My views with reference to the principal issue presented by the record in this case are so much in accord with the views of Wilson, Chief Justice, who delivered the opinion of the Supreme Court of Illinois in the case of Field v. The People of the State of Illinois *Page 155 ex rel. McClernand, 3 Ill. 79 (2 Scammon, 79), that I deem it proper to quote at length from the opinion in that case.
In that case one Field had been appointed Secretary of State in 1829 and had continued in the discharge of the duties of that office. In the year 1838 the Governor appointed one McClernand Secretary of State. With reference to the importance of the issue presented, the court said:
"To the parties immediately before the court, the case is of some interest; but it derives its great importance from the fact, that the fundamental principles of the government are drawn in question."
And with reference to the determining factor, the court said:
"In deciding who is entitled to the office of secretary, it becomes necessary to decide whether the Governor of this state possesses the constitutional power of dismissing from office the Secretary of State, and appointing a successor, at his will and pleasure. For, upon the validity of the Governor's claim to this power, depends the appellee's title to the office of Secretary of State, which he claims under an appointment from the Governor."
The issue presented and decided, in the language of that court, was:
"* * * Does the Governor possess the constitutional power of removing from office the Secretary of State, and appointing a successor, at will?"
With reference to that issue the court said:
"In deciding this question, recurrence must be had to the Constitution. That furnishes the only rule by which the court can be governed. That is the charter of the Governor's authority. All the powers delegated to him by, or in accordance with, that instrument, he is entitled to exercise, and no others. The Constitution is a limitation upon the powers of the legislative department of the government; but it is to be regarded as a grant of powers to the other department. Neither the executive nor the judiciary, therefore, can exercise any authority or power, except such as is clearly granted by the Constitution."
The court was of the opinion that the practice of analogous governments was entitled to respect, but that the practice of governments widely different in theory and principle are incongruous and inapplicable. It pointed out the differences between practice of the federal government and that of the state, and said:
"The general government differs from ours in its powers and attributes; and although we have adopted the common law of England, we have neither adopted the form of that government nor recognized the principles upon which it is founded. According to the theory of that government, the king is the sovereign power of the state. When a question of prerogative, therefore, arises there, recurrence is had to the charters of the people's rights and liberties, to ascertain whether the right in question has been surrendered by the king to the people; and if the grant cannot be shown, the right is adjudged to the king, upon the principle that all rights of which he has not divested himself, by express grant to the people, come within his prerogative. But upon the principle of our government, that the sovereign power of the state resides in the people, and that only such powers as they have delegated to their functionaries can be exercised, where, a claim of power is advanced by the executive, the question is, not whether the power in question has been granted to the people, but whether it has been granted to the executive; and if the grant cannot be shown, he has no title to the exercise of the power.
"As the right of the Governor to remove the secretary must be granted by the Constitution, or it does not exist, it therefore devolves upon those who advocate the claim of the executive power to show the grant upon which it is founded; to point out the clause and section of the Constitution from which it is derived. How has this been done? Has any express grant been produced? No; it is not pretended that any express grant is to be found in the Constitution. But it is contended that the power in question is granted to the Governor by implication."
It discussed the various constitutional provisions which it was contended granted to the Governor the power by implication. With reference thereto it said:
"The first and second sections of the first article of the Constitution divide the powers of government into three departments, the legislative, executive and judicial, and declare that neither of these departments shall exercise any of the powers properly belonging to either of the others, except as expressly permitted. This is a declaration of a fundamental principle and although one of vital importance, it is to be understood in a limited and qualified sense. It does not mean that the legislative, executive, and judicial power should be kept so entirely separate and distinct as to have no connection or dependence, the one upon the other: but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in which this maxim was understood by the authors of *Page 156 our government, and those of the general and state governments, is evidenced by the Constitutions of all. In everyone, there is a theoretical or practical recognition of this maxim, and at the same time a blending and admixture of different powers. This admixture in practice, so far as to give each department a constitutional control over the other, is considered, by the wisest statesmen, as essential in a free government, as a separation. This clause then, is the broad theoretical line of demarcation between the three great departments of government. But we are not therefore, when a question arises as to the extent of the powers of either, to confine our views to this general clause, which confers no specific powers. We should look to the division as actually made, to see what powers are clearly granted; for such only can be exercised. As no power, then, is granted to the Governor by these sections, it necessarily follows that none can be implied. A power by implication can only be claimed as necessary to the exercise of one expressly granted.
"The next grant of power relied on, is, that 'the executive power of the state shall be vested in a Governor.' This clause is treated by the court below as conferring numerous and ample powers upon the Governor. All that are usually denominated executive powers, by theoretical writers, are supposed to be included in this grant to the Governor, except, such as are expressly conferred upon other departments. This, I think I shall be able to show, is a mistaken view of the subject. This clause, like the preceding ones, is a declaration of a general rule; and the same remarks are applicable to this, as a grant of power, that have been made in reference to them. It confers no specific power. What would have been its operation, if the Constitution had contained no specific enumeration of executive powers, is a very different question from that now presented, and might have admitted of a different answer. But it has been settled by the Supreme Court of the United States that an enumeration of the powers of a department of the government operates as a limitation and restriction of a general grant. It has also been laid down by the same high authority 'that the general principles contained in the Constitution are not to be regarded as rules to fetter and control, but as matter merely declaratory and directory; for even in the Constitution itself, we may trace repeated departures from the theoretical doctrines that the legislative, executive, and judicial powers shall be kept separate and distinct.' (Peter's Cond. R. 445.)
"This departure from the general theory is much greater in our Constitution than in that of the United States. The reasoning, therefore, of the judge of the Supreme Court of the United States must apply to it with a correspondingly increased force, and exclude all claim of power from this general declaration.
"The authority of the Governor to require information from the officers in the executive department relative to the business of their respective offices, and the obligation of the secretary to keep a register of his official acts, are relied upon, in connection with the injunction that the Governor shall see that the laws are faithfully executed, as implying an authority in him to dismiss the secretary. Let it be conceded that the secretary is one of the executive officers of whom the Governor may require information, does this imply a right to dismiss him from office? If it does, then by the same rule the general assembly may dismiss the Governor from office; because he is under a constitutional obligation to give them information of the state of the government; and the obligation upon him to give the information implies a right in them to demand it. The object of the information is the same in both, cases. It is intended to aid the Legislature in their deliberations, and the obligation to communicate it is as imperative upon one officer as, the other. The same reasons, therefore, that would subject the secretary to removal, under this provision of the Constitution, will apply, with equal force, to the case of the Governor. The Constitution has made no distinction, and recognizes no executive standard of obedience or responsibility to its precepts.
"If the right to require information from an officer implied the right to remove him, the Legislature would have the power not only to remove the Governor, but a power, concurrent with him, to remove all the officers in the executive department; for the Legislature has, under its general powers, authority to call on all of them for official information.
"The Governor's authority to call upon the secretary and other officers in the executive department is indisputable; and his authority to enforce a compliance with his call is equally clear. But to do this, he must have recourse to the mode prescribed by law; he cannot, at discretion, adopt means unknown and unauthorized by law. The performance of a duty enjoined by law may be enforced by its process; and the rule that when an instrument gives a power it also gives, by implication, the means necessary to its exercise, is intended to render available those grants of power which, without its application, would be inoperative and nugatory, by reason of the means necessary to their exercise not being also provided. But when the means of enforcing a given power are furnished by law, the rule does not apply. It cannot, therefore, apply in the present case. The duty of the secretary to give the official information required, and to register the official acts of *Page 157 the Governor, is a legal injunction; and the law has provided ample means for enforcing its observance: First, by a private action, for any private injury that may possibly result from his neglect of duty; and secondly, by a mandamus, by which a specific performance of the duty may be enforced; and, lastly, if his contumacy should be thought to deserve it, he may be impeached, and, upon conviction, dismissed from office.
"* * * But these remedies, which the law has expressly prescribed as the means of securing an observance of official duty, the circuit court considers inadequate to insure that dispatch and promptitude which the executive may demand, and the interest of the public require; and, by way of illustration, supposes the case of the secretary refusing to put the seal of state to the internal improvement bonds, or to keep a register of the official acts of the Governor, and inquires whether, in such cases, the Governor must submit to the law's delay? I think it may be safely answered that he must; that in a government of laws all are bound to submit to the law; and neither the executive nor any other functionary can stretch his powers beyond it, in order to obviate an imaginary inconvenience or defect. The forms of the law are the outworks by which the citadel of liberty and the rights of person and property are defended; and when they are broken down, the fortress itself must soon surrender.
"Official responsibility is essential to a correct administration of the law; and if that object is not effected by the remedies already provided, it is the province of the Legislature to provide such as are more ample and efficacious. But this is alike beyond the remedial powers of the executive and the judiciary. Their appropriate functions are to expound and execute the law. In the exercise of the first of these functions, it is laid down as a rule of great importance in reference to a Constitution, 'not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous.' (1 Story on Const. 409.) * * *
"If this prompt remedy of dismissal from office may be applied to these officers, because a mandamus or impeachment would be too dilatory a proceeding to suit the exigency of the case, why should it not be applied to state's attorneys and judges? Suppose a state's attorney should refuse to perform his duties, or a judge to hold court; the Constitution, which requires a speedy administration of justice, would be violated, and the end and object of government defeated. But it cannot be contended that the Governor may apply a remedy by dismissing these officers for neglect of duty and appointing others. Yet the injury to the public is at least as great as any that can result from the secretary's neglect of his duty; and the means of redress are at least as tardy and as remote. Again, suppose the Governor should refuse to put his signature to the commissions of officers legally appointed; upon the happening of such an event, the machinery of the government would be stopped, or greatly retarded, for the want of officers to execute the laws. But where is the remedy, except by address or impeachment? What do these examples, and many others that might be instanced in addition to these, and those put by the circuit court prove, but that every delegated trust is more or less liable to abuse, and that if we elect to be governed by the permanent and known rules of a Constitution, rather than the capricious and arbitrary will of one, or more, we must wait the time necessary to carry them into operation? That, according to the principles of law and justice, a conviction for crime or delinquency must precede punishment, we must delay its infliction until the accusation is legally proven? In despotic governments, where the will of the ruler is the law of the land, there is no delay between its promulgation and execution. The quickening influence of fear, the principle upon which such governments are founded, reaches every department, and keeps the head of every functionary, from that of the Bashaw to the Cadi, always in danger.
"Upon a doubtful question, where the scales are equipoised, policy and convenience may be allowed a preponderating influence; but they cannot be regarded as the legitimate source of power, without violating the settled rules of construction, and subjecting the Constitution to fluctuate and change, with the changing opinion of men, of times, and of parties. This would defeat the objects of its creation. It was intended as a fixed and permanent rule of government, and without the attribute of certainty it would be of no value; we could not tell from what has been decided, how the same question would be decided again.
"But does policy sanction a concentration of power in the hands of one man, to be used at discretion? This doctrine is contrary to the opinions of the ablest writers upon government, and is also opposed to the Constitution, which has divided and subdivided the powers of government, and as far as practicable, made one a check upon another. And upon the principle that arbitrary, discretionary power is more liable to abuse than that regulated by law, the Constitution was made the law, and not the will of the executive, the rule to which all its officers are bound to conform and to which they are amenable. * * *
"The injunction that the Governor shall see that the laws are faithfully executed, *Page 158 it is also urged, gives him the control, and consequently the power of removal of the officers of the executive department. This inference is not justified by the premises. It has neither the sanction of authority nor the practice of other state executives; both of which are opposed to it. The practice of the President, as I will show, is founded upon other grounds, and his power does not extend to the removal of any officers whose offices are created by the Constitution, and whose duties are regulated by law. But as this position has been earnestly urged, and relied upon, I will examine it more fully than I should otherwise consider necessary. This clause of the Constitution, like those dividing the powers of the government, and declaring the attributes of each, is the declaration of a general principle, which is 'not to be regarded as a rule to fetter and control, but as matter merely declaratory and directory.' (Peter's Cond. R. 213.) It confers no specific powers, 'nor does it enjoin any specific duty.' 'This power of general supervision,' says an able commentor on American law, 'is a duty enjoined on the federal and state executives.' 'It would be dangerous, however, to treat this clause as conferring any specific power which they would not otherwise possess. It is to be regarded as a comprehensive description of the duty of the executive to watch with vigilance over all the public interests.' (Walker's Am. Law 103.) The Governor is not to execute the laws himself, but is to see them executed. This duty is performed by lending the aid and power of the executive arm to overcome resistance to the law. The history of the federal and state governments affords practical expositions of this clause of the Constitution in conformity with this construction. The executive is to see the laws executed, not as he may expound them, but as they may be expounded by those to whom that duty is intrusted. To the Legislature is delegated the authority to make the laws, to the courts the authority to, expound them, and to the executive the authority to see them executed as they are thus interpreted. His interpretation is proper only when specifically required by law, or where the ordinary means are inadequate to the object of their design. But to assume the power of expounding, and also that of executing the law, would be a usurpation of the functions of the judiciary, and concentrating, in one department, powers expressly declared, by the Constitution, to belong to two separate and distinct departments.
"The manifest intention of the Constitution, and the authority cited in the absence of all precedent and principle militating against it, would seem to be conclusive against the executive claim of power, under this provision, to direct the secretary how he shall execute the duties assigned him by law; and if he has no power to direct him how he shall execute his duties, he certainly has no power to dismiss him for not conforming to his directions.
"But it is, notwithstanding, insisted that this clause of the Constitution confers the power of dismissing, not only the secretary, but all the other officers in the executive department. If it confers the power of supervision and dismissal as to one officer, it also gives the same authority over every other one in the government (except, perhaps the judges) upon whom the performance of a duty may be enjoined by law. The injunction to see the laws executed, is general, and sufficiently comprehensive to embrace every law, and every officer; and if under it the Governor may dismiss from office the secretary, auditor, treasurer, and Attorney General, which is claimed for him, I cannot see why he may not dismiss every other one, without regard to the manner of their appointment, or the tenure of office; and thus, by the construction of one clause of the Constitution, bring all the officers, and the operation of all the laws of the state, under executive control. This would counter act the whole scope and design of the Constitution, by substituting the changing and capricious will of one man for the fixed and known rules of the law.
"From this consequence I can see no escape, if the principle contended for be adopted. The argument in support of executive power limits it to the removal of the officers in the executive department; but where is the authority for the discrimination? It is not to be found in the Constitution? It confers no authority over them that can be brought in aid of this construction, but, on the contrary, it would conflict with the performance of the duties assigned them, particularly that of registering the acts of the Governor, required of the secretary. The language of the Constitution is general, and embraces all the officers, as much as part. If the executive, therefore, may say to one officer how he shall execute a law, and dismiss him if he does not obey, he may say so to another. He may not only direct the auditor what warrants he shall issue, and the treasurer what ones he shall pay, or refuse payment of, but he may direct the Attorney General and state's attorneys whom they shall prosecute, the court what judgment it shall render, and the sheriff in what manner he shall execute it. This power, in the hands of any ruler, would leave to the citizens no safety for life, liberty, or property.
"Although these consequences would, I believe, be alike deprecated by all, they are such as must flow from an exposition of this clause that would give to the executive, authority to direct how an officer should execute a law, and dismiss him from office if he did not obey the direction. It is no *Page 159 answer to say that the Governor has no right to violate the law, but only to see it executed. The right to direct how a law shall be executed presupposes the right of exposition. How else can its meaning and intention be known? To direct an officer in the performance of his duty, he must decide what that duty is. This power, includes, also, the right to decide upon the validity of the law; for if it is in violation of the Constitution, it is no law, and cannot legally be enforced. But it is useless to talk of constitutional restraints, if the executive may decide upon the law, and the duty of the officer, and enforce his decision, it must prevail, right or wrong.
"This construction of the Constitution is incompatible with the legal obligations of the officers of government, with the supremacy of the law, and with well-settled principles. It is not denied that all the duties of the secretary, and other officers, are prescribed by law; and the principle is also conceded, and relied upon, that when the law imposes upon an officer the performance of a duty, it also confers the the power necessary for its performance. Its injunctions would be nugatory and idle, if they did not imply authority to enforce them. But how could the secretary, or other officer, perform the duties enjoined upon him by law, in the manner the law prescribes, if the Governor might interpose his authority and suggest a different mode?
"With every disposition that his directions should conform to the law, the Governor may err, unless we impute to him infallibility; and then the same liberal concession must be extended to the court, or there may be a difference of opinion between them. And which is to prevail? Will executive authority be a justification to the officer? Can he plead that in his defense when prosecuted for a violation of his official duty? Certainly he cannot. In what situation, then, does this executive authority place the officer? If he prefers his duty to executive dictation, he may be dismissed from office. If he submits to it, he incurs the penalty imposed by law for a violation of its injunctions, and may also be impeached, and dismissed from office. A construction of the Constitution involving consequences so absurd and unjust must be rejected as altogether inadmissible.
"But this question is settled by the adjudication of the highest judicial tribunal in the nation. In the case of Marbury v. Madison, Peter's Cond. R., the Supreme Court of the United States decided: that where the duty of an officer is prescribed by law, he is bound to conform to the law, and not, to be guided by the will of the President. In the performance of a duty prescribed by law, he acts under the authority and direction of the law, and not under that of the executive. This case was an application to the Supreme Court for a mandamus to compel the Secretary of State to deliver a commission withheld by the direction of the President. In delivering the opinion, the court remarked, in reference to the President's authority to control the secretary in the performance of the duty which the law enjoined upon him: 'This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course, accurately marked out by law, and to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.' * * *
"To carry out this object, two positions are assumed. First, that the power of removal is incidental to the power of appointment; and next, that the power of appointment to office, and removal therefrom, are executive functions, and as such belong to the Governor. The inquiry, then, is, how far these assumed axioms, are true? and if true, how far they are applicable to the present case?
"If the principle that the right of removal is incidental to, and is to be exercised by the power that confers the, office, is to be tested by the practice of the republics of America, it will be found to be untenable. I have shown that the practice of our own government is opposed to it; and by recurring to the practice of the general government, it will be seen that the practice under that is also opposed to it. I am not familiar with the practice of the state governments generally, but so far as my knowledge extends, their practice accords, with that under our government. But admit it to be correct, as contended for, it would not give the Governor the right to remove the secretary from office, but would take from him all title to the exercise of this right, upon this or any other principle. The Constitution gives to the Governor and Senate, conjointly, the appointment of the secretary. To them, conjointly, then, under the rule contended for, would belong the right to remove him. But, notwithstanding the unequivocal language, and obvious intention, of the Constitution, it is insisted that the Governor alone appoints the secretary; and a decision of the Supreme Court of the United States is relied upon, in support of the position. The Constitution of the United States gives to the President, by and with the advice and consent of the Senate, the power to make treaties, and to appoint ambassadors, judges, and all other officers whose appointments are not otherwise *Page 160 provided for, and which shall be established by law. But Congress may vest the appointment of inferior officers in the President alone, etc. Our Constitution gives the appointment of the secretary to the Governor and Senate, in language identical with the language of this provision in relation to appointments by the President and Senate. The question before the Supreme Court of the United States, in the case referred to, Marbury v. Madison, was not whether the President alone, or whether the President and Senate conjointly conferred appointments. The question which it did decide, was in relation to its jurisdiction; but that which was intended to be presented was, whether the President could control the Secretary of State in the performance of a duty prescribed by law; and the court said he possessed no such power. In the investigation of this point, it is said, in relation to, appointments to office by the President and Senate, that the nomination is the sole and voluntary act of the President, and that the appointment is also the sole and voluntary act of the President, though it (the appointment) can only be performed by and with the advice and consent of the Senate. Does this prove that the President alone makes the appointment? Does it not rather prove that the appointment is made by the joint action and co-operation of the President and Senate? The action of the Senate is as necessary to create the appointment as that of the President. Without its vote of advice and consent, no appointment can be made. How, then, can it be contended that they have no participation in the matter? We are not to lose sight of the sense and substance of the Constitution by confining our attention exclusively to the form of expression. The whole clause and every other clause having a bearing upon the subject are to be taken together, and construed according to the plain and generally received meaning and acceptation of its language, and the obvious intention of its authors. As it is obvious, then, that the President alone, and consequently the Governor, does not confer the office, as he alone does not create the Officer, he alone cannot, according to the rule laid down, remove him; as the advice and consent of the Senate is necessary to confer the office, it must, according to this rule, be necessary to remove him.
"After giving to the President and Senate the appointment of ambassadors and other superior officers, the Constitution provides that the appointment of inferior ones may be vested in the President alone. Is it not clear, then, that he alone does not appoint those just before enumerated, and declared to be appointed by the President with the advice and consent of the Senate? A construction of the Constitution which would give the President alone the appointment of judges, ambassadors, etc., would be rather an amendment than a construction of it. It would leave out a part, and a very important part, of the clause in relation to the appointment of officers. The co-operation of the Senate was intended for some purpose. The provision requiring it was not inserted in the Constitution without design. It appears, from the journal of the convention, that it was adopted as an amendment to the original drafts upon the report of a committee; and was intended to give to the Senate a participation in, and control over appointments to office. That this was the light in which this provision was viewed by the first Congress, and that it was then understood that the Senate, conjointly with the President, was the appointing power, is proved by their debates. This is also judge Story's view of the subject. He says, 'The power to nominate does not naturally or necessarily include the power to remove; and if the power to appoint does include it, then the latter belongs conjointly to the executive and the Senate.' (3 Story on Const. 390.)
"Again he says, 'The President is to nominate, and thereby has the sole power to select, for office; but his nomination cannot confer office, unless approved by a majority of the Senate. His responsibility and theirs is thus complete and distinct.' (3 Story on Const. 376.)
"According to these authorities, and the plain and obvious meaning of the Constitution, the Senate, as a co-ordinate branch of the government, conjointly with the President, is the appointing power, under the Constitution of the United States; and as our Constitution gives the Governor and Senate the appointment of secretary, in the identical language of that of the United States, in reference to appointments by the President and Senate, it follows conclusively that the Governor and Senate conjointly appoint the secretary, and that the Governor alone cannot remove him, because he alone does not appoint him. The secretary being appointed by and with the advice and consent of the Senate, upon the principle laid down by the court below, their advice and consent is necessary to remove him.
"Whatever degree of weight, therefore, may be allowed to the maxim, that the power of removal is incidental to, and included in the power of appointment, it cannot be brought in aid of the Governor's claim of power to remove the secretary. If it has no application under our government, it can have no influence upon the present case; but if, on the other hand, it is, according to the assumption of the court below, a principle of universal application, whenever the tenure of the office of the appointee is unlimited, it will be conclusive against the Governor's power to remove the secretary; because, under this rule, the *Page 161 advice and consent of the Senate is as essential to the removal as it is necessary to the appointment; and that has not been given.
"It is also contended that the Governor may remove the auditor and treasurer, etc. This position, and the position that the right of removal is incidental to that of appointment, cannot both be correct. The General Assembly appoint these officers; how, then, can the Governor remove them, if that right belongs to the power that appoints them?
"The arguments, and positions in favor of the power claimed for the Governor cannot be reconciled with each other. One clear and plain grant of power is sufficient to justify its exercise; but it is certainly a presumption that no such grant can be found, when the advocates of the power rely with more confidence on general maxims, drawn from other governments, than upon the provisions of the Constitution itself. The application of one of these maxims to the present case, I have shown, would defeat rather than sustain the claim of executive power. The next political maxim relied upon is, that the right of appointment and of removal from office are executive functions, and, as such, belong to the executive. The practice of the President, under the Constitution of the United States, is also relied upon as evidence of a similar authority in the Governor, because of the supposed similarity between that Constitution and ours.
"It is assumed, as an undeniable proposition, that the power to appoint to, and remove from office are executive functions; and upon this assumption, the argument in favor of the Governor's right to remove the secretary is based. The most improbable and fanciful theory may be established, if the: premises upon which the arguments in its favor are founded, may be assumed without proof. But the truth of the premises should be established before we presume to draw conclusions. The assumption that appointment to, and removal from office is an executive function, warranted by our Constitution, as a political maxim, is subject to exceptions, and is applicable only to governments which give that power to the executive. Such as deny to the executive the exercise of this prerogative are exceptions to the rule. It is rather a monarchial than a republican maxim of government; so far as I know, or as has been shown, we may search in vain, in the republics of the Union, for a constitutional grant to the executive, of the power of removal from office; while that of appointment is variously modified. In England, the power of appointment and removal belongs to the king; but that does not prove that it does or should belong to the Governor. We have adopted the common law of that country, but not its government, or Political maxims. According to the theory of that government, the king to the sovereign power. He is the fountain of all honors and offices; all are conferred by him, and may be recalled by him, at pleasure. They are the officers of the king and not of the government or people; hence the maxim, under that government, that the power of appointing and removing officers is an executive function. But as the theory and principles of our government are essentially different, it necessarily follows that the maxims and rules of government flowing from, and applicable to it are also different.
"According to the theory of our government, the people are the sovereign power. All officers are created and administered for their benefit and convenience, and not for the benefit or convenience of the chief magistrate. All the officers of government derive their authority directly or indirectly frown the people; and an officer who is to execute or administer the laws is not less an officer of the people, nor more an officer of the executive, or the Legislature, because the people have declared by the Constitution, that he shall receive his appointment through their instrumentality. In making the appointment, they act as the agents of the people, but when that act is performed, their agency and authority ceases. The President is appointed by electors, but that does not make him their officer, or subject to their control. So, where no other power than that of appointment is given to a department of the government, none else can be exercised, unless where the appointee is the mere agent, and bound to execute the will of the appointing power.
"If, in claiming the power of removal as an executive function, it is meant that this power belongs, ex-officio, to the Governor; that it grows out of, and belongs to, the office, the position is altogether untenable; the executive power under this, and every other constitutional government, is just such a power as the Constitution confers upon him. That is the only source of power. Neither the practice nor maxims of other governments can confer upon him any functions or powers. But it is laid down, as 'a well-settled political proposition, that, whenever the legislative powers of a government are undefined, it includes the judicial and executive, attributes.' (1 Peter's Cond. R. 213.) The executive and judiciary, therefore, can exercise no powers but such as are granted, while the Legislature can exercise all powers not forbidden.
"It is also argued that the Constitution of this state was modeled after that of the United States, and that, inasmuch as the President has the power, under that instrument, of removing officers in the executive department, the same power was intended *Page 162 to be given to the Governor. This reasoning is more plausible than sound, and, like that predicated upon the assumption that the secretary is the confidential officer of the Governor, and that the power of appointment and removal is an executive function under our Constitution, is based upon incorrect premises. Some of the provisions of the two constitutions, are similar, but they are essentially different as regards the grants of executive power. They both contain the same general division and definition of the powers of government, and both grant to the executive the pardoning power, and constitute him commander-in-chief. They are also alike in requiring him to see that the laws are executed, and to give information, to the legislative department, of the state of the government. The right of the President to require the opinion, and of the Governor to require information from the officers in the executive department, I have shown to be different, and intended for a different purpose. And I think I have also, shown that the power of removal cannot, be inferred from these, or any of the provisions in which the two Constitutions are similar. The power of appointment to, office, delegated to the respective executives, and the power of supervision intended to be conferred, will, by a recurrence to the Constitution, be found to be widely different. If the constitutional grants of executive power can be shown, to be similar in reference to some subjects, but are different in respect to appointment to office, it must be evident that different powers were intended to be conferred. That could be the only motive for a deviation from the supposed model.
"But, is there not as much reason for supposing that the Constitutions of the state governments served as models for the formation of ours, as that of the United States? There is scarcely a provision in it that is not to be found in one or other of the state Constitutions, either identical, or in a form slightly modified; and as the objects and general powers of our government bear a nearer resemblance to those of the other state governments than to those of the general government, their practice, under constitutional provisions similar to ours, would seem to afford a precedent (so far as precedent is, entitled to influence) of more weight than that of the general government. But, so far as my knowledge upon this point extends (though I confess it is limited), I do not know of but one Governor in the Union who possesses the power claimed for the Governor of this state. And we may fairly presume that none other does, as the evidence of its exercise has not been adduced by any of the able counsel, who did not omit to bring forward every practice or exercise of executive power calculated to countenance or support that which they advocated.
"In order to ascertain how far the practice of the President can be regarded as a precedent for the like practice by the Governor, it is necessary to inquire how far their constitutional powers of appointment to, office are alike; and also, whether the officers whom the President may remove, and the secretary of this state, bear the same relation to the respective executives? Upon a similarity in these points, and upon both executives having the same interest in, and control over, the subjects to which the duties of the officers relate, must depend the degree of influence which the practice of the general government is entitled to have upon that of ours. The same grant of power does not necessarily or naturally give the same control over the subjects or officers of a different character.
"But, recurring to the Constitution of the United States and of this state, there will be found a great disparity between the executive powers of appointment to office conferred by the two Constitutions; and by recurring to the organization of the offices under the two governments, as great a disparity will be found to exist in relation to the control and supervision conferred upon the respective executives over the officers in the executive department; and none of the reasons upon which Congress, in 1789, recognized in the President the right to remove those officers, are applicable to the Governor's claim of power.
"By the second section of the second article of the Constitution of the United States, it is provided that the President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur, and shall nominate, and by and with the advice and consent of the Senate shall appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law. But Congress may by law vest the appointment, of such inferior officers as they may think proper in the President alone, in the courts of law, or in the heads of departments.'
"This clause gives to the President and Senate the appointment of all the superior officers of the government; and Congress has given most of the others. There is some propriety, therefore, in calling appointment to office an executive function, under the general government. But can it be so called, under ours?
"The Constitution of this state, after giving the appointment of clerks to the courts, and that of almost all the other officers to the people and the Legislature, provides, by the twenty-second section of the third article, that the Governor shall *Page 163 nominate, and by and with the advice and consent of the Senate, appoint all officers whose appointments are not herein otherwise provided for;' with the further proviso that inspectors, etc., and all other officers whose jurisdiction is confined to the county, may be appointed in such manner as the General Assembly shall prescribe. Although the Constitution provides, I believe, for the appointment of all the officers it creates, and gives to the Legislature the right of prescribing the manner of appointing all county officers, still this section would have left to the Governor some chance of appointment to office, besides those specially given him, if this was all that had been said upon the subject. But it is not. By the tenth section of the schedule, it is declared that 'an Auditor of Public Accounts, an Attorney General, and such other officers for the state as may be necessary, may be appointed by the General Assembly, whose duties may be regulated by law.'
"The practical construction which this section has received takes from the Governor all appointments except such as are expressly given him. I do not express any opinion upon the propriety of this construction; and I am still less disposed to advocate the policy of giving all appointments to office to the Legislature, rather than to the executive. But that is not the point for adjudication.
"What officers, then, has the Constitution given the Governor the right to appoint that establishes the analogy between the constitutional powers of the President and the Governor? The President may, in conjunction with the Senate, appoint all the superior officers of the general government. The Governor may, in conjunction with the Senate, appoint a Secretary of State, and he may appoint his staff officers. These are all. How, then, can it be said that there is an analogy between the two Constitutions in reference to the power of appointment delegated to the respective executives? On the contrary, there is a marked contrast between their constitutional powers.
"And does the Governor's right to appoint two staff officers, and Secretary of State, create a general rule, and constitute appointment to office an executive function, under our Constitution? I think not. But, to prove that it does, the court below gives a long list of officers, embracing nearly all belonging to the government, who may be appointed by the people, the Legislature, or the judiciary, and says that these are all the instances in which appointments can be made, except by the executive. And these, it is contended, are exceptions to the general rule that appointment to office is an executive function. Now, to say that the appointment of three officers, and one of them in connection with another branch of government, constitutes a general rule, and that the appointment by the people, the Legislature, and the judiciary, of several hundred times that number, are merely exceptions to this general rule, is, to my mind, a confusion of language, and confounds and reverses all preconceived ideas of general rules, and the exceptions thereto.
"As the right of appointment to office has not been given to the Governor as a general rule, as it has to the President, the analogy between their powers, relied upon, does not hold good; and whatever may be the theoretical or political denomination of this power under other governments, it cannot be considered an executive function, under our Constitution, because it does not belong to the executive. Under the English government, the power to declare war and to coin money, as well as to appoint to office, are executive functions, because they belong to the executive. But they cannot be so denominated, even under the general government. These powers not having been granted to the executive of that government, they cannot, under it, be called executive functions. So diversified is the practice of the governments of the states, in reference to the appointment of officers, that no general rule can be deduced from it; certainly none to justify the assumption that it is an executive function. Under these governments, then, it is an executive, or legislative, or popular function, or power, according as the respective Constitutions have made it so.
"The disparity between the powers of the President and Governor is not greater in reference to appointment to office than it is in reference to their supervision and control of the officers of the executive department, when appointed.
"The Constitution of the United States and of this state contain the same declarations, that the executive powers of the government shall be vested in the respective executives; and, in the Constitution of the first, this declaration is carried out by its other provisions. It creates no other officers in whom a portion of this power is vested, or required to be vested, by law. Those officers whom the President may remove are created by law as aids and helps to him in the performance of his duties. But the declaration in our Constitution that the executive power of the government shall be vested in the Governor is to be understood in a much more limited sense; inasmuch as, by its other provision, it is greatly circumscribed and narrowed down. Unlike the Constitution of the United States, ours has created other executive officers, in whom a portion of this power is *Page 164 required to be vested by law, not to be assigned by the Governor. He can assign no duties to the secretary. That idea is negatived by the Constitution, requiring all his duties, in addition to such as it has prescribed, to be assigned by law. He is, therefore, the officer of the Constitution, and not of the Governor.
"By an examination of the laws of Congress, organizing the officers of the executive department of the general government, and by recurring to the Constitution, it will be found that this distinction exists in reference to all the officers in the executive department of the two governments. And by a recurrence to the congressional debates of 1787, it will be seen that the power of removal was conceded to the President because of his, executive powers, of his responsibility for the performance of the duties of the executive department, and of his supervision and control of the executive officers. None of these apply to the Governor. * * *
"The Governor is neither in fact nor in theory personally or politically responsible for the official conduct of the secretary, or any other officer. He cannot assign him the performance of a single duty, or control him in the performance of those assigned by law. He does not move in the executive circle, as has been said, but in that marked out by the Constitution and the law, separate, distinct from, and independent of, that of the Governor. He looks to the law for his authority and duties, and not to the Governor; and to that, and that alone, he is responsible for their performance. * * *
"The congressional exposition of the Constitutional powers of the President, in 1789, has been relied on, with much apparent confidence, as authority in favor of the Governor's claim of the same power that was conceded to the President. But, from a view of the arguments and reasons upon which the authority of the President was urged, and allowed, taken in connection with the disparity between the constitutional powers of the two executives, and the contrast between the character of the executive officers of the general and state governments, it is to my mind a strong authority against the exercise of the same power under the latter that is allowed under the former. Throughout, there is rather a contrast than analogy between the circumstances of that case and the present. The office of secretary, is created by the Constitution, and all his duties are prescribed by law, agreeably to the Constitution. The President has no constitutional power to remove any officer whose office is thus created, or all of whose duties are thus prescribed. But so far as he possesses the power to remove this class of officers, it is expressly given by law. But the offices of those officers whom he may dismiss owe their origin to the law, and not to the Constitution, and are consequently subject to repeal or modification. Their duties are, to a great extent, prescribed by the President; and to him alone, to that extent, they are accountable for their performance. The executive power and the control of the executive department of the government are vested, by the Constitution, in the President alone. It creates no other officer in whom any portion of this power is vested, or required to be vested, by law; and those who are to aid him in the performance of his duties are, by the laws of their creation, placed under his supervision and control. They bear to each other the relation of principal and agent. Hence his responsibility, and his right of removal. But mark the contrast between the constitutional delegation of power to the two executives, upon, this subject. Our Constitution has not delegated to the Governor all the executive power of the government; nor has it given him any direction or control over the secretary, or other officers of the executive department.
"By the creation of these officers, the Constitution contemplated a division of the executive power of the government; and by requiring their duties to be prescribed by law, it negatived the idea of their being prescribed by the executive, as those of the general government are. The Governor, therefore, has no control or direction of the secretary, and his responsibility is as limited as his authority is circumscribed.
"From this comparison between the powers of the President and Governor, and between the character, duties, and accountability of the officers whom the President may remove, and the secretary of this state, there is no similarity, so far as regards the decision of this case; and, by an examination of the debates of 1789, it will be seen that the concession to the President of the power now claimed by the Governor was made for reasons which can not apply to it. Convenience and a supposed necessity may have had some influence, but, from the general scope and tendency of the arguments of the advocates of the President's power, there would seem to be no doubt but the concession was made because of the general grant to him of executive power; his entire control over, and responsibility for, the proper administration of the executive departments; and because of his right to prescribe the duties of the officers of the departments, and supervise and control them in the manner of their execution. The same principle upon which the President's power was affirmed, was carried out and applied to the functionaries of the government by the legislation of this Congress. In organizing the judicial courts, they gave to the President *Page 165 and Senate the appointment of marshals, and to the marshals the appointment of their deputies; but, because of the interest in and control over the subjects to which the deputies' duties relate that the court must necessarily have, the right to dismiss him from office was given to the court, and not to the marshal, by whom he was appointed.
"The marked disparity between the powers and responsibility of the general government and that of this state naturally and necessarily results from the different character of the respective governments, their powers, duties, and the object of their creation.
"The government of the United States is the national government of the Union. To that is delegated the attributes of national sovereignty. The duties of the executive of the national government are, therefore, widely extended and greatly diversified; 'embracing all the ordinary and extraordinary arrangements of peace and war, of diplomacy and navigation, of finance, of naval and military operations, and of the execution of the laws throughout almost infinite ramifications of details, and in places at vast distances from each other.' His views are not bounded even by the circuit of the whole Union, but must extend to the most remote regions to which commerce or navigation has extended, or connected our interest. So multifarious and diversified, therefore, are the functions of his office that the limited abilities of no one man are equal to their discharge. Hence the necessity of organizing various departments, and the employment of numerous ambassadors, and other public ministers; all of whom constitute so many aids and helps in the performance of the executive duties of the President. And as many of the duties of these officers cannot be regulated by law, because they cannot be anticipated, but arise out of the changing exigencies of time and circumstances, large discretion must, from necessity, be vested somewhere; and it has been vested in the President as the chief executive officer of the government. From his interest in and control over all the business of the executive department, and his political responsibility for its administration, arises his right to supervise, control, and dismiss those executive officers who are his political and confidential aids in the discharge of his executive duties. But the state governments are widely different in their objects, powers, and duties. Compared with the general government, they may be denominated domestic governments. They act exclusively upon the domestic relations of life. Their regulations and sphere of action are limited to their territorial boundaries. The powers and duties of the chief executive magistrate, therefore, are proportionately limited, and such as from their nature are capable of being specifically prescribed and regulated by law; and, unlike those of the President, they may all be performed in person. He neither has, nor does he require, the aid of others in the performance of any of his duties. The duties, likewise, of all the executive officers of the state are capable of being regulated by law; and by our Constitution, they are required to be so regulated. No discretionary authority or control over them is delegated to the Governor by the Constitution; nor does it contemplate the delegation of such power, by law.
"From the discretionary powers with which the President is clothed, there is a necessity for his possessing the power of removal, which does not exist in the case of the Governor. The heads of departments and public ministers being the political and confidential officers of the President, to execute his will, and act in cases in which he possesses a legal discretion, all their acts in this character are only politically examinable. The duties which are not enjoined by law cannot be enforced by its process. But as the law has expressly given to the President the right to prescribe the duties of those officers, it also gives, by necessary implication, the power of removal, as a means of rendering available the authority expressly granted.
"But this reason does not exist in favor of the like authority in the Governor. The rule is that the duties of an officer that are enjoined by law may be enforced by the mandates of the law; and as all the duties of the secretary, and other executive officers of this state, are thus enjoined, they can be enforced by the process of the law. No authority being given to the Governor to assign any of these duties, no right of removal can be implied to enforce a command which he has no right to give. This is the doctrine of the Supreme Court of the United States, in the case of Marbury v. Madison, although the Secretary of State of the United States is the political and confidential officer of the President, so far as he may prescribe the duties of that officer; but in the performance of duties which the law has enjoined, the court said, the secretary acted as the officer of the law, and not of the President. In such a case, the law, and not the will of the President, was to be his guide, and the rule to which he was to conform. Any other doctrine would place the executive above the law, and make his will, in place of the law, the rule to which its officers are amenable for the proper discharge of their duties. This would be in violation of the whole tenor and spirit of the Constitution, which regards the law as paramount to all other authority, and as constituting the rule to which all are bound to conform, and to *Page 166 which all are amenable, officially and individually. In every aspect, then, in which I can view this case, I am constrained, according to the convictions of my mind, to say that the Governor has no power, under the Constitution, to remove from office the Secretary of State, at will and pleasure. No express grant of this power is to be found in the Constitution; nor can it be implied from any of its provisions. It is not a power necessary, as has been shown, to the exercise of any of the powers expressly delegated, or the performance of any of the duties enjoined upon the executive. It must, also, be manifest that he alone can have, no title to the exercise of this power as being incidental to that of appointment, inasmuch as he alone does not confer the appointment. In the performance of that act, the co-operation of a co-ordinate and independent branch of the government is essential. Upon the principle, therefore, that the authority that confers an office may remove the officer, the advice and consent of the Senate is as necessary to the removal of the secretary as it is to his appointment. It has also been shown that the practice of the President can be no precedent for the like practice of the, Governor, because of the disparity between the constitutional powers conferred upon the respective executives, particularly in reference to the power of appointment to office; and also in reference to their authority over the officers of government, as contemplated by the respective Constitutions, and as delegated by law.
"The doctrine that the power of removal from office at will must necessarily be lodged in some department of every government, is abundantly refuted by the practice and experience, of our own government for upwards of twenty years; and likewise by other state governments of the Union for half a century; in none of which has the want of the power been complained of as an evil, or even a defect. But, although this court cannot be governed by considerations of expediency, yet I do believe that the conclusion to which I have arrived, by the application of the legal rules of interpretation, is in accordance, not only with the language and spirit of the Constitution, but with sound policy, and the best interests of community.
"According to my construction of the Constitution, the power of removing from office the secretary, auditor, and Attorney General is lodged in the hands of the representatives of the people. They may not only give these officers whatever tenure they please, but they may, by law, confer upon the executive the power of removal, under such regulations as the interest of the public may require. By those who hold the opposite doctrine, it is contended that the power of removal belongs, unconditionally, to the Governor, not by any specific grant of the Constitution, but by construction. The question, then, so far as power is concerned, is one between the executive and the legislative departments of the government. Which of these departments can be most safely trusted with, or would be most likely to abuse, this trust? The lessons of political experience answer that power is much safer when operating and regulated by a law made by the representatives of the people than when its exercise depends upon the uncontrolled and arbitrary will of one, individual, however exalted may be his station."
The decision of that court has been cited with approval and followed in many instances. I find no authority to the contrary. That decision is the basis of the statement cited in the opinion of this court from Cooley on Constitutional Law, and the principle therein announced is the, basis of the text in a textbook for colleges and universities, entitled Introduction to American Government (the Century Co., 4th Edition) 1931, by Frederick A. Ogg, Professor of Political Science, University of Wisconsin, and P. Orman Ray, Professor of Political Science, University of California (page 757), as follows:
"Although commonly charged with the duty of seeing that the laws are faithfully enforced, the Governor enjoys little or no inherent authority derived from the mere fact that he is the chief executive of the state. His position in relation to the state administration is therefore distinctly inferior to that of the President in relation to the national administration. The federal Constitution broadly bestows 'the executive power' of the United States upon the President; but no corresponding clause in state Constitutions concentrates executive power in the Governor, giving him an indefinite sphere of executive influence. On the contrary, the executive authority in state government is shared by a number of officers. State Constitutions frequently say expressly that the executive branch of the government shall consist of the Governor, Lieutenant Governor, and various other officers mentioned by title; and that merely the 'supreme (or chief) executive power belongs to the Governor. Such provisions, combined with the tendency of the courts to construe grants of power in state Constitutions rather narrowly, have left the Governor with practically no executive authority which is not clearly granted by some definite provision in the Constitution or by some statute."
Since the rule has been followed from the year 1839 to this date, I see no reason why it should not be applied in the present case. It is particularly applicable under the facts shown by the record in this case, for, under *Page 167 the Constitution of this state, the executive authority of the state is not vested in a Governor, but in a Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, Superintendent of Public Instruction, State Examiner and Inspector, Chief Mine Inspector, Commissioner of Labor, Commissioner of Charities and Corrections, Commissioner of Insurance, and other officers provided by law and the Constitution. Section 1, article 6, of the Constitution.
It is said that, by the provisions of section 4, article 6, of the Constitution, the term of office of state officers is fixed at four years. Such is not the case. By the provisions of that section, the term of office of the Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, State Treasurer, State Examiner and Inspector, and Superintendent of Public Instruction is fixed at four years, but the term of office of the other officers named in section 1, article 6, supra, is not fixed by the provisions of section 4, article 6, supra, and there is no constitutional provision fixing the term of office of officers which the Legislature is authorized to create by law under the authority of section 1, article 6, supra.
It is said that to permit the Legislature to fix the term of office of the State Highway Commissioners at more than four years would authorize it to fix that term at a much longer period of years. It would be difficult to have such legislation adopted over the veto of the Governor and, in the event it was adopted and it was not satisfactory to the people, the people could exercise their right of referendum. I know of no constitutional provision limiting the power of the Legislature to fix the term of office of the members of the State Highway Commission, which it was required by the provisions of the Constitution to establish. None has been cited. Both the legislative and the executive branches of the government have followed a different policy. Among the examples thereof is the Board of Dental Examiners, the term of the members of which is five years by the provisions of section 4371, O. S. 1931; the Forest Commission, the term of the members of which is fixed at six years by the provisions of section 4752, O. S. 1931; the Library Commission, the term of the members of which is fixed at six years by the provisions of section 4918, O. S. 1931; the State Board of Agriculture, the term of the members of which is fixed at five years by the provisions of section 8525, O. S. 1931; the Board of Regents, the term of the members of which is fixed at seven years by the provisions of section 7209, O. S. 1931; and the State Industrial Commission, the term of the members of which is fixed at six years by the provisions of Senate Bill No. 123, chapter 72, S. L. 1931. It will be noted that Senate Bill No. 123, supra, as well as Senate Bill No. 103, chapter 66, S. L. 1931, providing that the term of office of the members of the excise board shall extend beyond the term of office of the Governor, bear the approval of the Governor of Oklahoma.
In view of that legislative and executive Construction, I cannot agree with the contention that the spirit of the Constitution is against the creation of offices the terms of the officers of which extend beyond the term of office of the Governor. I find nothing in the Constitution to justify that conclusion. While the term of office of some of the state officers is fixed at four years, the term of office of the members of this court is fixed by the Constitution at six years. While that provision is applicable to judicial officers, a similar provision is applicable to members of the Corporation Commission whose term of office is fixed by the Constitution at six years. When the Legislature, acting under its constitutional authority, established a Criminal Court of Appeals, it fixed the term, of office of the members of that court at six years. No one has ever questioned the legislative authority so to do.
The Constitution required the Legislature to establish a department of highways. It imposed no limitation upon the Legislature as to the method of appointment, the term of office of the members, or the manner of removal. The Legislature has exercised that authority. The fact that the President of the United States may remove an officer appointed by him, who at all times is subservient to him and who merely assists him in the performance of his duties, in nowise indicates that the Governor of the state may remove an officer authorized by the Constitution merely because the Legislature sees fit to put the appointive power in the Governor, for the Legislature could as well have provided for the election of the members of the State Highway Commission. They are in nowise subservient to the Governor. They do not assist him in the performance of his duties. Their duties are prescribed by law. They are as independent of him and his control as are the other executive officers of the state of Oklahoma. The Governor no more power to remove them than he has the *Page 168 power to remove the Secretary of State. His attempted exercise of a power which he does not have was without authority of law.
For the reasons stated, I concur in the opinion of my associates herein.