dissenting. — Being unable to concur in the foregoing opinion, it is proper that I should briefly state the grounds upon which I base my dissent. I concede that the governor was not required to determine whether the statute was constitutional or not, and therefore he had the power to appoint the commission, and, upon the coming in of the *202report, to suspend the auditor. The statute evidently contemplates that the suspension may be temporary, and it just as clearly contemplates, in my judgment, that it may be permanent. It is conceded in the foregoing opinion that the plaintiff has the right to test the constitutionality of the statute in this proceeding, and it is practically conceded that the plaintiff' is illegally restrained, and is entitled to be discharged, if the statute is unconstitutional. It is fundamental, and the constitution and statutes of this state are based on the thought, that no person can be deprived of a substantial right without an opportunity of being.heard in defense of such right. The statute in question contains no such provision. The governor appoints the commission, and in so doing he is not required to consult or advise with the officer whose office is to be examined. There is no provision of the statute requiring the commission to give the officer an opportunity to be heard before it and make explanations.
Upon receiving the report of the commission, the governor, in his discretion, has the authority to suspend the officer; and, if the governor does so, the officer is deprived of the right to perform the duties of the office; and if the suspension is lawful, it is, to say the least, doubtful whether the officer is entitled to the emoluments of his office during the time it is in force. 1 regard it as undoubtedly true that, by reason of the suspension, the plaintiff has been deprived of a substantial right. If the commission reports that the state is “ liable to suffer loss,” the governor is not required to examine into the truth of the report, or to hear any excuses or explanations the officer may desire to make; but, on the contrary, the statute provides that he “ shall suspend such officer from the exercise of his office, and require him to deliver all the money, books, papers and other property of the state to the governor.”
It is intimated in the foregoing opinion, as I understand, that the governor should, after suspending the officer, proceed promptly to investigate the truth of the report. But *203the statute does not so require. The governor is not bound to make such investigation. He may do so if he chooses, and he probably has the power to revoke the suspension; but suppose he does not, then the temporary suspension becomes permanent. The constitutionality of the statute cannot be made to depend on the will of the governor to make or not make an investigation, or revoke the suspension at his will or pleasure. It is not suggested in the foregoing opinion that there is any statute which gives the plaintiff an opportunity to be heard, and to test the truth of the charges against him, in any court, or before any person or tribunal vested with judicial powers, and therefore I assume there is none.
The conclusion reached by me is that the statute in question is unconstitutional, because no provision is made whereby the plaintiff has the right to test the truth of the charges against him before some tribunal or person vested with judicial powers. The restraint of the plaintiff is illegal, and he should be discharged.
Beck, Ch. J., did not participate in the decision of this cause, being prevented from attending the terms at which it was argued orally by the dangerous illness of his wife. Neither were any briefs or arguments on the part of defendant, nor the papers in the case, sent to him. He therefore took no part in its decision.