• wain Lib. LIBRARY OF THE University of California. Class SELECTED CASES ON THE LAW OF OFFICERS INCLUDING EXTRAORDINARY LEGAL REMEDIES EDITED BY FRANK J. GOODNOW, Eaton pRorsssoR of Admimistrativb Law and MnmciFAit SCIKMCE IN COI.UMBIA UnIVKRSITT. CHICAGO CALLAGHAN & COMPANY 1906 0,0 C!OPYBIOHT 1906 BT CALLAGHAN & COMPANY M. H. VB8TAL BOOK OOMPOSITIOn OHIOAQO PREFACE. The collection of cases on the Law of Officers which is herewith offered to the public, the editor hopes will fill a gap in the course of instruction in those law schools which have adopted in principle the case method of instruction, and which desire to devote some at- tention to this important subject. While complete in itself this collection is a part — a greater part it is true — of a collection on the general subject of Administrative Law. References have therefore been made in the foot notes ap- pended to specific cases, to cases which have been set forth in ex- tenso in the other part devoted to the ** Organization of the Ad- ministrative Authorities. ' * As the sub-title indicates, special attention has been given to the Extraordinary Legal Remedies, which are of course the most im- portant means through which the courts hold purely administra- tive officers up to their duties as set forth in the law. In those law schools in which no special course is given for the study of this subject this collection may serve the double purpose of offering a means for the study by the case method of the extraordinary reme- dies as well as the general law of officers. The instructor will find it profitable, however, from this point of view, to supplement the cases selected by considerable oral exposition in reference to other cases setting forth the law in its details. The editor cannot close these prefatory remarks without ac- knowledging his great indebtedness to Professor Floyd R. Mechem of the University of Chicago, whose admirable treatise on Officers has been of the greatest service to him. The order adopted by Professor Mechem has in most cases been the order in which the cases selected have been arranged. The editor thinks that those who may do him the honor of choosing this collection for their class-room work will find it of the greatest value to recommend to their students the reading of Professor Mechem 's work in connec- tion with their case work. Acknowledgement is also due to Pro- fessor Ernst Freund of the University of Chicago for according to the editor the opportunity to examine a collection of cases on ** Ad- ministrative Law" from which a number of cases have been ^^^®^*^^- Frank J. Goodnow. Columbia University, May, 1906. iii 228435 TABLE OF CONTENTS CHAPTER I. OFFICES AND OFFICERS. PAGE I. What is an Office? 1 Hall V. Wisconsin, 103 United States 5. Butler V. Pennsylvania, 10 Howard (U. S.) 402. Olrastead v. Mayor, 42 Superior .Court (N. Y.) 481. Brown v. Turner, 70 North Carolina 93. United States v. Germaine, 99 United States 508. II. Legislative Control of Offices. 17 Overshiner v. The State, 156 Indiana 187. Indianapolis Brewing Company v. Claypool, 149 Indiana 193. Koch v. Mayor, &c., 152 New York 72. CHAPTER II. THE FORMATION OF THE OFFICIAL RELATION. 1. The Law of Elections. 1. The Bight to Vote. 27 Kinneen v. Wells, 144 Massachusetts 497. Rogers v. Jacobs, 88 Kentucky 502. Attorney General v. Common Council, 78 Michigan 545, Maynard v. Board, 84 Michigan 228. Hanna v. Young, 84 Maryland 179. 2. Power of the Legislature to Regulate the Right to Vote. 49 Ransom v. Black, 54 New Jersey Law 446. 3. Construction of Election Regulations. 56 Boyd V. Mills, 53 Kansas 594. Page V. Kuykendall, 161 Illinois 319. 4. Powers of Boards of Canvassers. 62 People V. Van Cleve, 1 Michigan 362. Hadley v. The Mayor, 33 New York, 603. Lewis V. Commissioners, 16 Kansas 102. V VI TABLE OP CONTENTS. PAOK 5, What Constitutes an Election. 67 People V. Clute, 50 New York 451. 6. Nominations to Office. 72 Stephenson v. Board, 118 Michigan 396. People V. Democratic Committee, 164 New York 335. IL The Law op Appointment. 1. Nature of the Power to Appoint. 84 People V. Mosher, 163 New York 32. State V. Peelle, 124 Indiana 515. 2. How Exercised. 94 People V. Murray, 70 New York 521. 3. When Exercised. 98 Marbury v. Madison, 1 Cranch (U. S.) 137. State V. Crawford, 28 Florida 441. 4. Power to Fill Vac/incies. 121 Pritts V. Kuhl, 51 New Jersey Law 191. People V. Ward, 107 California 236. III. Acceptance op Office and Qualification. 1. Obligation to Accept. 131 People V. Williams, 145 Illinois 573. 2. How Acceptance is Manifested. 134 State V. Supervisors, '21 Wisconsin 282. Speed V. Detroit, 97 Michigan 198. CHAPTER III. DE FACTO OFFICERS. I. Intruders. 141 State V. Taylor, 108 North Carolina 196. II. Who Are De Facto Officers T 144 State V. Carroll, 38 Connecticut 449. Oliver v. Mayor, 63 New Jersey Law 634. Nofire V. United States, 164 United States 657. McCfthon V. Commissioners, 8 Kansas 437. State V. Gardner, 54 Ohio St. 24. Harvey v. Philbrick, 49 New Jersey Law 374. TABLE OP CONTENTS. Vll PAGE III. Powers and Rights. 167 People V. Weber, 89 Illinois 347. Romero v. United States, 24 Court of Claims 331. Dolan V. Mayor, 68 New York 274. Nichols vs MacLean, 101 New York 526. State V. Dierberger, 90 Missouri 369. Boone County v. 'Jones, 54 Iowa 699. CHAPTER IV. QUALIFICATIONS FOR OFFICE. 1. Power op the Legislature to Providb Quaupications. 1. In General. 184 Bradley v. Clark, 133 California 196. 2. Property and Educational. 186 State V. McAllister, 38 West Virginia 485. Brown v. Russell, 166 Massachusetts 14. In re Wortman, 22 Abb. New Cases (N. Y.) 137. 3. Political. 199 Attorney General v. Common Council, 58 Michigan 213. Rogers v. Common Council, 123 New York 173. II. When Quaupications Must be Present. 208 Smith V. Moore, 90 Indiana 294. III. DiSQUALIPICATION. 215 Attorney General v. Marston, 66 New Hampshire 485. People V. Green, 58 New York 295. Attorney General v. Common Council, 112 Michigan 145. De Turk v. Commonwealth, 129 Pa. St. 151. Gray v. Seitz, 162 Indiana 1. CHAPTER V. TERMINATION OF THE OFFICIAL RELATION. 1. Expiration of Term 233 People V. Palmer, 154 New York 133. People V. Palmer, 52 New York 83. Kreidler v. State, 24 Ohio St. 22. State V. Bulkeley, 61 Connecticut 287. Tiii TABLE OP CONTENTS. PAOB II. Resignation. 244 Badger v. United States, 93 United States 599. State V. Ferguson, 31 New Jersey Law 107. Reiter v. State, 51 Ohio State 74. Wardlaw v. Mayor, 137 New York 194. Ill, Removal from Office. 1. Power of Legislature. 253 Attorney General v. Jochim, 99 Michigan 358. 2. In Absence of Legislative Provision. 261 State V. Chatburn, 63 Iowa 659. Ex parte Lehman, 60 Mississippi 967. State V. Savage, 89 Alabama 1. 3, Incident to Power of Appointment. ^68 Ex parte Hennen, 13 Peters 230. 4. Removal for Cause. J 273 In the matter of Guden, 171 New York 529. State V. Kenelly, 75 Connecticut 704. 5. Power of Suspension. 281 Gregory v. Mayor, 113 New York 416. State V. Megaarden, 85 Minnesota 41. IV. Impeachment. 287 Trial of Andrew Johnson in Senate of United States 1868. Opinion of the Justices, 167 Massachusetts 599. State V. Hillyer, 2 Kansas 17, In re Executive Communication, 14 Florida 289. State V. O'Driscoll, 2 Treadway (S. C.) 713. . CHAPTER VI. COMPENSATION OF OFFICERS. I. Not Based on Contract. 305 White V, Inhabitants of Levant, 78 Maine 568, County of Ijancaster v. Fulton, 128 Pa. St. 48. Converse v. United States, 21 Howard (U. S.) 463. United States v, Saunders, 120 United States 126. United States v. Flanders, 112 United States 88. II. Rei.ation to Work Done. 815 Locke V, Central, 4 California 65. TABLE OF CONTENTS. ix PAGE Fitzsimmons v. Brooklyn, 102 New York 536. O'Leary v. Board, 93 New York 1. III. Change of Compensation. 322 Kehn v. State, 93 New York 291. United States v, Langston, 118 United States 389. Fiak V. Jefferson Police Jury, 116 United States 131. IV. Assignment of Compensation. 330 Bliss V. Lawrence, 58 New York 442. Buchanan v. Alexander, 4 Howard (U. S.) 20. V. Pensions. 334 Pennie v. Reis, 132 United States 464. Commonwealth v. Walton, 182 Penn. St. 373. In the Matter of Mahon, 171 New York 263. State V. Rogers, 87 Minnesota 130. CHAPTER VII. THE EXERCISE OF OFFICIAL AUTHORITY. 1. General Prerequisites of Valid Action. 1. Territorial Jurisdiction. 349 Page V. Staples, 13 Rhode Island 306. 2. Disqualification on Account of Personal Interest. 350 Goodyear v. Brown, 155 Penn. St. 514. Moses V. Julian, 45 New Hampshire 52. 3. Mandatory and Discretionary Duties. 359 French v. Edwards, 13 Wallace 506. Supervisors v. United States, 4 Wallace 435. Mullnix V. Mutual Life Insurance Co., 23 Colorado 71. State V. Mayor of Paterson, 34 New Jersey Law 163. 4. Majority Necessary for Valid Action. 368 Rushville Gas Co. v, Rushville, 121 Indiana 206. McCortle v. Bates, 29 Ohio State 419. II. Powers of Oppicfrs. A. The Power op Ordinance. 1. Basis of Power. 373 Morris v. Columbus, 102 Georgia 792. Evansville v. Miller, 146 Indiana 613. X TABLE OP CONTENTS. PAOK 2. Control of Courts. 382 Clinton v. Phillips, 58 Illinois 102. Matter of Ah You, 88 California 99. Chicago V. Quimby, 38 Illinois 274. B. Special Acts op Individual Appucation. 1. Exercise of Judicial Powers. 387 Langenberg v. Decker, 131 Indiana 471. Interstate Commerce Commission v. Brimson, 154 United States 447. 2. Notice to Persons Affected. 399 Stuart V. Pahner, 74 New York 183. Chicago, &c., Railway v. Minnesota, 134 United States 418 Health Department v. Trinity Church, 145 New York 32. 3. Unrestrained Discretion. 416 Wilson V. Eureka City, 173 United States 32. ' Illinois State Board, etc., v. People, 123 Illinois 227. ■'Tick Wo V. Hopkins, 118 United States 356. 4. Construction of Powers. 434 People V. N. Y., L. E. & W. R. R. Co., 104 New York 58. 5. Conclusiveness of Administrative Determinations. 438 ^ Hilton V. Merritt, 110 United States 97. Bell V. Pierce, 51 New York 12. Metropolitan Board, &c., v. Heister, 37 New York 661. Raymond v. Fish, 51 Connecticut 80. Mygatt V. Washburn, 15 New York 316. C. Enforcement op the Law. 1. Judicial Process. 465 Barclay v. Commonwealth, 25 Pa. St. 503. City of Salem v. Eastern R. R. Co., 98 Massachusetts 431. City of Taunton v. Taylor, 116 Massachusetts 254. 2. Summary Administrative Proceedings. 466 Murray's Lessee v. Hoboken, &c., Co., 18 How. (U. S.) 272. Commonwealth v. Byrne, 20 Gratton 165. Bergen v. Clarkson, 6 N. J. L. 428. Orlando v. Pragg, 31 Florida 111. Lawton v. Steele, 119 New York 226. Lawton v. Steele, 152 United States 133. Fields V. Stokely, 99 Pa. St. 306. TABLE OP CONTENTS. XI CHAPTER VIII. LIABILITY OP GOVERNMENT FOR ACTS OF OFFICERS. PAGE I. At Common Law. 491 The Siren, 7 Wallace 152. II. By Statute. 495 Dooley v. United States, 182 United States 222. Lewis V. State, 96 New York 71. The Floyd Acceptances, 7 Wallace 666. III. As A Result op Suits Against Officers. 505 United State v. Lee, 106 United States 196. IV. Liability op State to Action in United States Courts. 513 New Hampshire v. Louisiana, 108 United States 76. V. Liabdjity op Local Corporations. 617 County of Lancaster v. Fulton, 128 Penn. St. 48. 306 Dolan V. Mayor, 68 New York 274. 171 Fitzsimmons v. Brooklyn, 102 New York 536. 317 Gregory v. Mayor, 113 New York 416. 281 Koch V. Mayor, 152 New York 72. 24 O'Leary v. Board^ 93 New York 1. 319 White V. Levant, 78 Maine 568. 305 CHAPTER IX. LIABILITY OF OFFICERS. I. Criminaij Liability. 618 Commonwealth v. Coyle, 160 Pa. St. 36. II. Civil Liability. A. On Contract. 1. Personal Liability. 520 Brown v. Bradlee, 156 Massachusetts 28. McCurdy v. Rogers, 21 Wisconsin 199. 2. Contracts Relative to Offices. 524 Robertson v. Robinson, 65 Alabama 610. Stout V. Ennis, 28 Kansas 706. XU TABLE OP CONTENTS. PAGE B. In Tort. 1. For Duties Owed Only to Public. 831 South V. Maryland, 18 How. (U. S.) 396. 2. Liability of Officers Not Ministerial. 534 Bradley v. Fisher, 13 Wall. 335. Spalding v. Vilas, 161 U. S. 483. Jones V. Loving, 55 Mississippi 109. Coffin V. Coffin, 4 Massachusetts 1. Goodwin v. Guild, 94 Tennessee 486. 3. Liability of Ministerial Officers. 547 Tracy v. Swartwout, 10 Peters 80. Grider v. Tally, 77 Alabama 422. Erskine v. Hohnbaeh, 14 Wall, 613. Commonwealth v. Shortall, 206 Pa. St. 165. 4. Liability for Acts of Subordinates, 562 Robertson v. Sichel, 127 United States 507. Robinson v. Rohr, 73 Wisconsin 436. 5. Liability to Third Persons on Official Bond. 569 People V. Schuyler, 4 New York 173. C. Liability of Opficeks to Government. 578 People V. Johr, 22 Michigan 461 Stephens v. Crawford, 1 Georgia 574. Chicago V. Gage, 95 Illinois 593. United States v. Thomas, 15 Wall. 337. CHAPTER X. THE MANDAMUS. I. Character op Duty Whose Performance Will Be En- forced. 603 State V. Whitesides, 30 South Carolina 579. II. Ministerial and Discretionary Duties. 605 State V. Wilson, 123 Alabama 259. Ex parte Hum, 92 Alabama 102. III. Acts Impossible of Performance. 612 County Commissioners v. Jacksonville, 36 Florida 196. Wampler v. State, 148 Indiana 557. TABLE OF CONTENTS. Xlll PAGE rV. Demand and Refusal. 617 State V. Railway Co., 19 Washington 518. V. Effect of Change in Office. 619 Murphy v. Utter, 186 United States 95. VI. Courts Having Jurisdiction. 622 Kendall v. United States, 12 Peters 524. CHAPTER XI. THE PROHIBITION. I. Power Subject to the Writ. 629 People V. Supervisors, 1 Hill (N. Y.) 195. Speed V. Common Council, 98 Michigan 360. II. Is A Preventive Remedy. 632 United States v. Hoffman, 4 Wallace 158. Ill, Corrects Only Excess of Jurisdiction. 634 Appo V. People, 20 New York 531. IV. Discretion of Court 635 People V. Westbrook, 89 New York 152. CHAPTER XII. THE INJUNCTION. I. An Equitable Not a Legal Remedy. 638 Dows V. Chicago, 11 Wallace 108. Sage V. Fifield, 68 Wisconsin 546. II. Discretionary Acts. 641 Harrison v. New Orleans, 33 Louisiana Annual 222. Davis V. Mayor, 1 Duer (N. Y.) 451. Bristol Door & Lumber Co. v. Bristol, 97 Virginia 304. III. Who May Apply. 646 Crampton v. Zabriskie, 101 United States 601 CHAPTER XIIL THE CERTIORARI. I. Character of Act Reviewable. 649 Davis v. County Commissioners, 153 Massachusetts 218. People V. Board, 140 New York 1, XIT TABLE OF CONTENTS. PACK II. Discretion op Court. 655 People V. Police Commissioners, 82 New York 506. III. What Is Reviewable? 656 People V. French, 110 New York 494. IV. Courts Having Jurisdiction. 659 Ex parte Vallandigham, 1 Wallace 243. CHAPTER XIV. Quo Warranto. 663 People V. Londoner, 13 Colorado 303. State V. Humphries, 74 Texas 466. CHAPTER XV. HABEAS CORPUS. I. Physical Restraint. 670 Wales V. Whitney, 114 United States 564. II. Judgments of Courts. 675 Ex parte Watkins, 3 Peters 192. III. Excess op Jurisdiction. 678 Ex parte Reed, 100 United States 13. Ex parte Siebold, 100 United States 371. People V. Liscomb, 60 New York 559. IV. Committing Magistrates. 687 /« re Martin, 5 Blatchford (C. C. R.) 303. V. Courts Having Jurisdiction. 691 Ex parte Barry, 2 How. (U. S.) 65. In re Neagle, 135 United States 1. Ableman v. Booth, 21 How. (U. S.) 506. TABLE OF CASES REPORTED [REFEBENCES ABE TO PAGES.] Ableman v. Booth, 21 How. (U. S.) 506 694 Ah You, In re, 88 California 99; 25 Pac. 974; 22 Am. St Rep. 280; 11 L. R. A. 408 883 Appo V. People, 20 New York 531 634 Attorney General v. Common Council, 58 Michigan 213; 24 N. W. Rep. 887; 55 Am. Rep. 675 199 V. Common Council, 78 Michigan 545; 44 N. W. Rep. 388; 18 Am. St Rep. 458; 7 L. R. A. 99 33 V. Common Council, 112 Michigan 145; 70 N. W. 450; 37 L. R. A. 211 219 V. Jochim, 99 Michigan 358; 58 N. W. Rep. 611; 41 Am. St Rep. 606; 23 L. R. A. 699 255 V. Marston, 66 New Hampshire 485; 22 Atl. Rep. 560; 13 L. R. A. 670 215 Badger v. United States, 93 U. S. 599 244 Barclay v. Commonwealth, 25 Pa. St 503; 64 Am. Dec. 714 455 Barry, Ex parte, 2 Howard (U. S.) 65 691 Bell V. Pierce, 51 New York 12 442 Bergen v. Clarkson, 6 New Jersey Law 428 476 Bliss V. Lawrence, 58 New York 442 ; 17 Am. Rep. 273 330 Boone County v. Jones. 54 Iowa 699; 2 N. W. Rep. 987; 7 N. W. Rep. 155; 37 Am. Rep. 229 182 Boyd V. Mills, 53 Kansas 594; 37 Pac. Rep. 16; 42 Am. St Rep. 306; 25 L. R. A. 486 56 Bradley v. Clark, 133 California 196; 65 Pac. Rep. 395 184 Bradley v. Fisher, 13 Wallace 335 534 Bristol Door & Lumber Co. v. Bristol, 97 Virginia 304; 33 S. E. Rep. 588; 75 Am. St Rep. 783 644 Brown v. Bradlee. 156 Massachusetts 28; 32 Am. St Rep. 430; 30 N. E. Rep. 85; 15 L. R. A. 509 520 Brown v. Russell, 166 Massachusetts 14; 43 N. E. Rep. 1005; 55 Am. St Rep. 357; 32 L. R. A. 253 190 Brown v. Turner, 70 North Carolina 93 11 Buchanan v. Alexander, 4 How. (U. S.) 20 332 Butler V. Pennsylvania, 10 How. (U. S.) 402 5 Chicago V. Gage, 95 Illinois 593; 35 Am. Rep. 182 586 Chicago V. Quimby, 38 Illinois 274 385 Chicago, &c.. Railway Co. v. Minnesota, 134 United States 418; 10 S. Ct Rep. 462, 702 404 XV Xfi TABLE OF OASES REPORTED. [BEFEBEKCES ABE TO PAGES.] Clinton V. Phillips, 58 Illinois 102 ; 11 Am. Rep. 62 882 Coffin V. Coffin, 4 Massachusetts 1 ; 2 Am. Dec. 189 640 Commonwealth v. Byrne, 20 Oratt (Va.) 165 471 V. Coyle, 160 Penn. St. 36; 28 Atl. Rep. 676; 40 Am. St Rep. 708; 24 L. R. A. 652 518 V. Shortall, 206 Penn. St 165; 55 Atl. Rep. 952; 98 Am. St Rep. 759 , 555 ▼. Walton, 182 Penn. St 373; 38 Atl. Rep. 790; 61 Am. St Rep. 712 339 Converse v. United States, 21 How. (U. S.) 463 308 County Com'rs v. Jacksonville, 36 Florida 196; 18 So. Rep. 339 618 Crampton v. Zabriskie, 101 United States 601 $46 Davis v. County Com'rs, 153 Massachusetts 218; 26 N. E. Rep. 848. . . 649 Davis V. Mayor, 1 Duer (N. Y.) 451 642 De Turk v. Commonwealth, 129 Penn. St 151; 18 Atl. Rep. 757; 15 Am. St Rep. 705; 5 L. R. A. 853 226 Dolan v. Mayor, 68 New York 274; 23 Am. Rep. 168 171 Dooley V. United States, 182 United States 222; 21 S. Ct Rep. 762... 495 Dows V. Chicago, 11 Wallace (U. S.) 108 638 Erskine v. Hohnbach, 14 Wall. (U. S.) 613 663 Evansville v. Miller, 146 Indiana 613; 46 N. B. Rep. 1064; 38 L. R. A. 161 376 Executive Communication, In re, 14 Florida 289 299 Fields V. Stokely, 99 Penn. St 306 ; 44 Am. Rep. 109 489 Fisk V. Jefferson Police Jury, 116 United States 131; 6 S. Ct Rep. 329 827 FItzsimmons v. Brooklyn, 102 New York 636; 7 N. E. Rep. 787; 56 Am. Rep. 835 317 Floyd Acceptances, The, 7 Wall. (U. S.) 666 601 French v. Edwards, 13 Wall. (U. S.) 506 359 Fritts V. Kuhl, 51 New Jersey Law 191; 17 Atl. Rep. 102 121 Ck>odyear v. Brown, 155 Penn. St 614; 26 Atl. Rep. 665; 35 Am. St Rep. 903; 20 L. R. A. 838 860 Goodwin V. Guild, 94 Tennessee 486; 29 S. W. Rep. 721; 45 Am. St Rep. 743 645 Gray v. Steitz, 162 Indiana 1; 69 N. E. Rep. 456 889 Gregory v. Mayor, 113 New York 416; 21 N. E. Rep. 119 881 Grider v. Tally, 77 Alabama 422 549 Guden, In re, 171 New York 529; 64 N. E. Rep. 451 878 Hadley v. Mayor, 33 New York 603 ; 88 Am. Dec 412 64 Hall v. Wisconsin, 103 United States 6 1 Hanna v. Young, 84 Maryland 179; 35 Atl. Rep. 674; 67 Am. St Rep. 396; 34 L. R. A. 55 46 Harrison v. New Orleans, 33 La. Ann. 222; 39 Am. Rep. 272 641 Harvey v. Philbrick, 49 New Jersey Law 374; 8 Atl. Rep. 122 166 Health Department v. Trinity Church, 146 New York 32; 46 Am. St Rep. 679; 39 N. E. Rep. 833 411 Hennen, Ex parte, 13 Peters 230 268 Hilton V. Merritt. 110 United States 97; 3 8. Ct Rep. 648 488 TABLE OF CASES REPORTED. XVll [BEFEBENCES ABE TO PAGES.] Hum, Ex parte, 92 Alabama 102; 9 So. Rep. 515; 25 Am. St Rep. 23; 13 L. R. A. 120 610 Illinois State Board v. People, 123 Illinois 227; 13 N. E. Rep. 201. .. . 420 Indianapolis Brewing Co. v. Claypool, 149 Indiana 193; 48 N. E. Rep. 228 21 Interstate Commerce Commission v. Brimson, 154 United States 447; 14 S. Ct Rep. 1125 392 Johnson, Trial of Andrew, Senate of U. S. 1868 287 Jones V. Loving, 55 Mississippi 109 ; 30 Am. Rep. 508 539 Kehn v. State, 93 New York 291 322 Kendall v. United States, 12 Peters 524 622 Kinneen v. Wells, 144 Massachusetts 479; 11 N. E. Rep. 916; 59 Am. Rep. 105 27 Koch V. Mayor, 152 New York 72; 46 N. E. Rep. 170 24 Kreidler v. State, 24 Ohio State 22 239 Lancaster County v. Fulton, 128 Penn. St. 48; 18 Atl. Rep. 384; 5 L. R. A. 436 306 Langenherg v. Decker, 131 Indiana 471; 31 N. E. Rep. 190; 16 L. R. A. 108 387 Lawton v. Steefe, W.9 New York 226; 23 N. E. Rep. 878; 16 Am. St Rep. 810; 7 L. R. A. 134 479 Lawton v. Steele. 152 U. S. 133; 14 S. Ct. Rep. 499 485 Lehman, Ex parte, 60 Mississippi 67 264 Lewis V. Com'rs, 16 Kansas 102 ; 22 Am. Rep. 275 65 Lewis V. State, 96 New York 71; 48 Am. Rep. 607 499 Locke V. Central, 4 Colo. 65; 34 Am. Rep. 66 315 Mahon, In re, 171 New York, 263; 89 Am. St Rep. 810; 63 N. E. Rep. 1107 342 Marbury v. Madison, 1 Cranch ( U. S.) 187 98 Martin, In re, 5 Blatchford 303 687 Maynard v. Board, 84 Michigan 228; 47 N. W. Rep. 756; 11 L. R. A. 332 39 McCortle v. Bates, 29 Ohio St 419; 23 Am. Rep. 758 370 McCurdy v. Rogers, 21 Wisconsin 199; 91 Am. Dec. 468 522 McCahon v. Com'rs, 8 Kansas 437 157 Metropolitan Board v. Heister, 37 New York 661 445 Morris v. Columbus, 102 Georgia 792; 30 S. E. Rep. 850; 66 Am. St Rep. 243; 42 L. R. A. 175 373 Moses v. Julian, 45 New Hampshire 52; 84 Am. Dec. 114 354 Mulnix V. Mutual Life Ins. Co., 23 Colorado, 71; 46 Pac. Rep, 123; 33 L. R. A. 827 362 Murphy v. Utter, 186 United States 95; 22 S. Ct Rep. 776 619 Murray's Lessee v. Hoboken, &c., Co., 18 How. (U. S.) 272 466 Mygatt V. Washburn, 15 New York 316 453 Neagle, In re, 135 United States 1; 10 S. Ct. Rep. 658 692 New Hampshire v. Louisiana, 108 United States 76 ; 2 S. Ct Rep. 176. 513 Nichols V. MacLean, 101 New York 526; 54 Am. Rep. 730; 5 N. E. Rep. 347 175 Nofire V. United States, 164 United States 657; 17 S. Ct Rep. 212. . . 153 f XYlll TABLE OF CASES BEPOBTED. [references are to PAQE8.] Opinion of the Justices, 167 Massachusetts 599; 46 N. E. Rep. 118. . . 293 Orlando v. Pragg, 31 Florida 111; 12 So. Rep. 368; 34 Am. St. Rep. 17; 19 L. R. A. 196 477 O'Leary v. Board, 93 New York 1; 45 Am. Rep. 156 319 Oliver V. The Mayor, 63 New Jersey Law 634; 44 Atl. Rep. 709; 76 Am. St Rep. 228; 48 L. R. A. 412 149 Olmstead v. Mayor, 42 New York Sup. Ct. Rep. 481 8 Overshiner v. State, 156 Indiana 187; 59 N. E. Rep. 468; 83 Am. St. Rep. 187 17 Page V. Staples, 13 Rhode Island 306 349 Pennie v. Rels, 132 New York 464 334 People V. Board, 140 New York 1; 35 N. E. Rep. 320; 37 Am. St Rep. 522 650 V. Clute, 50 New York 451; 10 Am. Rep. 508 67 V. Democratic Committee, 164 New York 335; 58 N. E. Rep. 124. 78 V. French, 110 New York 494; 18 N. E. Rep. 133. 656 V. Green, 58 New York 295 216 V. Johr, 22 Michigan 461 578 V. Kuykendall, 161 Illinois 319; 43 N. E. Rep. 1114 59 V. Llscomb, 60 New York 559; 19 Am. Rep. 211 683 V. Londoner, 13 Colorado 303; 22 Pac. Rep. 764 663 V. Mosher, 163 New York 32; 57 N. E. Rep. 88; 79 Am. St Rep. 552 84 V. Murray, 70 New York 521 94 V. N. Y., L. E. & W. R. R. Co., 104 New York 58; 58 Am. Rep. 484; 9 N. E. Rep. 856 434 V. Palmer, 52 New York 83 238 V. Palmer, 154 New York 133; 47 N. B. 1084 233 T. Police Com'rs, 82 New York 506 655 V. Schuyler, 4 New York 173 669 T, Sup'rs, 1 Hill (N. Y.) 195 629 V. Ward, 107 California 236; 40 Pac. Rep. 538 127 V. Weber, 89 Illinois 347 167 V. Westbrook, 89 New York, 152 635 V. Williams, 145 Illinois 573; 33 N. E. Rep. 849; 36 Am. St Rep. 514; 24 L. R. A. 492 131 V. Van Cleve, 1 Michigan 362; 53 Am. Dec. 69. .' 62 Ransom v. Black, 54 New Jersey Law 446; 24 Atl. Rep. 489 49 Raymond v. Fish, 51 Connecticut 80; 50 Am. Rep. 3 448 Reed, Ex parte, 100 United States 13 678 Reiter v. State, 51 Ohio St 74; 36 N. E. Rep. 943; 23 L. R. A. 681... 249 Robertson v. Robinson, 65 Alabama 610; 39 Am. Rep. 17 524 Robertson V. Sichel, 127 United States 507; 8 S. Ct Rep. 1286 662 Robinson v. Rohr, 73 Wisconsin 436; 40 N. W. 668; 9 Am. St Rep. 810; 2 L. R. A. 366 '. 665 Rogers V. Common Council, 123 New York 173; 25 N. E. Rep. 274 202 Rogers v. Jacobs, 88 Kentucky 502; 11 S. W. Rep. 513 31 Romero v. United States, 24 Court of Claims 331 168 Rushville Gas Co. v. Rushvllle. 121 Indiana 206; 23 N. E. Rep. 72; 16 Am. St Rep. 388; 6 L. R. A. 315 368 TABLE OF CASES KEPOETED. XlX [references are to pages.] Sage V. Fifield, 68 Wisconsin 546 ; 32 N. W. Rep. 629 640 Salem v. Eastern Railroad Co., 98 Massachusetts 431; 96 Am. Dec. 650 456 Siebold, Ex parte, 100 United States 371 680 Siren, The, 7 Wall. (U. S.) 152 491 Smith V. Moore, 90 Indiana 294 208 South V. Maryland, 18 Howard (U. S.) 396 531 Spalding v. Vilas, 161 United States 483; 16 S. Ct. Rep. 631 538 Speed V. Common Council, 97 Michigan 198; 56 N. W. Rep. 570 135 Speed V. Common Council, 98 Michigan 360; 57 N. W. Rep. 406; 39 Am. St. Rep. 555; 22 L. R. A. 842 630 State V. Bulkeley, 61 Connecticut 289; 23 Atl. Rep. 186; 14 L. R. A. 657 241 V. Carroll, 38 Connecticut 449 ; 9 Am. Rep. 409 144 V. Chatburn, 63 Iowa 659; 50 Am. Rep. 760 261 V. Crawford, 28 Florida 441; 10 So. Rep. 118; 14 L. R. A. 253.. 113 V. Dierberger, 90 Missouri 369; 2 S. W. Rep. 286 178 V. Ferguson, 31 New Jersey Law 107 247 V. Ferguson, 33 New Hampshire 424 378 ,v. Gardner, 54 Ohio St. 24; 42 N. B. Rep. 999; 31 L. R. A. 660.. 159 V. Hillyer, 2 Kansas 17 295 V. Humphries, 74 Texas 466; 12 S. W. Rep. 99; 5 L. R. A. 217. . 667 V. Kennelly, 75 Connecticut 704 ; 55 Atl. Rep. 555 277 V. McAllister, 38 West Virginia 485; 12 S. E. Rep. 770 186 V. Megaarden, 85 Minnesota 41; 89 Am. St. Rep. 534 284 V. O'Driscoll, 2 Treadway (S. C.) 713 304 V. Paterson, 34 New Jersey Law 163 364 V. Peelle, 124 Indiana 515; 24 N. E. Rep. 440; 8 L. R. A. 228 90 V. Railway Co., 19 Washington 518; 53 Pac. Rep. 719 617 V. Rogers, 87 Minnesota 130 344 V. Savage, 89 Alabama 1; 7 So. Rep. 7 266 V. Supervisors, 21 Wisconsin 282 134 V. Taylor, 108 North Carolina 196; 12 S. E. Rep. 1005; 12 L. R. A. 202 141 V. Whitesides, 30 South Carolina 579; 9 S. E. Rep. 661; 3 L. R. A. 777 603 V. Wilson, 123 Alabama 259; 26 So. Rep. 482; 45 L. R, A. 772. . . 605 Stephenson v. Board, 118 Michigan 396; 76 N. W. Rep. 914; 42 L. R. A. 214 72 Stephens v. Crawford, 1 Georgia 574; 44 Am. Dec. 680 582 Stout V. Ennis, 28 Kansas 706 526 Stuart V. Palmer, 74 New York 183; 3,0 Am. Rep. 289 399 Supervisors v. United States, 4 Wallace (U. S.) 435 360 Taunton v. Taylor, 116 Massachusetts 254 460 Tracy v. Swartwout, 10 Peters 80 547 United States v. Flanders, 112 United States 88; 5 S. Ct. Rep. 67 313 v. Germaine, 99 United States 508 14 V. Hoffman, 4 Wallace 158 632 T. Langston, 118 United States 389; 6 S. Ct. Rep. 1185 324 XX TABLE OF OASES REPORTED. [references are to PAOES.l United States v. Lee, 106 United States 196; 1 S. Ct Rep. 240 606 V. Saunders, 120 United States 126, 7 S. Ct Rep. 467 311 V. Thomas, 15 Wallace 337 593 Vallandlgham, Ex parte, 1 Wallace 243 659 Wortman, In re, 22 Abb. New Cases 137; 2 N. Y. Supp. 334 196 Wales V. Whitney, 114 United States 564; 5 S. Ct Rep. 1050 670 Wampler v. State, 148 Indiana 557; 47 N. E. Rep. 1068; 38 I* R. A. 829 614 Wardlaw v. Mayor, 137 New York 194; 83 N. B. Rep. 140 25S Watklns, Ex parte, 3 Peters 192 676 White V. Inhabitants of Levant, 78 Maine 568; 7 Atl. Rep. 539 305 Wilson V. Eureka City, 173 United States 32; 19 S. Ct Rep. 317.... 416 Wortman, In re, 22 Abb. New Cases 137; 2 N. Y. Supp. 324 196 Yick Wo V. Hopkins, 118 United States, 356; 6 & Ct Rep. 1064 42& THE LAW OF OFFICERS CHAPTER I. OFFICES AND OFFICERS. I. What is an Office? HALL V. WISCONSIN. Supreme Court of the United States, October, 1880. 103 U. S. 5. Mr. Justice Swayne delivered the opinion of the court. This is a writ of error to the Supreme Court of Wisconsin. The case we are called on to consider is thus disclosed in the record : By an act of the legislature, .... approved March 3, 1857, James Hall, of the State of New York, the plaintiff in error, and Ezra Carr, and Edward Daniels, of Wisconsin, were appointed "commissioners" to make the survey. Their duties were specific- ally defined, and were all of a scientific character. They were required to distribute the functions of their work by agreement among themselves, and to employ such assistants as a majority of them might deem necessary. The governor was required "to make a written contract with each commissioner" for the performance of his allotted work, and the "compensation therefor, including the charge of each commis- sioner;" and it was declared that "such contract shall expressly provide that the compensation to such commissioners shall be at a certain rate per annum, to be agreed upon, and not exceeding the rate of two thousand dollars per annum, and that payment will be made only for such part of the year as such commissioner may be actually engaged in the discharge of his duty as such commis- sioner. ' ' In case of a vacancy occurring in the commission, the governor was empowered to fill ft, and he was authorized to "remove any member for incompetency or neglect of duty." 1 1 2 OFFICES AND OFFICERS. To carry out the provisions of the act, the sum of $6,000 per annum for six years was appropriated, "to be paid to the persons entitled to receive the same." By an act of the legislature of April 2, 1860, Hall was made the principal of the commission, and was vested with the general supervision and control of the survey. He was required to con- tract with J. D. Whitney and with Charles Whittlesey for the completion within the year of their respective surveys. To carry into effect these provisions, the governor was authorized to draw such portion of the original appropriation, not drawn previous to the 29th of May, 1858, as might be necessary for the purpose ; the residue to be otherwise used as directed. By a subsequent act of March 21st, 1862, both the acts before mentioned were repealed without qualification. On the 29th of May, 1858, Hall entered into a contract with the governor, whereby it was stipulated on his part that he should perform the duties therein mentioned touching the survey, "this contract to continue till the 3d day of March, 1863, unless the said Hall should be removed for incompetency or neglect of duty . . . . or unless a vacancy shall occur in his office by his own. act or default." On the part of the State it was stipulated "that the said Hall shall receive for his compensation and expenses, including the expense of his department of the said survey, at the rate of $2,000 per annum Provided, that for such time as said Hall or his assistants shall not be engaged in the prosecution of his duties, according to the terms of said act and of this contract, deduction shall be made, pro rata, from the sum of his annual com- pensation and expenses." Hall brought this action upon the contract. The declaration avers that immediately after the execution of the contract he en- tered upon the performance of the duties thereby enjoined upon him, and continued in their faithful performance until the time specified in the contract for its expiration, to wit, the 3d of March, 1863; that he was not removed by the governor for incompetency or neglect, nor was any complaint ever made by the governor against him; that he never at any time directly or indirectly, as- sented to the repeal of the acts of 1857 and 1860 ; and that there- after he continued in the performance of his labors the same as before, and that for the year ending March 3d, 1863, he devoted his whole time and skill, without cessation, to the work. He avers further, that for his services performed prior to March. HALL V. WISCONSIN. d 3d, 1862, he was fully paid, but that for the year ending March 3d, 1863, he had received nothing; and that payment was demanded and refused on the 3d of .December, 1863, and that the defendant is, therefore, justly indebted to him in the sum of $2,000, with interest from the date last mentioned. He avers, finally, that on the 30th of January, 1875, he pre- sented his claim to the legislature by a proper memorial, and that its allowance was refused. , The State demurred upon two grounds: — 1. That the complaint did not show facts sufficient to consti- tute a cause of action; In support of the first objection, it was insisted that the em- ployment of the plaintiff was an office, and that the legislature had therefore the right to abolish it at pleasure. For the plain- tiff, it was maintained that there was a contract, and that the re- pealing act impaired its obligation in violation of the contract clause of the Constitution of the United States. The court sustained the demurrer upon the first ground, and the plaintiff declining to amend, dismissed his petition. The opin- ion of the court is limited to the first point, and ours will be con- fined to that subject. The whole case resolves itself into the issue thus raised by the parties. No question is made as to the suability of the state. The pro- ceeding is authorized by a local statute. The statute under which the governor acted was explicit, that he should "make a written contract with each of the commission- ers aforesaid, expressly stipulating and setting forth the nature and extent of the services to be rendered by each, and the compen- sation therefor" and that **such contract" should expressly pro- vide that the compensation of each commissioner should be at a certain rate per annum, to be agreed upon, and not to exceed $2,000 per annum for the time such commissioner may be actually en- gaged. The action of the governor conformed to this view. The instrument executed pursuant to the statute recites that it is an "agreement" between the governor as one party, and Hall, Carr, and Randall, the commissioners, as the other. They severally agreed to do what the statute contemplated, and he agreed to pay all that it permitted. The names and seals of the parties were affixed to the agree- 4 OFFICES AND OFFICERS. ment, and its execution was attested by two subscribing witnesses, as in other cases of contract. In a sound view of the subject it seems to us that the legal posi- tion of the plaintiff in error was not materially different from that of parties who, pursuant to law, enter into stipulations limited in point of time, with a State, for the erection, alteration or repair of public buildings, or to supply the officers or employes who oc- cupy them with fuel, light, stationery, and other things necessary for the public service. The same reason is applicable to the count- less employes in the same way, under the national government. It would be a novel and startling doctrine to all these classes of persons that the government might discard them at pleasure, be- cause their respective employments were public offices, and hence without the protection of contract rights. It is not to be supposed that the plaintiff in error would have turned his back upon like employment, actual or potential, else- where, and have stipulated as he did to serve the state of Wis- consin for the period named, if the idea had been present to his mind that the state had the reserved power to break the relation between them whenever it might choose to do so. Nor is there anything tending to show that those who acted in behalf of the state had any such view at that time. All the facts disclosed point to the opposite conclusion as to both parties. "When a state descends from the plane of its sovereignty, and contracts with private persons, it is regarded pro hac vice as a private person itself, and is bound accordingly. Davis v. Gray, 16 Wall. 203. That the laws under which the governor acted, if valid, gave him the power ta do all he did, is not denied. We will not, therefore, dwell upon that point. The validity of those laws is too clear to admit of doubt. It would be a waste of time to discuss the subject. We are of the opinion that the Supreme Court of the State erred in the judgment given. It will, therefore, be reversed, and the case remanded for further proceedings in conformity with this opinion. 8o ordered. BUTLER V. PENNSYLVANIA. O BUTLER V. PENNSYLVANIA. Supreme Court of the United States. December, 1850. 10 How. 402. Mr. Justice Daniel delivered the opinion of the court. By the authority of a statute of Pennsylvania of the 28th of January, 1836, the plaintiffs in error were by the Governor of the State appointed to the place of canal commissioners; and by the same statute, the appointment was directed to be made annually en the first day of February, and the compensation of the commis- sioners regulated at four dollars per diem each. Under this law, the plaintiffs in error, in virtue of an appointment on the first of February, 1843, accepted and took upon themselves the office and duties of canal commissioners. By a subsequent statute, of the 18th of April, 1843, the appointment of canal commissioners was transferred from the Governor to the people upoil election by the latter and the per diem allowance to be made to all the commis- sioners was by this law reduced from four to three dollars, this reduction to take effect from the passage of the act of April 18th, 1843, which as to the rest of its provisions went into operation on the second Tuesday of January following its passage, that is, on the second Tuesday of January in the year 1844. Upon a settle- ment of their account as canal commissioners, made before the Auditor-General of the State, the plaintiffs in error, out of money of the state then in their hands, claimed the right to retain com- pensation for their services at the rate of four dollars per diem, for the full term of twelve months from the date of their appoint- ment by the governor; whilst for the state, on the other hand, it was refused to allow that rate of compensation beyond the 18th of April, 1843, the period of time at which, by the new law, the emoluments of appointment were changed. In consequence of this difference, and of the refusal of the plaintiffs in error to pay over the balance appearing against them on the account as stated by the Auditor-General, an action was instituted against them in the name of the State, in the court of Common Pleas of Dauphin County, and a judgment obtained for that balance. This judgment having been carried by writ of error before the Supreme Court, was there affirmed, and from that tribunal, as the highest in the state, this cause is brought hither for revision. The grounds on which this court is asked to interpose between O OFFICES AND OFFICERS. the judgment on behalf of the state and the plaintiffs in error are these. That the appointment of these plaintiffs by the Governor of Pennsylvania, under the law of January 28th, 1836, was a posi- tive obligation or contract on the part of the state to employ the plaintiffs for the entire period of one year, at the stipulated rate of four dollars per diem; and that the change in the tenure of office and in the rate of compensation made by the law of April 18th, 1843 (within the space of one year from the 1st of February, 1843), was a violation of this contract, and therefore an infraction of the tenth section of the first article of the Constitution of the United States. In order to determine with accuracy whether this case is within the just scope of the constitutional provision which has thus been invoked, it is proper carefully to consider the char- acter and relative positions of the parties to this controversy, and the nature and objects of the transaction which it is sought to draw within the influence of that provision. . . . . The contracts designed to be protected by the tenth section of the first article of that instrument are contracts by which perfect rights, certain definite, fixed private rights of property, are vested. These are clearly distinguishable from measures or en- gagements adopted or undertaken by the body politic or state gov- ernment for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied or discon- tinued as the public shall require. The selection of officers, who are nothing more than agents for the effectuating of public pur- poses, is matter of public convenience or necessity, and so, too, are the periods for the appointment of such agents; but neither the one nor the other of these arrangements can constitute any obliga- tion to continue such agents, op to reappoint them, after the meas- ures which brought them into being shall have been found useless, shall have been fulfilled, or shall have been abrogated as even detrimental to the well-being of the public. The promised com- pensation for services actually performed and accepted, during the continuance of the particular agency, may undoubtedly be claimed, both upon principle of compact and of equity; but to insist beyond this on the perpetuation of a public policy either useless or detrimental, and upon a reward for acts neither desired nor promised, would appear to be neither reconcilable with nat- ural justice nor common sense. The establishment of such a prin- ciple would) arrest necessarily everything like progress or improve- ment in government; or if changes would be ventured upon, the BUTLER V. PENNSYLVANIA. 7 government would have to become one great pension establishment on which to quarter a host of sinecures. It would especially be difficult, if not impracticable, in this view, ever to remodel the organic law of a state, as constitutional ordinances must be of higher order and more immutable than common legislative enact- ments, and there could not exist conflicting constitutional ordi- nances under one and the same system. It follows, then, upon principle, that, in every perfect or competent government, there must exist a general power to enact and to repeal laws; and to create, and change or discontinue, the agents designated for the execution of those laws. Such a power is indispensable for the preservation of the body politic, and for the safety of the indi- viduals of the community. It is true that this power, or the extent of its exercise, may be controlled by the higher organic law or the constitution of the state, as is the case in some instances in the state constitutions, and is exemplified in the provision of the federal constitution relied on in this case by the plaintiffs in error, and in some other clauses of the same instrument ; but where no such restriction is imposed, the power must rest in the discre- tion of the government alone. The constitution of Pennsylvania contains no limit upon the discretion of the legislature, either in the augmentation or diminution of salaries, with the exceptions of those of Governor, and judges of the supreme court, and the pres- idents of the several courts of Common Pleas. The salaries of these officers cannot, under that constitution, be diminished dur- ing their continuance in office. Those of all other officers in the state are dependent upon legislative discretion. We have already shown, that the appointment to and the tenure of an office created for the public use, and the regulation of the salaries affixed to such an office, do not fall within the meaning of the section of the Con- stitution relied on by the plaintiffs in error; do not come within the import of the term contracts, or, in other words, the vested, private personal rights thereby intended to be protected. The precise question before us appears to have been one of familiar practice in the State of Pennsylvania, so familiar, indeed, and so long acquiesced in, as to render its agitation at this day somewhat a subject of surprise; .... . . . . We consider these decisions of the state court as hav- ing correctly expounded the law of the question involved in the case before us, as being concurrent with the doctrines heretofore 8 OFFICES AND OFFICERS. rilled and still approved by this court, — concurrent, too, with the decisions of the Supreme Court of Pennsylvania now under re- view, which decision we hereby adjudge and order to be affirmed. OLMSTEAD V. MAYOR, ETC., OF NEW YORK. Superior Court of City of New York. June, 1877. 42 Superior Ct. Bep. 481. This case came up on plaintiff's motion that this court direct a judgment to be entered upon a verdict rendered in favor of the plaintiff, subject to the opinion of the general term. The plain- tiff sued to recover the salary alleged to be due him as landscape architect of the Department of Public Parks from May 31, 1876, to July 31, then next, inclusive. The plaintiff was by profession a landscape architect, and had been employed many years in that capacity by the department which had fixed his salary at the rate of $6,000 per annum, and he had been paid at that rate down to and including May 31, 1876. In the year 1876 (Laws of 1876, p. 196, ch. 193), the legislature created a board known as the "Commissioners of the State Sur- vey," to hold office for one year, and named the plaintiff one of the commissioners. He accepted the office of commissioner and took the oath of office May 31, 1876. He afterwards, on July 18, 1876, resigned. During the time he held the office of commissioner he, without in- terruption, performed the duties and rendered the services de- volved upon and required of him as landscape architect. On Au- gust 4, 1876, the Department of Parks passed the resolution re- ferred to in the opinion, whereby it was resolved, "that an allow- ance or payment be made to him" (the plaintiff) "for the services to the Department from May 31, 1876, at the rate of $6,000." Speir, J. A preamble adopted by the department of parks on the 4th of August, 1876, is set forth in the complaint, reciting that the plaintiff had, without advice as to the effect it might have on his position as landscape architect, accepted the office of com- missioner of the State survey ; that some doubt had been expressed on the point, and that he had resigned the office, and had without OLMSTEAD V. MAYOR, ETC. 9 interruption performed the services on which he was employed, and it was resolved that an allowance and payment be made to him for the services to the department, from the 31st day of May, 1876, at the rate of $6,000. No salary or compensation was attached to the office of commis- sioner of the State survey. The plaintiff took the oath of office on the 31st of May, 1876, and the board was organized. The defense is based on the following provision of section 114 of chapter 325 of the laws of 1873: "Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold or retain any other civil office of honor, trust, or emolument, under the government of the United States (except commissioners for the taking of bail, or register of any court) or of the State (except the office of notary public or com- missioner of deeds, or officer of the national guard), or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed thereby to have vacated every office held by him under the city government. No person shall hold two city or county offices, except as expressly provided in this act; nor shall any officer under the city government hold or retain an office under the county government, except when he holds such office ex-officio by virtue of an act of the legislature; and in such case he shall draw no salary for such ex-officio office. ' ' Was the plaintiff, a landscape architect in the Department of Public Parks, an officer within the prohibition of the preceding section ? An office has been defined to be a right to exercise a public func- tion or employment, and to take the fees and emoluments belong- ing to it. An officet is one who is lawfully invested with an office, Bacon's Abridgment, vol. 7, Title Office and Officer, p. 279, ed. of 1860 ; Bouv. Law. Die. The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, and powers, as well as that of duty. The nature of the power and the control over the officer appointed does not at all depend upon the source from which it emanates. The execution of the power, and the control over the officer, depends upon the authority of law, and not upon the agent who is to administer it. The tenure of ancient common law offices, and the rules and principles by which they are gov- erned, have no application in this country. In England the tenure of office depends in a great measure upon ancient usage. Here there is no ancient usage which can apply to, and govern the tenure 10 OFFICES AND OFFICERS. of offices created by the constitution and laws. In such a case the tenure of the office is determined by the meaning of the statute. Every office under the constitution implies an authority to exer- cise some portion of the sovereign power of the State, either in making, executing or administering the laws. In the section of the statute there is no ambiguity, and there is no room for con- struction or interpretation. The words are clear and explicit * ' No person shall hold two city or county offices, except as provided in this act; nor shall any officer under the city government hold, or retain an office under the county government, except when he holds such office ex-officio, by virtue of an act of the legislature; and in such case he shall draw no salary for such ex-officio office." The distinction is plainly taken between a person acting as a servant or employe, who does not discharge independent duties, but acts by direction of others, and an officer empowered to act in the dis- charge of a duty, or trust, under obligations imposed by the sanc- tions and restraints of legal authority in official life. I can find nothing in all the sections of the charter which does not strictly limit the prohibition to persons included in the foregoing definition given by the elementary writers. The plaintiff received no cer- tificate of appointment — took no oath for the faithful performance of duties, and exercised no powers depending directly upon the authority of law. He was simply the servant of the commissioners of the park, and responsible only to them. His responsibility was limited to them, and is in no way distinguishable from that of the carpenter and the mason who are employed to build the bridges or erect the buildings designed by the architect. The nature and dignity of the duties confided to the employes by the commissioners do not determine the character of the position. It is in no proper sense official according to any sense in which the term is used in the statute above recited. The justices of the supreme court of Maine, 1822, gave an opin- ion as to whether certain duties which had been delegated by agents to be appointed by the governor, constituted the appointees officers. The case is reported in the appendix to the first edition of 3 Greenleaf App. No. 2. They say: "There is a manifest differ- ence between an office and an employment under the government. We apprehend that the term 'office* implies a delegation of a por- tion of the sovereign power to, and possession of it by, the person filling the office, and the exercise of such power within legal limits constitutes the correct discharge of the duties of such office." The question was directly put before the learned judges for decision, BROWN V. TURNER. 11 and they returned a sharply defined answer, wholly disconnected with the other matter, and it seems to me to be conclusive. The courts in this state are in accord with the foregoing opinion. The plaintiff must have judgment for the amount claimed in the complaint, with costs. BROWN V. TURNER. Supreme Court of North Carolina. January, 1874. 70 N. C.93. Application for a mandamus, heard before Watts, J., at Cham- bers in the city of Raleigh, on the 20th day of January, 1874. In his complaint the plaintiff alleges that he has been duly appointed Public Printer by his Excellency, the Governor, and asks for a mandamus directed to the defendant, Howerton, the Secretary of State, commanding him to deliver the public laws, etc., to the plaintiff, and also praying that he be restrained from delivering the same to the defendant, Turner. Howerton answers the complaint, raising no question of fact or law. Turner demurs to the complaint : 1st. Because of a defect of parties plaintiff, for that the Attor- ney General, in the name of the people of the State, should have brought the action. 2d. Because the complaint does not state facts sufficient to con- stitute a cause of action, in this, that the Governor of the State has no right to appoint a public printer, and that the plaintiff has never beefl duly appointed Public Printer or contractor. 3d. That mandamus is not the proper remedy for the case made by the complaint. His Honor, at the hearing overruled the demurrer and gave judgment for the plaintiff; from which judgment defendants ap- pealed. Bynum, J. To enable the plaintiff to recover he must maintain three propositions: 1. That what he clafms is a public office. 2. That he has the legal title to it. 3. That he is prosecuting his claim by the right form of action. 12 OFFICES AND OFFICERS. 1. Is it an office? Ch. 43, Acts of 1869-70, enacts "That the office of State Printer be and the same is hereby abolished, and all laws and parts of laws in conflict with this act are hereby repealed. ' ' Ch. 180, Acts of 1871-72, enacts "That the Joint Committee on Printing of the two Houses of the General Assembly are di- rected and instructed to make, execute and deliver a contract for the public printing, on the part of the State, ' ' at the rates specified in this act. There is an act positively abolishing the office of Public Printer, eo nomine, which, according to Hoke v. Henderson, 4 Dev. 1, is constitutional in form and substance, because it disturbs no vested right or term of an incumbent But it is said that an office cannot be abolished by indirection, leaving all its duties to be performed by a person called a "con- tractor" of public printing. There is no magic in the word "office." "When the legislature created and called it an office, it was an office, not because the peculiar duties of the place constituted it such, but because the creative will of the law-making power impressed that stamp upon it ; therefore, when that stamp was effaced by the repealing act of 1869-70, it shrank to the level of an undefined duty. The au- thority that invested these duties with the name and dignity of a public office, afterwards divested them of that name and dignitj'. There being now no law of the land declaring it to be a public office, our next inquiry is, do the duties of the Public Printer con- stitute it an office? The place is really sui generis, and therefore the ordinary cri- teria by which we distinguish and classify public offices cannot aid us to a conclusion here. It occupies that neutral gi'ound where it may "shade into" a legislative or executive function, without disturbing the harmony of either. It comes within the definition of a public office because its duties relate to the public and are pre- scribed by public law, but so may the duties of a contractor or workman upon a public building. It seems not to be an office, because all the duties of Public Printer as prescribed by law are mechanical only, as much so as those of a carpenter or brick- mason, calling for neither judgment or discretion, in a legal sense, and which may be performed by employes, men, women and chil- dren, in or out of the State, and on his death every unfinished duty of the printer can and must be, under existing law, completed by BROWN V. TURNER. 13 his personal representative. If it is an office, there is no law pre- scribing the term or duration of it, and it may be held for life as well as a term of years, which puts it out of harmony with the whole genius and spirit of our political institutions, a conclusion which can be forced upon us, only on the most evident necessity. Assuming, as most favorable to the plaintiff, that this anomalous collection of duties, has vibrated upon the dividing line between two departments, a closer view will show that it has finally as- sumed a state of rest, upon the legislative side of the line. The office of State Printer, as such, was abolished in 1870. From that time to this, each political party, when it gained the ascendency in the legislature, claimed and exercised the exclusive control over the public printing by their own election of, or contract with, the printer. In 1873, the question was raised in a direct proceeding for that purpose, before Judge Moore, and it was then decided by him, in a well considered opinion, to be not an office, and that judg- ment was acquiesced in by the contestant and all the branches of the government. It would seem, then, that this action and acqui- escence of all the departments of the government had fixed the true position of this place, in a manner not to be shaken. There is nothing in the nature of the duties to be performed to excite the jealousy of the other departments, or to disturb the equilibrium of either one of the three co-ordinate divisions of the supreme authority of the State. While it is true that * * the executive, legis- lative and supreme judicial powers of the government ought to be forever separate and distinct," it is also true that the science of government is a practical one; therefore, while each should firmly maintain the essential powers belonging to it, it cannot be forgot- ten that the three co-ordinate parts constitute one brotherhood, whose common trust requires a mutual toleration of the occupancy of what seems to be a ''common because of vicinage," bordering the domains of each. It would seem as natural for the department which enacts the laws to control the publication of its labor, as for an author to secure a copyright of his work, and to control its publication. Printing and publishing are a necessary part of the enactment of laws so essential that laws would be incomplete and valueless with- out being thus made known to those who are bound to observe them. We are not, therefore, disposed to go into a more curious and critical inquiry upon this question, where no great principle is in- volved and where such inquiries are more calculated to confuse 14 OFFICES AND OFFICERS. than to answer any useful purpose. We hold that the legislature has the right to let out the public printing by contract. An office is based on a law, i. e., the constitution, a statute or an ordi- nance. See Bradford v. Justices, 33 Ga. 336. The nature of the duties is not a criterion. Thus a mere clerk may be an officer. Vaughn v. English, 8 Cal. 39. Salary or other emolument is not a cri- terion. State V. Stanley, 66 N. C. 59. UNITED STATES V. GERMAINE. Supreme Court of the United States. October, 1873. 99 U.S. 508. Mr. Justice Miller delivered the opinion of the court. The defendant was appointed by the Commissioner of Pensions to act as surgeon, under the act of March 3, 1873, .... He was indicted in the District of Maine for extortion in taking fees from pensioners to which he was not entitled. The law under which he was indicted ia thus set forth in sect 12 of the act of 1825 (4 Stat. 118) :— "Every officer of the United States who is guilty of extortion under color of his office shall be punished by a fine of not more than $500, or by imprisonment not more than one year, according to the aggravation of his offence.'* The indictment being remitted into the Circuit Court, the judges of that court" have certified a division of opinion upon the questions whether such appointment made defendant an officer of the United States within the meaning of the above act, and whether upon demurrer to the indictment judgment should be rendered for the United States or for defendant. The counsel for defendant insists that art. 2, sect. 2 of the Con- stitution prescribing how officers of the United States shall be appointed, is decisive of the case before us. It declares that "the President shall nominate, and by and with the advice and con- sent of the Senate, shall appoint, ambassadors, other public min- isters and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for and which shall be established by law. But UNITED STATES V. GERMAINE. 15 the Congress may, by law, vest the appointment of such inferior officers as they may think proper, in the President alone, in the courts of law, or inihe heads of departments." The argument is that provision is here made for the appointment of all officers of the United States, and that defendant, not being appointed in either of the modes here mentioned, is not an ofjicer though he may be an agent or employe working for the government and paid by it, as nine-tenths of the persons rendering services to the government undoubtedly are, without thereby becoming its officers. The Constitution for purposes of appointment very clearly di- vides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden re- movals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Con- gress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt. This Constitution is the supreme law of the land, and no act of Congress is of any validity which does not rest on authority conferred b^.,that instrument. It is, there- fore, not to be supposed that Congress, when enacting a criminal law for the punishment of officers of the United States, intended to punish anyone not appointed in one of those modes. If the punishment were designed for others than officers as defined by the Constitution, words to that effect would be used, as servant, agent, person in the service or employment of the government; and this has been done where it was so intended, as in the six- teenth section of the act of 1846, concerning embezzlement, by which any officer or agent of the United States, and all persons participating in the act, are made liable. 9 Stat. 59. As defendant here was not appointed by the President or by a court of law, it remains to inquire if the Commissioner of Pensions by whom he was appointed, is the head of a department, within the meaning of the Constitution, as is argued by the counsel for plaintiffs. That instrument was intended to inaugurate a new system of government, and the departments to which it referred were not then in existence. The clause we have cited is to be found in the 16 OFFICES AND OFFICERS. article relating to the executive, and the word as there used has reference to the subdivision of the power of the executive into de- partments, for the more convenient exercise of that power. One of the definitions of the words given by Worcester is, "a part or division of the executive government, as the Department of State, or of the Treasury." Congress recognized this in the act creating these subdivisions of the executive branch by giving to each of them the name of a department. Here we have the Secretary of State, who is by law the head of the Department of State, the Departments of War, Interior, Treasury, etc. And by one of the latest of these statutes reorganizing the Attorney General's oflBce and placing it on the basis of the others, it is called the Depart- ment of Justice. The association of the words "heads of depart- ments" with the President and courts of law strongly implies that something different is meant from the inferior commissioners and bureau officers, who are themselves the mere aids and subordinates of the heads of the departments. Such, also, has been the practice, for it is very well understood that the appointments of the thou- sands of clerks in the Departments of Treasury, Interior, and the others, are made by the heads of those departments, and not by the heads of the bureaus in those departments. So in this same section of the Constitution it is said that the President may require the opinion in writing of the principal offi- cer in each of the executive departments, relating to the duties of their respective offices. The word "department," in both these instances, clearly means the same thing, and the principal officer in the one case is the equivalent of the head of department in the other. While it has been the custom of the President to require these opinions from the Secretaries of State, the Treasury, of War, Nav>-, etc., and his consultation with them as members of his cabinet has been habitual, we are not aware of any instance in which such written opinion has been officially required of the head of any of the bureaus, or of any commissioner or auditor in these depart- ments. United States v. Bartwell, 6 Wall. 385, is not, as supposed, in conflict with these views. It is clearly stated and relied on in the opinion that Hartwell's appointment was approved by the Assist- ant Secretary of the Treasury as acting head of that department, and he was, therefore, an officer of the United States. If we look to the nature of defendant's employment, we think it equally clear that he is not an officer OVERSHINER V. THE STATE. 17 . . . He is but an agent of the Commissioner, appointed by him, and removable T)y him at his pleasure, to procure information needed to aid in the performance of his own official duties. He may appoint one or a dozen persons to do the same thing. The compensation may amount to five dollars or five hundred dollars per annum. There is no penalty for his absence from duty or re- fusal to perform, except his loss of the fee in the given case. If Congress had passed a law requiring the commissioner to appoint a man to furnish each agency with fuel at a price per ton fixed by law high enough to secure the delivery of the coal, he would have as much claim to be an officer of the United States as the surgeons appointed under this statute. We answer that the defendant is not an officer of the United States and that judgment on the demurrer must be entered in his favor. Let it be so certified to the Circuit Court. The wording of particular statutes has an important influence on the determination whether for the purpose of the statutes a particular position is an office or not. Compare United States v. Mouat, 124 IT, S. 303 and United States v, Hendee, Ibid. 309, which hold that the same position is an office for one purpose but not for another. II. Legislative Control of Offices.* OVERSHINER V. THE STATE. Supreme' Court of Indiana, November, 1900. 156 hid. 187. Hadley, J. Appellant was convicted of practicing dentistry without a license, or certificate of registration, in violation of the provisions of the act of 1899 approved March 6, 1899 (Acts 1899, p. 479). The section involved is in these words: "Section 2. A board of examiners consisting of five reputable practicing den- tists shall be appointed on or before the last Tuesday of June, 1899, ♦The legislature may in the absence of constitutional restriction establish any office and may delegate its powers to establish offices to a local corporation. Blue v. Beach, 155 Ind. 121. Every office must originate in a law. United States v. Maurice, 2 Brock. (U. S.) 96. 2 18 OFFICES AND OFFICERS. and biennially thereafter, one by the governor, one by the state board of health, and three by the Indiana state dental associa- tion, said board to serve for the term of two years from the date of such appointment. "When convened said board shall examine all applications, issue certificates thereon, and also may examine all applicants for certificates of qualification and issue such certificates to all such applicants as shall pass a satisfactory examination." Appellant assails the judgment upon the ground that the statute upon which it rests is violative of section 1, article 3; section 1, article 5 ; section 18, article 5, and section 3, article 6 of the state constitution and the fourteenth amendment of the federal Consti- tution. Appellant admits that he practiced dentistry without the license required by the statute under which he is prosecuted and that the judgment is right if that statute is constitutional. It is here asserted that the statute is bad for being in conflict with the various provisions of the Constitution above set out, the contention being that the appointment by the state dental association of three members of the board of exam- iners was void for want of authority in the legislature to confer the power of appointment on a private corporation, or individual out- side the executive department. The constitution is silent upon the subject of general appoint- ments to office. It is provided by section 1, article 5, that "the executive powers of the state shall be vested in a governor" and by section 18, article 5, "when, at any time, a vacancy shall have occurred in any other state office, [except appointment vested in the general assembly] or in the office of judge of any court, the governor shall fill such vacancy by appointment, which shall ex- pire when a successor shall have been elected and qualified" and by section 1, article 15 that, "All officers whose appointments are not otherwise provided for in this constitution shall be chosen in fiuch manner as now is, or hereafter may be, prescribed by law. ' * Three things are clearly apparent from these provisions: (1) The power of appointment to some offices is committed to the gen- eral assembly; (2) the power to make temporary appointments to fill vacancies in any state office, or in the office of judge, until such officer can be regularly chosen as provided by law, and thus, to avoid a suspension of the functions of such office, is conferred upon the governor, and (3) all other officers whose appointments are not specially provided for in this constitution shall be chosen in such manner as the legislature may deem expedient. It cannot OVERSHINEB V. THE STATE. 19 be contended that the appointment to the oflSce of state dental ex- aminer is fixed by the constitution, for no such office was in exis- tence when the constitution was adopted. The appointments to that office, therefore, come within the purview of section 1, article 15, and shall be made in such manner as may be hereafter pre- scribed by law. The manner prescribed by law is that the state board of dental examiners shall consist of five members, one to be appointed by the governor, one by the board of health, and three by the state dental association. It is claimed that the statute must fail for the reason that the legislature has no constitutional warrant for bestowing the police power upon a private corporation to be by it exercised upon the citizens of the state. "We perceive no reason why a corporation, such as the one complained of, may not prove itself a repository of power, as safe and salutary as an individual. The corporation is composed of practicing dentists, organized for the promotion of scientific knowledge and skill in the practice of the profession of dentistry, and which association thus stands in an intimate and well informed relation to the subject, and possessed of a peculiar interest in the successful administration of the law. It is difficult to conceive of an appointing power with higher qualifications, or likely to be swayed by more laudable motives, and that it is an or- ganization of persons mutually interested in the enforcement and proper administration of the law surely furnishes no reason for its condemnation. In the case known as the Slaughter House Cases, 16 Wall. 36, the legislature of Louisiana had granted a corporation the ex- clusive right for twenty-five years to maintain slaughter-houses, landings for cattle, and cattle yards, within certain parishes of the state, including the city of New Orleans, requiring all animals offered for sale or slaughtered to be brought to the yards of the corporation, authorizing the corporation to charge fees, and pro- hibiting all other persons from maintaining such places within said territory. In holding that the legislature had constitutional au- thority within its police powers to confer these public duties upon the corporation, the court, by Justice Miller, uses this language. " .... If this statute had imposed on the city of New Or- leans precisely the same duties accompanied by the same privileges, which it has on the corporation it created it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation 20 OFFICES AND OPFICEES. and on the public would have been the same as it is now. Why cannot the legislature confer the same powers on another corpora- tion, created for a lawful and useful public object, that it can on the municipal corporation already existing? That wherever the legislature has the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corporation, and to endow it with the powers nec- essary to effect the desired lawful purpose, seems hardly to admit of debate." See, also, Louisville Gas Co. v. Citizens Gas Co., 115 U. S. 683, 6 Sup. Ct. 265, 29 L. Ed. 510; Commonwealth v. Vrooman, 164 Pa. St. 306, 30 Atl. 217, 25 L. R. A. 250. For many years state officers, or officers performing state func- tions, have been chosen by private corporations under legislative authority, without question. Some of these are, three members of the board of trustees of Purdue University, two by the state board of agriculture, and one by the state board of horticulture (Acts 1875, p. 120, section 6176 Burns 1894) ; grain inspector by the board of trade or other commercial bodies of the county (Acts 1875, p. 172, 8718 Burns 1894) ; sextons of churches, and officers of fairs, who ex officio are made by law peace officers (Acts of 1881, p. 174, section 2074 Burns 1894) ; the state chemist by Pur- due University Board (Acts 1881, p. 511, section 6618 Bums 1894) ; the state live stock sanitary commission by the state board of agriculture (Acts 1889, p. 380, section 2871 Burns 1894) ; the superintendents of schools of three of the largest cities of the state, with the governor and presidents of the higher state schools, shall constitute the board of education with power to grant state certifi- cates of qualification to teachers. Acts 1875, p. 130, section 5849 Burns 1894. We hold, therefore,that the General Assembly in conferring upon the state dental association power to appoint three members of the state board of dental examiners did not transcend its con- stitutional power, and that appointments to said board of examin- ers by said association are valid. Judgment affirmed. But the legislature may not provide a method of filling an office which is inconsistent with the provisions of the constitution. State ex rel. Worrell v. Peelle, 121 Ind. 495, infra. INDIANAPOLIS BREWING CO. V. CLAYPOOL. 21 INDIANAPOLIS BREWING COMPANY V. CLAYPOOL. Supreme Court of Indiana. December, 1897. 149 Ind. 193. McCabe, C. J. The legislature of 1895 passed an act approved March 1, 1895, entitled "An act to establish, a department of pub- lie parks in cities having more than one hundred thousand popula- tion, according to the last preceding United States census, and a board of park commissioners, defining the powers and duties of such board and matters connected therewith, and declaring an emergency." Sections 7240-7261 Horner's R. S. 1897, (Acts 1895, p. 63). The appellant brought suit against the appellees, who are the acting members of said board, and certain other officers ap- pointed by the circuit court at the instance of said board, under the provisions of said act, to enjoin them from further acting by virtue of any authority conferred on them by said act. The cir- cuit court sustained a demurrer to the complaint for want of suf- ficient facts ; and, the plaintiff refusing to plead further or amend its complaint, the court rendered judgment that the plaintiff take nothing by its suit. That ruling is called in question by the as- signment of errors as the only error complained of by the ap- pellant. The ground on which the complaint seeks an injunction is that the act is unconstitutional. But a much more serious question is presented by appellant's contention that the act violates the last clause of section two of article fifteen of our state constitution (section 224, Burns' R. S. 1894; 224, R. S. 1881), providing that "the General Assembly shall not create any office the tenure of which shall be longer than four years. ' ' The facts are disclosed in the complaint that in the spring of 1895, soon after the passage of the act in question the mayor of Indianapolis appointed five park commissioners to serve one, two, three, four, and five years, respectively, from January 1, 1895. That made the term of the one-year commissioner expire on Jan- uary 1, 1896, and his successor then appointed and now in office, under the provisions of section two of the act, under a term of five years, running till January 1, 1901. The term of the two-year commissioner appointed in 1895 expired January 1, 1897, when he was reappointed as his own successor, and is now in office, the term 2^ OFFICES AND OFFICERS. of which, under section two of the act, and his reappointment, is five years, expiring January 1, 1902. And the term of the five- year commissioner appointed in 1895, and now in office expires, January 1, 1900, making according to the allegations of the com- plaint, three of the defendants in office under a five-year term or tenure, by virtue of section two of the act. Appellees' conten- tion that four of the members appointed in 1895 hold four-year terms, and therefore are and always had been a legal board under section six, making a majority a quorum authorized to do binding acts, is contrary to the facts alleged in the complaint, even if that fact, would constitute such majority a legal board. It is next contended that section two is valid because the constitu- tional inhibition only operates to limit the terms of the several park commissioners to four years, respectively. It is tacitly conceded that, if the restriction cannot be obviated in this way, section two must fall, as a palpable violation of the constitution. This ground of upholding that part of the section other than the tenure clause is based on the familiar principle in constitutional law that a statute may be good in part, and in part void, because unconstitu- tional. That part fixing the term at five years, it is in effect in- sisted, may be declared void, and the balance of the section stand. To support this contention, counsel quote from Clem. v. State, [33 Ind. 526,] as follows: **The question is as to the application of this restriction. Does it in the case in hand render the creation of the office a void act ? . . . . But we are of opinion that the restriction cannot be held to apply where, as in this case, no tenure is stated. The preceding part of the section provides, that 'when the duration of any office is not provided for by this constitution it may be declared by law ; and, if not so declared, such office shall be held during the pleasure of the authority making the appoint- ment.' This language seems to be conclusive in support of the position that an office may be created by law though its duration be not fixed, as in this case. If fixed at a longer term than four years by the act creating it, there would then be a question whether the creation of the office was not void, or whether valid, but its tenure limited to four years by force of the constitution." This is as much, if not more, against appellees' contention than for it. It not only suggests the query whether the question raised by their contention should be decided for or against them but it furnishes a basis for reasoning out the question against appellees. It is to be observed that it is not the tenure of more than four years that is prohibited, but it is the creation of an office, the INDIANAPOLIS BREWING CO. V. CLAYPOOL. 23 tenure of which shall be longer than four years. The forbidden act is the creation of the office of the particular description given as much as the inhibition of more than four years' tenure. It would seem, therefore, that it is the creation of the office that is void, as much, if not more, than the act of affixing a tenure of more than four years. If the language were : "No office created by the legislature shall have a longer tenure than four years," we should have a very different question to decide. Our attention has been called to a decision of the supreme court of Kansas upon a constitutional provision precisely like our own, wherein it is claimed a different conclusion was reached by that court. Lewis v. Lewelling, 53 Kan. 201, 36 Pac. 351. The report of the case is so meagre that it is not easy to understand the reason, if there was any reason, for the conclusion indicated. The only reason assigned for the conclusion reached is the decision of the supreme court of California cited. The whole of what the supreme court of Kansas said upon that branch of the ease is as follows: **The provision in section four permitting officers to be commis- sioned for a term of five years is violative of section two, article fifteen, forbidding the legislature to create any office the tenure of which is longer than four years. Military officers are within the provisions of the constitution. "Where the statute fixes a term of office at such a length of time that it is unconstitutional the tenure thereof is not declared, and therefore the office is held during the pleasure of the appointing power. People v. Ferry, 79 Cal. 105, 21' Pac. 423." No reason is assigned by the Kansas supreme court why the con- stitutional inhibition forbidding the Kansas legislature to create any office of a certain tenure did not render the forbidden act void. The forbidden act there as here was the creation of the office in plain language of unmistakable meaning. As the Kansas supreme court gave no reason; why such language should not be given its full force and meaning, except to cite the California case, we must assume that the reasoning in that case is the only reason on which the Kansas court reached its conclusion. But, when we examine the case, we find that it furnished no reason whatever for the Kansas decision, on account of the radical differ- ence in the constitutional provisions of California and Kansas. The provision as it stood in both the old and new constitution of California received the consideration of the California supreme court in that case. That in the old reads as thus: "Nor shall the 24 OFFICES AND OFFICERS. duration of any office not fixed by the constitution ever exceed four years;" and in the new constitution it was: "But in no case shall such term exceed four years." This language in no way forbids the creation of the office with a tenure exceeding four years, but simply limits the tenure of all offices created by the legislature to four years. This language fully justifies the conclusions reached by the California supreme court. But it furnished no reason what- ever for the decision of the Kansas supreme court, under a con- stitution, as ours, forbidding the creation of the office with a ten- ure exceeding four years. If the act was forbidden then, it was, in so far as it created the office, in violation of the constitution. It therefore appears that the Kansas decision is in plain violation of the constitution of that state, and rests on no reason whatever. Such a decision we ought not and cannot follow. It would seem to follow that so much of sections one and two of said act as creates the office of park commissioner with a tenure of five years is in violation of the constitution, and void. All the bal- ance of the act is inoperative, for the sole reason that there are no instrumentalities left with which to carry them into operation and effect. It results that the defendants are doing acts affecting the plain- tiff's rights that they have no authority of law to do, because there is no such office the duties of which they claim to be exercising. Hence, the complaint stated a good cause of action, and the circuit court erred in sustaining a demurrer thereto. The judgment is reversed, with instructions to overrule the de- murrer, and for further proceedings not inconsistent with this opinion. Monks, J., dissenting. KOCH V. MAYOR, ETC. Court of Appeals of New York. March, 1897, 152 N. Y. 72. Vann, J. On the 10th of May, 1895, the legislature of the state enacted that: "From and after midnight of the thirtieth day of June, 1895, the office of police justice in the city and county of New York is abolished, and all power, authority, duties and KOCH V. MAYOR, ETC. 25 jurisdiction then vested in the police justices in the said city and county of New York, and in the courts held by them, including the Court of Special Sessions, and in the board of police justices, and in the clerks, deputy clerks and police clerks' assistants, and in all other officers and employees of said justices or courts, or of the board of police justices, shall cease and determine." L. 1895, ch. 601, § 1. The main question presented for decision by this appeal is, whether that section is in violation of the constitution of the state. The provision that he relies upon to. nullify the legislation in question is section 22 of article VI., which is as follows: ** Justices of the peace, and other local judicial officers, provided for in sec- tions seventeen and eighteen, in office when this article takes effect, shall hold their offices until the expiration of their respective terms." I think that section twenty-two wias intended to operate as a saving clause, and that it has no other effect. This left the legislature with untrammeled power to repeal the act creating the offices in question and to re-organize the local courts of criminal jurisdiction in the city of New York upon the new basis that it adopted. While we are all of one mind as to the power of the legislature to pass the act under review, we differ as to the meaning of section twenty-two of article six. The views of some members of the court upon the question have already been expressed. Others are of the opinion that the intention of the constitution was to re- tain the police justices in office for their respective terms until, by the lapse of time, death or otherwise, outside of legislation, their terms should expire; that, if there had been no abolition of the court, this legislation could not be sustained; that it would not have been competent for the legislature to declare that the offices of these justices should terminate and be vacant and to provide for the election of others in their places during the periods for which they were appointed ; that, however, there was no intention to take away from the legislature the right of abrogating the court, and that the abrogation of the court carried with it as a necessary and inseparable incident the termination of the official life of the several incumbents of the office ; that as the new court differs in its organization and jurisdiction from the old we have no power to say that the abolition of the court was a scheme to turn these men out of office, or to speculate on the reasons which induced the legisla- 26 OFFICES AND OFFICERS. ture to exercise the acknowledged power to abolish courts not established by the constitution, and that the act in question is, therefore, valid. While we thus differ as to the method of reaching the result, we are all of the opinion that the legislation, challenged by this appeal, is not in violation of the constitution, and that the judgment should be affirmed. All concur. Judgment affirmed. The power to abolish a municipal office is possessed hy the cor- porate authority which by law has the power to establish the office, Au- gusta V. Sweeney, 44 Ga. 463. An office not being a contract, Attor- ney General v. Jochim, 99 Mich. 358, infra, the legislature may shorten its term, Butler v. Pennsylvania, 10 How. U. S. 402, supra; increase its duties without increasing its emoluments, or diminish its emolu- ments during the term of an incumbent, Taft v. Adams, 3 Gray, 126; People V. Devlin, 33 N. Y. 269; State v. Douglass, 26 Wis. 428, CHAPTER II. THE FORMATION OF THE OFFICIAL RELATION. I. The Law of Elections. 1. The right to vote. KINNEEN V. WELLS. Supreme Judicial Court of Massachusetts. May, 1888. 144 Mass. 497. Devens, J. The case at bar is an action of tort against the registrars of voters in the city of Cambridge to recover damages for wrongfully refusing, as the plaintiff alleges, to register him as a voter for the state election of 1886 The case raises but a single question, although one of much im- portance. The defendants refused to register the plaintiff be- cause he had been naturalized thirty days previously to his applica- tion for registration. They were fully justified in so doing, under the St. of 1885, c. 345, Sec. 7, if the provisions of this section are constitutional. This section enacts that '*no person hereafter naturalized in any court shall be entitled to be registered as a voter within thirty days of such naturalization." By naturalization, the plaintiff became eo instanti a citizen of the United States, and therefore a citizen of the .... state of his residence. The right or privilege of voting is a right or privilege arising under the constitution of each state, and not under the Constitution of the United States. The voter is entitled to vote in the election of officers of the United States by reason of the fact that he is a voter in the state in which he resides. He exercises this right be- cause he is entitled to by the laws of the state where he offers to exercise it, and not because he is a citizen of the United States. United States v. Anthony, 11 Blatchf. 200 The qualifications of voters are fixed by State legislation. The requisitions as to ownership of property, citizenship, sex and 27 28 FORMATION OP THE OPPICIAL. RELATION. residence, in connection with the right of voting, vary with the constitutions or laws of the several states. However, unwise, un- just, or even tyrannical its regulations may be or seem to be in this regard, the right of each State to define the qualifications of its voters is complete and perfect, so far as it is controlled by the fifteenth article of the Amendments of the Constitution of the United States, which provides that ' ' the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any state, on account of race, color or previous condi- tion of servitude. "1 The question whether Sec. 7 of the St. of 1885, c. 345, is con- stitutional, must be decided by determining whether this legislation is in conformity with the constitution of this commonwealth or whether it adds anything to the qualifications which the voter is thereby required to possess, and thus interferes with the enjoy- ment of the rights with which this Constitution invests him. The third article of the Amendments of the Constitution of Mass- achusetts, adopted in 1821, is as follows: "Every male citizen of twenty-one years of age and upwards, excepting paupers and persons under guardianship, who shall have resided within the commonwealth one year, and within the town or district, in which he may claim a right to vote, six calendar months next preceding any election of governor, lieutenant-governor, senators, or repre- sentatives, and who shall have paid, by himself, or his parent, mas- ter, or guardian, any state or county tax, which shall, within two years next preceding such election, have been assessed upon him, in any town or district of this Commonwealth ; and also, every citizen who shall be, in all other respects, qualified as above mentioned, shall have a right to vote in such election of governor, lieutenant- governor, senators and representatives; and no other person shall be entitled to vote in such elections." A reading and writing qualification was established in 1857, by article 20 of the Amendments of the Constitution. But this it will not be necessary to consider in the present discussion. The qualifications of voters are thus defined with clearness and precision ; without the possession of these, the citizen or inhabitant cannot exercise the privilege of voting, and as whoever possesses them is by the Constitution entitled to this privilege, legislation cannot deprive him of it. By the Constitution, c. 1, sec. 1, art. 4, >In the territories Congress determines who shall vote. Murphy v. Ramsay, 114 U. S. 15, 44. KINNEEN V. WELLS. 29 full power and authority are given to the General Court ''from time to time to make, ordain, and establish, all manner of whole- some and reasonable orders, laws, statutes, and ordinances, direc- tions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof." To the provisions of the Constitution all legislation is thus made subordinate, and it cannot add to nor diminish the qualifications of a voter which that instrument has prescribed. Blanchard v. Stearns, 5 Met. 298, 301; Williams v. Whiting, 11 Mass. 424, 433 The plaintiff according to the allegations of his declaration possessed, when he offered himself for registration, all the quali- fications of a voter required by the Constitution. Any legislation by which the exercise of his rights is postponed diminishes them, and must be unconstitutional, unless it can be defended on the ground that it is reasonable and necessary, in order that the rights of the proposed voter may be ascertained and proved, and thus the rights of others (which are to be protected as well as his own) guarded against the danger of illegal voting. The plaintiff in the case at bar does not contend that the legis- lature has not the right to make any reasonable, uniform, and impartial regulation of the mode of exercising the right of suff- rage, and also of ascertaining the qualifications of voters. He denies that section 7 of the statute under discussion is of this character. If section 7 of the St. of 1885, c. 345, were general in terms, and allowed no person to register as a voter until he had possessed the requisite qualifications for a period of thirty days, it would be difficult to maintain its constitutionality. It would still provide for adding another qualification to those required by the Constitu- tion, as much as if the period of domicil within the town or the Commonwealth, required by the constitution before voting, were extended to a longer period. State v. Williams, 5 Wis. 308 ; Quinn v. State, 35 Ind. 485. But serious as these objections would be to the constitutionality 80 FORMATION OP THE OFFICIAL RELATION. of a general law applicable to all classes of citizens, it is not necessary now to consider them, as the section of the statute in question presents a diflficulty even more serious. It undertakes to prevent a single class of citizens, namely, those who are naturalized, possessing all the qualifications established by the constitution of the Commonwealth, from exercising the right with which the constitution invests them, for a period of thirty days, by for- bidding the registrars of voters to register them during that period. All citizens must stand equal before the law, and the statute, assuming them to be citizens, imposes this prohibition upon them as citizens of a specified class. A statute regulating the ex- ercise of the right of suffrage, or the ascertainment of the qualifica- tions of voters, must not only be reasonable in its character, but uniform and impartial in its application. If it were possible to impose a period of probation upon all qualified citizens before they were entitled to exercise the privilege, it certainly is not possible under the constitution to select a single class and impose it on this class alone. It was suggested at the argument, that the section of the statute here in question might be upheld as a reasonable regula- tion to protect the public from possible fraud in obtaining certifi- cates of naturalization, and that the delay of thirty days before naturalized citizens are permitted to register allows this investi- gation. But the board of registrars is not competent to pass upon the question whether a certificate of naturalization was er- roneously granted, nor can such a certificate be thus attacked before them collaterally. The only question upon this part of their in- quiry into the qualifications of the applicant is whether he is in fact the person named in the certificate he produces, if such certifi- cate be itself properly authenticated. It is a question of identity solely. No argument in favor of the constitutionality of the section can be founded upon any peculiarity in the situation of naturalized citizens, which renders an inquiry in regard to their qualifications different from similar inquiries when applied to all other citizens. The regulation which it assumes to make is partial, and calculated injuriously to restrain and impede, in the exercise of its rights, the class to which it applies, in that it denies to this class, for the period of thirty days, the exercise of a right which the con- stitution has conferred upon it. There is no warrant for this within the just and constitutional limits of the legislative power. ROGERS V. JACOBS. 31 which permits reasonable and uniform regulations to be made as to the time and mode of exercising the right of suffrage, and as to the ascertainment of the qualifications of voters. We must therefore pronounce section 7 of the St. of 1885, c. 345, to be unconstitu- tional. Where the constitution prescribes who are voters the legislature may not require the payment of taxes where that is not required by the constitution or residence in the district for a longer period than that provided in the constitution as a qualification for voting. People V. Canaday, 73 N. C. 198; St. Joseph etc., R, R. Co. v. The Buchanan County Court, 39 Mo. 485. Nor may the legislature take away any of the constitutional qualifications as by permitting women to vote where the constitution requires the male sex. Coffin v. Election Com- missioners, 97 Mich. 188; In re Gage, 141 N. Y. 112. ROGERS V. JACOBS. Supreme Court of Kentucky. January, 1889, 88 Ky. 502. Chief Justice Lewis delivered the opinion of the court. Appellant, a citizen and owner of real and personal property in the city of Louisville, instituted this action for an injunction to prevent appellees, mayor and auditor, issuing certain municipal bonds which the general council, by an ordinance passed October 20, 1888, authorized and sold for purposes therein specified, in case of approval by a majority of qualified voters of the city voting at an election that was held November 14, 1888. As the only cause stated in the petition, or now relied on in argument, for the relief prayed for, is that the election is void for the reason it was held in the manner prescribed by an act of the General Assembly, entitled "An act to regulate municipal elec- tions in the city of Louisville," approved February 24, 1888, the only question necessary or proper to be decided on this appeal is whether that statute is valid. It is contended that the act conflicts with three distinct provis- ions of the Constitution. 82 FORMATION OF THE OFFICIAL RELATION. 3. Section 5, article 10, which provides that all elections shall be **free and equal." A statute requiring votes to be given by ballot need not, any more than the mode of voting viva voce, operate unequally, or so as to deprive any person entitled of the privilege of suffrage, and if the one we are considering conflicts with that clause of the con- stitution, or denies the privilege of free suffrage, which really ex- ists independent of that section, it is simply on account of defect or vice of some particular provision, not indispensable to the general or successful operation of the law. And the only ques- tion about which we have any diflSculty is in regard to section 9, that, by requiring each voter to retire to a compartment, and there being alone and unaided, indicate by a mark on his ballot the various candidates, for numerous offices, he wishes to vote for, practically operates to deprive those unable to read or write of a free and intelligible choice, and, in fact, makes free suffrage as to them a matter of chance or accident. And thus, while the rights and interests of many may be involved, and should not be denied or jeopardized by nullifying the entire statute already in operation, if it is in other respects valid, we have no right to sanction any law, or part of a law, that takes from a single human being his constitutional rights. It is, however, permissible and often im- portant, to limit the operation of, disregard or strike from a statute one or more provisions that conflict with the constitution, rather than allow them to vitiate the whole. And in accordance with, or at least in analogy to, that rule, section 9, must be held inoperative to the extent it, in the manner mentioned, deprives illiterate persons of the opportunity and means of freely and in- telligently voting, for they have the right to avail themselves of whatever reasonable aid and information may be necessary to en- able them to cast their ballots understandingly, and cannot be legal- ly deprived of it. But as the statute is valid in other respects, the general demurrer to the petition was properly sustained, and judgment dismissing the action is affirmed. ATTY. GENL. EX REL. CONELY V. COMMON COUNCIL. 33 ATTORNEY GENERAL EX REL. CONELY V. COMMON COUNCIL. Supreme Court of Michigan. December, 1889. 78 Mich. 545. MoBSE, J. At the last session of the legislature an act was passed, entitled: "An act to preserve the purity of elections and guard against abuses of the elective franchise, in the city of Detroit." This act was approved by the governor July 1, 1889, upon which day it took effect, and became operative. Local Acts of 1889, p. 994. The relator, in his petition, sets forth that the common council of the city of Detroit has neglected and failed to comply with the law, and still fails and neglects to do so, although well aware that the necessity of such compliance is reasonable and urgent; and he believes that said common council intend to ignore the act entirely, and that such body intend to hold the city election to take place in November, 1889, under the registration and election laws in force before the passage of this act, the same in every respect as if no such act had been passed. The Attorney General therefore asks that this court issue a peremptory mandamus to compel said common council to provide suitable and proper means for the registration of electors. The common council of the city of Detroit, in answer to the order to show cause why the writ of mandamus should not issue to compel them to obey this law, says : 3. That this law will also disfranchise a large number of elec- tors, residents of Detroit, who do business outside of and away from said city, as such persons will necessarily be absent from the city during the days fixed by this act for registration. 4. That it will also disfranchise those persons who from sickness are unable to appear before the boards of registration on such days. 5. That it will disfranchise those moving from one ward to another after the last day of registration, who are electors under the constitution and general laws of the state as to qualifications of voters. 34 FORMATION OP THE OFFICIAL RELATION. That for these reasons, and for other good and substantial rea- sons appearing upon the face of the law, the act is inoperative, burdensome, unreasonable, unconstitutional and void. Upon hearing and argument of this matter upon petition and answer, we, on October 11, 1889, denied the application for the writ. The reasons for so doing will now be stated. In my view the law is unreasonable and void in that it under- takes to disfranchise a large number of voters, through no fault of their own, and to make an unjust and unlawful distinction between the rights of native-bom and naturalized citizens and electors. The constitution authorizes the legislature to enact laws "to pre- serve the purity of elections, and guard against abuses of the elective franchise;" but this does not authorize by direction or indirection, the disfranchisement, without his own fault or neg- legence, of any elector under the constitution. Article 7, sec. 6. The constitution provides that — "In all elections, every male citizen, every male inhabitant residing in the state on the 24th day of June, 1835, every male in- habitant residing in the state on the first day of January, 1850, who has declared his intention to become a citizen of the United States, pursuant to the laws thereof, six months preceding an elec- tion, or who has resided in the state two years and six months, and declared his intention as aforesaid, and every civilized male in- habitant of Indian descent, a native of the United States, and not a member of any tribe, shall be an elector, and entitled to vote; but no citizen or inhabitant shall be an elector, or entitled to vote at any election, unless he shall be above the age of twenty- one years, and has resided in this state three months, and in the township or ward in which he offers to vote ten days next preceding- such election." By this section of the constitution it will be noticed that there are five distinct classes of persons who are made electors, and the only qualification to any of these classes is that the elector shall be of age, and have resided in the state three months, and in the township or ward where he offers to vote ten days, next pre- ceding the election. It cannot be for a moment contended that by section 6 of article 7 the framers of the constitution intended to give the legislature power to arbitrarily disfranchise any elector who is such under section 1 of the same article, or to make any difference between the rights of any of the classes of elector* therein specified, or to put obstacles in the way to the ballot box ATTY. GENL. EX REL. CONELY V. COMMON COUNCIL. 35 for one class, while the road is left open to another. The laws to regulate elections, and to preserve their purity, and to guard against abuses of the elective franchise, must be reasonable, uni- form, and impartial, and must be calculated to facilitate and se- cure, rather than to subvert and impede, the exercise of the right to vote. Capen v. Foster, 12 Pick. 488. Let us examine the act before us. See Local Laws of 1889, p. 994. The plan of registration under this law is extensive and minute in its details. In this discussion we shall only concern our- selves with its general features and results. It provides that in the year 1889, and again in 1892, and every fourth year thereafter, striking by design or accident, a presidential election year, there shall be a new complete and general registration of voters in the city of Detroit. And it is made the duty of every elector to see that his name is registered in compliance with the requirements of the law, and he shall not be deemed to have acquired a legal resi- dence in the precinct unless he has so caused himself to be reg- istered, '*nor shall any ballot be received by the inspectors at any election, under any pretense whatever, unless the name of the person offering such ballot shall have been entered in the register of the precinct in which he claims to vote as herein provided." Sections 3 and 4. The elector must personally apply to the board for registra- tion, and such board *' shall examine each applicant." Persons who will be of age on election days, having the other qualifications of electors, may be entered on the register. "Every applicant, in the years when a general new registration is required, who has commenced to reside in such precinct, and who has resided therein at least two days," if he be otherwise qualified, shall be entered on the register, and can vote on election day, if he has resided therein ten full days next preceding. Section 7. The meeting of these boards of registration for 1889, and for 1892, and every four years thereafter, is first to be held on the first Monday of October, at which time the board sits for four days, and also again one day, on the fourth Monday of October. The law makes no provision for any other registration in the years of this new or general registration. In this year, the fourth Monday of October came on the 28th and the city elec- tion on the 5th of November, there being seven days between the last day of registration and election day, but whenever the month of October begins on Sunday, Monday or Saturday more than ten days will ensue between the last day of registration and 36 FORMATION OF THE OFFICIAL RELATION. the day of election, and, as the act requires that the elector must have actually resided in the precinct two days before his name can be entered on the registry book, this act, in the years of general registration, will disfranchise every voter who has not resided sixteen or more days in the precinct before election day, whenever the month of October begins on either one of these three days. For instance, in 1888, October began on Monday. The fourth Monday was the 22d. The general election day was Novem- ber 6, leaving 14 full days between the last day of registration and election; and, adding the two days, every elector not residing within the precinct for 16 full days before the day of election, under this act, would have been deprived of his vote. This would be in direct conflict with the constitution, which makes him an elector upon a residence of 10 days. No such regulation as this is reasonable. There is no good reason why the boards of registra- tion cannot sit within the ten days before election, and thereby pre- serve to each elector his constitutional right. Nor is this all. If the legislature can make the residence 12 or 16 days, it can make it a month, three months, one year. This, in my opinion, cannot be done indirectly, under the guise of regulation, any more than it can be done directly, as a mere exercise of the legisla- tive will. And no one will contend that the legislature could prescribe by statute that a resident of the City of Detroit must reside in a precinct 12 days, 16 days, or a month, before his ballot could legally be taken on election day, in the face of the constitution, which provides that he need reside therein but ten days. But more unreasonable yet is this act in that it contains no provision by which a person who is sick or absent on the days of registration can vote on election day. It may be said, with some show of reason, perhaps, that a person who is absent on the registration days is himself in fault, in not returning to his home, and complying with the regulations which the legislature have a right to prescribe; but the man who is ill and unable to attend the meetings of the board, but who is able to be out on the day of election, is deprived of his ballot, and for no good reason, that I can see. And neither do I think there is any necessity of dis- franchising a large number of business men, who will be disfran- chised unless they drop important business, and travel many miles to be registered, some seven or more days before election. There are, under this law, but five days in the whole year that an elector ATTY. GENL. EX REL. CONELY V. COMMON COUNCIL. 37 can cause his name to be placed on the registry list; and this, un- mistakably, by the provisions of the act, he must do personally. There is no state in the union that has ever sustained a law like this, except Illinois. All of the registration laws that have been upheld by the courts of other states have contained some provision by which a sick or absent voter might not necessarily be disfran- chised, excepting the law of 1885 in Illinois. See People v. Hoff- man, 116 111. 587, 5 N. E. Rep. 596 and 8 id. 788. In our own state the provision as to sick and absent voters is well known; and so far no great abuse of the elective franchise has been developed from the exercise of the privilege therein granted, of registering on election day. How. Stat. Par. 93. The object of a registry law, or of any law to preserve the purity of the ballot-box, and to guard against the abuses of the elective franchise, is not to prevent any qualified elector from voting, or unnecessarily to hinder or impair his privilege. It is for the purpose of preventing fraudulent voting. In order to prevent fraud at the ballot-box, it is proper and legal that all needful rules and regulations be made to that end; but it is not necessary that such rules and regulations shall be so unreason- able and restrictive as to exclude a large number of legal voters from exercising their franchise. Nor can the legislature, in at- tempting, ostensibly, to prevent fraud, disfranchise legal voters without their own fault or negligence. The power of the legisla- ture in such cases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. The right to vote must not be impaired by the regula- tion. It must be regulation not destruction. Page v. Allen, 58 Penn. St. 338; Dells v. Kennedy, 49 Wis. 555; Edmonds v. Ban- bury, 28 Iowa 267; Mdnroe v. Collins, 17 Ohio St. 665, 685; Dag- gett v. Hudson, 43 id. 561; State v. Baker, 38 Wis. 71; State v. Butts, 31 Kan. 554. These authorities all tend in one direction. They hold that the legislature has a right to reasonably regulate the right of suffrage, as to the manner and time and place of voting and to provide all necessary and reasonable rules to establish and ascer- tain by proper proof the right to vote of any person offering his ballot, but has no power to restrain or abridge the right, or un- necessarily to impede its free exercise. This law before us dis- franchises every person too ill to attend the board of registra- 38 POEMATION OP THE OFFICIAL RELATION. tion, and unreasonably and unnecessarily requires persons whose business duties, public or private, are outside of Detroit, to re- turn home to register as well as to vote, making two trips when only one ought to be required. Section 13, in reference to removals from one precinct to an- other, and the necessary steps to become registered in such cases, seems to me most unreasonable and unnecessary; but perhaps this is within the power of the legislature, as it is not absolutely impos- sible to comply with it. In my opinion, no registry law is valid which deprives an elector of his constitutional right to vote by any regulation with which it is impossible for him to comply. No elector can lose his right to vote, the highest exercise of the freeman's will, except by his own fault or negligence. If the legislature, under the pre- text of regulation, can destroy this constitutional right by annex- ing an additional qualification as to the number of days such voter must reside within a precinct before he can vote therein, or any other requisite, in direct opposition to any of the con- stitutional requirements, then it can as well require of the elector entirely new qualifications, independent of the constitution, before the right of suffrage can be exercised. If the exigencies of the times are such, which I do not believe, that a fair and honest elec- tion cannot be held in Detroit, or in any other place in our state, without other qualifications and restrictions upon both native-bom and naturalized citizens than those now found in or authorized by the constitution, then the remedy is with the people to alter such constitution by the lawful methods pointed out and permitted by that instrument This law being, in the respects pointed out, both unreasonable and in conflict with the constitution, and it being apparent that the legislature would not have enacted the other portions of the act had it foreseen that the courts would declare these parts un- constitutional, the whole act must fall and be held unconstitutional and void. Dells v. Kennedy, 49 Wis. 560, and cases cited; Dag- gett V. Hudson, 43 Ohio St. 561; Brooks v. Hydom, 76 Mich, 273; 42 N. W. Rep. 1122. The other justices concurred. MAYNAKD V. BOAED OF CANVASSERS. 39 MAYNARD V. BOARD OF CANVASSERS. Supreme Court of Michigan. October, 1890. 84 Mich. 228. Champlin, C. J. The legislature, at its biennial session of 1889, passed an act numbered 254 (3 How. Stat. 2835). Section 1 of said act reads as follows: **See. 1. The people of the State of Michigan enact, That, in all elections of representatives to the state legislature in districts where more than one is to be elected, each qualified elector may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same among the candidates as he may see fit, and the candidates highest in votes shall be declared elected. The city of Grjtnd Rapids comprises one election district, and is entitled to elect two representatives to the state legislature. It is known as "The First Representative District.'* Fred A. May- nard, the relator, is an elector residing in that district, and in his petition duly verified, in which he prays for a mandamus, states that the inspectors in several of the precincts counted and returned the cumulative votes for relator as single votes only; that the board of district canvassers met, and from the returns made a statement that, for said office of representative, White received 7,258 votes; Hayward 7,074 votes; Maynard, the relator, 5,374 votes; Thaw, 623 votes; and Belden, 1 vote, and determined that "White and Hayward were elected; that relator had the greatest number of votes, and was duly elected representa- tive; that he bases his claim to election upon the legality of said cumulative votes, and avers that if every ballot having his name only for representative as aforesaid, with the statement "two votes" opposite the name as aforesaid, shall be counted as two votes, then he received more than 10,000 votes for said office, and this exceeded the votes given for any other candidate. He admits that, if said votes cannot be counted for him cumulatively, — that is, if every ballot having the statement "two votes," as aforesaid, for him is legal only as one vote, and must be so counted, — ^then the said White and Hajnvard received a greater number of votes for representative at said election than the relator. He prays for a mandamus to compel the board of district canvassers to declare him elected, and that the chairman and clerk certify the same. 40 FORMATION OF THE OFFICIAIj RELATION. There has been in the latter half of the present century a grow- ing desire to secure to minorities a proportionate representation in legislative and corporate bodies, and from time to time schemes have been advocated by those who have desired to bring about what they claim as a reform in existing modes of election to secure to the minority a just and proportionate representation. These schemes may be reduced to four well recognized classes, viz. : 1. The "restrictive," which requires a certain number to be elected on one ticket, and prohibits any elector from voting for the whole number to be elected. Thus, if four are to be elected, no one can vote for more than two. 2. The ** cumulative," which requires three or more to be elected and permits the elector to cast as many votes as there are persons to be elected, and to distribute such votes among the can- didates as the elector may choose. 3. The ** Geneva," ''free vote" or ** Gilpin" plan. By this plan the districts are required to be large, and each party puts in nomination a full ticket, and each voter casts a single ballot. The whole number of ballots having been ascertained the sum is di- vided by the number of places to be filled, and each ticket is entitled to the places in proportion to the number of votes cast by it, taking the persons elected from the head of the tickets. This plan doubtless comes nearest to a proportional representa- tion of the minority of any plan devised which is practical for popular elections. It was originated by Mr. Gilpin in 1844, who advocated it in a pamphlet published in Philadelphia. It has never been adopted in this country, but has become the liste libre of Geneva, and is said to work well in Switzerland. 4. The "Hare" plan, or "single vote." This method is too intricate and tedious ever to be adopted for popular elections by the people. It requires successive counts and redistribution of the votes until an election is reached. The effort to realize minority representation by the use of the restrictive method was tried in Ohio, under an act passed in that state. The law was declared unconstitutional by the supreme court. State v. Constantine, 42 Ohio St., 437. That court held that it was the right of every elector to vote for every candidate or person to fill the oflfices provided by law to be elected by vote of electors, and a law which said that no person could vote for more than two of the four persons to be elected took away from the elector a substantial right guaranteed to him by the constitution. In Pennsylvania, Mr. Buckalewe for many years advocated the MAYNARD V. BOARD OF CANVASSERS. 41 adoption of the system of cumulative voting in order to secure minority representation; and, mainly through his efforts, in 1874 a provision was inserted in the constitution of Pennsylvania (ar- ticle 16, section 4) permitting stockholders in corporations to vote cumulatively upon the shares of stock. It was held in Hays v. Com., 82 Penn. St. 518, that, as to corporations existing at the time the constitutional provision was adopted, the constitutional provision could not apply, because it interfered with and affected existing vested rights. In Nebraska (article 11, section 5), . . . . and in Califor- nia (article 12, section 12), by constitutional enactment, cumula- tive voting is permitted upon stock in corporations. So far as I am aware, Illinois is the only state which has tried the experiment of cumulative voting for members of the legislature. It is sig- nificant that all the states which have authorized such voting have submitted it to the people for their adoption as a part of the fun- damental law. In Ohio the legislature endeavored to authorize it without a constitutional amendment, and it was declared uncon- stitutional. Such has been the action of other states. Is the law contrary to the constitution of this state? The provisions of the constitu- tion bearing upon this question are those relating to elections, and those to the election of representatives. It was conceded upon the argument by counsel who appeared to defend the constitutionality of this law that, when the consti- tution was adopted, no such thing was thought of as cumulative voting; that it is a recent invention; and that our people, when they adopted the constitution, had no thought of investing the legislature with the right of enacting a cumulative voting law ; but they contend that, no matter what has been the uniform custom, the legislature has the power to enact a cumulative voting law, or any other law that is not expressly or by plain implication forbid- den them to do by the constitution. there is in my mind no doubt that the act under consideration is unconstitutional. The constitution is the out- growth of a desire of the people for a representative form of gov- ernment. The foundation of such a system of government is, and always has been, unless the people have otherwise signified by 42 FORMATION OP THE OFFICIAL RELATION. their constitution, that every elector entitled to cast his ballot stands upon a complete political equality with every other elector, and that the majority or plurality of votes cast for any person or measure must prevail. All free representative governments rest on this, and there is no other way in which a free government may be carried on and maintained. That the majority must rule, lies at the root of the system of a republican form of government no less than it does in a democratic. When there are more than two candidates for the same office placed in nomination, it may often happen that one candidate, although he may receive more votes than any other, may not receive a majority of the votes cast. Still the principle of majority rule is preserved, for in such case more of the electors prefer such candidate than they do any other par- ticular candidate to represent them. It is the constitutional right of every elector, in voting for any person to represent him in the legislature, to express his will by his ballot; and such vote shall be of as much influence or weight in the result, as to any candidate voted for, as the ballot and vote of any other elector. The con- stitution does not contemplate, but by implication forbids, any elector to cast more than one vote for any candidate for any office. This prohibition is implied from the system of representative gov- ernment provided for in that instrument. The political history of the state from 1836 to the present time shows that every elector has an equal voice in the choice of those who shall represent the people in the legislature. It is implied in those provisions of the constitution which require that repre- sentatives in the legislature shall be chosen by ballot, and by single districts. By these provisions every elector expresses his wish by ballot, and a single vote is implied. It is implied in those pro- visions of the constitution that declare that every male citizen of twenty-one years of age, and possessing the qualifications pre- scribed, shall be entitled to vote at all elections ; and that all votes shall be given by ballot, except for such township officers as may be authorized by law to be otherwise chosen. Giving to the language of the constitution its ordinary signifi- cation, it declares the principle that each elector is entitled to express his choice for representative, as well as all other officers, which is by his vote, and the manner of expressing such choice is by ballot. When he has expressed his preference in this manner, he has exhausted his privilege; and it is not in the power of the legislature to give to his preference or choice, without conflicting MAYNARD V. BOARD OF CANVASSERS. 43 with these provisions of the constitution, more than a single ex- pression of opinion or choice. As to members of the legislature, county or township officers, the constitution nowhere in express terms prohibits the legislature from enacting a law that the cer- tificates of election shall be issued to the person having the least number of votes. This is practically what is asked for in this case, for relator admits that he has received a minority of the votes cast, if each relator [elector] can cast but one vote for a candidate. No one would contend that a law declaring the person who re- ceived the least number of votes elected to an office would be a constitutional and valid law; and yet we cannot lay our finger on the clause prohibiting in terms such legislation. It is true, the constitution does not prohibit the legislature by express language from concocting some scheme by which the equal- ity of the electors in the choice of representatives may be impaired or defeated. There is nothing in the constitution which by ex- press language prohibits the legislature from enacting a law pro- viding that such electors as appear by the assessment roll of the preceding year to have been assessed $1,000 and upward shall have an additional vote for each $1,000 for which they are assessed and pay taxes on. This would permit every elector qualified under the constitution to vote at least once, and others to vote as many times as they were assessed $1,000 upon the assessment roll. It requires no argument to show that such legislation would defeat the object of the elective franchise, which is that every elector's franchise is of equal value to that of every other elector, and it would subvert the will of the people as expressed through the bal- lot. And such is the case before us. No reason can be given why, under our constitution, one elector should be permitted to vote twice or seven times for any particular person to represent him in the legislature, when any other elector, who desires to exercise the right which the constitution gives him to vote for every person allowed by law to represent him in the legislature, is permitted to vote but once. The choice of the elector, as expressed by the ballot, who * * plumps ' ' his vote under this law is equal to the choice of two electors in Grand Rapids, or to seven in Detroit, who exer- cise the right which the constitution gives him to vote for every candidate to be chosen. It is no answer to say that he, too, may forego the right of an elector to vote for the number of repre- sentatives which the law permits in cities entitled to more than one representative; for to do so he is compelled to relinquish a constitutional right, and his right as an elector is in this respect 44 FORMATION OP THE OFFICIAL RELATION. abridged. What different in principle or in result is this law, which permits one elector to cast more than one vote for a can- didate, from the act of a person who stuffs a ballot-box with more votes for a particular candidate than there were electors voting for him ? The only difference is that in one case the will of the majority is overcome and defeated under the forms of law, and in the other without law. Both are frauds upon the rights of the majority of the electors; both alike strike down the constitutional safeguards of the people ; both are subversive of a free representa- tive government Any construction of the constitution which will permit an elector to vote more than once for the same person to be a repre- ( sentative, would destroy that uniformity of the right of every elector, wherever he may reside in this state, to cast one vote, and but one vote, for each representative for which he is entitled to vote; and as was said by Mr. Justice Campbell in the case of Attorney General v. Detroit Common Council, 58 Mich. 216: "It cannot be lawful to create substantial or serious differences in the fundamental rights of citizens in different localities in the exercise of their voting franchise." The law under consideration does create substantial and serious differences between the rights of the electors in Grand Rapids and in Detroit and those of other parts of the state, in the exercise of their voting franchises. In Grand Rapids it defeats the will of a majority of the electors, and, instead of securing a minority representation, it gives an equal representation with the majority. In Detroit, as stated upon the argument of the learned counsel, instead of that municipality being represented in the legislature by those electors who constituted a majority who voted for repre- sentative, and, if no elector had voted more than once for any candidate, such majority would have elected seven representa- tives, the minority of the electors voting have elected four out of the seven by "plumping" their votes in different parts of the city. Here the will of the majority has been defeated and overridden by votes which do not represent the will of an individual elector in each case, but which do represent, if the law is constitutional, a legal stuffing of the ballot-boxes with false votes. In this state, no matter by what means accomplished, whether because a candidate who receives a majority of the votes is ineligible, or whether an elector votes more than once for a candidate, no person is elected who receives only the vote of a minority of the electors voting. People V. Molitor, 23 Mich. 341. Although the constitution re* HANNA V. YOUNG. 45 quires representatives to be elected upon a general ticket in the cases specified, yet every elector is not obliged to vote for every office to be filled, or for every person on the ticket. He may vote for one or more. But he cannot vote more than once for any person, for the reason before stated Upon consideration of the whole record, the application must be denied. Morse and Long, JJ., concurred with Champlin, C. J. Cahill, J., dissenting. Where limited or cumulative voting Is permitted by the constitution for certain officers it may be provided by the legislature for others. Commonwealth v. Reeder, 171 Pa. St. 505; People v. Nelson, 133 111. 565. HANNA V. YOUNG. Court of Appeals of Maryland. June, 1896. 84 Md. 179. Egberts, J., delivered the opinion of the court. The sole object of this appeal is to test the validity of the 30th section of the Act of the General Assembly of Maryland, passed at January session, 1896, ch, 359 The facts proper to be stated are that an election for five town commissioners was held in the town of Bel- Air, on the first Mon- day of May, 1896, and conducted in accordance with the pro- visions of its charter as amended by the act of 1896, except that judges of election, as required by section 30 of said act, did not, as a condition precedent, require of each person offering to vote at such election, to show that he was assessed with one hundred dollars' worth of real or personal property on the tax book of said town before he was entitled to vote. The said judges of election ignored this provision of the Act of 1896 and allowed all male citi- zens residing within the corporate limits of Bel-Air above the age of twenty-one years to vote, notwithstanding the right of a number of said citizens to vote was challenged, upon the ground that they were not assessed with the requisite amount of property. The election was accordingly conducted as if the Act of 1896 had not been passed or was void of legal effect. The result of the 46 FORMATION OP THE OFFICIAL RELATION. election was that the five persons receiving the highest number of votes acted as if they had been duly elected; having qualified and organized, they proceeded to elect James C. Young, the peti- tioner in this case, treasurer of the town of Bel- Air, for the ensu- ing year. The petitioner and appellee here, having qualified, demanded of the appellant who had on the first Monday of May, 1895, been elected treasurer of Bel- Air, the possession of the books, papers and other property of the town then in his posses- sion. This the appellant refused to yield and the appellee ac- cordingly filed his petition in the court below, for the writ of mandamus to compel the delivery to him of said books, etc. The appellant answered said petition, denying the validity of said elec- tion and justifying his refusal to deliver said books, etc., because the judges conducting said election had failed and refused to ob- serve and give effect to the provision of the Act of 1896, which prescribed a property qualification for said electors voting at said election. Whereupon issue was joined and the case was heard by the court below, without the aid of a jury. The court directed the writ to issue and from the order of the court this appeal is taken The contention here is that the 30th section of the Act of 1896 is directly in conflict with the provisions of Art. 1, sec. 1, of the constitution of the state, which reads as follows: "All elections shall be by ballot, and every male citizen of the United States, of the age of twenty-one years, or upwards, who has been a resident of the state for one year, and of the Legislative District of Balti- more City, or of the county, in which he may offer to vote, for six months next preceding the election, shall be entitled to vote, in the ward or election district, in which he resides, at all elections hereafter to be held in this state." It is contended on the part of the appellant that this section of the constitution plainly comprehends and includes within its express terms, all elections, whether state or federal, county or municipal. Yet there is but one municipality mentioned in this section of the organic law, and in fact, Baltimore City is the only municipality mentioned eo nomine in any part of the constitution. This court in Smith v. Stephan, 66 Md. 381, Mr. Justice Bryan delivering the opinion of the court, said: "It is suflScient to say that no municipal elections, except those held in the city of Balti- more, are within the meaning or terms of the constitution." Whilst the constitution. Art. 3, sec. 48, authorizes and empowers the General Assembly to create corporations for municipal pur- HANNA V. YOUNG. 47 poses, it nowhere prohibits the legislature from imposing upon the qualified voters, residing within the corporate limits of a town, any reasonable restrictions it may deem proper, when seeking the exercise of the right of elective franchise in the election of its officers, In this respect the power of the legislature is unlimited. The argument advanced at the hearing in this court is to the effect that the act in question is void because the constitution has con- ferred the right and prescribed the qualifications of all electors in this state, the legislature is without authority to change or add to them in any manner. If the premises of this contention were correctly stated, the argument and sequence would undoubtedly be correct. But, as already observed, the constitution. Art. 3, sec. 48, only in general terms authorizes the creation of corporations for municipal purposes, and leaves to the legislature the enactment of such details as it may deem proper in the management of the concerns of the corporation, or which may be regarded as bene- ficial in the government of the same. The constitution of this state provides for the creation of certain offices, state and county, which are filled, either by election or by appointment; and we regard it as an unreasonable inference to suppose that municipal elections held within the state (outside the corporate limits of Baltimore City) can be properly termed elections under the con- stitution, such as state and county elections; or that the framers of the constitution ever contemplated that Art. 1, sec. 1, of that instrument was intended to apply to municipal elections, such as the one now under consideration, which is the mere creature of statutory enactment. In the creation of a new municipality, the constitution devolves upon the General Assembly the entire duty of giving vitality to and of organizing and fostering the body cor- porate without any other constitutional regulation than the man- date to provide for the system itself. It is therefore the mere creature of legislative sanction and the subject of statutory reg- ulation. In the case of State of Florida ex rel. Lamar, Attorney General v. Dillon, 32 Fla. 545, it was held that the suffrage pro- vision in the constitution of the state (which is substantially the same as Art. 1, sec. 1, in the constitution of this state), prescrib- ing the qualifications of electors at all elections under it^ does not apply to elections for municipal officers, but such elections are sub- ject to statutory regulation; and further, that it is competent for the legislature to prescribe the qualifications of voters at the same. It is only at elections which the constitution itself requires to be held, or which the legislature under the mandate of the consti- 48 FORMATION OP THE OFFICIAL RELATION. tution makes provision for, that persons having the qualifications set forth in said section 1, Art. 1, are by the constitution of the state declared to be qualified electors. Nowhere in the constitu- tion are the governments of municipalities in this state, or their officials, either clothed with power or designated as any part of our state government, but their very creation, together with all the powers and attributes which attach to their management, are lodged by the constitution with the legislative department of our state government, save in some respects the city of Baltimore. The same question now under consideration here arose in the case of McMahon v. Mayor of Savannah, 66 Ga. 217. The suf- frage clause in the constitution of the state of Georgia is almost in totidem verbis the same as that in the constitution of this state. The statute sought to be declared unconstitutional was assailed upon the ground that it imposed upon the electors of the city of Savannah the payment of a poll-tax as a condition essential to their qualification as voters at any municipal election. The court held the statute to be a valid exercise of legislative power; and further held, that "all legislative acts in violation of the constitu- tion are void, and it is the duty of the judiciary so to declare. But in considering and passing upon the question of the constitutional- ity of the law, the rule is too well established and settled to be departed from; that it must be made to appear that the statute, before it is declared inoperative for that cause, must be 'plainly and palpably' in violation of the constitution." Beall v. Beall, 8 Ga. 210. The solemn act of the government will not be set aside by the courts in a doubtful case. "The incompatibility or repugnancy between the statute and the constitution must be * clear and palpable.' " Parham v. Justices, 9 Ga. 341. We also refer to the cases of Buckner v. Gordon, 81 Ky. 666, and the Mayor of Valverde v. Shattuck, 19 Col. 104, as sustaining the views ex- pressed in this opinion. The last mentioned case was a special proceeding under a statute of the state of Colorado praying for the dissolution of the town of Valverde, and its annexation to the city of Denver. In such proceeding the county court made an order requiring the mayor and trustees of the town to call an elec- tion for the purpose of determining the question of dissolution and annexation; this order required the question to be submitted to a vote of the qualified electors of said town at such election. The mayor and trustees of the town sought to vacate the order on the ground of the unconstitutionality of the statute under which it was obtained. The statute required that the question of dissolu- EANSOM V. BLACK. 49 tion and annexation be submitted "to a vote of such of the quali- fied electors of such town or city (to be annexed) as have in the year next preceding paid a property-tax therein." The suffrage clause, section 1 of Article 7 of the constitution of the state of Colorado, is substantially the same (in so far as it involves the question under consideration in this case), as that of the Maryland constitution. Mr. Justice Elliott, delivering the opinion of the court, observes, "It is manifest that some restriction must be placed upon the phrase 'all elections' as used in section 1 (of the constitution), else every person having the qualifications therein prescribed might insist upon voting at every election, private as well as public, and thus interfere with the affairs of others in which he had no interest. In our opinion, the word 'election' thus used, does not have its general or comprehensive signification, in- cluding all acts of voting, choice or selection, without limitation, but is used in a more restricted political sense, as elections of pub- lic officers." Without extending the discussion of this question we are clearly of opinion, both upon reason and authority, that the appellee's contention is not sustained. For the reason stated, the order of the court below directing the writ of mandamus to issue is re- versed. Order reversed with costs. The counting of the votes of unqualified electors will not invalidate the election unless such votes affected the result of the election. People V. Pease, 27 N. Y. 45. 2. Power of the Legislature to Regulate the Bight to Vote. RANSOM V. BLACK. Supreme Court of New Jersey. June, 1892. 54 N. J. L. 446. Heed, J. Section 63 of the new election act reads as follows: "No voter shall knowingly vote, or offer to vote, any ballot except an official ballot enclosed and sealed in an official envelope, as by this act required. Any person violating this provision shall incur a penalty of $25.00 for each and every offense, to be recovered by an action of tort before any court of competent jurisdiction by 4 60 FORMATION OF THE OFFICIAL RELATION. any person who shall bona fide first bring suit." The defendant below voted a ballot printed at his own expense, with no endorse- ment upon the back, as is required upon official ballots, and there- fore contravened the section just mentioned. This is admitted by the prosecutor, but he attacks the judgment by challenging the validity of the statute prescribing the penalty. The indictment against the act sets out a number of particu- lars, in which it is charged that the statute is in conflict with the state constitution. . . . . Nothing, however, is established more unquestionably than that the right of suffrage is not an absolute right. No such right exists, unless specifically conferred by a constitution or a statute. It is a political right and does not flow from the declara- tory clauses of the Bill of Rights. 1 Story Const. 580, Cooley Const. Lint. 599. The question then is, whether any of the features of the statute illegally obstructs the voter in exercising the right which is ex- pressly conferred upon him. The right conferred is the right to vote for all elective offices. As to when, where and how the voting is to take place, is left to the legislature. Without the intervention of the legislature, the privilege conferred by the constitution would be fruitless. A wide field, therefore, is left open for the exercise of legislative discre- tion. The days upon which elections are to be held, the hours of the day or night during which, or between which, votes shall be received, must be determined by the legislature. So, too, the places where each election is to be held, and the size of the voting pre- cinct, and whether the size shall be measured by territory or popu- lation, must also be settled by direct or delegated legislative au- thority. The widest field for the exercise of legislative wisdom and discussion is in adjusting the method by which the sentiments of the voter shall be obtained and canvassed. The constitution does not even prescribe that the voting shall be done by ballot, and, in fact, long after the adoption of the present constitution, town- ship elections were conducted otherwise. In adopting a scheme for these purposes, it will require little thought to perceive that many considerations beside that of the voter's convenience must be regarded. The problem has been, and still is, how to gather the prevailing sentiment of the voting body so as to best conserve the purposes of popular government. The objects which have seemed the most important have been to ex- RANSOM V. BLACK. 51 elude unqualified persons and to shield the legal voter from the influences of coercion and corruption. The discovery of a scheme of voting which would the best secure these objects, has long been in the thoughts of statesmen and reformers. The ballot itself be- came the method of registering the will of the voter in Great Britain only after a long period of agitation. The advantage of a system of secret voting was stirred by the Benthamites as early as 1817. End. Brit, tit: ''Ballot.'' In 1835 the judges of the court of King's Bench doubted whether by ballot was a legal mode of holding an election in a parish to fill a vacant curacy, under a custom that the parishioners should elect a successor to a deceased curate. Faulker v. Elger, 4 Barn. & C. 449. The objection of the judges to the ballot was mainly that if a person voted who was afterwards ascertained to have been dis- qualified, there was no way of telling how he had voted. After years of discussion the ballot was adopted in local elec- tions in Manchester and Stafford in 1869, and was in 1872, by the passage of Mr. Foster's ballot act (55 and 56 Vict. c. 33), intro- duced in all parliamentary and municipal elections, except parlia- mentary elections for universities. But the mere use of the ballot has been shown by experience to be ineffectual to prevent coercion and corruption. The factor of supreme importance calculated to bring about this result is an enforced secrecy respecting the choice of the voter. So long as the ballot can be marked for identification, or the vote of the citizen can be disclosed in any way, the voter is liable to be called to an account for his conduct. The coercionist will treat his refusal to vote a marked ballot as an adverse vote. The corruptionist will have the means of assuring himself that the vote he has purchased will be delivered. The thoughts of those interested in pure elec- tions were turned by these considerations to the device of some scheme for voting which would secure compulsory secrecy, and, at the same time, provide for an orderly, equal and convenient exercise of the right of suffrage. The honor of first devising such a plan belongs to the government of the province of South Aus- tralia. In 1856 a constitution was adopted by that colony granting popular representation and manhood suffrage. In 1857-8 the elec- tion acts were passed, which typifies the system which has spread to two other continents under the name of the Australian Ballot System. The practical results of the introduction of this system is shown by the testimony of Sir Robert Richard Totten, who, as a member of the government of South Australia, had opposed the 62 FORMATION OP THE OFFICIAL RELATION. introduction of the secret ballot. His testimony, however, is that rioting and disorder had disappeared. Intimidation by landlords and trades unions had alike disappeared entirely, and the very notion of coercion or improper influences had died out. Wig- more's Australian Ballot. The good results of the Australian system induced the passage of the act of 1872 in England, already mentioned, which is based substantially on the South Australian method. Wherever similar election acts have been put in operation, the sentiment of the community has been generally favorable. While they do not ac- complish all that is desirable in the way of extirpating corrupt practices, their effect has undoubtedly been to secure quieter elec- tions, to greatly reduce corruption, and almost entirely destroy coercive influences. Now, I think, this recapitulation of the purpose and results of the class of acts of which our own is a specimen, has a pertinency to the question mooted in this case, for I think any provision in such an act which is likely to bring about a result which conduces to the purity of popular elections, should receive a favorable con- sideration. It is, of course, true, that if the effect of any pro- vision is to shut off a voter from the ballot box, such provision must fall before the constitutional guaranty of the right to vote. But in measuring cases of mere inconvenience, expense or sen- timent, the existence of a salutary purpose and the likelihood of the provision tending to accomplish that purpose must weigh greatly in determining the reasonableness of the statutory regula- tion. With these remarks let us look to the several points made against the constitutionality of the present act. The first ground of complaint is, that no electioneering is per- mitted on election day w^ithin one hundred feet of any polling place. The regulation is a proper one to avoid disturbance and disorder immediately about the polls. The second point of attack is the part of section 63 which pro- hibits any person from putting a mark upon the face or back of a ballot or envelope by which the ballot or envelope may afterwards be identified by any other person as the one voted by him; and section 30, which provides, that if any ballot shall have thereon any mark, sign, designation or device other than permitted by the RANSOM V, BLAOK. 53 act, whereby the said ballot may be identified or distinguished from other ballots east at such elections such ballot shall be abso- lutely void. The point made against these provisions of the act is, that the voter has no hand in the preparation of the ballot, but that a mark of irregularity may get on the ballot in its prepara- tion which might prevent its being counted. It is, therefore, ar- gued that a voter, through no fault of his own, may be deprived of his vote. This criticism is grounded upon a presumed fraud or neglect of duty by the persons upon whom the duty of preparing the ballots is imposed. It is, of course, entirely true, that it is possible for a vote to be rejected because of the fraud or careless- ness of such person or persons. But the same remark is true under any scheme which may be devised. Votes have been suppressed, and are constantly miscounted, in making up the results of elec- tions. An admission of the soundness of the present criticism would destroy the entire scheme of securing a secret ballot. Secrecy is impossible without uniformity in the appearance of the tickets and envelopes. That uniformity cannot be obtained unless the preparation of the ballot is put in the hands of some specified person or persons. The guards and restrictions placed around the preparations of the ballots are of the most explicit and stringent kind. The law presumes that these prescriptions of duty will be per- formed. It never presumes a neglect of official duty. I can per- ceive no substance in the objection raised against this feature of the act. The third and fourth grounds of attack upon the act may be considered together. They are directed against the provisions of section 28, providing for the nomination of candidates by peti- tion, and of section 33, regulating the printing of official ballots. The first of the complaints against this legislation is that the voter who is not a member of a party which cast five percent of the entire vote cast at the preceding election is subjected to hard- ships from which the other voters are free. To apprehend the force of this complaint, it is necessary to observe that, by the terms of section 28, any political party, which at the preceding election, polled not less than five per cent of the votes cast in the election district, may nominate and certify the names of candidates to the secretary of state (in case they are state officers), or to the county clerk if they are county officers, or to municipal clerks if 54 FORMATION OP THE OFFICIAL RELATION. the officers are municipal. These names are printed, without fur- ther party action or expense, upon an official ballot. But voters who are members of a party which cast less than this five per cent of votes, or voters who desire to organize a new party, can only obtain an official ballot by a petition. This petition must be signed, in case of a state officer, by qualified voters in number not less than one per cent, of the votes cast at the preceding election for members of assembly ; and in case of district, county, city or town- ship office, by not less than five per cent of such vote. The num- bers of signers, however, need not exceed two hundred altogether. It is insisted that the labor of gathering signatures and putting this petition into legal shape thus entailed upon a class of voters, is an unconstitutional discrimination against it in favor of the members of the older and larger parties. The second complaint is, that there is further discrimination in printing tickets. By directions contained in section 33, the county or municipal clerk is to provide for each election district two hundred and fifty ballots for every fifty or fraction thereof of votes cast therein by such party at the last preceding election for members of the general assembly, except in case of nominations by petition by any party that cast no votes for any candidate or candidates at the last preceding election for members of the gen- eral assembly. In such case the ballots furnished at public ex- pense shall be equal in numbers to one-half of the total number of votes cast in the election district at such last preceding election. It may be observed in passing, that this provision places no obstacle in the way of any party obtaining all the ballots it may wish. It only prescribes what number of said ballots shall be printed at public expense. The number of ballots printed for each party at the public expense bears relation to the number of votes of that party, so far as that number can be approximated by the result of the preceding election. When an entirely new party puts candidates in nomination, this method of calculation is of course impracticable, and the rule adopted seems reasonable. It may give to the new party more or less ballots than to some of the parties entitled to make nominations by convention. Now, in passing upon the validity of both of these provisions, it is to be noted that they in no way impede the voter in exercising his right to vote for any particular person or persons for office. He is at liberty to vote for any person by simply erasing a name from, and writing the name of the favored person upon any of- ficial ballot. It is, therefore, apparent that the right, in the exer- RANSOM V. BLACK. 55 cise of which it is claimed the voter is embarrassed, is not the right to vote, but the right to form a party and vote as one of that party. By the very frame of the complaint, the existence of parties is recognized as a part of the practical machinery for conducting elections. Now, the plan of providing official ballots, which plan is the key- stone of the secret ballot system, involves necessarily some limita- tion upon the number of party tickets and the number of party candidates. Of all the acts which have been passed to bring about this system of voting, I am sure none can be found which does not in some way circumscribe the privilege of demanding a place upon the official ballot as a party, or as a candidate of a party. If it was left in the power of each voter, or each coterie of three voters, to adopt a party name and demand that an official ballot should be printed at public expense, and distributed to each voter at the polls, the polls would probably be littered with ballots ** thick as autumnal leaves that strew the brooks in Vallombrosa. " Great expense, labor and inconvenience would result, without any appreciable benefit to the voter or to society. These regulations may not be the wisest that could have been adopted, still they are regulations which do not seriously impair the right of any citizen to vote. They are intended to restrict the number of party tickets within reasonable limits, while, at the same time, permitting any body of citizens whose number is sufficient to give importance to a concerted political movement to organize as a party. The last ground of complaint which I shall consider is the fol- lowing : That a voter whose sentiments are not in accord with the principles of any party having an official ticket, is practically deprived of his vote, because he cannot vote unless he votes a ticket having upon it the name of a party of whose principles he disapproves. . . . . I have, upon reflection, concluded that the obstruction put in the way of the voter is sentimental rather than substantial. We must view the question in a practical aspect. . . . Many features of the act may offend a voter of sensitive feelings and peculiar views. Some voters have sulked and refused to vote because of the compelled seclusion in preparing the ballot and like requirements. But these exceptional instances cannot create a standard of what should be regarded as an unconstitutional de- privation of the right to vote 56 FORMATION OF THE OFFICIAL RELATION. I am of the opinion that no legal impediment is put in the way of the voter by this requirement. As to the other matters discussed at the argument, it is enough to say that we find no material criticism of the provisions of the statute. The judgment must be affirmed. But it would seem that the legislature may not In its desire to prevent the marking of ballots oblige the voter to vote merely for the candidates whose names are on the official ballot. De Walt v. Bartley, 146 Pa. St. 529; Chateau v. Jacob, 88 Mich. 170; Sanner v. Patton, 155 111. 553, cf. State V. McElroy, 44 La. Ann. 796. 3. Construction of Election Regulations. BOYD V. MILLS. Supreme Court of Kansas. January, 1894. 53 Kan. 594. Allen, J. This is an original proceeding instituted in this court by 0. C. Boyd as plaintiff, to try the right to the office of sheriff of Barber county. The petition shows that at the election held on the 7th day of November, 1893, according to the official canvass of the votes cast, the plaintiff received 508 and the de- fendant 516 votes. The plaintiff alleges that many illegal votes were cast and counted for the defendant, and that the plaintiff received a majority of the legal votes. It is conceded that all of the ballots used in Deerhead township were of the same color, and the sole question with reference to their legality arises from the color of the paper. It is contended on behalf of the plaintiff that the statute is mandatory, and that no ballot can be counted unless it conforms strictly to the require- ments of the law; that a court is not at liberty, by construction, to do away with any of its requirements. In this contention, we think the counsel for the plaintiff is in the main correct, and that the wholesome provisions of the law are neither to be disregarded nor construed away. That the ballots in fact used were printed and furnished by BOYD V. MILLS. 57 the county clerk, and were in all respects the same as the official ballots, excepting the color of the paper, is conceded, and it is also conceded that the ballots used in the one township were uniform in color. Does this fact operate to render the election at that voting precinct a nullity? In considering the statute, we are to keep steadily in mind the evident purpose of the legislature in its enactment. It is plain that among the most prominent ends sought to be attained was that of absolute secrecy. Any mark or distin- guishing feature on the ballots which would enable a person other than the voter himself to identify the ballot, and find out how the elector voted, was intended to be strictly prohibited. The case of the People ex rel. v. Board of Canvassers, 129 N. Y. 395, is relied on. The statute of New York differs materially from our own. The law requires that "on the back of each ballot shall be printed in type known as great primer Roman condensed cap- itals the indorsement, 'official ballot for,' and after the word 'for' shall follow the designation of the polling place for which the bal- lot is prepared, the date of the election, and a facsimile of the sig- nature of the county clerk; the ballot shall contain no caption or other indorsement except as in this section provided." In distrib- uting the ballots, those printed for the republican party were transposed so that the votes indorsed with the number of the first district in certain towns were sent to the second, and those with the second to the first, and such transpositions occurred in four towns and in nine election precincts. The twenty-ninth section of the New York act provided : "No inspector of election shall deposit in the ballot box on election day any ballot which is not properly endorsed and num- bered, except in the cases provided for in section 21 of this act, nor shall any inspector of election deposit in the ballot box or permit any other person to deposit therein on election day any Ballot that is torn^ or that has any other distinguishing mark on the outside thereof.^' It seems that separate tickets are printed there for each political party, instead of printing all the names on one ballot. In decid- ing the case court lays much stress on the fact that the republican ballots, being indorsed with the wrong number, had distinguishing marks by which they could be identified, and that the secrecy of the ballot was thereby destroyed, and also on the positive require- ments of the law, that no ballot should be deposited unless prop- erly indorsed and numbered. In the case of The State v. McKin- non, 8 Ore. 493, a ballot was rejected written on colored paper, 58 FORMATION OP THE OFFICIAL RELATION. the law requiring it to be on plain white paper. We should have no hesitancy in saying that a single ballot printed on colored paper, where the official ballots printed on white paper were being used by other electors, could not be counted. In that case it would be plain that the object of the law was contravened. We have examined the numerous cases cited by counsel for the plaintiff, and from them deduce two rules, which seem to be stead- ily adhered to by the courts: (1) That, under laws similar to our own, designed to preserve the secrecy of the ballot, any mark or distinguishing feature apparent on the ballot renders it void. (2) Where the law is explicit in prohibiting the counting of any ballot which does not conform to the requirements ,of the statutes, that the courts will enforce the law as it reads, without interposing their own judgment as to the reasonableness or unreasonableness of the requirements. It will be observed that the law nowhere explicitly provides that a ballot printed on paper of a color other than white shall not be counted. The only clause which could be held to imply such a pro- vision is, that "none but ballots provided in accordance with the provisions of this act shall be counted. ' ' Among the requirements of the act, which are very minute, is one that the official ballots shall be put up in separate lots, packages of 50 ballots each, with certain marks on the outside. Will it be contended that an error in counting the ballots within any package, or in marking or ad- dressing the packages intended for any person, would vitiate the election? The departure from the law in matters which the legis- lature has not declared of vital importance must be substantial, in order to vitiate the ballots. This appears to be the general cur- rent of all the authorities. Without proceeding to review at greater length the authorities cited by counsel on both sides of the question, we conclude that the mere fact that the paper on which all the ballots used in one election district was of a color other than white, where the ballots were not only printed by the authorities designated by law, and by them furnished to the judges of election, but were furnished by the judges to the voters, and were the only ballots furnished to or used by any voter at that voting place, is not sufficient to prevent the counting of the votes. The secrecy of the ballot has been in no wise impaired; the voters themselves have manifested no disposition to disregard the law, and it may be fairly inferred that the use of the colored ballots was an honest mistake on the PAGE V. KUYKENDALL. 59 part of the judges of the election. Had a part of the ballots been white and a part colored, so as to afford some grounds for identifi- cation of the votes cast by the individual voters, a different ques- tion would be presented. We reach the conclusion that the law has not been substantially infringed, because we are unable to see how the purposes of the act can have been impaired in any degree by the mistake made in using the colored ballots. By this decision we do not intend to say that any of the provisions of the law may be disregarded, or that any officer may escape liability to punish- ment for violating any of its provisions All the Justices concurring. As to what marks will invalidate ballots as affording means of identification see monographic note in 49 American State Reports, 240. PAGE V. KUYKENDALL. Supreme Court of Illinois. May, 1896. 161 III. 319. Mr. Justice Carter delivered the opinion of the court. Of the sixty-three ballots contained in the record as having been cast at the election in question for school directors all were rejected by the trial court in the contest proceeding but nine, and these nine being for the contestants, the contestants were declared elected. The appeal is prosecuted by Page alone. "We are there- fore to consider only whether Page or Kuykendall received the greater number of votes cast for the office in question at said election. The thirty-one ballots containing nothing but the two names, thus, "S. Page, W. D. Rollings," and two others similar in form, were clearly insufficient to express the intention of the voter. Appellant contends that as the only office to be filled at this elec- tion was school director it was not necessary that the office should ^be designated on the ballot to make the intention of the voter clear. It is plain, however, that if this contention were conceded, not- withstanding the statute requires such designation, it is still wholly uncertain which of the two persons whose names are on the ballot the elector intended to vote for for the long term and which for the short term. This choice could be determined only by the voter himself as expressed by his ballot, and when the ballot wholly fails 60 FORMATION OP TH^ OFFICIAL RELATION. to express the choice it is void and cannot be counted. Chamber- lain V. Hartley, 25 Atl. Rep. (Pa.) 572; GUliland's Appeal, 96 Pa. St. 224. There were eleven of the rejected ballots which contained the title of the office above the names, but were equally as uncertain as those above mentioned and in the same respect. We are of opinion that the county court did not err in refusing to count these ballots. There were, however, ten other ballots rejected by the court concerning which a more serious question arises. Counsel for appellee insist that these ten ballots also are fatally defective because the title to the office is not designated on them, and because, as they contain two names, it is impossible to ascer- tain the intention of the voter as to whether he intended to vote for both for the long term or not, or what his intention really was. It is plain that where there are more offices than one to be voted for, ballots making no designation of the office will be insufficient for uncertainty, and where there are two officers to be elected for different terms, ballots which do not designate the terms should be rejected. 6 Am. & Eng. Ency. of Law 345, It is, however, the general rule that the voter shall not be disfranchised or de- prived of his right to vote through mere inadvertence, mistake or ignorance, if an honest intention can be ascertained from his ballot Parker v. Orr, 158 111. 609, and the circumstances surrounding the election may be considered in ascertaining the voter's intention or to explain imperfections in the ballots, Behrensmeyer v. Kreitz, 135 111. 591 ; McKinnon v. People, 110 id. 305. This election was only for school directors. It was ordered for that purpose alone. This is fully shown by the pleadings and the evidence, and it can- not be said, we think, that there is any uncertainty as to these ten ballots having been cast for school directors, or at least for a school director. Besides, it is apparent from the ballots them- selves that there was an attempt on the part of the voter to comply with the statute and to designate the office, for, after the name of S. Page, and on the same line, are written the words, "long term. ' ' The only officers to be elected were two school directors, — one for the long or full term of three years, and one for the short term, to fill the vacancy. Had there been no other name on these ballots than that of Page, we think no doubt could arise that it was the intention of the voters casting these ballots to vote for Page for the office of school director for the full term. We think. PAGE V. KUrKENDALL. 61 also, that there being no candidate to be voted for at this election for any office other than that of school directors, the attempted and partial designation of the office on these ballots as to Page was under the circumstances, a sufficient compliance with the statute requiring the title of the office to be written or printed on the ballot, and that the office to which the voter desires each candidate voted for to be elected shall be designated on the ballot. 6 Am. & Eng. Ency. of Law, 344, note 1. It is claimed, however, that as these ten ballots also contain the name of W. D. Rollings, without any designation of the office to which the voters desired him to be elected to, other than that which followed the name of Page, the ballots should not, under the stat- ute, be counted for either candidate. Section 58 of the statute provides: *'If more persons are designated for any office than there are candidates to be elected . . . such part of the ticket shall not be counted for either of the candidates." In the case of Blankinship v. Israel, 132 111. 514, there was but one office and one term to be filled and two names were preceded by the words * * For assessor, ' ' and this court held that the ballot should not, un- der the statute, be counted for either candidate. But it cannot be said here the ten ballots in dispute have more names designated for any office than there are candidates to be elected. The office is that of school director. Two candidates were to be elected, — one for the long and one for the short terra. It is clear these electors intended to vote for Page for the long term, and it may be and probably was intended that the one year term should apply to Rollings, but the ballots failed to make the designation. As Rollings' case is not before us it is unnecessary to construe these ballots as to him, any further than the effect they may have upon the rights of Page. It cannot be said, in view of the form of these ballots and of the fact that two officers were to be elected, that the words **long term" had the same relation to the name of Rol- lings as to the name of Page, as did the title "For assessor" in Blankinship v. Israel, supra, in respect to the two names in ques- tion in that case. In the case at bar there was simply a failure to designate any office to which these electors desired Rollings to be elected, unless, by the designation of Page for the long term, it might be implied that the voter intended to vote for Rollings for the short term, — the only remaining place to be filled; and the latter view should be adopted rather than the one that he intended to vote for both for the long term, — if it were necessary, in the decision of the case, to adopt either view. A construction will 62 FORMATION OP THE OFFICIAL RELATION. not be adopted which would deprive the elector of his vote when his ballot is equally susceptible of another construction which will give it effect. Our conclusion is that these ten ballots should have been counted for Page, and that the county court erred in rejecting them, and in declaring that Kuykendall, and not Page was entitled to the oflSce. The judgment of the county court is reversed and the case re- manded, with directions to dismiss the petition as against Page, at the cost of appellee, Kuykendall. Reversed and remanded. 4. Powers of Boards of Canvassers. PEOPLE V. VAN CLEVB. Supreme Court of Michigan, January, 1850. 1 Mich. 362. By the court, Mundy, J. The very ingenious argument of the attorney general seems to me to be based upon the supposition that the determination of the board [of canvassers] was somewhat in the nature of a judgment at law, binding and conclusive, and that it afforded the only evi- dence of the rights of the contestants for this office ; for, from the information, it appears that Elias M. Skinner clafms title thereto; and that such judgment must be based and appear to be based upon this statement as the finding of the board, as a judgment at law is rendered upon the finding of the jury. But no such con- clusive effect is given by the statute to this determination of the board, nor to the statement of the board, upon which it may properly be said to be founded. The whole scope of the statute seems to show that this statement is but prima facie evidence; that in every contested election you may go behind it; the county canvass may be corrected by the township canvassers; and that these may be corrected by the bal- lots themselves. A contested election is not to be decided by what does or does not appear in any of these statements. PEOPLE V. VAN CLEVE. 63 The provisions of the statute show that you may go behind all these proceedings — that you may go to the ballots, if not beyond them, in search of proof of the due election of either person, the one holding, or the one claiming the office. And this is as it should be. In a republican government, where the exercise of official power is but a derivative from the people, through the medium of the ballot-box, it would be a monstrous doctrine that would subject the public will and the public voice, thus expressed, to be defeated by either the ignorance or corruption of any board of canvassers. The duties of these boards are simply ministerial: Their whole duty consists in ascertaining who are elected, and in authenticating and preserving the evidence of such election. It surely cannot be maintained that their omissions or mistakes are to have a control- ling influence upon the election itself. It is true that their cer- tificate is the authority upon which the person who receives it enters upon the office, and it is to him prima facie evidence of his title thereto ; but it is only prima facie evidence. The view which I have taken of the effect of the statement of the county board, is fully sustained by the opinion of the su- preme court of the state of New York, in the cases of the People V. Ferguson, 8 Cowen 102 ; and the People v. Vail, 20 Wendell 14. In the case of the People v. Ferguson, it was held, notwithstand- ing the determination of the canvassers in favor of the defendant, that the court and jury could look even beyond the ballot boxes, and inquire whether the votes given for H. F. Yates, were not intended by the voters for Henry F. Yates. In the case of the People V. Vail, Justice Bronson, delivering the opinion of the court, said: "The decision of the canvassers was conclusive in every form in which the question could arise, except of that of a direct proceeding by quo warranto, to try the right. But to hold it conclusive in this proceeding, would be nothing less than saying, that the wiU of the electors, plainly expressed in the forms pre- scribed by law, may be utterly defeated by the negligence, mistake, or fraud of those who are appointed to register the results of an election. ' ' The demurrer must be overruled, with leave for the attorney general to reply. Demurrer overruled. 64 FORMATION OP THE OFFICIAL RELATION. HADLEY V. THE MAYOR. Court of Appeals of New York. September, 1865. 33 N. Y. 603. Denio, Ch. J. There being no conclusion of fact found by the judge, the only questions which are open for examination upon this appeal are those which arise upon the exceptions to rulings taken in the course of the trial. The election for mayor and other officers in 1856 was held on the day appointed by law, the second Tuesday (8th day) of April, and the terms of the newly chosen officers commenced on the first Tuesday of May thereafter. (Laws, 1855, ch. 196, sections, 1, 2, 3.) The law requires the inspectors of election to file a statement and certificate, setting forth the number of votes given for each person for each respective office, with the clerk of the common council, within twenty-four hours after the completion of the canvass, and that "the common council, at its meeting thereafter, shall canvass such returns, and determine and declare the result." (Laws, 1855, ch. 86, section 11.) The officers chosen are, on or before the time when their terms commence, to take the oath of office prescribed by law. (id., section 12.) The plaintiff had given in evidence a certificate of the determination of the common council at a meeting held on the 15th April, one week after the election. This was at least prima facie evidence of the act of the common council. The document was given in evidence without ob- jection, and it was not attempted to controvert the fact that the proceedings of the council set forth in it had taken place as stated. But the defendant offered to prove another canvass before the common council, at a meeting on the 6th May following. . . . The evidence was excluded, and this is the point of the first ex- ception. The act does not prescribe that the canvass shall be made at the first meeting of the council after the election, a word having apparently dropped out in transcribing or in printing the section. The meaning, as it stands in the statute book, is, that the canvass shall be made at some meeting of the common council after the election. It was regular and legal to perform that duty at the first meeting, and this was what was done, as stated in the certifi- cate. Having once been legally performed, the power of the coun- cil was exhausted. The board had no right to reverse its decision by making a different determination. The court was therefore right in rejecting the evidence which was offered. LEWIS V. COMMISSIONERS. 65 The second exception was to tjbe decision by which the court excluded the inspector's returns. The object, I suppose, was to show that the returns elected Mr. Quackenbush and not Mr. Perry. But the law having committed to the common council the duty of canvassing the returns and determining the result of the election from them, and the council having performed that duty and made a determination, the question as to the effect of the returns was not open for a determination by the jury in an action in which the title of the officer came up collaterally. If the question had arisen upon an action in the nature of a quo warranto information, the evidence would have been competent. But it would be intol- erable to allow a party affected by the acts of a person claiming to be an officer, to go behind the official determination to prove that such official determination arose out of mistake or fraud. The defendants' counsel seems to have chosen to place their defense upon the allegation of title in Mr. Quackenbush to the office of mayor, and they raised no question except that which related to the evidence of his election and the validity of his acts. Having failed to sustain their position on these ques- tions, they cannot ask to have judgment against them reversed. All the judges concurred in affirming the judgment except Porter, J., who did not sit, having been counsel. LEWIS V. COMMISSIONERS. Supreme Court of Kansas. January, 1876. 16 Kan. 102. Brewer, J. This is an action of mandamus, to compel a correct canvass of the votes cast in the county of Marshall for the office of county clerk. Upon the canvass that was made the canvassers rejected the returns from "Waterville township, and declared one J. G. Mclntire elected. If those returns had been counted, the plaintiff would have received a majority, and been declared elected. Three questions are presented : First, will the court, after a can- vassing board has made one canvass, declared the result, and ad- journed, compel it, by mandamus, to reassemble and make a correct canvass on the ground that at the prior canvass it had improperly omitted to canvass all the returns? Second, if the b 66 FORMATION OF THE OFFICIAL RELATION. returns are regular in form, and genuine, may the canvassing board reject and refuse to canvass them on the ground that during the election fraudulent votes were received, and other irregulari- ties practiced by the judges and clerks of the election? And third, will the fact that, after the pollbooks and tallysheets have been properly prepared and signed, and before their delivery to the township trustee and county clerk, they are tampered with and changed by outside parties, so far as respects the votes for candi- date for a single ofiSce, justify the canvassing board in rejecting the entire returns, and in refusing to count the votes cast for candidates for the other offices? The first question must be answered in the affirmative, and the other two in the negative. It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge this duty by canvassing only a part, and refusing to canvass the others, as by refusing to canvass any. And it is settled by abundant authority, that where the board refuses to canvass any of the votes it may be compelled so to do by mandamus, and this though the board has adjourned sine die. Hagerty v. Arnold, 13 Kan. 367, is a case in point. The can- vass is a ministerial act, and part performance is no more a dis- charge of the duty enjoined than no performance. And a candidate has as much right to insist upon a canvass of all the returns, as he has of any part, and may be prejudiced as much by a partial as by a total failure. The adjournment of the board does not deprive the court of the power to compel it to act, any more than the adjournment of a term of the district court would prevent this court from compelling by mandamus the signing of a bill of exceptions by the judge of that court, which has been tendered to him before the adjournment. As a general rule, when a duty is at the proper time asked to be done, and improperly refused to be done, the right to compel it to be done is fixed, and is not de- stroyed by the lapse of time within which in the first place the duty ought to have been done. As to the other two questions, it is a common error for a can- vassing board to overestimate its powers. Whenever it is suggested that illegal votes have been received , or that there were other fraudulent conduct and practices at the election, it is apt to imag- ine that it is its duty to inquire into those alleged frauds, and de- cide upon the legality of the votes. But this is a mistake. Its duty is almost wholly ministerial. It is to take the returns as made to PEOPLE EX REL. PURMAN V. CLUTE. 67 them from the different voting precincts, add them up, and de- clare the result. Questions of illegal voting and fraudulent prac- tices, are to be passed upon by another tribunal. The canvassers are to be satisfied of the genuineness of the returns, that is, that the paper presented to them are not forged and spurious; that they are returns, and are signed by the proper officers; but when so satisfied, they may not reject any returns because of the in- formalities in them, or because of illegal and fraudulent practices in the election. The simple duty and the purpose of the canvass- ing board is to ascertain and declare the apparent result of thg voting. All other questions are to be tried before the court for contesting elections, or in quo warranto proceedings. It must be borne in mind that the change in the returns in this case was made after their execution by the proper officers, and before they reached the county clerk's desk, was made by unauthorized and outside parties, and not by the election officers, and did not affect the number of votes cast and returned for this plaintiff, or his oppon- ent. Under those circumstances, we think the commissioners were not justified in refusing to canvass the returns from Waterville township, so far at least as respects the officers other than the one concerning which the tampering with and changing of the votes was had. The peremptory writ must be awarded as prayed for. All the justices concurring. But mandamus will not issue to a state board of canvassers if the Governor is a member of it. Dennett petitioner, 32 Me. 508, cf. People V. Morton, 156 N. Y. 136. 5. What Constitutes an Election.^ PEOPLE EX REL. FURMAN V. CLUTE. Court of Appeals of New York. December, 1872. 50 N. Y. 451. FOLGER, J. The second question to be considered is whether Furman, the relator, was, at the general election of 1871, duly elected to the 'An election to have any legal effect must be a regular one held by the proper officers in accordance with the law. State v. Taylor, 108 N. C. 196, infra. 68 FORMATION OP THE OFFICIAL RELATION. office. Neither a majority nor a plurality of all the ballots found in the boxes were for him. He had but a minority of them. It is the theory and general practice of our government that the candidate who has but a minority of the legal votes cast does not become a duly elected officer. But it is also the theory and practice of our government, that a minority of the whole body of qualified voters may elect to an office, when a majority of that body refuse or decline to vote for anyone for that office. Those of them who are absent from the polls, in theory and practical result, are assumed to assent to the action of those who go on to the polls ; and those who go to the polls and who do not vote for any candi- date for office, are bound by the result of the action of those who do; and those who go to the polls and who vote for a person for office, if for any valid reason their votes are as if no votes, they are also bound by the result of the action of those whose votes are valid and of effect. As if, in voting for an office to which one only can be elected, two are voted for, and their names appear together on the ballot, the ballot so far is lost. The votes are as if for a dead man or for no man. They are thrown away; and those who cast them are to be held as intending to throw them away, and not to vote for any person capable of the office. And then he who re- ceives the highest number of earnest valid ballots, is the one chosen to the office. We may go a step further. They who, knowing a person is in- eligible to office by reason of any disqualification, persistently give their ballots for him, do throw away their votes, and are to be held as meaning not to vote for anyone for that office. But when shall it be said that an elector so knows of a disqualification rendering ineligible the person, and knowing, persistently casts for him his ballot? There may be notice of the disqualifying fact, and of the legal effect of it, given so directly to the voter, as that he shall be charged with actual knowledge of disqualification. There may be a disqualifying fact so patent or notorious, as that "knowledge in the elector of the ineligibility may be presumed as a matter of law. In modern times Lord Denman, C. J., thus puts a case: "No one can doubt that if an elector would nominate and vote only for a woman to fill the office of mayor, or burgess in par- liament, his vote would be thrown away; there the fact would be notorious, and every man would be presumed to know the law upon that fact." Gosling v. Velcy, 7 Ad. & Ell., N. R. 406-439; 53 Eng. Com. Law, 406. And then referring doubtless to the viva voce manner of voting in England, and to the manner of keeping PEOPLE EX REL. PURMAN V. CLUTE. 69 polling books there, and to the fact of the number of electors there being small, so that for whom each elector has voted is known, and he may be safely allowed to recall his vote for an ineligible person, and give it for another eligible, the learned judge con- tinues: "But in no such case are the electors who vote for him deprived of their vote if the fact becomes known and is declared while an election is still incomplete. They may instantly proceed to another nomination and vote for another candidate. If it be disclosed afterward, the party elected may be ousted and the election declared void; but the candidate in the minority will not be deemed ipso facto elected. But where an elector, after voting, receives due notice that a particular candidate is disqualified, and yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchises. ' ' To which we add, that not only must the fact which disqualifies be known, but also the rule or enactment of the law which makes the fact thus effectual. In the multitude of cases in which the question has arisen, we think that up to this point, there is no essential difference of re- sult. All agree that there must be prior notice to, or knowledge in the elector of fact and law, to make his vote so ineffectual as that it is thrown away. But some say that if there be a public law, declaratory that the existence of a certain fact creates ineligibility in the candidate, the elector having notice of the fact is conclu- sively presumed in law to have knowledge of the legal rule, and to be deemed to have voted in persistent disregard of it. Others deny that the maxim "Ignorantia juris excusat neminem" (even with the clause of it, "quod quisque scire tenetur," not often quoted, and of which we are reminded by the very thorough brief of the learned counsel for the relator), can be carried on to that length, and insist that there does not apply in this question the rule that all citizens must be held to know the general laws of the land, and the special law affecting their own locality. That maxim, in its proper application, goes to the length of denying to the offender against the criminal law a justification in his ignorance thereof ; or to one liable for a breach of contract, or for a civil tort, the excuse that he did not know of the rule which fixes his liability. It finds its proper application when it says to the elector, who, ignorant of the law which disqualifies, has voted for a candidate ineligible, your ignorance will not excuse you and save your vote; the law must stand, and your vote in conflict with it must be lost to you. But it does not have a proper 70 FORMATION OP THE OFFICIAL RELATION. application when it is carried further, and charges upon the elec- tor such a presumption of knowledge of fact and of law as finds him full of intent to vote in the face of knowledge, and to so per- sist, in casting his vote for one for whom he knows that it cannot be counted, as to manifest a purpose to waste it. The maxim itself concedes that there may be a lack of actual knowledge of the law. But it is ignorance of it which shall not excuse. Then the knowledge of the law to which each one is held is a theoretical knowledge ; and the doctrine urged upon us would carry a theoret- ical knowledge of the statute further than the statute goes itself. The statute but makes ineffectual to elect the votes given for one disqualified. The doctrine would make knowledge not actual, of that statute thus limited, waste the votes of the majority, and bring about the choice to office by the votes of a minority. We are not cited to nor do we find any decision to that extent of any court in this State. The industrious research of the learned coun- sel of the relator has found some from courts in other sister states. Gulick v. New, 14 Ind. 97, is to that effect. Carson v. McPhetridge, 15 id., 331, follows the last cited case. Hatchtson v. Tilden, 4 Har. & McH., 279, was a case at Nisi Prius, and is to that effect. With respect for those authorities, we are obliged to say that they are not sustained by reasoning which draws with it our judgment. Commonwealth v. Read, 2 Ashmead 261, is also cited. But that was a case of a board of twenty, assembling in a room to elebt a county treasurer. On motion being made to elect viva voce, a protest was made that the law under which they were acting prescribed a vote by ballot. Thus actual notice of the law and fact was brought to each elector before voting. Nineteen persisted in voting viva voce. These were held to be wasted votes. One voted by ballot; and his vote was held to prevail, and the person he voted for to be elected. Commonwealth v. Cluley, 56 Penn. St. 270, is also cited. But the language of the court there is: **The votes cast at an election for a person who is disquali- fied from holding an office are not nullities. They cannot be re- jected by the inspectors, or thrown out of the count by the return judges. The disqualified person is a person still, and every vote thrown for him is formal." And that was the case of one who was ineligible by reason of having held the office of sheriff of a county, and became a candidate in the same county for the same office before the lapse of time prescribed by the constitution; and a case in facts quite like this in hand. PEOPLE EX REL. FURMAN V. CLUTE. 71 And there are American authorities which hold that if a ma- jority of those voting by mistake of law or fact happen to cast their votes upon an ineligible candidate, it by no means follows that the next to him in poll shall receive the office. Saunders v. Haynes, 13 Cal. 145; State v. Giles, 1 Chand. (Wis.) 112; State V. Smith, 14 Wis. 497. And in Dillon on Mun. Corp., p. 176, sec- tion 135, it is stated that unless the votes for an ineligible person are expressly declared to be void, the effect of such person re- ceiving a majority of the votes cast is, according to the weight of American authority and the reason of the matter (in view of our mode of election, without previous binding nominations, by secret ballot, leaving each elector to vote for whomsoever he pleases), that a new election must be had, and not to give the office to the qualified person having the next highest number of votes. And this view is sustained by a preponderance of the au- thorities cited by the author of the foot-note, some of which are cited above We think that the rule is this : The existence of the fact which disqualifies, and of the law which makes that fact operate to dis- qualify, must be brought home so closely and so clearly to the knowledge or notice of the elector, as that to give his vote there- with indicates an intent to waste it. The knowledge must be such, or the notice brought so home, as to imply a wilfullness in acting, when the action is in opposition to the natural impulse to save the vote and make it effectual. He must act so in defiance of both law and fact, and so in opposition to his own better knowledge, that he has no right to complain of the loss of his fran- chise, the exercise of which he has wantonly misapplied. To state a truism; our theory of government by the people is upon the assumption that the people as a whole, are intelligent of their rights and interests, and are honestly and earnestly con- cerned in the due and wise administration of affairs, and zeal- ously alive to the need of good and fitting men in the various places of public trust, and hold in high esteem the privilege of suffrage, and are unready to pretermit its exercise or to exercise it meaninglessly. It is much to presume, with this as our starting point, that any considerable body of electors will purposely so exercise their right of electing to office as that it shall be but an empty form; and that going through with outward signs of an election they will of intent so cast their ballots, as that they will be votes wasted. Now the finding in this case is, that there was no proof of actual 72 FORMATION OF THE OFFICIAL EELATION. notice of Clute's ineligibility, nor of any facts from which notice could be implied, save that he was a supervisor. There was but this fact, and the law upon the statute book; sufficient in themselves, as we hold, to render him ineligible. But therefrom to give the office to the relator, it is first to be presumed, as a matter of law, that near 300 of those who voted for Clute had knowledge of the fact that he was supervisor; had knowledge of the existence of the act of 1853; and knew that the fact and the law, concurring thus, he was ineligible to receive and avail himself of their votes in his favor, and knew that their votes given to him were wasted, without effect upon the count. It is to be presumed further, that knowing this, they all, though seemingly desirous of taking an effectual participation in the choice of a person to the office of superintendent, deliberately so acted as that they are assumed to have persisted against know- ledge; determined to "do nothing but tender their votes for him." All concur. Judgment accordingly. See also Maynard v. Board, S4 Mich. 228 supra. The rule Is not clear as to whether In the absence of a law to that effect a plurality will elect. State v. Fagan, 42 Conn. 32. But McCrary in his Law of Elections, 2nd ed. § 197, considers that a plurality is always sufficient where a majority is not expressly required and a stat- ute providing the plurality rule is constitutional. In re The Plurality Elections, 15 R. I. 617. 6. Nominations to Office. STEPHENSON V. BOARD OF ELECTION COMMISSIONERS. Supreme Court of Michigan. October, 1898. 118 Mich. 396. Hooker, J. The relator asks a mandamus to compel the sev- eral boards of election commissioners of the twelfth congressional district to place the name of the relator upon the Republican tick- ets throughout the district as candidate for Congress, to the ex- clusion of the name of Charles D. Shelden, each claiming to be the nominee of the regularly called convention of the Republican party. The record shows that a congressional convention was STEPHENSON V. ELECTION COMMISSIONERS. 73 called, and the delegates assembled. It is admitted to have been a regularly called convention, and therefore its nominee, if ascer- tainable, is lawfully entitled to have his name printed upon the ticket. Nothing is more certain than that, when this assembly met, it constituted what the law calls * ' a regularly called convention ' ' ; and had there been no split, the right of the nominee to the place upon the ticket could not have been successfully questioned on the ground that it was organized upon the motion of Mr. Hambitzer, instead of under the leadership of Newett. But it did split; and we must do one of two things, viz. : Either follow the precedents, and say that we will not decide between the rival factions, or ourselves decide who were the lawfully elected delegates to the convention. To do this, we might be called upon to investigate every ward or township caucus and county convention held in the two disputed counties, and, had either side asked it, through- out the district. We have intimated that the assembly is the judge of the qualification of its members, and that back of its decisions we cannot go. Its presiding ofl&cer is its creature, and it must protect itself. In turn, its voters must protect them- selves against fraud upon their convention or misconduct of its delegates, oflBcers and candidates; and when a considerable fac- tion of a convention leaves the meeting, and nominates a ticket, claiming to be the representative of the party which called the convention, it is not the province of the courts to determine upon technical grounds that is not, and that its action is void, and deny it a place upon the ballot, thereby defeating the purification of methods within the party, or to say which faction was right and which wrong. It is a right of the voter to repudiate wrong and corruption and fraud, if it exists, and to prevent, or unearth and defeat, corruption, and he should not be hampered by tech- nical rules. If in this case this convention was unable to con- clude its business in harmony, and the delegates divided and made two nominations, they should not be denied the privilege of going to the polls with both. Each nominee is here contending that he represents the only pure republicanism of the district, and is the lawful nominee of the true party. The electors must decide between them. In such case we know of no way of de- termining which of these names ought of right go upon the Republican ticket. If it were left to the voters, there would doubtless be an honest difference of opinion upon the merits of 74 FORMATION OP THE OFFICIAL RELATION. the question. The same may be true of the boards. They may not know what they should do, and we cannot tell them further than to say that, under the admitted facts and the precedents, both are entitled to places upon the ballot. It has been held in this state that, where rival factions of a regularly called convention of a party nominate and certify different tickets, the election commissioners have no authority to accept one, to the exclusion of the other; and it was held further, that, under such circumstances, both tickets should be printed upon the ballots; and it was said in that connection that the name of the party as certified should be placed above the ticket, without further addition or distinctive designation than such as was contained in the certificates furnished. See Shields V. Jacob, 88 Mich. 164 (13 L. R. A. 760). That case arose under Act No. 190, Pub. Acts 1891, which provided for what is ordinar- ily called an ''Australian ballot" requiring the adoption of a vignette by each party, under which the party ticket was re- quired to be printed. A similar question arose in Colorado the next year, under a law of like character, which provided that the officer with whom the certificate was filed should pass upon objections seasonably filed. . . . People v. District Court, 18 Col. 26. Phelps V. Piper, 48 Neb. 724 (33 L. R. A. 53), was a case where different conventions, called by different committees, but both claiming to represent one and the same party, held conventions at different times and places; and the question of the right of one ticket to a place on the ballot came before the court of last resort. It was held that both tickets were entitled to places upon the ballot. . . . The case of State v. Johnson, 18 Mont. 556, arose under a similar statute, and bears a striking resemblance to the present case. . . . It is observable that all the cases cited deny the authority of the officer or court to determine that the candidate of one or the other of two factions of a party is regularly nominated, and entitled to a place upon the ballot, where the statute has not ex- pressly or by necessary implication conferred the power. Sev- eral of these question the expediency of committing such power to either, and some doubt the power of the legislature to pass such a law. There are several decisions in the State of New York, which hold that the courts have authority to pass upon such questions, and determine, between factions of a party, the right STEPHENSON V. ELECTION COMMISSIONERS. 75 to a place upon the ticket. These decisions are not adjudications by the court of last resort, however, and they arise under a statute expressly conferring the power. In the year 1897 a case was de- cided by the court of appeals {In re Fairchild, 151 N. Y. 359), where it was held that the action of party authorities — i. e., con- ventions and committees — should be recognized as of controlling importance. We do not understand from what we are able to gather from the case that it was held that such decision was final or binding upon the court, but that it was proper to follow the determination of the party authorities; but, be that as it may, the important fact that the statute of New York expressly gives the courts jurisdiction in such cases does appear. The constitutionality of such laws does not seem to be ques- tioned in the New York case. The case is interesting if not im- portant, for its bearing upon the claim made here that the state convention determined between the rival factions in this case. But we are not disposed to follow it, in the absence of a statute requiring the courts to settle these questions. See, also. In re Redmond, (Sup.) 25 N. Y. Supp. 381, and In re Pollard, Id. 385. As illustrative of the kind of difficulties which arise when the legislature imposes these duties upon the courts, one of the New York cases may be cited, viz.. In re WoodwortJi, 16 N. Y., Supp. 147. That was not the first time that the matter there litigated was before the courts, as will be seen later. It was a proceeding under a statute to compel a county clerk to print the names of certain parties claiming to be regularly nominated candidates of the Republican party of the county, and its determination in- volved an adjudication between rival factions (each claiming to be the regular organization) of the regularity of their respective nominations. Objections were filed to the certificates, and passed upon by the county clerk, and then presented to the court, as the law pro- vided. The court said that the certificates were regular, and that it was therefore necessary to go into extrinsic facts. These disclosed that the county convention split, and, as there were contesting delegations from four towns, which sent delegates enough to control the convention (in view of the fact that the un- disputed delegates were evenly divided), it was only possible to determine which faction had a majority by ascertaining which of the contesting delegations were entitled to seats. This the court proceeded to do by investigating the proceedings at the caucuses. 76 FORMATION OP THE OFFICIAL RELATION. In short, the court assumed to determine who were the lawful delegates, and held that the faction having the largest number of such delegates was entitled to a place upon the ticket, irre- spective of the regularity or irregularity of the organization or action of the convention, upon the assumption, we suppose, that it was a deliberative body only in name, whose delegates would blindly vote for the candidates favored, without deliberate consid- eration of merits. But the case did not end here. It came again before the same court, and we quote from the opinion : "When this controversy first required a judicial determina- tion, it became necessary to decide it upon such facts as were established by affidavits, unaided by the action of any convention of the party; and, as those facts were thus made to appear, I had no difficulty in reaching the conclusion before mentioned. I am still satisfied that such conclusion was justified, and should now adopt it without hesitation, were it not for the fact that a different one has been so uniformly reached by the party conven- tions. In determining a question similar to this which arose in Monroe county {In re Redmond, 25 N. Y. Supp. 381), where the question of regularity had been passed upon by the state conven- tion of the Democratic party, I have just held that the action of that body must be regarded as conclusive; and I see no reason why the same rule should not obtain in this case. The only difference is that here the state organization did not pass upon the question until after it had been determined judicially; but, nevertheless, both factions submitted their claims to that body and, for the reason stated in the opinion in the Redmond case, I think the defeated party must now acquiesce in its decision. "I still think, as already stated, that the title to regularity of the Patterson faction was pretty clearly established upon the original hearing, and that it would in view of the provision of the statute which authorizes this proceeding, have been no more than courteous for the party convention to have adopted the decision of the general term, which was deliberately made, and after a careful and impartial hearing; but there is no way in which they can be compelled to do so, and consequently it seems to me that the only rule for courts and judges to adopt in this and all sim- ilar contests is that they will interfere only in cases where there has been no adjudication of the question of regularity by some STEPHENSON V. ELECTION COMMISSIONERS. 77 division of the party which is conceded to be superior in point of authority to the one in which the contention arose, provided, of course, that the question of good faith in the making of such ad- judication is not involved. The adoption of a different rule would ineritably tend to bring party organiaations and the courts into unseemly conflicts over questions which are peculiarly within the cognizance of the former tribunals, — a result which most cer- tainly ought, if possible, to be avoided." In re Pollard, 25 N. Y. Supp. 385. Thus, it will be seen that Mongin and politics triumphed over the judicially determined rights of Patterson. A more humiliat- ing and unseemly chapter is not to be found in the history of jurisprudence in this country, and it is all due to the misguided attempt to impose upon the court the duty of presiding over pol- itical conventions and caucuses through the medium of actions or proceedings at law, unfitted for the purpose. In the Case of Fair- child, 151 N. Y. 359, the matter was not disposed of until after the election, and therefore, when heard and decided, involved only a question of costs. In the case before us, had issue been joined, and the case sent down for trial of the facts, it is not improbable that it would still be dragging along when the term of office for which the parties are candidates shall have expired. We have seen that this court held in the Shields Case that the tickets of both factions were entitled to places upon the ballot. The same is true in this case, unless we find a change in the law forbidding it, and requiring us to determine which ticket is en- titled to the place. It may be said that under the law of 1895 (Act No. 17, Pub. Acts 1895, Section 10), providing that "it shall be unlawful for said board of election commissioners to cause to be printed in more than one column on the ballot the name of any candidate who shall have received the nomination by two or more parties or political organizations for the same office" one or the other of the nominees will be at the disadvantage of having his name appear in a column by itself, as in the Todd Case. Todd v. Kala- mazoo Co. Election Com'rs, 104 Mich. 485 (29 L. R. A. 330). We think, however, that the public good requires the private incon- venience; and we cannot hold, in the absence of a statute re- quiring it, that the nominees may stickle for a comparatively unimportant right, to the general public inconvenience to result 78 FORMATION OP THE OFFICIAL RELATION. from his pursuit of an unauthorized remedy of doubtful eflRcacy and expediency. It may be asked which of these nominees should be subjected to this disadvantage. Manifestly, we have no means of determining this question, nor can we lay down a rule for such a case as this further than to say that their names shall appear in adjoining columns. It is therefore ordered that the several respondents give to the names of the nominees adjoining columns, said respondents them- selves determining which shall be placed upon the general ticket of the Republican party, the other to be in a separate column under the party name and vignette; the full ticket to be placed first upon the ballot. No costs will be allowed. The other justices concurred. In those states where under the law the courts exercise a control over the nominations of political parties it is held that conventions must be regularly called. State v. Tooker, 18 Mon. 840, must represent all the members of the party, State v. Weir, 5 Wash. 82, must be fair- ly conducted. Matter of County Clerk, 21 Misc. Rep. (N. Y.) 543, and must meet at the place fixed by the rules of the party, Liggett v. Bates, 24 Col. 314. A nomination once made cannot be revoked after the adjourn- ment of the convention. People v. Police Commissioners, 10 Misc. Rep. (N. Y.) 98. PEOPLE EX REL. COFFEY V. DEMOCRATIC COMMITTEE. Court of Appeals of New York. October, 1900. 164 N. Y. 335. Appeal from an order of the Appellate Division of the Su- preme Court in the second judicial department, entered June 5, 1900, reversing an order of Special Term granting a peremptory writ of mandamus requiring the defendant to place the name of the relator upon its membership and to restore him to the rights and privileges pertaining to membership in the Democratic gen- eral committee of Kings county. At a primary election held in September, 1899, the relator was duly elected a member of the Democratic general committee of Kings county and afterwards duly qualified by paying the pre- scribed dues. At a meeting of such committee held March 23, 1900, he was, by resolution, expelled for alleged disloyalty and open hostility to the Democratic party, and has since been barred PEOPLE EX BEL. V. DEMOCRATIC COMMITTEE. 79 from exercising the rights and privileges pertaining to his office as member of such committee. Parker, Ch. J. The fundamental question in this case is whether a member of the general committee of a county may be removed from office as a member of the committee. The answer to it depends upon the construction now to be given to the primary election law (Chapter 473 of the Laws of 1899, vol. II), section first of which, in declaring the application of the act, says: *'It shall be controlling: (1) on the methods of enrolling voters. ; (2) on primary elections ; (3) on party conventions ; (4) on the choice . . . of political committees and on the conduct of political committees in and for any political subdivision of the state. . . ." It will help us intelligently to consider the statute if we call to mind the preceding legislation intended to protect the rights of minorities; the statute law looking to the purity of the ballot, and the organic law having for its purpose the encouragement of independent action in matters relating to municipal govern- ment. The help will come from our possession of the situation in which the legislators were when, in 1899, they passed the statute in question, which was in part composed of the general drift of public opinion and the fault which that public opinion had found with the machinery for election of public officials. The settled conviction that the safeguarding of our institutions re- quires the untrammelled exercise of the franchise by the citizens and that the result be protected from fraud, has led us to no in- considerable amount of legislation during the present generation — legislation aimed largely, although not entirely at the frauds of majorities, who have, at times, manifested a disposition to retain their power, let the cost be what it might. The frauds that have perhaps occasioned the greatest amount of discussion resulted from colonization and repeating, for the correction of which sev- eral registry acts were passed. At the outset the legislation on that subject proceeded on the view that only in great cities were such frauds practiced, but such view proved to be partial, and in 1890 a general registry law was passed applicable to all of the state except the cities of New York and Brooklyn. (Chapter 321 of the Laws of 1890.) In those cities registration had long been required. (Chapter 142 of the Laws of 1880.) An enlightened public sentiment was at the same time making war against the evils of bribery and the outcome was a new departure in our method of voting 80 FORMATION OP THE OFFICIAL RELATION. Complaints had also been made that the practical effect of the power exercised by the organization was to render ineffective independent voting in purely municipal affairs, to the detriment of the best interests of the cities; and the recent constitutional convention (the work of which was subsequently ratified and adopted by the people) undertook to ameliorate the situation, to some extent, by providing that city officers should be elected at a different time than state officers, the election of the latter to take place in even, and the former, in odd numbered years, the reason assigned being that, unrestrained by national and state contests, the citizen would naturally be more independent, not only in voting, but in bringing about independent nominations whenever the party to which he belonged should attempt to make nominations intended to subserve the selfish purposes of the lead- ers rather than to promote the public interests. Prior to 1882 there was no attempt to regulate by law the con- duct of primaries, but chapter 154 of the laws of that year, known as the Chapin act, declared certain acts committed at primaries crimes, such as the false personation of a voter, intentionally vot- ing without right, prevention of others from voting, and fraudu- lent concealment or destruction of ballots. It also required that the presiding officers and inspectors at such elections take the usual oath of inspectors at general elections, and provided for the challenge of voters and the administration of an oath to a person so challenged. While these provisions reduced to a considerable extent the wrongs which had been committed against the voter who desired to participate in the selection of the candidates of his party, and made snap caucuses impossible and the selection of delegates by brute force extremely difficult, still the right of the general com- mittee to prescribe tests or qualifications for a voter was in some instances so employed as to exclude from the participation in the primary many who were not in sympathy with the majority of the committee in all respects, and who might be termed members of a minority faction in the party. The not unnatural desire of the several general committees to perpetuate their power and con- trol led, in some instances, to the making of "regulations" under which members who were not congenial to the majority were dis- ciplined upon charges of disloyalty, inefficiency or mismanage- ment, and the places made vacant by their removal were oftentimes filled by men who, from choice or prudence, worked in harmony with the majority of the organization, for the latter term practical- ' PEOPLE EX REL. V. DEMOCRATIC COMMITTEE. 81 ly means the particular members of a party within a given terri- tory who are, for the time being, in full control of its affairs. In McKane v. Adams, 123 N. Y. 609, it appeared that the plaintiff was formerly a member of the Democratic association of his town and a delegate upon the general committee of the county. Charges were preferred against the town association and the trial resulted in its being disbanded. A reorganization of the town association was undertaken and a primary election thereupon or- dered by the general committee of the county organization, at which the defendant was elected a delegate to the county commit- tee. The general committee refused to accept the returns of the primary election and to recognize him as a delegate. It was held that membership in such an association is a privilege which may be accorded or withheld. And such being the status of a delegate to the general committee, that body could refuse to recog- nize the choice of a given constituency until such time as they should conclude to elect a delegate agreeable to the wishes of the majority, thus rendering futile all attempts at independent, other- wise termed ** hostile" action. These and other abuses, as they were called by the minority members of the party associations, became so common that a de- mand was made for a primary election law sufficiently comprehen- sive in scope to secure to all citizens equal rights in the primary elections, conventions and political committees with the party with which they were allied. This demand the legislature under- took to meet by chapter 179 of the Laws of 1898, which was amended (but not in respects affecting this question) by chapter 473 of the Laws of 1899. These acts recognize the equal impor- tance of primary and general elections and model the conduct of the former upon the general lines and conduct of the latter. They provide for the enrollment of the voter, and the only exaction permitted precedent to his right to enroll is that he shall express an intention to support generally at the next general state or national election the nominees of such party for such state or national offices. Section 3 subdivision 1. No inquiry as to the past political conduct is permitted or promise as to future sup- port of local candidates required. They provide for booths at public expense, in which the primary voter must in secret prepare his ballot; for ballots and their printing and subsequent folding so that the inspectors shall not be able to know for whom the bal- lot is cast ; for the administration of an oath to a voter in case of a challenge ; for challengers and watchers ; for an annual primary 6 82 FORMATION OP THE OFFICIAL RELATION. day, and that the polls shall be held open for a fixed period of time. The dominant idea pervading the entire statute is the absolute assurance to the citizen that his wish as to the conduct of the affairs of his party may be expressed through his ballot and thus given effect; whether it be in accord with the wishes of the leaders of his party or not, and that thus shall be put in effective operation, in the primaries, the underlying principle of democracy, which makes the will of an unfettered majority controlling. In other words, the scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting the leaders to construct it from the top downwards. Now, having in mind the purpose of this statute and the deci- sion of this court in the McKane case — ^that membership in a county general committee is a privilege which may be accorded or withheld, not a right which can be gained independently and then enforced, inasmuch as the association is voluntary, being organized without a charter and regulated as to its action by a constitution and by-laws — let us further examine the statute to se^ whether the legislature intended to, and did, take away from the general committee, the power, for any cause whatsoever, to expel members elected thereto by the voters of a town or ward. In the first place, the voluntary character of the county general committee has been destroyed, for the statute expressly commands that ''each shall have a general committee for each county." There is but one way to gain membership, says the statute, and that is through the suffrages of the members of the party exercised **at the annual primary elections on the annual primary day" and at "public expense." (Section 4, subdivisions 2 and 3 and sec- tion 6.) And the general committee is commanded to meet and organize on "the day fixed by the rules and regulations of the party." At that meeting a member elected at the preceding town or ward primary may appear to assume the duties of the office to which he has been elected, and the production of a certificate of election from the "custodian of primary records, or a duplicte thereof, shall be sufficient to entitle the person named therein to be ad- mitted to the committee to which he shall have been elected " Does the recital of these provisions suggest that the legislature intended that the committee should be the judge of the election or other qualification of its members, or that the primary voters would be the judge? What was the object of the legislation — PEOPLE EX REL. V. DEMOCRATIC COMMITTEE. 83 to protect the majority of the committee from enforced association with a disagreeable or "hostile" member, or to protect the right of the voters to have their wishes in party matters presented by their chosen representatives? If the former, then legislation was not needed in that direction, for the general committee had a method of ridding themselves of offensive members, that was in full operation, as the McKane Case witnesseth. If the latter was the object of the legislature, it is difficult to see how it could have taken more certain measures for its accomplishment. It provided that the statute should control not only the choice but also the conduct of political committees. The choice of the member it vested absolutely in the voter at the primary, reserving no voice whatever in the matter to his asso- ciates in the committee. It provided many things for the conduct of the committee, but the right to expel a member was not one of them. Power was given to the committee to prevent a member who had failed to pay his annual dues **from participating in the meetings of such committee." Expulsion from, or forfeiture of, his office was not named as the penalty for non-payment of dues, but only exclusion from participation in the meetings. And it is apparent from a reading of the provisions that the words were chosen with a view of enabling a member to resume attendance of the meetings upon payment of dues. But if this provision were capable of being treated as authorizing expulsion for non- payment of dues, the maxim expressio unius est exclusio alterius would be applicable and call for a construction of the statute deny- ing power to expel a member of the committee for any other reason. If I am right in the views expressed, no other question need be considered, for the statute manifests an intent not to allow the committee, on any pretext whatever, to remove the committee- man from office, and it is the duty of this court to give full force and effect to the legislative intent. It has been suggested that it would be intolerable for the mem- bers of a general committee to associate with a member who is hostile to the ticket, and that it follows that the legislature must be presumed to have had such a situation in mind. I answer — without assenting for one moment that the legal conclusion follows from the proposition of fact standing alone — ^that it does not stand alone; that the legislature was confronted with what is regarded as an abuse of the rights of the citizens in party matters, which 84 FORMATION OF THE OFFICIAL RELATION. compelled it to decide which was the lesser of two evils, to compel association occasionally with a member who is hostile to some por- tion of the party candidates or a majority of the committee, or to permit the general committee to deprive the primary voters of the choice of a representative. It decided that the wrongs that had been and were being done to the primary voters exceeded that which would result from occasional association with a hostile member. In other words, it was determined that the majority of the primary voters were entitled to select any representative they might de- sire, who would be responsible to those elcting him, and onlj' to them, for his conduct in office. That determination should be given effect by the decision of this court agreeably to that well- understood canon of construction that commands the court in con- struing a statute to give effect to the intention of the legislature. The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs. CuLLEN, J. (dissenting). The order appealed from should be affirmed, with costs. Haight, Vann and Landon, J. J., concur with Parker, Ch. J., for reversal; O'Brien, J., concurs with Cullen, J., for affirmance: and Bartlett, J., concurs with the result reached by Cullen, J. Order reversed, etc. But the title to a party office may not be tried by quo warranto since such a position is not a public office. Attorney General v. Dro- han, 169 Mass. 534. II. The Law of Appointment.^ 1. Nature of the Power to Appoint. PEOPLE EX REL. BALCOM V. MOSHER ET AL. Court of Appeals of New York. May, 1900. 163 N. Y. 32. Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 28, 1899, reversing an order of special term granting a peremptory writ of mandamus commanding the defendants to appoint the relator to the position of superintendent of streets and city property of the • The power of appointment is not included within the executive power vested in the governor by the state constitution. Fox v. McDonald, 101 Al. 61. PEOPLE EX EEL. BALCOM V. MOSHER ET AL. 85 city of Binghamton for a probationary term of two months, and denying the motion for such writ. The charter of that city provides that the mayor shall appoint four commissioners who shall constitute a board to be known as the board of street commissioners of the city of Binghamton ; that it shall have the management and control of the street department and its powers and duties are defined. It then declares that on the second Tuesday in February of every alternate year the board shall appoint a superintendent of streets and city property. . . . The position of superintendent became vacant February 1, 1899, by the expiration of the term of the previous incumbent. In the following April the municipal civil service commission certified to the board of street commissioners the names of three persons ap- pearing upon the eligible list prepared by the commission as a result of a competitive examination therefor. Upon the list were the names of Bolles, Balcom and Seabury. Bolles stood highest, Balcom next and Seabury last. Balcom and Seabury were both honorably discharged soldiers of the army during the late Civil War, and as such were entitled to preference over Bolles. The Special Term held that the civil service law of 1899 was constitutional, and that it required the street commissioners to appoint to the office of street superintendent the veteran who stood highest upon the eligible list furnished by the local civil service commissioners. Upon appeal the Appellate Division held that the act of 1899 was unconstitutional so far as it required the appoint- ment of the person standing highest upon such list, and reversed the judgment of the Special Term. Martin, J. The only controversy upon this appeal relates to the constitutionality of the civil service statute of 1899. The ques- tion involved is the power of the Legislature to abrogate the right conferred by the State Constitution upon the local authorities of a city to appoint such of its officers as are not directed by the Con- stitution to be elected or otherwise appointed. (Sec. 2, Art. 10.) The office of superintendent of streets and city property of the city of Binghamton falls within this statute, and, if valid, it is controlling as to the appointment of an incumbent of that office. The provisions of the Constitution, by which its validity is to be tested, are section 2 of article 10 and section 9 of article 5. . In interpreting the Constitution it is to be considered as a whole, 86 FORMATION OP THE OFFICIAL RELATION. complete in itself : force is to be given to every provision contained in it, and each clause explained and qualified by every other. Therefore, these two provisions should be construed together, giving force to both, and to each should be accorded its appro- priate place and proper effect, with some office to perform, and at the same time they should be so construed as to operate harmoni- ously. We find no repugnancy between these sections of the Con- stitution. Section two has been a part of the organic law of the State for many years, and obviously it was not intended to be superseded or changed, as no language was employed in the Con- stitution of 1894 to indicate any such purpose. Moreover, the pro- ceedings of the constitutional convention show that it was intended to be continued in force in its existing form. Section nine was an amendment adopted in 1894. Both being part of the present Con- stitution, the most that can be claimed is that they should be read and construed together. Reading the amendment of 1894 into section two, it in effect provides that all city officers whose election or appointment is not otherwise provided for by the Constitution shall be appointed by such authorities thereof as the Legislature shall designate for that purpose, which appointments shall be made according to merit and fitness to be ascertained by competitive ex- aminations so far as practicable. When thus read, it becomes manifest that under the Constitution the power of appointment still remains in such local authorities as the Legislature has desig- nated for that purpose. No alteration in that respect has been made or attempted. The only change effected by the amendment of 1894 is the requirement that the local authorities in making such appointments shall make them "according to merit and fitness," to be ascertained by examinations, competitive or otherwise. The amendment relates only to the qualifications which appointees shall possess to justify their appointment under section two, and the manner in which they shall be ascertained. Thus the power of ap- pointment is still vested in the local authorities of the various municipalities of the State, and the amendment has wrought no change as to the officers or bodies who are to make such appoint- ments. While the Legislature is authorized to designate the local au- thorities who are to appoint, yet, when they are thus designated, their actual power becomes constitutional and is controlled by that instrument. In this case the local authorities so designated to ap- PEOPLE EX REL. BALCOM V. MOSHER ET AL. 87 point a superintendent of streets and city property were the board of street commissioners of the city of Binghamton, and, hence, the board alone had power under the Constitution to make an ap- pointment to fill that office. Yet the Special Term, without per- mitting it to in any way exercise that power, held the statute of 1899 to be valid, and that under it the board had no right of selec- tion or choice between the several candidates certified as eligible to the place or between the two veterans who were so certified, but that it was absolutely bound to appoint the one veteran graded highest by the civil service commission and granted a peremptory mandamus commanding the board to appoint that person. If the civil service commissioners have power to certify to the ap- pointing officers only one applicant of several who are eligible and whom they have, by their own methods ascertained to be fitted for a particular position, and their decision is final, or if where more are certified the one graded highest must be appointed, then the civil service commission becomes and is the actual appointing power. To reach such a result, however, it must be held that the word "appointment" as used in the Constitution is not to be given its usual and ordinary meaning, but may be so limited and re- stricted as to leave in the local authorities a mere ministerial duty, with no discretion, nor choice, nor responsibility in respect to the person to be appointed. Such a construction would completely nullify the provision of the Constitution which confers the power of appointing city officers upon the local authorities of the munici- pality. A fair reading of the Constitution leads to no such result. Early in the history of the civil service reform in this country the signification of the word "appointed" was considered in con- nection with the United States civil service statute. The United States Attorney-General, in discussing that question, said: "If to appoint is merely to do a formal act, that is, merely to authenti- cate a selection not made by the appointing power, then there is no constitutional objection to the designation of officers by a com- petitive examination, or any other mode of selection which Congress may prescribe or authorize. But if appointment implies an ex- ercise of judgment and will, the officer must be selected according to the judgment and will of the person or body in whom the ap- pointing power is vested by the Constitution, and a mode of selec- tion which gives no room for the exercise of that judgment and will is inadmissible. If the President in appointing a marshall, if the Senate in appointing its secretary, if a court or head of a department in appointing a clerk, must take the individual whom 88 FORMATION OF THE OFFICIAL RELATION. the civil service board adjudge to have proved himself the fittest by the test of a competitive examination, the will and judgment which determine that appointment are not the will and judgment of the President, of the Senate, of the court, or of the head of the department, but are the will and judgment of the civil service board, and that board is virtually the appointing power." Opin. U. S. Atty. Gen., vol. 13, p. 516. A subsequent report of the United States Civil Service Commis- sion contained the following statement upon this subject: "The appointing power, conferred by Congress upon the heads of de- partments, under the strict terms of the Constitution, is a power of choice — a right of selection for appointment from among sev- eral. That opportunity of choice is inseparable from the power itself A choice between four seems to preserve the authority of the appointing power, and to allow a sufficient variety of capacity for answering the needs of the public business. For both these reasons, a requirement that the applicant graded highest be taken would be indefensible." Report of 1884. The decisions of this and other courts, State and Federal, as to the meaning of the word "appointment," and what constitutes an appointment under the law, are to the effect that the choice of a person to fill an office constitutes the essence of the appointment; that the selection must be the discretionary act of the officer or board clothed with the power of appointment ; that while he or it may listen to the recommendation or advice of others, yet the selec- tion must finally be his or its act, which has never been regarded or held to be ministerial. 19 Am. and Eng. Enc. of Law 423; Johnston V. Wilson, 2 N. H. 202; Hoke v. Field, 10 Bush (Ky.) 144; People v. Fitzsimmons, 68 N. Y. 514; Marbury v. Madison, 1 Cranch 137 ; Craig v. Norfolk, 1 Mod. 122 ; People ex rel. Bab- cock V. Murray, 70 N. Y. 521 ; Taylor v. Kercheval, 82 Fed. Rep. 497, 499 ; Menges v. City of Albany, 56 N. Y. 374 ; People ex rel Killeen v. Angle, 109 N. Y. 564, 573. Thus it is seen that the au- thorities upon the subject all agree in the conclu- sion that the power of selection for a public office is and should be vested alone in the officers or boards authorized to appoint, although it be limited to persons possessing the qualifications required by the civil service statutes and rules, and that at least some power of selection is necessary to constitute an appointment, which should PEOPLE EX REL. BALCOM V. MOSHER ET AL. 89 be exercised by the local authorities, independently of the civil service commission. Moreover, by section ten of the act of 1899, if the mayor for any reasons fails to appoint municipal civil service commissioners, the right to appoint them is conferred upon the State commission until the expiration of the term of the mayor then in office, and until their successors are appointed and qualify. The State commis- sioners are also authorized to remove any municipal civil service commissioner for cause. Therefore, there may be circumstances under which the selection of all the appointive officers of a city will be controlled by the State civil service commissioners, and thus the people and local authorities of the municipality be deprived of any voice in the selection of its officers. If it be said that no such condition has arisen in this case, the answer is that the validity of this statute must be determined by the nature, character and scope of the powers attempted to be conferred, although they have not been actually exercised. Stuart v. Palmer, 74 N. Y. 183; Coxe v. State, 144 N. Y. 396; Oilman v. Tucker, 128 N. Y. 190; Colon v. Lisk, 153 N. Y. 188, 194. I fancy it would be difficult to imagine a construction of the Constitution which would more completely surprise the inhabitants of the various municipalities or political divisions of the State, or that would work greater injury to fair and proper civil service reform, than one which would hold that the principle of local self- government for cities, villages and other municipalities of the State has been so far abrogated by the amendment of 1894 that the power of appointment of their local officers may be transferred from their local authorities to a centralized commission of State ap- pointees and thus the principle of local self-government practically destroyed. Although this Court in effect held that the statute of 1883 and the rules adopted by the civil service commissioners under it, which required that officers to be appointed should be selected from the highest three of the eligible list, was valid (People ex rel. McClel- land V. Roberts, 148 N. Y. 360; Chittenden v. Wurster, 152 N. Y. 345, 358J still, when the Legislature has, by statute, undertaken to deprive the local authorities of all right of selection and appoint- ment, it has exceeded its constitutional power and the act is clearly in conflict with the provisions of the organic law and invalid. This order should be affirmed with costs. 90 FORMATION OF THE OFFICIAL RELATION. Parker, Ch. J., O'Brien and Haight, JJ., concur; Bartlett and Vann, JJ,, not voting; Landon, J., not sitting. Order affirmed. But if the power to appoint is not a constitutional power the legislature may provide that the one standing highest on the list shall be appointed. People V. Klpley. 171 111. 44. THE STATE EX REL. WORRELL V. PEELLB. Supreme Court of Indiana. May, 1890, 124 Indiana, 515. Berkshire, J. This is the second time this case has been in this Court. State ex rel. v. Peelle, 121 Ind. 495. "When the case was here the first time the whole contention was as to the power of the Legislature under the Constitution to desig- nate the incumbent to the office in question. The appellee rested his claim to the office upon an election by the Legislature, and the appellant 's relator relied upon an appointment from the executive of the State. The appellee now claims title to the office by virtue of an appoint- ment from the executive of the State, while the appellant's relator assumes the same position as heretofore. And the question now is, does the appellee hold the office in ques- tion by appointment from the executive department of the gov- ernment ? As we now understand the position of the appellee, it is that he holds the office (1) by appointment from Governor Porter, and (2) by appointment from Governor Gray. For two sufficient reasons the appellee received no appointment to the office in question from Governor Porter, the second of which applies with equal force to the action of Governor Gray. The second reason why the appellee did not secure an appoint- ment from the executive is that the appointing power lodged with him under the Constitution was never invoked in behalf of the ap- pellee, and so long as it was not called into exercise there could be ' STATE EX REL. WORRELL V. PEELLB. 91 no appointment, although the Governor could at any time call it into action. It appears that the General Assembly assumed (and it was but an assumption) to take from the executive department the power therein vested under the Constitution to designate the incumbent of the office in question, and not only so but to legislate the rightful incumbent of said office out of office before the expiration of his term, and to take unto themselves the election of an incumbent to said office, and as the result the General Assembly elected the ap- pellee and gave him a certificate of election. The first election occurred on the 3d day of March, 1883, and upon a certificate thereof being presented to the executive he issued the following commission : *'The State of Indiana. To all who shall see these Presents, Greeting: ** Whereas, It has been certified by the proper authority that, at a joint convention of the two Houses of the fifty-third General Assembly, held in the hall of the House of Representatives, March 3d, 1883, that William A. Peelle, Jr., was elected Chief of the Bu- reau of Statistics. "Therefore, Know ye, that in the name and by the authority of the State aforesaid, I do hereby appoint and commission William A. Peelle, Jr., Chief of the Bureau of Statistics aforesaid, to serve as such for the term of two years from the 8th day of March, 1883, and until his successor shall have been elected and qualified. * ' In witness whereof, etc. **By the Governor: Albert G. Porter. W. R. Myers, Secretary of State." There was no pretense that the appellee held any other title to the office than that which the said election conferred upon him, and when we remember the aggressive attitude of the General Assembly at that time with reference to its power to elect the incumbents to a large class of offices, including the one in question (and of this we take judicial knowledge), the appellee would not have been will- ing to have recognized the executive department as the source of his title. The Governor was careful to recite in the commission the nature of the appellee's title and that he commissioned him as the chosen of the General Assembly. That it was the purpose and in- tention of the Governor, when he issued the commission, to deliver to the appellee the evidence of his title as derived from the Legis- lature, and to make it distinctly appear that he was in no sense 92 FOEMATION OP THE OFFICIAL RELATION. the appointee of the executive, is so manifest that there is no ground for a contrary contention to rest upon. But in addition to what appears on the face of the commission, the records of the executive office disclose the fact that the commission was issued to the ap- pellee because and on account of his election by the General As- sembly. We know of no sufficient reason why these records are not competent evidence. They are the records kept in a public of- fice of the official acts of the chief executive officer of the State. But it is contended that by some kind of legal fiction the appellee, each time he was commissioned by the Governor, became his ap- pointee. This contention is not very clearly defined, but proceeds, as we understand it (in part, at least), upon the theory that all persons are presumed to know the law, and that this presumption applies as well to public officers as to individuals ; and, as Governors Porter and Gray are presumed to have known, when they commissioned the appellee, that the General Assembly had no power to elect him to the office, that the presumption must prevail that they intended by their official acts in commissioning him to appoint him to the office, and that this presumption must prevail, over their expressed intention to the contrary; or, to express the contention in other language, though they intended by their official acts to do one thing, and, in fact, did what they intended, that in law they did some- thing else. This is carrying the doctrine of presumptions beyond precedent, and, we think, beyond reason. On the 9th day of February, 1885, the Legislature again elected the appellee to the office in question, and thereafter, upon a certifi- cate of election, the Governor issued to him a commission. In 1887 there was no election, and the appellee continued to hold the office until 1889, when the Legislature again elected hitn to the office, and on presentation of his certificate of election to the Gov- ernor, a commission was refused, and the Governor having ap- pointed the appellant's relator and commissioned him, this con- troversy arose. The following is the appellee's commission from Governor Gray: ''The State of Indiana. To all who shall see these Presents, Greeting: "Whereas, It has been certified to me by the proper authority that William A. Peelle, Jr., has been elected to the office of Chief of STATE EX EEL. WORRELL V. PEELLE. 93 the Bureau of Statistics of the State of Indiana, by the General Assembly on the ninth day of February, A. D. 1885. "Therefore, Know ye, that in the name and by the authority of the State aforesaid, I do hereby commission the said William A. Peelle, Jr., as said Chief of the Bureau of Statistics of the State of Indiana for the term of two years from the eighth day of March, 1885, and until his successor shall have been elected and qualified. "In witness whereof, etc. "By the Governor: Isaac P. Gray. "William R. Myers, Secretary of State." We have nothing to add with reference to Governor Gray's ac- tion, except to say that he seemed to be more careful, if possible, than his predecessor to emphasize the fact that the appellee was not his appointee, but was commissioned as the chosen of the Gen- eral Assembly. The word "appoint" is found in the commission issued by Governor Porter, but nowhere appears in that of Gov- ernor Gray. But the further contention of the appellee is, that as the appoint- ing power was lodged with the executive of the State, his purpose or intention in commissioning the appellee can not be inquired into ; that notwithstanding the purpose is disclosed in the face of the commission, all of its recitals must be disregarded, and the com- mission treated as an appointment made by the executive. Much that we have already said is here applicable. This is but contending for a conclusive presumption that you must take an officer to mean one thing when he does another. As the appointing power was lodged in the executive when he commissioned the appellee, had the commission recited an appoint- ment, or had it been silent as to the source of the appellee's title to the office, then no doubt the commission would have been conclusive, for the very good reason that the mental operations of the Gov- ernor's mind, unexpressed in the act, could not be inquired into, and if for no other reason such inquiry would be impracticable. But where the source of title is lodged somewhere else than with the executive, his commission is only prima facie evidence of title. Board, etc., v. State ex rel., 61 Ind. 379 ; Reynolds v. State ex rel., 61 Ind. 392; Bench v. State ex rel., 72 Ind. 297; State ex rel. v. Chapin, 110 Ind. 272 ; Marbury v. Madison, 1 Cranch 137. This Court has gone so far as to hold that even after the Gov- ernor has issued a commission, if it appears that he has commis- sioned a wrongful claimant, to the prejudice of one who is rightfully 94 FORMATION OP THE OFFICIAL RELATION. entitled to the office, he may issue the second commission. Gulick v. New, 14 Ind. 93. The same reasons which make the Governor's commission con- clusive, when silent as to the source of title, that the person com- missioned is the Governor's appointee, where he has the power to appoint an incumbent to an office, render his commission conclusive that such person is not his appointee when it recites that the per- son commissioned derives his claim of title because of an election by the people or Legislature, and is commissioned because thereof. We hold that when the appellant's relator was appointed there was a vacancy in the office, which the Governor was empowered to fill by appointment until there should be an election by the people. Judgment reversed, with costs. Elliott, J., and Mitchell, Ch. J,, dissenting As to the power to appoint to fill vacancies, see Fritts v. Kuhl, 51 N. J. L, 191, and People v. Ward, 107 Cal. 236 infra. In most states the legislature may Itself appoint to oflSce. People v. Freeman, 80 Cal. 233; People V. Mayor, 16 Md. 876; People v. Bennett, 64 Barb. 481. 2. Eow Exercised. PEOPLE EX REL. BABCOCK V. MURRAY. Court of Appeals of New York. September, 1877. 70 N. r. 521. Allen, 'J. At the time of the expiration of the term of office of the defendants in 1873, the power to appoint their successors was in the mayor of the city of Lockport, and the assent or ap- proval of the common council was not required, and all acts of the common council in affirming any nomination to the office, or ratify- ing the action of the mayor in making an appointment, were nulli- ties. Laws of 1870, ch. 175, sec. 2; People v. Gates, 56 N. Y. 387; Same v. Fitzsvmmons, 68 id. 514. The learned judge by whom the action was tried has found as a fact "that in the month of April, 1873, the relators were duly appointed to the office of excise com- missioners of the city of Lockport in place of the defendants," and to this finding there is an exception as not only not warranted by, but as against evidence. The evidence discloses the fact, which is PEOPLE EX REL. BABCOCK V. MURRAY. 95 undisputed, that the only action of the mayor was a verbal nomina- tion of the relators to the common council for appointment to the office. The vote of the common council and the record of their ac- tion upon the nomination must be laid out of view as ultra vires, and without efficiency. They add nothing to the verbal declaration and statement of the mayor, and the claim is that such nomination was a verbal appointment of the persons named to the office, the completed act of the mayor making the appointment; that an ap- pointment by parol without writing is a valid exercise of the power to appoint, and this proposition must be sustained or the respond- ents cannot hold their judgment. In the People v. Pitzsimmons we held, with considerable hesitation and not without great doubts, that a nomination of the mayor of Albany to the common council of that city, and for their action, of individuals for office under the same statute, in writing, signed by the mayor officially and filed with the clerk of the common council, in the absence of any statute prescribing the form of the appointment or of the commission to be issued, followed by the taking of the oath of office by the persons named before the mayor, was a sufficient appointment by the mayor under the statute. No stress was laid upon the action of the com- mon council. The paper writing signed by the mayor officially, although addressed to the common council and in the form of a nomination of the persons to that body, was an official appointment to the office by the mayor, and a substantial compliance with the statutes. There is no color in the opinion, or in any statute of this State, or any custom or usage of which we have knowledge, for claiming that an appointment to any civil office can be made verbally or without a proper writing evidencing the fact. It would be unfortunate if the title to office of one upon whose official acts public interests and private rights hinged, did or could be made to depend upon the verbal declarations and statements of the persons having the power to make the appointment, to be proved by parol and liable to be forgotten, misunderstood or misreported, subject to all the contingencies and infirnlities which are incident to verbal evidence, or evidence by parol, so pregnant of mischief and misfortune as to have led to the enactment of the statute of frauds. It will not be presumed that the Legislature, while making void contracts involving trifling pecuniary interests unless evi- denced by some writing, intended that important civil offices should be conferred without a commission or any writing, but simply by a 96 FORMATION OF THE OFFICIAL RELATION. verbal statement of an individual in any form which by the by- standers should be understood as expressing a present intent to make the appointment; and a liberal interpretation will be given to the statutes bearing upon the subject if necessary to avoid any such conclusion. The Constitution and the laws of the State create or provide for the creation of all the offices, and prescribe the mode of election or appointment, the terms and duration of office, as well as regulate the duties and emoluments. Offices in certain cases, may be for a term of years, during the pleasure of the ap- pointing power, or during good behavior; but whatever may be the term or tenure of office, the appointment must be in conformity with the statutes of the State. An appointment in the general sense of the term may be by deed or in writing without seal or verbal, depending upon the subject-matter of the appointment and the terms of the authority under which it is made. But an appoint- ment to office by the person or persons having authority therefor, as distinguished from an election, can only be made verbally, and without writing when permitted by the terms of the statute con- ferring the power. Affecting the public, and not merely private rights, and being done under the authority of the sovereign power and not under individual authority, it should be authenticated in a way that the public may know when and in what manner the duty has been performed. The statute (1 R. S. 118, sec. 19) clearly contem- plates a commission, the form of which is not prescribed, which shall be the conclusive evidence of an appointment to a civil office. The article in which the section is found is entitled, "Of nomina- tions to offices and the commissions of officers," and after making provision for officers appointed by the Governor and Senate, and by the Governor, and all the elective officers, and commissioners of deeds (then appointed by the county judges and boards of super- visors in joint convention), it provides in the last section that "the commissions for all other offices, when no special provision is made, shall be signed by the presiding officer of the board or body, or by the person making the appointment." The language includes every civil office within the State not excepted from its operation by statute, and was clearly intended to prescribe the mode of appoint- ment. The appointment under this delegated authority is inchoate until the last act to be done by the appointing power is completed. PEOPLE EX REL. BABCOCK V. MURRAY. 97 and that is the signing of the writing or the commission. The ap- pointment is then ,and not before, ** evidenced by an open un- equivocal act." Ch. J. Marshall in Marhury v. Madison, supra, says: **Some point of time must be taken when the power of the executive over an officer not removable at his will must cease ; that point of time must be when the constitutional power of appoint- ment has been exercised ; when the last act required from the per- son possessing the power has been performed. The last act is the signature of the commission. " It is not discretionary with a person having the power to appoint to office; whether there shall be a commission; the signing of the commission is an integral part of the duty of the delegated power, and necessary to a perfect and complete execution of the power entitling the appointee to assume the duties of the office. Johnston v. WUson, 2 N. H. 202, related to an elective office, and Mr. Justice Woodbury says : * ' On general prin- ciples, the choice of a person to fill an office constitutes the essence of his appointment. After the choice, if there be a commission, an oath of office, or any ceremony of inauguration, these are forms which may or may not be necessary to the validity of any acts under the appointment, according as usage and positive statute may or may not render them indispensable. ' ' But in the case of an appointment by one representing the public, the choice can only be made under our statute by the commission by which it is evi- denced. That is the making of the choice; the act which is ef- fectual, as unequivocal and final. The relators have no title to the office in dispute. The defendants hold the office by statute ** until others shall be appointed in their places." No such appointment has been made, and they have not resigned, or in any way vacated their offices. They could not, by their act or assent, transfer the office to the relators, or relieve them selves, except in one of the ways designated by statute. Johnston V. Wilson, supra, 1 R. S. 122, Sec. 34. The office is not vacant, and the defendants are the legal in- cumbents. The judgment must be reversed, and judgment given for the defendants. All concur. Judgment accordingly. But see Hoke v. Field, 10 Bush. Ky. 144, which holds that an oral appointment in open court is good where the law does not require that the appointment shall be in writing. i 98 FORMATION OF THE OFFICIAL RELATION. 3. When Exercised, MARBURY V. MADISON. Supreme Court of the United States. February, 1803. 1 Cranch 137. At the last term, viz., December term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe, and William Harper, by their counsel, Charles Lee, Esq., late Attorney-General of the United States, severally moved the court for a rule to James Madi- son, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be deliv- ered to them respectively their several commissions as justices of the peace in the District of Columbia. On the 24th of February, the following opinion of the court was delivered by the Chief Justice (Marshall). Opinion of the court. At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the Secretary of State to show cause why a mxindamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia. In the order in which the court has viewed this subject, the following questions have been considered and decided : Ist. Has the applicant a right to the commission he demands! 2ndly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3dly. If they do afford him a remedy, is it a mxindamus issuing from this court T The first object of inquiry is, Ist. Has the applicant a right to the commission he demands T His right originates in an act of Congress passed in February, 1801, concerning the District of Columbia. It appears, from the afiidavits, that in compliance with this law, a commission for William Marbury, as a justice of the peace for the county of Washington, was signed by John Adams, then Presi- dent of the United States ; after which the seal of the United States MABBURY V. MADISON. 99 was affixed to it ; but the commission has never reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evi- dences of office, which, being completed, became his property. The 2d section of the 2d article of the Constitution declares, that **the President shall nominate, and by and with the advice and consent of the Senate, shall appoint, ambassadors, other public ministers and consuls, and all other officers of the United States, whose appointments are not otherwise provided for." The 3d section declares, that **he shall commission all the officers of the United States." An act of Congress directs the Secretary of State to keep the seal of the United States, **to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the President, by and with the consent of the Senate, or by the President alone, provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States." These are the clauses of the Constitution and laws of the United States, which affect this part of the case. They seem to contemplate three distinct operations: 1st. The nomination. This is the sole act of the President and is completely voluntary. 2d. The appointment. This is also the act of the President and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. 3d. The commission. To grant a commission to a person ap- pointed, might, perhaps, be deemed a duty enjoined by the Consti- tution. **He shall," says that instrument, "commission all the of- ficers of the United States." The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and the same; since the power to perform them is given in two separate and distinct sections of the Constitution : The distinction between the appoint- ment and the commission will be rendered more apparent by ad- verting to that provision in the second section of the second article of the Constitution, which authorizes Congress **to vest, by law, the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of de- 100 FORMATION OP THE OFFICIAL RELATION. partments ; ' ' thus contemplating cases where the law may direct the President to commission an officer appointed by the courts, or by the heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the per- formance of which, perhaps, could not legally be refused. Although that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence, the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed, remains the same as if in practice the President had commissioned officers appointed by an authority other than his own. It follows, too, from the existence of this distinction, that if an appointment was to be evidenced by any public act, other than the commission, the performance of such public act would create the officer; and if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it. These observations are premised solely for the purpose of ren- dering more intelligible those which apply more directly to the particular case under consideration. This is an appointment made by the President, by and with the advice and consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the ap- pointment, though conclusive evidence of it. But at what stage does it amount to this conclusive evidence ? The answer to this question seems an obvious one. The appoint- ment being the sole act of the President, must be completely evi- denced, when it is shown that he has done everything to be per- formed by him. Should the commission, instead of being evidence of an appoint- ment, even be considered as constituting the appointment itself; still it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete. The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own nomination. The time for deliberation has then MARBURY V. MADISON. 101 passed. He has decided. His judgment, on the advice and consent cf the Senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as re- spects the appointment, an inchoate and incomplete transaction. Some point of time must be taken when the power of the execu- tive over an officer, not removable at his will,* must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act, required from the person possessing the power, has been performed. This last act is the signature of the commission. The commission being signed, the subsequent duty of the Secre- tary of State is prescribed by law, and not to be guided by the will of the President. He is to affix the seal of the United States to the commission ,and is to record it. This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible ; but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the Presi- dent. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. If it should be supposed that the solemnity of affiLxing the seal is necessary not only to the validity of the commission, but even to the completion of an appointment, still when the seal is affixed the appointment is made, and the commission is valid. No other sol- emnity is required by law ; no other act is to be performed on the part of government. All that the executive can do to vest the person with his office has been done; and unless the appointment be then made, the executive cannot make one without the co-opera- tion of others. After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine. * In Parsons v. United States, 167 U. S. 324 and Shurtleff v. United States, 189 U. S. 311, the Supreme Court has since decided that the Pres- ident has an arbitrary power of removal of all officers of the United States not judges of the United States; not including the territorial courts. 102 FORMATION OP THE OFFICIAL RELATION. It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It cannot, therefore, be necessary to constitute the appointment which must precede it, and which is the mere act of the President. If the executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom the duty is assigned, and may be accelerated or retarded by cir- cumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed, not to a person to be appointed, or not, as the letter enclosing the commis- sion should happen to get into the post office and reach him in safety, or to miscarry. It may have some tendency to elucidate this point, to enquire whether the possession of the original commission be indispensably necessary to authorize a person, appointed to any office, to perform the duties of that office. If it was necessary then a loss of the com- mission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individual of his office. In such a case, I presume it could not be doubted but that a copy from the record of the office of the Secretary of State would be, to every intent and purpose, equal to the original. The act of Congress has expressly made it so. In the case of commissions, the law orders the Secretary of State to record them. When therefore they are signed and sealed, the order for their being recorded is given ; and whether inserted in the book or not, they are in law recorded. A copy of this record is declared equal to the original, and the fees to be paid by a person requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a commission which has been recorded ? Or can he refuse a copy thereof to a person de- manding it on the terms prescribed by law? Such a copy would, equally with the original, authorize the justice of the peace to proceed in the performance of his duty, because it would equally with the original, attest his appointment. If the transmission of a commission be not considered as neces- sary to give validity to an appointment, still less is its acceptance. MAEBURY V. MADISON. 103 The appointment is the sole act of the President; the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept; but neither the one nor the other is capable of rendering the ap- pointment a nonentity. It is, therefore, decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable : and the commission may be arrested, if still in the office. But when the officer is not re- movable at the will of the executive, the appointment is not revoca- ble, and cannot be annulled. It has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised until the ap- pointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. Mr. Marbury, then, since his commission was signed by the President, and sealed by the Secretary of State, was appointed; and as the law creating the office gave the officer the right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are pro- tected by the laws of his country. To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. This brings us to the second inquiry ; which is, 2dly, If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. 104 FORMATION OP THE OFFICIAL RELATION. If this obloquy is to be cast upon the jurisprudence of our coun- try, it must arise from the peculiar character of the case. Is it in the nature of the transaction ? Is the act of delivering or withholding a commision to be considered as a mere political act, belonging to the executive department alone, for the performance of which entire confidence is placed by our Constitution in the su- preme executive; and for any misconduct respecting which, the- injured individual has no remedy? That there may be such cases is not to be questioned ; but that every act of duty, to be performed in any of the great departments of government, constitutes such a case, is not to be admitted. It is not believed that any person whatever would attempt to maintain such a proposition. It follows, then, that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of the act. If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction. In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much diffi- culty in laying down the rule. By the Constitution of the United States, the President is in- vested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts ; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that dis- cretion. The subjects are political. They respect the nation, not individual rights, and being intrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communi- cated. The acts of such an officer, as an officer, can never be exam- inable by the courts. MARBURT V. MADISON. 105 But when the Legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts ; he is so far the officer of the law ; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers him- self injured, has a right to resort to the laws of his country for a remedy. If this be the rule, let us inquire how it applies to the case under the consideration of the court. The power of nominating to the Senate and the power of ap- pointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment, he has exercised his whole power, and his discre- tion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are termin- ated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated ; and, consequently, if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and are not re- sumable by the President. They cannot be extinguished by execu- tive authority, and he has the privilege of asserting them in like manner as if they had been derived from any other source. The question whether a right was vested or not, is, in its nature, judicial, and must be tried by the judicial authority. If, for ex- ample, Mr. Marbury had taken the oaths of a magistrate, and pro- ceeded to act as one, in consequence of which a suit had been instituted against him, in which his defence has depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority. So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made out for him, or to a copy of that commission, it is equally a question ex- 106 POEMATION OP THE OFFICIAL RELATION. aminable in a court, and the decision of the court upon it must de- pend on the opinion entertained of his appointment. That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the ap- pointment was complete, and evidenced, was when, after the signa- ture of the President, the seal of the United States was aflSxed to the commission. It is, then, the opinion of the court, 1st. That by signing the commission of Mr. Marbury, the Pres- ident of the United States appointed him a justice of the peace for the county of Washington, in the district of Columbia ; and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment ; and that the appointment conferred on him a legal right to the office for the space of five years. 2dly. That, having this legal title to the office, he has a conse- quent right to the commission ; a refusal to deliver which is a plain violation of that right, for which the laws of his countrj' afford him a remedy. It remains to be inquired whether, 3dly. He is entitled to the remedy for which he applies. This depends on, 1st. The nature of the writ applied for; and, 2dly. The power of this court. 1st. The nature of the writ. Blackstone, in the 3d volume of his commentaries, page 110, de- fines a mandamus to be "a command issued in the king's name from the court of king's bench, and directed to any person, corpora- tion, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court of king's bench has previously determined, or at least supposes, to be con- sonant to right and justice. ' ' This writ, if awarded, would be directed to an officer of govern- ment, and its mandate to him would be, to use the words of Black- stone, "to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously deter- mined, or at least supposes, to be consonant to right and justice.** Or, in the words of Lord Mansfield, the applicant in this case, has a right to execute an office of public concern, and is kept out of that right. MABBURY V. MADISON. 107 These circumstances certainly concur in this case. Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom, on legal principles, such writ may be directed ; and the person applying for it must be without any other specific and legal remedy. 1st. With respect to the officer to whom it would be directed. The intimate political relation subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers pecu- liarly irksome, as well as delicate ; and excites some hesitation with respect to the propriety of entering into such investigation. Im- pressions are often received without much reflection or examination, and it is not wonderful that in such a case as this the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first be con- sidered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in. which they have a discretion. Questions in their nature political, or which are, by the Constitution and laws, submitted to the execu- tive, can never be made in this court. But, if this be not such a question ; if, so far from being an in- trusion into the secrets of the cabinet, it respects a paper, which, according to law, is upon record, and to a copy of which the law gives a right, on the payment of ten cents ; if it be no intermeddling with a subject over which the executive can be considered as having exercised any control; what is there in the exalted station of the officer, which shall bar a citizen from asserting, in a court of jus- tice, his legal rights, or shall forbid a court to listen to the claim, or to issue a mandamus directing the performance of a duty, not depending on executive discretion, but on particular acts of con- gress, and the general principles of law? If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his con- 108 FORMATION OP THE OFFICIAL RELATION. duct, if the case be such a case as would, were any other individual the party complained of, authorize the process? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impro- priety of issuing a mandamus is to be determined. Where the head of a department acts in a case, in which executive discretion is to be exercised ; in which he is the mere organ of executive will ; it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president, and the performance of which the president cannot lawfully forbid, and therefore is never presumed to have forbidden; as, for example, to record a commission, or a patent for land, which has received all the legal solemnities; or to give a copy of such record; in such cases, it is not perceived on what grounds the courts of the coun- try are further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. It is true that the mandamus, now moved for, is not for the per- formance of an act expressly enjoined by statute. It is to deliver a commission, on which subject the acts of con- gress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has, to that commission, a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive; and being so ap- pointed, he has a right to the commission which the secretary has received from the president for his use. The act of congress does not indeed order the secretary of state to send it to him, but it is placed in his hands for the person entitled to it; and cannot be more lawfully withheld by him than by any other person. This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record ; and it only remains to be inquired. Whether it can issue from this court. The act to establish the judicial courts of the United States au- thorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts ap- MARBURY V. MADISON. 109 pointed, or persons holding office, under the authority of the United States." The Constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is ex- pressly extended to all cases arising under the laws of the United States ; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States. In the distribution of this power it is declared that *'the su- preme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction. ' ' It has been insisted, at the bar, that as the original grant of juris- diction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, con- tains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. If it had been intended to leave it in the discretion of the legis- lature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would cer- tainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdic- tion, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate ; the distribution of jurisdiction, made in the Constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed ; and in this case a negative or exclusive sense must be given to them, or they have no operation at all. It cannot be presumed that any clause in the Constitution is in- tended to be without effect; and, therefore, such a construction is inadmissible unless the words require it. 110 FORMATION OP THE OFFICIAL RELATION. To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already insituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an oflScer for the delivery of a paper, is in effect the same as to sustain an orig- inal action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. The question, whether an act, repugnant to the Constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain prin- ciples, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole 'American fabric has been erected This original and supreme will organizes the government, and assigns to different departments their respective powers. It may stop here or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. Certainly all those who have framed written constitutions con- template them as forming the fundamental and paramount law MARBUBY V. MADISON. Ill of the nation, and, consequently the theory of every such govern- ment must be that an act of the legislature, repugnant to the con- stitution, is void. This theory is essentially attached to a written constitution, and is, consequently, to be considered, by this court, as one of the fun- damental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect ? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be in- sisted on. It shall, however, receive a more attentive considera- tion. It is emphatically the province and duty of the judicial depart- ment to say what the law is. Those who apply the rule to par- ticular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution ; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution: or conformably to the Constitution, disregarding the law; the court must decide which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Con- stitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power, to say that in using it the Constitution should not be looked into ? That a case arising under the Constitution should be decided without examining the instrument under which it arises ? This is too extravagant to be maintained. In some cases, then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey ? 112 FORMATION OP THE OFFICIAL RELATION. There are many other parts of the Constitution which serve to illustrate this subject. From these, .... it is apparent, that the framers of the Constitution contemplated that instrument as a rule for the gov- ernment of the courts, as well as of the legislature. ' Why otherwise does it direct the judges to take an oath to sup- port it ? The oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support ! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion upon this subject. It is in these words : " I do solemnly swear that I will administer jus- tice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States." Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution is itself first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitu- tion have that rank. Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other depart- ments, are bound by that instrument. The rule must be discharged. See also Speed v. Common Council of Detroit. 97 Mich. 198 infra. In the case, however, of an appointment by a legislative body, the action ot the legislative body in making an appointment may be reconsidered In accordance with the rules. Attorney Gen. v. Oakman, 126 Mich. 717. STATE EX EEL. PliEMING V. CRAWFORD. 113 STATE EX REL. FLEMING V. CRAWFORD. Supreme Court of Florida. June, 1891. 28 Fla. 441. The alternative writ, the declaration in causes of this charac- ter, states that on the 22nd day of September, of the present year, the relator, Francis P. Fleming, the Governor of this State, he having ascertained and determined that a vacancy existed in the office of United States Senator from this State, did, in exercise of the power conferred upon him by law, proceed to appoint Robert H. M. Davidson, a citizen of the State, having all the legal qualifi- cations for such office, to be United States Senator from Florida, to fill such vacancy until the meeting of the next legislature; and that to evidence and give effect to such appointment, the petitioner prepared and signed an appointment or commission. That thereupon the said Governor caused the said appointment or commission to be transmitted to the defendant, John L. Craw- ford, Secretary of State, of this State, and instructed and directed him to seal it with the great seal of the State and to countersign the same as due and proper attestation of the executive act of such appointment, to be delivered to said Davidson as his full and complete appointment to be such United States Senator, and the evidence thereof, but that the said Crawford, Secretary of State, in disregard of his duty in the premises, failed and refused to seal the said appointment or commission with the great seal of the State and to countersign the same, and has failed and refused and still refuses to do so to the great prejudice and injury of the people of the State. That afterwards, on or about October 13th, 1891, the said Gov- ernor required and instructed William B. Lamar, the Attorney General of the State, to institute proceedings in this court to pro- cure the writ of mandamus to require the said Secretary of State to seal such appointment or commission with such seal and to coun- tersign the same, but the Attorney General has failed and refused and still refuses to institute the proceedings. The writ then recites the prayer of the petition: that, in order to protect and secure the public interests in the premises, and to enforce and carry into effect his said executive act as such Gov- ernor, the writ may issue, and in compliance with such prayer, 3 114 FORMATION OF THE OFFICIAL RELATION. directs the Secretary of State to seal and countersign the said ap- pointment or commission, or to show cause on the day and at the time mentioned therein, why he had not done so. On the 29th day of October, at the time stated in such writ, the Secretary of State made return to such writ. Raney, C. J. : 2nd. It appears that on the fourth day of August last the Grov- emor issued an address to the people of Florida, announcing as his judgment and conclusion that the action of the joint assembly of the legislature taken on the 26th of May last, at which Mr. Call received the votes of fourteen senators and of thirty-seven repre- sentatives, and Mr. Mays received the vote of one representative, and at which the president of the joint assembly announced that Mr. Call having received a majority of all the votes of the joint assembly, a majority of all the members elected to both houses being present and voting, was duly elected United States Senator for the term beginning March 4, 1891, was not an election of ]\Ir. Call, and the reason, as is shown by the return before us, is that a majority or quorum of the senate was not present at, and did not participate in such election. In this paper the Grovernor also announced that he could not "in the discharge of his duty" cer- tify that Mr. Call was elected, and gives a full statement of the grounds upon which his conclusions are based. On the 22nd day of September the Governor prepared and signed the appointment of Mr. Davidson set out in the preceding statement of the case before us, and it will be observed that this appointment recites that a term of office of United States Senator held by Mr. Call had expired on the third day of March last during a recess of the legislature, and that thereby a vacancy happened in such office, and that no Senator had been chosen by the legislature to fill such vacancy, and that the legislature was not in session, but, on the con- trary, a recess thereof existed at the time, and upon these prem- ises so recited, the Governor by virtue of the authority vested in him by the Constitution of the United States appoints Mr. David- son to be United States Senator from Florida until the next meet- ing of the legislature. The election mentioned is set up by respondent as a bar to the allowance of a peremptory writ The Constitution of the United States has not . . . given STATE EX BEL. FLEMING V. CRAWFORD. 115 to this court the power to pass upon the question of the legality of the election of a United States Senator, but ... it has ex- pressly excluded from it the right to do so. The constitution of the State has not attempted to confer any such power upon us, nor has Congress, nor our own legislature; nor is it to be imagined that any such attempt would be made. Whether Mr. Call was legally elected by the legislature, is not for us to say. The question occurs to me, however, that admitting we cannot decide upon the legality of the election, is it not a sufficient answer to the application for this writ, that the joint assembly is shown to have done what it in fact did and as it was constituted, and to have announced through the presiding officer the same to be a legal election. It is, we find, after the most careful consideration, impossible to pursue this course without usurping the functions of the Senate Whether the constitution gave the Gov- ernor power after the adjournment of the legislature to appoint, was a question which addressed itself primarily to the Governor, and however erroneous may be the conclusion which he has reached, he has in fact made a decision in favor of his power, and has pro- ceeded to the extent indicated by this record, in making an appoint- ment to fill what he holds to be a vacancy within the meaning of that clause of the constitution which confers upon him the power of appointment. We cannot close our eyes to this fact as an exist- ing feature in the case before us any more than to the action of the legislature or any other fact shown by the record. It cannot be said that as between the Governor and this court, it was not a matter for his decision. We cannot hold, then, tliat the simple fact of the legislature having taken the action set up constitutes a bar to the proceeding sought at our hands, without usurping the power to decide that this action, however illegal or ineffectual it may be held by the senate, precluded any action by the Governor ; or, in other words, deprived him of the power to act. To decide this question would be to do what the constitution has devolved upon the senate exclusively. It is a question as to the relative validity of legislative and executive action, of which we have no jurisdiction. What we cannot do, the Secretary of State cannot do, and for the same reason that the power has not been placed in him unless it is implied by the imposition upon him of the duty to seal and countersign this commission, if such duties have been put upon him is a question to be hereafter considered. He cannot, un- less the power to do so is implied by the imposition of the stated 116 FORMATION OF THE OFFICIAL RELATION. duties, decide that the appointment of Mr. Davidson is illegal, or that it is so because the election of Mr. Call was legal, and no vacancy existed, and consequently the Governor had no power to appoint. The erroneous exercise of power by either the Governor or the legislature confers no power on either the Secretary of State or us, and in our conduct we should leave the action of each to be judged of by the Senate, and perform such duties as the law has placed upon us, without assuming any responsibility not imposed upon us. Knowledge on our part of what may have been the decision of the Senate in any analogous case does not create power or jurisdiction in this court. Unless there is in the nature of the act of sealing and countersigning, the implied power of passing upon the legality of the Governor's fiction, the Secretary has no more power to do so and refuse to attest the Governor's act than he would have had to refuse Mr. Call a certified copy of the pro- ceedings of the legislature, of whose records he is, under sec. 21, Art. IV. of the constitution, the keeper, had it been his judgment that the election by the legislature was illegal and void. In cer- tifying and giving such copy he performed a duty imposed upon him which in nowise involved or implied what his personal judg- ment of the validity of that election is, and the law does not give him any official judgment as Secretary of State in the premises. 4th. The foregoing conclusions bring us to the question, whether or not under the law obtaining in this State it is the duty of the Secretary of State to affix the seal of State to this commis- sion and countersign the same We see from the provision of our own constitution . . . that the purpose of its framers, and the people who adopted it, was that all commissions issued by the State should be sealed with the great seal of State, signed by the Governor and countersigned by the Secretary of State. That it is, under this section, the official duty of the officers named to sign and countersign, and the duty of the Secretary of State, who, by another section of the same article, is made the custodian of the seal, and whose countersign- ing is an attending testimony of the authorized use of such seal, to seal all commissions emanating from the State is the only in- terpretation of the organic law that would not violate common rea- son. What is a commission in the sense in which it is here usedT It is written authority or letters patent issued or granted by the government to a person appointed to an office, or conferring public STATE EX REL. FLEMING V. CRAWFORD. 117 authority or jurisdiction upon him. .... In the United States V. Le Baron, 19 How. 73, it was held that when a person has been nominated to an office by the President, confirmed by the Senate, and his commission has been signed by the President, and the seal of the United States affixed thereto, his appointment to that office is complete ; that Congress might provide, as it had done in that case, that certain acts should be done by the appointee before he should enter upon the possession of the office under his appointment. That such acts became conditions precedent to the complete investiture of the office, but they were to be performed by the appointee, not by the executive ; that all the executive could do to invest the person with his office has been completed when the commission has been signed and sealed; and when the person has performed the required conditions his title to enter on the posses- sion of the office is also complete. Judge Westcott, speaking for the Justices of this court under date of October 28th, 1875, said: "When the commission of a Justice of the Peace is signed and sealed, all that is necessary to his investiture of the office is com- plete. Under the practice of this State, all the conditions as to taking oaths, etc., are complied with before the commission issues. To him, upon the signing and sealing of the commission belongs the office." Advisory Opinion, 15 Fla., 735, 738-9. There can be no doubt that the word ' ' commissions, ' ' as used in the above section of our constitution at least includes appointments to office. The provision in the constitution of the United States, that the executive of any State may under the circumstances there- in specified **make temporary appointments" of Senators, carries with it the power to issue written evidence of any such appoint- ment, and not only this, but it implies a duty to do so. It imports that the executive authority of the State shall execute such evi- dence of the authority of the appointee as can be presented to the Senate of the United States and be passed upon by that body. Such credentials must, in the very nature of things, to serve these ends, be written and cannot be in parol Any written appointment of a person to an office by the Gov- ernor of this State is a commission, and the express fiat of the con- stitution is that all commissions issued under the authority of the State shall be signed by the Governor, and sealed with the great seal of the State, and countersigned by the Secretary of State. The purpose of the constitution is that the warrant of all persons professing to represent the authority of the State shall be in the form indicated, and none other. The authority' to appoint to an 118 FORMATION OP THE OFFICIAL RELATION. office, or to delegate the exercise of the State's power, contemplates conformity to this section of the constitution, in making the ap- pointment ; and this section makes it the duty of the officers named whenever the power of appointing is exercised, to see that the com- mission or written evidence of the appointment is signed and au- thenticated as therein directed. In the absence of legislation by Congress providing the form in which the appointment of a Senator shall be authenticated, it is unnecessary to discuss the power of Congress to legislate upon the subject. If it has such power, its deprivation of it is no rea- son why the State cannot exercise it. The Senate has as much power to enquire into the legality of the appointment of a Senator by the executive power of a State, as into that of the election of one by a legislature. If it has not, any appointee can take his seat in the Senate upon the assumption that the Governor has appointed him and given him evidence of the appointment satisfactory to ex- ecutive discretion. In all cases of any alleged executive appoint- ment a primary question for the Senate is: Has the executive authority of the State made an appointment? Its validity as an executive appointment cannot be investigated until it is satisfac- torily shown that there has been an appointment in fact by the executive. Under the Constitution and laws of the United States and of this State there is no known mode of evidencing or proving that an appointment of a United States Senator, or any other of- ficer, has been made by the executive of this State, except, or unless and until, a commission has been duly signed, sealed and counter- signed in accordance with the above quoted provision of our or- ganic law, sec. 14, Art. IV., Constitution In the absence of any provision in the Constitution or statutes of the United States, when the Governor of this State wishes to appoint a senator the only legal way of evidencing his act so as to command the recognition of it by the United States Senate as his official act, is to comply with the formula which the people of the State have in our constitution declared to be the proper form for exercising the executive power of appointing to office. Any ap- pointment of a Senator not thus signed, sealed and countersigned is not authenticated in the manner in which our organic law, the only law regulating the subject, provides, and is not entitled to recognition by the Senate of the United States as a commission or appointment as United States Senator from the State of Florida, or its executive authority acting for the State. Assuming that STATE EX REL. FLEMING V. CRAWFORD. 119 Congress has the authority to prescribe how such an appointment should be authenticated, until it does so the only reasonable con- clusion is, that this executive act of the State government shall be evidenced in the manner provided by State law in such cases, and the only appointments or commission of Senators extended upon the proceedings of Congress within our reach, appear to have been signed by the Governor, sealed with the great seal of State, and attested or countersigned by the Secretary of State. We have been unable to find anything that suggests any other possible way of evidencing the executive act than that provided by provision of our own organic law, nor is there in the Constitution of the United States anything that prevents the State from regulating the evidence of this official act, at least until Congress shall act in the premises. The Governor, as the representative of the State, and the chief executive power, whose duty it is to see that the laws are enforced, is seeking to have an act done by him as her chief magistrate, authenticated in the only manner that it can be done to command recognition of it as done by him, and in our judg- ment he is, as her representative, entitled to have it done, unless there is in the nature of the act required of the Secretary of State something involving the exercise of official discretion. It is in our judgment clearly the official duty of the Secretary to affix the seal of the state to the appointment, and to counter- sign or attest the same as evidencing the official act of the execu- tive authority of the State in appointing a Senator in the Con- gress of the United States, and this duty is one involving no of- ficial discretion or judgment on his part. The duty devolved upon the Secretary of State in the case be- fore us is merely to authenticate the commission signed and pre- sented to him by the admitted rightful executive of the State. It is purely ministerial, and involves no exercise of discretion. There is from the very nature of the duty no place in it for the exercise of judgment. It involves nothing but affixing the seal and signing officially. It is entirely impossible for anyone to infer, from, or to find implied in, the simple duty of authenticating this evidence of an appointment of an office known to exist, and which, under certain circumstances, the executive of the State has authority to fill, the further duty or the power to question the legality of the exercise of the authority to appoint. If such duty or power of enquiry exists at all, then it covers every question as to the legality of the appointment that can be made. It extends not only to the 120 FORMATION OP THE OFFICIAL RELATION. question of whether or not there is a vacancy, but also the ap- pointee's qualifications as to age, residence or citizenship. If it exists at all, then the power conferred by the Constitution of the United States upon the executive of a State to appoint a Senator is not subject simply to the exclusive jurisdiction of the Senate as to the election or appointment and qualifications of its members, but to another jurisdiction, which is the judgment of the Secre- tary of State, and has the power to deny to the Governor the right of the constitutional evidence that he has made an appointment. If this power obtains in the case of an appointment of a Senator, it, arising as it must and alone can from the mere duty to authen- ticate a commission, exists also in the case of every justice of the peace, county commissioner, or other county officer, and of every State officer of whom under any contingency the Governor may have the power to make an appointment. In so far as the exist- ence of the power is concerned there is no possible distinction in the several cases. To say that it would not be exercised, is no answer, but is an assumption of the existence of the power. Knowl- edge as to when, or by whom the power, if its exercise is recognized, will be used or renounced, is not a subject for our consideration. In authenticating the executive appointment of a Senator, the Secretary of State in nowise commits himself to the legality of such act. The Governor is not responsible to the Secretary, nor the Sec- retary to him. If the act is illegal, the authentication of the Secretary is the evidence of its consummation; it proves what the Governor has done, but it does not involve the Secretary in respon- sibility for it. The Secretary's certificate to the transcript of the legislative proceedings furnished Mr. Call is official evidence of what those proceedings in fact were, and nothing more, and in nowise implies any opinion of his as to the regularity or legality of such proceedings, and the same is true, no less nor any more, of his authentication of the executive act in question. Nor does the appointment, though duly authenticated, have any effect upon the legality of Mr. Call's election, or towards creating any vacancy which does not otherwise exist. If an award of the writ would have any such effect, we would, and upon the plainest prin- ciples should, refuse to award it, and for the reason that Mr. Call is not before the court, nor is Mr. Davidson, and mandamiis is not the remedy for settling a conflict for an office, even where the right to decide such a contest is in the court, which is not the ease here. People v. Farquer, supra; People v. Mayor, etc., of New York, 3 FRITTS V. KUHL. 121 Johns. Cases, 79 ; State ex rel. Vienna v. Hyams, 12 La. Ann. 719, cited in 17 La. Ann. 163. 7th. Upon the case made by the pleadings, our conclusion is: that the peremptory writ should be awarded but, in view of the character of the parties, we will suspend until Monday next any formal order in the premises, further than one adjudging the re- turn of the respondent insufficient and sustaining the demurrer thereto. There is no vacancy at the expiration of the term fixed by law of an officer who is by law to hold over until his successor qualifies. Such an officer holds de jure until the qualification of his successor. See State v. Bulkley, 61 Conn. 287, infra. 4. Power to Fill Vacancies. FRITTS V. KUHL. Supreme Court of New Jersey. February, 1889. 51 New Jersey Law, 191. Van Syckel, J. The facts which have occasioned this litiga- tion are as follows: On the 15th of February, 1888, a vacancy occurred in the office of president judge of the Hunterdon Pleas by the death of Mr. Sanderson. At the time of his death the senate was in session, and remained in session until the 30th day of March, 1888. On the 1st day of March, 1888, the governor nominated the de- fendant, Richard S. Kuhl, to the office of president judge of the Hunterdon Pleas, to fill the said vacancy. The senate held the nomination until the 20th of March, and then refused to consent to it. No other nomination to this office was made by the governor to the senate during its session. In the meantime the chief justice, under a statute passed in February, 1888, appointed Judge Bar- tine, of the Somerset Pleas, to preside in Hunterdon and perform the duties of president judge of Hunterdon Pleas. On the 7th of April, 1888, during the recess of the legislature, and while Judge Bartine was presiding in Hunterdon, the governor ap- pointed the defendant to fill the vacancy occasioned by the death of Judge Sanderson. 122 FORMATION OP THE OFFICIAL RELATION. The information is filed to determine whether the governor had the power, during the recess of the legislature, to fill vacancy such as existed in this case. Paragraph 1, section 2, article 7, of our constitution provides as follows: ** Justices of the Supreme Court, chancellor, judges of the Court of Errors and Appeals, and judges of the Inferior Court of Common Pleas, shall be nominated by the governor and ap- pointed by him, with the advice and consent of the senate." Paragraph 12, of article 5, provides that "when a vacancy hap- pens during the recess of the legislature in any office which is to be filled by the governor and senate, or by the legislature in joint meeting, the governor shall fill such vacancy, and the commission shall expire at the end of the next session o* the legislature, unless a successor shall be sooner appointed." If, therefore, within the meaning of this paragraph of the state constitution ''this vacancy happened during the recess of the leg- islature," it was the duty of the governor to fill it In order, therefore, to ascertain its true meaning, in accord- ance with the recognized rules of interpretation, we must seek for the reason and spirit of it, having regard to the effects and conse- quences of the construction adopted, and the source from which the language employed was derived. Was it intended merely to pre- vent those offices from remaining vacant, which become so during the recess of the legislature by some casualty, or was it to prevent any of the enumerated offices from remaining vacant during the recess of the senate, without regard to when or how the vacancy occurred ? The latter clause of section 2, article 2, of the federal constitu- tion, adopted in 1787, provides that "the president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session." During the administration of President Monroe, in 1823, the question arose whether he had the power to fill, during the recess of the senate, a vacancy which had begun during the preceding session of the senate. During that session the president had made a nomination which the senate refused to confirm, and then ad- journed, leaving the office unfilled. Mr. Wirt, then attorney general, advised the president that he had power to fill the vacancy. In his opinion, he says: "Had this vacancy first occurred during the recess of the sen- FRITTS V. KUHL. 123 ate, no doubt would have arisen as to the president's power to fill it. The doubt arises from the circnmstanees of its having first occurred during the session of the seudte. But the expression used by the Constitution is 'happen.' *A11 vacancies that may happen during the recess of the Senate.' The most natural sense of this term is, 'to chance — ^to fall out — ^to take place by accident.' But the expression seems not perfectly clear. It may mean, 'happen to take place;' this is 'to originate;' under which sense the Presi- dent would not have the power to fill the vacancy. It may, also, without violence to the sense, mean 'happen to exist,' under which sense the President would have the right to fill it by his temporary commission. Which of these two senses is to be preferred ? "The first seems to be most accordant with the letter of the Con- stitution; the second most accordant with its reason and spirit. The meaning of the Constitution seems to me to result in this : that the President alone cannot make a permanent appointment to those oflfices; that to render the appointment permanent, it must receive the consent of the Senate; but that, whensoever a vacancy shall exist which the public interests require to be immediately filled, and in filling which the advice and consent of the Senate cannot be immediately asked, because of the recess, the President shall have the power of filling it by an appointment to continue only until the Senate shall have passed upon it; or, in the language of the Constitution, till the end of the next session In reason, it seems to me perfectly immaterial when the vacancy first arose; for, whether it arose during the session of the Senate, or during their recess, it equally requires to be filled. The Constitu- tion does not look to the moment of the origin of the vacancy, but to the state of things at the point of time at which the President is called on to act." In 1885, Attorney General Cushing, referring to the opinions of his predecessors in ofl&ce, says: "They have thoroughly demonstrated and conclusively estab- lished, as a doctrine of administrative law, that the expression of the Constitution, 'all vacancies that may happen,' signifies 'all vacancies that may happen to exist in the recess,' or 'when there happen to be any vacancies in the recess. ' And they concur in the general statement, that howsoever a vacancy happens to exist, if it exist it may be filled by temporary appointment of the Presi- dent. They all agree that it is the true spirit of the Constitution to have the offices, which Congress indicates to be needful by creat- 124 FORMATION OP THE OFFICIAL RELATION. ing them, filled, though provisionally, rather than remain vacant or force a special call of the Senate. ' ' Vol. 7 of Opinions, p. 187. Ten years later. Justice Woods, of the United States Supreme Court, sitting in the Georgia Circuit, refused to concur in the opin- ion of Judge Cadwalader. Farrow 's Case, 3 Fed. Rep. 112. And Attorney General Devens, in 1880, after an elaborate dis- cussion of the subject, concluded that the opinions of his predeces- sors, and the practice under them, had settled the construction of the Constitution, that appointments might rightly be made through the vacancy first began during the session of the Senate, and he declared that the contrary view of Judge Cadwalader could not be considered of great authority or weight against these opinions, and an administrative usage which commenced as early as the time of President Monroe, and in reference to which such usage has been invariable. Vol. 16 of Opinions, p. 522. All these opinions are based upon the idea that the power in- volves the performance of a duty, intended for the public good, and necessary for the effective administration of the government, and they discard the notion that the point of time at which the vacancy occurs has anything to do with the power of the President to make a provisional appointment. The first Constitution of this State contained no express pro- vision for filling vacancies in State offices, which might exist dur- ing the recess of the Legislature. In 1802, in State v. Parkhurst, 4 Halst. 528, the question was submitted to this court, whether an appointment to the office of clerk of Essex county, made by Gov- ernor Bloomfield during the recess of the Legislature, to fill a vacancy which existed in that office, was a constitutional exercise of his power. The Constitution provided that the office of county clerk should be filled by the Legislature in joint meeting, and the Supreme Court therefore denied the power of the executive. Chief Justice Kirkpatrick dissented, on the ground that by the eighth section of the Constitution the Governor was vested with the supreme execu- tive power, and was thereby charged with the duty of filling all such vacancies during the recess of the Legislature. In this dis- senting opinion the Court of Errors afterwards unanimously con- curred. 4 Halst. 537. note. FRITTS V. KUHL. 125 Thus it appears that when the framers of our Constitution of 1844 were assembled to consider the question of providing for the temporary filling, during the recess of the Senate, of vacancies existing in those offices which were to be permanently filled by the Governor, with the advice and consent of the Senate, or by the Legislature in joint meeting, they had in view the fact that the power had been denied, and they wisely made express provision for it in the fundamental law. That they carefully considered the language which should be used in incorporating into the new Constitution an express pro- vision for the temporary filling of vacancies in State offices during the. recess of the Legislature, cannot be doubted. Instead of at- tempting to formulate for themselves a clause which would express their purpose, they prudently adopted the language of that clause of the Federal Constitution w^hich authorizes the President to fill vacancies which happen during the recess of the Senate. The question, therefore, which confronts us is far different from that submitted to Attorney General Wirt and that passed upon by Judge Cadwalader. It is a safe rule of construction that when the convention, in framing the organic law of the State, thought proper to borrow provisions from the Constitutions of other States, which provisions had already received a judicial construction, they adopted them in view of such construction and acquiesced in its correctness. Peo- ple V. Coleman, 4 Cal. 48. In 1844, there had been no judicial exposition of this language of the Federal Constitution, but the reason which underlies the decisions in the cases cited make them applicable to the case be- fore us. In State v. Kelsey, 15 Vroom 1, this court declared that '*a statute of uncertain meaning, which has been enforced in a certain sense for a long series of years by the different departments of government, will be judicially construed in that sense." This rule has been held to apply, with equal reason, in expounding the Con- stitution. Briscoe v. Bank, 11 Pet. 257, 318; Moers v. Beading, 21 Penna. St. 188. Not only has this language acquired, by long established usage. a well settled meaning in the exercise by the President of his func- tions under the Federal Constitution, but it has received a like in- 126 FORMATION OP THE OFFICIAL RELATION. terpretation in the conduct of our State government since 187^, without challenge, until this information was filed. The argument of those who deny the power, that it will tend to deprive the Senate of their just participation in appointments to office, is not of controlling force. It is not logical to argue from an abuse of power to a negation of it. Every authority, however indispensable, may be the subject of abuse. Undoubtedly the Gov- ernor may abuse this, as he may any other power entrusted to him, but the argument is equally cogent, that the Senate may arbitrarily refuse to consent to every nomination made by the Governor, and leave him powerless to execute the laws, unless he will accede to its demands. The consequences likely to flow from a denial of the Governor's power are much more to be deprecated than can result from conceding it. The power of the Governor to appoint, where vacancies happen during the recess, extends not only to those offices filled by the Governor with the advice of the Senate, but also to those filled by the Legislature in joint meeting. The failure to fill the latter dur- ing the session can result from no breach of duty on the part of the executive. The power of the Governor, after the adjournment, to fill a vacancy, must be the same in both cases ; if he cannot ap- point in the one case, he cannot in the other; and this shows that it was not intended to put a limitation upon his power to guard against an abuse of his prerogative. The possibility of abuse loses its significance the moment we distinguish between power and duty. The question of power alone can be considered by this court. For willful breach of official duty, or abuse of the power committed to him, the Governor is, like other civil officers, liable to impeachment, and must answer to the tri- bunal erected under the Constitution for the trial of such cases. Even though the Governor should be guilty of a breach of duty in refusing to send any nomination at all to the Senate during its session, it would be none the less within his power, and his duty after the adjournment, to fill the vacancy. In that case, the im- peachable conduct would be his willful refusal to advise with the Senate, and not his act in filling the vacancy in the after recess. The making of the appointment in controversy was, in my judg« ment, a legal exercise by the (Governor of his constitutional pre- rogative. The propriety of the appointment of Mr. Kuhl, after his rejection by the Senate, was a question for the Gtovemor alone. PEOPLE EX REL. SWEET V. WARD. 127 This court has no right to instruct the Governor as to matters which involve his duty only and not his power. We cannot know the cir- cumstances which influenced his action, and must presume that he acted rightly. There should be judgment for the respondent. See note to State v. Bulkley, 61 Conn. 287 infra. PEOPLE EX REL. SWEET V. WARD. Supreme Court of California. May, 1895. 107 California Reports 236. Henshaw, J. Appeal from the judgment. The facts, about which there is no controversy, are as follows: Ward, the appellant, was duly elected district attorney of San Diego county for the term commencing January 2, 1893. He quali- fied and entered upon the discharge of the duties of the ojBSce. At the general election in November, 1894, and during Ward's term and incumbency, William Darby was elected to succeed him pur- suant to section 60 of the County Government Act of 1893, Darby duly qualified upon November 24th, and on December 15 of the same year died. Section 60 of the County Government Act of 1891 provided that *'all elective county officers shall be elected at the general election to be held in November, 1892, and every two years thereafter and shall take effect at 12 o'clock mer- idian of the first Monday after the first day of January next suc- ceeding their election All officers elected under the provisions of this act shall hold office until their successors are elected or appointed and qualified. ' ' Such was the law when Ward was elected and when the questions in litigation arose. After Darby's death, and on the 2nd day of January, 1895, the board of supervisors, as then constituted, appointed Ward to fill the vacancy caused by the death of Darby, and to be district at- torney "for the term of office to be taken at 12 M. on the seventh day of January, 1895;" and upon the day of his appointment Ward qualified in due form as the appointee to succeed Darby. 128 FORMATION OP THE OFFICIAL RELATION. At 3 o'clock P. M. on January 7th, 1895, the personnel of the board having been changed by the outgoing of two old and the incoming of two new supervisors at noon of that day, the board as then constituted declared a vacancy to exist in the office of district attorney, and appointed the relator to fill the same during the term for which Darby had been elected, and Sweet in due course quali- fied. Sweet made demand upon Ward for the office on January 10. 1895, and, upon Ward's refusal to surrender it, this action was brought to determine their conflicting claims. By appellant it is contended: 1. That no vacancy in the office resulted from the death of Darby ; 2, That if a vacancy did result it occurred eo instanti upon the death of Darby, and it was then the right and duty of the board of supervisors to fill the vacancy, which they duly did by the appointment of himself. Under his first contention he asserts a right to hold until his successor is elected or appointed and qualified. Under his second contention his right is based upon the theory of a vacancy, and his appoint- ment to serve out Darby's term. 1. It is not to be questioned but that if Darby had lived, and at noon of the seventh day of January, 1895, had demanded the office of Ward, he would have been entitled to enter it, and Ward's term would thus and then have ceased and determined. But was a demand by Darby necessary to determine Ward's tenure? The answer is found in the language of the statute. Ward, by section 60 of the act quoted, and by section 879 of the Political Code, was entitled to hold absolutely until noon of January 7th, and con- tingently after that date, if no successor had been elected or ap- pointed and qualified. He had a fixed tenure and a contingent term. (People v. Edwards, 93 Cal. 153.) The election and quali- fication of Darby as Ward's successor (and not a demand by him for the office) ipso facto cut off Ward's contingent term, and lim- ited him to the absolute period, that is, until noon of January 7th. (State V. Bemenderfer, 96 Ind. 374; State v. Seay, 64 Mo. 89; 27 Am. Rep. 206; Commonwealth v. Hanley, 9 Pa. St. 513; Gosman v. State, 10 Ind. 206; People v. Supervisors of Barnett Township. 100 111. 332 ; Mechem on Public Offices, sec. 401 ; Throop on Public Offices, sec. 329.) The word "successor" is used in our statutes, as in the books, in the twofold sense of the one entitled to succeed, and the one who has in fact succeeded. It is here employed in the former acceptation. The Legislature may provide that certain acts, happenings, or PEOPLE EX REL. SWEET V. WARD. 129 events shall create a vacancy in law, while its greatest wisdom can- not prevent the occurrence of vacancies in fact. The death of the incumbent creates a vacancy as a matter of course, and without any expression from the Legislature upon the question. But when, for example, the Legislature declares that the office of a sheriff shall become vacant when he stands committed for sixty days for not paying over money received by him (Pol, Code, sec. 4186), such a vacancy may be described as a vacancy in law. So here, the Legislature having in effect provided that "Ward's term upon the election and qualification of Darby came to an end at noon of January 7, 1895, a vacancy in law resulted when Darby 's death prevented his succession. It is true the office would not be without an incumbent, since Ward, as locum tenens, could hold until the supervisors by appropriate action appointed to the va- cancy, but, as has been said, Ward 's incumbency gave him no right to a fixed and definite tenure. This vacancy is in the nature of an interregnum. It arose when upon noon of January 7, 1895, Darby by death was not able to take his office. (French v. County of Santa Clara, 69 Cal. 519 ; People v. Taijlor, 57 Cal. 622.) The expiration of Ward's term alone did not create the vacancy. It was the election and qualification of his successor, and the expiration of the term, which worked the result. It is another instance of a vacancy contem- plated by statute, but not expressed in section 996. (People v. Mizner, 7 Cal. 519-23.) 2. The vacancy which occurred having arisen at noon of Janu- ary 7th, it remains to be considered whether the action of the board of supervisors upon January 2d was legal or illegal, and as this is determined, so will the claim of appellant stand or fall. The board, then, undertook to fill, not an existing vacancy, but one soon to exist; not, however, a contingent or possible vacancy, but one which in the nature of things was certain to arise, though at a future date, and at a time when in legal contemplation, and in fact, a different board would be in control of the county's af- fairs. Briefly, the act of the board was to make an appointment to take effect, and to fill a vacancy to arise, in the term of its suc- cessor. We are not, therefore, here concerned with the question of the power to appoint to fill an anticipated vacancy by the person or body which, as constituted, is authorized to fill the vacancy when it occurs, but solely with the question of an appointment made to 9 130 FORMATION OP THE OFFICIAL RELATION. fill a prospective vacancy, which will arise at a time when there will have been a change in the appointing power. Upon the election and qualification of Darby his right to the office for the term commencing at noon of January 7th vested im- mediately, and Ward's contingent right to an additional term was cut off. Upon the divesture of that right by death it existed in no one, and there was no revivor of Ward's contingent right to an extended term. The power of the board of supervisors in dealing with such mat- ters is drawn from section 25, subdivision 21, of the County Gov- ernment Act of 1891, and it is limited to the filling of vacancies. That power could properly be exercised only upon an existing va- cancy. The board could by its action neither create a vacancy, nor by anticipation fill one, which was to a rise in futuro during the term of its successor. Mechem lays down the rule in the following language, and, so far as our investigations have extended, its soundness is not op- posed by any dissenting voice: "The appointing power cannot forestall the rights and prerogatives of their own successors by appointing successors to offices expiring after their power to ap- point has itself expired." (Mechem on Public Offices, sec. 133.) This is the language of Ivy v. Lush, 11 La. Ann. 486, while to like effect are the cases of State v. Meehan, 45 N. J. L. 189, and State V. Love, 39 N. J. L. 14. We conclude, therefore: 1. That a vacancy arose in the office of district attorney by reason of the election, qualification, and death of Darby ; 2. That this vacancy existed at and after noon of the seventh day of January, 1895, and not before ; 3. That the at- tempt of the first board of supervisors to fill the vacancy upon January 2nd was in excess of its power and void; 4. That the vacancy was properly filled by the existing board at 3 o 'clock P. M. of January 7, 1895. Wherefore, it follows that the judgment appealed from is af- firmed. Temple, J., McFarlai«), J., Van Fleet, J., Garoutte, J., Har- rison, J., and Beatty, C. J., concurred. PEOPLE EX BEL. INSURANCE CO. V. WILLIAMS. 131 III. Acceptance op Office and Qualification. 1. Obligation to Accept. PEOPLE EX REL. INSURANCE COMPANY V. WILLIAMS. Supreme Court of Illinois. 1893. 145 III. 573. This is an original proceeding for mandamus to compel the re- spondent, Thomas C. Williams, to accept, assume and take upon himself and execute the office of town clerk of the town of Mount Morris, in the county of Ogle, in this State, to take and subscribe the oath of office, and to file bond, as required by law. Mr. Justice Shope delivered the opinion of the Court : The principal question presented is, whether mandamus will lie to compel acceptance of a municipal office by one who, possessing the requisite qualifications, has been duly elected or appointed to the same. It is stated by text writers that no case has arisen in this country involving this precise question (Merrill on Mandamus, sec. 145; Dillon on Mun. Cor., sec. 162), and in the researches of counsel, and our own examination, none have been found. There are, how- ever, a number of cases where analogous questions, involving the same principle, have been elaborately discussed and determined in the State and Federal courts. Very many English cases are found, in which it has been held that it was a common law offense to refuse to serve in a public office, to which one has been elected or appointed under competent authority : and that mandamus will lie in such case to compel the taking of the official oath, and en- tering upon the discharge of the public duty. The common law of England, so far as the same is applicable and of a general nature, and all statutes or acts of the British Parliament made in aid of and to supply the defects of the com- mon law prior to the fourth year of James I. (excepting certain statutes), and which are of a general nature and not local to that kingdom, are, by our statutes, made the rule of decision until re- pealed by the Legislature. Thereby the great body of the English common law became, as far as applicable, in force in this State. It is held in numerous English cases, that by the common law it 132 FORMATION OP THE OFFICIAL RELATION. was deemed the duty of every person having the requisite qualifica- tion, elected or appointed to a public municipal oflSce, to accept the same, and that a refusal to accept such oflSce was punishable at common law. Citation from cases will not be necessary; so uniformly has the doctrine been maintained, that there is a legal duty to accept an office when duly elected or appointed, in a public or municipal corporation, at common law, and that mandamus is an appropriate remedy in cases of refusal, that it is accepted by all the text writers. It follows, necessarily, that if to refuse the office is a common law offense, and punishable as such, that a legal duty attaches to the person to take upon himself the office, which may now be en- forced by mandamus. While offices of this class, in England, were accepted as a burden, they have not been generally so regarded in this country. Under our system of local government, even the smallest offices are gen- erally accepted, either because they are supposed to lead to those which bring higher honors and greater emoluments, or because of a sense of duty. To this fact, and perhaps to the prevalent but mis- taken idea, that one holding a public office may resign at will, may be attributed the want of decisions in this country upon the precise question at issue. The reason assigned in Rex. v. Larwood, 1 Salk, 168, for the pub- lic duty is, **that the King hath an interest in every subject and a right to his service, and that no man can be exempt from the office of sheriff but by act of Parliament or letters patent. ' ' Under our form of government, the principle applies with even greater force than under a monarchy. In a republic the power rests in the people, to be expressed only in the forms of law. And if the duty, representative of the common welfare, is disregarded, society may suffer great inconvenience and loss, before, through the methods of legislation, the evil can be corrected. Upon a refusal of officers to perform their functions, effective government, pro tanto, ceases. All citizens owe the duty of aiding in carrying on the civil depart- ments of government. In civilized and enlightened society men are not absolutely free. The burden of government must be borne as a contribution by the citizen in return for the protection af- forded. The sovereign, subject only to self-imposed restrictions PEOPLE EX REL. INSURANCE CO. V. WILLIAMS. 133 and limitations, may, in right of eminent domain, take the property of the citizen for public use. He is required to serve on juries, to attend as witness, and without compensation, is required to join with posse comitatus at the command of the representative of the sovereign power. He may be required to do military service at the will of the sovereign power. These are examples where pri- vate right and convenience must yield to the public welfare and necessity. It is essential to the public welfare, necessary to the preservation of the government, that public affairs be properly ad- ministered ; and for this purpose civil officers are chosen, and their duties prescribed by law. A political organization must necessarily be defective, which provides no adequate means to compel the ob- servance of the obvious duty of the citizen, chosen to office, to enter upon and discharge the public duty imposed by its laws, and necessary to the exercise of the functions of government. It is admitted by the demurrer, that the respondent was legally appointed town clerk of the town of Mount Morris. The office is connected with, and necessary to, the levy of taxes to carry on the municipal concerns of the town and administration of its local jurisdiction. It is shown, that there was a public necessity, as well as that relators had a private interest in the performance of the duties of that office. No election had been held in the town since the annual town meeting of 1891. Numerous persons had been appointed to said office, but it remained vacant, and the duties consequently, undischarged. It is admitted by the demurrer, also, that claims against the town, in favor of the relator, to a large amount, had been audited by the board of town auditors of said town, and allowed, and certificate thereof duly made, as provided by law, but that the same could not be delivered to or filed with the town clerk, because of such vacancy in said office, nor could the aggregate amount therefor be certified to the county clerk of said county, to be levied and collected as other town taxes. It is conceded, that the respondent was eligible to the office; that a vacancy therein existed; that he was appointed conformably to the law, and duly notified thereof. It is insisted, that the Legislature having provided a penalty for the refusal to accept the office, that that remedy is exclusive, and that a payment of the penalty imposed was intended to be in lieu of the service. We cannot concur in this view. The purpose of imposing the penalty, was to enforce the acceptance of the office and performance of its duties, and the statute cannot be construed as 134 FORMATION OP THE OFFICIAL RELATION. intending that the person chosen should be discharged from the duty by payment of the penalty, and thereby the purposes of the creation of the office frustrated, and the public duty remain un- performed. Authorities supra. It is to be presumed that, had the Legislature intended that the payment of the fine should be in lieu of the service, they would have so enacted, and not having done so, the duty remains, notwithstanding, the imposition of the fine or penalty. High, Ext. L. Rem., 334, and supra. We are of opinion that the respondent ought to be required to accept the office of town clerk of said town, to which he has been duly and legally appointed, to take and file the oath as such town clerk, as provided by law, and to discharge the duties of said office, and a peremptory writ of mandamus is awarded accordingly. Peremptory writ awarded. 2. Mow Acceptance of Office is Manifested. STATE EX REL. CARPENTER V. THE SUPERVISORS OF THE TOWN OP BELOIT. Supreme Court of Wisconsin. June, 1866. 21 Wisconsin 282. Application for a mandamus. A rule having been granted in this cause, requiring the super- visors of the town of Beloit to show cause why they should not be compelled to levy a certain tax, Charles Peck, as chairman of said board, answered that at the annual town meeting in April, 1865. one Ruble and one Parish were elected supervisors of said town; that each of them neglected and refused to qualify, and declined and refused to accept the office ; that neither of them had since said election ever qualified, accepted or entered upon the discharge of the duties of said office, or acted or assumed to act as such super- visor: that at the time of the service of said rule to show cause, said Peck was and from thence continued to be, the only supervisor of said town ; and that he had no authority to levy any tax. Demurrer to the answer. Dixon, C. J. It is of the very essence of this proceeding that SPEED V. COMMON COUNCIL OF DETROIT. 135 there be some officer or officers in being, having the power and whose duty it is to perform the act. If there be no such officers, it is obvious that the writ cannot go, nor the mandate of the court be enforced. It is conceded that the chairman alone cannot levy the taxes ; but it is claimed that the other two persons elected, but who neglected to qualify, became supervisors de facto by virtue of such election, and can be compelled to act as such in the per- formance of the duty enjoined by the writ. To this point the case of Coles County v. Allison, 23 111. 437, is cited. That case holds no more than this: that the acts of officers de facto are valid as re- spects the public and third persons having an interest in them, and that they cannot be collaterally impeached. The trustees there elected at the second election, though irregularly perhaps, were held to be officers de facto, inasmuch as they had, in the language of the report, ''qualified, and ever since exercised the functions of their office." That was sufficient, in the opinion of the court, to show a valid organization of the town. In this case, however, the other two supervisors elected not only failed to qualify, but it does not appear that they have ever assumed to act as such in any manner whatever. The statute declares that every office shall be- come vacant on the refusal or neglect of the incumbent to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law. R. S. ch. 14, sec. 2. The other two persons elected are, therefore, neither super- visors de jure nor de facto; and the offices are vacant By the Court. — Peremptory writ refused. As to effect in vacating an office of the failure of the one en- titled to such an office to file his bond within the time designated by- statute see Chicago v. Gage, 95 111. 593; Stephens v. Crawford, 1 Ga. 574; People v. Johr, 22 Mich. 461, infra. SPEED V. COMMON COUNCIL OF DETROIT. Supreme Court of Michigan. October, 1893. 97 Michigan 198. Montgomery, J. On September 30 last, the relator filed his petition in this court for mandamus to compel the respondent to approve a bond which relator had filed with respondent, as city counselor. An order to show cause was issued, and respondent's answer is now filed. 136 • FORMATION OP THE OFFICIAL RELATION. I . It appears from the petition that the relator is a resident and elector of the city of Detroit, and that on the 16th of January, 1891, he was appointed city counselor by the common council of said city, on the nomination of the mayor; that he took the oath of office and filed his official bond, which was approved by the common council, and thereupon entered upon the duties of said office; that at the session of 1893 the Legislature of this State passed an act entitled "An act supplemental to the charter of the city of Detroit, and to provide for a law department in said city," the second section of which provides: "The city counselor shall be a practicing attorney, appointed as provided in this act. He shall have practiced his profession for at least five years, and shall devote his whole time to the duties of his office. He shall be appointed by the mayor on or before the third Tuesday in June, for the term of three years from the 1st day of July next succeeding his appointment." That this act was approved by the Governor on June 1 and took immediate effect; that at this time the relator was in the office of city counselor for llie term ending July 1, 1893 ; that on July 15, 1893, the mayor of the city executed and delivered to the relator an appointment to the office of city counselor. That the relator filed this appointment in the office of the city clerk on the same day it was made, together with his oath of office ; that the act under which the appointment was made provides in section three that the city counselor shall, before entering upon the duties of his office, execute a bond to the city of Detroit in the sum of $5,000, with such sureties as the common council shall ap- prove, conditioned for the faithful performance of the duties of his office ; that, on July 18, the relator executed the bond required by the act, with two sureties, in the penal sum of $5,000 ; that upon the bond were endorsed the affidavits of the sureties, in which they severally deposed that they were worth in unincumbered property, not exempt from execution under the laws of the State, each the sum of $5,000 after the payment of his just debts, claims, and liabilities ; that the bond was endorsed by the certificate of the city attorney ; that it was correct in form and execution ; that this bond was filed on the day of its execution in the office of the city clerk, and by him transmitted to the common council, which re- ferred the same to the committee on ways and means, and that this committee, on July 25, 1893, reported to the common council in favor of the approval of the bond, which report was laid upon the SPEED V. COMMON COUNCIL OF DETROIT. 137 table; that on July 18, 1893, the mayor communicated to the council that in pursuance of the act of June 1, 1893, he had ap- pointed the relator as city counselor for the term commencing July 1, 1893 ; that, at a meeting of the council held July 25, it received from the mayor the following communication: To the Honorable, The Common Council : *' Gentlemen: In compliance with the act supplemental to the charter of the city of Detroit, providing for a law department, passed by the Legislature in 1893, and approved June 1, 1893, I notified your honorable body last Tuesday of the appointment of John J, Speed as city counselor of the city of Detroit under said act. Since said appointment said Speed has, by public utterance, placed the matters of the greatest importance to the city, now in litigation, in jeopardy, by, it seems to me, most unwise and un- called-for interviews in the public press. His attitude, as thus fairly conveyed, seems hostile to the best interests of the com- munity. While admitting the ultimate success of the present liti- gation, he questions the policy of the city, the motives of the officials, and advocates the interests of the defendants. In order to protect the people and maintain their rights thus far obtained in the courts, I have this Hay revoked the appointment of John J. Speed as city counselor, and hereby give you notice thereof, and request your honorable body not to accept any bonds from said Speed, as required by the act aforesaid, for such office, as the same is now vacant. Very respectfully, "H. S. PiNGREE, Mayor." That the report of the committee for the approval of the re- lator's bond was thereupon laid upon the table; and that on July 29, at a special session of the council, the mayor, by a communica- tion then made, informed the council that he had appointed John B. Corliss city counselor, and requested confirmation thereof, and on motion this appointment was confirmed by the council. The contention on the part of the respondent is : 1. That, under section 8 of chapter 7 of the charter of the city of Detroit, all appointments of the mayor are conditional, and not absolute, and that this section of the charter was not repealed by the act of 1893. 2. That, even if this appointment had been absolute, yet the relator, on July 25, had not qualified so as to entitle himself to the office; therefore his appointment was inchoate, and was well re- voked by the mayor. 1. The present charter of the city of Detroit was passed in 1883. 138 FORMATION OF THE OFFICIAL RELATION. and repealed all acts or parts of acts in conflict therewith. Act No. 326, Local Acts, of 1883, p. 579. We are, however, led to the conclusion that, under the act of 1893, the exclusive power of appointment to the office of city coun- selor is vested in the mayor. The appointment was duly made and filed, and when so made and filed was beyond the power of the mayor to recall. It was not inchoate, as claimed, but was abso- lute, and upon the relator's complying with the provisions of the act by the filing of his oath of office, and the approval of his bond by the common council, he was entitled to the possession of the office. It is well settled that when the appointing power has once exer- cised its functions it has no more control. In Mosher v. Stowell, 9 Abb. N. C. 456, it appears that, by the charter of the city of Elmira, the common council was vested with the power of appointing a city chamberlain, whose term of office was fixed at three years. At a regular meeting of the council held March 11, 1879, a resolution was adopted and entered upon the minutes, purporting to appoint the relator to said office in place of the previous incumbent, whose term of office had expired. On the same day the relator took the oath of office, and filed the same in the proper office. He presented his bond to the common council at a meeting held March 14, and on April 8 the bond was approved. The charter provided that the mayor should sign all appointments made by the council. There was no express proof that the appoint- ment of the relator was or was not signed by the mayor. At a meet- ing of the council held on March 15 the council adopted a resolu- tion purporting to rescind the appointment of relator, and to appoint respondent. On that day respondent took the oath of office and filed it with the city clerk, and on the same day the council approved his bond, and respondent entered into the office, and continued to hold it. It was held that the signature of the mayor was not necessary to complete the appointment, and the mayor could not defeat the action of the council by withholding his signature. The subsequent resolutions, purporting to rescind the appoint- ment of relator and appointing respondent, were held to be nul- lities. In United States v. Bradley, 10 Pet. 343, it was held that the SPEED V. COMMON COUNCIL OF DETROIT. 139 appointment of a paymaster is complete when made by the Presi- dent and confirmed by the Senate ; that the giving of a bond for the faithful performance of his duties is a mere ministerial act for the security of the government, and not a condition precedent to his authority to act as paymaster. The approval of the bond is not essential to the vesting of the title of the office in relator. United States V. Bradley, supra; Coogan v. Barbour, 53 Conn. 76 ; United States V. Le Baron, 19 How. 73; Culver v. Armstrong, 77 Mich. IM; Bennett v.Benfield, SOU. 265. 2. There was, therefore, no vacancy in the office of city coun- selor at the time the mayor attempted to appoint Mr. Corliss. The appointment of relator was complete and absolute, and a vacancy had not occurred, within the provisions of section 649, How. Stat. The relator had not refused nor neglected to take his oath of office, or to give his official bond, or to deposit the same in the manner and within the time prescribed by law. The council could not ar- bitrarily refuse to approve the bond, and the excuse here set up by the return does not amount to a justification for the refusal or neglect to approve. It is apparent upon the face of the return that the action taken was not founded upon the form or conditions of the bond, or the insufficiency of the sureties, but upon the action of the mayor in his attempt to set aside the appointment of re- lator, and to appoint Mr. Corliss. 4. The contention of counsel for respondent that Mr. Corliss is now a de facto officer, and everyone is bound to recognize him as city counselor, might have some force if the official acts of Mr. Corliss were being questioned; but the only contention in the present proceeding is that it was the duty of the common council to approve the relator's bond when it was presented, and that it should now be compelled to do so. It does not matter here whether Mr. Corliss be regarded as a de facto officer or a mere intruder; the fact remains that the relator was duly appointed, and his ap- pointment could not be revoked by the mayor, and the council had no power of removal in the summary way attempted. It is the duty, therefore, of the council to approve relator's bond, even though Mr. Corliss be de facto city counselor. The vacancy, if one existed, was made by reason of the expiration of the term of re- lator under his former appointment, and was filled by his appoint- ment by the mayor. It is true that it is conceded by the relator, in commencing quo warranto proceedings, that Mr. Corliss is in the office, but he claims that he is there wrongfully, and that the coun- 140 FORMATION OP THE OFFICIAL RELATION. cil should approve his (relator's) bond. It was the duty of the council, under the circumstances, to approve the bond. 5. Mr. Corliss's right to the office, if he have any, will be con- sidered in the quo warranto proceedings, when heard; but the council cannot shield itself behind the claim made to the office by Mr. Corliss, and refuse to perform a plain duty imposed upon it by the charter. 6. We think there is sufficient evidence, and uncontradicted, upon this record, to warrant us in holding that the bond was proper in form, and that the sureties thereon justified their responsibility as required by the charter. 7. The claim made that mandamus is not the proper remedy has no force. It is asked to compel the performance of a purely ministerial act, and, no sufficient reason being given to the con- trary, the writ must issue as prayed. The discussion of the power of the mayor and of the council, and the construction of the sev- eral provisions of the charter, become necessary to a determination of the relator's right to have his bond approved. The other justices concurred. But see Ex parte Harris, 52 Ala. 87, holding that the approval of an official bond may not be enforced by mandamus. CHAPTER III. DE FACTO OFFICERS I. Intruders. STATE EX REL. VAN AMRINGE V. TAYLOR. Supreme Court of North Carolina. February, 1891. 108 N. C. 196. Merrimon, C. J. The ascertainment of the popular will or de- sire of the electors under the mere semblance of an election unau- thorized by law is wholly without legal force or effect, because such election has no legal sanction. In settled, well-regulated govern- ment, the voice of electors must be expressed and ascertained in an. orderly way prescribed by law. It is this that gives order, cer- tainty, integrity of character, dignity, direction and authority of government to the expression of the popular will. An election without the sanction of the law expresses simply the voice of dis- order, confusion and revolution, however honestly expressed. Government cannot take notice of such voice until it shall in some lawful way take on the quality and character of lawful authority. This is essential to the integrity and authority of government. Hence, if a person assume to be a registrar of elections and four others likewise assume to be judges of election, and purport and undertake to hold an election on election day, in an election pre- cinct, and take and count the votes cast at it honestly, such action and proceeding would be no election, nor would it be accepted and treated as such by authority. An essential element of a valid election is that it shall be held by lawful authority, substantially as prescribed by law. It is not sufficient that it be simply conducted honestly, it must as well have legal sanction. The statutory pro- visions and regulations in respect to public elections in this State must be observed and prevail, certainly in their substance. Other- wise, the election will be void and so treated. Therefore, the con- tention that if the election in question was simply conducted fairly and honestly it was valid, is unfounded. The court instructed the jury that Thomas was registrar de facto if they believed either of the two aspects of the evidence, and 141 142 DE FACTO OFFICERS. the election would hence be valid. As to this there was no excep- tion. But the court said further : "If you find from the evidence that Cowan continued to act as registrar and employed Thomas as clerk to assist him, and that Thomas, whilst sustaining this relation to Cowan, fraudulently obtained possession of the books on the second Saturday preceding the election with a promise to return them, and assumed to act as registrar, he was an intruder and had no authority and could perform no lawful official act, and in consequence the election held by him and his appointees was void, and your answer to the issue should be No." This is made the principal ground of assignment of error. The instruction thus complained of must be taken in connection with the whole of the instructions given, and in view of all the evidence pertinent. The evidence tended to prove that one Cowan was duly appointed to be registrar; that he accepted the office, and acted as and claimed to be such, continuously, until the day of the election; that he did not resign, or profess to resign; that he did not appoint, or undertake to appoint Thomas to be registrar; that he was employed and treated simply as his clerk; that Thomas fraudulently got the registration books from the registrar under the false promise to return the same ; that he did not do so, but on the day of election expressly refused to surrender the registration books, and then assumed to be registrar, acted as such, and under- took and purported to appoint three judges of election, who, with a judge regularly appointed, co-operated with him in holding the election. The evidence fully warranted the instruction, if it was correct in point of law. It is difficult to define, in precise terms, what constitutes an officer de facto in all cases. Indeed, what may constitute such officer in one case, may not in another. A variety of facts and circumstances, tending to show authority of the person claiming and exercising it, go to constitute such officer, and upon grounds of necessity and public policy, to give his acts validity as to the public and persons taking benefit of his official acts. There must be something, some consideration, evidence, facts, circumstances or conditions that reasonably lead those persons who, in the course of the administration and discharge of the duties of the office, must, in some way, have relations or business with it, to recognize and treat the person claiming to be officer as the lawful incumbent. . . . . A mere intruder or usurper is not ordinarily, but may become, an officer de facto in some cases. This can happen only STATE V. TAYLOR. 143 by the continued exercise of the office by him and the acquiescence therein by the public authorities and the public for such length of time as to afford to citizens generally a strong presumption that he had been duly appointed. But when without color of author- ity he simply assumes to act, to exercise authority as an officer, and the public know the fact, or reasonably ought to know that he is an usurper, his acts are absolutely void for all purposes. The mere fact that, apart from his usurpation, his supposed official acts were fair and honest could not impart to them validity and efficiency The citizen is justly chargeable with laches, does that which is his own wrong and wrong to the public, when he recognizes, tol- erates, encourages and sustains a mere usurper, one whom he knows, or ought, under the circumstances, to know to be such. In such cases, neither justice, necessity nor public policy requires that the acts of the usurper shall be upheld as valid for any purpose. Indeed, these things, the spirit and purpose of government strongly suggest the contrary. When, therefore, Thomas obtained from the registrar (Cowan) the registration books, fraudulently, under promise to return the same and assumed to act as registrar, he was simply an intruder, and had no authority and could perform no lawful act as such, and the election which he and the supposed judges, his appointees, co- operating with him, held, was void. The instruction of the court to the jury excepted to was pertinent, and had reference to the evidence going to prove that Thomas so fraudulently obtained the registration books and assumed to act as registrar, and the jury must have found that he did. The jury found that he was not registrar de facto by reason of color of appointment. They found also that he was a fraudulent intruder, but they did not find — nor was there evidence to warrant such finding — ^that he was an intruder under such circumstances and conditions as to constitute him registrar de facto. The evidence went to show that he had been the clerk of the registrar; that he did not claim to be or act as registrar until the day of the election ; that he had no such repu- tation ; that the electors had not so recognized him ; that no public authority had so recognized him at any time; and that, on the morning of the day of the election, in the presence of electors, the lawful registrar had publicly demanded that he sur- render to him the registration books to the end that he and the lawfully appointed judges of election might hold the election ac- 144 DE FACTO OFFICERS. cording to law, and he refused to do so. The evidence went to prove, and the jury found, that Thomas was a naked intruder, with no attending circumstances and conditions that rendered him registrar de facto. The electors had notice that Cowan was the lawful registrar; that he had been duly appointed; that he acted as such. There was no notice that he had resigned his office, nor had he done so. On the contrary, on the morning of the election he claimed his right and authority to hold the election. This was notice — important notice — that Thomas was an intruder, and the election was not such in contemplation of law. The electors ought not to have recognized the intruder. They did so in their own wrong. They ought to have demanded and required that the registrar and lawful judges of election hold the election according to law. It was their duty to themselves and to the public to have done so, and, failing in this for any cause, they ought not to have gone through an empty form that had no legal effect. They lost their votes and their voice, in part, through their own laches. The issue of fact submitted to the jury was broad and compre- hensive. It embraced the whole of the matter at issue. The re- lator could readily, as he did, put in all pertinent evidence and avail himself of it before the jury. He was not necessarily preju- diced by it, nor can we see, nor does it at all appear, that he was. The other exceptions are without merit. Judgment affirmed. II. Who are de facto Officers. STATE V. CARROLL. Supreme Court of Errors of Connecticut. 1871. 38 Conn. 449. The prisoner moved to erase the case from the docket for the fol- lowing reasons: First, because the court before which he was tried was an irreg- ular and pretended court, not holden by H. Lynde Harrison, Esq., the only judge of said court, but by one William H. Morse, who was never elected judge of the same by the General Assembly. Butler, C. J. STATE V. CAEROLL. 145 If the principle that an officer who exercises the duties of an office under and pursuant to the provisions of an unconstitutional law is as to the public and third persons an officer de facto, be sound, Mr. Morse was such officer, and the judgment is valid. The principle was questioned in the argument of that case, and in the dissenting opinion, mainly on two grounds, viz. : First, on the ground that there must be in order to constitute an officer de facto, color of election or appointment hy the only body which had power to elect or appoint; and second, on the ground that a law mani- festly unconstitutional has not even the semblance of authority, and cannot confer any color whatever. First, then, as to the point that in order to constitute an officer de facto there must be color of appointment or election by the onlj^ body which had the power to appoint or elect. No authority was cited for it except an expression used by Judge Hinman in Doug- lass V. WicJcwire, 19 Conn. 492, and quoted in State v. Brennan's Liquors, 25 Conn. 283. The claim was that the expression was used as a definition of that which constitutes an officer de facto. The expression was this: ''It is enough if the officer acts under color of an election or appointment, by the only body which has the power to make it. " 2. But if it were admitted that such a definition was intended, it would be entitled to no respect. None such is to be found any- where, with or without the qualification 'prima facie,' in any of the more than two hundred cases which have been decided in Eng- land and this country, in respect to this matter. Such a defini- tion is directly in conflict with the principles which underlie the de facto doctrine, and to a strong and irresistible current of de- cision in England and in this country, commencing with the ear- liest case in the Year Books, and extending to the present time. The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. It was seen, as was said, that the public could not reason- ably be compelled to inquire into the title of an officer, nor be com- pelled to show a title, and these became settled principles in the law. But to protect those who dealt with such officers when apparent in- cumbents of offices under such apparent circumstances of reputation 10 146 DE FACTO OFFICERS. or color as would lead men to suppose they were legal oflScers, the law validated their acts as to the public and third persons, on the ground that, as to them, although not officers de jure, they were officers in fact, whose acts public policy required should be consid- ered valid. It was not because of any quality or character con- ferred upon the officer, or attached to him by reason of any de- fective election or appointment, but a name or character given to his acts by the law, for the purpose of validating them. When, therefore, in civil cases, the public or third persons had knowledge that the officer was not an officer de jure, the reason for validating the acts to which they submitted, or which they invoked, failed, and the law no longer protected them. It should be remembered that among the earliest cases there was a distinct class entirely independent of color derived from any known appointment or election, where the law said to the public as a rule of policy: "If you find a man executing the duties of an office, under such circumstances of continuance, reputation, or otherwise, as reasonably authorize the presumption that he is the officer he assumes to be, you may submit to or employ him without taking the trouble to inquire into his title, and the law will hold his acts valid as to you, holding him to be, so far forth, an officer de facto. If he has color of appointment or election, and yet is not a good officer for want of authority in the appointing power, or irregularity in exercising it, or because there was another law- ful officer entitled to the office, or because the incumbent was inel- igible, or had not qualified as the law required, or his term had expired, your case is made stronger by the color, but that kind of color is not essential to your protection, for you are not bound to inquire to see that it exists." So the law has spoken in England from the first introduction of the doctrine, as the cases abundantly show. So it speaks there now. So it spoke in this country until that deceptive definition was introduced from Strange, and so it has since spoken, and the definition been modified accordingly, whenever a case has arisen where the policy on which the law was founded had made it necessary that it should so speak, to save the public from mischief, or individuals from loss. These cases seem to me sufficient to show that even our definition of a de facto officer, as introduced by Judge Ilosmer from Strange, is imperfect, and tends to obscure the true character of the doc- trine. They are all cases of usurpation, without election or ap- STATE V. CARROLL. 147 pointment for the terms during which the acts were done, or color from that source, and sustainable only on the ground of reputa- tion and presumption. Doubtless color of election or appointment from competent au- thority is necessary for the protection of an officer de facto, when he is assailed directly because of his acts. And there are other dis- tinctions which bear upon the relation of an officer, as that he can- not collect his fees, or claim any rights incident to his office, with- out showing himself to be an officer de jure, but which do not bear upon the case in hand. I will not pursue that branch of the subject any farther than to say, that we shall see hereafter that an officer will be protected in relation to all acts done under or pursuant to public law, before it is judicially determined to be unconstitutional. A definition sufficiently accurate and comprehensive to cover the whole ground must, I think, be substantially as follows: An officer de facto is one whose acts though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised, First, without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. Second, under color of a known and valid appointment or elec- tion, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. Third, under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the appointing or electing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public. Fourth, under color of an election or appointment by or pur- suant to a public unconstitutional law, before the same is ad- judged to be such. Anything less comprehensive and discriminating will, I think, be imperfect and deceptive as a definition. We come now to the second and more important proposition ad- vanced in 'Brown v. O'Connell, to the effect that *'a law passed by the legislature cannot have color of authority, or the semblance of authority, unless it appear prima facie to be law and that it 148 DE FACTO OFFICEES. cannot so appear if it is manifestly repugnant to the constitution: but that a law of doubtful constitutionality may be presumed to be constitutional until it is judicially decided to be otherwise; but that a law manifestly unconstitutional is void upon its face, and unable to confer the appearance of color of authority." .... The doctrine that a law of doubtful constitutionality may be presumed to be constitutional until judicially decided otherwise, and that a law manifestly unconstitutional cannot be so presumed, has no existence as applicable to the citizen. There is a rule of ju- dicial construction adopted by the courts to the effect that unless the law is clearly unconstitutional, or if it is of doubtful constitu- tionality, they will not declare it unconstitutional. But that is a rule of purely judicial construction, and can have no other appli- cation It has never been claimed, to my knowledge, before, that the citizen may adopt that rule of judicial construc- tion, and treat a law, if manifestly unconstitutional, as without the semblance or color of authority. It is an instance of the mis- application of an unquestioned rule. If, then, the law of the legislature, which creates an office and provides an officer to perform its duties, must have the force of law until set aside as unconstitutional by the courts, it would be absurd to say that an officer so provided had no color of authority. But on this question we need not reason. There is an irresistible current of authority in this country which determines it. The question whether the act under which the justice held the city court was constitutional or not, we do not think proper under the circumstances to decide. As he was clearly a judge de facto, a decision of the question is not necessary, and it has not been, and should not be, the practice of this court to decide upon the con- stitutionality of an act of the General Assembly unnecessarily, nor without full and exhaustive argument. Such argument we have not heard in this case — ^the question being scarcely alluded to on behalf of the state. Moreover, there is a cotemporaneous exposi- tion and practice in relation to the subject peculiar to this state, and other existing laws, which render the question one of grave importance. Looking, then, to the general practice which existed in relation to the manner of filling the courts in cases of vacancy or disability, from an early period in the history of the state, and to the cotem- poraneous and continued adoption of the practice under the con- OLIVER V. THE MAYOR. 149 stitution; to the fact that a decision of the question may reach all the courts of the state, and that it has not been fully argued; and the fact that the decision of the question is unnecessary in the case, for that the justice must be holden to have been a judge de facto, and his judgment valid in any event, we deem it our duty to leave the question undecided. In this opinion Carpenter, Foster, and Seymour, Js., concurred. Park, J., concurred in the result. OLIVER V. THE MAYOR, ETC. Supreme Court of New Jersey. November, 1899. 63 N. J. L. 634. Nixon, J. On September 19th, 1898, the board of street and water commissioners of Jersey City passed **An ordinance grant- ing to the Greenville and Hudson Railway Company permission to cross Communipaw Avenue with its tracks at grade and regu- lating such crossing." The ordinance was vetoed by the mayor but was passed again, notwithstanding the objections of the mayor, on the 3rd of October, 1898. The defendant in error, a resident and taxpayer of Jersey City, was allowed a writ of certiorari, and a judgment of the Supreme Court was afterwards obtained setting aside the ordinance, and this writ of error brings that judgment before us for review. . . . . the ordinance was assailed principally upon the ground that it was not legally adopted. The board of street and water commissioners is the governing body of Jersey City, and it enacts all the local laws of that city respecting streets and water. It consists of five members, and the ordinances passed are subject to the mayor's approval, and if vetoed by him may be again passed, notwithstanding his objections, by four votes of the board. Gen. Stat. p. 465. The ordinance in question was adopted at a regu- lar meeting held September 19th, 1898, there being four votes for and one against it. It was vetoed by the mayor on September 28th, and finally passed over his veto on the 3rd of October, 1898, re- ceiving the same number of votes. But the contention is that one of them was not such as could give efficacy to the ordinance. It 150 DB FACTO OFPICEES. was cast by Robert G. Smith, who had been mustered into the United States service as colonel of the Fourth Regiment of New Jersey Volunteers, on July 18, 1898. The statute creating the board of street and water commissioners provides (Gen. Stat. p. 465) that "no commissioner shall accept or hold any other place of public trust or emolument within the elective franchise, nor any appointment to public office, unless he shall first resign his said office, and if he shall accept such other office without having re- signed his office of such commissioner, upon his acceptance of such place of appointment his office shall thereupon become vacant." While there has not been furnished the best proof that Smith actually accepted the office of colonel, yet in the absence of any rebuttal we shall hold, as did the court below, that it is sufficient and that he did accept such office. It is also insisted by the plaintiffs in error that Smith should be made a party in this proceeding, but we think that where an action is instituted the object of which is only to determine the validity of the act or thing done by an officer, and not involving his per- sonal integrity or want of good faith, the officer himself is not a necessary party. No allegation or proof of bad faith on the part of anyone appears in the record. The question at issue is thus narrowed down to the efficacy of Smith's vote in the adoption of the ordinance. Without his vote it could not have been passed over the veto ; neither could it with- out every other vote it received; and it is not strictly accurate to say that his vote had any more potency than any other. After his appointment Smith continued to discharge the duties of his office as commissioner and was present and voted when the ordi- nance was adopted, as the official minutes show. It would there- fore be a pure solecism to call the office vacant at that time except in the strictly legal sense of having no occupant with a de jure title. The acts done by Smith in respect to the adoption of the ordinance were neither more nor less than he would have done had the Fourth Regiment never been organized. It is therefore man- ifest that the words of the statute (Gen. Stat. p. 465) already quoted, declaring that when a commissioner accepts another office his former office shall become ''vacant," cannot mean, in a situa- tion like this, that it is corporeally vacant, for the person law- fully elected to fill it remained in possession discharging its du- ties. Mere words in a statute cannot alone make an office unoccu- pied which in fact is occupied. The legal meaning of the words in such circumstances is that the office has no occupant who holds OLIVER V. THE MAYOR. 151 by a good title in law, and that the appointing power may at once be exercised to fill it, or if it is an elective office, the people may elect, and no adjudication is required to declare the vacancy, al- though the newly-appointed or elected officer may find it necessary afterwards to resort to quo warranto proceedings to obtain actual possession of the office. Under the old rule of the common law, that upon accepting another and incompatible office the first became vacant and the occupant refused to abandon it, a writ of quo war- ranto to determine the question of incompatibility was the rem- edy; and where the common law has been superseded by statutes declaring a vacancy under like circumstances and the occupant remains, a similar course must be pursued to obtain possession or such other steps as the facts may warrant. There are familiar precedents in our own state which illustrate the rules here stated. In Clark v. Ennis, 16 Vroom 69-72, the court said: "It is clear, both upon reason and authority, that a statute declaring an office vacant for some act or omission of the incumbent after he enters upon his duties, does not execute itself. ' ' Also, Clawson v. Thomp- son, Spenc. 689 ; also. State v. Parkhurst, 4 Halst. 427, with a dif- ference only in the attitude of the parties. The governor having appointed Parkhurst in Ogden's absence, the new officer took pos- session and Ogden became the prosecutor to regain possession. Had Ogden remained the title of the case would have been State V. Ogden, with the same result. The same practice prevails in other states, and the rule is clearly stated in State v. Jones, 19 Ind. 356, where it is said: ''Where it appears, prima facie, that acts or events have occurred subjecting an office to a judicial declaration of being vacant, the authority authorized to fill such vacancy, supposing the office to be vacant, may proceed before pro- curing a judicial declaration of the vacancy and appoint or elect, according to the forms of law, a person to fill such office; but if, when such person attempts to take possession of the office, he is resisted by the pervious incumbent, he will be compelled to try the right and oust the incumbent, or fail to oust him, in some mode prescribed by law." Smith, then, being in the office under color of a legal title, ah origine, and no other person claiming a right to it, was he a commissioner de facto? Lord EUenborough, in 1805, in Bex v. Bedford Level, 6 East 356, said: "An officer de facto is one who has a reputation of being an officer, who assumes to be and yet is not a good officer in point of law." This definition has never been questioned, and all those given by the text-writers since are 152 DE FACTO OFFICERS. little more than variations of this one. Tested by this ancient or any modern definition, Smith must be held to have been such an officer when this ordinance was passed. He certainly had color of title and reputation, for the legal voters of Jersey City elected him in the spring of 1898 a member of the board for a term of three years, and he duly qualified as such and entered upon his duties with full knowledge and acquiescence of the public. He had never resigned. The board had not been abolished and his term had not eipired. It has been urged and the record shows that he had been absent from several meetings of the board, but it cannot be held that a vacant chair in itself makes a vacant office. Such a rule would work bad results in most of our legislative and governing bodies. The question in a case like this is not whether a member has been frequently absent but whether he was present and voted when the ordinance was adopted. He did not assert a right which any other person claimed, or perform any official duties that anyone else pretended to have any right to perform in his stead, but only those duties which belonged to the office he was elected to fill and which the law contemplated should be done and the public expected him to do when they elected him, for the law creating the board provides that the judgment and wisdom of five commissioners should determine the questions that arise in the passage of ordinances concerning the streets. The board also recognized his membership. He participated in their proceedings, his name was called and vote recorded in the adoption of ordi- nances, and if not present his absence was duly noted in the official minutes. With all these facts and circumstances appearing in the record, and undisputed, we must hold that Smith was a commissioner de facto. This conclusion is in accord, we think, with the decisions in this state and elsewhere on this subject. There are no facts in this case to justify us in relaxing the wise and ancient rule so deeply rooted in public policy, that the acts of de facto officers holding under color of title originally law- ful, when acting in good faith, will protect third persons and the public in their dealings with them, whether serving alone or as members of a governing or legislative body. The ordinance in question is one of interest to all of the people of Jersey City, and they are the public whose rights are affected by its validity. The third persons whose rights are involved are the more than four hundred residents and taxpayers in the neigh- borhood where it is to go into effect, who petitioned the board to NOFIRE V. UNITED STATES. 153 pass it, claiming that it will be of benefit to them, and another third party, corporate, is the railway company to which the right is granted to lay the tracks that will, it is alleged, greatly add to the convenience of a system of public traffic extending from Com- munipaw cove to the great lakes. The learned counsel for the prosecutor have invited our atten- tion to many cases, but we fail to discover their applicability to the facts in the record before us. There can be no difference of opinion as to all such as hold that when a person filling one office accepts another and incompatible one, his de jure title to the first ceases, and his successor may at once be appointed or elected, or that the acts of an officer whose term has ended and his successor had qualified and taken possession in his stead are void, or that the official acts of a city council done after the term for which it was elected has expired are illegal ; also the acts of a board after it has been abolished by the legislature, or that the acts of one who has not, and never had, any color of title to the office are void. But this case rests entirely upon the question whether Smith when he voted for the ordinance in dispute was an officer de facto, and his acts, therefore, valid as far as the rights of third parties and the public are concerned. We hold that he was such an of- ficer, and that the ordinance is valid. This conclusion results in a reversal of the judgment of the Supreme Court setting aside the ordinance. For affirmance — Gummere, 1. For reversal — The Chief Justice, Dixon, Garrison, Ludlow, BoGEBT, Nixon, Hendrickson, Adams, Vbedenbubgh, 9. One who is ineligible for an office but becomes an incumbent thereof is a de facto officer. Attorney General v. Marston, 6© N. H. 485, infra. So also is one who holds over after the expiration of his term. Romero V. United States, 24 Ct. of CI. 441. NOFIRE V. UNITED STATES. Supreme Court of the United States. October, 1896. 164 United States, 657. Mr. Justice Brewer delivered the opinion of the court. Plaintiffs in error were indicted in the Circuit Court of the United States for the "Western District of Arkansas for the mur- der of Fred. Rutherford "at the Cherokee Nation in the Indian country," on December 15, 1895. They were tried in May, 1896, 154 DE PACTO OFFICEKS. found guilty by the jury, and, on June 12, the verdict having been sustained, they were sentenced to be hanged. The principal question, and the only one we deem it necessary to notice, is as to the jurisdiction of the court. The defendants were full-blooded Cherokee Indians. The indictment charged that Rutherford was "a white man and not an Indian," but testimony was offered for the purpose of showing that although a white man he had been adopted into the Cherokee Nation, which, if proved, would oust the Federal court of jurisdiction within the rule laid down in Alberty v. United States, 162 U. S. 499. In that case it was held that the courts of the Nation have jurisdiction over offenses committed by one Indian upon the person of another, and this includes, by virtue of the statutes, both Indians by birth and Indians by adoption. The Cherokee Nation claimed jurisdic- tion over the defendants. This claim was denied by the Circuit Court, which held that the evidence of Rutherford's adoption by the Nation was not sufficient, and that therefore the United States court had jurisdiction of the offense. An amendment in 1866 to section 5 of article 3 of the Cherokee constitution gives the fol- lowing definition of citizenship: "All native-born Cherokees, all Indians and whites legally members of the Nation by adoption, . . . . and their descendants, who reside within the limits of the Cherokee Nation, shall be taken and be deemed to be citizens of the Cherokee Nation." (Laws of Cherokee Nation, 1892, p. 33.) The Cherokee statutes make it clear that all white men legally married to Cherokee women and residing within the Nation are adopted citizens. (Sections 659, 660, 661, 662, 663, 666 and 667, Laws of the Cherokee Nation, 1892, pp. 329, and following.) Sec- tion 659 requires that before such marriage shall be solemnized the parties shall obtain a license from one of the district clerks. Sec- tions 660 and 661 provide that one applying for such license shall present to the clerk a certificate of good moral character, signed by at least ten respectable citizens of the Cherokee Nation, and shall also take an oath of allegiance. On October 4, 1894, Rutherford was married to Mrs. Betsy Holt, a Cherokee woman. The mar- riage license, with the certificate of the minister of the performance of the ceremony, and the indorsement of the record of the certifi- cate, is as follows: ** Marriage License. "Cherokee Nation, Tahlequah District. "To any person legally authorized, greeting: You are hereby authorized to join in the holy bonds of matri- NOFIRE V. UNITED STATES. 155 mony and celebrate the rites and ceremonies of marriage between Mr. Fred. Rutherford, a citizen of the United States, and Miss Betsy Holt, a citizen of the Cherokee Nation, and you are required to return this license to me for record within thirty days from the celebration of such marriage, with a certificate of the same appended thereto and signed by you. "Given under my hand and seal of office this the 28th day of August, 1894. (Seal of Tahlequah district, Cherokee Nation.) *'R. M. Dennenberg, ^^ Deputy Clerk, Tahlequah District." The performance of the marriage ceremony was also proved by the minister a regularly ordained Presbyterian preacher. T. W. Triplett was the clerk of the Tahlequah district at the date of this certificate. R. M. Dennenberg was his deputy, but at the time of the issue of the license both the clerk and his deputy were absent, and the signature of the deputy was signed by John C. Dennenberg, his son. The clerk, the deputy and his son, each tes- tified that the latter was authorized to sign the name of the clerk or the deputy in the absence of either, and that the business of the office was largely transacted by this young man, although not a regularly appointed deputy. He made quarterly reports, fixed up records and issued scrip, and his action in these respects was recognized by the clerk and the Nation as valid. No petition, as required by the statute, was found among the papers of the office, but there was testimony that all the papers of the office had been destroyed by fire since the date of the marriage license, and the younger Dennenberg testified that a petition was presented con- taining the names of ten citizens; that he could not remember the names, but, at the time, made inquiry and satisfied himself that they were all respectable Cherokee citizens. There was testimony also that Rutherford offered to vote at an election subsequent to his marriage; that his vote was challenged, and on inquiry it was ascertained that he was a Cherokee citizen, and his vote received. Upon these facts the question is presented whether Rutherford was a Cherokee citizen by adoption. The Circuit Court held that the evidence was insufficient to show that fact, and that therefore that court had jurisdiction. With this conclusion we are unable to concur. The fact that an official marriage license was issued carries with it a presumption 156 DE FACTO OFFICERS. that all statutory prerequisites thereto had been complied with. It is true that the younger Dennenberg, who signed the mar- riage license, was neither clerk nor deputy, but he was an officer de facto, if not de jure. He was permitted by the clerk and the deputy to sign their names; he was the only person in charge of the office; he transacted the business of the office, and his acts in their behalf and in the discharge of the duties of the office were recognized by them and also by the Cherokee Nation as valid. Under those circumstances his acts must be taken as official acts, and the license which he issued as of full legal force. As to third parties, at least he was an officer de facto; and if an officer de facto, the same validity and the same presumptions attached to his actions as to those of an officer de jure. . . . The Cherokee Nation not only recognized the acts of young Dennenberg as the acts of the clerk, but since the death of Rutherword it has asserted its jurisdiction over the Cherokees who did the killing — a jurisdiction which is conditioned upon the fact that the party killed was a Cherokee citizen. It appears, therefore, that Rutherford sought to become a citi- zen, took all the steps he supposed necessary therefor, considered himself a citizen, and that the Cherokee Nation in his lifetime recognized him as a citizen and still asserts his citizenship. Under those circumstances, we think it must be adjudged that he was a citizen by adoption, and consequently the jurisdiction over the of- fense charged herein is, by the laws of the United States and treaties with the Cherokee Nation, vested in the courts of that Nation. The judgment of the Circuit Court must be reversed and the case remanded with instructions to surrender the defendants to the duly constituted authorities of the Cherokee Nation. MCCAHON V, COMMISSIONERS. 157 JAMES McCAHON V. THE COMM'RS OF LEAVENWORTH CO. Supreme Court of Kansas. July, 1871. 8 Kansas, 437. Valentine, J, Only one question requires our special consid- eration in this case, and that is, whether John T. McWhirt and certain other persons acting with him were on the 16th of March, 1869, de facto the board of county commissioners of the county of Leavenworth. That they were not de jure said board, and that there was another set of men who were de jure said board, is con- ceded by both parties; but it is claimed by the plaintiff in error that said McWhirt and his associates were de facto said board. On the 16th of March, 1869, the plaintiff presented to said Mc- Whirt and his associates an account against said county for pro- fessional services as an attorney-at-law, and said McWhirt and his associates allowed it. The plaintiff then sued the county upon this allowance and not upon the original account. The counsel for the defendants claims that McWhirt and his associates were not the board of county commissioners either de jure or de facto. Were said McWhirt and his associates de facto the board of county commissioners of the county of Leavenworth? The court below finds that "they were neither the county commissioners de jure nor de facto, but were usurpers, and had no authority to audit and allow the plaintiff's account;" and this finding, we think, is in harmony with the other findings. A de facto officer must be in fact the officer. He must be in the actual possession of the office, and have the same under his actual control. De facto means, in law, as well as elsewhere, "of fact, from, arising out of, or founded in fact; in fact, in deed; in point of fact; actually; really." Burrell's Law Diet. If the officer de jure is in posses- sion of the office; if the officer de jure is also the officer de facto, then no other person can be an officer de facto for that office. Two persons cannot be officers de facto for the same office at the same time ; Boardman v. Holliday, 10 Paige, 223, 232 ; Morgan v. Quack- enhush, 22 Barb. 72, 80. And where an office has been created to be held by one person only, two or more persons cannot hold the same as tenants in common. In the present case the regular and de jure board of county commissioners were elected in November, 1867. They would, under the law, hold their offices until the sec- ond Monday of January, 1870 : Art. 11, § 3, Const. ; Comp. Laws, 158 DE FACTO OFFICERS. 500, § 40; Gen. Stat., 418, § 58; Leavenworth Co. v. The State ex rel. Latta, 5 Kas., 688. They had been in the actual possession, and had the exclusive control of their respective offices for more than a year before McWhirt and his associates claimed to be county commissioners. There is nothing in the record of this case that shows that any one of the offices had become vacant, nothing that shows that any one of such officers had died, resigned, re- moved from his district, or from the county, or had been removed from his office. There is nothing that shows that such officers or any one of them were ever ousted from office, or that they ever in any manner abandoned the same; but they continued to be de facto as well as de jure county commissioners down to the time of the trial of this case; hence there was no room for McWhirt and his associates to become de facto county commissioners. Such of- ficers were already filled by officers de facto and de jure. McWhirt and his associates never got possession of said offices. If they had been legally elected they should have taken possession of said offices on January 11th, 1869. (Gen. Stat., 418, § 58.) But they did not attempt to take possession of the same until Febru- ary 2d, 1869. Then they met without any authority whatever, it not being the time for the board to meet, and being just one day after the regular board had adjourned, and declared themselves to be the board of county commissioners of Leavenworth county: but no other person, board, or officer, except the plaintiff, ever recognized them as such. We are now speaking of what the record in this case shows. Possibly the facts may have been different. It is true, they ''met together in the clerk's office," and the clerk "kept a record of their proceedings;" but the clerk never attested such record with his signature, nor with the seal of the county, as he does the record of the proceedings of the legally constituted board of county commissioners. (Gen. Stat., 263, § 43.) It seems the clerk did not choose to recognize them as a board of county commissioners. There is nothing to show that this record which was kept by the clerk was kept in the books of the county. It does not seem from the record in this case that McWhirt and his asso- ciates ever got possession of any of the property of the county, or of any of the records, books, papers, the seal, or of anything else belonging to the county or connected in any manner with the office of county commissioners. The clerk ceased to keep any record of their proceedings eight days before the said allowance of the said plaintiff's account, and no record of any kind was ever made of STATE V. GARDNER. 159 such allowance, and no county order was ever issued therefor. Under the circumstances of this case we do not think that McWhirt and his associates can be considered as county commissioners de facto. The judgment of the court below must therefore be af- firmed. Kingman, C. J., concurring. Brewer, J., did not sit in the case. STATE V. GARDNER. 'Supreme Court of Ohio. 1896. 54 Ohio St. 24. Bradbury, J. At the September term of the court of common pleas of Summit county, Omar N. Gardner was indicted for of- fering a bribe to Joseph Hugill, a city commissioner of the city of Akron. The accused demurred to the indictment on the ground that the act of April 20, 1893, under which Hugill was performing the duties of his office, was unconstitutional and void. The de- murrer was sustained and the defendant discharged. To this hold- ing of the court the prosecuting attorney excepted, and . . . has brought the question to this court for review. Two questions are presented by the record: 1. Whether the act of April 20, 1893, which provides a municipal government for the city of Akron, is unconstitutional or not, and 2, if unconstitutional whether its constitutionality may be assailed in the collateral way, undertaken by the accused. The first question which logically arises, is the latter of the two; for if the accused should not be allowed to raise the question, in the way he attempted, it follows that the constitutionality of the act which created the office was not before the court. Whether an act of the general assembly cre- ating an office and providing a method for filling it may be col- laterally attacked, is a question of the utmost importance in the practical administration of governmental affairs. Different courts have decided the question differently. Leach v. The People, 122 111. 420; Burts v. Winona & St. P. B. Co., 18 N. W. Rep. 285; Coyle V. Commonwealth, 104 Pa. St. 117; Mechem on Public Of- ficers, sections 318, 327; Van Fleet on Collateral Attack, section 160 DE FACTO OFFICERS. 21, page 33 ; Norton v. Shelby County, 118 U. S. 425 ; Hildreth v. Mclntire, 1 J. J. Marsh 206. If the official acts of officers, acting in an office created by an unconstitutional statute, should be regarded as falling within the principle that sustains the acts of de facto officers, until the statute has been held unconstitutional by competent judicial authority in a proceeding appropriate to that end, all difficulty vanishes. The opposite doctrine is based upon the assertion that there can be no de facto officer, unless there is a de jure office. That is a simple and summary way to dispose of this grave question. That there can be no de jure officer without a de jure office is a proposition to which all minds will, of course, assent. But that there can be no de facto officer without a de jure office, is disputable, if the phrase *'de facto officer" includes one who in fact discharges the duties of a public office, recognized by the great body of the people and by virtue of a statute solemnly passed by the general assembly of the state, which may be unconstitutional. That there have been many officers who occupied and discharged the duties of offices created by laws that were afterwards held unconstitutional is a fact well known to every one. While in such occupancy innu- merable official acts, affecting both public and private rights, may have been actually performed by them; the duration of the office may, and often does, extend through a series of years. In the case before us the act in question is one creating a municipal government for the city of Akron, and has been in force since its enactment in April, 1893; it superseded an act passed in the year 1891 for the government of that city, which latter act was subject to the same assault that was attempted to be made on the one under consideration. The existing government of the populous and thriving city of Youngstown, also rests upon the act now assailed. While that of the city of Springfield depends upon an act, at least as vulnerable to the same attack, as the act under consideration. The constitutionality of the governments of the cities of Spring- field and Youngstown have not been assailed, even collaterally, and may continue unchallenged for many years. The officers who in these cities occupy offices created by the act upon which the city government rests, are daily discharging duties affecting the rights of the city, and the private rights of individuals. These officers are either usurpers or trespassers, or de facto officers ; if the latter, the rights of the public, or of individuals who have submitted to their authority, or acquiesced in its exercises, would be unaffected STATE V. GARDNER. 161 by a subsequent authoritative judicial declaration that the statute was unconstitutional; if they were usurpers merely, every of- ficial act would be a nullity, and. interminable confusion possibly follow such a decision. Were such results to follow, the court might well pause before declaring unconstitutional an act estab- lishing a city government, unless its constitutionality was chal- lenged upon the threshold of its existence. The common law in relation to de facto officers had its origin in England; it was there laid upon a foundation as broad as their necessities required. Such a thing as a written constitution con- trolling legislative action was unknown to their jurisprudence; whatever office parliament chose to create was a de jure office. In the states of the American Union, however, we find written consti- tutions, limiting the otherwise absolute power of the people to act through the legislative branch of the government. As a conse- quence of this peculiar feature of our government, a statute, reg- ularly enacted by the legislative branch thereof, may, in express terms, create a public office, or it may authorize a municipal cor- poration to create one ; an incumbent may be appointed in the mode prescribed by the statute, he may qualify, enter upon the discharge of the duties of the office, and continue to discharge those duties indefinitely — possibly for many years — during which he daily per- forms official acts affecting not only public rights, but private rights of the most sacred character. After all this has occurred the constitutionality of the statute is successfully challenged, and the statute declared void, and for the first time in the history of the common law its principles must be invoked to ascertain the status of the rights of persons, and of the public, that accrued before the law was declared void. We think that principle of public policy, declared by the Eng- lish courts three centuries ago, which gave validity to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the con- ditions now presented as they were to the conditions that then confronted the English judiciary. We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think that such officers might aptly be called ^'de facto officers." They actually performed official acts authorized by an act solemnly enacted by the law-making department of the govern- ment. Such a statute is presumed to be constitutional. 'Railroad 11 162 DE FACTO OPFICEES. V. Commissioners of Clinton County, 1 Ohio St. 77. The unbroken current of authority supports this proposition. Courts in the practical administration of justice should regard the substance of things and deal with conditions as they actually exist. Here are grave and important official acts actually per- formed by virtue of an office, created under the provisions of a statute regularly enacted by that branch of the government to which power to make laws has been delegated by the constitution; there is a clearly established legal presumption of its validity. The public in its organized capacity, as well as private citizens, has acquiesced in and submitted to their authority. Such circum- stances, the majority of the court are of opinion, are sufficient to give such color to their title as to make them de facto officers ; but whether they fall within the previously existing definition of such officers or not, their official acts thus performed fall within the protection of that principle of public policy which defends them against collateral attack, and that, therefore, the question of the constitutionality of the statute in question was not before the court of common pleas. Spear. J. (concurring). It is not here assumed that there is not disagreement among au- thorities. There is. Perhaps, Norton v. Shelby County, 118 U. S. 425, is most relied on as sustaining the contrary doctrine. In that case the legislature of Tennessee had undertaken, by statute, to constitute for the county of Shelby a board of commissioners to be appointed by the governor, and clothe it with all the powers and duties then possessed by the quarterly court of the county, composed of the justices of the peace who had been elected by the people. This county court was one of the institutions of the state recognized in the constitution. County commissioners are wholly unknown to the constitution, and therefore, to the laws. There was no acquiescence by the justices or the people ; on the contrary, there was immediate and continued public opposition, by suit and otherwise, on the part of justices and others until the final dispo- sition of the case. Meantime, in the face of the opposition and the litigation, the board subscribed to stock and issued railroad bonds of the county to the amount of about $29,000, and the liability of the county on these bonds was the subject of the suit. It must be apparent at a glance that we have before us no such case. In that case there was, according to the holding of the supreme court of Tennessee, no power in the legislature to authorize the appoint- STATE V. GARDNER. 163 ment of county commissioners with such powers, by any form of statute, while in our case the power to create a board of city com- missioners for Akron is unquestioned, and, if the proper classifica- tion has been prescribed no one doubts that it is a board de jure. As against protest and objection from the start in the Tennessee case, we have, in our case, universal assent and acquiescence on the part of 'everybody for years. But it is insisted that the decla- rations of law given out by the court, irrespective of the judgment rendered, control this case. Do they? It is there said: '*An unconstitutional act is not a law; it confers no rights; it imposes no duties ; it affords no protection ; it creates no ofl&ce ; it is, in legal contemplation, as inoperative as though it had never been passed."^ It is not necessary to question the aptness of this language as ap- plied to the Tennessee case, but when it is sought to apply it to the situation in this state, and to our case, we think it opposed by the better authorities and the better reason. All legislative authority is vested in our general assembly. That body enacts the laws. It is just as much its duty to observe the constitution as it is the duty of any other branch of the government. The presump- tion is, as declared in Railroad v. Commissioners , 1 Ohio St. 77, and nowhere disputed, that in the enactment of laws they heed that duty. To say, then, that a statute which, by all presumptions, is valid and constitutional until set aside as invalid by judicial authority, cannot, in the meantime, confer any right, impose any duty, afford any protection, but is as inoperative as though it had never been passed, is at least startling. To say that a statute which purports to create a constitutional office, duly enacted by our general assembly, and duly promulgated, enjoins no duty of respect or obedience by the people, and affords no corresponding right of protection, and that all who undertake to enforce its de- mands do so at their peril, and at the risk of being deemed tres- passers and usurpers, in case it shall be finally decided to be un- constitutional, by a bare majority, perhaps, of the court of last resort, no matter what public necessities existed for its enforce- ment, nor what public approval and acquiescence there may have been, nor for how long a term of years, and no matter how many holdings of intermediate courts there may have been sustaining its constitutionality, is to invite riot, turmoil and chaos. It is not the law in Ohio. If the people may reasonably be expected to have sufficient knowledge of the constitution so that when called upon to deal with one exercising the functions of an office they may intelligently 164 DE FACTO OFFICERS, inquire far enough to ascertain whether the office be one which the constitution creates, or gives authority to the general assembly to create, it certainly is not reasonable to expect the people to be wise enough to determine for themselves, and at their peril, whether the general assembly, in its efforts to establish an office which it has the most unquestioned right to establish, has observed all the requirements of the constitution. It is sought to dispose of this case by use of the phrase that there can be no officer de facto unless there is an office to fill. The proposition begs the question. The obvious answer is that there is an office to fill whenever our law-making power, exercising its authority to create a constitutional office, by a duly enacted and promulgated statute, ordains there shall be such office, and it re- mains an office Until the act is repealed or held unconstitutional by a court of competent authority, in a proceeding to which the one holding the office is a party, who, in the meantime, his election or appointment being regular, and the public acquiescing in his discharge of the duties, is an officer whose title can be questioned only by the state itself. It seems to be conceded that, on grounds of public policy, one occupying an existing de jure office should be regarded an officer de facto, although his appointment thereto is pursuant to an un- constitutional statute. Does any reason exist why the same public policy will not require that one occupying, with general accept- ance, an office which the general assembly has power to create, should likewise be judged an officer de facto, although in the exer- cise of the power by the assembly, constitutional requirements have not been observed? If any such reason does exist certain it is that none has been adduced, but instead the maxim that there can be no de facto officer unless there be a de jure office is invoked. Summed up in brief, the substantial ground of objection urged against the state's position is that it antagonizes well-known max- ims of the law, and is illogical. Maxims, like definitions, have their uses; but it is not wise to rely absolutely on them, for they are often inexact. A discriminating writer has said: "Maxims are attractive because they seem to offer the conclusions of wis- dom in a portable form, but legal principles are not capable of definition after the fashion of the exact sciences, because the law is not a science, in the scientific sense, and the attempt to express its principles in rules of mathematical precision misleads oftener than it enlightens." It may be added that maxims and aphorisms STATE V. GARDNEB. 165 are among the tritest, not to say the cheapest, weapons of legal contests. If one may annihilate an opponent's position by attack- ing it with a maxim, or a phrase, the conquest is easy, for the legal quiver is full of them. It is equally easy to assume, as proven, contested propositions, and from them advance with con- fidence to desired conclusions. This is logic, perhaps, but there are times when logic fails. The law is intended for practical use. By the act in question local governments are erected in the cities coming within the description, and the necessary officers are pro- vided to carry on the government in those localities. On certain officers named is imposed the duty to put the law in operation by appointing the commissioners. As before stated the law is pre- sumed to be constitutional. Should those officers be expected to go into an inquiry to demonstrate that they have no power to do what the statute directs them to do? At all events, they raise no question, but proceed with the duty, and fully equipped city governments result, which the community recognizes, and the prop- erty rights of the people, and public order as well, depend upon the acts of such commissioners in the performance of duties im- posed by statute. And yet we are told that these proceedings, whenever questioned collaterally, are to be adjudged void, because the statute "creates no office, imposes no duty, confers no right, affords no protection, and is as inoperative as though it had never been passed." The mischiefs and troubles which would follow such a result are against reason, and are so apparent that no enu- meration of them is needed. It would seem plain that the proceedings to challenge such a legislative act should be a direct one to which the officer is a party, so that the judgment of the court may have the direct effect of settling the question permanently, and for the whole world, in such manner that it could not afterward be made the subject of judicial investigation. Shauck, J. (dissenting). 166 , DE PACTO OPFICEBS. HARVEY V. PHILBEICK. Supreme Court of New Jersey. November, 1886. 49 New Jersey Law, 374. Parker, J. The following facts appear in the written agree- ment of the counsel for the respective parties, viz. : 1. That the "borough commission of Ocean Beach was incor- porated under the laws of the State of New Jersey, entitled *Au act for the formation of borough commissions,' approved March 7th, 1882, and the supplements thereto." 2. That an election for seven commissioners and other officers of said borough was held on May 12th, 1886, and at such election such officers were elected. 3. That at such election Frank P. Philbrick was elected col- lector of said borough commission. 4. That said Frank P. Philbrick is still collector of said bor- ough commission. 5. That the collector is, by virtue of the laws of New Jersey, entitled "An act providing for additional powers and certain changes in the government of certain localities governed by com- missioners," passed April 17th, 1884, the treasurer of said bor- ough. 6. That said borough commission is justly indebted to David Harvey, Jr., the relator, in the sum of $53.15 ; and that at a meet- ing of the commissioners, held on May 6th, 1887, it was resolved by said commissioners that said bill be passed and that an order be drawn upon the said treasurer for the amount thereof. 7. That an order was drawn upon said treasurer, under said resolution, in proper form, and signed by the president and secre- tary of the commission, which order was given to the relator. 8. That the relator presented said order to Frank P. Phil- brick, treasurer as aforesaid, and he refused to pay the same, al- leging, as the only reason for such refusal, that the borough of Ocean Beach was not legally organized, the Borough act being unconstitutional. 9. That there were, at the time of the presentation of said order to the said Frank P. Philbrick, treasurer as aforesaid, and now are, sufficient funds in the hands of said treasurer to pay said order. Under this state of facts the relator prays that a writ of nian- THE PEOPLE EX EEL. WINSTA>rLEY V. WEBER. 167 damns issue, directed to the said Frank P. Philbrick, treasurer as aforesaid, commanding him to pay to said relator the amount of said order out of the funds in his hands as said treasurer upon presentation to him of said order. The mere statement of the facts agreed upon by the respective counsel clearly shows that the mandamus should issue. It mat- ters not whether the act authorizing the formation of borough governments be constitutional, or whether the government of the borough of Ocean Beach be properly organized under the act. The commissioners and treasurer were de facto officers. The com- missioners contracted the debt and they had authority to audit the bill and direct its payment by the treasurer out of the funds of the borough in his hands. The treasurer had no option. His duty was to pay the bill upon presentation to him of the order by the relator. Let the man- damus issue. III. Powers and Rights. THE PEOPLE EX REL. WINSTANLEY V. WEBER. Supreme Court of Illinois. June, 1878. 89 III. 347. This was an application in this court by Thomas Winstanley, as city treasurer of the city of East St. Louis, for a writ of man- damus against Herman G. Weber, county collector of St. Clair county, to compel him to pay over to the relator moneys collected by him and taxes belonging to the city of East St. Louis. The defendant's plea presented the question of the validity of the re- lator's election. Mr. Justice Dickey delivered the opinion of the court. While the acts of an officer de facto are valid, in so far as the rights of the public are involved and in so far as the rights of third persons having an interest in such acts are concerned, still, where a party sues or defends in his own right as a public officer, it is not sufficient that he be merely an officer de facto. To do this he must be an officer de jure. As an officer de facto he can claim nothing for himself. People ex rel. Sullivan v. Weber, 86 111. 283. The commission under which relator claims title, recites that it 168 DB FACTO OFFICERS. is issued in pursuance of an election held on the 16th day of April, 1878, and the answer to relator's petition states that "it is from this pretended election that relator obtains all the title he has to the pretended office claimed by him." This allegation of the an- swer is confessed by the demurrer. In the ease of Stephens v. The People ex rel. ante, 337, we have held void the election through which relator claims to have ac- quired the supposed office. The condition of the pleading pre- cludes the relator from insisting that he is an officer de lege, under the appointment of the mayor. If the pleadings were otherwise the appointment relied upon in argument gave no title to the office without confirmation by the city council, and the body by which such confirmation is claimed was not the proper body, — was not "the city council" under the law. It follows that the relator is not a public officer of the character held necessary to entitle him to the relief sought. The application for a writ of mandamus must be denied. Mandamus refused. ROMERO V. UNITED STATES. Court of Claims of the United States. AprU, 1889. 24 Court of Claims Reports, 331. Richardson, C. J., delivered the opinion of the court. On the 9th of June, 1885, during the recess of the Senate, the claimant was commissioned by the President to be agent for the Indians of the Pueblo Agency, in New Mexico, to fill a vacancy then existing, to hold the office, according to the form of the com- mission, "during the pleasure of the President of the United States for the time being, and until the end of the next session of the Senate of the United States, and no longer." He was nominated to the Senate for appointment at the next session, but the Senate adjourned on the 5th of August, 1886, without having acted thereon. Still he continued to exercise the duties of the office until September 13, 1886, when his successor took charge of the agency and receipted for the property belong- ing thereto. He has been paid the salary of the office up to the end of the session of the Senate, August 5, 1886. He brings this suit to ROMERO V. UNITED STATES. 169 recover the salary of the office from that date until his successor took possession. In his petition he sets up no claim for compensation as mere custodian of public property in his possession, nor does he allege or prove any specific property intrusted to him. It may be pre- sumed that he had some public property, but its quantity and character, and the extent of responsibility arising therefrom, do not appear. Nor does it appear what would be a reasonable com- pensation for anything done by him. The salary established by law for the performance of all the duties of the office would not be a measure of compensation for the performance of part only of such duties. Many of the services required of an agent are of a higher order than the mere custody of property and maintain- ing possession until a successor is appointed, and in some cases they are delicate and confidential. (Rev. St. §§ 2058, 2086, 2090; Act of March 3, 1875, Supp. to Rev. St. ch. 132, § 4, p. 168.) Such services were undoubtedly taken into consideration by Congress in establishing the salary of the office, and went far towards in- creasing the amount. They could no longer be performed lawfully by the claimant after his official term had expired. The claimant must recover the whole salary or nothing, for we have no data for apportionment even if that were admissible. The judicial decisions are uniform that one claiming a salary must prove his legal title to the office, and that an officer de facto and not de jure cannot maintain an action for salary Two questions arise : First, did the claimant have a title to the office after the adjournment of the Senate? Second, if not, then is there anything in this case which takes it out of the general rule? The Constitution provides, in article 2, section 3, paragraph 3, that **the President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting commis- sions, which shall expire at the end of their next session." The form of the commission which has been in use from an early day, probably from the beginning, emphasizes the idea of limitation by adding the words and no longer On this claim of holding over after the expiration of the con- stitutional tenure much reliance is placed upon the decision of the Supreme Court of California in Stratton v. Oulton, 28 Cal. 44. Stratton was State librarian, whose term of office, fixed by statute, was four years. The court held that by common law officers ap- pointed for a term of years held until their successors were ap- 170 DB FACTO OPFICBBS. pointed and qualified, and there was nothing in the constitution or statutes of California to change that rule of law held to be in force in that State. In view of the Constitution and statutes of the United States, the opinions of Attorneys-General and of the Supreme Court, as well as the practice of the government so far as we have been able to ascertain, we do not think that any such principle of the common law has been adopted as applicable to public officers of the United States. Attorney-General Williams, in an opinion fur- nished to the Secretary of the Treasury, reviewed the case of Stratton v. OuUon, and came to a different conclusion from that reached by the California court (14 Op. Att. Gen., 262). Attor- ney-General Stanbery advised that the term of the Secretary of the Territory of New Mexico was limited to four years, and after its expiration the incumbent of the office had no right to exercise its functions (12 Op. Att. Gen. 130) Congress also has proceeded upon the view of the law expressed in these opinions. Revised Statutes, section 2056, provides that **Each Indian agent shall hold his office for the term of four years." This was amended by enacting a substitute, May 27, 1882 (22 Stat. L. ch. 163, § 1, p. 87), in the same words, with this addition, "and until his successor is duly appointed and quali- fied." Before the passage of the latter act Indian agents appointed for the term of four years under the former law were never treated nor regarded by the Interior Department, to which they belong, as holding over after the expiration of the stated term. Hence the necessity of the act of 1882, which would have been wholly unnecessary if the common-law rule of California were in force with reference to the public officers of the United States. Independently of the foregoing considerations, the claimant urges that he is entitled to recover under regulations made by the President by authority of . . . the Revised Statutes. . . . The authority of the President to make regulations is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress, and must be in execution of, and supplementary to, but not in conflict with, the statutes. United States v. Symonds, 120 U. S. R. 49. We cannot give a construction to those regulations which would lengthen the term of office limited by the Constitution, by section 1769 of the Revised Statutes, and by the commission; nor a con- struction which would give to one whose commission had expired DOLAN V. MAYOR. 171 by such limitation the salary or emoluments of an office declared to be in abeyance, without any salary, fees or emoluments attached thereto, and the duties of which are to be performed by some other person, as provided in said section 1769. Further, it is not to be assumed that the President by these regu- lations intended to direct the payment of the money from the Treasury in clear violation of the Revised Stat- utes A more sensible construction may be given those regulations, bringing them within the undoubted power of the President to make. It is that they apply only to those Indian agents whose term of office does not expire by statute until the qualification of their successors. Practically they fix the date of qualification as the day on which the new appointee takes the last step necessary to put himself in possession of the means to perform the duties of the office. That done, the statute, not the regulation, determines to whom the salary belongs. Thus construed the regulations are reasonable and valid. It may be a hardship to the claimant to deny him pay for the time he performed duties after the expiration of his term of office, and, if so, his remedy is in Congress, as suggested by the Commis- sioner of Indian Affairs to the Secretary of the Interior, set out in finding VI. The petition must be dismissed. DOLAN V. MAYOR, &C. Court of Appeals of New York. January, 1877. 68 N. Y. 274. Andrews, J. The plaintiff on the 24th of May, 1872, was duly appointed assistant clerk of the District Court for the sixth ju- dicial district in the city of New York, by the justice of that dis- trict, pursuant to the provisions of chapter 438 of the laws of 1872. He thereupon duly qualified and took possession of the office, and held it until the first of January, 1873, on which day one Keating, claiming the office by virtue of an appointment made by the justice on the 31st of December, 1872, entered upon and con- 172 DE FACTO OFFICERS. tinued to occupy the oflSce until March 1, 1874, and excluded the plaintiff therefrom. On that day the plaintiff again came into possession of the office by virtue of a judgment of ouster obtained by him against Keating in an action of quo warranto. By the act of 1872 the saJary of assistant clerk was fixed at $3,000 a year, and the comptroller of the city of New York was directed to pay it in monthly installments out of the city treasury. The salary was paid to Keating from the first of January, 1873, to the first of December, 1873. The salary for December, 1873, and January, 1874, has not been paid to any person. The plaintiff during the time he was excluded from the office, was ready to per- form the duties, and proffered his services to the clerk, which were refused. This action was brought, after the judgment in the quo warranto was rendered, to recover the salary of the office from January 1, 1873, to March 1, 1874. The court, on the trial, held that the plaintiff was not entitled to recover the salary prior to December 1, 1873, but that he was entitled to the salary from that time, and directed a verdict for the plaintiff for the amount of the salary for the three months preceding March 1, 1874. Both parties ap- pealed to the General Term from the judgment entered upon the verdict. The General Term affirmed the judgment, and from the judgment of affirmance both parties have appealed to this court. The question is, was the plaintiff entitled to recover the salary appurtenant to the office of assistant clerk, during the whole or any part of the term in which he was excluded from the possession of the office by Keating, acting under the illegal appointment of December 31, 1872. That the plaintiff was the de jure officer, and that Keating usurped and unlawfully excluded the plaintiff from the office is no longer an open question. It is the settled doctrine in this State, that the right to the salary and emoluments of a public office, attach to the true and not to the mere colorable title, and in an action brought by a person claiming to be a public officer for the fees and compen- sation given by law, his title to the office is in issue, and if that is defective ard another has the real right, although not in posses- sion, the plaintiff cannot recover. Actual incumbency merely gives no right to the salary or compensation. DOLAN V. MAYOR. 173 But it does not follow from the conclusion that thie defendant could have successfully defended an action brought by Keating to recover the salary of assistant clerk, that it was not justified in not treating him as an officer de jure when claiming it, and paying it upon that assumption. It is clear that if the city could right- fully pay the salary to Keating during the actual incumbency, and has paid it, it cannot be required to pay it again to the plaintiff. We are of opinion that payment to a de facto public officer of the salary of the office, made while he is in possession, is a good de- fence to an action brought by a de jure officer to recover the same salary after he has acquired or regained possession. It is plain that in many cases the duty imposed upon the fiscal officers of the State, counties or cities to pay official salaries, could not be safely performed unless they are justified in acting upon the apparent title of claimants. The certificate of boards of can- vassers certifying the election of a person to an elective office, is prima facie evidence of the title of the person whose election is certified. But it often happens that by reason of irregularities in conducting the election, or the admission of disqualified voters, the apparent title is overthrown and another person is adjudged to be rightfully entitled to the office. But this can seldom, if ever, be ascertained, except after a judicial inquiry; and in case of an ap- pointed officer, the validity of the appointment often depends upon complicated questions of law or fact. If fiscal officers, upon whom the duty is imposed to pay official salaries, are only justified in paying them to the officer de jure, they must act at the peril of being held accountable in case it turns out that the de facto officer has not the true title ; or, if they are not made responsible, the de- partment of the government they represent is exposed to the danger of being compelled to pay a salary a second time. It would be un- reasonable, we think, to require them, before making payment, to go behind the commission and investigate and ascertain the real right and title. This, in many cases, as we have said, would be impracticable. Disbursing officers, charged with the payment of salaries, have, we think, a right to rely upon the apparent title, and treat the officer who is clothed with it as the officer de jure, without inquiring whether another has the better right. Public policy accords with this view. Public officers are created in the interest and for the benefit of the public ; such, at least, is the theory upon which statutes creating them are enacted and justified. Public and individual rights are, to a great extent, pro- 174 DE FACTO OFFICERS. tected and enforced through official agencies, and the State and individual citizens are interested in having official functions regu- larly and continuously discharged. The services of persons clothed with an official character are constantly needed. They are called upon to execute the process of the courts, and to perform a great variety of acts affecting the public and individuals. It is im- portant that the public offices should be filled, and that at all times persons may be found ready and competent to exercise official powers and duties. If, on a controversy arising as to the right of an officer in possession, and upon notice that another claims the office, the public authorities could not pay the salary and compen- sation of the office to the de facto officer, except at the peril of pay- ing it a second time, if the title of the contestant should subse- quently be established, it is easy to see that the public service would be greatly embarrassed and its efficiency impaired. Dis- bursing officers would not pay the salary until the contest was de- termined, and this, in many cases, would interfere with the dis- charge of official functions. It is well-settled that the acts of an officer de facto are valid so far as they concern the public or the rights of third persons who are interested in the things done. It remains to consider whether the plaintiff is entitled to recover the salary for the three months prior to March 1, 1874, during which the services were rendered by Keating, and for which no salary has been paid. The city has had the benefit of the services of assistant clerk during the time, rendered, it is true, by the de facto and not by the de jure officer. The plaintiff has regained possession of the office under a title which accrued prior to the time the services were rendered. There is no apparent equity in permitting the city to escape from the payment of the unpaid salarj', when claimed by the de jure officer. We think it may consistently be held that the defendant may treat the services as having been rendered by Keating for him, and that he may recover the unpaid salary upon that assump- tion. This does not interfere with the decision of this court in Smith V. The Mayor, 37 N. Y. 518. The doctrine which we have been called upon to declare in de- termining this controversy is both reasonable and safe. It is desir- able that official duties should be performed by officers legally elected or appointed. But the rules which allow the title of the officer to be questioned in an action for the salary, and which sub- NICHOLS V. MACLEAN. 175 jects the de facto olBficer to liability for damages to the officer de jure, is a sufficient discouragement to attempt to take possession of an office by force or fraud, in the exclusion of the rightful claimant. The judgment should be affirmed. All concur, except Rapallo, J., not voting. Judgment affirmed. NICHOLS V. MACLEAN. Court of Appeals of New York. March, 1886. 101 N. Y. 526. Andrews, J. The facts, upon which this controversy depends, are few and substantially undisputed. The plaintiff was duly ap- pointed police commissioner of the city of New York, for a term of six years, from May 1, 1876, and duly qualified and entered upon and discharged the duties of the office until April 18, 1879. On that day the mayor of the city appointed the defendant, Mac- Lean, police commissioner for the unexpired term of the plaintiff Nichols, the certificate of appointment reciting that the appoint- ment was made by the mayor in pursuance of chapter 300 of the Laws of 1874, in place of Sydney P. Nichols, removed. Prior to the appointment of the defendant MacLean, the mayor had pre- ferred charges against Nichols of official delinquency, upon which such proceedings were had that on the 5th day of April, 1879, the mayor made a certificate in writing removing the plaintiff from his office of police commissioner, which certificate with the reasons therefor he transmitted to the Governor, who on the 17th day of April, 1879, approved in writing of such removal. The plaintiff, in June, 1879, applied for a writ of certiorari, to review the pro- ceedings removing him, which was issued August 12, 1879, ad- dressed to the mayor, who made return thereto, and on February 11, 1880, judgment was rendered in the proceeding declaring that the proceedings of the mayor for the removal of Nichols and his judgment of removal "be and are hereby reversed, and in all things held for naught." The defendant, MacLean, on the 18th day of April, 1879, on presenting his certificate of appointment was duly recognized by the board of police commis- sioners as commissioner in place of Nichols, and thereupon assumed 176 DE FACTO OFFICERS. the duties of the oflBce and continued to act as police commissioner until February 7, 1880, on which day the decision of the court in the certiorari proceeding having been called to the attention of the board, Nichols was oflScially recognized as commissioner, and on that day resumed, and thereafter continued to discharge the duties of the office. During the period between the 17th of April, 1880, the defendant drew and received from the city of New York $4,700 salary for that time of the office of police commissioner. It is found that the plaintiff during the time he was excluded from the office was ready and willing to perform the duties thereof, and it was proved that the plaintiff on the 18th day of April, 1879, upon presentation by the defendant of his certificate of appointment protested to the defendant that his removal was unauthorized and that there was no vacancy to be filled by the mayor. This action is brought to recover the salary received by the defendant during the time he served as police commissioner under the appointment of the mayor, and the sole question is whether, upon the facts found, the action lies. The plaintiff, by his appointment, acquired the right to hold the office of police commissioner for six years, and to receive the salary subject to removal upon a hearing, for cause, which right, although not technically property, was valuable and is under the protection of the law. From a very early period of the law, the invasion of a right to hold and exercise the duties of a public office has been recognized as a legal wrong for which the law affords a remedy That the action of the mayor in removing the plaintiff was wrongful, was adjudicated in the certiorari proceedings, and from the judgment therein no appeal was taken Whether the judgment ipso facto worked a reinstatement of the plaintiff, we need not now consider. The defendant voluntarily surrendered the office to the plaintiff, or at least he acquiesced in his resuming possession. But it is insisted that, conceding the unlawful ex- pulsion, and the intrusion by the defendant, it is not res judicata in this State that an action can be maintained by the party dispos- sessed, against the intruder, to recover the emoluments of the office received by him. In the case of Dolan v. Mayor, etc. (68 N. Y. 274), it was assumed that such an action could be maintained, and authorities were cited to maintain the proposition. The determina- tion of this question was not, perhaps, essential to sustain the NICHOLS V. MACLEAN. 177 judgment in that ease. But we think the doctrine is well founded in reason and authority. The plaintiff being the officer de jure, was entitled to earn the salary. It is true that he did not render the service for which the salary is the compensation. But he was ready and willing to render it, and was prevented by the conjoint acts of the mayor and the defendant. The case of McVeany v. The Mayor (80 N. Y. 185), shows that the right to a salary of an office is not necessarily dependent upon the actual rendition of service by the claimant. In that case the plaintiff was allowed to recover from the city, salary from the time judgment of ouster against the incumbent was pronounced, although the plaintiff rendered no personal service and the salary had been paid to the intruder. In the Dolan Case (supra), the claimant recovered the salary unpaid during the time Keating discharged the duties of the office. . . . The exclusion of a de jure officer from his office is a legal wrong committed by the intruder. In a legal view it is immaterial that the defendant may have acted in good faith, or that he supposed he had the better title. A good motive is not an adequate answer to a claim for indemnity for a violated right. There is a great preponderance of authority in support of the doc- trine that the de jure officer can recover against the intruder, the damages resulting from the intrusion, and that as a general rule, the salary annexed to the office and received by the defendant measures the loss. Dolan v. Mayor, etc., supra.; Lawlor v. Alton, L, R. 8 Ir. 160; Glascock v. Lyons, 20 Ind. 1; Douglass v. State, 31 Id. 429; People \. Miller, 24 Mich. 458; Dorsey v. Smith, 28 Cal. 21 ; Segan v. Crenshaw, 10 La. Ann. 239 ; U. S. v. Addison, 6 Wall. 291. But as a final point the defendant invokes for his protection, the doctrine which protects rights acquired on the faith of a judgment, notwithstanding its subsequent reversal. "We think the doctrine is inapplicable to the case. The appointment of the mayor and the defendant's assumption of office thereunder, made him an officer de facto merely. *'An officer de facto,'* says Chan- cellor Walworth, "is one who comes into a legal and constitutional office, by color of a legal appointment or election to that office.'* People v. White, 24 Wend. 518, 539. The proceeding of the mayor in removing Nichols, was so far judicial as to authorize it to be reviewed on certiorari. It was not a proceeding in a court of jus- tice under the forms and solemnities of judicial proceedings in courts, to establish the rights of litigants. The defendant did not acquire his title to the office under the so-called judgment rendered by the mayor, but under a separate and distinct proceeding sub- 12 178 DE FACTO OFFICEBS. sequent thereto, by which the defendant became invested with the character of an officer de facto. It is abundantly settled by au- thority that an officer de facto can as a general rule assert no right of property, and that his acts are void as to himself unless he is also an officer de jure. Green v. Burke, 23 Wend. 490 ; People v. Nostrand, 46 N. Y. 375 ; Bronson, J., in People v. Hopson, supra. In the Dolan Case (supra), the appointment of Keating was made under an ambiguous statute, under a claim of right, and was regular in form, but the court were of opinion that this would not protect him against a suit by the officer de jure to recover the salary received by him. We think there is no solid distinction between the cases. The defendant took the risk of the validity of his title, and the loss should fall upon him rather than upon the plaintiff. Upon the whole case we are of opinion that the judgment should be affirmed. All concur, except Bapallo and MilIjEB, JJ., not voting. Judgment affirmed. But see Strahr v. Curran, 15 Vroom. N. J. L. 181. A de facto ofBcer may be compelled to perform the duties of the office which he has assumed. State ▼. Supervisors, 21 Wis. 282. supra. THE STATE V. DIERBERGER. Supreme Court of Missouri. October, 1886. 90 Missouri Reports 369. Black, J. The defendant was tried in the St. Louis Criminal Court on an indictment for murder in the first degree and was convicted of murder in the second degree. The evidence shows that Dierberger, the defendant, his wife and sister, got into a street car in St. Louis. The deceased, John Home, his wife, and Joseph Jackson, got on the same car. It was about twelve o'clock at night and the parties were going to their re- spective homes. The car was well filled with passengers, and Home and Jackson, who, the evidence tends to show, were somewhat under the influence of intoxicants, went to the front platform and eventu- ally got into a dispute with the driver, which resulted in the use of boisterous language, and a scuffle between the driver and Jack- THE STATE V. DIERBERGEB. 179 son. The conductor, followed by the defendant, went from the rear to the front of the car, and when the door was opened, the driver, Jackson, and perhaps Home, fell into the aisle of the car. There is evidence that the defendant went to the front platform first to stop the car, which by this time was going at a rapid rate of speed. At all events, immediately, and while the parties were all in the car, defendant stepped up to Jackson and said he was an officer and would arrest him, and at the same time took hold of Jackson, who said, "If you are an officer, I will go with you." Home then said, ** Don't go, Jackson, he is no officer." There is also evidence that Home said, "I don't give a damn what you are you can't take him." Other words passed between Home and the defendant, when the latter drew a pistol, but at the request of the conductor, put it away. It is said that in less than a half a minute defendant pressed Home to the front of the car and fired two shots, one of which killed Home. Again, there is evidence that Jackson hit defendant when Home came to Jackson's aid and a fight or scuffle ensued in which defendant received bruises and cuts about the face and in which Home was killed by one of two shots fired by defendant. The defendant put in evidence a written and formal appoint- ment as deputy constable dated April 21, 1883, and signed by John F. C. Frese, constable of the thirteenth district. It is con- ceded this appointment was not filed with the city register, who performs the duties of a county clerk, and that defendant had taken no official oath. . . . The court, among other instruc- tions, told the jury in substance that, under the evidence, defend- ant was not a deputy constable under the laws of this state; and that a private person who assumes to act as an officer of the law, does so at his peril, and although the jury might believe that the defendant in good faith believed he was a deputy con- stable, yet such belief did not authorize him to act as such dep- uty, nor shield him from unlawful acts. The statute, section 652, gives every constable power to ap- point deputies, for whose conduct he shall be answerable, and provides that the appointment shall be filed in the office of the county clerk. . . . The failure to file the appointment can- not deprive the defendant of his right to say that he was a deputy constable. The more difficult question arises from the failure of the de- fendant to take an oath of office. . . . Section 6, article 14, of the constitution requires all officers under the authority of the 180 DE FACTO OFFICERS. state, before entering upon the discharge of the duties of their respective offices, to take and subscribe an oath or affirmation to support the constitution and to faithfully demean themselves in office. Clearly the deputy constable is an officer under the authority of the state. He should take the oath, and until he does so, he is not an officer de jure; and the further question is, was he an officer de facto. The act of the defendant here in question was probably his first act as deputy, but we do not see how that can make any difference, for the constable had the undoubted right to make the appointment, and the appointment was in every way a good, formal and valid appointment. The appointment made and con- stituted him a deputy; and though he failed to take the oath he was an officer de facto. The principle of law is well settled that the acts of such an officer are as effectual when they concern the public, or the rights of third persons, as though they were officers de jure. 21 Am. Dee. 213; 19 Am. Dec. 63, and notes; 50 Mo. 593; 72 Mo. 189. Generally, where an officer sues or defends in his own right, as a public officer, it is not sufficient that he be merely an of- ficer de facto, but to do this he must be an officer de jure. Peo- ple V. Weber, 89 111. 348; Patterson v. Miller, 2 Met. (Ky.) 493; Turner et al. v. Keller et al., 38 Mo. 332. It has been said as to an officer de facto, that the office is void as to the officer him- self, though valid as to strangers. In People v. Hopson et al., 1 Denio 575, where the defendants were indicted for resisting a constable in the execution of proc- ess which ran in favor of Avery and against said Hopson, the defendants offered to prove that the constable had never taken the oath of office, nor given security required by law; and so was not a constable. As to this offer the court said: "The evi- dence would be proper if Lascells (the constable), instead of the people, was the party complaining of an injury. If he were suing to recover damages for the assault, it would probably be a good answer to the action that he was not a legal officer, but a wrongdoer, who might be resisted. And clearly he cannot recover fees, or set up any right of property on the ground that he is an officer de facto, unless he is an officer de jure. . . . But it is equally well settled that the acts of an officer de facto, though his title may be bad, are valid so far as they concern the public, or rights of third persons who have an interest in the THE STATE V. DIERBERGER. 181 things done. Society could hardly exist without such a rule. . . . . The people are prosecuting for a breach of the pub- lic peace; and it is enough that Lascells was an officer de facto, having color of lawful authority. The rights of the creditor, the due administration of justice, and the good order of society, all concur in requiring that he should be respected as an officer until his title has been set aside by due process of law." See also, to the same effect. Heath v. State, 36 Ala. 273. Bishop says the better opinion is that third persons may be indicted for resisting a de facto officer. 1 Bish. on Crim. Law (8 ed.), sec. 464. Wharton, in making reference to this current of au- thority, says the rule ought not to be extended to cases where the object is to test the right of the party resisted to hold office. Whar, on Crim. Law (8 ed.), sec. 648. The authorities show that Home, and indeed, Jackson, had no right to resist defendant, when in the performance of the legiti- mate duties of a constable, and would be liable for an indict- ment for so doing. This being so, it is difficult to see why the defendant may not say that he was an officer de facto, and be entitled to protection to the extent that others were bound to respect his official character. It can hardly be said that the state resorts to this proceeding to test the right of the defend- ant to perform the functions of a deputy constable, when there are so many other more appropriate proceedings at hand; but it may rather be said the state here seeks to punish him for doing that which he had no right to do, though an officer he was. The question is by no means free from doubt, but we conclude the de- fendant should be treated in this case as an officer, and the in- structions should proceed upon the theory that he was one. There seems to be no doubt but the defendant believed he was a deputy constable by right, in all respects, and the conclusion we reached we believe to be in the interest of good order. The judgment is reversed, and the cause remanded for trial de novo. All concur. One who resists a de facto officer in the discharge of the duties of the oflSce may be punished for unlawful resistance to an officer. Bohannan V. State, 89 Ga. 451. 182 DE FACTO OFFICERS. BOONE COUNTY V. JONES ET AL. Supreme Court of Iowa. December, 1880. 54 Iowa Reports, 699. At the general election in the year 1873, the defendant Qeo. E. Jones was elected county treasurer of Boone county, for two years from January, 1874. He served the full term of the office to which he was elected. At the general election in 1875, one J. W. Snell was elected to said office, for the term commencing in January, 1876. After the said election, and before the first Monday in January, 1876, the said Snell departed this life with- out having qualified, or in any manner entered upon the duties of said office. A vacancy was thereby created and on the 3d day of January, 1876, the defendant Jones executed a bond to said county as a holding over officer, and otherwise qualified and continued as the incumbent of said office, until the expiration of the term in January, 1878. At the general election in 1876 the electors of said county again voted and balloted for candidates to fill the vacancy in said office, for the residue of the said term to which said Snell had been elected, and the said Geo. E. Jones was again declared duly elected, and thereafter, and on the 17th day of November, 1876, the said Jones, and the other defendants as his sureties, executed a treasurer's bond to said county. This action was brought upon this bond, and it was claimed that upon his final settlement with the county in January, 1878, the said Jones proved to be a defaulter in a large amount of money, for which judgment was prayed against him and the other defendants as his sureties. The answers of the defendants in substance denied .... the validity of said election and bond .... and denied that Jones ever held the office under said pretended election, and averred that he held the full term for which said Snell was elected as a holding over officer, and said Jones averred that there were two other actions pending against him for the same cause of action embraced in this suit. There was a trial by jury, and a verdict and judgment for the plaintiff for $13,598. Defendants appeal. RoTHROCK, J. I When the bond was offered in evidence, objection was made thereto upon the grounds that it BOONE COUNTY V. JONES ET AL. 183 was not a valid instrument, because the election therein recited was void, not being authorized by law, and because there was no vacancy at that time existing These objections were overruled. The same questions were presented in certain in- structions which the defendants asked to be given to the jury, and the instructions were refused. We think it is not material to inquire whether the defendant Jones was entitled to hold over for the full term for which Snell was elected, nor to determine whether his election to fill a va- cancy was regular, and authorized by law. We are united in the opinion that Jones and his sureties are concluded by the recitals in this bond, and cannot be heard to dispute the reg- ularity of the election. Under the recitals of this bond he was, as between the parties thereto, de facto the treasurer of the county. If public officers are allowed to escape the consequences of malfeasance in office after the full term of their election has expired, because of an alleged illegal election, it would be a bolder and more glaring instance of allowing a man to take ad- vantage of his own wrong than any case that has come under our observation. Afiirmed. The rule that one in possession of an o£9ce may not Impeach his own title prevents an Incumbent in office from escaping the consequences of either a tortious or criminal act committed by him in the discharge of the functions of the office. Longacre v. State, 3 Miss. 637; Diggs v. State, 49 Ala. 311. CHAPTER IV. QUAUFICATIONS FOR OFFICE. I. Power op Legislature to Provide Qualifications. 1. In General. BRADLEY V. CLARK. Supreme Court of California. June, 1901. 133 California, 196. Hensraw, J. This is an action instituted by an elector of the city of Sacramento, under the provisions of the Purity of Elec- tions Act (Stats. 1893, p. 15), contesting^ the right of the de- fendant, mayor-elect of the city, to his offce. After trial, judg- ment passed for the defendant, and from that judgment con- testant appeals, the evidence being brought up for review by bill of exceptions. It is charged by contestant that, in violation of the Purity of Elections Act, the defendant was guilty of certain improper practices, in that, 1. He did not file a statement of his election expenses, supported by his aflfidavit, as required by law; . . . Respondent contends that these provisions, or at least such of them as require a successful candidate to support his statement by his oath as a prerequisite to his right to take office, are vio- lative of the constitution of the state, and therefore void. From this conclusion we think there can be no escape. Section 3 of article XX of our state constitution declares: "Members of the legislature, and all officers, executive and judicial, 'except such inferior officers as may be by law exempted, shall, before they enter upon the duties of their respective offices, take and sub- scribe the following oath or affirmation: *I do solemnly swear (or affirm, as the case may be) that I will support the constitu- tion of the United States and the constitution of the state of California, and that I will faithfully discharge the duties of the office of according to the best of my ability,* and no other oath, declaration, or test shall be required as a 184 BRADLEY V. CLARK. 185 qualification for any office or public trust." The constitution itself speaks of this prescribed oath as a "qualification" for an office. Equally is the oath required to be taken by the success- ful candidate a qualification for office, for the very provision of the act is, that, for his refusal or neglect in this regard, or for the making of a false statement, he shall be deprived of his office, and shall forfeit any office to which he may have been elected. Had our constitution merely declared, as some do, that no other "test" than the one prescribed should be exacted of an officer elect, it might then be argued with some force that it had reference to such tests, in their nature religious, as those re- quired by the act of Charles II, directed against Roman Catholics and dissenters, which remained a blot upon the English statute- books until 1828. But the constitution has designedly said, not alone that no other test should be required, but that no other "oath or declaration",^ should be exacted. This language leaves as the only matter for determination the single question, whether this act does impose an oath or test substantially differing from that prescribed by the constitution. {Cohen v. Wright, 22 Cai. 294.) That it does prescribe a substantially different oath, in addition to that made exclusive by the language of the con- stitution, the very reading of the section makes manifest. But, in holding that the legislature may not prescribe this additional oath upon a successful candidate as a prerequisite to his right to take office, and as an additional qualification to those enunci- ated by the constitution, we do not mean to be understood as saying that the legislature may not with propriety provide that a candidate shall forfeit his office for the doing of any of the inhibited acts, or for the failure to do any of the required acts set forth in the Purity of Elections Act. The legislature would have the undoubted power to require an officer elect to file just such a statement as the law now prescribes, and to provide that for a failure so to do he should forfeit his office, or his right to office; but, under the strict mandate of the constitution, it has no right to exact this different and additional oath or affirma- tion before the taking of office, as a prerequisite thereto. So much, therefore, of the act as requires the candidate to support his statement by the above-quoted oath as a prerequisite to the right to take office is void. 186 QUALIFICATIONS FOB OFFICE. 2. Property and Educational Qmlifications. STATE EX REL. THOMPSON V. McALLISTER. Supreme Court of Appeals of West Virginia. November, 1893. 38 W. Va. 485. Dent, J. • ••••••••• Appellants assign three grounds of error in their petition for writ of error, viz.: First, it was error in the Circuit Court to hold the statute, which requires councilmen to be freeholders, un- constitutional ; In my opinion there are only two questions suggested by the facts in this case as proper, at the present time, for the consid- eration of this court: (1) Is the law containing the free-hold requirement constitutional? .... 1. In determining this constitutional question we find the rule plainly laid down in the case of State v. Dent, 25 W. Va. 19, in these words, to wit: "Article 6, section 1, of our constitution provides: 'The legislative power shall be vested in a senate and a house of delegates.* This obviously confers on them all legis- lative power, except such as they are prohibited by the consti- tution in other provisions from exercising." And the person claiming that an act of the legislature is an infringement of the restrictions of the constitution must point out the provision plainly forbidding, either by express words or by inevitable im- plication, the passage of such act: And, if none such exists, the act, however unjust or unreasonable it may seem, is valid, and must be sustained by this court. Judge Cooley, as quoted approvingly in the above case, lays down the rule that "any legislative act which does not encroach upon the powers appor- tioned to other departments of the government being prima facie valid must be enforced unless restrictions upon the legislative authority can be pointed out in the constitution and the case shown to come within them." The defendants in error recognizing the binding force of this rule point out three sections of the constitution all and each of which they claim are violated by the act in question : First. Section 4 article IV, which provides that "No person except a citizen entitled to vote shall be elected or appointed STATE EX REL. THOMPSON V. MCALLISTER. 187 to any office, state, county or municipal." Defendants in error argue that because this section forbids any persons except qual- ified electors to hold office, by just implication, the converse of the proposition is also included in the meaning of the section; that is to say, that all electors are duly qualified to hold office. Such reasoning is very fallacious. This provision was simply in- tended to limit the number from whom the various officers of this state might be chosen to those having a voice in the selection of such officers, and not in any sense intended to determine the qual- ifications necessary to properly discharge the duties of any office. For the electors to say in the constitution adopted by them that **no one but ourselves shall ever be elected or appointed to any office in this state" does not, by implication, say to the legisla- ture, further, ''You shall pass no law that will prevent any of us from holding office," for such an important matter as this would not be left to implication, if the electors had considered such a provision desirable. While we have no decision in this state touching this ques- tion, the highest tribunals of other states have construed similar provisions in their state constitutions as above indicated. In the case of Darrow v. People, 8 Col. 420 (8 Pac. 661) the supreme court of the state, in passing on the same question here raised, says: "Counsel argue that section 6 art. VII of the constitution provides that *no person except a qualified elector shall be elected to any civil or military office in the state,' by implica- tion, prohibits the legislature from adding the property qualifi- cation under consideration. There is nothing in the constitution which expressly designates the qualifications of councilmen in a city or town, and this section contains the only language that can possibly be construed as applicable thereto. But it will be observed that the language used is negative in form: that it simply prohibits the election or appointment to office of one not a qualified elector. There is no conflict between it and the stat- ute. By providing that a supervisor or an alderman shall be a taxpayer, the legislature does not declare that he need not be an elector. Nor is the provision at all unreasonable The right to vote and the right to hold office must not be con- fused. Citizenship and the requisite sex, age and residence, con- stitute the individual a legal voter, but other qualifications are absolutely essential to the efficient performance of the duties connected with almost every office; and certainly no doubtful implication should be favored, for the purpose of denying the 188 QUALIFICATIONS FOB OFFICE. right to demand such additional qualifications as the nature of the particular office may reasonably require. We not not believe that the framers of the constitution, by this provision, intended to say that the right to vote should be the sole and exclusive test of eligibility to all civil offices, except as otherwise provided in the instrument itself; that no additional qualification should ever be demanded, and no other disqualifications should be im- posed. If, as has been well said, they 'had intended to take away from the legislature the power to name disqualifications for office other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration.' State v. Covington, 29 Ohio St. 102." In the latter decision the court laid down the law in a syllabus as follows, to wit: "The provision in the con- stitution (section 4, art. 15) that no person shall be elected or appointed to any office in this state unless he possesses the qual- ifications of an. elector does not by implication forbid the legis- lature to require other reasonable qualifications for office. "^ Second. The next claim of the counsel is that the latter clause of section 5, art. IV, is violated, which is in these words: "And no other oath, declaration or test shall be required as a qualification unless herein otherwise provided;" his argument being that the freehold requirement is a test, within the mean- ing of the constitution. The assertion is so unfounded as to hardly need refutation. This clause is simply an application of section 11, art. Ill, to the case of officeholders, which is in these words: "Sec. 11, Political tests, requiring persons as a pre- requisite to the enjoyment of their civil and political rights, to purge themselves by their own oaths of past alleged offenses, are repugnant to the principles of free government, and are cruel and oppressive. No religious or political test oath shall be re- quired as a prerequisite or qualification to vote, serve as a juror, sue, plead, appeal or pursue any profession or employment. Nor shall any person be deprived by law, of any right, or privi- lege, because of any act done prior to the passage of such law." As will be seen at a glance, nothing is said about holding office, in this section, but it is made to apply alone to the right "to vote, serve as a juror, plead, sue, appeal or pursue any pro- fession or employment." To remedy the omission here, the con- 'This case held that the legislature might provide that the ability to read and write should be a qualification for the office in question. STATE EX REL. THOMPSON V. MCALLISTER. . 189 stitution makers added the clauses to section 5, art. IV, which refers alone to political and religious tests as a prerequisite or qualification for office and has nothing whatever to do with any just qualification that the legislature may deem necessary to a proper discharge of the functions of the office. Third. The last claim of the counsel is that the provision complained of is in violation of section 8, art. lY, of the con- stitution, in which the legislature is empowered to ''prescribe by general laws the terms of office, powers, duties and compensa- tion of all public officers and agents, and the manner in which they shall be elected appointed and removed." This section in- cludes all municipal officers, and was only intended to require the legislature to enact general, and not special, laws in relation to the matters included in the section. But the counsel argue that **by granting the legislature authority to establish offices, and provide the term of office, powers, duties, compensation and manner of election and removal, the power to add a qualifica- tion, not being given, is excluded by implication." The learned counsel appear to forget the difference so often defined between the federal and state constitutions; the former being strictly a grant of powers, while the latter is a limitation or restriction on the powers of the state legislature, which otherwise would be supreme in all legislative matters, as it is now in all cases where- in not restricted by the constitution — ^that instrument itself so declaring, as heretofore mentioned. And for the very reason that the power to prescribe qualifications is not mentioned in this section, the legislature has unrestricted control of that power. And it has been held by the court of appeals of another state that the same kind of provision gave the legislature entire con- trol over all such officers; that the power to prescribe the man- ner in which they shall be elected and appointed included within it, necessarily, the power to prescribe civil service examinations, or to prescribe that they should be chosen from a class of citi- zens who possess some qualifications that specially fit them for office or render them efficient officers. The judgment of the Circuit Court is reversed, the mandamus nisi is quashed, and these proceedings are dismissed, at the cost of the relators. For educational qualifications see Rogers v. Common Council, 123 N. Y. 173, infra. But the legislature may not, where a power of appoint- 190 QUALIFICATIONS FOR OFPld. ment is vested In an authority, by the constitution, provide such quallfl- cations as will deprive such authority of all discretion In the exercise of such power. People ex rel Balcellee was elected and entitled to the office of treasurer of the said county, for the said term, commencing on the 15th day of August, 1883. Judgment was rendered accordingly declaring appellee, who was the contestor, entitled to the said office of treasurer. From this judgment appellant prosecutes this appeal. The section of the constitution above referred to is as follows: "No person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office of trust or profit under the state, other than a judicial office." Appellant contends that the ineligibility refers to the right and fitness to be inducted into, and discharge the duties of, an office other than a judicial one, and that the term elected has reference not merely to receiving a majority of votes, but also the acceptance of the office. And that, hence, although appellant may have been ineligible on the day of election, 1882, by reason of his term of office as justice not having expired, yet, the ineligibility was removed by the expiration of that term on the 29th day of November, 1882, and he might rightfully and legally take and hold the office of treasurer, for the term to commence in August, 1883. And that, although appellant was, by the proper vote, at the April election, 1882, chosen for a second term as justice, not hav- ing filed the bond or taken the oath required by law, he was not by such election rendered ineligible to the office of treasurer. On the other hand, it is contended by appellee that the ineligi- bility has reference to the right to be voted for, and that as the term for which appellant had been elected a justice of the peace in 1878 had not expired on the day of election in November, 1882, all of the votes cast for him counted for nothing, and that the subsequent expiration of said term did not render him eligible to the office of treasurer, the term of which did not commence until August, 1883. And further that, having, with his knowledge and consent received the votes for the office of justice of the peace in April, 1882, and having received a majority of the votes, he was elected, and thus rendered ineligible for four years to hold the office of county treasurer, although he declined the commission, and refused to file a bond, take the oath, or accept the office of justice of the peace. SMITH V. MOORE. 211 These conflicting positions are maintained with much learning and ability by the counsel for the respective parties. After a careful and full examination, we have reached the con- clusion that the position of appellant is the correct one in this ease, and that the court below erred in its conclusions of law, so far as they relate to the ineligibility of appellant. ''Legally qualified" is the meaning that should be given to the word eligible, as used in the section of the constitution under con- sideration. "Office" has been defined to mean public employment, and in legal meaning to be, an employment on behalf of government in any station of public trust; a place of trust by virtue of which a person becomes charged with the performance of certain public duties. 5. Wait 's Actions and Defenses, p. 1 et seg., and authorities cited. With this definition of the words "eligible" and "office," the constitutional provision may be read as follows: No person elected to any judicial office shall, during the term for which he shall have been elected, be legally qualified to be employed on behalf of government in any station of public trust, other than a judicial office. In other words, be legally qualified as an officer, to perform the duties of a public officer, other than judicial. This interpretation disposes of one branch of the case, viz., the alleged ineligibility of appellant on account of his term as justice, which expired on the 29th day of November, 1882, more than eight months before the beginning of the term of office as county treas- urer, for which he received a majority of the votes at the Novem- ber election, in 1882. When appellant entered upon his term as justice of the peace on the 29th day of November, 1878, he became, during the con- tinuance of that term, disqualified to hold and perform the duties of any public office, except a judicial one. But while he could not, during that term, hold or perform the duties of a public office, other than judicial, it does not follow that he might not, during that term, be legally voted for and chosen to an office, the term of which would not begin until after the expiration of the judicial term as justice. Suppose that the judicial term had ended on the 8th day of November, 1882 could it be said with reason that appellant might not have been voted for, and legally chosen to the office of county treasurer for a term to begin in August, 1883? If so, then the office of justice of the peace dis- qualified him from holding and performing the duties of that office, not only during the term for which he was elected a justice 212 QUALIFICATIONS FOE OFFICE. of the peace, but for almost two years after the expiration of that term. Such a construction would make the constitution read that no person elected a justice of the peace shall, during the term for which he shall have been elected, be eligible to be voted for for any office, except a judicial one. Such a construction, we think, is not compatible with sound reason nor a proper interpretation of the constitution. We are cited by appellee's counsel to a number of authorities, which, they contend, support their interpretation of the constitu- tional provision. The questions for decision in the case at bar are before this court for the first time, and hence, so far as this court is concerned, we are upon untrodden ground. Isolated expres- sions are found in some of the earlier cases, but they will be found to be purely dicta, so far as they in any way bear upon the questions in this case. They were not necessary to the deci- sion of the questions before the court, and were evidently made without any thought of deciding or intimating a decision of the questions here involved. Section 2, article 6, of the state constitution, provides that no person shall be eligible to the office of clerk more than eight years in any period of twelve. Here the phrase "eligible to office" has reference to the qualification to hold the office, and not to the election; hence it has been held that while a person might prop- erly be elected, he could not hold beyond the eight years. Carson V. McPhetridge, 15 Ind. 327.' And, so, "eligible to any office," as used in the section of the constitution under consideration in this cause, has reference to the qualification to hold office, and not to the choosing or election to such office. We conclude, therefore, that the term for which appellant was elected a justice of the peace in 1878, having expired on the 29th day of November, 1882, he was and is qualified to hold the office of county treasurer, the term of which commenced on the 15th day of August, 1883, and that, having received a majority of the votes for such office at the general election in 1882, he is entitled to the office. It is insisted, however, that the court below so decided, that ap- pellant is disqualified for the office of county treasurer because, at the spring election in his township in 1882, he was voted for, and received a majority of the votes for the office of justice of the peace, the terra to begin on the 29th day of November, 1882. although he did not accept the commission, file a bond, take the SMITH V. MOORE. 213 oath, or in any way accept such office, but declined it. We cannot adopt this view As we have seen, the provision of the Constitution under consideration provides that **No person elected to any judicial office shall, during the term for which he shall have been elected, be eligible to any office," etc. The language of the section is not, that a party shall be ineligi- ble during the time for which he shall have been elected, but dur- ing the term for which he shall have been elected. This, we think, implies that there shall be a term by which the ineligibility shall be measured, and that the term in contemplation begins, and can only begin, with the acceptance of the office by proper quali- fication. It is contended, on one side, that the purpose of the convention in the adoption of this provision was to insure a stable judiciary; that by thus rendering the judges ineligible, the result is to keep them in their places during the term for which they may have been elected. On the other side, it is insisted that the purpose was to keep the judges of the courts free from political alliance, and prevent them using their positions as a means of acquiring other offices. Judging from the debate we might con- clude that the convention had both objects in view. However that may be, the section, without a doubt, was meant to apply to judges in office, and not to persons who may be chosen simply, but never qualify or enter upon the discharge of official duties. In order, then, to carry out the purpose and full intent of the section, the word "elected," used therein, cannot be taken in the narrow sense contended for by appellee, but must be construed to include, not only being chosen to, but an acceptance of, the office. Let us suppose that A and B are rival aspirants for an office not judicial. In order to render B ineligible to that office and thus to dispose of him as such rival, A procures the voters of B's township to vote for him for the office of justice of the peace. Having received a majority of the votes, A contends that B is elected to that office, and, without accepting or qualifying, is ren- dered ineligible to the other for the period of four years. Such a contention on the part of A would strike the common under- standing as entirely untenable and unreasonable. Nor could it make any difference whether such election might be with the knowledge and consent of B or without his knowledge. An office is not obtained or held by contract. McCrary on Elec- tion, 216; Pomeroy Const. Law, see. 547. It cannot be said, with reason, that such consent to be voted for is in any sense an ac- 214 QUALIFICATIONS FOB OFFICE. ceptance of the office. Until the consenting party is known to have received a majority vote there is nothing for him to accept. If being voted for and received a majority of the votes is an election, in the sense in which the word "elected" is used in this section of the constitution, it can make no difference whether such votes are cast with or without the knowledge and consent of the party voted for. To say that if the votes are cast with the knowl- edge and consent of the party voted for, he is thereby elected, and if, without such knowledge, he is not elected, is to depart from the literal signification of the word "elected,"^ as contended for by appellee. To adopt this view, it would become necessary to construe the word "elected", and make the constitution read: No person elected, with his knowledge and consent, to a judicial office, shall be eligible, etc. And further, it would impose upon the courts, in every case of contest like this, under this section, the unreason- able and difficult duty of deciding whether or not the party thus elected was voted for, with his knowledge and consent. Other questions are argued by counsel, but it will not be necessary for ns to consider them. Without further extending this opinion, we hold that appellant was eligible to the office of county treasurer to which he was chosen, is entitled to it, and that the court below erred in its con- clusions of law. The judgment of the trial court is, therefore, in all things reversed, at the costs of appellee, and the cause remanded, with instructions to that court to make its conclusions of law, and render judgment in accordance with this opinion. Hammond, J., was absent during the consideration of this cause. Dissenting opinion by Elliott, J. There is conflict on this point, quite a number of cases holding that qualifications for elective offices must be present at the time of election. See Searcy v. Grow, 14 Cal. til; Parker v. Smith, 3 Minn. 240; State v. McMiUen, 23 Neb. 385. \ ATTORNEY GENERAL V. MARSTON. 215 \ III. Disqualification. ATTORNEY-GENERAL V. MARSTON. Supreme Court of New Hampshire. June, 1891. 66 N. H. 485. Quo warranto, to determine the defendant's title to the office of selectman of Durham. The defendant having held the office of tax-collector of Durham in 1888 and 1889, and being re-elected at the annual meeting in March, 1890, took the official oath and served for the political year. For the present year no successor was elected, and T. W. Schoonmaker being appointed, was sworn, and is collector. At the annual meeting in March, 1891, the de- fendant was elected selectman and being sworn, he is serving in that office. On the tax lists of 1888 and 1889 there are uncollected taxes amounting to about $169, and on the lists of 1890 about $200. Since the last March meeting the other selectmen requested a list of these uncollected taxes, and he furnished it ; and in an examination made of it by the board, he told his associates that he thought some of the taxes of 1890, amounting to $61.95, could not be collected, and would probably have to be abated. He has not resigned the office of collector unless his acceptance of the office of selectman is a resignation, and his liability in respect to the uncollected taxes of the three years has not been discharged or adjusted. Clark, J. ''Neither the treasurer nor the collector of taxes shall be a member of the board of selectmen." G. L., c. 40, s. 5. The duties of the offices of collector and selectman are in some respects conflicting. The collector is required to give a bond to the ac- ceptance of the town or selectmen. G. L., c. 42, s. 4. The select- men may remove a collector for certain causes. G. L., c. 42, s. 9. And in certain cases they have power to issue an extent against him. G. L. c. 66, s. 5. And it is the duty of the selectmen acting in be- half of the town, to see that the collector faithfully performs his official duties, and in default to take measures to protect the in- terests of the town. The defendant having been elected and having served as col- lector for the years 1888, 1889 and 1890, and still retaining his warrants and lists, upon which are uncollected taxes, is still col- lector for those years. "Every collector, in the collection of taxes committed to him to collect, and in the service of his warrant, shall have the powers vested in constables in the service of civil process. 216 QUALIFICATIONS FOR OFFICE. which shall continue until all the taxes in his list are collected." G. L,, c. 58, s. 1. The defendant's acceptance of the office of selectman did not relieve him from the office of collector. The acceptance of an office by one disqualified to hold it by reason of holding an incompatible office is not necessarily a resignation of the prior office, unless it is made so by special statutory or constitutional provision. Const. Part 2, arts. 94, 95. The defendant's resignation would not divest him of the office of collector unless it was accepted. G. L., c. 42, s. 1, provides that in case any officer who has given an official bond shall resign, he and his sureties shall continue liable upon his bonds for all acts under color of his office until he shall resign, and his resignation shall have been accepted by the town, selectmen, or others competent to accept the same. The defendant being a collector of taxes for the town of Durham when he was elected a selectman, was disqualified to hold the office, and his election gives him no title to it. Cotton v. Phillips, 56 N. H., 220, 223. Having assumed the office of selectman under color of an election, Marston is an officer de facto, and his official acts are valid as to third persons. Judgment of ouster. Doe, C. J., did not sit: the others concurred. PEOPLE EX REL. RYAN V. GREEN. Court of Appeals of New York. September, 1874. 58 N. Y. 295. Appeal from order of the General Term of the Court of Com- mon Pleas for the city and county of New York, affirming an order of special term directing a writ of peremptory mandamus to issue. An alternative writ was issued alleging, in substance, that the relator was, on or about May 1st, 1870, duly appointed deputy clerk of the Court of Special Sessions for the city and county of New York at a salary, as fixed by law, of $5,000 per annum, which office he has continued to hold and still holds; that he presented his claim for salary for the months of February, March, April and May, 1873, to the defendant which the latter refused to pay. PEOPLE EX BEL. RYAN V. GREEN. 217 The return to the writ simply alleged that, subsequent to the appointment of relator, in the year 1872, he was duly elected a member of the legislature, which office he accepted and entered upon the performance of its duties, and was engaged in such performance, in the city of Albany, during the months of February, April and May, thus rendering it impossible to perform the duties of the said office of deputy clerk which required his personal presence in the city of New York, and that he did not perform the duties of the latter office during those months. Upon the ^vrit and the return an order was granted directing the issuing of a peremptory writ, notwithstanding the return, direct ing the payment of the salary. FOLGER. J. The point made by the appellant, that section 114 of the last charter of the city o£ New York (Laws of 1872, chap. 335, p 519) operates to vacate the office of deputy clerk, held by the relator, is not tenable. The language of the section is prospective. A law may not operate upon existing rights and liabilities without it in terms expresses such intention. Johnson v. Burrell, 2 Hill, 238. Though there is no vested right to an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated. This section is quite other- wise, if it has such purpose. Nor is the office of a member of assembly, in the legal sense of the word, incompatible with that of deputy clerk of the Court of Special Sessions of the city and county of New York. After the exhaustive opinions delivered in the court below upon this point, it would be an unwarrantable use of time to go over the ground again, so well explored in them. It may be granted that it was phy- sically impossible for the relator to be present in his seat in the as- sembly chamber, in the performance of his duty as a member of that body, and at the same time at his desk in the court doing his duty as deputy clerk thereof. But it is clearly shown in those opinions, that physical impossibility is not the incompatibility of the common law, which existing, one office is ipso facto vacated by accepting another. Incompatibility between two officers, is an inconsistency in the functions of the two ; as judge and clerk of the same court-officer who presents his personal account subject to audit, and officer whose duty it is to audit it. The case of Bryant, 4 T. E. 715, and 5 id. 509, cited by appellant does not conflict with 218 QUALIFICATIONS FOB OFFICE. this view. It was decided upon the meaning of the particular stat- ute, which required the personal presence of the officer at the prison. Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other. The force of the word, in its application to this matter, is, that from the nature and the relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and im- partially discharge the duties of one, toward the incumbent of the other. Thus, a man may not be landlord and tenant of the same premises. He may be landlord of one farm and tenant of another, though he may not at the same hour be able to do the duty of each relation. The offices must be subordinate, one to the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law. For the authorities sustaining these views, we refer to the opinions in the court below, ■where they are laboriously collected. It is not claimed that there is an express incompatibility created by the constitution, or by statute, other than that above referred to. The appellant makes the further point, that the alternative writ makes no averment that the account of the relator for his salary has been audited by the board of supervisors and by the auditor of the finance department, and that the proper voucher therefor has been examined and allowed by the proper officer and approved by the comptroller. We are of opinion that the lack of the averments in the al- ternative writ is fatal to the relator's application. It follows, that the order appealed from must be reversed. All concur. Order reversed, and motion for peremptory mandamus denied. MORELAND V. COMMON COUNCIL. 219 ATTORNEY GENERAL EX. REL. MORELAND V. COMMON COUNCIL OF CITY OF DETROIT. Supreme Court of Michigan. March, 1897. 112 Mich. 145. Mandamus by Fred A. Maynard, Attorney General, on the rela- tion of Dewitt H. Moreland, to compel the common council of the city of Detroit to call an election to fill a vacancy in the office of mayor. Submitted March 17, 1897. Writ granted March 19, 1897. Hooker, J. Hon. Hazen S. Pingree was elected mayor of the city of Detroit, and while an incumbent of that office was elected to, accepted and entered upon the execution of the duties of the office of governor. He continues to perform the functions of both, and the petition in this proceeding proceeds upon the theory that, by accepting the latter office, that of mayor has become vacant, and a writ of mandamus is asked commanding the respondent to call an election to fill such vacancy. Two theories are presented under which it is contended that Mr. Pingree cannot hold these two offices at one and the same time: 1. That he is prohibited by section 15 of article 5 of the Con- stitution, which says: **No member of Congress, nor any person holding office under the United States or this State, shall execute the office of governor. ' ' 2, That the two offices are incompatible under the rules of the common law. Many cases have arisen upon similar provisions of the various constitutions, and, while the decisions are not altogether uniform, we shall find them in substantial harmony upon two propositions, viz. : First, that an officer of a city, whose duties are simply and purely municipal, and who has no function pertaining to state affairs, does not come within the constitutional description of of- ficers holding office under the State; and, second, where officers in cities are appointed or elected by the community in obedience to laws of the State which impose duties upon them in relation to State affairs, as contra-distinguished from affairs of interest to the city merely, such as relate to gasworks, sewers, waterworks, public lighting, etc., they are upon a different footing, and may properly be said to hold office under the State. We will first consider whether this distinction is a proper one to be made under our con- stitution, and it must be determined upon adjudicated cases else- 220 QUALIFICATIONS FOR OFFICE. where, and such lights of a domestic nature as our own decisions and discussions afford. There are cases which hold that a similar provision is to be ap- plied only to constitutional oflBces, and it is contended here that, at the most, the provision does not include all offices that are held under State authority; that officers elected by counties, town- ships, school districts, etc., should be excluded. . . . . . There was in the convention no apparent dis- agreement as to the proposition that section 8 of article 4 of the Constitution 1835 excluded others than those who were * * appointed directly by state authority," nor is it easy to perceive why there should have been. In the same instrument (article 6, section 6) it was provided that each township might elect four justices of the peace. It is perfectly obvious, therefore, that if the words "office under the United States or of this state" were given a construc- tion which limited them to ** officers appointed directly by state authority," the exception, in the same section, of justices of the peace, was senseless; and as the words are susceptible of a con- struction which excluded officers mediately holding office under authority of the State, and administering State functions, it is to be assumed that they were employed in that sense. It is also plainly inferable that, if the words were used in this sense in the section referred to, similar words were used in a like sense in section 16, art. 5, which reads: "No member of Congress, nor any other per- son holding office under the United States or this State, shall execute the office of governor," — a provision in the same language as is employed in section 15, art. 5, of our present Constitution. It should, perhaps, be stated that the question cannot well arise under the corresponding provision of our present Constitution relative to the qualifications of members of the legislature (article 4, section 6), as the inhibition contained in that section, as appears by the Constitution, actually adopted by the convention, signed by the members of the convention, and filed in the office of the secre- tary of state, does not apply to State officers; the words "or this State" having been omitted, whether intentionally or through in- advertence it is impossible to say. Certain it is that the vote adopt- ing the Constitution was taken upon the engrossed copy, as ap- pears by the proceedings of the convention (page 918). In California, the constitutional provision was that "no per- son holding any lucrative office under the United States, or any other power, shall be eligible to any civil office of profit under MORELAND V. COMMON COUNCIL. 221 this State," etc. In People v. Leonard, 73 Cal. 230, the office of supervisor of a district was held to be prohibited. The Indiana constitution prohibited the holding by one person at the same time of two lucrative offices under the State, and was held to cover the office of county commissioner and county recorder. Daily v. State, 8 Blackf. 329. In Foltz v. Kerlin, 105 Ind. 221 (55 Am. Rep. 197), a township trustee was held to be within the provision. In Virginia the Code provides that **no person shall be capable of holding any office of profit, trust, or emolument, civil or military, legislative, executive, or judicial, under the government of this commonwealth, ' ' who holds certain other offices enumerated. Bunt- ing V. WiUis, 27 Grat. 144 (21 Am. Rep. 338), and Shell v. Cous- ins, 77 Va. 328, involved the office of sheriff which is a county office, and, in the latter case, a '/sampler of tobacco," in the city of Petersburg. These offices were held to be within the prohibitfon. Shelby v. Alcorn, 36 Miss. 273 (72 Am. Dec. 169), held, under a provision prohibiting the appointment of a senator to "any civil office under the State which shall have been created during his term as senator," that a senator was not eligible to the office of levee commissioner of a county. These cases proceed upon the theory that all officers whose duties are prescribed by general law, however trivial, perform their own particular portion of the business of the State. The levying and collection of taxes are State matters. So are all things con- nected with the State system of schools, construction and main- tenance of public highways, and preservation of the peace, and these cases hold the generally conceded doctrine that all who have parts to perform in the general scheme are officers holding under the State, if their engagement rises to the dignity of an office, rather than a mere employment. The next distinction made relates to municipal offices, and it is said that officers elected in cities are not to be classified with county and township officers, and cannot be said to hold office under the State ; that such offices are held under the city. . . . At this point it is said that we must draw the line; that when we pass the confines of the smallest village or the largest city the sec- tion does not apply. Such localities are parts of the State; State laws are in force within such territory, and the various officers have to perform many functions pertaining to State as contra- distinguished from city affairs. The State revenues have to be lev- 222 QUALIFICATIONS FOR OFFICE. ied, collected, and paid over by them through county officers, the same as in the township; highways have to be provided, repaired, and maintained; schools in substantial harmony with the State school system must be maintained, which are in part supported by the State school funds; the criminal laws are enforced through justices' and other courts, constables, marshals, police officers, etc.; some officer in these localities has the custody of securities for debt, as does the township clerk ; the council takes the place of the town- ship board in the management of local affairs; elections for State, county, and local officers are in charge of city and village officers; and it is obvious that the volume of State business in a busy city is much greater and more complicated and important than in a rural township. Still it is urged that the constitution makers had no intention of excluding occupants of municipal officers from execut- ing the office of governor, while at the same time they prohibit in- cumbents of the office of county overseer cf highways, school in- spector, or even notary public from performing the duties of gov- ernor. It would seem manifest that, if the contention of counsel for the respondent is correct, it must be based upon some other reason than a lack of interest on the part of the State in the performance of their duties by city officers. We do not recall a reason that has been given that will serve to explain satisfactorily why the mayor of a city should be permitted to execute the office of governor, when the incumbent of the lowest office in a township or a post-office at crossroads is prohibited. But plain as this may seem to be, there are cases which make a distinction between State and muni- cipal offices. The matter is summed up in Chambers v. State, 127 Ind. 365, and the distinction shown to be generally recognized is clearly drawn. After discussing the various cases, the court continues: **It must, therefore, be regarded as the settled law of this State that if an office is purely municipal, the officer not being charged with any duties under the laws of the State, he is not an 'officer' within the meaning of the Constitution ; but if the officer be charged with any duties under the laws of the State, and for which he is entitled to compensation, the office is a 'lucrative office', within the meaning of the constitution." The recent case of Montgomery v. State (decided at the Novem- ber, 1894, term of the Supreme Court of Alabama), 107 Ala. 372, contains the latest view of this subject that we have met. The MORELAND V. COMMON COUNCIL. 223 provision of the Constitution is as follows: "No senator or rep- resentative shall, during the term for which he shall have been elected, be appointed to any civil office of profit under this state which shall have been created or the emoluments of which shall have been increased, during such term, except such offices as may be filled by election of the people. ' ' The office was that of judge of the police court of a city. The court quoted copiously from some of the cases hereinbefore cited, andTield the office to be prohibited. It yet remains to determine whether the office of mayor of De- troit has state functions, and, when the provisions of law bearing upon that question shall have been collected, it will leave no room for doubt. By the charter (Act. No. 326, Local Acts 1883, chap. 5, sec. 1), the mayor is made a conservator of the peace, which, as has already been said, imposes a State duty, which he holds in common with all magistrates. 2 How. Stat. Sec. 9264, imposes similar duties. Again, section 9435 authorizes the mayors of all cities to re- quire persons to give security to keep the peace, and section 9454 et seq. authorizes them to conduct examinations of persons charged with crime, and commit them to jail, or require a recognizance for appearance at the circuit court for trial. Again, section 9479 auth- orizes mayors to admit persons charged with crime to bail. Section 9385 commands mayors to issue proclamations requiring saloons to be closed upon election days, and again emphasizes the State char- acter of this requirement by making a violation of the section a misdemeanor, punishable by fine and imprisonment. Again, under 1 How. Stat. Sec. 911, in cases of riot, breach of the peace, tumults, or violent resistance of any process of this State, it is within the power of the mayor to call upon the commanding officer for aid from State troops; and section 913 provides a punishment for officers who refuse to comply with the request. Again, mayors are made members of the boards of health. Section 1681. See, also, section 42, chap. 7, of the charter for authority of the council in relation to the preservation of the public health and section 38 for authority as to drainage. And see Act No. 36, Local Acts 1883, which authorizes the mayor to nominate persons to fill vacancies upon the school board. This is under a general law, as is his veto power given by Act No. 394, Local Acts 1893, which was held con- stitutional in Pingree v. Board of Education, 99 Mich. 404. Again, the mayor may administer oaths (section 14, chap. 5, of the char- 224 QUALIFICATICNS FOR OFFICE. ter) ; and, under section 15, may hear complaints and annul or sus- pend licenses for violations of the ordinances, or any other law of the State. Other duties pertaining to state affairs might be mentioned, but these are perhaps the most significant, and are am- ple to show that the mayor of Detroit holds office under this state; and we think it beyond reasonable contention that this office is within article 5, sec. 15, prohibiting the execution of the office of governor by one holding it. Are the offices of mayor of the city of Detroit and the governor of the State incompatible under the common-law rules? It is the universal rule that when such incompatibility exists, the acceptance of the latter office vacates the first. State v. Goff, 15 R. I. 505 (2 Am. St. Rep. 921, and authorities cited.) The authorities are in substantial agreement as to the rule of incompatibility, and Mechem states it as follows : ' ' The incompatibility which shall op- erate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to retain both." Mechem, Pub. Off. Sec. 422. The sole difficulty lies in the application of the rule, and in every case the question must be determined from an ascertainment of the duties imposed by law upon the two officers. If one has super- vision over the other, or if one has the remo\al of the other, the incongruity of one person holding both offices is apparent, and the incompatibility must be held to exist so that the acceptance of the latter vacates the former. We have already referred to the provisions of the charter and the statute laws imposing duties upon the mayor. For the violation of some if not all of these, he might be removed from office by the governor under the statute hereinafter cited. Section 653, 1 How. Stat., provides that "the governor may remove all county officers chosen by the electors of any county or appointed by him, and shall also remove all justices of the peace and township officers chosen by the electors of any township, or city or village officers chosen by the electors of any city or village," etc. If a superior officer is clothed with power to remove from office an inferior officer, there is certainly no logic or reason in holding that one person may hold both. No more marked incompatibility is possible. The remoteness of the necessity for the removal of a mayor by MORELAND V. COMMON COUNCIL. 225 the governor is urged by counsel for the respondent as a reason why a legal incompatibility does not exist at common law. The question, however, is one of the existence of the power, and not the remoteness of its exercise. The power of removal is ever present, ready for use when its exercise is required. The argument that the contingency for its use is very remote is without force. We have been unable to find a decision which holds that one person may hold two offices, in one of which he is clothed with power to remove the person holding the other. It follows that the offices of mayor and governor are incompatible. In the course of these proceedings, reference has been made, on behalf of respondent, to the alleged fact that Mr. Pingree was elected to the office of governor after a public declaration of an intention to continue to perform the duties of the office of mayor, and it is intimated that a result which ousts him from the office of mayor will have the effect to disfranchise the people, and that such a result is fraught with dangerous consequences. Were it not for the eminence of counsel who present these considerations to this court, we should hesitate about adverting to such elementary principles as furnish an answer to these suggestions and demon- strate their impropriety as well. Even the power of majorities may be, and often is restrained, by the written Constitution ; and where the majority assumes to do what is forbidden, or to do what is per- mitted in a mode forbidden by the Constitution, the duty of the court to protect the rights of minorities is too manifest to re- quire at this day, either apology for its exercise or an elucidation of its source of authority. If, in law, the effect of the election of Mr. Pingree to, and his acceptance of, the office of governor oper- ated to vacate the office of mayor, a court that would weigh ma- jorities before so declaring would deserve impeachment and the contumely which would follow. We have yet to consider the effect of the attempt to execute both offices. Mr. Pingree has taken the constitutional oath, and is in possession of the office of governor, and performing its duties. The section of the Constitution renders the two offices incompati- ble, as does the rule of the common law already discussed ; and the general rule that the acceptance of a second vacates the first of two offices that are incompatible is not only the rule of the common law, but is held to apply to incompatibility growing out of con- stitutional provisions in several of the cases hereinbefore cited. See 15 226 QU.VLIFICATIONS FOR OFFICE. People V. Sanderson, 30 Cal. 160, 167; People v. Provines, 34 Cal. 520, 541; Foltz v. Kerlin, 105 Ind. 221 (55 Am. Rep. 197) ; DaUy V. State, 8 Blackf . 329 ; Shell v. Cousins, 77 Va. 328 ; also North- way V. Sheridan, 111 Mich. 18. From what is said, it is obvious that the respondent should not have refused to call an election, and, in view of the fact that an election is to be held in Detroit on the 5th day of April next, it is desirable, upon the ground of economy, that this vacancy be filled at that time, if it can be legally done. Counsel seem to agree that seven days' notice of the special election to fill this vacancy is sufficient, and there is ample time to nominate candidates at conventions which have been already or can yet be called. It is conceded by counsel for the respondent that primaries for a spe- cial election may be held after the time specified in Act No. 411, Local Acts 1895, if there be time to print the ballots. We are there- fore of the opinion that the election can be lawfully held at that time. The writ will be granted as prayed, requiring the respondent to take all necessary steps to hold such election at the time named. The other Justices concurred. DETURK V. COMMONWEALTH. Supreme Court of Pennsylvania. November, 1889. 129 Pa. St. 151, Green, J The respondent in the case, being the postmaster of DeTurkville, in the township of Washington, was elected in the fall of 1887 a county commissioner ; and having been duly sworn in, has occupied and filled the office of county commissioner since January, 1888. At the instance of E. W. Frehafer, the district attorney has in- stituted the proceeding by quo warranto, to try the right of the respondent to hold the office of county commissioner, on the ground that by the constitution he cannot be postmaster and com- missioner at one and the same time. Prior to the filing of an answer by the respondent, he resigned his office as postmaster, which resignation was duly accepted by the proper authorities. These are the facts in the case and they are not disputed. DETURK V. COMMONWEALTH. 227 The second section of article XII of the Constitution of Penn- sylvania, provides that "no member of Congress from this State nor any person holding or exercising any office or appointment of trust or profit under the United States, shall at the same time hold or exercise any office in this state to which a salary, fees, or perquisites shall be attached. The general assembly may by law declare what offices are incompatible." A postmastership under the United States is undoubtedly an office of profit, for the law provides compensation for the officer. In the present case, it is an office of very small profit, indeed, for the compensation does not exceed the sum of thirty dollars an- nually ; nevertheless it must be classed as an office of profit. The office of county commissioner is one to which a salary is attached, the law providing a per diem pay of two dollars and fifty cents. Under the plain reading of the law it would seem clear that the respondent cannot be both postmaster and county commissioner. When the present case was before the court it was argued as though the main question was one of the incompatibility of offices, and that defendant might either hold both, so long as no law of the state declared them incompatible; or, if they were incompatible per se, then the acceptance of the second office raised the pre- sumption of a resignation of the first, and that the act of May 15, 1874, P. L. 186, upon the subject, did not declare the offices held by the respondent incompatible. A great many authorities both English and American were cited upon the questions arising from the incompatibility of offices, and whilst the law as decided by the different courts seems to be uniform and in accordance with the contention of the defendant, yet it has no bearing upon the case before the court. It is not a question of incompatibility or the reverse. It is simply a question of constitutional prohibition. The cases have therefore no relevancy in deciding this case. But what effect does the resignation of the respondent as post- master, and its acceptance by the proper authorities, have upon the question ? Has he thereby qualified himself to hold the county office? It is true he was disqualified when he took upon himself the duties of the office and was sworn in, and also when the writ of quo warranto was issued, and why may he not make himself compe- tent by a subsequent resignation? Having put himself in the 228 QUALIFICATIONS FOB OFFICE. position of holding only one office, has he not conformed to all that the constitution requires, that he shall not **at the same time hold or exercise" the two offices. The law does not declare him ineligible because he held the office under the general government. It merely says he shall not hold both at the same time. If this ques- tion were one of first impression, my own inclination would be to hold that having removed the disqualification, he could retain the state office, because the requirements of the Constitution would have been complied with. But what few authorities I have been able to gather, seem to rule that the disqualification must be re- moved before the officer is sworn in and entens upon the duties of the second office. In the case of the Commonwealth v. Pyle, 18 Pa. 519, the opinion of the court was delivered by Chief Justice Black, and that eminent judge decided that "when the constitution or a statute declares that certain disqualifications shall render a person ineligible to an office, he must get rid of his disqualifications before he is appointed or elected. Such have been the decisions of Congress in the contests there. But if the law merely forbids him to hold or enjoy the office, or exercise its duties, it is sufficient if he qualifies himself before he is sworn. A man may hold one office after he has been chosen to another which is incompatible with it, without thereby forfeiting either of them, provided he resigns the first before he enters upon the duties of the last." It would clearly follow from this that a resignation of the first office, long after entering upon the duties of the second, is too late, and will not cure the disqualification. Probably the law is so declared, in order to remove the temptation of illegal holding on to two or more officers at the same time as long as possible, and only relinquishing at the last moment by a resignation enforced by the fear of an ouster. The constitutions of all or nearly all the states contain provisions similar in their nature to our own. They are intended to carry out the well-defined policy of keeping distinct and separate the respective functions of national and state government. It is for the purpose of preventing any encroachments of the one upon the other, and particularly of the general upon the state government that these clauses are inserted in state constitutions; so that state officers shall have no divided, or perchance, no in- consistent or incompatible duties to perform. This is the general principle and we are bound to carry it out in the administration of the law, even though it hits so humble a personage as the post- master of DeTurkville, in the county of Schuylkill. No objection is made to his competency or to his honesty; nor is it even hinted GRAY V. SEITZ. 229 that there is danger that the relations between the state and fed- eral government are about to be disturbed by allowing him to re- tain both offices, or that the cause of free government may receive a shock by permitting one and the same person to handle the mails at DeTurkville, and at the same time act as a county com- missioner. But the law is no respector of persons. All are sub- ject to its mandates, and whether the office be great or small, there is no exception to limit it or control the operation of the gen- eral principles. In the case of Privett v. Bickford, 40 Am. Rep. 301, the same principle is laid down as was decided by Judge Black in Com- monwealth V. Pyle. It was there decided that "although one elected to an office may, at the time of election, be politically disqualified from holding the' office, yet, if such disqualification be removed before the issuing of the certificate and taking possession of the office, he may legally hold it." See also Foltz v. Kerlin, 105 Ind. 231 (55 Am. Rep. 197) and 4 B. Mon. (Ky.) 224 and 499. From what we have already said it seems clear that the Com- monwealth is entitled to judgment in the present case with costs. It is but proper to say that this is the unanimous conclusion of the court. And now, January 14, 1899. Judgment of ouster against the defendant, and that the Commonwealth recover her costs, to be taxed according to law. This opinion, which is the opinion of the lower court set forth at length In the opinion of the Supreme Court was reversed on appeal to that court. It seems, however, to be supported by the greater weight of authority. GRAY V. SEITZ. Supreme Court of Indiana. January, 1904. 162 Indiana 1. DowLiNG, J. Appellant and appellee were opposing candidates for the office of county auditor of Brown county at the general election held in November, 1902. The appellee received 1,019 of the legal votes cast at the election, and the appellant 615 of such votes. The appellant within the time fixed by law, gave notice of his intention to contest the election of the appellee, and filed his 230 QUALIFICATIONS FOB OFFICE. statement of the grounds of such contest in the office of the clerk of Brown county. The board of commissioners of said county was thereupon convened to try the cause and the appellee appeared to the action. On the motion of the appellee the proceeding was dis- missed by the board on account of the insufficiency of the facts stated to constitute a cause of action. An appeal from this judg- ment was taken to the Brown Circuit Court, where the motion to dismiss was renewed. The court sustained the motion, and lendered judgment for the appellee. The error assigned is upon the ruling on the motion to dismiss. The ground of contest was the alleged ineligibility of the appellee to the office at the time of the election, and at the time of the com- mencement of the term thereof. The supposed acts of bribery consisted in procuring the with- drawal of Ross as an opposing candidate for the nomination for county auditor at a democratic primary election held November 15, 1901, and in entering into an agreement with Hanna and Tabor, electors of said county, by which they undertook to use their in- fluence with the other electors of the said county for the said John B. Seitz as a candidate for the office of county auditor, and to discourage and dissuade any other elector of said county from becoming a candidate at said primary election for nomination to said office in opposition to said Seitz, in consideration of which withdrawal of said Ross and the said services of the said Hanna and Tabor, the appellee, on October 15, 1901, executed his promis- sory note for $300 payable to said Ross ninety days after its date. It is insisted by the appellant that these proceedings rendered the appellee ineligible to the office of county auditor, to which he was elected, under § 6, article 2, of the Constitution of this State, and also under § 2327 Bums 1901, defining and punishing the offense of bribery at primary elections. The provisions of the Constitution, supra, is as follows: "Every person shall be dis- qualified for holding office during the term for which he may have been elected, who shall have given or offered a bribe, threat or reward to secure his election." And § 2327, Burns 1901, declares that, *'Any person being a candidate for nomination to any office of profit or trust under the Constitution or laws of this State, or of the United States, before any convention held by any political party, or at any primary election, who loans, pays, or gives or promises to loan, pay or give any money or other thing of value GRAY V. SEITZ. 231 to any delegate or elector, or any other person, for the purpose of securing the vote or influence of such delegate, elector, or person for his nomination, and whoever hires or otherwise employs for consideration any person to work for the nomination of any person to any office, or to work for the selection of any delegate to be chosen at any party convention or primary election, shall, upon conviction thereof, be fined in any sum not more than $500, and disfranchised and rendered incapable of holding any office of profit or trust within this State for any determinate period, and if nomi- nated shall be ineligible to hold such office." Section 6, article 2, of the Constitution, and § 2327, supra, are highly penal, and must be strictly construed as against the per- sons who are sought to be subjected to the penalties and forfeitures imposed. It seems perfectly clear that § 6, article 2, of the Con- stitution applies only to bribes, threats, or rewards, given or offered to secure the election of a candidate at a final or popular election. No mention is made of a primary election, and the language used refers exclusively to the election by virtue of which title to the office is claimed. Section 2327, supra, renders any person ineligi- ble to any office, for the nomination for which he is a candidate at any primary election, who loans, pays, or gives, or promises to loan, pay, or give, any money or other thing of value to any dele- gate or elector, or an other person for the purpose of securing the vote or influence of such delegate, elector, or person for his nomi- nation; or who hires or employs for a consideration any person to work for the nomination of any candidate for any office to be chosen at a primary election. The complaint charges that in consideration of the withdrawal of Ross, the opposing candidate for the nomination for county au- ditor at the primary election, and an agreement of Hanna and Tabor, on behalf of themselves and Ross, to use their influence with the electors of the county for the appellee, and to discourage and dissuade any other elector of the county from becoming a can- didate for the nomination for county auditor at said primary election in opposition to the appellee, the later agreed to pay to Ross $300 and execute his note, with surety, for said sum. The agreement alleged to have been entered into by the appellee with Hanna, Tabor, and Ross, fell under the prohibition of § 2327 of the statute. It included an express promise, in writing by the appellee, who was a candidate for nomination to an office of trust and profit at a primary election, to pay $300 in money to Ross, an opposing candidate, for the purpose of securing his with- 232 QUALIFICATIONS FOU OFFICE. drawal from the race, and the influence and services of Hanna and Tabor for the nomination of the appellee. But the unlawful agreement did not of itself render the ap- pellee ineligible to the office to which he was afterwards elected. It is true that ineligibility to hold the office to which the person violating § 2327, supra, is chosen is declared to be one of the pen- alties for the violation of the section. These penalties, however, attach only to one who has been duly charged with, and convicted of, the misdemeanor created by the statute. It is expressly declared that, ''upon conviction thereof" the person violating the statute * ' if nominated shall be ineligible to hold such office. ' ' The provision of the statute differs materially from § 6, article 2, of the Consti- tution. The latter makes the fact that the candidate at a popu- lar election has given or offered a bribe, threat, or reward to secure his election an absolute disqualification for holding the office for the term for which he has been elected. It has been said to be ''self executing." Carroll v. Green, 148 Ind. 362. The penalty of the statute becomes effective only after trial, conviction and judg- ment. We express no opinion with regard to any objections which may be taken to § 2327, supra, but hold that the complaint was insuffi- cient because it failed to allege that the appellee had been adjudged guilty of a violation of its provisions. The pleading was not good under any other section of the statute. The court did not err in sustaining the motion to dismiss the action. Judgment affirmed. One who appoints or participates in appointment to an office is by com- mon law disqualified for that office. People v. Thomas, 33 Barb. (N. Y.) 287; State v. Hoyt, 2 Oregon 246. CHAPTER V. THE TERMINATION OF THE OFFICIAL RELATIONS. I. Expiration op the Term. PEOPLE EX BEL. ELDRED, RESPONDENT V. PALMER, APPELLANT. Court of Appeals of New York. October, 1897. 154 N. Y. 133. Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 6, 1897, which reversed an order of Special Term denying relator's motion for a peremptory writ of mandamus. Andrews, Ch. J. This proceeding was instituted to obtain an order requiring the secretary of state to include in his notices among the names of the officers to be voted for at the ensuing election for the county of Kings that of district attorney. The sole question relates to the duration of the term of the present in- cumbent of that office, who was elected at the general election held in November, 1895. It is claimed in behalf of the relator that the election of the present incumbent was for the term of two years from January 1, 1896, and that his term expires December 31, 1897, It is insisted, however, in behalf of the defendant, that by force of chapter 772 of the Laws of 1896, passed after the election of the present incumbent, his term of office was fixed at four years from the time of his election, which does not expire until Decem- ber 31, 1899. The constitutionality of that statute is challenged, and it has been held by the Appellate Division for the second de- partment that the statute is unconstitutional in so far as it con- tinued the present incumbent in office for the term mentioned. Prior to the first day of January, 1895, the provision of the Con- stitution which regulated the election and term of district attor- ney was as follows: "Sheriffs, clerks of counties, including the register and clerk of the City and County of New York, coroners and district attorneys, shall be chosen by the electors of the re- 233 234 TERMINATION OP THE OFFICIAL RELATION. spective counties, once in every three years and as often as va- cancies shall happen." (Const, of 1846, art. X, sec. 1.) The prede- cessor of the present incumbent of the office was duly elected in 1892 for three years under the Constitution of 1846, and his term expired December 31, 1895, and the present incumbent, as stated, was elected as his successor. When he was elected the term of dis- trict attorney for Kings County had been changed by article X, sec. 1, of the new Constitution, which took effect January 1, 1895, which declared: "Sheriffs, clerks of counties, district attorneys and registers, shall be chosen by the electors of the respective coun- ties, once in every three years and as often as vacancies shall hap- pen, except in the counties of New York and Kings, and in coun- ties whose boundaries are the same as those of a city, where the officers shall be chosen by the electors once in every two or four years as the legislature may direct." The object of this provision prescribing that the terms of the county officers mentioned in the counties of New York and Kings, should be two or four years, was to bring the time of electing these officers into harmony with the new constitutional provision contained in art. XII, sec. 3, requiring that the election of city officers, except in cities of the third class and of county officers elected in the counties of New York and Kings, ** shall be held on Tuesday succeeding the first Monday in November in an odd numbered year, and the term of every such officer shall expire at the end of an odd numbered year. ' ' It is manifest that to carry out the purpose that county officers in the counties of New York and Kings should be elected in odd num- bered years, it was essential to change the term from an odd to an even number, as a continuous three-year term would necessarily make every alternate term expire in an even numbered year. For this reason it was declared in article X, sec. 1, that "such officers shall be chosen by the electors once in every two or four years as the legislature shall direct. ' ' This provision doubtless contemplated that the legislature would act and fix the term of the district attorney and the other county officers in the counties of New York and Kings at the one or the other of these periods. The whole legislative ses- sion of 1895, however, was allowed to pass without any statutory enactment fixing the term of the district attorney or any other of the county officers in Kings County, so that when the present in- cumbent of the office of district attorney of Kings County was elected in the fall of 1895, there was no legislative enactment in force prescribing the duration of the term. The former term of three years had been abrogated by force of the new constitutional PEOPLE EX REL. ELDRED V. PALMER. 235 provision, and the legislature had omitted to prescribe any other term. The incumbent was not elected for three years for the rea- son stated. There was no statute defining the duration of his term, and if nothing subsequently had occurred, the election was either wholly invalid, because no term had been prescribed, or he was elected for an indefinite term, or for a term of two or four years, if by a reasonable construction of the Constitution it could be held that in the absence of legislation the duration of the term was fixed by the Constitution at one of the two periods. But on the 20tli of May, 1896, after the present incumbent had entered upon his office, the legislature enacted chapter 772 of the laws of that year as follows : * ' The present district attorney of the County of Kings shall continue in office until the 31st day of December, 1899, and his successor shall be chosen at the annual election to be held next preceding the said 31st day of December, 1899, for the term of four years, and thereafter district attorneys of the county of Kings shall be chosen by the electors of said county once in every four years," If this was a valid exercise of legislative power, then the tei-m of the present incumbent will continue until the 31st day of December, 1899, and no election of a successor can be held until November of that year. We concur with the Appellate division that the act, so far as it undertakes to continue the present incumbent in office until De- cember 31, 1899, is unconstitutional and void, and without elabora- tion we shall state our reasons for this conclusion. The words of the Constitution are that the district attorney and other officers mentioned in art. X, sec. 1 to be elected in Kings county, "shall be chosen by the electors once in every four years as the legislature shall direct." The clear import of the language is that the direc- tion of the legislature fixing the term shall precede the choice to be made. The officers are to be "chosen" by the electors for one of two periods, not for an indefinite period to be subsequently defined by the legislature. It would be contrary to all precedent that the electors should not be advised before casting their votes of the duration of the term of the officers to be elected. The power attempted to be exercised by the legislature in this case, if sustained, would open the door to obvious abuses. It would prac- tically confer upon the legislature the power to prescribe a short or long term, and to shorten or lengthen the official life of an offi- cer, who by the Constitution is to elected by the people, upon con- siderations wholly foreign to their true interests. The court, in People ex rel. Fowler v. Bull (46 N. Y. 57), had occasion to con- 236 TERMINATION OF THE OFFICIAL RELATION. sider an act of the legislature extending the term of an elected offi- cer, and Judge Folger's opinion in that case presents with great force the public considerations which require the condemnation of such legislation. It was regarded as subversive of the principles of the elective system and contrary to the true interpretation of the Constitution. The act of 1896 is in effect an attempt on the part of the legislature to appoint to office, and by its fiat, without the concurrence of the electors, to protect the present incumbent in the possession of an office for a term for which he never has been elected, unless, indeed, the wholly inadmissible claim of the appel- lant can be maintained, that the electors voted for the present dis- trict attorney for a term, to be thereafter fixed by the legislature, of two or four years. This contention ignores the plain meaning of the constitutional provision, and also one of the canons of con- struction applicable as well to Constitutions as to statutes, that pro- visions prescribing power or giving authority are to be construed, in the absence of a clear intention to the contrary, as conferring power or authority to be exercised in respect to the future, and not as to transactions already consummated. Having reached the conclusion that the act of 1896, so far as it assumed to fix the term of the present incumbent of the office, was invalid as an exercise of the power conferred by the Constitution upon the legislature to fix the term of office of the district attor- ney, it remains to consider whether, in the absence of legislation, the Constitution itself fixed the term of the present incumbent. We are of opinion that, until the legislature acted, the terms of county officers elected in the counties of New York and Kings must be deemed to be two years, which, as to future cases, may be extended to four years if the legislature shall so prescribe. The legislature had the option to prescribe either one or the other of the two periods. But not having exercised it, the minimum period should be taken as the duration of the term. This construction gives effect to the constitutional provision requiring elections for municipal officers and county officers in New York and Kings counties to be held in an odd numbered year. It fixes the term at the only period which with certainty was included within the intention of the electors, and prevents any hiatus in the incumbency of county offices. It enforces the public policy that the term of office of an elected officer shall be fixed before the election. It renders fixed and stable the terms of office and prevents an exercise of legislative power in legislating an incumbent in or out of office upon partisan considerations. It leaves to the legislature the unrestricted right PEOPLE EX REL. ELDRED V. PALMER. 237 to prescribe for the future the duration of the term at the mini- mum or maximum period. While the construction we adopt is not free from doubt, it is most consistent with the principles of the elective system and the uniform policy upon which the courts have acted in dealing with analogous conditions. It is to be observed that sheriffs, county clerks and registers are in the same category as district attorneys in art. X, sec. 1, of the Constitution. If the act of 1896 was a valid exercise of legislative power, then the sher- iff and register of Kings county to be elected this fall may have a two or four years term as the legislature may hereafter prescribe, for up to this time no legislation has been enacted prescribing the duration of their terms. Every consideration of public policy de- mands that no such demoralizing condition of the public service should be permitted and we are all satisfied that the Constitution does not require it. That part of the act of 1896 which prescribes a term of four years for the office of district attorney, from and after December 31, 1899, is separable from the other provisions and is, we think, a valid fixing of the terms of this officer to be elected in that and subsequent years. The term of the officer to be elected this yearj will be two years, terminating December 31, 1899. The statutory ' and constitutional authority for holding an election for district attorney in Kings county the present year is ample. The statute prescribes that a general election shall be held in November of each ' year. The Constitution, article XII, sec. 3, prescribes that elec- tions for the offices mentioned therein "shall be held on the Tues- day succeeding the first Monday of November in an odd numbered year. ' ' Whatever officers are to be elected may be voted for at the ensuing election. We concur in most of the views and in the conclusions in the, opinion below, and the order appealed from should, therefore, be i affirmed. I All concur. Order afjfirmed. See also Indianapolis Brewing Co. v. Claypool, 149 Ind. 193, supra, on the power of the legislature to fix the term of an oflSce. 238 TERMINATION OF THE OFFICIAL RELATION. THE PEOPLE EX REL. KINGSLAND V. PALMER. Court of Appeals of New York. January, 1873. 52 N. Y. 83. Appeal from an order of the General Term of the Supreme Court in the first judicial department, reversing an order of special term denying a motion for a writ of peremptory mandamus and direct- ing that a writ issue. Allen, J. The objections made on behalf of the appellant to the order appealed from will be noticed in their order. 2. The next objection is that the accounts are not properly cer- tified. The labors were performed between June 1, 1864, and February 28, 1866, and were certified after the latter date, by a single certificate, signed by all the commissioners in office at the time. One of the commissioners named in the act died October 10, 1863, and another ceased to be a resident of the state in 1864 ; and the last meeting of the commissioners he attended was July 12th of that year. The remaining commissioners united in the certificate. It is not claimed that the commission ceased to exist whenever a vacancy occurred, or that the power of the remaining commission- ers was suspended until the vacancy should be filled. In People v. Nostrand, 46 N. Y. 375, the act under which the question arose (Laws of 1869, chap. 905) required vacancies to be filled, as they occurred, by appointment ; and the court held that a vacancy existing, the power of the remaining commissioners was suspended until an appointment should be made. Here there is no provision for a vacancy, or for the appointment in place of any commissioner who should die, refuse to act, resign or remove from the State. The three commissioners still in office having joined in the certificate, the presumption is that the act was regularly done, and at a meeting of all. Downing v. Rugar, 21 W. R. 178. That those who gave the certificate could act, al- though the other commissioners had died or become disqualified, see the authorities cited by Judge Cowen, at page 182 of the case cited. A grant of power, in the nature of a public office to several does not become void upon the death or disability of one or more. Such a grant of power is not in the nature of a private franchise which. KEEIDLER V. STATE. 239 when granted to two, without words or survivorship, might not, by the rules of the common law, survive the death of one. But the policy of the law is to guard against the failure of a public service and therefore, by statute, it is provided that whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or re- quired by law to perform any act, such act may be done and such power, authority or duty may be exercised and performed by a majority of such persons or officers upon a uniting of all, unless special provision is otherwise made. 2 R. S., 555, S. 27. In cer- tain cases a majority may act, when all have been notified to attend a meeting of those entrusted with the power. By death or disqualification of a portion of the commission the number of its members is reduced, and all do meet when all who are living and qualified to act come together. The order appealed from must be affirmed, with costs. All concur. Order affirmed. KREIDLER V. STATE. Supreme Court of Ohio. December, 1873. 24 Ohio State 22. Day, C. J. The prosecution was founded on section 13 of the act of March 8, 1831, * ' for the punishment of certain offenses there- in named." S. & C. 429. The section enacts, " That if any person shall take upon himself to exercise or officiate in any office or place of authority, in this state, without being legally authorized," the person so offending shall, upon conviction thereof, be fined or im- prisoned as therein stated. The material question in the case is, whether the mere fact of officiating in an office, without legal authority, is under all circum- stances a crime under this section. The Probate Court proceeded upon the theory that it is. We think otherwise. For, to consti- tute the offense, a person must do something more than merely dis- charge the duties of an office without legal authority. He must "take upon himself" official functions in such sense as implied an assumption oi the office without color of right. Therefore, to 240 TERMINATION OF THE OFFICIAL RELATION. "take upon himself" the exercise of an office without being legally- authorized, within the meaning of the section, is such an assumption of official authority as imports a willful usurpation of an office. This was what was intended to be punished, and nothing short of it comes within the strict sense of the statue. Otherwise, an officer de facto, acting in good faith, under color of right, not designing to "take upon himself" an office without legal right, might un- consciously commit a crime in doing what the law would recognize as a valid act. Nor does it follow that an officer who may be ousted from an office by proceedings in quo warranto is guilty of the criminal offense of usurping the office. It was held in Ohio v. Ailing, 12 Ohio 16, that two common pleas judges, who continued to officiate after their office was terminated by a legislative enactment, which admitted of a reasonable doubt whether that was its legal effect, were de facto judges, and could not be regarded as "usurpers and intruders ;" and their acts were held to be valid. It is clear, there- fore, that they could not have been regarded as guilty of the crime of usurpation of office. In the case before us, Kreidler was undeniably lieutenant of po- lice de jure until the 6th of May, 1869, and the question was whether he did not continue such, under the city ordinance, until his successor was qualified. He proposed to prove that he and the city authorities in good faith believed he did; and claimed that if he was not such officer de jure, he acted in good faith under color of right, and therefore could not be regarded as usurping, or in- tentionally taking upon himself to exercise an office without being legally authorized. The court refused to permit him to make the proof he offered, and denied that any circumstances other than a legal right to the office could shelter him from the crime for which he was prosecuted. Therein we think the court was in error, and that the judgment must, therefore, be reversed, and the cause remanded for a new trial. McIlvatne, Welch, Stone and White, J. J., concurred. As to the effect on the official relation of the expiration of the term see Romero v. United States 24 Ct. of CI. 331 supra. STATE EX REIi. MORRIS V. BULKELEY. 241 STATE EX REL. MORRIS V. BULKELEY. Supreme Court of Errors of Connecticut. January, 1892. 61 Conn. 287. Andrews, C. J. This is an information in the nature of a writ of quo warranto. It alleges that the respondent, since the tenth day of January last, has used and exercised the office of governor of this State, and threatens and intends to continue to use said office, its dignities, liberties and franchises, and prays that he may be required to show by what warrant he claims to use and exercise said office. The respondent demurred to the information. The Su- perior Court made a finding of certain facts other than such as are set forth in the information, which includes the senate and house journals, to which the parties agreed, and reserved the case for the advice of this court. The case finds that the respondent, Morgan G. Bulkeley, was le- gally elected governor by the General Assembly on the 10th day of January, 1899, (there having been no election by the people) and entered at once upon the duties of that office. The term for which he was elected was till the Wednesday following the first Monday of January, 1891, and until his successor was duly qualified. If, then, no successor to him has been chosen, or being chosen, has not become duly qualified, respondent still holds the office of governor. He holds that office since the said Wednesday in January, 1891, by the same warrant that he held it prior to that date, and continues to be the de jure governor of the State. It is admitted that no per- son has been chosen to be the successor of the respondent, unless the facts set forth in the case show that the relator has been so chosen; and there is no claim but that, if so chosen, he is duly qualified. The inquiry then is : Has the relator been chosen gov- ernor according to the constitution and the laws ? The election of a governor is the selection of some person to fill that office. The selection must be one who possesses the required qualifications, and must be made by those who possess the right to vote, and at a time and place and in the manner prescribed by law. The election of state officers in this state is a process. It includes the preliminary registration, by which those persons who have the right to vote are determined; the time when, the place where, and the manner in which the votes are to be given in, and 16 242 TERMINATION OP THE OFFICIAL RELATION. also the manner in which the votes are to be counted and the result made known. Each of these steps must be taken in pur- suance of the law existing at the time the election is had. That part of the election process which consists of the exercise by the voters of their choice is wholly performed by the electors them- selves in the electors' meetings. That part is often spoken of as the election. But it is not the whole of the election. The declara- tion of the result is an indispensable adjunct to that choice; be- cause the declaration furnishes the only authentic evidence of what the choice is. The right to choose any state officer, unless the result of the choice can be published in some way so as to be obligatory on the whole state, would be no better than a mockery ; it would be to give the form of a choice without the reality. The declaration is the only evidence by which the person elected can know that he is entitled to the office, or the previous incumbent know that his term has expired. The courts can take judicial notice of the fact of an election, but never of the result of an election or of who is elected until some declaration is made. The declaration is the only evidence by which the other departments of the government and the citizens generally can know whom to respect as such officer. And in order that a declaration shall be made of the result of an election for governor in a way to be obligatory upon everybody, [ the constitution has fixed the time and manner in which the Gen- eral Assembly shall make that declaration. Unless the declaration is made in the way so provided, the process of the election is not complete. No other authority than the General Assembly is em- powered to make such declaration. It is found in the case that there has been no declaration by the General Assembly that the relator had been elected governor, and it is not claimed that there has been any equivalent act by any other authority. It follows that the relator — whatever any future inquiry may show — cannot now be said to have been elected to the office of governor ; and that the respondent remains the de jure as well as the de facto governor of the state. It is therefore the duty of all citizens, of the courts, of all departments of the state government, and of both houses of the General Assembly, to respect and obey him accordingly. In point of form, in the present action, it is the right of the re- spondent to exercise the office of governor that is in question. But as the right of the respondent depends upon the election of the relator to that office, it is really the title of the relator that is on trial. If the relator has not been completely elected then the right of the respondent continues. The claim made in behalf of the re- STATE EX EEL. MORRIS V. BULKELEY. 243 lator is that he ought to have been declared elected by the General Assembly, because, as appears from the returns of the presiding officers, he received a majority of all the votes cast for governor; and as the assembly did not do so, the court ought now to declare him elected or to regard him as having been elected by such ap- parent majority. This claim admits that if the General Assembly had declared the relator elected upon the returns the declaration would give him only a prima facie title to the office; and that if inducted into it upon such declaration, he might be ousted therefrom upon its being shown that he did not in fact have the real major- ity of the votes cast for governor. If the court should declare the relator elected upon the same returns it could give him no stronger Jtitle to the office than a declaration by the General As- sembly. He could still be ousted upon a proper proceeding. It would be most unseemly for the court to occupy itself in putting the relator into the office of governor, if by any possibility it might happen that the court would be required to remove him from that office as soon as he began to exercise it. The writ of quo warranto is the form of action specially adapted to try the right of an office. But it tries only the real title. It can never be used to try an apparent title. It gives judgment on that title alone which cannot be afterwards called in question. The in- formation does not allege that relator had the majority of all the votes, but only the majority as it appeared by the returns of the presiding officers ; while other parts of the information show that such apparent majority is in dispute. Nor does the information contain any allegation of facts which show that the General Assem- bly has become unable to decide upon the relator's right to the office he claims. If the relator shall hereafter, by an amendment of the present information, or by a new one, allege that he received a majority of all the votes legally cast for governor on the 4th day of Novem- ber, 1890, and it shall also appear from the facts therein stated that the General Assembly is without the power to make any dec- laration in respect to the election for governor, a case would be pre- sented of which the Superior Court might take jurisdiction. The Superior Court is advised that the information is insuffi- cient, and to sustain the demurrer. In this opinion Seymour, Torrance and Fenn, Js,, concurred. It follows from the application of the rule laid down in the principal case that there is no vacancy in office if the incumhent holds over under the statute and that therefore there is no occasion for the exercise of the 244 TERMINATION OP THE OFFICIAL RELATION. power to appoint to fill a vacancy when the statutory term expires with- out a new election or appointment. People v. BIssell, 49 Cal. 234; State v. Harrison, 113 Ind. 234 ; State v. Hume, 25 Ohio St 588. If, however, there Is no statutory provision as to holding over, a vacancy occurs at the ex- piration of the term of an Incumbent In case there Is no election or ap- pointment of a successor, or one Is appointed or elected who Is not eligible, who does not qualify, or who dies, either without qualifying or before the expiration of the term. State v. Wilson, 72 N. C. 155; People v. Curtis, 1 Idaho 753. II. Resignation. BADGER V. UNITED STATES. Supreme Court of the United States. October, 1876. 93 V. 8. 599. Mr. Justice Hunt delivered the opinion of the court. No part of the answer in our judgment requires consideration, except that which raises the point of the legality of the resignation of the parties named. If they had ceased to be officers of the town when the mandamus was issued, there may be difficulty in maintaining the order awaiting a peremptory mandamus against them. If they were then such officers, the case presents no diffi- culty. The alleged resignations of the supervisor and town clerk were accepted by the justices of the town ; but their successors had not been qualified, nor, indeed, had they been chosen when the petition was filed. Does a supervisor, town ,clerk or justice of the peace of the state of Illinois cease to be an officer when his resignation is tendered to and accepted by a justice of the peace, or does he con- tinue in office until his successor is chosen and qualified? By the common law as well as by the statutes of the United States, and the laws of most of the states, when the term of office to which one is elected or appointed expires, his power to perform its duties ceases. People v. Tieman, 8 Abb. Pr. 359 ; 30 Barb. 193. This is the general rule. The term of office of a district attorney of the United States is fixed by statute at four years. When this four years comes round, his right or power to perform the duties of the office is at an end, as completely as if he had never held the office. Rev. Stat., Sec. 769. A judge of the Court of Appeals of the State of New BADGER V. UNITED STATES. 245 York, or a justice of the Supreme Court, is elected for a term of fourteen years and takes his seat on the first day of January fol- lowing his election. When the fourteenth of January thereafter is reached, he ceases to be a judicial officer, and can perform no one duty pertaining to the office. Whether a successor has been elected or whether he has qualified, does not enter into the ques- tion. As to certain town officers, the rule is different. 1 Rev. Stat. (N. Y.) 340, sec. 30. The system of the State of Illinois seems to be organized upon a different principle. . . . It is enacted (art. 7, sec. 61, p. 1075) that, at the town meeting in April of each year, there shall be elected in each town one supervisor and one town clerk, who shall hold their offices for one year, and until their successors are elected and qualified, and such justices of the peace as are provided by law. Of justices of the peace, it is enacted that there shall be elected in each town not less than two nor more than five (depending upon the population of the town), who shall hold their offices "for four years, or until their successors are elected and qualified. ' ' p. 637, see. 1. Thus far it would seem plain that the office of a supervisor or town clerk could not be terminated until his successor subscribed and filed his oath of office, and that when the supervisor and town clerk before us supposed that their offices were at an end by their resignations, they were in error. There are two other provisions which, it is supposed, have some bearing upon the point we are considering. Sec. 97 (p. 1097) provides that whenever a vacancy occurs in a town office by death, resignation, removal from the town, or other cause, the justices may make an appointment which shall continue during th,e unex- pired term, and until others are elected or appointed in their places. By sec, 100 the justices of the town may, for sufficient cause shown to them, accept the resignation of any town officer, and notice there- of shall immediately be given to the town clerk. A similar provision as to the elective officers of a higher grade is found in the statutes. By c. 46, sec. 124, et seq. (p. 466), it is provided that resignations of elective officers may be made to the officer authorized to fill the vacancy or to order an election to fill it, and the various events which may cause a vacancy are defined. Governors, judges, clerks of courts, etc., are specifically referred to. 246 TERMINATION OP THE OFFICIAL RELATION. The provision as to these officers and as to the town offices are parts of the same system. The resignations may be made to and accepted by the officers named ; but, to become perfect, they depend upon and must be followed by an additional fact; to-wit, the ap- pointment of a successor and his qualification. When it is said in the statute that the resignation may be thus accepted, it is like to the expiration of the term of office. In form the office is thereby ended, but to make it effectual it must be followed by the qualifica- tion of a successor. . . . Thus justices hold for four years, supervisors and con- stables for one year ; and should there be created or found to exist a town officer, and no provision be made as to the duration of his office, this section is intended to meet the case by fixing one year as such term. It has nothing to do with the case before us, further than it reiterates the rule everywhere found in the statutes of Illi- nois, that such person shall serve not only for one year, but until his successor shall qualify. In People v. Hopson, 1 Den. 574, and in People v. Nostrand, 46 N. Y. 382, it was said, that when a person sets up a title to property by virtue of an office, and comes into court to recover it, he must show an unquestionable right. It is not enough that he is an officer de facto, that he merely acts in the office ; but he must be an officer de jure, and have a right to act. So, we think, where a person being in an office seeks to prevent the performance of its duties to a cred- itor of the town, by a hasty resignation, he must see that he resigns not only de facto, but de jure; that he resigns his office not only, but that a successor is appointed. An attempt to create a vacancy at a time when such action is fatal to the creditor will not be helped out by the aid of the courts. Judgment affirmed. For the rule as to the obligation to accept office see People v. WilllamB, 145 111. 573, supra. STATE V. FERGUSON. 247. STATE V. FERGUSON. Supreme Court of New Jersey. November, 1864. 31 New Jersey Law, 107. The Chief Justice. The issue which was to be tried in this cause was, whether William Ferguson, Jr., the defendant, was at the time of the service of the writ of mandamus upon him, an overseer of the highways of the township of Upper Alloways Creek, in the county of Salem. . . The defendant, on the trial, proved on his part that before the service of the mandamus he had sent in his resignation, in writing, of the office of overseer of the highways to four of the township committee, who had endorsed upon it an acceptance of such resig- nation. It further appeared that the fifth township committeeman, who had not signed the acceptance, had not been notified of the meeting at which the resignation was received and accepted, and was not present at it. This resignation and acceptance were over- ruled by the court. Two question are discussed. First. Was the resignation of the officer complete, and did it operate as a discharge from the office in the sense of an acceptance ? Second. Was there a legal accept- ance of the resignation in this case? First, as to the officer's power to resign. It was insisted on the part of the defendant that an overseer of the highways has the right, in law, to resign at will, and that the mere notification of the fact that he resigns discharges him from his office. If he possess this power to resign at pleasure, it would seem to follow, as an inevitable consequence, that he cannot be compelled to accept the office. But the books seem to furnish no warrant for this doctrine. To refuse an office in a public corporation connected with local jurisdiction, was a common law offence and punishable by indict- ment. In Vanacker's case, reported in Carthew 480 and in 1 Ld. Raymond 496, it was decided that a municipal corporation of com- mon right possessed authority to impose fines for refusal to accept office. Lord Holt remarking, "that it would be in vain to give them such power to elect sheriffs, etc.,, if they could not compel the per- sons elected to serve." And again he says: "As every citizen is capable of the benefit of this franchise so he ought to submit to the charge also." And then in the case of Pelson, 2 Lev. 252,. a suit 248 TERMINATION OP THE OFFICIAL RELATION. "was sustained in a by-law of the corporation to recover a penalty for not serving in the office of steward. In The Queen v. Hunger- ford, 11 Mod. 142, a motion was made in the King's Bench for an information in the nature of a quo warranto against a common councilman of Bristol for refusing to take upon himself the office after he was chosen, but the court denied the motion and said their remedy was to proceed by their by-laws in order to compel him — he not being such a public officer as a sheriff — but if they had applied to the court for a mandamus they would have had it. The same principle was clearly recognized in the case of The King v. Larwood, 4 Mod. 270, which was an information against the de- fendant who had been elected sheriff in the city of Norwich, and who had refused to serve, ' ' to the great hindrance, ' ' in the language of the information, "of the business both of the King and his sub- jects." So uniformly is this doctrine maintained by an extensive series of decisions that we find it stated as the unquestionable law by all the text writers, . . . Regarding, then, this doctrine of the law as established, it seems to be an unavoidable sequence that the party elected, and who is thus compelled by force of the sanctions of the criminal law to accept the office, cannot afterwards resign it ex mero motu. If his recusancy to accept can be punished, it cannot be that he can accept and immediately afterwards, at his pleasure, lay down the office. The law is far too practical to admit of such a frustration of one of its regulations, designed for the protection of the public interest. The only authority which was cited to lend countenance to such a proposition was that of The United States v. Wright, 1 McLean 512, in which the question was whether the sureties of a collector of internal revenue ceased to be responsible for the acts of their prin- cipal subsequent to his resignation. . . However true the prop- osition may be as applied to the facts then before the Circuit Court, it is clearly inconsistent with all previous decisions, if extended over the class of officers where responsibility is the subject of con- sideration. . . . The decisions, in my opinion, go to this point and not beyond it, that a resignation, when completed by an acceptance, will be a discharge from the office. The remaining question in this case then is, was there a legal acceptance of the resignation of the defendant? I do not perceive how this point can be plausibly insisted on. The people elect the overseer, how can the township committee discharge him? Whence do they derive the power? Their whole authority is defined in the statute and they have none other^ ex- BEITER V. STATE. 249 cept what is thus conferred and such powers as are necessary to carry into execution those thus expressly given. The 13th section, Nix Dig. 875, in the act relating to townships, provides for fill- ing vacancies in the office of overseers of the roads by special elec- tion, and on the neglect of the electors gives the power to the com- mittee to fill the office. But this power to appoint in a certain juncture does not certainly imply a right to assist in creating a vacancy. I cannot think the township committee are the agents of the corporation for the purpose of accepting resignations. But, admitting the power to exist, it was not, in my opinion, legally exercised in this case. The township committee is com- posed of five members, and can no more legally act unless legally convened than the corporation can. All the members must be summoned. And in this case the fifth man was not present nor was he notified of the meeting. The rule that all the members of the corporate body, or of a branch of a corporate body who dis- charge special functions for the society, who have the right to consult and to vote, must be notified in some form to attend the meetings of the body to which they belong, is too familiar to re- quire much reference to authorities in its support. See Grant on Corp., 156-7-8. My conclusion is that an overseer of the highways has not the right to quit his office at pleasure. And that the resignation of the defendant in this case was not accepted by competent authority; and that, consequently, the verdict below was right. Van Dyke, J., dissented. REITER V. STATE. Supreme Court of Ohio. February, 1894. 51 Ohio St. 74. Error to the Circuit Court of Hamilton County. The material facts found by the Circuit Court on the trial of this case, are as follows : On the 21st day of February, 1893, Amos Hill, being the mayor of the village of Pleasant Ridge in Hamilton County, presented to the council while in session the following resignation: 250 TERMINATION OF THE OFFICIAL RELATION. ** Pleasant Ridge, February 21, 1893. "To the Honorable Council of the village of Pleasant Ridge: I, Amos Hill, mayor, tender to you my resignation, to take effect March 1, 1893, as I cannot take time to attend to this office. "Yours with respect, "Amos Hill." On motion this resignation was laid over to the next meeting, March 7, when it was accepted by council to take effect at once, and at an adjourned meeting held March 11, George Reiter, plain- tiff in error, was appointed mayor to fill the vacancy caused by the resignation of Mr. Hill, and on the same day Mr. Reiter was quali- fied and entered upon the duties of his office. At the following April election John H. Durrell, was elected mayor of the village of Pleasant Ridge, and in due time gave bond, qualified, and demanded the office, but Mr. Reiter refused to sur- render the office to him, and claimed that the election for mayor held in April, was not authorized by law, as the election occurred, as he claimed, less than thirty days after the vacancy. Thereupon Mr. Durrell filed his petition in quo warranto in the circuit court of Hamilton county, to oust Mr. Reiter from the office of mayor. Upon the above facts the Circuit Court found in favor of Mr. Durrell, ousted Mr, Reiter and ordered Mr. Durrell to be inducted into the office of mayor; to all of which Mr. Reiter excepted, and filed his petition in this court to reverse the judgment of the Cir- cuit Court. BuRKET, J. Section 1754 of the Revised Statutes provides as follows : "In case of the death, resignation, disability, or other vacation of his office, the council may, by a vote of a majority of all the mem- bers elected, appoint some suitable person within the corpora- tion to act as mayor, and discharge the duties of the office until the vacancy is filled, or the disability removed : Provided, that at the next annual municipal election occurring more than thirty days after such vacancy, a mayor shall be elected for any unex- pired term, unless the disability is of a temporary character." The election was held on the third day of April, 1893. If a vacancy in the office occurred on the first day of March, then the April election occurred more than thirty days after such vacancy, and the election of Mr. Durrell was valid ; but if the vacancy did not occur until the resignation was accepted on the 7th of March, REITER V. STATE. 251 then the vacancy occurred less than thirty days before the April election, and in such case the election of Mr. Durrell would be void. The date at which the vacancy occurred depends upon the ques- tion whether the delivery of the resignation to the council to take effect March 1st, caused a vacancy on that day, or whether the vacancy occurred upon the acceptance of the resignation on the 7th day of March. It seems to be well settled in England and at common law, that a resignation of an office does not take effect, so as to create a vacancy, until accepted by the proper authority. Hoke V. Henderson, 4 Deveraux (N. C.) 29; Bex v. Mayor of Rip- pan, 1 Lord Raym. 563 ; Beg. v. Lane, 2 Lord Raym. 1304 ; Ed- wards V. United States, 103 U. S. 471; State v. Clayton, 27 Kan. 442; State ex rel. Beeves v. Ferguson, 31 N. J. L. 107; City of Waycross v. Youmans, 85 Ga. 708; State ex rel. v. Boecker, 56 Mo. 19 ; Badger v. U. 8. ex rel. 93 U. S. 599 ; People v. Sup. Bar- nett Tp., 100 111. 332; Jones v. City of Jefferson, 6 Tex. 576. The common law prevails in this state in so far as it is fairly applicable to our institutions and manner of living, unless abro- gated or modified by statute. So that the real question in this case is, whether the common law rule as to resignations shall gov- ern in this state, or whether that rule has been abrogated by our legislation, or is inconsistent with out institutions. That there is no statute expressly changing the common law in this respect seems clear; but it seems difficult, if not impossible, to reconcile our various statutes with the common law rule. The doctrine of the common law is that an officer has not the absolute right at his own pleasure to resign his office; that the public is interested as well as the individual incumbent; that an acceptance is necessary to perfect a resignation; and that the public have a right to com- mand the services of any citizen in any official position which they may designate. This common law doctrine seems inconsistent with out statutes as well as with our practical treatment of official positions. By the statutes ... a clear intention is evinced that accept- ance shall not be necessary to the validity of a resignation, except as to members of the general assembly, and persons appointed to certain positions of trust, and these exceptions only tend to make more clear the intention. These statutes also show that office hold- ing is not regarded as compulsory in this state. It is, therefore, clear that the common law rule as to the acceptance of resignations 252 TERMINATION OF THE OFFICIAL RELATION. has been abrogated in Ohio, to the extent at least of authorizing the filling of the vacancy. In many states, it is held that a resignation of an officer takes effect at once without acceptance by any one, and that the hold- ing of office is not compulsory. This is said to be the modem doc- trine on this subject. U. S. v. Wright, 1 McLean 509 ; McCreary on Elections, sec. 270 ; People v. Porter, 6 Cal. 26 ; State v. Clarke, 3 Nev. 566 ; Olmstead v. Dennis, 77 N. Y. 378 ; State v. Mayor, 4 Neb. 260; Bunting v. Willis, 27 Gratt. 144; S. C. 21 Am. R. 338; State V. Hauss, 43 Ind. 105; Gilbert v. Luce, 11 Barb. (N. Y.) 91; Leech v. State, 78 Ind. 570. TJie policy of the state, as shown by our statutes, favors the filling of vacancies in office by election as soon after a vacancy occurs as is consistent with proper care and consideration on part of the public. A proper regard for the rights of the people requires that it shall not be in the power of any officer, or body of men, to refuse to accept a resignation, and thereby prevent an election at the proper time to fill the vacancy. Such power, if conceded to exist, might tempt a partisan officer to delay the ac- ceptance of a resignation until too late to fill the vacancy at the succeeding election, and thereby lengthen by one year the term of office of his own appointee. More harm is to be feared from this source, than from hiatus in office, an event not likely to occur in this state where men able and willing to fill office are so numer- ous. The responsibility of a hiatus in office, should rest upon the person or body holding the appointing power, rather than upon the resigning officer. If the appointing power properly performs its official duties, no harm is to be feared from a hiatus in office. It is, therefore, clear, on principles of public policy, as well as a proper construction of our statutes, that acceptance is not neces- sary to the validity of a resignation, in so far at least as to author- ize the filling of the vacancy ; and that the resignation in question in this case took effect on the first day of March, 1893, so as to create a vacancy which could be lawfully filled at the following April election. What the rights of the public, or the duties of the resigning officer, may be for the protection of public interests and property from the date of the resignation to the filling of the vacancy, is not involved in this case, and need not now be decided. Should WARDLAW V. MAYOR OF NEW YORK. 253 any danger be apprehended from that source, the proper remedy can be supplied by the law-making power. The judgment of the Circuit Court is Affirmed. MARY A. WARDLAW, AS ADMINISTRATRIX, RESPOND- ENT, V. THE MAYOR, ALDERMEN, AND COMMONALTY OF THE CITY OF NEW YORK, APPELLANT. Court of Appeals of New York. February, 1893. 137 N. Y. 194. O'Brien, J. The plaintiff's intestate was, on the first day of June, 1885, appointed assistant engineer in the department of pub- lic works of the city of New York. The salary of the place was fixed at $1,500 per year, which, on January 1, 1886, was in- creased to $1,800. He was paid the stipulated salary up to July 23, 1886, when the commissioner of public works addressed to him a communication in writing as follows: ' ' Notice of suspension as assistant engineer in the department of public works is hereby served on you, the same to take effect on and after July 31, 1886. ' ' The recovery in this case was for the salary subsequent to this date, and to January 30, 1890, on which last-named date the commissioner addressed to him another com- munication in writing as follows: "Sir: — ^Understanding from the counsel to the corporation that you claim to he still in the employ of the department as an assist- ant engineer, and, without admitting the fact to be so, I desire to set at rest all doubt on that point by discharging you from and after this date, which I hereby do." The original plaintiff died while the action was pending and the present plaintiff, his widow and administratrix, was substituted. The commissioner had power to discharge assistant engineers in the department at pleasure and the plaintiff's contention is that this conceded power was not exercised as to her intestate, until he received the last communication. It does not follow that be- cause the commissioner in his first letter used the term ''sus- pended" instead of ''discharged" that he did not intend to ter- minate the employment as assistant engineer and to create a vacancy in the office if it be one, nor does it follow that Wardlaw 254 TERMINATION OP THE OFFICIAL RELATION. did not understand from this communication that his services were no longer required as an assistant engineer. He used the word suspended in the first letter and after being informed that there was a claim made that a dismissal was not thereby accomplished he used the word discharged in the second. If, however, Wardlaw understood from the first letter that his services were no longer required as an assistant engineer and that compensation was no longer to be paid to him in that capacity and that such was the purpose of this notice from the commissioner and both parties acted accordingly, then the first notice operated to terminate the employment, though it was called a suspension instead of a dismissal. . . An officer suspended from the performance of the duties of his office by the appointing power, but not removed, is entitled to the salary of the office during the period of the suspension.' {Fitzsimmons v. City of Brooklyn, 102 N. Y. 536; Emmett v. Mayor, etc., 128 id. 4.17; Gregory v. Mayor, etc., 113 id 416; Lethbridge v. Mayor, 133 id. 232.) But the suspended officer may waive that right by express agree- ment or by conduct from which such an agreement or intention on his part may be fairly and reasonably inferred. When he accepts other employment from the appointing or removing power at larger compensation, the inference that there was an inten- tion on his part to abandon the first position would seem to be ' strong, but even though the compensation in the new position be less, it might still be a question of fact whether he intended to abandon a position from which he could at any time be removed for another that promised more permanent employment, or at least was quite as certain in its tenure of duration. All concur. Judgment affirmed. Compare Gregory v. Mayer, 113 N, Y. 416, inlra. The official relation Is terminated also by the loss by the incumbent of an office of the qualifica- tions for the office. Oliver v. The Mayor, 63 N. J. L. 634, supra. RICH V. JOCHIM. 255 III. Removal prom Office. 1. Power of Legislature. ATTORNEY GENERAL EX REL. RICH V. JOCHIM. Supreme Court of Michigan. January, 1894. 99 Michigan 358. Hooker, J. By Constitution (art. 8, sec. 4), and by statute (How. Stat., sec. 202), the Board of State Canvassers is made to consist of the Secretary of State, State Treasurer, and Com- missioner of the State Land Office. It is the duty of this board to canvass the returns from the various counties of the state, and declare the result, of elections for State officers and upon con- stitutional amendments. At the spring election in the year 1893 four amendments to the Constitution were voted upon by the elec- tors of the State, one of which provided for an increase of the salaries of several of the state officers, including the Secretary of State and the Commissioner of the State Land Office. These amendments were, by the Board of Canvassers, declared carried. Subsequently, the returns were recanvassed by the board, in obedi- ence to a writ of mandamus issued by this court, when it was found and declared that the amendment relating to salaries was de- feated. Proceedings were then taken by the Governor, which cul- minated in an order by him removing each of said officers from his office, and declaring the same vacant; and, respondents refus- ing to surrender their said offices, information in the nature of quo warranto were filed in the name of the Attorney General upon the relation of the Governor, to try their right to such offices. This is the proceeding against the Secretary of State. The questions in the case are raised by the replication and the demurrer of respondent thereto. In answer to the plea, which asserts respondent's election and accession to the office of Secre- tary of State, the replication sets up in detail the facts upon which the relator's claim is based, viz. ; That relator was the duly elected and acting Governor of this State; that, as such, it became and was his duty, under section 8 of article 12 of the Constitution, to inquire into the condition and administration of the office of Secretary of State, and the manner in which respondent performed the duties of such office, for the purpose of determining whether said respondent had been guilty of gross neglect of duty in rela- 256 TERMINATION OP THE OFFICIAL RELATION. tion to his duties as a member of the Board of State Canvassers, and to remove respondent from said office for gross neglect of duty, if he should be found guilty thereof; that, a charge of that kind having come to the knowledge of the relator, he caused writ- ten notice to be served upon the respondent, which notice required him to appear before the relator, and show cause why he should not be removed from his office of Secretarj^ of State for gross neglect of duty in connection with the canvass of the returns in relation to said amendment relating to the salaries of State offi- cers, such notice containing specific charges of neglect. The replication further alleges that the respondent appeared by counsel before relator, and moved to vacate the notice and dis- miss the charges. ... It is further alleged that the motion was denied ; that evidence was introduced in support of the infor- mation. The replication further states that no evidence was offered upon the part of the respondent ; that an order adjudging respondent guilty, and removing him from his said office, was thereupon made, and duly served upon said respondent, upon the 19th day of Feb- ruary, 1894. As stated, a demurrer to this replication was filed. The important questions presented by this record are (1) the power of the Governor to remove respondent; (2) the sufficiency of the cause alleged. The jurisdiction of this Court to review or pass upon the official acts of a co-ordinate branch of government was not discussed. It was referred to in brief of counsel for relator, with an express disavowal of a desire to raise the question. We shall, therefore, omit a discussion of that subject. Whatever authority the Governor has to remove respondent must be found in section 8 of article 12 of the Constitution. . . . It is contended that this section is in violation of the amend- ment of the Constitution of the United States which provides that no state shall "deprive any person of life, liberty, or property, without due process of law." Const. U. S. Amend. 14, sec. 1. ... To sustain this point it must appear (1) that the removal from office is a deprivation of the respondent of his property ; and (2) that it was sought to be accomplished without due process of law. A public office cannot be called "property,** within the mean- ing of these constitutional provisions. If it could be, it would fol- RICH V. JOCHIM. 257 low that every public officer, no matter how insignificant the office would have a vested right to hold his office until the expiration of the term. Public offices are created for the purposes of gov- ernment. They are delegations of portions of the sovereign power for the welfare of the public. They are not the subjects of con- tract, but they are agencies for the State, revocable at pleasure by the authority creating them, unless such authority be limited by the power which conferred it. The legislature may remove officers not only by abolishing the office, but by an act declaring it vacant, as was done by Act No. 140, section 13, Laws of 1891. Throop v. Langdon, 40 Mich. 673 ; Auditors v, Benoit, 20 Id. 184. And it may lodge the power to re- move from statutory offices in boards or other officers, subject to statutory regulations. And, while it cannot remove incumbents of constitutional offices, it is not because of an inherent difference in the qualities of the office, but because the power to remove is limited to the power that creates. The constitutional officer is an agent of government. There is the same lack of the ingredients of contract, and the same power to abolish the office or remove the officer by amendment of the Constitution. City Council v. Sweeney, 44 Ga. 463 ; Butler v. Pennsylvania, 10 How. 402. The fact that some eases hold that removals from office cannot, in some instances, be made, except upon cause shown, upon no- tice, specific charges, and after a hearing in its nature judicial, does not militate against this doctrine. These cases simply hold that removals are limited by the power of the people or Legislature, through the Constitution or statute; not that a vested property right is involved in the holding of office, or that removal is beyond the power which creates the office and the officer. Nor does it fol- low that removal from office is a deprivation of the officer of prop- erty, because it must be for cause, upon specific charges, and after an opportunity to be heard. Again, as all statutory offices are taken subject to legislative ac- tion, so all constitutional offices are taken subject to constitutional changes, and both are upon the terms and subject to the conditions existing by law. One of the constitutional conditions upon which the respondent took his office was that he would be subject to re- moval by the governor, under article 12, section 8. Frey v. Michie, 68 Mich. 328 ; Fuller v. Attorney General, 98 Id. 96. 17 258 TERMINATION OF THE OFFICIAL RELATION. But conceding, for the argument, that the office is a vested property right, what is the "due process of law" to which the respondent is entitled under the constitutions of this State and of the United States? Counsel contend that it can mean nothing less than a trial by the constitutional judiciary, and perhaps a jury. If so, it must be because the constitutional office differs from the statutory office, as several cases hold that removals from the latter may be made without the intervention of courts. Dullam v. Will- son, 53 Mich. 392; Clay v. Stuart, 74 Id. 415; WeUman v. Board of Police, 84 Id. 558, 91 Id. 427 ; Fuller v. Attorney General, 98 Id. 96. But this language of the constitutions means less than that. The words "due process of law," as used in the Constitu- tion (article 6, section 32), mean the law of the land, by which are to be understood laws which are general in their operation, and not special acts of legislation passed to affect the rights of particu- lar individuals against their will, and in a way which the same rights of other persons are not affected by existing law. Sears v. Cottrell, 5 Mich. 251. Due process is not necessarily judicial pro- cess. Administrative process, which has been regarded as nt^ces- sary in government, and sanctioned by long usage, is as much due process as any other. Weimer v. Bunbury, 30 Mich. 201. In this case the treasurer of the city of Niles did not collect and pay over to the county treasurer certain taxes, whereupon, in accordance with the statute, the county treasurer issued a warrant to the sheriff, commanding him to levy and collect the amount from the property of the city treasurer. It was held not to invade article 6, section 32. The federal decisions also qualify the claim of respondent 's coun- sel. From these authorities, it appears that the State is not so bound by the term "due process of law," in the Constitutions, that it is impossible for it to invest its agents with its offices without sub- jecting itself to the delays and uncertainties of strict judicial action in eases of emergency. While in many cases (and, under the decision in the case of Dullam v. WUlson, perhaps in this) the power of removal is a limited and restricted one, to be exer- cised along given lines and within prescribed formalities, as already stated, it is not by reason of an inherent right of property in the officer, bringing him within the protection of the fourteenth amend- ment, but because of the limitations of the law. The Michigan RICH V. JOCHIM. 259 eases already cited settle for this State the authority of the Gov- ernor, under the Constitution. It is said, however, that the Governor, in this case, made his own charges and employed his own counsel, and is therefore to sit as judge in his own case. One of the duties of the Governor under section 8, article 12, is to investigate the State offices. He is given inquisitorial power, that he may ascertain their condition, for the public welfare. No other means is provided for acquiring the necessary information The law does not require a complainant, nor prevent the Governor from committing the inter- ests of the State to competent lawyers, official or otherwise. Fin- ally, the Governor acts judicially upon the accumulated evidence, and sucK explanations by way of defence as the respondent may offer. In this respect this action is similar to that discussed in Fuller v. Attorney General, which discussion it is unnecessary to repeat. We come next to the charges. It is contended that they are in- sufficient because the act is not alleged to have been intentional, and because it was not gross neglect to permit an erroneous canvass by clerks. The only duties of the Board of State Canvassers are to can- vass the returns, and determine and certify the result, of elections. Theirs is the culminating act of the army of persons who have had to do with the receiving and counting, recording and transmitting of the votes which signify the will of the people. Section 202 of Howell 's Statutes makes it the duty of these officers to attend, and form the Board of State Canvassers. Their duties are specifically pointed out. The times when they are to meet are provided by law. No provision is made for deputies or clerks, but all go to show that this important duty is to be performed by them in person, as the certificate signed' by them asserts. It is not confided to inferior officials, but to three of the State officers of greatest dignity and importance. It appears to have been the design of the lawmakers to place the votes of the people in the keeping of the most re- sponsible officers of the state; and no argument ought to be nec- essary to show that it was not expected that the returns would, upon their arrival, be turned over to an irresponsible clerk in the Secretary's office having no official relation to the canvass, whose tabulation should be the canvass, and that the mere signing of their three names to his production should constitute a full compliance 260 TERMINATION OP THE OFFICIAL HBLATIOK. on the part of these oflScers with the law prescribing the duties of the State canvassers. Section 207 requires an examination by the board of the several statements of the votes, and that they make a statement of the whole number of votes cast for each office, while section 209 makes it their duty to certify such statements to be correct. A mere failure to certify could be called "neglect." What shall be said of it when the certificate is made without knowledge of, or any attempt to ascertain the fact? An officer is elected for two years. Who shall count and keep the money of the State, or keep its great seal for two years, is not a matter of vital importance; but an amendment of the Constitution changes, perhaps for all time, the fundamental law, releasing or reclaiming by the people some right or power over the Legislature and of- ficers, the consequence of which may be stupendous. In the pres- ent instance, it was a matter of money, — several thousand dol- lars a year; and, while many may feel that the defeat of this amendment was unfortunate, it is vastly more unfortunate to have the will of the people thwarted, though it be the result of care- lessness only, or neglect on the part of the board to perform th4f only duty imposed upon them by law. Looking at the circumstances from his official standpoint, the Governor may well have said this, though not willful, was only possible by reason of the grossest neglect of official duty. It certainly was some one's duty to move at once with a view to the correction of the error, and the pre- vention of its recurrence. While there is an inclination upon the part of the average American to accept good intentions as an excuse for mistakes, it is not for the general public good that responsible public offices shall be confided or remain in the custody of those whose duties and responsibilities rest so lightly upon them as to permit the public interests to be injured or endangered through neglect; and when such neglect, from the gravity of the case* or the frequency of the instances, becomes so serious in its character as to endanger or threaten the public welfare, it is gross, within the meaning of the law, and justifies the ^interference of the executive, upon whom is placed by this amendment, the responsibility of keep- ing the affairs of State in a proper condition. We cannot think that the term "gross neglect" means any intentional official wrongdoing. Such acts would hardly be described by the word "neglect." It is said that this section confides great power to th*i Gover- STATE EX REL. REDPIELD V. CHATBURN. 261 nor. This is true; but the governorship is an exalted office, — one which ought to carry with it a presumption of integrity of character and breadth of mind commensurate to its importance. It would be a sad commentary upon free government if it were otherwise. But the powers of the Governor are carefully re- stricted, and there is no occasion to pursue the elusive phantoms of possibility. When abuses arise, they will doubtless be speedily and effectively met. The demurrer must be overruled, and judgment of ouster en- tered against the respondent. The other Justices concurred. The power of removal is not a part of the executive power granted to a state governor by the state constitution. The governor may not therefore remove, even an officer whom he has appointed with the consent of the sen- ate, unless provision for such removal is made in the constitution or the statutes. Field v. People, 3 111. 79. This rule is not however applied to the President of the United States who may remove an officer appointed by him with the consent of the senate even though such officer has a term fixed by statute. Parsons v. United States, 167 U. S. 324; Shurtleff v. Unit- ed States, 189 U. S. 311. 2. In Absence of Legislative Provision. STATE EX REL. HEDFIELD V. CHATBURN. Supreme Court of Iowa. June, 1884. 63 Iowa 659. This action was brought under the provision of chapter 6, title 20, of the Code, to test the right of defendant to hold and exer- cise the office of sheriff of Shelby county. It is alleged in the petition that Redfield, the relator, was, on the twenty-sixth of December, 1882, duly and legally appointed sheriff of said county, to fill the vacancy in said office, occasioned by the death of H. W. Patterson, who, at the time of his death, was the legally elected and qualified sheriff of said county, and that on the sixth day of June, 1883, the defendant unlawfully entered into and usurped said office, and continues, without any legal warrant, to exercise the same, by serving and executing the writs, processes and orders of the courts of said county, and by receiving 262 TEEMINATION OP THE OFFICIAL RELATION. the profits and emoluments of said office. And the prayer is that he be required to show by what warrant or authority he assumes to hold said office, and that he be ousted and excluded therefrom. The answer of the defendant admits that a vacancy occurred in said office by the death of said Patterson, and that the board of supervisors of the county, at the time named in the petition, ap- pointed said Redfield to the office, and that he duly qualified. But it avers that the board of supervisors, on the sixth day of June, 1883, as they had the legal right to do, removed said Redfield from said office, and appointed defendant thereto ; that he was duly qualified that he entered upon and continues to discharge the duties of said office by virtue of such appointment. Reed, J. The board of supervisors adopted the order for the removal of the relator from the office, without any formal charge or complaint having been preferred against him. It does not appear that he had any notice of the proceeding until after the or- der was adopted, nor does it appear upon what ground or for what cause the board assumed to remove him. We will assume, then, that the board proceeded upon the theory that they had the power and right to remove him from the office at their pleasure. Indeed, the claim here urged in support of their action is that, having appointed him to the office, the power to remove him therefrom at their pleasure is conferred upon the board by section 787 of the Code. The section is as follows: *'A person appointed as herein contemplated may be removed by the officer appointing. And no person can be appointed who has been removed from office within one year." It occurs in the chapter of the Code which relates to vacancies in civil offices, and to the manner in which such vacancies are to be filled. It is provided in the preceding sections of the chapter, that an office becomes vacant on the happening of either one of a number of enumerated events, before the expiration of the term of such office, and that vacancies in any of the county offices are to be filled by the board of supervisors. Whatever powers, then, are conferred by the section with reference to the removal from office of a person who has been appointed to fill a vacancy in the office of sheriff, are to be exercised by the board of supervisors. The single question presented by the record is, whether the board had the power to remove the relator from the office in the STATE EX REL. REDFIELD V, CHATBURN. 263 manner in which they attempted to remove him; and we have to say that in our opinion they possessed no such power. The tenure of ofiSce of persons appointed to fill vacancies in office is prescribed and defined by section 6 of article 11 of the consti- tution of the state. This section is as follows: "In all cases of election to fill vacancies in office occurring before the expiration of a full term, the person so elected shall hold for the residue of the unexpired term, and all persons appointed to fill vacancies in office shall hold until the next general election, and until their successors are elected and qualified." It seems to us that there can be no doubt or dispute as to the meaning and effect of this language. The section explicitly defines and describes the term of office of a person who is appointed to fill a vacancy in an office. When the relator was appointed to fill the vacancy occasioned by the death of Patterson, the term of office which he took by virtue of such appointment extended to the time of the general election in the year 1883, and until the election and qualification of his successor. The board had no power to appoint for a term either longer or shorter than that. Their only power in the premises was to fill the vacancy. Section 783. But, when the appointment was made, the term of office of the appointee was prescribed by this section of the constitution, and he acquired the right to hold and exercise the office and enjoy its emoluments during the whole of such term. The language of the section that "he shall hold until the next general election," excludes the idea that his term of office can be made to depend upon the will or pleasure of those who appointed him to it. It imports rather that he holds the office by a certain title, and for a definite term. It is not doubted that he accepted the office subject to the right of the state to have him removed for any of the causes which by law are made grounds for the removal from office of a public officer. But these causes for removal are all defined by statute. Section 746. As it is not claimed that the removal was made for any of the causes enumerated in said section, we need not inquire whether the board of supervisors have power to remove him for those causes. "We are well satisfied that they had no power to remove him at them mere pleasure ; and, as this is the only ground on which they^^umed to make the order of removal, it is void. The judgment of the district court is therefore, ./. Affirmed. 264 TERMINATION OF THE OFFICIAL RELATION. EX PARTE CHARLES LEHMAN. Supreme Court of Mississippi. April, 1883. 60 Mississippi 967. Chalmers, J., delivered the opinion of the court. The order of the court, for disregarding which the relator was imprisoned as for a contempt, was unmistakably an order of re- moval or suspension from office. It was so treated and regarded by the judge who made it and by the officer who disobeyed it, and such it plainly was. If there exists under any circumstances power in the circuit courts of this State to remove or suspend from office the clerks of these courts before conviction by a petit jury, their orders assuming to do so must be obeyed until reversed, however wrongful they may be in the particular case; since it is only where a court has undertaken to make an order which it is without jurisdiction to make in any state of the case that its commands may be disre- garded with impunity. Ex parte Wimherly, 57 Miss. 445. The question presented, therefore, is this. Can a circuit court of this State by its own order, without a trial and conviction of any offence remove, or temporarily suspend from office, for any cause whatever, the circuit clerk of a county? We have no hesitation in answering this question in the nega- tive — circuit clerks with us are constitutional officers elected by the people for fixed terms of office. By sect. 26 of Art. VI. of the Constitution they are made amenable to indictment or prosecution by a grand jury, and trial by a petit jury for willful neglect of duty or misdemeanor in office, and are to be removed from office when convicted; and this constitutional clause is put in operation and made more effective by sect. 417 of the Code of 1880, which makes it the duty of the court, upon conviction, to adjudge that the party be removed from office, and provides that the vacancy shall be filled as in other cases.. Plainly these constitutional and statute methods of removal are exclusive of all others. The Legislature has not attempted in any portion of our statute laws to provide for the suspension from office of any officer after indictment and pending trial for a criminal offence or a misdemeanor in office. Such a law, if enacted, and if it operated as a practical removal from office before con- viction, would be of doubtful constitutionality, since it would give EX PARTE CHAELES LEHMAN. 265 to an indictment that effect which the Constitution attaches to conviction only, and inflict punishment before trial. The validity of such a statute was upheld in Allen v. The State, 32 Ark. 241, but repudiated in Lowe v. The Commonwealth, 4 Mete. (Ky.) 241 ; Bunn v. Grove, 6 Bush, 3. Certainly in the absence of legislation no such power can reside in the circuit court. It is true that the clerk is in many respects the arm of the court, the instrument by which it evidences its will and perpetuates a memorial of its proceedings, but he is an arm created and an instrument furnished by the common master of both, who has provided the appropriate and exclusive method by which each shall be dismissed from his service, and it is no more within the power of the judge to remove the clerk in violation of that method than it is within the power of the clerk to remove the judge. The circumstances of the present case seem to have presented in their inception a plausible excuse for the action taken by the circuit judge, or, at least, to demonstrate that his action was prompted by the desire to protect the public interests. Four in- dictments, for falsifying the records of the court by issuing forged witness certificates in State cases for the corrupt and felonious purpose of defrauding the county had already been presented by the grand jury against the clerk, and while this proceeding by habeas corpus was pending in the court below nine more in- dictments for similar offenses were brought in. The clerk was in the official possession of these indictments and of all the evidences by which the State proposed to establish his guilt; but he offered to turn these over to the custody of the appointee of the court, and to yield possession of the office itself so far as to permit its duties in relation to the indictments against himself to be dis- charged by another. The court declined to modify its order in the manner suggested and insisted upon his unconditional obedience to the order as entered ; by which order he was peremptorily removed or suspended from every function and privilege of the office, deprived of all its emoluments, and another person was appointed in his stead. This order is sought to be upheld by sect. 2279 of the Code, which authorizes, the appointing of a clerk or sheriff pro tempore when there is a vacancy in the office, or the incumbent is absent or unable to or refuses to discharge the duties of the position ; but it is manifest that the section has no application to the facts here 266 TERMINATION OF THE OFFICIAL RELATION. existing. The clerk here was not absent nor did he refuse nor was he unable to discharge the duties of the position, and how- ever unfit he might be morally to occupy such a place this was a question for the voters of the county and not for the judge. If convicted the law removes him; if acquitted, even upon the doctrine of reasonable doubt, he must remain in oflSce until the expiration of his term. The utmost power of the court was to take care that he should not use his official position to obstruct his own trial or to remove the evidence of his guilt, and with this view its order should have been modified in the manner suggested by the relator. It may be troublesome properly to execute such an order, but while no trouble is too great to insure justice and the infliction of proper punishment, it is better that the greatest criminal should go unpunished than that the Constitution should be violated by those whose first and highest duty is to guard and protect it. If it need citation of authorities to show that no court can re- move or suspend a constitutional officer save after conviction of an offence which authorizes it, it is found in many cases and de- nied by none. Eyde v. The State, 52 Mass. 675 ; Page v. Hardin, 8 B. Mon. 673; Newson v. Cock, 44 Miss. 362; Lowry v. Tullis, 32 Miss. 147; Honey v. Graham, 89 Tex. 11; Cury v. Stewart, 8 Bush, 563. Our conclusion is that, inasmuch as there is no state of facts which will make valid an order of removal before conviction, the relator was not guilty of contempt in disregarding the order made in this case. Wherefore, the judgment of the court below is re- versed and the relator discharged. THE STATE EX REL. ATTORNEY-GENERAL V. SAVAGE. Supreme Court of Alabama. November, 1889. 89 Ala. 1. Clopton, J. This case, which is an impeachment proceeding against R. R. Savage, judge of probate of Cherokee county, insti- tuted in this court, is submitted on a motion to quash the informa- tion on the fourth, fifth, ninth and tenth grounds, and on a de- murrer to the other grounds. ATTORNEY GENERAL V. SAVAGE. 267 In respect to the impeaeliinent of public officers, a jurisdiction not theretofore existing is created by the Constitution and stat- utes, and~the mode of its exercise provided, to which the proceeding must substantially conform. Section 4840 of Code 1886 provides : * ' It shall be the duty of the Attorney-General to institute proceed- ings under this chapter, and prosecute the same against any of- ficer included in section two, article seven of the Constitution [which includes judges of probate] , when the Supreme Court shall so order, or when the Governor shall, in writing, direct the same, or when it appears from the report of any grand jury that any such officer ought to be removed from office, for any cause men- tioned in the first section of this chapter." The causes mentioned are: "Willful neglect of duty, corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpi- tude, while in office, or committed under color thereof, or connected therewith." Section 4818. Whether such proceedings shall be instituted is not rested on the discretion of the Attorney-General; authorization in one of the statutory modes is essential to uphold the proceeding. The present information purports to be founded on the report of a grand jury. The fourth and fifth objections are substantially the same, though varied in form; namely, it does not appear that the al- leged report was made by a grand jury of Cherokee county to the Circuit Court for that county. The information recites that the proceeding is instituted on the report of a duly organized grand jury of Cherokee county; that it was made in the Circiut Court for the July term, 1889, and entered on the minutes of the court, and that a certified copy which accompanies the information, was transmitted to the Attorney-General. When the information re- fers to the report of a grand jury, and is accompanied by it, as the authorization, this is prima facie sufficient to uphold the proceed- ing without the contents being specifically set forth in the infor- mation itself. The ninth and tenth grounds of the motion are, that the facts constituting the misconduct with which the defendant is charged are not set forth in the report of the grand jury, as required by the statute. Section 4839 of the Code declares: "It shall be the duty of every grand jury to investigate and make diligent in- quiry concerning any alleged misconduct or incompetency of any public officer in the county, which may be brought to their notice ; and if, on such investigation and inquiry, they find that such of- 268 TERMINATION OP THE OFFICIAL RELATION. ficer, for any cause mentioned in this chapter, ought to be removed from office, they shall so report to the court, setting forth the facts, which shall be entered on the minutes. ' ' It was held in State V. Sewell, 64 Ala. 235, that setting forth the facts in the report is essential to the authority of the prosecuting officer to institute such proceeding; and though the facts need not be set forth with the accuracy usually required in pleading, unless the report sus- tains a succinct statement, showing the nature and description of the acts of the official misconduct charged, it is insufficient to uphold the proceedings. In that case, the defendant was charged with extortion and corruption in office, which are conclusions of law from facts which may differ in different cases. The report of the grand jury on which the present information is based, is as follows: "In the discharge of our duties as a grand jury, we find, and do hereby report, that R. R. Savage, judge of probate in and for the county of Cherokee, ought to be impeached and re- moved from such office, for and on account of his habitual drunken- ness while in such office, prior to and down to the time of making this report." No greater fulness of description of the acts, and less accuracy of statement, is required in such report, than in an indictment. The motion is overruled as to fourth, fifth, ninth and tenth grounds, and the demurrer to the other grounds is sustained. 3. Incident to Power of Appointment. EX PARTE, IN THE MATTER OF HENNEN. Supreme Court of the United States. January, 1839. 13 Peters 230. Mr. 'Justice Thompson delivered the opinion of the court. This is an application for a rule upon the Honorable Philip K. Lawrence, Judge of the District Court of the United States for the eastern district of Louisiana, to show cause why a mnn- damus should not be issued against him, requiring him to show cause why he should not restore Duncan H. Hennen to the office of clerk of the said district court. EX PARTE IN THE MATTER OF HENNEN. 269 The petition sets forth that the petitioner, Duncan H. Hennen, on the 21st day of February, in the year 1834, was duly appointed clerk of the said court, by the Honorable Samuel H. Harper, judge of the said court. That ^ commission was duly issued under the hand and seal of the judge. That he accepted the appointment, and gave the bond with sureties required by law, and thereupon entered upon the duties of the ofiSce, and continued to discharge the same methodically, skillfully and uprightly, and to the satis- faction of the District Court. That by virtue of said appointment, and of the provisions of the statute in such case made and pro- vided, he was from the period of the organization of the circuit court of the United States for the said district of Louisiana, in like manner the clerk of said circuit court ; and performed all the duties of said oflfice. That he continued to perform the said duties, and receive the emoluments, and in all respects to hold and occupy said offices, until on or about the 18th day of May, in the year 1838, when he received a communication from the Hon- orable Philip K. Lawrence, then and now the judge of the said district court of the United States, for the said eastern district of Louisiana, apprizing him of his removal from the said office of clerk, and the appointment of John Winthrop in his place. And in this communication he states, unreservedly, that the business of the office for the last two years has been conducted promptly, skilfully, and uprightly, and that, in appointing Mr. Winthrop to succeed him, he had been actuated purely by a sense of duty and feelings of kindness towards one whom he had long known, and between whom and himself the closest friendship had ever sub- sisted. And that, as his capacity to fill the office cannot be ques- tioned, he felt that he was not exercising any unjust preference, in bestowing on him the appointment. The petition further states that Judge Lawrence did, on or about the 18th day of May, in the year 1838, execute and deliver to the said John Winthrop a com- mission or appointment, as clerk of the said district court for the eastern district of Louisiana; and that he does to a certain extent execute the duties appertaining to the said office, and is recognized by the said judge as the only legal clerk of the said district court. The petition further states, that on or about the 21st day of May, in the year 1838, the circuit court of the United States for the eastern district of Louisiana, met according to law; when the Honorable John McKinley, one of the associate justices of the 270 TERMINATION OP THE OFFICIAL RELATION. Supreme Court of the United States, and the said Judge Law- rence, appeared as judges of the said circuit court, and that the petitioner and John Winthrop severally presented themselves, each claiming to be rightfully and lawfully the clerk of the said cir- cuit court; that the judges differed in opinion upon the said ques- tion of right, and being unable to concur in opinion, neither of said parties was admitted to act as clerk, or recognized by the court as being rightful clerk; and no business was or could be transacted, and the court adjourned. The petitioner claims that he was legally and in due form ap- iwinted clerk of said district court; and by virtue of said ap- pointment became lawfully clerk of said circuit court. And that he has never resigned the said offices, or been legally removed from the same, or either of them. But that he is illegally kept out of the said office of clerk of the said district court, by the illegal acts and conduct of the said Philip K. Lawrence, judge as afore- said, and the said John Winthrop, claiming to hold said office under an appointment from the said Judge Lawrence ; which he is advised and believes is illegal and void. And prays that the court will award a writ of mandamus, directed to the said judge of the said district court, commanding him forthwith to restore the peti- tioner to the office of clerk of the said district court for the eastern district of Louisiana. The district judge has appeared by counsel to oppose this mo- tion, and the facts set out in the petition have not been denied. And the quesfion presented to the court is, whether the petitioner has shown enough to entitle him to a rule to show cause why a mandamus should not issue. If he has been legally removed from the office of clerk, there are no grounds upon which the said motion can be sustained. By the Constitution of the United States, art. 2, sec. 2, it is pro- vided that the President shall nominate, and by and with the advice and consent of the Senate, shall appoint certain officers therein designated, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they shall think proper, in the President alone, in the courts of law, or in the heads of departments. The appointing power here designated in the latter part of the section was no doubt intended to be exercised by the department of the government to which the officer to be ap- EX PARTE IN THE MATTER OF HENNEN. 271 pointed most appropriately belonged. The appointment of clerks of court properly belongs to the courts of law ; and that a clerk is one of the inferior officers contemplated by this provision in the Constitution cannot be questioned. Congress, in the exercise of the power here given, by the act of the 24th of September, 1789, es- tablishing the judicial courts of the United States, 1 Story's Laws, U. S. 56, s. 7, declares that the Supreme Court, and the district courts shall have power to appoint clerks of their respective courts ; and that the clerk for each district court shall be clerk also of the circuit court in such district. Such then being the situation in which the petitioner stood prior to the 21st of May, 1838, the question arises whether the district judge had power to remove him, and appoint another clerk in his place. The Constitution is silent with respect to the power of removal from office, where the tenure is not fixed. It provides, that the judges, both of the supreme and inferior courts, shall hold their offices during good behavior. But no tenure is fixed for the office of clerks. Congress has by law limited the tenure of certain of- ficers to the term of four years, 3 Story, 1790; but expressly providing that the officer shall, within that term, be removable at pleasure; which of course, is, without requiring any cause for such removal. The clerks of courts are not included within this law, and there is no express limitation in the Constitution, or laws of Congress, upon the tenure of the office. All offices, the tenure of which is not fixed by the Constitution or limited by law, must be held either during good behavior, or (which is the same thing in contemplation of law) during the life of the incumbent; or must be held at the will and discre- tion of some department of the government, and subject to re- moval at pleasure. It cannot, for a moment, be admitted, that it was the intention of the Constitution, that those offices which are denominated in- ferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made. In the absence of all constitutional provision, or statutory regulation, it would seem to be a sound and necessary rule, to consider the power of removal as incident to the power of appointment. In all . . . departments power is given to the secretary 272 TERMINATION OP THE OFFICIAL RELATION. to appoint all necessary clerks j 1 Story, 48; and although no power to remove is expressly given, yet there can be no doubt, that these clerks hold their office at the will and discretion of the head of the department. It would be a most extraordinary con- struction of the law, that all of these offices were to be held during life, which must inevitably follow, unless the incumbent was re- movable at the discretion of the head of the department: the President has certainly no power to remove. These clerks fall under that class of inferior officers, the appointment of which the Constitution authorizes Congress to vest in the head of the department. The same rule, as to the power of removal, must be applied to offices where the appointment is vested in the Presi- dent alone. The nature of the power, and the control over the officer appointed, does not at all depend on the source from which it emanates. The execution of the power depends upon the au- thority of law, and not upon the agent who is to administer it. And the Constitution has authorized Congress in certain cases to vest this power in the President alone, in the courts of law, or in the heads of departments ; and all inferior officers appointed under each, by authority of law, must hold their office at the discretion of the appointing power. Such is the settled usage and practical construction of the Constitution and laws, under which these of- fices are held. And the same rule has governed the decisions of the state courts in this country, whenever the power of appointment and tenure of office has been drawn into discussion. The questions have been governed by the constructions given to the constitution and laws of the state where they arose. The law giving the district courts the power of appointing their own clerks, does not prescribe any form in which this shall be done. The petitioner alleges that he has heard and believes that Judge Lawrence did, on the 18th day of May, 1838, execute and deliver to John Winthrop, a commission or appointment as clerk of the district court of the eastern district of Louisiana, and that he entered upon the duties of the office, and was recognized by the judge as the only legal clerk of the district court. And in addition to this, notice was given by the judge to the petitioner, of his removal from the office of clerk, and the appointment of Winthrop in his place; all which was amply sufficient, if the IN THE MATTER OF GUDEN. 273 office was held at the discretion of the court. The power vested in the court was a continuing power; and the mere appointment of a successor would, per se, be a removal of the prior incumbent so far at least as his rights were concerned. How far the rights of third persons may be affected is unnecessary now to consider. There could not be two clerks at the same time. The offices would be inconsistent with each other, and could not stand together. If the power to appoint a clerk was vested exclusively in the district court, and the office was held at the discretion of the court, as we think it was; then this court can have no control over the appointment or removal, or entertain any inquiry into the grounds of removal. If the judge is chargeable with any abuse of his power, this is not the tribunal to which he is amenable ; and we have no right to judge upon this matter, or power to afford redress if any is required, we abstain from expressing any opinion upon that part of the case. The motion is accordingly denied. 4. Removal for Cause. IN THE MATTER OF GUDEN. Court of Appeals of New York. June, 1902. 171 N. Y. 529. Charles Guden, the petitioner, was elected sheriff of Kings county at the election in 1901, and thereafter duly qualified and took office. Subsequently, charges having been preferred against him, alleging acts of misconduct committed prior to his election, the governor, after a hearing, ordered his removal from office, and appointed Norman S. Dike, in his stead, who, acting under his certificate of appointment, took possession of certain books and papers appertaining to the office of sheriff. The petitioner, asserting that his removal was violative of the provisions of the state constitution, and so, ineffective, instituted this proceeding. Parker, Ch J. • •••■••••• 18 274 TEEMINATION OF THE OFFICIAL RELATION'. The power of removal ... in this state . . . has been invested in the governor by the people. Consti- tution, 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 reg- isters 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. If the intent of the framers of the constitution was not plainly apparent from the language of the clause, all doubt would be re- moved by an examination of the debates of the constitutional con- ventions of 1821 and 1846. Prior to the constitution of 1821 the office of sheriff had not been elective but an appointive one. Under the constitution of 1777 the appointments were made by a council consisting of the gov- ernor and one member from each of the four great senate dis- tricts of the state. The manner in which the 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 con- ferred 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 pre- vail as to the advisability of requiring notice and an opportunity to be heard before removal. The suggestion that, if the courts do not interfere, some execu- tive may proceed in disregard of those principles which courts of impeachments 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 enter- prise. Of the manner in which that power has been exercised there IN THE MATTER OP GUDEN. 275 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 1824, seems to have been of the opinion that the governor should not have an absolute and uncon- ditional power of removal that might be exercised without a suffi- cient reason, and so he proposed in due form an amendment to the section of the constitution under consideration, which should in- sert 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. But had there been large complaint concerning the exercise of the power the method of removal inbedded in the constitution niust govern until the people change it. It authorizes the governorj 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, rest 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 on grounds somewhat different from those stated in his opinion, and, briefly, my reasons are these: It is admitted on all sides that before a removal can be made the governor must acquire jurisdiction. These 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 276 TERMINATION OP THE OFFICIAL RELATION. 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 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. 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 circumstances 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 satisfaction 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. Gaby, Haight, Vann, Cullen, and Werner, JJ. (O'Brien, J., in result in memorandum), concur with Parker. Ch. J. Order affirmed. Some cases, however, hold that misconduct prior to the beginning of the existing term of office is not a ground for removal under a power to remove for cause. See e, g. Thruston v. Clark. 107 Cal. 285. See also Dullam v. Wilson, 53 Mich. 392, which holds that a bearing must be given where the power to remove may be exercised only for cause. STATE EX REL. WILLIAMS V, KENNELLY. 277 THE STATE EX REL. WILLIAMS V. KENNELLY. Supreme Court of Errors of Connecticut. July, 1903. 75 Connecticut 704. Hamersley, J. This is an information in the nature of a quo warranto, filed by the State's attorney at the relation of Charles E. Williams, charging the respondent, Patrick Kennelly, with usurping the office of director of public works of the city of Bridgeport. The information alleges that the mayor of Bridgeport, under and in pursuance of the charter of that city, on May 26th, 1900, appointed the relator director of public works for the term of four years from June 1st, 1900, that the relator duly qualified and entered upon the duties of the office, and that the respondent has since May 19th, 1902, illegally usurped and still continues to usurp said office. The answer admits the appointment of the relator on May 26th, 1900, and that the respondent now occupies and exercises said office, and alleges that he exercises said office by virtue of an appointment thereto by the mayor of Bridgeport, and further alleges the following facts, namely: The said mayor summoned the relator to appear before him on April 30th, 1902,. to answer to charges of incompetency and negligence in performing the duties of his office, and particularly, to the following charges, to wit: that he had been and still was interested in the compensation paid for stone furnished the city during his term of office by the Williams & Dewhirst Company; that he employed one Dewhirst as assist- ant and subordinate, who was interested in the compensation so paid for stone furnished by said Williams & Dewhirst Company, knowing that he was so interested; that he negligently permitted the stone so purchased of the Williams & Dewhirst Company to be furnished the city without having any representative of the city, other than an officer of said company, to supervise the measure- ment of the stone, and without any method or system by which the quality of stone so furnished could be accurately determined, and had thereby caused the city to be defrauded and damaged; that in answer to said summons the relator appeared before the mayor, with counsel, and heard and examined the witnesses who testified in support of the charges, and offered such evidence and arguments as he desired; that on May 19th, 1902, and after said hearing, the mayor found that said charges were true, and 278 TERMINATION OF THE OFFICIAL RELATION. that sufficient cause existed for the removal of the relator from office, and did therefore remove the relator from his said office; and that afterwards, and on May 19th, 1902, the mayor appointed the respondent to fill the vacancy created in the office of director of public works by said removal of the relator. The replication admits the summons and hearing as alleged in the answer, and also that after said hearing the mayor did assume to remove the relator from office, setting forth his reasons therefor as alleged in the answer, and did assume to appoint the respondent to said office as alleged; and alleges that the removal the mayor thus assumed to make is illegal and void, because, first, no evi- dence was produced on said hearing to legally substantiate the charges, and no legal cause for the relator's removal was in fact shown on said hearing; second, the mayor did not remove the relator for any legal cause whatever, but removed him solely for political reasons; third, said hearing was not a fair and lawful one because the mayor, before and after the hearing, in the ab- sence of the relator consulted with and was advised and influenced by the attorneys who represented the prosecution of said charges and the persons interested in having the relator removed for politi- cal reasons only. The respondent demurred to this replication and the trial court sustained the demurrer. The relator claims that the court erred in sustaining the demurrer, and this is the only question raised by the appeal. The charter of the city of Bridgeport as revised in 1895 (12 Special Laws, p. 515) provides, among other things, (section 32) that "the mayor of the city shall be the chief executive officer thereof, and it shall be his duty to be vigilant and active in causing the laws to be executed and enforced within the city;" and that (section 11) the common council shall consist of the mayor and twenty aldermen. Various powers and duties are as- signed to subordinate executive boards, including the board of public works, of which boards the mayor is a member and chair- man, but without the power of voting unless in case of tie. The members of each of these boards are appointed by the mayor (sections 17, 19) to hold office for a definite term, unless sooner removed for cause. Any member of these boards may be removed by the common council by a two-thirds vote, for cause (sections 17, 19). It is the duty of the mayor to fill by appointment any vacancies in offices in all cases in which he is given the power STATE EX EEL. WILLIAMS V, KENNELLY. 279 to appoint (section 32), and to perform all duties imposed upon him by the charter and ordinances of the city, the laws of the State, and of the United States. The general clause applicable to all officers appointed under the charter, limits their respective terms to their removal from office. It seems evident from the language used, in connection with other provisions of the charter, that this mode of removal does not depend on an exercise of that quasi-judicial power to hear and determine official offenses punishable by a forfeiture of office, as in the case of the amotion of a corporate officer by a municipal corporation for some offense which forfeits his right to the office, or the deprivation of an ecclesiastical corporation for a similar offense, or where an administrative board is authorized to punish in this way some misfeasance in office. Removals dependent on the conviction or quasi-eonyietion of some offense are otherwise pro- vided for. Section 41 of the charter authorizes the common council to enact ordinances relative to the removal or expulsion from office of any officer on account of corruption or misfeasance therein. Section 80, in authorizing the boards of fire and police commis- sioners to remove a fireman or policeman, specially provides for a hearing had in open session. Section 85, in authorizing the mayor to remove a member of the board of apportionment and taxation, requires a conviction of some corrupt practice. Although the power of removal may be limited by the necessity of assigning some cause, or of informing the officer removed of the cause of his removal and giving him an opportunity for explanation, and stating the ground for removal, the act belongs rather to the field of executive discretion than to that of quasi- judicial finding; and the action of the removing officer comply- ing with the limitation is final. People ex rel. Keech v. Thompson, 94 N. Y. 451; People ex rel. Gere v. Whitlock, 92 Id. 191, 197; State ex rel. Kennedy v. McOarry, 21 Wis. 502, 503; People v. Martin, 19 Colo. 565; State ex rel. Attorney-General v. Hawkins, 44 Ohio St. 98, 115. In 1899 (13 Special Laws, p. 376) the city charter was amended by abolishing the board of public works and giving the powers and duties assigned to that board to the "director of public works, and the amendment provided that this officer should be ap- pointed by the mayor for a term of four years, unless sooner removed by the mayor for cause. Considering all the provisions of the charter as thus amended, 280 TERMINATION OP THE OFFICIAL RELATION. we think the removal of this officer is a mode of exercising this power of removal incident to executive appointment, and that the limitation placed on its exercise is satisfied, possibly more than satisfied, when the mayor has stated to the officer the cause which induces him to contemplate his removal, being a proper and sufficient cause, has given him an opportunity to be heard in relation thereto, and assigns this cause in making the re-^' moval. It follows that the facts alleged in the answer and admitted by the replication establish a valid removal of the relator, and a valid appointment of the respondent. The afiirmative allegations of the relator's replication are immaterial and irrevelant, be- cause, if true, they do not alter the fact of the relator's removal from office. Avery v. Studley, 74 Conn. 272; Hoboken v. Gear, 27 N. J. L. 265, 286-288. An executive removal may be unjust and induced by reprehensible motives, but it is not therefore invalid. The executive discretion, whether in appointment or re- moval, is absolute. The person abusing that discretion may be punished, but not by judicial reversion of his official action. When the absolute discretion, whether in appointment or removal, is lim- ited by law, while the due observance of those limits may be en- forced, yet the action of the executive within the limits prescribed cannot be controlled by the court. Whether the validity of executive appointment or removal should or could be made to depend on prior judicial trial and finding under the rules governing judicial trials, and subject to be reviewed and set aside by the court for errors in the conduct of the trial and upon the absence of any controlling improper motive inducing the executive action — absence of such motive to be de- termined by the court — are questions not before us. Such judicial control or executive action has heretofore been deemed inconsistent with the efficient performance of executive duties. The relator's claim seems to assume that the city charter, in authorizing the mayor to appoint a director of public works for a term of four ^ years, or until sooner removed by him for cause, and upon his re- moval to appoint another to fill the vacancy, requires, as an essential condition precedent to any removal, the existence of a sufficient cause 'to be judicially found as a fact, and declares a removal follow- ing such cause and assigning the same as its reason, to be void, if in fact the inducing motive is not the existing cause assigned, but a desire to have the office filled by a member of the mayor '8 GREGORY V. MAYOR. 281 own political party; and that the Superior Court, upon pro- ceedings in the nature of quo warranto, is made the final judge of the sufficiency of the cause and its existence as a fact, and of the operating motive of the mayor in making the removal. This assumption is plainly unfounded. The demurrer was properly sustained. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred. Under § 2140, New York Code of Civil Procedure, as interpreted by the courts. People ex rel. Masterson v. PYench, 110 N. Y. 494, infra, the courts are empowered to reverse on certiorari proceedings, a determination to remove an oflScer, removable only for cause and after a hearing, on the ground that such a determination is opposed to the preponderance of proof. 5. Power of Suspension. GREGORY V. MAYOR, ETC. Court of Appeals of New York. April 16, 1889. 113 N. Y. 416. Peckham, J. The trial judge was amply justified by the evidence in hold- ing, as a fact, that the plaintiff never received any notice of dis- missal, and we are concluded by such finding. The only question that is left for discussion is, whether the resolution of the com- missioners of excise, which assumed to suspend the plaintiff in- definitely, and without pay, from the performance of his duties was authorized. It is claimed that the power of the commissioners to suspend their employes was included in the conceded power to remove them. "Whether the power to remove includes the power to suspend, must, as it seems to us, depend, among other things, upon the question whether the suspension in the particular case would be an exercise of a power of the same inherent nature as that of removal, and only a minor exercise of such power, or whether it would work such different results that no inference of its existence should be indulged in, based only on the grant of 282 TBEMINATION OP THE OFFICIAL RELATION. the Specific power to remove. We think it is apparent that the two powers cannot always be properly respectively described as the greater and less, and, consequently, it cannot always be de- termined, simply upon that ground, that the suspension is valid because there was a power to remove. The power to remove is the power to cause a vacancy in the position held by the person re- moved, which may be filled at once, and if the duties are such as demand it, it should be thus filled. The power to suspend causes no vacancy and gives no occasion for the exercise of the power to fill one. The result is that there may be an office, an officer and no vacancy, and yet none to discharge the duties of the office. By suspension the officer is prevented from discharging any du- ties, and yet there is no power to appoint anyone else to the office because there is no vacancy. If it be claimed that the power to suspend includes also the power to fill the place of the officer suspended during such suspension, then there is a second presumed power which flows from the simple power to remove. There is the power to suspend and there is the further power to be implied from it, viz., the power to fill the office with another during such suspension, although there is no vacancy in the office. We do not think either of these last-named powers should be implied in the mere grant of the power to remove. We are not in- clined to go so far with the doctrine of implied grants of power, because we think the implication is not one which naturally or necessarily arises out of the nature of the main power granted, and its denial in such cases as this can, as we think, work no pos- sible mischief. We do not go to the extent of saying that in no conceivable case can the power to suspend be inferred from a grant of the power to remove. There may be cases where such an interference, arising from the general scope and nature of the act granting the power, would be so strong as to compel recogni- tion. We think there is no such inference to be drawn in the case before us. The plaintiff held the position of excise inspector and* it was his business, as he described it, "to go 'round to different places where liquor was sold and see if the sellers were licensed and if they were not, that they should get one; also to see that the sale of intoxicating liquors in the city of New York was carried on properly.'* These duties were, necessarily, to be discharged out of the sight of the commissioners. Upon the fidelity and prudence with which such duties were discharged depended, in great part. GREGORY V. MAYOR. 283 the proper enforcement of the law. The commissioners might be- lieve that the inspector was not doing his duty, and yet be unable to show exactly wherein he failed. Proof thereof on charges, to be regularly preferred, would amount almost to a denial of the power to remove, because, the duties being of such a nature as above described and to be performed beyond the view of the com- missioners, the inference of a failure to perform them might be based upon such a number of disconnected facts that it would not be regarded as justified upon a regular trial. Hence the necessity of a power to remove when the commissioners might feel that there had been a dereliction of duty without being able to point out any specific fact as evidence thereof, while the power of indefinite suspension, without pay, would not add anything to the security of 'the city or the power of the commissioners to obtain honest serv- ice. If the employe were unfit, it would be the duty of the com- missioners to remove him at once. If not unfit, he should not be suspended indefinitely, without pay. It seems to us that the power of removal in such a case as this was entrusted to the commissioners to be exercised, if at all, at once and finally. It was not meant that they should have power to arbitrarily suspend without pay, and then appoint some other in the place of the suspended man, and perhaps suspend or remove the alternate and again appoint some other. The tendency would be to confuse instead of perfecting the service. The effect upon the suspended man would also be demoralizing, causing him to expend his time in efforts to get reinstated rather than in endeavors to procure a livelihood in other ways, which would be the result of a removal. As the existence of the power to suspend depends upon our inferring it from the grant of the power to remove, all of the views above suggested may properly be regarded as bearing upon the question whether there is any inherent neces- sity for an inference of such a nature. The constitution of our state, in section 3 of article 5, in providing for the appointment of a superintendent of public works, says that, '*he may be sus- pended or removed from office by the governor, whenever," etc. In section 4 of the same article provision is made for the ap- pointment of a superintendent of state prisons, and it is stated that "the governor may remove the superintendent for cause at any time," etc. Has the governor power to suspend in both cases? This difference of language in the organic law rather tends to the idea that the framers of these two provisions were not entirely 284 TERMINATION OF THE OFFICIAL RELATION. sure that the power to remove included the power to suspend, or that the latter power was always of the same nature and only- less in extent than the former. We think the commissioners had no power to suspend the plain- tiff, and that the frequent attendance of the plaintiff at the office of the board, and his continuous offers to discharge the duties of the position to which he had been appointed, were suflScient tenders of performance on his part to warrant the conclusion of the learned trial judge in directing the verdict. We see no errors in the record and the judgment should be aflSrmed, with costs. All concur, except Ruger, Ch. J., not voting. Judgment affirmed. Cf. Wardlaw v. Mayor, 137 N. Y. 194, supra. STATE EX REL. DOUGLAS V. MEGAARDEN. Supreme Court of Minnesota. December, 1901. 85 Minnesota 41. Lovely, J. Quo warranto upon the information of the attorney general in behalf of the state against Philip T. Megaarden, sheriff of Henne- pin county, to oust him from the possession of that office during the proceedings before the governor for his removal. Respondent demurred to the information, which issue presents two questions: (1) Are the allegations of the information suffi- cient to show that the executive was authorized to order an investi- gation for the removal of the sheriff? (2) Did the order for such investigation authorize the governor to suspend the sheriff during the course of the procedure for his removal? 1. The information alleges that respondent was elected sheriff of Hennepin county at the general election of 1900 ; that he quali- fied and entered upon the office in January, 1901; that the public examiner subsequently made an examination into his official affairs for the years 1899, 1900 and 1901 ; that on November 25, 1901, the examiner reported to the governor that the sheriff had made improper charges against the county in excess of legal right, and had collected the same on verified claims presented to the board of county commissioners. STATE EX REL. DOUGLAS V. MEGAARDEN. 285 2. The governor acted upon the complaint of the examiner, appointed a commission as provided in G. S. 1894, § 894, and fixed a time for the return of their report. He also made an order sus- taining the sheriff during the proceedings for removal, of which due notice was given, but respondent has ever since continued in possession of the office in defiance of the order of suspension. "Whether he was right or wrong in this respect is the important question before us, involving the power of the governor to make the order of suspension. No right to suspend is given in express terms. If such power exists, it must be implied ; hence the question still remains, can the governor, upon the ordering of the commission, suspend the officer during the investigation? "While the right to remove under the law of sister states is in many instances conferred by statutes quite similar to ours, yet the authorities in respect to the incidental right to suspend pending the hearing are meager and unsatisfactory. "We have been referred to several cases by counsel for respondent, but found them of little assistance. The best considered case relied upon by counsel, in which it has been held that the power of suspension was not an incident to the power of removal is Gregory v. Mayor, 113 N. Y. 416, 21 N. E. 119. . . . This case is not in point here, where the temporary vacancy created by the suspension of a county officer is made, pending a hearing, which may terminate in his favor, with rein- statement to the duties and emoluments of the office. The only value of this opinion is derived from the fact that it was written by a very able jurist, who reviews the authorities, but distinguishes them from the question now presented to this court. Most of the authorities cited for the state are either distinguish- able from the case before us, or go upon an assumption of the incidental right to suspend without furnishing such reasons for its existence as would render them of paramount weight on this review. The case of State v. Peterson, 50 Minn. 239, 52 N. "W. 655, was on quo warranto to remove a county treasurer, conducted under laws 1881, c. 108 (G. S. 1894, §§ 909-913), which in express terms provides for the suspension of that officer pending his re- moval. In the Peterson case the court referred to the only precedent we 286 TERMINATION OP THE OPPICTAL RELATION. have found directly in point on this question, viz. State v. Police, 16 Mo. App. 48, 50. This court in the Peterson case quoted there- from with respect language of such importance to the questions here involved that we take the liberty of reproducing it on account of its practical suggestive force. Premising that in the Missouri case the right to suspend the official depended upon a power con- ferred solely by statute, the court said: "The suspension of an officer, pending his trial, for misconduct, so as to tie his hands for the time being, seems to be universally accepted as a fair, salutary, and often necessary incident of the situation. His re- tention, at such time, of all the advantages and opportunities afforded by official position may enable and encourage him not only to persist in the rebellious practice complained of, but also to seriously embarrass his triors in their approaches to the ends of justice. In the absence of any express limitation to the con- trary — and none has been shown — ^we are of opinion that in cases where guiltiness of the offense charged will involve a dismissal from office there is, on general principles, no arbitrary or improper exercise of a supervisory authority in a suspension of the accused pending his trial in due and proper form." The reasons stated in the above case for holding that the right of suspension during proceedings for removal seem to be so essen- tial to a complete and thorough investigation of an official charged with misconduct as to furnish an unanswerable argument to the claim of respondent that the minor right to suspend is not in- cluded in the major authority to remove. It ought not, therefore, to be held that the unquestionable power to remove should be so handicapped by an iBterpretation of the statute as to defeat the very object it seeks to attain. Presum- ably the chief executive of the state will act upon an exalted sense of justice and high considerations of duty, and only in cases where strong reasons exist for exercising the power of suspension will impose unnecessary burdens upon the accused official after a sufficient review of the reasons upon which that power is to be exercised. The order to suspend should not prejudice the respondent in any way. He is entitled to a fair hearing, with all the presump- tions of innocence and good intentions in his favor. These ought to continue until the termination of the investigation and the final action of the governor, but we are compelled to adopt the view TRIAL OF ANDREW JOHNSON. 287 that, to give the power of removal practical effect, it must be left to executive discretion and judgment to direct a temporary sus- pension of the official, as so ordered in this case. Let the writ of ouster issue as prayed for. IV. Impeachment. TRIAL OF ANDREW JOHNSON. In the Senate of the United States. 1868. Opinion of Mr. Senator Davis. Our system of impeachment has not been transferred from any other government, nor was its organization conMed to Congress; but the cautious statesmen who founded our government incor- porated it in and built it up as part of the Constitution itself. They enumerated its essential features and made it sui generis. 1. No person but civil officers of the United States are subject to impeachment. 2. The Senate is constituted the court of impeachment. 3. The Chief Justice of the United States is to preside over the court when the President is upon trial, and the Vice-President or the President pro tempore of the Senate in all other cases. 4. No conviction can take place unless two-thirds of the senators present concur. 5. No impeachment can be made but for treason, bribery or other high crimes and misdemeanors against the United States. 6. Judgment of impeachment cannot extend to death or other corporal punishment, or fine or impris- onment; but is restricted to removal from and disqualification to hold office; but the party convicted nevertheless to be liable and subject to indictment, trial, judgment, and punishment according to law. The offenders, offences, court and punishment are all distinctly impressed with political features. The Senate now and for this occasion is a court of impeachment for the trial of the President of the United States, and, like all other courts, is bound by the law and the evidence properly applicable to the case. 288 TERMINATION OP THE OFFICIAL RELATION. One of the leading and inflexible laws which bind this court is embodied in the Constitution in these words; *'No person shall be removed from office but on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. ' ' That is the category of all impeachable offences, and they must be acts declared by the law of the United States to be treason or bribery, or some other offence which it denominates a "high crime or misdemeanor." The laws which define impeachable offences may be the Constitution, or acts of Congress, or the common law, or some other code, if adopted either by the Constitution or act of Congress. No common-law offence, as such merely, can sustain the impeachment of any officer ; but to have that authority it must have become a part of the law of the United States by being adopted by the Constitution or some act of Congress, and would have operation and effect only to the extent that it was consistent with the provisions, principles and general spirit of the Constitu- tion. It results from this view of the law of impeachment, that as none of the articles against the President charge him with treason or bribery, which are made impeachable offences by the Constitu- tion, they, or some of them, must allege against him the doing of an act or acts which a law of Congress has declared to be an offence against the United States, and denominated it to be, and in its vicious nature it must be a high crime or misdemeanor, and that the President did that act with a criminal intent to violate the law, to authorize this court to convict him and to pronounce judg- ment that he be removed from office. The impeachment of the President of the United States is the arraignment of the executive department of the government by one branch of the legislative department and its trial by the other. The Incongruity of such a responsibility and consequent danger of the ultimate subordination of the executive to the legislative depart- ment excited the gravest apprehensions of that wisest political sage, Mr. Madison, when the Constitution was being framed. Short of the sword, it is the extreme remedy, and was intended for the worst political disorders of the executive department. Nothing but treason, official bribery, or other high crimes or misdemeanors, made so by law, and also in their nature of deep moral turpitude, TEIAL OP ANDREW JOHNSON. 289 which are dangerous to the safety of the State and which palpably disqualify and make unfit an incumbent to remain in the office of President, can justify its application to him. Cases that do not come up to this measure of delinquency, those who made the Con- stitution intended should be remedied in the frequency of our elections by the people at the ballot-box; and the public repose and welfare require that they should be referred to that most ap- propriate tribunal. Impeachment was not intended to be used as an engine to gratify private malice, to avenge disappointed expectations, to forward schemes of personal ambition, to strengthen the measures or con- tinue the power of a party, to punish partisan infidelity, to re- press and crush its dissensions, to build up or put down opposing factions. By our system all that sort of work is to be done in popular canvasses; and to bring the great and extraordinary rem- edy of impeachment to do any of it, is the vile prostitution of what was intended to be a rare and august remedy for great evils of state. Opinion of Mr. Senator Trumbull. To do impartial justice to all things appertaining to the present trial, according to the constitution and laws, is the duty imposed on each senator by the position he holds and the oath he has taken, and he who falters in the discharge of that duty, either from per- sonal or party considerations, is unworthy his position and merits the scorn and contempt of all just men. The question to be decided is not whether Andrew Johnson is a proper person to fill the presidential office, nor whether it is fit that he should remain in it, nor, indeed, whether he has violated the Constitution and laws in other respects than those alleged against him. As well might any other 54 persons take upon them- selves by violence to rid the country of Andrew Johnson, because they believe him a bad man, as to call upon 54 senators, in viola- tion of their sworn duty, to convict and depose him for any other causes than those alleged in the articles of impeachment. As well might any citizen take the law into his own hands, and become its executioner, as to.- ask the senators to convict outside of the case made. To sanction such a principle would be destructive of all law and all liberty worth the name, since liberty unregulated by law is but another name for anarchy. Unfit for President as the people may regard Andrew Johnson, 19 290 TERMINATION OF THE OFFICIAL RELATION. and much as they may desire his removal, in a legal and constitu- tional way, all save the unprincipled and depraved would brand with infamy and contempt the name of any senator who should violate his sworn convictions of duty to accomplish such a result. Keeping in view the principles by which, as honest men, we^ are to be guided, let us inquire what the case is. The first article charges Andrew Johnson, President of the United States, with unlawfully issuing an order, while the Senate was in session, and without its advice and consent, with the intent to remove Edwin M. Stanton from the office of Secretary for the Department of War, contrary to the constitution and the "act regulating the tenure of certain civil offices, ' ' passed March 2, 1867. It will be observed that this article does not charge a removal of the Secretary, but only an intent to remove, which is not made an offence by the tenure-of-office act or any other statute, . . . The second article charges that the President, in violation of the Constitution, and contrary to the tenure-of-office act, and with intent to violate the same, issued to Lorenzo Thomas a letter of authority empowering him to act as Secretary of War ad in- terim, there being no vacancy in the office of Secretary of War. There is nothing in the tenure-of-office act, or in any other statute, prohibiting the issuing of such a letter, much less making it a crime or misdemeanor. The most that can be said is that it was issued without authority of law. What has been said in regard to the second article applies with equal force to the third and eighth articles: there being no proof of any unlawful intent to control the disbursements of the moneys appropriated for the military service, as charged in the eighth article. Articles four, five, six and seven taken together, charge in sub- stance that the President conspired with Lorenzo Thomas and other persons with intent, by intimidation and threats, to prevent Edwin M. Stanton from holding the office of Secretary of War, and by force to seize the property of the United States in the Depart- ment of War ; also that he conspired to do the same thing contrary to the tenure-of-office act, without any allegation of force or threats. The record contains no sufficient proof of the intimidation, threats, or force charged ; and as the President had. in my opinion, the right to remove Mr. Stanton, his order for that purpose, as also TRIAL OF ANDREW JOHNSON. 291 that to General Thomas to take possession both peacefully issued, have, in my judgment, none of the elements of a conspiracy about them. The ninth article, known as the Emory article, is wholly un- supported by evidence. The tenth article, relating to the speeches of the President is substantially proven, but the speeches, although discreditable to the high office he holds, do not, in my opinion, afford just ground for impeachment. So much of the eleventh article as relates to the speech of the President made August 18, 1866, is disposed of by what has been said on the tenth article. The only proof to sustain the allegation of unlawfully attempt- ing to devise means to prevent Edwin M. Stanton from resuming the office of Secretary of War is to be found in a letter from the President to General Grant, dated February 10, 1868, written long after Mr. Stanton had been restored. This letter, referring to a controversy between the President and General Grant in regard to certain communications, oral and written, which had passed between them, shows that it was the President's intent in case the Senate did not concur in Stanton's suspension, to compel him to resort to the courts to regain possession of the War Department, with a view of obtaining a judicial decision on the validity of the tenure-of -office act; but the intention was never carried out, and Stanton took possession by the voluntary surrender of the office by General Grant. Was this intent or purpose of the Presi- dent to obtain a judicial decision in the only way then practicable a high misdemeanor? There is no proof to sustain the other charges of this article. In coming to the conclusion that the President is not guilty of any of the high crimes and misdemeanors with which he stands charged, I have endeavored to be governed by the case made without refer- ence to other acts of his not contained in the record, and without giving the least heed to the clamor of intemperate zealots who demand the conviction of Andrew Johnson as a test of party faith, and seek to identify with and make responsible for his acts those who from convictions of duty feel compelled on the case made to vote for his acquittal. His speeches and the general course of his administration have been as distasteful to me as to any one, and I should consider it the great calamity of the age if the dis- 292 TERMINATION OP THE OFFICIAL RELATION. loyal element, so often encouraged by his measures, should gain political ascendency. If the question was. Is Andrew Johnsoji a fit person for President? I should answer, no; but it is not a party question, nor upon Andrew Johnson's deeds and acts, except so far as they are made to appear in the record, that I am to decide. Painful as it is to disagree with so many political associates and friends whose conscientious convictions have led them to a different result, I must, nevertheless, in the discharge of the high responsibility under which I act, be governed by what my reason and judgment tell me is the truth and the justice and the law of this case. What law does the record show the President to have violated? Is it the tenure-of-office act? I believe in the consti- tutionality of that act, and stand ready to punish its violators; but neither the removal of that faithful and efficient officer, Ed- win M. Stanton, which I deeply regret, nor the ad interim desig- nation of Lorenzo Thomas, were, as has been shown, forbidden by it. Is it the reconstruction acts ? Whatever the facts may be, this record does not contain a particle of evidence of their violation. Is it the conspiracy act? No facts are shown to sustain such a charge, and the same may be said of the charge of a violation of the appropriation act of March 2, 1867 ; and these are all the laws alleged to have been violated. It is, however, charged that An- drew Johnson has violated the Constitution. The fact may be so, but where is the evidence of it to be found in this record ? Others may, but I cannot find it. To convict and depose the Chief Magis- trate of a great nation, when his guilt was not made palpable hy the record, and for insufficient cause, would be fraught with far greater danger to the future of the nation than can arise from leaving Mr. Johnson in office for the remaining months of his term, with powers curtailed and limited as they have been by recent legislation. Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes, as several of those now alleged against the President were decided to be by the House of Representatives only a few monthes since, and no future President will be safe who happens to differ with a majority of the House and two-thirds of the Senate on any measure deemed by them important, par- ticularly if of a political character. Blinded by partisan zeal, with such an example before them, they will not scruple to remove out of the way any obstacle to the accomplishment of their pur- OPINION OF THE JUSTICES. 2&3 poses, and what then becomes of the checks and balances of the Constitution, so carefully devised and so vital to its perpetuity? They are all gone. In view of the consequences likely to flow from this day's proceedings, should they result in conviction on what my judgment tells me are insufficient charges and proofs, I tremble for the future of my country. I cannot be an instrument to pro- duce such a result ! and at the hazard of the ties even of friendship and affection, till calmer times shall do justice to my motives, no alternative is left me but the inflexible discharge of duty. OPINION OF THE JUSTICES. Supreme Judicial Court of Massachusetts. February, 189V, 167 Massachusetts 599. The following order was adopted by the House of Representa- tives on January 27, 1897, and thereupon transmitted to the Jus- tices of the Supreme Judicial Court, who on February 25, 1897, returned the opinion which is subjoined. Ordered, That the opinion of the Justices of the Supreme Judi- cial Court be required upon the following important question of law, namely: "Is the county commissioner an officer of the Conunonwealth within the meaning of Article VIII of Section 2 of Chapter 1 of the Constitution, and is a county commissioner subject to the impeachment process provided by the Constitution?" To the Honorable the House of Representatives of the Common- wealth of Massachusetts: The undersigned, Justices of the Supreme Judicial Court, re- spectfully submit the following answer to the question proposed by the Honorable House, by its order of January 27, 1897, a copy of which is annexed. In the Constitution, c. 1, section 2, art. 8, it is provided as fol- lows: ''The Senate shall be a court with full authority to hear and determine all impeachments made by the House of Repre- sentatives, against any officer or officers of the Commonwealth, for misconduct and maladministration in their offices." By virtue of this provision, no one can be impeached except officers of the 294 TERMINATION OP THE OFFICIAL RELATION. Commonwealth; and it is necessary to determine whether county commissioners fall within this description. There are several classes of civil officers within the Common- wealth ; for example, town or city officers, county officers, officers of districts, and State officers. In a certain sense, all of these officers may be deemed to be officers of the Commonwealth, and it is pos- sible accordingly to take the view that all are subject to impeach- ment. But in our opinion this provision of the Constitution was not intended to include all civil officers of every grade within the commonwealth. On the one hand, it seems to us that the various officers of cities or towns do not fall within the class of officers of the Com- monwealth in the sense in which these words are used in this pro- provision of the Constitution. On the other hand, officers elected by the people at large, or provided for in the Constitution for the administration of matters of general of State concern, are subject to impeachment. The intention of the framers of the Constitution in respect to such officers as county commissioners is not free from doubt. The office of county commissioner is created by statute, and the Legis- lature can by statute determine in what manner an incumbent may be removed from office. They have some duties or functions which concern the people of the State at large. But it seems to us that they are essentially a local body. They are elected by the people of a county, and their duties relate chiefly to the affairs and interests of the county. Some of their duties are much like duties performed by selectmen, or by a mayor and alderman, ex- cept that their jurisdiction extends over the whole county. In Nantucket, selectmen by law perform the duties of county com- missioners. In Suffolk County, these duties are performed in part by municipal officers. It seems to us that the better construction of the constitutional provision is that county commissioners are not subject to impeach- ment as officers of the Commonwealth. Considering the nature and character of the proceedings by impeachment, it does not seem wise to extend their scope by a doubtful construction. If mayors and aldermen of cities and selectmen of towns are not impeach- able, we can see no clear line of distinction which would make county commissioners impeachable. We have been unable to find any plain intimation by legislatures, courts, or writers of authority, that county commissioners have ever been thought to be impeachable under provisions like those STATE EX KEL. ADAMS V. HILLYER. 295 of our constitution. The fact that no precedent is known, though not decisive of itself, is entitled to some weight. For these reasons, thus briefly expressed, although some of us, while yielding to the conviction of our associates, have not been able to free our minds from doubt, our answer to the question of the Honorable House of Representatives is in the negative. Walbridge a. Field. Charles Allen. Oliver WENDEiiL Holmes. Marcus P. Knowlton. ■James M. Morton. John Lathrop, James M. Barker. February 25, 1897. STATE EX REL. ADAMS V. HILLYER. Supreme Court of Kansas. July, 1863. 2 Kansas 17. Information in Supreme Court in the nature of a quo warranto exhibited upon the relation of Daniel M. Adams by the Attorney General of the State, for the purpose of removing Hillyer, re- spondent, from the office of auditor of the State. The information states that Hillyer since the 16th day of June, A. D. 1862, hath used, exercised and held, and still doth use and exercise the office of Auditor of State of Kansas without lawful warrant or author- ity therefor: That the said Hillyer was impeached by the House of Representatives on the 14th day of February, A. D. 1862, by articles duly presented to the Senate, and that on the 16th day of June thereafter the Senate, sitting for the trial of said accusation, pronounced a judgment of guilty, and of removal from the said office of Auditor, of the said Hillyer. The respondent by his plea did not controvert the facts set forth in the information, but asserts that the body that pro- nounced the judgment had no constitutional existence, and there- fore the judgment was a nullity. Other facts appear in the opinion of the court. By the Court, Kingman, J. The facts of the ease were agreed upon leaving for the Court 296 TERMINATION OF THE OFFICIAL RELATION. to decide the single question, whether the session held by the Sen- ate when it tried and pronounced judgment in the case, was a legal and constitutional one. This is denied on two grounds. 1st. There is no power in the Senate to set for the purpose of trying impeachments when the House is not in session, 2d. If such power exists, the adjournment of the Senate to the 1st Monday in June was without consent of the House, and void; and if valid, was annulled by the subsequent concurrent resolution adjourning the Legislature, sine die. By constitutional provision all impeachment cases are to be tried by the Senate; but as to when the Senate shall set for that purpose or how the trial shall be conducted the constitution is silent except in declaring that the senators when sitting for that purpose shall be sworn; that the concurrence of two-thirds of the Senators elected is necessary to a conviction, and a limitation as to the extent of punishment. In the absence of express provisions it is presumed that the com- mon law *'will regulate, interpret, and control the powers and duties of the Court of Impeachment," but this rule, applicable only to the trial and proceedings, affords no guide in determining the question as to the organization of the Court, for in this state the tribunal that tries, as well as the body that prefers the accu- sation, are entirely unknown to the common law, and if there is such a general resemblance of our legislative assembly to the Par- liament of Great Britain, as to be easily noticed, the points of dis- similarity are still more apparent and striking. And this, not only in the organization and general powers of the two bodies, but even in this matter of impeachment. By our law the House of Representatives alone can prefer charges of impeachment, by the common law of Parliament, not only the Commons, but a Peer or the Attorney General at the suit of the King may prefer articles of impeachment (Com. Dig. V. 238.) In prosecutions by the Commons upon an impeachment, it be- longs to the Commons to demand judgment (Com. Dig. V. 244), and the House of Commons have a right to be present whether they appoint managers or not, that every member may satisfy his conscience whether he will give his vote to demand judgment. (Strafford's Case, 2 Commons Journal, 105-108.) This right of the Commons to be present in cases where the impeachment was presented by them grows out of the assumed right STATE EX REL. ADAMS V. HILLYER. 297 of the Commons to arrest the prosecution by refusing to demand judgment, even after the person impeached has been found guilty. Such power has never been exercised or claimed in this country by the House exhibiting the accusation, and would be utterly sub- versive of the independent jurisdiction of the Senate as a Court of Impeachment, by subjecting the judgments of the senate to the review of the House before they would be of any force or effect. The reason of the usage or right of attendance upon the trial by the Commons having failed, the rule itself ceases, as we have adopted no more of the common law in this state than is adapted to our situation and applicable to our institutions. The laws of this State, however, by express provision, have empowered the Senate, when sitting as a Court for the trial of impeachments, to hold sessions after the adjournment of the Legislature, and what- ever may have been the rule of the common law it was prefectly competent for this legislature to prescribe a different rule unless prohibited by the Constitution, and we look in vain for any such provision, either express or implied. Nor is there in that instru- ment any inhibition of the session of one branch of the Legislature when the other is not in session. There is a fixed time when both houses shall meet, a limitation of the power of one house to ad- journ for a longer period than two days without the consent of the other, and in case of disagreement, the Governor may adjourn them. If it be admitted, as claimed, that when acting in their legis- lative capacity, the proceedings of one house, when the other is not in session, have no validity, it can only be upon the ground that their legislative power is a unit, though distributed, and the parts can only act in unison, and neither the reason nor principle would apply to this case. . . . The case before the court pre- sents much stronger reasons why the separate action of one body may be valid in the absence or non-organization of the other, for the Senate acts entirely in a judicial capacity. Its action is in- dependent of the House; and as we have seen, there is no reason why the House should be present or in session, and in the absence of constitutional inhibition we can perceive no reason why the Senate, with the consent of the House, may not adjourn to any period during their term of office, and not beyond the regular meeting of the Legislature, whether the House be in session or not. If at such adjourned session its acts were confined, as in this case, to duties in which they were entirely independent of the House 298 TERMINATION OF THE OFFICIAL EELATION. or any action it might take, those acts would be valid and conclu- sive. Another view of this point in the case will illustrate and strength- en the conclusion. Had the Constitution conferred the power of trying impeachments upon any other tribunal than the Senate, and named no time for the trial, and fixed no limits for adjournment, no one would have the hardihood to deny that both these mattei-s might be regulated by law. In this State the Legislature has given express power to the Senate when organized and sitting as a court for the trial of any impeachment, to adjourn from time to time and hold a session after the adjournment of the Legislature. Such a law is clearly within the province of the Legislature to enact, but would, of course, be limited by the last clause of Sec. 10, Art. 2, of the Constitution, so that such adjournments can only be made by consent of the House. The law may well be taken< as the clearly manifested consent of the House that passed it, that the then Senate might adjourn and hold sessions after the Legis- lature, but not as to the consent of any subsequent House that such session may be held. But it is denied that the House ever gave its consent to the ad- journment of the Senate until June. The constitution prohibits the adjournment of one House for more than two days without the consent of the other, but does no point out how or when that consent shall be given. It would be difficult to conceive of a stronger manner of giving that consent than by previous request, reiterated, as in this case, that it be done. But to avoid all cavil the law above quoted was passed the next day, and was in the most solemn manner and with all the forms of legislation, a declaration of the consent of that House, that the then Senate might adjourn at its pleasure and hold sessions after the adjournment of the Legislature. It is essential to the validity of a contract that each of all the parties to it should give his assent to its terms. Yet few contracts upheld and enforced by the Courts present so strong and varied evidence of the assent of the parties as this case does of the consent of the House to the adjournment of the Senate till the first Monday in June. But it is insisted that the concurrent resolution adjourning the Legislature sine die on the 6th of March, 1862, dissolved both branches of the Legislature finally, and they could not be con- vened again save by the exercise of executive power. It is evident '/ IN RE EXECUTIVE COMMUNICATION. 299 that each branch of the Legislature considered this resolution with reference to the previous adjournment of the Senate sitting a&, a court of impeachment, and the law which had just been enacted/ and this is the plain sense and clear legal import of the several acts. The Senate, sitting as a court, having adjourned its sessions/ as such, to the 1st Monday in June, united with the House in concurrent resolution to terminate their Legislative sittings by ai adjournment sine die on the 6th of March. This is all that the lan- guage of the resolution would indicate and all that was intended ; and the meeting of the Senate as a court in June was not in con- flict with it, and it must be so held. All the justices concurring; Ewing, C. J., Baily and Kingman on the bench. IN EE EXECUTIVE COMMUNICATION. Supreme Court of Florida. April, 1872. 14 Florida 289. Westcott, J., delivered the opinion of the court. Sec. 16, Art. V, of the Constitution of this State provides that the ' ' Governor may at any time require the opinion of the Justices of the Supreme Court as to the interpretation of any portion of this constitution or upon any point of law and the Supreme Court shall render such opinion in writing." The question presented for our consideration is whether his Ex- cellency Harrison Reed, Governor of Florida, is at this time in contemplation of law ''deemed under arrest" and "disqualified from performing any of the duties of his office." We are obliged to determine this question in order to ascertain whether he has a right to demand our opinion as well as whether it is our duty to give it. The Constitution (Art. LX, Sec. 16) declares that any officer when impeached by the Assembly shall be in that condition, but any officer so impeached may demand his trial by the Senate within one year from the date of his impeachment. His Excellency Har- rison Reed, Governor of Florida, was impeached at the late session of the Legislature (January, 1872). This is admitted by the communication now before us, and it is shown by the journals of 300 TERMINATION OP THE OFFICIAL RELATION. the House of Assembly and the Senate for that session. The con- sequence of that impeachment was to disqualify him from perform- ing the duties of his office. The suspension consequent upon the impeachment can cease to exist under the Constitution, if it ceases at all, but in one way — which is acquittal by the Senate — for what- ever may be the effect of the expiration of one year from the im- peachment and demand for trial, that time has not elapsed, and for that reason the construction of that clause of the constitution is not here involved. In the language of the constitution the officer "shall be disqualified from performing any of the duties of his office until acquitted by the Seriate.'* The only event then which could have operated in this case to restore this officer to his powers, must have been an acquittal by the Senate. The simple question, then presented for our consideration is, has there been an ac- quittal by the Senate? The only question, therefore, which remains to be considered to dispose of this very elaborately argued subject is, has the Senate made any such final disposition of this impeachment? This is a very plain, simple question, to be determined by an examination of the journal of the proceedings of the court and the Senate on the last day of the session of the Court of Impeachment. It appears, therefore, that the court after failing to act upon a motion to acquit and discharge the prisoner, simply adjourned, and that the Senate at 12 M. on the same day adjourned for the session. In view of this record, it is plain, therefore, that the court made no final disposition of the case, but simply adjourned. The case is, therefore, still pending in that court. A case is pend- ing il it is not finally disposed of, and clearly here is no final disposition of it by any order of the Senate so doing. On the contrary, the record shows that a motion to discharge was pending at the time of adjournment. But it is insisted that this action by the Senate entitled the re- spondent to his discharge, and that in contemplation of law it was equivalent to his discharge. Now, if the Senate is the sole au- thority to discharge — if it is the only tribunal that can discharge — then it is plain that it is the only authority that can act in the matter? Whether a prisoner is discharged from the custody of a court or from an indictment, is a fact to be determined by a simple inspection of the record. If there is no order to that effect, then there is no discharge, and if, as in this case, there is nothing in the IN RE EXECUTIVE COMMUNICATION. 301 record discharging the respondent, the simple result is that the Senate has not discharged him. It is proper to inquire here .whether we have any legal right or power to determine what the effect of this action is under the circumstances. If we have not; if it shall be, as we conceive it is, the exclusive and sole province of the Senate to determine that question ; if by so doing we usurp a jurisdiction not vested in this court by the State Constitution and wrest a case now pending from a court of exclusive jurisdiction over the trial of the sub- ject, and presume to review its action and discharge what we may conceive to be its duty, it is plain that such action is im- proper. Let us compare the powers and functions of the Senate in this matter with the power of this court. What is the Senate when organized for the purpose of trying impeachments? What is the extent of its jurisdiction, and what relation exists between this tribunal and that? The Senate, when thus organized, is unques- tionably a court — ^because it is a body invested with judicial functions ; because it determines issues both of law and fact ; because it announces the law in form of judgment, and through that instru- mentality adjudges the penalties named by the Constitution. Not only is it a court, but it is a court of exclusive original and final jurisdiction. Its judgments can become the subject of reversal or review in no other court known to the Constitution and the laws. This simple exercise of judicial functions, the application of law to facts and announcing its conclusions, are not extraordinary or transcendent powers. Nor is the simple fact that its jurisdiction is both original and final a circumstance which alone would justify us in ascribing to it any extraordinary degree of importance, be- cause the general reason why a court has both original and final jurisdiction is the small degree of importance of the matter in- volved. Not only is this tribunal a court, but it is a court of great importance. Its jurisdiction is not indeed very extensive as to the number of the subjects-matter which may come under its con- trol, but the sphere in which it acts, while limited to but one class of cases, is most high and transcendant. This is so because of the subject-matter of its jurisdiction, the degree and extent of the punishment it imposes, and the exclusive power which it has of regu- lating its practice arising upon any matter pending before it. All other persons in whom judicial power is vested under the Consti- tution derive their existence from a delegated power to the Gov- ernor and Governor and Senate. These persons represent the peo- 302 TERMINATION OF THE OFFICIAL RELATION, pie directly through the exercise of the elective franchise. . . , We may oust an usurper because he was not elected or eligible, and there our power ends. This Court of Impeachment and the As- sembly go further. To them the people have confided the superin- tendence and control of all persons who are invested with distin- guished political franchises and offices. This court can say to an of- ficer, you are not elected or qualified. That court can say to him, we admit that you are selected by the people; that you were in all respects qualified, and notwithstanding all this, you shall not only no longer discharge the functions and franchises of a particular office, but you shall not hold in the future any office of honor, trust or profit under the State. Under these circumstances, we submit that we should and must be very careful how we act in such matters. This jurisdiction is too high and transcendent to be in- vaded. In the argument of this case allusions were made to the rule that the different departments of the government must keep within their several constitutional spheres of action. The conflict here threatened is not between co-ordinate departments of the govern- ment. It is between two courts of high and transcendent juris- diction. We having no jurisdiction of the subject-matter of impeach- ment, propose to discharge an impeachment proceeding because we conceive that the legal effect of certain action taken in the court having exclusive jurisdiction of the subject is to entitle the party to a discharge. Suppose we test the question of jurisdiction by bringing the matter to a contest. Suppose we say in this in>^ stance to Governor Reed that the legal effect of this action is your I discharge and you are entitled to enter upon the duties of yourj office. Suppose the Senate meet to-morrow and determine fo*^ themselves that they have not in fact discharged the prosecution! and they have done nothing which in law entitles him to a dis-j charge ; that upon their calendar the case is still pending and they \ propose to proceed to the trial. Is it not perfectly clear that if'^^ the Senate has the exclusive jurisdiction of the case, its judgments and not ours must prevail? We think there can possibly be n(/ doubt here. We cannot determine the effect of this action of the Senate, and all that we have to do with the subject is to respect its judg- ment, whatever it may be, provided the punishment inflicted is not in excess of that named in the Constitution, and is authorized by IN RE EXECUTIVE COMMUNICATION. 303 it, and is the judgment of a legal Senate vested with jurisdiction of the subject-matter and of the person. Our power in the matter of this impeachment is limited and cir^ cumscribed by the fact that it is a matter beyond our jurisdictiou entirely. After an impeachment perfected according to the Consti-S tution, the whole matter is with the Senate, and it has the exclusive / right of determining all questions which may arise in the case. If its action is unconstitutional, we have the right and power to de- J clare its nullity, and, in a proper case before us, to enforce the/ right of any party of which it proposed to deprive him. In what we have said we do not affirm the entire want of juris- diction or power in this court in proper cases to investigate and en- quire into any act of the Senate affecting the rights of parties be- fore it in a case where what they have done comes before us col- laterally. That power cannot be thrown off. But when the Con^ stitution vests exclusive jurisdiction over impeachments in the Senate, we are deprived of the power of deciding questions aris- ing in the course of the trial, or while the impeachment is pending, for these necessarily must belong to the court vested with the principal power or jurisdiction, and there is no appellate power in this court to reverse it. When, therefore, in exercising the power and jurisdiction vested in this court, we proceed to inquire into matters brought properly to our attention, the law does not auth- orize us to substitute our judgment for that of the Senate upon questions before that tribunal, and hence, if it appears that no order finally disposing of the case has been made by it, we are at once arrested by the rule of constitutional law which affirms that the Senate itself is the only tribunal to decide whether, from the nature of its own previous action, the party is entitled to a dis- charge. With these views, we can only say that until Gov. Reed is ac-\ quitted by the Senate, we cannot acquit him, and that during his 1 suspension his power as Governor to demand our opinion upon / any question of law ceases. We decline to say whether the law applicable to the proceedings of the Senate at its last session en- titled him to a discharge. It would be improper in this court to go beyond saying that the Court of Impeachment is still in exist- ence and must determine the matter. We should not suggest to that court how it should determine a question to come before it in a case now pending. With the circumstances reversed, we should 804 TERMINATION OP THE OFFICIAL RELATION. not be very much obliged to that or any other tribunal should it suggest to us how we should determine a case pending before this court; and should it, unasked by us, give its views of the law of a case pending before this court, we should deem it a grave mistake as well as an improper interference. Being suspended,^ Gov. Reed's relation to us in this matter is no more than that of I a citizen, and it would certainly be improper in us to give a voluny tary opinion to a citizen upon a question of law, and whether we had jurisdiction over the subject-matter or not. / TJIE STATE EX PARTE, V. O'DRISCOLL. Constitutional Court of South Carolina. May, 1815. 2 Treadway's South Carolina Reports 713. Brevard, J. The motion for the reversal of the order of the district court in this case has been placed on various grounds. I will consider and dispose of the objections to the order of the district court in question, in the course in which they are exhibited in the brief. The first is, that the Senate proceeded unconstitu- tionally against the appellant by impeachment, and that their judgment of removal from office is illegal and void. . . . But I think it unnecessary to discuss these questions, as I am of opin- ion that the part of the act of Assembly of 1789 relied on, has been wholly superseded and repealed by the constitution, which declares "that all civil officers shall be liable to impeachment for any misdemeanor in office." The only answer which I shall make to the fourth ground is, that it is not for this court to rectify, or condemn the proceed- ings and judgment of the high court of impeachment; the con- stitution has given no such power, and moreover I think it dis- respectful to that great and independent tribunal, to suffer its proceedings and judgments to be criticised and censured in the manner it was on the argument in this case. Justices COLCOCK, Smith, and Grimke, concurred. The official relation may be terminated also by the abolition of the office. Koch V. The Mayor, 152 N. Y. 72, supra, and the legislature may in the absence of a constitutional Inhibition declare an office vacant by the passage of a law. See cases cited In Attorney General v. Jochlm, 99 Mich. 358, supra. CHAPTER VI, COMPENSATION OF OFFICERS. I. Not Based on Contbact.* WHITE V. INHABITANTS OF LEVANT. Supreme Judicial Court of Maine. January, 1887. 78 Maine 568. Walton, J. The only question we find it necessary to con- sider is whether one who has accepted a town office to which neither the legislature nor the town has annexed any compensation, can maintain an action to recover compensation for his official serv- ices. It is well settled that he cannot. The compensation of some town officers is provided for by statute. The compensation of assessors, selectmen, and overseers of the poor, is thus provided. R. S. c. 6, sec. 102. Such compensation may of course be recovered, whether the town is willing to pay or not. So, if the town has ex- pressly voted a compensation. But in the absence of any such stat- ute or vote, no compensation can be recovered. Talbot v. East Machias, 76 Maine 415 ; Sikes v. Hatfield, 13 Gray 347 ; Walker v. Cook, 129 Mass. 578; Dillon's Mun. Corp. (2d ed.) Sec. 169. The plaintiff has obtained a verdict on a claim made up largely of charges for his official services as town agent. Unfortunately for him neither the town nor the legislature has annexed any compensation to his office. The verdict, therefore, is contrary to law, and must be set aside. The motion is sustained, the verdict set aside, and a new trial granted. Peters, C. J., Danforth, Emery, Foster, and Haskell, JJ., concurred. ♦In the absence of a constitutional inhibition the legislature Is to fix the compensation of an officer which it may change during the term of an in- cumbent. Butler V, Pennsylvania, 10 How. U. S. 402, supra. 20 305 306 COMPENSATION OP OFPICEES. COUNTY OF LANCASTER V. FULTON. Supreme Court of Pennsylvania. October, 1889. 128 Pa. 8t. 48. Opinion by Mr. Justice Sterrett: In his statement and affidavit of claim, plaintiff below avers that his demand is founded upon a contract between himself and the county commissioners, dated June 28, 1882, by which he agreed to collect from the Commonwealth all overpaid taxes on personal property then due; for which services the county, by its com- missioners, agreed to pay him twenty-five per centum on the amount or amounts which might be credited to it in its accounts with the Commonwealth. • •••••••• • That, "in pursuance of said agreement and resolution the plain- tiff, after five years of work, labor, and great expense .... procured a credit settlement in favor of the county ... in its account with the Commonwealth, of $20,823.50; of overpaid taxes included in the terms of said contract, ' ' etc. ; and the plain- tiff 's compensation for services, etc., as specified in said agreement and resolution, is $5,205.87, which sum is now due with interest thereon from June 20, 1887. In substance, the defence interposed by the county was, that at the time the resolution of June 28, 1882, was adopted, plaintiff below "was the duly elected and qualified solicitor" of the county, serving under the act of February 18, 1870, at a salary of $500 fixed by that act; and, for that reason, neither he nor the county commissioners had any power or authority to enter into the con- tract, under which the services were rendered, and on which the claim is founded. It is conceded that when the contract was made and for a considerable time thereafter, plaintiff below was the duly elected and qualified solicitor of the county. • ••••«••• • He was undoubtedly a public officer within the meaning of the constitution, article III, Sec. 13, and article XIV, Sec. 1 and 5, the first of which declares: "No law shall extend the term of any public officer or increase or diminish his salary or emoluments, after his election or appointment." The services for which the contract in question undertakes to COUNTY OF LANCASTER V. FULTON. 307 provide, are clearly within the sphere of the duties of the "so- licitor of Lancaster county," as defined by the act of February 18, 1870. What authority, then, had either the plaintiff below, or the county commissioners, to enter into a contract to compensate the former for services within the sphere of his duties as solicitor of the county? We are of opinion that they had none; that the act of the commissioners in undertaking to bind the county to pay the compensation provided for in the contract was ultra vires. Doubt- less the very object of the act in creating the office of county so- licitor, provided for his election and fixing his salary, etc., was to take the power out of the hands of the county commissioners and place it beyond their reach. But be that as it may, we think the contract was ultra vires and void, and that the first and second points for charge submitted by defendant below, should have been affirmed. In saying, as he correctly did, that if the services of plaintiff below "had been rendered while he was county solicitor, then there could be no recovery," the learned judge rightly assumed that the contract in question was unauthorized and illegal. All such contracts, whether intended to be so or not, are in effect evasive and subversive of law, contrary to public policy, and there- fore void. Plaintiff's statement of claim avers, and his own testimony proves most conclusively, that all the services for which he claims to recover compensation were rendered under and in pursuance of the original contract. **I commenced under this contract." "I never rejected the contract, as a matter of course. " "I continued in this service, beginning on this contract." "I went on under this contract," and many similar questions in his answers to ques- tions put to him on cross-examination. There is no pretence that any new agreement was entered into, or the terms of the original in any manner changed after the ex- piration of his term of office. Neither the subject of a new contract nor the modification of the original ever appears to have been considered by the parties. The services of plaintiff below were no doubt efficient and valuable ; but, so far as they were rendered during his term of office, his salary is all the compensation he can claim. As to services rendered after the expiration of his term 308 COMPENSATION OF OFFICERS. of office, under and in pursuance of the original illegal and void contract, he cannot, under the pleadings and evidence in this case recover. Judgment reversed. Mr. Justice Mitchell dissented. CONVERSE V. THE UNITED STATES. Supreme Court of the United States. December, 1858. 21 How. (V. S.) 463. Mr. Chief Justice Taney delivered the opinion of the court. It is obvious, therefore, that in order to carry into execution the intention of the legislative department of the government, these various laws on the same subject-matter must be taken to- gether and construed in connection with each other. And we should defeat instead of carrying into execution the will of the law-making power, if we selected one or two of these acts, and founded our judgment on the language they contained, without comparing and considering them in association with other laws passed upon the same subject. The just and fair inference from these acts of Congress, taken together, is, that no discretion is left to the head of a depart- ment to allow an officer who has a fixed compensation any credit bej'ond his salary, unless the service he has performed is required by existing laws, and the remuneration for them fixed by law. It was undoubtedly within the power of the department to order this collector, and every other collector in the Union, to purchase the articles required for light-house purposes in their respective districts, and to make the necessary disbursements therefor. And for such services he would be entitled to no compensation bej'ond his salary as collector, if that salary exceeded $2,500. But the secretary was not bound to intrust this service to the several collectors. He had a right, if he supposed the public interest required it, to have the whole service performed by a single agent; for wKTle the law authorizes him to exact this serv- CONVERSE V. UNITED STATES. 309 ice from the several collectors, it at the same time evidently author- izes him to commit the whole to an agent or agents other than the collectors, by regulating the commission which an agent shall re- ceive, and appropriating money for payment of commissions of two and a half per cent upon the whole amount authorized to be expended in this service. And as the collectors would by law be entitled in some cases to nothing, and in others to the small sum above mentioned, if the service was performed by them in their respective districts, it is very clear, from the commissions allowed, and the appropriation to pay them, that he was at liberty to employ a different agency, and pay the commissions given by the law whenever he supposed the public would be better served by this arrangement. And the case as assumed in the record, is precisely that case. The Secretary had no right, under the laws upon this subject, to order this or any other collector to perform this duty for all the light-house and collection districts. The law has divided it among them, and the executive department had no right to im- pose it upon one. But he had a right, as we have said, to employ an agent, instead of the collector or collectors of the several districts; and if he did employ one, the law fixed the compensation, and appropriated the money to pay it. He was not forbidden to employ a revenue officer for this purpose ; and, so far as services were per- formed for other districts, he stood in. the same relation to the government as any other agent. The law forbidding compensa- tion, or reducing it to a small amount, did not apply to this service. The agency was entirely foreign to his official duties, and far be- yond the limits to which the law confined his official duties and power. And as the department appointed him to perform a duty required by law, for which the compensation was fixed by law, and the money appropriated to pay it, he is entitled to the com- pensation given by law, if he has performed the duty ; for the Sec- retary has no more discretionary power to withhold what the law gives, than he has to give what the law does not authorize. The agency and services performed in this instance had no more connection with his official duties and position than the purchase of a supply of shoes for the troops in Mexico, in the late war, would have been, in the absence of any other person authorized to make such a purchase. And if such a duty was requested or re- quired of him by the head of the proper department, and per- formed, nobody would deny his right to compensation, if the law 310 COMPENSATION OP OPPICBBS. authorized and required the service to be done, and fixed the compensation for it. Upon the case, therefore, as the plaintiff in error offered to prove it, we think the court erred in refusing to admit the testimony. Undoubtedly, Congress have the power to prohibit the Secre- tary from demanding or receiving of a public oflScer any service in any other office or capacity, and to prohibit the same person from accepting or executing the duties of any agency for the gov- ernment, of any description, while he is in office,. and to deny compensation altogether, if the officer chooses to perform the serv- ices ; or they may require an officer holding an office with a certain salary, however small, to perform any duty directed by the head of the department, however onerous or hazardous, without additional compensation. But the legislative department of the govern- ment have never acted upon such principles, nor is there any law which looks to such a policy, or to such unlimited power in the head of an executive department over its subordinate officers. No explanation is given of the principle upon which the fourj hundred dollars additional compensation was allowed. If the services were regarded as extra and additional, and within the \ prohibition of the law, then he was not entitled to this additional J allowance, because his salary exceeded twenty-five hundred dollars ) and nothing more than the salary fixed ought to have been allowed j him. But if they were not within the prohibition, but for serv-\ ices in a different agency, then he was entitled, not merely to four 1 hundred dollars, but to the commission fixed by law. This sum could not have been allowed for supplies in his own district, ex- cluding those for other districts, because, as regards his own districts there is an express prohibition as above stated. We, however, ex- press no opinion upon that particular item, and whether it is a proper allowance or not, must be determined by the circuit courtJ when it hears the evidence at the trial. For the reasons above stated, the judgment of the Circuit Court must be reversed. Mr. Justice Catron, Mr. Justice Grier, and Mr. Justice Camp- bell dissented. The doctrine of the principal case Is also applied where there Is no pro- vision of law as to extra compensation. Thus where the mayor of a city Is employed to defend a suit against the city he may recover for his ser- vices. Nlles V. Muzzy, 33 Mich. 61. UNITED STATES V. SAUNDERS. 311 UNITED STATES V. SAUNDERS. Supreme Court of the United States. January, 1887. 120 V. 8. 126. Mr. Justice Miller delivered the opinion of the court. Saunders, appellee in this case recovered against the United States in the Court of Claims a judgment for $1,627.00, from which the United States appealed. The recovery was for the salary of the claimant as clerk of the Committee on Commerce of the House of Representatives, from the 14th day of March, 1885, to the 7th day of January, 1886, at the rate of $2,000.00 per an- num. Mr. Saunders held this place from the 1st day of July, 1884, when he was appointed, up to the 7th day of January, 1886, when his successor was appointed. He was paid the compensation up to the 14th of March, 1885, and for the time between that and the 7th day of January, 1886, the Comptroller refused to pay him. The various appropriation acts, including the one which would cover the period now in question, had all made appropriations for compensa- tion for the clerk of the Committee on Commerce. The ground upon which payment is resisted by the United States is, that the claimant was, on the 14th day of March, 1885, appointed a clerk in the office of the President of the United States, since which time he has continued to perform the duties of that office and re- ceive its salary. The Comptroller, in his decision refusing to al- low the claim, places his objection upon section 1765 Rev. Stat., and upon the opinion of Attorney General Black, in regard to ex- tra pay and double compensation, delivered in 1857. 9 Opinions Att'y Gen. 123. Section 1765 is found in immediate connection with several other sections on the same subject, of which the two immediately preceding may be considered to some extent in pari materia. The general question here raised has been much discussed in the opinions of the Attorneys General, and in the decisions of this court. This section 1765, mainly relied upon by the govern- ment, is taken from two statutes, the first passed March 3, 1839, 5 Stat. 339, 349, and the second, August 23, 1842, 5 Stat. 508, 510. This opinion of Attorney General Black seems to be in conflict with the principles laid down by his predecessors, and is materially 312 COMPENSATION OF OFFICERS. modified if not overruled, on the point mainly in question here, by his opinion in the case of J. P. Brown, on page 507 of the same volume. In Hiero's Case, 5 Opinions Attys. Gen. 765, At- torney General Crittenden held that these two acts of 1839 and 1842 ''were intended to fence against arbitrary extra allowances in each particular case, but do not apply to distinct employments, with salaries or compensation affixed to each by law or by regula- tion." The case before us comes within the terms of this language, which is further confirmed by the fact that he regarded the act of 1850 as prohibiting a person "from receiving the salary of an office which he does not hold, and not against his receiving the salaries of two offices which he does legitimately hold;" and we do not see that there is any distinction between emoluments re- ceived for two distinct employments, whether offices or not, the salaries of which are distinct, and the services rendered distinct, both appointments being held by the same person, as in this case. We are of opinion that, taking these sections all together, the pur- pose of this legislation was to prevent a person holding an office or appointment, for which the law provides a definite compensar tion by way of salary or otherwise, which is intended to cover all the services which, as such officer, he may be called upon to render, from receiving extra compensation, additional allowances, or pay | for other services which may be required of him either by act of \ Congress or by order of the head of his Department, or in any other \ mode, added to or connected with the regular duties of the place which be holds ; but that they have no application to the case of two distinct offices, places, or employments, each of which has its own duties and its own compensation, which offices may both be held by one person at the same time. In the latter case he is in the eye of the law two officers, or holds two places or appointments, the functions of which are separate and distinct, and, according to all the decisions, he is in such case entitled to recover the two compen- sations. In the former case he performs the added duties under his"^ appointment to a single place, and the statute has provided that hey shall receive no additional compensation for that class of duties unless it is so provided by special legislation. The case of United States V. Brindle, 110 U. S. 688, in which an Indian agent re- ceived large additional compensation for services connected with the sale of lands belonging to the Indians of his agency, which was affirmed in this court, was upon the ground that these additional services were performed for the benefit of the Indians, and the UNITED STATES V. FLAIJDERS. 313 statute implied the payment of a reasonable compensation for such services. See also Converse v. United States, 21 How. 463. These views require the affirmance of the judgment of the Court 01 Claims ; and it is ordered. Affirmed. UNITED STATES V. FLANDERS & OTHERS. Supreme Court of the United States. October, 1884. 112 United States Reports 88. Mr, Justice Blatchpord delivered the opinion of the court. This is a suit brought by the United States in the Circuit Court of the United States for the Eastern District of Louisiana, against George S. Denison and the sureties on his bond, as collector of internal revenue for the first collection district of Louisiana, to re- cover $4,3r46.84, as public money which he collected and did not pay over. Three of the sureties defended the suit, and, on a trial before a jury, there was a verdict in their favor, and a judgment accordingly. The United States have sued out a writ of error. The answer sets up that Denison, or his estate, is entitled to further credits than those delivered to him, which claims for cred- its he presented to the accounting officers of the Treasury, but they disallowed them, to the amount of $4,199.74, on account of his compensation as collector, and to the amount of $777, on ac- count of money paid by him for necessary and legal advertising. The counsel for the plaintiffs requested the court to instruct the jury, that, during the time Denison was collector, the law did not provide for the reimbursement to collectors of internal revenue of any amount expended by them for advertisements; and that, there being no proof that the Secretary of the Treasury had ever made any allowance to Denison for amounts expended by him for advertisements, nothing could be allowed to the defendants for advertising. The court refused to give that instruction, but gave the following: that *'if, in accordance with the terms of the statute, defendant Denison was required as collector of internal revenue, to make, and did make, in certain newspapers, certain advertisements, for which he was required to pay, and did pay, 814 COMPENSATION OF OFFICERS. and if, also, the jury found that the amounts so paid were reas- onable and proper amounts, he was entitled to a credit for the amounts so paid by him, although the Secretary of the Treasury had made no allowance to him therefor." To this refusal and instruction the plaintiffs excepted. The instruction given is not open to the criticism made, that it submitted to the jury a question of law. It was not left to the* jury to determine whether the advertising for which credit was claimed was such as the collector was required to make, in the sense that it was left to the jury to determine what advertisements the law required to be made. But it must be inferred, that the court explained the statute as to the advertisements, and the fair meaning of the instruction is, that it was left to the jury to say whether, in view of the advertisements which the statute, as ex- plained by the court, required, those made by the collector were such advertisements, and were made and were paid for, and were reasonable and proper in amount. In Andrews v. United States, 2 Story, 202, which was a suit on the bond of a collector of customs, Mr. Justice Story held, that expenditures, by a collector of customs, for office rent, fuel, clerk, hire, and stationery were properly to be deemed incident to the office, and ought, therefore, to be allowed as proper charges againstl the United States, and as a set-off in the suit. In that case, the/ statute required the collector to keep and transmit accounts ofl those particular expenditures. The Treasury Department dis- allowed them, but the court held, that the statute contemplated \ their allowance, and that the collector had a right to be reimbursed \ their amount, even though he did not keep or transmit the accounts^ of them. The view taken was, that, if a claim, though not strictly 1 of a legal nature, was ex aequo ex hono due to the defendant, for moneys expended on account of, and for the benefit of the United States, he was entitled to an allowance and compensation there- J for, upon the footing a quantum meruit, under section 3 of the/ Act of March 3, 1797, 1 Stat. 514. That statute is now embodied in § 957 of the Revised Statutes, which provides that, in all suits against a person accountable for public moneys, he may show that he is equitably entitled to credits which have been rejected. In United States v. Wilkins, 6 Wheat. 135, 144, this court said, of § 3 of the act of 1797, that it supposed that "not merely legal but equitable credits ought to be allowed to debtors of the United States, by the proper offictrs of the Treasury;" that all such cred- LOCKE V. THE CITY OF CENTRAL, 315 its could be allowed at the trial of the suit ; and that a judgment was required for such sum only as the defendant, in equity and justice, should be proved to owe to the United States, This view was affirmed in Gratiot v. United States, 15 Pet. 336, 370, and in Watkins v. United States, 9 Wall. 759, 765. ^ In the present case, the statute required the advertisements to be made, and there is nothing in it which implies that they are/ to be paid for out of the compensation to be allowed, or that theyl are to be reimbursed because they are not named with stationery' and blank books, or because "advertising" was first inserted in the act of 1865. In section 115 of the same act of July 1, 1862, 12 Stat. 488, it was provided, that the pay of collectors should be paid out of the accruing internal duties or taxes, before they were paid into the Treasury, and $500,000 was appropriated ''for the purpose of paying" various specified expenses, including "ad- vertising and any other expenses of carrying this act into effect. This advertising was an expense of carrying the act into effect, and was aside from the pay of the collector, and was to be paid""] out of the Treasury, as an expense. The allowance of it by the-i accounting officers or otherwise was not a prerequisite to the right of Denison to have it credited to him in this suit. Campbell v. United States, 107 U. S. 407. The judgment of the Circuit Court is affirmed. The same rule is applied where the expenses have been incurred at the instance and for the benefit of a third person. Maitland v. Martin, 86 Pa. St. 120. II. Relation to Work Done. LOCKE V. THE CITY OF CENTRAL. Supreme Court of Colorado. April, 1878. 4 Colorado, 65. 'Judgment of nonsuit was entered against the plaintiff in the court below. Thatcher, C. J. In April, 1874, Bradford H. Locke was duly elected by the council of the city of Central, as city surveyor for the then ensuing municipal year. His general duties were pre- scribed by ordinance; which also provided that he should "per- 316 COarPENSATION OF OFFICERS. form such other duties as might be enjoined upon him by ordinance or resolution of the city council." The same ordinance prescribed the compensation he should receive for surveying, subdivding or giving the grade of any lot or piece of ground within the city, and furnishing a certificate thereof — ^which compensation was to be paid by the parties at whose request such work was done. The ordinance is silent as to fees to be paid the city surveyor for all other services. It was admitted at the trial that he had received full compensation for such work as the ordinance prescribed fees. The suit was instituted to recover for the performance of various duties, imposed upon him by ordinance or resolution, for which no fees were fixed. The plaintiff proceeded upon the notion that upon an implied assumpsit he was entitled to recover from the municipal corporation whatever his services were reasonably worth for the ilischarge of all duties for which the ordinance allowed no compen- sation. It is competent for the city council to increase or diminish the fees pertaining to the office of city surveyor, or abolish them al- together. Its incumbent, if the fees be diminished or entirely taken away, may at once resign. As the relation between himself and the city does not rest upon contract, he is not legally bound to con- tinue his services until the expiration of his term. But having accepted the office, as long as he performs its duties, the measure of his compensation must be determined by the city authorities. Where the relation of employer and employee exists both par- ties are bound by the terms of the contract. If either party vio- lates his agreement with the other, he may sue for breach of con- tract. If the employer discharge the employee before the expira- tion of his term of service, he can be made to respond in dam- ages. But between a municipal corporation and its officers, a. very different relation exists. If an officer neglects to perform his/ duties, the municipality has no remedy against him for breach/ of contract. At his pleasure he may relinquish his office. His remuneration for services to be rendered may, in the absence of any charter restriction, be changed from time to time at the will of the city council. In the City of Hoboken v. Gear, 3 Dutcher, 278, the court says: "An appointment to a public office, therefore;] either by the government or by a municipal corporation, under! a law fixing the compensation and the term of its continuance,! is neither a contract between the public and the officer that the 1 service shall continue during the designated term, nor that the j salary shall not be changed during the term of office. It is, at most^ FITZSIMMONS V. CITY OF BROOKLYN. 317 a contract that while the party continues to perform the duties of the office he shall receive the compensation which may from time to time he provided hy law." See, also, Baker v. The City of Utica, 19 N. Y. 326 ; Smith v. The Mayor of New York, 37 id. 520 ; The Commonwealth v. Bacon, 6 Serg, & Rawle, 322. As the city surveyor entered upon the performance of the duties incident to his office with reference to the provisions of the city charter and ordinances, no assumpsit is implied on the part of the corporation in respect to his services. 1 Dill, on Mun. Corp. § 169, and cases cited. That during the year the plaintiff in error served the city of Central the duties of the city surveyor were more onerous than usual, by reason of the great fire that had destroyed a large portion of the city, cannot be held to affect or modify the rule here laid down. A departure from it cannot but be fraught with mischief' to the public service. Whether the dictate of common honesty, under the peculiar state of facts presented by the record in this cause, should have prompted the city council to make the city sur- veyor additional allowance for his services, it is not our province to determine. It will follow from what we have before said in relation to im- plied assumpsit, that the offer to prove that the city council had paid its former "surveyors on bills presented from time to time irrespective of said ordinance' ' was properly rejected. The judgment of the court below is affirmed with costs. Affirmed. FITZSIMMONS V. CITY OF BROOKLYN. Court of Appeals of New York. June, 1886. 102 N. Y. 536. Finch, J. This case presents the question whether an officer entitled by law to a fixed annual salary, but prevented for a time by no default of his own from performing the duties of his office, and earning during that time the wages of another and different employment, must deduct them from his recovery when he sues for his unpaid salary. 318 COMPENSATION OP OFFICERS. The plaintiff was a policeman of the city of Brooklyn, duly appointed to that office and having entered upon the performance of its duties. He was attempted to be removed from office by the police commissioners, but upon a certiorari the order of removal was reversed and the plaintiff restored to his office. Between the order of removal and that of restoration he rendered no service as policeman, because not permitted so to do, but during the inter- val resumed for a time his old occupation as a machinist, and that failing, engaged in work at Schutzen park, the character of which is not disclosed; and from these two sources earned during the period of his removal the sum of $500. The defendant conceded that plaintiff was entitled to recover the unpaid salary of his of- fice, but insisted that his earnings of $500 should be applied upon and deducted from it. The court refused the deduction, the Gen- eral Term affirmed the judgment, and the defendant brought this appeal. The rule sought to be applied by the city to the claim of the plaintiff finds its usual and ordinary operation in cases of master and servant and landlord and tenant; relations not at all analo- gous to those existing between the officer and the state or municipal- ity. The rule in those cases is founded upon the fact that the ac-^ tion is brought for a breach of contract and aims to recover dam- ages for that breach, or compensation for the servant's loss actu-, ally sustained by the default of the master. That loss he is re- quired to make as small as he reasonably can. His discharge with-l out just cause is not a license for voluntary idleness at the expense of the master. If he can obtain other employment he is bound to do 80, and, if he engages in other service, what he thus earns reduces his loss flowing from the broken contract. But this rule of dam- ages has no application to the case of an officer suing for his sal- ary, and for the obvious reason that there is no broken contract or damages for its breach where there is no contract. We have often held that there is no contract between the officer and state or municipality by force of which the salary is payable. That belongs to him as an incident of his office, and so long as he holds it; and when improperly withheld he may sue for it and recover it. When he does so he is entitled to its full amount, not by force of any contract, but because the law attaches it to the office; and there is no question of breach of contract or resultant damages out of which the doctrine invoked has grown. We think, therefore, it has no application to the case at bar, and the courts below were o'leary v. board of education. 319 right in refusing to diminish the recovery by applying the wages earned. The judgment should be affirmed, with costs. Judgment affirmed. All concur. But one who Is rightfully suspended has no claim for salary even if re- instated. Embry v. United States, 100 U. S. 680. O'LEARY V. BOARD OP EDUCATION. Court of Appeals of New York. June, 1883. 93 N. Y. 1. Miller, J. The plaintiff claims to recover for his salary as a clerk in the employment of the board of education, from the first of May, 1871, to the 26th of September, 1871, when the finance committee by a resolution, directed that he be removed, and that his removal take effect from the 1st of May, previous. The plain- tiff was appointed to his position in 1869 and rendered services until November, 1870, when he made application, stating that he was about to have an operation for cataract performed, and asking for leave of absence until his sight should be restored Upon the letter asking for leave, and filed with the board of edu- cation, was an endorsement, signed with the initials of the chair- man of the finance committee, to the effect that it was granted with inquiries to be made from time to time by the clerk of the board. It would thus seem that the board of education had cognizance of the application and through its financial officer signified its as- sent to the same. The plaintiff had an operaljion performed, and reported at the office of the board in February, 1871, but being still unable to perform any duty, on account of his eyes, he was obliged to have another operation performed in the month of March. He again reported in May, 1871, and stated to the president of the board and one of the officers that he was advised to go to Ireland for the benefit of his health. He presented to them the doctor's certificate and they told him he could go. Upon the facts stated there would seem to be no question but that the plaintiff acted under a belief that he had a leave of absence which authorized him to go to Europe on account of the difficulty under which he 320 COMPENSATION OF OPPICEBS. labored, and it would seem that the officers of the defendant, with whom he had communication on the subject, must have supposed that such was his intention. It is true the leave of absence was somewhat indefinite, no time being fixed by which it was limited to any particular period; but the leave of absence which was granted could have been withdrawn at any time by the defendant, or, in the discretion of the board, brought to an end by a notice] to plaintiff that his services were no longer required, or a resolu- tion discharging him from his position would have relieved the defendant from the effect of the permission granted to him and exonerated it from all liability. This was not done until September following, as already stated, when he was informed that his serv- ices were no longer required. That the defendant considered the plaintiff in its employment until he was thus discharged is indi- cated very clearly by its action in regard to the payment of his salary. The pay-rolls for the months of May and June show that the plaintiff's salary for these months was audited by the auditing committee of the board. The defendant thus recognized that the plaintiff was still in its employment and entitled to pay as one of its employes. This was an approval and a ratification of the leave which had been previously granted, and even if such leave orig- inally, of itself, was insufficient, the subsequent action in allowing plaintiff the amount of his salary he claimed to be entitled to, evinces that the defendant assented to his absence and considered him still in its employment. The plaintiff was clearly entitled to the amount of salary which had been audited to him for the months of May and June, nor are we able to see any reason why he should not be entitled to his salary subsequent to that period and up to the time when the resolution of removal was adopted. He left for Europe on the 15th of May, and at that time no action had been taken by the defendant. He was clearly entitled to his salary up to that date, and the auditing of the bills continued it up to the 1st of July. After that and until the early part of September the public schools were closed, as was also the office of the department and the general office, and all the employes went on their vacation. There was then no service for the plaintiff to perform during this period, and he had the leisure which was allotted to all in the de- partment and to which he was clearly entitled with them. The defendant having excused the plaintiff for good cause and sufficient reasons from a temporary discharge of his duty, and failing to take any action indicating its intention to relieve him from his office, we think must be regarded as assenting to his ab- o'leary v. board of education. 321 sence and it is estopped from insisting or claiming that the plain- tiff was not in its employment. If it was considered that his duties were at an end, some steps should have been taken and he notified that such was the intention of the board. ♦ "When the salary of a public officer is fixed, such officer is entitled to his salary and it cannot be taken away except for good and suf- ficient cause. While sickness in some cases may furnish sufficient reason for the removal of such officer, yet where the evidence shows that his absence on account of the same has been permitted, no valid reason exists why he should not be entitled to compensation until some action is taken on the subject. People ex rel. Ryan v. French, 14 W'kly Dig. 173. The resolution of the auditing com- mittee, so far as it purposed to affect and date back the plaintiff's removal to the first day of May, could have no force. It could not impair the leave of absence which had previously been granted and which was subsequently ratified by the action of the board. The rights of the plaintiff which had accrued prior to the resolution, could not be affected thereby, it was retrospective in its character and operation and without any validity whatever. We think that the finding of the referee, that the plaintiff was not in the employment of the defendant, was erroneous and cannot be upheld. The claim of the respondent's counsel that the resolu- tion of the finance committee was not sufficient to relieve plaintiff from service cannot be sustained. There is nothing to show a want of authority in such committee, and the presumption is that it was authorized, in view of all the facts, to grant him leave of absence. The subsequent action in auditing the plaintiff's salary and the failure of the board to take any action discharging him, until the resolution of the finance committee in September, to which reference has been had, evinces that the leave of absence was granted by the proper authority. There is no ground for claiming that the allowance of the plaintiff's claim was in the nature of a pension or a gratuity and without the sanction of law. A discre- tionary power must exist in a board of public officers to determine when and to what extent persons in their employment should be excused by reason of sickness or temporary disability, and unless it is clear that such discretion has been abused it should not be over- ruled and disregarded. In the case of People ex rel. Burnet v. Jackson, 85 N. Y. 541, the board allowed payment to the estate of a deceased teacher, and the question involved was entirely of a different character from the one here presented. The principle a 322 COMPENSATION OP OFFICERS. there involved has no application to the case at bar, where the officer was recognized as being in the employment of the board. The case now presented does not involve the question as to the ♦ power to grant gratuities as additional compensation for services rendered which are not authorized by law. We think the defendant was clearly liable for the payment of the plaintiff's claim, and the judgment should be reversed, a new trial granted, costs to abide the event. All concur, except Ai«)rews and Earl, JJ., dissenting. Judgment reversed. See also Dolan v. Mayor. 68 N. Y. 274 and Nichols v. MacLean, 101 N, T. 526, supra. III. Change op Compensation. KEHN V. STATE OF NEW YORK. Court of Appeals of New York. October, 1883. 93 N. Y. 291. Rapallo, J. The uncontroverted evidence shows that on the 1st of May, 1880, the appellant was employed by Mr. Hyde, superin- tendent of the old capitol, as fireman therein, and continued to serve in that capacity from the time of his employment until the filing of his claim before the board of audit, which was in November or December, 1881. He claims pay at the rate of $3 per day during that period by virtue of a provision in the general appropriation acts of 1875, which reads as follows: "And the compensation of the men em- ployed as firemen in the capitol is hereby fixed at $3 per day to each of them. Such salaries shall be paid upon the certificate of the keeper of the capitol." The appellant was paid at the rate thus prescribed by law from the time of his employment up to the 24th of May, 1880, when the superintendent claiming to act under the direction of the comp- troller, refused to allow him more than $1.50 per day during the summer months, and he made this reduction for the periods from May 24, 1880, to September 30, 1880, from May 21, 1881, to June 30, 1881. The appellant received the reduced pay during these periods, but there is no evidence that he ever agreed to the r©- KEHN V. STATE OF NEW YORK. 323 duction. From ^^une 30, 1881, to September 30, 1881, he declined to receive the reduced pay, and has been paid nothing. The pre- sent claim is for the sums necessary to make up his full pay of $3 per day up to September 30, 1881. The board of audit rejected the claim, and on appeal to the Supreme Court, the General Term sustained the decision on two grounds. First, that the appellant was hired and agreed to work for $1.50 per day, and was not employed as fireman. Second, that, if otherwise, the rate fixed by statute as fireman's pay might be modified and reduced by the agreement of the parties. The first ground is, we think, wholly untenable under the evi- dence. As to the second ground upon which the General Term place their decision, we think it comes within the decision of this court in People ex rel. Satterlee v. Board of Police, 75 N. Y. 38, where it was held that the board of police commissioners could not reduce the amount fixed by law as the salary of a police surgeon and procure persons to act at a less sum than the statute prescribed. To the same effect is Goldborough v. U. S., Taney's C. C. Decisions 80, In that case it was further held that it was immaterial whether the person whose salary is fixed by law is or is not an officer, so long as he is specified in the law fixing his salary. The present case however is stronger than either of those cited. At the time appellant entered into the service his pay was fixed by law and there is no evidence that he ever consented to a change. It was reduced by the superintendent and for a portion of the time the appellant took the reduced pay but that does not estop him from claiming his full pay if he was legally entitled to it. Mon- tague's Adm'r v. Massey, 13 Reporter 701. "We think the appellant was entitled to a salary of $3 per day so long as he was retained as fireman and that his claim should have been allowed. The judgments of the General Term and of the board of audit should, therefore, be reversed and judgment rendered in favor of the appellant for the amount of his claim, with costs. All concur, except Earl, J., not voting. Judgment accordingly. The same rule Is applied in case the compensation consists of fees. Hewitt v. White, 78 Mich. 117. 824 COMPENSATION OF OFFICERS. UNITED STATES V. LANGSTON. Supreme Court of the United States. May, 1886. 118 U. 8. 389. This was a petition in the Court of Claims to recover an unpaid balance of salary claimed to be due defendant in error as minister resident at Hayti. The defence was that Congress, by appropriat- ing a lesser sum, had indicated its purpose to reduce the salary. The case is stated in the opinion of the court. Judgment below in favor of the plaintiff from which the defendant appealed. Mr. Justice Harlan delivered the opinion of the court. From September 28, 1877, until July 24, 1885, the claimant, John M. Langston, held the office of Minister Resident and Consul General of the United States at the Republic of Hayti. At the time he entered upon the discharge of his duties it was provided by statute as follows: "There shall be a diplomatic representative of the United States to each of the Republics of Haj-ti and Liberia, who shall be appointed by the President, by and with the advice and consent of the Senate, and shall be accredited as Minister Resi- dent and Consul General. The representative at Hayti shall be entitled to a salary of $7,500 a year, and the representative at Liberia to a salary not exceeding $4,000 a year. " Rev. Stat. § 1683. The sum of $7,500 was annually appropriated for the salary of the minister to Hayti, from the creation of the office until the year 1883. In the Diplomatic and Consular Appropriation Act of July 1, 1882, certain suras were appropriated "for the service of the fiscal year ending June 30, 1883, out of any money in the treasury, not otherwise appropriated, for the object therein expressed," one of them being * ' for ministers resident and consuls general to Liberia, Hayti, Switzerland, Denmark, and Portugal, at $5,000 each, $25,- 000." 22 Stat. 128. The same act provided that "hereafter the Sec- retary of State shall, in the estimate of the annual expenditures of diplomatic and consular service, estimate for the entire amount re- quired for its support, including all commercial agents, and other officers, whether paid by fees or otherwise, specifying the compensa- tion to be allowed or deemed advisable in each individual case." 22 Stat. 133. It is stated in the brief of the Attorney General that the Secretary of State made a specific estimate for the salary of the minister resident and consul general to Hajiii for the fiscal year UNITED STATES V. LANGSTON. 325 commencing July 1, 1883 and 1884, and that that estimate was $5000 in each report. For each of the fiscal years ending June 30, 1884, and June 30, 1885, the appropriation for the minister resi- dent and consul general at Hayti was $5000, and in the same lang- uage as that employed in reference to that officer in the act for the fiscal year ending June 30, 1883. The claimant was paid at the rate of $7500 a year up to and including June 30, 1882, and for the balance of his term at the rate only of $5000 a year. He brought this suit to recover the difference between those amounts for the period from June 30, 1882, to July/ 24, 1885. His claim was sustained in the court below, and judg- ment was rendered in his behalf for $7666.66. This case is distinguishable from United States v. Fisher, 109 U. S. 143, 146, and United States v. Mitchell, 109 U. S. 146, 149. In Fisher's case it was held that the clause in the Revised Statutes, fixing the salary of the Chief Justice and associate justice of Wyom- ing at $3,000 per annum, was suspended by the provision in each of the appropriation acts, for the legislative, executive, and judi- cial expenses of the government for the fiscal year ending June 30, 1879 and 1880, which declared that the sum therein specified — among which was $2,600 each to the governor, chief justice, and two associate justices of Wyoming — ^were appropriated "in full com- pensation" for the service of those years. The claim of Fisher for compensation, on the basis fixed by the Revised Statutes, was conse- quently rejected. This court said: **We cannot adopt the view of the appellee, unless we eliminate from the statutes the words *in full compensation,' which Congress, abandoning the long used form of the appropriation acts, has ex industria inserted. Our duty is to give them effect. When Congress has said that the sum ap- propriated shall be in full compensation of the services of the ap- pellee, we cannot say that it shall not be in full compensation, and allow him a greater sum. ' ' In Mitchell's case, the claim was for compensation as an Indian interpreter under §§ 2070 and 2076 of the Revised Statutes, the first one of which declared that interpreters of a certain class shall be paid $400 a year each, and by the second one of which it was provided that the several compensations prescribed ** shall be in full of all emoluments and allowances whatsoever." During the period for which Mitchell claimed compensation at that rate, he received pay at the rate of $300 per annum, under acts appropriat- ing various sums for interpreters, including seven interpreters for 326 COMPENSATION OP OFPICEES. the Indian tribes among whom Mitchell was assigned to duty, "at $300 per annum, $2,100." 19 Stat. 271. In those acts there was also a clause to this effect: **For additional pay of said interpre- ters, to be distributed in the discretion of the Secretary of the In- terior, $6,000." It was held that these acts manifested a change of policy upon the part of Congress, "namely, that instead of estab- lishing a salary for interpreters at a fixed amount, and cutting off all other emoluments and allowances. Congress intended to reduce the salaries, and place a fund at the disposal of the Secretary of the Interior from which, at his discretion, additional allowances and emoluments might be given to the interpreters," The appro- priation by those acts for a fixed sum as compensation for certain interpreters during a prescribed period, followed by the appropria- tion of a round sum as additional pay, to be distributed among them in the discretion of one of the Executive Departments, evinced the intention of Congress not to allow further compensation to such appointees during the periods specified. The case before us does not come within the principle that con- trolled the determination of the other cases. The salary of the\ minister to Hayti was originally fixed at the sum of $7,500. Neither) of the acts appropriating $5,000 for his benefit, during the years in/ question, contains any language to the effect that such sum shall be "in full compensation" for those years; nor was there in either of them an appropriation of money "for additional pay," from which it might be inferred that Congress intended to repeal the act fixing his annual salary at $7,500. Repeals by implication are not favored. It cannot be said that there is a positive repugnancy be- tween the old and the new statutes in question. If by any reason- able construction they can be made to stand together, our duty is to give effect to the provisions of each. Chew Heong v. United States, 112 U. S. 536, 549; State v. Stoll, 17 Wall. 425, 430; Ex parte Yerger, 8 Wall 85, 105; Ex parte Crow Dog, 109 U. S. 556, 570. The suggestion of most weight in support of the view that Congress intended to reduce the salary of the diplomatic representative at Hayti, is in the improbability, that that body would neglect, in any year, to appropriate the full sum to which that officer was entitled under the law as it then existed. On the other hand, it is not prob- able that Congress, knowing, as we must presume it did, that that officer had, in virtue of a statute — whose object was to fix his salary — received annually a salary of $7,500 from the date of the creation of his office, and after expressly declaring in the act of 1878, 20 Stat. 91, 98, that he should receive that salary from and after FISK V. JEFFEESON POLICE JURY, 327 July 1, 1878, and again, in 1879, that he should receive the same amount from and after July 1, 1879, should at a subsequent date, make a permanent reduction of his salary without indicating its purpose to do so, either by express words or repeal, or by such pro- visions as would compel the courts to say that harmony between the old and new statute was impossible. While the case is not free from difficulty, the court is of opinion that, according to the settled rules of interpretation, a statute fixing the annual salary of a public officer at a named sum, without limitation as to time, should not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less amount for the services of that officer for particular fiscal years, and which contained no words that ex- pressly or by clear implication modified or repealed the previous law. The judgment is affirmed. FISK V. JEFFERSON POLICE JURY. Supreme Cngenberg v. Decker, 131 Ind. 471, and Ex parte Lehman, 60 Miss. 967, supra, where petitioners were released from imprisonment for contempt because the orders com- mitting them for contempt were in excess of the jurisdiction of the au- thorities making VLem. IN RE ROBERT M. MARTIN. 687 IV. Committing Magistrateb. IN RE ROBERT M. MARTIN. Circuit Court of the United States. February, 1866. 5 Blatch. (C. C. B.) 303. This was a writ of habeas corpus directed to the Marshal of the Southern District of New York, commanding him to bring the body of Robert M. Martin before the court. As the petition for the writ alleged that the prisoner was detained in custody under a warrant of commitment issued by a United States Commissioner, a writ of certiorari, also, was issued by the court to the commissioner, direct- ing him to send up the proceedings and evidence upon which such commitment was founded. Shipman, J. The power of this court to grant the writ of habeas corpus is not denied, and, therefore, need not now be dwelt upon. Neither shall I discuss at much length its power to grant the writ of certiorari, as ancillary to the former writ. The courts of the United States being courts of limited, though not of inferior juris- diction, their powers must be sought for in the acts of Congress. The 14th section of the Judiciary Act, of September 24th, 1789 (1 TJ. 8. Stat, at Large 81), provides, "that all the before-men- tioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially pro- vided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the Supreme Court, as well as judges of the District Courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in cus- tody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify. ' ' Under the authority conferred by this act, the writ of habeas corpus has been repeatedly granted by the courts of the United States, and by the judges thereof. And, although the power to issue the writ of certiorari is not conferred by name, it is no doubt included under the general term, "all other 688 THE HABEAS CORPUS. writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law." Accordingly, the Supreme Court of the United States in Ex parte Burford, 3 Cranch 448, and in the case of Ex parte Bollmam,, 4 Cranch 75, issued the writ of certiorari, as well as that of habeas corpus. These precedents would be quite sufficient to warrant this court in the exercise of its power to issue the former writ, for, jurisdiction in cases of habeas corpus is conferred upon the Supreme and Circuit Courts by the same words of the act, as well as the power to issue all other writs which may be necessary for the exercise of jurisdiction. The writ of cer- tiorari has always been considered, in appropriate cases, as ancillary to that of habeas corpus, and has long been used by the courts of England and this country, as a means of rendering their jurisdic- tion under the latter writ effective. It is said in Bacon 's Abridge- ment, (Hab. Cor. B. 3) : "As the certiorari alone removes not the body, so the Jmbeas corpus alone removes not the record itself, but only the prisoner with the cause of his commitment ; and, therefore, although, upon the habeas corpus, and the return thereof, the court can judge of the sufficiency or insufficiency of the return and com- mitment, and bail or discharge or remand the prisoner, as the case appears upon the return, yet they cannot, upon the bare return of the habeas corpus, give any judgment, or proceed upon the record' of the indictment, order, or judgment, without the record itself be removed by certiorari." The next question is — ^what proceedings of the committing magis- trate is the certiorari to operate upon and remove into this court T In determining this question, it is proper to notice, in the outset, the functions exercised by the conunissioner in committing a pris- oner to await the action of the grand jury. In this respect he ex- ercises the powers common to all ordinary committing magistrates. If he finds probable cause to hold the party for trial, he commits him ; if not, he discharges him. In neither case is his action final ; or a bar to further proceedings. If the prisoner is discharged, he may be again arrested, and, on sufficient evidence, may be com- mitted. If he is committed, he may apply to the court to reduce his bail, or the prosecuting officer may apply to have it increased, or to discharge him altogether. In none of these proceedings of the commissioner are his orders in the nature of a final judgment of a court of record ; and it is a common practice for courts, in England and in this country, to which a party is committed for trial, to re- IN RE ROBERT M. MARTIN. 689 vise just such orders as the commissioner has made in the present case. This court has repeatedly increased and diminished bail fixed by commissioners, and its authority has never been questioned. Now, in order that this court may exercise intelligently its un- doubted authority over such matters, it must be able to go behind the mere formal order of commitment. In order to fix the amount of bail, it must be possessed of sufficient evidence as to what are the peculiarities of the offence committed — whether it is a merely tech- nical breach of law, or one attended by circumstances of peculiar aggravation or atrocity. The importance of this power of the court, to look into the evi- dence as far as may be necessary, in order to decide whether it is proper or not to hold a prisoner in confinement, will be clearly seen on examining the condition of things if no such power existed. One of two results would follow. Either the prisoner would be kept in confinement just as long as the prosecution might see fit to hold him, or the court would be compelled to make a mere arbitrary order limiting the time within which he should be indicted or discharged. It often happens that prisoners are brought into a district for trial, long before the necessary evidence can be obtained for submission to the grand jury. This happens more frequently in the case of crimes committed on shipboard, in remote parts of the world ; but it may and does occur in other instances. In such cases, the court would not, unless compelled to do so, arbitrarily limit the time within which an indictment should be found or the prisoner be re- leased. It would be all-important that the court should look into the evidence upon which the prisoner was eonunitted, that it might determine whether or not the circumstances surrounding the com- mission of the alleged crime were such as to warrant his further detention in the absence of an indictment. The extent of a justifi- able delay would be different in different cases, depending upon the evidence. To put an order upon the District Attorney, that he should have his indictment in court by a given day, or that the prisoner be discharged, without looking into the evidence, would be a blind exercise of power, little meriting the term judicial. This the court would be compelled to do, unless it had control over, and the power to examine into, the evidence, or else leave the prisoner virtually in the hands of the prosecutor and to such term of con- finement as he might think proper. There is another important consideration which it is proper to 44 690 THE HABEAS CORPUS. advert to. As this court has the power to issue writs of habects cor- pus, for the purpose of inquiring into the cause of commitment (1 TJ. 8. Stat, at Large, 81, § 14; ^x parte Watkins, 3 Peters, 193, 201), it would be compelled in the exercise of this power, where the warrant of commitment was irregular and void on its face, to dis- charge from arrest, unless it could go behind the warrant and ex- amine into the evidence upon which it was founded. This, as I have already shown, would sometimes be impracticable, unless the court could resort to the evidence upon which the commissioner acted, and which might be within reach of the court, on the return to the habeas corpus, only through the commissioner 's minutes or his own testimony. For these reasons, the commissioner who committed the prisoner in this case must answer the certiorari, by producing the evidence taken before him. As this evidence was, I suppose, substantially reduced to writing by him on the hearing, it will be sufficient to produce his minutes thereof, and the affidavit upon which the original warrant of arrest was issued. The warrant itself and the order of commitment are already before the court To avoid all misconception, it may be well to remark, that the principles here laid down, have no necessary relation to the powers conferred upon commissioners under the laws touching the execu- tion of extradition treaties. The return to the certiorari having been made in conformity to the above decision, and the question of the further detention or dis- charge of the prisoner having been heard, the court proceeded to render the following decision : Shipman, J. The evidence and proceedings upon which the pris- oner, Robert H. Martin, was committed to await the action of the grand jury in this court, have been carefully examined and consid- ered by the court. The question now to be determined is, whether he shall be remanded or discharged. It follows, from these views, that there was no sufficient evidence to warrant the commitment of the prisoner for trial in this district. He must, therefore, be discharged from custody under this warrant or order of commitment, and a proper order will be entered to that effect. After Indictment the habeas corpus court will not examine into the guilt or Innocence of the prisoner. People v. Rulloff, 18 How. Pr. (N. Y.) 98. IN RB ROBERT M. MARTIN. 691 V. Courts Having Jurisdiction. EX PARTE BARRY. Supreme Court of the Vnited States. January, 1844. 2 How. (U. S.) 65. Mr. Justice Story delivered the opinion of the court. This is a petition filed in this court for a writ of habeas corpus to be awarded to bring up the body of the infant daughter of the peti- tioner, alleged to be now unlawfully debarred from him, and in the custody of Mrs. Mary Mercein, the grandmother of the said child, in the district of New York. The petitioner is a subject of the queen of Great Britain; and the application in eifect seeks the exercise of original jurisdiction in the matter upon which it is founded. No application has been made to the Circuit Court of the United States for the district of New York, for relief in the premises, either by writ of habeas corpus or de homine replegiando, or otherwise ; and, of course, no case is presented for the exercise of the appellate juris- diction of this court by any review of the final decision and award of the Circuit Court upon any such proceedings. Nor is any case presented for the exercise of the appellate jurisdiction of this court upon a writ of error to the decision of the highest court of law and equity in the state of New York, upon the ground of any question arising under the 25th section of the Judiciary act of 1789, ch. 20. The case, then, is one avowedly and nakedly for the exercise of original jurisdiction by this court. Now the Constitution of the United States has not confided any original jurisdiction to this court, except **in all eases affecting ambassadors, other public min- isters and consuls, and those in which a State shall be a party." The present case falls not within either predicament. It is the case of a private individual who is an alien seeking redress for a sup- posed wrong done him by another private individual, who is a citi- zen of New York. It is plain, therefore, that this court has no original jurisdiction to entertain the present petition ; and we can- not issue any writ of habeas corpus, except when it is necessary for the exercise of the jurisdiction, original or appellate, given to it by the Constitution or laws of the United States. Without, therefore, entering into the merits of the present application, we are compelled by our duty, to dismiss the petition, leaving the petitioner to seek redress in such other tribunal of the United States as may be en- 692 THE HABEAS CX)RPUS. titled to grant it. If the petitioner has any title to redress in those tribunals, the vacancy in the office of the judge of this court as- signed to that circuit and district creates no legal obstruction to the pursuit thereof. But a court possessing appellate jurisdiction only will issue the habeas corpus to relieve one from imprisonment, who is confined under a Judg- ment of a court which is alleged to be in excess of its Jurisdiction, be- cause e. g. a conviction is had under an unconstitutional law. Ex parte Siebold, 100 U. S. 371, supra. IN RE NEAGLE. Supreme Court of the United States. October, 1889. 135 U. S. 1. x^ Mr. Justice Miller, after stating the case, deliv- ered the opinion of the court. The enactments now found in the Revised Statutes of the United States on the subject of the writ of habeas corpus are the result of a4ong course of legislation forced upon Congress by the attempts of the States of the Union to exercise the power of imprisonment over officers and other persons asserting rights under the federal govern- ment or foreign governments, which the states denied. The original act of Congress on the subject of the writ of habeas corpus, by its 14th section, authorized the judges and courts of the United States, in the case of prisoners in jail or in custody under or by color of the authority of the United States, or committed for trial before some court of the same, or when necessary to be brought into court to testify, to issue the writ, and the judge or court before whom they were brought was directed to make inquiry into the cause of com- mitment. 1 Stat. 81, c. 20, § 14. This did not present the ques- tion, or, at least, it gave rise to no question which came before the courts, as to releasing by this writ parties held in custody under the laws of the states. But when, during the controversy growing out of the nullification laws of South Carolina, officers of the United States were* arrested and imprisoned for the performance of their duties in collecting the revenue of the United States in that State, and held by the state authorities, it became necessary for the Con- IN RE NEAGLE. 693 gress of the United States to take some action for their relief. Ac- cordingly the act of Congress of March 2, 1833, 4 Stat. 634, c. 57, § 7, among other remedies for such condition of affairs, provided by the 7th section, that the federal judges should grant writs of habeas corpus in all cases of a prisoner in jail or confinement, where he should be committed or confined on or by any authority or law, for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof. The next extension of the circumstances on which a writ of habeas corpus might issue by the federal judges arose out of the celebrated McLeod Case, in which McLeod, charged with murder in a state court of New York, had pleaded that he was a British subject, and that what he had done was under and by the authority of his gov- ernment, and should be a matter of international adjustment, and that he was not subject to be tried by a court of New York under the laws of that State. The federal government acknowledged the force of this reasoning, and undertook to obtain from the govern- ment of the State of New York the release of the prisoner, but failed. He was, however, tried and acquitted, and afterwards re- leased by the State of New York. This led to an extension of the powers of the federal judges under the writ of habeas corpus, by the act of Aug. 29, 1842, 5 Stat. 539, c. 257, entitled **An act to pro- vide further remedial justice in the courts of the United States," It conferred upon them the power to issue a writ of habeas corpus in all cases where the prisoner claimed that the act for which he was held in custody was done under the sanction of any foreign power, and where the validity and effect of this plea depended upon the law of nations. In advocating the bill which afterwards became a law, on this subject, Senator Berrien, who introduced it into the Senate, observed: "The object was to allow a foreigner, prose- cuted in one of the States of the Union for an offence committed in that State, but which he pleads has been committed under authority of his own sovereign or the authority of the law of nations, to be brought up on that issue before the only competent judicial power to decide upon matters involved in foreign relations or the law of nations. The plea must show that it has reference to the laws or treaties of the United States or the law of nations, and showing this, the writ of habeas corpus is awarded to try that issue. If it shall appear that the accused has a bar on the plea alleged, it is right and proper that he should not be delayed in prison awaiting the pro- ceedings of the State jurisdiction on the preliminary issue of his 694 THE HABEAS CORPUS. plea at bar. If satisfied of the existence in fact and validity in law of the bar, the federal jurisdiction will have the power of admini»- tering prompt relief. ' ' No more forcible statement of the principle on which the law of the case now before us stands can be made. The next extension of the powers of the court under the writ of habeas corpus was the act of February 5, 1867, 14 Stat, 385, c. 28, and this contains the broad ground of the present Revised Statutes, under which the relief is sought in the case before us, and includes all cases of restraint of liberty in violation of the Constitution or a law or treaty of the United States, and declares that ' ' the said court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the Constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty." See also Boske v. Comingore, 177 U. S. 459, and Tick Wo v. Hopkins, 118 U. S. 356, for examples of the release by a United States court of one held under state authority. ABLEMAN V. BOOTH. UNITED STATES V. BOOTH. Supreme Court of the United States. December, 1858. 21 How. (V. S.) 506. These two cases were brought up from the Supreme Court of the State of Wisconsin by a writ of error issued under the 25th section of the judiciary act. The facts are stated in the opinion of the court. Mr. Chief Justice Taney^ delivered the opinion of the court. The plaintiif in error in the first of these cases is the marshal of the United States for the district of Wisconsin, and the two cases have arisen out of the same transaction, and depend, to some ex- tent, upon the same principles. On that account, they have been argued and considered together. ABLEMAN V. BOOTH. 695 It will be seen from the statement of facts that a Judge of the Supreme Court of the state of Wisconsin in the first of these cases, claimed and exercised the right to supervise and annul the proceedings of a commissioner of the United States, and to discharge a prisoner, who had been committed by the commis- sioner for an offence against the laws of this government, and that this exercise or power by the judge was afterwards sanctioned and affirmed by the Supreme Court of the State. In the second case, the state court has gone a step further, and claimed and exercised jurisdiction over the proceedings and judg- ment of a District Court of the United States, and upon a sunmiary and collateral proceeding, by habeas corpus, has set aside and an- nulled its judgment, and discharged a prisoner who had been tried and found guilty of an offence against the laws of the United States, and sentenced to imprisonment by the District Court. And it further appears that the state courts have not only claimed and exercised this jurisdiction, but have also determined that their decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Con- gress of 1789, to bring here for examination and revision the judg- ment of the state court. These propositions are new in the jurisprudence of the United States, as well as of the States, and the supremacy of the state courts over the courts of the United States, in cases arising under the Constitution and laws of the United States, is now for the first time asserted and acted upon in the Supreme Court of a State. We do not question the authority of a State court, or judge, who is authorized by the laws of the State to issue the writ of habeas corpus, to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the applica- tion is made, that the person imprisoned is in custody under the authority of the United States. The court or judge has a right to inquire, in this mode of proceeding for what cause and by what authority the prisoner is confined within the territorial limits of the state's sovereignty. And it is the duty of the marshal, or other person having the custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, grows, necessarily, out of the complex character of our government, and the existence of 696 THE HABEAS CORPUS. two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each within its sphere of action, prescribed by the Constitution of the United States, independent of the other. But, after the return is made, and the State judge or court judicially apprized that the party is in custody under the authority of the United States, they can proceed no further. They then know that the prisoner i» within the do- minion and jurisdiction of another government, and that neither the writ of habeas corpus, nor any other process issued under state authority, can pass over the line of division between the two sover- eignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offence against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress. And although, as we have said, it is the duty of the marshal or other person holding him, to make known, by a proper return, the authority under which he detains him, it is at the same time im- peratively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government. And conse- quently it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court upon a habeas corpus issued under state authority. No state judge or court, after they are ju- dicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or to re- quire him to be brought before them. And if the authority of a state, in the form of judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdic- tion of the court or judge by whom it is issued ; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence. "We are sensible that we have extended the examination of these decisions beyond the limits required by any intrinsic difficulty in the questions. But the decisions in question were made by the su- preme judicial tribunal of the State ; and when a court so elevated in its position has pronounced a judgment which, if it could be ABLEMAN V. BOOTH. 697 maintained, would subvert the very foundations of this government, it seemed to be the duty of this court, when exercising its appellate power, to show plainly the grave errors into which the state court has fallen, and the consequences to which they would inevitably lead. But it can hardly be necessary to point out the errors which fol- lowed their mistaken view of the jurisdiction they might lawfully exercise ; because, if there was any defect of power in the commis- sioner, or in his mode of proceeding, it was for the tribunals of the United States to revise and correct it, and not for a state court. And as regards the decision of the District Court, it had exclusive and final jurisdiction by the laws of the United States ; and neither the regularity of its proceedings nor the validity of its sentence could be called in question in any other court, either of a State or the United States, by habeas corpus or any other process. The judgment of the Supreme Court of Wisconsin must therefore be reversed in each of the cases now before the court. INDEX [BEFEBENCES ABE TO PAGES.] ABOLITION OF OFFICE— terminates official relation, 304. ACCEPTANCE OF OFFICE— how manifested, 134. obligation to accept, 131, 247. ADMINISTRATIVE DETERMINATIONS~ as to appraisals of customs duties, 439. as to nuisances, 445. as to residence for taxation, 442. conclusiveness of, 438. See also Nuisances. AGENTS— public, not personally bound, 522. may not accept bills of exchange, 504. when government bound, 363. APPOINTING POWER— discretion of, may not be taken away by legislature, 195. power of removal Incident to, 263, 268. APPOINTMENT— governor's power, 116. how made, 14, 95. in federal government, 270. law of. 84. legislature may make, 94. nature of power of. 84. not revocable, 103. president's power to fill vacancies, 123. what is, 87, 95. when complete, 99, 138. when must be evidenced by writing, 95, 97. APPRAISAL OF MERCHANDISE— by customs officers, when final, 440. ASSESSMENT— when notice of, to person affected required, 399. ASSIGNMENT OF COMPENSATION— by public officers, 330. AUSTRALIAN BALLOT— secures secrecy, 51. 699 700 INDEX. [BEFEBENCES ABE TO PAGES.] BAILEE— custodian of public moneys compared to, 593. BALLOT— marks invalidating, 59. origin of voting by, 51. intention must be clear, 60. printing of, 58. BILLS OF EXCHANGE— authority in officer to bind government by acceptance, SOL BOARDS— of canvassers controlled by mandamus, 66. duties of. 66, 259. findings of prima facie evidence of election, 62. powers of, 62, of health power to abate nuisances, 652. when determinations final, 457. majority necessary for valid action. 368. ^ statutory procedure must be followed, 372. ' BOND— blanks in, later filled, 587. liability to government on, 578. liability to third persons on, 569. of de facto officers, 182. statutory and common law liability, 582. when approval of enforced by mandamus, 140. when principal and sureties excused, 587, 593. CANDIDATE— effect of vote cast for ineligible, 71. right of party, to place on ticket, 7B. CANVASSERS— See Boards. CERTIORARI— character of act reviewable, 649. courts having jurisdiction, 659. discretion of court, 655. other adequate remedy, 656. what Is reviewable, 656. will not issue to governor, 654. CIVIL SERVICE LAWS— commissions under, 202. status of veterans, 85, 192. CLAIMS, COURT OP— Jurisdiction, 496. COLLATERAL ATTACK— unconstitutional statute not open to, 159. INDEX. [rEFEBENCES ABE TO PAGES.] COMMISSION OF APPOINTMENT— defined, 116. duty of ministerial officer to issue, 116. conclusive evidence of appointment, 100. prima facie evidence of title, 93. signing of, completes appointment, 97, 101. transmission of, 102. COMMITTING MAGISTRATES— cause of commitment examined on habeas corpus, 690. COMPENSATION- SCO Salary. assignments of, 330. extra, not allowed, 243. CONSTRUCTION OF OFFICIAL POWERS, 434. CONTEMPTS— power to punish for, vested in courts, 391. officer disobeying invalid order of court not guilty of, 266. CONTRACT— claim to salary not based on, 305, 316. employee of state is under, 4. mandamus may not be used to enforce, 605. office not a, 7, 213. past services, claim for based on implied, 329. / personal liability of public agent for, 510. relative to public offices, when void, 524. state may not impair, 6. CONVENTIONS— of political parties, 73. COUNTY COMMISSIONERS— not removable by Impeachment. 293. CRIME— when usurpation of office is a, 239. CRIMINAL LIABILITY OF OFFICERS, 518. DEATH— of a member of a board, effect of. 238. DE FACTO OFFICERS— acts of, when valid. 174. cannot be two, for same office, 157. county commissioners as, 157. intruders, 141. liable on bond, 182. no claim to salary, 169. powers and rights of, 167. result of payment of salary to, 173. third persons no right to resist, 181. under unconstitutional law, 160. 701 702 INDEX. [BETEBENCES ABE TO PAGES.] DB FACTO OFFICERS— Continued. usurpation of office by, 240. when deputy is, 157. who are, 144. DB JURE OFFICER— can recover salary from de facto officer, 177. holding-over officer, when a, 241. DISCRETION— of court, in granting certiorari, 655. unrestrained, In administrative officer, 418. when controlled by mandamus, 421, 605. writ of prohibition, rule as to, 635. writ of injunction, 641. DISQUALIFICATION— acceptance of office of governor, effect of, 222. an officer may not appoint himself, 232. holding of office in United States government, 227. incompatible offices, 216. . on account of personal interest, 350. DISTRESS— ) process of. 468. "DUE PROCESS OF LAW— local assessments, 400. removal from office, 258. taking of property, 409. summary administrative proceedings, 467. unrestrained discretion In administrative officer, 418. EDUCATIONAL QUALIFICATION FOR HOLDING OFFICE, 186. ELECTIONS— construction of laws, 56. findings of boards of canvassers, 64. for governor, 241. frauds at, 79. law of, 27. laws must be reasonable, 36. municipal, 47. must be held according to law, 141. term of office, must be fixed before, 236. what constitutes, 67. ELECTORS— equality of, 42. validity of ballot favored, 62. qualifications of, 27, 34. ELIGIBILITY TO HOLD OFFICE— See Qualifications fob Office. INDEX. 703 [bEFEBENCES ABE TO PAGES.l EXECUTIVE— See President, Govebnob. EXECUTIVE DEPARTMENTS— See Heads of Depabthents. FRANCHISE— See Vote, Ballot. GENERAL ASSEMBLY— See Legislatube. GOVERNOR— acceptance of office of, effect on holding other office, 220. appointing power of, 18, 115. certiorari will not issue to, 654. holding over, status of, 241. mandamus to, 627. power to fill vacancies, 122. removal power of, 256, 274. trial for impeachment, 303. what included in grant to, of executive power, 261. writ of prohibition to, 632. GOVERNMENT— when liable for acts of officers, 491. when may be used, 492, 510. HABEAS CORPUS— after indictment, 690. committing magistrates, 687. courts having jurisdiction, 691. excess of jurisdiction, 678. judgments of courts, 675. power of supreme court, 681. purpose of writ, 676. moral restraint not sufficient, 673. physical restraint, 670. release by federal courts of one held under State authority, 692. HEADS OF DEPARTMENTS— appointing power of, 271. non-liability for official communications, 538. position of, 16. power over salary of subordinates, 310. when controlled by mandamus, 105. HEALTH LAWS— See BoABDS of Health. HOLDING-OVER— position of officer, 241. rule in federal government, 170. '^^ INDEX. * [BEFEBENCES are to PA0B8.] IMPEACHMENT— causes for, 267. consequences of, 300. county commissioners not removable by, 293. courts having Jurisdiction, 303. how made, 268. in federal government, 287. of president. 287. INCOMPATIBILITY— in offices, effect of, 151. 224. \ physical impossibility of performing duties, 217. ] what Is, 217, 224. INJUNCTION— discretionary acts, 641. equitable remedy, 638. nuisance, when abatement of restrained, 644. president exempt, 648. rule in restraining illegal tax, 638. \^ to correct abuse of power, 643. \ • who may apply, 646. ] i INSPECTORS OP ELECTIONS— j effect of findings of, 64. ' INTERSTATE COMMERCE COMMISSION— i power over witnesses, 394. I INTRUDERS— i Into public office, 141. I JUDGES— ' non-liability for judicial acts, 634. LEAVE OF ABSENCE— officer on, entitled to salary, 321, LEGISLATIVE CONTROL— appointments, 86. elections, 32. i offices, 17. 26. i public printing, 13. ' qualifications for office, 184. removals from office. 255, 266. right to vote, 49. tenure of office, 7, 22. LEGISLATURE— . non-liability of members for official utterances, 540. ' LIABILITY OF GOVERNMENT FOR ACTS OP OFFICERS, 49L at common law, 491. i criminal liability of officers. 518. civil liability of officers, 520. INDEX. 705 [BSFEBENCES ABE TO FAOE8.] MAJORITY— necessary for valid official action, 368. MANDAMUS— acts impossible of performance, 612. character of duty enforceable by, 603. courts having jurisdiction, 622. defined, 106. demand and refusal, 617. discretion of court, 627. effect of change in office, 619. interest relator must show, 610. ministerial acts, 140. rule as to governor, 627. to public officers, 107. will not issue to president, 627. MARTIAL LAW— non-liability of subordinate for acts done under orders, 555. MAYOR— power, to prescribe regulations for civil service, 206. power to remove for cause, 279. MILITARY SUBORDINATE— not liable for acts done under orders, 660. MINISTERIAL DUTY— enforceable by mandamus, 605. MINISTERIAL OFFICERS— liability of, 547. MUNICIPAL CORPORATIONS— construction of power to legislate, 379. elections In, 47. existence not open to collateral attack, 160. power of, over nuisances, 377. NATURALIZATION— effect of, 27. NOMINATIONS— to office, 72. NOTICE— to persons affected by official action, 399. NUISANCES— abatement of, 455. injunction to restrain abatement of, 645. municipal corporations may abate, 377, 478, power of boards of health over, 445, 448, 652. summary administrative proceedings, 478. OATH— taking of, as a qualification for office, 185, 206. 45 f T06 IKDEX. [BEF£BENCE8 ABE TO PAOtS.] OFFICE— appointment to, 89. defined, 1, 9. 12. 15. 211. distinguished from employment, 10. election to, 68. existence not open to collateral attack, 159. nominations to, 72. party position is not, 84. not a contract, 626. obligation to accept, 131. qualifications for, 184. right to, when taken away, 217. vacancies in, how filled, 121. OFFICERS— de facto, 141. how appointed ,14. powers and rights of, 167. right to office, 105. OFFICES— ^ legislative control of, 17. contracts relative to void, 525. OFFICIAL RELATION— formation of, 27. termination of, 233. ORDINANCE POWER— basis of, 373. ORDINANCES— must be reasonable. 384« 428. PENSIONS— of officers, 334. power of board to establish, 348. when a mere gratuity, 344. when right becomes vested, 338. POLICE POWER— "due process of law" under the, 412. legislature may create monopoly, 19. POLITICAL PARTIES— nominations of. 72. POLITICAL QUALIFICATIONS FOR OFFICE, 199. PRESIDENT— appointing power of, 272. discretion of, 104. how impeached, 287. mandamus will not issue against, 627. position of, 623. power of removal, 101. INDEX. 707 [BEFEBENCES ABE TO PA0K8.] PRIMARY ELECTION LAWS, 79. PROHIBITION— corrects only excess of jurisdiction, 635. discretion of court, 635. is a preventive remedy, 632. governor not subject to, 632. power subject to, 635. PROPERTY— when may be destroyed by summary administrative proceedings, 479. PROPORTIONAL REPRESENTATION, 40. QUALIFICATIONS FOR OFFICE, 131, 184. in general, 184. educational, 186. political, 199. property, 186. power of legislature, to provide, 184. when must be present, 208. QUO WARRANTO— history and purpose of, 663. title to office tried by, 243, 663. to oust incumbent holding improperly, €69. RATIFICATION— when binds government, 495. REGISTRATION- as a qualification for voting. 35. REMOVAL FROM OFFICE}— for cause, 257, 273. * governor's power of, 261, 274. in absence of legislative provision, 261. incident to power of appointment, 268. not deprivation of property, 257. power of legislature, 255. power to suspend, 282. president's power of, 101. RESIDENCE— administrative determinations as to, 442. RESIGNATION— acceptance of, when necessary, 248, 25L termination of official relation by, 244. what is, 245. SALARY— actual incumbency merely does not entitle to, 172. assignments of, 330. change of, 322. de facto officer has no claim to, 169. 708 INDEX. [BEFKREfTCKS ARE TO PA0E8.1 SALARY— Continued. de Jure officer may recover from de facto, 177. leave of absence, effect of, 321. legislative discretion, 7, 307. not based on contract. 305. relation to work done, 315. may not be changed during term, 307, 323. SHERIFF— duties of, 532. liability on bond, 570. power, limited to own county, 349. . SUBORDINATES— military, when not liable, 560. official liability for acts of, 562. SUMMARY ADMINISTRATIVE PROCEEDINGS, 46«. SUPREME COURT— jurisdiction of, 109, 659. power to Issue habeas corpus, 681. SURETY— \ liability of on bond, 313, 570, 587. ) SUSPENSION— of officer, effect of, 254. officer under indictment, 264. Implied from power to remove, 282^ 28$. TAXES— enforcement of payment, 471. notice of assessment, 401. payment as a qualification for voting, 31. when levying of mandatory, 361. TENURE OF OFFICE— control of legislature over. 7. 22. fixed by statute, 10. fixed by constitution, 21. TERM— expiration of. 233. 244. length of, 236. 263. TERMINATION OF THE OFFICIAL RELATION, 233, 244. TERRITORIAL JURISDICTION OF OFFICERS, 349. TEST— what is, 200. religious, prohibited. 208. TORT— official liability for. 5^1. UNCONSTITUTIONAL LAW— effect of. 682. INDIiX. 709 [references ABE TO PAXJES.] VACANCIES— death of Incumbent, 129. defined, 150, 243, 250. governor's power to fill, 114. holding-over, 121, 243. legislature may create, 304. power to appoint to. 94. 121. VETERANS— preferences accorded to, 191, 199. VOTING— by ballot. 50. in municipal corporations, 47. laws regulating must be reasonable, 35. party primaries. 80. power of legislature over, 29, 49. WITNESS— power of administrative bodies over, 390. WOMEN— constitutional prohibition on voting, 31. THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW AN INITIAL FINE OF 25 CENTS WILL BE ASSESSED FOR FAILURE TO RETURN THIS BOOK ON THE DATE DUE. THE PENALTY WILL INCREASE TO 50 CENTS ON THE FOURTH DAY AND TO $I.OO ON THE SEVENTH DAY OVERDUE. APR 6 1933 SEP 25 1937 NOV 12 1«3' DEC 11 1937 LD 21-50m-l,'88 YD039349 228435 J i\^^/'. » tlMltltStM