any citizen to office, notwithstanding his previous character, habits, or official misconduct. State v. Jersey City, 25 N. J. Law, 536; Com. v. Shaver, 3 Watts & S. 338. In Com. v. Shaver it was held that the trial, conviction, and sentence of a sheriff for the offense of bribing a voter previously to his election to the office did not disqualify him. In State v. Jersey City it was held that the expulsion of an alderman for receiving bribes did not disqualify him for election to the same office. See, also, State v. Common Council of City of Duluth, supra; Crawford v. Township Boards, 24 Mich. 248; Richards v. Clarksburg, 30 W. Va. 502, 4 S. E. 774; 1 Dill. Mun. Corp. § 252, and note; State v. Jersey City, 25 N. J. Law, 536. This may be a proper subject for legislative consideration, but, until the legislature shall choose to disqualify persons from holding office for such reasons, they can constitute no cause for removal. 3. It was settled in the case of Speed v. Common Council of City of Detroit, supra, that the mayor could not revoke the appointment when once made, and that neither he nor the common council possessed the power to remove at will. That case was ably argued, and received the most careful examination by this court. We see no occa、 sion to change our views, or to question the soundness of the conclusions then reached. Counsel for respondents, in their brief upon the application for a rehearing, concede that "there is no provision whatever for the re moval of an appointive officer upon charges, nor for the trial of such charges;" but they contend (1) that the power of removal is necessarily implied from the language used in the Acts of 1893; and (2) that the power of removal for cause is implied from the charter and from the nature of the municipal organization. The only reference to removal from office in the act of 1893 is found in section 8, which reads as follows: "Upon the expiration of the term of office of the city counselor and the city attorney, or their resignation thereof or removal therefrom, such officer shall forthwith, on demand, deHiver to his successor in office all deeds, leases, contracts and other papers and books in his hands belonging to the corporation, or delivered to him by the corporation or any of its officers, and all papers in actions prosecuted or defended by him, or which are pending and undetermined." From this language it is argued that the power of removal for cause is necessarily implied, and the case of State v. Somers, (Neb.) 53 N. W. 146, is cited in support of the proposition. The provision of the statute of Nebraska then before the court for construction reads as follows: "Said commissioner of health shall be appointed by the mayor, subject to the approval of a majority of the council, and shall hold office for a term of two years from the date of appointment, unless sooner removed or retired." This statute was amended so as to read as follows: "All officers appointed by the mayor and confirmed by the council shall hold the office to which they may be appointed until the end of the mayor's term of office and until their successors are appointed and qualified, unless sooner removed or the ordinance creating the office shall be repealed, except as otherwise provided in section 104." Construing these provisions together, it was held that the right of removal was impliedly retained in the hands of the mayor, not in the council. The difference between the two statutes is apparent. In that case the appointment was until the end of the mayor's term, unless sooner removed, while, in the present case, section 2 of the act conferring the power of appointment is as follows: "He (the city counselor and the head of the legal department of the city) shall be appointed by the mayor on or before the third Tuesday in June for the term of three years from the 1st day of July next succeeding his appointment." In State v. Somers, the clause in regard to removal is coupled directly with the appointment, in the same section, and no other object than the removal of the officer is apparent from the language. But in this case it is obvious that the sole purpose of section 8 is to provide for a surrender of the books and papers to their proper custodian in the event of a lawful successor to the office, and it is fairly to be inferred that this purpose was in the legislative mind in adopting the enactment. Any other conclusion would do violence to the rules of construction. This act was supplementary to the charter of the city of De troit, and its sole object was the creation of a new department. It is, in its character, an independent act, and, in the absence of controlling language referring to the charter, the language of the act must prevail. The character of this department and the office of the city counselor will be referred to hereafter. There would be more force in this proposition of counsel if there were no officer mentioned in the act to which the term "removal" might apply, but the city attorney is elected, and, under the express provisions of the charter, may be removed "for corrupt or willful malfeasance or misfeasance in office, or for willful neglect of duty, upon charges which must be tried, and to which the officer shall have the right to make his defense." Charter, § 18. This act recognizes the city attorney in his status as an elective officer, and therefore the provisions of the charter to his amotion apply. But, as to the city counselor and the head of the legal department, he is a new officer created by the act, to be appointed under the act, whose duties are specifically defined by it, whose term of office is fixed, and whose appointment is lodged solely in the mayor. If the Nebraska case were applicable to the facts of this case, it would follow that the power of amotion was lodged in the mayor to remove at will, and this question has been decided in Speed v. Common Council of City of Detroit, supra. Is the power to remove the city counselor appointed under this act inherent in the municipal corporation or in its governing body, the common council? Judge Dillon, in his valuable work on Municipal Corporations, (section 181; Id., 4th Ed., § 242,) states that the question of implied removal by municipal corporations has not been judicially settled in this country, and ventures the opinion that, in the absence of any express or implied restrictions in the charter, such power exists. It is also stated in the opinion in Richards v. Clarksburg, 30 W. Va. 496, 4 S. E. 774, which is largely relied on by respondents' counsel, decided in 1887, that the court was unable to find a single case in the United States where this question has been decided. The charter, in that case, appears to have been entirely silent in regard to the removal of officers, and particular stress seems to have been laid upon the broad powers conferred by the statutes of West Virginia upon the common councils of towns and villages. Under the facts of this case, however, we are not required to enter upon an extended discussion or determination of this question. The tendency of the decisions in this country is to regard municipal corporations as an aid to the state government and to limit their powers to those which are expressly derived from the constitution and from legislative enactments, and to those implied powers only which are necessary to carry out the powers thus conferred. The highest tribunal in this country has declared the well-established rule on this subject in Ottawa v. Carey, 108 U. S. 121, 2 Sup. Ct. 361. Chief Justice Waite, speaking for the court in that case, said: "Municipal corporations are created to aid the state government in the regulation and administration of local affairs. They have only such powers of government as are expressly granted to them, or such powers as are necessary to carry into effect those that are granted No powers can be implied, except such as are essential to the objects and purposes of the corporation as created and established." See, also, Taylor v. Railway Co., 80 Mich. 77, 45 N. W. 335; People v. Hurlbut, 24 Mich. 69. In this last case Justice Christiancy said: “But the common council of the city is not the city, nor the legal entity known as the corporation of the city. It is itself but a public board for municipal purposes, with just such powers (not forbidden by the constitution) as the legislature have thought, or may hereafter think, proper to confer." In discussing the power of a common council to expel a member, the supreme court of New Jersey recognized the power of a corporation at common law to expel a member for sufficient cause, and in its opinion said: "But the jurisdiction exercised In this case is not derived from the common law. The common council is not the corpo ration, and, whatever powers a municipal corporation may have to remove or expel a member for cause at common law, it is clear that the corporation itself has not by any by-law delegated any of them to the common council, and that body, therefore, cannot avail itself of the common-law jurisdiction vested as an inherent right in the corporation itself to expel a member of their own body. The council derives its jurisdiction from the charter of the corporation." It is argued that the power of removal of the city counselor is necessary in order to protect the interests of the city from an incompetent or corrupt incumbent, and therefore it must be inferred that the legislature recognized this power as existing. Courts may not surmise or speculate as to legislative enactments. With the reasons for conferring or withholding a power the courts have no concern. They must interpret the statute as they find it. The same argument was made in People v. Woodruff, 32 N. Y. 355. After stating the serious consequences which it was claimed would be entailed upon the community under the interpretation given, the court said: "To obviate these alarming and startling results it is contended that we are to imply and infer an intent on the part of the legislature to have the power lodged in the comptroller, in the first instance, remain with and to be exercised by him whenever the exigency should arise which might call for it. It is a dangerous principle to imply power when it is not conferred by legislative authority in clear and distinct terms. It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain intent and obvious meaning of the act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave to the legislative department to supply a supposed or actual casus omissus than attempt to do it by judicial construction." The position, character, and duties of the officer created by the act are important considerations upon the principle under discussion. He is required to be an attorney of five years' practice, to give a bond of $5,000 for the faithful performance of his duties, and to devote his entire time to the duties of the office. He must therefore abandon all his other legal business. He is made the legal adviser, not only of the common council, but of all the other departments of the city government and the boards thereof, except the board of police commissioners. It is apparent that the legislature contemplated that a man of high standing and character in his profession should be appointed to this important position. Is it reasonable to infer that the legislature intended to place this important office beyond the control or fear of any other department? That such a man should be city counselor. The absolute authority and the entire responsibility of his appointment are given to the mayor without power of removal at will or for a cause. There is nothing in the act which shows any intention on the part of the legislature to confer such power upon the common council; nor do we think such power is inherent in the council, which is the governing body of the municipal corporation, and derives its powers from express legislative enactments. The motion to vacate the order must therefore be denied, with costs. The other justices concurred. come incompetent, corrupt, and neglectful of his duties would be an exception to the rule. If it be said that the exception might arise, it may likewise be said that in the change of administrations, when the political complexion of the common council might change, false charges might be made for political purposes in order to remove the incumbent, and replace him by another of the same political faith as the council. Experience has demonstrated that there is at least as much danger of the one as of the other. These considerations may have had weight with the legislature. The reasons for a fixed term without the power to remove may have had greater weight with legislators than the risk of malfeasance or misfeasance on the part of ELLIS, Attorney General, ex rel. SPEED v. the officer. They may well have deemed it important that the head of such a department should be free from all fear of removal or interference on the part of the common council. If, however, it was casus omissus on the part of the legislature, it is one which the legislature and not the courts must supply. No support for the position of respondents can, we think, be found in the charter itself. The subject of removals is completely covered by its provisions, and excludes removals in any other manner than is there provided. Elective officers, with few exceptions, can be removed for cause. This, under the well-established rule, excludes the power to remove at will. Certain appointive officers, under the charter, can be removed at will "without charges or trial." Charter, § 19. This likewise excludes the power to remove for cause. Where the power to remove at will is given, the law does not contemplate that the officer may be put to the expense of a trial for cause, and have charges of official misconduct placed before the public. Dill. Mun. Corp. § 245; State v. Jersey City, 25 N. J. Law, 536; Speed v. Common Council of City of Detroit, supra, and authorities there cited: State v. Somers, supra; Crawford v. Township Boards, 24 Mich. 248. In People v. Treasurer of Ingham Co., 36 Mich. 416, it is said: "The general statute concerning removals contains no provision applicable to superintendents of the poor. Hence, there would seem to be no provision for the removal of these officers except the specific regulation in the supervisors' act. It would seem that the legislature meant to confer on the supervisors a power to remove on the two specified grounds, but had no intention to give the right on any other ground, or to delegate to the supervisors a discretionary general power to remove. The provision in the supervisors' act, in so far as it applies to superintendents of the poor, would be rendered entirely gratuitous if a general authority to remove were to be implied, or should be considered as a consequence of the power to appoint." It is also significant that the act gives the common council no voice, either in the appointment or confirmation of the CORLISS. (Supreme Court of Michigan. Jan. 5, 1894.) Information in the nature of quo warranto by the attorney general, at the relation of John J. Speed, to test the title of John B. Corliss to the office of city counselor of the city of Detroit. Judgment ousting respondent. A. A. Ellis, Atty. Gen., (Hoyt Post and John D. Conely, of counsel,) for relator. Edwin F. Conely, (Jasper C. Gates and Charles Flowers, of counsel,) for respondent. PER CURIAM. The information in this case was filed to test the title of the respondent to the office of city counselor and head of the legal department of the city of Detroit. The relator interposed a demurrer to the respondent's plea, and the case now stands at issue upon the joinder in the demurrer. The merits of this controversy were disposed of in Speed v. Common Council, (Mich.) 56 N. W. 570. A full statement of all the facts and claims of the parties will there be found. Any further statement here is unnecessary. The relator was duly appointed, qualified, and inducted into the office. There was no authority for the appointment of the respondent, and he unlawfully intruded himself into the office. Judgment of ouster must be entered for the relator, with costs. HARVEY V. MCFARLAND, Secretary of (Supreme Court of Iowa. Jan. 22, 1894.) Mandamus will not lie to compel the secretary of state to furnish a certified copy of an amendment to the state constitution, as such, where the supreme court has adjudged that such amendment was not legally adopted, though Code, § 3706, provides that every public officer having the custody of a public record shall give any person, on demand, a certified copy thereof, on payment of the fees. From district court, Polk county; W. F. Conrad, Judge. of the state of Iowa. Plaintiff further states that, prior to the commencement of this action, he applied to the defendant, as such secretary of state, for a certified copy of the constitution so as aforesaid amended; that he made a demand of him for such certification of the constitution, including all the amendments thereto, but that he refused, and still refuses, to insert therein, or include and certify as a part of said con This is an action of mandamus to compel the defendant, who is secretary of state, to furnish the plaintiff with a certified copy of the constitution of the state, and to include in said copy an alleged amendment to the constitution, which it is claimed was adopted, and made part of that instrument, in the year 1882. The defendant refused to certify the alleged amendment as part of the constitution. A trial was had in the district court, and the application for a writ.stitution, the said section 26 of article 1 of of mandamus was refused, and the plaintiff appeals. A. J. Baker, Nourse & Nourse, and J. A. Harvey, for appellant. Cole, McVey & Cheshire and W. M. McFarland, for ap pellee. ROTHROCK, J. It will be understood that the matter of contention involves the validity of what was at one time known as the "Prohibitory Amendment to the Constitution," and which this court determined, in the case of Koehler v. Hill, 60 Iowa, 543, 14 N. W. 738, and 15 N. W. 609, was not a part of the constitution, because it was not legally adopted. The object and purpose for making the demand of the defendant for a certified copy of the constitution is stated in the petition in the following language: "Plaintiff further states that the Iowa State Temperance Alliance is a corporation existing under the laws of the state of Iowa; that one object of said corporation is to disseminate among the people of the state temperance literature, and information as to the laws for the suppression of intemperance; that to that end said corporation, at its annual meeting in March, 1891, resolved to have compiled, and published for distribution among the people, all the constitutional and statutory provisions in force in the state of Iowa relating to the sale of intoxicating liquors, and that plaintiff has been employed, for a compensation to be paid him, to compile said constitution and laws touching said subject, and to annotate the same in such manner as to impart verity thereto; that said amendment, being a part of the constitution of the state of Iowa, became and is a necessary part of such publication; that the same is on file and of record in the office of the secretary of state of the state of Iowa; that the defendant is such secretary of state, and the legal custodian thereof, and of the proclamation of the governor declaring the same to be a part of the constitution, and that the defendant, as such secretary, is authorized to so certify, and under the law it is his duty to so certify, when requested by a citizen of the state, and his fee for so doing tendered him; that in no other way can it be made to appear authoritatively, in the compilation which the plaintiff has, as aforesaid, been employed to prepare, that said provision is a part of the constitution said constitution, assuming, claiming, and pretending, as a reason therefor, and in justification of his refusal, that said section 26 is not a part of the constitution of the state of Iowa. Plaintiff says that by reason of such refusal by the defendant he (the plaintiff) is hindered and prevented from performing and fulfilling his said contract with the Iowa State Temperance Alliance, and is damaged, and may suffer further damage, by reason of said refusal. And plaintiff says that he has no other plain, speedy, or adequate remedy, and therefore he brings this action, and prays the court to grant a peremptory writ of mandamus, commanding the defendant, as such secretary of state, to forthwith give to the plaintiff a duly and properly certified copy of the constitution of the state of Iowa, as amended, including section 26 of article 1 thereof, So as aforesaid proposed, referred, and agreed to and submitted, and ratified by the people at said special election on the 27th day of June, 1882, and that he may recover his costs herein expended." The ground upon which the defendant refused to comply with the demand of the plaintiff is stated in the answer in these words: "Defendant also admits that he refused to so certify said amendment in manner and form as demanded by the plaintiff, and for the reason that the supreme court of the state of Iowa has heretofore adjudged and decided that the same was not legally adopted, and made a part of the constitution of the state of Iowa." It will be observed that the defendant did not refuse to make a copy of the alleged amendment, and certify that it was a copy of a public record in his office, without determining its legal effect. The plaintiff demanded more than this. He insisted in the court below, and claims now, that it was the duty of the defendant to certify the amendment as part of the constitution of the state, notwithstanding it had been decided by this court that the same was no part of the constitution. It quite plainly appears from the whole record in the case that the object in making the demand was to review, and again present, the question of the validity of the so-called "amendment" in the courts. The plaintiff, in quite a voluminous printed argument in this court, presents the whole controversy anew. At the very outset of the argument, it is stated that the issue made by the defendant "brings anew be fore the court the question whether section 26, art. 1, [the prohibitory amendment,] is part of the constitution." It is provided by section 3706 of the Code that "every officer having the custody of a public record or writing is bound to give any person on demand a certified copy thereof on payment of the legal fees therefor." It may be that under this section of the statute the defendant can be required to certify a copy of any record in his office, and identify it. But that is a mere ministerial act. He cannot be compelled to decide as to the legal effect of any of the records in his custody. The defendant is just as much bound by the decision of this court that the alleged amendment was not legally adopted as any other public officer or citizen of the state. The plaintiff, in effect, demanded that the defendant should determine that the said amendment was in force, notwithstanding the decision of this court. It is so plain as to require no argument that a mere ministerial officer is clothed with no such authority. But suppose that the defendant had complied with the plaintiff's request. decision would have been an attempt to overrule a solemn adjudication of the highest court in the state, and would have been of no possible advantage to the plaintiff, or to the alliance which he represents. It is true he could have published it, and circulated it among the people of the state, claiming it was part of the constitution; but that act would not make it part of the constitution, and it would have no effect, except, possibly, to deceive some of them, and lead them to believe that the said amendment was legally adopted. These observations, it appears to us, demonstrate that the plaintiff had no right to require such a certificate as he demanded, and that this action of mandamus cannot be maintained. The judgment of the district court is affirmed. STATE v. ORR. His (Supreme Court of Iowa. Jan. 17, 1894.) HIGHWAYS CROSSING BRIDGE WITH STEAM ENGINE WITHOUT PLANKS - INFORMATION-ALLEGING OWNERSHIP. Acts 24th Gen. Assem. c. 68, 2, makes it unlawful for "any person" to drive a steam engine over a bridge in the highway without the use of planks. Section 4 provides for the punishment of "any owner of a steam engine who, by himself, agent, or employe," violates the act. Held, that only the owner of an engine can be punished, and an information which fails to allege ownership in defendant is fatally defective. Appeal from district court, Jones county; J. H. Preston, Judge. Defendant was convicted, before a justice of the peace, for a violation of chapter 68, Acts 24th Gen. Assem., with reference to driving steam engines over bridges and culverts without the use of planks. He appealed to the district court, where he was again convicted, and he then appealed to this court. Sheean & McCarn, for appellant. John Y. Stone, Atty. Gen., and Thos. A. Cheshire, for the State. "It GRANGER, C. J. 1. The information upon which the defendant was tried is as follows: "The above-named defendant is hereby accused of the crime of driving and operating a steam engine over bridges and culverts without planks, for that the defendant, on the 23d day of September, A. D. 1892, at and within Madison township, in said county, did willfully and unlawfully drive a steam engine over certain bridges and culverts on the public highway within Jones county, Iowa, without laying down and using planks, as required by law, contrary to the statutes in such case made and provided." The following are the important provisions of the act defining the offense and providing the punishment. Section 2: shall be unlawful for any person to drive a steam engine over any bridge or culvert on any public highway in this state without using four strong planks, each to be not less than twelve feet long, one foot wide and two inches thick; two of said planks to be kept continuously under the wheels of said engine while crossing said bridge or culvert." Section 4: "Any owner of a steam engine who by himself, agent or employe shall violate any of the provisions of this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall for each offense be fined not less than ten dollars, nor more than fifty dollars." There was a demurrer to the information, on the ground that it did not show that the defendant was the owner of the engine, which was overruled. It should have been sustained. Section 2 of the act defines an offense, and it may be committed by "any person." Section 4 provides a punishment for a violation of the act, but limits it to "any owner of a steam engine." There is a clear omission-intentional or otherwise -to make a violation of the act punishable by any person except an owner. There is some reason for thinking that it was intended to make the owner liable to punishment for whoever might be the driver of his engine, because of the language "by himself, agent, or employe." But with that construc tion it is equally necessary, if not more so, that he should be charged in the information as the owner. There is no view of the act under which its penalties can be applied against any person except an owner. The fact, then, of ownership, is a material and a necessary one to be averred and proved. If it should be thought that the penalty for a violation of section 2 of the act is not that specified in the act, but that provided for generally in cases of misdemeanors where no penalty is prescribed, as in Code, § 3967, it is only necessary to say that the penalty there in prescribed is such as to make the offense |