Digis anstructi Katto umpign= act wrongfully done, in addition to the existing right of mandamus; the burden of proving such incompetency and inconsistent conduct as a question of fact, shall be upon the defendant. But the provisions of this act shall not be construed to apply to the position of private secretary or deputy of any official or department, or to any other person holding a strictly confidential position.' It is apparent that the legislation culminating in the act of 1894 has nothing primarily to do with what is called the "civil service system." It was intended to create a privileged class, entitled to preferential employment in subordinate positions in the public service, the foundation of the preference being meritorious service as soldiers and sailors in the war for the preservation of the Union. The original act, which provided for a preference only in the original appointment or employment, but gave no security of tenure, was supplemented in this respect by the amendment of 1894. The legislation as it now stands not only gives a preference in public appointments and employments to Union soldiers and sailors, but makes the appointees irremovable, except upon the particular grounds specified. The removal clause was intended to prevent interference with their tenure for political or partisan or personal reasons. But the statute recognized the principle that incompetent persons, or those whose conduct was inconsistent with the discharge of their duties, should not be retained in the public service, however meritorious their prior service may have been. The statute operates as a limitation upon the power of removal, which must be observed by the officers or body having the appointing power, and it enacts special remedies for its violation. In the present case the removal was made for the cause specified in the statute, and nothing appears upon the record tending to show that the power was not exercised in good faith, and in the public interest. The claim that the relator was entitled to prior notice and hearing is not supported by any language in the act. If he was so entitled, it results from some general rule of law implied from the fact that the power of removal was not unrestricted, but could only be exercised for the causes specified. It is important to notice the scope of such an implication, if it exists under the statute in question. The act applies to employés of every grade in the public service or on the public works of the state, and the cities, towns, and villages thereof. The preference is given, not only in clerical or other subordinate positions, but to every person seeking public employment as a laborer on the canals, or on the streets of a city, or in any capacity, however humble. If employment once secured can only be terminated after a notice and hearing, and something akin to a formal adjudication upon evidence, the system would become almost intolerable. Many things difficult to define in words, which show incompetency in an employé, or disregard of his duty, and which would justify dismissal in the mind of a reasonable employer, would often elude a malfead: u &c. Pf was removed wo asset of cause, ne or hearg. Rehoval upheld, of Ra removal had been for any of the specified causes the or Evs have been intitled to n thearin But sunce n: thearg wasnt from expresumes removal was for some other cause than those specified escnice Flis specific did not exclude indirectly the Pres: ponisto remove a porn inherent in the it to appt unless limited by Const- or stat. It reg splam language to take taway " 3/6 .. The effect of el four of for removal for the specified causes is to require 183 no cheang in their care Ch. 4) NOTICE. formal investigation. There are many statutes on the statute book 377 See 2 mich P63. 2 Wellougby Consthan $698 rather stran ed constin The acts cognate to the act of 1894, viz. chapter 119 of the Laws Prior that req of 1888 and chapter 577 of the Laws of 1892, restricting the power of no rhearg course of legislation, and the scope of the act of 1894, we are of opin- Omuss signefet ion that the Legislature intentionally omitted to insert a similar pro- We concur in the conclusion of the General Term that the Legis- The order should be affirmed. All concur. Order affirmed." Cathaw of on Calif Const. XX§ 4, 10, 11, 16 Cw. Serv.haw Stats 1913. pp 1035. esp 37. appl = to be under act §14. Tenure. Nesheargrey § 26 Inconsistentacts rel repealed. 69 6 STATE v. LAMOS. (Supreme Court of Maine, 1846. 26 Me. 258.)' A complacet when rego must be re TENNEY, J. The defendant is charged in the indictment with the writ et forth offense of presuming to be and of being a common innholder, be- specifically the tween the 1st day of June and the time of finding the bill at the term charges & the time according to law, and without being duly authorized therefor. It of the allegesach of the court holden in October, 1843, without being licensed therefor was admitted by the defendant that he carried on the business of a 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). " Const willed p. of removal in Gov. give to auch of a copy of the charges anoppy of hergheard whis defence Held of this contr complied with Cheon inquire into merits for treydonor concern thecto, indonuch as Rottitke s. to decide whether 4. and he removed. & the responsy for art deces" rest solely upon the You" Breen concurring held Gous act fol a esormushacqhduyn Gelarge af øre muscon duch n2 (summons) the arg. Charge mus the of some achamity to be misconduct ich en etsingy into foro jon necesse hasnt to exanune into nature reliaracter of the charge in order to see whether it is many proper sense a charge at all in the meangu, Const Rul 184 ADMINISTRATIVE POWER AND ACTION. (Part 1 the offense was alleged to have been committed, with the restriction The defendant not being charged with any other offense than that 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 Reas. 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 ༣.་ + Bded revoke Mid • leceuse for unprofess! conduct. To revoked on a complacul charge that he had been arrested, charged in a police cte dislubrity abscene literat that when the case was called he forfeited his to put up for his appearance, that headmilled both No2. deed complacul insuffer 5 Woods Namum 85/639. In staty procee of accus" ofprivety to remove curl or complacch is puffet of it states the acts constituty the offence in clear ordmaz & concise language, in sus manner as to enable a person of common understand to know what is intended" 646. of 681824 Ch. 4) NOTICE. therein stated that the undersigned, being a major part of the li- The board found the defendant guilty of not keeping the Wad- 10 PEOPLE ex rel. SHUSTER v. HUMPHREY et al. cum. notall Polireman Fried for making an illegal arrest. So notified Appeal from Supreme Court, Appellate Division, Second Depart-ismesst!! found ment. Application by the people, on the relation of Adam Shuster, for a guilty of the charge writ of certiorari against William A. Humphrey and others, Com-competency missioners of Police of the City of Poughkeepsie. From an order ryg to decems the of the Appellate Division, made by a divided court (22 App. Div. odid. 632, 48 N. Y. Supp. 1112), affirming a dismissal of relator from the police force of the city of Poughkeepsie, he appeals. Reversed. On certiovarian VANN, J. On the 15th of April, 1895, the relator was appointed afferm of order of a patrolman of the city of Poughkeepsie, after passing the civil serv- dismissal was 47 See, also, State v. Kellogg, 14 Mont. 426, 36 Pac. 957 (1894); Lillien- reversed. 1. Complaint must set forth facts who constitute an offence charge of destroying a heapless foetus with intent to destron the same & conceal its berth does not do this. Descentyofin wfm. The complaint is suffet in Rusca - after, 9 indictments had been found is of ingros for sell. ing liquor to minowed ordered here to show cause why his liceusd shis the readded for selly, reaux sold to menows whist wine beer- thus stated the god for revocats "with sufficient curtain ty to suable the fren to understand the god on the fo wherever and hearked. Sectrical accuracy ratrey 3. Complant charged of with viol- of ord: 20+ further that he had sold begror to menors Insuff Ord 20 meluded's detalles. Wh was ofthed with, also na A "I specified Charge 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 evi Treedrew head mndence was given tending to show that he made an arrest, without a Hus charge 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 Bd head ponse to dismiss for breach city have power "to punish any member of the police force on convic fdisceptive & but other lessgo penalties might be inflicted tion 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 neces'sarily 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 |