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became, naturally and plainly, as much a part of the compensation to the justice as though his salary, eo nomine, had been increased to compensate him further for what his office entailed upon him in the way of duties and work.

fact whether the $1,200 was to be regarded as a reimbursement of expenses or an increase of salary. "This court held to the latter view the $1,200 was treated as a salary, because the amount could no longer be regarded as an allowance for expenses,

Expenses, or no expenses, he became entitled but rather a fixed statutory sum, to which the relator to the whole of the $1,200.

In my belief, that all we can devise from language, and by reasoning from cause to effect, the intention of the legislature was to make a permanent addition to the stated salary, which should be beyond the power of subsequent legislatures to affect. The law operated to increase the fixed compensation of the justices, while withdrawing any compensation measured and determined by time occupied. Under the old system of a per diem allowance of five dollars, of course, the amounts received by the various justices must have varied materially, in accordance with the necessity for travel in the different judicial districts.

If the legislature, therefore, had had in mind in enacting the law of 1872 simply to make a change in the method of repaying the justices' expenses, the amount of the grant would have been granted accordingly.

Instead, however, the legislature increased the salary or compensation by adding to it a further fixed sum in commutation of all expenses and demands.

By way of illustrating more forcibly, we see in the annual report of the comptroller to the legislature in 1872 (Assembly Documents, Vol. 1, p. 44) that his warrants upon the State treasury on account of the Supreme Court justices in 1871, for payment per diem allowances under the act of 1870, varied in amounts for each judicial district, ranging from $1,370 for the fourth, to $3,030 for the seventh.

By the amendment of 1872 there was granted to the justices in each of these districts the fixed aggregate sum of $4,800.

This ought to show pretty conclusively that the legislative grant had no relation to a purpose of merely reimbursing expenses of the justices.

The words "in lieu of all expenses now allowed by law," in the act of 1872, indicate that that allowance was superceded, and that it could no longer be claimed in addition to the increased compensation. The logic of the thing must lead us to suppose that the legislature intended, by passing the act of 1872, to change the whole system, and, instead of paying the varying expenses of the justices, to substitute a larger salary or compensation to cover all services and all expenses."

In the case of Gilbert v. Supervisors, etc. (136 N. Y. 185) Judge O'Brien says: When the amendment of 1880 was adopted the word compensation had been in the judiciary article for ten years, and was understood to mean the salary of the judge, as such, and the allowance for expenses."

was entitled absolutely, without regard to his incurring expenses."

In view of these decisions, it is the duty of the comptroller to refuse to audit these amounts.

I am informed that many of the justices refuse to receive the amount awarded, believing the acts are obnoxious to the Constitution.

When they accepted the office at $7,200, each knew the extent of his judicial district and the probable expense each year.

Why not give each justice every year $10,000 for a little vacation on the "continent?"

BINGHAMTON, July 4, 1902.

A. A. WHITE.

POWER OF GOVERNOR TO REMOVE COUNTY OFFICERS.

In the Matter of the Application of CHARLES GUDEN, as Sheriff of the County of Kings, Appellant, v. NORMAN S. DIKE, Respondent.

NEW YORK COURT OF APPEALS. (Decided June 20, 1902.)

Benjamin F. Tracy, for appellant; G. D. B. Hasbrouck for respondent.

PARKER, Ch. J.-There resides in the people of this and every State an absolute and uncontrolled power to prescribe rules of action, through legislation, to enforce rules of action and to transact generally the affairs of government, through executive acts, and to determine controversies between, enforce rights belonging to, and redress wrongs done to, citizens of the State through the courts. This power of the people is absolute and uncontrolled, except as the people themselves have sought to restrain it either by the Constitution of the United States or by the Constitution of the particular State in which the act is done, the rule adopted, or the judgment pronounced. (Cooley on Constitutional Limitations, 205.)

These powers the people of this State have by a written Constitution separated, and distributed among the three departments of government created by it-the executive, legislative and judicial carefully enumerating the powers and defining their limits. And the Constitution must be so construed as to preserve rather than to destroy the powers of the co-ordinate branches of the government, thus

In People ex rel. Follett v. Fitch et al. (145 N. Y. securing the full exercise of all the powers con265) Judge Bartlett says:

"The answer to this question depends upon the

ferred by the people.

In this country the power of removal is an execu

tive power, and in this State it has been vested in the governor by the people. (Constitution, art. IV, § 1.) The Constitution further specifically provides and has since 1821 in effect, and since 1846 in precisely the same words-that "the governor may remove any officer, in this section mentioned (sheriffs, clerks of counties, district attorneys and registers in counties having registers), within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense." (Art. X, § 1.)

It does not require argument to persuade the mind that the power thus conferred is executive, not judicial, and that it was intended to be vested exclusively in the governor.

If the intent of the framers of the Constitution were not plainly apparent from the language of the clause, all doubt would be removed by an examination of the debates of the constitutional conventions of 1821 and 1846.

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Mr. Root was not in favor of yielding the reputation of his fellow citizens to the delicacy of the executive."

Mr. Tompkins voiced the sentiment which finally prevailed when he said, "If this clause is rejected a sheriff may be displaced in secret without cause assigned, which may be merely a political one." (Clark's Debates of the Constitutional Convention of 1821, pp. 195, 196.)

The advantage of notice of charges and opportunity to be heard was apparently regarded as resting in the publicity which would result, enabling the people to judge of the necessity or propriety of a removal. Such publicity would ordinarily prove a

upon a man holding the commanding position of governor of a State.

Prior to the Constitution of 1821 the office of sheriff had not been an elective but an appointive one. Under the Constitution of 1777 the appoint-sufficient check, if any check can ever be needed ments were made by a council consisting of the governor and one member from each of the four great senate districts of the State. The manner in which this power was exercised became the subject of such grave abuse that the convention of 1821 set about accomplishing a needed correction. The final result was that the electors of the several counties were authorized to choose the sheriffs by ballot, and upon the governor was conferred the power of removal in language substantially like that in existence in the Constitution of to-day.

An examination of the debates of that convention seems to indicate that the propriety of vesting the power of removal in the governor was not questioned. A difference of opinion did prevail as to the advisability of requiring notice and an opportunity to be heard before removal.

Mr. Van Ness "was not in favor of the governor's calling the officer before him to answer to complaints or charges, or of assigning his reasons for such removal. There might be reasons of a delicate nature, such as moral disqualifications, to occasion such removal. And with this power of removal in the executive, he was less opposed to the election of sheriffs and clerks by the people."

"Mr. Root wished the cause of removal might be known and assigned. He was no friend to gubernatorial delicacy. We had seen too much of it already."

The proposition was then divided into two parts. "The question on the first part, relating to the removal of sheriffs, was taken and carried.

"The question was then stated to be on the second part of the proposition, requiring the governor to assign reasons for such removal, and to give to the sheriff an opportunity of appearing in his own defense.

In the constitutional convention of 1846 the section of the proposed Constitution relating to election and removal of sheriffs and other county officers being before the convention, Mr. Van Schoonhoven moved to so amend it as "to provide that the removal should be made by and with the advice and consent of the board of supervisors of the county in which said officer may reside." "This," he said, "would give the officers against whom charges were preferred an opportunity to be tried by their peers."

"Mr. Angel said the governor had already the power to remove sheriffs, etc., and he had not heard that there was any complaint against that power, which had not been very frequently exercised.

"Mr. Stow hoped if the amendment prevailed, it would not be imposed upon the governor to see that the laws were faithfully executed. His powers had already been so restricted that he could not do much more than look on and wish that the government might do well. He could see no good reason for a change of the present Constitution in this respect.

"Mr. Rhoades concurred in this view of the question. Nothing certainly could be more proper and necessary than that the chief executive should have this control over the subordinate executive officers of the counties.

"Mr. Van Schoonhoven replied to Mr. Stow saying, that if the governor had nothing else to do, he might employ himself in this way, for that reason. His objection was to giving any one officer absolute power to remove another.

"Mr. Patterson had never felt any danger from this provision, and he did not believe any governor

of this State would descend to the exercise of this power for mere partisan motives. He knew that in one instance it had been exercised with great propriety.

Mr. Bascom suggested that the power of removal might be properly transferred to the Supreme Court. These officers might then be tried by a tribunal very capable of deciding whether they had committed anything worthy of removal. He would be tried at home, too, while if the governor was to decide there must be the expense of a journey to the capital. There was no danger in leaving this power where it was, though it would result in some inconvenience and expense to the party dealt with. "Mr. Simons insisted that it would not do to sever the chief executive from the subordinate executive officers of counties. There might be occasion for the prompt exercise of this power of removal — pervading excitement — which would admit of no delay in the removal of the officer. "The amendment was lost." (N. Y. Cons. Con. Deb. 1846 [Croswell & Sutton Argus Ed.], p. 770.) The suggestion of Delegate Bascom that the power of removal be transferred to the Supreme Court seems not to have been welcomed by the convention, and one of the reasons may undoubtedly be found in the remarks of the next speaker, who most emphatically asserted that it would never do to sever the chief executive from the subordinate executive officers, for there might be occasion for the prompt removal of an officer that would admit of no delay.

Mr. Simons' speech closed the debate and the rejection of the amendment settled the question in favor of the governor's right to exercise this executive power without hindrance even from the local board of supervisors. And there it must remain if the judicial department of the State government is to enforce the principle underlying, as well as the mandates of the Constitution apportioning the powers of government into three departments and making each department supreme in the performance of the duties committed to it.

The suggestion that, if the courts do not interfere, some chief executive may proceed in disregard of those principles which courts of impeachment have established, should not be given weight, for the ability to act quickly in the removal of administrative officers and clerks is as important in the conduct of government as in the management of a gigantic corporation or large individual enterprise. The attempt to safe-guard the rights of the official, or the clerk, should not be carried to such an extent as to override the interests of the public, for the public business is of paramount importance. It is better that occasionally a mistake should be made in the removal of an officer than that the public business should be seriously interfered with as it was, for instance, in this case by a controversy over the title of an office, which has resulted in the assumption by two men of the rights, powers and duties of

sheriff of Kings county, in which one has been upheld by the Special Term of the Supreme Court, and the other by the Appellate Division thereof causing in the meantime, necessarily, great embarrassment and delay in the administration of the criminal business of the county. And so it might happen in other cases, had the judiciary the power to review executive acts of removal. Hence, in their wisdom, the framers of the Constitution put the public interests in the foreground, and provided a simple and prompt method of removal of county executive officers by the governor of the State.

Of the manner in which that power has been exercised there has been but little complaint in the more than eighty years that have passed since the power was first granted. Delegate Becker, of the constitutional convention of 1894, seems to have been of the opinion that the governor should not have an absolute and unconditional power of removal that might be exercised without a sufficient reason, and so he proposed in due form an amendment to the section of the Constitution under consideration, which should insert therein after the word remove" the words "for good cause shown," but the proposed amendment was rejected, and without debate, so far as the record discloses.

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But had there been large complaint concerning the exercise of the power the method of removal imbedded in the Constitution must govern until the people change it. It authorizes the governor to remove, as we have seen, after "giving to such officer a copy of the charges against him and an opportunity of being heard in his defense," and an examination of the record discloses that such requirements of the Constitution were fully complied with in this case.

Therefore, we do not examine into the merits, for they do not concern the courts, inasmuch as both the power to decide whether Guden should be removed from the office of sheriff, and the responsibility for a right decision, rests solely upon the governor of the State.

The order should be affirmed, with costs.

O'BRIEN, J.-I concur with Chief Judge Parker in the result. My conclusion, however, is based upon grounds somewhat different from those stated in his opinion, and, briefly, my reasons are these: It is provided in section one of article ten of the Constitution that "The Governor may remove any officer, in this section mentioned, within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense." The officers mentioned in the section are sheriffs, clerks of counties, district attorneys and registers in counties having registers. The power of removal is here given with the limitation that it shall be made upon charges only, a copy of which is to be served upon the officer and an opportunity given to him to be heard in his defense. Inasmuch as the accused officer is entitled to make a defense and be

heard in his own behalf before the removal can be ordered, the proceeding is judicial in nature and character. Any proceeding in which a party is entitled to make a defense and to be heard necessarily involves a judicial inquiry. It is admitted on all sides that before a removal can be made the governor must acquire jurisdiction. There must be a charge of some official misconduct on the part of the officer and he must have been served with a copy of the charge and given an opportunity to be heard. A mere statement, in writing, of some act or omission on the part of the officer, that in no sense can constitute misconduct, would not be a charge within the meaning of this provision of the Constitution. It is not necessary that the charge be stated with all the precision of a pleading in a court of law or equity. The governor has power to prescribe his own rules of procedure and determine whether the charge is sufficiently specific or otherwise, but there must be some act or omission on

the part of the officer stated in the papers, which amounts to official misconduct, and when such a paper is presented to the governor he acquires jurisdiction of the person of the officer and of the subject-matter of the charge. For any error of law or of fact that he may commit in the progress of the investigation there is no power of review in the courts. The courts can inquire with reference to a single question only, and that is the jurisdiction; but the power to inquire as to jurisdiction necessarily implies the right to examine into the nature and character of the charge, in order to see whether it is in any proper sense a charge at all within the meaning of the Constitution.

In my opinion the charges in this case were sufficient to confer jurisdiction upon the governor. In one of the charges presented to him and which appears in the record it is, in substance, alleged that the sheriff abdicated his powers and duties with respect to the appointment of his subordinates to an irresponsible body of men called a patronage committee. That is to say, he entered into an agreement with this committee to make such appointments of subordinates as it determined upon, and that a list of forty persons was furnished to him by this committee to be appointed as his subordinates and that he appointed them. The appointment of these persons, under such circumstances, was an official act relating to the powers and duties of his office. The charge, in substance, is that the sheriff farmed out to an outside irresponsible political body the performance of duties which devolved upon himself. It is true that the form in which this charge is stated is not according to the strict rules of pleading. The statement is that the sheriff testified to all these facts in a certain examination or proceeding before a judicial officer, but it was perfectly competent for the governor to treat the charge as a distinct averment of the truth of the facts stated by the sheriff in his examination. The form of the charge is a state

ment of the evidence of the fact, rather than the fact itself, but the executive had the power to entertain this charge, although it was not formulated according to the technical rules of pleading.

It was not necessary that the order of removal should specify the particular acts for which the removal was made. The order necessarily includes all acts embraced in the charges and covered by the proofs just as the general verdict of a jury includes all the facts comprehended in the issue submitted, and the validity of the judgment indicated by the order of removal is not affected by the circumstance that the executive, instead of specifying the particular acts of misconduct of which the sheriff was charged and found guilty, expressed his reasons in a milder form, namely, that it appeared to his satis faction that the usefulness of Guden in the office of sheriff of the county is at an end and that he be removed from the office.

GRAY, HAIGHT, Vann, Cullen and WERNER, JJ. (O'BRIEN, J., in result in memorandum) concur with PARKER, Ch. J.

Order affirmed.

THE RIGHT TO HOLD OFFICE AS AFFECTED BY THE RECEIPT OF A PENSION.

PRICE V. JOHN MCGAW WOODBURY ET AL.

NEW YORK SUPREME COURT, TRIAL TERM, PART II.

Opinion of Judge LEVENTRITT, June 3, 1902. George L. Rives, Theodore Connoly, for respondent; Roger Foster, attorney for petitioner.

People ex rel. Price v. Woodbury, Commissioner, etc.- This is an application for peremptory writ of mandamus requiring the defendants to reinstate the relator as section foreman in the department of street cleaning. For a period of twenty years prior to May 25, 1894, the relator was a member of the police force of this city; on that date he was, pursuant to chapter 375 of the Laws of 1888, retired on his own application and became entitled to a pension, which was fixed at $650 per annum by the Thereafter he became an police commissioners. employe of the street cleaning department, and on December 31, 1901, he held the position of section foreman at an annual salary of $1,200, On December 31, 1901, the relator received the following

letter:

"Sir.- On the ground that you are now in the receipt of a pension from the city of New York, I declare your position as section foreman of this department forfeited by section 1560 of the Greater New York charter, and I, therefore, dismiss you from the service of this department for the above

mentioned reason alone, to take effect at the end results as a just deduction from the express powers of this year, 1901.

"Respectfully,

"P. E. NAGLE,

"Commissioner."

be

and provisions of the system" (Barker v. People, 3 Cow. 286, 303). "The right to hold public office under our political system is an implied attribute of citizenship, and is presumed to be co-extensive It is claimed by the relator that his removal, pur- with that of voting at an election held for the pursuant to the notice, was illegal. Section 1560 of pose of choosing an incumbent for that office" the charter, as it became operative on January 1, (Mechem, Public Offices and Officers, sec. 67). Gen1902, provides as follows: "No person now receiv- eral eligibility is the rule; disqualification is the ing or who may hereafter receive any pension from exception. The particular Constitution may, of the city of New York, or any of the departments course, impose any disqualification which the soverthereof, or out of any fund under the said city, or eign will of the people may have seen fit to incorany of its departments, shall hold any office, em- porate in the instrument, but it should ployment or position under the city of New York, remembered that these restrictions are exceptional. or any of the counties included within said city. Within certain very narrow limits the Legislature Any officer, subordinate or employe of said city, may impose additional disqualifications, or, rather, or any of its departments, or any of the counties certain disqualifications declared by the Legislature included within said city, now in receipt of any have been sustained, not so much by virtue of any such pension shall forthwith forfeit such office, inherent power of the lawmaking body to limit position or employment." I am of the opinion that eligibility in the broadest sense, as by virtue of this provision is violative of the State Constitu- proper construction of reasonable intendments of tion, and, primarily, of article 1, section 1, which the Constitution. These legislative disqualifications, commands that no member of the State shall be however, are likewise exceptional. In addition to disfranchised or deprived of any of the rights or these two classes there is, perhaps, a third: disprivileges secured to any citizen thereof, unless by qualifications like the one that no person shall hold the law of the land or the judgment of his peers. incompatible offices, which have been carried over I am aware that, in this department, at least, it and continued from the common law (People v. has not been the usual practice to declare a law Green, 5 Daly, 254; People v. Carrique, 2 Hill, 93); unconstitutional in the first instance at Special but this class can be reasonably deduced from the Term, but that its legality, where it has been at- spirit and intent of the Constitution itself, and the tacked, has been affirmed pro forma, leaving it to application of the old common-law rules can be the higher tribunal to declare its nullity. This has treated as but the expression, legislative or otherusually been done so that established order should wise, of reasonable constitutional intendment. In not be interfered with until an appellate court has other words, all disqualifications are strictly constigiven at least some finality to the litigation. In this tutional, whether express or implied, and all are instance, however, I am not disposed to follow the to be treated as restrictive of the general tendency practice; the granting of a stay pending appeal will that concedes to all citizens all civil and political prevent any disturbance of office. The provision rights. "To be a citizen is to be qualified for the strikes me, at least, as so obviously unconstitu- enjoyment of any right or privilege under our State tional that I cannot omit, even at the risk, perhaps, government. * At any rate this is the rule, of a departure from an unwritten rule of practice, and no presumption is to be indulged against it. briefly to state the reasons of my conclusions. The This fundamental right of each citizen as a citizen theory, as well as the spirit underlying all demo- can be impaired only by express provisions of law" cratic Constitutions is to deny to no one living (People v. May, 3 Mich. 598, 603). Such excepunder them, to no member of the State, the right tions as exist are few and well defined. The maxim, to hold office. The trusts, offices or employments expressio unius est exclusio alterius, is to be applied within the gift or at the disposition of the conferring in all its rigor (1 Story on the Const. 628). power, whether by vote or by appointment, are for Specifically, the underlying general rule has not all the citizens. This is the general rule, and, so been frequently or precisely stated in our cases. far as we find it modified in particular instances, the It has rather been taken for granted in most reason is to be sought and found in certain prop- instances, and its terms are to be deduced from the erly continued inhibitions of the common law, manner of its application. In an early case, howexpress constitutional disqualification, or in legisla- ever, the general principles have been well summartive enactments following both the common law ized. Sanford, J., in People v. Cowen (supra), and the reasonable intendments of the Constitution. says: "Eligibility to public trusts is claimed as a While not, strictly speaking, a natural right or one constitutional right which cannot be abridged or guaranteed inviolable by the Constitution, it flows, impaired. The Constitution establishes and defines nevertheless, from the general scheme of that in- the right of suffrage, and gives to the electors and strument and the spirit of our institutions. "Eligi- to various authorities the power to confer public bility to office is not declared as a right or principle trusts. * Excepting particular exclusions

by any express terms of the Constitution, but it thus established, the electors and the appointing

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