by a competent tribunal after notice to the person charged, and when all the proceedings.prescribed by law have been followed.234 (b) Distinctions between an office and employment. The principles governing removal from office in respect to notice and hearing do not apply where the character of service is a mere employment and not an office unless the employe is protected by civil service rules which govern both the manner of his selection and discharge.25 Where the power to employ at pleasure exists, the power fire commissioners for "sufficient cause" means "legal cause" and must be one that affects the administration of the office. State v. Brown, 57 Mo. App. 199; State v. St. Louis Police Com'rs, 88 Mo. 144; Cleary v. City of Trenton, 50 N. J. Law, 331, 13 Atl. 228; McChesney v. Inhabitants of Trenton, 50 N. J. Law, 338, 14 Atl. 578; State v. Miller, 3 N. D. 438, 57 N. W. 193. The authority vested in the governor "to take such action for the public security as the exigencies demand" will not warrant a removal from office of the trustees of a public institution. Johnson v. City of Galveston, 11 Tex. Civ. App. 469, 33 S. W. 150. An assault with a pistol is not such misconduct in office as will warrant a removal. People v. McAllister, 10 Utah, 357, 37 Pac. 578; State v. Common Council of Watertown, 9 Wis. 254. 234 Board of Aldermen v. Darrow, 13 Colo. 460, 22 Pac. 784; People v. Therrien, 80 Mich. 187, 45 N. W. 78; Dullam v. Willson, 53 Mich. 392; Burt v. Iron County Sup'rs, 108 Mich. 523, 66 N. W. 387. A notice to officers charged with incompetency need not extend to specific instances. Kriseler v. LeValley, 122 Mich. 576, 81 N. W. 580. The notice must be sufficient in form and contents and properly signed to be effectual. State v. Peterson, 50 Minn. 239, 52 N. W. 655; State v. Common Council of Duluth, 53 Minn. 238, 55 N. W. 118; State v. City of St. Louis, 90 Mo. 19; State v. Smith, 35 Neb. 13, 52 N. W. 700, 17 L. R. A. 440; Keenan v. Goodwin, 17 R. I. 649, 24 Atl. 148; State v. McCarty, 65 Wis. 163. 235 City of Chicago v. Luthardt, 91 Ill. App. 324. The chief clerk of a municipal detective bureau is under the protection of the Illinois Laws 1895, p. 88, regulating the civil service of cities and cannot be removed except for cause upon writ ten charges and after an opportunity to be heard in his defense. People v. Plimley, 1 App. Div. 458, 37 N. Y. Supp. 152; People v. Cruger, 17 App. Div. 483, 45 N. Y. Supp. 519; People v. Constable, 27 App. Div. 74, 50 N. Y. Supp. 121; People v. Coler, 40 App. Div. 65, 57 N. Y. Supp. 636; People v. Brady, 43 App. Div. 60, 59 N. Y. Supp. 322; Van Valkenburgh v. City of New York, 49 App. Div. 208, 63 N. Y. Supp. 6; People v. Shea, 51 App. Div. 227, 64 N. Y. Supp. 973; People v. Scully, 56 App. Div. 302, 67 N. Y. Supp. 839; People v. Scully, 35 Misc. 613, 72 N. Y. Supp. 123; People v. Kearny, 36 Misc. 717, 74 N. Y. Supp. 391; People v. Dalton, 159 N. Y. 235, 53 N. E. 1113; People v. Brady, 166 N. Y. 44, 59 N. E. 701, reversing 53 App. Div. 279, 65 N. Y. Supp. 844. to discharge without cause or arbitrarily must necessarily follow,236 controlled only by the general principles of law relative to the making of a contract of employment." 237 (c) Dismissal from office or its abrogation not a removal. The rules regulating removal from office as it is commonly as well as technically understood, do not apply where the power of arbitrary dismissal exists or where the loss of official position results from an abolition of the office, the lack of funds with which to carry on a particular work or business or the completion of the particular work in the performance of which a person was engaged.238 Ordinarily, the power conferred upon public officials to reduce the number of subordinate officers or employes because of lack of funds or work cannot be exercised for the mere purpose of creating a vacancy to fill which the appointment of some other person will be necessary. The dismissal or removal under such circumstances must be made in good faith.239 § 636. Right to a notice and hearing. Where removals for cause are authorized by statute, the mere commission of the act warranting a removal will not justify action without giving notice to the party charged with the commission of the offense and a reasonable opportunity to be heard.20 This 236 Osborn v. Common Council of Detroit, 111 Mich. 362, 69 N. W. 644; People v. Brookfield, 13 Misc. 566, 34 N. Y. Supp. 674, construing N. Y. Laws 1892, c. 577; People v. Cram, 15 Misc. 12, 36 N. Y. Supp. 1117; People v. Murray, 5 App. Div. 288, 39 N. Y. Supp. 227; Sheehan v. City of New York, 21 Misc. 600, 48 N. Y. Supp. 662; Langdon v. City of New York, 92 N. Y. 427; People v. Constable, 27 App. Div. 774, 50 N. Y. Supp. 121; In re Goodwin, 30 App. Div. 418, 51 N. Y. Supp. 355; Ryan v. City of New York, 154 N. Y. 328, 48 N. E. 512. 237 State v. City of New Orleans, 107 La. 632, 32 So. 22; People v. Palmer, 6 App. Div. 19, 39 N. Y. Supp. 631. 238 People v. Health Dept., 24 Wkly. Dig. (N. Y.) 197; People v. French, 25 Hun (N. Y.) 111; People v. Fire Com'rs, 72 N. Y. 445; Phillips v. City of New York, 88 N. Y. 245; Langdon v. City of New York, 92 N. Y. 427. 239 State v. Schumaker, 27 La. Ann. 332; People v. French, 25 Hun (N. Y.) 111. 240 Benson v. People, 10 Colo. App. 175, 50 Pac. 212; People v. Denman, 16 Colo. App. 337, 65 Pac. 455; State v. Smith, 72 Conn. 572, 45 Atl. 355; Avery v. Studley, 74 Conn. 272, 50 Atl. 752. The right of a hearing does not necessarily include the right to appear by counsel. Todd v. Dunlap, 99 Ky. 419, 36 S. W. 541; State v. City of New Orleans, 107 La. Ann. 632. The giving of notice may be waived by vol right of notice and defense may exist independent of statutory provisions.241 Where the legislature has provided for the giving of notice and the right to a hearing, these are essential to the legal removal of a public officer.242 $637. Cause for removal. The cause for removal, where one is necessary to effect this result, may be either prescribed by law,243 or it may be one which untary appearance. People v. Common Council, of Auburn, 85 Hun, 601, 33 N. Y. Supp. 165; People v. La Grange, 2 App. Div. 444, 37 N. Y. Supp. 991; State v. Hewitt, 3 S. D. 187, 52 N. W. 875, 16 L. R. A. 413; Rutter v. Ter., 11 Okl. 454, 68 Pac. 507; Poe v. State, 72 Tex. 625, 10 S. W. 737; Kimball v. Olmsted, 20 Wash. 629, 56 Pac. 377. 241 Brown v. Duffus, 66 Iowa, 193; State v. Leisure, 42 Kan. 272, 21 Pac. 1070; Lynch v. Chase, 55 Kan. 367; State v. Walbridge, 119 Mo. 383, 24 S. W. 457; State v. Markley, 55 N. J. Law, 107; Armatage v. Fisher, 74 Hun, 167, 26 N. Y. Supp. 364; State v. Shannon, 7 S. D. 319, 64 N. W. 175. Borough of Cape May Point, 55 N. People v. Grady, 26 App. Div. 592, 50 N. Y. Supp. 424; In re Nichols, 57 How. Pr. (N. Y.) 395; State v. Hoglan, 64 Ohio St. 532, 60 N. E. 627. The misconstruction of a statute in regard to which there may be a reasonable difference of opinion is not such incompetency or misconduct as to warrant a removal. Maroney v. City Council of Pawtucket, 19 R. I. 3, 31 Atl. 265; State v. Kirkwood, 15 Wash. 298, 46 Pac. 331. The objection that charges are not sufficiently specific cannot be raised after a public officer has gone to trial upon them as preferred without raising this objection. 242 In re Fire & Excise Com'rs, 19 Colo. 482, 36 Pac. 234. Construing Denver City charter, § 45 (Colo. Laws 1893, p. 172), and holding that under this section a governor has the power to remove the fire and police commissioners of the City of Denver upon the filing in writing of a cause not political and without instituting any investigation of a judicial nature. Following Trimble V. People, 19 Colo. 187, 34 Pac. 981; Lease v. Freeborn, 52 Kan. 750, 35 Pac. 817; Todd v. Tilford, 99 Ky. 449, 36 S. W. 541; Wheeler v. Fire Com'rs, 46 La. Ann. 731, 15 So. 179; Miles v. Stevenson, 80 Md. 358, 30 Atl. 646; Attorney General V. Berry, 99 Mich. 379; Markley v. 468; Miller v. Smith, 7 Idaho, 204, 243 Thurston v. Clark, 107 Cal. 285, 40 Pac. 435. A sheriff cannot be removed during his second term for offenses committed while serving a first term under Penal Code, § 772, relative to the removal of officers for a violation of duty. Trimble v. People, 19 Colo. 187, 34 Pac. 981; People v. Martin, 19 Colo. 565, 36 Pac. 543, 24 L. R. A. 201; Trustees of Town of Gillett People, 13 Colo. App. 553, 59 Pac. 72; Shaw v. City of Macon, 19 Ga. V. 244 is indictable, or still further, one which while not indictable, is of such a grave character, considering the administration of gov ernment, as to warrant the action of removal.245 The latter class would include acts of general insubordination, the negligent performance of public duties or such an attitude or course of conduct, either in respect to matters concerning private life or opinions, as for reasons of public policy, will justify a removal.246 Generally 61 Pac. 824; Ponting v. Isaman, 7 Idaho, 283, 62 Pac. 680. The collection of illegal fees under Rev. St. 7459 is ground for the removal of a public officer. Randolph v. Pope County Board, 19 Ill. App. 100; State v. City of Noblesville, 157 Ind. 31, 60 N. E. 704; McComas v. Krug, 81 Ind. 327. A statute providing for removal from office for intoxication is valid under the constitutional provision for the removal of public officers on account of crime, incapacity or negligence. Attorney General v. Jochim, 99 Mich. 358, 58 N. W. 611, 23 L. R. A. 699. The members of a board of state canvassers, who are required by law to make and certify to a statement of the votes cast at an election, are guilty of gross neglect of duty such as to warrant a removal in signing without examin ation a clerk's statement of the votes cast on a constitutional amendment. Minkler v. State, 14 Neb. 181; In re Smith, 48 App. Div. 634, 63 N. Y. Supp. 1018. Under N. Y. Laws 1897, c. 414 § 313, a village officer interested in a contract with a village is liable to removal. It will be no justification that he acted in good faith and received no more on his contract than other contractors for doing the same work. State v. Sullivan, 58 Ohio St. 504, 51 N. E. 48; Bradford v. Ter., 2 Okl. 228; State v. City of Ballard, 10 Wash. 4, 38 Pac. 761. 244 Woods v. Barnum, 85 Cal. 639, 24 Pac. 843; State v. Ragsdale, 59 Mo. App. 590. A conviction under Mo. Rev. St. 1889, § 3732, will effect a forfeiture of a public office without further proceedings. Tyrrell v. Common Council of Jersey City, 25 N. J. Law (1 Dutch.) 536. Receiving bribes by common councilmen is sufficient ground for removal under a charter power to remove for disorderly conduct. People V. Brady, 48 App. Div. 128, 62 N. Y. Supp. 603; Brackenridge v. State, 27 Tex. App. 513, 4 L. R. A. 360. 245 Donahue v. Will County, 100 Ill. 94; Ayers v. Hatch, 175 Mass. 489, 56 N. E. 612; People v. Fire Com'rs, 12 Hun (N. Y.) 500; People v. City of New York, 19 Hun (N. Y.) 441; People v. Nichols, 79 N. Y. 582. 246 Avery v. Studley, 74 Conn. 272, 50 Atl. 752; People v. Blair, 82 Ill. App. 570. The neglect of a mayor to nominate a city marshal will not justify the council in removing him. State v. Welsh, 109 Iowa, 19, 79 N. W. 369. Voluntary intoxication while engaged in the performance of an official duty is ground for a removal. Loper v. State, 48 Kan. 540, 29 Pac. 687; Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; McPherson v. State, 59 Kan. 57, 51 Pac. 910. The wrong. ful withdrawal of money from a it is not necessary to warrant removal where provision is made. for this by law for cause that the official charged with the misconduct or misfeasance in office should have been indicted for the offense or convicted upon an indictment if found.24 county under a bounty law is official misconduct and will warrant a removal from office, and a subsequent return of the money is no defense. Rogers v. Morrill, 55 Kan. 737, 42 Pac. 355. The removal of a regent of the state university was properly made when, during his term of office, he was addicted to the use of intoxicating liquors and where in other respects his conduct and example was detrimental to the best interests of the univer sity. Com. v. Williams, 79 Ky. 42. In Kentucky, intoxication is not held "misfeasance in office" and a statute declaring it such and providing for the removal of an officer is unconstitutional. State v. Doherty, 25 La. Ann. 118; State v. Rost, 47 La. Ann. 53, 16 So. 776. The question of whether an official possessing the power of removal acted improperly and without cause will not be reviewed by the courts. State v. Bourgeois, 47 La. Ann. 184. A technical disregard of laws under the advice of counsel in good faith will not warrant a removal. State v. Cannon, 47 La. Ann. 278, 16 So. 666, reversing 15 So. 626. A failure to pay over promptly all moneys collected consists a misconduct in office justifying a removal. Townsend v. Common Council of Sauk Centre, 71 Minn. 379, 74 N. W. 150. The refusal of a mayor to sign an order for the pay ment of property purchased by the city upon the ground of financial condition is not such a disregard of 247 duty as to authorize the council to remove him for cause. State v. Taylor, 93 Mo. App. 327, 67 S. W. 672. A state of intoxication while in performance of an official act or duty will warrant removal from office under Mo. Rev. St. 1899, § 2334. State v. Walbridge, 69 Mo. App. 657; Stewart v. Bole, 61 Neb. 193, 85 N. W. 33. Where a county clerk permits election ballots committed to his official care to be abstracted from his office, it is sufficient official misconduct to warrant his removal from office. People v. Common Council of Auburn, 85 Hun, 601, 33 N. Y. Supp. 165; In re Guden, 71 App. Div. 422, 75 N. Y. Supp. 794. A promise to appoint one as his counsel in the event of his election to a public office is sufficient ground for a removal under Const. art. 10, § 1. Cameron v. Parker, 2 Okl. 277, 38 Pac. 14; State v. Alcorn, 78 Tex. 387; State v. Burke, 8 Wash, 412, 36 Pac. 281; Nehrling v. State, 112 Wis. 637, 88 N. W. 610. The use of public funds for the purchase of personal books and for paying freight bills on personal property is a "misdemeanor" and also "incompetency" as contemplated by Wis. Laws 1882, c. 328, § 7. 247 Kilburn v. Law, 111 Cal. 237; Daily V. Freeholders of Essex County, 58 N. J. Law, 319; Francis v. City of Newark, 58 N. J. Law, 522; Cavenaugh v. Freeholders of Essex County, 58 N. J. Law, 531; Horan v. Board of Education, 58 N. J. Law, 533; State v. Archibald, |