N. Y. Rep.] Opinion of the Court, per HisCOCK, J. Doubtless we might say, as is so earnestly urged by counsel, that the strict letter of the statute would be satisfied by a removal which ousted appellant from his office for a day or an hour until some appointing power could reinstate him. But if we consider the general scope and purpose of this statute we shall be led to the conclusion that the legislature must have contemplated and intended more than this and that the language which it employed is susceptible of a construction which will carry out its purpose. The removal which is authorized in such a case as this can only be made after the incumbent has been heard in his own defense upon charges which challenge his official conduct and qualifications for office and has been found guilty. The punishment of removal from office is inflicted because he has been found to have committed acts indicating an unfitness to hold it. We have what is equivalent to a finding that sufficient cause exists why the incumbent should not be allowed to continue in his office and a judgment that, therefore, he be deprived of it. It is true that the proceeding in which this occurs is an executive rather than a judicial one. Still it is subject to certain fundamental rules of law, and the conceded facts in this case illustrate how analogous it may be in its essential features to a trial before a judicial tribunal. It is of course plain that the legislature intended that the proceeding should be a serious one and an effective method of getting rid of unfit public officials. It is equally clear and will doubless be so conceded in anything which may be said or written on the other side of this question, that this purpose will be frustrated and the administration of the law turned into a farce if under it an official may be immediately reappointed and a removal turned into a mere temporary suspension. In order to avoid such a result and keeping in mind the purpose of the statute we are justified, in my judgment, in construing the removal for which it provides as meaning a permanent and lasting ouster for the entire remaining term of the incumbent from the office which he has been filling and whose obligations he has been found unable or unwilling to discharge. As Opinion of the Court, per Hiscock, J. [Vol. 196. was well said by Mr. Justice Scorr at the Appellate Division, an office implies "much more than the right to physically occupy a specified room, to exercise certain power and to receive a prescribed emolument." So far as its beneficial aspect was concerned, appellant's office consisted of the right to enjoy certain powers, privileges, honors and emoluments for a given term, and when the statute prescribed that he should be removed it may be construed to mean that he should be removed from and deprived of all that which thus made up his office, namely, the right to enjoy these things for and during the entire term for which he had originally been selected. It is of course true, as is argued by counsel, that we do not speak of removing an official from his "term" of office. But the right to enjoy for a certain period the privileges and profits of a given position is an important element of an office in its complete conception, and a removal from the office under the conditions here present may fairly mean a dismissal for that period from those rights and privileges. If it should be assumed, as argued by appellant, that this construction, because it will debar him from appointment to the vacancy for the unexpired balance of his term, amounts to reading into the statute a disqualification for appointment which is not expressly written there, and, therefore, must be subjected to the rules of construction applicable to quasi penal statutes, this test will be survived. While statutes of the character designated are to be construed with strictness in favor of a defendant, still they are subject to rules of construction which are reasonable under the surrounding circumstances, and they are not wholly exempt from the application of the principle that the means may be fashioned somewhat to the end and that the letter is to be read somewhat in the light of the purpose to be accomplished. In Bolles v. Outing Company (175 U. S. 265) it was said: "The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time preserve the obvious intention of the legislature. If the language be plain, it will be construed N. Y. Rep.] Opinion of the Court, per HISCOCK, J. as it reads, and the words of the statute given their full meaning; if ambiguous, the court will lean more strongly in favor of the defendant than it would if the statute were remedial. In both cases it will endeavor to effect substantial justice." In U. S. v. Lacher (134 U. S. 624) in construing a criminal statute the court said: "But though penal laws are to be construed strictly, yet the intention of the legislature must govern in the construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the legislature. * * * 'It appears to me,' said Mr. Justice STORY, in United States v. Winn, 3 Sumner, 209, 211, that the proper course, in all these cases, is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature." It is said by Mr. Sedgwick in his work on Statutory and Constitutional Law (2nd ed. 282): "The rule that statutes of this class are to be construed strictly, is far from being a rigid or unbending one; or rather, it has in modern times been so modified and explained away, as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment; the courts refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other, equally refusing by any mere verbal nicety, forced construction, or equitable interpretation, to exonerate parties plainly within their scope." The forfeiture of rights otherwise existing will sometimes be inferred from penal statutes which do not expressly prescribe such results. Thus in Griffith v. Wells (3 Denio, 226) it was held that where a statute imposes a penalty for doing an act, such act is unlawful, although not in terms prohibited or declared to be illegal, and a right of action to recover for liquors was denied because the plaintiff had sold them in violation of a statute which only inflicted a penalty upon one selling liquors without a license, and did not in terms prohibit Opinion of the Court, per HisCOCK, J. [Vol. 196. said sale. It was held to be a fair inference that when a statute imposed a penalty for the performance of a certain act it intended to make such act illegal. Some aid in the consideration of this subject may be derived from an examination of the general statute relating to vacancies in public offices. Section 20 of the Public Officers Law (L. 1892, ch. 681, as amended) in force when appellant was removed, provides: "Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof: * * * 3. His (the incumbent's) removal from office. ** 5. His conviction of a felony, or a crime involving a violation of his oath of office." Thus the conviction of certain crimes and a removal from office have precisely the same effect on an official's incumbency of office. Either event ousts him and makes the office vacant. There is no express provision in either case that his ouster shal. be for the entire term and that he may not be immediately appointed to fill the vacancy caused thereby. If he can be appointed to fill the vacancy in one case, he may be in the other. * Section 117 of the Penal Code provides that the willful omission by a public officer to perform any duty of his office shall be a misdemeanor and, therefore, a conviction of such an offense would be a "conviction of * * a crime involving a violation of his oath of office," and cause a vacancy. A misdemeanor is not punishable by imprisonment in state's prison and, therefore, within section 707 of the Penal Code, such conviction would not forfeit "all public offices, and suspends, during the term of the sentence, all the civil rights, and all private trusts" of the person sentenced. In other words, so far as these provisions are concerned, a person convicted of a misdemeanor would not suffer a general disqualification to hold public office, and his right to be appointed to the vacancy caused by his conviction would depend upon the construction of the statute declaring the vacancy. Is it possible that when the statute provides that conviction of a crime involving violation of oath of office. N. Y. Rep.] Opinion of the Court, per Hiscock, J. shall be regarded as so seriously impairing an incumbent's competency and usefulness that ipso facto it shall oust him from office, it still intends that this effect and ouster may be temporary and that the individual may immediately be appointed and restored to the very vacancy which has been so promptly and imperatively created even though he may still be subject to imprisonment on the conviction which has operated to disqualify and oust him? It is not a sufficient. answer to this possibility to say that it would never occur and that no appointing power would ever have the temerity to make such an appointment. The test of the meaning and purpose of a statute is what may be rather than what probably will be done under it. And as has been suggested under the statute there is and ought to be no distinction between such a criminal conviction and a removal for cause by the governor in depriving an incumbent of his office and creating a vacancy. If one may be turned into a mere temporary suspension the other may. Brief attention next must be given to some arguments in behalf of appellant based on facts and reasons which are believed to be at least indirectly opposed to the foregoing views. Our attention is called to various cases in which the legis lature has affixed as a consequence to conviction for certain. crimes a disqualification to hold office, and to the provisions regulating the nature of the judgment on impeachment of a public officer and which provide that the defendant either may be simply removed from office or may be removed from office and disqualified to hold and enjoy a particular office or class of offices or any office of profit, trust or honor, and because of these provisions of or for express disqualification it is argued that no disqualification can have been intended in the absence of express provision and that certainly a more serious consequence should not be attached to the proceedings under review than to those of impeachment where disqualification must be expressly provided for. Independent any. other reply to this argument, the complete answer is of |