but the board was not bound to do so. It might have proceeded to order his removal ex parte, and without notice to him, and without any examination of witnesses, formal or otherwise. The justice or injustice of the proceeding are not matters which can be examined here."

The case of State v. Hawkins, reported in 44 Ohio St. 98, and 5 N. E. 228, was a proceeding in quo warranto. The facts, briefly stated, are that Morton L. Hawkins, Julius Reece, and William A. Stephens were on April 4, 1885, appointed police commissioners for the city of Cincinnati by its board of public works; that they entered upon their duties as such commissioners, and continued to act as such until February 3, 1886, when they were removed by the governor of the state; and the relator asks for a judgment of ouster. The defendants Hawkins and Reece filed a joint, and the defendant Stephens a separate, answer. The answers admitted the appointment and removal, and that the defendants continued to exercise the powers of police commissioners, but they deny that they had been lawfully removed, or that the governor had power to do so. On the question of the power of the governor to hear and determine the charges against the defendants, it is held: "In answer to the information, it is claimed by the respondents that the governor had no power to remove them; and, again, if he had, it was not properly exercised. The first claim is upon the assumed ground that the power conferred on the governor by that statute to remove any of them for official misconduct is judicial in its nature, and, though conferred by the act, cannot be exercised, as the judicial power of the state is by section 1, art. 4, of the constitution conferred upon the courts of the state only. This is not to be regarded as an entirely new question. has been much discussed by the courts and writers, without being able to formulate any general rule upon the subject. What is judicial power cannot be brought within the ring fence of a definition. It is undoubtedly power to hear and determine; but this is not peculiar to the judicial office. Many of the acts of administrative and executive officers involve the exercise of the same power. Boards for the equalization of taxes, of public works, of county commissioners, township trustees, judges of election, viewers of roads, all, in one form or another, hear and determine questions in the exercise of their functions, more or less directly affecting private as well as public rights. It may be safely conceded that power to hear and determine rights of property and of person between private parties is judicial, and can only be conferred on the courts. Merrill v. Sherburne, 1 N. H. 199. But such a definition does not necessarily include this case. The incumbent of an office has not, under our system of government, any property in it. His right to exercise it is not based upon any contract or grant. It is conferred on him as

It

a public trust, to be exercised for the benefit of the public. State v. Hawkins (Ohio) 5 N. E. 232. Such salary as may be attached to it is not given because of any duty on the part of the public to do so, but to enable the incumbent the better to perform the duties of his office by the more exclusive devotion of his time thereto. Official duties may, and in some instances are, imposed and required to be performed by the citizen, without any compensation whatever, where there is no constitutional provision requiring it. A public office and its creation is a matter of public, and not of private, law. The legislature had the power to provide for the creation of a board of police commissioners for cities of the grade and class of Cincinnati. This power carried with it, as an incident of its exercise, the power to provide a mode of removal, unless restrained by some provisions of the constitution to the mere act of providing for the appointment of members of the board, which is not the case. * * The power has been frequently and wisely exercised; and, so far as we can learn, has never been questioned in the courts. This section does not in terms extend to officers of municipal corporations, and for the obvious reason that, as already stated, such officers have no recognized existence in the constitution. They are to be created and provided for by the legis lature. Now, is there any room for doubt that the legislature may, in providing for the organization of cities and villages, adopt the policy of the constitution contained in this section, in providing for the removal of such municipal officers as it may, in the exercise of the power granted, provide shall be elected or appointed by cities and villages? Surely, it may be inferred that if the removal of a county or township officer, for cause, does not involve the exercise of "judicial power," within the meaning of section 1, art. 4, and that it may be reposed elsewhere than in a court, there is the fullest warrant for saying that the same is true as to the removal of municipal officers, created by the legislature. The view here taken will be found sustained, not only by the decisions of this court, but also by those of other states of weight and respectability. In State v. Harmon, 31 Ohio St. 250, the nature of judicial power was considered by Judge White. The case involved the validity of the power conferred by statute upon the senate to hear and determine the contested election of a judge. It was argued with much ability and earnestness by counsel for the respondent that such power could not be conferred on that body, citing and relying on section 1, art. 4, in connection with section 32, art. 2, of the constitution; the former conferring judicial power on the courts, and the latter prohibiting the exercise by the legislature of any such power not expressly conferred. But the court held that the power conferred on the senate was not 'judicial power,' within the meaning of section 1, art. 4. The following is a part

of the language used by Judge White in delivering the opinion of the court: "That the senate is not a court established under the judicial article of the constitution is plain. Hence, if the trial of contested elections is necessarily the exercise of 'judicial power,' within the meaning of that article, authority to try such cases cannot be conferred upon the senate.' "The distribution of powers among the legislative, executive, and judicial branches of the government is, in a general sense, easily understood; but no exact rule can be laid down, a priori, for determining in all cases what powers may or may not be assigned by law to each branch. What constitutes "judicial power," within the meaning of the constitution, is to be determined in the light of the common law and of the history of our institutions as they existed anterior to and at the time of the adoption of the constitution. Whether power in a given instance ought to be assigned to the judicial department is ordinarily determinable from the nature of the subject to which the power relates. In many instances, however, it may appropriately be assigned to either of the departments. It is said authority to hear and determine a controversy upon the law and fact is judicial power. The authority to ascertain facts, and to apply the law to the facts when ascertained, appertains as well to the other departments of the government as to the judiciary. Judgment and discretion are required to be exercised by all the departments. The exercise of the power of eminent domain, vested in county and township boards and in corporations, is not the exercise of "judicial power," within the meaning of the constitution; while the exercise of the same power by the courts, if vested in them, would be judicial.' * * * It is claimed that a distinction should be taken in the cases where the power of appointing and removing are reposed in one and the same person, and where it is reposed in different persons. We are aware that this distinction exists in the facts of some of the cases, but we are not aware that any distinction in principle has been based upon it. Whether the person removed was or was not appointed to his office by the official that is vested with the power to remove cannot, as we see, change the essential character of the power of removal. It is also claimed that a distinction should be taken between the case where an appointment to an office is made to be held by the appointee at the pleasure of the appointing power, and where it is with a provision for removal for misconduct. But there is none in principle, so far as the right to remove is concerned. The office, in either case, is held subject to the terms upon which it was created, and the mode of removal prescribed. As it may be so created as that the incumbent shall hold at the pleasure of the appointing power, then, for a stronger reason, the appointment may be made to depend upon removal for cause, irrespective of where the

power to remove may be lodged. The manner of filling and vacating the office being unaffected by constitutional provisions, the manner prescribed by the legislature must prevail in either case. It is a strange sort of logic which reaches the result that the office may be accepted in the manner prescribed by the legislature, and the mode of removal rejected."

In Wilcox v. People, 90 Ill. 186, the court hold: "It being found that the power of removal existed in the governor, the inquiry remains whether it was validly exercised. Relators say not; that the power granted was judicial in its nature, and should have been exercised according to judicial methods, -that is, there should have been a specific charge, notice of it, opportunity for defense and hearing, and proof to support the charge. Undoubtedly, the governor can only remove for some one of the causes specified; but the removal here was for one of these causes,incompetency. The governor ascertained the existence of the cause here, and made the removal on account of it. The constitution is silent as to who shall ascertain the cause of removal or mode of its ascertainment. It simply gives to the governor the power to remove any officer whom he may appoint, in case of incompetency, etc. It follows, then, that it is with the governor, who is to act in the matter, to determine himself whether the cause of the removal exists, from the best lights he can get; and, no mode of inquiry being prescribed for him to pursue, it rests with him to adopt that method of inquiry and ascertainment as to the charge involved which his judgment may suggest as the proper one, acting under his official responsibility; and it is not for the courts to dictate to him in what manner he shall proceed in the performance of his duty, his action not being subject to their revision."

In Warner v. Myers, 4 Or. 72, the court, discussing this question, say: "The principal question of fact to be ascertained in this proceeding is, what was the decision of the board of canvassers? To whom did that board award the certificate of election? It was the duty of that board to decide that question in the first instance, and the correctness of its decision cannot be inquired into in this proceeding. Its decision, although erroneous in point of law or fact, must stand until reversed and set aside by a competent tribunal, and in a proceeding where its correctness may be inquired into."

Throop, in his work on Public Officers, after a thorough review of all the authorities, announces the true rule to be: "Courts will not interfere if the moving body is vested with discretion. * It is well settled

that, where the removing officer or body is vested with discretion in the particular case, the courts will not interfere with the exercise of that discretion. Thus, as was stated in a previous section, where an officer is removed because his services are no longer needed, or

to diminish the expenses, or for similar reasons, resting in the discretion of the removing authority, he has no remedy in the courts. So, where the proceedings have been taken in accordance with the statute, and the cause alleged is one for which the officer may be removed, but the proof shows that the delinquency was in a small matter, it is for the removing officers to determine whether the delinquency was sufficiently grave to require the removal; and the courts will not interfere because the punishment seems to be disproportionate to the offense. So, where the charter of a city provided that the officers of the fire department should retain their positions as long as they discharged their duties properly and satisfactorily to the fire commissioners,' and should not be removed for political sentiments, etc., it was held that the statute vested the fire commissioners with the sole power to determine whether a cause for removal had occurred; that the matter rested in their own discretion and judgment, which could not be reviewed by an appeal to any other tribunal; and that a mandamus to restore a removed officer will not lie where the power of removal rests in discretion, or depends upon the exercise of personal judgment, even if it was exercised maliciously or dishonestly; but in the latter case the commissioners will be answerable for corrupt action. So the courts will not review the exercise of a power of removal where, in the opinion of the board vested with such power, the misconduct was sufficient for removal, except in the clearest case of abuse.' Power of removal 'for cause' vests discretion. So it has been held that where a statute gives a power of removal 'for cause,' without any specification of the causes, this power is of a discretionary and judicial nature; and, unless the statute other wise specially provides, the exercise thereof cannot be reviewed by any other tribunal, with respect either to the cause, or to its sufficiency or existence, or otherwise. Under similar statutory provisions, and even in some cases where the statute specifies the cause of removal, it has been ruled, in other American decisions, that the removing authority is the sole and exclusive judge of the cause and the sufficiency thereof; and the courts cannot review its decision in any case where it had jurisdiction." Sections 394, 396.

A late case, Trimble v. Phelps, decided by the supreme court of Colorado, and reported in 34 Pac. 981, was an action for the usurpation of the office of police commissioner of the city of Denver. The relator, Phelps, had been appointed by the governor of the state, by and with the advice and consent of the senate, police commissioner of the city of Denver. He was afterwards removed by the governor, and Trimble appointed to fill the vacancy. Judgment was rendered in the district court for the relator, and the respondent appealed the case to the supreme court. The statute under which the governor acted is comparable to that of our own territory.

* *

Chief Justice Hayt, after considering the various questions raised, uses the following language in conclusion: "Experience has demonstrated that the power of removal must be lodged somewhere, and the fact that the power exists, and may be exercised as occasion requires, carries with it the possibility that the power may not always be wisely used; but if this is to be taken as a conclusive argument against the power, it applies as well to all investiture of authority, and would overthrow government itself. * In this instance the cause stated does not import any wrongdoing to the officer, and, while it may not be such as would have had weight with the court, it was deemed sufficient by the governor, and his judgment is final and decisive. The office of police commissioner is created by the statute. It was accepted by the relator under the conditions imposed by the act, among which was that the incumbent should hold it subject to removal by the governor for cause. Under the statute, the cause that may be sufficient to warrant removal is to be determined by the governor; and, no mode of inquiry being prescribed, he is at liberty to adopt such mode as to him shall seem proper, without interference on the part of the courts. The governor was not bound to examine witnesses under oath or otherwise, although it was eminently proper that he should do so. He might have resorted to other means of ascertaining whether a cause of removal existed; and the refusal to allow counsel is not fatal to the governor's action, as he might have proceeded ex parte. The governor having determined that a sufficient cause for removal existed, and having exercised the power confided to him, relator is without remedy in this proceeding. It is the duty of the courts to uphold the executive power as it has been conferred by the legislature."

We think from the foregoing authorities it is very plain that the hearing and removal by the governor of the defendant was not such a hearing as would bring it within the constitutional prohibition. That the authorities may be readily ascertained, we give a partial list: State v. McGarry, 21 Wis. 496; State v. Prince, 45 Wis. 610; Donahue v. Will Co., 100 Ill. 99; Warner v. Myers, 4 Or. 72; State v. Common Council, 9 Wis. 254; State v. Frazier, 48 Ga. 137; Patton v. Vaughan, 39 Ark. 211; Ex parte Ramshay, 18 Adol. & E. (N. S.) 173; State v. Johnson (Fla.) 11 South. 845; Dullam v. Wilson (Mich.) 19 N. W. 112; Taft v. Adams, 3 Gray, 126; Ex parte Wiley, 54 Ala. 226; Daugan v. District Court Lake Co., 22 Am. Law Reg. (N. S.) 528; State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228; State v. Peterson (Minn.) 52 N. W. 655; State v. Stevens, 46 N. J. Law, 344; State v. Peelle, 124 Ind. 515, 24 N. E. 440; People v. Whitlock, 92 N. Y. 191; Ex parte Hennen, 13 Pet. 256; Throop, Pub. Off. §§ 394, 396; Ewing v. Turner (Okl.) 35 Pac. 951; State v. Harmon, 31 Ohio St. 250.

A line of reasoning that would render a statute a dead letter when otherwise it would effectuate the purpose intended is certainly unsound. If, as the defendant avers, the courts must determine the cause of removal, the statute conferring upon the governor that power would be useless. as a judgment of a court of competent jurisdiction would vacate the office, and then, as a matter of course, the governor could fill the vacancy, unless the further contention of the defendant that, even if thus empowered, he is still powerless to fill a vacancy without the advice and consent of the territorial council, be true. Our statutes, however, are so plain upon the right of the governor to fill the vacancy, that we are surprised that any contention should be raised upon this proposition. By the removal of the defendant, it must follow, ipso facto, the office of superintendent of public instruction and ex officio auditor became vacant. Section 5878 of the Statutes of 1893, as stated, provided that when a vacancy shall occur in the office of the territorial superintendent of public instruction, by death, resignation, or otherwise, the governor shall appoint as soon as practicable some person to fill the vacancy, and that the person receiving such appointment shall qualify as required by law before entering upon the discharge of the duties of the office, and shall hold his office until his successor is appointed and qualified; and section 5975 provides that, in case a vacancy should occur in any territorial office when the legislative assembly is not in session, the governor shall make a temporary appointment until the next session of the legislature, when he shall nominate some person to fill such office, and, if confirmed by the council, the person so nominated shall hold the office during the remainder of the term, and until his successor shall be appointed and qualified. Section 5976 declares that the governor shall have power to remove any officer so appointed by him, in case of incompetency, neglect of duty, or malfeasance in office. and may then fill the same as provided in cases of vacancy. When a vacancy shall occur in the office by death, resignation, or otherwise, the governor shall appoint some person to fill the vacancy. It will hardly be contended that, after defendant was removed, the office was not vacant. If the office was vacant, how can it be said in reason that the governor had not the power to fill the vacancy? This proposition is so plain that it would be useless for us to discuss it further. There is nothing in our organic law repugnant to the power of the governor to hear and determine the charges against a public officer where the legislature confers upon him the power of removal; and, in the absence of such a provision, the enactment must prevail. The legislative assembly created the office of territorial superintendent of public instruction and ex officio auditor, and it would be strange reasoning to hold, in the absence of any constitutional

prohibition, that the legislative assembly could not also designate when the term of office should expire, the salary be changed, or the cause of removal. The defendant accepted the office under the statutory provision creating it, and accepted the salary as provided by the legislature, but now objects to the statutory provisions relating to his removal. Can he blow both hot and cold,accept the one, and reject the other; take that which pleases him, and reject that which does not, when both come from the same source? It seems to us, clearly not. The legislative assembly evidently in their wisdom recognized that perhaps some official might prove unworthy of their trust, and provided speedy means for their removal. Shall this court now say that they did not have any right to do so? If the law is constitutional,-and we think it is, we must lend it our assistance when those aggrieved present themselves. Not being a legislative body, we can only interpret and aid in the enforcement of the law as enacted. think the law a wise one, and the enactment a rightful subject of legislation. It protects the bondsman of dishonest officials, as well as the public service, and provides a plain, speedy remedy to relieve a corrupt official of his trust. Its policy or wisdom, however, is not with the court, but the legislature. Our organic and statutory law obliges the governor to see that the laws are faithfully executed; and, in removing an officer for incompetency, neglect of duty, or malfeasance, he acts under his official oath to support, protect the constitution and laws, and is responsible to the people for the faithful execution of his high office; and, whether wisely or unwisely administered, the source of such responsibility is the same.

We

(Supreme Court of Idaho. Oct. 29, 1894.) INFORMATION-MOTION TO QUASH.

Motion to quash information on the ground that the court had no jurisdiction to try defendant, for the reason that the law had not been complied with in the arrest and preliminary examination of defendant, must be made before plea or trial, or the same is waived. (Syllabus by the Court.)

Appeal from district court, Kootenai county; J. Holleman, Judge.

Dennis Collins was convicted of assault with intent to commit murder. A motion in arrest of judgment was sustained, and the state appeals. Reversed.

Geo. M. Parsons, Atty. Gen., and Chas. W. O'Neil, Dist. Atty., for the State. C. L. Heitman, for respondent.

SULLIVAN, J. The respondent was arrested and tried for the crime of assault with intent to commit murder, and convicted of the crime of assault with a deadly weapon, whereupon a motion in arrest of judgment was made, and sustained by the court, from which order this appeal was taken. The ground of the motion in arrest of judgment was that the court had no jurisdiction to try the defendant, for the reason that the law had not been complied with in his arrest and preliminary examination. The facts as to the arrest and preliminary examination are substantially the same as the facts in State v. Clark (Idaho) 35 Pac. 710, and on the authority of that case the judgment of the trial court on said motion ought to be reversed, and it is so ordered.

HUSTON, C. J., and MORGAN, J., con

cur.

(104 Cal. 49)

BEAN v. STEINMAN et al. (No. 19,396.) (Supreme Court of California. Oct. 10, 1894.) In bank.

On rehearing. Denied.

For opinion on appeal, see 37 Pac. 777.

PER CURIAM. Rehearing denied.

BEATTY, C. J. I concur in the order deaying a rehearing of this cause; but, as the latter part of the opinion heretofore filed is capable of misconstruction, I wish to explain that I do not understand it to decide that the largest augmented head of water to which the plaintiff is entitled is to be measured by a cumulation of his two-fortleths for 10 days. Under the covenant of Stoneman, the plaintiff's predecessors had the right to demand water for irrigation as often as once in 10 days, but they were not bound to take it that often; and if it appears that the practice has been to take it at longer intervals, and in correspondingly larger heads, and if it also appears that by so doing the plaintiff can irrigate to greater advantage, and without laying an unjust burden upon the defendant, the plaintiff should be allowed to take the water in the manner most beneficial to him, and the defendant is bound to provide the means of discharging into the head of the ditch the larger augmented head required.

been fixed, a party to the contract, who had no title to the land he contracted to convey, and who has placed himself in such a position that he cannot acquire title, cannot object to the tender of the deed by the other party because made on condition that he pay the amount fixed by the contract as the value of the land to be conveyed by him.

3. In ejectment, where defendant claims that plaintiff agreed to convey him the land in exchange for other land, the judgment roll in a creditors' action against defendant to have a deed by him of his land declared void is admissible to show that defendant is unable to convey his land.

Commissioners' decision. Department 2. Appeal from superior court, Los Angeles county; William P. Wade, Judge.

Action of ejectment by Aaron W. Royal against G. L. Dennison and others. Judgment was rendered for plaintiff, and defendants appeal. Affirmed.

E. C. Bower, for appellants. Geo. W. Knox, for respondent.

HAYNES, C. In ejectment to recover possession of a certain house and lot in the city of Los Angeles. The answer, after denying the averments of the complaint, for a sep arate answer and equitable defense alleged, in substance, that in August, 1887, the de fendant G. L. Dennison purchased the demanded premises from the plaintiff, and as the consideration thereof agreed to convey to the plaintiff four certain lots in or near the city of Pasadena, and prior to the commencement of the action had tendered to plaintiff a deed for said lots, and demanded from plaintiff a deed of the demanded premises, and prayed for a specific performance of the agreement. The action was tried by the court. Findings were duly filed, and judgment for the plaintiff was entered thereon, and this appeal is by the defendants from the judgment and an order denying their motion for a new trial.

The findings are very full, and cannot be inserted in this opinion, but an outline of the facts found may be thus stated: In August or September, 1887, the plaintiff and the defendant G. L. Dennison made a verbal agreement whereby plaintiff agreed to sell to Den nison a house and lot on Courthouse street in the city of Los Angeles, at a valuation of $4,000, to be paid for by the conveyance of four lots in "Dennison's subdivision of Fair Oaks Avenue Park tract, in the Rancho San Pasqual," said lots to be taken at a valuation of $1,000 each. Dennison shortly afterwards went into possession of the house and lot. At the time of the agreement the survey and subdivision of Dennison's land had not been completed, but in January, 1888, plaintiff selected and marked upon the map the four lots described in the answer. No time was ever agreed upon when the mutual conveyances were to be made. At the time said agreement of exchange was made G. L. Dennison did not have title to said four lots, but held a contract of purchase of &