any ground for the charges made against them of official misconduct. Thus, replying to the charges relative to the appointment of Michael Mullen, who had been convicted of a crime, and pardoned by the president of the United States, Reis says: "Your respondent, acting upon what he supposed to be the law, to-wit, that one having been pardoned of an offense of which he might have been found guilty was restored fully as if there had been no conviction, and that when Michael Mullen was pardoned, presumably for good cause, by the president, respondent had the right to consider said Mullen, in his official relations, as if the offense for which he was convicted had never been charged against him." As to John Tosney, who had been dismissed from the force by the unanimous vote of the board of police commissioners for drunkenness, he avers "that he voted for the reinstatement of said Tosney because he was informed and believed, at the time of said reinstatement, that said Tosney had reformed and entirely ceased from drinking, and that he did not know that it was an offense against the law to reinstate one upon the police force of the city of Cincinnati who had been suspended because of drunkenness; that he supposed he had a right to be charitable towards those who were simply guilty of a want of sobriety,-a very common occurrence." Hawkins, in his affidavit, filed for an extension of time by the governor, says "that affiant voted for the appointment of Mr. Mullen and for the appointment of Mr. Tosney, and that his act was done for the best interest, as he understood it, of the police department of the city of Cincinnati." Stevens shows, in his answer, that he did not vote for many of the more objectionable appointments. As to James White, for whom he did vote, and who had been convicted of an offense against the election laws, and pardoned by President Hayes before the expiration of his time, he says "he was not aware of the fact at the time of the appointment; that he had served long on the force; was a good officer;" and that "it would hardly appear to him the proper thing to revive a matter which had grown gray with age, * * *" and that "this respondent does not understand it to be his duty to never forgive or relent towards one who has at one time offended against the law." The relator demurred to the joint answer of Hawkins and Reis, and also to the separate answer of Stevens, for the reason that neither states facts sufficient to constitute a defense to the action, whereupon the case was submitted to the court upon the petition, the answers, and the demurrers thereto. Jacob A. Kohler, Atty. Gen., and Thomas McDougall, for plaintiff. MINSHALL, J. The decision of the case involves the determination of a number of questions which we will now proceed to consider. 1. It is claimed by the relator that the statute under which the respondents were appointed and claim the right to act as police commissioners of the city of Cincinnati, passed April 3, 1885, (82 Ohio L. 101111,) is a special and not a general one, conferring corporate power, and so in conflict with section 1, art. 13, of the constitution of the state, prohibiting such legislation. But it is now too well settled by the decisions of this court to be called in question that legislation may be adapted to the different classes into which the municipal corporations of the state have been classified by Rev. St. tit. 12, div. 2, c. 1, without violating the provision of the constitution just referred to. The distinction is this: that a law applying to a certain class of cities, fixed by previous legislation, into which other municipal corporations may enter, and from which they may pass into other classes, by increase of population, is not special but general, since the grade of any particular city is not designated by the act, but depends upon its growth in population, as it may by such growth pass from one grade or class to another. State v. Pugh, 43 Ohio St. 98; S. C. 1 N. E. Rep. 439, and the cases cited by OWEN, J., delivering the opinion of the court, at page 112. The act under consideration in that case was held invalid, because it was not merely made applicable to the grade and class to which Columbus then belonged, but because it was the only city in the grade and class to which it then belonged, or could belong in the next five days from the passage of the act, the time in which the powers conferred were required to be exercised. After the lapse of that time, neither Columbus nor any other city of its grade could have exercised the powers conferred by the act. To hold this statute invalid for the reason stated, would be to deprive, not only Cincinnati, but every city of the state, of any system of municipal government whatever, as all statutes conferring corporate power upon the municipalities of the state apply, in terms, to cities of certain grades and classes. There should be something more than a mere question as to the validity of a statute to warrant a court in a holding that must lead to such serious consequences. 2. 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, art. 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 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 another, 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 betweeen private parties is judicial, and can only be conferred on the courts. Mer rill v. Sherburne, 1 N. H. 199. 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. Such salary as may be attached to it is not given because of any duty on the part of the public to do so, but to enable the incumbent the better to perform the duties of his office by the more exclusive devotion of his time thereto. Official duties may be, and in some instances are, imposed and required to be performed by the citizen without any compensation whatever, where there is no constitutional provision requiring it. A public office, and its creation, is a matter of public and not of private law. The legislature had the power to provide for the creation of a board of police commissioners for cities of the grade and class of Cincinnati. This power carried with it, as an incident of its exercise, the power to provide a mode of removal, unless restrained, by some provision of the constitution, to the mere act of providing for the appointment of members of the board, which is not the case. The organization and government of cities is left, by the constitution, to the general assembly, with the requirement (article 13, § 6) that it shall, by general laws, provide therefor; and the entire system of municipal government in this state has, in the exercise of this power, been created by the legislature. Not one of the officers of a city or village has any recognized existence in the constitution. It is different as to county and township officers. See article 10, relating to county and township officers. And here it will be observed that section 6 of this article provides that "justices of the peace and county and township officers may be removed in such manner and for such cause as shall be prescribed by law." There is no requirement that the power of removal that may be prescribed by law shall be conferred on the courts, for the legislature is to provide the manner as well as the cause of removal. In the exercise of this power the legislature has provided for the removal of county treasurers by the county commissioners. Sections 1126, 1127, Rev. St. The power has been frequently and wisely exercised, and, so far as we can learn, has never been questioned in the courts. This section does not, in terms, extend to officers of municipal corporations; and for the obvious reason that, as already stated, such officers have no recognized existence in the constitution. They are to be created and provided for by the legislature. Now, is there any room for doubt that the legislature may, in providing for the organization of cities and villages, adopt the policy of the constitution contained in this section, in providing for the removal of such municipal officers as it may, in the exercise of the power granted, provide shall be elected or appointed by cities and villages? Surely it may be inferred that if the removal of a county or township officer for cause, does not involve the exercise of judicial power, within the meaning of section 1, art. 4, and that it may be reposed elsewhere than in a court, there is the fullest warrant for saying that the same is true as to the removal of municipal officers created by the legislature. 234 NORTHEASTERN REPORTER. The view here taken will be found sustained, not only by the decisions of this court, but also by those of other states of weight and respectability. In State v. Harmon, 31 Ohio St. 250, the nature of judicial power The case involved the validity of the was considered by Judge WHITE. power conferred by statute upon the senate to hear and determine the contested election of a judge. It was argued with much ability and earnestness by counsel for the respondent that such power could not be conferred on that body; citing and relying on section 1, art. 4, in connection with section 32, art. 2, of the constitution; the former conferring judicial power on the courts, and the latter prohibiting the exercise by the legislature of any such power not expressly conferred. But the court held that the power so conferred on the senate was not judicial power within the meaning of section 1, art. 4. The following is a part of the language used by Judge WHITE in delivering the opinion of the court "That the senate is not a court established under the judicial article of the constitution is plain. Hence, if the trial of contested elections is necessarily the exercise of judicial power, within the meaning of that article, authority to try such cases cannot be conferred upon the senate. The distribution of powers among legislative, executive, and judicial branches of the government is, in a general sense, easily understood; but no exact rule can be laid down, a priori, for determining, in all cases, what powers may or may not be assigned by law to each branch. What constitutes judicial power, within the meaning of the constitution, is to be determined in the light of the common law, and of the history of our institutions as they existed anterior to and at the time of the adoption of the constitution. Whether power, in a given instance, ought to be assigned to the judicial department is ordinarily determinable from the nature of the subject to which the power relates. In many instances, however, it may appropriately be assigned to either department. It is said authority to hear and determine a controversy upon the law and the facts is judicial power. That such authority is essential to the exercise of judicial power is admitted; but it does not follow that the exercise of such authority is necessarily the exercise of judicial power. The authority to ascertain facts, and apply the law to the facts when ascertained, appertains as well to the other departments of the government as to the judiciary._Judg ment and discretion are required to be exercised by all the departments. The exercise of the power of eminent domain, vested in county and township boards and in corporations, is not the exercise of judicial power within the meaning of the constitution; while the exercise of the same power by the courts would be judicial." He then cites In re Cooper, 22 N. Y. 84, and quotes the language used by SELDEN, J., which is much to the same purport. In Hambleton v. Dempsey, 20 Ohio, 168, the proceedings of a board of equalization were before the court, and, though the exercise of its power "to equalize the assessments of all personal property" necessarily involved the power of hearing and determining, the validity of the power reposed in such board was not questioned. A different view has been taken by the courts of some of the states. State v. Pritchard, 36 N. J. Law, 101; Page v. Hardin, 8 B. Mon. 672; Bowman v. Slifer, 25 Pa. St. 28; and Dullam v. Willson, 53 Mich. 392; But these decisions have, as a rule, proS. C. 19 N. W. Rep. 112. ceeded 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 what ever in a representative government like our own. The doctrine is opposed to the view taken by other courts of equal learning and ability. State v. McGarry, 21 Wis. 602; State v. Prince, 45 Wis. 610; Keenan v. Perry, 24 Tex. 253; State v. Doherty, 25 La. Ann. 119; Taft v. Adams, 3 Gray, 126; Ex parte Wiley, 54 Ala. 226; Thompson v. Holt, 52 Ala. 491; State v. Frazier, 48 Ga. 137; Dougan v. District Court Lake Co., (Colo.) 22 Amer. Law Reg. 528; Donahue v. Will Co., 100 Ill. 94; Patton v. Vaughan, 39 Ark. 211. In Donahue v. Will Co., which was very similar in its facts to this one, the judge delivering the opinion says: "It is impossible to perceive how, under our form of government, a person can own or have title to a governmental office. Officers 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." The question as to whether an officer could be removed for misfeasance or malfeasance without a judicial sentence was fully examined upon principle and authority, and no doubt was entertained but that he could be; and it was there held that an act which authorizes county boards to remove county treasurers for a neglect or refusal to render an account, etc., is not in contravention of the constitution of that state, and is a valid law. In State v. Wright, 7 Ohio St. 333, it is held that the general assembly can vacate the office of a judge, created by it, before the expiration of the term; and that the right of the incumbent to the salary ceased with the vacation of the office, and a writ of mandamus to compel the auditor to draw a warrant therefor was refused,-a result that could not have been reached consistently with the idea that the relator had a property in his office. It is claimed that a distinction should be taken in the cases where the power of appointing and removing are reposed in one and the same. person, and where it is reposed in different persons. We are aware that this distinction exists in the facts of some of the cases, but we are not aware that any distinction in principle has been based upon it. Whether the person removed was or was not appointed to his office by the official that is vested with the power to remove, cannot, as we see, change the essential character of the power of removal. It is also claimed that a distinction should be taken between the case where an appointment to an office is made, to be held by the appointee at the pleasure of the appointing power, and where it is with a provision for removal for misconduct. But there is none in principle so far as the right to remove is concerned. The office in either case is held subject to the terms upon which it was created, and the mode of removal prescribed. As it may be so created as that the incumbent shall hold at the pleasure of the appointing power, then, for a stronger reason, the appointment may be made to depend upon removal for cause, irrespective of where the power to remove may be lodged. The manner of filling and vacating the office being unaffected by constitutional pro |