Keenan v. Perry

Wheeler, C. J.,

on rehearing.—If we were mistaken, (which is not perceived,) in supposing the legislature did not intend by the Act of 1858, to act directly upon the incumbent of the office in question, it would not affect our conclusion. Because the act expressly recognises the power of the governor to remove him, *262for the specified causes; and the only question is, whether he has exercised the power.

In so far as concerns the fact of removal, or what shall be evidence of the exercise of the power, it is not perceived that it can make any difference, whether the power exists, as an incident to the power of appointment, unqualified, as under the Act of 1856, or as qualified by the expression of the causes for which it may be exercised, by the Act of 1858. The power still resides in the governor, and there is no prescribed form to be observed in its exercise. Ho public declaration of the fact is prescribed, and on general principles, it would seem, that no other manifestation of the exercise of the power is necessary, than the making of a new appointment. The new appointment, is a revocation of the former appointment, and necessarily, a removal of the prior incumbent. There cannot be two incumbents of the office at the same time. The governor has the exclusive power of appointment and removal; there is no mode prescribed by law for the exercise of the power; a new appointment, is necessarily a revocation of the first, and a removal of the incumbent. This seems clear on principle, and it has been expressly so adjudged, both in England and in this country.

Thus, in Smythe v. Latham, 9 Bing. 672, the office in question was that of paymaster, appointed under an act of parliament. The court said, it was not an ancient common law office, the tenure of which is to be governed by usage, but by the legal construction of the act of parliament, the tenure of the office was during pleasure; and that the new appointment was, of itself, a revocation of the first.

The same principle was declared and applied, by the Supreme Court of the United States, in the case before cited, Ex parte Hennen, 13 Pet. 230. The court there said: “ The power vested in the court, (to appoint a clerk,) was a continuing power; and the mere appointment of a successor, would, per se, be a removal of the prior incumbent, so far, at least, as his rights were concerned. How far the rights of third persons may be affected, is unnecessary now to consider. There could *263not be two clerks at the same time. The offices would be inconsistent with each other, and could not stand together. If the power to appoint a clerk, was vested exclusively in the District Court, and the office was held, at the discretion of the court, as we think it was; then this court can have no control over the appointment, or removal, or entertain any inquiry into the grounds of removal. If the judge, is chargeable with any abuse of his power, this is not the tribunal to which he is amenable.” (Id. 261.) The principle is fully maintained, that where the power of appointment is exclusively vested in any tribunal, or department of the government, and the office is held at the discretion of the tribunal, the mere appointment of a successor, is, per se, a removal of the prior incumbent, so far, at least, as the right to the office is concerned. The law was silent, as to the power of removal. But “all offices, (the court say,) the tenure of which is not fixed by the constitution, or limited by law, must be held, either during good behaviour, or, (which is the same thing, in contemplation of law,) during the life of the incumbent; or must be held at the will and discretion of some department of the government, and subject to removal at pleasure.”

In the present case, the office, though its tenure is limited by law, is held at the discretion of the governor. The power of appointment and removal, is exclusively vested in him; and the office, consequently, is necessarily held at his discretion. It is not intended that he shall have or exercise, a capricious and arbitrary discretion; but a discretion governed by law, and to be exercised, only in the cases provided by law. Still, the office is held at his discretion, not subject to revision, but subject only to the rules prescribed by law, for his government; and if, in its exercise, he should be chargeable with an abuse of his power, as the court said, in the case just cited, this is not the tribunal to which he is amenable. The court has no control over the appointment or removal. The appellant was appointed and commissioned, and notice was given by the governor, to the appellee, *264of his removal, and the appointment of the appellant in his place, which was sufficient, as to the fact of removal.

The power is not questioned; and it is admitted that the governor is the sole judge of the causes, and that his decision cannot be revised. It is sufficient, according to the argument, that one of the prescribed causes, in his judgment, exists, to authorize his action; and whether rightly, or not, cannot be judicially examined. If cause exist, in his mind, though it have no existence, in point of fact, it is admitted it is conclusive, in so far as concerns judicial inquiry. Still, it is insisted, he must manifest the existence of the cause, in his judgment, by assigning it, in order to enable him to exercise the power of removal; or, the new appointee must prove it, to show himself entitled to the office. Whether, or not, in the judgment of the governor, there was cause, may be supposed scarcely a fit subject of judicial investigation. If the motives that prompted his official acts, are examinable, it must be elsewhere than in a judicial tribunal. But the obvious answer to the argument, that he must assign the cause of the removal, is, that the statute does not require it. It is only said, that the officer shall continue in office, during the prescribed period, unless sooner removed by the governor, for the specified causes; not that he shall assign the cause. If that had been intended as a condition precedent to the exercise of the power, or as a limitation, or restriction upon its exercise, it would have been easy to have so expressed it. The argument seems to proceed upon the supposition, that the court can annex a condition, to the exercise of the power, which the legislature did not see proper to annex. It is said, the governor must assign the cause of the removal, because he is required to keep a record of his official acts. But it is to be observed, that the cause is not the act of removal. He may keep a record of his acts, without spreading upon the record, the causes which induced them; and even if that duty were neglected, it should not, it would seem, have the effect to deprive third persons of their legal rights.

When the governor exercises the power of removal, he neces*265sarily decides that, in his judgment, one of the statutory causes exists. This we must suppose,' unless we suppose him to have acted in manifest disregard of the law and of his duty. But as he is made the sole and exclusive judge, his decision not being elsewhere examinable, the supposition is only, that, in his judgment, there was cause—not that it should have existence in fact. There is not, therefore, any such presumption indulged as the argument supposes.

If it be thought, that to require the causes of the removal to be assigned, would operate as a salutary check to prevent the capricious or arbitrary exercise of the power, that is a consideration which may well be addressed to the law-making power. The moral restraint of a plainly prescribed legal duty already exists, and must be effectual, unless we suppose the motives to disregard the plain requirement of the law will be stronger than the sense of oEcial duty. But, as has often been remarked, that a power may be abused, is no argument to disprove the existence of the power. The liability to abuse, may be a good reason why the exercise of a power should be carefully guarded, and placed under proper restrictions, by those by whom it is conferred; but it cannot afford the legal test by which to judge of its existence; for that we must look to the act which confers the power. In the present case, it is beyond question, that the power did exist; and we cannot say that the exercise of it was not attended by all the circumstances which the law that conferred it required.

Rehearing refused.