was unconstitutional, in that it attempted to authorize the governor to exercise judicial power contrary to the provision of the state Constitution, dividing the powers of government between the three departments,-legislative, executive, and judicial. the statute, which provided for notice and a hearing, was held to confer quasi judicial power,-a power to perform acts administrative in character, although requiring incidentally the trial and determination of questions of law and fact. And it was held, accordingly, that the power was not one properly belonging to the judiciary within the meaning of the Constitution, and that the statute was not invalid on the ground alleged.

Without discussing the question of the right of judicial review, the court in Wilson v. North Carolina (1898) 169 U. S. 586, 42 L. ed. 865, 18 Sup. Ct. Rep. 435, held that there was no denial of due process of law or the equal protection of the law, by the suspension of the governor of a railroad commissioner under a statute of North Carolina, which suspension operated only until the next general assembly determined the question, although the governor refused to produce to the officer the evidence against him, or to give him an opportunity to confront his accusers and cross-examine the witnesses.

In some states, statutes expressly provide for appeal to the courts from the decision of the governor removing officers in certain instances. Thus, the statute construed in Holliday v. Fields (1925) 210 Ky. 179, 275 S. W. 642, declaring that sheriffs and other designated officers who were guilty of certain offenses should be removed from office by the governor, provided for such an appeal.

The statute of North Dakota which was held constitutional in State ex rel. Shaw v. Frazier (1918) 39 N. D. 430, 167 N. W. 510, expressly provided for an appeal to the court from the governor's decision of removal of an officer. It was held that the statute did not violate the constitutional provision vesting judicial power in the supreme and other courts. It was

said that the power to remove from office is administrative rather than judicial, although it should be exercised in a judicial manner.

It may be observed that there are cases in which courts have rendered advisory opinions to governors as to the latter's authority to remove public officers, which are not in point in the present annotation for the reason that they do not pass on the question of the right of judicial review of the governor's action in removing an officer. See, for example, Re Advisory Opinion (1912) 64 Fla. 168, 60 So. 337, in which it is held that the Constitution did not authorize the governor to suspend an incumbent of the office of county commissioner for an act of malfeasance or misfeasance in office committed by him prior to the beginning of his current term of office; also Re Advisory Opinion (1915) 69 Fla. 508, 68 So. 450, holding that the governor had no power permanently to remove an officer, unless it was done by and with the consent and concurrence of the senate.

VII. Conclusion.

The following conclusions may be drawn from the cases above set out: (1) The question whether the governor's decision is conclusive or subject to review by the courts is one depending to a considerable extent on constitutional and statutory provisions,— since arbitrary power may be thereby conferred, and the matter left entirely in the governor's discretion, in which case the questions discussed in the present annotation do not usually arise; (2) where the power of removal is given for cause or for reasons specified, the governor's decision on disputed questions of fact is final as regards the facts, and cannot be re

viewed by the courts, if there is some evidence to support them; (3) where the governor assigns a legal cause for removal, the courts will not inquire into his motives, and at least will not go further than to determine whether there was some evidence substantially tending to support his conclusion; (4) the courts may determine the question whether the governor had jurisdiction to remove the officer; (5) the question whether the cause assigned by the governor for removal is a legal cause for which he is authorized to act is one which, according to the weight of authority, may be passed upon by the courts, going, it seems, to the question of jurisdiction, although there is also authority to the effect that the governor need not assign any reason for his action in re

Appeal, § 523 review of ruling on affidavits decision of trial court, 2. The appellate court cannot, in reviewing a ruling on affidavits, ignore the decision of the trial court.

moving an officer; (6) the courts may review the action of the governor in removing an officer in a clear case where he has acted arbitrarily or capriciously, though this is a delicate matter into which the courts obviously would go very reluctantly; and political reasons or considerations cannot be a matter of judicial investigation; (7) the question of the form of the remedy is important, since the action by which it is sought to review the act of the governor in removing the officer may fail on the ground that that officer is not subject to the particular relief sought, such as mandamus; and, although there are authorities holding that certiorari will lie to review the decision of the governor in removing an officer, this view has been rejected by other courts. R. E. H.

New trial, § 49 for quotient verdict.

3. A quotient verdict is a determination of chance, and is misconduct

Gordon v. Trevarthan, 13 Mont. 387, 40 Am. St. Rep. 453, 34 Pac. 185; Thomp. & M. Juries, §§ 408 et seq.; Cheney v. Holgate, Brayton (Vt.) 171;

provingly of the discretion of the trial court in determining, by its order, conflict between contradictory affidavits.

"That contradiction was resolved by the district court in favor of the McNamara affidavit." Gordon v. Trevarthan, 13 Mont. 387, 40 Am. St. Rep. 452, 34 Pac. 185.

"We enter upon our consideration of this appeal, indulging the presumption that the trial court's ruling was correct, and the burden is upon the appellant to present a record which overthrows that presumption." Great Northern R. Co. v. Benjamin, 51 Mont. 167, 149 Pac. 968.

A great many decisions are to be found upon each side of the question of what is a quotient verdict and the quantum of proof required to establish that a verdict is one of that character. There is not much difference about the rule of law as to what is a quotient verdict. Generally each case is decided upon the facts of the particular case, as to whether or not it comes within the rule.

In Great Northern Ry. Co. v. Benjamin, supra, this court adopted this rule, taken from 29 Cyc. 812: "A verdict will not be set aside merely because the amount thereof was the result of a compromise between jurors, nor because the amount was first found by adding together the amounts the several jurors thought should be given and dividing the sum by twelve, if there was no agreement in advance to return a verdict for the quotient so found. Where the jurors agree in advance to be bound by a quotient so determined, or where the consent of any juror to a verdict is determined by any resort to chance, a new trial must be granted."

The earlier Montana case of Gordon v. Trevarthan, supra, adopted from Thompson & Merriam on Juries, ¶¶ 408 et seq., this rule: "The facts vitiating such verdicts are the agreement by the jurors to go into the process of marking amounts, adding them, and dividing the same by twelve, and the agree

ment that the result so obtained shall be the verdict, without further consideration, and the fact that such proceedings were taken by the jury in pursuance to such an agreement and that the result so obtained was returned as the verdict."

Those pronouncements conform quite fairly to the general rule recognized throughout the land.

Our statute, giving grounds for a new trial (§ 9397, Revised Codes 1921, in subdivision 2), says: "Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors."

It is now established beyond controversy that what New trial-for is known as a quo- quotient vertient verdict is determination of chance and is misconduct of the jury.

dict.

From the wording of our statute, it appears it is not necessary for all of the jurors joining in a verdict, nor for a majority of them, to be induced by chance method to assent to a verdict. It appears that if any one of the jurors joining in a verdict be so induced to assent, it is misconduct of the jury, and this court has so held. The opinion in Great Northern R. Co. v. Benjamin, supra, says: "Where the consent of any juror to a verdict is determined by any resort to chance, a new trial must be granted."

The opinion in the earlier Montana case of Gordon v. Trevarthan, supra, says: "It appears from McNamara's affidavit that at least one juror that is, himself-was induced to assent to this verdict by reason of the quotient proceeding; so it would seem that this, under the statute, is enough to vitiate the verdict."

Other jurisdictions, having the same statute, hold likewise. Ottawa v. Gilliland, 63 Kan. 165, 88 Am. St. Rep. 232, 65 Pac. 252, 10 Am. Neg.

Application of the foregoing stated rule would simplify consideration of the case at bar. In this case nine jurors returned and assented to the verdict. To be valid, it is required that at least eight must have returned and assented to it. Not applying the stark rule that, if one of the nine assenting jurors was induced by resort to the determination of chance to assent to the verdict, it is void, in this case we shall be more liberal and say, if it may be shown that two of the nine assenting jurors were so induced to assent, that would chance verdict- reduce the number number re- freely and properly assenting to seven, one less than is required by statute to return a legal verdict, in a civil action, in district court, and that undoubtedly would vitiate the verdict and render it not a lawful verdict not lawful because assented to by one or more jurors by resort to determination of chance, and not lawful because not freely and properly returned by eight jurors, the number required by law.

-assent to

quired.

Turning to the record, we find the five affidavits of jurors filed by defendant and the six filed by plaintiff. An analysis of the affidavits shows some differences and some confusion among the affiants, in respect to the matter under consideration, as to just what occurred in the jury room. That is common. In many of these "quotient verdict" cases there are differences of recollection among jurors, shown by their affidavits or oral testimony, as to just what did

occur.

In the record before us, we find that nine of the affiants declare there were had two quotient processes of writing sums, adding and dividing. Some of them give the result of

each; the first, they say, resulting in an amount something over $14,000, and the second something over $19,000. Others of those nine affiants mention the result only of the second computation, something over $19,000, and, while referring to the first computation, do not give the result in figures. Two of the affiants make mention of only one computation, that which resulted in an amount something over $19,000. They do not deny there was another computation, but simply do not mention it. Whether they had no recollection of it or simply omitted to narrate it, we do not know. There is some discrepancy in the affidavits of the eleven affiants as to the amount of money represented by the second computation. Some put it at $19,369; others at $19,545. All of the affiants who make mention of the fact that there were two computations give about the same reason, in effect, for having the second; i. e., that, from the start, nine jurors favored a verdict for plaintiff and three favored a verdict for defendant; that in the first computation all voted, and the three who favored defendant voted for little or nothing, and the result, something over $14,000, was too small to suit the most of the jurors, and that the most of them favored another computation (to which all assented), with the suggestion by some that those favoring plaintiff materially increase the amount voted for, so as to overcome the negative effect of the three who voted for little or nothing. Some of the affiants depose that at each computation twelve jurors voted (something or nothing), and that the aggregate was divided by twelve. Others depose that that was done upon the first computation, but that, upon the second, only the nine favoring plaintiff voted, and that the divisor, the second time, was nine. All of the affiants agree that, from the start, the jury stood nine to three for plaintiff, and that several ballots. were taken on the amount to be awarded, and on each there was wide divergence in amounts voted)