The purpose was to remove, that is, to displace, for the term of his office, the official, who has been found guilty of acts, which rendered his continuance in office prejudicial to the public. interests and welfare. When section 382 of the city's charter provides for the removal by the governor of the president of a borough, upon charges and after a hearing, and, then, for filling any vacancy in the office by the board of aldermen, a fair construction of its scope and purpose, irresistibly, leads the mind to the conclusion that the appointment of the displaced official may not be the subject of consideration by the body, upon which the power is conferred to appoint to the vacant position. Doubtless, he is not disqualified, nor rendered ineligible, for public office by the action of the governor; but the power to remove from the office, as the result of proceedings under the statute, coupled with the power conferred to fill the vacancy caused by the removal, negatives the person's right to be reinstated in the office during the term for which he had been elected. To assert that the power to reinstate existed, because not restricted in words, is to make of the legislative act a vain and foolish thing. That the People might, thereafter, nominate and re-elect him to a new and complete term of the same office does not affect the conclusion. The implied right to hold office, as an attribute of citizenship, is not negatived by holding that the official removed from office, for maladministration, under authority of a statute, may not be reinstated in his office by an exercise of the power of another department of the municipal government. The rights of citizens are subject to such limitations as the people may see fit to impose in the interests of good government and, therefore, of the public welfare. Such a restriction, as is now under consideration, consequent upon removal from office for official misconduct, is not an unreasonable one and I think it is fairly inferable from the provisions of the statute. I, therefore, think that Judge HISCOCK is right in the conclusions that he has reached and I will agree with him and vote for the affirmance of the judgment appealed from. N. Y. Rep.] Dissenting opinion, per CULLEN, Ch. J. CULLEN, Ch. J. (dissenting). I have no doubt that the statute under which the governor removed the defendant from office is valid and constitutional. By the Greater New York charter (382) it is enacted that the president of a borough may be removed in the same manner as the mayor, as provided in other sections of the act. By section 122 it is provided that the mayor may be removed from his office by the governor in the same manner as sheriffs, and by section 1 of article 10 of the Constitution a sheriff may be removed by the governor, giving to such officer a copy of the charges against him and an opportunity to be heard in his defense. A provision authorizing the removal of the mayor by the governor will be found in the charters of the city of New York ever since the office was made elective, with the exception of a brief period. It is not like the power of removal of the police commissioner, the validity of which was before the court in People ex rel. Devery v. Coler (173 N. Y. 103). In the statute there under consideration the power conferred upon the governor was absolute and unqualified. The defendant here was subject to removal only upon charges, which necessarily imply misconduct, and after an opportunity of being heard in his defense. Nor can it be well contended that conferring this power upon the governor is a violation of the home rule provision of the Constitution. The sheriff is not only a local officer, but must, by the Constitution, be chosen by the electors. If the Constitution makers did not deem it inconsistent with the spirit of home rule to vest in the governor the power of removing the sheriff, an elective officer, it is difficult to see why the bestowal upon the governor of the same power over an officer who, though local, is not necessarily elective, should be deemed a violation of that spirit. Local officers not specially mentioned in the article of the Constitution referred to, such as county treasurers and superintendents of the poor, have long been subject to removal in the same manner. Such a provision is now found in the Public Officers Law (sec. 23) and the authority of the governor to act under these statutes has never been challenged. Dissenting opinion, per CULLEN, Ch. J. [Vol. 196. Nor do I deny that the legislature might enact that where an officer had been removed by the governor for official misconduct under these statutes he should not be eligible for reap: pointment or re-election to fill the vacancy caused by his removal. The legislature may provide qualifications for office when not prescribed by the Constitution, where the qualifications or disqualifications prescribed are not arbitrary. (People v. Platt, 117 N. Y. 159; People v. Purdy, 154 id. 439; Barker v. People, 3 Cow. 686.) But the difficulty in this case with the judgment below is that the legislature has enacted no provision of that character, and that judgment cannot be sustained unless this court holds as a matter of law that removal from office disqualifies from re-election or reappointment to the vacancy, although there is no statutory enactment to that effect. I had supposed that the law was too firmly established to the contrary to be open to question. It is true that the judicial decisions to be found on the point are few, but the correctness of a legal principle, like the excellence of the character of an individual, may be as firmly established by its universal acceptance and the failure to question it, as by favorable decisions when the subject is mooted. I think that this is true of the proposition that removal from office does not disqualify. On the 3rd of February, 1769, John Wilkes was expelled from the House of Commons for having published "a scandalous and seditious libel," which undoubtedly was its prerogative. On the 16th of the same month he was re-elected to the Commons without opposition. Thereupon the House of Commons resolved that "John Wilkes having been in this session of Parliament expelled this house, was and is incapable of being elected a member to serve in this Parliament," and his election was declared void. This last action of the House of Commons set the kingdom in a ferment. Though not wanting some defenders, it was the subject of vehement denunciation. Lord Chatham in one of his most famous orations charged that the Commons under the pretense of declaring a law, had made the law and enacted a disqualifica N. Y. Rep.] Dissenting opinion, per CULLEN, Ch. J. tion unknown to the law. The controversy was long continued. A new Parliament having been convoked, Wilkes was elected thereto, and in May, 1782, the House of Commons directed that the resolution that he was disqualified should be expunged from the journals of the house as subversive of the rights of the electors and of the whole people. From that time it has been the accepted law of England that expulsion from the House of Commons does not prevent re-election thereto. (2 May's Constitutional Hist. p. 27.) In 1882 Bradlaugh was expelled from the House of Commons. and having been returned by the electors of Northampton, took his seat in the house without question. (Treatise on the Law & Privileges, etc., Parliament, Thos. E. May, 1863, 1864.) The career of John Wilkes is a part of American history, for, profligate though he was, nevertheless he was the steadfast supporter of the rights and liberties of the colonies and courageously resisted the encroachments of the Crown. To that resistance we owe the provision of the Federal Constitution forbidding the issuing of general warrants. The law of the Wilkes case has been universally accepted in this country by statemen, publicists and text-writers, though, as already said, judicial decisions are scanty. Mr. Bancroft, in his History of the United States, says (p. 275, vol. 6): "The disfranchisement of Wilkes had no authority in law." Mr. Cushing in his standard work on Legislative Assemblies, says (p. 182): "Expulsion from a former, or from the same legislative assembly, cannot be regarded as a personal disqualification, unless specially provided by law." Professor Pomeroy in his Constitutional Law (§ 716) says: "It is true that Senators and Representatives may be expelled by the body to which they belong, but this punishment is plainly inadequate; expulsion removes from the present office, but is no obstacle to a re-election thereto." In 1797 William Blount, a senator from Tennessee, was expelled from the United States Senate for promoting a hostile military expedition against the territories of Spain in the Floridas and Louisiana, in the interest of Great Britain. For that conduct Dissenting opinion, per CULLEN, Ch. J. [Vol. 196. he was also impeached by the House of Representatives. It was decided by the Senate that Members of Congress of either house were not subject to impeachment. The stress of the argument of the managers of the House in support of impeachment was that expulsion did not prevent his immediate re-election and that impeachment should, therefore, be permitted so that if convicted he would be disqualified from holding office. The assertion that Blount was qualified for re-election was admitted by his counsel and seems to have been assumed as unquestionable. 66 The Constitution of this state (Art. 6, § 13) prescribes that Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any office of honor, trust or profit under this State," thus recognizing that removal from office itself does not create a disqualification. Upon the conviction of a justice of the Supreme Court on impeachment, when the question of the judgment to be rendered thereon arose, Judge ALLEN of this court said that if the defendant was simply removed from office he might immediately be re-elected by the people or appointed to fill the vacancy. (Barnard's Impeachment, vol. 3, p. 2195.) We have, however, one judicial decision on the exact point. In State ex rel. Tyrrell v. Common Council (25 N. J. L. 536) the common council of Jersey City had expelled Tyrrell for bribery and corruption. He was re-elected and the common council then suspended him. Thereupon he sued out a mandamus to compel the common council to recognize him as a member. At the very threshold of the case, presenting the right of the relator to maintain the proceeding, was the question whether he was eligible for re-election, which the defendant challenged. The court held that he was. In answer to the question whether a member of that body who is adjudged to-day to be guilty of gross official misconduct and is therefore expelled as unfit to exercise his office, or even to associate with men of character, can possibly be fit to fill the same office to-morrow, and whether such a man can |