Kalbfus v. Siddons
Kalbfus v. Siddons
Opinion of the Court
delivered the opinion of the Court:
Was the relator a de jure officer when the defendants passed the order of removal ? If not, it necessarily follows that he has no standing here. The act of August 14, 1894 (28 Stat. at L. 282, chap. 287), under which the relator was appointed, required each person appointed as a member of the permanent board of assistant assessors, within ten days after receiving notice thereof, to “take and subscribe an oath to diligently, faithfully, and impartially perform all and singular the duties imposed upon him by this act.” And if any appointee should fail to qualify as aforesaid within the time prescribed, or should fail to enter upon the discharge of his duties within fifteen days after such qualification, the appointment was declared void, and «
Under said act of July 1, 1902 (32 Stat. at L. 617, chap. 1352), it was made the duty of the assessor to designate three members of the permanent board of assistant assessors for the assessment of real estate, and two other members to compose a .board of personal-tax appraisers. The five members of said permanent board of assistant assessors, together with the assessor as chairman, were constituted boards of equalization and review of real estate assessments and of personal tax appeals. It was further provided that the assessor should “act as chairman ex officio, of the several boards aforesaid.” The two members of the permanent board of assistant assessors designated by the assessor to assess personal property were required to do so “under the direction and supervision of the said assessor.” The act further provided that the board of assistant assessors, with the assessor as chairman, should compose a board of personal-tax appeals, and further that “such board of assistant assessors shall also perform such other official duties as may be required of them by the assessor of the District of Columbia.”
Not only did the relator take an oath of office before the assessor, but each of his associates did- so. This oath was filed by the commissioners, the relator entered upon the discharge of
As to the second contention, that the relator did not take the oath of office within ten days after receiving his appointment, little need be said. The requirement that he take the oath within ten days after receiving notice thereof was coupled with the further requirement that he enter upon the discharge of his duties within fifteen days after such qualification. Inasmuch as his appointment was not to take effect until July 1st, had he qualified in May, as defendants now contend he should have done, his appointment necessarily would have been rendered void fifteen days thereafter; for in the nature of things he could not have entered upon the discharge of his duties while the office was filled by another. Giving this statute a reasonable construction, one that will not defeat its obvious intent, it is plain that the relator qualified and entered upon the discharge of his duties at the earliest possible time; namely, when his appointment took effect. .
While the act of 1894 required assistant assessors to take and subscribe an oath diligently, faithfully, and impartially to perform the duties of their office, we think the oath which relator took was a substantial compliance with this requirement, for he therein swore to support the Constitution of the United States and faithfully discharge the duties of his office. He could not faithfully discharge those duties if he was not diligent and impartial. To be faithful one must be true and constant in the performance of duty, and exact in attending to commands. Century Dictionary. Mr. Dillon, in his work on Municipal Corporations, vol. 1, 5th ed. sec. 395, says that “where the statute requires a prescribed oath of office before any person elected ‘shall act therein,’ a person cannot justify as such officer unless he has taken an oath in substantial, not necessarily literal, compliance with the law.” See also State, Wilkinson, Prosecutor, v. Trenton, 35 N. J. L. 486. We therefore rule that the relator, at the time of his alleged removal, was a duly qualified member of the permanent board of assistant assessors.
Whether, in the absence of any showing that would justify the reopening of a decision rendered by a judicial or quasi-judicial tribunal proceeding in accordance with the requirements of due process, the present commissioners would be empowered to review the finding of their predecessors, we need not now determine. Certain it is that they have no power to review that finding without notice to the relator. They are in no better position than their predecessors would have been. Could their predecessors, after a lapse of nearly two years following their acquittal of the relator of the charges upon which he was tried, have reopened the case and reversed their finding without notice to him? Clearly not. It follows that the attempt of the defendants to justify their failure to give the relator notice and accord him a hearing, upon the ground of his previous trial, and because of the hearing before said congressional committee, must fail.
When the defendants passed their order of removal the relator was in the actual and legal possession of his office. In other words, he was in office de jure and de facto. Congress having explicitly withdrawn from the commissioners the power of removal except for the causes specified, notice and hearing, as we have seen, were essential requisites to the exercise of their jurisdiction to remove at all. Since their order of removal was passed without notice and hearing, it necessarily follows that their action constituted an arbitrary exercise of power, and was void. The question, therefore, is presented whether mandamus is the appropriate remedy. The authorities are overwlielming that it is. “A mandamus to restore,” says Lord Mansfield, “is the true specific remedy where a person is wrongfully dispossessed of any office or function which draws after it temporal rights, in all cases where the established course of law has not provided a specific remedy by another form of proceeding.” Rex v. Blooer, 2 Burr. 1045. In Harwood v. Marshall, 9 Md. 83, an apposite case, it was ruled that mandamus was the appropriate remedy, because a judgment
In the present case the removal of the relator having been illegal and void, the office never became vacant, and the attempted appointment of his successor was a mere nullity. In contemplation of law, the relator never has been out of his office, but as in fact he has been and now is being illegally excluded from it, it is clear that mandamus is the most adequate remedy to restore him to his rights. The judgment will therefore be reversed, with costs, and the cause remanded for further proceedings. Reversed and remanded.
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- Officers; Oath of Office; Statutes; Construction; Removal of Officer; Notice and Hearing; Restoration; Mandamus. 1. None but a de jure officer can in mandamus question irregularities in proceedings by which he was removed from office. 2. An interpretation of a statute long acquiesced in, while not conclusive, should not be disturbed unless clearly wrong. 3. The authority conferred by sec. 13 of the act of Congress of August 14, 1894 (28 Stat. at L. 282, chap. 287), upon the assessor of the District of Columbia, in the discharge of his duties devolved upon him, to “administer all necessary oaths and affirmations,” should be held to extend to the administration of the oath of office to assistant assessors, in view of the assessor’s exercise of such a prerogative without objection for nine years, and especially in view of the policy of Congress to permit principal officers to administer the oath of office to their assistants, and of the provision in see. 1758, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 1202, that the oath of office of any appointed or elected officer under the United States government may be taken before any officer authorized by any law of the United States, or by the local law, to administer oaths in the state, territory, or district where such oaths may be administered. 4. An appointment to take effect in two months when the office would become vacant does not fall within the requirement as to qualification in ten days, imposed by the act of Congress of August 14, 1894 (28 Stat. at L. 282, chap. 287), making the appointment of an assistant assessor of the District of Columbia void if the appointee does not qualify within ten days after receiving his appointment, or if he does not assume the duties of the office within fifteen days after qualifying; and qualification in such a case when the appointment takes effect is sufficient. 5. An oath to support the Constitution of the United States and faithfully discharge the duties of the office is a sufficient compliance with the act of Congress of August 14, 1894 (28 Stat. at L. 282, chap. 287), requiring assistant assessors of the District of Columbia to take oath diligently, faithfully, and impartially to perforin the duties of their office. 6. Notice and hearing are prerequisites to the removal by the commissioner of the District of Columbia of an assistant assessor of the District under the act of Congress of July 1, 1902 (32 Stat. at L. 617, chap. 1352), sec. 6 of which provides that assessors or assistant assessors shall not be removed except for inefficiency, neglect of duties, or malfeasance in office. (Distinguishing United states eso ret. Brown v. Lane, 40 App. D. C. 533.) 7. The fact that the conduct of an official may have been the subject of inquiry in another tribunal does not relax the duty of the tribunal empowered to remove him, to accord him a hearing. 8. Proceedings for the removal of a public officer are adversary or judicial in character, and if the organic law of the governmental entity is silent as to the mode of procedure, the substantial principles of common law as to proceedings affecting private rights must be observed. 9. The requirement of notice and hearing of proceedings for the removal of an officer of the District of Columbia must be observed by the commissioners when seeking to effect a removal by reversing an acquittal of the incumbent by their predecessors, upon evidence taken on the hearing before the latter, and on a hearing as to the incumbent’s conduct, had before a congressional committee.1 10. Mandamus is the proper and most adequate remedy in favor of a person illegally removed from public office without notice and hearing, since, the order of removal being void, the attempted appointment of a successor is a nullity.