Supreme Ct. 1835, Fawcett v. Charles, 13 Wend. 473; Ind. Supreme Ct. 1854, State v. Trustees of Vincennes University, 5 Ind. 77. See, also, Lord Bruce's case, 2 Strange, 820; Rex . Doncaster, 1 Barnard. 264. 2. This power belongs to the corporation alone; the courts have no jurisdiction to order such removal. Cal Supreme Ct. 1860, Neall . Hill, 16 Cal. 145. 3. The power, considered as incident to the corporation, and independent of charter provisions, is vested in the body at large. K. B. 1799, Rex v. Mayor &c. of Lyme Regis, 1 Dougl. 149. 4. Charter provisions conferring an express power. Where, however, the charter of a corporation prescribes the terms under which the power of amotion is to be exercised, they must be pursued. Ind. Supreme Ct. 1854, State v. Trustees of Vincennes University, 5 Ind. 77. 5. That a power to trustees "to appoint a superintendent, who shall be subject to removal only for &c." implies a power in the trustees to remove, for the causes specified, see People v Higgins, 15 Ill. 110. 6. A provision in a general act, or in the foundation of a private charity, that visitors "shall and may" remove officers, for specified causes, is imperative; equivalent to must reSee Attorney General v. Lock, 3 Atk. move. 164. 7. That power conferred on the common council of a city to expel one of its members does not authorize to suspend,- -see State v. Jersey City, 1 Dutch. 536. II. GROUNDS. 8. The general rule. There are three sorts of offences for which an officer or corporator may be discharged: 1. Such as have no immediate relation to his office, but are themselves of so infamous a nature as to render the offender unfit to execute any public franchise. 2. Such are only against his oath and the duty of his office as a corporator; and amount to breaches of the tacit condition annexed to his franchise or office. 3. Offences of a mixed nature, being not only against the duty of the office, but also indictable at common law.* Whether, for those offences which are of a mixed na ture, the corporator can be removed without a previous conviction, see 2 Bac, Abr. Bouv, ed. 476, and cases cited. On offences of the first class, there must have been a conviction at law, before the corporation can remove; for those of the second the corporation may try as well as remove. The power to try and remove for violations of duty as a corporator, is incident to the corporation and may be exercised independent of express authority conferred by charter or prescription. So held of an English municipal corporation. K. B. 1758, Rex v. Richardson, 1 Burr. 517, 539. The above classification substantially restated and approved, see Rex v. Mayor &c. of Liverpool, 2 Burr. 723, 732; Commonwealth v. Benevolent Society, 2 Binn. 441; Commonwealth v. Guardians of the Poor, 6 Serg. & R. 469. 8 a. What are legal causes of amotion. How a power to remove, conferred in general terms, should be construed. See State v. Chamber of Commerce of Milwaukee, 20 Wis. 63. 9. Ineligibility. The cause for which an officer is removed, must be something which has arisen subsequently to the admission to the exercise of his office; the power of amotion cannot be exercised for a defect of original qualification. Rex v. Mayor &c. of Lyme Regis, 1 Dougl. 79. 10. Omission to take oath. Whether omission to take an oath enjoined by statute upon the officer is sufficient cause for amoving him. See Rex v. Master &c. of St. John's College, Skinn. 546; Regina v. Humphery, 10 Ad. & E. 335. 11. Bankruptcy not a ground for removing a common-council-man in an English municipal corporation. See Rex v. Mayor, &c. of Liverpool, 2 Burr. 723. 12. Poverty. Being too poor to pay the taxes for which he was liable, sufficient cause for amoving an alderman. See Rex ». Mayor &c. of Andover, 3 Salk. 229. 13. Old age not a sufficient cause for amoving an alderman. See Hazard's case, 2 Rolle, 11. 14. Non-residence. When non-residence in, or removal or departure from the corporate limits is ground for amoving an officer of a municipal corporation. Exp. Butler, 1 Atk. 215; Rex v. Harris, 1 Barn. & Ad. 936; Rex v. Leicester, 4 Burr. 2087; Vaughan v. Lewis, Carth. 277; Exeter v. Glide, Comb. 197; 4 Mod. 33; Rex v. Mayor &c. of Lyme Regis, 1 Dougl. 149; Regina v. Truebody, 11 Mod. 75; 2 Ld Raym. 1275; King v. Glide, 12 Mod. 28; Rex v. Doncaster, Say. 37. 15. Non-attendance. Absence from corporate meeting, unexcused, when cause for amotion. See Rex v. Harris, 1 Barn. & Ad. 936. 16. Non-attendance not sufficient cause of removal, when no business is obstructed by his absence, though his absence was wilful, and had notice to attend. See Rex v. Richardson, 1 Burr. 517, 540. 17. Non-attendance of one of a board or body of a corporation, although the office is of a public nature, is not necessarily cause of removal, as it does not prevent the others from proceeding. Thus non-attendance of an alderman at the court of sessions, does not warrant removal; as it does not hinder the holding of the court. Q. B. 1713, Queen v. Mayor &c. of Pomfret, 10 Mod. 107. 18. Non-attendance of an officer, whose duty calls upon him to be constantly present, or who is an integral part of the meeting, is a cause of amotion. Q. B. 1705, Regina v. Bailiffs of Ipswich, 2 Ld. Raym. 1232. 26. Insulting language. When using opprobrious or insulting language to a fellowmember or officer of the corporation is ground of expulsion or amotion. See Baggs' case, 11 Coke, 93; Clark's case, Cro. Jac. 506; Clark's case, 1 Ventr. 327; Rex v. Guilford, 1 Lev. 162; Rex v. Loudon, 2 Lev. 201; Regina v. Rogers, 2 Ld. Raym. 777; Innes v. Wylie, 1 Carr. & K. 257; Regina v. Treasury, 10 Ad. & E. 374; 2 Perr. & D. 498. 27. Threats. Attempts. A mere threat or attempt to do an improper act, no injury actually resulting, not sufficient. See Baggs' case, 11 Coke, 93. 28. Altering corporate records. That alteration of the corporate records, with a fraudulent intent, is ground for amotion; but the fraudulent intent is essential, and must be averred,―see Rex v. Chalke, 5 Mod. 257; 1 Ld. Raym. 225; Mayor &c. of Nigan v. Pilkington, 1 Keb. 597. 29. Withholding them. Refusal to deliver over the corporation books intrusted to his custody, as the proper officer, to persons appro-poration, insufficient. See Anon. 1 Barnard. plying for them with an order from the cor402; Regina v. Bailiffs &c. of Ipswich, 2 Ld. Raym. 1232; Rex v. Ingram, 1 W. Bl. 50; Regina v. Treasury, 10 Ad. & E. 374; 2 Perr. & D. 498. 19. An officer liable to amotion for longed and obstinate non-attendance; but not for one instance of non-attendance. Rex v. Wells, 4 Burr. 1999. See 20. Misconduct. The misconduct must be specialy connected with the execution of the office, and the result of improper motives; -see Regina v. Mayor &c. of Newbury, 1 Q. B. 751, 762; Bagg's case, 11 Coke, 93. 21. Riot. Making a riot in disturbance of an election of a mayor or other officer, a cause of amotion, See Haddock's case, T. Raym. 435; Rex o. Mayor &c. of Derby, Cas. t. Hardw. 153. 22. Bribery. That bribing a corporator to vote for a particular candidate at a corporate election is cause for amotion,- -see Rex v. Mayor &c. of Tiverton, 8 Mod. 186. 23. Breach of trust. When it is ground for removing a corporate officer. See Rex v. Chalke, 1 Ld. Raym. 225; Rex v. Mayor &c. of Doncaster, 2 Ld. Raym. 1564; Rex v. Mayor &c. of London, 2 Durnf. & E. 177. 24. Habitual drunkenness cause for amoving an alderman. See Rex v. Taylor, 3 Salk. 231, 1616; Taylor v. Gloucester, 1 Rolle, 409; 3 Bulst. 190. 25. Casual intoxication not sufficient cause for amoving an alderman. See Rex v. Taylor, 3 Salk. 231. 30. Second removal. The fact that a mem ber of a city common council has been ex- 31. By-law. That a by-law authorizing 32. Statutory power of removal. That if a statute defines the causes for which a mayor and common council of a city may remove an officer, he can not be removed for any other than the specified causes,-see Shaw v. Mayor &c. of Macon, 19 Ga. 468. 33. Receiving bribes by a common councilman,-Held sufficient ground for amotion, under a charter power to remove for disorderly conduct. N. J. Supreme Ct. 1856, State v. Jersey City, 1 Dutch. 536. %. III. THE MODE OF PROCEEDING. 34. Some corporate act necessary. The fact that good grounds of removing an officer exist, do not amount to removal, or render the office vacant. There must be in addition some corporate act; some exercise of the cor officer (if a member) can only be removed by a majority of all members, counting himself. Removal being an act of an odious nature, all clauses concerning it must receive a strict interpretation. The officer is not excluded from voting, as a member, upon the question, porate will to remove. Mass. Supreme Ct. by his personal interest. Q. B. 1712, Queen 1831, Murdock v. Phillips' Academy, 12 Pick.. Sutton, 10 Mod. 74. 244; N. J. Chancery, 1835, Doremus v. Dutch 39. The notice. Right of officer to notice Reformed Church, 2 Green, 332; Ind. Supreme of the intention to amove, and the grounds. Ct. 1854, State v. Trustees of Vincennes Uni- See Rex v. Richardson, 1 Burr. 517; Rex versity, 5 Ind. 77. See also Rex v. Ponsonby, v. Mayor &c. of Liverpool, 2 Id. 723; Rex 2 Brown P. C. 311; Rex v. Heaven, 2 Durnf. v. Mayor &c. of Doncaster, Id. 738. & E. 772. 35. Provisions in articles of an English banking company, that if any person chosen to act as public registered officer of the company should become bankrupt, he should be disqualified, and his office become vacant, construed to mean that his office was to be void at the election of the company; but if, after the bankruptcy, they treated and held him out to the world as their public registered officer, they might sue and be sued in his name. Exch. 1844, Steward v. Dunn, 12 Mees. & W. 655; 1 Dowl. & L. 642; 13 Law J. N. S. Exch, 324; 8 Jur. 218. 36. Vote of a corporate meeting. The power of holding a corporate meeting for amotion is incident to the power of amotion; and therefore need not be set out in a return to a mandamus. K B. 1779, Rex v. Mayor &c. of Lyme Regis, 1 Dougl. 149. 37. The power to amove an officer, whether possessed as incident to the corporation at large, or vested in a particular body, must appear to be exercised at a regular meeting holden in a corporate character, or at least holden in the character by virtue of which they are empowered to amove. Thus, where it appeared by the return to a mandamus that the common council had the power of amotion, and it was alleged as a fact that the party complaining was removed by thirty of the common councilmen, in the council chamber assembled, the court held this to be insufficient, because it did not appear "that the thirty common councilmen were then and there assembled as a common council, as they might be them to feast, or for other purposes not connected with their corporate character. K. B. 1694, Rex v. Taylor, 3 Salk. 231. 38. The officer may vote. Under a charter which requires corporate acts in general to be done by a majority of the corporation, an 40. Where it is intended to remove any one of the members or officers of a corporation, it is, in general, absolutely necessary, not only that he should be summoned generally to attend, but he must have a particular summons to attend and answer the particular charge alleged against him; for it would be highly unjust, upon a general summons, to remove a man for particular offences, which he may have had no opportunity of preparing to answer. N. C. Supreme Ct. 1821, Delacy Neuse Navigation Company, 1 Hawks, 274; Pa. Supreme Ct. 1815, Commonwealth v. Pennsylvania Beneficial Institution, 2 Serg. & R. 141; 1826, Black and White Smith's Society v. Vandkye, 2 Whart. 309. See also City of Exeter v. Glide, 4 Mod. 33; Bagg's case, 11 Coke, 93. 41. The removal of a professor is a judicial proceeding, and to render it legal, there should be: 1, a monition or citation to him to appear; 2, a charge given to him, which he is to answer; 3, a competent time assigned for proofs and answers; 4, liberty of counsel to defend him, and to except to proofs and witnesses; and 5, a sentence after a hearing of proofs and answers. Mass. Supreme Ct. 1831, Murdock v. Phillips' Academy, 12 Pick. 244. 42. A committee of trustees, appointed to inquire into the affairs of an incorporated theological seminary, examined the professors and others, and made a report respecting one of the professors, founded on statements made by himself, and by others who were not examined in his presence. The trustees, without notice to him, voted that, in view of the report &c. his connection with the institution ought to be dissolved. After failing to induce him to resign, a committee of the trustees made a report recommending his removal, and sent a copy of it to him, common seal, ought to be discharged by an See informing him that he might make any com- cer of the corporation, appointed under the 43. That if the officer attends and defends himself, this is a waiver of any defect of notice,- -see Rex v. Mayor &c. of Wilton, 2 Salk. 428; Rex v. Chalke, 1 La. Raym. 225. 44. But where a recorder was charged with non-attendance at a session of oyer and terminer, and received notice to answer to the same; but was turned out for non-attendance at sessions of the peace, and answered to this, though not charged therewith: Held, that the variance was fatal. Q B. 1705; Regina v. Bailiffs of Ipswich, 2 Ld. Raym. 1232; 2 Salk, 435. 45. That wherever an officer holds office under an appointment at pleasure, he may be removed at pleasure, and no summons to him to appear and answer is necessary. See Rex v. Mayor &c. of Coventry, 1 Ld. Raym. 391; Salk. 430; Rex v Mayor &c. of Oxford, Salk. 428; Rex v. Mayor &c. of Canterbury, Stra. 674. 46. Election to another office. That an election or appointment to a second (and inconsistent) office, followed by acceptance thereof, operates as a removal from a former office. See Rex v. Pateman, 2 Durnf. & E. 777; Staniland v. Hopkins, 9 Mees. & W. 178. 47. Election of a successor. If a recorder be liable to removal at the pleasure of the corporation, the choosing another person recorder is a declaration of the pleasure of the corporation, K. B. 1728, Rex v. Mayor of Canterbury, 11 Mod. 403; 1 Strange, 674. See also Attorney General v. Corporation of Poole, 8 Bear. 75. 48. Seal, when necessary. That an offi 49. Resolution, when sufficient. Officer appointed by resolution only, and holding during pleasure, may be removed by a mere resolution rescinding the former one. Regina v. Thomas, 8 Ad. & E. 183; 3 Nev. & P. 588; 2 Jur. 347; Rex v. Mayor &c. of Canterbury, Strange, 674; Rex v. Chalke, 1 Ld. Raym. 225. 50. when it takes effect. Resolutions of a corporation suspending or removing an officer, in a place at a distance, are not to be regarded as taking effect, so as to terminate the liability of his sureties, until the necessary time for communicating them has elapsed. U. S. Supreme Ct. 1827, McGill v. Bank of United States, 12 Wheat. 511. IV. REVIEW. 51. Jurisdiction of courts of justice, by mandamus. The trustees of a school founded upon a private charity had power, by the charter, "in case of death or removal" of any of their number, to supply the vacancy. The majority of the board assumed power to remove from office as trustee, one of the board, for using disrespectful language of his associates, and neglect of duty as a trustee. Held, 1. That the trustees were subject to the general supervisory jurisdiction of the courts of justice over their proceedings, independent of any power of visitation. 2. The charter did not give the trustees power to remove one of their own number. The words "or removal" in the charter contemplated the contingency of a voluntary change of residence by a trustee, and were not intended to imply that a trustee might be removed from office by his fellows. 3. If the trustees could be deemed vested with any power to remove one of their number, as incident to the corporate existence, the causes assigned for the removal were not sufficient to warrant the exercise of it. 4. That a mandamus was the proper remedy to restore the trustee complaining to his place. Conn. Supreme Ct. 1827, Fuller v. Plainfield Academic School, 6 Conn. 532. 52. A mandamus lies to restore a member of a city council to the exercise of his legal 1 rights.* N. J. Supreme Ct. 1856, State v. Common Council of Jersey City, 1 Dutch. 536. 53. Jurisdiction of chancery to reinstate directors who have been removed by vote of shareholders,-see Inderwick v. Snell, 2 Hall & T. 412; 14 Jur. 727; 19 Law J. Ch. 542; 2 Macn. & G. 216. in this respect; but the court will presume that they had satisfactory reasons for it. Ib. For matters relative to Corporate officers generally, see OFFICERS, and the titles there referred to. For matters relative to Procedure on the mandamus; what must be shown on applying for the writ; what, in the return; in what form relief will be given &c., see MANDAMUS. For many principles decided upon cases involving the Removal of members, but AQUEDUCT COMPANIES. 54. Mandamus not allowable to restore an officer removed for adequate cause, on the ground of mere irregularities in the mode, -see Rex v. Griffiths, 5 Barn. & Ald. 731. 55. By appeal (in Mass.) The statutes analogous and more or less applicable to of a charitable institution (Andover Theo- removal of officers, see EXPULSION; MEMBlogical Seminary) gave an appeal to visitors ERS. from acts of the trustees, and made it the duty of the visitors to hear the whole case anew. The trustees having removed a professor, he appealed to the visitors, by whom the removal was confirmed; and he then, under a statute of the State, appealed to the Supreme Court. Held, that any irregularity or injustice in the proceedings before the trustees, could not be taken into consideration; their sentence being vacated by the appeal to the visitors. Mass. Supreme Ct. 1828, Murdock's Appeal, 7 Pick. 303, 327. 56. A court of justice will not necessarily reverse a decision of a board of visitors, removing an officer of a corporation (e. g. a professor in a theological seminary) for cause, that they refused to conduct the trial with open doors, or refused to admit persons not engaged in the proceeding. The course of the visitors may appear to have been unwise * A restoration is merely an abstaining, on the part of the amoving body, from opposing the right of the corporator to transact the duties and enjoy the franchises appertaining to his office. As the effect of the restoration is not to create the person an officer de novo and give him a new 1. Their duties. When a water-power company carrying a trench across a highway in such a manner as renders a bridge necessary for passage, may be compelled to erect and maintain such bridge,-see Re Trenton Water Power Co. Spen. 659; State v. Wilmington Bridge Co. 3 Harring. 312; Lawrence v. Great Northern Railway Co. 16 Q. B. 643; 4 Eng. Law & Eq. 265. 2. Their liabilities. The Manchester corporation water-works were empowered to construct a reservoir, and intercept the waters of the river Etherow. They were not to divert the water until a reservoir should be completed and filled with water, and they were required to discharge out of the said reservoir seventy-five cubic feet per second, for twelve hours of every working day. In case of any default they were to forfeit £50, by way of penalty, to the occupiers of certain mills. And it was enacted that it should not be lawful for the corporation to use any water flowing to the river Etherow until they should have secured and commenced to discharge the stipulated quantity of seventy-five feet per second. title, and as it replaces him exactly in the same situation in which he stood before the attempted amotion, all corporate acts, in which he has concurred between the moment of his amoval and restitution, are of equal validity as if he had never been amoved. If he were before a legal officer, such The corporation made a acts are legal; if he were only an officer de facto, his acts before his amoval, during the amotion and subsequently to reservoir which from engineering difficulties the restoration, are equally voidable, and he may be ousted in quo warranto for any defect in his original title. If he was never completed, as required, so as to be were originally a legal officer, and amoved for sufficient capable of being filled with water; and cause, but restored on account of informality in the amo-water had not been discharged therefrom in tion, ail his corporate acts, both before and since the amotion, are valid; but he may again be amoved in a more the quantity and manner required, or in any formal manner, which vacates his office from the time of the larger quantity; but in 1857 they diverted second amotion, but has no retrospective effect upon the the water of the Etherow for the supply of former irregular amotion. Indeed, if the amotion were voidable on account of an insufficient cause, or insuffi-the inhabitants within the limits of the acts, ciency, in the form in which it was effected, the person has not been ousted; and if he continues to be treated as an officer, and acts as such, there is no need of a writ of restoration. Wille. Corp. 260-270; Ang. & A. Corp. 428. and after that time discharged certain quantities of water from the reservoir during twelve hours of every day. In 1860, a mill |