(dissenting). The relator says that he is one of the workmen’s compensation commissioners of this state, and entitled to receive, and that the respondents should be compelled by writ of mandamus to issue and deliver to him, a warrant for his salary as such commissioner for the month of April, 1920. The respondents say that the relator was removed from office by the Governor on April 23, 1920, and has not since been, and is not now, a workmen’s compensation commissioner. A copy of the order of removal is attached to and made a part of the respondents’ return.
*156Our statute (Comp. Laws 1913, § 8457) provides that “the writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or 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, corporation, board, or person.”
“The legal right of plaintiff or relator to the performances of the particular act, of which performance is sought to be compelled (by writ of mandamus) must be clear and complete.” 26 Cyc. 151.
The prevailing rule of law is that “mandamus will not lie to determine, either directly or indirectly, a disputed question of title to a public office.” Throop, Pub. Off. § 825. That is the established law in this state. State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025; State ex rel. Langer v. McDonald, 41 N. D. 389, 170 N. W. 873; Chandler v. Starling, 19 N. D. 144, 121 N. W. 198.
In State ex rel. Butler v. Callahan, supra, this court ruled that a person, who holds a certificate of election to an office and has qualified for such office by taking and filing the required oath of office and undertaking, is entitled to a writ of mandamus to compel admission to such office; that in such mandamus proceeding the court will not go behind the certificate of election; and that the prima facie title of the holder of such certificate cannot be defeated by averments in the return which involve the ultimate, or actual, title to the office; nor will the court “try and determine the question whether the facts set out in the answer do or do not involve the title.” This ruling was reaffirmed in State ex rel. Langer v. McDonald, 41 N. D. 389, 170 N. W. 873. In Chandler v. Starling, this court applied the same rule to a certificate of appointment by the Governor. That is, this court ruled that in mandamus such certificate of appointment is entitled to the same credence and must be given the same prima facie effect as a certificate of election; and that the court will not go behind it to determine whether the holder actually has title to the office.
While ordinarily mandamus is the proper remedy to compel the issuance of a salary warrant, where the salary is fixed by law and the proper authorities charged with the performance of such duties refuses *157to perform the same, the writ will issue only where “the legal right of the relator to the performance of the duty sought to be compelled is clear and complete.” 26 Cyc. 151. It will not issue where the right •of the relator is doubtful. “Where, by reason of a complication of extraneous circumstances not specifically provided for by the statute, a well-founded doubt arises, either as to the right of the applicant to receive the fund, or the duty of the officer to pay it out, mandamus is not the proper remedy.” 18 R. C. L. p. 225.
The respondents in this case were confronted with this situation: A person claiming to be the incumbent of a certain office made demand upon them to issue to him a warrant for his salary as such officer: but the Governor, who is vested with express authority so to do, had declared the person demanding such salary warrant to be removed from, and no longer an incumbent of, such office. If-the Governor actually had done what he asserted he had, viz., removed the relator from office, then the relator had neither prima facie nor actual title to the office. Of course, in order to issue a salary warrant to the relator the respondents must ignore the order of removal, or in effect take upon themselves the authority to adjudge it to be invalid. In these circumstances, can it be said that the law specially enjoined upon them, as a duty resulting from their offices, to issue a salary warrant to the relator ? That in the last analysis is the question here. And in my opinion that question must be answered in the negative.
Logically my remarks ought to end here,' but inasmuch as I differ from my associates both as to what issues may properly be tried in this proceeding, and the construction to be placed upon the return of the respondents, I deem it proper to indicate my views on these propositions.
Under the holding of the majority members the ultimate and actual title to the office is to be litigated and determined in this mandamus proceeding. This in my opinion is directly contrary to the principle established in State ex rel. Butler v. Callahan; State ex rel. Langer v. McDonald; and Chandler v. Starling, — supra.
The majority members hold that the return of the respondent sets forth facts sufficient to show that the relator, after due proceedings had before the Governor, was legally removed from office. While I do not believe that the question of the ultimate title of the relator to the *158office is properly triable in this proceeding, I do not agree that the facts set forth in the return show that the relator was legally removed.
It will be noted that a workmen’s compensation commissioner is appointed for a definite term, and the Governor- is given no right to remove him from office except for cause. The majority members concede that it is “a familiar principle that where offices are created with definite terms and the incumbents are removable for cause, sufficient legal cause must exist to warrant the removal. Also, that officials not removable at pleasure are entitled to a hearing for the purpose of ascertaining whether or not sufficient cause for removal exists, and that the hearing must be one at which they are given reasonable opportunity to be present, to know the nature of the charges against them, to cross-examine witnesses, and to adduce testimony to disprove the charges.” Immediately following this statement, the majority members cite, Throop, Pub. Off. and Mechem, Pub. Off. § 454. Hence, I take it, that the majority members indorse what Mechem says on the subject, viz.: “Where the appointment ... is made for a definite term or during good behavior, and the removál is to be for cause, it is now clearly established by the great weight of authority, that the power of removal cannot, except by clear statutory authority, be exercised without notice and hearing, but that the existence of the cause, for which the power is to he exercised, must first he determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity-to be heard in his defense.” Mechem, Pub. Off. § 454.
The supreme court of Wisconsin has said that the jurisdictional requisites in such cases are: “(1) Reasonable notice of time, place of hearing, and of charges constituting a proper subject for investigation; (2) reasonable opportunity to defend, characterized by full disclosure of adverse evidence according to the established principles of fair judicial investigation to determine the justice of the case; (3) a decision upon proofs of record supporting it in some reasonable view.” Ekern v. McGovern, 154 Wis. 157, 46 L.R.A. (N.S.) 796, 142 N. W. 595.
Does the return in this case show that the relator was afforded these rights? The majority members say it does for the reason that in paragraph 9 of the return it is averred inter alia that on April 23d, 1920, “a determination was duly made by said Governor Lynn J. Erazier *159removing said Laureas J. Wehe from the office of workmen’s compensation commissionerand that this was, under the statute, a sufficient averment of a valid order of removal. The statute referred to reads as follows: “In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to. Time been duly given or made. If such allegation is controverted, the party pleading shall be bound to establish on the trial the fact conferring jurisdiction.” Comp. Laws 1913, § 7460. It will be noted that the statute is permissive. It says a party “pleading a judgment or other determination” may state, etc. It does not purport to be exclusive. A party may still, if he desires, plead the facts conferring jurisdiction. If he chooses to pursue the latter method, the statute does not apply. The respondents in this case have not sought to avail themselves of this statute. They have not contented themselves with making a general averment that the removal order was duly made or given by the Governor. They have elected to set out the proceedings had by and before the Governor in detail. They, in effect, say, “We do not care to rely upon a general averment, we prefer to set forth all the facts, and here they are.”
The return or answer of the respondents alleges that on April 19, 1920, the Governor wrote a letter to the relator, commencing as follows: “Evidence has been presented to me to the effect” (here follows a statement in general teims of the alleged charges against the relator set out in the majority opinion). The letter continues: “In the light of this evidence, I feel it my duty to inquire what, if anything, you desire to state in your defense. As the charges, if true, are of such nature as to require the immediate severance of your connection with the Workmen’s Compensation Bureau. An immediate reply is requested. Failing to receive any statement from you, or your resignation on or before the 22d instant, I shall consider it my duty to remove you summarily from office. You are hereby notified that I have suspended you from the office of workmen’s compensation commissioner, such suspension to continue until the final determination of this matter.”
It further alleges that on April 20, 1920, the Governor issued the following notice to the relator: “You are hereby directed to show *160cause before me at my office on Friday, April 23d, 1920, at 3 o’clock in the afternoon of said day, why your suspension from office as workmen’s compensation commissioner should not be made permanent.”
It is further averred in said return that at the time appointed in the notice the relator and his counsel appeared before the Governor and filed written objections, among which were the following:
“That no specific charges have been made, filed with, or served upon the respondent setting forth any cause or causes, for his removal from office.
“That the letter of the Governor dated April 19th, is too indefinite and uncertain to apprise the respondent of the nature of the charges against him or to enable him to make due preparation to contest and disprove any charges that may have been filed or made against him as such official.”
“That the alleged charges, insinuations, and accusations attempted to be set out in said letter are so indefinite, uncertain, vague, and general, consisting of recitals and conclusions, that a person of common and ordinary understanding cannot ascertain therefrom' the nature of the charges or complaint attempted to be set forth and that, therefore, this respondent demands to be apprised more fully herein
As I construe the return or answer it was upon these proceedings, and these alone, that the Governor made the order of removal. He heard no witnesses, and received no evidence. If the order rests on anything at all it rests upon the “evidence” which tho Governor referred to in the letter of April 19th. But the relator could be removed only for legal cause, the existence of which must be determined after notice. Mechem, Pub. Off. § 454. “The Governor,” said the supreme court of Wisconsin (Ekern v. McGovern, supra) “had no right to act upon personal information not disclosed so as to afford fair opportunity to meet it. All should have been disclosed to appellant and made a matter of record.”
In the majority opinion it is said: “His [relator’s] response was an argument against the jurisdiction of the Governor to exercise removal powers and a statement that the charges were too vague and indefinite to admit of response. ’ Presumably, the petitioner placed his defense to the attempted removal proceedings before the Governor upon the strongest grounds he had. Had he desired to take any other *161steps to preserve Ms rights, then was the time and place to take them. The reasonable inference to be drawn from his statement of the objections to the proceedings before the Governor is that he did not demand to know the identity of his accusers, to know the character of evidence presented against him, nor to exercise the right to cross-examine those responsible therefor. Neither did he seek to introduce affirmative evidence to disprove the charges.”
With all due deference to the views of my associates, it seems to me that those conclusions are wholly erroneous and contrary to the very principles they concede to be applicable to cases wherein it is sought to remove officers like the relator. When did it become the law that a party who makes an objection to the jurisdiction of a court, board, or officer; or to the sufficiency of a pleading or notice will be deemed by means of such objections to have placed his defense on the “strongest ground he had?” Manifestly, a party who makes such objections, should be and is entitled to a ruling on the objections, and if the objections are overruled, he is entitled to an opportunity to present a statement or pleading embodying his defense on the merits. Tie is also entitled to have the charges established by proofs of some sort, after notice. The officer empowered to remove may not determine in advance of the hearing that the charges are true, and ask the officer to disprove them. The incumbent of the office is presumed to be competent and to have performed his duties properly. That presumption must be overcome by evidence, after notice. As I construe the return there is no contention that that was done in this case.
The majority members say: “Had he [relator] desired to take any other steps to preserve his rights, then was the time and place to take them.” Just exactly what would the majority members have had the relator do? He interposed certain written objections, and asked, among other things, “to be apprised more fully herein.” The Governor did not say I overrule your objections, and rcfhse your request “to be apprised more fully herein.” According to the return, the only answer the Governor made was to make the order removing the relator from office. The relator had a right to make objections to jurisdiction, and to ask that the charges be made more definite and specific, He was entitled to have those objections and requests ruled on. He was justified in believing that if the Governor overruled his objec*162tions and refused his request he would be afforded an opportunity to defend on the merits. Tie was justified in believing that he would and could be removed only after it had been established, before the officer conducting the hearing, by due proof and after notice, that legal cause for removal existed. As I construe the return it does not show that the relator was afforded, but rather that he was denied, the hearing which the majority members concede he was entitled to have.