State, ex rel. Att'y Gen'l, v. Smith.

indicate that they were understood from the adoption of the constitution to apply only to offices named therein. For instance, the first legislature elected under the constitution, in 1877, provided for a commission to revise the laws of the state, to be appointed by the governor without the consent of the senate. In 1879 the legislature created what is known as the fish commission, the members of which were to be appointed by the governor with the consent of the senate. In 1883 the legislature authorized the governor to appoint a superintendent, etc., for the hospital for the insane without the consent of the senate. In 1885 the governor was authorized to appoint a superintendent of the census, also an inspector of bees and honey in each county, without the consent of the senate, and a live stock commission to be confirmed by the senate. These, and many other acts, might be cited, as showing the understanding of the different legislatures that the constitutional provisions in question were to have no application to offices created by law. We are unable to believe, when viewed in the light of twelve years of legislative and judicial history, under the constitution, that it was ever intended as a restriction upon the power of the legislature over officers not within the contemplation of the men who framed it or the people who adopted it. Police commissioners of Omaha are in one sense state officers, since they are charged with a duty in the interest of the public at large. But so far as their appointment, government and removal were concerned, at the time of the adoption of the constitution, they were essentially municipal agents, and not state officers. To our minds, therefore, to hold that such officers are within the constitutional prohibition is neither a necessary nor reasonable construction thereof.

There is still a more cogent objection to the decision in Wilcox v. People, viz., it is in conflict with the course of decisions in this state. In State v. Seavey, 22 Neb., 454, it was, in effect, held that the constitutional provisions in

State, ex rel. Att'y Gen'l, v. Smith.

question did not apply to these particular officers, hence it was not essential to a valid appointment that it should be with the consent of the senate. The case of Douglas County v. Timme, 32 Neb., 272, we regard as decisive of the question. The provision under consideration in that case was section 16, article 3, of the constitution, which, in terms, provides that the compensation of no public officer shall be increased or diminished during his term of office. It was held that the above provision applies only to offices created by the constitution. The foregoing conclusion is in harmony with State v. Kalb, 50 Wis., 176, cited in the opinion of the present chief justice. The reasoning of the courts in the cases named must control in this.

We come now to an examination of some of the provisions of the charter of the city bearing upon the question at issue. In addition to the provision for removal of fire and police commissioners in section 145, it is provided by section 172 as follows:

"Sec. 172. The power to remove from his office the mayor or any councilman or other officer mentioned in this act in any city of the metropolitan class, for good and sufficient cause, is hereby conferred upon the district court for the county in which such city is situated; and whenever any two of the city councilmen shall make and file with the clerk of said court the proper charges and specifications against the mayor, alleging and showing that he is guilty of malfeasance or misfeasance as such officer, or that he is incompetent or neglects any of his duties as mayor, or that for any other good and sufficient cause stated he should be removed from his office as mayor, or whenever the mayor shall make and file with the clerk of said court the proper charges and specifications against any councilman or other officer mentioned in this act, alleging and showing that he is guilty of malfeasance or misfeasance in such office, or that he is incompetent, or neglects any of his duties, or that

State, ex rel. Att'y Gen'l, v. Smith.

for any other good and sufficient cause stated he should be removed from his office, the judge of such court may issue the proper writ requiring such officer to appear before him, on a day therein named, not more than ten days after the service of such writ, together with a copy of such charges and specifications upon such officer, to show cause why he should not be removed from his office. The proceedings in such case shall take precedence of all civil causes and be conducted according to the rules of such court in such cases made and provided, and such officer may be suspended from the duties of his office during the pendency of such proceedings by order of said court."

It is urged by counsel for respondent that the above provision is exclusive and should be construed as a limitation upon the powers of the governor, and that he is authorized to remove the officer above named only upon a trial and finding by the district court. To this proposition we cannot assent. The governor is, by section 145, empowered to remove these particular officers for a specific cause. This special provision is not in conflict with the general provision for removal of officers of the city. The question, however, to which most prominence is given by counsel is that of the power of the governor to remove without giving the officer an opportunity to be heard in his defense. It is claimed by relator that the removal of an officer is a purely executive act, and therefore the governor may remove without charges, serving notice, or hearing of any kind.

Before referring to the contention of the respondent we will examine some of the authorities relied upon by the relator in addition to Wilcox v. People, supra.

State v. McGarry, 21 Wis., 496, is substantially as follows: The county board were, by a special provision applicable to M. county only, authorized to remove the inspector of the house of correction for incompetency, improper conduct, or other cause satisfactory to the board, which

State, ex rel. Att'y Gen'l, v. Smith.

cause should be particularly assigned in writing and entered upon the minutes of the board, with the yeas and nays upon a vote of removal. It was held that the board might remove ex parte without notice or a hearing of any kind. Chief Justice Dixon in the opinion of the court says: "The only question of judicial cognizance is whether the board has kept within the jurisdiction or whether the cause assigned is a cause for removal under the statute."

In Keenan v. Perry, 24 Tex., 253, the plaintiff was removed by the governor, as superintendent of the asylum for the insane. The law provided for his removal for incompetency, misconduct, and refusal to discharge the duties of his office. It was held that the law invested the governor with exclusive power to remove, and that his action was final and conclusive. This case, however, appears to be inconsistent with a later case in the same court, which will be noticed hereafter.

In Wright v. Defrees, 8 Ind., 298, it was held that the power of the executive to remove an officer for a given cause implies power to judge of the existence of such cause, and the power being vested exclusively in the executive, cannot be controlled in the exercise of any other branch of the government.

In State v. Doherty, 25 La., 119, the same reasoning is used as in the last case, with the same conclusion.

In Att'y Gen'l v. Brown, 1 Wis., 442, it is held that where the law authorizes the removal of an officer for cause or upon notice, in the absence of express authority for an appeal or review, the courts have no authority to inquire into the grounds for removal. But in that case the governor was expressly authorized to remove the commissioner when he should believe that the best interests of the state demanded such removal.

In People v. Stout, 19 How. Pr. [N. Y.], 171, the term of office was not fixed by law, and the mayor was authorized to remove with the consent of the board of aldermen.

State, ex rel. Att'y Gen'l, v. Smith.

In Territory v. Cox, 6 Dak., 501, there is an able and exhaustive discussion of the character of the power of the executive to remove officers, concluding with the opinion that it is purely executive and in no sense judicial. The judgment of the court is, however, placed upon the statute which provides for an examination of the accounts of all public officers charged with the disbursement of public money. The examiner is required to report to the governor any failure of duty by financial officers when he (the governor) is authorized in his discretion to take such action for the public security as the exigencies of the case demand. It was held that the executive had authority in his discretion to remove the trustees of an asylum for the insane upon the report of an examination of their accounts by the public examiner.

In Eckloff v. Dist. of Columbia, 135 U. S., 240, the commissioners, by statute, had power to abolish any office, reduce the number of employes, remove from office, etc. The only contention in that case was that the unrestricted right above was 'subject to the limitation of a prior act of congress, but the court held that the prior act had been superseded by the law first above mentioned.

It is contended on the other hand that the governor has no power under the charter of the city to remove the respondent without, first, specific charges; second, notice of such charges; third, an opportunity to be heard in his own defense. Sustaining this proposition are two classes of authorities, as will be hereafter noticed. One class holding that the determination of the existence of cause for removal is a function of the judiciary, and that, as a condition to removal by the executive, the incumbent is entitled to have the question determined by the courts. The others hold that the executive is possessed of limited judicial functions, and that he has power to determine the question of cause for removal.

In Page v. Hardin, 8 B. Mon. [Ky.], 648, the constitu