I do not concur in the opinion of Mr. Justice BOYLES.
1 Comp. Laws 1929, § 3981 (Stat. Ann. § 9.106) provides in part as follows:
"But a county road commissioner so appointed shall not be removed from office before the expiration of his term of office without being given due written notice of the charges made against him and an opportunity to appear before the board of supervisors for a hearing thereon."
The court below properly construed this statutory provision as requiring that:
"If he (plaintiff) is removed at all he must be removed for cause, and a cause that is charged and a cause upon which he had a hearing." *Page 267
The cause charged in the written notice to plaintiff was that:
"He has used property belonging to the Delta county road commission for his personal use, in the furtherance of his own private business as surveyor, to the expense of the county."
The proofs forming the basis for plaintiff's removal were that he used tar which came from the county road commission on the driveway and basement wall of his residence. The record is silent on the matter of plaintiff's payment or nonpayment therefor.
These proofs fail to establish or support either of the two elements contained in the written charge, viz.: (1) that plaintiff used road commission property for his personal use infurtherance of his own private business as surveyor, or (2) that such use was "to the expense of the county."
If such proofs, without a showing of nonpayment, establish any offense warranting plaintiff's removal, the offense is one which was not charged in the written notice.
With the charge as made not proved and the matters proved not charged, the order of removal should be reversed, with costs to plaintiff.
REID, J., concurred with DETHMERS, J. *Page 268