dissenting :
The record in this case exhibits the following facts. At the April term, 1839, of the Fayette Circuit Court, the Attorney General filed a motion, in the nature of a quo warranto, setting forth that the appellant, without legal grant, right, or warrant whatsoever, had for a long time, then past, unlawfully held and exercised the office of Secretary of State of Illinois ; and without any such authority still did 'unlawfully hold and exercise said office, and claim to be Secretary of State, and to keep the Seal of the said State.
To this information the appellant filed a plea, alleging that he was lawfully entitled to hold and exercise the office of Secretary of State, by virtue of an appointment from the Governor of the State of Illinois, by and with the advice and consent of the Senate of said State, on the 23d day of February, 1829 ; and that by virtue of said warrant of appointment he had held, and continued to hold, the office of Secretary, as he lawfully might do. To this plea the appellees replied, admitting that the said appellant was appointed Secretary of State, as alleged; but that Thomas Carlin, Governor of the said State of Illinois, by virtue of his authority as Governor, did, on the 5th day of April, 1839, remove the said appellant from the said office of Secretary of State, and did direct him to deliver up to the said John A. McClernand the said office, and all the records and papers appertaining to the same, together with the Seal of State ; and did by virtue of his authority as Governor, afterwards, on the said 5th day of April, 1839, appoint the said John A. McClernand Secretary of State of the State of Illinois, and authorized him to enter into said office, and to exercise the duties of the same, which appointment the said John A. McClernand accepted ; and the said McClernand requested the said appellant to deliver up to him the said office of Secretary of State, with the records and papers belonging to the same, and the Seal of State, which the appellant refused to do, but continued to hold the same office notwithstanding.
To this replication the appellant demurred, and the Circuit Court gave judgment for the appellee. It was, thereupon, agreed that an appeal from said judgment might bp prosecuted to the Supreme Court, without giving bond. The assignment of errors questions the decision of the Circuit Court on the demurrer, and it is now contended that the judgment was erroneous, because, —
1. The Governor had no power or authority to remove the appellant from the office of Secretary of State.
2. The appellant was not legally removed from, or the said McClernand legally appointed to, the said office of Secretary of State.
In approaching a question of magnitude, not only involving the interests of individuals, but grave and abiding considerations of the highest possible importance to the public weal, requiring a decision, on the exercise of a portion of the executive functions of the chief magistrate of this State, I might well express my regret, that what participation it has been my lot to have in it, had not been confided to abler hands. The delicacy of deciding on the acts of a coordinate and co-equal department of the government, in which it must be presumed that department, in its action, has been alone governed by a sense of duty and of right, may well be imagined ; and though it is true, that occasions, which have called for a review of those acts, in cases similar to the one under consideration, are scarcely known to the history of judicial proceedings in the United States, it will, nevertheless, be proper to consider the case upon its intrinsic merits, without reference to the effect it may have on the parties to the contest, or the opinions and acts of that department of the government, which are to be reexamined. The ability with which the principles involved were discussed and illustrated, by the counsel, who respectively advanced and combated the several positions assumed, doubtless exhausted the arguments on the points presented ; and had the case itself admitted of an abstinence from the political aspect and shades which were, peijbaps, in some measure necessarily given to and mingled in the discussion, I should, as a member of the Court, have felt it unnecessary to say, that I am utterly unconscious of their influence over the views which I feel it my duty to express. And while I conscientiously assert this, it is but just to admit the same exemption in favor of those from whom I am, by a sense of duty, compelled to differ.
I am not unaware of the excited state of public feeling in regard to the question submitted for our decision, and have therefore felt the importance of bestowing on it the most thorough and deliberate consideration, uninfluenced by any motive save the desire to arrive at such conclusions as strictly comport with the immutable principles of right and justice.
A correct decision of the questions presented, seems to me of necessity to involve a critical enquiry into the nature and structure of the government of the United States, and of this State, and the fundamental principles upon which they are confessedly founded. Practical expositions, and decisions under these forms, and the acquiescence of the people in them, it will be proper to resort to, as guides and beacons to conduct us to just results. Commentators on the forms of government adopted by the United States, and the several States, lay it down as undeniable, that to avoid the inconveniences necessarily resulting from the administration of a government, under traditionary forms, and the acts and proceedings of the government itself, of which, it would be apparent, imperfect remembrances would remain, constitutions in writing have been adopted ; and the form which the people of the United States have chosen to adopt, is that which, by its division of powers, and union of three simple forms, each being able to sustain itself in the exercise of its appropriate functions, shall, by its cooperation and harmony with the others, be rendered the most perfect; securing to the people the great object of all governments, life, liberty, and the pursuit of happiness.
This division has been effected by the relative distribution of the powers of the government amongst the several branches ; each representing a portion of its sovereignty, and being coordinate and co-equal in its respective departments. These powers are divided into legislative, executive, and judicial.
To the first is committed the power of making laws, or prescribing rules by which the community shall be governed ; to the second that of executing them; and to the third that of expounding them, and causing them to be applied and carried into operation against individuals.
These three powers of the government could not, with due regard to the safety and liberties of the people, be wholly united or improperly blended in the same department to any considerable extent; because, whether the same powers were given to one magistrate or to numerous ones, the danger to be apprehended to the security of public freedom would be the same.
In accordance with these general principles, and the fundamental one of taxation and representation, the Constitution of the United States and of the several States of the Union were framed and adopted. There have been, in some instances, partial exceptions to the exclusive adoption of the rule, which do not, however, impair the general principles.
If we then bear in mind the objects to be obtained by this form of government, and the checks and balances which have been so wisely adopted, and a permissive participation in some particular instances, to' a limited extent, in each other’s power, we find that a supposed violation of a cardinal principle has contributed to the means of its preservation.
Adopting then these brief and general views in relation to the form and structure of the general and State governments, in which all commentators on their conformation agree, and whose views and opinions are but reiterated here, I propose to enquire what has been the practice under the general government in relation to the exercise of the executive power of appointment to and removal from office. Although it will be remembered, that at the adoption of the Constitution of the United States, two great political parties came into existence, which divided the country for many years, as has been abundantly shown by dissensions in the halls of legislation and elsewhere, on the different opinions entertained in regard to its construction, as the principles of its interpretation applicable to it, it is believed that so far as the question in relation to appointments and removals from office by the President of the United States is concerned, the most prominent members of those divisions readily agreed in the opinion, that the President possessed the power.
Under the Constitution of the United States it is provided, that the President “ shall nominate, and, by and with the advice and consent of the Senate, 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 section of the United States Constitution received a contemporaneous exposition in 1789, by the first Congress which assembled under that Constitution. On a debate which arose in that Congress in relation to the organization of the departments of State, War, and Treasury, a provision was inserted in a bill for the appointment of a subordinate officer, who should have charge and custody of the archives of the office when the heads of the department should be removed from the office by the President of the United States. The question of the power of the President to remove was debated at large, and settled, after an animated contest, by the passage of the bill in favor of the existence of the power in the President. It was on that occasion strenuously contended, that the President, conjointly with the Senate, only possessed the power of removal; but this was not only expressly denied in argument, but decided to the contrary by the adoption of the proviso in the hill.
The argument of those who contended for this conjoint action, necessarily admitted the power of removal to be incident to the power of appointment, and merely disputed who should exercise it. They contended, that the power being vested in the Senate, to advise and consent to the appointment, the same power, in connexion with the President, should be exerted in the removal. Thus admitting that the office was held subject to removal, but differing as to the possession of the right. Mr. Madison on that occasion remarked :
" But let us not consider the question on our side only ; there are dangers to be contemplated on the other. Vest the power in the Senate jointly with the President, and you abolish at once the great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. If the President should possess alone the power of removal from office, those who are employed in the execution of the law, will be in their proper situation, and the chain of dependence be preserved ; the lowest office, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community. The chain of dependence, therefore, terminates in the supreme body ; namely, in the people ; who will possess, besides, in aid of their original power, the decisive engine of impeachment. Take the other supposition, that the power should be vested in the Senate, on the principle, that the power to displace is necessarily connected with the power to appoint. It is declared by the Constitution, that we may, by law, trust the appointment of inferior officers in the heads of departments, the power of removal being incidental, as stated by some gentlemen.
“ Where does this terminate ? If you begin with the subordinate officers, they are dependent on their superior, he on the next superior, and he on whom ? on the Senate, a permanent body, by its peculiar mode of selection, in reality existing forever ; a body possessing that proportion of aristocratic power, which the Constitution, no doubt, thought wise to be established in the system, but which some have strongly excepted against; and let me ask gentlemen, is there equal security in this case as in the other ? Shall we trust the Senate, responsible to individual legislatures, rather than the person who is responsible to the whole community ? It is true, the Senate do not hold their offices for life, like aristocracies recorded in the historic page ; yet the fact is, they will not possess that responsibility for the exercise of executive powers, which would render it safe for us to vest such powers in them. What an aspect will this give to the executive ? Instead of keeping the departments of government distinct, you will make an executive out of one branch of the legislature. You make the executive a two-headed monster, to use the expression of the gentleman from New Hampshire (Mr. Livermore) ; you destroy the great principle of responsibility, and perhaps have the creature divided in its will, defeating the very purposes for which an unit in the executive was instituted.
“ These objections do not lie against such an arrangement as the bill establishes. I conceive, that the President is sufficiently accountable to the community ; and if this power is vested in him, it will be vested where.its nature requires it should be vested ; if any thing in its nature is executive, it must be that power which is employed in superintending and seeing that the laws are faithfully executed. The laws cannot be executed but by officers appointed for that purpose, therefore, those who are over such officers naturally possess the executive power. If any other doctrine be admitted, what is the consequence ? You may set the Senate at the head of the executive department; or you may require that the officers hold their places during the pleasure of this branch of the legislature, if you cannot go so far as to say, we shall appoint them; and by this means you link together two branches of the government, which the preservation of liberty requires to be constantly separated.”
Need further argument be adduced against the adoption of a construction at war with .the fundamental principles upon which we have seen the government is constructed, and the separation of the several divisions of powers, so distinctly marked out in the Constitution. No permissive assent has been yielded to'the Senate, to exercise the power of removal with or without the assent of the executive ; and if it were conceded to exist, with his assent, it would be perfectly dormant, and never could be called into being or exerted except at the pleasure of the executive ; for if he made no nomination to the Senate, it never could be exercised. It seems to me impossible to adopt such a construction without a direct violation of the Constitution itself.
But we have, in addition to contemporaneous legislative exposition, a judicial construction of this executive power under this section of the Constitution, by the supreme tribunal of the nation, many years since, in an opinion delivered by one of the ablest and most eminent jurists in this country, whose decisions have shed a lustre over the pages of legal learning, and which will bear a comparison with those of any other nation.
In the case of Marbury v. Madison, (Mr. Madison being then Secretary of State of the United States,) which was an application for a mandamus to compel the delivery of a commission to a person appointed a justice of the peace, by and with the advice and consent of the Senate, under the Constitution and laws of the United States, Chief Justice Marshall, on that occasion, declared “ that the Constitution and laws of the United States seemed to contemplate three distinct operations. 1. The nomination : This is the sole act of the President, and is completely voluntary. 2. The appointment: This is also the sole act of the President, and is a voluntary act, though it can only be performed by and with the advice and consent of the Senate. 3. The commission.” He further made the emphatic declaration, as the opinion of the Court, “ that the appointment being the sole act of the President, must be completely evidenced, when it is shown that he has done every thing to be performed by him.” This decision sustains the construction given by Congress, that the President possessing the sole appointing power, the power of removal from office is an inseparable incident to it; and being possessed by the President alone, no other department of the government could be joined in the exercise of a power possessed by one alone, unless the power had been expressly delegated to the other.
In addition to this authority, all writers on the .forms and structure of the government of the United States agree, that “ the President is the efficient power in the appointment of the officers of the government,” and “ that the power of appointing the person nominated are political powers, to be exercised by the President at his discretion.” Such are the acknowledged opinions of Kent, Story, Rawle, Duer, and Bayard. They further agree, and such has been the settled and undisturbed rule ever since the formation of the government, up to the present time, that as “ the Constitution mentions no power of removal by the executive department, of any of the officers of the United States, and as the tenure of office of none except those in the judicial department is declared to be during good behavior, it follows, that all others must hold their offices during the pleasure of the President, unless in cases where Congress has provided some other duration of office. That so far as Congress constitutionally possesses the power to regulate and delegate the appointment of inferior officers, so far it may prescribe the term of office, and the manner in which, and the persons by whom, the removal, as well as the appointment, shall be made.” It is further agreed, that in the absence of all legislation upon the subject, it is settled, that the power of removal is impliedly vested in the President, without any control or cooperation on the part of the Senate ; and in regard to appointments confided to him by the Constitution, it seems to be also settled, that Congress can give no duration of office which is not subject to the President’s power of removal, as all its legislation hitherto, in such cases, recognises the executive power of removal.
If, however, a possible doubt could have remained, it must have been dissipated by a recent decision of the Supreme Court of the United States, in which the power of removal from office was directly presented to the Court for its determination ; and in which the Court refer to the contemporaneous expositions given to the section of the Constitution of the United States, by Congress, on the power of removal from office by the President of the United States. The question is so analogous, in my mind, to the one before us, and the decision so clear and conclusive, that I shall extract from the opinion of the Court, delivered by Justice Thompson, such portions of it as will tend to elucidate more clearly the point under consideration.
In the case of Duncan N. Hennen argued and decided at the January term of that Court, 1839,(1) Mr. Justice Thompson said:
“ The Constitution is silent with respect to the power of removal from office where the tenure is not fixed. It provides that the judges of the Supreme and inferior Courts, shall hold their offices during good behavior ; but no tenure is fixed for the office of clerks. Congress has, by law, limited the term of certain offices to four years, 3 Story 1790, but expressly providing that the officers shall within that time be removable at pleasure, which of course is without requiring any cause for such removal. The clerks of Courts are not included within this law, and there is no express limitation in the Constitution or laws of Congress, upon the tenure of office.
“ All offices the tenure of which is not fixed by the Constitution, or limited by law, must be held either during good behavior, 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.
“ It cannot be for a moment admitted, that it was the intention of the Constitution, that those offices, which are denominated inferior offices, should be held during life ; and if removable, by whom is such removal to be made ? In the absence of all constitutional provision, or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained, in the early history of this government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate ; and the great question was, whether the removal was to be by the President alone, or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate, jointly, to remove when the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle, that the power of removal was incident to the power of appointment. But it was very early decided as the practical construction of the Constitution, that the power was vested in the President alone, and such would appear to have been the legislative construction of the Constitution ; for in the organization of the three great departments of State, War, and Treasury, in the year 1789, provision is made for the appointment of a subordinate officer by the head of the department, who should have the charge and custody of the records, books, and papers appertaining to the office, when the head of the department should be removed from the office by the President of the United States. 1 Story 5, 31, 47. When the Navy department was established in the year 1798, 1 Story 498, provision was made for the charge and custody of the books, records, and documents of the department in case of vacancy in the office of Secretary, by removal or otherwise. It is not here said by removal by the President, as is done with respect to the heads of the other departments, and yet there can be no doubt, that he holds his office by the same tenure as the other Secretaries, and is removable by the President. The change of phraseology arose probably from its having become the settled and well understood construction of the Constitution, that the power of removal was vested in the President aloné in such cases, although the appointment of the office was by the President and Senate.
“ In all these departments, power is given to the Secretary to appoint all necessary clerks, 1 Story 48 ; and although no power to remove is expressly given, yet there can be no doubt, that these clerks hold their office at the will and discretion of the head of the department. It would be a most extraordinary construction of the law, that all these offices were to be held during life, which must inevitably follow, unless the incumbent was removable at the discretion of the head of the department; the President has certainly no power to remove. These clerks fall under that class of inferior officers, the appointment of which the Constitution authorizes Congress to vest in the head of the department. The same rule, as to the power of removal, must be applied to offices where the appointment is vested in the President alone. • The nature of the power, and the control over the officer appointed, does not at all depend upon the source from which it emanates. The execution of the power depends upon the authority of law, and not upon the agent who is to administer it, and the Constitutio'n has authorized Congress, in certaih cases, to vest this power in the President alone, in the courts of law, or in the heads of departments ; and all inferior officers appointed under each, by authority of law, must hold their office at the discretion of the appointing power. Such is the settled usage and practical construction of the Constitution and laws, under which these offices are held. The tenure of ancient commón law'offices, and the rulés and principles by which they are governed, have no application in this case. The tenure in those cases depends in a great measure upon ancient usage. But, with us, there is no ancient usage, which can apply to and govern the tenure of offices created by our Constitution and laws.
“ They are of recent origin, and must depend entirely upon a just construction of our Constitution and laws.”
Surely, then, this decision is conclusive as to the settled doctrine under the Constitution and laws of the United States ; sanctified by a practice of half a century, and under every and each succeeding administration of different political tenets; and now most solemnly declared to be the supreme law of the land, and binding on the people as such, so far as the Constitution and laws of Congress are applicable.
For the purpose, then, of testing the applicability of these long and well settled numerous and conclusive legislative, individual, and judicial expositions and determinations under the Constitution of the United States, to that of our State Government, it will not be improper to institute a comparison of many portions of each ; because, if it shall be found from a careful examination of various parts of the two instruments, that the powers delegated to the executive are not only similar, but identical with each other ; and, that in other important and prominent portions they clearly agree ; as the State Constitution was adopted in the year 1818, thirty-one years after that of the United States, it is a fair legal inference, that by that adoption, it was intended to adopt the construction given to that from which it was taken, and to which it is in so many essential parts entirely analogous. The more especially so, where the construction of the Constitution has been uniform, and had prevailed for thirty-one years after its creation, and has not been altered or revoked since. This rule, so well settled in the adoption of laws from other States, will, it is supposed, have great influence on the question under consideration.
I have, therefore, selected some of the most prominent portions of the two Constitutions, for the purpose of comparison and inference, to test their similitude, in parallel columns, and have added that also in relation to the appointment of Secretary of State.
STATE CONSTITUTION.
The executive power of the State shall be vested in a Governor.
The legislative authority of this State shall be vested in a Gefieral Assembly.
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.
The Governor shall nominate, and, by and with the advice and consent of the Senate, appoint, all officers whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for : Provided, that inspectors, collectors, &c., and such inferior officers, whose jurisdiction may be confined within the limits of a county, shall be appointed in such manner as the General Assembly shall prescribe.
He [the Governor] shall from time to time give the General Assembly information of the state of the government, and recommend to their consideration such measures as he shall deem expedient.
He may require information in writing from the officers in the executive department, upon any subject relating to the duties of their respective offices, and shall take care that the laws be faithfully executed.
He shall have power to grant reprieves and pardons, after conviction, except in cases of impeachment.
He shall be commander-in-chief of the army and navy of this State, and of the militia, except when they shall be called into the service of the United States
No ex post facto law, nor law impairing the validity of contracts, shall be made, and no conviction shall work corruption of blood or forfeiture of estate.
The people shall be secure in their persons, houses, papers, and possessions, from unreasonable searches and seizures; and, thatgeneral warrants, whereby an officer may be commanded to search suspected places, without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described, and supported by evidence, are dangerous to liberty, and ought not to be granted.
UNITED STATES CONSTITUTION.
The executive power shall be vested in a President of the United States.
All legislative powers herein granted shall be vested in a Congress of the United States.
The judicial power of the United States shall be vested in one Supreme Court, and such inferior Courts as the Congress may from time to time ordain and establish.
The President shall nominate, and, by and with the advice and consent of the Senate, appoint, ambassadors, &c., and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they think proper, in the President alone, the courts of law, or in the heads of departments.
He [the President] shall from time to 'time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.
He may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. He shall take care, that the laws be faithfully executed.
He shall have power to grant reprieves and pardons for aft offences against the United States, except in cases of impeachment.
The President-shaft be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States.
No State shall pass any bill of attainder, ex post facto law, or law impairing the validity of contracts.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shaft issue but on probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This parallel might be carried much further, particularly in the comparison between the 9.th, 10th, 13th, and 14th sections of the 8th article of the State Constitution, and the 5th, 6th, and 8th articles of the amendments to the United States Constitution, and the 2d, 3d, and 4th paragraphs of the 9th section of the first article of the original Constitution. Indeed, the affinity between the two instruments might be successively traced much further, did not the prolixity admonish a forbearance.
It only remains to add the 20th section of the 3d article of the State Constitution to complete the means of comparison.
3d article, section 20. “ The Governor shall nominate, and, by and with the advice and consent of the Senate, appoint a Secretary of State, who shall keep a fair register of the official acts of the Governor, and, when required, shall lay the same, and all papers, minutes, and vouchers, relative thereto, before either branch of the General Assembly, and shall perform such other duties as shall be assigned him by law.”
The comparison now made, it seems to me, is striking, and carries conviction to my mind, that the Convention of the State took the Constitution of the United States as the great model, from which it drew largely in the formation of the State Constitution ; and whose features it intended to directly imitate, so far as they would be apposite for the State*government. This would, in my judgment, be the clear inference from the facts, as they appear, and is, I consider, undeniable. Are not the powers identical, as to the sphere in which they are to be exercised ; and the language used to express them almost literally the same, in that which relates to the executive powers and duties ? And does not that which authorizes and requires the executive to nominate and appoint a Secretary of State, expressly leave the tenure of the office undefined, and at the will of the executive ? As much so as the section of the Constitution of the United States, which gives the President the power to nominate and appoint officers for the general government. The distribution of the powers of the government is the same ; the power of appointment vested in the executive is the same ; each being equally silent as to the tenure of the office, or power of removal; and both requiring the laws to be faithfully executed, and each authorizing the requisition for information in writing from subordinates in the executive department.
It has been asked with emphasis, in the argument, to which department of the government does the Secretary belq has been replied by those who propounded the not to the executive ! Well, it is most certain henees riot belong to the judicial, nor yet to the legislative. To wbMVcki&s^.sjj^Jifi be arranged, if he is not an officer of the executi#^*'SaS' ycratsf who deny his position in the executive sphere, create a new one not known to the Constitution, or the form of tl\e If it were not treating the subject with levity, it mig&ibe said he is made a nondescript, or given an amphibious nature, By^SS^tTmg to him a position on neither land nor water, but a portion of both ; and that his functions and office, partaking of not precisely either of the qualities assigned to either of the three departments recognised by the Constitution, there is a new department unknown to the Constitution. It can, however, admit of no doubt that he is a subordinate in the executive department, and is under its direction and control. The Auditor of Public Accounts and State Treasurer are also a portion of the executive arm, though the Constitution has, by their mode of appointment, placed them beyond removal by the Governor. Their duties are, nevertheless, executive, and cannot be properly arranged to any other branch of the government. If this be true, why shall we refuse to adopt the construction which time, experience, and the dictates of wisdom show to have been properly approved by the national and judicial powers of the country, and acquiesced in by the people ? Surely there ought to be strong, overpowering, and irresistible reasons for a refusal to adopt an exposition thus given, and so settled.
It has been argued that the Secretary is a constitutional officer, and entirely independent of the Governor, whose official acts he is required by the Constitution to register. If by the term constitutional be meant that he is appointed under a power expressed in the Constitution, I see no objection to the phrase ; but if it be intended thereby to imply that he is ¿hove the Governor, or independent of him, or, as has been seriously urged by one of the counsel, is “ a sentinel, or spy,” over the Governor, and, therefore, independent of him, I am free to say, that I can never subscribe to such a position. I perceive nothing in the Constitution to justify such an opinion, much less to ascribe to its authors an intention to place him in a position which I should suppose, of all others, to be the most unenviable and unnatural. The existence of the government, and its perpetuation, required, in my judgment, a resort to no such discreditable aids; and the harmony of its action would, in my conception, have been greatly disturbed by a recourse to such an object or instrument.
That it was the intention of the authors of the Constitution to place the Secretary in a position of accountability to him, whose official acts he is required to truly register, so far as that duty is to be performed, I cannot doubt; and being a portion of the executive arm, as I have said, that the doctrine of supervision and amenability may be most justly applied to the incumbent, seems to me equally clear, necessary, and proper.
Shall it be said that he, whom the Constitution has made, in express terms, an agent to record the official acts of the Governor, in order to their perpetuation and preservation, shall be beyond the control of him who is authorized to demand a performance of the service; and that the agent is greater than the principal who requires the performance of the duty ? That he may resist, and is alone amenable by the slow process of impeachment ?
Can it be rightfully contended that this is the true and undeniable intention of the framers of the Constitution ? Is there any thing in the language which prescribes his duty, that will warrant such an inference ? Does not the language, on the other hand, by requiring him to register the official acts of the Governor, imply subordination to, and supervision by the Governor in the performance of those duties ? I confess I cannot understand it otherwise ; nor is it to be inferentially deduced therefrom, that he is beyond executive control. I can well imagine a case, which might arise, of official intercourse between the executive and a Secretary, which it seems to me will not only show the fallacy of the assumed position of non-accountability to the executive, and a denial of his supervisory powers, but is, in my judgment, unanswerable.
The case put is for the sake of illustration, without intending the least reflection on the incumbent. Suppose in time of war, an adjacent State is invaded by the common enemy, of which the Governor is advised by a confidential express, and of the secret intentions of the enemy. That with a view to counteract and defeat that object, it becomes necessary to assemble troops at a particular point, and for that purpose, secret and confidential despatches are sent. These despatches being an official act of the Governor, are required by law to be registered; and the Governor having delivered them to the Secretary for such purpose, with an injunction of secrecy for the time being, as a proper and indispensable precaution, the Secretary, from want of discretion, does not observe the directions of the Governor, by means of which, the enemy obtain a knowledge of the intentions of the executive, and defeat the measures he had in view for the preservation of the country. Will any one contend that a Secretary, thus circumstanced, is to be continued in office ; and that the country is to be exposed to the hazard of conquest, and devastation, by the indiscretions of one man, because he may be liable to impeachment for gross malconduct and wilful corruption ? He could not even be reached in the supposed case; for it is only an indiscretion without a bad motive, and involves no criminality. Yet the injury arising from it may be beyond remedy. It may be also said, this is a military act of the Governor. It is conceded, it is ex-officio so, but still it is executive, and a duty devolved on him by the Constitution. The case thus hypothetically put, is not to be met by an assertion, that it is not only improbable, but impossible. It is not only possible, but might readily happen with a weak mind, and one void of common circumspection ; and because cases of much greater indiscretion have actually transpired. This illustration, then, shows the extent of the tendency of the arguments of those, who contend that the Secretary is not responsible to, but wholly independent of, the Governor.
In the further examination of the case, it may be well to recur to the decisions of other States, on the power of removal of officers, whose term of service is undefined, and fall within those decided to be within the executive discretion. By the Constitution of the State of Pennsylvania, of 1790, it is provided, “that the Governor shall appoint all officers whose office is established by the Constitution, or shall be established by law, and whose appointments are not otherwise provided for.”
In the case of Leghman v. Sutherland, (1) the question being on the construction of the Constitution and laws of Pennsylvania, the Supreme Court of that State said, “ The Constitution is silent as to the removal of officers, yet it has been generally supposed, that the power of removal vested with the Governor, except in those cases where the tenure was during good behavior.” In the case of the Commonwealth, ex relatione Reynolds, v. Bussier, (2) in the same Court, Chief Justice Tilghman said, “ Every argument in favor of the President’s power of removal applies a fortiori to the Governor of Pennsylvania, because he appoints without the control of the Senate ; and in him is also vested the supreme executive power. There is no other power at whose pleasure the officer can hold, and therefore he must either be removable at the pleasure of the Governor, or hold during good behavior, a tenure extremely injurious to the country, and contrary to all our habits, customs, and manner of thinking.
" Our ancestors brought no such law with them from the country from which they emigrated ; nor did they see cause for adopting it afterwards ; for never was it supposed in Pennsylvania, either before or since the Revolution, that it was proper for ministerial officers to hold by any stronger tenure than the pleasure of the persons from whom they received their appointment, except in special cases, where by law it was provided otherwise. This long-continued custom is powerful evidence of the law, particularly in the United States, where every freeman stands on the same proud footing, where offices are sought with avidity, and where there is neither inclination to submit to executive oppression, nor danger in resisting it.”
In these cases, the principle that the power of removal was incident to the power of appointment, in the absence of constitutional or legislative provision on the subject, is manifestly recognised. Whether the Senate has an advisory power or not, can, then, make no difference. The principle, it is seen, is the same. For under the power of the President to appoint, the advisory power of the Senate exists ; and in the Pennsylvania cases it does not, the Governor possessing the sole power; yet the right of removal has been adjudged to both the President and the Governor. The same Court has also decided, that this power of removal, as incident to that of appointment, has not been held to exist beyond the executive department; and does not extend to officers concerned in the administration of justice.(1) This decision will be adverted to more at large, when another portion of the case shall be considered. Parsons, Chief Justice of the Supreme Court of Massachusetts, in the case of Avery v. The Inhabitants of Tryingham, laid it down “as a general rule, that an office is holden at the will of either party, unless a different tenure be expressed in the appointment, or is implied by the nature of the office, or results from ancient usage.” Under this exposition of the rule, it is to be presumed that the Secretary would have the right to resign the office, and it cannot be denied. It follows, then, as a corollary, that the Governor has an equal right to terminate the term of his service by removal.
This would be but an equality of right between the appointing power and the appointee. It has also been adjudged by the courts of Pennsylvania, “ that a removal from office may be either express, that is, by notification, by order of the government, that an officer is removed, or implied, by the appointment of another person to the same office.” (1)
I now proceed to make the enquiry, What has been the practice under our State government, in regard to cases, which are supposed to be analogous, if not identical, with the present; and what have been the various expositions given to the executive power, as exercised by the legislature ?
It will be perceived, that one portion of the fundamental principles, adopted in the formation of the Constitution of the United States, and expressly declared in our own, has, nevertheless, in the formation of our own, been departed from, and a portion of the executive power delegated to the legislature, notwithstanding the declaration, that the executive power shall be vested in a Governor, in the first article, which concerns the distribution of the powers of the government; and so far has the simplicity and symmetry of the system been trenched on. In the first article, it is declared, “ that the powers of the government of the State of Illinois shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit, those which are legislative to one, those which are executive to another, and those which are judiciary to another,” and that “ no person or collection of persons, being one of those departments, shall exercise any power properly belonging to either of the others, except as is hereinafter expressly directed or permitted.”
This discretion and permission to exercise a portion of the executive power, if it be conceded that appointment to office is an executive function, as distinctly asserted by Mr. Jefferson, in his letter to Mr. Kercheval of Virginia, is contained in the 4th section of the 6th article of the Constitution of the State, and is as follows :
“ The justices of the Supreme Court, and the judges of the inferior courts, shall be appointed by ballot of both branches of the General Assembly.” The tenure of their office is during good behavior.
In the year 1825, the legislature created the office of circuit judges to the number of five, and elected five persons to fill these offices. In 1827, the legislature repealed the law creating the courts of which these incumbents were judges ; and it was said to be determined thereby, that this repeal virtually abrogated the office, notwithstanding the declaration contained in the first section of the sixth article of the Constitution, “ that the judicial power shall be vested in one Supreme Court, and such inferior courts as the General Assembly shall from time to time ordain and establish.” The tenure of the office was during good behavior, beyond all question. I could never view the construction right, which was said to abrogate the office, though it was placed on the ground of precedent, and extemporaneous exposition of a similar case, which occurred at the close of the official term of the elder Adams’ Presidency, and the next session of Congress thereafter.
I have since that time had occasion to express the opinion, in a case in this Court, that “ I considered the shield of the Constitution was placed between the officer and the act of destruction ; and if it failed to afford the protection guarantied by its broad and comprehensive declaration of his right, it doubtless was because he neglected to seek the shelter it afforded.” (1) I could not then, nor do I now, conceive, that the officer chosen in such a case, under the Constitution, could be involved in the act of destruction. The destruction of the court could not destroy the office brought into being under the Constitution. They are necessarily separate and distinct. The power to create could not mean an equal power to destroy. The tenure of the office limited the power over the officer. The case is, however, now only alluded to for the purpose of showing, that here was the exercise of an executive function ; and the removal of the five judges by the legislative department, was conceded to be the exercise of a power incidental to, and growing out of, the power of appointment. It will not do to say they were removed by a legislative act, which merely repealed the courts and the duties of the office. That removal could alone have been done by an impeachment, or by an address, as provided by the Constitution.
If they were not removed by virtue of an executive function, exercised by the General Assembly, then they have never been removed at all, unless by death.
Instances of a similar character have occurred in the frequent changes, which the legislative department has made in the office and laws relative to judges of probate ; and the exercise of their powers, in that respect, have been precisely parallel.
I shall now notice other cases, which I consider of similar aspect and import. They are conceived to be expositions, which entitle them to much consideration.
It appears from thé legislative journals of this State, that an act passed the legislature, in 1827, which, it will be perceived, was the same session when the circuit courts were abrogated ; and a similar act, in 1835, providing for the election of State’s attorneys by the General Assembly, thereby removing, in effect, as was supposed, those attorneys who had been previously nominated and appointed by the Governor, by and with the advice and consent of the Senate. These acts the Council of Revision returned to the legislature, with their objections, as unconstitutional. These objections are contained in the extract herewith made.
1st. “ The Council conceived, that the first section of the bill, which requires, ‘ that there shall be elected by the General Assembly, on joint vote, at the present session, and every two years thereafter, one State’s attorney for each judicial circuit, now or hereafter to be created in this State,’ was a violation of the Constitution of this State. A bill, containing similar provisions, was presented to the Council of Revision on the 17th day of February, 1827, which was returned by the Council with their objections ; and as the Council believe, that the objections then made to the passage of that bill have lost none of their force by time, they respectfully recommend them to the consideration of the General Assembly, as applying to the first section of the bill under revision. The objections were as follows, to wit, 1st. Because, in their opinion, no evil has resulted to the people under the manner of appointing circuit or State’s attorneys, as the same has prevailed ever since the adoption of the Constitution of this State. The Senate are considered, by the Council, as a sufficient check upon improper nominations by the executive. 2d. Because they believe the appointment of the officers mentioned in the said third section is an executive function, and that it ought not to be exercised by the two houses of the General Assembly, unless the power is expressly given to them by the Constitution. The first article of that instrument is as follows :
“The powers of the government of the State of Illinois shall be divided into three distinct departments, and each of them confided to a separate body of magistracy, to wit: those which are legislative to one, those which are executive to another, and those which are judiciary to another. No person, or collection of persons, being one of these departments, shall exercise any powers, properly belonging to either of the others, except as hereinafter-wards expressly directed and permitted.’
“ The Council, after a careful perusal of the Constitution, have been unable to find any article or section, which expressly directs or permits the two houses of the General Assembly to make the appointments contemplated by this act. That nomination to office is exclusively an executive function, the Council beg leave to quote an extract of a letter from that great apostle of liberty, and the immortal author of the Declaration of Independence, the late Thomas Jefferson. The letter was written the 21st November, 1816, to S. Kercheval, Esq., of Virginia. The extract is as follows, to wit :
“ ‘ Nomination to office is an executive function : to give it to the legislature, as we do, is a violation of the principle of the separation of powers ; it swerves members from correctness, by temptation to intrigue for office for themselves, and to a corrupt barter for votes, and destroys responsibility by dividing it among a multitude. By leaving nomination in its proper place, among executive functions, the principle of the distribution of powers is preserved, and responsibility weighs with its heaviest force upon a single head.’
“ That upright, able, and popular chief magistrate, Governor Morris, in his valedictory address as the Governor of Ohio, raises his warning voice against confounding the different functions of the government, as had been too much practised in that State. It is his opinion, that, to keep the different departments of the government in a healthy action, it is necessary that each should carefully abstain from the performance of acts properly belonging to another.
“ 3d. The Council object to the third section of the bill, because they entertain strong doubts whether its passage will not be a direct violation of the 22d section of the 3d article of the Constitution. The section is as follows :
“ ‘ The Governor shall nominate, and, by and with- the advice and consent of the Senate, appoint all officers, whose offices are established by this Constitution, or shall be established by law, and whose appointments are not herein otherwise provided for : Provided, however, That inspectors, collectors, and their deputies, surveyors of highways, constables, jailers, and such inferior officers, whose jurisdiction shall be confined within the limits of a county, shall be appointed in such manner as the General Assembly may prescribe.’
“ State’s attorneys, then, are not officers whose jurisdictions are confined with the limits of a county, so as to bring them within the proviso of this section. Where there is no other provision in the Constitution than those above quoted, no one could, for a moment, entertain a doubt, that this bill would be a palpable violation of that instrument. The Council are, however, aware, that in the first section of the schedule, language is used, which, by a very broad and extended construction, might authorize the General Assembly to exercise the power of appointing, not only circuit or State’s attorneys, but every other officer (except they be elected) to be commissioned under the government; and thus, by one fell swoop, entirely to obliterate from that sacred instrument some of its most important and valuable features. The section is as follows :
“ An Auditor of Public Accounts, an Attorney General, and such other officers of the State as may be necessary, may be appointed by the General Assembly, whose duties may be regulated by law.’
“ It is a well settled and sound rule of construction, that the context should be regarded, as well in construing Constitutions as other instruments and laws ; and that every section ought to be so interpreted, as to permit every other article to stand and be operative. If, however, this broad construction is to prevail, that the legislature may appoint these officers, the first article, and the 22d section of the third article will, in a great degree, become a dead letter. The distinction between the legislative and executive functions, so far as regards appointments to office, will be abolished, and the Governor and Senate will be stripped of all the appointing power conferred on them by the Constitution.
“ The Council cannot accede to a construction of that instrument, which will obliterate such important portions of it. The Council greatly regret that a bill, out of which will grow such grave and important questions, should be presented to them on the last day of the session of the General Assembly ; but, as they have no desire to interfere with the constitutional exercise of any power, properly belonging to the legislative department, they have, in a very hasty and crude manner, thrown together their ideas on this interesting and highly important subject, and transmit them, without delay, to the legislature.”
“ When the above objections were presented to the House of Representatives, that body, by a vote of 25 to 8, and the Senate without division, concurred in the views of the Council.
“ 2d. The Council object to the bill, because the office of State’s attorney, is a local office, and five sixths of the legislature are not responsible to the people, whose interests are principally to be affected by the appointment. Hence it follows, that a majority of the legislature may impose an officer upon the circuit, although he may be obnoxious not only to all the members from that circuit, but also to the people residing within its bounds ; and yet that majority will not be responsible to the people, whose wishes and interests may be thus disregarded. This, it is conceived, is not consistent with the principles of a republican government, and ought never to be adopted as the basis of legislation, unless the Constitution expressly required it.
“ 3d. The bill violates a salutary principle of free government, by vesting in the same department the power of creating and filling the same office. This principle may lead to the creation of unnecessary offices, for the sake of filling them with favorites ; but, leave the appointment of officers to the executive and Senate, or to the people, and no such temptation will exist.”
The act of 1835, having repassed the legislature by a constitutional majority, notwithstanding the objections of the Council of Revision, the General Assembly proceeded to elect the officers named in the act; and, they having entered on their duties, necessarily superseded the persons who had been previously appointed to the office of circuit attorneys. The question is now propounded, by whom, and by virtue of the exercise of what power or function, were the former circuit attorneys removed from office ?
The Council say, distinctly, that the legislature are about to proceed to the exercise of an executive function, and to strip the executive of a portion of the executive attributes. It is conceded they did so ; and, by the exercise of the implied powers of appointment, virtually removed the former incumbents from office, the name of which was changed, but the duties remained the same.
The legislative department insisted on its power to do the act, and justified it under the provision referred to by the Council, contained in the schedule to the Constitution.
Here, then, was another instance of the exercise of executive functions by the legislature, and the implied power to remove from office, by virtue of a new appointment. It may be said, it was done in an indirect manner. If so, it was a still more extended exercise of the power, and an extension never before claimed.
Another instance, of a similar character, will be recited. By the 8th section of the Act for the Construction of the Illinois and Michigan Canal, approved 10th February, 1835, the Governor was required, by and with the advice and consent of the Senate, to appoint five practical and skilful persons, to constitute “ The Board of Commissioners of the Illinois and Michigan Canal.” And had there not been a special session of the legislature, the persons appointed would have held their offices for at least two consecutive years, or nearly so, even if the legislature had, at its regular biennial session, repealed the law under which they were appointed. The special session, however, having been held on the 9th of January, 1836, a law was passed and approved, repealing the act of the 10th of February, 1835, and declaring, in these words, ‘6 that any Canal Commissioner, heretofore appointed under any law of this State, be, and the same is hereby declared to be out of office, from and after the passage of this act, any law to the contrary notwithstanding.”(1)
Here, then, was another removal from office of five persons, whose term of service in office was undefined ; and not by the power that gave them their official existence, for they were appointed by the Governor, with the advice and consent of the Senate, but by a portion of one part of the power, and another an entire stranger to it, the House of Representatives never having had any participation in the act of appointment. It concurred in this act, with the Senate, on the broad declaration of removal. Was this declaration an executive or a legislative act ? Its form is legislative, while its effect is clearly executive, because it is a declaratory act of removal from office ; and, as such, should be considered in its nature executive.
In further illustration of the practical exposition, which the legislative department of the State government has placed on the power of removal, by the joint action of the two branches thereof, another case will be referred to. By the first section of An Act to amend An Act to regulate the Penitentiary,(2) approved 9th February, 1835, it is provided, “ That there shall be elected by joint vote of the two houses of the General Assembly, at its (then) session, and at every succeeding session thereafter, a warden of the penitentiary, who should be commissioned by the Governor, and continue in office for the term of two years, and until bis successor should be appointed and qualified.” Under this act, one Benjamin Enloe was elected to the office of warden, on the 10th day of February, 1837, duly commissioned and qualified to office, and, under this act, was entitled to hold it for the term of two years. He entered on the duties of the office, and continued therein until the 21st day of July, 1837, when, at a special session of the General Assembly, on the said 21st day of July, the office was abolished by an act of the General Assembly.(1)
Enloe, conceiving that he had a vested interest or estate in the office, for the whole term for which he had been elected by the General Assembly, demanded payment of his salary for the two years ; and, on being refused payment by the officers of State, obtained from this Court a rule against the Auditor, to show cause why a mandamus should not issue against him, to compel him to issue a warrant in favor of Enloe, on the State Treasurer, for the salary alleged to be due, beyond the day of removal.(2)
The case was argued at length, by able counsel, and the rule refused. This Court, on that occasion, decided, that the principle of an individual having an estate in an office in this country, was. not to be recognised. That whatever was the ancient common law doctrine, as to appointments to office, and the tenure by which they are held, under our Constitution and laws these rules could not apply, offices being created for the benefit of the people, and the public interest being the sole object of their creation, and not the advantage of the incumbent. That, while in England, an office, in many cases, was considered an incorporeal hereditament, as is the rule in the case of a right of way, and unless the statute which creates the office limits its tenure, it is an office for life, as at common law, no such rule could prevail in the United States ; that those rules and principles were exploded among us, at the adoption of our form of government, and were utterly incompatible with our free institutions, and would be, if adopted, subversive of the fundamental principles of the government. itself.
Such must have been, also, the opinion of the General Assembly, on the exercise of the power to remove the incumbent, in this case, who had been appointed to an office of high trust, and of profit to himself, by the mode of repealing the law, and transferring the duties of the office to another person.
They doubtless did not do the act without some great necessity for it, and with which the public interest was immediately connected ; and which, if not done, might be materially injured. The source of bis appointment having been from their action, they properly considered they possessed equally the power of removal, and I think justly so.
It may be said, however, in this case, as in others, that the act of repeal was a legislative act, and, therefore, was strictly not a removal from office.
To repudiate such an idea, it maybe emphatically asked, whether the election of the warden to office was not the exercise of an executive function P It, I conceive, most certainly was. As, however, his term of service had been defined, and limited to two years, and as he could not be removed before, but for cause, the short process of repeal was resorted to, by which the office was taken from the incumbent, being tantamount to a removal.
This last class of cases shows that the power of removal, by appointment of other persons to fill the station of their predecessors by the General Assembly, has ever been considered by it as an inherent power, by virtue of its general power to appoint to office, and as purely incidental thereto. It has been considered by it, as a continuing power always in vigor, and never expended. It cannot be justified in my conception, on any other ground.
No argument is to be drawn from the possible abuse of the exercise of the power by the executive, because he has been completely stripped of nearly all and every grade of patronage of appointment to office, having nothing left of the executive function in that particular, but the appointment of public administrators, notaries public, and some other unimportant minor officers, including the appointment in question, of which it is now contended he has also been shorn. Whether this has been wisely done, it is not for me to say, or determine. The responsibility, which should always rest on the appointing power, has been lost by its division among a numerous body, and the sense of accountability under which it should act so divided as to be entirely unseen and unfelt. No reasoning, then, can be justly urged on the ground of apprehension that the executive might causelessly remove worthy men from office ; nor is it any evidence why a power should not exist, because in its exercise there might be a possible abuse.
The counsel for the appellant have insisted, that a decision of this Court, pronounced in the case of the People, on the relation of Matheny, v. Mobley, in December term, 1835, has decided the case at bar ; and that the question in that case, and the one before the Court, is precisely parallel. If this be so, and that decision be correct, then the same results should certainly follow. Let us, however, attentively consider that case, as compared with the present. One of the questions decided in that case, was, that the power of appointment was not a personal trust, (in other words, a ministerial act,) but a judicial one, exercised by virtue of powers conferred by the Constitution.
It was contended on the argument in that case, as will be seen in the opinion of the Chief Justice, and a statement of the case, that the main question presented, was, whether the newly appointed judge had the authority to make the appointment of Mobley, by virtue of his office of judge.
The question is stated in the opinion of the Chief Justice, thus, “ The pleadings in this case show, that Matheny was clerk of the Circuit Court of Sangamon county, on the 3d day of May, 1835 ; and that, in pursuance of an act of the legislature, entitled ‘ Jin act to establish an uniform mode of holding Circuit Courts,’ (1) passed on the 7th of January, 1834, S. T. Logan was elected judge of the Circuit Court of Sangamon county, and, in virtue of said office, appointed M. Mobley clerk of the Circuit Court of said county.” (2)
The question went to the power of the new incumbent in the judicial office, to displace the old clerk, and was predicated on the act of the 7th January, 1835, which transferred the duties of the Supreme Judges, who then held the Circuit Courts, to the Circuit Judges, who were appointed under the new act.
In the general opinion of the Court I concurred. But because of a difference of opinion, and, as I then stated, in my separate opinion, “ entertaining some views not entirely in accordance with the opinion on which the judgment of the Court may be predicated,” I proposed (then) to state briefly the grounds on which they were founded. I proceeded to say, “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 to the person of the officer as 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 to so consider it. I believe I have not been singular in such opinion, the same opinion having been entertained, I am informed, by many highly intelligent legal men ; and if I am not greatly mistaken, 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 term time, the incumbent cannot be displaced except in the manner, and for the causes, provided by law.” “ The office is created under and by virtue of this section of the Constitution; but it will be remarked, while thus created, its duration is left undefined, and, being so, unless its tenure was defined by law, it would, we should apprehend, be of indefinite duration; whether of life or good behavior might also admit of much doubt. (1)
“ That tenure has, by the 23d section of the act of 1829, regulating the Supreme and Circuit Qourts, and various other acts of the legislature, been in some measure defined; and made to depend on various contingencies, and the performances of certain acts, — such as renewing official bonds; keeping his office at the county seat; and they have also provided for the manner of removal for acts of malfeasance. Considering that the power of appointment under the Constitution 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 also been defined, and the modes of proceeding prescribed; and that the regularity of the proceedings and records of the courts, and duties which appertain to the office, will be greatly promoted by uniformity, and the 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 of the points made, is the just and rational interpretation, and the laws relative thereto, to concur in the judgment of the Court, in favor of the relator.” (2)
It will thus be perceived, that the constitutional power of the legislature to limit the tenure of the office of clerk was never before this Court; nor was the power questioned in any way whatever. That my concurrence in the opinion was founded on the express ground, that the tenure of the office had been virtually if not actually defined by legislative enactments, w'hich, while they were in force, were obligatory on the judges of the Courts; and that I expressly said, while the tenure was left undefined by the Constitution, the office would be of indefinite duration, unless defined by law, but whether for life or good behavior, which is the same thing, might also admit of great doubt.
It will also be perceived, that the former practice in reference to appointments is stated, and the different opinions entertained in relation thereto are also noticed. I think a very clear distinction, however, can be drawn between the two cases.
The Governor may have occasion, as I have shown, to exert the power of removal in a summary manner, in a case of great emergency, like the one I have supposed, of great public danger, and to avoid similar acts of indiscretion, of the character stated. The causes of the disclosure might, before he acted, produce a repetition of the evils he intended to avoid by the act of removal.
The exercise of the power, at the moment, might be of infinite importance, and delay might produce great danger. Not so with the clerk; the Court may stop him in his acts of misconduct; may enforce obedience to its orders; may punish him for his contempts by fine; and may remove him, for cause, from office. The clerk cannot be considered as the agent of the Court. The doctrine of accountability in the Court for his acts, does not apply. The responsibility does not rest on it. The clerk, besides, takes an oath of office, and gives bond and security for the faithful performance of his duties ; not so with the Secretary, who gives no bond or security for the faithful discharge of his duties.
In 1 Hawkins 412, it is laid down, that the clerk may be adjudged, on principles of the common law, to forfeit his office by a breach of the condition annexed to it; so also by misfeasance or non-feasance.
The existence and possession of this comprehensive judicial control would seem to exclude the reason for adopting the idea, that a clerk can be removed at the will of a judge ; as he can remove him for cause, when facts are judicially ascertained, there is no ground on which to base the presumption, that he can obtain a power by implication to remove without cause. An officer who is unfaithful, incompetent, grossly negligent, or who abuses the trust reposed in him, may be deprived of his office by law.
This dispenses with the necessity for a resort to remove by the power derived from implication. It has been aptly said, “that powers are implied from necessity. If no cogent reason exists, why should that, which is not in express terms granted, pass by implication ? Such a construction is not to be favored.” It is certainly true, that this authority is not conferred upon the judge in any larger grant than in the case of the Governor, and that the same reasons and causes which render it proper and highly expedient for the Governor to exercise the power, do not and cannot exist in the case of the clerk. It will not be denied, that the superintending power of the Court will always be sufficient, under its ordinary rules, for every proper purpose, and commensurate to any exigency which may arise. I therefore conclude, that there is no analogy in the two cases, under the principles of our institutions, between the department of the judiciary, and that of the executive. These ideas are in no wise original. They are the results of the reflections of all practical men on these subjects; approved by time, and fortified by past experience. It is for these reasons, I apprehend, that the Supreme Court of Pennsylvania has adjudged, “that the power of removal, as an incident to that of appointment, has never been held to exist beyond the executive department; and does not extend to officers concerned in the administration of justice.”
For these reasons I cannot perceive the affinity, which it is said exists in the case of The People v. Mobley, and the present one. The marks of dissimilarity, and the cogent reasons for the application of different principles, seem to me most apparent, and to my mind make the distinction most manifest.
If, however, the rule laid down by the Supreme Court of the United States, in the case of Hennen, referred to in this opinion, is to prevail, and shall be considered directly applicable to our Courts, in reference to the appointment of clerks, I trust no false pride of opinion will deter me from adopting that rule, which shall be most in consonance with the true interpretation of the Constitution, and the principles best calculated to subserve the ends of justice.
Where error is made apparent, and conviction reaches the human breast, it were but a double sin to persist in wrong.
I have deemed it unnecessary to advert to the action in either branch of the General Assembly, on the power of the Governor to remove the Secretary, because of the conflict in the opinions which have at different times been expressed by each, and considering, moreover, that no decisive conclusions are to be deduced therefrom.
Upon the whole case, from the best examination and reflection I have been enabled to bestow upon it, and with the most sincere desire to arrive at just results, I have come to the following conclusions :
1. That the power of the Governor to remove the incumbent from the office of Secretary of State, is a power incidental to the power of appointment conferred on him by the Constitution, the office of Secretary being created by the Constitution, and the tenure of the office being also left undefined and unlimited ; and that therefore the incumbent holds his office at the will of the executive.
2. That the Secretary is to be considered a subordinate in the executive department of the Government, subject to the control and supervision, and accountable to the head, of that department for the faithful execution of the duties of the office, and removable at its pleasure.
3. That this power of removal is a continuing one, always in vigor; and that the appointment of another person to the office produces the removal or displacement of the incumbent.
I, therefore, concur in the judgment of the Circuit Court, and think it should be affirmed.
13 Peters.
3 Serg. and Rawle 145.
4 Serg. and Rawle 451.
5 Rawle 203.
Wallace 125.
The People v. Mobley, 1 Scam. 227.
Acts of 1836, 154 ; Gale’s Stat. 123.
Acts of 1835, 52.
Acts of July, 1837, 47; Gale’s Stat. 521.
1 Scam. 537.
Acts of 1835, 150; Gale’s Stat., 182.
1 Scam. 221.
1 Scam. 226-7.
1 Scam. 229.