N. Y. Rep.]

Opinion of the Court, per HISCOCK, J.

the credentials of such election were laid before the house a resolution was duly adopted, “That the House of Representatives decline to allow said Whittemore to be sworn as a

*

Representative * * and direct that his credentials be returned to him." Accompanying this resolution was a preamble reciting the facts of the proceedings of expulsion against Whittemore and the fact that he had escaped expulsion by resigning. It was thus determined, first, that a member might not escape the effect of expulsion proceedings by resigning, and, second, that a member thus proceeded against for official misfeasance was not eligible for election to fill the vacancy caused by his resignation to escape expulsion. On the other side of the case attention will be called to the remarks of General Logan in supporting this action and resolution as breaking its force in this connection. He said that "he did not presume that the Constitution contemplated expulsion for any mere political reasons, or for anything except a violation of the rules of the House or an infraction of some existing law. He assumed that where the House had the right to expel for violation of its rules or of some existing law it had the same power to exclude a person from its body. * * * It was right to exclude a man from the House for crime. It was this feature of crime which distinguished this case from those of Messrs. Giddings, of Ohio, and Brooks and Keitt, of South Carolina, who after receiving the censure of the House, had resigned their seats, and after re-election had been admitted to the House. The case of Mr. Matteson, of New York, who had been censured, was also different, because he had returned to a Congress succeeding that in which he had been censured, and which had no jurisdiction of the offense committed against its predecessor."

There is nothing in these remarks which does or can alter the fundamental facts directly involved in the action of the House of Representatives. These were that Whittemore had been guilty of official misconduct; that proceedings were instituted for his expulsion and which he escaped only by resigning; that it was held that he could not escape the consequences of his

Opinion, per EDWARD T. BARTLETT, J.

[Vol. 196.

misconduct by so doing, and that his misconduct rendered him ineligible for election to the vacancy for the balance of the term caused by his resignation to escape such expulsion. Certainly it must follow that if the expulsion proceedings had proceeded to their termination and the member had been removed from office for his misconduct he would have been held to be ineligible to fill the vacancy.

It is especially significant, as destroying the authority of the Wilkes case as an authority in legislative practice in this country, that it was cited in debate as an authority against the action then being taken, and its doctrine rejected. (Hinds' Precedents of the House of Representatives, vol. 1, p. 487; vol. 2, p. 830, etc.) And in the debate full recognition was taken of the distinction between the Whittemore case and cases where members resigning after mere censure for causes political and not involving misfeasance had been re-elected, and also cases where the re-election had been to a Congress succeeding the one at which the member had been punished. In view of this action by one branch of our highest legislative body, statements and opinions which have been cited of various constitutional and historical writers based on the doctrine of the Wilkes case seem to lose their value as authorities in this country.

The order should be affirmed, with costs, and question certified answered in the affirmative.

EDWARD T. BARTLETT, J. I concur in the opinion of Judge HISCOCK.

This case on the conceded facts presents a single question of law, viz.: Can the defendant, John F. Ahearn, who was duly elected borough president of the borough of Manhattan by the electors of said borough for the term of four years, and duly removed from that office by the governor of the state, be reappointed by the board of aldermen of the city of New York, representing the borough of Manhattan, to fill the vacancy thereby created for the remainder of the unexpired term of about two years?

N. Y. Rep.] Opinion, per EDWARD T. BARTLETT, J.

The power of the governor to make the removal and the regularity of the proceedings which resulted in the same are not challenged.

The proposition of the appellant briefly stated is, in substance, that, as there is no affirmative provision in the Constitution or statute forbidding the appointment of a removed official to serve for the remainder of his unexpired term, the defendant is now in lawful possession of the office from which the governor removed him, by virtue of the action of the board of aldermen of the city of New York appointing him to fill the vacancy caused by his removal.

A borough president is originally elected by the electors of the borough, while a vacancy is filled by a so-called "election" made by a majority vote of the board of aldermen representing the borough. (Charter, § 382.) The word "election" as used in this connection is the equivalent of appointment. (Sturgis v. Spofford, 45 N. Y. 446.) It is to be observed that the question of election by the people is not involved in this litigation.

If the proposition advanced on behalf of the defendant is sound, then the proceedings before the governor and the removal of the defendant from office were ill advised and a waste of time and money. There is, however, in my judgment, a complete answer to the defendant's position.

The charter of Greater New York (§ 382) provides that a borough president may be removed in the same manner as the mayor; by section 122 the mayor may be removed by the governor in the same manner as sheriffs. Article 10, section 1, of the Constitution deals with sheriffs, clerks of counties, district attorneys and registers. The closing sentence of this section reads as follows: "The governor may remove any officer in this section mentioned, 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." The removal of this defendant by the governor, "within the term for which he was elected," involved, under the charter, the exercise of a power conferred upon him by

Opinion, per EDWARD T. BARTLETT, J.

[Vol. 196.

the Constitution. The extent of this power calls for a construction of the language of the Constitution already cited; a question of law with which the legislature has no concern. The governor was called upon to deal with this defendant, in the language of the Constitution, “within the term for which he shall have been elected." After the expiration of that term, the defendant, notwithstanding his removal, would have been free to go before the electors of the borough asking for their votes to make him once more their president.

The vital question is whether the distinguished lawyers who framed the Constitution were dealing with substance or shadow; whether they intended that an unworthy official should be removed for the balance of the term "for which he shall have been elected;" or did they contemplate that he might be reinstated in his position, immediately after the gov ernor's adverse decision, by the board of aldermen, of which body he was a member at the time of his removal?

This provision of the Constitution should be reasonably construed in view of the object sought to be accomplished. The manifest purpose was to provide a summary way for removing from office for the remainder of his term an unworthy official, and the governor was selected as the representative of the people to exercise this important power after the defendant had been afforded a reasonable opportunity to be heard in his defense. This power to remove was undoubtedly limited in its exercise to the balance of the term to prevent any interference with the right of the borough electors to elect a successor after the expiration thereof.

The question now presented is whether the governor can duly remove the defendant from office on a certain day and the board of aldermen reinstate him the following morning. As was well suggested on the argument, if the defendant can be his own successor by appointment, his removal is plainly nugatory and meaningless. It needs no extended argument to establish that such a construction fails to give due force and effect not only to the definition of "public

N. Y. Rep.]

Opinion, per GRAY, J.

office," but to the language of the Constitution which confines the governor, as already pointed out, to the balance of the term for which the accused was elected. The words last quoted are words of limitation; the framers of the Constitution were careful not to interfere with the right of the people to elect their officers in certain cases.

The power of removal vested in the governor is a meaningless provision unless "public office" implies more than mere title, power and compensation. Mr. Burrill, in his Law Dictionary, under the head of "office," gives this definition: "The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, rights and powers, as well as that of duty; a public station or employment; an employment confirmed by appointment of government." This statement is cited with approval in People ex rel. Henry v. Nostrand (46 N. Y. 375, 381). In Matter of Hathaway (71 N. Y. 238, 244) Judge ALLEN said: "Public office, as used in the Constitution, has respect to a permanent trust, to be exercised in behalf of the government, or of all citizens who may need the intervention of a public functionary or officer, and in all matters within the range of the duties pertaining to the character of the trust. It means a right to exercise generally, and in all proper cases, the functions of a public trust or employment, and to receive the fees and emoluments belonging to it, and to hold the place and perform the duty for the term and by the tenure prescribed by law." (Italies not in original.) Many other authorities might be cited to this effect. The office to which the defendant was elected by the electors of the borough of Manhattan was the right to exercise all the powers and receive the emoluments of president of that borough for the term of four years.

I vote for affirmance.

GRAY, J. The question may be considered close and debatable; but I am of the opinion that the statute should receive that liberal construction, which will effectuate the purpose to be fairly attributed to the legislative enactment.