Miles v. Stevenson

McSherry, J.,

delivered the opinion of the Court.

This case had its origin in a petition filed by the appellee against the appellants, the County Commissioners of Somerset County, and one Samuel H. Coulbourn, praying for a writ of mandamus. The undisputed facts are: That in November, 1893, the relator, Stevenson, was appointed by the County Commissioners supervisor of certain public roads of Somerset County for the term of two years: That he accepted the office, gave bond and duly qualified: That thereafter, in July, 1894, the same County Commissioners appointed the appellant, Coulbourn, supervisor of the same roads in place of the appellee, whom they removed, as they allege, for cause. This removal was made without any trial or investigation and without notice to the appellee, and was induced solely because his charges for work were higher than those for which Coulbourn offered to do the same labor. The appellee’s bill was paid by the County Commissioners and was not alleged to be illegal or in excess of the charges which he was authorized by law to make. Unless these charges for work performed furnished evidence of incompetency, wilful neglect of duty or misdemeanor *364 in office, there is no pretence that he was either incompetent, wilfully negligent of duty or guilty of misdemeanor in office. Upon the rendition of his bill, and without any formal accusation against him, and without any hearing, or even notice that a charge of any kind was pending against him, the County Commissioners removed Stevenson from his office, and assigned as the reason, that he was removed for cause, though they did not specify what that cause was. He thereupon made application for the writ of mandamus to restore him to his office, and after a hearing the writ was issued. From the order directing the writ to issue this appeal was taken.

’ We have no difficulty in affirming the order passed by the Circuit Court.

Stevenson, when appointed by the County Commissioners in 1893, was appointed to a public office, the term of which was a definite one prescribed by statute. Code of Public Local Laws, Art. 20, sec. 227; Act of 1890, ch. 113. Its duration was limited to two years and until his successor should be duly appointed and should qualify. This fixed it at two years at least, and as much longer as no successor was appointed and qualified. But the same statute made provision for the removal of a road supervisor before the expiration of the term for which he had been appointed. The power to remove was lodged with the same body which was entrusted with the power to appoint. This power to remove is not, however, unlimited or undefined; for the statute explicitly declares that it shall be exercised “for incompetency, wilful neglect of duty or misdeameanor in office.” The designation in the statute of the three causes, which will authorize the exertion of the power to remove, is, of course, a denial of the right on the part of the County Commissioners to remove for any other or different cause. The incumbent, Stevenson, having been duly appointed, and being in consequence entitled to the emoluments of the office, had a right to insist that he should not be deprived by the appointing power of the office or its *365 emoluments before the legal expiration of his term,’ except for the causes, or one of the causes, prescribed by the statute. Besides this, even had he been proceeded against under the statute for any of the causes therein set forth, he would have been entitled to an opportunity to be heard and to make defence before he could have been legally removed.

We agree that the writ of mandamus does not lie to control the discretion of any tribunal, however limited its jurisdiction may be. Hence, when the act complained of rests in the exercise of a discretion, the remedy fails. But this discretion is not unlimited, for if it be exercised with manifest injustice, the Court will command its due exercise. Tap. on Man. 14. It must be a sound discretion and according to law. Ib. 13. As said by Chief Justice Taney, in speaking of the power of a Court to disbar an attorney at law, “ The power, however, is riot an arbitrary or despotic one, to be exercised at the pleasure of the Court or from passion, prejudice or personal hostility.” Ex parte Secombe, 19 How. 13 .

If the County Commissioners had acted within the scope of their legitimate authority and had removed the relator for any of the causes specified in the statute, after having given him due notice and an opportunity to be heard, their action would not be open to review upon application for the writ of mandamus. Though the Code of Public Local Laws gave them plenary power to remove a road supervisor for incompetency, wilful neglect of duty, or misdemeanor in office, it conferred upon them no authority to deprive the relator of his office upon an ex parte proceeding founded on a cause not specified in the statute and carried on without notice to him and without according him an opportunity to be heard or to make defence. Such a procedure has neither the form nor the semblance of a judicial inquiry, and is contrary to the plainest precepts of natural justice. It lacks the essential prerequisites of a valid legal judgment, for neither could the County Com *366 missioners have lawfully removed the relator for a cause not named in the statute, nor could he have been properly deprived of his- office before its term had elapsed without due process of law, and due process of law in such instances imperatively requires that the person to be affected must have notice of the proceedings against him and must have an opportunity to be heard in his own behalf. Fisher v. Keane, L. R. 11, Ch. Div. 353; Com. ex. rel. Burt v. Union League, 135 Pa. St. 301. It is the utmost stretch of arbitrary power and a despotic denial of justice to strip an incumbent of his public office and deprive him of its emoluments and income before its prescribed term has elapsed, except for legal cause, alleged and proved, upon an impartial investigation after due notice. In the case at bar the cause alleged was not one of those set forth in the statute, and for that reason the County Commissioners’ act in removing the relator was a nullity. The order removing him was passed ex parte, without notice to' or a hearing of the relator, and for that additional reason was utterly invalid. What we have said is not to be understood as applying to a class of cases where there is no limit fixed to the term of the office and the appointee holds merely at the will of the appointing power; nor to another class, where the power of removal is vested by statute in the discretion of any person or body of persons ; nor where it depends on the exercise of personal judgment as to whether the cause for removal be sufficiently good. State ex. rel. O’Neill v. Register et al. 59 Md. 283 .

It was insisted by the appellants that the writ of mandamus is not the appropriate remedy in this case, because by sec. 81 of Art. 5 of the Code of Public General Laws, any person feeling himself aggrieved by any decision or order of the County Commissioners may appeal to the Circuit Court within sixty days; and it was argued that this section affords a complete and adequate remedy for Stevenson. But to this we cannot agree. This section does not embrace an appeal from an order removing a pub- *367 lie officer from his office. This is made quite apparent by-recurring to the original legislation, which forms this section of the Code, and by reference to other Acts of Assembly providing for appeals from the County Commissioners in special instances. The Act of 1853, ch. 220, conferred upon the County Commissioners power to open, alter and close public roads, and by its 13th section gave the right of appeal to the Circuit Court in almost the exact language used in sec. 81 of Art. 5 of the Code. From this 13th sec. of the Act of 1853, the 81 sec. of Art. 5 of the Code was taken ; and this section of the Code is the only provision of law allowing an appeal in a public road controversy. The prior Act of 1853, ch. 253, gave to the Levy Courts authority to open private roads, reserving a right of. appeal to the then County Courts, and this provision is re-enacted, in Art. 23, sec. 117. So the Act of 1856, ch. 308, made provision for building of bridges, and by its 9th section, which is codified in secs. 32, 33 and 34. of Art. 25, gave a right of appeal. The Act of 1858, ch. 271, which related to the draining of lands, gave by its 19th section a right of appeal, which is preserved in sec. 71 of Art. 25. Thus in each of these proceedings relating to private roads, to building bridges and to draining lands, the right of appeal given in the original acts is specifically preserved in Art. 25 of the Code; whereas, the right of appeal given by the Act of 1853, ch. 220, in proceedings to open, alter or close a public road, is not re-enacted in Art. 25 of the Code, but is codified in sec. 81 of Art. 3. Under the Constitution of 1851, road supervisors were made elective by the people. The Act of 1853, ch. 300, sec. 10, gave to the County Commissioners power to remove these officers for neglect of duty or malfeasance in office, but nowhere made provision for an appeal to the Circuit Court from an order revoking a supervisor’s commission. An appeal could not then have been taken in such a case under the 13th sec. of ch. 220 of the Acts of 1853, which related solely to appeals in public road proceedings. So that when the power to re *368 move a supervisor existed under the general law, there was no appeal provided, but now that the same power exists only under local laws and is no longer conferred by the general law, for sec. io of the Act of 1853, ch. 300, has been, repealed, it is insisted and claimed that the 81 sec. of Art. S gives an appeal. But for the reason we have given, this cannot be.

(Decided December 19th, 1894.)

It results, then, that sec. 81 of Art. 5 is not broad enough to include an appeal from an order removing a road supervisor, and was never intended to be, though we are not to be understood as intimating any opinion as to what other orders or decisions of the County Commissioners, if any, may be appealed from under this section.

From the views we have expressed, it follows that the Court below was right in granting the appellee’s prayers and in rejecting those presented by the appellants, and its order directing the writ of mandamus to be issued, is free from error and must be affirmed with costs, which we accordingly do.

Order affirmed with costs above and below.