officials after opportunity to be heard was judicial in its nature and that prohibition was the proper remedy to prevent a court or officer from the non-jurisdictional exercise or abuse of such power. The mayor was prohibited from removing an officer without authority of law. Arkle v. Com's., 41 W. Va. 471. "The writ will be granted even after judgment or sentence to prevent execution." 16 Ency. Plead. and Practice, 1132; Charleston v. Beller, 45 W. Va. 44; N. & W. R. R. Co. v. Pinnacle Coal Co., 44 W. Va. 574; Wilkinson v. Hoke, 39 W. Va. 559; Bodley v. Archibald, 33 W. Va. 229; Manufacturing Co. v. Carroll, 30 W. Va. 532; West v. Ferguson, 16 Grat. 270. "While it is not the office of the writ to annul orders or judgments and it cannot afford relief against an act already done, yet if the action of the lower court is only partially but not fully completed, the writ checks further proceedings, and if necessary to afford full relief quashes what has already been done beyond or in excess of jurisdiction. 16 Ency. Pleading and Practice, 1141; Havmeyer v. Superior Court, 84 Cal. 327; State v. Elkins, 130 Mo. 90; People v. House, 4 Utah 369."

"The writ lies to prohibit proceedings where the court undertakes to adjudge the rights of persons who have not been made parties thereto by the service of process." 16 Ency. Pleading & Practice, 1113. To attempt to adjudicate the rights of a person without notice to him is an excess or abuse of legitimate powers which will be restrained by prohibition. High Extra Rem., s. 767; Yakima v. Superior Court, 4 Wash. 655; Stupatrick Manufacturing Co. v. Superior Court, 123 Cal. 290; People v. Fitzgerald, 15 N. Y. App. Div. 539; People v. Judge, 26 Mich. 100; Howard v. Pierce, 38 Mo. 296; State v. Mitchell, 2 Bailey L. (S. Car.) 225; State v. Superior Court, 15 Wash. 500; State v. Judge, 37 La. 285. In the case of The London and North Western Railway Co. v. Railway Com's. and others, 1 Exchequer Div., 5 vol., p. 1, a writ of prohibition was awarded to prevent the enforcement of an order made by the railway commissioners fixing a uniform rate of traffic for the reason that the London and North Western Railway Company was not notified, and was not represented before the commissioners when such order was made. In this case there was no notice and no hearing but a condemnation and judgment ex parte depriving the petitioner of a vested statutory right, which judgment was not to take effect and could not be consummated or finally executed until

the first day of March, 1901. Hence it is a clear case of abuse of judicial authority calling for the writ of prohibition. It is insisted in argument that as the judge of the circuit court had entered an ex parte order refusing a rule, the only remedy was by writ of error and not by original application to this Court. This question was settled as to mandamus in the case of Martin v. Board of Education, 42 W. Va. 514. The same rule applies to prohibition. Three of the regents did not join in, but opposed and protested against the illegal action of the majority. So long as the majority did not exceed or abuse their corporate jurisdiction or powers, their action is entitled to be regarded as the action of the board but when the majority wilfully abuse their corporate authority, it is no longer the action of the board, but may be regarded as the action of the individual members joining in it and using their legal powers for illegal purposes, and the consequences of their illegal action should fall upon such individual members, and not on the corporation they represent. For instance, the costs and damages. of this proceeding should not be adjudged against the board as such, and paid out of the corporate funds, but they should be borne by those whose illegal conduct made them necessary. It is not proper to tax costs against judges in prohibition cases unless they show a partizan interest but it is otherwise with infe rior tribunals, especially when they exceed or abuse, their jurisdictions. People v. House, 4 Utah 369; Evans v. Thomas, 32 Kan. 469; Burtgof v. Bentley, 27 Oregon 268; State v. Berg, 76 Mo. 136; 13 Ency. Pleading & Practice, 820.

Being firmly convinced that the foregoing syllabus and opinion correctly propound the law, and that the petitioner has been deprived of a vested statutory right contractual or quasi-official in his professorship to the injury of his living and professional reputation without due process of law contrary to the statute, the constitution of this State, the constitution of the United States and the former decisions of this Court, and that the refusal to award the writ is a plain and palpable denial of the equal protection of the laws, I hereby enter my solemn protest against the same. The following cases show the necessity of due process of law: Moore v. Strickling. 46 W. Va. 515, 519; Arkle v. Board Com's., 41 W. Va. 471; Dullam v. Wilson, 53 Mich. 392; People v. Therrien, 80 Mich. 187; People v. Stuart, 74 Mich. 411; Andrew v. King, 77 Maine 231; State v. Seay, 64 Mo. 89; State v.

St. Louis, 70 Mo. 19; Hallgreen v. Campbell, 46 N. W. 381; Ham v. Board of Police, 142 Mass. 90; State v. Harrison, 113 Ind. 434; State v. Duluth, 53 Minn. 238; State v. Smith, 35 Neb. 13; Ayers v. Newark, 49 N. J. L. 170. Two propositions are fully recognized and established by all the authorities. First, that no person can have such absolute property in an office that he may not be dispossessed thereof according to law. Second, that an incumbent can have such legal right to the enjoyment of an office that he may not be deprived thereof, except by due process of law. The real difference between the authorities appears to be as to what constitutes due process of law. A respectable minority hold that removal from office is purely an administrative function constituting due process of law which is not reviewable by the judiciary. While the vast and decided weight of authority, sustained by reason and the fundamental principles of justice and private rights, hold that removal from office for cause is a judicial function requiring notice and hearing and reviewable in all proper cases by the courts. Heretofore this Court has adhered strictly to the latter proposition. Now an abandonment is proposed from certainty and right to uncertainty and wrong. From this I dissent.

For reasons known only to themselves my associates denied me knowledge and inspection of their opinion and syllabus until after it was handed down or became public property. This is a matter of judicial courtesy or ethics, and as a learned judge has said that courtesy is a mere matter of taste about which there is no disputing and from which there is no appeal since duelling has been abolished, every judge has the right to treat his confreres as he sees proper according to his inward consciousness and outward experience. Not having been admitted to their exclusive consultations over, nor been made aware of their written conclusions until after given to the public, I deem it my duty to review these conclusions, as some of them appear to me to be plainly violative of the true principles of law and justice, and the opinion as a whole to be evasive, inconclusive and unsatisfactory as an exposition of sound law, although an admirable paper for other purposes. It asserts that the University belongs to the executive department of the state government with which the courts have no right to interfere; that a professor is not an officer, and therefore has no rights under constitutional or statutory law which the courts may protect, and, if an officer, that there

are many decisions which hold that officers may be removed without notice or hearing. These decisions are then quoted and commented on as authority, although they have been rejected long since by the best authorities, both courts and text-writers, including this Court. Arkle v. Commissioners, cited. Of these decisions Judge Champlin in the leading case of Dullam v. Willon, 53 Mich. 407, says: "I have examined carefully the authorities cited in the brief of the learned counsel for relator in support of the position that no notice is required to be given and that the action of the executive is final and conclusive. It is sufficient to say without commenting specially upon them that the reasoning of those cases does not commend itself to my judgment. They appear to be opposed not only to the decided weight of authority, but also to the fundamental principles of justice." The same language is perfectly applicable to the opinion of the majority in the present case, for it is certainly opposed to the deciding weight of authority and also to the fundamental principles of justice.

The case of Dullam v. Wilson, cited, furnished a complete refutation to the material points in the opinion under consideration too plain to be misunderstood and with argument thorough, convincing and unanswerable.

The subject of controversy was the power of the governor of the State to remove a trustee of the Deaf and Dumb Asylum without notice and hearing. The court took jurisdiction on the grounds that the power of removal from office was a judicial function and subject to review of the court without regard to the officer, court or board on whom the power was conferred.

Judge Campbell in his able, convincing and concurring opinion, on page 409, says: "It is further insisted that it is not within the power of the judiciary to review or sit in judgment upon the action of the executive, which must be respected as the act of an independent co-ordinate department of the government, subject to no appeal."

It is undoubtedly true that no court can review the lawful discretion of any body that is not a court and that the executive stands in this respect on the same footing with all other persons and bodies. But it is equally true that private rights cannot be subjected by legislative, executive or any other authority to the unregulated discretion of anyone. Legal rights can only be

divested by such measures as are classed under the laws of the land as due process of law.

Courts in determining whether rights exist, or whether vested rights have ceased to exist do not act necessarily or usually as appellate tribunals whose judgments operate on the tribunals or persons whose invasions of right are complained of. They may or may not do so. But in a constitutional government the action of all persons, official or private, which is in violation of the constitutional rights, is simply null and void and usually needs no reversal. And the action of any department of government, whether legislative, executive or judicial beyond its jurisdiction or against the constitutional limits of its authority is in law the same as if there had been no action and cannot be regarded as having legal effect. **

No executive authority exists outside of the legal boundaries. All offices must be created in accordance with law. Unless they are held during the pleasure of the executive or subject to removal at his will he cannot interfere with them except as the law provides, and if this right depend on conditions those conditions must be determined in some legal way. No right can be subject to his uncontrolled discretion. And where as is some times the case he has the duty of inquiry and decision he has no power to decide without a hearing any controversy involving private rights."

The decision is thus made to turn on the question as to whether the person complaining had a vested right to exercise the office until he was deprived thereof by due process of law.

It was not a question as to whether his position was a public office, but it was a question as to his personal and private right to eercise the same. Some of the authorities relied on were not concerning public offices but school teachers, fellows in colleges and divines or clergymen. And it is settled law that the officers of both public and private corporation cannot be removed from their offices illegally or without due process of law and if so removed they can be restored to their position by mandamus. Angell & Ames on Corporations, chap. 20, Ohio v. Bryce, 7 Ohio, 414. An attorney at law in the case of Morness, 39 Wis. 509, was held to be a quasi public officer. Meehan on public officers, s. 29. In the case of ex parte Garland, 4 Wall, 333, it was held that an attorney at law "could not be deprived of his office ex