Brannon, President:
The Board of Regents of the West Virginia University removed Doctor James W. Hartigan from the professorship of anatomy in that institution, and he asks this Court for a writ of prohibition against George 0. Sturgiss, R. R. McMahon, John A. Campbell, James L. Hamill, Albert H. Kunst, W. E. Powell, P. C. Eastham, James F. Brown and John J. Davis, individually and collectively as a Board of Regents, to prohibit them from carrying into execution the resolution of removal. Doctor Harti-gan contests the validity of the action of the regents on several grounds, the chief ground being the want of notice to Doctor Hartigan of the proceeding to remove him, so that he might make defense, from which want of notice the act of removal is claimed to be void.
A question of gravity and public importance at once confronts us in the decision of this case. Has this Court, or any court, jurisdiction to review or reverse the’ action of the regents in this matter? Ts the action of the Board of Regents subject to judicial review ? The State is charged, and has assumed, the high duty of popular education, and in the performance of this duty it has set up an organism and endowed it with corporate life under the name of The West Virginia University. Though a corporation, it is not a private one created for private ends, but it is a public corporation, a branch of the State government, an instrumentality which the State has brought into being to aid it in carrying out this duty of educating the people. It is an arm of the State government, a part of it. It belongs to that one of [16]*16the three departments of the State government called the executive department. Though it is under the unrestricted control of the legislature, and supported by its appropriation of public money, because it performs public functions, yet the university is a branch of the executive department. But though the university is a branch of the State government executing public ends, still it is a separate corporate existence, managing its own affairs under statutory law, subject only to legislative regulation. It has its governing body, the regents appointed by the governor with the assent of the senate. Under chapter 45 of the Code the regents establish such departments of education, which we call professorships or chairs, in literature, science, art, agriculture and military tactics as they may deem expedient, and they make rules, regulations and by-laws for the government of the institution. The Code gives them power to appoint professors to fill the chairs in the several departments. By common law this power of appointment carries with it the power of removal, 'unless restrained by statute; but this power is affirmed and in words conferred by the Code giving the Board of Regents authority “to remove them (professors) for good cause, but in case of removal the concurrence of a majority of the regents shall be required, and the reasons for removal shall bo communicated in a written statement to the governor.” We must not fail to notice that this statute, not only gives the regents power of removal, but it makes that power very wide, because it does not specify any cause constituting ground of removal such as incompetency, immorality or other specific cause, but leaves it to the regents to judge of the cause of removal, to say what is good cause. And further, we must not fail to note that the Code commands the regents to report the cause of removal to the governor, the head of the executive department, thus making them accountable only to the governor. What their accountability to him is, what his powers as to any improper action in'removal may be, it is not necessary for us to say; but the Code in that provision warrants us in saying that the legislature contemplated accountability of the regents, if any, only to the chief of the executive department, the power that appoints them. No intimation is breathed by the statute of their accoirntability to any court; but such ac-counability as is contemplated is. to the executive. The proposition is asserted that every action of the regents may be made the subject of judicial review. That is what it amounts to prac-[17]*17tieally. When a professor is to be removed he must have notice, trial and some writ from a circuit court upon the theory of erroneous action by the regents, to review that trial, and then an appeal to the Supreme Court. When the case is before the Board of Regents, under this theory, he must be allowed to have witnesses and counsel for full defense. So the case may be made one of almost interminable litigation, to ttie great harm of the university. And every case of removal may, probably would, be made the subject of protracted litigation'. In the meanwhile the incompetent professor would go on, and the hapm to the university would be, or might b,e, very great. Under this theory the courts would control the Board of Regents, would paralyze the arm of 'the executive, deprive the executive of its powers over the university plainly conferred by the legislature. Thus the courts would practically exercise jurisdiction over the university, administer its affairs in greater or less degree, according as the litigations might be few or numerous, notwithstanding the Code plainly intended to put its government in the hands of the regents. So far as I, by the compliment and favor of the people, have the honor to participate in the judiciary pf the State, I am ready to disclaim the assumption of this power, which I would consider little less than usurpation. It would be an invasion of the functions of the executive department. There is no jurisdiction in this or any court to control the administe-rial action of the executive. The Constitution itself divides the government into three separate departments, and forbids each to trespass upon the domain and jurisdiction of the other. Fleming v. Guthrie, 32 W. Va. 1; Goff v. Wilson, Id. 405; People v. Morton, 156 N. Y. 136; 66 Am. St. R. 547; State v. Hawkins, 44 Ohio St. 98; Keenan v. Perry, 24 Texas 253; High, Extraord. Legal Rem, s. 118. Prohibition does not lie to restrain executive action. 16 Ency. Pl. & Pr. 1108. Are the courts, under any guise, to take charge of'the boards of directors of the hospitals for the insane, the penitentiary, the normal schools, the school for the deaf, dumb and blind, the reform schools, the home for the incurables, the West Yirginia Colored Institute, the Bluefield Colored Institute, and all other institutions of such nature as may he established by the State? The question answers itself. The proposition seems utterly unreasonable. If the courts can take charge of one of them, why not take charge of all of them? Their administration and goverance belong to [18]*18the executive department of the State, and the judiciary is forbidden by the Constitution from interference with them. Some one will ask, is the Board of Regents to do as it pleases, without control, erroneous as its action may be? Yes, so far as the courts are concerned. So the law is writ. The legislature has confided the power to them, as it must be confided to some hands, and the legislature has given no judicial process to revise the board’s action, but in the matter of the removal of professors has required the board.to report only to the governor. The lawmakers have chosen not to make the action of the board the subject of law suits.
Dr. Hartig'an attacks the action of the regents as taken at the mere instance and caprice of the president of the university, and that' action is assailed at the bar as imputable to worngful and malign motives on the part of the board towards Dr. Hartigan. It would be hard to select a Board of Regents of citizens standing higher for personal worth and professional and business fitness and capacity than the members above named as composing that board, and we see no just warrant for us to impugn the motives of six out of nine of such regents as moved by anything else than what they considered the welfare of the university.
There is another reason why this Court cannot reverse _the action of the regents. The writ of prohibition does not lie in the case. If the action of the regents were subject to review by a court, it would be by certiorari, not prohibition. Certiorari is the proper writ to revise and reverse the action of inferior courts, boards or tribunals not of record, proceeding not according to .the course of the common law, where no appeal of writ of error lies. Cunningham v. Squires, 2 W. Va. 422; Morgan v. Ohio River R. Co., 39 Id. 17, 21; Poe v. Machine Works, 24 Id. 517. If that Board of Regents had jurisdiction of the matter of the removal of a professor, and that it has no one denies, may error committed by it, if any court had jurisdiction, could not be remedied by prohibition, because a prohibition only issues where an inferior tribunal has no jurisdiction of the subject matter before it, or having jurisdiction, exceeds its legitimate powers. McConniha v. Guthrie, 21 W. Va. 134; Fleming v. Commissioners, 31 W. Va. 619; Town of Davis v. Filler, 47 W. Va. 413, (35 S. E. 6); County Court v. Boreman, 34 W. Va. 362. Brit it is argued that while it is true that prohibition is not the proper remedy to review the order of an inferior tribunal [19]*19having jurisdiction, yet, where there is no notice to the party, there is no jurisdiction over him, and that the action of the tribunal is void, and therefore prohibition lies. It is true that a court or tribunal passing judgment or resolution must have both power to pass on the particular matter and over the person by a notice to him, where notice is required by law in the’ case, and in the absence of either its action is void, whenever its validity comes up; but that does not say what is the proper process to test its validity. If in this case notice were necessary, the order of the board would be void, say, yet that does not say that prohibition lies, and certiorari must not be used to annul the board's order. I say the true test is, that as the board had jurisdiction over the subject matter of the removal of a professor, any error it may have committed, including that of proceeding without notice, in wielding that jurisdiction, must be remedied by certio-rari, not by prohibition, because prohibition is only to keep a court within the bounds of its laAvful jurisdiction. I do not think prohibition lies where a circuit court renders judgment without service of process. Writ of error must be resorted to.
Suppose I were wrong in holding that we have no jurisdiction for the reasons, first, that to exercise such jurisdiction would invade the province of the executive department; and, second, that prohibition does lie. What then? I hold that the law authorized the regents to remove a professor without notice to brim. The very able arguments of counsel in this case discussed the very important question whether a professor of the university is a public officer, in a legal sense, upon the theory that if such an officer, he must have notice of the proceeding of removal ; whereas if not an officer, but a mere employe of the Board of Regents, he could be removed without notice.. Entertaining the view that we have no jurisdiction I could excuse myself from discussing any further matter; but as counsel have presented other points for decision, I will advert to some of them.
I hold that if Dr. Hartigan's right to notice depends upon his being a public officer, he had no right to notice, because he is not a public officer, but a mere employe of the Board of Regents, in a legal point of view, and cannot, as a matter of right, demand hearing, right of defense and trial. The university is a corporation, and considering it merely in that light it is clear that the board can remove its employes at pleasure; for the officers or employes of a corporation have no franchise or property in their [20]*20offices, but are simply ministerial agents to carry out its corporate business, and unless its by-laws otherwise provide, may be removed at the pleasure of the corporation. Burr v. McDonald, 3 Grat. 215; Richards v. Clarksburg, 30 W. Va. 491. As the State has given corporate character and separate organic government to the university, it might not be going very far to entertain this view; but T will go upon the opposite hypothesis. What is a public office? The word is used in so many senses that it is impossible to give a precise definition covering all cases. It depends, not on what wc call it, or even on what a statute may incidentally call it, but upon the powers wielded, the functions performed, and other circumstances manifesting the character of the position. State v. Kennon, 7 Ohio St. 546. Mechem on Office and, Officers, s. 4, says: “The most important characteristic which distinguishes an office from an employment or contract is, that the creation or conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public; that some portion of the sovereignty of the country, either legislative, executive or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers’ conferred are of this nature, the individual is not a public officer.” It at once struck me in reading the wilderness of law upon the simple but difficult question, what is a public office ? that the requirement to make one a public officer he should exercise something that can fitly be called a part of the sovereignty of the State, was a test. This test is approved as an important or chief one in State v. Jennings, 57 Ohio St. 415, 63 Am. St. R. 723. Tt is stated to be the true test in Eliason v. Coleman, 86 N. C. 235. It has been often approved as a strong index. High, Extra. L. Rem. s. 625; Doyle v. Alderman, 89 N. C. 133, 45 Am. R. 677; Opinion of Judges of Maine, 3 Greenleaf 403; United States v. Lockwood, 1 Pinney (Wis.) 359; State v. Valle, 41 Mo. 31; State v. Hocker, 39 Fla. 477, 63 Am. St. R. 174. 1 ask, what part of the sovereignty of the State does a professor in a college exercise? “Office is a public station or employment conferred by the government, and embraces the idea of tenure, duration, emolument and duties.’’ United States v. Hartwell, 6 Wall. 585; Bunn v. People, 45 Ill. 398; Throop, Pub. Office, s. 3; Shelley v. Alcorn, 72 Am. Dec. 169, 182; United States v. Hatch, 1 Pinney 182; Mechem, Pub. Office, s. 8; Hall v. Wisconsin, 103 [21]*21U. S. 8. “An office is a public charge ox employment. The duties of the employment must be continuing, and prescribed by law, and not by contract. Employment, though usual, is not a necessary element of an office.” State v. Hocker, 39 Fla. 477, 63 Am. St. R. 174. A professor of the university has not what is called tenure in office, no fixed term. That he is paid makes him no officer. A mere employe is paid. That an official oath is required by law is a sign of office, and our Code prescribes it as to officers, but does not require a professor to'take it. Where a statute prescribes specific duties for an office, it is a strong circumstance that an office is intended; but the Code prescribes none for a professor. Chief Justice Marshall, in United States v. Maurice, 2 Brock. 96, said: “Although ah office is an employment, it does not follow that every employment is an office. A man may certainly bo employed under a contract, express or implied, to do an act or perform a service, without becoming an officer.” So say many authorities. Now, a professor in the university simply accepts an offer of the regents to teach for a compensation, with no fixed term, no oath, his duties not defined by statute, simply general as pertinent fo the branch of education which he teaches, with an element in the contract put in it by the law giving power to the regents to end it at pleasure. In fact, as suggested by Begent Brown in his answer in this case, there is a by-law of the university giving the regents, and also the professors, right to cease relations, to end a professorship, on sixty days notice, which is proof that the relation of a professor is only of a contractual nature, not that of a public officer. The board, while removing Dr. Hartigan, continued his pay for at least sixty days thereafter and gave him notice-thereof. This notice, is not a notice of the proceeding to remove, but notice of the cessation of the professorship and pay, and it concedes, as a matter of contract, the right of the regents to close a professorship. When Dr. Hartigan became a professor under that bylaw ho made that contract, and regent James F. Brown, who is an able lawyer practicing.at the bar of this Court,' in his answer says that while he differed from the board as to the expediency of the removal of Dr. Hartigan, yet he concedes the power of the board to make the removal under the statute, and regards it as a severance of relation between the profsesor and the university as per contract under the said by-law. Begent Brown opposed this proceeding, moved to quash the rule, because un[22]*22sustainable in law. But to return to the line of thought stated above, a professor in the university wields no particle of sovereign governmental authority. In a legal view, he simply makes a contract with the corporation to teach in the university. In a legal view, what is the difference between a te'aeher in a public school and a professor in the university? None, except in grade or eminence of station. Both are teachers in the public educational system. The district teacher is in the employ of a corporate body, a board of education, a branch of the government; a professor is in the employ of only another board of education, under another name, a branch of the government. This Court has decided that a teacher is not a public officer, Luoas, PRESIDENT, very correctly saying what is apt in this case: “The teacher is not, in this State, a public officer, but is an employe, and his position is not a public office, but an employment. The teacher is responsible, not to the public, nor the partons of the school, but to the proper school officers, the trustees, board of education, county superintendent and State superintendent of free schools.” Heath v. Johnson, 36 W. Va. 782. President Lucas said that the teacher was a subordinate of the school officers, their employe, and I say that a professor, learned and distinguished as he may be, is an employe and subordinate of the Board of Regents, in law. That board is charged with the public function of education, and to perform it employs teachers called professors.
“Among the criterions for determining whether an employment is a public office or not are the delegation of a portion of the sovereign functions of the government; the requirement of an official oath; that the powers are created and conferred by law, and not by contract; and the fixing of the duration or term of office.” Hendricks v. State, 20 Texas Civ. App. 179.
Now, with pointed application to this case I cite the case of Union Co. v. James, 21 Pa. St. 525. The question was whether a professor in an incorporated university was an officer, and the decision was that he was not an officer, but a person in the employment of the corporation. In Butler v. Regents, 32 Wis. 124, the court says: “We do not think that a professor in the university is a public officer in any sense that excludes the existence of a contract relation between himself and the board of regents that employed him, in respect to such employment. It seems to us that he stands in the same relation to the board-that a teacher [23]*23in a public school occupies with respect to the school district by which he is employed, and that is purely a contract relation.” So it is clear that a professor is not an officer, but an employe under contract to fill a chair of learning. Therefore, outside of any statute, as an employe he may be removed or discharged without notice, without hearing. But I admit there is a statute involved, and that whether a professor is an employe or officer, he cannot be discharged contrary to that statute, except for that by-law above referred to; but I say that a professor being only an employe throws light on the construction of the statute providing that the board may remove “for good cause,” because we cannot conceive readily that the legislature meant to require notice and trial in the case of one occupying simply the position of an employe. It is claimed that as the Code limits removal to “good cause,” this imports the necessity of specification of charges, notice and trial. I do not think such is the meaning of the Code. It seems to leave the cause of removal entirely to the regents, because it does not specify such cause. Usually grounds of removal are specified, and the power is then restricted, as for official misconduct, incompetence and other causes with relation to certain officers in chapter 7, Code; but here no cause is specified. A professor might be competent and none of the usual causes for removal imputable to him, and yet from mere temperament or manner of intercourse with students, there might be disharmony between them hurtful to the institution. Could not the regents terminate his professorship? Numerous cases hold that where a statute allows removal of an officer — even an officer — under the general language “for cause” (which is tantamount to good cause), unless the statute calls for notice, none is required, and removal is discretionary, and in such cases .there can be no review by the courts. Throop, Pub. Officers, ss. 366, 396; Trainor v. Board, 15 L. R. A. 95. In Mayor v. Gear, 3 Dutcher (N. J. L.) 265, it is held that where the charter of a city provides that the council may remove for cause any person appointed by them, the council was not thereby erected into a tribunal to hear and determine, requiring notice to be served on the party removed before they got jurisdiction of the person, and that the words, for cause, only meant such cause as was satisfactory to the council. So I say that no causes of removal being specified by our statute, the words for cause are only directory and intended to be impressive upon the board not to remove ar[24]*24bitrarily. In People v. Bearfield, 35 Barb. 254, it is laid down that “Where the law creating an office designates the power which is to appoint and remove, but fixes no form of proceeding and requires no trial to precede a removal; contains no requirement as to the grounds of removal, except that there shall be credible information of neglect of duty; and gives no right of appeal or review; the supreme court has no authority to review the exercise of the discretion" of removal. The supreme court of Arkansas in Patton v. Vaughan, 39 Ark. 211, held: “In the absence of constitutional or legislative restriction, where no definite term of office is prescribed by law, the power of removal is incident to the power of appointment; and it is a corollary of this rule that where the appointing power may remove for cause, he is the sole judge of the existence of the cause. Just our case. See O’Dowd v. City, 149 Mass. 443; Regents v. Mudge, 21 Kan. 223; Attorney-General v. Doherty, 25 La. Ann. 119; Bunn v. People, 45 Ill. 397, to same effect. Instance the case of People v. Thompson, 94 N. Y. 451. Removal was by the law prohibited until “he has been informed of the cause of removal, and been allowed an opportunity for explanation." Held, that the party was not entitled to trial, that proof of the charges was not necessary. The court said that there was nothing in the statute requiring proof, or allowing trial or cross-examination. “If the commissioner was to be constituted a court for the purpose of trying every charge which might be preferred, it would tend very much to embarrass that officer, and interfere with the interest of the public." So in this case. Is there to be a formal charge, a formal notice to answer, a trial by witnesses, and argument of counsel in every case where the regents may deem the removal of' a professor expedient ? Blow long would the trial last ? What would become of the interests of the university? It is not a private right which may be made the subject of litigation between parties. The legislature never intended this great inconvenience to the public service. It did not intend to make a court out of the Board of Regents. They are an administrative or executive body, not judicial. In State v. McGarry, 21 Wis. 502, an act authorized the supervisors to remove an inspector of a house of correction “for mcompetency, improper conduct or other cause satisfactory to the board." Held, “Under said act the board may remove without examining witnesses under oath, or giving the officer previous notice of the investigation." Public [25]*25office is not properly under the constitutional clause against depriving of property without due process of law, not admitting of private ownership, but being a trust for the public, there is ño restraint upon the legislature in providing any process of removal it chooses. Moore v. Strickling, 46 W. Va. 515; Taylor v. Beckham, 178 U. S. 548; Wilson v. North Carolina, 169 U. S. 586. I do not say that where there is a fixed term for a public office, not a mere employment, or a tenure during good behavior, and' the law specifies certain cause for removal, there need not be notice; but I say that where no cause of removal is specified, but is’left discretionary with the removing power, there need be no notice of hearing. Town of Davis v. Filler, 47 W. Va. 413, (35 S. E. 6); Coleman v. Glen, 103 Ga. 458, 68 Am. St. R. 108, 112; Throop. Pub. Officers, s. 361. If a professor were an officer, he. lias no term, and surely cannot hold for life; but the power to remove being given to the regents for good cause, but that cause not being assigned, and no notice or trial provided for, leaves the strong inference that-the cause is just what the regents may deem proper in the interests of the Institution, and was intended to be a matter of discretion. Why any notice if there is to be no trial, and the matter is one of discretion with the board ? This is so even if a professor be regarded an officer; but he is no officer. From the nature of the case and the interest of the institution the regents should have this power of removal, at discretion, without trial, and I think the legislature so intended. This being so, there is- no jurisdiction in this or any court to review their action. “No principle Is more firmly established than that where a special and exclusive authority is delegated to any tribunal or officer, and no mode of revising his decision by appeal or otherwise is provided by law, his action is final.” Keenan v. Perry, 24 Tex. 253. It cannot be that the legislature contemplated making the Board of Begents a trial court, and then certiorari to review their action, and then a writ of error to this Court, a long litigation over a professorship. If the legislature so intended, why did it not give an appeal or certiorari from the decision of the regents, instead of requiring them to report to the governor ?
Of the many cases cited for petitioner I will say that they are eases of the removal of public officers, where the law specified only certain causes of removal, or pointedly required notice, or where the offices were for fixed terms. For instance, Dullam v. [26]*26Wilson, 51 Am. R. 128, a public officer, the Constitution specifying particular grounds of removal. Murdock v. Academy, 12 Pick. 244, was the case of a theological institution where the statute pointed out grounds of removal and gave an appeal from the trustees to the supreme court. State v. St. Louis, 90 Mo. 19, case of a public officer for a fixed term, removable for cause. State v. Haight, 39 N. J. L. 14, public officer. State v. Pritchard, 36 N. J. L. 101, a public officer. Field v. Commonwealth, 32 Pa. St. 478, was the case of a public officer removable only for neglect of duty, incompetency or immorality, and a fixed term. State v. Brice, 7 Ohio 282, case of a public officer. Page v. Hardin, 8 B. Mon. 672, was the case of a secretary of state holding office for a fixed term under the constitution of Kentucky. Willard's Appeal, 4 R. I. 601, simply decides that a school committee had power to remove its clerk if notice and hearing were given, and the court did not have to decide, and did not decide, whether or not the removal could be made without notice. Foster v. Kansas, 112 U. S. 201, only involved the question whether a state law for the removal of a state officer was repugnant to the Federal Constitution, and did not at all involve the question of notice or hearing^ because the statute provided for notice. It has nothing to do with this case. Kennard v. Louisiana, 92 U. S. 480, simply held that a state statute fixing the mode of contest between contestants for a judicial office was not repugnant to the fourteenth amendment. It decided only a Federal question. Notice" was not up in the ease. The case has no aptness to the present case. And I do not see that in any of the cases cited for Dr. Hartigan the proceeding was by' writ of prohibition. Prohibition refused and ruled discharged.
Being anxious to reach a correct conclusion in this case, and in view of difference of opinion in the Court, I have further examined the subject since writing the above opinion, and as the case is important, and‘there is no case in our State Beports of like character, I have thought it pardonable, even at the expense of prolixity, to cite other cases coming to me in such further investigation, which are strongly confirmatory of positions taken in the above opinion.
As to the point that a professor is not a public officer I add to [27]*27the cases already given the case of The People v. New York Post-Graduate Medical School, 29 N. Y. App. Div. 244, where the supreme court of Now York held that a professor in a medical college was not an officer of that college, but a mere appointee working under contract. If it be said this was a private corporation, I respond that our university is a corporation, and though a public one, its professors are simply employes, just as a professor in a medical college. Both in the nature of function are the same. Neither is an officer of State, county or town. In that ease one by-law provided that a professor should hold during the pleasure of the board; a later one provided that a chair might be vacated on charges, with notice and right of defense.' The professor held for a fixed term. Notwithstanding this, the court said one by-law was to sever relations for any cause, the other was for cause; that in the one case the by-law contemplated a mere severance of contractual relations, without notice or trial, exactly as regent Brown claims was within the power of the board in this case, without any crimination or stigma, whereas, the other by-law contemplated offense or criminality, involving stain and stigma. The court upheld the right of removal without notice. The court said: “The college should not be tied to a particular person, who, however able and worthy happens to he afflicted with temperamental qualities which render association with -him disagreeable. There nan be no good reason why such a person should be permanently afflicted upon his associates as long as he does nothing which renders him amenable to charges. Relations with such a man may properly be severed at pleasure. Not so, however, as to a guilty man. It would be a practical condemnation to remove such a man at pleasure. He should not be permitted to escape by that easy process.-” That was a stronger ease against right of removal than this. Apply it to this case. Here are a college and a professor. The board does not think him suitable. It cannot, or does not wish to, specify things of criminality or offense. It ought to have power of removal, or to end the contractual relation as its by-law, under which a professor takes the chair, expressly allows. It has that power under that by-law. Indeed, it also has it under the Code, because that gives power of removal for cause, but not specifying cause, leaves that to the board, and thus makes a professor hold during pleasure. All cases show that where the holding is during pleasure of a given body, removal may be made without noitee [28]*28.or trial. To show that I do not err in stating in the above opinion the criteria of public office, I cite the great name of Judge Cooley in delivering the opinion in People v. Throop, 40 Mich. 673, saying, “An officer is distinguishable from an employe in the greater importance, dignity and independence of his position, in the requirement of an official oath and perhaps bond; in liability to account for misfeasance and non-feasance, and usually in the tenure of his position." A professor takes no oath, gives no bond, does not account for misfeasance or non-feasance in a legal sense, has no term, no duties of a fixed determinate character fixed by law. lie is no officer. He is no quasi-office)'. There can be no such thing as a quasi-officer.
Turning now from the proposition that a professor is not a public officer, I will cite cases bearing on the question whether want of notice vitiates the action of the board. Take the case of People v. Higgins, 13 Ill. 110. An act incorporated the Illinois State Hospital for the Insane, and created the office of medical superintendent, to be appointed by the trustees for ten years, and be subject to removal only for infidelity to the trust reposed in him, or for incompetency, and it was held that the trustees might remove without assigning any specific cause, when the interests of the institution required, without notice or trial. In .another case the governor was authorized to remove any officer by him appointed “in case of incompetency, neglect of duty, or malfeasance," and it was held that though the park commissioners of Chicago were public officers, they might be removed by him, and that as the constitution was silent as to the mode of procedure, lie might, determine whether pause for removal exists, and no mode of inquiry being prescribed, he could ascertain the facts by any process he might adopt, and the courts could not interfere. Wilcox v. People, 90 Ill. 186. In People v. Mays, 17 Ill. App. R. 361, the law gave a county superintendent of schools a term of four years.and made him removable for any palpable violation of law or omission of duty. Held, that no notice or trial was. necessary, giving as reason that as the statute conferring power of removal prescribed no method of procedure, none was necessary. In our case the act broadly gives power of removal, specifying no cause, thus leaving cause to the regents, and directs no notice or form of procedure. 'Shall a court review and say that is not cause of removal, which the regents held good ? Shall we say who are fit and competent professors ? Shall we say their [29]*29conduct does, or does not, warrant removal, no matter what,the regents say? We have this jurisdiction in law suits; but this is no law suit between' parties. It is a mere administrative proceeding. The regents are not responsible to this Court. “When the power of appointment to office is conferred in general terms and without restriction, and duration of term is not fixed by constitution or statute, the office is held only during the pleasure of the authority making the appointment, and it may remove the appointee at any time,” without charge or trial or notice. People v. Robb, 126 N. Y. 180; City of Leadville v. Bishop, 14 Colo. App. R. 517.
Resumel Thus I hold:
1. Prohibition does not lie for two reasons, one that it would interfere with executive action; the. other that if any writ would lie, it would be certiorari.
2. That no writ lies, because (a) a professor is not an officer, but an employe, and' is not entitled to notice or charges or trial; (b) and even if an officer, the act specifying no cause of removal, nor directing notice or procedure, no notice or trial is required; (c) the board had right, under the by-law, to terminate the contract, without any legal ground of removal, but as part of the contract.
After handing down the above opinions, I meet the case decided 8th February, 1901, by the supreme court of Maryland, Mayor v. Lyman, reported in No. 3 Advance of 48 Atl. 145, holding that the superintendent of schools of Baltimore is not an officer, but an employe or agent. The reasons given are in effect those stated above. The case cites several apposite authorities, among them Commissioners v. Goldsborough, 90 Md. 193, 207, 44 Atl. 1055, holding that civil officers are those wielding the state sovereignty, and that when a governmental function is ex-, ercised by a public corporation created for the purpose, and the members have no authority to act as individuals, but only in a body, they are not civil officers. The case holds that school commissioners constituting a corporation for each county are not officers. The case goes to show that members of a public corporation, even regents, like our university, are not public officers, but of a public corporation, and are under power of the executive de[30]*30partment. If directors or regents a,re not officers, much less are its agents, the professors. In State v. Vickers, 58 Ohio St. 730, it is held that a superintendent of schools is not an officer. Because the cases are valuable for reference and authority, and because I regard them as sustaining views expressed in the above opinions filed by me, I think it proper to make this postscript.
I call special attention to the case just observed of Worthy v. Barrett, 63 N. C. 199, making the distinction between officers .and placemen, and stating that a test of an officer is whether by law he must take an oath to support the constitution, and citing with approval an opinion of the United States Attorney General making this a test, and holding that mere agents of the state like “visitors to state institutions, directors of state banks or other state institutions," are mere agents, not officers.
Writ Denied.