formal investigation. There are many statutes on the statute book relating to the employment and removal of police officers, clerks, and employés in municipalities, which expressly or by implication require that the power of removal shall only be for cause, after notice and hearing of the person whose removal is contemplated. The practice of legislation in this state has been to insert a provision for notice and hearing when this has been intended. City of New York, Consolidation Act (Laws 1873, c. 335) § 25; Id. (Laws 1882, c. 410) §§ 250, 272, 314; City of Brooklyn, Laws 1888, c. 583, tit. 22, § 29; City of Buffalo, Laws 1870, c. 519, tit. 13, § 3.

The acts cognate to the act of 1894, viz. chapter 119 of the Laws of 1888 and chapter 577 of the Laws of 1892, restricting the power of removal of Union soldiers or sailors holding official employment in cities and counties, contain a provision that removals shall not be made "except for cause shown after a hearing had." In view of the course of legislation, and the scope of the act of 1894, we are of opinion that the Legislature intentionally omitted to insert a similar provision in the statute in question.

We concur in the conclusion of the General Term that the Legislature, having prescribed the grounds of removal in the act of 1894, left it to the removing power to determine whether the facts existed which authorized a removal, subject to responsibility for any willful or perverse action, and that no notice is required to be given to the person whose removal is contemplated, before the power can be exercised.

The order should be affirmed. All concur. Order affirmed.40 46

SECTION 23.-SUFFICIENCY OF NOTICE

STATE v. LAMOS.

(Supreme Court of Maine, 1846. 26 Me. 258.)

TENNEY, J. The defendant is charged in the indictment with the offense of presuming to be and of being a common innholder, between the 1st day of June and the time of finding the bill at the term of the court holden in October, 1843, without being licensed therefor according to law, and without being duly authorized therefor. It was admitted by the defendant that he carried on the business of a common innholder as alleged in the indictment, and by the prosecuting officer that he was duly licensed as such for the period during which

46 See In re Guden, 171 N. Y. 529, 64 N. E. 451 (1902). See, also, Shurtleff v. United States, 189 U. S. 311, 23 Sup. Ct. 535, 47 L. Ed. 828 (1903).

the offense was alleged to have been committed, with the restriction not to sell spirituous liquors. But it was insisted by the latter that the defendant's license was legally revoked on August 5, 1843.

The defendant not being charged with any other offense than that of being a common innholder without license, the correctness of the instructions to the jury, that the evidence authorized a conviction, must depend upon the legal revocation of that license. The town officers, who are authorized to grant a license, are empowered also to revoke it, whenever any instance of a breach of the bond required by Rev. St. c. 36, § 2, shall have come to their knowledge, and after complaint, notice to the party complained of, and a hearing thereon. Chapter 36, § 15.

The power given by the section referred to, to the board, is important, and its exercise may materially affect the interests of those against whom complaints may be made. Their jurisdiction, like that of all inferior magistrates, must appear affirmatively, and cannot be presumed, or inferred. The authority to give a hearing, and to revoke a license, is not conferred without a complaint, and a notice to the party complained of.

It is not necessary that the complaint should be in writing, signed and sworn to as the law requires in complaints in criminal proceedings before a magistrate, to authorize him to issue a warrant; neither is it indispensable that it should be signed by any one; but the language used in the statute implies that the word "complaint" is to be understood in its legal sense.

A breach of the bond of a person licensed may come to the knowledge of the board. This alone is not sufficient to give a hearing after notice; but a complaint is necessary. The Legislature could not have intended to have made a distinction between simple information of the breach, and that information given verbally to the board, by way of complaint. Such would be senseless. But it was evidently their purpose that after the fact of a breach should become known to them, before they could give the notice to the person accused of having committed it, and proceed to a hearing, the complaint should be in writing and contain an allegation of the charges, with specifications, and the time when the breach took place. Of all these the party complained of was entitled to reasonable notice, that he might know particularly what he was called upon to answer, and have opportunity to produce proof that the charges were unfounded. Without this, there would be a looseness which would be perfectly anomalous in all proceedings of the same general character. There would be an uncertainty whether the evidence adduced at the hearing had relation to the charges of which he had notice, or others, which were distinct therefrom. If the license should be revoked, it could not appear whether it was upon satisfactory proof of the charges alleged, when no record or document existed to show what they were.

The order revoking the defendant's license is in writing, and it is

therein stated that the undersigned, being a major part of the licensing board, after notifying him of their intention so to do, gave him a hearing on the charges preferred against him, and being satisfied, beyond a reasonable doubt, that he has failed to keep the Wadleigh House, according to the restrictions and conditions of his bond. and license, did revoke said license, rendering it of no effect, informing him at the same time of the fact. No written complaint or copy thereof was introduced at the trial as the basis of the proceedings of the board, nor was there evidence that any was before them at the hearing. The order of revocation was introduced without objection, but if it contained no statement showing a jurisdiction in the board, it certainly was insufficient for that purpose; and it contains nothing which indicates that they proceeded under a written complaint. It does not state what charges were preferred against the defendant; and they could have jurisdiction only on complaint of a charge that the condition in the bond, which the law authorized them to insert, had been broken. Crosby v. Snow et al., 16 Me. 121.

The board found the defendant guilty of not keeping the Wadleigh House according to the conditions and restrictions of his bond and license, and for that cause his license was revoked. Whether this was the charge preferred against him or not, or whether the conditions and restrictions in the bond and license, which they found. he failed to observe were those which could be legally required, even if written complaint was not necessary, no proof was adduced to show.

Exceptions sustained."

PEOPLE ex rel. SHUSTER v. HUMPHREY et al.

(Court of Appeals of New York, 1898. 156 N. Y. 231, 50 N. E. 860.) Appeal from Supreme Court, Appellate Division, Second Depart

ment.

Application by the people, on the relation of Adam Shuster, for a writ of certiorari against William A. Humphrey and others, Commissioners of Police of the City of Poughkeepsie. From an order. of the Appellate Division, made by a divided court (22 App. Div. 632, 48 N. Y. Supp. 1112), affirming a dismissal of relator from the police force of the city of Poughkeepsie, he appeals. Reversed.

VANN, J. On the 15th of April, 1895, the relator was appointed a patrolman of the city of Poughkeepsie, after passing the civil service examination as provided by law. He was a veteran of the Civil War, and had never served in the Confederate army or navy. After

47 See, also, State v. Kellogg, 14 Mont. 426, 36 Pac. 957 (1894); Lillienfeld's Case, 92 Va. 818, 23 S. E. 882 (1896); State ex rel. Sullivan v. Tomah, 80 Wis. 198, 49 N. W. 753 (1891); Pehrson v. Ephraim City, 14 Utah, 147, 46 Pac. 657 (1896); Czarra v. Board of Medical Supervisors, 24 App. D. C. 251 (1904).

serving two years in the Union army and receiving an honorable discharge, he enlisted in the navy, and served until the close of the war, when he was honorably discharged from that branch of the service also. On the 5th of May, 1897, he was charged by the mayor of the city "with having made an illegal arrest, in that, without a warrant and without probable cause, he, on or about April 23d, 1897, illegally arrested and detained and brought to the station house one Lewis Richardson, and declined to make a charge against him, whereupon said Richardson was discharged by the sergeant in charge." On the 7th of May following, he was tried upon this charge, and evidence was given tending to show that he made an arrest, without a warrant, for a misdemeanor not committed in his presence, upon the complaint of a man who claimed that the person arrested had assaulted him, and that he was drunk and disorderly. At the instant that this complaint was made, the alleged wrongdoer was running away, and the relator placed him under arrest, and took him to police headquarters, with the understanding that the complainant was to follow immediately, and make a formal complaint. Upon arriving at the police station, the relator declined to make any charge himself against the prisoner, who, as the complainant did not appear, was discharged, after a detention not exceeding five minutes in duration.

As the relator was an honorably discharged soldier, and had never served in the Confederate army or navy, the commissioners had no power to remove him "except for cause shown after a hearing had.” Laws 1892, c. 577. The charter of the city of Poughkeepsie, which is a public act, provides that the board of police commissioners of that city have power "to punish any member of the police force on conviction of any legal offense, or neglect of duty, or violation of rules, or absence without leave, or any conduct injurious to the public peace or welfare, or immoral conduct, or conduct unbecoming an officer, or other breach of discipline, by reprimand, forfeiting or withholding pay for a special time, or dismissal from the force, but no more than thirty days' pay shall be forfeited for any offense." Laws 1896, c. 425, §§ 141, 193.

The relator was entitled to a trial upon charges preferred, and the commissioners had no right to remove him until after they had duly convicted him on one or more of such charges. This is necessarily implied from the words "hearing," "cause shown," "conviction," etc., as used in said statutes. After a lawful conviction upon a definite charge made under the statute, they had the right to remove him for that "cause shown," but they had no right to remove him for a cause not appearing in the charge preferred, and not embraced in the issue that was tried. They could not convict him of one thing, and remove him for another. If they convicted him of making an illegal arrest, they could not remove him on that ground, and on one or more other grounds not embraced in the charge nor covered by the evi

dence; yet this is what the commissioners, according to their return, actually did. Their minutes, which are part of the return, show that, at the close of the evidence, a motion was made, seconded, and unanimously carried, "that Officer Shuster be dismissed from the force for incompetency and trying to deceive the board." According to this statement of their official action, which is all that appears on the subject in their original minutes, the commissioners do not appear to have convicted the relator upon the charge preferred, or to have dismissed him on that ground, but upon two independent grounds, as to neither of which was there a trial or hearing. In another part of their return, however, the commissioners state that, "after the testimony had been taken, the board unanimously found the relator guilty of the charges, and dismissed him from the force because of such finding, and for incompetency and endeavoring to deceive the board." This was not an entry upon their minutes or a record made at the time of their official action, but a statement framed in response to the command of the writ of certiorari.

Assuming that the charge of making an illegal arrest was sufficient to justify a conviction, and assuming also that the board actually convicted the relator of that offense, still no charge of incompetency or endeavoring to deceive the board was made against him, and he was neither tried nor convicted upon either of those grounds. Yet the learned commissioners themselves say that they removed him for incompetency and an attempt to deceive them, which were not charged, as well as for an illegal arrest, which was charged. The punishment which they inflicted was the most severe that the law authorizes, and we are compelled to assume that, in fixing the penalty to be inflicted, the incompetency and deceit had an influence upon their minds. If it did not, why did they say so in their return, and why did they formally enter upon their minutes the charges not preferred and never tried, as the only grounds upon which they acted in dismissing the relator from the force?

We can hardly conceive that the commissioners, as reasonable men, would dismiss a patrolman who was in good standing, so far as the record discloses, simply because he made an honest mistake in arresting a man without a warrant when he had no right to do so. The arrest was not accompanied by actual violence, nor by any aggravating or annoying conduct, and the prisoner was deprived of his liberty for only a short time. Even if a dismissal, based solely upon a conviction for making the arrest, would be a reasonable punishment, under the circumstances, the record does not permit the inference that the removal was founded upon that charge alone, for the commissioners say that they dismissed him for other reasons also. The return compels us to conclude that, in fixing the punishment to be inflicted, they were influenced to some extent, at least, by the "incompetency" and the effort at deceit, in relation to which there was neither charge preferred nor trial had. As we have recently said: "The relator was