more severely with such official misconduct than with many other acts of official misbehavior, different in kind. But, as another contention must be considered, we do not rest decision at this point.

Plaintiff insists most earnestly that, conceding that he received the moneys unlawfully, nevertheless he did so in an honest belief that he was entitled to them, and that therefore he is not guilty of malfeasance.

The governor holds an exalted office. To him, and to him alone, a sovereign people has committed the power and the right to determine the facts in the proceeding before us. His decision of disputed question of fact is final. His finding of fact, if it has evidence to support it, is conclusive on this court. It would be unbecoming in us to impugn his motives, and unseemly and unlawful to invade his discretion.

Courts-conclu

siveness of gov

ernor's finding.

As has been said, plaintiff and other witnesses testified that the attorney general and an assistant had advised plaintiff orally that he might take legally the moneys in question. This was denied by those

officers. The governor resolved this disputed question of fact against plaintiff, and his decision binds us absolutely. This leaves the record in a state unhappy for plaintiff, for such decision has swept away the very foundation of his claim of good faith that he acted upon advice of the attorney general and an assistant of that officer. Plaintiff himself at the time doubted and questioned his right to receive the moneys. This is not disputed. Because of the governor's finding, it therefore is settled by the record that plaintiff, despite his own doubt and questioning and in disregard thereof, accepted the moneys. That the withdrawals of the public moneys, being so characterized, and being, moreover, unlawful, constitute malfeasance in office, needs no citation of authority.

What has been said makes discussion of matter relative to the rehabilitation fund unnecessary. Nor are we required to comment further upon either the charges or the findings thereon.

Judgment for defendant.

Sharpe, Ch. J., and Bird, Snow, Steere, Fellows, Wiest, Clark, and McDonald, JJ., concur.

I. Introduction.

Of possible interest because of the principles involved, which are somewhat related to the present subject, are the annotations in 30 A.L.R. 238, and 35 A.L.R. 998 [Courts, § 71], on "Judicial investigation of pardon by governor."

Such questions as the necessity of giving notice and affording a hearing

before the governor removes an officer are not treated in the annotation, except as they arise in connection with the question of the power of the courts to review the governor's decision. Where the latter question has not been considered, the case is not in point in the annotation, although, where it does arise, the result may turn on the question of law as to

whether notice and a hearing were essential, and the conclusion on the latter point may, therefore, be stated herein.

Generally as to judicial control of acts of governor, it is said in 12 R. C. L. pp. 1008-1010: "It is the wellsettled general rule that no court has jurisdiction to require and compel the performance by the governor of his political duties, or the duties devolved upon him as a component part of the legislature, and that no executive act whatsoever, dependent upon the judgment or discretion of the governor, can be coerced by judicial writ. Nor will the courts review the acts of the executive department which are political and inherently part of that department. In a majority of jurisdictions, it is held that the governor is immune from judicial control or interference in the discharge of both discretionary and ministerial duties, the rule being based on the constitutional division of powers into the executive, legislative, and judicial, and the prohibition against one department interfering with or assuming the powers or duties of another department. . . . According to the reasoning of these authorities when duties are imposed upon the governor, whatever be their grade, importance, or nature, the courts have no right to say that this or that duty might properly have been imposed upon some inferior officer, but must presume that there were conclusive reasons for placing the performance of a particular duty upon the chief executive. In a number of jurisdictions, however, the view is taken that a governor of a state is not immune from judicial control as to purely ministerial duties, and that as to such acts either he may be restrained or their performance may be compelled by mandamus. Where this view obtains, the test of whether or not a duty is ministerial merely is, generally speaking, that it might have been imposed upon any other officer or person, and that, in its performance, no discretion or judgment is to be exercised. . . The doctrine that the courts will not control or interfere

with the governor in the performance of his duties applies only to acts within the scope of executive authority, and, when he steps aside from the sphere of his duty and violates the law, he is amenable to the law the same as any other person."

The question' under annotation depends somewhat upon the constitutional or statutory provisions as to the governor's authority with respect to the removal of officers. In some cases, of course, removal may be made without cause by the governor; as where the appointment is for a term at the will, pleasure and discretion of the governor or appointing power. See, for example, Touart v. State (1911) 173 Ala. 453, 56 So. 211. In such cases the question of judicial review does not ordinarily arise. The question under annotation ordinarily is presented where the removal may be only for cause or for certain specified

reasons.

II. Conclusiveness on facts and sufficiency of ground, within jurisdiction, for removal.

The cases on the present subject present a wide variety of circumstances. Some go farther than others in determining the question of the court's power to review the action of the governor in removing a public officer, or, in other words, the question as to how far his action is conclusive. Although some of the cases cited below support a much broader 'rule, it may be said that; in general, if there is evidence to support the decision of the governor in removing an officer, and the cause for removal is one on which the governor is authorized to act, his decision on disputed facts is conclusive; and not only is this so, but, if he acts within his jurisdiction, the court will not, under the above circumstances, inquire into the sufficiency of the evidence to support the charge, but will regard the matter as one within the discretion of the governor, and not subject to review by the courts, in the absence of express statute providing therefor. Colorado.

Trimble

v. People

(1893) 19 Colo. 187, 41 Am. St. Rep. 236, 34 Pac. 981; People ex rel. Engley v. Martin (1894) 19 Colo. 565, 24 L.R.A. 201, 36 Pac. 543. See also Re Fire & Excise Comrs. (1894) 19 Colo. 482, 36 Pac. 234.

Florida. State ex rel. Atty. Gen. v. Johnson (1892) 30 Fla. 433, 18 L.R.A. 410, 11 So. 845; State ex rel. Atty. Gen. v. Johnson (1892) 30 Fla. 499, 11 So. 855.

Georgia.-Gray v. McLendon (1910) 134 Ga. 224, 67 S. E. 859.

Illinois. Wilcox v. People (1878) 90 Ill. 186.

Kansas.-Householder V. Morrill (1895) 55 Kan. 317, 40 Pac. 664; Harrington v. Smith (1923) 114 Kan. 262, 217 Pac. 270. See also State ex rel. Little v. Mitchell (1893) 50 Kan. 289, 20 L.R.A. 306, 33 Pac. 104 (removal by executive council).

Kentucky. See Page v. Hardin (1848) 8 B. Mon. 648 (recognizing rule that courts cannot inquire into propriety of exercise of discretionary power).

Louisiana.-State ex rel. Atty. Gen. v. Doherty (1873) 25 La. Ann. 119, 13 Am. Rep. 131; State ex rel. Winder v. Cahen (1876) 28 La. Ann. 645; State ex rel. Atty. Gen. v. Barrow (1877) 29 La. Ann. 243; State ex rel. Atty. Gen. v. Lamantia (1881) 33 La. Ann. 446; State v. Abbott (1889) 41 La. Ann. 1096, 6 So. 805; State ex rel. Kuhlman v. Rost (1895) 47 La. Ann. 53, 16 So. 776. See also State ex rel. Weber v. Fisher (1874) 26 La. Ann. 537.

Michigan. PEOPLE EX REL. JOHNSON V. COFFEY (reported herewith) ante, 1.

Minnesota.-State ex rel. Kinsella v. Eberhart (1911) 116 Minn. 313, 39 L.R.A. (N.S.) 788, 133 N. W. 857, Ann. Cas. 1913B, 785 (decisions will not be reversed if there is any evidence reasonable to support it); Re Mason (1920) 147 Minn. 383, 181 N. W. 570 (same).

Missouri.-State ex rel. Barrett v. Hedrick (1922) 294 Mo. 21, 241 S. W. 402.

821; Cohn v. Butterfield (1911) 89 Neb. 849, 132 N. W. 400.

New Mexico.-State ex rel. Ulrick v. Sanchez (1926) — N. M. 255 Pac. 1077.

Nebraska.-State ex rel. Churchill v. Hay (1895) 45 Neb. 321, 63 N. W.

Wisconsin.-Atty. Gen. ex rel. Taylor v. Brown (1853) 1 Wis. 513; Ekern v. McGovern (1913) 154 Wis. 157, 46 L.R.A. (N.S.) 796, 142 N. W. 595 (recognizing rule).

The court will not weigh conflicting evidence to ascertain whether the order of removal of an officer by the governor is sustained. Cohn v. Butterfield (Neb.) supra. See also the reported case (PEOPLE EX REL. JOHNSON v. COFFEY, ante, 1).

The decision of the governor in removing an officer will not be reversed by the court if there is any evidence of a legal and substantial basis reasonably tending to support it; and, while rulings on evidence may be considered, yet a strict compliance with legal procedure is not required. State ex rel. Kinsella v. Eberhart (Minn.) supra. In this case, although the court held that the decision of the governor might be reviewed on certiorari, it also held that under the above rule the action by the governor in removing the officer was justified.

So, in Re Mason (Minn.) supra, the

court, although holding that the action of the governor in removing a county attorney from office might be reviewed by writ of certiorari (see V. infra), reached the conclusion that there was in this instance substantial evidence supporting the governor's decision, and stated that the court could not review the evidence for the purpose of ascertaining whether it would draw the same conclusions from it. As to the procedure before the governor, the court observed that the latter was not a court, and was not bound by the strict rules governing trials in court. It was said that, while the rule against hearsay evidence might, if strictly enforced, have excluded some of the evidence received, yet in such proceedings the governor was not bound to enforce the technical rules of evidence, and that his decision could not be reversed because incompetent or irrelevant evidence was received, if it was sufficiently supported by other competent and relevant evidence.

And where the state Constitution simply gives to the governor the power to remove, in case of incompetency, any officer whom he may appoint, it rests with him to determine for himself whether the cause of removal exists; and, no mode of inquiry being prescribed for him to pursue, it rests with him to adopt that method of inquiry which his judgment may dictate, acting under his official responsibility; and it is not for the courts to dictate to him in what manner he shall proceed, as his action is not subject to their revision; and therefore it is not a proper objection to the removal that it should have been exercised according to judicial methods, that is, by way of a specific charge, notice, opportunity for defense, hearing, and proof. Wilcox v. People (1878) 90 Ill. 186.

"

So, it was held in State ex rel. UIrick v. Sanchez (1926) N. M. 255 Pac. 1077, that the governor had power under the state Constitution to remove any officer appointed by him, including those appointed by and with consent of the senate; and that when he acted within his jurisdiction in re

moving an officer the courts could not interfere, regardless of how seriously he might err in his judgment; that if the order of removal assigned a constitutional cause for removal, it was conclusive on the courts; the state Constitution provided that the governor should nominate, and by and with the consent of the senate appoint, all officers whose appointment or election. was not otherwise provided for, and might "remove any officer appointed by him" for incompetency, neglect of duty, or malfeasance in office.

It was held, also, in State ex rel. Vogt v. Donahey (1923) 108 Ohio St. 440, 140 N. E. 609, that the court cannot review the governor's action in removing an officer, where he acts within his jurisdiction, further, at least, than to determine whether there was any evidence tending to support the judgment. The case was one of removal by the governor of a mayor for nonfeasance and gross and wilful neglect of duty in office, in that he did not enforce nor try in good faith to enforce the laws. The court, in sustaining the governor's action, in mandamus and quo warranto proceedings, said that it had examined the record and found a greater portion of the evidence to be either hearsay, or evidence relating to misconduct or neglect of duty during a previous term of office, all of which was incompetent; that, however, the executive being constituted by law the sole trier of the facts, the court would assume that his judgment was based upon competent evidence, if there were any such in the records; and that the records contained competent evidence tending to prove that the officer had acquiesced in the operation of a gambling place within the city. The court, however, intimated that if the duty were imposed on it to weigh the evidence and try the facts in the case, it would hesitate to convict upon the quantum of proof.

And in State ex rel. Atty. Gen. v. Hawkins (1886) 44 Ohio St. 98, 5 N. E. 228, it was held that as the governor had power to remove police commissioners, and in exercising it acted in a judicial capacity within the

meaning of the Constitution, it followed that the exercise of the power could not be inquired into by the courts, in a proceeding in quo warranto, simply because the governor might have erred in exercising the power reposed in him by the statute; and that the only question which the court could consider was whether charges involving official misconduct were preferred, of which the parties had notice, and whether the governor acted on these charges and removed the officer for the reason stated therein. The court took the view that since in a representative system of government such as ours, the incumbent does not have a property right in the office of which he cannot be deprived without the judgment of a court, as was the case at common law, which regarded an office as a hereditament, the removal of officers was not a matter involving such judicial power that it could not be by the legislature placed elsewhere than on the judiciary. And the court pointed out the difficulty of defining exactly judicial power, stating that it undoubtedly was the power to hear and determine, but that this was not peculiar to the judicial office, as many of the acts of administrative and executive officers involved the exercise of the same power.

A point is made in a concurring opinion in State ex rel. Vogt v. Donahey (Ohio) supra, which may well be noted, viz., that it was pointed out that the court in a previous case (State ex rel. Atty. Gen. v. Hawkins (Ohio) supra) had decided that, if charges involving official misconduct are preferred, of which the parties. had due notice and a hearing is had, and the governor acts upon the charges and removes the officers for reasons stated in the charges, there is no further subject for judicial inquiry; while, in the case before the court, the majority opinion intimated that the court might further inquire as to whether there was any evidence tending to support the charges. To this latter doctrine the concurring opinion takes exception, on the ground that it is violative of well-settled gov

ernmental principles relating to the independence of the separate branches of the government, and that no method was provided for bringing the evidence adduced before the governor to the attention of the court, by means of a bill of exceptions, or otherwise, and that for this reason, if for no other, the court was powerless to examine the evidence, even if there were no dispute as to its accuracy. See in this connection Ekern v. McGovern (Wis.) under III. infra; also cases under V. infra.

Under a city charter declaring that the governor should appoint a police commissioner, and that all appointments by him should be made with power of suspension or removal at any time for cause to be stated in writing, but not for political reasons, it has been held that if the governor determines that sufficient cause for removal of a police commissioner exists, and exercises that power, the officer has no remedy in the courts; that the investiture of power of removal is restricted in but two particulars, viz., that it must not be exercised for political reasons and the cause of removal must be stated in writing, and the governor is not required as a prerequisite to removal of such an officer to institute an investigation in the nature of a judicial or quasi judicial inquiry; that, no mode of inquiry being prescribed, the governor may adopt such mode as to him may seem proper, without interference on the part of the courts; and that the governor is not bound to examine witnesses under oath, or otherwise, and is not bound to allow counsel to appear for the officer. Trimble v. People (1893) 19 Colo. 187, 41 Am. St. Rep. 236, 34 Pac. 981. The lower court had erroneously held that an investigation was necessary, which was of a judicial character, before the governor was authorized to act.

The same doctrine is supported by Re Fire & Excise Comrs. (1894) 19 Colo. 482, 36 Pac. 234, where the governor, having removed fire and excise commissioners of the city of Denver, sought the opinion of the court on the question as to what persons were