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N. Y. Rep.]

Dissenting opinion, per CULLEN, Ch. J.

be thrust back upon a body of honorable and upright men, as their official compeer and associate, by a misguided constitutency, with the odor of his corruption fresh about him, the court said: "These, however, are questions for the lawmaking power to consider. It is for the legislature to say how far it is necessary, in particular cases, to limit the power of the members of a common council, or punish particular offenses, and not for the courts." This decision is cited with approval by Judge Dillon in his work on Municipal Corporations (Vol. 1 [4th ed.], § 248).

Nor can any sound reason be given why the result of the removal from office by the governor should, as a matter of law, be any greater than that which flows from expulsion by a legislative body. Whatever may be the view taken in other states, it is settled by a recent decision of this court, that the action of the governor in removing a sheriff from office under the constitutional provision that has been cited is not judicial but executive. (Matter of Guden, 171 N. Y. 529.) Therefore, if there is any distinction to be drawn from the effect of a removal in judicial proceedings, that distinction is immaterial here.

Against this uniform current of authority we have two recent decisions. The first is State ex rel. Childs v. Dart (57 Minn. 262). The defendant, a county treasurer, resigned during the pendency of proceedings for removal for misconduct, and thereupon was appointed by the board of county commissioners to fill the vacancy caused by his resignation. The discussion in the opinion is very brief. The court said: "We are of the opinion that he was not eligible for reappointment while under suspension, or during the pendency of the proceedings. The removal proceedings cannot be nullified or reversed in that manner. Such removal proceedings are not merely for the purpose of ousting the person holding the office; they include a charge that he has forfeited his qualification for the office for the remainder of the term. * * * Whether the voters at the polls could condone the offense by which he forfeited his office it is not necessary here to decide. We are

Dissenting opinion, per CULLEN, Ch. J.

[Vol. 196.

of the opinion that the county commissioners could not do so." In State ex rel. Coleman v. Rose (74 Kan. 262) the doctrine of the Dart case was followed. There the court held that the removed officer was ineligible even for re-election by the people. In one respect the decision in the Rose case was certainly logical. If a removed officer is ineligible for appointment, he is equally ineligible for election. Eligibility is exclusively an attribute of the person elected or appointed, and does not at all depend upon the character or position of those from whom he obtains his title. The election by the people of an ineligible person to office is invalid. (People v. Purdy, supra.) Nor is there any force in the suggestion of condonation by the people. Condonation, Condonation, so far as offenses against the public are concerned, means simply pardon. The pardoning power is vested exclusively in the governor. While the ultimate source from which all power is derived is the people, still the people by their act in adopting a constitution have limited their own power; thus, the legislature cannot delegate to the people the power of making a law. (Barto v. Himrod, 8 N. Y. 483.) No more can there be delegated to the people the power to determine whether a candidate is eligible or ineligible, nor to pardon his offense if he has committed one. The arguments of the opinions in these cases, that to permit the appointment or election of a removed officer is to reverse or nullify the action of the removing officer, is not new. The same argument was made by the apologists for the action of the House of Commons in the Wilkes case. It is answered by the opinion of the Supreme Court of New Jersey in State ex rel. Tyrrell v. Common Council (supra). It is not anomalous that the division of the powers of government may enable one officer to render nugatory the action of another. The pardoning power vested in the governor enables him to set at naught the decisions of courts and juries. The Federal courts of first instance upheld the constitutionality of the famous sedition laws. Thomas Jefferson entertained a contrary view, and on his election as president pardoned all persons who had been

N. Y. Rep.]

Dissenting opinion, per CULLEN, Ch. J.

sentenced under that law, avowedly on the ground that the statute was unconstitutional. It is this division of the powers of government that renders the case of a private master or employer a false analogy.

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I have said that the doctrine that expulsion from office does not disqualify has been universally accepted, with the exceptions noted. But it is urged that the action of the House of Representatives in the case of B. F. Whittemore, a representative from South Carolina, is to the contrary effect. Hinds' Precedents of the House of Representatives, 487.) That case is misapprehended. The effect of expulsion was not in the case at all, for Whittemore had not been expelled. He had resigned. The ground on which the action of the majority of the House proceeded was that that body could refuse to receive a person guilty of crime, though possessing the constitutional qualifications. This is apparent from the argument of General Logan who moved the resolution. He said (Id. p. 540): "The Constitution of the United States, which authorizes Congress to prescribe rules and regulations for the government of their members, provides that by a two-thirds vote either House may expel any one of its members without prescribing the offenses for which either House may expel. This being the theory with which I start out, I then assume that where the House of Representatives has power to expel for an offense against its rules or a violation of any law of the land, it has the same power to exclude a person from its body." He distinguished the case then before the House, where a member had been guilty of an actual crime, and that of other persons who after having been censured by the House had resigned and been re-elected. The very distinction made by General Logan shows that it was not the censure of the House nor expulsion from that body that created the disqualification, but the offense of which the member had been guilty, of the sufficiency or insufficiency of which as a ground of exclusion the House was the judge. Surely there is no such right in the courts to review the character of the acts for which this defendant was removed.

* *

Dissenting opinion, per CULLEN, Ch. J.

[Vol. 196.

This precedent was followed by similar action in the case of Brigham H. Roberts, a representative from Utah, whom the House refused to admit on the ground that he was a polygamist. (Id. p. 527.) There was no question of previous expulsion in that case. The question was the same as in the Whittemore case the right of the House to exclude for crime or criminal conduct that in its opinion rendered the applicant unfit to be a member of that body. No lawyer can read the clear and forceful minority report of Messrs. Littlefield and De Armond without at least doubting the correctness of this decision. Whether, however, the action of the House was justified or not the cases have no bearing on the proposition that expulsion from office per se disqualifies from re-election or reappointment.

The principle underlying the general doctrine is: "Where no limitations are prescribed, however, the right to hold public office under cur political system is an implied attribute of citizenship, those and those only who are competent to par. ticipate in choosing officers being in general deemed eligible to be chosen." (Mechem on Public Officers, sec. 67.) There are implied exceptions to the rule, but these are only necessary exceptions, such as minority, idiocy and the like. (Barker v. People, supra.) Even conviction of crime does not disqualify unless the disqualification is prescribed by constitution or statute. In the work of Judge McCrary on Elections (section 354) it is said: "For it is plain that in the absence of such legislation (i. e., forfeiting office on conviction of crime), according to the law, which seems well settled, a convicted felon may, for a time at least, continue to exercise the functions of a public office, unless indeed by imprisonment he be deprived of the power to do so." (See, also, Commonwealth v. Shaver, 3 Watts & S. 338; and State ex rel. Police Comrs. v. Pritchard, 36 N. J. L. 101.) In People ex rel. Bush v. Thornton (25 Hun, 456) it was held that neither the bribing of electors nor the offer to bribe them by a person receiving the certificate of election. would render him ineligible or disqualify him from holding

Dissenting opinion; per CULLEN, Ch., J.

N. Y. Rep.] office in the absence of a constitutional or statutory provision declaring such disability. Appreciating that such was the law, for the purpose of preventing bribery, section 1 of article 13 of the Constitution (Constitution of 1846, art. 12, § 1) was amended so as to require a publie officer in his official oath to swear that he had been guilty of no bribery in obtaining office. I appreciate the force of the arguments against allowing an officer who has been removed from his office to be again elected or appointed thereto. They are cogent, but they should be addressed to the legislature; not to the courts. The same course should be taken as was taken in reference to bribery. There the Constitution was amended. Here the statute should be amended. But for the courts to declare a disqualification not enacted by the legislature or by the Constitution is, to use the language of Lord Chatham, not to declare the law, but to make the law. What led the legis lature to omit disqualifying the removed officer we know not. It may be because it did not occur to the lawmakers that where an officer had been removed for misconduct, appointing officers or electors would return him to the office from which he had been removed. If such was the case, then there is simply an omission in the statute which the courts cannot supply. On the other hand, it is possible that the legislature intended to give a removed official an opportunity to review the justice of his removal by seeking for re-election or reappointment to the office. In 1874 the governor of the state removed the district attorney of Kings county. In the general election of that year the incumbent so removed was re-elected to the office by the electors of the county. He was removed during the last year of his term, so the term to which he was elected covered no part of the old term. But under the Constitution a vacancy in that office and the other offices mentioned in article 10 of the Constitution must be held at the next election for a full term. (Coutant v. People, 11 Wend. 511.) Therefore, had the district attorney been removed in the first or second year of his term and the electors shown the same confidence

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