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became, naturally and plainly, as much a part of the fact whether the $1,200 was to be regarded as a recompensation to the justice as though his salary, imbursement of expenses or an increase of salary. eo nomine, had been increased to compensate him This court held to the latter view — the $1,200 was further for what his office entailed upon him in the treated as a salary, because the amount could no way of duties and work.

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.

was entitled absolutely, without regard to his incurring In my belief, that all we can devise from language, expenses." and by reasoning from cause to effect, the intention In view of these decisions, it is the duty of the of the legislature was to make a permanent addition comptroller to refuse to audit these amounts. to the stated salary, which should be beyond the I am informed that many of the justices refuse to power of subsequent legislatures to affect. The receive the amount awarded, believing the acts are law operated to increase the fixed compensation of obnoxious to the Constitution. the justices, while withdrawing any compensation When they accepted the office at $7,200, each measured and determined by time occupied. Under knew the extent of his judicial district and the probthe old system of a per diem allowance of five dol- able expense each year. lars, of course, the amounts received by the various Why not give each justice every year $10,000 for justices must have varied materially, in accordance a little vacation on the "continent?” with the necessity for travel in the different judicial

A. A. WHITE. districts.

BINGHAMTON, July 4, 1902. 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,

POWER OF GOVERNOR TO REMOVE

COUNTY OFFICERS. the amount of the grant would have been granted accordingly.

Instead, however, the legislature increased the In the Matter of the Application of CHARLES GUDEN, salary or compensation by adding to it a further fixed as Sheriff of the County of Kings, Appellant, v. sum in commutation of all expenses and demands.

NORMAN S. Dike, Respondent. By way of illustrating more forcibly, we see in the annual report of the comptroller to the legis

NEW YORK COURT OF APPEALS. lature in 1872 (Assembly Documents, Vol. I, p. 44)

(Decided June 20, 1902.) 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, Benjamin F. Tracy, for appellant; G. D. B. Hasvaried in amounts for each judicial district, ranging brouck for respondent, from $1,370 for the fourth, to $3,030 for the seventh. PARKER, Ch. J.- There resides in the people of

By the amendment of 1872 there was granted to this and every State an absolute and uncontrolled the justices in each of these districts the fixed aggre- power to prescribe rules of action, through legislagate sum of $4,800.

tion, to enforce rules of action and to transact This ought to show pretty conclusively that the generally the affairs of government, through execulegislative grant had no relation to a purpose of tive acts, and to determine controversies between, merely reimbursing expenses of the justices. enforce rights belonging to, and redress wrongs

The words “in lieu of all expenses now allowed done to, citizens of the State through the courts. by law,” in the act of 1872, indicate that that allow- This power of the people is absolute and unconance was superceded, and that it could no longer trolled, except as the people themselves have be claimed in addition to the increased compensa- sought to restrain it either by the Constitution of the tion. The logic of the thing must lead us to sup- United States or by the Constitution of the particupose that the legislature intended, by passing the lar State in which the act is done, the rule adopted, act of 1872, to change the whole system, and, instead or the judgment pronounced. (Cooley on Constiof paying the varying expenses of the justices, to tutional Limitations, 205.) substitute a larger salary or compensation to cover all These powers the people of this State have by a services and all expenses."

written Constitution separated, and distributed In the case of Gilbert v. Supervisors, etc. (136 among the three departments of government created N. Y. 185) Judge O'Brien says: “When the by it - the executive, legislative and judicial amendment of 1880 was adopted the word compensa- carefully enumerating the powers and defining their tion had been in the judiciary article for ten years, limits. And the Constitution must be so construed and was understood to mean the salary of the judge, as to preserve rather than to destroy the powers of as such, and the allowance for expenses."

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:

ferred by the people. "The answer to this question depends upon the i In this country the power of removal is an execu

one.

tive power, and in this State it has been vested in “Mr. Kent (Chancellor Kent) was opposed to the the governor by the people. (Constitution, art. IV, proposition on the ground that it might be expe§ 1.) The Constitution further specifically pro- dient for the governor to remove sheriffs without vides - and has since 1821 in effect, and since 1846 assigning his reasons. * The governor was in precisely the same words that “the governor the great sheriff of the State, and the sheriffs should may remove any officer, in this section mentioned be considered in the light of deputies. (sheriffs, clerks of counties, district attorneys and “Mr. Spencer (Chief Judge Spencer) approved of registers in counties having registers), within the the proposition. No officer should be removed for term for which he shall have been elected; giving arbitrary cause, nor without good reasons.” to such officer a copy of the charges against him, Mr. Root was not in favor of yielding the repuand an opportunity of being heard in his defense.” tation of his fellow citizens to the delicacy of the (Art. X, § 1.)

executive." It does not require argument to persuade the Mr. Tompkins voiced the sentiment which finally mind that the power thus conferred is executive, prevailed when he said, “If this clause is rejected not judicial, and that it was intended to be vested a sheriff may be displaced in secret without cause exclusively in the governor.

assigned, which may be merely a political one." If the intent of the framers of the Constitution (Clark's Debates of the Constitutional Convention were not plainly apparent from the language of the of 1821, pp. 195, 196.) clause, all doubt would be removed by an examina- The advantage of notice of charges and opportion of the debates of the constitutional conventions tunity to be heard was apparently regarded as restof 1821 and 1846.

ing in the publicity which would result, enabling the Prior to the Constitution of 1821 the office of people to judge of the necessity or propriety of a sheriff had not been an elective but an appointive removal. Such publicity would ordinarily prove a

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 upon a man holding the commanding position of governor and one member from each of the four governor of a State. great senate districts of the State. The manner in In the constitutional convention of 1846 the secwhich this power was exercised became the subject tion of the proposed Constitution relating to elecof such grave abuse that the convention of 1821 set tion and removal of sheriffs and other county about accomplishing a needed correction. The final officers being before the convention, Mr. Van result was that the electors of the several counties Schoonhoven moved to so amend it as “to provide were authorized to choose the sheriffs by ballot, that the removal should be made by and with the and upon the governor was conferred the power of advice and consent of the board of supervisors of removal in language substantially like that in exist- the county in which said officer may reside." ence in the Constitution of to-day.

“This,” he said, “would give the officers against An examination of the debates of that convention whom charges were preferred an opportunity to be seems to indicate that the propriety of vesting the tried by their peers.” power of removal in the governor was not ques- “Mr. Angel said the governor had already the tioned. A difference of opinion did prevail as to the power to remove sheriffs, etc., and he had not heard advisability of requiring notice and an opportunity that there was any complaint against that power, to be heard before removal.

which had not been very frequently exercised. Mr. Van Ness was not in favor of the governor's “Mr. Stow hoped if the amendment prevailed, it calling the officer before him to answer to com- would not be imposed upon the governor to see plaints or charges, or of assigning his reasons for that the laws were faithfully executed. His powers such removal. There might be reasons of a delicate had already been so restricted that he could not do nature, such as moral disqualifications, to occasion much more than look on and wish that the govsuch removal. And with this power of removal in ernment might do well. He could see no good the executive, he was less opposed to the election of reason for a change of the present Constitution in sheriffs and clerks by the people.”

this respect. " Mr. Root wished the cause of removal might “ Mr. Rhoades concurred in this view of the quesbe known and assigned. He was no friend to tion. Nothing certainly could be more proper and gubernatorial delicacy. We had seen too much necessary than that the chief executive should have of it already."

this control over the subordinate executive officers The proposition was then divided into two parts. of the counties.

“ The question on the first part, relating to the "Mr. Van Schoonhoven replied to Mr. Stow sayremoval of sheriffs, was taken and carried.

ing, that if the governor had nothing else to do, he “ The question was then stated to be on the might employ himself in this way, for that reason. second part of the proposition, requiring the gov- His objection was to giving any one officer absolute ernor to assign reasons for such removal, and to power to remove another. give to the sheriff an opportunity of appearing in * Mr. Patterson had never felt any danger from his own defense.

this provision, and he did not believe any governor

66

of this State would descend to the exercise of this sheriff of Kings county, in which one has been power for mere partisan motives. He knew that in upheld by the Special Term of the Supreme Court, one instance it had been exercised with great and the other by the Appellate Division thereof propriety.

causing in the meantime, necessarily, great em“Mr. Bascom suggested that the power of removal barrassment and delay in the administration of the might be properly transferred to the Supreme criminal business of the county. And so it might Court. These officers might then be tried by a happen in other cases, had the judiciary the power tribunal very capable of deciding whether they had to review executive acts of removal. Hence, in committed anything worthy of removal. He would their wisdom, the framers of the Constitution put be tried at home, too, while if the governor was to the public interests in the foreground, and provided decide there must be the expense of a journey to a simple and prompt method of removal of county the capital. There was no danger in leaving this executive officers by the governor of the State. power where it was, though it would result in some Of the manner in which that power has been inconvenience and expense to the party dealt with. exercised there has been but little complaint in the

“Mr. Simons insisted that it would not do to more than eighty years that have passed since the sever the chief executive from the subordinate power was first granted. Delegate Becker, of the executive officers of counties. There might be occa- constitutional convention of 1894, seems to have sion for the prompt exercise of this power of been of the opinion that the governor should not removal — pervading excitement which would have an absolute and unconditional power of admit of no delay in the removal of the officer. removal that might be exercised without a sufficient

The amendment was lost." (N. Y. Cons. Con. reason, and so he proposed in due form an amendDeb. 1846 (Croswell & Sutton Argus Ed.], p. 770.) ment to the section of the Constitution under con

The suggestion of Delegate Bascom that the sideration, which should insert therein after the power of removal be transferred to the Supreme word "remove" the words "for good cause Court seems not to have been welcomed by the shown,” but the proposed amendment was rejected, convention, and one of the reasons may undoubtedly and without debate, so far as the record discloses. be found in the remarks of the next speaker, who But had there been large complaint concerning most emphatically asserted that it would never do the exercise of the power the method of removal to sever the chief executive from the subordinate imbedded in the Constitution must govern until the executive officers, for there might be occasion for people change it. It authorizes the governor to the prompt removal of an officer that would admit remove, as we have seen, after "giving to such of no delay.

officer a copy of the charges against him and an Mr. Simons' speech closed the debate and the opportunity of being heard in his defense,” and an rejection of the amendment settled the question in examination of the record discloses that such favor of the governor's right to exercise this execu- requirements of the Constitution were ully comtive power without hindrance even from the local plied with in this case. board of supervisors. And there it must remain if Therefore, we do not examine into the merits, the judicial department of the State government is for they do not concern the courts, inasmuch as to enforce the principle underlying, as well as the both the power to decide whether Guden should mandates of the Constitution apportioning the be removed from the office of sheriff, and the powers of government into three departments and responsibility for a right decision, rests solely upon making each department supreme in the perform the governor of the State. ance of the duties committed to it.

The order should be affirmed, with costs. The suggestion that, if the courts do not interfere, O'BRIEN, J.- I concur with Chief Judge Parker some chief executive may proceed in disregard of in the result. My conclusion, however, is based those principles which courts of impeachment have upon grounds somewhat different from those stated established, should not be given weight, for the in his opinion, and, briefly, my reasons are these: ability to act quickly in the removal of administra- It is provided in section one of article ten of the tive officers and clerks is as important in the con- Constitution that “The Governor may remove any duct of government as in the management of a officer, in this section mentioned, within the term gigantic corporation or large individual enterprise. for which he shall have been elected; giving to The attempt to safe-guard the rights of the official, such officer a copy of the charges against him, and or the clerk, should not be carried to such an extent an opportunity of being heard in his defense." as to override the interests of the public, for the The officers mentioned in the section are sheriffs, public business is of paramount importance. It is clerks of counties, district attorneys and registers better that occasionally a mistake should be made in in counties having registers. The power of removal the removal of an officer than that the public busi- is here given with the limitation that it shall be ness should be seriously interfered with — as it was, made upon charges only, a copy of which is to be for instance, in this case by a controversy over the served upon the officer and an opportunity given to title of an office, which has resulted in the assump- him to be heard in his defense. Inasmuch as the tion by two men of the rights, powers and duties of accused officer is entitled to make a defense and be heard in his own behalf before the removal can be ment of the evidence of the fact, rather than the ordered, the proceeding is judicial in nature and fact itself, but the executive had the power to entercharacter. Any proceeding in which a party is en- tain this charge, although it was not formulated titled to make a defense and to be heard necessarily according to the technical rules of pleading. involves a judicial inquiry. It is admitted on all It was not necessary that the order of removal sides that before a removal can be made the gover- should specify the particular acts for which the nor must acquire jurisdiction. There must be a removal was made. The order necessarily includes charge of some official misconduct on the part of all acts embraced in the charges and covered by the the officer and he must have been served with a proofs just as the general verdict of a jury includes copy of the charge and given an opportunity to be all the facts comprehended in the issue submitted, heard. A mere statement, in writing, of some act and the validity of the judgment indicated by the or omission on the part of the officer, that in no order of removal is not affected by the circumstance sense can constitute misconduct, would not be a that the executive, instead of specifying the particucharge within the meaning of this provision of the lar acts of misconduct of which the sheriff was Constitution. It is not necessary that the charge charged and found guilty, expressed his reasons in be stated with all the precision of a pleading in a milder form, namely, that it appeared to his satiscourt of law or equity. The governor has power to faction that the usefulness of Guden in the office of prescribe his own rules of procedure and determine sheriff of the county is at an end and that he be whether the charge is sufficiently specific or other removed from the office. wise, but there must be some act or omission on

GRAY, HAIGHT, VANN, CULLEN and WERNER, JJ. the part of the officer stated in the papers, which (O'BRIEN, J., in result in memorandum) concur amounts to official misconduct, and when such a with Parker, Ch. J. paper is presented to the governor he acquires jurisdiction of the person of the officer and of the

Order affirmed. subject-matter of the charge. For any error of law or of fact that he may commit in the progress of

THE RIGHT TO HOLD OFFICE AS AFFECTED the investigation there is no power of review in the

BY THE RECEIPT OF A PENSION. 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 neces

PRICE v. John McGaw WOODBURY ET AL. sarily implies the right to examine into the nature and character of the charge, in order to see whether

New YORK SUPREME COURT, TRIAL Term, it is in any proper sense a charge at all within the

PART II. meaning of the Constitution.

In my opinion the charges in this case sufficient to confer jurisdiction upon the governor.

Opinion of Judge LEVENTRITT, June 3, 1902. In one of the charges presented to him and which

George L. Rives, Theodore Connoly, for respondappears in the record it is, in substance, alleged ent; Roger Foster, attorney for petitioner. that the sheriff abdicated his powers and duties with respect to the appointment of his subordinates

People ex rel. Price v. Woodbury, Commissioner, to an irresponsible body of men called a patronage etc.- This is an application for a peremptory writ committee. That is to say, he entered into an

of mandamus requiring the defendants to reinstate agreement with this committee to make such ap- the relator as section foreman in the department of pointinents of subordinates as it determined upon,

street cleaning. For a period of twenty years prior and that a list of forty persons was furnished to

to May 25, 1894, the relator was a member of the him by this committee to be appointed as his sub- police force of this city; on that date he was, purordinates and that he appointed them. The

suant to chapter 375 of the Laws of 1888, retired appointment of these persons, under such circum

on his own application and became entitled to a stances, was an official act relating to the powers pension, which was fixed at $650 per annum by the and duties of his office. The charge, in substance,

police commissioners. Thereafter he became an is that the sheriff farmed out to an outside irre-employe of the street cleaning department, and on sponsible political body the performance of duties December 31, 1901, he held the position of section which devolved upon himself. It is true that the foreman at an annual salary of $1,200, On Decemform in which this charge is stated is not accord-ber 31, 1901, the relator received the following ing to the strict rules of pleading. The statement

letter: is that the sheriff testified to all these facts in a “Sir.- On the ground that you are now in the certain examination or proceeding before a judicial receipt of a pension from the city of New York, I officer, but it was perfectly competent for the gov- declare your position as section foreman of this ernor to treat the charge as a distinct averment of department forfeited by section 1560 of the Greater the truth of the facts stated by the sheriff in his New York charter, and I, therefore, dismiss you examination. The form of the charge is a state- from the service of this department for the above

were

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

and provisions of the system” (Barker v. People, "Respectfully,

3 Cow. 286, 303). “The right to hold public office “P. E. NAGLE,

under our political system is an implied attribute

Commissioner." 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 be 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 I, 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 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

*

cases.

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