not subject to removal except for some legal cause, to be ascertained and adjudged as matter of fact upon a hearing." People v. Police Commissioners, 155 N. Y. 40, 44, 49 N. E. 257. Yet he has been adjudged guilty of one offense, and removed for three offenses, of two of which it does not appear that he had ever heard. We think that the commissioners exceeded their power, and that the order appealed from should be reversed, with costs.

PARKER, C. J., and O'BRIEN, BARTLETT, and MARTIN, JJ., concur with VANN, J., for reversal. GRAY, J., concurs with HAIGHT, J., for affirmance.

Order reversed.

STATE ex rel. MEADER et al. v. SULLIVAN et al.

(Supreme Court of Ohio, 1898. 58 Ohio St. 504, 51 N. E. 48,
65 Am. St. Rep. 781.)

Error to circuit court, Hamilton county.

Petition for writ of quo warranto by the state, on the relation of Meader and others, against John J. Sullivan and others. A demurrer to the answer was overruled, and the petition dismissed. Relators bring error. Affirmed.

The action below was in quo warranto, brought by the prosecuting attorney of the county of Hamilton against the defendant in error Sullivan and John Zumstien, Louis Werner, and George M. Roe. Its purpose was to oust respondents from the office of board of supervisors of the city of Cincinnati, and to induct the relators. The gravamen of the petition is that the respondents had been removed from office by the mayor of the city by virtue of section 2690m, Rev. St. 1897, after a hearing upon charges preferred, and yet respondents continued to intrude therein. 48

SPEAR, C. J. (after stating the facts). Two questions are presented. One relates to the sufficiency of the charges; the other to the action of the mayor upon them. The holding of the circuit court is rested upon the former consideration.

Section 2690m, Rev. St. 1897, gives authority to the mayor to appoint the board of supervisors, and also to remove. The latter authority is in these words: "For neglect of duty or misconduct in office, the mayor of such city may remove any member of said board." This language, taken by itself, may imply an arbitrary power of removal. But that the power is not wholly arbitrary is well settled in this state by the cases of State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228, and State v. Bryson, 44 Ohio St. 457, 8 N. E. 470. Nor can its exercise be lawfully attempted until substantial charges involving neglect of duty or official misconduct, have been preferred. It is held in the former case, as applicable to a removal by the Governor, that the charges must

48 The rest of the statement of facts is omitted.

embody facts which, in judgment of law, constitute official misconduct, and no reason is perceived why the same strict test should not apply in the case of removal by a mayor. While it is true that the holding of office is not compulsory, and the citizen is at liberty to accept or decline, as seems to him best, yet considerations of patriotism and public policy incline the disinterested citizen to accept, and it is manifestly for the interest of the state that men of character should be found willing to fill, public positions. Such citizens will be less likely to do so if they are to be subjected to arbitrary removal, or their reputations put in jeopardy by removal based upon insufficient charges. The public interests do not require action which shall be unjust to a worthy officer, or which will unfairly smirch a good character; and yet the public interests do require prompt action in case of established inefficiency or corruption. And so our statutes have provided remedies as to removals which, while they do not lodge power in the removing authority which is absolutely arbitrary, do give power which partakes of that character.

In a case under the statute in question the mayor is the sole judge of the weight and sufficiency of the evidence given at the hearing. If he hears a complaint of neglect of duty or misconduct in office, upon adequate charges, and upon evidence tending to establish them, by him. adjudged sufficient, removes the officer, his action is practically final, since no appeal lies, nor can error be prosecuted. Hence the necessity, in justice and common fairness, of his being authorized to proceed only when charges have been made which embody facts that, in judgment of law, constitute neglect of duty or misconduct in office. As said by Mechem in his work on Public Officers (section 452): "The power of removal so conferred must be confined within the limits prescribed for it, and must be pursued with strictness. Hence it can be exercised only for the cause specified and in the manner and upon the conditions fixed." See, also, Com. v. Slifer, 25 Pa. 23, 64 Am. Dec. 680. And, with equal propriety may it be added that the finding and order should be so definite as to show upon the face of them, that the power has been exercised according to law. This for the reason,

among others, that the power exercised by the mayor is not judicial power, and the presumptions which attach to the record of courts are not to be applied in the same liberal sense to the record of the mayor. In McGreger v. Supervisors, 37 Mich. 388, it is held by Cooley, C. J., that "the removal from public office is a matter of serious consequence, and it is plain that all the facts which would justify it ought properly to be of record."

The charges here are that Sullivan knew, or should have known, that the tangible property, real and personal of the street railway company, subject to taxation, was $10,000,000. Yet he willfully consented to approve the valuation of personal property at $835,230, and realty at $350,000, when he knew that the value of the said taxable property was not less than $10,000,000; with bad intent, etc. A simi

lar allegation is made as to the property of the gas company. But the board, acting as a board of equalization, had, under the statutes, no duty to perform respecting real estate, its power of equalization being confined wholly to personal property; and why the confusing element as to real estate was incorporated in the charges must be left to conjecture. It so confuses the allegation that its meaning is fatally obThere is no statement that Sullivan or the board undervalued the personal property, for there is no language equivalent to an averment that the personalty of the railway company was in fact of higher value than $835,230. The valuation in gross appears by the charges to have been much too low. But it may be, for anything that these charges show to the contrary, that the undervaluation was wholly on the real estate. So that, as conclusion, every word in the charges as made may have been true as therein alleged, and yet no neglect of duty would be shown.

scure.

The finding of the mayor is simply that "Sullivan has been guilty of neglect of duty." This finding, being general, cannot be extended by implication to involve a conclusion more comprehensive or specific than the language of the charges; and this, as we have found, means only that as to the whole property there was undervaluation. In other words, the legal meaning of the finding and order is that, in the judgment of the mayor, the defendant was guilty of neglect of duty because he had permitted undervaluation of the property in gross, and. cannot be held equivalent to a finding that he had been so guilty with respect to that part only of the property of which the board had jurisdiction. It seems to us manifest that, considering the arbitrary character of the power brought into exercise in this case, the charges were too indefinite to justify a trial, and that, unaided by a specific finding showing in what the neglect of duty consisted, the entire record is not. sufficient to support an order of removal.

49 *

*

JOYCE v. CITY OF CHICAGO.

(Supreme Court of Illinois, 1905. 216 Ill. 466, 75 N. E. 184.) HAND, J.50 * * * It is also urged that the charge filed with the commission by the general superintendent of police is not sufficiently specific. This proceeding is not a common-law or criminal proceeding, but an investigation. While the plaintiff in error had the right to have the charge preferred against him reduced to writing, and in such form that he could clearly understand the ground assigned for his removal, it was not necessary that the charge should be formulated in technical language similar to that of a declaration or indict

ment.

49 The remainder of the opinion is here omitted. See post, p. 214.

50 Only a portion of the opinion of Hand, J., is printed.

In State v. Common Council of the City of Superior, 90 Wis. 612, 64 N. W. 304, charges were filed with the common council against the mayor of the city for extorting sums of money from policemen and firemen for political purposes. After a hearing upon the charges, the common council removed the mayor from office. Under the Wisconsin statute the mayor could not be so removed "without cause, nor unless charges are preferred against him and an opportunity given him to be heard in his own defense." The court, on page 622, 90 Wis., and pages 306, 307, 64 N. W., said: "This was not a common-law trial, but an investigation. While the mayor had a right to insist that he have a fair hearing, and that the substance of the rules governing trials at law should be preserved, he cannot require that the same precision and formality be observed which are required in criminal trials at law. These principles govern the charges made, as well as the procedure. The charge does not need to be drawn with the accuracy of an indictment. It is sufficient if the accused be furnished with the substance of the charge against him." Upon the trial the plaintiff in error was represented by counsel, and no objections, as appears from the record filed as a return, were made to the written charge for indefiniteness or otherwise, and it is too late now for him to raise the objection that the complaint was not sufficiently specific.

In State v. Kirkwood, 15 Wash. 298, 46 Pac. 331, the relator was removed from the office of police commissioner of the city of Seattle by the mayor upon charges, and Kirkwood was appointed in his place. The relator brought suit, in the form of an information in the nature of a quo warranto, to oust Kirkwood. The court held that in a quo warranto proceeding it could examine the sufficiency of the charges, and said (page 300, 15 Wash., and page 332, 46 Pac.): "The second contention of appellant, however, viz., that the charges were sufficient to support the removal of relator, we think must be sustained. These charges may have been somewhat indefinite, but no motion was made to make them more definite or certain. No objection was made to them in any way. The appellant went to trial upon the complaint as it was, and the issues were found against him, and we think it is too late for him now to raise the objection that the complaint was indefinite and not specific. * * * The complaint * * * is somewhat discursive and indefinite, but we think sufficient can be gathered from the complaint to place the relator upon trial for acts which were inconsistent with the duties of a public officer." * * *

CHAPTER V

HEARING AND EVIDENCE

SECTION 24.-IN CONNECTION WITH LICENSES

PEOPLE ex rel. PRESMEYER v. BOARD OF COM'RS OF POLICE AND EXCISE OF CITY OF BROOKLYN.

(Court of Appeals of New York, 1874. 59 N. Y. 92.)

Appeal from order of the General Term of the Supreme Court, in the Second Judicial Department, affirming an order of Special Term, denying a motion on behalf of the relator that a writ of prohibition issue, commanding respondents to desist from proceedings to cancel relator's license for the sale of intoxicating liquors.

The relator had obtained a license from the said board. A complaint was made to the board against him, under section 8, c. 549, Laws 1873, for selling beer on Sunday, by a sergeant of the police, of which complaint the following is a copy:

"John S. Folk, Superintendent of Police:

"Brooklyn, Feb. 9, 1874.

"I hereby report George H. Presmeyer, keeper of liquor saloon corner of Fifth avenue and Twenty-Sixth street, for violation of excise law, at 8:15 p. m., on the 8th instant. Six men were in the store at the time; two classes of beer on the counter.

"Smith Hall, Sergeant in Command."

Thereupon the board summoned relator to show cause before them why his license should not be revoked as prescribed by said section. The relator appeared and protested against further proceedings, on the ground that the board had no jurisdiction, and that the complaint preferred alleged no violation of the excise law. These objections were overruled by the board.

*

GROVER, J.1 * * The counsel further insists that section 8 is unconstitutional, for the reason that it authorizes the conviction of a party of a crime without a trial by jury. But it authorizes nothing. more than an inquiry into and determination of the question, whether the party licensed continues to be a suitable and proper person to sell intoxicating liquors, the statute itself determining that a violator of the excise laws, while holding a license, is not such a person. That

1 Only a portion of the opinion of Grover, J., is printed.