People v. . Ahearn , 196 N.Y. 221 ( 1909 )

I have no doubt that the statute under which the governor removed the defendant from office is valid and constitutional. By the Greater New York charter (§ 382) it is enacted that the president of a borough may be removed in the same manner as the mayor, as provided in other sections of the act. By section 122 it is provided that the mayor may be removed from his office by the governor in the same manner as sheriffs, and by section 1 of article 10 of the Constitution a sheriff may be removed by the governor, giving to such officer a copy of the charges against him and an opportunity to be heard in his defense. A provision authorizing the removal of the mayor by the governor will be found in the charters of the city of New York ever since the office was made elective, with the exception of a brief period. It is not like the power of removal of the police commissioner, the validity of which was before the court in People ex rel.Devery v. Coler (173 N.Y. 103). In the statute there under consideration the power conferred upon the governor was absolute and unqualified. The defendant here was subject to removal only upon charges, which necessarily imply misconduct, and after an opportunity of being heard in his defense. Nor can it be well contended that conferring this power upon the governor is a violation of the home rule provision of the Constitution. The sheriff is not only a local officer, but must, by the Constitution, be chosen by the electors. If the Constitution makers did not deem it inconsistent with the spirit of home rule to vest in the governor the power of removing the sheriff, an elective officer, it is difficult to see why the bestowal upon the governor of the same power over an officer who, though local, is not necessarily elective, should be deemed a violation of that spirit. Local officers not specially mentioned in the article of the Constitution referred to, such as county treasurers and superintendents of the poor, have long been subject to removal in the same manner. Such a provision is now found in the Public Officers Law (sec. 23) and the authority of the governor to act under these statutes has never been challenged. Nor do I deny that the legislature might enact that where an officer had been removed by the governor for official misconduct under these statutes he should not be eligible for reappointment or re-election to fill the vacancy caused by his removal. The legislature may provide qualifications for office when not prescribed by the Constitution, where the qualifications or disqualifications prescribed are not arbitrary. (People v.Platt, 117 N.Y. 159; People v. Purdy, 154 id. 439; Barker v. People, 3 Cow. 686.)

But the difficulty in this case with the judgment below is that the legislature has enacted no provision of that character, and that judgment cannot be sustained unless this court holds as a matter of law that removal from office disqualifies from re-election or reappointment to the vacancy, although there is no statutory enactment to that effect. I had supposed that the law was too firmly established to the contrary to be open to question. It is true that the judicial decisions to be found on the point are few, but the correctness of a legal principle, like the excellence of the character of an individual, may be as firmly established by its universal acceptance and the failure to question it, as by favorable decisions when the subject is mooted. I think that this is true of the proposition that removal from office does not disqualify. On the 3rd of February, 1769, John Wilkes was expelled from the House of Commons for having published "a scandalous and seditious libel," which undoubtedly was its prerogative. On the 16th of the same month he was re-elected to the Commons without opposition. Thereupon the House of Commons resolved that "John Wilkes having been in this session of Parliament expelled this house, was and is incapable of being elected a member to serve in this Parliament," and his election was declared void. This last action of the House of Commons set the kingdom in a ferment. Though not wanting some defenders, it was the subject of vehement denunciation. Lord Chatham in one of his most famous orations charged that the Commons under the pretense of declaring a law, had made the law and enacted a disqualification unknown to the law. The controversy was long continued. A new Parliament having been convoked, Wilkes was elected thereto, and in May, 1782, the House of Commons directed that the resolution that he was disqualified should be expunged from the journals of the house as subversive of the rights of the electors and of the whole people. From that time it has been the accepted law of England that expulsion from the House of Commons does not prevent re-election thereto. (2 May's Constitutional Hist. p. 27.) In 1882 Bradlaugh was expelled from the House of Commons and having been returned by the electors of Northampton, took his seat in the house without question. (Treatise on the Law Privileges, etc., Parliament, Thos. E. May, 1863, 1864.) The career of John Wilkes is a part of American history, for, profligate though he was, nevertheless he was the steadfast supporter of the rights and liberties of the colonies and courageously resisted the encroachments of the Crown. To that resistance we owe the provision of the Federal Constitution forbidding the issuing of general warrants.

The law of the Wilkes case has been universally accepted in this country by statemen, publicists and text-writers, though, as already said, judicial decisions are scanty. Mr. Bancroft, in his History of the United States, says (p. 275, vol. 6): "The disfranchisement of Wilkes had no authority in law." Mr. Cushing in his standard work on Legislative Assemblies, says (p. 182): "Expulsion from a former, or from the same legislative assembly, cannot be regarded as a personal disqualification, unless specially provided by law." Professor Pomeroy in his Constitutional Law (§ 716) says: "It is true that Senators and Representatives may be expelled by the body to which they belong, but this punishment is plainly inadequate; expulsion removes from the present office, but is no obstacle to a re-election thereto." In 1797 William Blount, a senator from Tennessee, was expelled from the United States Senate for promoting a hostile military expedition against the territories of Spain in the Floridas and Louisiana, in the interest of Great Britain. For that conduct he was also impeached by the House of Representatives. It was decided by the Senate that Members of Congress of either house were not subject to impeachment. The stress of the argument of the managers of the House in support of impeachment was that expulsion did not prevent his immediate re-election and that impeachment should, therefore, be permitted so that if convicted he would be disqualified from holding office. The assertion that Blount was qualified for re-election was admitted by his counsel and seems to have been assumed as unquestionable.

The Constitution of this state (Art. 6, § 13) prescribes that "Judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any office of honor, trust or profit under this State," thus recognizing that removal from office itself does not create a disqualification. Upon the conviction of a justice of the Supreme Court on impeachment, when the question of the judgment to be rendered thereon arose, Judge ALLEN of this court said that if the defendant was simply removed from office he might immediately be re-elected by the people or appointed to fill the vacancy. (Barnard's Impeachment, vol. 3, p. 2195.) We have, however, one judicial decision on the exact point. In State ex rel. Tyrrell v. Common Council (25 N.J.L. 536) the common council of Jersey City had expelled Tyrrell for bribery and corruption. He was re-elected and the common council then suspended him. Thereupon he sued out a mandamus to compel the common council to recognize him as a member. At the very threshold of the case, presenting the right of the relator to maintain the proceeding, was the question whether he was eligible for re-election, which the defendant challenged. The court held that he was. In answer to the question whether a member of that body who is adjudged to-day to be guilty of gross official misconduct and is therefore expelled as unfit to exercise his office, or even to associate with men of character, can possibly be fit to fill the same office to-morrow, and whether such a man can be thrust back upon a body of honorable and upright men, as their official compeer and associate, by a misguided constitutency, with the odor of his corruption fresh about him, the court said: "These, however, are questions for the law-making power to consider. It is for the legislature to say how far it is necessary, in particular cases, to limit the power of the members of a common council, or punish particular offenses, and not for the courts." This decision is cited with approval by Judge Dillon in his work on Municipal Corporations (Vol. 1 [4th ed.], § 248).

Nor can any sound reason be given why the result of the removal from office by the governor should, as a matter of law, be any greater than that which flows from expulsion by a legislative body. Whatever may be the view taken in other states, it is settled by a recent decision of this court that the action of the governor in removing a sheriff from office under the constitutional provision that has been cited is not judicial but executive. (Matter of Guden, 171 N.Y. 529.) Therefore, if there is any distinction to be drawn from the effect of a removal in judicial proceedings, that distinction is immaterial here.

Against this uniform current of authority we have two recent decisions. The first is State ex rel. Childs v. Dart (57 Minn. 262). The defendant, a county treasurer, resigned during the pendency of proceedings for removal for misconduct, and thereupon was appointed by the board of county commissioners to fill the vacancy caused by his resignation. The discussion in the opinion is very brief. The court said: "We are of the opinion that he was not eligible for reappointment while under suspension, or during the pendency of the proceedings. The removal proceedings cannot be nullified or reversed in that manner. Such removal proceedings are not merely for the purpose of ousting the person holding the office; they include a charge that he has forfeited his qualification for the office for the remainder of the term. * * * Whether the voters at the polls could condone the offense by which he forfeited his office it is not necessary here to decide. We are of the opinion that the county commissioners could not do so." InState ex rel. Coleman v. Rose (74 Kan. 262) the doctrine of the Dart case was followed. There the court held that the removed officer was ineligible even for re-election by the people. In one respect the decision in the Rose case was certainly logical. If a removed officer is ineligible for appointment, he is equally ineligible for election. Eligibility is exclusively an attribute of the person elected or appointed, and does not at all depend upon the character or position of those from whom he obtains his title. The election by the people of an ineligible person to office is invalid. (People v.Purdy, supra.) Nor is there any force in the suggestion of condonation by the people. Condonation, so far as offenses against the public are concerned, means simply pardon. The pardoning power is vested exclusively in the governor. While the ultimate source from which all power is derived is the people, still the people by their act in adopting a constitution have limited their own power; thus, the legislature cannot delegate to the people the power of making a law. (Barto v. Himroa,8 N.Y. 483.) No more can there be delegated to the people the power to determine whether a candidate is eligible or ineligible, nor to pardon his offense if he has committed one. The arguments of the opinions in these cases, that to permit the appointment or election of a removed officer is to reverse or nullify the action of the removing officer, is not new. The same argument was made by the apologists for the action of the House of Commons in theWilkes case. It is answered by the opinion of the Supreme Court of New Jersey in State ex rel. Tyrrell v. Common Council (supra). It is not anomalous that the division of the powers of government may enable one officer to render nugatory the action of another. The pardoning power vested in the governor enables him to set at naught the decisions of courts and juries. The Federal courts of first instance upheld the constitutionality of the famous sedition laws. Thomas Jefferson entertained a contrary view, and on his election as president pardoned all persons who had been sentenced under that law, avowedly on the ground that the statute was unconstitutional. It is this division of the powers of government that renders the case of a private master or employer a false analogy.

I have said that the doctrine that expulsion from office does not disqualify has been universally accepted, with the exceptions noted. But it is urged that the action of the House of Representatives in the case of B.F. Whittemore, a representative from South Carolina, is to the contrary effect. (1 Hinds' Precedents of the House of Representatives, 487.) That case is misapprehended. The effect of expulsion was not in the case at all, for Whittemore had not been expelled. He had resigned. The ground on which the action of the majority of the House proceeded was that that body could refuse to receive a person guilty of crime, though possessing the constitutional qualifications. This is apparent from the argument of General Logan who moved the resolution. He said (Id. p. 540): "The Constitution of the United States, which authorizes Congress to prescribe rules and regulations for the government of their members, provides that by a two-thirds vote either House may expel any one of its members without prescribing the offenses for which either House may expel. * * * This being the theory with which I start out, I then assume that where the House of Representatives has power to expel for an offense against its rules or a violation of any law of the land, it has the same power to exclude a person from its body." He distinguished the case then before the House, where a member had been guilty of an actual crime, and that of other persons who after having been censured by the House had resigned and been re-elected. The very distinction made by General Logan shows that it was not the censure of the House nor expulsion from that body that created the disqualification, but the offense of which the member had been guilty, of the sufficiency or insufficiency of which as a ground of exclusion the House was the judge. Surely there is no such right in the courts to review the character of the acts for which this defendant was removed. This precedent was followed by similar action in the case of Brigham H. Roberts, a representative from Utah, whom the House refused to admit on the ground that he was a polygamist. (Id. p. 527.) There was no question of previous expulsion in that case. The question was the same as in the Whittemore case — the right of the House to exclude for crime or criminal conduct that in its opinion rendered the applicant unfit to be a member of that body. No lawyer can read the clear and forceful minority report of Messrs. Littlefield and De Armond without at least doubting the correctness of this decision. Whether, however, the action of the House was justified or not the cases have no bearing on the proposition that expulsion from office per se disqualifies from re-election or reappointment.

The principle underlying the general doctrine is: "Where no limitations are prescribed, however, the right to hold public office under our political system is an implied attribute of citizenship, those and those only who are competent to participate in choosing officers being in general deemed eligible to be chosen." (Mechem on Public Officers, sec. 67.) There are implied exceptions to the rule, but these are only necessary exceptions, such as minority, idiocy and the like. (Barker v.People, supra.) Even conviction of crime does not disqualify unless the disqualification is prescribed by constitution or statute. In the work of Judge McCrary on Elections (section 354) it is said: "For it is plain that in the absence of such legislation (i.e., forfeiting office on conviction of crime), according to the law, which seems well settled, a convicted felon may, for a time at least, continue to exercise the functions of a public office, unless indeed by imprisonment he be deprived of the power to do so." (See, also, Commonwealth v. Shaver, 3 Watts S. 338; and State ex rel. Police Comrs. v. Pritchard,36 N.J.L. 101.) In People ex rel. Bush v. Thornton (25 Hun, 456) it was held that neither the bribing of electors nor the offer to bribe them by a person receiving the certificate of election would render him ineligible or disqualify him from holding office in the absence of a constitutional or statutory provision declaring such disability. Appreciating that such was the law, for the purpose of preventing bribery, section 1 of article 13 of the Constitution (Constitution of 1846, art. 12, § 1) was amended so as to require a public officer in his official oath to swear that he had been guilty of no bribery in obtaining office. I appreciate the force of the arguments against allowing an officer who has been removed from his office to be again elected or appointed thereto. They are cogent, but they should be addressed to the legislature; not to the courts. The same course should be taken as was taken in reference to bribery. There the Constitution was amended. Here the statute should be amended. But for the courts to declare a disqualification not enacted by the legislature or by the Constitution is, to use the language of Lord Chatham, not to declare the law, but to make the law. What led the legislature to omit disqualifying the removed officer we know not. It may be because it did not occur to the lawmakers that where an officer had been removed for misconduct, appointing officers or electors would return him to the office from which he had been removed. If such was the case, then there is simply an omission in the statute which the courts cannot supply. On the other hand, it is possible that the legislature intended to give a removed official an opportunity to review the justice of his removal by seeking for re-election or reappointment to the office. In 1874 the governor of the state removed the district attorney of Kings county. In the general election of that year the incumbent so removed was re-elected to the office by the electors of the county. He was removed during the last year of his term, so the term to which he was elected covered no part of the old term. But under the Constitution a vacancy in that office and the other offices mentioned in article 10 of the Constitution must be held at the next election for a full term. (Coutant v.People, 11 Wend. 511.) Therefore, had the district attorney been removed in the first or second year of his term and the electors shown the same confidence in him, he would have held office for part of the very term from which he had been removed. The same condition exists as to judicial officers. When a vacancy occurs in the office of a judge of this court, or of a justice of the Supreme Court, it is to be filled at the next general election happening not less than three months thereafter for a full term. It is conceded that in these cases an officer who has been removed in accordance with the Constitution, unless disqualified from holding office by the sentence of a court of impeachment, would be qualified for re-election for a new term. What then becomes of the theory that removal is from the whole of the official term and, therefore, precludes election to the vacancy? If the people have found no inconsistency between the power of removal of a constitutional officer and his eligibility to fill the vacancy created by his removal, how can a court be justified in declaring that such an inconsistency would be created by legislative enactment of a similar character?

The case before us does seem to display in the appointing officers reckless disregard of the action of the governor, but the evil can easily be corrected by the legislature. If the courts, in the attempt to correct it, decide the proposition that removal from office imports as matter of law a disqualification to fill the vacancy, I fear that the decision may soon return to plague them, and most of all I fear that it will afford a precedent for legislative bodies, the qualifications of whose members are prescribed by the Constitution, to overturn a settled principle of constitutional law.

The order of the Appellate Division should be reversed and the judgment of the Special Term affirmed, with costs in both courts.

HISCOCK, EDWARD T. BARTLETT and GRAY, JJ., read for affirmance, and WERNER, J., concurs; CULLEN, Ch. J., reads dissenting opinion, with whom CHASE, J., concurs; WILLARD BARTLETT, J., not sitting.

Order affirmed.