to a committee, [366] which seems to have been long used in the Corporation of London, known as the 'Officers' and Clerks' Committee;' and what they were directed to do was to make enquiry, with reference to the alleged complaint, to take evidence and to ascertain the truth of it, not for the purpose of that committee coming to any judgment or decision themselves, but for the purpose of their report being submitted to the mayor, aldermen and commons, in order that they might come to a judgment upon it. The argument of the learned counsel is erroneous in point of fact. That has not taken place which they allege to have taken place, and therefore there was no delegation."

And p. 340, Lord Colonsay says: "I quite agree with the observation made by the learned Baron, that there was no violation of the rule of delegation in this case. The mode adopted was the mode in which such enquiries are ordinarily considered, and necessarily conducted by such a tribunal. What was the course which was stated to have been requisite? It was that after this committee had made their report, if they did make such a report, there should have been an assembling of the common council, there should have been a prosecutor appointed, and there should have been a new trial, with all the formalities of a criminal trial, before they could have arrived at a conclusion. But the committee of enquiry into this matter, having made their enquiry in the ordinary way, having collected their evidence in the ordinary way, and allowed the party who had been present at the collecting of that evidence, to state his case by counsel, I cannot conceive a more fair mode of proceeding."

The criticism of the case of Osgood v. Nelson, supra, which has been attempted by petitioner's counsel, that it is of no weight as authority here, because the power of the Court of Common Council of London to remove officers may have been derived from prescription or custom or other obscure source is not warranted by the facts; since it clearly appears at large in the opinions, that its powers of amotion were derived from express statutory authority; and its [367] procedure was fully approved as having afforded a full and fair opportunity to the officer charged with misconduct to be heard in his defence.

Certain other cases are cited on behalf of the respondents, relating to certain rules of police commissions in New York City, where by such rules, adopted by the commissioners under their general discretionary powers to adopt rules for the conduct of the police' department, it was provided that upon charges made against a member of the police, testimony might be taken before one commissioner or a deputy, and reported to the commissioner or board of commissioners, who should there

upon give a hearing to the accused party, and who alone could convict and punish. It has been frequently held that such rules were a proper exercise of discretion vested in the commissioners under the law, and that the evidence so taken before one commissioner could properly be submitted to and considered and acted upon by the full board of commissioners, although the witnesses were not produced before them. See People v. Board of Police, 93 N. Y. 97, 103; People v. Board of Police, 98 N. Y. 332, 335; People v. Board of Police, 99 N. Y. 676, 2 N. E. 151; People v. Greene, 183 N. Y. 483, 486, 76 N. E. 614.

We cite these cases simply to show that it has been found to be a reasonable rule, in relation to inquiries by a board of public officials, into charges of misconduct, that the evidence may be taken before one of such officials and reported to the board for their action; and that it is not the right of the accused person under such circumstances, that all of the witnesses must be examined before the full board. Such a recognition of what is reasonable in such cases, is of some weight in determining whether the petitioner in this case has had a fair opportunity to be heard in his defence.

We find no case cited on behalf of petitioner which supports his contention upon this point.

In Jacksonville v. Allen, 25 Ill. App. 54, the procedure seems to be substantially the same as in the case at bar up to the time that the officer under investigation was [368] notified to be present at a meeting of the city council if he saw fit and be heard in his defence. The case shows that he did appear and was not given the opportunity which the notice to appear offered him. It was the failure of the council to give him this opportunity which was the deciding factor in the case. The court expressly makes this the issue, at page 56: "That issue, strictly speaking, was whether the appellee was discharged without a hearing before the city council, and this leads to a statement of the real matter in controversy, which is whether the city council has power to discharge a regular policeman without giving him an opportunity to be heard in his defence." The test in this case is not, did the council in person take the testimony against the officer under investigation but, did the officer under investigation have an opportunity to be heard by the council in his defence.

In Andrews v. King, 77 Me. 224, the irregularities upon which the court bases its decision were that the charter required that the hearing be by the mayor and aldermen; that the hearing was held by the aldermen alone without the mayor and was not according to law; it also appeared that there was no determination or judgment upon the facts before sentence was passed. No hearing was had before a committee and the question here under discussion was not raised.

Charles v. Hoboken, 27 N. J. L. 203, is simply an authority to the same effect that if the power of removal is vested in the mayor and council, it may not be exercised by the council alone.

People v. Hamilton, 84 App. Div. 369, 82 N. Y. S. 884, involved the attempted removal of a docket comparing clerk in the office [369] of the county clerk of New York County. The proceedings for removal were taken under statutory authority before a deputy clerk who heard the evidence and himself had power to remove. He reported the evidence to the county clerk, who had not heard the witnesses; and who made an order of removal giving him any opportunity to be heard. The removal was held to be illegal on grounds which have no special bearing here. It was held that the deputy clerk who heard the evidence should have acted in the matter of removal.

No case in this state has passed directly upon this question. In Maroney v. Pawtucket, 19 R. I. 3, 31 Atl. 265, it appeared that charges of misconduct having been made against the petitioner, an assessor of taxes of the city of Pawtucket, the city council appointed a committee "to give a full, fair and impartial hearing to all parties in interest and to report to the city council the results of such hearing." The committee made a report to the city council and the testimony taken by the committee was read to the board of aldermen and common council assembled in joint convention. On the same day the city council passed a vote finding the petitioner guilty of misconduct in office and removing him from his office. Under the charter of the city of Pawtucket, "The city council may by concurrent vote of three-fifths of the members elected to each board remove from office for incapacity or misconduct any officer elected or appointed by them." The court said: "Though notice was given to the petitioner of the taking of the testimony before the committee of the city council appointed for that purpose, the record does not disclose any notice to him of the proceeding before the council for his removal from office, so that he could be heard on the question of his removal. Without such opportunity to be heard the proceeding was not such a trial as is contemplated by Clause 7 of the charter of Paw

tucket. For this reason, we are of the opinion that the proceeding must be quashed.” It will be noted that the court does not condemn that part [370] of the procedure which involves the taking of testimony before a committee of the city council, but places its objection to the proceedings solely upon the fact that the petitioner had no opportunity to appear before the council and be heard on the question of his removal after the committee had reported; an opportunity which was given to the petitioner in the case at bar and of which he refused to take advantage.

We are clearly of the opinion that the method of procedure adopted in this case was a reasonable and proper method, on the part of the city council, of gathering the evidence and bringing it before that body for its consideration and determination. It is not to be expected or required that a body like the city council, which has under the charter important legislative and administrative functions in the conduct of the affairs of the city and the members of which are men of business necessarily requiring time for their own affairs, should sit as a whole for the purpose of listening to all the witnesses produced in the course of a protracted investigation of this character; while it is proper that they should do so, if they see fit, in our opinion, the method of reference to a committee, to take the evidence and report, was an orderly and proper method well calculated to arrive at just results and in fact gave to the petitioner a better opportunity to present all of his evidence and to be heard at length thereon than would have been possible if the whole city council had sat as a body during all of the forty-three hearings. The language of Cockburn, C. J., quoted in the case of Osgood v. Nelson (supra) 41 L. J. Q. B. (Eng.) 329, at p. 333, is quite appropriate in this connection: "It is true that the Court of Common Council did not themselves hear the evidence, but that arose from the circumstances of the case. Where there is a tribunal of some 360 persons, you cannot expect them to sit down altogether whilst a long enquiry of several days goes on. But the facts of the case must be submitted in some way to those who have decided it; and the evidence having been printed and circulated [371] amongst all the members of the council, we must take it that those gentlemen did not come to the council to discharge so important a function as that of determining on the dismissal from his office of a gentleman like Mr. Osgood without having examined that evidence so submitted to them." It is contended on behalf of the petitioner that although the respondents have brought before this court the numerous printed volumes of testimony taken before the committee,

and which were placed before the members of the city council prior to the time when the petitioner had his opportunity to appear and be heard, such testimony is no part of the record before this court, although certified with the record by the city clerk. It is true that it has been held by this court that, upon proceedings in certiorari, the evidence taken before the inferior tribunal forms no part of the record proper and that "the purpose of certiorari is to correct errors of law, and not to review findings of fact." Maroney v. Pawtucket, 19 R. I. 3, 31 Atl. 265; Smith v. Burrillville, 19 R. I. 61, 63, 31 Atl. 578, and in accordance with these views we have not examined said testimony with any purpose to review findings of fact. But it is apparent from the allegations of the petition that the charges against the petitioner were of a substantial character, and that if they were found to be true they furnished ample ground for the action of the city council in his removal from office for misconduct; and it is further apparent from an examination of the record which does include the report of the committee and all the proceedings before the city council that there was material evidence of a substantial character, in support of the charges, taken before the committee and by them placed before and considered by the city council, upon which the city council was justified in finding the defendant guilty. We have looked into the proceedings so far as to assure ourselves that the city council, in exercising its jurisdiction of removal acted upon serious and substantial grounds, supported by competent evidence, and that there was just and reasonable cause for their [372] action. Keenan v. Goodwin, 17 R. I. 649, 24 Atl. 148; O'Brien v. Pawtucket, 20 R. I. 49, 37 Atl. 302, 530; Osgood v. Nelson, supra. When, after due notice to the petitioner, the city council as a whole met in special session for the express purpose of giving to the petitioner the hearing to which he was entitled under the general principles recognized by all the cases cited, it is. to be presumed that they were acting in good faith and that they intended to give him the fullest opportunity to be heard; he might then, if he saw fit, either by counsel or individually have criticised the testimony and pointed out its weaknesses, or mistakes if any; he might have offered material assistance to the members thereof in the examination and consideration of the testimony. If he was not satisfied that they had given all necessary examination to the evidence before them, then was his opportunity to see that they did so, and to place the matter of his defence before them in such light that they would be compelled to give it consideration. But he saw fit to refuse the opportunity, relying upon his general protest denying their jurisdiction;

and it is too late for him now to complain of the result. We are not to assume, as the petitioner urges us to do, that the city council did not examine or consider the evidence submitted by the committee; rather, in view of the plain terms of the final resolution, we are to assume that they did consider the evidence in accordance with their duty; and did make their findings in accordance therewith. We are of the opinion that the city council did all that it was legally bound to do in the premises and that no ground exists for any interference with their action.

The appeal from the judgment of the Superior Court denying the writ of mandamus (in the first case) is dismissed, the judgment of the Superior Court is affirmed and that case is remanded to the Superior Court for further proceedings.

The reported case holds that a body vested with the power to remove a public officer may appoint a committee to conduct the hearing and take the evidence, and may base its own action on the evidence reported by that committee. That holding finds support in Osgood v. Nelson, L. R. 5 H. L. (Eng.) 636, 41 L. J. Q. B. 329, discussed at length in the reported case, and in the recent case of State v. Milwaukee, 157 Wis. 505, 147 N. W. 50, wherein,' in reviewing the removal of a tax commissioner by a municipal council, the court said: "The relator claims he was denied a hearing in two respects: First, because the evidence was not taken before the common council, but before a committee thereof, and second, because he was denied the right to be heard by the common council by attorney before it acted upon the report of the committee. The first challenge of the regularity of the proceedings we hold not well taken. It is a familiar practice in legal proceedings to refer the taking of evidence to a referee or person other than the court and to report such evidence as well as the conclusions of the referee or person taking the evidence thereon to the court to act upon. Evidence so taken, reported, and acted upon by the court must in contemplation of law be deemed taken before the court. The necessity of so taking testimony by courts is quite apparent to those conversant with judicial proceedings. Much more so was there a necessity for the appointment of a committee to take the evidence in this proceeding. Over four hundred print

ed pages of testimony are reported to this court, the taking of which, with intermissions, required weeks of time. It was not practicable for all the members of the common council to devote so much time to it. All the evidence taken was read to the common council before it acted upon the report of the committee. It must therefore, in contemplation of law, be deemed to have been taken before the common council, and that in this respect the proceeding was regular." In Rutter v. Burke (Vt.) 93 Atl. 842, the holding in the reported case was discussed without a definite decision thereon, the court saying: "The case against the commissioners was evidently presented to the city council on the theory that the evidence taken by the aldermanic committee as shown by the transcript was available in the further hearing. The right of a city council to remove for cause upon evidence taken and reported by a committee, if certain requirements have been complied with, is sustained by Chace v. Providence, 36 R. I. 331, 89 Atl. 1066, a Rhode Island case decided in 1914 on a full review of the authorities. The petitioner in that case objected that he was tried and found guilty by a committee, that the council simply accepted and acted on their report, without any evidence having been placed before it or taken by it, and that he had a right to have the witnesses for and against him produced and examined before the city council itself. The court considered that this claim of right was without foundation in reason or authority, that the taking of evidence by an authorized committee to be acted upon by the whole body was a reasonable and proper procedure, and that no special statute or ordinance was needed to give it validity. The court supported its position by quoting freely from Osgood v. Nelson, 41 L. J. Q. B. (Eng.) 329, a case relating to the powers of the court of common council of London, the final decision of which was by the House of Lords. But if we were to adopt the doctrine of these cases it would not avail the petitionees. If the testimony taken by the committee was to be used in the hearing before the council, it was necessary that the commissioners have the same notice of the proceeding and the same presentation of charges that were required for a hearing by the council in the first instance. There is nothing to show that any notice was given or charges served. There is nothing that would justify us in assuming that Mr. Kidder represented the commissioners before the committee. It is true that he spoke several times as if the commissioners were coming in later, and announced near the close of the hearing that they were not coming in, There is nothing in this that carries any implication of an authority to represent."

In accord with the holding of the reported case it has been held that a body having the power to remove a municipal employee may delegate to one of its number the taking of evidence. People v. Board of Police, 93 N. Y. 97; People v. Board of Police, 98 N. Y. 332; People v. McClave, 123 N. Y. 512, 25 N. E. 1047. A contrary view was taken in Jacksonville v. Allen, 25 Ill. App. 54; but in People v. Chicago, 234 Ill. 416, 84 N. E. 1044, a statute authorizing the appointment by the civil service commission of a trial board to hear proceedings for removal was sustained, the court saying: "As we understand the ruling of the trial court on the proposition of law in question, it was held that the part of section 12 of said Civil Service act which authorizes the civil service commission to allow the investigation to be conducted before an officer or board appointed by it, rather than by the commission itself, was a delegation of judicial power and therefore unconstitutional. If the civil service commission, in hearing such charges, would not exercise judicial functions, it is difficult to see how it delegates judicial functions to the board or officer designated to investigate the charges, when such board or officer exercises no greater power in the investigation than would the commission itself. Indeed, this trial board did not exercise as great a power as the commission, as it only had authority to hear the charges and recommend action, subject to approval or disapproval by the commission. Said section 12 specifically provides that these investigations may be conducted by such boards or officers, and the reasoning of this court in People v. Kipley, 171 Ill. 44, and Chicago v. People, 210 Ill. 84, is conclusive as to the constitutionality of this provision.”

of taxation can be validly exercised only for

a public purpose, etc.

[See 16 Am. St. Rep. 365.] Municipal Corporation Operate Ice Plant,

Power to

Const. art. 224, provides that the taxing power may be exercised by the General Assembly for state purposes and by parishes and municipal corporations and public boards, under authority delegated by the General Assembly for parish, municipal and local purposes strictly" public in their nature. Held, that the word "strict" was used in the sense of exact; accurate; precise; undeviating; governed or governing by exact rules; and "strictly" as in a strict manner; closely, precisely, rigorously; stringently; postively; and that the construction and maintenance of a municipal ice plant by a small city operating a municipal waterworks and electric lighting system was not "strictly" a public activity, and could not be maintained by the exercise of the taxing power.

[See note at end of this case.] Taxation Purpose of Tax Constitutes Public Service. The term "public service," within the rule that taxes can be laid only for public purposes, is not fulfilled by an activity whereby the private interests of many individuals are fulfilled; the test in general being whether the objects or purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal.

The term "police power" has a meaning coextensive with sovereign power or sovereignty. As understood in American constitutional law, the term denotes the power of the state to impose those restraints on private rights which are necessary for the general welfare of all, and is but the power to enforce the maxim, "Sic utere tuo ut alienum non lædas." It is the power to regulate the business of others, and not a power to go into business.

[See 6 R. C. L. tit. Constitutional Law, p. 183.]

Appeal from Fourth District Court, Parish of Lincoln: HOLSTEAD, Judge.

Action to annul ordinance and for injunction. Union Ice and Coal Company, plaintiff, and Town of Ruston, defendant. Judgment for defendant. Plaintiff appeals. The facts are stated in the opinion. REVERSED.

Barksdale & Barksdale for appellant.
S. D. Pearce and F. W. Price for appellee.

[899] PROVOSTY, J.-The town council of the town of Ruston having adopted an ordinance providing for the purchase and installation of an ice manufacturing plant, to be operated in connection with its water and electric light plant for the production of ice

to be sold to the inhabitants of the town, the plaintiff company, and ice-manufacturing company, which had theretofore been furnishing ice to the town, brought this suit, in its quality of a taxpayer, to annul the ordinance, and enjoin its execution.

The ordinance is said by plaintiff to contravene articles 46, 58, 227, 263, 270, and 287 of the state Constitution; but, while these grounds are not waived in the argument, [900] they are evidently not insisted on with any great confidence in their merit. The main ground, to which the bulk of the brief of plaintiff is devoted, and to which we shall confine ourselves, is that the cost of said icemanufacturing plant is proposed to be paid in part out of revenues derived from taxation; and that the power of taxation can be exercised only for public purposes; and that the manufacturing of ice by a town for sale to the inhabitants of the town is not a public purpose.

Act No. 3, p. 128, of 1912, amending act No. 136 of 1898, provides as follows:

"The mayor and board of aldermen of every city and town owning, maintaining and operating either municipal waterworks or electric light system or both shall have the additional power to install, own, maintain and operate in connection with such system, an ice-making plant for the purpose of supplying its inhabitants with ice, and to prescribe the rates at which ice shall be supplied to its inhabitants."

There is no question, therefore, but that the town had authority to adopt said ordinance, if the conferring of such authority was within the power of the Legislature.

As we understand the argument of the learned counsel for the defendant, it is that the Legislature "may do everything which the state Constitution does not prohibit." This is not true. In addition to the limitations contained in the federal and state Constitutions, there are those limitations which inhere in the nature of our form of government; such as that the power of taxation can be validly exercised only for a public purpose. But, for finding this particular limitation, it is not necessary, in this state, to go outside of the Constitution, for its article 224 provides as follows:

"Art. 224. The taxing power may be exercised by the General Assembly for state purposes and by parishes and municipal corporations and public boards, under authority granted to them by the General Assembly, for parish, municipal, and local purposes, strictly public in their nature."

[901] The several Constitutions of this state prior to that of 1879 contained no restriction upon the taxation power except those of equality and uniformity. The Constitution of 1879 contained many restrictions. The Constitution of 1898 retained them, and add