(dissenting).—I am constrained to dissent from the conclusions reached by the majority of my associates in this case. It seems to me that it is neither a strained nor unreasonable construction of the section of the city charter, quoted in the majority opinion, to hold that the framers of that section only intended to authorize the removal of members of the board of health “after charges have been preferred.” It will be noticed that the mayor is not vested with the power of removal under any circumstances. The city council alone possess that power. The only thing the mayor can do, if he is dissatisfied with a member of the board of health, is to recommend his removal. And it is conceded by appellants—and properly so—that the council cannot remove such member even by a two-thirds vote of all its members until charges have been made against him, and notice thereof given; but they contend, and the majority of this court in effect says, that a removal may be made by a bare majority of the council, without notice or hearing, upon the recommendation of the mayor. I am unable to assent to this conclusion. In the first place, I am of the opinion that the words “after charges have been preferred,” occurring at the end of the section, refer to and qualify the first, as well as the second, part of the provision, and were intended to limit the power of removal to cases of misconduct or neglect of duty on the part of a member of the board. Sutherland, Statutory Construction, § 259.
In the second place, if I am not correct in my conclusion as to the effect which ought to be given to the concluding words of this section of the charter, then the power of removal without charges being made must have *634been conferred upon the council by the provision, “Any member of said board of health may be removed upon, the recommendation of the mayor by a majority vote of all of the members of the city council.” When a municipal officer claims to exercise a particular statutory power, he must not only be able to show clearly that he possesses such power, but that he has a clear right to exercise it under the existing circumstances, and in the mode in which he proposes to exercise it. If he claims a right to remove, without notice, or at his own discretion, a person from an office to which he has been legally appointed, he must find his authority in some positive provision of law. Powers not so conferred must be deemed nonexistent.
“All statutes which encroach on the personal property or rights of the individual are to be strictly construed.” 23 Am. & Eng. Enc. Law, p. 383.
Did the provision of the charter last above mentioned authorize the removal of the respondent from his office without the filing of any charges against him? Or was his removal a matter resting in the discretion of the mayor and a majority of the city council? I see nothing-in the language of this provision of the charter warranting an affirmative answer to either of these questions; and I am therefore compelled to conclude that the action of the council, in this instance, was unauthorized and void. That a person should be condemned unheard, or without an opportunity of being heard, is contrary to natural justice, and repugnant to one of the established principles of the common law; and such an act cannot be sanctioned by the courts except by direction of positive law. I think the true doctrine upon the question of the power of a city council to remove a municipal officer was announced by the supreme court of Michigan in Hallgren v. Campbell, 82 Mich. 255 (46 N. W. 381, 21 Am. St. Rep. 557), wherein the court said:
*635“We shall need to find in the charter of Menominee clear and unequivocal power vested in the council to remove this officer without notice before we can concede that any such power exists. . . . We have not found any case where an officer who was appointed for a fixed term (and when the power of removal was not expressly declared by law to be discretionary) has been held to be removable except for cause; and, wherever cause must be assigned for the removal of the officer, he is entitled to notice and a chance to defend.”
In the case at bar it is admitted by the demurrer that the respondent was appointed as a member of the board of health for a definite term, and that he was removed before the expiration of his term, without notice, and without any charges having been preferred against him; and the charter under which the removal is claimed to have been made does not expressly declare that the power of removal is discretionary with the council. The facts in this case, it will be noticed, are quite similar to those in the case last-cited. It was also held in the late case of State ex rel. Welch v. Passaic Hospital Ass’n, 59 N. J. Law, 142 (36 Atl. 702), that when the law authorizes the removal of a person from office, but is silent upon the subject of charges, the party sought to be removed is entitled to notice, and must be given an opportunity to be heard upon charges presented against him. See, also, People v. McAllister, 10 Utah, 357 (37 Pac. 578); Pratt v. Board, 15 Utah, 1 (49 Pac. 747); Mechem, Public Officers, §§ 454, 455.
Uor do I think the respondent mistook his remedy. It is a generally recognized rule that mandamus will not lie to try a disputed title to an office, or to compel the admission of a claimant to an office of which he has not had the possession or discharged the duties, and the title to which is in dispute. But, where a person has been in the lawful possession of an office, and is entitled to it of right, and was illegally removed, a. different rule obtains. Under *636such circumstances, mandamus is a proper remedy to restore the rightful officer to his office, even though the office be in fact in the possession of another appointed as his successor. High, Extraordinary Remedies, § 67; Pratt v. Board, supra; Spelling, Extraordinary Relief, § 1576; Metsker v. Neally, 41 Kan. 122 (21 Pac. 206, 13 Am. St. Rep. 269); Mechem, Public Officers, § 980; Leeds v. Mayor of Atlantic City, etc., 52 N. J. Law, 332 (19 Atl. 780). That the foregoing authorities lay down the rule which ought to be adopted in this state will plainly appear from an examination of the law upon the subject enacted in 1895. That statute provides that a writ of mandate may be issued “to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, board, corporation, or person.” Laws 1895, p. 117, § 16 (Bal. Code, § 5755). It seems to me that this provision alone conclusively settles the question of procedure in favor of the respondent’s contention. I think the demurrer to the alternative writ was properly sustained, and that the judgment should be affirmed.
Eullerton, J.—I concur in what is said by Anders, I.