Statement.
Bronson, J.
This is a certiorari proceeding by the relator to test the validity of his removal by the Governor as a commissioner of the Workmen’s Compensation Bureau. The Governor has appealed from the order of the trial court overruling a motion and a demurrer to the application and, from the judgment in certiorari, determining the removal to be invalid. The facts in the record are as follows:
Pursuant to chapter 162, Laws of 1919, the Governor on March 31, 1919, appointed the relator as a commissioner of the Workmen’s Compensation Bureau for the three-year term. The relator qualified and [317]*317entered upon the performance of his duties. . In December, 1919, at a special session of the legislature, chapter 162, Laws 1919, Avas amended by chapter 73, Spec. Sess. 1919, so as to increase the membership of the bureau to five members and to extend the term of the relator until the second Monday in January, 1923. This act became effective as a law on July 1, 1920. On April 19, 1920, the Governor, through a letter to the relator, upon charges therein preferred, temporarily suspended him as a commissioner until final determination thereof. In general, the letter charged that the relator had Carried on a private law practice; that he had used bureau supplies; that he had shown generally a lack of executiAe ability, irascibility, and incompatibility of temperament; That at public hearings he had conducted himself detrimentally to public interest; that employees of the bureau had tendered their resignation by reason of his presence, and with difficulty were retained as employees; and that his presence impaired the efficiency of the bureau’s operation. This was followed by a letter, dated April 20, 1920, to the relator, directing him to show cause, before the GoAernor on April 23, 1920, why his suspension should not be made permanent.
In response to this letter, the relator appeared before the Govenror. He filed Avritten objections to the jurisdiction of the Governor to take any action; these AA'ere overruled. The Governor stated that he did not know that it was necessary to have a hearing at all, but, in order to give the relator a chance to answer the charges made, this hearing Avas called; that he called him there to shoAV, if he had any evidence or any reasons to produce, why the order issued suspending him should not be enforced. The relator asked whether the affidavits would be served upon him so he could see their contents. In the record there are contained numerous affidavits which set forth stated derelictions of the relator, and upon which the Governor, in his return, has asserted that cause was shoAvn for his action in removing the relator as a commissioner. The Governor stated that they Avere not serving any affidavits ; that the general trend of the affidavits Avas contained in the letter he Avrote the relator; that the letters Avill speak for themselves. The relator asserted that he was willing to ansAver and make a reply, but that no charges had been made; that there were no charges to which to reply; that he wanted to know what the charges were, in order to [318]*318defend them. The Governor replied by stating that the charges were set forth in the letter; that there was nothing to the procedure, unless the relator wanted to answer those charges then. The relator asserted that he was willing to answer; that he denied each and every part of each and every allegation, matter, statement and thing contained in the letter and also in the affidavits, so far as they charged the relator with any official misconduct in office, although he did not know the contents thereof. The Governor inquired whether the relator was ready to take up the charges and the relator answered, in the affirmative. The Governor then stated that the relator had been given an opportunity to come there and answer the charges that had been made. But, if he was going to object to his jurisdiction, he did not see that there was anything further to take up at that time. Counsel, appearing against the relator, stated that the Governor, in a matter of this kind, made his rules and procedure; that the relator had asked to come before him; that if he objected to his jurisdiction, the place for him was before the court, not before the Governor; that the Governor has investigated, and that he investigates as he pleases. The Governor asked relator if he wished to be sworn, and the relator replied that he refused to be sworn until he knew what the specific charges were; that he came there to answer any charges the Governor had; that he demanded the right of cross-examination, and the calling of any witnesses to which he might he entitled in defense. The Governor then stated that there were charges made against the relator set forth in the letter; that he would like to ask him some questions concerning the affidavits under oath; tbat, if he wished to be questioned, they would proceed; if not, this would end the hearing. Then followed the following colloquy between the Governor and the relator.
“Mr. IIofFel: Do I understand the Governor’s position to be that he refuses to produce any witnesses or record he may have, and that he wants to ask the defendant, under oath, concerning his entire record as a public officer?
“Governor Frazier: The whole situation is this, as to whether or not Mr. Wehe wants to answer the questions in regard to these charges that have been made against him, at this time. If he wants to answer to them, this is his opportunity.
[319]*319“Mr. Koffel: As stated before, we arfe willing to answer them.
. “Mr. Wehe: Let the records show that we are ready to answer when they have produced their case and that we axe willing to answer when given a hearing.
“Governor Frazier: If you want a hearing—
“Mr. Wehe: We demand a hearing, and we refuse to answer any questions before their witnesses'are produced. We are right here willing at all times to produce our defense on any and all specific charges.
“Governor Frazier: Then you do not want to be sworn?
“Mr. Wehe:' I absolutely refuse-to be sworn at this time.
“Governor Frazier: Then the meeting is adjourned.”
No further hearing was held. The record shows that the affidavits were neither produced at the hearing nor served upon the relator.
Subsequently the relator was debarred from personal attendance upon the duties of the office, but since the order of removal has offered to perform such duties. Later, the relator instituted an action by mandamus, to compel the compensation bureau to pay to the relator his salary for the month of April, 1920. A demurrer to the petition of the relator was sustained in the trial court and. overruled in this court. State ex rel. Wehe v. North Dakota Workmen’s Compensation Bureau, 45 N. D. 147, 180 N. W. 49. Later, the relator sought the exercise of the ofiginal jurisdiction of this court in a certiorari proceeding, which was denied. Thereupon, in November, 1920, this action in the trial court was instituted and an order to show cause why the Governor should not certify to the court the removal proceedings had. The Governor appeared, and moved to vacate the order upon the grounds that the court had no jurisdiction over the Governor and the subject-matter. That the application was not seasonably made and did not state a cause of action. The court overruled the motion and demurrer. The Governor then mad© a return wherein he justified the removal upon satisfactory evidence presented to and considered by him, after a hearing was ordered, had, and an opportunity given the relator to appear and defend and he further showed that in November, 1920, C. A. M. Spencer had been apppinted and had qualified as commissioner in place of the relator. At the trial the letters and the affidavits ‘ hereinbefore mentioned, upon which the Governor’s • action [320]*320were premised, were received; also a stenographic transcript of the proceedings had before the Governor concerning such removal. It was agreed and conceded, as the trial court finds, that the record contains substantially a full and complete record of all the facts and proceedings had and done before the removal of the relator as commissioner; that any further return to the writ would not furnish additional facts; that the defendant waived any right or demand to make such further return to such writ. The trial court accordingly ordered that the writ be considered as issued and returned; that the hearing be had as if upon a writ of certiorari. Pursuant thereto, the court determined that the removal of the relator was irregular, illegal and void and ordered that the same be set aside; that the relator be reinstated in his position as commissioner with all the rights, privileges, and emoluments, with interest thereto pertaining, as of the date of April 23, 1920.
Contentions.
The Governor contends (1) that certiorari is not the proper remedy for the relator; (2) that, concerning the acts involved herein, there is no legal control over the Governor excepting that furnished by impeachment; and (3) that upon the refusal of the relator to be sworn at the hearing and to be examined as a witness it0was legal for the Governor to render judgment as upon nil dicii, confession and default.
Decision.
(1) Oeriiorari: Both the supreme and district courts possess original jurisdiction to issue writs of certiorari. Const. §§ 87, 103. Section 8445, Comp. Laws 1913, amended (Laws 1919, chap. 76) provides: “A. writ of certiorari shall be granted by the supreme and district courts, wheh inferior courts, officers, boards, or tribunals have exceeded their jurisdiction and there is no appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy, and also when in the judgment of the court it is deemed necessary to prevent miscarriage of justice.”
The function of this writ under the statute is peculiar and sui generis. This court, in agreeing with an interpretation made in South [321]*321Dakota upon a similar statute, has held that, gathering its meaning and intent from its language, the office of the writ which it authorizes is not confined to a review of judicial or quasi-judicial proceedings, but extends to every case where, in the language and upon the conditions of the statute, inferior courts, officers, boards, or tribunals have exceeded their jurisdiction. State ex rel. Johnson v. Clark, 21 N. D. 517, 528, 131 N. W. 715; State ex rel. Dollard v. Hughes County, 1 S. D. 292, 10 L.R.A. 588, 46 N. W. 1127; State ex rel. Poole v. Peake, 22 N. D. 457, 461, 40 L.R.A.(N.S.) 354, 135 N. W. 197; State ex rel. Poole v. Nuchols, 18 N. D. 233, 238, 20 L.R.A.(N.S.) 413, 119 N. W. 632.
The contention that the statute (Comp. Laws 1913, § 8445) by construction, refers to inferior courts, inferior officers, inferior boards, or inferior tribunals, is without merit. No such construction may be placed upon the plain reading of the statute. The function of the writ has heretofore been applied to a general court martial although such court martial belongs to the executive department, is organized, and its judgments approved by, the Governor. State ex rel. Poole v. Peake, 22 N. D. 461, 40 L.R.A.(N.S.) 354, 135 N. W. 197, supra; State ex rel. Poole v. Nuchols, 18 N. D. 238, 20 L.R.A.(N.S.) 413, 119 N. W. 632, supra. Chapter 162, Laws 1919, which grants to the Governor the right of removal for cause, does not provide for an appeal.
The writ will lie only if the Governor has exceeded his jurisdiction. It follows that it will not lie to review the sufficiency or the insufficiency of the evidence or the merely erroneous orders of the Governor, if the Governor acted within his jurisdiction. State ex rel. Noggle v. Crawford, 24 N. D. 8, 11, 138 N. W. 2; Fuller v. Board of University & School Lands, 21 N. D. 212, 221, 129 N. W. 1033; Smalley v. Lasell, 26 S. D. 239, 128 N. W. 141. It is evident that certiorari, if applicable, is an appropriate remedy. See 11 C. J. 108, 112.
(2) Legal Control over the Governor: -The contention is made that the Governor is immune from judicial control or interference by reason of his position as chief executive officer, exercising an executive function in a removal proceeding. This might be conceded, for purposes of this case, if - the 'Constitution or the legislature, in creating [322]*322the power of removal, had prescribed an arbitrary or solely executive function or removal. See Wilcox v. People, 90 Ill. 186. Thus, it might be so contended, if the legislature had provided that the officer might be removed without cause dependent solely upon the exercise of executive discretion. The sovereign power of removal from office is not necessarily an executive function, unless so made by the Constitution and statutes of the state. This power, formerly at the common-law resident in the King, in our state rests with the people, and evinces its expression in the Constitution or statutory laws. It may be executive, judicial or legislative, dependent upon the manner in which the people in the specific instance have allotted or bestowed this power. 29 Cyc. 1406. Thus, the legislature may exercise the power directly by impeachment proceedings. N. D. Const. §§ 194 — 196. Again the legislature, pursuant to constitutional provision, might grant this power of removal to the judicial department. Section 397 N. D. Const., provides that all officers not liable to impeachment shall be subject to removal' for certain acts in such manner as may be provided by law. This court has held, in construing such constitutional provision, that there may be removal for other causes, too, or without cause, if the legislature so declares, provided they are officers whose offices are created by statute. State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234. The legislative prescription, in such event, would make the exercise of this power of removal judicial in its character. The exercise of the power has been termed to be of a judicial cháracter. State ex rel. Shaw v. Frazier, 39 N. D. 430, 444, 167 N. W. 510; State ex rel. Kinsella v. Eberhart, 116 Minn. 313, 39 L.R.A.(N.S.) 788, 797, 133 N. W. 857, Ann. Cas. 1913B, 785; 29 Cyc. 1406; Atty. Gen. v. Jochim, 99 Mich. 358, 23 L.R.A. 699, 41 Am. St. Rep. 616, 619, 58 N. W. 611; Bailey, Habeas Corpus, § 173. Accordingly, the legislature has provided for proceedings for the removal of state officers not liable to impeachment, and other public officers, by direct judicial proceedings for that purpose. Comp. Laws 1913, §§ 10,467 — 10,482. Likewise, the legislature might confer this power of removal upon the executive department, an officer, or board thereof, and make such power wholly an executive function. Thus, the Game and Fish Commission may appoint and remove at pleasure deputy game wardens. Comp. Laws 1913, § 10,269.
[323]*323! The fact that the Constitution vests in the Governor the executive power section 71, Const, does not grant to the Governor the power of removal, unless by legislative act such power of removal is made an executive power. This court has heretofore held in construction of constitutional powers, that the power of appointment to office (and this includes power of removal) is vested neither in the executive nor judicial department of the Government, excepting as' the Constitution has expressly granted such power. That this power resides in the legislature. That all governmental sovereign power is vested in the legislature, except such as granted to other departments of the government or expressly withheld from the legislature by constitutional restrictions. State ex rel. Standish v. Boucher, 3 N. D. 389, 396, 21 L.R.A. 539, 56 N. W. 142. In that case the broad contention was made that the right to appoint to office and to fill vacancies, except as to legislative and judicial offices, was an implied executive function, and that the Governor, in whom the executive power was vested by the Constitution, possessed the inherent right to appoint officers and fill vacancies as an executive function, independently of express constitutional or statutory authority. This contention was denied, a distinction being drawn between the powers of the President under the Federal Constitution and those of the Governor in this state, and it was held that the power of appointment to office does not necessarily and in all cases inhere in the executive department; and that when, as in this state, the express provisions of the Constitution vest in the Governor a limited power of appointment, such grant is exclusive, and no other or greater appointing power can be exercised. State ex rel. Standish v. Boucher, supra, 409. See O’Laughlin v. Carlson, 30 N. D. 213, 221, 152 N. W. 675; State ex rel. Langer v. Crawford, 36 N. D. 385, 162 N. W. 710, Ann. Cas. 1917E, 955; State ex rel. Langer v. Scow, 38 N. D. 246, 164 N. W. 939; Baltimore v. State, 15 Md. 376, 74 Am. Dec. 572. Accordingly, it follows that if the legislature possesses the power of prescribing the method and manner of appointment to and removal from office, it may allot this power to either the executive department or the judicial department or to both and may prescribe the method of its exercise, namely, partly executive, partly judicial, that is quasi-judicial in its nature. So, when the Governor exercises this power pursuant to the [324]*324legislative grant, it may not be said that the limitations placed on the exercise of this power is an interference with an executive function, when such power was not thereto possessed as an executive function and when, further’, it is not granted to him as a purely executive function. The legislature has provided that the Governor may remove certain officers, such as state’s attorneys, clerics of the district court, etc., when guilty of certain acts after a hearing as prescribed, chap. 184, Laws 1919 (amended Comp. Laws 1913, § 685). This right of removal is made subject, however, to the right of appeal to the district court and to a trial de novo therein. Comp. Laws 1913, § 690. Surely, it may not be said that this legislative grant and limitation concerning the Governor’s right of removal under such law and the right accorded of reconsideration by the judicial department is either the creation of, or an interference with, a purely executive function. Rather does it demonstrate a legislative will to grant to the Governor the power to act in a quasi-judicial manner and to avail himself, if he desires, of judicial rules of procedure applicable. State v. Borstad, 27 N. D. 533, 147 N. W. 380, Ann. Cas. 1916B, 1014; State ex rel. Shaw v. Frazier, 39 N. D. 430, 167 N. W. 510. In the latter ease the constitutionality of the act was affirmed as against the contention that it delegated judicial powers lo the Governor. Further it was stated “While the power to remove from office is generally regarded as a power possessed by the courts, in the absence of an express or implied grant to another authority in the government, this power may be exercised by the legislature or may be delegated by the legislature to some other authority.”
In the legislative act under consideration, the legislature has granted to the Governor the power of appointment and of removal, but it has expressly provided that the removal must be for cause. Laws 1919, § 4, chap. 162; Spec. Sess. Laws 1919, chap. 73. An express legislative limitation was placed upon this executive power of removal. This limitation' prescribed the exercise of a legal discretion in addition to an executive discretion. This limitation, as has been stated, the legislature had the right to prescribe. A removal for cause nieans for a legal cause. State ex rel. Hart v. Duluth, 53 Minn. 238, 39 Am. St. Rep. 595, 55 N. W. 118; Townsend v. Sauk Centre, 71 Minn. 379, 74 N. W. 150; State v. Donovan, 89 Me. 451, 36 Atl. [325]*325985; Andrews v. Biddeford Police Bd. 94 Me. 76, 46 Atl. 804; State ex rel. Reid v. Walbridge, 119 Mo. 383, 41 Am. St. Rep. 663, 24 S. W. 437; Hayden v. Memphis, 100 Tenn. 582, 47 S. W. 182. When the legislature deemed it proper to prescribe a legal cause as the basic ground for the removal of the office involved, necessarily there then applied those fundamentals in Anglo-Saxon jurisprudence, essential and recognized in any free and democratic government, namely, the right of the accused to a hearing, to be confronted with his accusers, and to the right of defense. See People ex rel. Metevier v. Therrien, 80 Mich. 187, 195, 45 N. W. 78.
In a mandamus action involving this removal proceeding at bar, this court has stated: “The respondent relies upon the familiar principle that where offices are created with definite terms and the incumbents are removable for cause, sufficient legal cause must exist to warrant removal. Also that officials not removable at pleasure are entitled to a hearing for the purpose of ascertaining Avhethcr or not sufficient cause for removal exists, and that the hearing must be one at which they are given reasonable opportunity to be present, to know the nature of the charges against them, to cross-examine witnesses, and to adduce testimony to disprove the charges. Throop, Pub. Off. §§ 362, 365; Mechem, Pub. Off. § 454. We do not question any of these propositions, but we do not deem them determinative here.” State ex rel. Wehe v. North Dakota Workmen’s Compensation Bureau, 46 N. D. 147, 180 N. W. 49, 50.
This court, therefore, lias already adopted, without dissent, the principle that a legal cause in such case must exist, and must be established at a hearing. It is merely trite to state that a legal cause is a judicial cause. It follows, accordingly, that the Governor, in exercising his power in such removal proceeding, necessarily acts in a quasi-judicial manner. That his orders, quasi-judicial in character, are subject to judicial jurisdictional review and that such review does not serve to interfere with any purely executive prerogative. 11 C. J. 108, 120; State ex rel. Shaw v. Frazier, supra; State ex rel. Martin v. Burnquist, 141 Minn. 308, 170 N. W. 201, 609; State ex rel. Kinsella v. Eberhart, 116 Minn. 313, 39 L.R.A.(N.S.) 788, 133 N. W. 857, Ann. Cas. 1913B, 785; State ex rel. Hart v. Duluth, 53 Minn. 238, 39 Am. St. Rep. 595, 55 N. W. 118; Re Nash, 147 Minn. [326]*326383, 181 N. W. 570; Ekern v. McGovern, 154 Wis. 157, 46 L.R.A. (N.S.) 796, 142 N. W. 595; People ex rel. Clay v. Stuart, 74 Mich. 411, 16 Am. St. Rep. 644, 41 N. W. 1091.
It is evident from this record that the Governor did not appreciate the extent of this legislative prescription. It is quite apparent that he doubted .whether it was necessary that charges be preferred or a hearing1 be given. That he considered, to a considerable extent, that he might exercise this right of removal as a pure act of executive discretion based upon facts that might have brought to his attention ex parte as the chief executive. By reason of such construction of his powers, it is further evidence from this record that the Governor overlooked and- ignored, in order to exercise his power of removal for cause, the necessity of granting a hearing to the relator, where the relator might learn the nature of the charges against him and might have an opportunity to answer the same, cross-examine witnesses, and adduce testimony to disprove such charges. Manifestly such hearing was not accorded the relator. It was jurisdictional for the exercise of the power of removal. No legal cause for removal was established al: the hearing. The affidavit-s upon which the order for removal was based were neither produced nor presented. Accordingly it follows that the order of removal must be determined illegal and void unless the act of the relator in refusing to be sworn as a witness has conferred a jurisdiction to order a removal as if upon default.
(3) Refusal of Relator to he Sworn: It may be granted that the Governor had the right to examine the relator as a witness. State v. Borstad, 27 N. D. 533, 147 N. W. 380, Ann. Cas. 1916B, 1014. The exercise of this right, however, involves the concession that a hearing was necessary with the rights that flow to the.relator at such hearing. Plainly, therefore, this right could not be exercised without according to the relator his rights. The record fairly shows that the relator was willing to be sworn if to the relator a hearing would be accorded. The record fails to show any oiler to accord such hearing as was required.
The trial court, in the writ of certiorari, ordered that the relator be reinstated in his position of commissioner with all the rights, privileges, and emoluments, with interest thereto pertaining as of the 23d day of April, 1920, the date of his illegal suspension and removal, [327]*327as fully as if said order of removal had never been made. This portion of the judgment, perhaps may, by construction, receive an interpretation beyond the issues in this certiorari proceeding. It appears from the record herein that the Governor has appointed another person in place of the relator as commissioner and that such person has qualified as commissioner. The only issues involved in this proceeding are the jurisdictional questions concerning the order of removal. The questions of law involved between the relator as a de jure commissioner and Mr. Spencer as the de facto commissioner are collateral to the present inquiry. 29 Cyc. 1393. The judgment of the trial court should not be construed to extend further than the restitution of the relator as Commissioner de jure the same as if no order of removal had ever been made. Thus construed and modified the judgment of the trial court should be and is in all things affirmed.
Christianson and Birdzele, JJ., concur.