Dullam v. Willson. aside from ordinary common-law procedure, and has done so in some important cases. In most of these cases there is no appellate jurisdiction anywhere. But in every case of removal for cause the courts of law have exercised the right of passing upon the legality of the removal, and have invariably treated it as void unless exercised conformably to the requirements of jurisdictional sufficiency. And whenever a party unlawfully removed has been actually shut out by his associates or others from acting, a mandamus has issued to restore him, and has been made peremptory unless the proceedings of removal contained affirmative evidence of sufficient charges sustained on a proper hearing. It has always been held that general conclusions or conclusions on general charges were not enough, but the facts on which the judgment was based must appear either in specific charges or in specific findings on which the party has been heard on legal proofs. Rex v. Stirling, Sayers, 174; Rex v. Mayor of Doncaster, 2 Ld. Raym. 1564; Rex v. Mayor and Aldermen of Doncaster, Sayers, 37; Rex v. Richardson, 1 Burr. 517; Rex v. Mayor, Aldermen and Burgesses of Doncaster, 2 Burr. 738; Rex v. Mayor, etc., of Liverpool, 2 Burr. 723; Rex v. Warren, Cowp. 370; Rex v. University of Cambridge (Bentley's case), 1 Strange, 557; 2 Ld. Raym. 1348; Hereford's case, 1 Sid. 209; Reg. v. Guy, 6 Mod. 89; Rex v. Simpson, 1 Strange, 609; Bagg's case, 11 Co. Rep. 97; Rex v. Shaw, 12 Mod. 113. These cases not only require a proper hearing on proper charges, but hold that those charges must consist of distinctly stated facts, and not general charges of wrong or neglect, so that it can be determined, as a matter of law, whether what the removing body treats as wrong is within the legal quality of wrong. This is particularly referred to in 12 Mod. 113, and Sayers, 39 and 174, and 2 Ld. Raym. 1564, and Strange, 557. It is also held that the case must appear to have been proved by evidence, and that a mere finding of results on alleged personal knowledge is not enough. Rex v. Fishers of Faversham, S T. R. 352; Capel v. Child, 2 Cr. & J. 558. The necessity of definite conclusion is further exemplified in Rez v. Pinney, 3 B. & Ad. 947; 5 C. & P. 254, where it was held that the jury, where an indictment was tried against a mayor for neglect of duty, could not convict unless all agreed on the same spe cific act of neglect. Dullam v. Willson. This is not merely ancient doctrine. The safeguards against wrong and the right to have charges determined by due process of law, which is distinctly asserted by Lord MANSFIELD in Burrows, as the basis of these rulings, are as clearly recognized under the grant of special remedies as in any other. The removal of obstacles to the testimony of parties revived the business of English County Courts to such an extent as to render the office of county judge a very important one. The lord chancellor, and in Lancashire the chancellor of the duchy, have been given power to decide summarily and remove for inability or misbehavior" any such judge. Justices of the peace hold during pleasure, and may be removed at will. But it has been held that any county judges removed by either of the chancellors, although there is no appellate jurisdiction to review the action, has a right to have its legality questioned and determined in a proceeding to try title to the office by quo warranto. This right was solemnly adjudicated in Ramshay's case, 10 E. L & Eq. 445 (18 Q. B. 195), and while it was held that the act of Parliament did not require the chancellor to award a trial by jury, it was further held that the proceedings must have all the requisites of a judicial proceeding, and the courts were bound to see to this. The court adopt as their own the language of Lord MANSFIELD in Rex v. Warren: "He can never be the sole judge and remove him ad libitum, without being subject to the control of this court; the court may inquire into the cause and manner of a motion.” In the case of Regina v. Owen, 15 Q. B. 476, which arose concerning a removal under the same act of a clerk of a County Court for "inability," the question also came up on quo warranto, and it was held open to inquiry, and the cause of inability acted on by the judge and approved by the lord chancellor was held not sufficient as a legal ground of disqualification, and the removal was held void. In this case the defense relied on the want of power in the Queen's Bench to sit in appeal on the lord chancellor, but it was answere i that the proceedings were in no sense appellate. The fact, then, that the statute and the Constitution, in giving the governor power to remove, prescribe no methods of examination, can in no way relieve him from the necessity even if he is to pass personally on the facts- of having specific charges of misconduct communicated to the officer, and established by proof, with a full opportunity to the respondent to examine and crossexamine witnesses and be heard on the facts and the law. Dullam v. Willson. But it is perhaps important to consider the legal character of this investigation more directly, in view of the constitutional provision which must govern. The Constitution of 1835 contained full express provisions for removing local officers. It contained none for removing State officers except by impeachment, and it confined the judgment there to removal, saving the ordinary criminal remedies for the remainder of the punishment. In that respect it was identical with our present Constitution until 1861, when an amendment was proposed and adopted, as a new section in article 12 of impeachments and removals from office, which thus far had been identical in both, whereby it was provided that when the legislature was not in session the governor might investigate the action of public offices and officers, and remove from office for gross neglect of duty, or for corrupt conduct in office, or any other misfeasance or malfeasance therein," either of the State officers mentioned and "appoint a successor for the remainder of their respective unexpired term of office, and report the causes of such removal to the legislature at its next session." This provision covers every case covered by the statute and several more, because that was only applicable to appointed officers, except such as were named, and all of those were appointive when the statute was passed. It narrows the causes of removal, if the contention of the relator is correct; but in fact the present language although more definite, is substantially the same in meaning with the former as construed by the courts. Each of these causes is a well-recognized common-law crime, punishable by indictment, and in the case of officers of State, by impeachment. Russell Cr. L. 14; Comyn Dig. "Information;" 1 Bish. Cr. L., § 459; Regina v. Mayor of Rochester, 2 Jur. 64; Const., art. xii, § 1. It is also worthy of remark that the statute when passed reached no elective officer, and when first passed did not cover the State treasurer, in whose selection the governor had no choice. Moreover at that time the State officers named held office for two years from the date of their appointment, and not as now for fixed periods, so that a new appointment in the regular way was never to fill an unexpired part of a term. Further than this there was then no term of office which did not include two regular annual sessions of the legislature, which at present sits but once in two years. Now any officer misconducting, during a recess of the legis Dullam v. Willson. lature in any of the chief executive offices, is safe from impeachment unless there is an extra session. If the statute was really intended to effect absolute removals from office, and not merely suspensions, it did not contemplate that the governor could fill the vacancy for a period which would exempt both himself and the officer removed or appointed from responsibility to the next legislature. As it is manifestly not in force now, it is unnecessary to inquire where it came from or how far if at all it was valid. But the nature of the act of removal may have some bearing on the meaning of so much of it as resembles the constitutional provision.. It has already been said that all the acts on which the governor. can proceed are indictable offenses. It is equally well settled that every removal from office for wrong-doing is in law a punishment. for crime. It is the only punishment which an impeachment court can now inflict, and impeachment trials are strictly criminal trials.. The Court of Queen's Bench, while recognizing the absolute power of Parliament over procedure, felt themselves in some difficulty in determining that a county judge or clerk could be deprived of trial by jury, even where not charged with crime, and in Ramshay's case took pains to consider whether that form of trial was to be regarded as omitted. But in Regina v. Marshall, 30 E. L. & Eq. 204, it was distinctly decided not only that the offense was indictable, but also that the application to the chancellor was a proceeding which would preclude the complainant from asking a criminal information, because "it was an application to try and to punish," and the two would amount to a double vexation for the same cause. And the court, on the suggestion that the chancellor might decline the removal until conviction by indictment, declared that "such a course would be in accordance with the rule laid down by the great judge, Lord Chancellor ELDON, not to remove a justice. of the peace from the commission until after a conviction upon a criminal information." The same view was taken in New York, in Barker v. State, 3 Cow. 686, affirming the action of the Supreme Court in sentencing the respondent to be debarred from holding office as part of the penalty for duelling. He claimed that it was not competent for the legislature to impose such disqualification because it did not come within the definition of punishment at common law, and must be regarded as such an "unusual" punishment as was forbidden by the Constitution. And he claimed that the sentence of removal on Dullam v. Willson. impeachment was not a criminal sentence but a proceeding not bearing that character. But the court held that removal was a well-recognized punishment for official crime, and that the power on impeachment to give such a sentence instead of being a new remedy, was only a portion of the old punishment the English House of Lords having authority to inflict every kind of punishment appropriate to crime, while the American senates can only inflict a part, the Constitution itself saving a further remedy by fine or imprisonment. Our former and present State Constitutions take the same view. By the Constitution of 1835 it was declared that "no person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury except in cases of impeachment," and some petty or military offenses. Art. 1, § 11. By the previous section it was provided that in all criminal prosecutions the accused shall have a speedy and public trial by jury, with the other familiar safeguards which need not now be dwelt upon. Our present Constitution does not require a grand jury, but it preserves all the other precautions. We have also in the same direction the recognized doctrine that while the proper assembly of a municipal corporation may remove an officer not only for violations of by-laws and corporate order, but for crimes rendering him unfit to be retained, yet they cannot try the criminal charge or act upon it until conviction by a criminal court. 2 Kyd Corp., ch. 3, § 9; Rex v. Lane, 1 Mod. 370; Rex v. Richard son, supra. Not only was our own Constitution of 1835 adopted when Barker's case was very familiar, but the New York provision of disqualification for duelling was put into our first revision and has been retained ever since. It is also significant that in the same chapter of the statutes under which the governor attempted to act, the only cause of loss of office arising from misconduct is not the commission, but "his conviction of any infamous crime, or of any offense involving a violation of his oath of office." Comp. L., § 617. Considering the fact that neither Constitution gave any authority until 1861 to remove State officers at all except by impeachment, and that conviction of crime might always be ground of removal by proper steps at common law, and considering the further fact that the legislation in question gave very precise remedies for the removal of inferior officers, and gave the governor no machinery whatever for examining more serious cases of officers of State the natu |