(concurring). While I concur with my associates, Judges Ellsworth and Carmody, in holding the second section of chapter 136, p. 244, Laws 1905, not invalidated by any defect in the title of such act, I .am of the opinion that other grounds should be given for denying the writ.
It is a. well-established rule that courts, will not pass upon the constitutionality of a statute when not necessary to the decision of the question under consideration. If my view of the law is correct, there is ample ground for denying the writ for other reasons Than those given by my associates, .and I shall as briefly as possible state such grounds and my views regarding the same.
Section 192 of the Constitution reads: “The commissioned officers of the militia shall be commisisoned by the Governor, and no commisisoned officer shall be removed from office except by sentence of court-martial pursuant to law.” Our Constitution, including this section, was adopted and has been in force since 1889. In 1866 Congress enacted a law providing that: “No officer in the military or naval service shall, in time of peace, be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in. commutation thereof.” Act July 13, 1866, c. 176, *109§ 5, 14 Stat. 92. In my opinion there is no doubt that the convention which framed the Constitution of .this state copied section 192 from the federal statute referred to, which had then been construed by the Supreme Court of the United States. It is to be presumed that in doing so the convention adopted the construction placed upon the statute by that court. But even if adopted in ignorance of that construction, or in disregard of it, it should still have very great weight with this court in determining the effect of section 192.
The statute in question was before the Supreme Court of the United States in 1881, and that court, by unanimous opinion announced by Judge Harlan, held that the appointing power still retained the right and .power to remove a post chaplain in the army of the United States, and that the only effect of the statute quoted was to change the power of removal, which prior to its enactment had been exercised by the President alone, to the President and the Senate, and that it was not intended to abrogate the well-established and uniform rule that the power to remove is incident to the power to appoint. One Gilmore had been appointed by the President to the office held by Blake as .post chaplain, and the appointment confirmed by the Senate, thus superseding Blake, and it was held that the latter ceased to be an officer in the army from and after the date at which that appointment took effect. This case was followed by Keyes v. United States, 109, U. S. 336, 3 Sup. Ct. 202, 27 L. Ed. 954, wherein it was held that the appointment, by and with the advice and consent of the Senate, of one Goldman in the place of Keyes, as second lieutenant in the army, was not prohibited by the statute referred to, and that it did not restrict the power of the President, by and with the advice and consent of the Senate — in other words, the appointing power — to displace officers of .the army 'and navy by the appointment of others in their places. The latter decision was rendered in 1883. These two cases have been recognized as authorities on this question by that high tribunal repeatedly since 1880. The same construction of the statute was followed in' Crenshaw v. United States, 134 U. S. 99, 10 Sup. Ct. 431, 33 L. Ed. 825, wherein it was held that an officer of the navy appointed for a definite term, or during good behavior, has no vested interest or contract right of which Congress cannot deprive him; that an officer, whatever the form of the statute, does not hold by contract, but enjoys a privilege revocable by the sovereignty at will. And *110in Mullan v. United States, 140 U. S. 240, 11 Sup. Ct. 788, 35 L. Ed. 489, it was held that, notwithstanding the same statute, the President, with the advice and consent of the Senate, could supersede an officer in the military or naval service by the appointment of some one in his place. The office under consideration in that case was commander in the United States navy. These authorities were followed in Quackenbush v. United States, 177 U. S. 20, 20 Sup. Ct. 536, 44 L. Ed. 654, and it is held with practical uniformity that it requires the plainest language in the statute or the Constitution to fix a life tenure of office.
We have in this country no orders of nobility, and life tenure is repugnant to the spirit of our institutions. It matters not whether the office is civil or military, and no construction should be given section 192 of the Constitution which will effect a life tenure in any office, if it can be avoided on any reasonable grounds. It is conceded that the Legislature may limit the term of the office of Adjutant General, but would not the Legislature, in doing so, be providing for the removal of any incumbent quite as effectively as I contend can now be done by the Governor, who in this state is the sole appointing power? If section 192 is intended to be universal in its application, it must apply with as great force to the Legislature, which has no part of the appointing power incident to this office, as it does to the- Governor. Is it not much more reasonable to assume that the section referred to was intended to prohibit only the removal of such officers by any power outside the appointing power, namely, by the Legislature or by the courts, than to contend that by the terms of the Constitution a departure was intended, and that a very radical one, from the whole tenor of our system of government and the spirit of republican institutions ?
The Supreme Court of the United States has passed upon many analogous questions. In Shurtleff v. United States, 189 U. S. 311 23 Sup. Ct. 53d, 47 L. Ed. 828, it made some observations pertinent to this subject. A federal statute provided for the appointment by the President, by and with the advice and consent of the Senate, of general appraisers of merchandise, and that they could be removed from office fpr certain causes. President McKinley removed one of the appraisers without assigning any cause, and without notice, as required by the statute. In holding that the President had this power of removal, the Supreme Court said: “It cannot *111be doubted that, in the absence of constitutional or statutory provision, the President can, by virtue of his general power of appointment, remove an officer, even though appointed by and with the advice and consent of the Senate.” Ex parte Hennen, 13 Pet. 230, 10 L. Ed. 138; Parsons v. United States, 167 U. S. 324, 17 Sup. Ct. 880, 42 L. Ed. 185, and cases cited. To take away this power of removal, in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be taken away by mere inference or implication. Congress had regarded the office as of sufficient importance to make it proper to fill it by an appointment to be made by the President and confirmed by the Senate. It has therefore classed it as appropriately coming under the direct supervision of the President, and to be administered by officers appointed by him (and confirmed by the Senate), with reference to his constitutional responsibility to see that the laws are faithfully executed. Artcle 2, § 3.
In Blake v. United States, 103 U. S. 227, 26 L. Ed. 462, there were two constructions that might have been placed upon the act there under consideration, determining the tenure by which army and naval officers hold their commissions in time of peace, and the construction was placed on the fifth section of the act of July 13, 1866, c. 176 (14 Stat. 92) which left with the President his power to remove an officer of the army or navy by the appointment of his successor, by and with the advice and consent of the senate. Although this question was regarded as not free from difficulty, it was held that there was. no intention on the part of Congress to deny or restrict the power of the President, with the consent of the Senate, to displace army and naval officers in time of peace by the appointment of others in their places. This indicates the tendency of the court to require explicit language to that effect before holding the power of the President to have been taken away by an act of Congress. The right to remove would exist if the statute had not contained a word on the subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by Constitution or statute. It requires plain language to take it away. Did Congress, by the use of language providing for removal for certain causes, thereby .provide that the right could only be exercised in the specified causes? If so, see what a difference in the *112tenure of office is effected as to this office from that existing generally in this country. The tenure of the judicial officers of the United States is provided for by the Constitution; but with that exception, no civil officer has ever held office by a life tenure since the foundation of the government. Even judges of the territorial courts may be removed by the President. McAllister v. United States, 141 U. S. 174, 11 Sup. Ct. 949, 35 L. Ed. 693. To construe the statute as contended for by the appellant is to give an appraiser of merchandise the right to hold that office during life, or until he can be found guilty of some act specified in the statute. If this be true, a complete revolution in the tenure of office is effected, by implication, with regard to this particular office. -We think it quite inadmissible' to attribute an intention on the part of Congress to make such an extraordinary change in, the usual rule governing the tenure of office, and one which is to be applied to this particular office only, without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences.
Fed. St. § 796, reads as follows: “District attorneys shall be appointed for the term of four years, and their commissions shall cease and expire at the expiration of four years from their respective dates, and every district attorney entering upon his office shall be sworn to the faithful execution thereof.” In May, 1893, President Cleveland issued an order removing from office the attorney of the United States for the Northern and Middle Districts of Alabama, who had then served less than four years. That officer refused to surrender that office or the records thereof, or to recognize the power of the President to remove during the term of four years; and in Parsons v. United States, 167 U. S. 324, 17 Sup. Ct. 880, 42 L. Ed. 185, the Supreme Court, through Mr. Justice Peckham, passed upon the power of the President to remove, in the face of such statute and without assigning any cause, a district attorney from office before he had served four years, and held that he possessed such power.
The Militia Code makes the Adjutant General a member of the militia. I find no provision for the appointment of any military officer outside of the militia, hence I cannot agree with the very ingenious opinion of my Brother Fisk, but I can see that there are many reasons of great force why the Adjutant General should not have a life tenure which do not apply with equal weight to many other officers of the National Guard, and why the Governor should *113have the power to remove him or to supersede him at pleasure. The duties of the Adjutant General are peculiar, and he in a sense bears a confidential relation to the Commander in Chief. It is through him that all orders are promulgated relating to the military service. He is presumed to be familiar with military law, usages, and regulations. Of necessity, the Governor must rely largely upon him for advice and support in the performance of his duty as Commander in Chief. 'It is essential that the incumbent be one who is willing to, and who does, act in harmony with the policies of his superior. Great confusion and disorganization would necessarily follow a lack of harmony between the two. With the power of appointment at all times in the hands of the executive, he is assured of the service of an officer upon whom he can rely. Without such power there is no such safeguard. The Commander in Chief may adopt policies not in conformity with the judgment of the Adjutant General. The latter may evade or disobey the requirements of his superior. He may do so in a manner which does not render him subject to court-martial, yet his acts, or his failure to act, may be wholly subversive of discipline in the service, and the Governor, on the theory of the relator, have no remedy and be compelled to submit to the dictates of a subordinate. The Legislature has recognized this situation by providing that the Governor shall have full power to appoint the Adjutant General. It is clear that it was meant by this that it should be unnecessary for the Senate to confirm the appointment, and that he can make the appointment whenever, in his judgment, the necessity or the good of the service requires it; and the power to make the appointment, as before indicated, carries with it, and cannot be fully exercised without, the power to supercede the incumbent. In addition to the authorities above indicated, some of which touch upon this point, see Keenan v. Perry, 24 Tex. 253; Throop on Public Officers, § 304; Mechem on Public Officers, § 445; Lewis et al. v. Lewelling, 53 Kan. 201, 36 Pac. 351, 23 L. R. A. 510.
These reasons seem to me sufficient to warrant this court ip denying the writ without reference to the sufficiency of the title of the chapter cited. But in addition to these, I find another that seems worthy of consideration. If, as conceded by relator, it is competent for the Legislature to fix the term of office, and by so doing remove an incumbent, it must certainly be competent for the Governor to do so; he being the appointing power, rather than the *114Legislature. Either of these contentions may be sustained by considering section 192 as though reading: “No commissioned officer shall be removed from office during his term except by sentence of court-martial pursuant to law.” I am persuaded that, in the light of circumstances, usage, and all the other considerations referred to, it may bear such construction, and that, the Legislature not having fixed a definite term to the office, the incumbent holds at the pleasure of the appointing power. This construction, in the absence of legislative provision, in effect gives the Governor the power to fix the tenure of the office quite as fully and effectively as the Legislature may by an act providing a definite term. It also gives the effect to section 192 which may have been intended by its framers, namely, that if the Legislature does fix a term, and, in the absence of any act of the Governor superseding him when no term has been fixed by the Legislature, he may be removed from office in no other manner than by sentence of court-martial. In my judgment this -latter construction is more consonant with the spirit of our institutions, with history, the usage of the service, the necessities which may often arrive, and with -other considerations which apply more especially to this office than any other, and at the same time harmonizes with the construction of the federal statute given it by the federal authorities. Neither does it work any hardship to the officer, and promotes the efficiency of the service, and enables the 'Commander in Chief to maintain a staff in harmony with the policy of his administration of the military department.