dissenting.
For the reasons here stated, I dissent from the conclusion of the majority.
This is a petition for mandamus filed by Charles D. Fugate, averring that by authority of section 366 of the Tax Code of Virginia the Honorable John Garland Pollard, Governor of Virginia, issued an executive order whereby he suspended J. M. Weston, as treasurer of Lee county, Virginia, for causes stated in the order, hereinafter quoted; that the Governor had appointed and commissioned the petitioner as the successor of Weston for the time of suspension, with power to collect the taxes and public revenues of the county of Lee and the Com*126monwealth; that pursuant to that order and commission petitioner had qualified as treasurer of the county of Lee by executing his official bond and taking the oath of office, and that after such qualification, on December 4, 1930, he requested and demanded of Weston the delivery and surrender to him (Fugate) of the office and all the books, official records, papers, vouchers, funds and cash then in his hands and control and all the property, books and other insignia of the office; and that Weston refused to comply with his demand. Petitioner, therefore, invokes the original jurisdiction of this court and prays fon a peremptory writ of mandamus to be issued against Weston, commanding him to comply with the demands stated. In Virginia, mandamus is an appropriate remedy. Sinclair v. Young, 100 Va. 284, 40 S. E. 907.
The order of the Governor recites that two certain audits of the accounts of J. M. Weston, treasurer of Lee county, had been furnished to him by the Auditor of Public Accounts, the first as of the 17th of May, 1930, and the second as of the 22nd of October, 1930, and that these audits show that J. M. Weston, as treasurer of Lee county, has failed and is failing to execute and perform the duties required of him under the laws of the Commonwealth with reference to the collection of the revenue, and that there was, in accordance with the audit of May 17, 1930, a deficiency in his accounts amounting to $95,594.18, and according to the audit of October 22, 1930, a deficiency amounting to $92,763.88. The order then recites that J. M. Weston had been afforded ample time in which to disprove the correctness of said audits and failed to do so; whereupon, the Governor, by authority of section 366 of the Tax Code of Virginia (Acts 1928, p. 35, c. 45), and because of the failure of Weston to execute and perform the duties required of him as treasurer of Lee county, under the laws of the Commonwealth with reference to the collection of the revenue, suspended Weston as treasurer of Lee county from collecting any of the State or local revenues thereafter, unless *127the General Assembly, by joint resolution, should restore him to office. By the same order he appointed Charles D. Fugate to serve during the remainder of the present term of office of Weston, unless Weston should be sooner restored to office as provided by law. The order directed that copies thereof be forthwith transmitted to' Weston, the suspended treasurer of Lee county, to Fugate, and to the judge of the Circuit Court of Lee county. Thereafter, December 4, 1930, Fugate executed the bond required by law before the Circuit Court of Lee county.
It is observed in passing that in the chapter of the Code regulating the procedure by mandamus, section 5837 provides that when the application is made to this court, “the case shall be heard and determined without a jury, and witnesses shall not be allowed to testify viva voce before the court, but their testimony, if desired, may be used in the form of depositions taken by either party on reasonable notice to the other, or his attorney, of the time and place of taking the same.” So that the respondent, Weston, had here another opportunity to challenge and deny the condemning accusations upon which the action of the Governor was predicated. Instead of doing so, he filed a demurrer to the petition and entered' into this stipulation as to the facts :
“For the purpose of this proceeding and only for that purpose, and in order that a more speedy determination of this mandamus proceeding may be had, it is stipulated by and between the parties hereto, acting through their counsel, that the following are to be considered the established facts:
“1. That on the 29th day of November, 1930, Honorable John Garland Pollard, Governor of Virginia, issued an executive order suspending J. M. Weston as treasurer of Lee county, and appointing Charles D. Fugate as his successor, and that Exhibit ‘A’ filed with the petition in this case is a true copy of the said executive order.
“2. That on December 4, 1930, the said Charles D. Fugate *128executed Iris official bond and took the oath of office as appears from Exhibit ‘B’ filed with the petition.
“3. That the facts and matters stated in paragraph 3 of the petition are true.
“4. That the audit of the accounts of J. M. Weston as treasurer of Lee county, made by the Auditor of Public Accounts as of May 17, 1930, shows that on that date the said J. M. Weston was indebted to the county of Lee in the sum of $99,322.11; that on that date he was indebted to the State of Virginia in the sum of $4,399.09; and that on that date he had in cash or in cash items the sum of $8,127.02. A subsequent audit of the accounts of the said J. M. Weston, treasurer as aforesaid, as of October 22, 1930, made by the said Auditor of Public Accounts, shows that on that date the said J. M. Weston was indebted to the county of Lee in the sum of $99,463.49; that on that date he was indebted to the State of Virginia in the sum of $323.07; and that on that date he had in cash or in cash items the sum of $7,022.68.
“The sum of $323.07, shown to have been due to the State of Virginia by the said J. M. Weston as of October 22, 1930, was remitted by the said J. M. Weston to the Comptroller of the State of Virginia on November 13, 1930.
“The said J. M. Weston became treasurer of Lee county on January 1, 1924, and was re-elected in November, 1927, at the general election held on the 8th day of that month, for the term beginning January 1, 1928.”
The grounds of demurrer are thus stated:
“The respondent, J. M. Weston, comes and says that the petition for a mandamus filed in this honorable court by the relator, Charles D. Fugate, is not good and sufficient in law, because:
“I. Relator has another adequate remedy.
“1. Code of Virginia, section 2705, provides a full, adequate and complete remedy.
“2. Code of Virginia, section 5841, provides as follows:
*129“ ‘A writ of quo warranto may be awarded and prosecuted in the name of the State of Virginia in the following cases: (4) against any person who shall intrude into or usurp any public office.’
“3. The relator has never had charge of the office of treasurer of Lee county, Virginia.
“4. Respondent was duly elected treasurer of Lee county at the general election held on November 8, 1927, for a period of four years, received the proper certificate of election, executed the required bond, took and subscribed the oath of office, entered upon the discharge of the duties of his office on January 1, 1928, and has held the office ever since.
“II. The attempted action of His Excellency, the Governor of Virginia, by an executive order to suspend or to remove respondent and to appoint relator treasurer of Lee county, Virginia, is void.
“III. Section 366 of the Tax Code of Virginia, under which it is alleged that His Excellency, the Governor of Virginia, acted, is unconstitutional.
“1. It is prohibited by section 11 of the Bill of Rights, and violates sections 1 and 17 of the same.
“2. It violates and contravenes section 39 of the Constitution of Virginia.
“3. It confers upon the Governor arbitrary and autocratic power which is' contrary to and violative of the Virginia form and system of government.
“IV. The statute violates Magna Charta and the principles of the common law, as well as the fundamental principles of a representative government.
“1. It violates the fundamental principle that a person has a right to be heard before he is condemned.
“V. Sovereignty is in the people and they have never given their consent to the exercise of arbitrary, or autocratic, power by any one.
“VI. The statute is violative of and is prohibited by the *130fourteenth amendment to the Constitution of the United States.
“ *(1) No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; (2) nor shall any State deprive any person of life, liberty or property without due process of law; (3) nor deny to any person within its jurisdiction the equal protection of its laws.’
“And of these the respondent prays the judgment of the honorable court.”
Constitution, section 1, Bill of Rights, refers to the natural equality of men and the inherent rights of life, liberty, private property'and the pursuit of happiness and safety. Section 17 refers to the construction of the Bill of Rights—that is, that it shall not be construed to limit other rights not therein expressed. So that we need say no more about the grounds of demurrer based on those sections.
Section 366 of the Tax Code of Virginia (Acts 1928, p. 207, c. 45), reads: “The Governor shall have power to suspend the treasurer of any county or city of this Commonwealth or other officer charged with the collection of the public revenues, from collecting the revenues of the State or of such county or city, for failure to execute and perform the duties required of such officer under the laws of the Commonwealth with reference to the collection of the revenue; and said officer shall not collect any further the revenues unless the General Assembly by joint resolution restore him to office. The collection of the revenues in such city or county shall then be made by the person appointed by the Governor for that purpose, and such appointee, after having qualified and given bond according to law, shall discharge all the duties of the office to which he is appointed during the time of the suspension of his predecessor, and shall be amenable to all the rules, regulations, requirements and responsibilities declared by the *131laws of this State pertaining to the collection of the public revenues.”
For the purposes of this case, this statute needs no interpretation. Its provisions are clear and have been followed.
As early as 1887 (Acts 1887, p. 427), the Governor was invested with power to suspend a treasurer from any further collection of the revenues of the State, in the event of his failure to perform the duties required of him with reference thereto. Section 366, just above quoted, so amended and re-enacted the former act as to provide for the summary suspension of unfaithful treasurers who failed to account for either State or local funds.
Some emphasis is laid in the argument upon the fact shown by the stipulation that the treasurer is not now in arrears as to State funds, as though the funds of the county of Lee were the funds of some foreign jurisdiction with which the Governor and General Assembly had no concern. This is an erroneous view, for it is as clearly the obligatory duty of the General Assembly to conserve and protect the funds contributed by the taxpayers of Lee county for their local government as it is their obligation to protect the funds contributed specifically for the support of the State government. That such protection of all the revenues was sorely needed is shown by the facts of this case, conceded by the demurrer.
At the time of the adoption of Tax Code, section 366, the whole of Code 1919, section 2201, was repealed. That section undertook to empower the judge of each city and circuit court of record to suspend a local treasurer who had failed to account for any public funds due by him. Section 366 of the Tax Code undertook to vest this power of suspension of officers charged with the collection of public funds who proved unfaithful in their public trust in the Governor alone.
The fundamental question raised here is whether the General Assembly has exceeded its powers by the enactment of section 366.
*132In the case of Whitlock v. Hawkins, 105 Va. 248, 53 S. E. 401, it is said that there is no stronger presumption known to the law than that which is made by the courts with respect to the constitutionality of an act of legislation. The infraction must be clear and palpable, and seldom if ever should a statute be held void as repugnant to the Constitution if the question be doubtful. Danville v. Pace, 25 Graft. (66 Va.) 9, 18 Am. Rep. 663; Fletcher v. Peck, 6 Cranch 128, 3 L. Ed. 162.
The act authorizing circuit courts to extend the corporate limits of cities and towns was vigorously attacked in the case of Henrico County v. City of Richmond and Others, 106 Va. 282, 55 S. E. 683, 117 Am. St. Rep. 1001, because it certainly conferred legislative power on courts. The act was, however, upheld, and in the course of the opinion (p. 292 of 106 Va., 55 S. E. 683, 686), this is said: “It is not to be denied that this court may declare air act of the General Assembly unconstitutional. It is, however, a delicate matter to hold that the legislative department of the government has transcended its powers, and- it will not be done except in a case where there is a clear violation of some explicit provision of the Constitution or Bill of Rights. To doubt must be to affirm.” At p. 295 of 106 Va., 55 S. E. 683, 688, it is said: “This legislative construction of the Constitution is entitled to no inconsiderable weight, and cannot be lightly set aside.”
This presumption has been many times expressed and emphasized by the courts, and in no- jurisdiction, we believe, more emphatically than in Virginia.
Judge Burks, the younger, in City of Roanoke v. Elliott, 123 Va. 406, 96 S. E. 819, 824, thus emphasized it: “Every presumption, therefore, is to- be made in favor of the constitutionality of a statute, and it will never be declared to be unconstitutional unless it is plainly and clearly so. .If any reasonable doubt exists as to its constitutionality, the act will be upheld. To doubt is to- affirm. The mere passage of a statute is an affirmance by the General Assembly of its con*133stitutional power to adopt it, and the case must be plain indeed before a court will declare a statute null and void. These principles have been repeatedly announced by this court from a very early date.”
While the writer has never given assent to the proposition that merely “to doubt is to< affirm,” there can be no question whatever about the proposition that one who alleges the unconstitutionality of an act must bear the burden of showing its unconstitutionality with a cogency which cannot be fairly answered, and that to raise a doubt is insufficient.
Of course, along with this rule, we must remember the fundamental purpose of a State Constitution, as expressed in Strawberry Hill, &c. v. Starbuck, 124 Va. 77, 97 S. E. 362, 364, where this is said: “In determining the constitutionality of a statute, we must of course always bear in mind that the State Constitution is not a grant of power, but only the restriction of powers otherwise practically unlimited; that except’so far as restrained by the Constitution, the legislature has plenary power; and that every fair doubt must be resolved in favor of the constitutionality of an act of the General Assembly. Ex parte Settle, 114 Va. 715, 77 S. E. 496; Pine and Scott v. Commonwealth, 121 Va. 822, 93 S. E. 652:”
' This principle must have been in mind when, in Constitution, section 63, out of abundant caution, legislative power not limited is expressly reserved to the General Assembly: “The authority of the General Assembly shall extend to all subjects of legislation, not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.”
The emphasis of the arguments here against this statute (held by the majority to1 be sound) is based upon section 5 of the Bill of Rights, providing that the legislative, executive and judicial departments shall be separate and distinct; and section 39, reading: “Except as hereinafter provided, the legis*134lative, executive and judicial departments shall be separate and distinct, so that neither exercise the powers properly belonging to either of the others, nor any person exercise the power of more than one of them at the same time.”
Constitution, sections 110 and 112, provide for the election of county treasurers in each county by the qualified voters, and that they shall hold their office for the term of four years, their duties and compensation to be prescribed by general law.
The majority hold that because the office is created by the Constitution for a fixed term, the General Assembly is prohibited from providing for the summary suspension of the incumbent, even though he fails to account for the public funds as required by law. Upon the face of it, such a contention shocks the impartial mind. That because the term is fixed, the people of the State have intended thereby to create a class of public servants who are above the law seems to me incredible had the statute merely depended upon the power of the people always by implication reserved. Obviously, this reservation includes the power to provide for orderly government, taxation, the collection and preservation of the revenues and. the enforcement of the laws.
It is not necessary, however, in this case, to sustain the validity of this statute, as authorized solely by this reserved power—this because Constitution, section 56, provides: “The manner * * * of filling vacancies in office, in cases not specially provided for by this Constitution, shall be prescribed by law, and the General Assembly may declare the cases in which any office shall be deemed vacant where no provision is made for that purpose in this Constitution.”
It is conceded by respondent that this section was intended to authorize enactment of statutes which provide that an office shall become vacant when the officer is adjudged insane, or where a State or local officer accepts a United States office, or by the acceptance of one or more other specified offices; *135but he contends that it cannot be construed to authorize suspension for gross dereliction pursuant to the statute, section 366. Constitution, section 56, however, refers to any office, and it seems to me that it is impossible to conceive of any better reason for declaring this office vacant than that the incumbent has collected public revenues and failed to preserve them, in violation of mandatory statutes. Unless, in the construction of this section (Const., section 56), we are to “stick in the bark,” we should apply the rule that the greater power includes the less, and it being clear that the' General Assembly (they being the initial judges of the reasons therefor) may declare the conditions under which such an office shall become vacant, this obviously includes the power to provide for the suspension of an officer for failure to discharge the specific duties imposed upon him by law.
In the voluminous discussion, some vital considerations seem to have been overlooked. This suspension was neither made without notice, nor without cause; and this is a sufficient answer to the argument based upon some precedents where officials have been removed summarily and without sufficient cause.
That it is the duty of the court to enforce the legislative power, as expressed by statute, so far as is possible within the constitutional limitations, of course, is not denied. To the legalistic mind, overmuch confused' rather than convinced by the multitude of precedents, the case presents difficulties only because of impossibility of reconciling conflicts of judicial expressions, sometimes mistaken for judicial decisions. If these confusions are disregarded, as . irreconcilable, and we discard the illogical and discover the true, these difficulties disappear.
It seems to be contended that constitutional officers are in a sense sacro-sanct and above all legislative control which results in requiring them to surrender their positions before the end of the term fixed by the Constitution. To this I cannot *136assent. Constitutional officers are- subject to suspension for misfeasance and to regulation by law to the same extent as officers, not named in the Constitution, except, and only except, when and as such immunity is clearly found in the Constitution itself.
It is, however, held by the majority that the act confers judicial powers upon the Governor, and hence violates the sections providing for the separation of the executive from the judicial power.
Mr. Madison’s idea of this provision is thus expressed: “From these facts, by which Montesquieu, was guided, it may clearly be inferred, that in saying ‘there can be no liberty, where the legislative and executive powers are united in the same person, or body of magistrates;’ or, ‘if the power of judging be not separated from the legislative and executive powers,’ he did not mean that these departments ought to have no partial agency in, or no- control over the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free Constitution are subverted. This would have been the case in the Constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive.authority.”
Story’s Constitutions, p. 395, repeats that we are to understand this maxim in the limited sense expressed by Mr. Madison; and this court, in Winchester & Strasburg R. Co. v. Commonwealth, 106 Va. 264, 55 S. E. 692, in upholding the legislative, executive and judicial powers of the State Corporation Commission, conferred by the Constitution, said substantially the same thing.
*137That there are other well-defined limitations upon the legislative power must be conceded. Farmer v. Christian, 154 Va. 48, 152 S. E. 382.
The cases and the statutes abound with instances in which judicial officers have been charged with the performance of duties clearly executive or ministerial, and ministerial officers charged with duties which require investigation of facts comparable with judicial investigations.
Lewis v. Christian, 101 Va. 135, 43 S. E. 331, is an instance. There an oyster inspector was required by statute to determine whether oyster rock was natural oyster rock, according to survey and report. If so, and stakes and oysters had been placed upon that oyster rock or bed by the planter, the duty was imposed upon the inspector to have them removed. The court held that notwithstanding his duty to determine and ascertain the existence of the necessary facts, it was none the less ministerial because he had to determine whether or not the facts existed which made it his duty to act. This court, referring to that case, said this, in City of Roanoke v. Elliott, 123 Va. 410, 96 S. E. 819, 825: “In other words; the duty to ascertain a fact from evidence does not per se render the duty judicial. It is not easy to lay down a general rule by which it may always be determined what acts are judicial and what are ministerial, and we shall not attempt it. But it is safe to say that whether a duty imposed is judicial or ministerial is to be determined by the nature of that duty, and not by the tribunal or person that is to discharge it. That judicial tribunals are often charged with the performance of purely ministerial functions is well illustrated by the cases hereinbefore cited, and it is equally true that executive or ministerial officers are also sometimes charged with judicial or quasi judicial functions. See Thurston v. Hudgins, 93 Va. 780, 20 S. E. 966, and Rowe v. Drisgell, 100 Va. 137, 40 S. E. 609; note in 44 Am. St. Rep. at p. 46, and cases cited.”
*138This must have been the idea of the New York court, In re Guden, 171 N. Y. 531, 64 N. E. 451, 452, where this is said: “In this country the power of removal is an executive power, and in this State it has been vested in the Governor by the people. (Constitution, art. IV, sec. 1.) The Constitution further specifically provides—and has since 1821 in effect, and since 1846 in precisely the same words—that ‘the Governor may remove any officer, in this section mentioned (sheriffs, clerks of counties, district attorneys and registers in counties having registers), within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.’ (Art. X, sec. 1.) It does not require argument to persuade the mind that the power thus conferred is executive, not judicial, and that it was intended to be vested exclusively in the Governor.”
This to me seems certainly true as to those other sections of the Virginia Constitution which authorize the Governor to suspend certain State officers. I am aware that many courts have called such a power a judicial power, but I agree with the New York court. As the power to appoint is executive, it follows that the power to remove is also executive, and the mere fact that the Governor must determine certain facts before he exercises his power does not change the essential nature of the power.
The case of Conklin v. Cunningham, 7 N. M. 460, 38 Pac. 170, 174, supports the same view. There a collector was removed under a statute for failure to pay over school moneys previously collected by him within thirty days after the 10th day of the month. What is said on this branch of the case is worthy of repetition: “In the exercise of the powers confided to his discretion and in the performance of the duties imposed upon him, the executive is independent of the judiciary; and presumptively his acts are within the limitations of his authority, and must be recognized by the judicial tri*139bunals. Prima facie, the order of removal in this case was a legal exercise of executive authority; and the appointment of Cunningham constituted a commission that was evidence, prima facie, that he was lawfully entitled to the sheriffalty, and imposed upon the contestant the burden of showing a better title by an action in the nature of quo warranto. People v. Head, 25 Ill. 325; State v. County Court of Howard County, 41 Mo. 247; Wenner v. Smith, 4 Utah 238, 9 Pac. 297; Plowman v. Thornton, 52 Ala. 559; 14 Am. and Eng. Encyclopedia of Law, cl. 3, p. 143, and citations there made.
“An appointment to office by the executive is complete upon the delivery of the commission. Marbury v. Madison, 1 Cranch [U. S.] 137 [2 L. Ed. 60]; Wetherbee v. Cazneau, 20 Cal. 503. We think that when the Governor appointed and commissioned the plaintiff, he gave him prima facie title to the office. People v. Head, 25 Ill. 325. The commission of the Governor, when issued, must be taken at least as prima facie evidence that the person holding it is lawfully entitled to the office. State v. County Court of Howard County, 41 Mo. 247. The powers of a Governor are executive, not judicial, and they must be exercised promptly, to be effective. Notice to a defaulter is invitation to repair deficiency with a view to retention of office. To afford opportunity to make good delinquency is to protect the violator of a trust, and to supplant summary action by judicial investigation. The impending penalty of removal is tO' deter breach in office, and to encourage fidelity and promptness in the discharge of its duties. Trial is not an executive function, and its assumption would be the emasculation of executive efficiency. The section under which the Governor proceeded is mandatory, and directs summary action, quick execution, and that it is impracticable to attain such a result by the dilatory process of charges and defenses is manifest. A summary end by prolix means is an impossible achievement. So inconceivable is the rapidity in the redress of wrongs by tedious and vexatious remedies, that it *140is not legitimate to impute such contradiction to the legislature, unless it shall appear in express terms, and the omission of any requirement of notice from the provisions of section 27 must be regarded as the expression of an intention that notice should not be an essential to its enforcement. The examination of the accounts of the sheriff, and the finding that he has not accounted for moneys of the county as required by law, and that he was in arrears with the county, and removing him from office, is not judicial action, and does not require due process of law. But whether notice to the respondent was a legal requirement is essentially an issue for judicial ‘inquiry and determination. Donahue v. County of Will, et al., 100 Ill. 94.”
In the case there cited, Donahue v. County of Will, the facts were strikingly like this case. A statute authorized the county courts to remove county treasurers from office for neglect or refusal to render an account, or to make settlement, as required by law, or when he was a defaulter, or when he was in arrears. There county treasurers were created by the Constitution, as here, and given a term of two years. The county court removed Donahue under authority of the statute. Most, if not all, of the questions raised here were raised there, but the action of the court was upheld. This is said as to one phase of the case (p. 103 of 100 Ill.) : “It is impossible to conceive how under our form of government a person can own or have a title to a governmental office. • Offices are created for the administration of public affairs. When a person is inducted into an office, he thereby becomes empowered to exercise its powers and perform its duties, not for his, but for the public benefit. It would be a misnomer and a perversion of terms to say that an incumbent owned an office, or had any title to it.”
This from Conner v. Mayor of New York, 1 Seld. (5 N. Y.) 295, is quoted: “Public offices in this State are not incorporeal hereditaments, nor have they the character or quality *141of grants. They are agencies. With few exceptions, they are voluntarily taken and may at any time be resigned. They are created for the benefit of the public, and not granted for the benefit of the incumbent. Their terms are fixed with a view to utility and convenience, and not for the purpose of granting the emoluments during that period to the officeholder. * * *
“The prospective salary or other emoluments of a public office are not the property of the officer, nor the property of the State. They are not property at all. They are like daily wages unearned, and which may never be earned. The incumbent may die or resign, and his place be filled, and the wages be earned by another. The right to the compensation grows out of the rendition of services, and not out of any contract between the government and the officer that the services shall be rendered by him.”
It may be added that a fundamental difference between an office and property is that an office cannot be transferred by the incumbent. It is neither transmissible nor inheritable. Upon his induction into office, he acquires the legal right fi> exercise its functions and to receive the salary which he earns, either to the end of his term or until his resignation or the lawful determination of his right thereto.
That case is well reasoned, and while there are some cases with which it cannot be reconciled, it is fully supported‘by other cases and by sound logic.
Many of the cases involving the right to office have been the result of bitter political antagonism—notably the case of Taylor v. Beckham, 178 U. S. 548, 20 S. Ct. 890, 900, 44 L. Ed. 1187. This case involved the contest over the office of Governor of Kentucky, Goebel, the Democratic candidate, having been killed just before he expected to be inaugurated. The case was carefully considered by the Supreme Court of the United States, and since then the question as to whether offices are property should be regarded as finally settled. The court stated: “The decisions are numerous to the effect that *142public offices are mere agencies or trusts, and not property as such. Nor are the salary and emoluments property, secured by contract, but compensation for services actually rendered.” The court held that one deprived of an office could not invoke the fourteenth amendment of the Federal Constitution, providing that no person shall be deprived of life, liberty or property without due process of law. Wilson v. North Carolina, 169 U. S. 586, 18 S. Ct. 435, 42 L. Ed. 866; Butler v. Pennsylvania, 10 Howard (U. S.) 402, 13 L. Ed. 472.
The case of Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 633, 46 L. R. A. (N. S.) 796, is another such case. There McGovern, the Governor, undertook to remove Ekern, the commissioner of insurance, a statutory officer, three years before the expiration of his term. His authority therefor was a statute giving him authority to remove “for official misconduct, habitual or wilful neglect of duty,” at any time during the recess of the legislature. The Governor and the insurance commissioner differed in a hot political contest as to who should be elected speaker of the house, and the commissioner was removed on an hour’s notice, without any opportunity being given to defend himself, upon a charge that he served “as and under the political committee and as manager of the political campaign for one L. L. Johnson, who was then and there a candidate for the office of Speaker of the Assembly of the State of Wisconsin, contrary to the provisions of section 1966y of the Statutes.” At this hasty hearing the first objection to the proceeding was that the statute conferred authority upon the Governor only when the legislature was not in session, and that as the Assembly was to convene at twelve o’clock, noon, on that day, the Governor was without authority to exercise the power at any time on that day. The court decided against the Governor for many reasons elaborately expressed (the entire case covering 171 pages of the official report), the most obvious being the arbitrary exercise of a doubtful power (the legislature being about to convene) and *143of insufficient notice. There were two dissenting opinions, in which it is stated that the majority .of the court repudiated two well-considered precedents in Wisconsin. The result of the case indicates then that the courts will disregard some precedents rather than sanction the abuse of executive power under such statutes.
Chief Justice Winslow, in his dissenting opinion, avowed himself to be no worshiper of precedents, and that he had joined in the slaughter of precedents on numerous occasions, and felt that he was rendering good service to the Commonwealth because he thought they were wrong in principle or to have outgrown their usefulness owing to changed conditions and increasing knowledge. He indicated some of his grounds of dissent in this language, which expresses, I think, great wisdom: “The most serious infirmity in the decision in this case, as I regard it, is, not that it refuses to follow precedent, but that it is really a step backward—a signal to retreat rather than to advance. The present case is a case where a very important State office is at stake, but the principles decided apply as well to every ministerial officer, however, insignificant, whose removal is provided for by a statute similar to section 970, and there are many of them. Every such officer is by this decision fortified and entrenched.in his office. Proceedings to remove him on the part of his superior will be of little avail so far as immediate results are concerned. If he can persuade a court that he is acting in good faith, he can practically deny the power of his superior to remove him and remain in his office for months while the necessary slow processes of the law in circuit and supreme court are reaching a result. The arm of the superior officer will be rendered nerveless, and the man who is charged with responsibility for results will have practically no certain means of achieving results because unable to command efficient service from his subordinates. Such is not the genius of the democracy of today, much less of the democracy of the future. That *144democracy will unquestionably elect a few men as the heads of its various departments, and demand of them results. * * *
“And so I say that this decision is a step backward; it tends to< hamper the responsible heads of departments of the government ; it seeks to return to the exploded idea that there is some private property right in an office, whereas the true idea is that it is simply an opportunity to serve the State.
“The idea that some designing man will build up a despotism on the ruins of our liberties, if he be given the right of removal from office without notice or hearing, cannot be seriously entertained. There is no such danger in these days. It is the merest myth. The danger is rather that the responsible head of a governmental department will not have authority enough over his working force to' perform the duties which the people have placed upon him and for the performance of which he is directly responsible. For this reason T regard the present decision as an unfortunate step in the wrong'direction.”
To fail to study and respect applicable precedents would be to disregard the wisdom of experience, and result in confusion and uncertainty; to follow precedents without subjecting them to the test of reason would be to deal with the law as though it were so lifeless as to make its improvement impossible. Because our law should improve by growth in order to meet the changing needs of a progressive ’people, those precedents which under closer study, .wider experience and new conditions fail to meet the test of reason should be disregarded or distinguished. Only thus can the courts meet their responsibilities and prove their claim to be the best instrumentality yet devised for the promotion of that perfect justice among men, which we seek after, if haply we may find it.
It is so well settled in this country that an office is not property that it seems unnecessary to multiply citations of cases so holding. The only State in which the contrary was ever held was North Carolina, and in the later case of Mial v. *145Ellington, 134 N. C. 131, 46 S. E. 961, 65 L. R. A. 697, the view previously expressed was positively repudiated. Note, 4 A. L. R. 205; Luckett v. Madison County, 137 Miss. 1, 101 So. 851, 37 A. L. R. 814.
It should also be regarded as finally settled by the overwhelming weight of authority that the fourteenth amendment of the United States Constitution and similar provisions in State Constitutions cannot be invoked by one who is removed from office. That clause guarantees due process of law and equal protection of the laws as to personal and property rights, but cannot be properly invoked in cases of removal from office, because offices are not property.
The avowed basis of the majority opinion is that the power of removal is so essentially a judicial power that it cannot be conferred upon the Governor without violating the constitutional provisions relating to the separation of the executive, legislative and judicial powers. The same question is raised in almost every such case, and it has been frequently considered by the courts.
Almost every court which has held that it is so essentially a judicial power that it can only be exercised in a judicial proceeding has based that conclusion upon the unsound theory that an officeholder has a property right, or, as sometimes expressed, a “vested interest.” There is abundant authority repudiating this idea. Throop on Public Offices, sec. 345.
In Territory v. Cox, 6 Dak. 510, this is said: “The authorities holding that removal from office is a judicial power and can be exercised only by the courts are based upon the theory that an office is in the nature of a property right, and that the citizen can be deprived of it only by ‘due process of law,’ while the other line) of decisions holds that under our form of government there is no property in an office, that offices and officers are for the benefit of the people, and not for the benefit of the officers, and that whenever the officer fails to perform the duties of the office, the office becomes *146forfeited, and that the only object of the examination necessary to determine such forfeiture is such as will establish the fact, not to the satisfaction of, or for the benefit of, the incumbent, but to the satisfaction of the executive department which is charged with the execution of the laws, and that hence the removal may be summary, or upon such investigation as may be prescribed by the legislative department.”
So also in the much cited case of State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228, 234, this is said: “But these decisions have, as a rule, proceeded upon the ground that an incumbent has a property in his office, and that he cannot be deprived of his right without the judgment of a court. This view finds support in the doctrines of the common law, which regarded an office as a hereditament, but has no foundation whatever in a representative government like our own.”
The courts have exclusive power to hear and determine those matters which affect the life, liberty or property of the citizen, because no person can be deprived of life, liberty or property without due process of law; but all other rights, although they may necessitate an inquiry in some sense judicial, should not be held to be within the jurisdiction of the court to the extent that their exercise by another department, duly authorized, would be void.
This statement of the generally accepted doctrine from 12 C. J. 399, is well supported by the weight of authority: “Although a statute authorizing a removal by the Governor or other executive officer for cause contemplates an investigation by such officer of the grounds of complaint,' and the formation of a judgment by him, it does not constitute an encroachment on the judiciary, since the judgment and discretion to be exercised is of an executive and not of a judicial nature.”
The case of Donahue v. County of Will, supra, approves this view, saying this: “It may, in many cases,' be a matter of difficulty to determine the precise line which divides the exec*147utive and judicial functions. It has been said that where the functionary hears, considers and determines, then he performs judicial acts. This definition is not strictly accurate. * * * There is in every ministerial or executive act a necessity for the hearing of evidence, a consideration of the evidence, and a determination based on it. * * * So it is seen the definition is by no means accurate. It embraces cases that are not judicial, and hence is too comprehensive. From the cases we have referred to, it will be seen that such a removal as this was not regarded as judicial in its nature, and such acts were held valid notwithstanding they were performed by a single executive officer, or by an executive body.”
In State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228, 232, the Governor, by statute, had been given power to remove police commissioners of cities for cause, and in referring to this phase of the case it was said: “In answer to the information, it is claimed by the respondents, that the Governor had no power to remove them; and, again, that if he had, it was not properly exercised.
“The first claim is upon the assumed ground, that the power conferred on the Governor by the statute to remove any of them for official misconduct is judicial in its nature, and, though conferred by the act, cannot be exercised, as the judicial power of the State is, by section 1, article 4, of the Constitution, conferred upon the courts of the State only.
“This is not to be regarded as an entirely new question. It has been much discussed by courts and writers, without being able to formulate any general rule upon the subject. What is judicial power cannot be brought within the ring-fence of a definition. It is undoubtedly power to hear and determine; but this is not peculiar to the judicial office. Many of the acts of administrative and executive officers involve the exercise of the same power. Boards for the equalization of taxes, of public works, of county commissioners, township trustees, judges of election, viewers of roads, all, in one form or an*148other, hear and determine questions in the exercise of their functions, more or less directly affecting private, as well as public rights. It may be safely conceded, that power to hear and determine rights of property and of person between private parties, is judicial, and can only be conferred on the courts. (Merrill v. Sherburne, 1 N. H. 199 [8 Am. Dec. 52].) But such a definition, does, not necessarily include this case. The incumbent of an office has not, under our system of government, any property in it. His right to exercise it is not based upon any contract or grant. It is conferred on him as a public trust to be exercised for the benefit of the public.”
The Kansas court took the same view in McMaster v. Herald, 56 Kan. 231, 42 Pac. 697, 698, for it said: “The defendant challenges the right of the Governor to investigate any charge of official misconduct with a view to removal from office. He contends that such a power cannot be conferred upon the Governor, nor, indeed, upon any other person, officer or tribunal but the courts. This would be an interesting question, if new, but it is not new. It received very full examination and consideration in the case of Lynch v. Chase, 55 Kan. 367, 40 Pac. 666. It was there held (Justice Johnston delivering the opinion of the court) that it is within the power of the legislature to provide a summary method of removing incompetent and unfaithful officers, and to that end it may confer authority upon executive officers; and that while the proceeding to remove from office for cause involves the examination of facts, and the exercise of judgment and discretion, by the executive.officer, his action is not judicial, in the sense that it belongs exclusively to the courts.”
So, too, in the case of State v. Frazier, 39 N. D. 430, 167 N. W. 510, 513: “It is generally held that the power of removal from office is not a judicial, but an administrative, power, though it should be exercised in a judicial manner. The exigencies of the government often require the prompt *149removal of corrupt or unfaithful officers, and, such being the case, the legislature has the power to provide for removal.”
State v. Ross, 31 Wyo. 500, 228 Pac. 636, 641, thus answers the objection: “Quasi judicial power has been defined as the power to perform acts administrative in character, but requiring incidentally the trial and determination of questions of law and fact. 36 Harvard L. Rev., p. 420. This is the character of the power of the board of control as considered in Farm Investment Co. v. Carpenter [9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918], supra, and of the Governor as conferred upon him by the challenged statute. Such a power is not one properly belonging to the judiciary, within the meaning of section 1 of article 2 of the Constitution. This view finds support in a great number of authorities, of which we cite only a few-”
Acting under a statute substantially similar to the Virginia statute under review, the Governor of North Carolina suspended the railroad commissioner of that State, for causes authorized by the statute. The action of the Governor was upheld in State ex rel. Caldwell v. Wilson, 121 N. C. 425, 28 S. E. 554. A writ of error in the case was dismissed by the Supreme Court of the United States, Wilson v. North Carolina, No. 559. 169 U. S. 600, 18 S. Ct. 435, 42 L. Ed. 865, referred to the same controversy, confirming that result.
Other cases to the same effect are, State v. Oleson, 15 Neb. 247, 18 N. W. 45; State v. Doherty, 25 La. Ann. 119, 13 Am. Rep. 131; Gray v. McLendon, 134 Ga. 224, 67 S. E. 859; State v. Dahl, 140 Wis. 301, 122 N. W. 748; State v. Wells, 210 Mo. 601, 109 S. W. 758; State ex rel. Rawlinson v. Ansel, 76 S. C. 395, 57 S. E. 185, 11 Ann. Cas. 613; Gibbs v. Board of Aldermen, 99 Ky. 490, 36 S. W. 524; Cameron v. Parker, 2 Okla. 277, 38 Pac. 14; Churchill v. Hay, 45 Neb. 321, 63 N. W. 821; State ex rel. Vogt v. Donahey, 108 Ohio St. 440, 140 N. E. 609.
Among "the cases cited and relied upon for respondent is Board of Police Commissioners of Jersey City v. Pritchard, *15036 N. J. L. 101. That case, while containing many sound expressions, is of little value in determining the question presented here, because there the Governor undertook to exercise the power to remove an officer without having any legislative authority whatever for his action. In the later case of McCran v. Gaul, 95 N. J. L. 393, 112 Atl. 341; Id., 96 N. J. L. 165, 112 Atl. 603, the New Jersey court held that the power to remove an officer may be conferred upon the Governor by law, and referred to the fact that Chief Justice Beasley, in the Prichard Case, was careful to point out that no power of removal had then been conferred upon the Governor.
Another case relied upon for respondent is Page v. Hardin, 8 B. Mon. 648. This case was decided in 1848, and cannot, as to this point, be reconciled with the later Kentucky case of Holliday v. Fields (1925), 207 Ky. 463, 269 S. W. 539, 540. The opinion did not refer to the earlier Kentucky case (possibly because it recalled a painful political controversy in which the actors were all dead), but cites many later cases, and in this language holds that the power to remove an officer is an administrative power: “On principle and on authority, we are clearly of the opinion that the power of removal from office of peace officers here in question is an administrative, or executive function and not a judicial one, and the authority vested in the Governor to hear and determine the facts on which he is to base the exercise of his judgment and discretion is not judicial in the sense that it belongs exclusively to the courts.”
The much cited case of Dullam v. Wilson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128, is also- relied upon by the respondent. It holds that the removal of an officer is the exercise of a judicial power. That opinion from an able court has done and continues to do much evil. It seems to be based upon the idea that an office is property. The fundamental support for that view has been distinctly repudiated in a later case by the Michigan court, for in Attorney-General v. Jochim, *15199 Mich. 358, 58 N. W. 611, 613, 23 L. R. A. 699, 41 Am. St. Rep. 606, we find this: “A public office cannot be called ‘property,’ within the meaning of these constitutional provisions. If it could be, it would follow that every public officer, no matter how insignificant the office, would have a vested right to hold his office until the expiration of the term.”
Other cases are cited which support some of the contentions for respondent, but I think that they are based upon unsound premises and that all can be distinguished from the case in judgment.
A Virginia case relied upon is Edimston v. Campbell (1792), 1 Va. Cas. (3 Va.) 16. In that case Campbell, the defendant, had been appointed a justice of the peace in 1776. The General Assembly thereafter passed an act which empowered the Governor and council to remove a justice of the peace for misconduct, under which the defendant was removed. Thereafter, in 1787, there was a legislative act which declared that the former statute under which the defendant had been removed was unconstitutional, and so repealed it; whereupon defendant again began to exercise the powers of his office of justice of the peace. There was thereafter an action against Campbell to recover a statutory penalty for illegally acting as a justice, which resulted in favor of complainant, “if the law was for him.” The general court, not being required as we are to write opinions, decided the case in these words only: “The law is for the defendant.” It is at once observed that whatever plausible arguments may be based thereon, the case should not be construed to support the propositions contended for by the respondent. There the General Assembly itself repealed the act under which the defendant had been removed, declaring it unconstitutional, and this court merely construed the repealing act as sufficient to accomplish the pur-, pose of the General Assembly.
That there have been differences of opinion among the courts is perfectly apparent, but I am of opinion that the *152better reason clearly'supports the conclusion that the power of removal for cause vested in an executive officer is not so essentially judicial in all of its aspects as to come within the constitutional inhibition providing for a separation and division of the essential powers of government.
In Bland and Giles County Judge Case, 33 Gratt. (74 Va.) 450, this court clearly recognized the manifest distinction, so frequently overlooked, between the lawful removal of an official, under express authority, and the forfeiture of an office for some cause, in this language: “An office is terminated proprio vigore by resignation, expiration of term and by removal by competent authority. But in other cases the office is not terminated ipso facto by the occurrence of the cause.”
In State v. Walbridge, 119 Mo. 383, 24 S. W. 457, 460, 41 Am. St. Rep. 670, this view of such statutes—that is, those which do not authorize removal without notice, but do provide for removal and fail to provide specifically for notice—is expressed: “It is true that neither charter nor ordinance make any provision for the means whereby the amotion of an appointed officer is to be effected; but where a grant of power is given, all the means necessary to effectuate the power pass as incidents of the grant. * * *
“In the case presented, the power to amove the officer is ‘for cause,’ and no notice is mentioned as requisite to be given to the officer to be proceeded against. But the law, in accordance with the principles of justice—principles which are fundamental and eternal—will require that notice be given before any person be passed upon, either in person, estate,' or any other matter or thing to which he is entitled; and though the statutes do not, in terms, require notice, the law will imply that notice was intended. Laughlin v. Fairbanks, 8 Mo. 370; Wickham v. Page, 49 Mo. 526; Brown v. Weatherby, 71 Mo. 152. And what the law will imply is as much part and parcel of a legislative enactment, as though set forth in terms. State v. Board of Equalization, 108 Mo. 235, 18 S. W. loc. cit. 784; *153Sutherland on Stat. Construction, sec. 334, and cases cited.” 12 Am. & Eng. Anno. Cas. 996.
Pertinent citations and quotations might be greatly multiplied, but to do so would only demonstrate the impossibility of reconciling the various expressions of the courts. The latest collection of these cases, as we are advised, is found in the note to People ex rel. Johnson v. Coffey (237 Mich. 591, 213 N. W. 460), 52 A. L. R. 7. The annotator summarizes his own conclusions (52 A. L. R. 32) thus: “(1) The question whether the Governor’s decision is conclusive or subject to review by the courts is one depending to a considerable extent on constitutional and statutory provisions, since arbitrary power may be thereby conferred, and the matter left entirely in the Governor’s discretion, in which case the questions discussed in the present annotation do not usually arise; (2) where the power of removal is given for cause or for reasons specified, the Governor’s decision on disputed questions of fact is final as regards the facts, and cannot be reviewed by the courts, if there is some evidence to’ support them; (3) where the Governor assigns a legal cause for removal, the courts will not inquire into his motives, and at least will not go further than to determine whether there was some evidence substantially tending to support his conclusion; (4) the courts may determine the question whether the Governor had jurisdiction to remove the officer; (5) the question whether the cause assigned by the Governor for removal is a legal cause for which he is authorized to act is one which, according to the weight of authority, may be passed upon by the courts, going, it seems, to the question of jurisdiction, although there is also authority to the effect that the Governor need not assign any reason for his action in removing an officer; (6) the courts may review the action of the Governor in removing an officer in a clear case where he has acted arbitrarily or capriciously, though this is a delicate matter into which the courts obviously would go very reluctantly; and political reasons or considera*154tions cannot be a matter of judicial investigation; (7) the question of the form of the remedy is important, since the action by which it is sought to review the act of the Governor in removing the officer may fail on the ground that that officer is not subject to the particular relief sought, such as mandamus; and, although there are authorities holding that certiorari will lie to review the decision of the Governor in removing an officer, this view has been rejected by other courts.”
Out of this Babel comes the confusion of tongues, many voices that enlighten and many that darken counsel—words wise, and otherwise.
We should then leave the subtleties of judicial expressions in other cases involving different facts and consider the realities of this case. The power conferred by the statute is great because the evil to be corrected is also great, but the power granted is neither unlimited nor arbitrary. No arbitrary exercise of the power of removal is authorized by the statute, nor has there been any arbitrary exercise of it against Weston by the Governor; nor does the statute either deny or attempt to prohibit the exercise by the courts of any judicial power previously existing. If and when a Governor shall abuse the limited power granted by this statute, the courts can and should correct the abuse and will need no legislative authority therefor. Whenever a county treasurer who is not in default is removed without any notice, and a petition for mandamus is presented to a court asking that the Governor’s appointee shall have its process to enforce his occupancy of the office, then the court should certainly exercise its discretion to refuse the mandamus and leave the parties to assert their conflicting rights in such other method as may be provided by law. There are two other remedies—one open to the public under Code, section 2705, known as the “ouster law,” and the other open to Weston by writ of quo warranto under Code, section 5841.
That too many county treasurers have been negligent, inefficient, or criminal, in the discharge of their duties to collect, *155conserve and have the public revenues in hand ready for the public use, as required by law, is a matter of common knowledge. That the ordinary processes of courts for the enforcement of their legal obligations and imperative official duties as to the collection and custody of the public funds are quite inefficient is illustrated by two recent cases decided by this court.
In Clevinger v. County School Board, 139 Va. 444, 124 S. E. 440, the county treasurer retired from office December 31, 1919. After a prolonged litigation for the settlement of his accounts, in which he was found to owe the county school board a considerable sum of money, the case finally reached this court, and was decided September 18, 1924, so that for nearly five years the local public schools were conducted without the benefit of the funds contributed by the taxpayers for their support.
In Stinson v. Board of Supervisors, 153 Va. 362, 149 S. E. 531, the county treasurer was found to be in default before his term had expired. Six months before the expiration of his term, in June, 1927, the board of supervisors filed a bill praying for a full accounting and recovery against the county treasurer and his sureties. It was found that as of August 29, 1927, the amount due was $116,290.82. The treasurer, however, continued in office and by the time his term ended, Decemebr 31, 1927, his default had increased to $136,493.75. All of this large amount collected from taxpayers for public purposes was withheld for more than two years. The suit was prosecuted with extreme diligence, but it took nearly two years to secure final judgment against the treasurer and his sureties.
It was because of the probability of the repetition of such public injuries that the General Assembly adopted the statute under review. That its purpose was wise and in the public interest is manifest, and that this legislative expression should be made effective, if not prohibited by the Constitution, must be apparent to all.
*156Said John Marshall: “Let the end be legitimate, let it be within the scope of the Constitution; and all means which are appropriate, which are clearly adapted to' that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.”
It is impossible to read the stipulation as to the facts without perceiving that, for the purposes of this proceeding, it is conceded that the Auditor of Public Accounts, a sworn public official, in the performance of the duties imposed upon him by law, found that respondent, Weston, was on May 17, 1930, indebted to the county of Lee in the sum of more than ninety-nine thousand dollars, and on the same date owed to the State of Virginia $4,399.09, for which indebtedness he could only show in cash or cash items the sum of $8,127.02. 'He was not, however, then removed. A subsequent official audit of his accounts showed that as of October 22, 1930, he owed the county of.Lee more than ninety-nine thousand dollars, and that on that date he had in cash or cash items only the sum of $7,022.68. He certainly must be presumed to have had notice of these official examinations and of the results shown thereby.
The demurrer admits, for the purposes of this case, the allegations of the petition, and does not controvert the statements of the Governor, filed as exhibits with the petition, which show that there had been two official audits of his accounts showing his dereliction, and also' that Weston had been afforded ample time in which to disprove the correctness of the audits and had failed to' do so; all of which necessarily implies notice, opportunity and failure to discredit the evidence of default; and he was not suspended until November 29, 1930.
These being the facts, we are asked to refuse to co-operate with the General Assembly and the executive, and so defeat their commendable efforts to enforce this and other statutes, upon a fanciful construction of the Constitution which has *157been frequently repudiated. I repeat, the General Assembly did not vest the Governor with any arbitrary or unlimited power under this statute. On the contrary, only with a necessary, natural, limited and proper executive power to prevent the continuance of a public wrong by suspending an officer for dereliction in his duty, and the Governor has not undertaken to exercise the power so conferred in an arbitrary manner. The statute regulating mandamus (Code, ch. 239) authorizes the respondent to raise issues upon the facts alleged and to take depositions to establish his contentions. Had this respondent taken advantage of this his latest opportunity to exculpate himself, and had he averred and shown any fair reason to doubt that he had failed to’ discharge his official duties, certainly I should have regarded this to be a sound appeal to our judicial discretion and would have acquiesced in refusing the mandamus. That, however, is not the case before us.
My conclusion is that the statute is a reasonable exercise of legislative power, reserved by Constitution, section 63, and expressed by Constitution, section 56; that it confers executive power only, and for the purpose of correcting a crying-public evil; that it does not in any respect limit the appropriate exercise of any judicial power; and that certainly the petitioner has the prima facie right to exercise the powers and perform the duties of the office as to* which the respondent has been derelict. I think, therefore, that the mandamus should be issued.
Since writing this opinion, which is longer than is necessary and was written in the vain hope that it would convince the majority, I have read the opinions which are approved by the majority, taking the contrary view.
I feel that, lest I be misunderstood, some reference should be made to the citation therein from 2 Minor’s Inst. (3d ed.), p. 33, and the cases cited in that connection. I am in perfect accord with all of those cases. Maddox v. Ewell, 2 Va. Cas. *158(4 Va.) 59, is typical. There Alexander, a justice of the peace, had accepted an office which it was contended vacated his office as justice of the peace, and hence made his certificate thereafter as justice a nullity. Statutes like that differ very materially from the statute here involved. In such cases— that is, cases which provide that in certain events offices shall become vacant—must be construed by the courts. Such statutes do not purport to vest any executive official with power to suspend an officer and appoint his successor. The office in such case is vacated by force of the statute and not by authority of the court, and there is no provision for a successor. The difference between such statutes and the one here under review seems to me quite apparent, and so I regard such cases as affording slight aid in the determination of the questions here presented. The purpose of this statute is to provide a summary remedy to correct public wrongs, and as I understand the majority have concluded that such a remedy cannot be accomplished by any statute, and that in every case a formal judicial procedure is necessary. Of course, this entails the customary delays incident to such proceedings. As it seems to me, this is a backward step which denies essential governmental powers and seriously hampers the legislative and executive departments in their efforts to provide for orderly government.
Gregory and Browning, JJ., concur in dissenting opinion of Prentis, C. J.