pointed most appropriately belonged. The appointment of clerks of court properly belongs to the courts of law; and that a clerk is one of the inferior officers contemplated by this provision in the Constitution cannot be questioned. Congress, in the exercise of the power here given, by the act of the 24th of September, 1789, establishing the judicial courts of the United States, 1 Story's Laws, U. S. 56, s. 7, declares that the Supreme Court, and the district courts shall have power to appoint clerks of their respective courts; and that the clerk for each district court shall be clerk also of the circuit court in such district.

Such then being the situation in which the petitioner stood prior to the 21st of May, 1838, the question arises whether the district judge had power to remove him, and appoint another clerk in his place.

The Constitution is silent with respect to the power of removal from office, where the tenure is not fixed. It provides, that the judges, both 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 tenure of certain officers to the term of four years, 3 Story, 1790; but expressly providing that the officer shall, within that term, 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 the 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, for a moment, be 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 at pleasure, 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 as incident to the power of appointment.

In all 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 of 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 on 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 Constitution has authorized Congress in certain 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.

And the same rule has governed the decisions of the state courts in this country, whenever the power of appointment and tenure of office has been drawn into discussion. The questions have been governed by the constructions given to the constitution and laws of the state where they arose.

The law giving the district courts the power of appointing their own clerks, does not prescribe any form in which this shall be done. The petitioner alleges that he has heard and believes that Judge Lawrence did, on the 18th day of May, 1838, execute and deliver to John Winthrop, a commission or appointment as clerk of the district court of the eastern district of Louisiana, and that he entered upon the duties of the office, and was recognized by the judge as the only legal clerk of the district court. And in addition to this, notice was given by the judge to the petitioner, of his removal from the office of clerk, and the appointment of Winthrop in his place; all which was amply sufficient, if the

office was held at the discretion of the court. The power vested in the court was a continuing power; and the mere appointment of a successor would, per se, be a removal of the prior incumbent so far at least as his rights were concerned. How far the rights of third persons may be affected is unnecessary now to consider. There could not be two clerks at the same time. The offices would be inconsistent with each other, and could not stand together. If the power to appoint a clerk was vested exclusively in the district court, and the office was held at the discretion of the court, as we think it was; then this court can have no control over the appointment or removal, or entertain any inquiry into the grounds of removal. If the judge is chargeable with any abuse of his power, this is not the tribunal to which he is amenable; and we have no right to judge upon this matter, or power to afford redress if any is required, we abstain from expressing any opinion upon that part of the case.

The motion is accordingly denied.

4. Removal for Cause.

IN THE MATTER OF GUDEN.

Court of Appeals of New York. June, 1902.

171 N. Y. 529.

Charles Guden, the petitioner, was elected sheriff of Kings county at the election in 1901, and thereafter duly qualified and took office. Subsequently, charges having been preferred against him, alleging acts of misconduct committed prior to his election, the governor, after a hearing, ordered his removal from office, and appointed Norman S. Dike, in his stead, who, acting under his certificate of appointment, took possession of certain books and papers appertaining to the office of sheriff. The petitioner, asserting that his removal was violative of the provisions of the state constitution, and so, ineffective, instituted this proceeding. PARKER, Ch J.

has been invested in the governor by the people. Constitution, art. IV, § 1. The constitution further specifically provides and has since 1821 in effect, and since 1846 in precisely the same words that "the governor may remove any officer, in this section mentioned, (sheriffs, clerks of counties, district attorneys and registers in counties having registers), within the term for which he shall have been elected; giving to such officer a copy of the charges against him; and an opportunity of being heard in his defense." Art. X, § 1.

If the intent of the framers of the constitution was not plainly apparent from the language of the clause, all doubt would be removed by an examination of the debates of the constitutional conventions of 1821 and 1846.

Prior to the constitution of 1821 the office of sheriff had not been elective but an appointive one. Under the constitution of 1777 the appointments were made by a council consisting of the governor and one member from each of the four great senate districts of the state. The manner in which the power was exercised became the subject of such grave abuse that the convention of 1821 set about accomplishing a needed correction. The final result was that the electors of the several counties were authorized to choose the sheriffs by ballot, and upon the governor was conferred the power of removal in language substantially like that in existence in the constitution of to-day.

An examination of the debates of that convention seems to indicate that the propriety of vesting the power of removal in the governor was not questioned. A difference of opinion did prevail as to the advisability of requiring notice and an opportunity to be heard before removal.

The suggestion that, if the courts do not interfere, some executive may proceed in disregard of those principles which courts of impeachments have established, should not be given weight, for the ability to act quickly in the removal of administrative officers and clerks is as important in the conduct of government as in the management of a gigantic corporation or large individual enterprise.

Of the manner in which that power has been exercised there

has been but little complaint in the more than eighty years that have passed since the power was first granted. Delegate Becker of the constitutional convention of 1824, seems to have been of the opinion that the governor should not have an absolute and unconditional power of removal that might be exercised without a sufficient reason, and so he proposed in due form an amendment to the section of the constitution under consideration, which should insert therein after the word "remove" the words "for good cause shown," but the proposed amendment was rejected, and without debate, so far as the record discloses.

But had there been large complaint concerning the exercise of the power the method of removal inbedded in the constitution must govern until the people change it. It authorizes the governor to remove, as we have seen, after "giving to such officer a copy of the charges against him and an opportunity of being heard in his defense," and an examination of the record discloses that such requirements of the constitution were fully complied with in this case.

Therefore, we do not examine into the merits, for they do not concern the courts, inasmuch as both the power to decide whether Guden should be removed from the office of sheriff, and the responsibility for a right decision, rest solely upon the governor of the state.

The order should be affirmed, with costs.

O'BRIEN, J. I concur with Chief Judge Parker in the result. My conclusion, however, is based on grounds somewhat different from those stated in his opinion, and, briefly, my reasons are these:

It is admitted on all sides that before a removal can be made the governor must acquire jurisdiction. These must be a charge of some official misconduct on the part of the officer and he must have been served with a copy of the charge and given an opportunity to be heard. A mere statement in writing, of some act or omission on the part of the officer, that in no sense can constitute misconduct, would not be a charge within the meaning of this provision of the constitution. It is not necessary that the charge be stated with all the precision of a pleading in a court of law or equity. The governor has power to prescribe his own rules of procedure and determine whether the charge is sufficiently specific or otherwise, but there must be some act or