(dissenting) : The burden was upon the state to establish by evidence that the defendants were guilty of willful misfeasance or malfeasance in office. The majority opinion practically concedes that the state has failed to establish either fact. There is no law which requires the city to levy a tax where, as is shown in this case, no tax was necessary. True, the legislature has declared that the mayor of cities of the third class “shall” appoint a city marshal ’by and with the consent of the couricil. For a number of years this village of les’s than twq hundred inhabitants managed to get along without the services o'f a marshal and several preceding administrations ignored the. mandate of the statute without disastrous consequences'. From this it *479seems far more probable - that in refusing to confirm the mayor’s appointment of a marshal, the defendants acted in good faith than that they were seeking to humiliate and embarrass the mayor. Since the state has utterly failed to do more than raise a suspicion of bad faith on a part of the defendants the case should be dismissed. To retain jurisdiction and continue the case for further proceedings in the event the defendants’ official conduct in the future fails to meet with our approval seems to me to assume powers which are, at least, not judicial. If the defendants are guilty of misfeasance or malfeasance in office the court should so declare and judgment of ouster should be entered. On the other hand, if the state, after taking the depositions of dozens" of witnesses, has failed to establish the defendants’ guilt, the court should so declare and judgment should be given for the defendants. Aside from the public interest occasioned by the notoriety given it by the press, the case, in my opinion, never had any importance or merit.