The
executive may move without preferring charges, serving
notice, or having a formal trial. (State v. McGarry,
21 Wis. 496; Wilcox v. People, 90 Ill. 186;
Eckloff v. Dist. of Col., 135 U.S. 240; Keenan
v. Perry, 24 Tex. 253.) A constitutional question is
clearly recognized, and where the question is addressed to
the discretion of the department called upon to make the
construction, the decision is final. (Wright v.
Defrees, 8 Ind. 298; State v. Doherty, 25 La.
Ann. 119; Att'y Gen'l, ex rel. Taylor, v.
Brown, 1 Wis. 413; People v. Stout, 19 How. Pr.
[N. Y.], 171.) The power to remove an officer is not a
judicial power. (People v. Whitlock, 92 N.Y. 191;
People v. Stout, 11 Abb. Pr. [N. Y.], 17; People
v. Mays, 7 N.E. [Ill.], 660; Donahue v. County,
100 Ill. 94; Houseman v. Commonwealth, 100 Pa. 222;
State v. Oleson, 15 Neb. 247; Smith v.
Brown, 59 Cal. 672; People v. Hill, 7 Id., 97;
State v. Prince, 45 Wis. 610; Taft v. Adams, 3
Gray [Mass.], 126: Ex parte Wiley, 54 Ala. 226;
Keenan v. Perry, 24 Tex. 253; Patton v.
Vaughan, 39 Ark. 211; Dullam v. Willson, 53
Mich. 392.) In granting a charter to a metropolitan city the
legislature has the right to determine that the board of fire
and police commissioners should be non-partisan. The reasons
which may have induced the legislature to pass such a law are
not properly a subject of inquiry. (Cooley, Const. Lim., 155;
Turner v. Althaus, 6 Neb. 55; Bradshaw v. Omaha, 1
Id., 16.)
An
additional brief was filed in behalf of relator, in which
Chas. Ogden appears with those above named as counsel, and
the following contentions were urged: The legislature has
power to abolish or abridge the term of any office not
mentioned in the constitution. (People v. Haskell, 5
Cal. 357; People v. Banvard, 27 Id., 470; State
v. Pyle, 1 Ore. 149; Bryan v. Cattell, 15 Iowa
538; Davis v. State, 7 Md., 151; Conner v.
Mayor, 2 Sandf. N.Y. 355; Coffin v. State, 7
Ind. 157; Benford v. Gibson, 15 Ala. 521.) Here is a
power lodged in the governor. It is for him to say whether
there is official misconduct. (State v. Doherty, 25
La. Ann. 119; People v. Mays, 117 Ill. 257;
People v. Platt, 19 How. Pr. [N. Y.], 171; State
v. McGarry, 21 Wis. 496; Keenan v. Perry, 24
Tex. 253.) The question is one of constitutional
interpretation. (State v. Yoist, 25 La. Ann. 396;
State v. Abbott, 6 S. Rep. [La.], 805.)
Lake,
Hamilton & Maxwell, contra:
Section
12 of article 5 of the constitution is not applicable to fire
and police commissioners of the city of Omaha. The
governor's power to remove such officers is determined
and limited by sections 2448 and 2475 of the act governing
metropolitan cities. (Cons. Stats., sec. 2448, 2475;
State v. Seavey, 22 Neb. 454.) The existence of one
of the causes for removal is a judicial question, and must be
determined by the judicial department of the state. (Page
v. Hardin, 8 B. Mon. [Ky.], 648; Honey v.
Graham, 39 Tex. 1; State v. Pritchard, 36
N.J.L. 101; State v. Harrison, 113 Ind. 434;
People v. Stuart, 74 Mich. 411.) The governor cannot
remove one of the fire and police commissioners until (1)
specific charges have been made; (2) notice of such charges
given; (3) an opportunity furnished the commissioner to be
heard in his own defense. (Commonwealth v. Slifer,
25 Pa. 23; State v. Seay, 64 Mo. 89; State v.
Lusk, 18 Id., 333; Hogan v. Carberry, 4 W. L.
Bul., 113; State v. Hawkins, 44 Ohio St. 98;
Dullam v. Willson, 53 Mich. 392; Ham v. Board of
Police, 142 Mass. 90; State v. St. Louis, 90
Mo. 19; Board of Aldermen v. Darrow, 13 Colo. 460;
Biggs v. McBride, 17 Ore. 640; Hallgrene v.
Campbell, 46 N.W. [Mich.], 381; Field v. Com., 32 Pa.
478.)
OPINION
POST, J.
This is
an original proceeding by the attorney general against the
respondent for the purpose of testing the title of the latter
to the office of member of the board of fire and police
commissioners of the city of Omaha. The material part of the
petition is as follows:
"That on or about the 2d day of May, 1890,
Howard B. Smith respondent herein, was appointed by the Hon.
John M. Thayer, who was at that time governor of the state of
Nebraska, as a member of the board of fire and police
commissioners of the city of Omaha, and thereupon entered
into said office, and continued to occupy said office and to
exercise the duties thereof until the 23d day of February,
1892. On the said 23d of February, 1892, the Hon. James E.
Boyd, who was then and is now the governor of the state of
Nebraska, by virtue of the authority vested in him by the
constitution and laws of the state of Nebraska, removed the
respondent for cause, from said office of fire and police
commissioner of the city of Omaha.
"That
on the 23d day of February, 1892, D. Clem Deaver was duly
appointed and commissioned by the Hon. James E. Boyd,
governor as aforesaid, a member of the board of fire and
police commissioners of the city of Omaha to succeed Howard
B. Smith, respondent; that he accepted said appointment and
immediately took the oath of office and filed with the city
clerk of the city of Omaha a good and sufficient bond as
required by law, and claims the right to exercise the duties
and to enjoy the privileges of said office.
"Notwithstanding
the appointment of said D. Clem Deaver to said office, said
Howard B. Smith, respondent, did on the 23d day of February,
1892, and has continuously since that time, without any legal
warrant, claim, or right, used and exercised, and still does
unlawfully use and exercise, the office of fire and police
commissioner in the city of Omaha, in place of said Deaver,
and claims to be a member of said board of fire and police
commissioners in place of Deaver, and to have, use, or employ
all the rights, privileges, and franchises of said office, to
the damage and prejudice to the rights of said city of Omaha,
and also against the peace of the state of Nebraska; that the
said Deaver is a member of the independent party, one of the three political parties casting the highest
number of votes at the municipal election held in the city of
Omaha in December, 1890.
"That
prior to the appointment of said Deaver on the 23d day of
February, 1892, as aforesaid, no member of the independent
party had been appointed as a member of the board of fire and
police commissioners of the city of Omaha as required by law,
and that said Deaver is the only member of said board
appointed who belongs to said party.
"Said
relator therefore prays judgment that the respondent be
declared not entitled to said office, and that he be ousted
therefrom, and that D. Clem Deaver be declared entitled to
said office and installed therein, to assume the execution of
the duties thereof."
The
answer, omitting formal and immaterial parts, is as follows.
"That
in the month of May, 1887, the Hon. John M. Thayer, governor
of the state of Nebraska, appointed Christian Hartman, George
I. Gilbert, L. M. Bennett, and this respondent fire and
police commissioners of the city of Omaha; that said Hartman
and Gilbert were reputed to be and were members of one
political party, to-wit, of the democratic party, and said
Bennett and Smith of a different political party, to-wit, of
the republican party; that said Hartman and Bennett were
appointed to serve for the term of four years; that said
Gilbert and this respondent were appointed to serve for the
term of two years; that all of said appointees duly qualified
and entered upon the discharge of their duties as such
commissioners and continued in the discharge of their duties
until the month of May, 1889; that in said month of May
1889, George I. Gilbert and this respondent were reappointed
and duly commissioned by the Hon. John M. Thayer, governor of
the state of Nebraska, to serve for a term of four years
thereafter; that said Gilbert and this respondent duly
qualified and entered upon the discharge of
their
duties as fire and police commissioners of the city of Omaha,
and have continued in the discharge of said duties down to
the present time; that respondent's term of office does
not expire until May 10, 1893.
"That
in the month of May, 1891, the Hon. John M. Thayer, governor
of the state of Nebraska, reappointed and commissioned
Christian Hartman as fire and police commissioner of the city
of Omaha for a term of four years, and appointed and
commissioned Wm. Coburn, a member of the republican party,
for the term of four years to succeed L. M. Bennett; that
said Hartman and Coburn duly qualified and entered upon the
discharge of their duties as fire and police commissioners of
the city of Omaha, and have continued in the discharge
thereof since said time.
"That
on the 23d day of February, 1892, the Hon. James E. Boyd,
governor as aforesaid, without authority of law and without
cause therefor, assumed to remove this respondent from his
said office of fire and police commissioner of the city of
Omaha; that on and before said day there were no charges of
any name or nature or of any description against this
respondent filed in the office of the governor of the state
of Nebraska, or in the office of any other office of the
state of Nebraska, or of the city of Omaha; that
notwithstanding the absence of any cause for such action, and
notwithstanding the provisions of the constitution and
statutes of Nebraska, said Boyd on the 23d day of February,
1892, without any notice given this respondent and without
giving this respondent any opportunity to be heard, wrote
this respondent the following letter:
"'STATE
OF NEBRASKA, EXECUTIVE...
