Appellant Ulrick has moved for a rehearing. I am authorized to say that Mr. Justice BICKLEY concurs with me in overruling the motion.
When the original decision was announced, I was content merely to concur in the affirmance. In view of the importance of the questions discussed, both originally *Page 298 and on the motion, and since I am not entirely in accord with the views expressed by either of my brothers, I have concluded that it is incumbent upon me to state my position.
The CHIEF JUSTICE holds that the Constitution does not confer power on the Governor to remove officers appointed by and with the consent of the Senate. His argument rests upon the change in the removal provision, as finally adopted, from the original form in which it passed the convention. I agree with Mr. Justice BICKLEY that the change broadened, rather than narrowed, the power.
If, as the CHIEF JUSTICE holds, the section, as finally adopted, marks a wide departure from the letter and spirit of the provision as originally passed, then I agree that there must have been an important reason therefor. No reason is assigned, except the suggestion that the convention decided it had gone too far in conferring power and responsibility upon the executive.
The conclusion of the CHIEF JUSTICE involves one of two suppositions: Either the convention deliberately reversed itself, or else its committee on revision and arrangement reported a contrary provision, which passed the convention unnoticed. I do not think either of these suppositions warranted.
It was not the duty of the committee to change the substance or true meaning of provisions which had passed the convention and had been referred to it. Its duty was to arrange, collate, and clarify. Reasoning from the standpoint of the committee's duty, and crediting it with understanding thereof, and adherence thereto, I cannot admit that it assumed or intended to embody a provision exactly the contrary of that which was referred to it as representing the will of the convention, unless that conclusion is unescapable.
The conclusion is not unescapable. Indeed, there is another possible, and, I think, a more probable, explanation. *Page 299 The convention had decided to give the Governor power to remove officers appointed by and with the consent of the Senate — far the more important class of appointive officers. It would naturally follow that the convention would wish and intend the Governor to have the power to remove those appointed by him alone. Given the larger and more important power, no good reason suggests withholding the smaller. Wilcox v. People, 90 Ill. 186. The lesser power was not, however, expressly conferred by the provision which passed the convention and came to the committee by reference. Perhaps the committee foresaw the contention successfully urged in Roberts v. People ex rel. Hicks,77 Colo. 281, 235 P. 1069, where the Colorado Supreme Court held that just such a provision gave power to remove officers appointed by and with the consent of the Senate, but not to remove those appointed by the Governor alone. The committee might reasonably have considered that, in changing the provision to include all appointed officers, it was acting in harmony with the recorded will of the convention; merely stating expressly what it deemed already included by inference. If the committee intended to exclude power to remove those officers whom the convention had already subjected to removal, it could not possibly have considered that it was proceeding in harmony with the expressed will of the convention. It must have recognized that it was assuming to reverse it. I think that the correct presumption is against the change in spirit which the CHIEF JUSTICE assumes to have originated in the committee.
The intent of the convention itself is perhaps more likely to appear in the original provision, adopted independently and on its own merits, than in the final draft adopted after being reported as a whole from the committee on revision and arrangement. Of course, it is the final expression of the convention that binds us. If that clearly excluded power to remove officers appointed with senatorial sanction, the question would be settled. But Brother BICKLEY has shown, on *Page 300 principle and authority, that it does not. Referring, in the effort to interpret, to the earlier expression of the convention's will, merely serves to strengthen the conviction that it was not intended to exclude that power.
A practical question is: What officers are to be removed by the Governor, if not those whom he appoints by and with the consent of the Senate? The CHIEF JUSTICE mentions those who may have been appointed to fill vacancies until the next general election, or until the next session of the Senate. Power to remove such vacancy appointees is so relatively unimportant as not likely to have engaged the serious consideration of the convention, independently of the subject of removals in general. No reason occurs why the convention would have deemed it important to protect the public service from the incompetency, neglect of duty, or malfeasance of vacancy appointees, and unnecessary in the case of full term appointees. I do not understand that the difference is in their being subject or not subject to impeachment. A state treasurer, for instance, is a state officer, I suppose, whether duly elected or duly appointed to a vacancy, and as such subject to be impeached Whether, having been appointed to a vacancy, he is subject to removal, I do not consider. Neither do I consider whether a tax commissioner, as a state officer, is subject to impeachment. On this question my associates differ, but I reach my conclusion independently of it.
Mr. Justice BICKLEY has reached the conclusion that it was not essential to the lawful removal of the relators that they have the benefit of notice and an opportunity to be heard. I am driven to the same view. I confess, however, that I am somewhat shocked to discover the summary power of the Governor to remove a high official of state by merely asserting his incompetency, his neglect of duty, or his malfeasance in office. Such a charge must needs reflect seriously upon the official against whom it is made. Common fairness would seem to require some method *Page 301 of bringing the specific nature of the accusation to his attention, and of inquiring into its truth. Either as a concession to this principle of fairness, or in doubt as to the power, charges were formulated and served, in the cases at bar, notices given, and hearings had. In view of our conclusion, consideration of the charges, the notice or the hearing is unnecessary and would be inappropriate.
Doubtless it is essential to good government that there be provision for the expeditious removal of incompetent or faithless public servants. It does not seem essential that such power should be so unchecked as we find it to be. However confident we may be that the people of this state will never elect to the high office of Governor one who would prostitute this power to political ends, or misuse it from other unworthy motives, the fact remains that the conclusion we reach opens the door to that abuse. Considerations both of fairness to the individual and of the best interests of the state would forecast a different rule than that we now state. With those considerations, however, the courts are concerned only as they may be assumed to have been in the minds of the Constitution makers, and as aids in interpreting what they said.
There has been much discussion as to whether title to a public office is a property right, and as to whether the power of removal is in its nature judicial, quasi judicial, or administrative. We need not concern ourselves with those questions. As a sovereign state, we had the right to settle them by our Constitution. The courts have only to ascertain how they were determined. It cannot be doubted that we might have given our officials property rights in their offices. We might have made removal from office a purely judicial, a quasi judicial, or a purely administrative, function. We did in fact provide that all officers appointed by the Governor should be removed by him for incompetency, neglect of duty, or malfeasance in office. One accepting such an office, of *Page 302 course, does so in the knowledge that he obtains no indefeasible title.
So it seems that this is purely a question of correct interpretation. What did the Constitution makers mean? They might have expressly required notice and hearing. They might have expressly dispensed with the necessity. They did neither. In the absence of all precedent, it might have been argued, that if notice and hearing were deemed necessary or desirable, they would have been expressly required. To this the answer would have been that notice of an accusation and hearing before condemnation are principles of the common law, so long established, so essential to satisfy our innate sense of justice, and so much a part of our free institutions, that the observance of those principles is to be assumed; and, therefore, that the Constitution makers assumed that what they wrote into that document would be interpreted in the light of those principles. Such is the doctrine of Dullman v. Wilson, reviewed by Brother BICKLEY, and such the basic principle of those decisions making up what text-writers, unanimously, I believe, call the weight of authority.
That the weight of authority is as stated I am not in doubt. That it is supported by sound reason and salutary policy I agree. The Governor's power of removal was not a new thing in our Constitution. It had often been granted before, and had often been construed. In the absence of local precedent, we would say that it was intended that the power should include what such grants had generally been held to include. So, if, by the decided weight of authority, such grants were deemed limited by the general principles of notice and hearing, we would say that so to limit this grant would be in accord with the presumptive intention of the Constitution makers.
If we could stop hree, I should have grave doubts of the correctness of the rule laid down. But weight of authority is not to be our guide, unless it also guided the Constitution makers. Another consideration is *Page 303 controlling. Conklin v. Cunningham, 7 N.M. 445, 38 P. 170, was decided by the territorial Supreme Court in 1894 — its force unimpaired by later pronouncement. Whatever was therein decided was the law of this jurisdiction when the convention framed, and the people adopted, the Constitution. That case arose out of the removal, by the Governor, of an elected sheriff, and the majority of the court emphatically declared that, without notice of any kind, the Governor might determine that the sheriff had failed in his statutory duty to pay over moneys, and had incurred the prescribed penalty of removal from office. That declaration, counsel say, was dictum. I am not prepared to say that it was. If it was dictum, it is certain that it states a position strongly and ably combatted, and states it deliberately and emphatically. That question, however, may rest until we are called upon to consider the case as precedent. Here our interest is in its bearing on the interpretation of our constitutional provision. It was not only an important and well-known case in this jurisdiction, but, as pointed out by Brother BICKLEY, it was a case much referred to. It represented the extreme of the minority doctrine. Those great principles, engrafted upon our jurisprudence in the course of the Anglo-Saxon struggle for liberty, ably expounded by Judge Freeman, who dissented, were given no weight in interpretation as against the supposed interest of the state in the immediate removal of officials charged with wrongdoing.
In the face of Conklin v. Cunningham, I am unable to satisfy myself that the Constitution makers intended their grant of the power of removal to be interpreted in the light of the weight of authority. They must have recognized that, having omitted any requirement for notice or hearing, such could be required only by construction. They could not have expected such construction in this jurisdiction without an overruling of the decision or the emphatic dictum of Conklin v. Cunningham. So we must conclude that they acquiesced in the rule there declared. Otherwise *Page 304 common prudence would have dictated a different provision.
On this ground, I concurred in affirming the judgment, and in the conclusion that the Constitution requires no notice and no opportunity to be heard as a prerequisite to the Governor's power to remove.