poses of such almshouses, and obtain there- The act is not effective until the almsfor the best possible price, and whenever houses are actually abolished, and by section such property shall have been sold and the 1 of the act it is declared that all almsproceeds of the sale received, such proceeds houses "shall be" abolished, their grounds would become a fund to be used for the ex- and buildings sold, and the proceeds shall be clusive purpose of paying pensions provided devoted to the purposes of the act. Evidentfor in the act. The state board of control is ly by the expression "shall be" abolished is given the entire charge of the fund. Evi- meant that they shall be considered abolished dently the proceeds of the sale of all the when the buildings and grounds are actually almshouse buildings and grounds was intend- sold. After this has been done, that is, after ed to be placed in the state treasury in a the buildings and grounds have been sold, separate fund, and paid out only as provided and, therefore, the almshouses are abolished, by subsection (a) of section 2. Such is the a system of pensions is declared to be estabclear meaning, purpose, and intent of the lished. Consequently, by the clear meaning provisions of the act applicable to that sub- of the act, its provisions are not effective unject. til the almshouse buildings and grounds are sold and the proceeds of the sale of the buildings and grounds have come into the entire charge of the board of control, and a pension system is established.

This contention is without merit, because, as I have above shown, every provision of the act clearly points to the subject of "pensions" expressed in the title, and every provision of the act is connected inseparably with that subject. Even a narrow, technical construction, would not exclude any provision of the act, for the reasons urged.

Appellee urges that the act is void for the reason the act proposes to give aid and make donations to the individuals in violation of section 7 of article 9 of the state Constitution. The provision referred to reads: "Neither the state,

* shall ever give

or loan its credit in the aid of, or make any to any individual, association, or corporation. donation or grant, by subsidy or otherwise,

person who prepared the bill for the act, the
language used, which is conclusive on the
courts in arriving at the legislative intent,
will justify only the conclusion that the mon-
ey appropriated by the fifth section of the
act was not intended to be used for the pur-
pose of paying any pension claims, but was
clearly intended to be applied to the purpose
of reducing the special pension fund to mon-
ey, to the end that the act would become
effective as establishing a pension system,
with a fund from which pension claims may
be paid. Conceding, but not deciding, that
the subject of granting pensions to persons,
such as are described in this act, is a valid
exercise of legislative power, then before the
grant takes effect as a grant, dischargeable * *
when any of the designated persons may
bring themselves within the prescribed condi-
tions and establish thereby their right to
take as grantees, the fact must exist that
the fund mentioned in the act, or a sufficient
portion of such fund, has come into exist-
ence; that the fund devoted to that purpose
actually exists. Under the express language
of the act, that fund does not, nor can, exist,
nor the offer of the grant become open to ac-
ceptance by the designated grantee, until the
almhouses shall have been abolished by an
actual sale of the buildings and grounds for
the best price obtainable, and the price re-
ceived is placed in the entire charge of the
board of control.

Such is my understanding of the purpose, meaning and scope of the act in question. The purpose was to provide a system by which designated classes of deserving citizens of the state would mature the right to receive from the state payments in the amounts designated, or to be determined, of money from a designed fund on condition that application therefor was made, and the proper authorities were furnished satisfactory proof that the applicant was one of the designated classes offered the grant; that the act making these provisions for a pension system to be established became effective on December 14, 1914, by operation of law; that the system of pensions provided therein was not intended to become effective as a working system until the almshouses were abolished by means of the sale of the buildings and grounds, and the proceeds of the sale delivered into the state treasury and placed under the entire charge of the board of control; that an amount of money was each year appropriated from the general fund to carry out and put into effect the provisions of the act for the establishing of a system of pensions. The appellee contends that the provisions of the act are not within the fair purport of the subject, as expressed in the title, and therefore such provisions are void under article 4, § 13, state Constitution. The provision referred to is that:

"Every act shall embrace but one subject and matters properly connected therewith, which

This provision of the Constitution has no reference to the matters concerning which the act of December 14, 1914, deals. This act does not propose to give or loan the credit of the state in the aid of, or make donation or grant by, subsidy or otherwise to any individual or any other person. The purpose of the act is to sell state property already devoted to almshouse purposes, and apply the proceeds to the same purposes, but to more restricted classes of persons. Nothing is proposed by the act to be given to any one as a gratuity other than the proceeds of the sale of property already devoted to the same purpose. The other appropriation mentioned is proposed to be used for the legitimate purpose of carrying out and putting into effect the system of pensioning that the act provides shall be established.

Other constitutional objections are suggested as affecting the validity of the act, but upon examination I fail to find them of such importance as to require discussion. They do not have the effect claimed. I have found no constitutional objection to the act in question sufficient to justify a court in holding that the act for that, or any, reason is void.

The serious question presented by the record is whether the provisions of the act, purporting to establish a system of pensions, and providing for their payment, have become effective for that purpose. Until such provisions are effective, neither the state board of control nor county boards of supervisors have power or authority to act in the matter, and all acts done by these boards in the premises are utterly void as done without authority of law.

In order that such provisions become operative, state almshouses, with grounds, must have existed, which are subject to sale by the state within the contemplation of the act. Such buildings and grounds must have been sold and a pension fund established by the proceeds of such sales. The condition precedent to the establishing of a system of pensions is made by the act, the absence of all state almshouses. So long as state almshouses exist, the system of pensions proposed by the act does not come into existence. The

This commonly understood meaning of almshouse is clearly the meaning intended to be conveyed by the use of the word in this act, and would exclude from the operation of the act all public, state, and county charitable institutions which are not primarily

sane, the pioneers' home, county hospitals, institutions for the benefit of the blind, deaf, and mute, and all other institutions established for specific purposes of a like nature, other than primarily for the use of the poor, are not commonly understood as included in the meaning of the word "almshouses," and consequently are unaffected by the act in question.

come abolished is by the sale of the buildings and grounds; and the means by which the system of pensions is proposed to become effective is the pension fund, consisting of the proceeds of the sale of such buildings and grounds. The appellant board does not assert as a appropriated for the use of the poor. Hence defense the fact that almshouses have exist-all institutions such as the asylum for the ined and have been sold and the proceeds of the sales have been placed in its entire charge, except as a conclusion it alleges that these defendants are authorized by said act to approve and authorize the payment of all lawful claims for pensions which may be presented to these defendants under and by authority of said act. This allegation was not treated as an allegation setting forth an issuable fact, and properly it cannot be so treated, yet the appellant thereby asserts a construction of the act which necessarily includes the existence of all such facts as the act requires to confer the authority on the board in enforcing its provisions. The complaint asserts a construction whereby the meaning given to the word “almshouses" in the act includes

We are left to conjecture as to whether in fact almshouses actually existed when the act became effective on December 14, 1914; also, whether the buildings and grounds used for the purposes of almshouses existed and were subject to sale as the property of the state, or have been sold. These are matters of defense; and, as the defendants have failed to assert them, we must presume the facts did not exist. In the absence of the existence of almshouses, buildings, and grounds, subject to sale, no fund could come into existence with which to make effective a pension system, and hence, when the pension claims were considered, approved, and ordered paid, no law was in force in this board of control to order the payment of state authorizing and empowering the state

such claims.

Thus the issue of the meaning of the word "almshouses" as used in the act is presented for solution. The word as used in the act is not defined therein, and the scope of its The conditions precedent to the going into meaning must be determined from the con- effect of the provisions of the act establishtext. The word appears twice in the act. In the first section it is declared that "All alms-ing a pension system have not been shown to have been performed. Consequently those confer no authority on the officers mentioned provisions are dormant, and, while dormant, to enforce them. They lay as general municipal incorporation statutes, local option, and things requisite to be done to make them such like statutes, inoperative until the

houses within the state shall be abolished."

In the second section, it appears in the connection of reference, viz.: "In the absence of

almshouses." No technical use of the word

is apparent; therefore it was intended to have no meaning other than that commonly

given it as understood and defined by lexicographers, viz.: "A house appropriated for the use of the poor; a poorhouse." Webster's Dictionary. By the same authority a "poorhouse" is defined as, "A dwelling house for a number of paupers maintained at public expense."

In Association for Colored Orphans v. Mayor, etc., 104 N. Y. 581, 586, 12 N. E. 279, 281, that court, defining the word as used in a tax statute, exempting from taxation, “every poorhouse, almshouse, house of industry and every house belonging to a company" etc., said:

"The building of the plaintiff comes within the fair meaning of an almshouse which is defined as a house appropriated for the poor. This, certainly, is the case with the building of the plaintiff. It is appropriated wholly for the poor who are colored orphans, and where they are educated * gratuitously."

effective have been done.

I am of the opinion that the act of December 14, 1914, confers no legal authority upon the state board of control to do the things complained of, and therefore the judgment of the court in the premises was right and should be affirmed.

(18 Ariz. 298)

FARISH v. YOUNG, Mayor, et al. (No. 1472.) (Supreme Court of Arizona. June 26, 1916.) 1. MUNICIPAL CORPORATIONS 155-OFFICERS AND EMPLOYÉS-POWER OF REMOVALLIMITATION.

Under Phoenix City Charter, c. 3, § 4, providing that the city manager shall be appointed by the commission and shall hold office until his removal by the commission, the power of removal is as broad as the power of appointment; the only limitation being that it must be for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cause, and cannot be arbitrarily or whimsically | 9. CERTIORARI 50-RETURN-TRANSCRIPT exercised.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 350; Dec. Dig. its sufficiency. 159(1).]

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 350; Dec. Dig. City of Phoenix. From a judgment of the 159(1).] superior court, relator appeals. Affirmed. J. L. B. Alexander and Baker & Baker, all

7. MUNICIPAL CORPORATIONS 159(1)-OFFICERS AND EMPLOYÉS-REMOVAL-NECESSI- of Phoenix, for appellant. Richard E. Sloan TY OF RESOLUTION OR ORDINANCE. and P. H. Hayes, both of Phoenix, for appellees.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 350; Dec. Dig. removal by them as city manager in and for 159(1).]

commission proceeded to hear, and did hear, evidence in support of the charges and continued said hearings from day to day until the 2d day of March, 1915, and, during the hearings, testimony was introduced in support of said charges and in defense of appellant, whereupon the commission took the testimony introduced under consideration, and thereafter, on the 15th day of March, 1915, adopted a resolution removing appellant from the office of city manager of the city of Phoenix for incompetency.

"The city manager shall be appointed by the commission, and shall hold his office until removed for cause by the commission."

This provision of the charter as plainly and unequivocally places the power of removal in the commission as it places the power of There is, appointment in the commission. however, a limitation upon the power of removal-it must be for cause only, it cannot be exercised whimsically or arbitrarily. As was said in Board v. Williams, 96 Md. 232, 53 Atl. 923:

the arbitrary will of the appointing power, for [2, 3] "The phrase 'for cause' does not mean that might be the outgrowth of mere whim, caprice, prejudice, or passion, which would, in reality, be no cause at all. But the phrase "for cause' must mean some cause affecting or concerning the ability or fitness of the incumbent to perform the duty imposed upon him. The cause must be one affecting the officer's capacity or competency, or other kindred disqualification. (2d Ed.) 850. Hence it must be inefficiency, in*** When the right to remove can be exercised only for specific cause, or for cause generally, the appointing power cannot arbitrarily remove the officer, and, where the removal is to be had for cause, the power cannot be exercised until the officer has been duly notified and an opportunity has been given him to be heard in his Ed.] 562g, and note 5); or, as tersely put by the own defense (19 Am. & Eng. Enc. Law [1st Supreme Court of Missouri: 'Where the appointment is during good behavior, or where the removal must be for cause, the power of removal can only be exercised when charges are made against the accused, and after notice, with a reasonable opportunity to be heard before the officer or body having the power to remove. 32 Pa. 478; State v. Bryce, 7 Ohio, 82, pt. 2; Gaskin's Case, 8 Term. R. 209; Field v. Com., Dill. Mun. Corp. (3d Ed.) pars. 250-254.' State v. City of St. Louis, 90 Mo. 19, 1 S. W. 757."

The appellant in his petition for the writ, and also in his argument here, contends that the commission in its order of removal exceeded its jurisdiction and power and acted in excess of its jurisdiction, first, because the city commission had not defined or declared what shall constitute cause for the removal of the city manager by any resolution, ordi-fitness for the office.' 21 Am. & Eng. Enc. Law nance, or order; second, because the city commission did not accept the said charges by ordinance or resolution; and, third, because the city commission had not theretofore provided a procedure by resolution or ordinance to be followed in the hearing of said charges, and did not follow any procedure provided by law in hearing the charges. The writ so granted commanded the appellees to certify and return to the court "a correct transcription of all the proceedings concerning the said dismissal, discharge, and removal from office of the said W. A. Farish had and taken by and remaining before you." The return of the appellees to the writ contained the charges, appellant's answer, rules of procedure, findings, and resolution removing the city manager from office. The appellant moved that the appellees be required to amend their return by including a transcript of the evidence, taken down by a stenographer at the hearing of the charges. This motion was denied.

Upon the record presented by the petition, writ, and return, the court entered judgment in favor of the appellees, holding that they had jurisdiction in the premises and that they did not exceed their jurisdiction. The appellant makes three assignments of error: (1) That the court erred in not requiring the appellees to amend the return by including therein a certified copy of the transcript of the evidence; (2) that the court erred in holding that the city commission did not exceed its jurisdiction, and in holding that it regularly pursued its authority in the premises; (3) that the court erred in its refusal to examine the evidence taken upon the hearing to see whether appellees acted arbitrarily and without any evidence or proof of cause for the removal of appellant.

In Hagerty v. Shedd, 75 N. H. 393, 74 Atl. 1055, the court had under consideration the power of removal under this provision of a city charter:

"The mayor, with the advice and consent of a majority of the full board of aldermen, may remove any member appointed as aforesaid for cause."

It was there said:

*

"If the word 'cause,' as here used, means legal cause, and after notice and hearing, the statute confers judicial powers and means the same as though it read 'for cause, after notice and hearing.' * Moreover, it is generally held that statutes authorizing the removal of officers for cause confer judicial powers on the body that is to exercise them, and that the word 'cause' means legal cause, and contemplates a charge, notice, hearing, and judgment of removal upon cause"-citing many authorities.

[4] Where the word "cause" is not defined by law, it is left in the first instance to the commission to determine what is sufficient cause to justify the removal, but that this power may be honestly, fairly, and reasonably exercised and not through caprice or prejudice, the courts will exercise the pow

[1] We will consider error No. 2, involving the jurisdiction of the commission, first. As we understand the contention of appellant, it is that the city commission had no authori-er of review. 29 Cyc. 1409d. ty or power to accept formal charges and order a hearing thereon, except by a resolution or ordinance. Section 4 of chapter 3 of the City Charter, at the time that the appellant was removed, read as follows:

[5] The commission, in the trial of the charges against appellant, and in determining whether the charges were sustained by evidence and whether they constituted cause for removal, were in the exercise of judicial