(dissenting) — I am constrained to dissent from the majority opinion in this case. It is the established law of this state, and I think conceded by the majority, that the right to remove an officer must be initiated by the appointing power. If this means anything, it means that the commission, in its appellate jurisdiction, is confined to an examination of the offense charged by the appointing power. In this instance the charge was, conduct unbecoming an officer; not generally, but conduct of an officer being in a compromising position with a respectable married woman. Passing the seeming paradox in this statement, there was only one question for the commission to determine; that was the naked question whether the respondent had been found guilty of being in a compromising position with a respectable married woman. It is said in the majority opinion that the commission expressly states that it unanimously sustained the order of removal, but it just as expressly states that it did not find the respondent guilty of the offense charged, but did find that he had been guilty of conduct not becoming an officer in cultivating the acquaintance of Mrs. Pappas under the circumstances as narrated by him; thereby, as the majority say, finding him guilty of a lesser offense clearly included in the greater. It may have been included in the greater and it may not. It may have been that the offense of which he was found guilty by the commission had been committed the day before the offense charged by the chief of police, or the week, or month, or year before, or any indefinite time. In fact, the presumption would be a violent one that the officer would be found in a compromising position with a respectable married woman on the *650same day on which he became acquainted with her. If the commission had the right to find the respondent guilty of the offense of which it did find him guilty, under the general statement that he was guilty of conduct unbecoming an officer, it would, with equal propriety, find him guilty of the crime of larceny, or of burglary, or of common drunkenness, or of any crime which was in reality unbecoming an officer. It is conceded by the majority that the appointing power cannot remove an officer upon one ground, and have the removal sustained upon a ground separate and distinct from that relied upon by the removing officer. It seems to me that the record in this case shows that the offense upon which the conviction of the commission was based was or might have been entirely separate and distinct from that relied upon by the removing officer, and that the trial court was justified in so finding.
The judgment should be affirmed.