concurring:
The importance of the questions discussed and to be decided in this case, necessarily devolves on me the duty of expressing my opinion on the most leading points developed by the application. Entertaining some views not entirely in accordance with the opinion on which the judgment of the Court may be predicated, I propose to state briefly the grounds on which they are founded.
Many and different opinions have been entertained, as to the power of the Circuit Courts, and the judges, to appoint the clerks of those Courts; some supposing it a power which the Court alone could exercise, and others viewing it, also, as a personal power, attaching to the officer, as distinct from the Court.
The 6th section of the 4th article of the Constitution, which gives the power of appointment, is couched in a phraseology very peculiar, and if it be interpreted literally, would seem to admit of no doubt that the power attached, as well to the person of the officer, as to the Court itself. This section is as follows: “The Supreme Court or a majority of the justices thereof, the Circuit Courts, or the justices thereof, shall respectively appoint their own clerks.” It is manifest from this language, that in asserting under it the personal right of appointment, no violence would be done to the plain and literal signification of the language used; and I am free to confess that from a' casual examination of the section, I have been inclined so to consider it, and I believe I have not been singular in such opinion. The same opinion has been entertained, I am informed, by many highly intelligent legal men, and if I am not greatly misinformed, it has been practised on, and appointments are understood to have been made under such a view of the power, considering it both warranted and proper; but more mature consideration, and the possible injurious consequences which might flow from such an interpretation, have induced me to conclude that the more sound construction is, that it is not a power attaching to the person of the officer, but that the power can alone be exercised by him, as the organ of the Court; and that when the power is once exercised, and the office filled by an appointment, whether in vacation or in term time, the incumbent cannot be displaced, except in the manner and for the causes provided by law. The office of clerk is created under and by virtue of this section of the Constitution; but it will be remarked, that while thus created, its duration is left undefined, and being so, unless its tenure be defined by law, it would, we should apprehend, be of indefinite duration, whether for life or good behaviour, might also admit of much doubt. That tenure has by the 23d section of the act of 1829,(1) regulating the Supreme and Circuit Courts, and various other acts of the legislature, been in some measure defined, and made to depend on various contingencies, and the performance of certain acts—such as renewing official bonds, keeping his office at the county seat— and has also provided for the manner of removal for acts of malfeasance. This was entirely within legislative competency, and its expediency, as well as necessity, cannot be doubted.
It will not be my purpose to enumerate with particularity the various phases which have taken place in the judicial history of the State, nor of the organization and re-organization of its courts, and the consequences which have, or may be supposed to have followed from the various acts of the legislature in reference thereto. When the Circuit Courts were first created under the Constitution, it is well understood that the judges of the Supreme Court were, as the Constitution provided, assigned by law the duty of holding Circuit Courts. That after the period limited in the Constitution, and when in December, 1824, the re-organization of the judiciary took place, they were withdrawn from that duty, and Circuit judges were created, by and in virtue of the powers contained in the 6th Article of the Constitution of the State, who were, when once created, declared by that Article, to hold their offices during good behaviour, and subject only to removal by impeachment or by address. The repealing of the law which created the Circuit Courts, of which the persons were judges, 1st January and February, 1827, however it maybe supposed to have destroyed the Courts previously created in 1824, under that provision of the 1st section of the 6th Article of the Constitution, which declares “ The judicial power of the State shall be vested in one Supreme Court and such inferior courts as the General Assembly shall from time to time ordain and establish,” could not, in my humble judgment, have in the least affected the tenure of the office of the judge. The shield of the Constitution was placed between him and the act of destruction, and if it failed to afford the protection guaranteed by its broad and comprehensive declaration of his right, it is doubtless because he neglected to seek the shelter it afforded. If it be conceded that all inferior courts called into being under this section of the Constitution, might at all times be again destroyed, and that the power again to create, necessarily implies an equal right to destroy, still it seems to me impossible to suppose that the officer, chosen under the Constitution, should be involved in the destruction.
It is not in my judgment necessary to the denial of the right of the judge to remove the relator from the office of clerk of the Circuit Court, that it should rest at all on the effect of the acts of 1827, repealing the act of 1824, under which the judges of the then Circuit Courts were chosen, and the clerks appointed; for while it is admitted that the Court created by the act of 1824, may have been destroyed and the office of clerk with it, still the Constitution preserved the official existence of the judge, and though his duties were taken away and transferred to others, his office still remained. The act then of re-organizing anew the Circuit Courts under the act of 1827, and re-assigning the Supreme Court judges to the duties of holding Circuit Courts, and their appointment of other clerks, or the re-appointment of the old ones, form no ground upon which the removal in the present case can be with propriety based.
The cases seem to me not by any means apposite. The dissimilarity of the provisions in the act of 1827, and the act of 1835, providing for a uniform mode of holding the Circuit Courts in this State, is, I think, most manifestly to be perceived, from a comparison of the language used in them. The act of 1827 professed, in open and undisguised terms, to abrogate the Circuit Courts created by the act of 1824, and the re-organization provided in the same act, referred to those Courts as having heretofore had an existence. The act of 1835 has not the most distant allusion to an abrogation of the Circuit Courts, but provides for the choice of other officers, who are to be assigned to the holding of Courts in existence, and such as should be thereafter required to be held, in the several counties of the State. It is in vain then to refer, in my opinion, to the acts of 1827, or the practice under them, in relation to the appointment of clerks, to sustain the removal of the relator in this case. The clerk could alone have been removed for some one of the causes named in the several laws already referred to, in the manner provided in the 23d section of the act of 1829.(1) It has been urged in the argument, that the 12th section of the act of the 13th Feb. 1835,(2) regulating the times of holding the Supreme and Circuit Courts, authorized the removal. I can see nothing in that section warranting such an inference, much less expressly providing therefor, or recognising the power. It is merely declaratory of the manner in which clerks appointed, or to be appointed, under the act establishing a uniform mode of holding Circuit Courts, should give bond. This was merely a provision in relation to appointments to vacancies, and Courts of counties newly organized. If it had intended to have conferred the power of removal, it would have spoken out in language not to be misunderstood.
Considering that the power of appointment under the Constition is committed to the judges of the Court, as the organs thereof, and is not a mere personal authority to be exercised by every new incumbent, and that the tenure of the office of clerk is limited and defined by law; that the causes for which the clerk shall be removed have been also defined, and the modes of proceeding prescribed; and that the regularity of the proceedings and records of the Courts, and the duties which appertain to the office will be greatly promoted by uniformity and stability of the tenure under which the incumbents hold their offices; I feel constrained from a sense of what I am convinced upon mature reflection upon the points made, is the just and rational interpretation of the Constitution and the laws relative thereto, to concur in the judgment of the Court in favor of the relator.
Judgment reversed.
Note. See The People v. Field, 2 Scam.
R. L. 152; Gale’s Stat. 172.
R. L. 153; Gale’s Stat. 172.
Acts of 1835, 171-2; Gale’s Stat. 188.