or for corrupt conduct in office, or any other misfeasance or
malfeasance therein, either of the following State officers, to wit, the
Attorney General, State Treasurer, Commissioner of Land Office,
Secretary of State, Auditor General, Superintendent of Public
Instruction, or members of the State Board of Education or any
other officer of the State, except legislative and judicial, elective or
appointed, to appoint a successor for the remainder of their respective
unexpired term of office,” is not in conflict with section 1 of the
fourteenth amendment to the constitution of the United States,
which provides that no state shall “deprive any person of life, liberty
or property, without due process of law.”
4. The Secretary of State, State Treasurer and Commissioner of the State
Land Office, while acting as members of the Board of State Canvass-
ers are guilty of gross neglect of duty, within the meaning of the con-
stitutional provision above cited, in certifying as correct a tabulated
statement prepared by their clerks, to whom the returns of election
were turned over, purporting to show the number of votes cast for
and against a constitutional amendment, without cornparing or exam-
ining the returns from any county, or comparing them with said
tabulated statement, and in reliance solely upon the statements of
said clerks that said tabular statement is correct. t
5. The following propositions are summarized from the opinion of Mr.
Justice Hooker:
a—The question of the jurisdiction of the supreme court to review
or pass upon the official acts of a co-ordinate branch of government
was not raised in this case.
b—The fourteenth amendment to the constitution of the United
States, in so far as it provides that no state shall “deprive any person.
BOARD OF STATE CANVASSERS. 123
of life, liberty or property, without due process of law,” conferred no
new right upon office holders in this State, nor did its adoption
modify the power of the Governor to remove certain State officers
under section 8, article 12, Óf the constitution.
c—In order to sustain the contention that said section is in conflict
with the provisions of the federal constitution above set forth, it
must appear that the removal from office is a deprivation of the officer
removed of his property, and that such removal is sought to be
accomplished without due process of law.
d—A public office cannot be called “property,’” within the mean-
ing of section one of the fourteenth amendment to the constitution of
the United States, and section 32 of article 6 of the constituton of
Michigan, which provides that no person shall be deprived of life,
liberty or property without due process of law.
e—The legislature may remove officers, not only by abolishing the
office, but by an act declaring it vacant, as was done by section 13 of
act No. 140, laws of 1891, which abolished the boards of managers of
the several State institutions consolidated under said act, and annulled
all appointments of officers and agents at said institutions.
f—As all statutory offices are taken subject to legislative action, so
all constitutional offices are taken subject to constitutional changes,
and both are upon the terms and subject to the conditions existing by
law; and one of the constitutional conditions upon which the Secre-
tary of State takes his office is that he will be subject to removal by
the Governor, under section 8, article 12, of the constitution; citing
Frey v. Michie, 68 Mich., 328; Fuller v. Attorney General, 98 Id., 96.
g—If the “due process of law,” to which the respondent claims to
be entitled under the constitutional provisions cited, can mean noth-
ing less than a trial by the constitutional judiciary and perhaps a jury,
as contended by his counsel, it must be because the constitutional
office differs from the statutory office, as several cases hold that
removals from the latter may be made without the intervention of
courts; citing Dullam v. Willson, 53 Mich., 392; Clay v. Stuart, 74
Id., 415; Wellman v. Board of Police, 84 Id., 558; 91 Id., 427; Fuller
v. Attorney General, 98 Id., 96.
h—The words “due process of law,” as used in article 6, section
32, of the constitution, mean the law of the land, by which are to be
understood laws which are general in their operation, and not special
acts of legislation passed to affect the rights of particular individuals
against their will, and in a way in which the same rights of other
persons are not affected by existing laws; citing Sears v. Cottrell, 5
Mich., 251.
i—The State is not so bound by the term “due process of law,” in
the constitutions, that it is impossible for it to invest its agents with
its offices without subjecting itself to the delays and uncertainties of
strict judicial action in cases of emergency.
j—It does not follow, because the action of the Governor under the
section cited is, in a sense, judicial, that the investigation must be
made by some other person or officer, who must make complaint to
the Governor, and procure counsel, or that the Governor is neces-
sarily interested, and thereby disqualified from hearing and deter-
mining, because he performs the other duties which are specifically
imposed upon him by this section of the constitution.
5
124 REMOVAL PROCEEDINGS,
k—It is the duty of the Governor to investigate, using all lawful
means to go to the bottom of any real or supposed irregularity; and,
to that end, he may use clerks and expert accountants, if necessary, -
and it is fair to presume that the State would recognize the expenses
as legitimate obligations. The law does not require a complainant,
nor prevent the Governor from committing the interests of the State
to competent lawyers, official or otherwise. Finally, the Governor
acts judicially upon the accumulated evidence, and such explanations
by way of defense as the respondent may offer; and in this respect
his action is similar to that discussed in Fuller v. Attorney General,
98 Mich., 96.
l—While there is an inclination upon the part of the average
American to accept good intentions as an excuse for mistakes, it is
not for the general public good that responsible public offices shall
be confided to, or remain in the custody of, those whose duties and
responsibilities rest so lightly upon them as to permit the public
interests to be injured or endangered through neglect, and when such
neglect, from the gravity of the case, or the frequency of the
instances, becomes so serious in its character as to endanger or
threaten the public welfare, it is gross, within the meaning of the
law, and justifies the interference of the executive, upon whom is
placed, by this amendment, the responsibility of keeping the affairs
of State in a proper condition.
m—It is true that this section of the constitution confers great
power upon the Governor; but the governorship is an exalted office—
one which ought to carry with it a presumption of integrity of char-
acter and breadth of mind commensurate to its importance—and it
would be a sad commentary upon free government if it were other-
wise. But the powers of the Governor are carefully restricted, and
there is no occasion to pursue the illusive phantoms of possibility.
When abuses arise, they will doubtless be speedily and effectively
met.
Information in the nature of quo warranto to test the title of respond-
ent to the office of Secretary of State. Argued March 6, 1894. Demurrer
overruled, and judgment of ouster entered, March 20, 1894. The facts
are stated in the opinion.
A. A. Ellis, Attorney General (Geer & Williams and Cahill & Ostrander,
of counsel), for relator.
Smith, Lee & Day (John Atkinson and Fred A. Baker, of counsel), for
respondent,
HOOKER, J. By constitution (article 8, section 4), and by statute
(Howell’s statutes, section 202, ) the Board of State Canvassers is made to
consist of the Secretary of State, State Treasurer, and Commissioner of
the State Land Office. It is the duty of this board to canvass the returns
from the various counties of the State, and declare the result of elections
for State officers and upon constitutional amendments. At the spring
election in the year 1893, four amendments to the constitution were voted
upon by the electors of the State, one of which provided for an increase
of the salaries of several of the State officers, including the Secretary of
State and the Commissioner of the State Land Office. These amend-
BOARD OF STATE CANVASSERS. 125
ments were, by the board of canvassers, declared carried. Subsequently,
the returns were recanvassed by the board, in obedience to a writ of man-
damus issued by this court, when it was found and declared that the
amendment relating to salaries was defeated. Proceedings were then
taken by the Governor, which culminated in an order by him removing
each of said officers from his office, and declaring the same vacant; and,
respondents refusing to surrender their respective offices, informations in
the nature of quo warranto were filed in the name of the Attorney Gen-
eral, upon relation of the Governor, to try their right to such offices,
This is the proceeding against the Secretary of State.
The questions in the case are raised by the replication and the demurrer
of respondent thereto. In answer to the plea, which asserts respondent’s
election and accession to the office of Secretary of State, the replication
sets up in detail the facts upon which the relator’s claim is based, viz.:
That relator was the duly elected and acting Governor of this State; that,
as such, it became and was his duty, under section 8 of article 12 of the
constitution, to inquire into the condition and administration of the office
of Secretary of State, and the manner in which respondent performed the
duties of such office, for the purpose of determining whether said respond-
ent had been guilty of gross neglect of duty in relation to his duties as a
member of the Board of State Canvassers, and to remove respondent from
said office for gross neglect of duty, if he should be found guilty thereof;
that, a charge of that kind having come to the knowledge of the relator,
he caused written notice to be served upon the respondent, which notice
required him to appear before the relator, and show cause why he should
not be removed from his office of Secretary of State for gross neglect of
duty in connection with the canvass of the returns in relation to said
amendment relating to salaries of State officers, such notice containing
specific charges of neglect, as follows:
“ExECUTIVE OFFICE,
“Lansing, February 6, 1894.
“To John W. Jochim, Secretary of State, Joseph F. Hambitzer, State
Treasurer, and John G. Berry, Commissioner of the State Land Office,
composing the Board of State Canvassers.
“GENTLEMEN-Public charges have been made, and have come to my
knowledge, that gross errors were made in the canvass of the returns of
votes given in the various counties at the election held in this State on
the first Monday in April, A. D 1893, for and against the adoption of
joint resolution No. 10, approved March 9, 1893, entitled ‘Joint resolu-
tion proposing an amendment to section one (1), article nine (9), of the
constitution of this State, relative to the salaries of State officers,” by
which it was made to appear that such amendment to the constitution had
been ratified and approved by a majority of the electors voting thereon,
whereas, it is alleged that, by a true and correct canvass of the returns of
such votes, the said amendment was defeated. Under the power granted
and duty imposed upon me, as Governor of this State, by section eight
(8) of article twelve (12) of the constitution, it became necessary to
inquire into the administration and condition of your several offices and
especially into the manner in which you have severally and collectively,
126 REMOVAL PROCEEDINGS.
performed the duties of the Board of State Canvassers, of which you are
ea officio members, for the purpose of determining whether you have
been guilty of gross neglect of duty in the matter of canvassing the said
returns, ſº
“You are therefore severally cited and required to appear before me, at
the executive office in the city of Lansing, on the fifteenth day of Febru-
ary, 1894, at one o’clock in the afternoon, then and there to answer to the
following specific charges, viz.:
“1. That you, the said John W. Jochim, Secretary of State, Joseph F.
Hambitzer, State Treasurer, and John G. Berry, Commissioner of the
State Land Office, who are the Board of State Canvassers under the con-
stitution and laws of this State, were, each and every one of you, guilty
of gross neglect of duty, in this: That you did not, nor did either of you,
examine the statements or returns of votes from the several counties, filed
in the office of the Secretary of State, showing the number of votes cast
for and against said proposed amendment to the constitution relative to
the salaries of State officers, by the electors in this State at the election
in April, 1893.
“2. That you were severally guilty of gross neglect of duty, in this:
That you did not, nor did either of you, ascertain and determine the
result of such vote, nor perform with due and proper care the duties relat-
ing to canvassing the statements and returns from the several counties of
the votes given at such election for and against said proposed amendment
to the constitution, required of and imposed upon you, as members of the
said Board of State Canvassers, by the constitution and laws of this State.
“3. That you were severally guilty of gross neglect of duty, in this:
That you made and suffered to be made, gross errors in the canvass of the
statements and returns filed in the office of the Secretary of State of the
votes given in the several counties at said election in April, 1893, for and
against said proposed amendment to the constitution, by which it was
falsely made to appear that such proposed amendment had been approved
and ratified by a majority of the electors voting thereon, whereas, by a
true and correct canvass of the said statements and returns, the said pro-
posed amendment was defeated.
“4. You are further required, then and there, to show cause why you
and each of you, should not be removed from office for gross neglect of
duty.
“JOHN T. RICH,
Governor.”
The replication further alleges that the respondent appeared by counsel
before relator, and moved to vacate the notice and dismiss the charges,
for reasons following:
“1. The Governor has no power, under section 8 of article 12, or any
other provision of the constitution, to remove the respondents, or either
of them, from their respective offices, for any misconduct on their part,
or on the part of either of them, as members of the Board of State Can-
V8 SS6 TS.
“2. The power of the Governor, under section 8, article 12, of the
constitution, is confined to the official misconduct of the officers therein
named, in the performance of the duties appertaining to each of said
officers, separately and severally considered; and it does not include such
BOARD OF STATE CANVASSERS. 127
duties as are performed by such officers, jointly with others, as members
of constitutional or statutory bodies or boards.
“3. The house of representatives, under sections: 1, 2 and 3, article 12,
of the constitution, has the sole power to direct an impeachment of these
respondents for misconduct in the performance of their duties when acting
as a Board of State Canvassers, and the senate has exclusive jurisdiction
to try any such impeachment.
“4. The charges set forth in the notice served upon these respondents
are wholly insufficient and fatally defective, for the reason that it is not
alleged therein that the neglect of these respondents, or any of them, was
intentional or that they, or either of them, have knowingly and designedly
neglected any official duty, or that they, or either of them, have neglected
to perform any duty with an evil intent, or for any improper, illegal or
culpable purpose.
“5. The charges contained in said notice do not make or state a case
of gross neglect of duty, within the meaning of section 8, article 12, of
the constitution; and the Governor, sitting as a court of impeachment,
has no jurisdiction or power to render judgment of removal thereon.
“6. The notice served on respondents is void because it is not 'In the
name of the People of the State of Michigan,” as required by section 35
of article 6 of the constitution, and it is not authenticated by the great
seal of the State, as required by section 18 of article 5 of the constitution.
“7. The Board of State Canvassers is created by the constitution of
this State, and, in the performance of their duties and functions, the
members of said board, in the absence of conduct on their part amount-
ing to a criminal offense, are not subject to the control or interference of
the Governor of the State, or of any other branch or department of the
government; and, excepting the power of the legislature to determine any
case where the decision of the State Board of Canvassers is contested,
they are answerable or amenable only to the people of the State, by whom
they were elected to their respective offices.” -
It is further alleged that the motion was denied; that evidence was
introduced in support of the information, as follows:
1. The returns from the several counties, showing the vote upon said
amendment.
2. The canvass of said returns, purporting to have been made and
signed by respondent and the other members of the Board of State Can-
vassers upon May 16, 1893, from which it appears that the said amend-
ment was carried by a majority of 1,821 votes.
3. The canvass of said returns subsequently made by said officers,
under the order of the supreme court, showing the defeat of said amend-
ment by 11,455 votes.
4. Wouchers showing the amounts paid to respondent and the other
members of said board for their expenses in making said canvasses.
5. A stipulation by counsel that a short time prior to May 16, 1893,
respondent was notified by his clerks that a tabulated statement showing
the votes for and against said amendment had been prepared, and was
ready to be signed by the members of the State Board of Canvassers;
that thereupon respondent notified the other members of said board by
telegram, in response to which they came to Lansing, and signed said
tabulated statement prepared by their clerks; that neither of them com-
pared or examined the returns from any county, nor did they compare
128 REMOVAL PROCEEDINGS.
them with the tabulated statement aforesaid; that they relied upon what
their clerks stated about such statement being correct, and, believing it
to be so, signed it; and that was all that they had to do with it.
The replication further states that no evidence was offered upon the
part of respondent; that an order adjudging respondent guilty, and
removing him from his said office, was thereupon made, and duly served
upon said respondent, upon the 19th day of February, 1894. As stated,
a demurrer to this replication was filed. t
The important questions presented by this record are (1) the power of
the Governor to remove respondent; (2) the sufficiency of the cause
alleged. The jurisdiction of this court to review or pass upon the official
acts of a co-ordinate branch of government was not discussed. It was
referred to in the brief of counsel for the relator, with an express dis-
avowal of a desire to raise the question. We shall therefore omit a dis-
cussion of that subject.
Whatever authority the Governor has to remove respondent must be
found in section 8 of article 12 of the constitution, which reads as follows:
“The Governor shall have power, and it shall be his duty, except at
such time as the legislature may be in session, to examine into the condi-
tion and administration of any public office, and the acts of any public
officer, elective or appointed, to remove from office for gross neglect of
duty, or for corrupt conduct in office, or any other misfeasance or malfea-
sance therein, either of the following State officers, to wit: The Attorney
General, State Treasurer, Commissioner of Land Office, Secretary of
State, Auditor General, Superintendent of Public Instruction, or mem-
bers of the State Board of Education, or any other officer of the State,
except legislative and judicial, elective or appointed, and to appoint a
successor for the remainder of their respective unexpired term of office,
and report the causes of such removal to the legislature at its next
session.’’
It is contended that this section is in violation of the amendment of the
constitution of the United States which provides that no state shall
“deprive any person of life, liberty or property, without due process of
law.” Const. U. S. Amend. 14, section 1. As the constitution of this
State contains the same provision (section 32, article 6), no new right was
conferred upon officeholders, nor was any modification of the power of the
Governor to remove officers under section 8, article 12, consequent upon
the adoption of the fourteenth amendment. Any question that can now
be raised upon the latter could have been raised under the former at any
time since section 8, article 12, was adopted; and all decisions upon sec-
tion 32, article 6, are applicable to this provision of the fourteenth amend-
ment, unless in contravention of federal decisions thereon. To sustain
this point it must appear (1) that the removal from office is a deprivation
of the respondent of his property; and (2) that it was sought to be accom-
plished without due process of law.
A public office cannot be called “property,’” within the meaning of
these constitutional provisions. If it could be it would follow that every
public officer, no matter how insignificant the office, would have a vested
right to hold his office until the expiration of the term. Public offices
are created for the purposes of government. They are delegations of por-
tions of the sovereign power for the welfare of the public. They are not
the subjects of contract, but they are agencies for the State, revocable at
5
BOARD OF STATE CANVASSERS. 129
pleasure by the authority creating them, unless such authority be limited
by the power which conferred it. In the case of City of Wyandotte v.
Drennan, 46 Mich., 480, Mr. Justice Cooley, in giving the opinion of the
court, said:
“It is claimed, however, that, when the salary is fixed at the time when
the office is accepted, the acceptance is presumed to have the salary in
view, and a contract is thereby effected between the officer and the city,
which neither can change without the consent of the other. This is a
position that has frequently been taken, and almost as often overruled.
Nothing seems better settled than that an appointment or election to a
public office does not establish contract relations between the person
appointed or elected and the public. The leading case of Butler v. Penn-
sylvania, 10 How., 402, has been universally regarded as having settled
that question, and it has been followed by decisions in numerous cases.
The salary or other compensation is therefore at the discretion of the legis-
lative authority of the State, or of such other authority as the legislature
has seen fit to intrust it to. This was indirectly recognized in Chapoton
v. Detroit, 30 Mich., 636, a case which is in point here.
“It is said on behalf of the defendant in error that the principle above
stated rests on the right of the officer to resign and give up his office at
any time; and it is further said this right did not exist in the case of this
officer, because he could only resign to the common council—the very
body that reduced the salary—and the council might keep him in by
refusing to accept his resignation. Whether the council could in this
way compel the recorder to continue in the performance of his duties we
do not care to consider in this case, because we think the legislative
authority over the subject does not depend upon the existence or non-
existence of any such power. Offices are created for the public good, at
the will of the legislative power, with such powers, privileges and emolu-
ments attached as are believed to be necessary or important to make them
accomplish the purposes designed. But, except as it may be restrained
by the constitution, the legislature has the same inherent authority to
modify or abolish that it has to create; and it will exercise it with the
like considerations in view. Whoever accepts a public office must accept
it with this principle of constitutional law in view; and if his compensa-
tion is reduced below what seems to him reasonable, it may be a hardship,
but it is not a legal wrong. The legislative power is ample, and he is
supposed to know when he takes the office that it is liable to be exercised.”
The legislature may remove officers, not only by abolishing the office,
but by an act declaring it vacant, as was done by act No. 140, section 13,
laws of 1891. Throop v. Langdon, 40 Mich., 673; Auditors v. Benoit, 20
Id., 184. And it may lodge the power to remove from statutory offices in
boards or other officers, subject to statutory regulations. And, while it
cannot remove incumbents of constitutional offices, it is not because of an
inherent difference in the qualities of the office, but because the power to
remove is limited to the power that creates. The constitutional officer is
an agent of government. There is the same lack of the ingredients of
contract, and the same power to abolish the office or remove the officer by
amendment of the constitution. City Council v. Sweeney, 44 Ga., 463;
Butler v. Pennsylvania, 10 How, , 402.
The fact that some cases hold that removals from office cannot, in some
instances, be made, except upon cause shown, upon notice, specific
17
130 REMOVAL PROCEEDINGS,
charges, and after a hearing in its nature judicial, does not militate
against this doctrine. These cases simply hold that removals are limited
by the power of the people or legislature, through the constitution or
statute, not that a vested property right is involved in the holding of
office, or that removal is beyond the power which creates the office and
the officer. Nor does it follow that removal from office is a deprivation of
the officer of property, because it must be for cause, upon specific
charges, and after an opportunity to be heard. Many cases may be found
that speak of the disgrace of removals, and the right to hold an office
under election. Of these the case of Page v. Hardin, 8 B. Mon., 672,
perhaps, goes the furthest.
The case of Dullam v. Willson, 53 Mich., 393, discusses section 8,
article 12, holding that it was not designed to confer upon the Governor
power to remove without charges and hearing; but it recognizes the power
of the people over public offices, and sustains the authority of the Gov-
ernor, under this section, to remove for cause. Mr. Justice Champlin says:
“That under the amendment the Governor was vested with, the power
of determining whether the specified causes exist, appears to me too plain
for serious contradiction, I fully concur in the views expressed upon this
point by the learned counsel for the respondent (Judge Christiancy),
wherein he says: ‘It was competent, by constitutional amendment, to
authorize him to exercise such judicial power. And while this amend-
ment gives the power of removal only for the causes which it specifies
(which, though similar in character, are not identical with those specified
in the statute), and the question of the officer's guilt is one judicial in its
nature, yet the amendment imposes a duty and confers upon the Governor
the power “to ecomine into the condition and administration of the office
and public acts of the officers ” to which it applies, and to remove them
from office for the causes there enumerated; thus, in effect, giving him the
right to try the question whether the officer is guilty or not, and to
remove him from his office.’ The counsel for the respondent, while
granting this, insist that such removal cannot be made without charges,
notice, and an opportunity for defense, and this I consider the important
question in the case. Unless it is the manifest intention of the section
under consideration that the proceedings should be ex-parte as well as
summary, a removal without charges, notice, and an opportunity for
defense cannot be upheld.”
Again, as all statutory offices are taken subject to legislative action, so
all constitutional offices are taken subject to constitutional changes, and
both are upon the terms and subject to the conditions existing by law.
One of the constitutional conditions upon which the respondent took his
office was that he would be subject to removal by the Governor, under
article 12, section 8. Frey v. Michie, 68 Mich., 328; Fuller v. Attorney
General, 98 Id., 96.
But conceding, for the argument, that the office is a vested property
right, what is the “due process of law” to which the respondent is
entitled, under the constitutions of this State and the United States?
Counsel contend that it can mean nothing less than a trial by the consti-
tutional judiciary, and perhaps a jury. If so, it must be because the con-
stitutional office differs from the statutory office, as several cases hold that
removals from the latter may be made without the intervention of courts.
Dullam y. Willson, 53 Mich., 392; Clay v. Stuart, 74 Id., 415; Wellman
BOARD OF STATE CANVASSERS. 131
v. Board of Police, 84 Id., 558; 91 Id. 427; Fuller v. Attorney General,
98 Ta., 96. But this language of the constitutions means less than that.
The words ‘‘due process of law, '' as used in the constitution (article 6,
section 32), mean the law of the land, by which are to be understood laws
which are general in their operation, and not special acts of legislation
passed to affect the rights of particular individuals against their will, and
in a way in which the same rights of other persons are not affected by
eacisting laws. Sears v. Cottrell, 5. Mich., 251. Due process is not neces-
sarily judicial process. Administrative process, which has been regarded
as necessary in government, and sanctioned by long usage, is as much due
process as any other. Weimer v. Bunbury, 30 Mich., 201. In this case
the treasurer of the city of Niles did not collect and pay over to the county
treasurer certain taxes, whereupon, in accordance with the statute, the
county treasurer issued a warrant to the sheriff, commanding him to levy
and collect the amount from the property of the city treasurer. It was
held not to invade article 6, section 32.
The federal decisions also qualify the claim of respondent’s counsel.
In eac parte Wall, 107 U. S. 265, it is said that what is due process of law
in the State is regulated by the law of the state. The requirement of the
constitution that a person cannot be deprived of his property without due
process of law does not imply that all trials in the State courts, affecting
property, must be by jury.
“Due process of law does not require a plenary suit and a trial by jury
in all cases where property, or personal rights are involved. * * * It
is, in all cases, that kind of procedure which is suitable and proper to the
nature of the case, and sanctioned by the established customs and usages
of the courts.”
See also, Railroad Co. v. Town of Bristol, 14 Sup. Ct. Rep., 437.
In Den v. Improvement Co.. 18 How. , 272, Curtis, J., says:
“For, though due process of law generally implies and includes
actor, reus, juder, regular allegations, opportunity to answer, and a trial
according to some settled course of judicial proceedings, yet this is not
universally true.”
This case, by an exhaustive review of English and American authori-
ties, vindicates summary methods on the part of the government to obtain
its due from a tax collector, analogous to the proceedings in the case of
Weimer v. Bunbury. Certainly, the resort to similar proceedings by the
government to reclaim its offices may be equally necessary and justifiable.
In a discussion of this subject in the case of Davidson v. New Orleans,
96 U. S., 103, Mr. Justice Miller said:
“The history of the English mode of dealing with public debtors, and
enforcing its revenue laws, is reviewed [referring to Den v. Improvement
Co., supra] with the result of showing that the rights of the crown, in
these cases, had always been enforced by summary remedies, without the
aid of the usual course of judicial proceedings, though the latter were
resorted to in the exchequer court when the officers of the government
deemed it advisable. And it was held that such a course was ‘due process
of law,” within the meaning of that phrase. as derived from our ancestors,
and found in our constitution.
“It is not a little remarkable that while this provision has been in the
constitution of the United States, as a restraint upon the authority of the
federal government, for nearly a century, and while, during all that time,
º
132 FEMOVAL PROCEEDINGS,
the manner in which the powers of that government have been exercised
has been watched with jealousy, and subject to the most rigid criticism in
all its branches, this special limitation upon its powers has rarely been
invoked in the judicial forum or the more enlarged theater of public dis-
cussion. But while it has been a part of the Constitution, as a restraint
upon the power of the states, only a very few years, the docket of this
court is crowded with cases in which we are asked to hold that state courts
and state legislatures have deprived their own citizens of life, liberty, or
property, without due process of law. There is here abundant evidence
that there exists some strange misconception of the scope of this provi-
sion, as found in the fourteenth amendment. In fact, it would seem from
the character of many of the cases before us, and the arguments made in
them, that the clause under consideration is looked upon as a means of
bringing to the test of the decision of this court the abstract opinions
of every unsuccessful litigant in a state court of the justice of the decision
against him, and of the merits of the legislation on which such a decision
may be founded.”
See also Springer v. U. S., 102 U. S., 586; Hilton v. Merritt, 110 Id.,
97, 107; Campbell v. Holt, 115 Id., 620; Railway Co. v. Humes, 115 Id.,
512; Provident Institution v. Jersey City, 113 Id., 506; Garrison v. City
of New York, 21 Wall., 196.
From these authorities it appears that the State is not so bound by the
term “due process of law” in the Constitutions that it is impossible for it
to invest its agents with its offices without subjecting itself to the delays
and uncertainties of strict judicial action in cases of emergency. While
in many cases (and, under the decision in the case of Dullam v. Willson,
perhaps in this) the power of removal is a limited and restricted one, to
be exercised along given lines and with prescribed formalities, as already
stated, it is not by reason of an inherent right of property in the officer,
bringing him within the protection of the fourteenth amendment, but
because of the limitations of the law. The Michigan cases already cited
settle for this State the authority of the Governor, under the Constitution.
It is said, however, that the Governor, in this case, made his own
charges and employed his own counsel, and is therefore to sit as judge
in his own case. One of the duties of the Governor, under section 8,
article 12, is to investigate the State offices. He is given inquisitorial
power, that he may ascertain their condition, for the public welfare. No
other means is provided for acquiring the necessary information. If he
discovers irregularities of particular character, it is his duty to remove the
officer, and supply his place by appointment, reporting his action to the
legislature at the next session. Dullam v. Willson is authority for the
proposition that the incumbent is entitled to notice of the charge, and an
opportunity to be heard in his defense. This necessarily implies that the
Governor’s action is, in a sense, judicial. But it does not follow that the
investigation must be made by some other person or officer, who must
make complaint to the Governor; that the complainant must procure
counsel; or that the Governor is necessarily interested, and thereby dis-
qualified from hearing and determining, because he performs the other
duties which are specifically imposed upon him by this section of the Con-
stitution. It is no uncommon thing for judges to order arrests and prose-
cution for acts committed in their presence, such as contempts, perjury,
and perhaps other offenses, and they are not thereby disqualified. There
BOARD OF STATE CANVASSERS. 133
is nothing in the record to show any interest upon the part of the Gov-
ernor, further than to ascertain the condition of the office, and to act upon
the information obtained as the Constitution requires. It is the duty of
the Governor to investigate, using all lawful means to go to the bottom of
any real or supposed irregularity. To that end, he may use clerks and
expert accountants, if necessary—and it is fair to presume that the State
would recognize the expenses as legitimate obligations. The law does not
require a complainant, nor prevent the Governor from committing the
interests of the State to competent lawyers, official or otherwise. Finally.
the Governor acts judicially upon the accumulated evidence, and such
explanations by way of defense as the respondent may offer. In this
respect his action is similar to that discussed in Fuller v. Attorney Gen-
eral, which discussion it is unnecessary to repeat.
We come next to the charges. It is contended that they are insuffi-
cient, because the act is not alleged to have been intentional, and because
it was not gross neglect to permit an erroneous canvass by clerks; further,
that the act was not within the provision of section 8, because it was an
act done by the respondent as a member of the Board of Canvassers, and
not as Secretary of State, and that the only remedy was by impeachment
by the Legislature. To these is impliedly added, and strenuously argued,
that the Legislature could not impeach for gross neglect, and that, there-
fore, the Governor could not remove for such neglect. It is true that
before the defalcation of the State Treasurer, in 1860, the Governor could
not remove a constitutional officer, and that a defaulting treasurer had the
lawful authority to continue to receive the public funds until the Legisla-
ture should convene, and proceed by impeachment to secure his removal.
Doubtless, this condition of affairs, as counsel assert, led to the adoption
of the amendment of 1862, viz., article 12, section 8. It is also true that
section 1, article 12, gives to the Legislature the sole power to impeach
civil officers for corrupt conduct in office, or for crimes and misdemeanors.
If no further power of impeachment existed than as mentioned in section
1, it must be conceded to follow that the Governor was granted a broader
power of removal than the legislature had by way of impeachment. But
the people had the undoubted power to authorize removals by the Gov
ernor for causes not theretofore mentioned as a ground for impeachment.
They certainly made it his duty to remove for gross neglect, and we can-
not accept the proposition that the amendment was not intended to
include that which it especially mentions in terms unmistakable to the
common understanding, Nor do we think there is any merit in the point
that the duty of canvassing the returns is not the official duty of the Sec-
retary of State. By virtue of his office, he is one of three who constitute
a board. Without his office, he could not act, and we think the part per-
formed by him is an official act of the Secretary of State,
It remains to discuss the character of the charges made. The only
duties of the Board of State Canvassers are to canvass the returns, and
determine and certify the result of elections. Theirs is the culminating
act of the army of persons who have had to do with the receiving and
counting, recording and transmitting, of the votes which signify the will
of the people. Section 202 of Howell’s Statutes makes it the duty of these
officers to attend, and form the Board of State Canvassers. Their duties
are specifically pointed out. The times when they are to meet are pro-
vided by law. No provision is made for deputies or clerks, but all go to
134 REMOVAL PROCEEDINGS.
show that this important duty is to be performed by them in person, as
the certificate signed by them asserts. It is not confided to inferior
officials, but to three of the State officers of greatest dignity and import-
ance. It appears to have been the design of the lawmakers to place the
votes of the people in the keeping of the most responsible officers of the
State; and no argument ought to be necessary to show that it was not
expected that the returns would, upon their arrival, be turned over to an
irresponsible clerk in the secretary’s office, having no official relation to
the canvass, whose tabulation should be the canvass, and that the mere
signing of their three names to his production should constitute a full
compliance on the part of these officers with the law prescribing the
duties of the State canvassers. Section 207 requires an examination by
the board of the several, statements of the votes, and that they make a
statement of the whole number of votes cast for each office, while section
209 makes it their duty to certify such statement to be correct. A mere
failure to certify could be called “neglect.” What shall be said of it
when the certificate is made without knowledge of, or any attempt to
ascertain, the fact? An officer is elected for two years. Who shall count
and keep the money of the State, or keep its great seal, for a couple of
years, is not a matter of vital importance; but an amendment of the con-
stitution changes, perhaps for all time, the fundamental law, releasing or
reclaiming by the people some right or power over the legislature and
officers, the consequence of which may be stupendous. In the present
instance, it was a matter of money—several thousand dollars a year; and
while many feel that the defeat of this amendment was unfortunate, it is
vastly more unfortunate to have the will of the people thwarted, though it
be the result of carelessness only, or neglect on the part of the board to
perform the only duty imposed upon them by law. Looking at the cir-
cumstances from his official standpoint, the Governor may well have said
this, though not wilful, was only possible by reason of the grossest neglect
of official duty. It certainly was some one’s duty to move at once with a
view to the correction of the error, and the prevention of its recurrence.
While there is an inclination upon the part of the average American to
accept good intentions as an excuse for mistakes, it is not for the general
public good that responsible public offices shall be confided to, or remain
in the custody of, those whose duties and responsibilities rest so lightly
upon them as to permit the public interests to be injured or endangered
through neglect; and when such neglect, from the gravity of the case, or
the frequency of the instances, becomes so serious in its character as to
endanger or threaten the public welfare, it is gross, within the meaning
of the law, and justifies the interference of the executive, upon whom is
placed, by this amendment, the responsibility of keeping the affairs of
State in a proper condition. We cannot think that the term “gross neg-
lect” means only intentional official wrong doing. Such acts would hardly
be described by the word “neglect.”
It is said that this section confides great power to the Governor. This
is true; but the governorship is an exalted office—one which ought to
carry with it a presumption of integrity of character and breadth of mind
commensurate to its importance. It would be a sad commentary upon
free government if it were otherwise. But the powers of the Governor
are carefully restricted, and there is no occasion to pursue the illusive
BOARD OF STATE CANVASSERS. 135
phantoms of possibility. When abuses arise, they will doubtless be
speedily and effectively met.
It remains to notice the sixth objection raised. It is as follows:
“The notice served on respondents is void because it is not “In the
Name of the People of the State of Michigan,’ as required by section 35
of article 6 of the constitution, and it is not authenticated by the great
seal of the State, as required by section 18 of article 5 of the constitution.”
It is enough to say that section 35, article 6, applies to the judicial
department only, while the other provision (section 18, article 5) certainly
ought not to apply to a case where the Governor is citing the custodian
of the great seal before him upon charges. But such citation is not such
an official act as needs authentication. It has no importance, and is of
no personal interest to others than those cited, and falls within the multi-
tude of daily acts, which, while official in a sense, do not require authen-
tication by the great seal.
The demurrer must be overruled, and judgment of ouster entered
against the respondent.
The other justices concurred.
OPINION.
THE ATTORNEY GENERAL, EX REL. JOHN T. RICH, GOVERNOR, V. JOHN G,
BERRY.
Removal of State Officers.
This case is ruled by Attorney General v. Jochim, ante, 122.
Information in the nature of quo warranto to test the title of respond-
ent to the office of Commissioner of the State Land Office. Argued March
6, 1894, Demurrer overruled, and judgment of ouster entered, March 20,
1894. The facts are stated in Attorney General v. Jochim, ante, 122.
A. A. Ellis, Attorney General (Geer & Williams and Cahill & Ostran-
der, of counsel), for relator.
Smith, Lee & Day (Fred A. Baker and S. Wesselius of counsel), for
respondent.
HOOKER, J. This cause is governed by the decision in the case of
Attorney General v. Jochim, ante, 122.
The demurrer will be overruled, and judgment of ouster entered.
The other justices concurred.
136 - REMOVAL PROCEEDINGs.
OPINION.
THE ATTORNEY GENERAL, EX REL. JOHN T. RICH, GOVERNOR, V. JOSEPH
F. HAMBITZER,
Removal of State Officers.
The case is ruled by Attorney General v. Jochim, ante, 122. |
Information in the nature of quo warranto to test the title of respond-
ent to the office of State Treasurer. Argued March 6, 1894. Demurrer
overruled, and judgment of ouster entered, March 20, 1894. The facts
are stated in Attorney General v. Jochim, ante, 122.
A. A. Ellis, Attorney General (Geer & Williams and Cahill & Ostran-
der, of counsel), for relator,
Smith, Lee & Day (Fred A. Baker, of counsel), for respondent,
HOOKER, J. This cause is governed by the decision in the case of Attor-
ney General v. Jochim, ante, 122.
The demurrer will be overruled and judgment of ouster entered.
The other justices concurred.

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