#### Samuel I. Gordon v. Frank E. Moores et al.

Filed February 20, 1901.

No. 11,770.

1. Metropolitan Cities: Statute: Constitution: Removal qe Police Magistrate. Section 103 of the charter of metropolitan cities, (Session Laws, 1897, ch. 10), to the extent that it assumes to confer upon the district courts authority to remove police magistrates for misconduct in office, is legislation prohibited by the constitution and, therefore, void.

2. Removal for Official Misconduct: Distribution oe Powers: Quiere. Whether the power to remove an officer for official misconduct can be concurrently exercised by two departments of the government without violating the provision of the constitution relating to the distribution of powers, *Quiere.*

Error from the district court for Douglas county. Tried below before Dickinson, J.

*Reversed.*

*Jefferis & Howell Wright & Stout*and *Brome & Burnett,*for plaintiff in error.

*W. J. Cornell, contra.*

Sullivan, J.

In the district court for Douglas county Samuel I. Gordon, the plaintiff in error, was found guilty of official misconduct and removed from his office as police judge of the city of Omaha. The proceeding which, resulted in the judgment of removal was commenced under the authority of section 103 of the city charter (Session Laws, 1897, ch. 10), which is here set out:

“See. 103. The power to remove from his office the mayor or any councilman or other officer mentioned in this act, for good and sufficient cause, is hereby conferred upon the district court for the county in which such city is situated, when not otherwise herein provided, and whenever any three of the city councilmen shall make and file with the clerk of said court the proper charges, and specifications against the mayor, alleging and show*346ing that he is guilty of malfeasance and. misfeasance as such officer, or that he is incompetent, or neglects any of his duties as mayor, or that for any other good and sufficient cause stated, he should be removed from his office as mayor or whenever the mayor or any three councilmen shall make and file with the clerk of said court the proper charges and specifications against any councilman or other officer mentioned in this act, alleging and showing that he is guilty of malfeasance or misfeasance in such office, or that he is incompetent or neglects any of his duties, or that for any other good and sufficient cause stated, he should be removed from his office, the judge of such court may issue the proper writ, requiring such officer to appear before him, on a day therein named, not more than ten days after the service of such writ, together with a copy of such charges and specifications, upon such officer to show cause why he should not be removed from his office. The proceedings in such case shall take precedence of all civil causes and be conducted according to the rules of such court in such cases made and provided, and such officer may be suspended from the duties of his office during the pendency of such proceedings by order of said court. During the time any officer is suspended the mayor and council may appoint any competent person to perform the duties of the officer suspended and provide for his compensation, and require him to execute a sufficient bond for the faithful performance of the duties of the office.”

Counsel for- Gordon contend that the legislature was without authority to confer upon the district court the jurisdiction which it assumed to exercise, and that the judgment of removal should, therefore, be annulled. The provision of the constitution (art. 6, sec. 19) upon which it is claimed the legislature encroached in adopting section 103, is as follows: “All laws relating to courts shall be general, and of uniform operation, and the organization, jurisdiction, powers, proceedings, and practice of all courts of the same class or grade, so far as regulated *347by law, and the force and effect of the proceedings, judgments, and decrees of such courts, severally, shall be- uniform.” Prior to the adoption of the first act (Session Laws, 1887, ch. 10) providing for the incorporation and government of cities of the metropolitan class, the power to remove police magistrates for official misconduct was not possessed by the district courts, or any of them. This *we*believe is conceded. The power to remove police judges of metropolitan cities was given to the district court by the act of 1887, and is continued in force by section 103 of the present charter. If that section is constitutional and valid, all district courts have power within their territorial limits to remove for misconduct police judges of metropolitan cities; but authority to remove police judges of cities of inferior rank is not vested in any of such courts. The various charters classify cities; they do not of course assume to classify courts. The provision of the constitution above quoted, as we understand it, means that courts of the same grade or class shall have equal powers—equal authority to hear and determine the same class of cases. The district court of Douglas county has ousted the plaintiff in error from the office of police judge of a metropolitan city; and, if section 103 is valid, the district court of any other county in the state may exercise the same power whenever a like case shall arise within its territorial jurisdiction. The constitutional rule of uniformity that we are now considering is not violated if all courts of the same grade • have jurisdiction of the same matters and equal authority in dealing with them. That is the principle established by *State v. Magney,*52 Nebr., 508. But a police judge, like “a justice of the peace, is a constitutional officer, and the power to remove him is precisely the same power whether he holds his commission from a city of the highest or the lowest rank. If the legislature had given the district courts in counties under the township system of government power to remove justices of the peace for official misconduct, while permitting the power of removal to *348remain with the county commissioners in all other counties, it would hardly be contended that the rule of uniformity had not been violated. It would be at once perceived that the form of county government could not change in any degree the essential nature of the power of removal, and that the jurisdiction which was given to the courts in one class of counties was in all respects identical with that which was denied to courts of the same grade in another class of counties. Under our constitution, jurisdiction to deprive justices of the peace of their offices can not be made to depend upon a classification of counties any more than can jurisdiction to deprive them of their property. This is equally true of police magistrates. Their rank and powers are the same wherever their functions may be exercised. They all belong to one class—as much so as justices of the peace or county courts; and-when the legislature undertook by section 103 to give district courts, in counties containing metropolitan cities, authority to remove the police judges of such cities, what it did was a violation of the principle of uniformity, for it was an attempt to enlarge the jurisdiction of the district courts in one class of counties by classifying magistrates who are all of one grade, and incapable of legal classification. Without pursuing the subject further our conclusion is that the judgment under review is based on an unconstitutional law and must be reversed.

Before leaving the case, however, there is another question which has to some extent engaged our attention and to which we shall briefly advert. The power we have been considering has been long exercised in this state by administrative bodies, and it was in one case *(State v. Oleson,*15 Nebr., 247) held not to be judicial within the meaning of that provision of the constitution which vests the judicial power of the state in courts and magistrates. Section 1, article 2, of the constitution, relating to the distribution of governmental powers, declares that no person or collection of persons belonging to one of the departments of government “shall exercise any power properly *349belonging to either of tlie others.” If the power to remove an officer for official misconduct properly belongs to the executive department, can it be rightfully exercised by officers of the judicial department? In other words, can the same power be concurrently exercised by two departments of the government without violating the provision of the constitution relating to the distribution of powers? This is an interesting question, but since it has not been discussed by counsel and is not necessary to a decision of the case we express no opinion with respect to it.

The judgment is reversed and the cause dismissed.

Reversed and dismissed.

Nor val, C. J.

I concur in the judgment on the ground that the statute under consideration is in violation of section 19, article 6, of the constitution.