own political party; and that the Superior Court, upon proceedings in the nature of quo warranto, is made the final judge of the sufficiency of the cause and its existence as a fact, and of the operating motive of the mayor in making the removal. This assumption is plainly unfounded. The demurrer was properly sustained. There is no error in the judgment of the Superior Court. Under § 2140, New York Code of Civil Procedure, as interpreted by the courts, People ex rel. Masterson v. French, 110 N. Y. 494, infra, the courts are empowered to reverse on certiorari proceedings, a determination to remove an officer, removable only for cause and after a hearing, on the ground that such a determination is opposed to the preponderance of proof. 5. Power of Suspension. GREGORY V. MAYOR, ETC. Court of Appeals of New York. April 16, 1889. PECKHAM, J. The trial judge was amply justified by the evidence in holding, as a fact, that the plaintiff never received any notice of dismissal, and we are concluded by such finding. The only question that is left for discussion is, whether the resolution of the commissioners of excise, which assumed to suspend the plaintiff indefinitely, and without pay, from the performance of his duties was authorized. It is claimed that the power of the commissioners to suspend their employes was included in the conceded power to remove them. Whether the power to remove includes the power to suspend, must, as it seems to us, depend, among other things, upon the question whether the suspension in the particular case would be an exercise of a power of the same inherent nature as that of removal, and only a minor exercise of such power, or whether it would work such different results that no inference of its existence should be indulged in, based only on the grant of the specific power to remove. We think it is apparent that the two powers cannot always be properly respectively described as the greater and less, and, consequently, it cannot always be determined, simply upon that ground, that the suspension is valid because there was a power to remove. The power to remove is the power to cause a vacancy in the position held by the person removed, which may be filled at once, and if the duties are such as demand it, it should be thus filled. The power to suspend causes no vacancy and gives no occasion for the exercise of the power to fill one. The result is that there may be an office, an officer and no vacancy, and yet none to discharge the duties of the office. By suspension the officer is prevented from discharging any duties, and yet there is no power to appoint anyone else to the office because there is no vacancy. If it be claimed that the power to suspend includes also the power to fill the place of the officer suspended during such suspension, then there is a second presumed power which flows from the simple power to remove. There is the power to suspend and there is the further power to be implied from it, viz., the power to fill the office with another during such suspension, although there is no vacancy in the office. We do not think either of these last-named powers should be implied in the mere grant of the power to remove. We are not inclined to go so far with the doctrine of implied grants of power, because we think the implication is not one which naturally or necessarily arises out of the nature of the main power granted, and its denial in such cases as this can, as we think, work no possible mischief. We do not go to the extent of saying that in no conceivable case can the power to suspend be inferred from a grant of the power to remove. There may be cases where such an interference, arising from the general scope and nature of the act granting the power, would be so strong as to compel recognition. We think there is no such inference to be drawn in the case before us. The plaintiff held the position of excise inspector and it was his business, as he described it, "to go 'round to different places where liquor was sold and see if the sellers were licensed and if they were not, that they should get one; also to see that the sale of intoxicating liquors in the city of New York was carried on properly." These duties were, necessarily, to be discharged out of the sight of the commissioners. Upon the fidelity and prudence with which such duties were discharged depended, in great part, the proper enforcement of the law. The commissioners might believe that the inspector was not doing his duty, and yet be unable to show exactly wherein he failed. Proof thereof on charges, to be regularly preferred, would amount almost to a denial of the power to remove, because, the duties being of such a nature as above described and to be performed beyond the view of the commissioners, the inference of a failure to perform them might be based upon such a number of disconnected facts that it would not be regarded as justified upon a regular trial. Hence the necessity of a power to remove when the commissioners might feel that there had been a dereliction of duty without being able to point out any specific fact as evidence thereof, while the power of indefinite suspension, without pay, would not add anything to the security of the city or the power of the commissioners to obtain honest service. If the employe were unfit, it would be the duty of the commissioners to remove him at once. If not unfit, he should not be suspended indefinitely, without pay. It seems to us that the power of removal in such a case as this was entrusted to the commissioners to be exercised, if at all, at once and finally. It was not meant that they should have power to arbitrarily suspend without pay, and then appoint some other in the place of the suspended man, and perhaps suspend or remove the alternate and again appoint some other. The tendency would be to confuse instead of perfecting the service. The effect upon the suspended man would also be demoralizing, causing him to expend his time in efforts to get reinstated rather than in endeavors to procure a livelihood in other ways, which would be the result of a removal. As the existence of the power to suspend depends upon our inferring it from the grant of the power to remove, all of the views above suggested may properly be regarded as bearing upon the question whether there is any inherent necessity for an inference of such a nature. The constitution of our state, in section 3 of article 5, in providing for the appointment of a superintendent of public works, says that, "he may be suspended or removed from office by the governor, whenever," etc. In section 4 of the same article provision is made for the appointment of a superintendent of state prisons, and it is stated that "the governor may remove the superintendent for cause at any time," etc. Has the governor power to suspend in both cases? This difference of language in the organic law rather tends to the idea that the framers of these two provisions were not entirely sure that the power to remove included the power to suspend, or that the latter power was always of the same nature and only less in extent than the former. We think the commissioners had no power to suspend the plaintiff, and that the frequent attendance of the plaintiff at the office of the board, and his continuous offers to discharge the duties of the position to which he had been appointed, were sufficient tenders of performance on his part to warrant the conclusion of the learned trial judge in directing the verdict. We see no errors in the record and the judgment should be affirmed, with costs. All concur, except RUGER, Ch. J., not voting. Cf. Wardlaw v. Mayor, 137 N. Y. 194, supra. Judgment affirmed. STATE EX REL. DOUGLAS V. MEGAARDEN. Supreme Court of Minnesota. December, 1901. LOVELY, J. Quo warranto upon the information of the attorney general in behalf of the state against Philip T. Megaarden, sheriff of Hennepin county, to oust him from the possession of that office during the proceedings before the governor for his removal. Respondent demurred to the information, which issue presents two questions: (1) Are the allegations of the information sufficient to show that the executive was authorized to order an investigation for the removal of the sheriff? (2) Did the order for such investigation authorize the governor to suspend the sheriff during the course of the procedure for his removal? 1. The information alleges that respondent was elected sheriff of Hennepin county at the general election of 1900; that he qualified and entered upon the office in January, 1901; that the public examiner subsequently made an examination into his official affairs for the years 1899, 1900 and 1901; that on November 25, 1901, the examiner reported to the governor that the sheriff had made improper charges against the county in excess of legal right, and had collected the same on verified claims presented to the board of county commissioners. 2. The governor acted upon the complaint of the examiner, appointed a commission as provided in G. S. 1894, § 894, and fixed a time for the return of their report. He also made an order sustaining the sheriff during the proceedings for removal, of which due notice was given, but respondent has ever since continued in possession of the office in defiance of the order of suspension. Whether he was right or wrong in this respect is the important question before us, involving the power of the governor to make the order of suspension. No right to suspend is given in express terms. If such power exists, it must be implied; hence the question still remains, can the governor, upon the ordering of the commission, suspend the officer during the investigation? While the right to remove under the law of sister states is in many instances conferred by statutes quite similar to ours, yet the authorities in respect to the incidental right to suspend pending the hearing are meager and unsatisfactory. We have been referred to several cases by counsel for respondent, but found them of little assistance. The best considered case relied upon by counsel, in which it has been held that the power of suspension was not an incident to the power of removal is Gregory v. Mayor, 113 N. Y. 416, 21 N. E. 119. . This case is not in point here, where the temporary vacancy created by the suspension of a county officer is made, pending a hearing, which may terminate in his favor, with reinstatement to the duties and emoluments of the office. The only value of this opinion is derived from the fact that it was written by a very able jurist, who reviews the authorities, but distinguishes them from the question now presented to this court. Most of the authorities cited for the state are either distinguishable from the case before us, or go upon an assumption of the incidental right to suspend without furnishing such reasons for its existence as would render them of paramount weight on this review. The case of State v. Peterson, 50 Minn. 239, 52 N. W. 655, was on quo warranto to remove a county treasurer, conducted under laws 1881, c. 108 (G. S. 1894, §§ 909-913), which in express terms provides for the suspension of that officer pending his removal. In the Peterson case the court referred to the only precedent we |