record discharging the respondent, the simple result is that the Senate has not discharged him.

It is proper to inquire here whether we have any legal right or power to determine what the effect of this action is under the circumstances. If we have not; if it shall be, as we conceive it is, the exclusive and sole province of the Senate to determine that question; if by so doing we usurp a jurisdiction not vested in this court by the State Constitution and wrest a case now pending from a court of exclusive jurisdiction over the trial of the subject, and presume to review its action and discharge what we may conceive to be its duty, it is plain that such action is improper.

Let us compare the powers and functions of the Senate in this matter with the power of this court. What is the Senate when organized for the purpose of trying impeachments? What is the extent of its jurisdiction, and what relation exists between this tribunal and that? The Senate, when thus organized, is unquestionably a court-because it is a body invested with judicial functions; because it determines issues both of law and fact; because it announces the law in form of judgment, and through that instrumentality adjudges the penalties named by the Constitution. Not only is it a court, but it is a court of exclusive original and final jurisdiction. Its judgments can become the subject of reversal or review in no other court known to the Constitution and the laws. This simple exercise of judicial functions, the application of law to facts and announcing its conclusions, are not extraordinary or transcendent powers. Nor is the simple fact that its jurisdiction is both original and final a circumstance which alone would justify us in ascribing to it any extraordinary degree of importance, because the general reason why a court has both original and final jurisdiction is the small degree of importance of the matter involved. Not only is this tribunal a court, but it is a court of great importance. Its jurisdiction is not indeed very extensive as to the number of the subjects-matter which may come under its control, but the sphere in which it acts, while limited to but one class of cases, is most high and transcendant. This is so because of the subject-matter of its jurisdiction, the degree and extent of the punishment it imposes, and the exclusive power which it has of regulating its practice arising upon any matter pending before it. All other persons in whom judicial power is vested under the Constitution derive their existence from a delegated power to the Governor and Governor and Senate. These persons represent the peo

ple directly through the exercise of the elective franchise. We may oust an usurper because he was not elected or eligible, and there our power ends. This Court of Impeachment and the Assembly go further. To them the people have confided the superintendence and control of all persons who are invested with distinguished political franchises and offices. This court can say to an officer, you are not elected or qualified. That court can say to him, we admit that you are selected by the people; that you were in all respects qualified, and notwithstanding all this, you shall not only no longer discharge the functions and franchises of a particular office, but you shall not hold in the future any office of honor, trust or profit under the State. Under these circumstances, we submit that we should and must be very careful how we act in such matters. This jurisdiction is too high and transcendent to be invaded.

In the argument of this case allusions were made to the rule that the different departments of the government must keep within their several constitutional spheres of action. The conflict here threatened is not between co-ordinate departments of the government. It is between two courts of high and transcendent jurisdiction. We having no jurisdiction of the subject-matter of impeachment, propose to discharge an impeachment proceeding because we conceive that the legal effect of certain action taken in the court having exclusive jurisdiction of the subject is to entitle the party to a discharge. Suppose we test the question of jurisdiction by bringing the matter to a contest. Suppose we say in this instance to Governor Reed that the legal effect of this action is your discharge and you are entitled to enter upon the duties of your office. Suppose the Senate meet to-morrow and determine for themselves that they have not in fact discharged the prosecution and they have done nothing which in law entitles him to a discharge; that upon their calendar the case is still pending and they propose to proceed to the trial. Is it not perfectly clear that if the Senate has the exclusive jurisdiction of the case, its judgment and not ours must prevail? We think there can possibly be no doubt here.

We cannot determine the effect of this action of the Senate, and all that we have to do with the subject is to respect its judgment, whatever it may be, provided the punishment inflicted is not in excess of that named in the Constitution, and is authorized by

it, and is the judgment of a legal Senate vested with jurisdiction of the subject-matter and of the person.

Our power in the matter of this impeachment is limited and cir cumscribed by the fact that it is a matter beyond our jurisdiction entirely. After an impeachment perfected according to the Constitution, the whole matter is with the Senate, and it has the exclusive right of determining all questions which may arise in the case. If its action is unconstitutional, we have the right and power to declare its nullity, and, in a proper case before us, to enforce the right of any party of which it proposed to deprive him.

In what we have said we do not affirm the entire want of jurisdiction or power in this court in proper cases to investigate and enquire into any act of the Senate affecting the rights of parties before it in a case where what they have done comes before us collaterally. That power cannot be thrown off. But when the Constitution vests exclusive jurisdiction over impeachments in the Senate, we are deprived of the power of deciding questions arising in the course of the trial, or while the impeachment is pending, for these necessarily must belong to the court vested with the principal power or jurisdiction, and there is no appellate power in this court to reverse it. When, therefore, in exercising the power and jurisdiction vested in this court, we proceed to inquire into matters brought properly to our attention, the law does not authorize us to substitute our judgment for that of the Senate upon questions before that tribunal, and hence, if it appears that no order finally disposing of the case has been made by it, we are at once arrested by the rule of constitutional law which affirms that the Senate itself is the only tribunal to decide whether, from the nature of its own previous action, the party is entitled to a discharge.

With these views, we can only say that until Gov. Reed is acquitted by the Senate, we cannot acquit him, and that during his suspension his power as Governor to demand our opinion upon any question of law ceases. We decline to say whether the law applicable to the proceedings of the Senate at its last session entitled him to a discharge. It would be improper in this court to go beyond saying that the Court of Impeachment is still in existence and must determine the matter. We should not suggest to that court how it should determine a question to come before it in a case now pending. With the circumstances reversed, we should

not be very much obliged to that or any other tribunal should it suggest to us how we should determine a case pending before this court; and should it, unasked by us, give its views of the law of a case pending before this court, we should deem it a grave mistake as well as an improper interference. Being suspended, Gov. Reed's relation to us in this matter is no more than that of a citizen, and it would certainly be improper in us to give a voluntary opinion to a citizen upon a question of law, and whether we had jurisdiction over the subject-matter or not.

THE STATE EX PARTE, V. O'DRISCOLL. Constitutional Court of South Carolina. May, 1815. 2 Treadway's South Carolina Reports 713.

BREVARD, J. The motion for the reversal of the order of the district court in this case has been placed on various grounds. I will consider and dispose of the objections to the order of the district court in question, in the course in which they are exhibited in the brief. The first is, that the Senate proceeded unconstitutionally against the appellant by impeachment, and that their judgment of removal from office is illegal and void. . . . But I think it unnecessary to discuss these questions, as I am of opinion that the part of the act of Assembly of 1789 relied on, has been wholly superseded and repealed by the constitution, which declares "that all civil officers shall be liable to impeachment for any misdemeanor in office."

The only answer which I shall make to the fourth ground is, that it is not for this court to rectify, or condemn the proceedings and judgment of the high court of impeachment; the constitution has given no such power, and moreover I think it disrespectful to that great and independent tribunal, to suffer its proceedings and judgments to be criticised and censured in the manner it was on the argument in this case.

Justices COLCOCK, SMITH, and GRIMKE, concurred.

The official relation may be terminated also by the abolition of the office. Koch v. The Mayor, 152 N. Y. 72, supra, and the legislature may in the absence of a constitutional inhibition declare an office vacant by the passage of a law. See cases cited in Attorney General v. Jochim, 99 Mich. 358, supra.

CHAPTER VI.

COMPENSATION OF OFFICERS.

I. NOT BASED ON CONTRACT.*

WHITE V. INHABITANTS OF LEVANT.

Supreme Judicial Court of Maine. January, 1887.
78 Maine 568.

WALTON, J. The only question we find it necessary to consider is whether one who has accepted a town office to which neither the legislature nor the town has annexed any compensation, can maintain an action to recover compensation for his official services. It is well settled that he cannot. The compensation of some town officers is provided for by statute. The compensation of assessors, selectmen, and overseers of the poor, is thus provided. R. S. c. 6, sec. 102. Such compensation may of course be recovered, whether the town is willing to pay or not. So, if the town has expressly voted a compensation. But in the absence of any such statute or vote, no compensation can be recovered. Talbot v. East Machias, 76 Maine 415; Sikes v. Hatfield, 13 Gray 347; Walker v. Cook, 129 Mass. 578; Dillon's Mun. Corp. (2d ed.) Sec. 169.

The plaintiff has obtained a verdict on a claim made up largely of charges for his official services as town agent. Unfortunately for him neither the town nor the legislature has annexed any compensation to his office. The verdict, therefore, is contrary to law, and must be set aside.

The motion is sustained, the verdict set aside, and a new trial granted.

PETERS, C. J., DANFORTH, EMERY, FOSTER, and HASKELL, JJ., concurred.

*In the absence of a constitutional inhibition the legislature is to fix the compensation of an officer which it may change during the term of an incumbent. Butler v. Pennsylvania, 10 How. U. S. 402, supra.

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