Nolen v. State ex rel. Moore

McCLELLAN, J. A tax assessor can be removed from office only in the mode prescribed by the organic law, that is, by impeachment under section 3, Article VII of the Constitution. That provision of the act of February 28, 1887 (Acts, 1886-87, p. 1), which undertakes to authorize the Governor to “suspend” tax assessors, and to appoint tax [159] commissioners to perform the duties of assessors so “suspended,” and providing that such suspension of an assessor shall continue indefinitely, or, more accurately speaking, perpetually, “unless the General Assembly by joint resolution restore him to his office,” is violative of the Constitution and void. The “suspension” provided for is in legal contemplation essentially a removal from office, accomplished, if held to be effective, without impeachment and without the semblance of a trial by jury or otherwise. As to the procedure in this case: It is manifest that the respondent is in the office, and discharging all the duties of the office from which the relator was thus removed; and it is of no sort of consequence that he is styled “tax commissioner,” instead of “tax assessor,” which .latter in truth and in fact he is under the act; and the relator has properly resorted to the writ of quo loarranto in respect of the respondent’s actual incumbency of the office which the relator is entitled to hold. We concur in the conclusion reached by the judge of the circuit court; and the judgment must be affirmed. Affirmed.