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shall have been elected; giving to such officer a tion in question are looked to closely, they are copy of the charges against him, and an opportunity found to conser no such power, but the contrary. to be heard in his defense.”
They give the governor the power to try and reWhat the nature of the charges must be, or what move officials, but require as a condition precedent charges will suffice, is not in such clause or else to his exercise of such power, that charges " be where specifically prescribed, and that is what gives first presented against them. The clause does not in rise to the question in dispute. The officers men- so many words say that such charges shall be of tioned in the said section are sheriffs, county clerks, acts or omissions in office. Nor does it say they registers and district attorneys, all county officers. may be of acts committed before the official came But by sections 97 and 122 of the charter of the city into the office. That it means acts or omissions in of New York the governor is given in so many office, however, we all know. But on what does the words power to remove the mayor and comptroller claim rest that it means more than that, i. e., that of that city “in the same manner as sheriffs.” it also means acts committed before the official
Thus all that we have is that the governor is came into the office, i. e., that his whole life is subgiven the power to remove these high officers, and ject to attack and trial before the governor? We the only manner prescribed is by this clause of the all know that it means acts in office. To hold that Constitution, viz., he may
officer it also means acts committed before the official "within the term for which he shall have been came into office, would be to read into the clause elected,” after “giving to such officer a copy of something which is not there, and which would be the charges against him, and opportunity to be most astonishing in this or any other free State if heard.”.
it were there; for it would allow an appeal from the These are clear words of limitation on the power people who elect their officials to the governor on given. Concededly, to remove without any charges the question whether the officials of their choice being made, or without a hearing, would be uncon- should serve or not. The plain purpose of the stitutional and void. On the very same principle, provision is only to make the official responsible if the charges filed are of facts which cannot in law as an official, i. e., for his conduct in office, to the be charges at all, they give no jurisdiction, and to governor, and not to make him responsible or remove' on them would be an unconstitutional and answerable at all in his private character. void act.
Could it be contended that charges that And the words used forbid the idea that they the official had kept before coming into office, or confer the power claimed. The power given is to was keeping, a liquor saloon, or that he had been
on charges an official within the term or was an agnostic, would give the governor juris- for which he shall have been elected.” If the intendiction to remove? Nevertheless because the nature tion was to empower the governor to remove for of the required charges is not specifically defined, acts committed in the man's past life, the governor the claim is set up that any kind of a charge, i. e., would not be thus limited to action“ within the a charge of anything the governor may deem suffi- term," i. e., after the official had come into office. cient, and done by the accused at any time in his. On the contrary, the governor would have been life, whether before or after he came into the office, empowered to hold his court and try elected officials will suffice.
in advance of the beginning of their terms, and exIt does not seem possible to entertain a doubt clude them from entering therein, and a regular that the governor is not given any such sweeping court for that purpose by the governor after each and dangerous power as this. There is nothing in election would be in order. the words used to indicate it, and during the eighty And there is broader ground to stand upon. The years that this provision has been in the Constitu- clause of the Constitution in question has to be tion, no governor or anyone else up to the present interpreted in harmony with our theory and system time has claimed, or, so fas as known, supposed, of government, and also with the law and practice that such power existed. To interpret the words in like case as it had existed up to the time of its of the Constitution as conferring power on the chief enactment. To interpret it contrariwise would not executive not only to remove officials chosen by only be unreasonable but contrary to settled rules the people for breaches of official duty committed in of construction. The words used had a settled their offices, but also to remove them for anything meaning at the time they were put in the Constituelse he may see fit, whether committed before or tion. They had not been theretofore taken to mean after they got into their offices, would be contrary a power of removal for anything done by the official to the development and history of our system of before he came into the office. The common-law government, and to the law and practice in similar power of removal was for neglect or misconduct in case from the earliest times.
office only, as will be seen later on, except for inWhen the words of the clause of the Constitu- 'dictment and convictions of a crime so infamous
as to render the offender unfit to hold any office. Weygant, 14 Hun, 546; People ex rel. v. McGuire, It was in this light that this clause was framed, and 27 App. Div. 596; Throop on Pub. Of., ch. 16). In it was this power and no other that was intended to the first of these cases the language of the court is be put in the Constitution. The meaning which as follows: “It is very well settled in this country such general words had at common law was con- that the misconduct for which an officer may be tinued in the Constitution. This is in accordance removed must be found in his acts and conduct in with a settled rule of construction (Sutherland on the office from which his removal is sought, and Stat. Constr., sec. 291). To now interpret such must constitute a legal cause of removal and affect clause, so framed and intended, as conferring the the proper administration of his office.” The other unrestrained and unlimited power of removal con- cases cited are also quite as explicit. The foretended for, would be to substitute a meaning which going was of course said in respect of a general a general power of removal never had from the power of removal for cause, without any causes beginning.
being specified by law. When the
for The power of removal for neglect or misconduct removal are specified by law, the present question in office had been exercised from time immemorial, cannot arise at all. In the second case cited, in and needed to be lodged somewhere, and the people addition to laying down the general rule that mislodged it in this instance through the Constitution conduct in the office and not previous misconduct with the governor. That they should confer such is necessary to give jurisdiction for removal, the power in respect of neglect or misconduct in office court says: There is no restriction upon the was in accordance with our system of government, power of the people to elect, or the appointing its history and traditions, and established law and power to appoint, any citizen to office, notwithpractice. That they should mean to go further, and standing his previous character, habits or official extend such power to the removal of officials at the misconduct.” It has been discussed to some extent will of the governor for anything he saw fit, whether during the last twenty-five years whether in case an committed by them before or after they came into official succeed himself in office, his derelictions office, is an idea so contrary to our theory of gov- during his first term may not suffice for his removal ernment, its history and traditions, and immemorial from his second term, the two terms being deemed common law and practice, that it cannot be enter- continuous and as one term; but principle and tained since it is not expressed by the people in authority are against it, though there seems to be unmistakable words. The setting up of such an one case for it (State v. Walsh, 79 Northw. R. 369). appeal from the electors to the governor was never That case does not seem to have been much condreamed of.
sidered by the court, and the decision does not In England the common law on the subject was seem in harmony with the statute under which it clearly stated by Lord Mansfield for the court in
But the point has no application to the Rex. v. Richardson (1 Burr. 517). The sum and present case. substance of what was there laid down on that head 4. Light is shed on the true construction of the (p. 538) was that where the power of removal ex- clause of the Constitution in question by reference isted in general terms, as is the case here, the to the construction of contemporaneous statutes of particular causes for removal not being specified, the same kind and tenor. The statute preferring the power could be exercised only for offenses com- and protecting veteran soldiers and sailors mitted by the official in office, and against the appointees and employes in the public service, as it duties of his office, except for other offenses either read up to 1896, provided in the same general outside or inside of his term of office of so infamous terms that they could not be removed
except for a nature as to disqualify him for office, in which cause shown after a hearing had,” but did not case there had first to be an indictment and con- specify what causes would suffice; and it is almost viction. This latter ground of removal no longer if not quite as indefinite in its present amended exists in this State, for the reason that by provision form. A similar general provision is and has long of statute any sentence of imprisonment in a State been in the charter of the city of New York in prison ipso facto forfeits and vacates any public respect of policemen, and similar provisions exist office held by the person sentenced (Penal Code, in the charters of other cities. So far as appears sec. 707).
such statutes have been uniformly construed as In this country the decisions of courts are equally meaning acts of the incumbent after he came into clear (Speed v. Common Council, 98 Mich. 360; his office or place. If a new construction is to be The State ex rel. v. Walker, 68 Mo. Ap. 110; The established in the present case, it must be a general State ex rel. v. Com. Council, 25 N. J. L. 536; Com- one, and affect the entire civil service of the State. monwealth v. Shaver, 3 Watts & S. 338; The State The result of that would be easy to foresee. ex rel. Hart, 53 Minn. 238; The People ex rel. v. 5. Although no charges whatever against Guden
in his office were made before the governor, as has tional and void. The position of the governor is already been seen, the governor nevertheless cer- no better or different than if he had acted under tifies in his certificate of removal that such charges an unconstitutional statute. were made. The certificate is signed by the governor 7. Though this proceeding was begun to test and sealed with the seal of the State, and is as the right of Mr. Dike, the governor's appointee, follows:
to such books and papers of the office as he had Charges of malfeasance, misseasance and neg- already got possession of, he refused to await a lect of duty in office having been preferred against hearing and decision after the notice and papers Charles Guden, the sheriff of the county of Kings, herein had been served upon him, and violently by Thomas O. Piper and another of said county, broke into the sheriff's office in this court-house, and a copy of such charges having been served where the Appellate Division of the Supreme Court upon him and an opportunity given him to make for the Second Judicial Department, the seven Trial a defense thereto, and he having thereafter been Parts of the Supreme Court, and the two Trial Parts heard before me at the executive chamber, in the of the County Court sit, and seized the books and city of Albany, in person and by counsel, and the papers there, and put the incumbent out, as witnesses produced by him having been duly exam- stated and conceded on the argument. Such a lack ined; now, therefore, it appearing to my satisfaction of respect for law and order, and such lawlessness, that the usefulness of the said Charles Guden in should not be allowed to pass unnoticed in the the office of sheriff of the county of Kings is at disposition of this case, for if it should be generally an end, it is hereby ordered that the said Charles followed, established government would become Guden be and he hereby is removed from the office degraded. It is only a few weeks ago that policeof sheriff of the county of Kings."
men of this city took sides in a dispute about title This certificate is untrue in alleging that charges to office, and lawlessly pulled a city magistrate of malieasance, misfeasance and neglect of duty from the bench. If such things could be tolerated, "in office” were preferred; but the question is pre- established government could be pulled down and sented whether it must be taken as true and bind- superseded in a day. It is, however, fair to say of ing, and whether, therefore, a court may go behind Mr. Dike, who has a fine character in this comit, and look at the charges filed, in order to get the munity, that it was stated that he acted, and he truth, i. e., that charges such as are mentioned in presumably did act, under what he deemed controlsuch certificate were never preferred. If this appli- ling advice or authority. cant is foreclosed by this untrue certificate, he is In conclusion, it is found that the act of removal in evil case, indeed. But he is not in such case. of the elected sheriff by the governor was without The charges themselves may be looked into to find jurisdiction, unconstitutional and void, and that he the truth. The certificate and charges are the judg- is still sheriff. ment-roll, so to speak. If, for instance, no charges The application is granted. at all had been preferred, would this false certificate be unassailable? No authority for such a proposi
Notes of Cases tion has been suggested; and the case actually here is no different, for charges not sufficient to give jurisdiction are in fact and in law no charges at all
. walks.- In the case of Mischke v. City of Seattle,
Liability of Municipality for Obstructions in SideThe charges in this case were no more effectual to decided December 16, 1901, by the Supreme Court confer jurisdiction than charges that Guiden was or of Washington (67 Pac. Rep. 357), it is held that had been an infidel, or kept or had kept a liquor a city having the exclusive power over its streets, saloon, would have been.
escape responsibility when it authorizes 6. The decision of the Court of Appeals in the obstruction for a private purpose. Where a pedescase of Matter of Brenner, rendered since this pro- trian carrying an umbrella in front of him as a ceeding was begun, leaves no doubt of the right to protection against a storm sustained injuries by fallgo back of a certificate of appointment to office in a ing over the doors of an open hatchway in the proceeding like this, and inquire whether it be void, sidewalk, the court held that the question of whether although fair on its face. That was a proceeding
or not he was negligent was for the jury to deterlike this, and it was there held that the certificate mine. The court said, in part:
“It is insisted that the circumstances testified to of appointment of one of the parties, and the act by the appellant in this case show contributory negliunder which he was appointed, could be assailed and declared unconstitutional and void. And so in he precluded himself from seeing the open cellar
gence as a matter of law, and the argument is that this case the certificate of appointment of the gover- way by carrying his umbrella in front of him in the nor's appointee may be gone back of, and the act manner described; that it is the duty of pedestrians of the governor in making it declared unconstitu- ' upon sidewalks to keep their eyes open, and notice
where they are stepping; that when they fail to do Bearing this in mind, and taking into consideration this they cannot recover for any injury sustained all of the physical facts above recited, our conclusion by reason of any defect in the sidewalks; and that, is that the jury were warranted in finding that Tankthe facts being undisputed, no error was committed ersly was actually murdered; that the crime was by the court in granting the motion for nonsuit. But committed by Cook; that the latter told a part of it must be borne in mind that it is not sufficient to the truth as to his connection with the homicide, and justify the court in taking the case from the jury in other respects made false statements concerning that the facts be undisputed, but it must also appear the same. It is a fair and reasonable inference from that there is no room for a difference of opinion as the testimony as whole that the accused, after beatto the inferences and conclusions to be drawn from ing Tankersly until he was unconscious and unable admitted facts. Once it is understood by a juror to move about, conveyed his body into the shed that sidewalks are made for the use and travel of room, and then burned the house for the purpose of pedestrians, and that the pedestrian has a right to concealing the crime; and that he did not lay Tankassume that the city has done its duty in so main- ersly on the bed, minister to his sufferings, and then taining such sidewalk, it might not be illogical for go home with a view to procuring other means of such juror to draw the inference that no contribu- alleviating his condition. tory negligence was proven by the testimony in this “It was strenuously argued that, as Cook was
It is a matter of common observation and under no constraint to divulge anything about the experience that during storms and squalls of wind matter, he should be given credit for telling the it is frequently impossible for a person to protect whole truth. This by no means follows. No man himself without carrying an umbrella in front of can tell what a guilty conscience may impel a crimhim to such an extent that it would greatly impair inal to do. Apparently, Cook was under great menhis vision, and it seems to us that reasonable men tal constraint to tell something about the tragedy, might reasonably differ in reaching a conclusion in but in so doing the principle of self-preservation may this case as to whether or not the appellant was have restrained him from truthfully relating all that guilty of contributory negligence. It is not the duty occurred. The verdict necessarily embraced a finding of the pedestrian on a sidewalk to bear constantly that some of his statement was true and other porin mind dangers which may beset him by reason of tions of it false. It was within the province of the an imperfect sidewalk. If the rule contended for jury to thus deal with the statement, and we are by the respondent should be enforced, one would unable, after careful deliberation, to say that the not dare to turn his head to the right or to the left conclusion they reached on the whole matter was in traveling a street, but he would be compelled to not duly established by legal testimony, or that the constantly notice the sidewalk in front of him." trial judge abused his discretion in approving their
finding." Criminal Law Confessions.- In Cook v. State, decided by the Supreme Court of Georgia in February, 1902 (40 S. E. 703), it was held that a jury,
A BIRDSEYE VIEW. in passing upon a confession or an incriminating admission, may, if they see fit, accept a part thereof
The late unlamented legislature which adjourned as true and reject a part thereof as false. The court without day on March 28th, left the governor the said in part: “On the main question — Was the evidence, the customary large legacy of work upon which he is
now busily engaged. One, and a very necessary same being entirely circumstantial, sufficiently strong to show beyond a reasonable doubt, and to the part of this work, is the search for "little jokers.” exclusion of every other rational hypothesis, that After having taken a view (not necessarily a BirdsTankersly was murdered by Jack Cook? — we are
eye view) of the field, Governor Odell promptly of the opinion that it was. There were threats on the announced his purpose to knock out one “ little part of the accused indicating an intention to do joker” in the form of an appropriation of $20,000 the deceased great bodily harm. There was Cook's for the purchase of about 1,500 copies of Messrs. own free and voluntary statement to the effect that Baker, Voorhis & Co.'s edition of the Revised he did beat Tankersly almost to death, drawing Statutes, Codes and General Laws prepared by Mr. from him a considerable quantity of blood. This Clarence F. Birdseye, which was slipped into the statement was corroborated by the physical fact that supplementary supply bill in the last hurried blood was found before the house, and traced up to
moments of the session. Fortunately, the present it. The body of the deceased was found, not under the room in which was located the bed on which occupant of the executive chair is no dodger of
the responsibilities that properly devolve upon Cook said he had laid Tankersly after beating him into a state of helplessness, but amid the ruins of him, and the prompt announcement of his purpose another and distinct part of the house. It is a well- to circumvent the plan to make the State treasury settled rule of law that, in passing upon a confession pay a large profit on this law book venture shows or an incriminating admission, the jury may believe that the governor is far above and beyond the cona portion of the same and reject the balance as false.'taminating touch of even an octopus.
THE VERDICT OF THE LADIES.
millions of dollars. In the work before us the au
thor has conscientiously sought to cover all forms (Minister Wu says that women should be tried of compensated suretyship, such as official and prionly by juries composed of their own sex.)
vate fidelity bonds, building bonds, court bonds, The ladies of the jury
and credit and title insurance. Mr. Frost brought Gazed at the fair defendant;
to his difficult task not only a clear and well-trained She saw their happy faces -
mind, but a large experience covering a long period Her hopes took the ascendant.
of years with litigation involving contracts of guarThe witnesses were talking;
anty insurance. He has studied the decisions careThe lawyers were objecting;
fully, and has in the main succeeded in admirably A very pleasant verdict
deducing the rules and principles which make the The lady was expecting.
law as it is to-day. The book cannot fail to meet The judge advised the jury
a real want; it seems to us one of the few treatises About the testimony
of the present day for which there is not merely a The judge was rather chipper,
reasonable excuse, but a sure place. The book is And dapper-like and tony.
printed in the best style of the University Press The jury and the bailiff
and bound in the best law sheep.
The Negotiable Instruments Law. By John J.
Crawford, of the New York Bar. New York: “Did you see lier old jacket ? ”
Baker, Voorhis & Co., 1902. “Well, such a dowdy bonnet !”
This is the second edition of Mr. Crawford's “Her collarette had ‘bargain'
excellent little work. It contains the full text of And 'out-of-date' upon it."
the law as enacted, together with copious annota“Silk petticoat? It wasn't!
tions. These are not merely a digest and compilaIt's merely imitation!”
tion of cases, but indicate the decisions and other “Her cheeks are badly painted
sources from which the various provisions the Look like a conflagration!”
statute were drawn. They will be found a very "And that one ostrich feather!
valuable aid to an intelligent understanding of this Now, didn't it look wilty?”
very important statute. In this second edition the The twelve then said in chorus:
notes have been amplified and citations to all the “Of course she must be guilty !”
decisions in all the States wherein the law has been Then back into the court room
enacted — some fourteen or fifteen in all, we beThey went and then suggested They'd like to know the charges
lieve - have been added. This edition also conOn which she was arrested.
tains citations to all the reported cases which have – Josh Wink, in Baltimore American.
arisen under the act.
The Mastery of the Pacific. By Archibald R. New Books and New Editions. Colquhoun. New York: The Macmillan Com
pany, 1902. A Treatise on Guaranty Insurance. By Thomas The author of “ China in Transformation” has
Gold Frost, Ph. D., of the New York Bar. here given us the results of several years close Boston: Little, Brown & Co., 1902.
study of the great game that has been going on for This may perhaps be properly called a "pioneer" many years in which the stakes players are the leadtreatise on a very important branch of the law. Its ing nations of the world, and the stakes the object is to present both the theory and practice tery of the Pacific.” It is a curious feature of the of all the various branches of guaranty insurance new world politics that, at the beginning of the law, which may be said to have had its entire new century, the young powers of the world have development within the past quarter of a century. demonstrated their ascendency by their action in the and chiefly within the past ten years. Before 1840 east. Mr. Colquhoun points out that of the counthere were no companies organized for protection tries concerned, Australia is the youngest, Russia against loss by the dishonesty of employes, even in the oldest - as a world power she is but some two England, and before 1880 none in this country. centuries old. England, the old Titan past his Now there are more than forty large companies. prime, feeling the beginning of a decline after a having general offices in this country with agencies century of supremacy, no longer leads in the Orient. in all of the cities and towns of any prominence, The alliance with Japan is already regarded with and doing a business amounting to hundreds of doubt by many of her serious thinkers, and other