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court only on the implied condition prescribed by the principles of eternal justice, that he hears the party accused. He cannot legally act upon such an occasion without some evidence being adduced to support the charges, and he has no authority to remove for matters unconnected with inability or misbehavior; and where evidence has been given in support of them we think we cannot inquire into the amount of evidence or the balance of evidence, the Chancellor acting within his jurisdiction, being the constituted judge upon this subject.” In Williams v. Bagot, 3 B. & C. 786, Mr. Justice Bayley said: “It is contrary to common justice that a party should be concluded unheard.” The case of The Queen v. The Archbishop of Canterbury, 1 El. & El. 545, arose under a statute which enacted that curate, whose license shall have been revoked by the bishop, might “appeal to the archbishop of the province, who should confirm or annul such revocation as to him shall appear just and proper.” An appeal was taken to the archbishop, who, without giving the appellant an opportunity to be heard, confirmed the revocation. Lord Campbell said: “No doubt the archbishop acted most conscientiously, and with a sincere desire to promote the interests of the church, but we all think that he has taken an erroneous view of the law. He was bound to hear the appellant, and he has not heard him. It is one of the first principles of justice, that no man should be condemned without being heard." Mr. Justice Wightman said “that, ex debito justitiae, every one has a right to be heard before he is condemned."

An act of Parliament gave authority to the bishop to decide, upon affidavit or upon his own knowledge, whether or not the duties of the parish had been inadequately performed, in consequence of the negligence of the incumbent, and whenever it shall so appear to his satisfaction he could, by certain proceedings, appoint a curate in place of the incumbent. The bishop, proceeding upon his own knowledge, without notice or an opportunity afforded to the incumbent, adjudged that the duties of the vicarage of the parish were inadequately performed by reason of the vicar's negligence, and proceeded to appoint another person to the place. The incumbent refused to surrender to the new appointee. Lord Lyndhurst held that the language of the act imported inquiry, and a judgment as the result of that inquiry. He said: “He is to form his judgment. It is to appear to him from affidavits laid before him; but, is it possible to be said that it is to appear to him and that he is to form his judgment from affidavits laid before him on the one side, without hearing the other party against whom the charge of negligence is preferred, which is to affect him in his character and in his property! That he is to come to that conclusion,

? without giving the other party an opportunity of meeting the affidavits by contrary affidavits, and without being heard in his own defense—without having an opportunity even of being summoned for that purpose—as in the present instance; there being no summons, for the action was proceeded in immediately, without any intimation whatever from the bishop of his intention to proceed, to the party against whom that requisition proceeds.” And he further held that when the bishop proceeded, “on his own knowledge, the same course of proceeding is necessary, because a party has a right to be heard for the purpose of explaining his conduct; he has a right to call witnesses, for the purpose of removing the impression made on the mind of the bishop; he has a right to be heard in his own defense.” Capel v. Child, 2 Cr. & J. 558.

' The line of authority is not by any means exhausted, but enough cases have been cited to show that the action of the Governor in this case cannot be upheld as a legal and proper exercise of the power conferred upon him. 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 carefully examined the authorities cited upon the brief of the learned counsel for 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. In what I have said upon the law of this case I have not cast the least imputation upon the motives of the executive. The same presumptions of good faith and honest desire to act within legal and constitutional limits are accorded to him as to either of the other co-ordinate branches of the government, and his motives are not the subject of criticism. I have no doubt that he acted under the impression that he was entirely within the line of his duty as well as of law, and that he believed that the removal of respondent was demanded by the best interests of the public service.

Be that as it may, the relator has not made out a case for the intervention of the court, and judgment must be entered for respondent.


Prepared by F. W. SCHENK
Librarian, Law School, University of Chicago

(The figures refer to those at the foot of the pages.)

Abandonment, of office by an officer, effect of, 393.
of office held by a public officer,
constitutional provision against impairment of obligation of con-

tract does not apply, 265, 393.
effect of, 265, 392, 393.
Abutting Owners, 177, 225, 226.
compensation of,

for additional burden to land, 226.

for vacation of street, 225.
have no right to,

lateral support from street soil, 225, 226.

project buildings or part thereof over street line, 226.
municipal ordinance imposing on, the repairing of streets, invalid,

when, 177.
rights of, 225, 226.
of public office, 306, 307.

compulsory, when, 306, 307.
evidence of, 306.

England, 306.

United States, 306, 307.

presumed, when, 306.
Act of God,
excuses carrier from liability from loss or damage to goods in trang-

portation, 73, 75, 79, 80.
suspension of service by carrier on account of, 108.
of deliberative assemblies,

effect of, on pending business, 430.
equivalent to dissolution, when, 430.
motion to adjourn, 429, 430.

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