dissenting in part and concurring in part.
I am compelled, in part, to dissent from tbe opinion of tbe majority touching tbe question of jurisdiction to bear and determine this case. As this court has assumed jurisdiction, and has beard tbe case, and has reached a conclusion, I will say that I concur in the result reached, but I do not concur in the reasoning nor in tbe conclusion, except that I agree to tbe result. Tbe respondent was *340charged in this court in an information in quo warranto, as chief of police of the city of Omaha, with wilfully and unlawfully failing, neglecting and refusing to enforce the laws of the state of Nebraska “which it is made his duty to enforce,” and the ordinances of the city of Omaha. After this general allegation there is in the complaint the charge that since said Donahue has held his office there have been a large number of persons, principally inmates and keepers of houses of prostitution and assignation, who have unlawfully sold “intoxicating liquors and are now unlawfully selling intoxicating liquors in said city of Omaha without having first procured a license to sell the same; all of which facts were well known to said John J. Donahue.” It is then charged that said Donahue “unlawfully and wilfully” failed, neglected and refused to cause the arrest and prosecution of the guilty persons. A large number of places are mentioned in the information where it is alleged intoxicating liquors were unlawfully sold, giving dates of such sales, and the names of the proprietors and occupants of the houses. In this connection it is alleged that the rules of the board of fire and police commissioners for the said city of Omaha for the government of the police force enjoining said duties upon the said Donahue are: “It shall be the duty of the chief of police to see that the laws of the state, the ordinances of the city, and the rules and regulations of the board of fire and police commissioners are duly enforced throughout the department, and he shall keep the city attorney and prosecuting officers of the county informed of all matters that pertain to their several offices relating to the police interests of the city or of any breach of the law or ordinances. * * * He will be diligent in the enforcement of the laws relating to lotteries, lottery policies, and the sale of liquor and gambling of all kinds.” It will be noticed that the complaint fails to allege that he neglected to keep the city attorney and prosecuting officers of the county informed of matters pertaining to their offices relating to the police interests of the city or of any breach *341of the law or ordinances. It is not alleged specifically, as it would seem that it should be in any sort of criminal case, what particular law he “refused to enforce.” It is said that he “neglected and refused to enforce the laws of the state of Nebraska, which it is made his duty to en-' force,” but the particular law that he so neglected and refused to enforce is not seemingly set out anywhere. It is only in a general way that any sort of charge is shadowed forth against him. It would seem that he was put on trial “on general principles,” and without 'a specific charge, such as is ordinarily made under the rules of the criminal law.
The law under which this proceeding was brought is chapter 78, laws 1907, and reads: “Section 1. Any county attorney or prosecuting officer, sheriff, police judge, mayor, police officer, or police commissioner or other officer who shall wilfully fail, neglect or refuse to enforce any law which it is made his duty to enforce shall thereby forfeit his office and may be removed therefrom. Section 2. The attorney general of the state, when directed by the governor, shall institute and prosecute quo %o<wrcmto proceedings in the supreme court against any such county attorney or prosecuting officer, sheriff, police judge, police officer, or police commissioner, mayor or other officer, and if the court shall find that such officer has wilfully failed or refused to enforce any law which it is his duty as such officer to enforce, then the court shall render judgment of ouster against such officer and the office shall thereby become vacant.”
It will be noticed that there is an absence in the charge of any statement telling how he refused “to enforce any law.” The impossible nature of the thing which the statute seems to contemplate that he may be compelled to perform, provided it is so construed, is seemingly a bar to any proceeding against the respondent. There is no allegation that he refused to communicate what lie knew to the county attorney or to the deputy county attorney or the police judge or the mayor concerning any particular vio*342lation of law. All persons who know anything about the matter must realize that it is an impossible, thing for a police officer himself to enforce the law. A police officer does not draw up complaints. A police officer does not examine witnesses nor make speeches before the police judge or before any magistrate or in the district court before the jury in criminal cases. A police officer is just a man to assist his superior officers in maintaining order. He is not a lawyer, neither is he a judge. In the enforcement of-the law it is necessary that these officers participate. The chief of police is simply the arm of the law; he is not the prosecutor. He never was intended as a prosecutor. He is not supposed to have any legal knowledge or any duty to perform beyond that of arresting those who are charged with violating the law, or who are seen by him to violate the law. He is not a county attorney or a deputy county -attorney or a sheriff or a police judge or a magistrate of any kind. It is peculiar in this case.that the executive arm of the mayor and board of fire and police commissioners should be picked upon as the person to be punished, when the people whose real duty it was to maintain prosecutions, if there was a violation of law, were not charged with any sort of dereliction. Why was not a complaint made against the city attorney and the county attorney and the police judge and the justices of the peace and the mayor and the board of fire and police commissioners?
The purpose of the act under which this prosecution is brought would seem to be to thrust upon this court the burden of so disciplining the officers of cities that they will prosecute cases for misdemeanors which Avould not otherwise be prosecuted. The thing attempted to be done suggests mistrust of the morals of the people in the cities of the state and unwillingness upon the part of the legislature to trust the officers of our cities elected by the people with the administration of their own affairs and the punishment of their offenders. The thing sought to be done is not in accord with the love of self-government in city *343communities or elsewhere. Communities desire to govern themselves, and if they can do so by a judge and jury of their own or by a board of their own they will be better satisfied. No community likes to be governed by some other community. No man wants to be tried by a foreign tribunal, however innocent he may be. The reason is that the foreign tribunal may not possibly know the things which are of advantage to the defendant. Olive v. State, 11 Neb. 1. If the case brought against Donahue could be tried before a Douglas county judge and jury or a Douglas county body of men of the average standard of morality, Donahue would have no cause of complaint. But if Donahue can be tried by one man belonging to one particular type, and not by a body of men, and this type of man, however unobjectionable in his private life and however upright, may bring in a finding as referee that shall be adopted instead of adopting the view of a judge and jury or of a board belonging to Douglas county, then Donahue is likely to be in most imminent danger. The man selected as referee is only one man, and, however upright he may be, there is danger that he Avill be influenced by special conditions that surround him or by particular individuals, and that his finding will not be as fair and as unbiased as the finding of a jury or board composed of a number of men. This method of trial would seem to be clearly objectionable if there.is any other method of trial that has been provided under the constitution and the law. This man is practically on trial for an alleged criminal offense before a referee. He has been deprived of a trial by a judge and jury of Douglas county. He has been deprived of a trial by the mayor and board of fire and police commissioners who appointed him. He has been tried by a referee, when the thing brought against him is more serious and of greater magnitude to him than if he might be sent to the penitentiary. This trial, to the writer, violates every sense of propriety.
Section 58, ch. 12a, Oomp. St. 1909, provides: “In each city of the metropolitan class, there shall be a board of *344fire and police commissioners to consist of the major, who shall be ex officio chairman of the board, and four electors of the city who shall be elected by the qualified electors of the city by a plurality of votes at the city election provided for in this act on the first Tuesday in May, 1909, and every three years thereafter.”
It is provided in section 61: “The board of fire and police commissioners shall have the power and it shall be the duty of said board to appoint a chief of police, and ■such other officers and policemen * * * as may be necessary for the proper protection and efficient policing of the city, and as may be necessary to protect citizens and property, and maintain peace and good order.”
Section 62 of the same act provides that no member or officer of the police or fire department shall be discharged for political reasons, and also provides that before such policeman or fireman can be discharged charges must be filed against him before the board of fire and police commissioners, and a hearing had, and that he shall be given an opportunity to defend himself.
Section 67 of the same act provides: “The chief of police shall have the supervision and control of the police force of the city, subject to the orders of the mayor and board of fire and police commissioners.”
Section 69 provides: “He shall be subject to the orders of the mayor in the suppression of riot and tumultuous disturbances and breaches of the peace.”
It. Avill be seen that the chief of police is appointed by the mayor and the board of fire and police commissioners. He is put under their direction and control by the statute.
Sections 91, 92 and 93 provide for the trial of any city officer and his discharge because of malfeasance in office. It will therefore be seen that there is jurisdiction to try the respondent before the board which appointed him or before a judge of the district court. For these reasons, there was no necessity of this trial in this court.
The mayor and board of fire and police commissioners had power to remove him if he refused to do their bidding. *345To Mm their power meant official life or official death. With the chief of police his obedience to the mayor and the board of fire and police commissioners was a matter of self-preservation. They had power to discharge him at once, and the governor was absolutely without power to protect him. (1) It was a matter of duty to his superiors. (2) If he went contrary to the orders of his superiors they would at once put him out of office and put another in his place. That meant disgrace and dishonor. (3) It is not shown that he saw this misdemeanor contained in the complaint committed, or that he refused to file a complaint in any particular case charging a violation of the law. (4) Nor is it shown that his superiors at any time requested him to file a complaint which he refused to file.
It is my contention: (1) That quo warranto is not adapted to the trial of the right to hold an office where the person in possession has been unquestionably appointed or elected in a case where an office has been created and the appointing or electing power has the lawful right to appoint or elect. My contention is that quo warranto is not adapted to the trial of a case which is attempted to be made criminal in its nature.
If my. contention has been properly overruled, and it is still held that quo warranto furnishes the proper remedy to try a case which is criminal in its nature, then I say that the rules to be followed throughout are the rules which apply in a criminal case, and the respondent cannot be found guilty unless it appears by the rules, as they would be ordinarily applied in a criminal case, that he wilfully, that is, without reason or justification, refused to comply with the order of the governor and to prosecute these cases.
(2) Donahue cannot be guilty of a wilful disregard of the order made by the governor, if he obeyed the orders of his immediate superiors, because they are directly in authority over him under the- provisions of the statute. His immediate superiors were the mayor and the board *346of fire and police commissioners. If this be not true, then there is no such thing as discipline.
While the remedy of quo warranto may be used to try title to an office, it may well be doubted whether it can be used to punish one who has 'committed some act alleged to be forbidden by law, and by reason of which his removal from office is sought to be accomplished. The machinery to try title to an office is not adapted to faying one who is found holding an office to which he lias unquestionably been appointed or elected and whose term has not yet expired.
It must be admitted that the offense charged is highly penal in its nature for the reason that the punishment sought to be inflicted is of the severest character — loss of office, loss of honor accompanied by disgrace, denial of preferment and incidentally loss of pension earned by the long continued pursuit of a career in which there was the perpetual menace of injury and death by criminals and vicious persons. While the respondent may have found 'himself unable by himself to punish all the violators of law to be found in the metropolis of the state, it is seemingly undeniable that for the long period of nearly 20 years he faithfully and vigilantly devoted himself to the protection of the better class of peace-loving citizens of Omaha, and guarded them against theft, arson, violence and murder as best he could.
He is' entitled in any event to a trial according to the forms of the law guaranteed by the constitution and the criminal code. I do not think that punishment almost, or quite, as severe as if he were to be sent to the penitentiary should be inflicted by a form or method of trial intended merely to determine the title of office as between contestants for official position, or to oust one who had never been qualified to enter upon an office wrongfully usurped and held. I do not think this court should be a court of original jurisdiction to hear and determine cases which are in their nature criminal. T am especially opposed to the trial of a case which is practically a criminal *347case by a referee. I think that this court is clearly without jurisdiction to hear and determine the case presented, and to this extent I dissent from the majority opinion.
If it shall be held that there is a right to-proceed in this case by quo warranto, then the rnles established by the code of civil procedure are not applicable, because pleadings in such cases are still governed by the common law practice prevailing at the adoption of the code. State v. McDaniel, 22 Ohio St. 354. So in Illinois, where common law pleading is still in use, the rule is, that the same certainty is required in the information in the nature of quo warranto as in an indictment. Lavalle v. People, 68 Ill. 252; Distilling & Cattle Feeding Co. v. People, 156 Ill. 448.
In New Jersey the same view is taken as in Ohio, it being held that the statutes to facilitate pleadings in civil cases do not apply. State v. Roe, 26 N. J. Law, 215.
“In England the writ of quo warranto has long since gone out of use, and an information in the nature of quo loarranto at the suit of the attorney general has taken its place.” 2 Spelling, Injunctions and Other Extraordinary Remedies (2d ed.) sec. 1766.
While I dissent as to the jurisdiction of the court, I agree with the majority opinion that the case as alleged is not proved.