(dissenting). The order appealed from should be affirmed for two reasons: (1) Because the certificate of appointment held by Mr. Anderson gave him the prima, facie right to the office and the right to the possession thereof until the question of title was tried in an appropriate proceeding brought for that purpose, and (2) because the governor had the right under sec. 970', Stats., to remove Mr. Ekern without hearing or notice, and the courts have no jurisdiction to pass upon the sufficiency or insufficiency of the evidence on which action was taken, and Mr. Anderson was both the de facto and de jure commissioner of insurance.
Practically every substantial question of law involved in the case, with possibly a single exception, has already been passed upon by this court. This being so, the decisions of foreign jurisdictions are of little consequence unless they suffice to convince the court that it should overrule its former decisions. I think our decisions and our statute law meet the case we have before us fully and fairly, hence this dissent.
The title to a public office cannot be tried in an equity action. Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169; State ex rel. Lochschmidt v. Raisler, 133 Wis. 672, 114 N. W. 118; State ex rel. McCoale v. Kersten, 118 Wis. 287, 95 N. W. 120; State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296; State ex rel. Rinder v. Goff, 129 Wis. 668, 109 N. W. 628.
An injunction will not lie to preserve the statics quo in favor of a person in possession of an office and making a good-faith claim of title thereto, unless it clearly appears that *291snob party is in fact entitled to tbe office. Ward v. Sweeney, supra. While two members of the court did not agree to all •that was said in the opinion in that case, the entire court did agree that the law was as above stated.. See opinion of court, 106 Wis. 49, 50; concurring opinion of Mr. Justice Marshall, pp. 56, 63, and concurring opinion of Mr. Justice Bardeen, p. 63. Such is the law generally in reference to the issuance of injunctions pendente lite-hi equity actions. Sheldon v. Rockwell, 9 Wis. 166; Warden v. Fond du Lac Co. 14 Wis. 618; Pettibone v. La C. & M. R. Co. 14 Wis. 443; Cobb v. Smith, 16 Wis. 661; Manshall v. Pinkham, 52 Wis. 572, 9 N. W. 615; Converse v. Ketchum, 18 Wis. 202, 206; T. B. Scott L. Co. v. Oneida Co. 72 Wis. 158, 39 N. W. 343; Walker v. Backus H. Co. 97 Wis. 160, 72 N. W. 230; Tiede v. Schneidt, 99 Wis. 201, 211, 74 N. W. 798. There is but one well recognized exception to this general rule, which is found in such cases as Valley I. W. M. Co. v. Goodrich, 103 Wis. 436, 78 N. W. 1096; Glassbrenner v. Groulik, 110 Wis. 402, 404, 85 N. W. 962; Quayle v. Bayfield Co. 114 Wis. 108, 89 N. W. 892; Bartlett v. L. Bartlett & Son Co. 116 Wis. 450, 460, 93 N. W. 473; Milwaukee E. R. & L. Co. v. Bradley, 108 Wis. 467, 486, 84 N. W. 870. Manifestly the instant case does not fall within the exception.
The holder of a certificate of election is entitled to the possession of an office pending the trial of title thereto as against an incumbent in possession who_ makes a good-faith claim of title. This was expressly decided in La Pointe v. O’Malley, 46 Wis. 35, 55, 50 N. W. 521, where it is said that when the canvass “shows the election of an individual to a particular office, and he qualifies within the time and in the manner prescribed by law, he is entitled to the office as against every other person laying claim thereto, until the result of the election -so declared is set aside by the judgment of some competent court in a direct proceeding for that purpose. In such *292case, the person declared to have been elected is- not required to institute a proceeding to have the judgment which has already been given in his favor confirmed by the judgment of a court, before he can enter upon the duties of his office.”
The same question came before the court in State ex rel. Jones v. Oates, 86 Wis. 634, 57 N. W. 296, and it was again held that a certificate of election carried with it the- prima fade right to the office as against an incumbent in possession claiming title, and that such' prima fade right included the right to the possession of the office pending the trial of title thereto. After stating the rule the court uses the following language: “To this, we think, there is but one exception, and that is when the office is already filled by a de facto■ officer.” Page 638. This exception is carried into some of the subsequent cases: State ex rel. McCoale v. Kersten, 118 Wis. 287, 293, 95 N. W. 120; State ex rel. Rinder v. Goff, 129 Wis. 668, 683, 109 N. W. 628. It is fair to assume that the court in these cases used the language of the Oates Case in the light of the explanation there given as to what was meant by it. It is there said in effect that the words “de facto officer” did not refer to one who might be a de facto officer as to the general public. Oates was in possession and was clearly such an officer, and he was ousted by mandamus in favor of the relator, who held the certificate of election. He was ousted because it was said that as to the relator, Jones, he was not a de facto officer. So the decision is that a claimant in possession is not a de facto officer as against the certificate holder and therefore has no right of possession as against him. Not only are the cases of La Pointe v. O’Malley and State ex rel. Jones v. Oates direct authority to the point that the holder of a certificate of election is entitled to the possession of the office pending a trial of title thereto as against an incumbent in possession, but the subsequent cases of State ex rel. McCoale v. Kersten, supra; State ex rel. Rinder v. Goff, supra; *293and State ex rel. Hayden v. Arnold, 151 Wis. 19, 138 N. W. 78, when correctly read are to tbe same effect.
These eases state the law as it should be. Where there is a controversy between an incumbent in possession and one holding a certificate of election, one'or the other should hold the office until the controversy is settled. Possession at best is only slight evidence of title. ‘ As between two such claimants it is eminently just and reasonable to give some effect to the certificate of election and to say that it carries the right to the possession of the office until the title is determined. This is not only a just rule, but one that avoids unseemly struggles to obtain or retain possession. The party in possession forfeits no rights and suffers no injury by surrendering possession ad interim. Every one had the right to suppose that the rule of law was firmly grounded in our jurisprudence until the present controversy arose.
I do not. think that any satisfactory reason can be given why the rule referred to should not apply here. A certificate of appointment from the executive, where the law empowers him to appoint, is entitled to the same weight and effect as is a certificate of election from a canvassing board in the case of an elective office. If- one gives the right of possession, surely the other does. So far as I have been able to ascertain, there is no conflict in the cases on the point. In fact the decisions go further and hold that mandamus will lie to put the holder of a certificate of appointment in possession of the office pending the trial of title thereto and will oust the party in possession although he claims to be legally entitled to the office. In re Sells, 15 App. Div. 571, 44 N. Y. Supp. 570; Conklin v. Cunningham, 7 N. M. 445, 38 Pac. 170; Beebe v. Robinson, 52 Ala. 66; Casey v. Bryce, 173 Ala. 129, 55 South. 810 ; Hubbell v. Armijo, 13 N. M. 482, 85 Pac. 1046; Cameron v. Parker, 2 Okla. 277, 38 Pac. 14; Elledge v. *294Wharton, 89 S. C. 113, 71 S. E. 657; State v. Herried, 10 S. Dak. 16, 71 N. W. 319.
It Ras been urged that in tbe O’Malley and Oates Oases the terms of office under which the incumbents gained possession of the offices had expired and that the controversies arose over new terms, while in the instant case Mr. Ekerris term had not expired, and that therefore there is a well grounded distinction between the former cases and the present one. A number of the cases just cited dealt with removals made during a term of office. The logic of the argument is not convincing. The governor had the right to terminate the term of office of the incumbent for certain causes. His order of removal is entitled to as much weight and consideration as is his certificate of appointment. There had been a prima facie valid removal of Mr. Ekern as well as a prifna facie valid appointment of Mr. Anderson. Until the de jure right could be determined, no injunction should issue to preclude the appointee from taking office.
For the reasons stated, if for no other, the circuit court properly dissolved the injunction. I think it was Mr. Ekerris duty under the law to have surrendered the office under protest and to then bring his action in ’an orderly way to try title. If successful, he would lose no right by so doing, not even the right to collect the salary and emoluments of the office while he was out of possession.
The next and the only question which I desire to discuss at any length is one of statutory construction. At the request of the court a reargument was made on the question of whether “due process of law” was observed in removing Mr. Ekern. I have never conceived that the question of “due process of law” was involved in the slightest degree. If the governor followed the statute in making the removal, it was valid. If he did not, it was a nullity. The legislature which creates an office has plenary power to provide how removal shall be *295made. Whoever accepts an office so created accepts the burdens as well as the benefits. He is entitled as a matter of right to so much consideration as the legislature sees fit to give him, — no more, no less. Gillan v. Board of Regents, 88 Wis. 7, 14, 58 N. W. 1042. It may provide for removal without notice or hearing or the assignment of any cause. In such a case removal may be made without notice or hearing or the assignment of cause. It may provide for removal without notice or hearing for specific causes. In such a case removal may he made without notice or hearing, hut a cause must he assigned and it must he one specified in the statute. It may provide for removal on notice and hearing for specific causes, in which case a reasonable notice and hearing must be given and the removal must he made for a cause found in the statute. It would seem to me to be almost absurd to deny this power to the legislature, and yet it seems to be done in many jurisdictions, some courts holding that the right to hold office is a property right protected by the “due process” clause of the federal constitution, and others that the power to remove is judicial and must therefore be exercised in a judicial manner. Still others seem to entertain no very well defined reason for denying the power of the legislature, and proceed on general principles to apply the same rules to removals of incumbents of offices of legislative creation that are sometimes applied to the case of officers provided for by constitutions. I do not care to discuss these foreign cases nor the statutes under which they arise. The fundamental principles involved have been settled and rightly settled by this court. This much may be said, however, that wherever the legislature evidences an intent that notice and hearing need not be given, that intent will control. Goleman v. Glenn, 103 Ga. 458, 30 S. E. 297; Cull v. Wheltle, 114 Md. 58, 78 Atl. 820, 824; Hallgren v. Campbell, 82 Mich. 255, 46 N. W. 381, 383; Field v. Comm. 32 Pa. St. 478, 481; State v. Smith, 35 Neb. *29613, 52 N. W. 700; People ex rel. Maloney v. Douglass, 195 N. Y. 145, 87 N. E. 1070; State ex rel. Caldwell v. Wilson, 121 N. C. 425, 28 S. E. 554, 561; S. C. on appeal (Wilson v. State ex rel. Caldwell) 169 U. S. 586, 18 Sup. Ct. 435; Andrews v. King, 77 Me. 224; State ex rel. Att’y Cen. v. Hawkins, 44 Ohio St. 98, 5 N. E. 228; McDowell v. Burnett (S. C.) 75 S. E. 873; People v. McAllister, 10 Utah, 357, 37 Pac. 578, 580; State ex rel. McReavy v. Burke, 8 Wash. 412, 36 Pac. 281; State v. Grant, 14 Wyo. 41, 81 Pac. 795, 799, 82 Pac. 2; Reagan v. U. S. 182 U. S. 419, 21 Sup. Ct. 842; Shurtleff v. U. S. 189 U. S. 311, 23 Sup. Ct. 535.
An office is not property, nor is the right to hold office a vested right. State ex rel. Starkweather v. Superior, 90 Wis. 612, 619, 64 N. W. 304; State ex rel. Cook v. Houser, 122 Wis. 534, 603, 100 N. W. 964; State ex rel. Wagner v. Dahl, 140 Wis. 301, 303, 122 N. W. 748; Crenshaw v. U. S. 134 U. S. 99, 10 Sup. Ct. 431, and cases cited. The guaranty of “due process of law” by the Eifth and’Fourteenth amendments to the federal constitution is extended only to life, liberty, and property. The right to hold an office created by legislative act does not involve any of these three things. If due process of law is involved at all in the present case, then a removal in whatever manner the statute provides is due process of law.
As is well said in State ex rel. Buell v. Frear, 146 Wis. 291, 298, 299, 131 N. W. 832:
“The privilege of holding a public office is not in its nature of the class of rights which are guaranteed by the constitution as the natural and inalienable rights of every citizen. It has never been treated as a natural right in our governmental system. It is in its nature a privilege which is extended to the citizens of the state upon such conditions and terms as the people in their sovereign capacity may determine.”
*297Again, it was held in Gillam v. Board of Regents, 88 Wis. 7, 58 N. W. 1042, that a statute empowering the hoard of regents to remove a teacher at pleasure was as much a part of the contract of employment. as if it were written into such contract, and that a removal might be made under it without notice or hearing. The power of amotion from office is not a judicial one under the law of Wisconsin, but is administrative, at least as to all officers whose removal is not provided for by the constitution. -Many courts hold that the power of removal is judicial, and starting with this premise they reach the conclusion, logically- enough, that it must be exercised in a judicial manner, which comprehends the giving of notice to the accused officer of the charges against him and a full opportunity to be heard thereon. Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, is a typical case of this class and contains an able and elaborate presentation of the reasons for so holding,'as well as a review of the authorities upon which the court based its conclusion. This'court, however, refused to follow the Michigan decision in the Starkweather Case, although urged to do so, and said :WThe better authority, however, is clearly to the effect that the power to remove officers for cause, though to be exercised in a judicial manner, is administrative, not judicial.” If it were held otherwise the court would have been compelled to reach an opposite conclusion in the case, because by no stretch of imagination could it be held that the relator in that cause had a judicial hearing. One of his judges was a person "who would succeed him in the office of mayor in case of removal, and another was the person who presented the charges against him. The Stark-weather Gase does not conflict with what is said in Larkin v. Noonan, 19 Wis. 82. There the court held that a sheriff was entitled to be served with a copy of the charges against him and to -a right to be heard in his defense, because sec. 4 of *298art. VI of the constitution expressly required these things. The court proceeds to hold that a hearing being so required it should be carried on after the manner of court procedure. Randall v. State, 16 Wis. 340, is to the same effect and goes no further. The same thing is said in the Starkweather Case.
The case of State ex rel. Getchel v. Bradish, 95 Wis. 205, 70 N. W. 172, was distinguished from the StaA-kweaiher Case in that it was there decided that a license to sell liquor was a vested property right of which the owner could not be deprived without due process of law, and that in a proceeding to revoke the license the town chairman, who had hired a minor to purchase liquor, was disqualified from sitting on the trial of the saloonkeeper.
The decision in the Starkweather Case was vigorously attacked by the able counsel who appeared for the relator in State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964, and was just as vigorously defended by the court, speaking through Mr. Justice Mabshall. The discussion will be found on pages 573 to 581 of the opinion. I may be pardoned for quoting a few excerpts from it:
“We recognize the doctrine of the Starkweather Case to be now, after the lapse of nearly ten years and the approvals thereof indicated, firmly established. The maxim stare de-cisis et non quieta movere must prevail against all efforts to disturb it.” Pages 574, 575.
And again: “Can there be any possible doubt as to the truth of the proposition, that what belongs to the people to do with as they deem best, those things respecting which their will is unrestrained by any constitutional limitation, they can grant upon the condition, among others, that the enjoyment thereof shall be solely secured by such remedies and administered by such tribunal as they may see fit % If there is, then the scores of boards and councils and commissions which every day act judicially in respect to such matters, without a thought on the part of anybody conversant with the law that *299their decisions are subject to judicial review, should have im-jmediate legislative attention. Does not every board of review pass upon, or have power to do so, the valuation for purposes of taxation of the property owned by the relatives and business associates of its members ? And how about the assessor, who sits as a member of such board, though its function is to pass upon, in a judicial way, his own work ? Many other illustrations quite as striking- could be given, all demonstrating the decision in the Starkweather Case is in perfect harmony with the existing, order of things, generally, and showing that the disquisitions found in some judicial literature respecting purity of judicial methods, as to members of ■a tribunal such as the one in question, applying to them the test for a judge as to qualifications for the performance of his official duties, are all wrong. Such things sound well to the ear, as do all lofty sentiments regarding the preservation of spotless judicial integrity and shielding the courts even from danger of every opportunity for a well grounded suspicion as to their decisions being influenced by ulterior matters, hut when illegitimately applied to a mere ministerial officer in the performance of administrative duties, merely because he is clothed with some discretion in the matter, denominated quasi-judicial authority, are liable to lead to judicial error and to promote harmful impressions among the people.” Pages 575, 576.
Speaking further of the nature of the power of a political committee to determine who were the nominees for office, the discussion proceeds:
“But we choose to rest the competency of the members of such committee on the broad doctrine of State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304. It was a mere administrative body, not a court in any sense, nor were its members expected to exercise the functions of judges, strictly speaking. The matter to be dealt with was a mere legislative privilege, grantable upon any condition the legis-. lature saw fit to impose. The tribunal was given unqualified authority in respect thereto, so long as it proceeded within its appropriate sphere. Hone of the rules disqualifying judges- *300or jurors Rave any application to such, a situation.” Page 581.
If it were possible to approve of the holding in the Stark-weather Case that the power to remove an officer was administrative, by emphatic iteration and reiteration, the doctrine was approved in State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964. It had already been quoted with approval in Nehrling v. State ex rel. Thal, 112 Wis. 637, 639, 88 N. W. 610, and was subsequently approved in State ex rel. Wagner v. Dahl, 140 Wis. 301, 303, 122 N. W. 748. The point expressly decided in the eases referred to was decided sub silentio or else overlooked in State ex rel. Gill v. Watertown, 9 Wis. 254; State ex rel. Kennedy v. McGarry, 21 Wis. 496; and State ex rel. Willis v. Prince, 45 Wis. 610. The question should be at rest in this state so far as the courts are concerned if the doctrine of stare decisis means anything. It is true it is said in the Starkweather Case that the administrative power of removal must be exercised in a judicial manner. This expression can mean nothing more than that, when notice and hearing is required by law as it was in that ease, the proceeding should be carried on somewhat like court proceedings.
So.I think that clearly the only question arising on the point under consideration is: Does the statute require the giving of a notice of hearing and an opportunity to be heard as a condition precedent to removal? If it does not, whatever was accorded to the plaintiff in the way of a notice and hearing was given as a matter of grace and not of right, and he has no cause to complain about the inadequacy of the opportunity afforded to be heard. In this connection it will be observed that the statute does not expressly provide for notice or hearing, and if either is required it must be read out of the statute by implication. It may be further observed that such requirements cannot be interpolated into the statute unless it *301is apparent that the legislature intended they should he. When we consider the history of this legislation, it is about as certain as anything of the kind can he that there was no such legislative intent. To my mind that conclusion is as inevitable as the result of a mathematical demonstration.
Sec. 970, Stats., under which the plaintiff was removed, was first enacted by the legislature of 1849 as part of a comprehensive scheme governing and regulating removals from office. It has been continuously on our statute hooks since that time without material amendment. The legislative intent with which we must deal is that of the legislature which enacted the original law. The entire enactment referred to embraces secs. 4 to 10, inclusive, of ch: 11, R. S. 1849, and is as follows:
“Sec. 4. The governor may remove from office any sheriff, coroner, register of deeds, or district attorney, giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.
“Sec. 5. The judge of the circuit court shall have authority, in term time or in vacation, to remove any clerk of the circuit court in any county within his district, when in his opinion he is incompetent to execute properly the duties of his office; or when on charges and evidence such judge shall be satisfied that he has been guilty of official misconduct, or habitual or wilful neglect of duty, if, in the opinion of such judge, such misconduct or neglect shall be a sufficient cause for removal; but no such clerk shall be removed for such misconduct or neglect, unless charges thereof shall have been preferred to said judge, and notice of the hearing, with a copy of the charges, delivered to such clerk, and a full opportunity given him to be heard in his defense.
“Sec. 6. The board of supervisors of any county may remove the clerk of their board, when in their opinion, he is incompetent to execute properly the duties of his office; or when on charges and evidence it shall appear to said board that he has been guilty of official misconduct, or habitual or wilful neglect of duty, if in the opinion of said board such *302misconduct or neglect shall be a sufficient cause for removal; but no such clerk shall be removed for such misconduct or neglect, unless charges thereof shall have been preferred to said board, and notice of the hearing, with a copy of the charges delivered to such clerk, and an opportunity given him to be heard in his defense, and in no case shall such removal be made unless two thirds of all the supervisors entitled to a seat in such board shall vote therefor.
“Sec. 7. Any collector or receiver of public moneys, appointed by the legislature, or by the governor, by and with the advice and consent of the senate, or of both branches of the legislature, except those officers for whose removal provision is otherwise made by law, may be removed by the governor, in case it shall appear to him on sufficient proofs, that such collector or receiver has in any particular wilfully violated his duty.
“Sec. 8. All officers, except senators in Congress and those specified in the preceding section, who are or shall be appointed by the governor, by and with the advice and consent of the senate, or of both branches of the legislature, or by the legislature without the concurrence of the governor, may, for official misconduct, or habitual or wilful neglect of duty, be removed by the governor upon satisfactory proofs, at any time during the recess of the legislature, and the vacancy filled by appointment made by him, until such vacancy shall be regularly supplied; but no such appointment shall extend beyond twenty days after the commencement of the next meeting of the legislature.
“Sec. 9. All officers who are or shall be appointed by the governor for a certain time, or to supply a vacancy, may be removed by him.
“Sec. 10. All officers, except senators in Congress, who are or shall be appointed by the legislature, or by either branch thereof, may be removed by such body or branch making the appointment.”
Sec. 4 of the above statute is now sec. 968 of our Statutes; sec. 5 is amended and incorporated in our present sec. 973; sec. 6 corresponds to our present sec. 974; sec. 7 to our present sec. 969; and sec. 8 to our present sec. 970, being the sec*303tion under which the plaintiff was removed. The words “or of both branches of the legislature” contained in the original act are not now found in sec. 970; otherwise the two statutes are identical. Sec. 9 corresponds to sec. 971, and sec. 10 to sec. 972.
It will he observed that sec. 4 covers the constitutional offices of sheriff, coroner, register of" deeds, and district attor-nej, which were also elective 'offices. It was there expressly provided that the removal could only be made after such an .officer was furnished a copy of the charges against him and was given an opportunity to he heard in his defense. So that the matter of requiring a notice and hearing when they were considered desirable was sharply called to the attention of the legislature in the first section of the act which dealt with removals. This provision was in fact drawn in the language of sec. 4 of art. VI of the constitution, which had been adopted the preceding year.
. Sec. 5 also provides for the removal of a constitutional and an elective officer, to wit, the clerk of the court. The constitution was silent as to how he should he removed, so that the legislature might make such provision for it as was deemed wise. See sec. 10, art. XIII, Const. The section provided for two classes of causes for removal: (1) incompetency; (2) official misconduct or habitual or wilful neglect of duty. It was clearly the purpose of the legislature to authorize the summary removal of the clerk for incompetency without notice or hearing, because the statute, required neither when removal was made for this cause. As to the second class of causes, however, the statute carefully specified that the clerk coul,d not he removed for “misconduct” or “neglect” unless “charges thereof shall have been preferred” and “notice of the hearing with a copy of the'charges” he “delivered to such clerk and a full opportunity he given him to he heard in his defense.” Here again the question of notice and hearing was *304immediately in the mind of the legislature, and the law expressly provided that notice and hearing were required on such causes of removal as the legislature desired they should be given on. Could it in reason or common sense he said that a notice and hearing was intended before a removal could be made for incompetency, when the law did not say so, but did say in the same section and in the same sentence that notice and hearing should precede a removal for other causes ? The answer is obvious. It might be observed in passing that the causes for removal on account of which a notice and hearing was required by sec. 5 are the identical causes for which removal might be made under sec. 8, our present secí 970, and which pertinently omits the requirement as to notice and hearing, no doubt because it was considered wise to throw greater safeguards around removals from elective than from appointive offices.
Sec. 6 dealt with the removal of county clerks and vested the power of removal in county boards. Here again if the removal was made for incompetency no notice or hearing was required. If made for “official misconduct or habitual or wilful neglect of duty,” it could only be made on notice and hearing. We have in this section a plain statement that notice and hearing should be given in the cases where it was desired that they should be given, and an omission of any reference to either in the case where manifestly it was not intended that they should be required.
Sec. 7 brings us to appointive officers and provides for the removal by the governor of any collector or receiver of public moneys appointed by the legislature or by the governor with the advice and consent of the senate, except as otherwise provided for, “in case it shall appear to him on sufficient proofs” that such officer “has in any particular wilfully violated his duty.”
In making a removal for incompetency under sec. 5 the *305circuit judge could act on his own knowledge. The county board could do likewise in making a removal for the same cause under sec. 6. Under sec. 7 .the governor could act on any proofs that were satisfactory to him. No notice or hearing was provided for as in the_ preceding sections. The power of removal was vested in the head of one of the departments of government where there .was no likelihood that it would be abused. It dealt with officers who were handling public funds and as to whom peremptory removals might be absolutely necessary to save the s'tate fromToss where a dishonest official was squandering or stealing the money of the state. Is it supposable that the legislature intended that such an officer might continue to eihbezzle state funds until he could be served with a copy of the charges against him and be given what might be deemed a sufficient time to prepare his defense ? If so, why did not the legislature say .so as it did in the preceding sections when it desired, that notice and hearing should be given? We have sec. 7 on our statute books today as sec. 969. If it is learned that such an officer has stolen money of the state and is liable to steal more, must notice and hearing be given and proceedings be carried on in their usual leisurely way before thefts can be stopped ? I do not think the legislature ever had any such intention, and I think it is very clear that it had not. I also think that if the court had such a case presently before it instead of the one pending, it would hot hesitate to so hold. And yet if the requirement of a notice and hearing Gannot be read into sec. 7 it cannot be read into sec. 8, the one with which we are concerned.
Sec. 8 of the act of 1849, being our present sec. 970, under which the governor acted in the instant case, provided that all officers, with certain designated^ exceptions, who are or shall be appointed by the governor with the advice and consent of the senate, may “for official misconduct or habitual or wilful ' *306neglect of duty be removed by tbe governor upon satisfactory proofs at any time during tbe recess of tbe legislature.”
Tbe difference between secs. 7 and 8 in reference to tbe method of removal is one of verbiage only. Under sec. 7 the governor may remove on “sufficient” proofs and under see. 8 on “satisfactory” proofs. Tbe two words in this connection are practically synonymous and interchangeable. What is sufficient in tbe way of proof is ordinarily satisfactory, and what is satisfactory is sufficient. If this be not so, and there is a difference in tbe degree of proof required in tbe two cases, there is nothing in their use which indicates that a notice and bearing must be given in tbe one case and may be refused in tbe other. Tbe proofs required must be sufficient or satisfactory to tbe governor and to no one else. They may be both sufficient and satisfactory and even conclusive without either notice or bearing. If tbe legislature bad intended that notice and bearing should be required under sec. 8, it would have said so as it did in reference to all removals made under sec. 4 and as it did as to two of tbe three specified causes for removal under secs. 5 and 6. Tbe matter of notice and bearing was present in tbe legislative mind when tbe original law was passed. Tbe fact that they were required in some cases and omitted in others is proof conclusive that tbe legislature did not desire to require them in cases where they were not expressly provided for. In such a case silence is as plainly exclusion as tbe use of express words would be.
I can only read out of tbe law of 1849 tbe conclusion that sheriffs, district attorneys, coroners, registers of deeds, clerks of tbe courts when removed for official misconduct or wilful neglect of duty, and county clerks when removed for like causes, could only be removed on notice and bearing, because tbe legislature has said so in plain words, and that all other officers whose removal was provided for might be removed without notice or bearing, because tbe legislature carefully *307refrained from requiring either. • This latter statement is also true as to clerks of the courts and county clerks when removed for incompetency. . - , .
The scheme for removals was comprehensive and carefully worked out. As to elective and constitutional officers, safeguards were thrown around removals, with two exceptions. Clerks of the courts did their work under the eyes of the circuit judges, and when a judge became satisfied that a clerk was incompetent he might summarily remove him. .Clerks of county boards did their work under the eyes of county boards, and such boards were empowered to summarily remove for incompetency. As do appointive offices created by the legislature, the power of removal as to all officers provided for in secs. 7, 8, and 9 was .vested in the chief executive officer of the state. As to those provided for in sec. 10 the power.of removal was vested in the legislature itself. Removals under secs. 7 and 8 could only be made on sufficient or satisfactory proofs. Removals under secs. 9 and 10 might be made at will without proofs and without notice. I think there is just as much reason for saying that a removal made under either of the two latter sections^must be made on notice and hearing as there is for saying that notice and hearing is required under sec. 7 or sec. 8 or for removals for incompetency under secs. 5 and 6.
It is fair to assume that the legislature thought that a person who could be trusted to fill the office of governor could be trusted to deal fairly with officeholders whom he was empowered to appoint, and that cases might arise where prompt action was-necessary for the public good, and that it was not wise to tie the hands of the governor when such action might well work to the detriment of the state. Governmental power must fie vested somewhere, and the fact that it may be abused does not prove that the power must not be conferred. It would seem quite as logical to give a notice and hearing to *308candidates for appointments before a selection is made as to require them in case of removal.
It has, I think, been the uniform practice of the legislature to expressly provide for a notice and hearing as a condition precedent to removal from office, where it was intended that no removal should be made without such notice and hearing.
By sec. 381, Stats., the board of regents of the state university have the power to remove the president or any professor, instructor, or officer of the university when in their judgment the interests of the university require it.
Sub. 3 of sec. 404 confers a like power on the board of normal school regents. This latter statute was construed in Grillan v. Board of Regents, 88 Wis. 7, 58 N. W. 1042, and it was held that the power of removal was plenary and could be made at pleasure and without cause.
Sec. 397 provides that any normal school regent may be removed for cause, upon reasonable notice, by a vote of two thirds of all of the regents.
Sec. 507 provides for the removal of school district officers, and that they must be removed on written charges which must be served on such officers, and can only be removed after a notice and hearing upon the charges.
Sec. 772a provides that the supervisor of assessment may be removed by the county board for incompetency, fraud, or wilful neglect of duty, on charges preferred and ten days’ notice in writing of the hearing thereon, and that a copy of the charges must be served with the notice.
Sec. 925 — 36 provides for the removal of certain city officers- by the common council. It expressly states that no such officer shall be removed except for cause, nor unless charges are preferred against him and opportunity given him to be heard in his defense.
Sec. 925m — 309 provides for the removal of certain officers in cities operating under the commission form of government, *309where such officers are elected by.-tbe council, and they may be removed by a majority, of tbe members of tbe council. Tbis statute requires neither cause, notice, nor bearing.
Sec. 976 provides for tbe removal of town officers and requires that removal be made only after notice and bearing.
Sec. 990 — 22 provides for'the removal of persons in tbe employ of tbe state under tbe civil service law. Tbe appointing officer is required to furnish bis subordinate the reasons for removal and to allow him a reasonable time in which to make an explanation, and such reásons with tbe answer thereto are required to be filed with tbe civil service commission. Tbe cause of tbe removal must be neither religious nor political.
Tbis statute was construed in State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748, and it was held that tbe power of tbe removing officer was plenary so long as legal cause for removal was specified.
Sec. 975 provides for tbe removal of a county superintendent of schools. Tbe statute requires it .to be made on notice and bearing.
Secs. 1059a and 1059b provide for tbe removal of assessing officers and members of boards of .review, and tbe following section provides that such removal be made after notice and bearing.
See. 1231 empowers tbe supervisors of a town to remove tbe superintendent of highways for neglect or refusal to perform bis duties. It contains no requirement for either notice or bearing. ‘
Sec. 1747 — 3 provides for tbe removal of grain and warehouse commissioners “for cause by tbe governor in tbe same manner as county officers may be. removed.”
Sec., 1747 — 30 provides for tbe removal of grain inspectors by tbe grain and warehouse ■ commission whenever they have been guilty of any improper official act or are found to *310be inefficient or incompetent. Tbe statute provides that in such case tbe removal may be immediately made.
Sec. 1797- — 1 provides for tbe removal of railroad commissioners and that sucb removal must be made on notice and bearing.
There are a number of other statutes which provide for removals, but these serve to illustrate that the legislature has had in mind the matter of requiring removals to be made on notice and hearing when it was considered desirable that they should be so made, and that in cases where neither notice nor hearing is provided for none need be given. State ex rel. Wagner v. Dahl, supra.
In the very first case which arose in this state under a statute like our sec. 970, Chief Justice Dixon, speaking for the court, stated clearly and concisely just what the power was of the body in which the right to remove was vested. The board of supervisors of Milwaukee county removed the inspector of the house of correction during his term, which was fixed by law at two years. The board was authorized to remove for “incompetency, improper conduct, or other cause satisfactory to said board.” The court held that the words “other cause satisfactory to said board” meant a kindred cause, so that in fact the statute permitted a removal for incompetency, improper conduct, and other like causes. The statute was silent in reference to giving a notice and hearing to the accused official. MeGarry insisted that he was entitled to have the removal proceedings carried on in a judicial way, and that the order of removal was void because this had not been done. Unsworn statements prejudicial to the accused were received and the right of cross-examination was denied. If a hearing means anything, it means that the right to cross-examine exists. The court disposed of the contentions made *311in the only logical way in which they could he disposed of in the following language:
“That part of the answer in which it is alleged that persons w'ere examined and made' statements before the hoard touching the charges made against the defendant, but without being sworn as witnesses, and that the defendant was not permitted to cross-examine them, is also irrelevant. It was certainly very proper for the board to notify the defendant of their intended proceedings, and to allow him to appear and take part in them, and to produce and examine witu esses, which it seems he did do; hut the hoard was not hound to do so. It might have proceeded to order his removal ex parte, and without notice to him, and without any examination of witnesses, formal or otherwise; and i-f it could have done that, then it could dispense with the oath to those persons who were examined, or refuse to allow the defendant to cross-examine. The most that can he said of it is, that it was a refusal to extend to him the same degree of consideration and favor which was shown when he was notified to appear and permitted to examine witnesses in his own behalf. The justice or injustice of the proceeding are not matters which can he examined here.” State ex rel. Kennedy v. McGarry, 21 Wis. 496.
I cannot think that there is any such difference between the statute involved in the Kennedy Case and the one involved in the present case as would justify the placing of a different construction on the latter from what was placed on the former. Sec. 910 provides for removal for official misconduct and for wilful or habitual neglect of duty. The statute in the McGarry Case provided for removal for incompetency, improper conduct, anil other like causes. See. 970 provides that the removal must he on proof satisfactory to the governor. The other law contained no such provision. But, as already stated, proof satisfactory to the governor does not mean proof taken after a notice is given and a hearing is had. The notice and hearing that is required by many statutes is for the protection of the officer, not for the informa*312tion of the governor. That officer is the sole judge of what proofs are satisfactory to him and as to the manner in which they shall he taken, unless the statute otherwise provides.
The other eases in this court dealing with the question are in entire harmony with the McGarry Case. A review of them will he found in State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748. I think the case of Nehrling v. State ex rel. Thal, 112 Wis. 637, 88 N. W. 610, is in harmony with the other decisions of this court. Under the statute there involved a removal might he made for “misdemeanor, incompetency, or inattention to the duties” of the office. The statute was silent as to how the proceeding should he carried on. The plaintiff was permitted to he heard, but made pretty much the same complaint about the character of the hearing that McG-arry did in his case. The court said: “The act nowhere requires or suggests that any witness shall be produced, much less sworn and exámined, in the investigation resulting in such removal. The act seems to contemplate a summary investigation by the trustees, — of course giving such official an opportunity to be heard.” This last clause is clearly obiter and is no less clearly ill considered and inconsistent with what precedes it. An investigation is not summary where a party is given an opportunity to he heard, and giving such an opportunity is wholly inconsistent with the idea that the party may not produce or swear witnesses in his behalf.
The discussion on this branch of the case has already been carried to too great a length. Under what I believe to he a fair construction of sec. 970,1 do not think the plaintiff is entitled as of right to a notice and hearing, no matter to what extent fairness would demand it in the instant case. The question is one for the legislature to settle and not the courts. The decisions of this court I think fully justify my interpretation of the statute. This case should not be confounded *313with cases involving property or'vested rights, snch as the Chittenden Case (State ex rel. Milwaukee Med. College v. Chittenden) 127 Wis. 468, 107 N. W. 500.
Where the law confers the administrative duty upon an officer to remove another from office 'for a specified cause or causes, and no provision is made for a review of his decision on the questions of fact involved, such conclusion is final, and the only judicial question is whether the cause assigned was a legal cause. Stale ex rel. Kennedy v. McGarry, 21 Wis. 496; State ex rel. Gill v. Watertown, 9 Wis. 254; State ex rel. Willis v. Prince, 45 Wis. 610; State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748; State ex rel. Davern v. Rose, 140 Wis. 360, 122 N. W. 751; State ex rel. Cook v. Houser, 122 Wis. 534, 100 N. W. 964; State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304; State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587; State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046.
If notice and hearing were not required in the instant case, the only question which the court, could inquire into was whether or not the cause for removal specified in the order was a lawful one.
Where the governor removes an officer and assigns a statutory cause for removal, the courts will not place him on trial in reference to the motives which actuated him and will not pass upon his bad faith or alleged arbitrary action in making the removal. Where a co-ordinate department of government performs an authorized duty, the courts have no more right to impugn the motives which actuated such-department than would the department in question have the right to impugn the motives of this court in deciding a case which properly came before it. This was decided at an early day in reference to the legislative department of government in Fletcher v. Peck, 6 Cranch, 87, and has never been departed from by the courts. It was also decided at an early day in this court *314in reference to the governor, in Att’y Gen. ex rel. Taylor v. Brown, 1 Wis. 513, 522, where it is said:
“But it would be alike unbecoming and unwarranted on our part to inquire into the motives of the governor in the exercise of a discretion given to him alone, in any case. He is responsible for his acts in such case, not to the courts, hut to the people; and whenever experience shall have demonstrated the impolicy or impropriety of clothing the chief executive officer of the state with a power of removing inferior officers, at his discretion, or ‘when he shall believe the best interests of the state demand such removal,’ it may then be the time for the people, in whose hands alone is the remedy, to eradicate the supposed evil. But courts are created to construe the laws as they are, not to declare what they should be.
“It is no part of our duty to impugn the action of the governor in such a case, but on the contrary, we are bound to hold him justified in whatever conclusion he may have formed. In this case, therefore, whatever may have influenced the executive in the removal of Mr. Taylor, has no claim to our attention; it is wholly foreign to the question before us, and can have no bearing upon it.”
The case is an important one, dealing as it does with the power of a co-ordinate department of the government. It would be more satisfactory if the decision could he made by a unanimous court. The case has been very fully considered and no doubt each member of the court has given it the best thought and study he is capable of. I cannot bring myself to see the law as does the majority of the court, and duty impels me to say so and to refuse to assume responsibility for the decision reached. I have not sought to follow or discuss the reasons or arguments contained in the elaborate opinion of the court. I simply desire to state my own reasons in my own way for reaching the conclusion that the order appealed from should be affirmed.
I may be wrong, but it seems to me that the opinion of the court ruthlessly slaughters a number of our decisions in or*315der to reach, the conclusion arrived at. To be sure the decisions are not expressly overruled, but they are limited, qualified, and misconstrued so that their authors would hardly recognize them. I refer particularly to the cases of Att’y Gen. ex rel. Taylor v. Brown, 1 Wis. 513; State ex rel. Kennedy v. McGarry, 21 Wis. 496; State ex rel. Willis v. Prince, 45 Wis. 610; La Pointe v. O’Malley, 46 Wis. 35, 50 N. W. 521; State ex rel. Jones v. Oates, 86 Wis. 634, 57 17. W. 296; State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 17. W. 304; Ward v. Sweeney, 106 Wis. 44, 82 17. W. 169; and State ex rel. Wagner v. Dahl, 140 Wis. 301, 303, 122 17. W. 748. Any one who has sufficient curiosity to draw a parallel between what is said in reference to the Stark-weaiher Gase in the present decision and what was said by the same learned judge in reference to it in State ex rel. Cook v. Houser, 122 Wis. 534, at pages 574, 575, 576, and 581 (100 17. W. 964), will understand what I mean. The case of Dullam v. Willson, 53 Mich. 392, 19 17. W. 112, is glorified in the opinion, and it is said that the opinion in the Starkweather Case when carefully read is in harmony with it. The present chief justice in writing the opinion for the court in the Starkweather Case did not seem to think so, because the court utterly repudiated its doctrines and declined to follow it. To do otherwise would have been fatal to the respondent’s case. The entire court entertained this opinion at the time.
As before stated, I do not care to go into an analysis of the court’s opinion. There are many propositions stated in it with which I am in accord. There are many others which I cannot assent to. I summarize my own conclusions as follows:
1. The certificate of appointment held by Mr. Anderson gave him the prima facie right to the office of insurance com*316missioner and the right to its possession until the de jure title was settled.
2. Upon its production it was Mr. Ekern’s duty to vacate the office under protest and commence an action to try title to the office.
3. An injunction should not issue against the person having the prima, facie right to the office, nor in any event in favor of the incumbent except on a clear showing that he had the better title to the office.
4. Where an injunction is sought.in such a case the court will inquire into the merits of the case as disclosed by the motion papers to ascertain whether the party in possession is clearly entitled to the office.
5. An office created by the legislature is not property, and the right to hold it is not a vested one.
6. The legislature may prescribe any method of removal from such an office it sees fit, and a removal made by the prescribed method is due process of law.
7. Where no provision of the constitution or of statute law requires that notice and hearing be given before a removal can be made, neither notice nor hearing is a necessary condition precedent to a valid removal.
8. It was clearly the intention of the legislature when it enacted what is now sec. 970, Stats., that the governor might remove the officers whom he was thereby authorized to remove without notice or hearing.
9. When the determination of a question of this kind is vested in some tribunal other than the courts, and no appeal from or review of the decision reached is provided for by statute, such decision is final and conclusive, if such tribunal acts within its jurisdiction.
10. The only inquiry left open to the courts in this proceeding is whether the cause assigned for removal is one for which the statute authorizes a removal to be made. If it *317was, the governor acted within his jurisdiction in making it, no matter h<5w grievously he might err in judgment.
11. The order of removal in this case assigns a statutory cause for removal, and it is therefore conclusive on the courts.
12. Injunction will not lie against a co-ordinate and equal branch of the government, and neither will the courts inquire into the motives of the legislature or the governor in performing an official act.
I do not wish to he understood'as assenting to everything in the opinion of the court not covered by the foregoing propositions. I simply set forth the salient points on which I base my conclusion.