(dissenting). — Without going into a tedious recital of the history of this case, the whole question presented for our consideration may be set out as follows: At the last general election for county officers held in the county of Santa Fe, the plaintiff in error was elected sheriff of Santa Fe county. On the twenty-seventh day of June, 1893, he was summarily removed from said office by the governor. It is admittéd that the plaintiff in error had no notice of the intention of the governor to make the removal, and no opportunity, therefore, to defend himself against the charges of official misconduct. The plaintiff in error having refused to surrender the paraphernalia of the office, as it was alleged, an alternative writ of mandamus was served on him, requiring him to show cause why he should not be required to surrender the property, effects, and insignia of the office. To this writ he answered, stating that he had been duly elected, qualified, etc., as such sheriff; that is to say, he set up in full all of the facts which, taken together, constituted his title to the office of sheriff. He also denied that he had been guilty of any of the acts which would subject him to removal; that he had never received any notice of any charge against him; and denied, therefore, that he had been duly or legally removed from said office. On the trial of this issue in the court below, he demanded a jury, which was refused, the court holding that no issue of fact was presented by the pleadings; that, on the face of the petition and answer, it appeared that the governor had removed him from office; and that, as a conclusion of law, the relator was entitled to the peremptory writ, and it was ordered accordingly. From this order the respondent appeals in error to this court. Elaborate arguments have been made, and many authorities cited; but, in my opinion, the issue is confined to a very simple question, and a fair statement of the only controverted point will shed the strongest possible light on its solution.
The plaintiff in error insists that, possessing all of the qualifications required by law, and having been duly elected to the office of sheriff, and having qualified as such, he is entitled, as a matter of law, to retain the office until the end of his term, unless he should be guilty of some infraction of the law that would warrant his removal. This the defendant in error denies, and this is the issue of law that we are. called upon to decide. The defendant in error insists that under the statute the governor is' invested with the absolute power of removal; that he can exercise this power summarily, and without notice to the officer to be removed; and that, having removed the incumbent, he can appoint his successor. He insists that the action of the governor in this behalf is conclusive, and can not, therefore, be inquired into; so far as the legal effect of the action of the governor is concerned, it is wholly immaterial whether the incumbent had been guilty of the causes assigned for his removal or not; that the recital in the executive order was conclusive against him, and could not be inquired into in this proceeding; that whether the charges made against him were true or false, that whether they were supported by affidavit or by mere rumor, or indeed whether any charges at all had been preferred, was a matter upon which he had no right to be heard by the governor, and a matter over which the courts have no jurisdiction; that the power of absolute removal, attendant upon which, and as a consequence of which, the punishment of disqualification forever after to hold office is vested solely in the governor, who may exercise this power arbitrarily, summarily, and without notice to the accused, and that such action is final and conclusive; that this action is so absolutely conclusive that, in an action by mandamus, brought by the governor’s appointee, to compel the removed officer to turn over the property of the office, he can not be heard to object to the proceeding by which he has been ousted; that the absolute right of the governor to remove him without notice or hearing is so clear that a petition for writ of mandamus brought by him against the removed officer, and the answer thereto, raise no question of fact to be tried by a jury, and that, therefore, the power vested in the governor is not only absolute and final, when properly exercised, but that it is beyond the reach of inquiry in any form; that, notwithstanding the law provides for the election of the sheriffs of the several counties by the qualified voters thereof, it is within the power of the governor to remove any sheriff of the territory, and appoint in each of the counties persons of his own selection; that all that is required to make these removals legal is the recital in the executive order that the officers have been guilty of certain violations of the law. It is sought to support this proposition by invoking the doctrine of presumption. It is insisted that, the governor having recited in his order that the sheriff had been guilty of ácts which, under the statute, warrant his removal, we are to presume that such recital is true; that the action of the governor imports absolute verity; that a statute which authorizes the governor to remove the sheriff for causes therein set out is the equivalent of a statute which makes the tenure of the sheriff’s office subject to the pleasure of the governor; that there is practically, and in legal effect, no difference between a statute which authorizes the governor to remove the officer for cause, and one which should authorize the removal of said officer at will; that in neither case can the action of the governor be inquired into; that, as against the presumption that the governor has done his duty, the presumption in favor of the sheriff, supplemented by his sworn answer, does not even present an issue of fact.
It is said that to undertake to inquire into the validity of the action of the governor is an unwarrantable intrusion upon the part of the judiciary upon the prerogatives of the executive. I deny the truth of this proposition. No such question, as one of courtesy, can arise in an inquiry of this character. ' This is a matter of right and wrong. It involves a question of personal liberty, and not even the great respect which, as a court, we may have for the dignity of the executive office, nor the personal regard which we may possess, and which is shared in by no one more than myself, should in any way deter us from a calm and dispassionate consideration of the legal question raised by the record. If the respondent has been deprived of any right, it is the duty of the court to restore it. The means by which he has suffered the deprivation are immaterial. He is entitled to the protection of the law. The very essence of civil liberty consists in the right of every individual to claim the protection of the law. 1 Cranch, 163. Even in Great Britain the king himself is sued in respectful form of a petition, and he never fails to comply with the judgment of his court. “For every right,” says Blackstone, “when withheld, must have a remedy, and every injury has its proper redress.” It is idle to talk of “executive prerogatives” in this country. The word “prerogative” never had any place in our law. In this country no man is beneath the protection of the law, and no man above its restraints. The government of the United States, as has been termed, is “a government of law, not of men.” Marbury v. Madison, 1 Cranch, 163. While, as Blackstone has it, the king himself could not be held to have been wrong, yet his agents and ministers were held to account to the subject or citizen for any violation of right. The supreme court of the United States, in the case of Marbury v. Madison, supra, disposes of the question in this way: After stating that the constitution imposes on the president certain duties, in the exercise of which he must use his judgment and discretion in such a manner that he is not subjected to the control of the court, — as, for instance, in the making of treaties, etc., — and for the reason that these subjects are political, committed by the constitution to the sound judgment and discretion, not of the court, but of the president, the court proceeds: “But when the legislature proceeds to impose on that officer [a cabinet officer, acting under authority of the president] other duties, when he is directed peremptorily to perform certain acts, — when the rights of individuals* are dependent upon the performance of these acts, — he is so far the officer of the law, is amenable to the law for his conduct, and can not, at his discretion, sport away the rights of others.” In view, however, of the great doctrine of Magna Charta, that no man is to be deprived of his life, liberty, or property, except by the judgment of his peers or the law of the land, and in view of the fact that this great doctrine of civil liberty has been, in some form, incorporated, not only in the constitution of the United States, but in the organic law of every state and territory of this nation, it is a matter of interest to inquire into the legislation which it is supposed has thus revolutionized our entire system. I say “revolutionized,” for it must not be overlooked that the power we are now considering bears no semblance to the ordinary power of removal. Very many officers are removable at the pleasure of the appointing power. In such cases the officer takes the office with the knowledge of this fact, and can not complain. In such case it can not be complained that he has suffered any abridgment of his rights or his term. His very appointment creates a tenure subject to the pleasure of the appointing power. He has no vested right in any particular term. He may be removed at any time without notice and without cause. This is the legal tenure of his office, and, whether he serves a year or ten years, he has served the pleasure of the appointing power, and has thus been accorded all the rights and emoluments to which his appointment entitled him. Not so, however, in the case under consideration. The sheriff is' not appointed by the governor, but elected by the people for a fixed term of two years. He is entitled, not as a matter of pleasure or favor, but as a constitu - tional right, to serve the two years, unless he should be guilty of some of the causes which, by law, warrant his removal. In this case the governor, under his official seal, has declared that the accused has been guilty of such offense, and the accused, over his corporeal oath, has declared he has not been guilty; and the proposition contended for by the defendant in error is that this charge and denial .do not constitute an issue; that the governor’s recital is conclusive, and can not be inquired into. It is not pretended that the action of the governor was based on either his personal or official knowledge of the facts of the alleged offense. As a matter of law, we know, therefore, that the governor must have predicated his action on information received from other sources. What sources? The order of removal discloses nothing. Were charges filed? Were they supported by competent proof, or by any proof? These are matters the accused officer was not allowed to inquire into, as he had no notice of the action, and they are questions over which it is alleged the courts have no jurisdiction. Suppose, as a matter of fact, there was no evidence .of delinquency. Suppose, as a matter of fact, the sheriff’s sworn statement is true, and that he has been guilty of no wrong. Was his removal legal? The contention is that, as the governor has so declared in his order of removal, it follows as a conclusion of law that the cause existed, and that the power of removal was properly exercised. This is reasoning in a circle, and brings us back to the original proposition, that this contention makes the sheriff’s office depend solely, not upon the default of the sheriff, but upon the pleasure of the governor; for if the recital of the governor, made without notice to the accused, that the latter has been guilty of the statutory offense, imports absolute verity, so that it is not a subject of review in any court, then it matters not, as a legal proposition, whether the governor had or had not any evidence upon which to predicate his action; and it follows, therefore, that the sheriff holds his office subject to the will of the governor. It is no answer to say that it is not to be presumed that the governor will abuse this arbitrary power, unless it is agreed that the power exists. I know of no reason why the legislature could not confer this power on the governor, nor am I aware of any organic reason why the legislature could not empower the governor to appoint sheriffs in the first instance, and take away from the people the right to elect them. It is not what the legislature might do, but what it has done, that we are now discussing. Has, therefore, the legislature provided a system of laws whereby the people, in the first instance, are authorized to elect sheriffs, subject to the right of the governor to remove them at pleasure, and appoint their successors?
This brings us to the legislation on the subject. Section 27 of the act approved February 12, 1891, or so much thereof as relates to the present inquiry, is as follows: “Any tax collector who shall fail to pay over all school money collected by him within thirty days ■ after the tenth day of each month in which the same is collected shall be summarily removed by the governor from the office of collector.” Then follows the provision which punishes him with disqualification for holding office thereafter. This act was amended by the Act of 1893, page 1. But, before proceeding to discuss the amendatory statute, let us pause long enough to determine the nature and extent of the power and the authority conferred on the governor by the statute just mentioned. It will not be contended, that this statute conferred the authority to remove, except in case of the delinquency described. The existence of the' fact of delinquency was a necessary condition of the exercise of the governor’s power. If the sheriff was not in fact delinquent, then the attempted removal was a usurpation of power, and the action of the governor was absolutely void. As a proposition of law, this will not be denied; and yet the assumption that the action of the governor is conclusive is in fact and in effect a denial of this proposition, inasmuch as it holds that the governor’s recital is conclusive, — that is to say, that the order of removal is just as effective in the absence as in the presence of the causes assigned. It follows, therefore, as a conclusion from which there is no escape, that the governor is clothed with the absolute power of removal independent of the existence of the alleged cause, or else that the cause of removal may be in some form inquired into. So much, therefore of this statute as makes the existence of a delinquency a necessary condition of the governor’s action is mere surplusage, except as an admonition to the governor that he ought not to exercise this arbitrary power as a mere whim. In my opinion the whole construction of this statute may be embodied in a single proposition. It is this: Not a single instance can be found in any common law jurisdiction in which an ^officer has been removed, and punished by disfranchisement, for an alleged criminal act, without notice and without hearing. Such an arbitrary power belongs to the middle ages, and the semibarbaric administration of the civil law. It could not exist under the benign influences of the common law, that “hears before it condemns, and tries before it executes.” It is said, however, that the statute under which this proceeding was had does not provide for any notice to the accused officer. No such requirement was necessary. It authorized the removal, not on the accusation, but on the existence of the fact, and I assert, as a proposition of law so firmly imbedded in the common law as to be beyond the control of the legislature, that, when punishment is made to follow the ascertainment of a given fact, notice to the accused is absolutely essential to the ascertainment of such fact; and I do not hesitate to aver that an act of the legislature that should undertake in terms to punish an officer by removal from office, and disqualification forever thereafter to hold office, without giving the accused notice, — without a right to be heard, — would be held, in any common law court, an absolute nullity, being in contravention of the principle already announced, that no man shall be deprived of his life, liberty, or property without due process of law. That this provision of the constitution is not “locally inapplicable” to this territory is, I believe, admitted; that the right to exercise the duties and enjoy the emoluments of the office of sheriff is liberty, if not property, is not denied; and that his removal therefrom, without notice, under charge of delinquency, — such removal bringing upon him the attaint of disqualification for holding office, — was not due'process of law, is a proposition that ought not to require argument or authority for its support. I shall not undertake to define the meaning of the synonymous terms “due process of law” and “law of the land.” Yolumes have been written without improving on Mr. Webster’s definition, that “by ‘due process of law,’ or Taw of the land,’ is meant a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.” Dartmouth College v. Woodward, 4 Wheat. 518; Murray v. Hoboken, 18 How. 276; Clark v. Mitchell, 64 Mo. 578. It is law in its regular course of administration. 2 Kent. 13. “It is a conduct of proceeding according to prescribed forms and solemnities.” Bertholf v. O’Reilly, 74 N. J. 519. “It means being brought to answer according to the old law,” says Lord Coke. 2 Inst. 50. “It does not necessarily imply a trial by jury, but it must be according to some settled rule of proceeding.” Walker v. Sauvinet, 92 U. S. 90. “It may be summary, as in the matter of distress for rents, or in the enforcement of excise or revenue laws.” Weimer v. Bunbury, 30 Mich. 210; Springer v. U. S., 102 U. S. 586. But I shall not undertake to trace this interesting inquiry, tempting as the task may be, through the hundreds of well considered eases involving the application of this great underlying principle of constitutional liberty. It is the child of the common law, and is too firmly rooted in the principles of common law liberty to be displaced by any arbitrary power emanating from the rules, practices, customs, or legislation derived from the Latin jurisprudence, or embodied in the civil law. While it is not easy to lay down any rule applicable to all eases that may arise, yet there is one proposition that is settled now, and is no longer the subject of dispute or of inquiry. It is this: There can be no due process of law without notice and a hearing, or an opportunity to be heard. In judicial proceedings, “due process of law requires notice, hearing, and judgment.” 6 Am. 'and Eng. Encyclopedia Law, p. 43, note. “A hearing, or an opportunity to be heard, is absolutely essential. We can not conceive of due process of law without this. ” Mr. Justice Miller in Davidson v. Board of Administration of New Orleans, 17 Abb. Law J. 223, cited in 6 Am. and Eng. Encyclopedia Law, page 44, note. “Due process of law” means to give the party affected an opportunity to be heard respecting the justice of the judgment sought. Notice is absolutely essential to the validity of the proceeding in any case. It may be given by personal citation, and in some cases it may be given by statutes; but given it must be, in some form. County of San Mateo v. Southern Pac. R. Co., 8 Am. and Eng. R. R. Cases, 27. There can be no due process of law in the absence of notice, and to say that a citizen may be deprived of the office to which he has been elected, and forever thereafter be disqualified to hold office, without notice to him, is to assert a proposition so revolting to our sense of justice that it seems a work of supererogation to cite authorities in opposition to it. In the case of Kennard v. Louisiana ex rel. Morgan, 92 U. S. 480, the supreme court of the United States considered the question under a-statute of Louisiana providing for the removal of officers whose term had expired, and who refused to vacate, and the Louisiana statute was upheld alone upon the ground that it gave the party-proceeded against notice. It was held that this was due process of law.
But it is insisted that the matter under consideration involves an executive, and not a judicial, action, and that therefore, the doctrine of due process of law has no application, and that an effort to inquire into the action of the governor is a usurpation of authority. I have already conceded that, in most of its affairs, the executive as well as the legislative branch of the government is independent of the judicial; but wherever any action is taken, whether by an executive or legislative officer, that affects the life, the liberty, or the property of the citizen, such citizen has the right to appeal to the courts of the country for protection against the abuse of such authority. It is admitted, of course, that the courts are clothed with the power and duty of inquiring into the constitutionality of an act of the legislature, and that by proper process they may regulate the conduct of administrative and executive officers. The proposition that the executive is a coordinate branch of the government, and that, in the exercise of the discretion imposed upon him by law, he is not subject to the control of the courts, is not only admitted, but earnestly insisted upon, by me. What I challenge is the propriety of the application of that doctrine to the facts of this case. I deny that the governor is authorized to remove the sheriff of a county without notice or hearing, and therefore without cause, for the power to remove without notice, as already seen, is ex vi termini, the power to remove without cause.
But it is said that the record in the case discloses the fact that the governor acted on evidence before Mm. The executive recites, “And whereas it has been shown by satisfactory proofs,” etc. I deny that there was, or could have been, any such pi'oofs. I affirm the proposition that in no country on earth, governed by the principles of the common law, is it possible to submit satisfactory proofs, sufficient to convict a man, in his absence, and without notice to him. The whole proposition that the governor may proceed in the absence of a sheriff, and without notice to him, to hear proofs and pass judgment upon him, depriving Mm of his office and disfranchising him for life, is a judicial solecism that ought not to find recognition in any court of justice. It may be that the sheriff was guilty of all the offenses alleged against him, but he was entitled at least to the privilege accorded to the worst criminal in the land. If the governor had had personal knowledge of the truth of the chai’ges alleged against the sheriff, he was not authorized to act upon such knowledge, for it was Erskine who said, in the presence of the judges of the king’s bench, “if a man were to commit a capital offense in the face of all the judges of England, their united authority could not put him on trial.” There are many processes that are necessarily summary — notably, those resorted to for the collection of taxes, etc. — but in all such cases it is universally held that notice must be given before distraint. It is sometimes difficult to draw the line which separates judicial from executive functions. It is always safe however, to say that no action, whether executive or judicial, can be taken to deprive one of his life, liberty or property, without first giving him notice. There is absolutely no exception to this rule to be found anywhere, and it does not cure the matter to call it an “executive action,” and it does not detract from its despotic character to say that its healthful exercise requires haste and secrecy. There are a great many acts, as already indicated, which are of a semijudicial character, which nevertheless, in their execution, require notice. This doctrine was applied by the supreme court of the United States in the case of the Chicago R. R. Co. v. Minnesota, 134 U. S. 418. That involved an act of thelegis-. lature of Minnesota which undertook to confer on the railroad commission the right to fix rates of railroáds without providing for notice. The court said: “No hearing is provided for — no summons or notice to the company — before the commission has found what it is to find; * * * no opportunity provided for the company to introduce witnesses before the commission, nor, in fact, anything which has the semblance of due process of law.'” Or, to use the language of Mr. Justice Field, of the supreme court of the United States: “Whatever the character of the proceeding — whether judicial or administrative, summary or protracted, and whether it takes property directly, or creates a charge or liability which may be the basis of taking it — the law directing the proceeding must provide for some kind of notice. Nothing is more clearly established by a weight of authority absolutely overwhelming than that notice, and an opportunity to be heard, are indispensable to the validity of these proceedings.”
Are we to be told that an exclusive act which is without authority of law can not be inquired into? Let us see.- Up to a recent period the law authorized the governor to issue death warrants upon the ascertainment of the fact that a citizen had been guilty of murder in the first degree. To be sure, the law required that the fact of the crime be ascertained upon proper proceedings instituted for that purpose. But suppose the governor, under the then existing state of the law, had issued a death warrant to be executed upon a party who had in fact never been convicted. Will it be said that, because his warrant recited the fact that the conviction had been properly had, therefore no court could have inquired into it?
But it 'is .said that if the relator, in this case, has a remedy, it is by quo warranto, and not by mandamus. And it is further said that there is now pending a proceeding by quo warranto to test the title of the relator and the respondent to the office of the sheriff. I very freely concede the general proposition that quo warranto, and not mandamus, is the proper proceeding by which to determine the abstract question of title to office, but I am at' a loss to understand how this proposition aids the relator. He it is who is invoking the aid of the courts. He presents- an order of the governor, which purports to be an executive order, removing his predecessor, and appointing him. He comes into court with a petition which recites that the respondent was duly elected and qualified as sheriff, and that since that 'time the respondent has been duly removed, and that he (the relator) has been duly appointed; that the respondent refuses to deliver up the books, property, and paraphernalia of the office; and he therefore invokes the summary and extraordinary power of the court to compel the respondent to turn ovey the ■ 'property — that is to say, to turn over the office — to him, . Very'true, the respondent is allowed to state, in reply to the alternative writ, his reason for not having, in the first instance, surrendered up the office- to the -relator. This he does by coming into court, by exhibiting his credentials, and by solemnly stating under oath that he has never been removed, and that he is still sheriff, de jure and de facto. Now, I say the very first question presented to the court for its determination was, “W,ho is, 'in fact and in law, the sheriff?” The relator presents a commission signed by the governor. The respondent presents a commission signed by the people who elected him. That the very question presented here, and decided by the court below, was the title to the office itself, is shown by the final decree which was entered in the case, which recites, inter alia: “The said William P. Cunningham then and there became, and was and now is, the sheriff of said county of Santa Fe, and entitled to discharge the-duties thereof, and is entitled to the possession of said office, and of said books, and the property of every kind pertaining to said office,” etc. Here is a solemn adjudication that the relator had shown himself entitled to be sheriff, and that he was the sheriff, and this decree will be pleaded in the court below whenever the action by quo warranto is brought to a hearing, as a final adjudication by the highest court of the territory in favor of the relator’s title to the office; and in passing this decree this court is passing just as effectually upon the quo warranto proceedings as if they were before us in form. I am not criticising the form of the decree in the court below. I am simply combating the doctrine advanced by the majority here, that the'title of these two contesting parties is in no way involved. I deny, however, as a general proposition, that mandamus does not involve the question of title to office. Wherever it is brought to compel the restoration of an ousted officer, or, as in this case, to compel the delivery of the insignia or paraphernalia of office, it- necessarily -involves — incidentally, at least — the title to the office. It has been constantly held that mandamus will lie to restore to office a party illegally ousted. 3 Bl.; Dew v. Judges, 3 Hen. & M. (Va.) 23. In the case of Metsker, Mayor, etc., v. Neally, City Engineer, 21 Pac. Rep. 206, it was held that an officer of a city government, improperly removed by the mayor, could be restored by mandamus. In this case the relator had been turned out of his office, and his successor put info possession. He was restored, however; the courts holding that he had been illegally ousted; it being held: “If the suspension of the plaintiff was unauthorized, there could have been no vacancy to fill, and the appointment of Tweedale was without authority of law; and the plaintiff’s office room, books, records, instruments, insignia, etc., having been taken from him by reason of such illegal-suspension, it follows that a restoration to office should be accompanied by restoration of all things pertaining to the office, of which he has been deprived. For this relief, mandamus is the proper remedy.” State v. Sherwood, 15 Minn. 221; 15 Ill. 492; 25 Ill. 325; 78 Ind. 269; 55 Tex. 389; High, Extr. Leg. Rem., sec. 73, et seq.; 1 Dill. Mun. Corp., sec. 302.
Applying the doctrine of these cases to the case at bar, I submit that it does not lie in the mouth of the defendant in error to say that the court had no jurisdiction to restore the plaintiff in error to office, or that the title to the office was not involved. The two men stood before the court, the one commissioned by the people, the other by the governor; the former alleging that he had been duly elected and qualified, and had done nothing to forfeit his office. The latter, admitting this to be true (for denying him the right to make this proof was an admission of the fact), nevertheless sought the active aid of the court, by its mandamus, to compel the duly elected sheriff to turn over the papers and business of the office. I think it was clearly the duty of the court to say to the relator, in effect, that, before affording him the extraordinary relief of mandamus, it would satisfy itself of his right to exercise the functions of the office. It did not lie with the relator to decline such an investigation. He was seeking the active aid of the court. He had called upon the respondent to show cause why he refused to surrender up the property of the office, and the response was that it was because the relator was not entitled to demand it, by reason of the fact that he had been appointed without authority of law. A mere suggestion to the court that the party seeking its aid was an interloper or usurper was sufficient, in my opinion, to arrest the attention of the court and to put on foot an inquiry as to the' truth of the charge. The form to he taken by this inquiry is a matter of secondary importance. I do not care whether it is called “mandamus” or “quo warranto.” The substance ought not to be sacrificed to a mere shadow. The fact was that- the regularly elected sheriff had been removed without authority of law, and this fact wasi made to appear to the court whose duty it was, on ascertaining this fact, to restore him. In the case of Dew v. Judges, supra, it was said: “It has been objected, however, that mandamus will not lie where the party has another legal and specific remedy; but we are told otherwise by Judge Blackstone, who calls it a high prerogative writ of a most extensive remedial nature, and that it may issue in some cases where the injured party hath also another, more tedious, method of redress, as in the case» of admission or restoration to an office.” As the case from which this quotation is taken is a leading one, it will shed light on this controversy to state briefly the facts out of which the controversy arose. Dew, the appellant, had produced in court a commission signed by a majority of the judges, appointing him clerk of the district court; also, a certificate showing that he had taken the oath of office, but not offering a sufficient security for the faithful performance of the duties of the office. The court proceeded to appoint one Erastus Stubbing, who took the oath, and entered upon the discharge of the duties of the office. This took place on the eighteenth day of May, 1805. On a subsequent day of said term, to wit, on the twenty-seventh of May, Dew appeared in court with' a sufficient bond, and was refused to be admitted because he had not qualified on the first day of the term. He thereupon sued out the writ of mandamus. It will thus appear that in the Virginia case, as in this, the contention arose out of competing claims to the office. In that case the clerkship, and in this case the sheriffalty, was the subject of the contention. In that case it was between the party who had been regularly appointed by the regular appointing power, on the one side, and, on the other, a party who had been appointed to fill a supposed vacancy; and in this a contest between the officer actually elected and qualified, on the one side, and, on the other, a party who claims to have been appointed to fill the vacancy. In view, therefore, of the great similarity of the two cases, it is interesting to note the action of the supreme court of Virginia. Randolph and Wirt appeared in the case, and St. George Tucker, delivering the opinion of the court, says: ‘‘Mandamus lies to compel admission or restoration of the party applying for any office or franchise of a public nature, whether spiritual or temporal; * * * it has, therefore, every character that may be thought necessary to entitle the person holding such commission, and who hath been either refused admittance into his office, or improperly turned out of it, to the benefit of a writ of mandamus. It has been objected, however, that mandamus will not lie where the party has another legal, specific remedy, but we are told otherwise by Judge Blackstone,” etc. This case, and the cases of State v. Common Council of Watertown, 9 Wis. 254; Lindsey v. Luckett, 20 Tex. 516; Geter v. Commissioners, 1 Bay, 354; Singleton v. Same, 2 Bay, 105; Ex parte Diggs, 56 Ala. 381; Ex parte Wiley, 54 Ala. 226; and Millikenn v. City Council, 54 Tex. 388,—are cited in support of the proposition that mandamus is the proper remedy for the restoration of one who has been improperly removed from office. High, Extr. Leg. Rem. 67. ,
Having endeavored to demonstrate that the title of these two contestants for the office of sheriff was necessarily involved in the controversy, it is my purpose now to demonstrate that the relator, Cunningham, did not present in his application, in view of the pleading, even a prima facie title to the office. I propose to show, in addition to what has already been said, that an admission on his part that his predecessor had been removed, and that'he had been appointed without notice, and therefore without proper inquiry, was .an admission that his pretended title was an absolute nullity.
Before proceeding, however, to discuss other authorities to which I shall refer, I desire to refer briefly to one incident connected with the Virginia case already referred to. So deeply were our fathers impressed with the justice and necessity of notice to the officer to be removed, that it was seriously insisted that the respondent in that case had not been served with due notice, although he was the acting clerk, and had official notice of the filing of every paper in the cause. Accustomed as we are to the modern practice that provides a court wherever a judge may be found, and that authorizes the issuance of extraordinary process of prohibition, etc., from the judge’s private chambers, and that, too, on the ex parte statement of the relator, without notice to the party to be affected, it is interesting to recur occasionally to the landmarks of the ancient common law, and to tread again the dusty aisles of her temple of justice, that we' may imbibe anew the spirit of freedom that required a notice before hearing, and a hearing before judgment. And I must confess that it is not a pleasant reflection to ascertain that, the higher we trace this doctrine, the more vigorously it was maintained. Every lawyer is familiar with the Baggs Case, 11 Rep. 99. This was in 13 Jac. 1. Baggs was removed from office for inviting the mayor to salute an indescribable portion of his person; but the king’s bench restored him, because he had been removed without notice, holding that such action was void. The author of the Institutes quotes the words of the Evangelist to this effect: “Doth our Lord judge any man before He hear him; and know what he doeth?” And again: “It is not the manner of the Romans to deliver any man to die before that he which is accused have the'accuser face to face, and have license to answer for himself concerning the crime laid against him.” It was Forteseue who said: “The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defense, if he has any. I remember to have heard it observed by a, very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam, nor remove him from the garden, before he was called upon' to make his defense. ‘Adam,’ says God, ‘where art thou? Hast thou eaten of the tree whereof I commanded thee thou shouldst not eat?’ And the same question was put to Eve.” Rex v. Chancellor of Cambridge, 1 Strange, 567. This trial of Adam and Eve, referred to by the English court in the ease just cited, is the first reported action of ejectment or removal of which we have any knowledge; and yet the defendants were given notice, and allowed to make their defense. The author of the Institutes gives us a liberal translation of Virgil’s lines: “First, he punisheth, and then he heareth.” And in Baggs’ case, already referred to, which was an action by mandamus to compel the may- or, etc., of Plymouth to restore the relator to his office, as one of the twelve burgesses of the borough, the court of king’s bench said: “And although they have the lawful authority, either by charter or by prescription, to remove any one from the freedom, and that they had just cause to remove him, yet it appears by the return that they have proceeded against him without hearing him answer to what was objected, or that he was not reasonably warned. Such removal is void. ’ ’ 6 Coke Rep. 184. The removal of the sheriff by the governor in this case, whatever else may be said of it, can certainly have no greater weight, and imports no higher verity, than the judgment of a court of eompe-. tent jurisdiction, and yet it has been constantly held that a judgment rendered without notice is void (Dennison v. Hyde, 6 Conn. 516), and that the taking of the property of one man, and giving it to another, even where such taking is authorized by positive statute, is confiscation (41 Mo. 415), and that in courts of general jurisdiction, where the existence of certain facts is jurisdictional, the recital of the existence of such facts is not conclusive (7 Rob. Pr. 76, and note; Hodson v. Walker, L. R. 7 Exch. 60); and, where presumption is relied on to support jurisdiction, such presumption is entitled to but little, if any, weight (Bloom v. Burdick, 1 Hill, 136). And in Williamson v. Berry, 8 How. 540, the doctrine is broadly announced that, when the proceedings of one tribunal are offered as a support for other proceedings,, the validity of the offered proceedings may be inquired into. There is a constitutional provision that entitles the judgments and decrees of one jurisdiction to full force and credit in another. And yet it is well settled that, on a suit brought in one state on a judgment rendered in another, the defendant may show that he was not served with notice. 7 Rob. Pr. 111, and cases cited. It was held in Newcomb v. Dewey, 27 Iowa, 387, that the recital in the judgment itself that the party had notice, may be contradicted. No statute can authorize the deprivation of any man of his property or rights without notice to him. It can not be done by consent, even, for the party to be affected must have notice in order that he may consent. Any other rule is confiscation. Rex v. Cleg, 1 Strange, 475; The Mary, 9 Cranch, 144; 4 Dana, 435; 9 How. 350; 11 Ark. 6 Eng. 558; 4 Comstock, 518.
The discussion, up to this point, has proceeded alone as to the power conferred upon the governor by the twenty-seventh section of the act approved Eebruary 12, 1891, which, as already seen, authorizes the governor to remove summarily any delinquent sheriff who shall for thirty days fail to pay over school money collected by him. I have endeavored to show that, assuming this to be the law of the case, the accused officer was entitled to notice. I now propose to show that this legislation has been so far amended as to make the validity of the removal to depend as much upon the notice as upon the existence of the fact upon which the removal is predicated. It must have been apparent, even to the unprofessional reader, that the act of 1891 bore on its face a harsh expression. There is something so extremely revolting to the American sense of justice in the .idea- of trial and punishment without notice that the legislature of 1893 determined to so amend the former act as to leave no misunderstanding as to the duty of the governor in the premises. Accordingly the following act was passed: “Section 1. That hereafter no person who is a holder or receiver of any public moneys of this territory or any county thereof shall be eligible to any public office' in this territory or any county thereof until the same is accounted for and paid into the treasury, and' each public officer in addition to the oath of office already prescribed shall take an oath that he is not the holder of any public moneys due the territory or any county thereof which is unaccounted for, and all holders, collectors, or receivers of any public money of the territory or any county thereof who have refused when called upon or failed after reasonable opportunity to account for and pay over such public moneys to the proper officer, shall be held and deemed ineligible to hold any civil office in this territory or any county thereof, and it shall be the duty of the governor to forthwith vacate the commissions of all defaulting tax collectors or of tax collectors or .receivers or. of any other person in whose hands public moneys shall come; who shall fail to do their duty in any respect as prescribed by law. The vacation of such commissions to be' done in a summary manner, after notice to the defaulting officer sufficient to give him an opportunity to be heard in his defense,” etc.- Act approved January 4, 1893. The emphasis given to a portion of the foregoing statute, is, of course, my own; but it is entitled to all the emphasis that may be given to it, for in the emphatic words are embodied the very soul and body of due process of law — notice and a right to be heard. This statute was in force when the governor undertook to remove the.plaintiff in error. It is admitted by the pleadings and the judgment that its requirements were not observed. I am clearly of the opinion, therefore, that the position of the defendant in error before the court below was. an admission that the action of the governor was void and that, therefore, the paper presented by him, purporting to be an appointment to the the office, did not, in the face of this admission, constitute even a prima facie title to the office, and that, therefore, in view of the fact that he declined to submit the matter to the consideration of a jury, — thus admitting that the action of the governor was taken witnout notice, and was therefore void, — it was the duty of the court below to dismiss his petition.
In concluding my observations, I desire, if I have not already done so, to emphasize the fact that I have discussed the questions raised by this record from a purely impersonal standpoint. No man has greater respect than I for the high office' of governor of this territory; and, added to that, I suppose it is not improper for me to say that I entertain the very highest regard for the great personal worth and integrity of the gentleman who fills that exalted office. The argument of Justice Fall-, that the relator had been recognized and qualified by a former judge, and that, therefore, he was entitled, 'prima facie, to the paraphernalia of the office, is a very able one, but, in my opinion, does not meet the fatal defect shown in the relator’s title by his admission that the proceeding was without notice.