author:
Minshall, J.
      Foilett, J., Owen, C. J.,

text:
    The State ex rel. Attorney-General v. Hawkins.

      Constitutional law — Article 13, section 1 — Act of April 3, 1885 — Power of governor to remove police commissioners — Bight of removed officer to hold over.

    1. The act of the general assembly passed April 3, 1885 (82 Ohio L. 101—111), conferring certain corporate powers on cities of the first grade of the first class, is one of a general, and not of a special, nature; and, therefore, not in conflict with article 13, section 1, of the constitution, prohibiting the passage of special acts conferring such powers.
    2. The power conferred on the governor of the state by section 1872 of the Revised Statutes, as amended by said act, to remove any members of M the board of police commissioners, is administrative, and not judicial, in its nature; and, therefore, not in conflict with article 4, section 1, of the constitution, conferring judicial power on the courts of the state.
    3. Where charges, embodying facts that, in judgment of law, constitute official misconduct, are preferred to the governor, of which notice is ^ given the members charged, and he, acting upon the charges so made, removes them from office, his act is final, and can not be reviewed, or held for naught in this court, on a proceeding in quo warranto, whether he erred or not, in exercising the power so conferred on him.
    4. A police commissioner, removed from office by the governor for official misconduct, as provided in section 1872 of the Revised Statutes, as amended April 3, 1885, does not, under section 1542 of said statutes, hold over until his successor is elected and qualified. When removed from his office, he ceases to be an officer, and can not, therefore, hold over as such.

      QUO WARRANTO.
    The information states in substance, that the defendants, Morton L. Hawkins, Julius Reis, and Will. A. Stevens, were, on April 4, 1885, appointed police commissioners of the city of Cincinnati by its board of public works, under an act of the general assembly of the state passed April 8, 1885 (82 Ohio L. 101); that they entered upon their duties as such, and continued to act in that capacity until February 3, 1886, at which time they were duly removed by the governor of the state ; and that, notwithstanding such removal, they have unlawfully continued to exercise the power and authority incident to the office of police commissioners ; and, therefore, the relator asks for a judgment of ouster.
    The defendants Hawkins and Reis have filed a joint, and the defendant Stevens a separate, answer.
    Each answer admits the appointment and removal, and that defendants continue to exercise the powers of police commissioners, but denies that they were lawfully removed, and also the power of the governor to remove them; and then sets forth the proceedings before the governor on which the removal was made.
    These were iu substance as follows : On January 24,1886, charges of official misconduct were preferred against them to the governor, by certain citizens of Cincinnati, acting as the ad interim committee of the committee of one hundred in said city, specifying as grounds of the charges, the appointment of a large number of persons to places upon the police force of the city, who by reason of their known character and habits, were wholly unfit for the places to which they had been appointed upon the force. In the appointment of some of these, to wit, Michael Mullen and John Tosney, Stevens did not concur; but it was charged that he did in the appointment of a large number, wholly unfit to act as police officers, some of whom are gamblers, some of whom have served terms in the work-house, in the penitentiary, in the jail, have been inmates of the house of refuge, some of whom have been keepers of houses of prostitution, and a number of whom have been discharged by said board for drunkenness and other offenses repeatedly committed, and have been reinstated notwithstanding said offenses, specifying the names. Various other specifications of official misconduct were also made.
    That thereupon'notice was given each of them by the governor, of the filing of the charges, and a copy of the same : and that he had appointed Wednesday, February 3, 1886, for the hearing of the same at his office in Columbus, at the hour of ten o’clock a. m., upon such testimony in support of or against said charges, as might be offered; and that, if they desired to answer the charges, they could do so on or before Saturday, January 30, 1886.
    That, ou February 1, 1886, counsel for Hawkins applied to the governor for an extension of time to answer, by reason of his illness, filing the affidavit of Hawkins to that effect, and (Reis not having answered at the time fixed by the governor) and made an order that he should answer on February 3, and stated that he would at that-time pass on the application of Hawkins for further time to answer, and fix a time for the trial of said cause. That Reis filed Ins answer on February 3, as had been fixed; Hawkins filed no answer, but his counsel informed the governor that he was unable to do so, by reason of his continued illness, and which was true; that thereupon, on the same day, February 3, the governor, without further notice to either of the parties, made an order removing 'them from office.
    The order was as follows:
    “ Oeeice oe the Governor, February 3, 1886.

      “ In the matter of the charges and specifications agáinst Morton L. Hawkins, Julius Reis and Will. A. Stevens, police commissioners of Cincinnati: Ordered by the governor this third day of February, 1886, certain charges and specifications of official misconduct having been preferred against M. L. Hawkins, Julius Reis, and W. A. Stevens, police commissioners, which charges and specifications were duly filed in this office on the 25th day of January, and a copy of said charges and specifications having been served on each of said commissioners on January 27th, together with a notice of the filing of the same in this office, and that they (the said commissioners) would be given until January 30th to file answers or any other pleadings they might desire to make to said charges and specifications, and that the same would thereafter be heard at this office on February 3d; and said "Will. A. Stevens having filed an answer, and said Morton L. Hawkins and Julius Reis having applied on that day for further time, to wit, until the 3d day of February, in which to file answers and for a postponement of hearing until the 10th of February, and having filed, in support thereof their respective affidavits.
    “After hearing the said application and further time for filing answers having been granted, and further hearing of the application for postponement until the 10th, for hearing, said charges having been continued until after the filing of their answers on the 3d day of February, and said matter coming on this day to be further considered, and it appearing that said Julius Reis has filed his answer to said charges, and that Morton L. Hawkins has failed to do so, and it further appearing from examination and consideration of said charges and specifications and answer thereto of Julius Reis, and from the affidavit of M. L. Hawkins that they, the said Reis and-IIawkins, do each admit the appointment by them to a position on said police force of Mike Mullen, and also his subsequent promotion by their votes, as alleged in the charges aforesaid, and the said Mike Mullen being known to the governor as a man of notorious bad character and wholly unfit to hold any position on the police force, and it further appearing from the answer of "W". A. Stevens that James S. White and others known to the governor to be men of notorious bad character and wholly unfit to hold any position, are holding positions on the same force, and are continued there by his authority, conseut and approval, and it being in the judgment of the governor gross official misconduct to appoint and continue on. said force such unfit and improper men, and this official misconduct being as aforesaid admitted by each and all said police commissioners in manner and form as above stated, and no investigation or hearing, and no exercise of judicial power being necessary to the finding and establishing of the fact of said official misconduct, it is considered by the governor that the applications for further delay should be and hereby are overruled, without regard to other charges aud specifications.
    “ Said Morton L. Hawkins, Julius Reis and Will. A. Stevens should each and all of them be and they are hereby removed from their said office of police commissioners of Cincinnati.
    “ In testimony whereof I have hereunto set my name and great seal of the State, to be affixed, at the city of Columbus this 3d. day of February 1886.
    [Signed] J. B. Foraker,

      Governor of Ohio.”

    Stevens had filed his answer to the charges on January 30, 1886, the day fixed by the governor in his notice to the commissioners of the filing of the same.
    The answer of Reis, as, also, that of Stevens, deny the truth of all the charges made to the governor in manner and form as stated; as does also, the affidavit of Hawkins, filed for an extension of time in which to answer. They all do, however, admit certain of the statements made against them in the matter of the appointments made by them, but with such qualifications as, in the judgment of each, removed any ground for the charges made against them of official misconduct.
    Thus, replying to the charges relative to the appointment of Michael Mullen, who had been convicted of a crime and pardoned by the President of the United States, Reis says: “Tour respondent acting upon what he supposed to be the law, to wit, that one having been pardoned of an offense of which he might have been found guilty, was restored as fully as if there had been no conviction; and that wben Michael Mullen was pardoned, presumably for good cause by the president, respondent had the right to consider said Mullen, in his official relations, as if the offense for which he was convicted had never been charged against him.”
    As to John Tosney, who had been dismissed from the force by the unanimous vote of the board of police commissioners, for drunkenness, he avers “ that he voted for the reinstatement of said Tosney, because he was informed, and believed at the time of said reinstatement, that said Tosney had reformed and entirely ceased from drinking; and that he did not know that it was an offense against the law to reinstate one upon the police force of the city of Cincinnati who had been suspended because of drunkenness; that he supposed he had a right to be charitable toward those who were simply guilty of a want of sobriety, a very common occurrence.”
    ITawkins, in his affidavit filed for an extension of time by "the governor, says “ that affiant voted for the appointment of Mr. Mullen, and for the appointment of Mr. Tosney, and that his act was done for the best interest, as he understood it, of the police department of the city of Cincinnati.”
    Stevens shows, in his answer, that he did not vote for many of the more objectionable appointments. As to James White, for whom he did vote, and who had been convicted of an offense against the election laws, and pardoned by President Hayes, before the expiration of his time, he says “he was not aware of the fact at the time of the appointment; that he had served long on the force, was a good officer,” and that “ it would hardly appear to him the proper thing to revive a matter which had grown gray with age,” . . . and that “ this respondent does not understand it to be his duty to never forgive, or relent, toward one who has at one time offended against the law.”
    The relator demurred to the joint answer of Hawkins and Reis, and also to the separate answer of Stevens, for the reason that neither states facts sufficient to constitute a defense to the action; whereupon the case was submitted to the court upon the petition, the answers, and the demurrers thereto.

      Thomas McDougall, with whom was Jacob Ii. Kohler, attorney-general, for plaintiff.
    1. The governor had power to remove the defendants under section 1872 of the Revised Statutes (82 Ohio L. 102), which provides: “and for official misconduct any commissioner may be removed by the governor.” The power so conferred is a part of the administration of the police department of the government.
    That the general assembly had authority to confer this power in the absence of constitutional inhibition, will not be questioned.
    2. It is claimed, however, that the power to hear and determine what is official misconduct, and to pronounce a judgment of removal thereon, is judicial power which, under section 1, article 4, of the constitution, is exclusively vested in the courts.
    But the power conferred upon the governor is not judicial. State v. Harmon, 31 Ohio St. 250; Donahue v. The County of Will, 100 Ill. 94; Dougan v. District Court, 22 Am. Law Reg. [N. S.] 528.
    If the claim of defendants is correct, that the exercise of the power of removal of officers administering public trusts is judicial, andean not be exercised and the offender removed until after a trial has been had ip a judicial forum, finding the official misconduct to exist, then it would be possible to administer government in its various departments. The humblest official in office, whether a patrolman, stationhouse-keeper, janitor of a state-house, or any officer appointed in pursuance of an act of the legislature, holds his office by the same title and the same authority as these defendants do. How then could government be administered, if the removal of all such officers, such public servants, could only be effected by the courts, and that only after a judicial finding of official misconduct? This other difficulty is also presented by the claim of the defendants. There are many cases of official misconduct which are not offenses under the law, and for the trial of which by the courts no provision has been made by law. How then is a judicial finding of official misconduct in such cases to be made in the absence of a statutory provision making such cases of official misconduct an offense which the courts may try ?
    If, however, the court should hold the grant of power conferred upon the governor to be unconstitutional, then we claim that the whole act is void for the reason that it is improbable that the general assembly would have passed the act without the provision in question. State v. Pugh, 43 Ohio St. 98; State v. Sinks, 42 Ohio St. 345.
    3. We claim that, if the power exists in the governor to remove for official misconduct, if the law has conferred the authority on him to try and determine what official misconduct is, and to pronounce judgment accordingly, then the only inquiry which this court can make in this case is :
    “Do the charges presented and set forth in full in the answers of defendants, if true, make a case of official misconduct justifying the removal of the defendants?”
    If those charges do make such a ease, then this court can not enter into and inquire what hearing, if any, the governor gave these defendants. What evidence, if any, he had before him, on which he based his judment of removal. In this collateral proceeding, the only questions upon which this court can pass are: Had the governor authority? And, in pursuance of that authority, did he make a judgment of removal? If so, then all the averments as to a failure to hear testimony, and a failure to permit counsel for defendants to be heard, are irrelevant, and can not be entertained to affect or impeach collaterally the power thus conferred on the governor, and its exercise by him. State v. Chase, 5 Ohio St. 528; State v. McGarry, 21 Wis. 496; Keenan v. Perry, 24 Tex. 253; Patten v. Vaughan, 39 Ark. 213; State v. Doherty, 25 La. Ann. 119;
      State v. Barrow, 29 La. Ann. 243; State v. Lamantia, 33 La. Ann. 446; People v. Stout, 19 How. Pr. 171; Donahue v. County of Will, 100 Ill. 94; State v. Prince, 45 Wis. 610; Hogan v. Carberry, 4 Week. Law Bull. 113; Hogan v. Sutton, 4 Week. Law Bull. 609; Weber v. Bishop, 4 Week. Law Bull. 779; People v. Bearfield, 35 Barb. 254.
    4. The law under which the defendants were appointed is a special act, relating alone to Cincinnati, conferring corporate powers upon that city, and hence is in conflict with section 1, article 13, of the constitution. State v. Pugh, supra; State v. Constantine, 42 Ohio St. 437.

      Hoadly, Johnson § Colston, for defendants Hawkins and Reis.
    The general assembly can not give the governor the power to remove, for ofiieial misconduct, officers not appointed by him.
    The only cases on the subject, in which this question is discussed at all, agree that this is a judicial power which can not be conferred upon the governor.
    The power to remove an officer for official misconduct could, at common law, only be exercised by the courts. The method of removal was by scire facias, out of chancery. At common law this was, therefore, judicial power. 3 Black. Com., ch. 17, 258; State v. Pritchard, 36 N. J. Law, 106-113.
    It follows that without a proper provision in the constitution to that effect, this power can not be exercised by the executive or legislative department, because the constitution has conferred it on the judicial department. Page v. Hardin, 8 B. Mon. 672; State v. Pritchard, supra; Hill v. State, 1 Ala. 559; Honey v. Graham, 39 Tex. 1; Dullam v. Willson, 53 Mich. 392; Field v. People, 3 Ill. 79.
    The cases of People v. Stout, 19 How. Pr. 171; People v. Whitlock, 92 N. Y. 191; and Bergen v. Powell, 94 N. Y. 591, turn upon the special language of the statutes and of the constitution of New York.
    If the power of removal belonged to the governor, he was bound to hear testimony and give the persons accused an opportunity to be heard by witnesses and counsel, and could not decide on knowledge he might suppose he possessed, or information privately coming to him. As to this the current of authority is uniform. Ex parte Ramshay, 18 Q. B. 190; Osgood v. Nelson, 5 Eng. & Ir. App. 648; Commonwealth v. Slifer, 25 Pa. St. 28; Dallam v. Willson, supra.

    Even if lawfully removed by the governor, the police commissioners must remain in office until their successors have been elected and qualified, as provided by section 1870 of the Revised Statutes. This is required by section 1542, the express object of which is to prevent a continuing vacancy in any municipal office.

      T. C. Campbell and B. Bettman, for defendant, Will. A. Stevens.
    The act of removing an officer on a charge of “ official misconduct” is a judicial decision. It includes questions of fact and the application of rules of law. Hence, the statute endeavors to invest the governor with power which he is constitutionally incapable of exercising. It is therefore void.
    But were this a valid statute, it would require a legal exercise of the power conferred. Even if there were jurisdiction, there must have been a legal proceeding.
    As in every other judicial proceeding, notice must be served on the accused, an opportunity given him to answer, his liability must be fixed by evidence, and he must have the right to cross-examine. The judge may have jurisdiction, but can render no judgment until the legal prerequisites to judgment are observed.
    To these propositions counsel cited many of the eases-referred to by counsel for the other defendants, and in addition, Hogan v. Carberry, 4 Week. L. Bull. 117; State v. Bryce, 7 Ohio, pt. 2, 84.
   Minshall, J.

The decision of the case involves the determination of a number of questions we will now proceed to consider.

It is claimed by the relator that the statute under which the respondents were appointed and claim the right to act as police commissioners of the city of Cincinnati, passed April 3, 1885 (82 Ohio L. 101-111), is a special, and not a general one, conferring corporate power, and so in conflict with section 1, article 13, of the constitution of the state, prohibiting such legislation.

But it is now too well settled by the decisions of this court to be called in question, that legislation may be adapted to the different classes into which the municipal corporations of the state have been classified by the Revised Statutes, Tit. 12, Div. 2, ch. 1, without violating the provision of the constitution just referred to. The distinction is this, that a law applying to a certain class of cities, fixed by previous legislation, into which other municipal corporations may enter, and from which they may pass into other classes, by increase of population, is not special but general, since the grade of any particular city is not designated by the act, but depends upon its growth in population, as it may, by such growth, pass from one grade or class to another. State v Pugh, 43 Ohio St. 98, and the cases cited by Owen, J., delivering the opinion of the court, at p. 112.

The act under consideration in that case was held invalid, because it was not merely made applicable to the grade and class to which Columbus then belonged, but because it was the only city in the grade and class to which it then belonged, or could belong in the next five days from the passage of the act, the time in which the powers conferred were required to be exercised; after the lapse of that time neither Columbus, nor any other city of its grade, could have exercised the powers conferred by the act.

To hold this statute invalid, for the reason stated, would be to deprive, not only Cincinnati, but every city of the state of any system of municipal government whatever ; as, all statutes conferring corporate power upon the municipalities of the state apply, in terms, to cities of certain grades and classes. There should be something more than a mere question as to the validity of a statute, to warrant a court in a holding that must lead to such serious consequences.

In answer to the information, it is claimed by the respondents, that the governor had no power to remove them; and, again, that if he had, it was not properly exercised.

The first claim is upon the assumed ground, that the power conferred on the governor by the statute to remove any of them for official misconduct, is judicial in its nature, and, though conferred by the act, can not be exercised, as the judicial power of the state is, by section 1, article 4, of the constitution, conferred upon the courts of the state only.

This is not to be regarded as an entirely new question. It has been much discussed by courts and writers, without being able to formulate any general rule upon the subject. What is judicial power can not be brought within the ring-fence of a definition. It is undoubtedly power to hear and determine; but this is not peculiar to the judicial office. Many.of the'acts of administrative and executive officers involve the exercise of the same power. Boards for the equalization of taxes, of public works, of county commissioners, township trustees, judges of election, viewers of roads, all, in one form or another, hear and determine questions in the exercise of their functions, more or less directly affecting private, as well as public rights. It may be safely conceded, that power to hear and determine rights of property and of person between private parties, is judicial, and can only be conferred on the courts (Merrill v. Sherburne, 1 N. H. 199.) But such a definition does not necessarily include this case. The incumbent of an office has not, under our system of government, any property in it. His right to exercise it-is not based upon any contract or grant. It is conferred on him as a public trust to be exereised for the benefit of the public. Such salary as may be attached to it, is not given because of any duty on the part of the public to do so, but to enable the incumbent the better to perform the duties of his office by the more exclusive devotion of his time thereto. Official duties may, and in some instances are, imposed and required to be performed by the citizen, without any compensation whatever, where there is no constitutional provision requiring it. A public office and its creation is a matter of public, and not of private, law. The legislature had the power to provide for the creation of a board of police commissioners for cities of the grade and class of Cincinnati. This power carried with it, as an incident of its exercise, the power to provide a mode of removal, unless restrained by some provision of the constitution, to the mere act of providing for the appointment of members of the board, which is not the case. The organization and government of cities is left, by the constitution, to the general assembly, with the requirement (art. 13, § 6) that it shall, by general laws, provide therefor; and the entire system of municipal government in this state has, in the exercise of this power, been created by the legislature. Not one of the officers of a city or village has any recognized existence in the constitution. It is different as to county and township officers. See article 10, relating to county and township officers. And here it will be observed that section 6 of this article provides that: “Justices of the peace, and county and township officers may be removed in such manner and for such cause as shall be prescribed by law.” There is no requirement that the power of removal, that may be prescribed by law, shall be conferred on the courts, for the legislature is to provide the manner, as well as the cause of removal. In the exercise of this power, the legislature has provided for the removal of county treasurers by the county commissioners (§§ 1126 and 1127, Rev. Stats.). The power has been frequently, and wisely, exercised; and, so far as we can learn, has never been questioned in the courts. This section does not in terms extend to officers of municipal corporations ; and, for the obvious reason that, as already stated, such officers have no recoguized existence in the constitution. They are to be created and provided for by the legislature. Now, is there any room for doubt that the legislature may, in providing for the organization of cities and villages, adopt the policy of the constitution contained in this section, in providing for the removal of such municipal offices as it may, in the exercise of the power granted, provide shall be elected or appointed by cities and villages. Surely it may be inferred that, if the removal of a county or township officer for cause, does not involve the exercise of judicial power, within the meaning of section 1, article 4, and that it may be reposed elsewhere than in a court, there is the fullest warrant for saying, that the same is time as to the removal of municipal officers, created by the legislature.

The view here taken will be found sustained, not only by the decisions of this court, but also by those of other ■states of weight and respectability.

In The State ex rel. v. Harmon, 31 Ohio St. 250, the nature of judicial power was considered by Judge White. The case involved the validity of the power conferred by statute upon the senate to hear and determine the contested election of a judge. It was argued with much ability and earnestness by counsel for the respondent, that such power could not be conferred on that body, citing and relying on section 1, article 4, in connection with section 32, article 2, of the constitution, the former conferring judicial power on the courts, and the latter prohibiting the exercise, by the legislature, of any such power not expressly conferred. But the court held that the power conferred on the senate was not judicial power within the meaning of section 1, article 4. The following is a part of the language used by Judge White in delivering the opinion of the court: “ That the senate is not a court established under the judicial article of the constitution, is plain. Hence, if the trial of contested elections is necessarily the exercise of judicial power, within the meaning of that article, authority to try such cases can not be conferred upon the senate.

“ The distribution of powers among the legislative, executive, and judicial branches of the government is, in a general sense, easily understood; but no exact rule can be laid down, a priori, for determining, iu all cases, what powers may or may not be assigned by law to each branch. . '. “What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law and of the history of our institutions as they existed anterior to and at the time of the adoption of the constitution.

“ "Whether power, in a given instance, ought to be assigned to the judicial department, is ordinarily determinable from the nature of the subject to which the power relates. In many instances, however, it may appropriately be assigned to either of the departments.

“ It is said authority to hear and determine a controversy upon the law and fact is judicial power.

“ That such authority is essential to the exercise of judicial power, is admitted; but it does not follow that the exercise of such authority is necessarily the exercise of judicial power.

“ The authority to ascertain facts, and to apply the law to the facts when ascertained, appertains as well to the other departments of the government as to the judiciary. Judgment and discretion are required to be exercised by all the departments.

“The exercise of the power of eminent domain vested in county and township boards and in corporations, is not the exercise of judicial power, within the meaning of the constitution; while the exercise of the same power by the courts, if vested in them, would be judicial.”

He then cites In the matter of Cooper, 22 N. Y. 84, and quotes the language used by Selden, J., which is much to the same purport.

In Hambleton v. Dempsey, 20 Ohio, 168, the proceedings of a board of equalization were before the court; and, though the exercise of its power “ to equalize the assessments of all personal property” necessarily involved the power of hearing and determining, the validity of the power reposed in such boards was not questioned.

A different view has been taken by the courts of some of the states. State v. Pritchard, 36 N. J. Law, 101; Page v. Hardin, 8 B. Mon. 672; Commonwealth v. Slifer, 25 Pa. St. 28; and Dullam v. Willson, 53 Mich. 392. But these decisions have, as a rule, proceeded upon the ground, that an incumbent has a property in his office, and that he can not be deprived of-his right without the judgment of a court. This view finds support in the doctrines of the common law, which regarded an office as a hereditament, but has no foundation whatever in a representative government like our own.

The doctrine is opposed to the view taken by other courts of equal learning and ability. State v. McGarry, 21 Wis. 496; State v. Prince, 45 Wis. 610; Keenan v. Perry, 24 Tex. 253; State v. Doherty, 25 La. Ann. 119; Taft v. Adams, 3 Gray, 126; Ex parte Wiley, 54 Ala. 226; Thompson v. Holt, 52 Ala. 491; State v. Frazier, 48 Ga. 137; Dougan v. District Court Lake County, 22 Am. L. Reg. (N. S.) 528; Donahue v. County of Will, 100 Ill. 94; Patton v. Vaughan, 39 Ark. 211.

In Donahue v. County of Will, supra, which was very similar in its facts to this one, the judge delivering the opinion says : “ It is impossible to conceive how, under our form of government, a person can own or have a title to a governmental office. Offices are created for the administration of public affairs. When a person is inducted into an office, he thereby becomes empowered to exercise its powers and perform its duties, not for his, but for the public benefit. It would be a misnomer and a perversion of terras to say that an incumbent owned an office, or had any title to it.’’

The question as to whether an officer could be removed for misfeasance or malfeasance without a judicial sentence, was fully examined upon principle and authority, and no doubt was entertained but that he could ; and it was there held that an act which authorizes county boards to remove county treasurers for a neglect or refusal to render an account, etc., is not in contravention of the constitution of that state, and is a valid law.

In State ex rel. Flinn v. Wright, 7 Ohio St. 333, it is held that the general assembly can vacate the office of a judge, created by it, before the expiration of the term ; and that the light of the incumbent to the salary ceased with the vacation of the office, and a writ of mandamus to compel the auditor to draw a warrant therefor was refused — a result that could not have been reached consistently with the idea that the relator had a property in his office.

It is claimed that a distinction should be taken in the cases where the power of appointing and removing are reposed in one and the same person, and where it is reposed in different persons. We are aware that this distinction .exists in the facts of some of the cases, but we are not aware that any distinction in principle has been based upon it. Whether the person removed was or was not appointed to his office by the official that is vested with the power to remove, can not, as we see, change the essential character of the power of removal.

It is also claimed, that a distinction should be taken between the ease where an appointment to an office is made to be held by the appointee at the pleasure of the appointing power, and, where it is with a provision for removal for misconduct. But there is none in principle, so far as the right to remove is concerned. The office, in either •case, is held subject to the terms upon which it was created, and the mode of removal prescribed. As it may be so created as that the incumbent shall hold at the pleasure of ■the appointing power, then, for a stronger reason, the appointment may be made to depend upon removal for cause, irrespective of where the power to remove may be lodged. 'The manner of filling and vacating the office being unaffected by constitutional provisions, the manner prescribed by the legislature must prevail in either ease. It is a strange sort of logic which reaches the result, that the office may be accepted in the manner prescribed by the legislature, and the mode of removal rejected.

The next question is as to whether the exercise of power can be reviewed in this court. As the governor had the power to remove, and as in exercising it he did not act in a judicial capacity within the meaning of the constition, it would seem to follow as a corollary, that the exercise of the power by him, can not be inquired into in this court, and held for naught in a proceeding in quo warranto, simply because he may have erred in exercising the power reposed in him by the statute. The only question that this court can consider, is, whether charges involving official misconduct were preferred, of which the parties had notice, and that he acted upon these charges, and removed the respondents, for the reasons stated in the charges. The law as to this question is, as we think, accurately stated by Dixon, C. J., in State v. McGarry, supra: “The cause must be one which touches the qualifications of the officer for the office, and shows that he is not a fit or proper person to perform the duties; and when such a cause is assigned, the power to determine whether it exists or not is vested exclusively in the board, and its decision upon the facts can not be reviewed in the courts. The only question of judicial cognizance is as to whether the board has kept within its jurisdiction, or whether the cause assigned is a cause for removal under the statute.” See also the following cases cited, supra, State v. Prince, Keenan v. Perry, Ex parte Wiley, Thompson v. Holt, State v. Frazier, State v. Doherty, Donohue v. County of Will, and, also, the case of State v. Chase, 5 Ohio St. 528.

The cases taking a different view are, as a rule, those holding that the powerto remove is a judicial one, and can only be exercised by the courts. Thus, in Dullam v. Willson, supra, it is said to be “ undoubtedly true that no court can review the lawful discretion of any body that is not a court, and that the executive stands in this respect on the ' same footing with all other persons and bodies.” The decision of the court was placed on the ground that the power the governor had exercised — the removal of a trustee of a deaf and dumb asylum — was judicial in character, and could not lawfully be conferred on him.

It may be admitted that such power is liable to abuse, Yet,” as said by Walker, J., in Donahue v. County of Will, "this is not a legitimate argument against delegating power to tribunals to be exercised for governmental purposes.” For an abuse of such power, the remedy is, either to the people in the election of a successor to the officer abusing the power reposed, or, when the removal is characterized by circumstances of flagrant abuse, he may be impeached and deprived of his office.

The charges that were presented to the governor, and upon which he acted in removing the defendants, were such as to leave no question but that they amounted to official misconduct, and for which they should have been removed, if found true. It was charged that they had appointed a large number of persons to -places on the police force wholly unfit to act as'police officers, some of whom are gamblers, some have served terms in the workhouse, in the penitentiary, in the jail, have been inmates of the house of refuge, some have been keepers of houses of prostitution, and a number have been discharged by said board for drunkenness and other offenses repeatedly committed, and have been reinstated notwithstanding said offenses. It is time these charges are denied in manner and form, but whether true or not was for the governor to determine. This court can only pass upon the sufficiency of the charges as a matter of law — not upon their truth. But it may be observed that while each of the defendants denied the charges in manner and form, yet each does admit the keeping of persons on the police force who had been convicted of offenses disqualifying them for such positions, but extenuate the charge by the claim that it was a proper thing to encourage such persons; and as to Mullen and White, each of whom had been pardoned before the expiration of their terms of imprisonment, they claim, that they were restored thereby to citizenship, and entitled to the same confidence as if they had never been convicted. But conceding all that can be said of the general duty of encouraging and assisting those who have erred, yet this duty assumes a very different aspect in the case of a citizen clothed with the public duty of selecting suitable persons to preserve the peace and good order of a community. The charity of forgiveness may not always consist with the sterner duties exacted by the responsibility of his position. (Whatever the theory of the law may be as to the effect of a pardon, it can not work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen. It is a perversion of language to give to the views expressed by Judge Okey in Knapp v. Thomas, 39 Ohio St. 377, such a construction. He never meant any thing of the kind. So that whilst we rest the decision upon the grouud already stated, that the action of the governor in removing the defendants, can not be reviewed in this court, yet the facts disclosed by the answers warrant the statement that the charges were at least in part true, and might be regarded as furnishing sufficient ground for the removal of the defendants.

But it is also contended that, under section 1542 of the Revised Statutes, the commissioners, though lawfully removed by the governor under the provisions of section 1872, must remain in office until their successors are elected and qualified. We can not adopt this view. It is difficult to understand how an officer, who has been removed from his office for official misconduct, can hold over for any purpose. When removed he ceases to be an officer, and there are no powers left in him as an officer upon which to hold over.

The demurrers to the answers are sustained; and the cause having been submitted to the court upon the pleadings and demurrers, judgment of ouster is rendered against the defendants.

Judgment of ouster.

Foilett, J.,

dissenting. My reasons for urging the con-

stitutionality of this police statute are sufficiently set forth in the opinion in "the case of The State ex rel. Attorney-General v. Hudson, infra, 137, but I dissent from the holding of the majority of the court on other propositions here, viz.:

That the governor had ample power to pass upon the official conduct of the board of commissioners, and to remove them from office if he deemed them guilty of “ official misconduct;” and that the power of removal was properly exercised here.

I shall set forth some reasons for my dissent. The facts should be known.

On April 4, 1885, the board of public works of the city of Cincinnati appointed as a board of police commissioners of that city Will. A. Stevens for the term of one year, Julius Reis for the term of two years, and Morton L. Hawkins for the term of three years, from the eighth day of April, 1885. They entered upon the discharge of their duties, and performed the same until February 3,1886, when, it is alleged, they were removed by the governor. They denied the validity of the removal and retained their offices, and this action is here for a judgment of ouster. The defendants answer, and the relator by his demurrer admits the answers and allegations therein to be true.

These show that, on January 24,1886, charges were preferred against all the police commissioners. These charges set forth their appointment, and that they had vested in them all police powers and duties connected with the police force of the city of Cincinnati, and that for official misconduct they or either of them could be removed by the governor. They charge, as official misconduct, that, on August 25, 1885, they made an order on their minutes “ that Michael Mullen be reinstated to his position of lieutenant, to take effect at once,” Hawkins and Reis voting aye, and Stevens voting nay; and that, October 2,1885, by the same vote, Mullen was promoted to be inspector of police; that Mullen, at the October term, 1884, of the circuit court of the United States, held in Cincinnati, was indicted for preventing certain citizens from voting at an election for representatives in congress, such persons being entitled to vote at that election; that such offense was committed while Mullen was lieutenant of the police force of the city of Cincinnati, and was in charge of the Hammond street station-house in the city; that he was found guilty, and he was sentenced to be imprisoned in the jail of Hamilton county for twelve months, and to pay the costs of prosecution.

No part of the testimony is given, but they contain what purports to be certain remarks of the judge. The charges averred that the board of commissioners knew what Mullen had done, and that he was so found guilty and sentenced.

They further charged that, on October 17, 1885, by the same vote, the board appointed one John Tosney as a patrolman of the force; and that, when appointed, he had been arrested upon the charge of stuffing the ballot-box and violating his duties as judge of election of precinct A of the Fourth ward, October 13, 1885, and that the board knew the same; and that the board unanimously, on August 14, 1885, had dismissed Tosney from the force for drunkenness.

They also charge that, October 17, 1885, the board suspended, and on October 27, 1885, dismissed from the force one Herman F. Newman, and allege that his dismissal was without cause and in violation of official duty; and that he was dismissed because he had discharged his duty and had arrested Tosney.

The charge states that the police commissioners have appointed and kept on the regular police force a large, number of men wholly unfit to act as police officers.

They charge that, on October 13, 1885, and for some days prior thereto, the- board appointed a large number of special policemen, who were wholly unfit to act as such officers, as was well known to the board, and name a large number of men.

That there was an organization in the city of Cincinnati to secure an honest and fair election, known as the committee of one hundred, and this committee, before the election of October.18, 1885, caused warrants to be issued for violations of the registry law and other offenses, and a subcommittee of that committee waited on the police commissioners and told them of the same and 'urged their arrest, and that they willfully refused to discharge their duties and arrest such accused persons; and that the board failed to take steps to secure an honest election.

The charges thus conclude: “ Wherefore your petitioners ask that said Morton L. Hawkins, Julius Reis, and Will. A. Stevens, be notified of the charges filed herein against them for official misconduct; that they be afforded time to file any answer they may desire to make to said charges ; that a time be set for a hearing of the same; and that your excellency may take such action in the premises as the testimony in the case may warrant; and that, if said police commissioners be found guilty of the charges herein, they may be removed from their said office.”

These charges were signed by an ad interim committee of the committee of one hundred,. January 23,1886.

It is plain to see that .this committee thought the governor possessed sufficient judicial power to try these charges, and that a decision as to whether or not either of the police commissioners was guilty of official misconduct would depend upon the testimony in the case.

On January 25, 1886, a copy of these charges was served upon each of the police commissioners, and February 3, 1886, at the governor’s office in Columbus, was set “ for the hearing of the same at this office upon such testimony as may then be offered in support of or against said charges.”

Hawkins was too sick to attend to business and asked for time to answer. Reis and Stevens each filed a separate answer. Reis admitted that he was police commissioner, and he denied the governor’s jurisdiction over the matters charged, and he denied “ each, all and every statement set forth in said charges,” and he denied that he had been guilty of any official misconduct or had failed to discharge the duties of his office or had improperly discharged the duties imposed upon him.

He admitted that he voted for the appointment and promotion of Michael Mullen, that Mullen was indicted and convicted as charged, and he averred that Mullen, prior to the charges for which he was indicted, had been a faithful and efficient officer of police, and that he, Reis, was informed at the time of the conviction of Mullen that the facts were as follows: that Mullen in the discharge of his duty as lieutenant of police, having received an order from the mayor to arrest all suspicious persons, and having received information that a large body of persons were congregated at certain places in the city of Cincinnati on the evening before election day, not legal voters in the city, but non-residents of the county and statej who had come to Ohio for the very purpose of violating the election law's to be held upon the following day; and in purpursuance of the information so brought to him, and in obedience to the order so received from the mayor, arrested a large number of said alleged illegal voters in good faith and for the purpose of carrying the election laws of Ohio into effect, and to prevent illegal voting. That inadvertently in making the arrest of so large a number of persons, there were included therein three or four persons who were legal voters, found in the company of the assemblage of persons so congregated together for the purpose of violating the law, and that whilst technically guilty of the crime charged against him in the court, he was innocent of all purpose of practicing a fraud upon the rights of any one entitled to vote.

That after conviction and he had served a portion of his sentence he received from the president of the United States, a full and complete pardon for the offense charged ■against him. And that he, Reis, believed such a pardon blots out the offense so that it can not be imputed to the one pardoned. And he referred to Knapp v. Thomas, 39 Ohio St. 381, where Okey, J., says, “by force of the pardon . . . he was restored to all his civil rights and privileges. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. Exp. Garland, 4 Wall. 333, 380. It obliterates, in legal contemplation, the offense itself.” That he, Reis, believed he should so act, and that in view of the previous good character of Mullen in that community and in view of his efficiency as a police officer, etc., he voted as he did. That since then Mullen so conducted himself in his office and so effectively performed his duties to the satisfaction of the citizens of Cincinnati, that he voted for his promotion, and respondent believes Mullen has ever since conducted himself as an orderly, well-behaved and competent police officer; and that in voting for Mullen he did so with the single and sole purpose of performing his duty as he was bound in law to do.

As to Tosney he denied that he knew of any thing against him, except at one time drunkenness, when he was dismissed; and that before he was reappointed he heard he had reformed, and his reappointment was asked for by many respectable and influential citizens; that he did not know that Tosney had been accused, or was a judge of election.

That the dismissal of Newman was not without cause, and he denies it was in violation of the duty imposed upon him as police commissioner, or that it was occasioned by the arrest of Tosney by Newman, and denies that Newman was discharged because he performed his duty; but he avers that Newman was inefficient, was complained of by his superior officer and was discharged from the force for good cause, and specified times when he remained away from duty when needed, and when he engaged in a brawl in a public saloon., specified when he had been guilty of several offenses, had been arrested for an assault on an old man, and had been charged with intoxication and insubordination, and that for an attempt at blackmail Newman was dismissed by the republican board of public works, and that the best interests of the police department required his dismissal from the force.

That respondent denies specifically many other things charged; and then also as to "White, he says that White has served eight years under different mayors, and that so far as. he has been advised or had knowledge, "White has been a vigilant and useful officer for the past eight years. That the board requested the sub-committee of one hundred to furnish the board the names of one hundred persons to act as a special police at the election, but they furnished only twenty-seven names all of whom wore appointed. That he swore in but one person as policeman, and he served in a court room. That at the request of members of the committee of one hundred he went to the rooms of the police commissioners at the appointed time, and that he found the sub-committee leaving the building, and that on inquiry of "W. P. Anderson, one of the sub-committee, he was told by Anderson that, “ it is all arranged; it is all right,” and he knew nothing further of arrests until charges were promulgated against superintendent Hudson in relation thereto; and he refers to the transcript of a case against Hudson, superintendent of police, wherein the whole subject set out in charge No. 6 was tried, all the evidence bearing on it was heard, arguments of able counsel were made at length, and an opinion rendered by Judge Fitzgerald fully exonerating Hudson.

Stevens denies all, except that he was such officer. He avers the sickness of Hawkins, and that, on February 1, 1886, it was represented to the governor that the answer of Hawkins could not be filed for the reason that he was so ill that his physician forbade his consulting with his attorneys at that time. Thereupon it was agreed, with the consent of all present, and was so directed by the governor, that on February 3, 1886, the answer of Reis should be filed, and the answer of Hawkins should be filed at that time in case his counsel could prepare it in his absence, but in the event of his inability to confer with his counsel, or if not filed by reason of his sickness at that time, the governor then and there agreed that he would allow further time for the answer of Hawkins to be filed.

That counsel for Stevens then stated to the governor that an important professional engagement required his absence from the city. That the governor then and there agreed that the charges against Stevens should not be set for hearing at any earlier day than the first Tuesday following February 3, 1886, to wit, February 9, 1886. With that understanding the counsel for Stevens left tbe city and l’emained away until the Monday following, relying on the good faith of the governor that no action against Stevens would be taken until February 9th. During this time Stevens was sick with typhoid fever. On February 3,1886, without hearing any testimony, without trial, and without any investigation of the truth of the charges, all of which were denied and put in issue by the answer, the governor made the order on the executive minutes of the state of Ohio, a true copy of which he attached to his answer. All this is admitted by the demurrer. Also, Stevens avers the same as Reis about the charge as to Tosney, and as to Newman, and as to most of the other charges. As to White, Stevens says, that when he was appointed on the board of police commissioners, White had been serving some eight years as police officer detailed to special duty, and that he was a vigilant and useful officer, that it was true that White had been in the penitentiary in 1877 for the violation of the election law in 1876, and that president Hayes pardoned White before half his term of thirteen months was served, but that he did not know of his being in the penitentiary until these charges were filed.

That thereupon the governor issued this order :

“ Office of the Governor, February 3,1886.
“In the matter of the charges and specifications against Morton L. Hawkins, Julius Reis, and Will. A. Stevens, police commissioners of Cincinnati: Ordered by the governor this third day of February, 1886, certain charges and specifications of official misconduct having been preferred against M. L. Hawkins, Julius Reis, and W. A. Stevens, police commissioners, which charges and specifications were duly filed in this office on the twenty-fifth day of January, and a copy of said charges and specifications having been served on each of said commissioners on January 27th, together with a notice óf the filing of the same in this office and that they (the said commissioners) would be given until January 30th to file answers or any other pleadings they might desire to make to said charges and specifications, and that the same would thereafter be heard at this office on February 3d; and said Will. A. Stevens, having filed an answer, and said Morton L. Hawkins and Julius Reis having applied on that day for further time, to wit, until the third day of February, in which to file answers, and for a postponement of hearing until the 10th of February, and having filed, in support thereof, their respective affidavits.
“After hearing the said application, and further time for filing answers having been granted, and further hearing of the application for postponement until the 10th for hearing said charges having been continued until after the filing of their answers on the third day of February, and said matter coming on this day to be further considered, and it appearing that said Julius Reis has filed his answer to said charges, and that Morton L. Hawkins has failed to do so, and it further appearing from examination and consideration of said charges and specifications and answer thereto of Julius Reis, and from the affidavit of M. L. Hawkins that they, the said Reis and Hawkins, do each admit the appointment by them to a position on said police force of Mike Mullen, and also his subsequent promotion by their votes, as alleged in the charges-aforesaid, and the said Mike Mullen being known to the governor as a man of notorious bad character and wholly unfit to hold any position on the police force, and it further appearing from the answer of W. A. Stevens that James S. White and others known to the governor to be men of notorious bad character and wholly unfit to hold any position, are holding positions on the same force and are continued there by his authority, consent, and approval, and it being in the judgment of the governor gross official misconduct to appoint and continue on said force such unfit and improper men, and this official misconduct being as aforesaid admitted by each and all said police commissioners in manner and form as above stated, and no investigation or hearing, and no exercise of judicial power being necessary to the finding and establishing of the fact of said official misconduct, it is considered by the .governor that the applications for further delay should be and hereby are overruled, without regard to other charges and specifications.
“Said Morton L. Hawkins, Julius Reis, and Will. A. Stevens should each and all of them be, and they are hereby, removed from their said office of police commissioners of Cincinnati.
“In testimony whereof, I have hereuuto set my name and great seal of the state, to be affixed at the city of Columbus, this third day of February, 1886.
[Signed,] “J. B. Foraker,
Governor of Ohio.”

The answers filed are full, and they are undisputed, and clearly show that each police commissioner had conscientiously and faithfully performed his official duty. If any averments of the answers had been denied, testimony and*a full investigation by any competent and honest tribunal, could not injure good government, or the best interests of Cincinnati, and it might expose the wrong-doers and the criminals. If there was jurisdiction, why was a trial refused ? By removing the commissioners, the police force was crippled, but not one of the police force was removed.

To justify his act, the governor says, “ Mike Mullen being known to the governor as a man of notorious bad character, and wholly unfit to hold any position on the police force.” And he says identically the same thing of White. But his remarkable statement is, “ and no investigation or hearing, and no exercise of judicial power being necessary to the finding and establishment of the fact of said official misconduct.” He seemed conscious that he has no judicial power, and he assumed “ official misconduct,” and refused a trial. Why then the numerous charges, and why a call for answers, and an agreement that a defense to refute the charges might be made? Such acts were not a trial or a finding.

In argument, and to impress the conclusiveness of Reis’ answer to the charges and the answers here, ex-governor Hoadly claimed that he had investigated the charges against Mullen, and fouud that Mullen, under orders, had arrested some one hundred and forty or one hundred and fifty men believed to have been brought into Ohio to put illegal ballots into the election boxes on the next day, and he thought Mullen, by his timely acts had prevented the deposit of hundreds of fraudulent ballots, and for such act he thought Mullen entitled to the commendation of all good citizens. And he thought the president so found when Mullen was pardoned. I know of no law preventing George Hoadly from being a witness to tell the governor what the facts were, and how the facts could be ascertained.

It is absurd to claim that the governor's knowledge of the bad character of any appointee of the police commissioners brings home to any commissioner official misconduct.

It seems incredible that the committee preferring the charges were willing that this man Newman should be branded with such charges as are specified in the answers of Reis and Stevens, and that the committee should not be allowed to clear him with evidence, if they could do so. Had the answers to the charges been denied, then justice to all parties would have demanded a full and impartial trial of the entire matter.

The answers to the charges being true, what was left; of the charge of official misconduct ? If any thing was left, the accused must be found guilty of the “ official misconduct” charged. When guilt is denied, as here, such finding must involve a trial by some competent tribunal where there is a charge, testimony, deliberation and determination. This power is judicial. “ Judicial includes the deciding upon a question of fact, viz: whether the alleged act has been committed; and upon a question of law, viz : whether the inquiry was material” — here was it official misconduct? See People v. Keeler, 39 Hun. 590. It is judicial to hear, adjudge and condemn. People v Keeler, 99 N. Y. 463, 484.

It is admitted that at common law the power to remove an officer for official misconduct, could only be exercised by the courts.

These police commissioners were not appointed by the governor, they were holding office for a definite period of time, their successors were to be elected by the electors of the city, they could be removed only for official misconduct.

In Page v. Hardin, 8 B. Mon. 672, the court says, “ The secretary being removable for breach of good behavior only, the ascertainment of the breach must precede the removal. In other words, the officer must be convicted of misbehavor in office. And we shall not argue to prove that in a government of laws, a conviction whereby an individual may be deprived of valuable rights and interests, and may, moreover, be seriously affected in his good fame and standing, implies a charge and trial and judgment, with the opportunity of defense and proof. The law, too, prescribes the duties and tenure of the office, and thus furnishes a rule for the decision of the question involved. Such a proceeding for the ascertainment of fact and law, involving legal right, and resulting in a decision which may terminate the right, is essentially judicial, and has been so considered here and elsewhere. By the common law, the forfeiture of an office held by patent or commission, was enforced by scire facias, and the judgment of the court. The trial of an impeachment is universally regarded as a judicial function, and the senate, sitting for the purpose, as a judicial body. Similar proceedings (for the removal of officers) in the county or other courts are held to be judicial. And we do nót doubt that every proceeding for the removal of an officer for cause, that is, for official misbehavior, is essentially an exercise of the judicial power of the commonwealth, and would, therefore, refer itself to the judicial department of the government, if not otherwise disposed of by the constitution or the laws.”

The court go on to say that the constitution and laws have vested this power in the senate sitting as a court of impeachment, and that that tribunal alone can remove an officer for misconduct.

This case was followed with approval in State v. Pritchard, 36 N. J. Law, 101, in which, although the police commissioners of Jersey City had been convicted, on indictment, of conspiring to defraud the city, it was held that the governor had no power to remove them from office.

See also, Dullam v. Wilson, 53 Mich. 392, for a full discussion of the subject, and there the court hold, “In the absence of express constitutional authority, the legislature can not confer on the governor power to remove state or county officers, arbitrarily, and without hearing.”

No one has claimed that in the division of powers by our constitution, such power is conferred upon the legislature, or appertains to the office of the executive.

As to the constitution of the United States, Story, in his Commentaries, § 1537, says : “As the tónure of office ef no officers except those in the judicial department is, by the constitution, provided to be during good behavior, it follows, by irresistable inference, that all others must hold their offices during pleasure, unless congress shall have given some other duration to their office.”

If held during pleasure, the duration may be ended without trial, but the judges of the United States hold their offices during good behavior, and the president can not end that duration Neither can the president remove from office a judge who appoints as clerk of the court a man whom the president knows “ to be of notorious bad character and wholly unlit to hold any position ” as clerk.

No judicial power is conferred on the governor of Ohio by the constitution.

• “Such powers as are specially conferred by the constitution upon the governor, or upon any other specified officer, the legislature can not require or authorize to be performed by any other officer or authority; and from those duties which the constitution requires of him he can not be excused by law. But other powers or duties the executive can not exercise or assume except by legislative authority, and the power which in its discretion it confers it may also in its discretion withhold, or confide to other hands.” Cooley Const. Lim. *115.

Whatever discretionary power the governor has must be given him by the constitution, and this power of removal is not given by the constitution, and other duties, given by legislative act, are not at his arbitrary discretion.

In the opinion of the case of The State v. Chase, 5 Ohio St. 535, Bartley, C. J., says : “ However the governor, in the exercise of the supreme executive power of the state, may, from the inherent nature of the authority in regard to many of his duties, have a discretion which places him beyond the control of the judicial power, yet in regard to a mere ministerial duty enjoined on him by statute, which might have been devolved on another officer of the ¡state, and affecting any specific private right, he may be made amenable to the compulsory process of this court by mandamus.

“ Under our system of government, no officer is placed ¡above the restraining authority of the law, which is truly ¡said to be universal in its behests — ‘ all paying it homage, the least as feeling its care, and the greatest as not exempt from its power/

Calling the power “ administrative ” does not make it discretionary or change its character.

If judicial power were giveu and rightly exercised, the act might be final as the act of a court of last resort, or, if it.were an act of official discretion, then it might be final. The governor says he did not exercise judicial power, and no oue claims the power is merely discretionary.

If the governor could possess the power of removal, he was bound to hear testimony and give an opportunity to be heard.

In Ex parte Ramshay, 18 Q. B. 190, Lord Campbell, U J., says: “ The chancellor has authority to remove a judge of a county court only on the implied condition prescribed by the principles of eternal justice that he hears the party accused.” See Osgood v. Nelson, 5 Eng. & Ir. App. 648, and Commonwealth v. Slifer, 25 Pa. St. 28.

The same point is decided in Dullam v. Willson, supra, where Champlin, J., delivering the opinion of the court, says : “ There must be charges specifying the particulars in which the officer is subject to removal. It is not sufficient to follow the language of the constitution. The officer is entitled to know the particular acts of neglect of duty, or corrupt conduct, or other act relied upon as constituting malfeasance or misfeasance in office, and he is entitled to a reasonable notice of the time and place when and where an opportunity will be given him for a hearing, and he has a right to produce proof upon such hearing. What length of time notice should be given we do not determine; it must depend in a great measure, upon the circumstances of each case.

“ I have examined carefully the authorities cited upon the brief of the learned counsel for the relator in support of the position that no notice is required to be given, and that the action of the executive is final and conclusive. It is sufficient to say, without commenting specially upon them, that the reasoning of those cases does not commend itself to my judgment. They appear to me to be opposed, not only to the decided weight of authority, but also to the fundamental principles of justice.”

Chief Justice Cooley concurred. There was no dissent, but Campbell, J., in a concurring opinion, says: “ That removals for cause are judicial acts, and that they must be disregarded, whether appealable or not, if not conforming to jurisdictional requisites, has been settled so long, not only in this state, but by the common-law doctrines and by the genera! agreements of courts, that there is no room for serious controversy.”

That this court will inquire, on quo warranto proceedings, whether or not an officer has been removed from office, is settled in Ohio, and has just been exercised in the case of The State ex rel. Attorney-General v. Hudson, infra, 137.

Section 6 of article 10 of the constitution (referred to in the majority opinion) shows the policy of our law. That provides: “Justices of the peace, and county and township officers, may be removed, in such manner and for such cause, as shall be prescribed by law.” Not only the cause must be prescribed, but there must be prescribed the manner of proceedings to establish the cause, and the manner of removal. Then a claimed removal may be inquired into. This is shown also by § 1976 of the Revised Statutes, providing for cities of the second grade of the-first class (Cleveland), and which was enacted in 1876, the year preceding the passage of this original act, which was 1877. Section 1976 provides: “Either of the commissioners of police may at any time be removed by the city council, upon good cause being shown, three-fourths of all the members concurring; and where charges are made against a' commissioner, he shall have an opportunity to present evidence and be heard in his behalf.”

Also, in a general provision in § 1685 of the Revised Statutes, it is enacted that, “in no case shall such removal be made, unless a charge in writing is preferred, and an opportunity given to make defense.” For a defense there must be a tribunal with sufficient judicial power to try the case ; and such trial may be inquired into. Any other course is outside of a government by law.

In The State v. Harmon, 31 Ohio St. 250, relied upon in the majority opinion, which was a proceeding in quo warranto, the question involved the constitutionality of the act conferring on the senate authority to try the contested election of a common pleas judge. White, J., says: “The constitution itself plainly recognizes the separation of the authority to try contested elections, from the judicial power which is required to be vested in the courts. Section 21, article 2, is as follows: ‘The general assembly shall determine by law before what authority, and in what manner, the trial of contested elections shall be conducted.’ ” The court does not hold that the power to try such cases is not judicial poioer, but it only holds, it “is not judicial power within the meaning of section 1, article 4, of the constitution, which requires the judicial power of the state to be vested in the courts.” There must be a trial, by a competent tribunal, in a prescribed manner.

In Patten v. Vaughan, 39 Ark. 211, cited and relied upon in the majority opinion, the court held: “In the absence of constitutional or legislative restriction, where no definite term of office is prescribed by law, the power of removal is incident to the power of appointment.” That can not apply to this case. The commissioners were not appointed by the governor, and their term of office was prescribed.

And, in another ease relied upon, State v. Doherty, 25 La. Ann. 119, Wyly, J., says, “The law provided that the governor might make the appointment, and for a certain cause remove the officer appointed by him. Here the law invested the governor with a discretionary power, which' could alone be employed by him.” Such cases do not sustain propositions 2 or 3 of the syllabus; neither does any former decision of this court.

Examine other cases cited and relied upon by the majority, and note what support, if any, is given to this case. In the matter of Cooper, 22 N. Y. 67, appellant appealed from an order, made at a general term of the supreme court, denying appellant to be admitted to practice as an attorney and counsellor at law. The court held, “ In the admission of attorneys and counsellors, the supreme court acts judicially. The function is not of an executive character.”

In Keenan v. Perry, 24 Tex. 253, the governor had appointed for an indefinite term, and the court says, “ The continuation in office of the superintendent of the lunatic asylum, was determinable at the pleasure of the governor.”

In Taft v. Adams, 3 Gray, 126, the court held, “ The legislature have the power to shorten the term of office of any officer, the tenure of whose office is not fixed by the constitution.”

In Ex parte Wiley, 54 Ala. 226, the county solicitor had been suspended from office by a court, and the court held, “The court acts ex mero motu, and of its own knowledge, under the provisions of the statute.”

In Thompson v. Holt, 52 Ala. 491, a probate judge failed to give a required bond, and the court held, “ the failure to give the bonds required is the voluntary act of the judge himself, and the vacancy thereby-occasioned, when enforced against him, is in no legal sense a ‘ removal from office,’ within the meaning of the constitution, or otherwise violative of its provisions.”

In State v. Frazier, 48 Ga. 137, a tax-collector’s commission had been vacated on his failure or refusal to account for public moneys, and when such fact exists it was a “sufficient reason for vacating any office held by such person,” and when such fact existed the governorcould remove.

In Dougan v. District Court, 22 Am. Law Reg. (N. S.) 528, the court held, “Where a statute authorizes an administrative or ministerial body (as the council of a city) to appoint an officer to hold during its pleasure, such body can remove in its discretion, and the exercise of such discretion can not be controlled or restrained by the courts.”

In State v. McGarry, 21 Wis. 496, power was given the supervisors of the county to remove the inspector of the house of correction, for “ cause satisfactory to the board,” and the court held, “ under that act the board may remove without examining witnesses under oath, or giving the officer previous notice of the investigation of charges against him.” But an investigation must show cause satisfactory to the board. So, in State v. Prince, 45 Wis. 610, the county board of supervisors may remove the clerk of such board “ if, in the opinion of said board,” there “ shall be a sufficient cause for such removal,” “ but an appeal lies to the circuit court from the order of removal.”

Donahue v. County of Will, 100 Ill. 94, was the removal of a county treasurer by the county board, and finding that the treasurer had not settled and accounted for moneys as required by law, and had been and was in arrears with the county; and the court held, “ if the court finds that the inferior body had no jurisdiction, or exceeded' it, or had not proceeded according to law, it should quash the proceedings shown by the return.”

I fail to find in these cases justification for propositions 2 or 3 of the syllabus. Charges, ample in statement but false in fact, may be preferred; and, on notice, answers clearly refuting the charges may be given, and undisputed evidence offered to prove the charges false and the answers true ; and the l’ecord may show that the governor had not proceeded according to law, and had refused a trial or hearing; and the record may also show, the governor said he removed the officers for no act of theirs, but by reason of his estimate of the character of other parties, their ap-^ pointees: all this would not remove the officers.

The record might show there was no “ official misconduct,” and no proper proceedings, and that all was void. We are asked to presume against the statements of the record.

This extreme claim seems necessary to justify the removal of officers of great value to the police force of Cincinnati. Thus Cincinnati must suffer from outside interference in her city matters. Could she be permitted to control her own internal affairs, doubtless she would exhibit the truth of the fundamental and vital doctrine of efficient and vigilant “ home rule.”

The citizens of Cincinnati, and these police commissioners, had an interest that these officers should remain in office until by official misconduct they forfeited their right, and until the official misconduct was legally established. This right is not money or other property; but, like reputation, it is valuable to a good citizen.

Are Cincinnati, and the officers thus removed without a hearing, entirely without remedy? The majority opinion says, “For an abuse of such power, the remedy is, either to the people in the election of a successor to the officer abusing the power reposed, or, when the removal is characterized by circumstances of flagrant abuse, he may be impeached and deprived of his office.”

What are the facts here as,to these remedies? Not for twenty months in the future will there be an election for a successor. Then the injured citizens can participate in defeating the re-election of one who has abused such extraordinary power. How inadequate is this remedy !

As to impeachment, the constitution, section 23, article 2, provides, “ The house of representatives shall have the sole power of impeachment.”

On January 11, 1886, when the governor’s term of office began, his party friends had a majority of six in that house. On the next day, January 12,1886, nine opposing members from Hamilton county, who legally held certificates entitling them to membership in that house, as was held without dissent by this court in the case of Daniel J. Dalton, Clerk, et al., v. Oliver Outcalt, et al., December 11, 1885, were turned out of that house and nine of his pnrty friends were taken in — thus obtaining a majority of twenty-four of his party friends.

With such conditions, no one would seek redress by impeachment. Laws and holdings, permitting such results, can not endure.

Owen, C. J.,

dissents from the third proposition of the syllabus, but concurs in the judgment upon other grounds stated in the opinion.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    The State ex rel. Attorney-General v. Hudson.

      Constitutional law — Act of April 3, 1885 — Law of general nature — Power of mayor to remove superintendent of police.

    1. The act of April 3, 1885 (82 Ohio L. 101), providing for a police force in “cities of the first grade of the first class,” applies to all cities of that grade and class in the state, and is a law of a general nature, having a uniform operation throughout the state, and is constitutional.
    2. The mayor of the city of Cincinnati has no power to remove from office the superintendent of police of that city, though the hoard of police commissioners, that appointed such superintendent under the provisions of the act of April 3, 1885 (82 Ohio L. 101), has been removed from office.
    QUO WARRANTO.
    Relator avers, in his petition, that on April 28, 1885, the then existing board of police commissioners of the city of Cincinnati, appointed the defendant, Edwin Hudson, superintendent of police of said city. That defendant entered upon his duties as such officer, and was still acting in that capacity when suspended from office, as hereinafter set forth.
    That on February 3,1886, the police commissioners were duly removed from office by the governor of the state of Ohio, and that thereupon the control of the police force of the city devolved by law upon the mayor of the city until such time as the vacancies in the board could be filled as provided by law, and thereupon the mayor became vested with power to make orders, rules and regulations, for the government, discipline, and duties of the police force of the city.
    That, in pursuance of the powers devolved upon and vested in him by law, Amor Smith, Jr., mayor of the city of Cincinnati, on February 5,1886, duly issued an order to Hudson, as superintendent of police, to report to him for instruction, which order Hudson wholly refused to obey, and defied the power of the mayor by declaring that he did not recognize his power to issue the order or give him instructions, and that he would only obey orders and instructions from the board of police commissioners, which board had been removed as aforesaid.
    Relator says that the refusal of Hudson to obey the orders of the mayor was an act of insubordination and disobedience.
    That thereupon, February 6, 1886, the mayor, in pursuance of the powers vested in him by law, duly issued an order suspending Hudson from further acting as superintendent of police — a copy of which order was served on Hudson — on the ground of insubordination and disobedience.
    That, notwithstanding such suspension from office, and in defiance thereof, and since the date of the service thereof on defendant, the defendant has unlawfully held and exercised the office of superintendent of police of the city of Cincinnati, and is still unlawfully holding and exercising' such office.
    Wherefore he prays for the advice of this court in the premises, and that defendant be compelled to answer by what warrant he claims to hold and exercise the office, and that he may be ousted from the same.
    To this petition Hudson demurs, on the ground that the petition does not state facts sufficient to constitute a cause of action.

      Jacob A. Kohler, attorney-general, and Thomas McDougall, for plaintiff.

      Hoadly, Johnson $ Colston, for defendant.
   Follett, J.

Relator avers that on April 3, 1886, the police commissioners of the city of Cincinnati were removed from office by the governor of Ohio; and that on February 6, 1886, -the mayor of Cincinnati removed from office Edwin Hudson, the superintendent of police, but that Hudson refused to surrender the office, and relatof prays for judgment of ouster.

If relator does not aver facts that show a cause of action against Hudson, the demurrer of Hudson should be sustained.

Relator insists that the act of April 3, 1885 (82 Ohio L. 101), under which Hudson was appointed, is not constitutional, as it is inhibited by section 26, article 2, of the constitution, which pi’ovides that, “All laws, of a general nature, shall have a uniform operation throughout the state.”

This question vitally affects Cincinnati, as well as Cleveland, Toledo, Columbus and Dayton ; for, at present, under our system of classification of cities, there is but one of these cities in a general class. This act (§ 1870) applies to “ cities of the first grade of the first class” — to all such cities in Ohio — though Cincinnati is now the only city in that class. Each city just named is now similarly situated. Each of the large cities seems to need peculiar legislation, which can be provided only by such general classification. The peace and prosperity of these cities, and the best interests of the state, require that this system of classification be regarded as stare decisis and settled. See Rev. Stat., § 1546. Under the power to organize cities and villages (Const., Art. 13, §6), the general assembly is authorized to classify municipal corporations, and an act relating to any such class may be one of a general nature. See State v. Covington, 29 Ohio St. 102; State v. Mitchell, 31 Ohio St. 592; The State v. Brewster, 39 Ohio St. 653, 658.

Recently this court, without a dissent, reaffirmed this principle in the case of Alice D. Scheer v. The City of Cincinnati, on error to the superior court of Cincinnati (15 Week. L. Bull. 66), which case was not reported. In that case the court held to be constitutional the act of April 25, 1885, (82 Ohio St. 156, § 2293a), providing for improving the streets of Cincinnati.

By the same principles and holdings, the act in question here, by the provisions of which Hudson was appointed to his office and now holds and exercises the same, is also cons titutional, as not inhibited by section 26 of article 2, or section 1 of article 13, of the constitution.

This i’eally disposes of the whole case. "We are not told why, or by what law, the mayor assumed to act. There is no statute expressly enabling the mayor to remove Hudson. This act provides, by section 1870, “ All police powers and duties connected with and incident to the appointment, regulation and government of a police force . . . shall be vested in a board of three members, . . . and they shall be called the board of police commissioners.” Section 1876. “The board is hereby invested with, and shall, when necessary, exercise all the powers which are conferred by law upon mayors of cities and sheriffs of counties, in respect to requiring the services of the military, in aid of the civil authorities, to quell riots, suppress insurrection, protect property, and preserve public tranquillity; and such investiture of power shall exclude, within the city, the exercise of similar powers by the mayor of such city, or sheriff of the county in which the city is situated.”

Section 1879 provides what shall compose the police force of the city, and makes the superintendent of police the chief officer of the police force.

Section 1878. “ It shall be the duty of the board and of the force hereby constituted, at all times of the day and night, within the boundaries of the city, to preserve the public peace, prevent crime, arrest offenders, protect rights of persons and property, guard the public health, preserve order, remove nuisances existing in public streets, roads, places, and highways, . . . protect strangers, and travelers at steamboat and ship landings and railway stations, and generally to obey and enforce all ordinances of the city council, criminal laws of the state and of the United States.”

These provisions show the necessity of having a superin~ tendent of police, and they also show that the mayor of the city has no control of the police force or of the superintendent of police. Much less has the mayor the power to remove from office the superintendent of police. No adequate reason has been given for the attempted removal.

It is not sufficient to state that as the governor had removed the board of police the mayor claimed the control of the police force and sought to compel obedience by rémc/ing from office the superintendent of police. Such power is conferred only by statute, and there is no such statute. This attempt, by the mayor, to take control of the police force of Cincinnati, is without legal support. To show there is no ground of claim for the power so to remove Hudson, at the suggestion of my brethren, I add the following analysis of the statutes.

If it be said the mayor derives the right from the fact that section 1744 makes him a conservator of the peace throughout the corporation, the same is true of every justice of the peace (§ 610). We are referred to section 1874, as amended February 27,1880 (77 Ohio L. 23), which provides, “ The mayor shall have power to make and publish, from time to time, orders, rules and regulations, for the government, discipline and duties of the police force.” It is true this section is not directly repealed.by the act of April 3,1885 (82 Ohio L. 101,111), but it will be observed that it constitutes a section of the first subdivision of the fifth chapter of the fifth division of the twelfth title, part first, of the Revised Statutes, and section 1875, as amended April 3, 1885 (82 Ohio L. 102), provides that the board of police commissioners “ shall have the other powers and other duties specified in this subdivision.” This would repeal section 1874 by the strongest possible implication, even if section 1874 had the power claimed for it. But, upon reference to the act of 1880, it will be found that section 1874 did not give the mayor power to appoint or remove policemen. That power was given by other sections, namely, sections 1875,1879 and 1881, all of which were repealed by the act of 1885. Section 1874, having no reference therefore to the power to appoint or remove a superintendent of police, the attempt of the mayor to supersede Hudson is necessarily ineffectual. Section 1874 can not have any greater force or effect now than was ascribable to it before the repeal of sections 1875, 1879 and 1881. State v. Thompson, 34 Ohio St. 368.

Besides, section 1874, if still in legal existence, does not profess to confer a power of appointment or removal. Its effect is expressly limited to the making and publishing of rules: — rules for government, discipline and duties of the force when established, not for creating or changing its membership.

Section 1711 can not help the mayor. It gives no power of removal: — and the petition does not show an appointment by the mayor, in pluce of Hudson, “ with the advice and consent of the council.” Besides, section 1711 does not apply, because the method of appointing a superintendent of police is “ otherwise provided in this title,” viz., by section 1875.

For the same reasons, section 1713 does not apply, although it might authorize “the mayor, with the advice and consent of the council,” to fill a vacancy in the office of police commissioner, but for the explicit provisions of section 1870.

The attempted removal is a nullity. The petition does not state a cause of action, and the demurrer thereto is sustained.

Writ refused.