
    State ex rel. Meader et al. v. Sullivan.
    
      Removal from office — By mayor, of member of equalization board— Must be according to law — Supervisors of equalization oj returns of personal property — Charges against board of undervaluation must be definite.
    
    1. The power of removal from office, conferred upon, a mayor, in these words : “ For neglect of duty or misconduct in office, the mayor of such city may remove any member of said board,” is a special authority, and must be strictly pursued. Such power cannot be exercised arbitrarily, but only upon complaint, and after a hearing had in which the officer is afforded opportunity to refute the case made against him.
    2. Nor has the mayor, in such case, authority to proceed to a hearing until charges have been preferred which embody facts that, in judgment of law, constitute neglect of duty or misconduct in office, and of which the accused has had due notice. And, as a requisite to its validity, the finding and order of the mayor should be so definite as to show, on the face that the power has been exercised according to law.
    
      3. Where the statute imposes the duty upon a board of super-' visors-(acting as a board of equalization), to equalize returns of personal property only, a charge that the board has knowingly consented to an undervaluation of real and personal property in gross, but which fails to charge any undervaluation as to such personalty, is not sufficiently definite to support a finding of neglect of duty and an order of removal from office.
    (Decided June 7, 1898.)
    Error to the Circuit Court of Hamilton county.
    The action below was in quo warranto, brought by the prosecuting attorney of the county of Hamilton, against the defendant in error, Sullivan, and John Zumstien, Louis Werner and George M. Roe. Its purpose was to oust respondents from the office of board of supervisors of the City of Cincinnati, and to induct the relators. The gravamen of the petition is that the respondents had been removed from office by the mayor of the city by virtue of section 2690m, Revised Statutes, after a hearing upon charges preferred, and yet respondents continued to intrude therein.
    Sullivan answered as follows:
    “The defendant, John J. Sullivan, comes, and for answer herein says: that he, the said John J. Sullivan, was, on the 1st day of April, A. D. 1897, duly appointed and qualified as a member of the board of supervisors of the city of Cincinnati for the term of three years from said date; and that on the 10th day of April, A. D. 1897, he entered upon the duties of said office, and has ever since been, and is now, in possession of said office, and in the enjoyment of its emoluments; and that he has, during the whole period of his service under said appointment, at all times, and in all respects, fully, faithfully and honestly discharged all his duties as such member of said board, according to law.
    
      “Defendant further says that on or about the 3rd day of September, A. D. 1897, there were filed with Gustav ’ Taf el, mayor of Cincinnati, against this defendant, certain written charges. And, on September 3,1897, said Gustav Taf el, mayor, served upon this defendant a copy of the said charges, and notified this defendant that said charges would be for trial and hearing at 9 o’clock A. M. on September 7, 1897, at the office of said mayor, a copy of which charges is as follows, to-wit:
    ‘Hon. Gustav Taf el, Mayor of the City of Cincinnati:
    Sir: The undersigned citizens and taxpayers of Cincinnati hereby charge John J. Sullivan with neglect of duty as a member of the board of supervisors of Cincinnati, in this, to-wit:
    ‘(B.) Said John J. Sullivan knew that the capital stock of The Cincinnati Street Railway Co. was about $15,625,000.00, and that its market value was about $19,000,000.00, and knew or should have known that the tangible property of said company, real and personal, owned by said company in the city of Cincinnati, and subject to taxation at the time the valuation of property for the current year was to be fixed was many millions of dollars, to-wit, about $10,000,000.00, nevertheless about August, 1897, he did wilfully, wrongfully and to the great prejudice and loss of other taxpayers of the city of Cincinnati, consent to and approve as a member of said board of supervisors, a valuation of said personal property of said Cincinnati Street Railway Co. for purposes of taxation for the current year at the sum of $835,230.00, and realty at about $350,000; that said valuation was a gross wrong upon other taxpayers of the city of Cincinnati, and that said John J. Sullivan knew the same to be grossly inadequate, as alleged, when he consented to and approved the same, and that by the exercise of ordinary care as a member of said board, he would have known what the undersigned aver is a fact, that the true value of said taxable property for purposes of taxation on the county duplicate was many millions of dollars, to-wit, not less than about $10,000,000.00; and that although other property of citizens subject to taxation was uniformly valued by said John J. Sullivan, for taxation at about 65 per cent, of its selling value, the property of said Cincinnati Street Railway Co. was wilfully and with intent to prefer, and be partial to, and to favor it, fixed at a valuation of about seven per cent, of its selling value.
    ‘(C.) Said John J. Sullivan knew that the capital stock of The Cincinnati Gas Light and Coke Co. was about $8,500,000, and that its market value was over' $17,000,000, and knew or should have known that the tangible property, real and personal, owned by said company in the city of Cincinnati and subject to taxation was at the time of valuation of property for the current year, many millions of dollars, to-wit, about $10,000,000, nevertheless he did about August, 1897, wrongfully, wilfully and to the great prejudice of and in gross wrong of other taxpayers of the city of Cincinnati, consent to and approve as a member of said board of supervisors a valuation of said property for purposes of taxation for the current year at the sum of $2,145,408, which was $354,392 less than the valuation of the same property for the preceding year; that said valuation was a gross wrong upon other taxpayers of the city of Cincinnati, and that said John J. Sullivan knew the same to be grossly inadequate when he consented to and approved the same, and that by the exercise of ordinary care, said member of said board would have kno wn what the undersigned aver is a fact, that the true taxable valuation of said property for the county duplicate was many millions of dollars, to-wit, not less than about $10,000,000.
    ‘Wherefore, the undersigned request your Honor to give notice of these charges, to fix a day for hearing the same and to take such further action as may be authorized by law.
    Respectfully,
    [Signed] Taxpayers Ass’n op Hamilton Co.,
    Jos. Lippert, Pres., Fred Tuke, Sec’y, and 65 other signatures. ’
    “Defendant further says that at the time set for the trial and hearing of said charges, and before any action was taken thereon, this defendant presented to the said Gustav Tafel, mayor, an application and motion, in writing, alleging the insufficiency of said charges, both as to substance and form, and objecting to a trial and hearing of them, and asking that they be dismissed, by reason of such insufficiency; a copy of which application and motion is as follows, to-wit:
    “Before Hon. Gustav Tafel, mayor of Cincinnati, Ohio, in the matter of the charges against John J. Sullivan, as a member of the board of supervisors of the city of Cincinnati.
    “The respondent, John J. Sullivan, denies each and every one of the charges and specifications above referred to, and now pending before the mayor of Cincinnati, and submits that he ought not to be required to answer them or either of them, or to submit to any inquiry into, or trial ' of them, for reasons apparent on their face as follows:
    “First. Because neither of said charges and specifications contains a case either of neglect of duty or misconduct in office, or any other case requiring such answer, inquiry or trial of said respondent.
    ‘ ‘Second. Because the specifications set forth in said charges do not sustain either of said charges.
    “Third. Because it appears that both The Cincinnati Street Railway Company and The Cincinnati Gas Light and Coke Company were required to make tax returns under sections 2714 and 2737 of the Revised Statutes, .and does not allege that either the county auditor, under sections 2781-2-3 of the Revised Statutes, nor any of the persons who signed said charges, nor any other person, ever - informed this respondent or the board of supervisors, or made complaint under section 2807 of the Revised Statutes or otherwise, that the returns of either of said corporations were in any respect untrue or evasive or that any item in either of said returns was returned too low either as to quantity or value, or that there was any wrongful apportionment thereof; nor does said charges allege that any evidence was ever presented or offered to said board of supervisors, tending to show that said returns or either of them were in any respect too low, or that the apportionment was erroneous, without which evidence said board has no power to make any addition to any return made under oath as required by law.
    “Wherefore, reiterating his denial of said charges and specifications, this respondent now asks a hearing of this application, and prays that your Honor will dismiss the charges without inquiry or investigation.
    ¥m. M. Ampt,
    E. W. Kittredge, For Respondent.
    “Defendant further says that the said mayor overruled said application and motion, and refused to dismiss said charges, and ordered said trial and hearing to proceed; to all of which the defendant then and there excepted.
    “And thereupon this defendant filed his answer, under oath, denying the truth of the facts alleged in each of said charges; and, thereupon, the said mayor, against the objection of said defendant, entered upon the trial and hearing of said charges, and this defendant avers that not a word of evidence tending to sustain the truth of the facts alleged in said charges, or either of them, was adduced or heard by said mayor; and that no statement or information of any personal or official knowledge of the mayor of any kind, tending to substantiate or prove the facts alleged in said charges, or either of them, was made or communicated to this defendant. Yet,- notwithstanding’, on September 22, 1897, the said mayor made his certain order, and caused the same to be served upon this defendant, in the words and figures following, to-wit:
    “September 22, 1897.
    “Office of the Mayor, City of Cincinnati:
    “In the matter of the charges filed by Joseph Lippert, Fred. Tuke, J. B, Morsman and others, against John J. Sullivan, as a member of the board of supervisors, of the city of Cincinnati, charging him with neglect of duty as a member of said board, I find from the evidence and also from the facts within my personal knowledge, that the said John J. Sullivan has been guilty of neglect of duty, in his official capacity as a member of said board of supervisors, and, therefore, by virtue of the authority vested in me, as mayor of the city of Cincinnati, I do hereby remove the said John J. Sullivan from his office, as member of said board of supervisors of the city of Cincinnati.
    Gustav Tafel,
    [Seal.] Mayor.”
    “Defendant further says that all the actions of the said mayor as to said hearing, order and removal, were wholly unwarranted by any facts alleged in said charge, or by any facts proven, or by the laws of the state of Ohio, and were all in fraud of defendant’s right to remain in and continue to hold said office, and to perform his duties, and to receive the emoluments thereof.
    “Defendant further avers that the mayor aforesaid was without jurisdiction, by reason of anything alleged in said charges, or either of them, and that the order made by the said mayor on the 22d day of September, A. D., 1897, as aforesaid, was wholly null and void in law.
    ‘ ‘And this defendant further answering denies each and every allegation of fact in the petition herein set forth, not hereinbefore expressly admitted; and prays the court that the petition herein may be dismissed, and for all other proper relief.”
    To this answer a demurrer was interposed by relators, which being overruled, and they not desiring to plead further, the petition was dismissed, and respondents awarded judgment for costs. The question is, therefore, whether or not the answer states a defense.
    
      Follett <& Kelley and S. K. Maosioell, for plaintiff in error.
    
      F. W. Kitt/redge and Wm. M. Arrvpt, for defendant in error.
   Spear, 0. J.

Two questions are presented. One relates to the sufficiency of the charges; the other to the action of the mayor upon them. The holding of the circuit court is rested upon the former consideration.

Section 2690m, Revised Statutes, gives authority to the mayor to appoint the board of supervisors, and also to remove. The latter authority is in these words: “For neglect of duty or misconduct in office, the mayor of such city may remove any member of said board.”

This language, taken by itself, may imply an arbitrary power of removal. But that the power is not wholly arbitrary is well settled in this state by the cases of The State v. Hawkins, 44 Ohio St., 98, and The State v. Bryson, same volume, 457. Nor can its exercise be lawfully attempted until substantial charges, involving neglect of duty or official misconduct, have been preferred. It is held in the former case, as applicable to a removal by the governor, that the charges must embody facts which, in judgment of law, constitute official misconduct, and no reason is perceived why the same strict test should not apply in the case of removal by a mayor. While it is true that the holding of office is not compulsory, and the citizen is at liberty to accept or decline as seems to him best, yet considerations of patriotism and public policy incline the disinterested citizen to accept, and it is manifestly for the interest of the state that men of character should be found willing to fill public positions. Such citizens will be less likely to do so if they are to be- subjected to arbitrary removal, or their reputations put in jeopardy by removal based upon insufficient charges. The public interests do not require action which shall be unjust to a worthy officer, or which will unfairly smirch a good character, and yet the public interests do require prompt action in case of established inefficiency or corruption. And so our statutes have provided remedies as to removals which, while they do not lodge power in the removing authority which is absolutely arbitrary, do give power which partakes of that character.

In a ease under the statute in question the mayor is the sole judge of the weight and sufficiency of the evidence given at the hearing. If he hears a complaint of neglect of duty, or misconduct in office, upon adequate charges and, upon evidence tending to establish them by him adjudged sufficient, removes the officer, his action is practically final, since no appeal lies, nor can error be prosecuted. Hence the necessity, in justice and common fairness, of his being authorized to proceed only when charges have been made which embody facts that, in judgment of law, constitute neglect of duty or misconduct in office. As said by Mechem in his work on Public Officers, section 452: “The power of removal so conferred must be confined within the limits prescribed for it, and must be pursued with strictness. Hence it can be exercised only for the cause specified and in the manner and upon the conditions fixed.” See also Commonwealth v. Slifer, 25 Penna. State, 23. And, with, equal propriety may it be added, that the finding and order should be so definite as to show, upon the face of them, that the power has been exercised according to law. This for the reason, among others, that the power exercised by the mayor is not judicial power and the presumptions which attach to the record of courts are not to be applied in the same liberal sense to the record of the mayor. In McGregor v. Supervisors, 37 Mich., 388, it is held by Cooley, C. J., that: “The removal from public office is a matter of serious consequence, and it is plain that all the facts which would justify it ought properly to be of record.”

The charges here are that Sullivan knew, or should have known, that the tangible property, real and personal, of the street railway company, subject to taxation, was $10,000,000. Yet he wilfully consented to approve the valuation of personal property at $835,230, and realty at $350,000, when he knew that the value of the said taxable property was not less than $10,000,000, with bad intent, etc. A similar allegation is made as to the property of the gas company.

But the board, acting as a board of equalization had, under the statutes, no duty to perform respecting real estate, its power of equalization being confined wholly to personal property, and why the confusing element as to real estate was incorporated in the charges must be left to conjecture. It so confuses the allegation that its meaning is fatally obscure.

There is no statement that Sullivan, or the board, undervalued the personal property, for there is no language equivalent to an averment that the personalty of the railway company was in fact of higher value than $835,230. The valuation in gross appears by the charges to have been much too low. But it may be, for anything that these charges show to the contrary, that the undervaluation was wholly on the real estate. So that, as conclusion, every word in the charges as made may have been true as therein alleged, and yet no neglect of duty would be shown.

The finding of the mayor is simply that “Sullivan has been guilty of neglect of duty.” This finding^ being general, cannot be extended by implication to involve a conclusion more comprehensive or specific than the language of the charges. And this, as we have found, means only that as to the whole property there was undervaluation. In ■other words, the legal meaning of the finding and order is, that, in the judgment of the mayor, the defendant was guilty of neglect of duty because he had permitted undervaluation of the property in gross, and cannot be held equivalent to a finding that he had been so guilty with respect to that part only of the property of which the board had jurisdiction. It seems to us manifest that, considering the arbitrary character of the power brought into exercise in this case, the charges were too indefinite to justify a trial, and that, unaided by a specific finding showing in what the neglect of duty consisted, the entire record is not sufficient to support an order of removal.

Upon the other branch of the case, it will be noted that the answer avers that at the trial “Not a word of evidence tending to sustain the truth of the facts alleged in said charges, or either of them, was adduced or heard by said mayor, and that no statement or information of any personal or official knowledge of the mayor, of any kind, tending to substantiate or prove the facts alleged in said charges, or either of them, was made or communicated to this defendant.” It will be further noted that, in his order, the mayor recites that “I find from the evidence and also from the facts within my personal knowledge, ” etc. As stated elsewhere, the power given the mayor is not judicial within the meaning of the constitution, yet, as already found, it is not to be exercised arbitrarily; that is, a hearing is to be given the accused, and he is to have the opportunity to refute what is adduced against him. So that, it would not be a proper exercise of power for the mayor to determine the truth of a charge on his own personal knowledge without making that publicly known, and offering the opportunity above alluded to. If the averment that not a word of evidence tending to sustain the truth of the facts alleged was adduced or heard by the mayor, etc., is to be taken as an averment that no testimony at all was heard, but that the mayor’s finding rested entirely on facts within his personal knowledge, uncommunicated, and it is insisted by counsel for defendant in error that such is its meaning, then clearly, upon this ground, also, should the mayor’s order be held invalid. The majority of the court, at least, inclines to regard the legal effect of the averment as a conclusion of law merely; that is, that in the opinion of the pleader the evidence did not tend to sustain the truth of the charges, and that whatever statement the mayor may have made of personal knowledge did not tend to substantiate the facts alleged. The decision, therefore, is rested upon the first proposition.

Jvdgment affirmed.

Minshall, J., dissents.  