existing. The clerk here was not absent nor did he refuse nor was he unable to discharge the duties of the position, and however unfit he might be morally to occupy such a place this was a question for the voters of the county and not for the judge.

If convicted the law removes him; if acquitted, even upon the doctrine of reasonable doubt, he must remain in office until the expiration of his term. The utmost power of the court was to take care that he should not use his official position to obstruct his own trial or to remove the evidence of his guilt, and with this view its order should have been modified in the manner suggested by the relator. It may be troublesome properly to execute such an order, but while no trouble is too great to insure justice and the infliction of proper punishment, it is better that the greatest criminal should go unpunished than that the Constitution should be violated by those whose first and highest duty is to guard and protect it.

If it need citation of authorities to show that no court can remove or suspend a constitutional officer save after conviction of an offence which authorizes it, it is found in many cases and denied by none. Hyde v. The State, 52 Mass. 675; Page v. Hardin, 8 B. Mon. 673; Newson v. Cock, 44 Miss. 362; Lowry v. Tullis, 32 Miss. 147; Honey v. Graham, 89 Tex. 11; Cury v. Stewart, 8 Bush, 563.

Our conclusion is that, inasmuch as there is no state of facts which will make valid an order of removal before conviction, the relator was not guilty of contempt in disregarding the order made in this case. Wherefore, the judgment of the court below is reversed and the relator discharged.

THE STATE EX REL. ATTORNEY-GENERAL V. SAVAGE.

Supreme Court of Alabama. November, 1889.
89 Ala. 1.

CLOPTON, J. This case, which is an impeachment proceeding against R. R. Savage, judge of probate of Cherokee county, instituted in this court, is submitted on a motion to quash the information on the fourth, fifth, ninth and tenth grounds, and on a demurrer to the other grounds.

In respect to the impeachment of public officers, a jurisdiction not theretofore existing is created by the Constitution and statutes, and the mode of its exercise provided, to which the proceeding must substantially conform. Section 4840 of Code 1886 provides: "It shall be the duty of the Attorney-General to institute proceedings under this chapter, and prosecute the same against any of ficer included in section two, article seven of the Constitution [which includes judges of probate], when the Supreme Court shall so order, or when the Governor shall, in writing, direct the same, or when it appears from the report of any grand jury that any such officer ought to be removed from office, for any cause mentioned in the first section of this chapter." The causes mentioned are: "Willful neglect of duty, corruption in office, habitual drunkenness, incompetency, or any offense involving moral turpitude, while in office, or committed under color thereof, or connected therewith." Section 4818. Whether such proceedings shall be instituted is not rested on the discretion of the Attorney-General; authorization in one of the statutory modes is essential to uphold the proceeding. The present information purports to be founded on the report of a grand jury.

The fourth and fifth objections are substantially the same, though varied in form; namely, it does not appear that the alleged report was made by a grand jury of Cherokee county to the Circuit Court for that county. The information recites that the proceeding is instituted on the report of a duly organized grand jury of Cherokee county; that it was made in the Circiut Court for the July term, 1889, and entered on the minutes of the court, and that a certified copy which accompanies the information, was transmitted to the Attorney-General. When the information refers to the report of a grand jury, and is accompanied by it, as the authorization, this is prima facie sufficient to uphold the proceeding without the contents being specifically set forth in the information itself.

The ninth and tenth grounds of the motion are, that the facts constituting the misconduct with which the defendant is charged are not set forth in the report of the grand jury, as required by the statute. Section 4839 of the Code declares: "It shall be the duty of every grand jury to investigate and make diligent inquiry concerning any alleged misconduct or incompetency of any public officer in the county, which may be brought to their notice; and if, on such investigation and inquiry, they find that such of

ficer, for any cause mentioned in this chapter, ought to be removed from office, they shall so report to the court, setting forth the facts, which shall be entered on the minutes." It was held in State v. Sewell, 64 Ala. 235, that setting forth the facts in the report is essential to the authority of the prosecuting officer to institute such proceeding; and though the facts need not be set forth with the accuracy usually required in pleading, unless the report sustains a succinct statement, showing the nature and description of the acts of the official misconduct charged, it is insufficient to uphold the proceedings. In that case, the defendant was charged with extortion and corruption in office, which are conclusions of law from facts which may differ in different cases. The report of the grand jury on which the present information is based, is as follows: "In the discharge of our duties as a grand jury, we find, and do hereby report, that R. R. Savage, judge of probate in and for the county of Cherokee, ought to be impeached and removed from such office, for and on account of his habitual drunkenness while in such office, prior to and down to the time of making this report." No greater fulness of description of the acts, and less accuracy of statement, is required in such report, than in an indictment.

The motion is overruled as to fourth, fifth, ninth and tenth grounds, and the demurrer to the other grounds is sustained.

3. Incident to Power of Appointment.

EX PARTE, IN THE MATTER OF HENNEN. Supreme Court of the United States. January, 1839. 13 Peters 230.

Mr. Justice THOMPSON delivered the opinion of the court. This is an application for a rule upon the Honorable Philip K. Lawrence, Judge of the District Court of the United States for the eastern district of Louisiana, to show cause why a mandamus should not be issued against him, requiring him to show cause why he should not restore Duncan H. Hennen to the office of clerk of the said district court.

The petition sets forth that the petitioner, Duncan H. Hennen, on the 21st day of February, in the year 1834, was duly appointed clerk of the said court, by the Honorable Samuel H. Harper, judge of the said court. That a commission was duly issued under the hand and seal of the judge. That he accepted the appointment, and gave the bond with sureties required by law, and thereupon entered upon the duties of the office, and continued to discharge the same methodically, skillfully and uprightly, and to the satisfaction of the District Court. That by virtue of said appointment, and of the provisions of the statute in such case made and provided, he was from the period of the organization of the circuit court of the United States for the said district of Louisiana, in like manner the clerk of said circuit court; and performed all the duties of said office. That he continued to perform the said duties, and receive the emoluments, and in all respects to hold and occupy said offices, until on or about the 18th day of May, in the year 1838, when he received a communication from the Honorable Philip K. Lawrence, then and now the judge of the said district court of the United States, for the said eastern district of Louisiana, apprizing him of his removal from the said office of clerk, and the appointment of John Winthrop in his place. And in this communication he states, unreservedly, that the business of the office for the last two years has been conducted promptly, skilfully, and uprightly, and that, in appointing Mr. Winthrop to succeed him, he had been actuated purely by a sense of duty and feelings of kindness towards one whom he had long known, and between whom and himself the closest friendship had ever subsisted. And that, as his capacity to fill the office cannot be questioned, he felt that he was not exercising any unjust preference, in bestowing on him the appointment. The petition further states that Judge Lawrence did, on or about the 18th day of May, in the year 1838, execute and deliver to the said John Winthrop a commission or appointment, as clerk of the said district court for the eastern district of Louisiana; and that he does to a certain extent execute the duties appertaining to the said office, and is recognized by the said judge as the only legal clerk of the said district court.

The petition further states, that on or about the 21st day of May, in the year 1838, the circuit court of the United States for the eastern district of Louisiana, met according to law; when the Honorable John McKinley, one of the associate justices of the

Supreme Court of the United States, and the said Judge Lawrence, appeared as judges of the said circuit court, and that the petitioner and John Winthrop severally presented themselves, each claiming to be rightfully and lawfully the clerk of the said circuit court; that the judges differed in opinion upon the said question of right, and being unable to concur in opinion, neither of said parties was admitted to act as clerk, or recognized by the court as being rightful clerk; and no business was or could be transacted, and the court adjourned.

The petitioner claims that he was legally and in due form appointed clerk of said district court; and by virtue of said appointment became lawfully clerk of said circuit court. And that he has never resigned the said offices, or been legally removed from the same, or either of them. But that he is illegally kept out of the said office of clerk of the said district court, by the illegal acts and conduct of the said Philip K. Lawrence, judge as aforesaid, and the said John Winthrop, claiming to hold said office under an appointment from the said Judge Lawrence; which he is advised and believes is illegal and void. And prays that the court will award a writ of mandamus, directed to the said judge of the said district court, commanding him forthwith to restore the petitioner to the office of clerk of the said district court for the eastern district of Louisiana.

The district judge has appeared by counsel to oppose this motion, and the facts set out in the petition have not been denied. And the question presented to the court is, whether the petitioner has shown enough to entitle him to a rule to show cause why a mandamus should not issue. If he has been legally removed from the office of clerk, there are no grounds upon which the said motion can be sustained.

By the Constitution of the United States, art. 2, sec. 2, it is provided that the President shall nominate, and by and with the advice and consent of the Senate, shall appoint certain officers therein designated, 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 shall think proper, in the President alone, in the courts of law, or in the heads of departments. The appointing power here designated in the latter part of the section was no doubt intended to be exercised by the department of the government to which the officer to be ap