concurring.—I believe the only question, involved, or which could have been involved in this case, is, was the office of State Treasurer vacant at the time the appellee was appointed and installed as Treasurer ? Did the absence from the State of the appellant, and the circumstances attending that absence, amount to an abandonment of the office ? Was it his intention permanently to absent himself from the office, and to cease entirely to perform its duties, and to enjoy its emoluments? For I conceive that there can be no abandonment of an office, in legal contemplation, without the intent to do so; and mere absence from the place of official duty, even for an unreasonable time, of itself merely, would not, I think, create a vacancy.
It seems that in this case, at the date of the Governor’s proclamation, the appellant, together with his. family, had been absent from the State for several weeks; but aside from this fact there seemed to be no special facts pointing to the conclusion, that his absence was intended to be permanent; on the contrary, he did not close the office, but left it in the charge of a clerk who, though not bonded as the law required, had, nevertheless, general charge of the office for some time before.
However reprehensible we may regard the fact that so important a public office was left by its incumbent in charge of an unbonded clerk, yet even this, in connection with the absence of the officer, does not in my opinion amount to an abandonment of the office.
But it is maintained by the counsel for the appellee that in the absence of a vacancy by intention of abandonment of the office, and where the office is left in the hands of an irresponsible clerk, and under, such circumstances as to fully authorize the Governor to believe that the office was being grossly abused, to the great detriment of the public interest, the Governor had the power, and it was his ' *18duty, as the head of the executive department of the State, of which the treasury is one of the branches, to seize the office, declare it vacant, and fill the vacancy by another opp ointment. In other words, that the Governor has the power to remove an officer of the executive department, even the constitutional head of a branch of it, for a gross violation of the law governing his conduct as such officer, or gross abuse of the trust confided to him.
It is conceded that the Governor has the power to fill the office of State Treasurer whenever that office becomes vacant. But I cannot concede that under the 16th Section of the Bill of Eights the Governor can create a vacancy by the removal of an officer who holds his office by constitutional tenure. That section reads as follows : “Ho citizen of this State shall be deprived of life, liberty, property or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of the law of the land.” That “ due course of the law of the land,” in regard to the removal of officers, is clearly laid down by the Constitution of the State, and in the criminal laws of the State, by impeachment or indictment and conviction ; and as a result of such impeachment or conviction, a judgment of expulsion from office. And until such judgment of expulsion from the office, the officer is still the incumbent, and all his official acts, in conformity with law, are as valid as though such officer were unimpeachable and faultless.
Mere malfeasance or misfeasance in office, or even high crimes committed in office, do not of themselves vacate the office, but they do subject the incumbent to impeachment, or to indictment, trial, conviction and judgment of expulsion, by “due course of the law of the land.” Under such a judgment the vacancy does occur, and cannot until then- occur.
We are not called upon to decide whether or not the *19course pursued by the Governor in treating the office as vacant, and in appointing the appellee to fill it, thereby subserved the public interest.
The questions presented by the record are purely legal ones, and we deal with them as such.
I concur in the just result reached in the opinion read by Mr. Justice Walker.