waters in question, and beyond the prescribed distance any use of the water and bottom for fishing, or other appliances, must be valid or invalid on other principles than those which govern nearer the land. The stakes removed were all in deep water, which was navigable for large craft, although not much used for navigation proper, and they could not as a matter of right have been planted by either plaintiff or defendant so as to be maintainable against the interests of navigation. So long as they did not operate as nuisances in fact, they could not be removed wantonly, and if nuisances, they could not be removed by any private person who did not suffer special damages from them as nuisances. But there could be, I think, no proprietary right in any one, at such a distance from the shore, to claim a monopoly of 'fixing such stakes in deep water, where they would be technical encroachments in the water-way, if not justified by some use belonging to the water instead of appurtenant to the land. The temporary occupant cannot be crowded out of his occupancy while engaged in actual business. Outside of the statutory line I think there can be no doubt of the right of any one to fish with such appliances as are appropriate to open-water fishing. It has always been customary on these lakes to treat deep-water fishing and navigation as resting on the same basis, except in narrow waters or near shore, where fixed apparatus might have some relation to riparian occupancy as used in connection with it. Fishing such as was involved in this controversy has no natural connection with the dry land or its approaches. It is carried on altogether by the aid of vessel or boat navigation, and is fairly incidental to that class of business. Such fishing as is done with lines from boats, even in narrow streams cannot be complained of by riparian owners. The fish are like any other animals feræ naturæ, and in this region have always been regarded as open to capture by those who have a right to be where they are captured. On the large open waters there is no reason, except public convenience, which can make it improper to fish with the aid of any machinery or apparatus suitable to the business; and if stakes or similar devices are 53 392 68 555 53 392 used, and the public authority does not see fit to intervene, no one else can do so who is not hindered in the exercise of those rights of navigation which are open to everybody. Such injuries are very unlikely, as those using the Great Lakes as highways should pay a due regard to all of the various uses to which the waters are subject, and cannot wantonly interfere with any of them. I can see no reason why openwater fishing is not as essentially a maritime business as any other use of the water. I am not prepared to hold, however, that lands under water are not appurtenant to the upland so far as they can be used. at all. But, as already suggested, the impossibility of determining what part of a lake of many hundred miles shore-line, in two jurisdictions, can be made appurtenant to a mile or two of shore, renders it certain that, without some such statute as we have on the subject, even the shore approaches might in some cases be found very difficult of allotment. I therefore concur in regarding this statutory rule as entirely valid in regulating rights in deep water, and as better adapted to reaching practical results than any theoretical rules, which can never be applied on such large bodies of water at any considerable distance from the shore. I agree in affirming the judgment. COOLEY, C. J., and SHERWOOD, J. concurred. 80 190 80 194 53 392 89 169 53 392 90 313 53 392 98 98 53 392 99 369 ROBERT W. DULLAM V. JAMES C. WILLSON. Governor's power to remove State officers. 98 363 1. An information in quo warranto proceedings charged official misconduct and neglect of duty. The plea denied the charge. A replica tion was filed which merely reiterated the charges contained in the information, without specifying the acts of neglect and misconduct relied upon. It seems that such a replication is open to demurrer. 53 392 108 142. 53 392 s19NW 112 S51AR 128 189US 314 2. How. Stat. § 651, permitting the Governor to remove any State or county officer except the State treasurer and judges, is void, because at the time it was adopted the Governor had no judicial power under the Constitution. 3. An unconstitutional statute does not become valid by the amendment of the Constitution. 4. Constitutional provisions must be construed with reference to each other when relating to the same subject matter. 5. The Governor's power of removal (Mich. Const. art. xii. § 8) can only be exercised for the specific causes mentioned in the Constitution, and upon charges which shall specify the particular acts or neglect relied on to make out the cause alleged; and the respondent must have notice of these charges and specific allegations, and reasonable notice of a time and place when and where he will have an opportunity for a hearing thereon, upon which he may produce proofs. And the Governor has judicial power to examine into and pass upon these charges. Quo warranto. Submitted Feb. 5.-Decided April 23. William P. Wells and James W. Romeyn for relator, cited. as to the joinder of demurrer and replication: Rex v. Ginever 6 Term 733; People v. Richardson 4 Cow. 119; the constitutional authority in the Governor to remove from office is a delegation or grant of power: Cooley's Const. Lim. 139; Field v. People 2 Scam. 80; the several departments of government are independent in their respective spheres of action: Cooley's Const. Lim., 42, 47, 115; courts have no jurisdiction to compel action by the executive if the act or power to perform it has been confided to the executive discretion: Cooley's Const. Lim. 116; High on Ext. Legal Rem.; Hawkins v. Governor 1 Ark. 570; People v. Bissell 19 Ill. 229; People v. Gates 14 Ill. 433; Dennett's Case 32 Me. 510; State v. Kirkwood 14 Ia. 162; Hartranft's Appeal 85 Penn. St. 433; State v. Governor 25 N. J. 331; Mauran v. Smith 8 R. I. 192; and especially State v. Bartley 39 Mo. 388; Jonesboro v. Brown 8 Baxt. 490; Sutherland v. Governor 29 Mich. 320; nor can they review his discretionary act: Keenan v. Perry 24 Tex. 253; State v. Doherty 25 La. Ann. 119: 13 Am. Rep. 131; State v. Lamantia 33 La. Ann. 448; Attorney General v. Brown 1 Wis. 513; State v. Watertown 9 Wis. 254; State v. McGarry 21 Wis. 497; Platt v. Stout 14 Abb. Pr. 178; 11 Abb. Pr. 17; Bartlett's Case 9 How. Pr. 414; Dougan v. Lake County Court 22 Am. L. Reg. (N. S.) 528; Donahue v. Will County 100 Ill. 94. Howard & Thayer and Isaac P. Christiancy for respondent. Removals from office by the Governor at discretion and without cause are contrary to the policy of law: People v. Lord 9 Mich. 232; Mead v. Ingham County Treasurer 36 Mich. 419; it is for the judiciary to determine whether an officer has been guilty of misconduct or neglect of duty: Cooley's Const. Lim. (2d ed.) 91; Page v. Hardin 8 B. Mon. 648; Ex parte Ramshay 18 Q. B., 173; one shall not be deprived of his rights except by due process of law: Den v. Murray 18 How. 272; Com. v. Slifer 25 Penn. St. 28; he must have an opportunity for hearing and defense: Rex v. Chancellor 1 Strange 557; In re Hammersmith Rent Charge 4 Exch. 97; Archbishop of Canterbury's Case 1 El. & El. 545; Harper v. Carr 7 Term 266; Rex v. Benn 6 Term 198; Capel v. Child 2 Cr. & J. 558; Abley v. Dale 10 C. B. 71; Williams v. Lord Bagot 3 B. & C. 772; an office is property (2 Bl. Com. 36), and is within constitutional protection: Wammack v. Holloway 2 Ala. 31; Hoke v. Henderson 4 Dev. 19; notice must be given of any proceeding affecting rights and interests: Meade v. Deputy Marshal 1 Brock. 324; Queen v. Simpson 10 Mod. 380; Chase v. Hathaway 14 Mass. 222; Arthur v. State 22 Ala. 61; Innes v. Wylie 1 C. & K. 257; State v. Stokes Coxe 392; Geddes v. Township Board 46 Mich. 216; Huber v. Reily 53 Penn. St. 112; an officer who can be removed only for a specified cause must have notice of proceedings to remove him and a chance to defend himself: Bagg's Case 11 Co. 98; Rex v. Gaskin 8 Term. 209; Rex v. Coventry 1 Lord Raym. 391; Rex v. Andover id. 710; Field v. Commonwealth 32 Penn. St. 478; Willard's Appeal 4 R. I. 597. CHAMPLIN, J. In January, 1881, respondent was duly nominated and appointed one of the trustees of what was then known as the Michigan Institution for Educating the Deaf and Dumb and the Blind, and now known as the Michigan Institution for Educating the Deaf and Dumb. The respondent duly qualified by taking and subscribing the oath of office, and entered upon the duties of said office. His term was for six years from the first Tuesday of February, 1881. On the 2d day of July, A. D. 1883, Hon. J. W. Begole, as Governor of the State of Michigan, filed in the Executive office of State a writing or certificate of removal from office, as follows, viz.: "EXECUTIVE OFFICE, LANSING, July 2nd, 1883. Whereas, it appears satisfactorily to me that James C. Willson, holding the office of trustee of the Michigan Institution for Educating the Deaf and Dumb, has been guilty of official misconduct and habitual neglect of duty, as such trustee, I therefore remove the said James C. Willson from his said office of trustee of the Michigan Institution for Educating the Deaf and Dumb. [L. S.] By the Governor, D. H. McCоMAS, Dep. Sec'y of State." JOSIAH W. BEGOLE. -which has ever since remained of record in the executive office, and a copy thereof was filed on said second day of July in the office of the Secretary of State, and has ever since remained there of record. On the same second day of July said Governor gave gave notice to said Willson of his removal from said office by a notice in the words and figures following: "EXECUTIVE OFFICE, LANSING, July 2nd, 1883. To James C. Willson, Esq.-DEAR SIR: I have this day, for your official misconduct and habitual neglect of duty, removed you from the office of trustee of the Michigan Institution for the Deaf and Dumb; the reasons for such removal I shall lay before the Legislature at its next session in detail. Yours respectfully, JOSIAH W. BEGOLE." The Governor, also, on the second day of July appointed the relator a trustee to fill the vacancy occasioned by the removal of Willson, who refused to surrender up the office to relator, but continues to hold, use and exercise the office of trustee; whereupon, on the relation of said Dullam, the AttorneyGeneral filed an information in this Court in the nature of a quo warranto, alleging that James C. Willson had usurped, intruded into and unlawfully holds and exercises the office of trustee of the Michigan Institute for the Education of the Dumb and Blind since said second day of July, 1883. The respondent interposed a plea in which he set forth his appointment and commission, and that he had entered upon the duties of his office; that he had continued faithfully to |