One who does not perform the duties of an officer because of unfitness should not receive the salary for that office,.and such is established law. 29 Cyc. (Officers) 1424, note 35 and cases cited.
L. J. Wehe, and Theodore Koffel, for respondent.
The Governor has no power unless specifically given to him by statute to suspend an officer during the pendency of the removal proceedings. (Unless the officer should be a treasurer or custodian of public funds, and then an exception is made in some of the cases cited.) Throop on Pub. Off. Sec. 404, p. 394; Metsker v. Neally, 41 Kans, 122; Mech. Pub. Off. Sec. 453, p. 286; Gregory v. Mayor, 113 N. Y. 416, aff’g. 11 N. Y. St. Rep. 506; Emmet v. Mayor, 38 N. Y. St. Rep. 607, following State v. Jersey City, 25 N. J. L. 435-8; 29 Cyc. 1405, § 3.
A judgment cannot be amended so as to vary the rights of the parties as fixed by the original decision. 23 Cyc. 868; Tyler v. Shea, 4 N. D. 377; 61 N. W. 468; Barnes v. Hullet, 29 N. D. 136, 50 N. W. 562.
“But after an order entered, as dictated by the Judge, has been construed and affirmed by the Supreme Court an amendment cannot be allowed on the ground that the construction placed on it was not what the judge intended.” 29 Cyc. 867, 867.
Per Curiam. This is a sequel to State ex rel. Wehe v. Frazier, 182 N. W. 545, wherein this court modified and affirmed a judgment of the district court of Burleigh county. After the remittitur was sent down, the district court made an order for judgment, pursuant to which judgment was entered in that court. Subsequently, the attorneys appearing for the Governor moved that the order for judgment and the judgment be amended and modified in certain particulars, which will hereinafter be noted. These motions were denied, and the Governor has appealed from the orders denying such motions.
This litigation arose out of proceedings before, and orders made by, the Governor purporting to suspend and remove the relator, Wehe. from the office of workmen’s compensation commissioner in this state.
On April 19, .1920, the Governor wrote a letter to the relator, Wehe, stating that on account of certain reasons specified therein the Governor had suspended the said Wehe “from the office of workmen’s compensation commissioner, such suspension to continue until the final determination of this matter.” This was followed by a letter dated April 2c, 1920, directing Wehe to show cause before the Governor on April 23, 1920,
