Opinion of
Holt, J.
The original jurisdiction of this court is invoked in a petition for mandamus, filed by Charles D. Fugate, in which he charges “that on the 29th day of November, 1930, the Honorable Johni Garland Pollard, Governor of Virginia, by virtue of the power conferred upon him by section 366 of the Tax Code of Virginia, issued an executive order whereby he suspended J. M. Weston as treasurer of Lee county, Virginia, for reasons and causes set forth in said order, and therein commanded and forbade the said J. M. Weston from collecting any more taxes and public revenues for the State of Virginia and the county of Lee, from that date; and in the same order the said Governor appointed and commissioned him as the successor of the said J. M. Weston for the time of said suspension, with full power to collect the said taxes and public revenues of the said county of Lee and the Commonwealth of Virginia, with all powers and rights and duties as treasurer of the county.”
Petition avers that he duly qualified as treasurer of said county on December 4, 1930, but that J. M. Weston, who had theretofore been elected its treasurer, had refused to' comply with the executive order of the Governor and had declined to turn over said office and records as by that order directed.
Weston has filed a demurrer to this petition, in which he claims that section 366 of the Tax Code of Virginia, under which the Governor proceeded, is unconstitutional, because it [109]*109is in violation of sections 5 and 39 of the Constitution of Virginia,
Weston has filed no answer, but this stipulation, entered into on behalf of these litigants, appears in the record:
“That the audit of the accounts of J. M. Weston as treasurer of Lee county, made by the Auditor of Public Accounts as of May 17, 1930, shows that on that date the said J. M. Weston was indebted to the county of Lee in the sum of $99,322.11; that on that date he was indebted to the State of Virginia in the sum of $4,399.09; and that on that date he had in cash or in cash items the sum of $8,127.02. A subsequent audit of the accounts of the said J. M. Weston, treasurer as aforesaid, as of October 22, 1930, made by the said Auditor of Public Accounts, shows that on that date the said J. M. Weston was indebted to the county of Lee in the sum of $99,463.49; that on that date he was indebted to the State of Virginia in the sum of $323.07; and that on that date he had in cash or cash items the sum of $7,022.68.
“The sum of $323.07, shown to have been due to the State of Virginia by the said J. M. Weston as of October 22, 1930, was remitted by the said J. M. Weston to the Comptroller of the State of Virginia on November 13, 1930.
[110]*110“The said J. M. Weston became treasurer of Lee county-on January 1, 1924, and was re-elected in November, 1927, at the general election held on the 8th day of that month for the term beginning January 1, 1928.”
For the purposes of this case we shall assume that Weston has been guilty of gross malfeasance in office for which he rñay be removed by a proceeding under section 2705 of the Code, and also under said section 366 of the Tax Code, if this latter statute be constitutional. Weston’s guilt or in-, nocence is not in issue here. We will assume that he is guilty. What we are to determine is whether or not this Tax Code section violates those fundamental principles of the Constitution of Virginia relative to the division and separation of the powers of government and their proper distribution among the legislative, judicial and executive departments thereof, for the urgency of the present necessity must not be permitted to override fundamental principles and dictate the decision of the question here presented. . It is more important that they should be preserved than that some guilty officeholder should be removed from office.
In the instant case the Governor acted upon the report of an auditor whose record merits, the utmost confidence, but there is nothing in the statute which requires that action be based upon so solid a foundation. Some executive, less mindful of the high obligations of. his office, might be willing to act upon some partisan report made for political purposes.
When we come to weigh a statute, the question is not what has actually been done under it, but what might have been done. Violett v. Alexandria, 92 Va. 561, 23 S. E. 909, 31 L. R. A. 382, 53 Am. St. Rep. 825.
This Tax Code section gives to the Governor power to remove every city or county treasurer, clerk, sheriff, or other officer charged with the collection of any of the public revenues, and this without notice. Its terms are: “The Governor shall have power to suspend the treasurer of any county or [111]*111city of this Commonwealth, or other officer charged with the collection of the public revenues, from collecting the revenues of the State or of such county or city, for failure to execute and perform the duties required of such officer under the laws of the Commonwealth with reference to the collection of the revenue; and said officer shall not collect any further the revenues unless the General Assembly by joint resolution restore him to office. The collection of the revenues in such city or county shall then be made by the person appointed by the Governor for that purpose, and such appointee, after having qualified and given bond according to law, shall discharge all the duties of the office to which he is appointed during the time of the suspension of his predecessor, and shall be amenable to all the rules, regulations, requirements and responsibilities declared by the laws of this State pertaining to the collection of the public revenue.”
It makes no provision for, nor does it permit, the accused officer to have the question of the existence of the cause of his suspension ultimately determined by a court. So far from doing this, the legislature has reserved to itself the right to determine if the action of the Governor is to be sustained. Since this right is reserved to the legislature, it cannot be exercised by the courts if this statute be constitutional, and it is for the legislature to say, without evidence and at pleasure, if the order of suspension is to be overruled. This suspension so-called is in substance a removal. The officer is displaced without provision for a determination of his rights anywhere. Unless the legislature, as a matter of grace; sees fit to reinstate him, he is out forever.
It is to be remembered that we are dealing here with a constitutional officer (Constitution, sections 110, 112), who was duly elected and whose term has not yet expired, and we are not called upon to consider the status of offices purely legislative.
It may readily be conceded that the Constitutional Conven[112]*112tion, in framing' our organic law, had power to confer upon the Governor and upon the legislature judicial power, but it was at pains in section 39 to say that these powers should not be interchangeably authorized except by authority written into the Constitution itself. Before any act of the legislature which purports to convey such authority can be sustained, it is necessary that it' be possible to- point out constitutional authority therefor. The presumptions are against it.
It may also be conceded that under the complex conditions of modern society it is not always possible to tell where the powers of one department end and those of another begin. Within this twilight zone incidental encroachments are at times unavoidable. Winchester & Strasburg R. Co. v. Commonwealth, 106 Va. 264, 55 S. E. 692. But such encroachments, unless authorized, must be incidental only. McCurdy v. Smith, 107 Va. 757, 60 S. E. 78. On the other hand, it is not necessary always to point to an express provision of the Constitution as authority when some act is unsupported by organic law. Private property cannot be taken for private uses in any circumstances, though it is not in terms forbidden.
In the case of Farmville v. Walker, 101 Va. 323, 330, 43 S. E. 558, 561, 61 L. R. A. 125, 99 Am. St. Rep. 870, the court said, Keith, P.: “It is true that it is not always necessary, in order to declare an1 act unconstitutional, to point out the precise provision which it violates, if it be repugnant to the spirit of the Constitution, or of the institutions which the Constitution creates.”
To remove a man from office because of embezzlement, without giving him a day in court, runs counter to those fundamental instincts of fair dealing which lie at the base of all governments.
“In harmony with these principles it has been held that a statute providing for the removal of an officer chosen for a fixed term, which makes no provision for giving him notice or for allowing him to be heard in his defense, is contrary [113]*113to a constitutional provision that no person shall be deprived of life, liberty or property without due process of law.” 22 R. C. L. 286.
Much has been said about the rights to- office. It is not property in any narrow sense. Ifi that were the touchstone this result might follow: The legislature, acting through the Governor or any other designated agent, might remove at pleasure any constitutional officer displeasing to- it when the Constitution itself did not forbid. Should he protest, it might answer: “We have taken no- property from you and you have no right to complain”—a proposition which answers itself.
In Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595, 626, 46 L. R. A. (N. S.) 796, is this' satisfactory statement as to the nature of an office: “So we may safely bring together the apparently conflicting ideas. An office, as a place, is not property. The right to hold an office and to take its emoluments until deprived thereof upon condition subsequent—due process of law—is property, in the broad sense which includes everything of every nature, tangible, intangible, corporeal, -or incorporeal, valuable, pecuniarily or otherwise, to- its possessor. In the sense incorporated into the fundamental guaranties, it is property.” See also, Foster v. Jones, 79 Va. 642, 52 Am. Rep. 637; Blair v. Marye, 80 Va. 485.
Neither rights nor property can be confiscated by a legislative act without a judicial hearing after due notice. Boggs v. Commonwealth, 76 Va. 989, 999.
If constitutional warrant for section 366 rests anywhere, it rests in section 56 of the Constitution, which reads: “The manner of conducting and making returns of elections, of determining contested elections, and of filling vacancies in office, in cases not specially provided for by this Constitution, shall, be prescribed by law, and the General Assembly may declare the cases in which any office shall be deemed vacant where no provision is made for that purpose in this Constitution,(Italics supplied.)
[114]*114Section 73 of thet Constitution provides, in part, that the Governor, “during the recess of the General Assembly, shall have power to suspend from office for misbehavior, incapacity, neglect of official duty or acts performed without due authority of law, all executive officers at the seat of government except the Lieutenant-Governor, but in any case in which the power is so exercised the Governor shall report to the General Assembly, at the beginning of the next session thereof, the fact of such suspension and the cause therefor, whereupon the General Assembly shall determine whether such officer shall be restored or finally removed.”
It seems plain that under section 73 of the Constitution the people in their sovereign capacity have withdrawn from the courts the power to pass upon the question of the correctness of the act of the Governor in suspending executive officers at the seat of government, and granted this power exclusively to the General Assembly. The Constitution, having vested the final determination of the question in the General Assembly, has-excluded the power of the courts to pass upon the action of the Governor.
Section 366 of the Tax Code so clearly parallels the provisions of section 73 of the Constitution that it seems equally plain that the General Assembly has, by that section, undertaken to vest the Governor and the General Assembly, respectively, with powers corresponding to their respective powers under section 73 of the Constitution, and to exclude the judiciary from passing upon the existence of the cause for which the Governor has suspended an officer therein mentioned, and to reserve to itself the exclusive right to pass upon the question.
The grant of the power of removal under section 73 of the Constitution is not merely declaratory of a power existing in the General Assembly under the general grant of legislative power (sections 40 and 63, Const. Va.). It is an affirmative grant of a power which in the absence of such grant the legis[115]*115lature did not have, certainly so far as constitutional officers are concerned.
As indicative of the meticulous care which the convention exercised in the protection of these elementary rights, we find in section 120 of the Constitution provision that even policemen cannot be removed from office by city executives except upon notice and an opportunity to be heard.
The only warrant for the removal of officers by the Governor, except that given in said section 73, must rest in section 56. Section 73 is perfectly clear upon its face, as is section 120. No one can read them without knowing exactly what the convention had in mind. At the most, section 56 carries with it this broad power only by attenuated construction. We believe that if the convention had intended to confer this radical power upon the executive, it would have done so in unambiguous terms, and it has not done so. The word “cases,” as there used, means nothing more than circumstances or conditions. We have found no case holding that a provision that the legislature might provide the cases in which or the causes for which an officer might be removed, authorized the legislature to confer upon the Governor the power to exercise in connection with the suspension or removal of an officer powers essentially judicial.
Unless a Constitution provides otherwise, the right to notice is universally recognized when a question essentially judicial is involved. It is as old as the common law and is reaffirmed in Magna Charta, c. 29. In Ramshay’s Case, 18 Q. B. 190, it is characterized as one of “the implied conditions prescribed by the principles of eternal justice.” It is a part of the law of the land, or of due process of law. Va. Const., sections 8, 11; Foster v. Kansas, 112 U. S. 201, 5 S. Ct. 8, 97, 28 L. Ed. 629, 696; Shurtleff v. United States, 189 U. S. 311, 23 S. Ct. 535, 47 L. Ed. 828; 46 C. J. 989; 22 R. C. L. 574. These two last named authorities cite in support of their conclusions a cloud of cases. The reason for this rule, especially [116]*116when it involves the removal for cause of a constitutional officer, lies in the fact that the removal involves the exercise of a judicial function. This reason is sometimes stated and is. frequently' assumed, but it is the underlying reason, for logically the Governor is not obliged to give anyone notice of any action of his done in executorial capacity.
In Underwood v. McVeigh, 23 Gratt. (64 Va.) 409, the court said: “The authorities on this point are overwhelming, and the decisions of all the tribunals of every country where an enlightened jurisprudence prevails are all one way. It lies at the very foundation of justice, that every person who is to be affected by an adjudication should have the opportunity of being heard in defense, both in repelling the allegations of fact, and upon the matter of law; and no sentence of any court is entitled to- the least respect in any other court, or elsewhere, when it has been pronounced ex parte and without opportunity of defense.”
Where the legislature is without power under the Constitution to- suspend or remove an officer except for cause, then legal cause for suspension or removal must exist in fact before the officer may be suspended or removed. It is a sine qua non to the exercise of the power to remove. It is jurisdictional.
The ultimate determination of whether the requisite jurisdictional facts necessary to sustain the action of an officer exist is always essentially a judicial function. Therefore, in cases involving the suspension or removal of such constitutional officers, the ultimate determination of whether cause for suspension or removal in fact exists, is essentially a judicial function.
Every executive officer, before doing an executive act, must make an executive determination as to whether he has the power or jurisdiction to do the act. This is a necessary incident o-f his executive power and of his duty to obey the Constitution and 'the laws of the State in the exercise of powers and jurisdiction conferred upon him. An executive [117]*117officer may be authorized, or even required, to investigate and determine questions of fact in order to determine for himself whether the facts necessary to confer upon him jurisdiction to do a particular executive act exist; and may be authorized, upon such determination, to do such without first having procured a judicial determination • as to the existence of such jurisdictional facts. Neither of these things necessarily constitute his act the exercise of a judicial function, provided the ultimate determination of his power and jurisdiction in the particular case be left to the judiciary to be determined in a proper judicial proceeding thereafter to be had. But if expressly or by implication the ultimate and conclusive determination of the power or jurisdiction of the removing officer be committed to his judgment, then an essentially judicial function has been vested in him.
It is perfectly competent for the legislature to vest in the Governor power to suspend from office a delinquent officeholder—to suspend him for cause, but somewhere and at some time, before final judgment, it is imperatively necessary that he be given a day in court. The statute in judgment does not do this, but reserves to the legislature itself the power to pass upon this executive suspension. Whether or not Weston has embezzled funds belonging either to the State of Virginia or to Lee county is essentially a judicial question. This is the basis of his discharge and on it he is entitled to be heard, and to be heard by a court.
We think our conclusions find support in Virginia authorities, and we are satisfied that they are supported by sound principles of public policy.
Prof. John B. Minor, in his Institutes, Vol. 2, p. 33 (3d ed.), said: “Modes of Effecting the Removal from Office of One on the Grounds Above Named.—Resignation, expiration of term, and removal by competent authority, of course, terminate the office proprio vigore; but in the other cases of delinquency, the office is not determined, ipso facto, by the [118]*118concurrence of the cause. There must be a judgment of a motion, after a judicial ascertainment of the fact; which maybe by indictment, or information, by writ of quo zvarranto, or by impeachment. (1 Tuck. Com. 11, B II; Alexander’s Case, 1 Va. Cas. [3 Va.] 156; Mann’s Case, 1 Va. Cas. [3 Va.] 308; Wallace's Case, 2 Va. Cas. [4 Va.] 130).”
In Edmiston v. Campbell, 1 Va. Cas. (3 Va.) 16, it appeared that Campbell, a justice of the peace, was removed by the Governor under an act of the legislature which gave him that authority. That act the legislature itself afterwards said was unconstitutional since it conferred upon the Governor judicial power. Campbell then resumed the duties of his office. His right to do so was questioned but was affirmed in that case. It is true that this decision might possibly have rested upon the repeal of the act under which Campbell was removed, but it is more than probable that the court agreed with the legislature as to the unconstitutionality of the first act. Had it been of any other opinion it doubtless would have said so.
In Maddox v. Ewell, 2 Va. Cas. (4 Va.) 59, the question arose as to whether an oath administered by one Alexander was of any effect, the contention being that Alexander had previously vacated his office because of some act of his which it is claimed had that effect. The court held that before Alexander could be disqualified those things relied upon to establish disqualification had to be “established by some proper judicial proceedings for that purpose instituted.” If there was any room for doubt as to what was done in the Campbell Case there is none here.
In Dew v. Judges of Sweet Spring District Court, 3 Hen. & M. (13 Va.) 1, 3 Am. Dec. 639, it appears that the clerk of the district court, who had been duly appointed, took the oath of office but failed to give the required bond. He was removed and the legality of that'act came under review. The court said: “Both the law and the Constitution require that [119]*119he should not be ousted of the office in which he had a freehold, but by due process of law.”
Professor Minor’s statement of the law was expressly approved in the Bland and Giles County Judge Case, 33 Gratt. (74 Va.) 443. In that case the fourth assignment of error dealt with the question of whether or not Easley had forfeited his office by becoming an attorney and practitioner at the bar of the court of which he was judge. It was said: “An office is terminated proprio vigore by resignation, expiration of term, and removal by competent authority. But in other cases the office is not determined ipso facto by the occurrence of the cause.” Then in this opinion follows that statement of the law just quoted from Minor’s Institutes. See also Boggs v. Commonwealth, supra.
It has been suggested that this court may, in this proceeding, hear and determine upon its merits the question whether cause in fact existed for the suspension of Weston. If the power to ultimately determine that question be an executive function, then all the cases to which we have been cited hold that a court may not inquire into this question further than to ascertain whether there was any evidence before the Governor tending to establish the existence of such cause. (The cases on this subject will be found collected and annotated in a note in 52 A. L. R., pp. 7-33.) Therefore, in no event could this court assume jurisdiction to hear and determine that question upon the merits, unless it be essentially a judicial question. But though the ultimate determination of the existence of cause is an essentially judicial question, the legislature has itself expressly assumed the exercise of this power and by necessary implication denied the exercise thereof to this court.
It has been suggested that any injustice done to Weston may be remedied by quo warranto proceedings. Should such be instituted, he would doubtless be told that he had been removed [120]*120under a valid statute which limited relief to legislative reinstatement, and that the courts could not help him.
In the case in judgment, Weston’s term of office expires by limitation on the first day of January, 1932; so that he could not possibly be reinstated by the legislature unless called in special session, and there is, as we have seen, no way by which that body can be made to- hear Weston or take any action at all.
The vice in the statute in judgment lies, not in the fact that the Governor was authorized to suspend this treasurer, but that final determination of the conclusiveness of this act and of the existence in fact of the- alleged cause upon which it is based is a question essentially judicial, and has been taken from the courts.
It is true that this statue has been in existence in somewhat different form since 1887. Code, section 2791, now repealed. But it is likewise true that it has never heretofore been invoked, and it is also true that the legislature (Acts 1899-1900, p. 1241, c. 1140; Acts 1902-3-4, p. 553, c. 335, Code, section 2201, now repealed), possibly because it was uncertain as to the constitutionality of the act of 1887, provided that upon the report of an auditor showing delinquency, the court should suspend treasurers, clerks and other officers who fail to account for State funds. But these Code sections neither take from nor add to the statute in judgment, which must stand or fall upon its merits.
This constitutional officer has been removed by the Governor for cause and without notice. The statute relied upon makes this executive removal final unless the legislature sees fit to order his reinstatement. His right of appeal, such as it is, must be to the legislature, and by necessary implication he is denied an appeal to the courts. His guilt or innocence is a judicial question, and his right to have the courts pass upon it is, we think, clear.
[121]*121For reasons stated, mandamus will not issue.
Petition Refused.
Campbell, J., concurs in the opinion of Holt, J.
Virginia Constitution.
"Section 5. Legislath'e, executive and judicial departments of State should be separate; elections should be periodical;■—That the legislative, executive and judicial departments of the State should be separate and distinct; and' that the members thereof may be restrained from oppression, by feeling and anticipating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by regular elections, in which all or part of the former shall be again eligible, or ineligible, as the laws may direct.”
"Section 39. Departments to be distinct.—Except as hereinafter provided, the legislative, executive and judicial departments shall be separate and distinct, so that neither exercise the powers properly belonging to either of the others, nor any person exercise the power of more than one of them at the same time.”