Attorney General v. Bairley

1. Statutes — Construction—Penal Statutes Strictly Construed. The statute (1 Comp. Laws 1915, §§ 245-252) providing for the removal of a public officer for misconduct or neglect in office is in the nature of a penal statute and must be strictly construed. 2. Same — Malfeasance in Office — Removal of Public Officer— Hearing Before Governor. Where charges of malfeasance in office were preferred against defendant sheriff of Monroe county under said statute, it was within the discretion of the governor to himself hear and determine the truth of the charges, and defendant’s contention that it was mandatory upon the governor to direct the attorney general or the prosecuting attorney of Monroe county to conduct an inquiry before the circuit court commissioner or judge of probate of said county cannot be sustained. 3. Same — Construction—Powers of Governor — Constitutional Law. While the power so exercised by the governor is quasi judicial in character, it is limited in scope and must be exercised in strict compliance with the Constitution and laws bearing upon the question. 4. Same — Legislative Question. That the right to the process of subpoena, secured to defendant under 1 Comp. Laws 1915, §§ 246, 247, 248, when the charges are referred to the attorney general or prosecuting attorney for investigation, is not provided for if the investigation is made personally by, the governor, under the provisions of section 245, is one for legislative rather than judicial attention. On power of court to review action of governor in removing officer, see note in 39 L. R. A. (N. S.) 788.

Quo warranto by Alex. J. Groesbeck, attorney general, against Joseph J. Bairley to try the title to the office of sheriff of Monroe county. The action is quo warranto, to determine the title of the defendant to the office of sheriff of Monroe county. On April 11, 1919, charges were filed with the governor against defendant, alleging that he had been guilty of malfeasance in office in a number of particulars. Inter alia, that while acting as sheriff, he sold some 50 quarts of whiskey which had been placed in his custody by the State food and drug commissioner, Fred L. Woodworth. The petition prayed for removal of the defendant as sheriff of Monroe county, after investigation to be made by the governor in accordance with the statute. Immediately thereafter, the governor made an order, notifying defendant that a hearing would be held on said petition-at the executive office at Lansing, on April 18, 1919, beginning at 10 o’clock in the forenoon, at which the governor would preside and listen to the witnesses produced on behalf of the food and drug commissioner as well as any evidence which defendant might produce in defense. The order of the governor, together with a copy of the charges, were personally served on defendant, at Monroe, on the 11th day of April, and an affidavit of service filed in the executive office. On the 18th of April, 1919, the parties in interest appeared before the governor at the executive office, there being present the food and drug commissioner with his witnesses, the defendant in person, and represented by counsel. On that date, defendant, through his attorneys, asserted to the governor that they were hot prepared to go to a hearing in Lansing; that they had no witnesses present at the time except the defendant, and apparently on that date filed the following objections to the method of procedure: “1. The governor of the State of Michigan has no jurisdiction or authority to proceed with the examination of witnesses outside of Monroe county in this matter. “2. The governor of the State of Michigan has no authority or jurisdiction to examine the witnesses himself in this matter or to personally conduct the examination of witnesses in this matter. “3. Because the governor of the State of Michigan has no jurisdiction to require witnesses to be examined. in the city of Lansing in this matter, but such witnesses must be examined in the county of Monroe. “4. Because the governor of the State of Michigan has no jurisdiction to preside over the examination of witnesses sworn in this matter but the examination of witnesses herein must be presided over by the probate judge or the circuit court commissioner of-Monroe county, Michigan. “5. Because there was not served upon the defendant herein any copies of affidavit, or exhibits which were attached to the original petition filed with the governor or which were used and exhibited to the governor and in fact made a part of the charges before the governor. “6. Because it is unjust and inequitable to force the defendant to go to the city of Lansing and produce and keep his witnesses there for examination, the city of Lansing being about 100 miles distance from Monroe city, the place of residence of the defendant. “The defendant will not answer further except under protest and by order of the governor.” He thereafter filed an answer under protest in which he denied the material charges set forth in the petition. On the said 18th day of April, 1919, the governor adjourned the hearing to the 30th of April, 1919, at 10 o’clock in the forenoon, and on the adjourned day all of the parties again appeared, defendant being present in person and represented by counsel. Over the renewed protest of defendant, the hearing was had, evidence being received on behalf of the food and drug commissioner and defendant being heard in his own defense. No other witnesses were sworn on behalf of defendant. At the close of the testimony the following colloquy took place: “Governor Sleeper: Of course, I want to give the defendant every opportunity that he wants or can .have. I thought perhaps it was best to hold this case here, and not have it drag along and ultimately come before me any way and it is possible in the new case, I think perhaps it would. “On the other hand, I want you to have every opportunity of refuting or bringing such testimony in as you wish. If you feel as though there is any more evidence you would like to put in this case, we will adjourn this court until 9 o’clock tomorrow morning so that you may have witnesses here. Otherwise, X think we will have to proceed to close. “Mr. Baldwin: That would 'mean then that it is closed? “(governor Sleeper: Yes, unless you want to bring some witnesses here. “Mr. Baldwin: X don’t see how we could do anything like what we want. “Governor Sleeper: So far as the character of the sheriff is concerned, I assume it is good or he would not have been elected and it does not seem to be the main issue, and as I said, if there is any other evidence you wish to submit, why we will give you all the time that you would want to get- them here. “Mr. Baldwin: We could not get our witnesses and I would prefer then if that is the holding, that it is closed. “Governor Sleeper: No argument either one of you wish to make? “Mr. Baldwin: I told you I would like about fifteen minutes. ^ “Governor Sleeper: You can have all you want. “Mr. Baldwin: To give my idea of the situation. “Governor Sleeper: Do you want any time, Mr. Baillie? “Mr. Baillie: Well, I thought if the case was to be argued, it might be advisable to have testimony available. All I care to say would be in response to what Mr. Baldwin would say and I waive the opening argument. There may be some things said I would like to answer.” Thereafter, counsel for defendant argued the matter before the governor, who, after causing the testimony to be transcribed and considering the same, issued, under the seal of the State, an order of removal against defendant and declared the office of sheriff of Monroe county to be vacant. The order of removal was duly served upon defendant on the 11th day of July, 1919, and on the following day the circuit judge for Monroe county, under the authority of section 2471, 1 Comp. Laws 1915, entered an order appointing and designating one George A. Huber (one of the coroners of said county) to perform the duties of sheriff until such time as a sheriff could be legally appointed, as provided by law. Defendant refused to recognize either the order of removal or the appointment of his successor but continued and still continues to occupy the office of the sheriff and perform the duties thereof. The situation being thus, the attorney general filed an information in this court in the nature of a quo warranto, to test the title to the office.