Opinion of the Court, per HISCOCK, J. [Vol. 196. that the disqualification provided for in the instances cited is a general disqualification either to hold any office or some particular office, and nobody argues that such general disqualification would flow from the removal of the defendant in this case. The proposition here is that the defendant by his removal has been deprived of a particular office for the particular term for which he had been selected and within which he was removed. If after an impeachment proceeding where the judgment was simply of removal without general disqualification the question should arise whether the official might be immediately appointed to fill the vacancy caused by his impeachment, a question somewhat analagous to the present one would be presented. It is not overlooked that in the impeachment trial of Judge Barnard, Judge ALLEN of the Court of Appeals, sitting as a member of the impeachment court, in urging that a judgment of mere removal would be entirely inadequate, did seek to enforce the argument of inadequacy by saying that under such judgment alone the defendant might be appointed to fill the vacancy. That statement, however, made as a matter of argument against a certain form of procedure, is not to be regarded as a controlling authority upon the question now before us. It is true that it is urged that if defendant's removal is to be construed as having the effect of barring him from appointment to the vacancy, it must be regarded as having effected a general disqualification to hold any office. That argument does not require serious attention. The defendant was tried on charges affecting his administration of a certain office during a certain term, and as a punishment he was removed from that office. Because such removal barred him from immediate appointment to fill the vacancy for the unexpired term, it ought not to be seriously claimed that it disqualified him to take some other office or to be elected to a new term of the same office, neither of which were in any way involved in his trial and from neither of which he was removed. But lastly it is said that if the vacancy caused by defendant's removal were to be filled by an election by the people, N. Y. Rep.] ment. Opinion of the Court, per HISCOCK, J. the latter would have the right to elect defendant notwithstanding his removal, and that no distinction can be drawn between the power of the people to fill the vacancy by election and that of the board of aldermen to fill it by appointWhile personally I am not prepared to assent to the ! proposition that if the power of filling the vacancy caused by appellant's removal had been conferred upon the voters of a limited district to be exercised by election, they would have had any greater power or discretion than the board of aldermen, it is sufficient to say for the present that that question is not here and it is not necessary to pass on it. There is little chance that the principles actually involved in our decision will ever practically embarrass the right of selection by the people of whomsoever they desire, including the removed official. In nearly all of the cases which might arise, the power of temporarily filling the vacancy is conferred upon some appointing power and then the people elect for a full, complete term which could not be regarded as part of the unexpired term of office from which the official had been removed, but rather as a new term and for the election to which full term he would not be ineligible because of anything said here. Thus in the case of a removal of a sheriff as of other county officials the vacancy would be filled by temporary appointment and then an election would be held for a full entire term. While the election would be primarily occasioned by a vacancy arising from removal, the election could not be regarded as held for the purpose of filling a vacancy, but rather as held for the purpose of filling another term and, therefore, under the views hereinbefore set forth, while the official who had been removed would be prevented from taking the appointment to fill the vacancy in part of his original term, he would not be disqualified from accepting an election for what was treated as a new term. I fail to see any argument against this principle in the fact that the new term created by the Constitution might commence within the period covered by the original term from which an incumbent has been removed. That is a mere matter of constitutional or statutory provision. Opinion of the Court, per HisCOCK, J. [Vol. 196. It is The authorities upon this subject are not numerous. natural that they should not be. It would seldom happen that a person duly removed from office for cause after a hearing would attempt to intrude himself into the vacancy caused by his own conviction of wrongdoing in that office, or that an appointing power would permit occasion for legal controversy by appointing such person. The preponderance of whatever authority there is, is decidedly in favor of the conclusions which thus far have prevailed in this case. The action of State of Minnesota v. Dart (57 Minn. 261) dealt with a case where a county treasurer had been removed from office for malfeasance. Pending his suspension under charges and his final removal he resigned and thereafter and before his removal he had been appointed by the board of county commissioners to the vacancy caused by his resignation. The court held that his eligibility for the office during the remainder of the term for which he had originally been elected was involved in the removal proceedings and that having been removed on charges he was rendered ineligible for appointment to the vacancy, and that he could not avoid this result by a voluntary resignation pending his trial. In State of Kansas ex rel. Coleman v. Rose (74 Kan. 262) it was held that where a mayor had been removed from his office on conviction of official misconduct he could not be re-elected to fill the vacancy caused by such removal. It is true that in this case the judgment removing him expressly ousted him for the entire original term, but the court in making its decision affirmed the proposition that this provision for removal for the entire term was not essential to its decision ; that the removal under the circumstances without such special provision operated to deprive him of his office for the entire term during which he was removed. The cases of State of Iowa v. Welsh (109 Iowa, 19) and Matter of Advisory Opinion (31 Fla. 1) are also cited as sustaining the People's position, and it is true that the opinion at least in the latter case does have that effect. In the case of State ex rel. Tyrrell v. Jersey City (25 N. Y. Rep.] Opinion of the Court, per HISCOCK, J. N. J. L. 536) the court had before it the consideration of a motion for a writ of peremptory mandamus directed to the common council of Jersey City commanding it to admit. one Tyrrell as a member of said council. He had formerly been a member, had been expelled on charges of bribery and then had been re-elected. The court wrote to the effect that the sentence of expulsion did not disqualify him from being re-elected to the same office and also that having been re-elected he could not be expelled for the same offense. In Matter of Guden (71 App. Div. 423) it was said of this decision that it "is merely an authority to the effect that the common council of Jersey City had no power to expel a member for acts committed previous to his election, the question being whether such officer having been expelled from the council once, upon conviction of official corruption, and having been re-elected, could again be expelled for the same identical offense." Aside from this summary of what this case might be regarded as holding, it is subject to such considerations as may be applicable to an election by the people of an official who had been expelled from a legislative body as distinguished from an appointment. I find nothing decided by the court and nothing written by Judge CULLEN in People ex rel. Devery v. Coler (173 N. Y. 103, 112), urged upon our attention, which conflicts with the conclusions which have been reached. That case considered a statutory provision that the police commissioner of the city of New York "may, whenever in the judgment of the mayor of said city or the governor the public interests shall so require, be removed from office by either, and shall be ineligible for reappointment thereto." Judge CULLEN was of the opinion that the provision rendering any incumbent who might be removed from the office of police commissioner ineligible for reappointment was unconstitutional, and this view was entertained because such disqualification was "of the most arbitrary character," since the incumbent might be removed without those charges or that hearing which are required in the present case, and for that reason a removal did not involve any reflection on the Opinion of the Court, per HISCOCK, J. [Vol. 196. There is official or personal character of the officer removed. no difficulty in seeing the substantial distinction between that case and this. cal nature Passing beyond the decisions of courts, the attempt has been made to sustain the views urged in behalf of appellant by reference to the action of legislative bodies in passing on the cases of those who had been re-elected to fill vacancies caused by their expulsion and much importance has been given to the action of the English House of Commons in the Wilkes case. Wilkes was expelled for an offense of a politia se litious libel which does not appear to have been committed in any official capacity or to have involved personal turpitude or misfeasance in office, the House of Commons exercising a very broad power to expel for any cause which in its judgment unfits a member for parliamentary duties. (Story on Const. § 838.) It was at first determined. by the House of Commons that this expulsion rendered Wilkes ineligible for election to fill the vacancy caused by his expulsion, but this action was subsequently rescinded. If necessary, it would seem that a substantial distinction might be drawn in resulting effects between a case of expulsion by a legislative body exercising very comprehensive jurisdiction over its own membership for political or other reasons not amounting to betrayal of official duties and where there may be no hearing and a case where the removal is based solely on official misfeasance and only occurs after a hearing. But it is unnecessary to consider this here for the legislative doctrine and practice adopted by the House of Commons in the Wilkes case if considered applicable to a case of expulsion for official misfeasance has been fairly rejected by our national House of Representatives upon facts which make the latter's action a basis of very pertinent argument here. In 1870 expulsion proceedings were instituted against one Whittemore for alleged sale of appointments to the naval and military academies. Pending such proceedings the accused resigned from his office, and he was then at a special election chosen to fill the vacancy caused by such resignation. When |