People v. Ahearn

Section 382 of the charter of 57ew York (Chapter 466 of the Laws of 1901) by its own terms and by reference to other constitutional and statutory provisions relating to removal of county officers, provided for the removal of the defendant by the governor on charges after an opportunity to be heard in his defensé, and no claim is made that all provisions for the trial and protection of the defendant were not observed in the proceeding which resulted in his removal. It is, however, somewhat argued that the provisions purporting to confer upon the governor the power of removal of defendant conflict with what are commonly known as the Home Buie provisions of the Constitution, and are, therefore, invalid. We are so agreed that this argument is not well founded, that the provisions under which the governor proceeded are constitutional and valid, and that they do not violate either the letter or the spirit of those provisions which secure and guarantee the principles of local self-government, that it does not seem necessary to discuss them.

Assuming, therefore, that the removal of the defendant was

This appointment, purported to be made by virtue of a provision in the same section of the charter already referred to and which reads : “ Any vacancy in the office of president caused by removal from the borough, or otherwise, shall he filled for the unexpired term by an election to such vacancy made by a majority vote of all the members of the-, board of aldermen then in office representing said benough.” Whether that is material or not, it is conceded that the word “ election ” in this provision is equivalent to the word “appointment.” The People insist in siqoport of this action that the removal of the defendant deprived him of his office for its entire term and that he could not be appointed to the vacancy for the unexpired term under the provisions just quoted. The appellant, on the other hand, insists that such was not the case and that by such removal neither the board of aldermen was barred from appointing him nor he disqualified from accepting such appointment.

It occurs to the mind at once that if the appellant’s theory is correct and the hoard of aldermen was authorized to appoint him to the vacancy just caused by his removal, the legislature has solemnly enacted a statnte authorizing conspicuously inconsistent acts and absurd results. It has authorized the governor to try and remove a public official as unworthy to hold office and the board of aldermen to select him forthwith as a proper person to fill the resulting vacancy. It has provided that the action of one branch of the government forthwith may he nullified by that of another; that a public official who has been punished for inefficiency and maladministration of his office may be reimbursed for his loss by appointment to the very office of which he has been deprived and that the public service, supposed to be safeguarded and benefited by his removal, may be demoralized by his immediate reinstatement: In effect it has repealed the provision in the charter providing for removal of officials for

Such results would so offend against the principles of an orderly and efficient administration of government as well as those of ordinary common sense that no one would be likely to defend them as a product of wise legislation. But it was urged by the learned counsel for the appellant on the argument that neither his client nor the courts are responsible for ill-considered legislation and that unwise legislative enactments do not justify unauthorized judicial amendments. If the legislature has actually ordained that such results as these should be permitted, their action is final. But the principle is equally true that the obligation rests on the courts to assume that legislation was not intended to beget absurdities and to exhaust the limit of legitimate construction before affixing to it any such consequences. The principles ordinarily governing the interpretation of statutes command us to favor a construction which is most agreeable to reason and justice, to consider the entire statute and to give effect to every clause and part thereof, thus securing a consistent and harmonious whole, and to avoid a construction which would leave any provision of the statute without effect, or which would result in a virtual repeal by implication of one provision by another. It is, however, urged that such familiar rules are not here applicable; that if the statute is so construed as to prohibit the appointment of appellant, it must be because there is read into it by implication a disqualification after removal to hold office, and that such disqualification is in the nature of a fine, forfeiture or penalty and not to be readily implied. This consideration does not appear to be necessarily involved.

The decision of this case, it would seem, may be rested on the construction of the clause giving power to the board of aldermen to fill the vacancy caused by appellant’s removal, rather than on any implication in the one authorizing removal, and if this is so, there will not be involved primarily and properly any question of appellant’s disqualification for or forfeiture of the right of appointment to the vacancy. The question will

If the proprietor of a business organization should direct one foreman to investigate the conduct of a workman and discharge him if found dishonest or incompetent, and should at the same time authorize another foreman to hire some one to fill the vacancy thus arising, I suppose this latter authority would always and reasonably be construed as permitting the employment of some new competent man and never as meaning the immediate reinstatement of one just dismissed for cause.

But if we consider this case from the standpoint chosen by appellant and assume that its decision is dependent on the construction of the removal clause and that in order to succeed the Beople must maintain the proposition that appellant’s removal deprived him of his office for its entire term and, therefore, of the right to be appointed to the vacancy although such result was not specifically expressed, I see no reason to shrink from this test or to be doubtful of the end to which it will lead.

It is of course plain that the legislature intended that the proceeding should be a serious one and an effective method of getting rid of unfit public officials. It is equally clear and will donbless be so conceded in anything which may be said or written on the other side of this question, that this purpose will be frustrated and the administration of the law turned into a farce if under it an official may be immediately reappointed and a removal turned into a mere temporary suspension. In order to avoid such a result and keeping in mind the purpose of the statute we are justified, in my judgment, in construing the removal for which it provides as meaning a permanent and lasting ouster for the entire remaining term of the incumbent from the office which he has been filling and whose obligations he has been found unable or unwilling to discharge. As

If it should be assumed, as argued by appellant, that this construction, because it will debar him from appointment to the vacancy for the unexpired balance of his term, amounts to reading into the statute a disqualification for appointment which is not expressly written there, and, therefore, must be subjected to the rules of construction applicable to quasi penal statutes, this test will be survived.

While statutes of the character designated are to be construed with strictness in favor of a defendant, still they are subject to rules of construction which are reasonable under the surrounding circumstances, and they are not wholly exempt from the application of the principle that the means may be fashioned somewhat to the end and that the letter is to be read somewhat in the light of the purpose to be accomplished.

In Bolles v. Outing Company ( 175 U. S. 205 ) it was said : “ The statute, then, being penal, must be construed with such strictness as to carefully safeguard the rights of the defendant and at the same time.preserve the obvious intention of the legislature. If the language be plain, it will be construed

In U. S. v. Luchar ( 134 U. S. 621 ) in construing a criminal statute the court said : “ But though penal laws are to be construed strictly, yet the intention of the legislature must govern in tire construction of penal as well as other statutes, and they are not to be construed so strictly as to defeat the obvious intention of the legislature. * * * ‘It appears to me,’ said Mr. Justice Story, in United States v. Winn, 3 Sumner, 209, 211, 1 that the proper course, in all these cases, is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes iix the fullest manner the apparent policy and objects of the legislature.’ ”

It is said by Mr. Sedgwick in his work on Statutory and Constitutional Law (2nd ed. 282): “ The rule that statutes of this class are to be construed strictly, is far from being a rigid or unbending oiré; or rather, it has in modern times been so modified and explained away, as to mean little more than that penal provisions, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment; the courts refusing on the one hand to extend the punishment to cases which are not clearly embraced in them, and on the other, equally refusing by any mere verbal nicety, forced construction, or equitable interpretation, to exonerate parties plainly within their scope.”

The forfeiture of rights otherwise existing will sometimes be inferred from penal statutes which do not expressly prescribe such results. Thus in Griffith v. Wells ( 3 Denio, 226 ) it was held that where a statute imposes a penalty for doing an act, such act is unlawful, although not in terms prohibited or declared to be illegal, and a right of action to recover for liquors was denied because the plaintiff had sold them in violation of a statute which only inflicted a penalty upon one selling liquors without a license, and did not in terms prohibit

Some aid in the consideration of this subject may be derived from an examination of the general statute relating to vacancies in public offices.

Section 20 of the Public Officers Law (L. 1892, ch. 681, as amended) in force when appellant was removed, provides: “Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof: * * * 3. His " (the incumbent’s) removal from office. * * * 5. His conviction of a felony, or a crime involving a violation of his oath of office.”

Thus the conviction of certain crimes and a removal from office have precisely the same effect on an official’s incumbency of office. Either event ousts him and makes the office vacant. There is no express provision in either case that his ouster shah be for the entire term and that he may not be immediately appointed to fill the vacancy caused thereby. If he can be appointed to fill the vacancy in one case, he may be in the other.

Section 117 of the Penal Code provides that the willful omission by a public officer to perform any duty of his office shall be a misdemeanor and, therefore, a conviction of such an offense would be a “ conviction of * * * a crime involving a violation of his oath of office,” and canse a vacancy. A misdemeanor is not punishable by imprisonment in state’s prison and, therefore, within section 707 of-the Penal Code, such conviction would not forfeit “ all public offices, and suspends, during the term of the sentence, all the civil rights, and all private trusts ” of the person sentenced. In other words, so far as these provisions are concerned, a person convicted of a misdemeanor would not suffer a general disqualification to hold public office, and his right to be appointed to the vacancy caused by his conviction would depend upon the construction of the statute declaring the vacancy. Is it possible that when the statute provides that conviction of a crime involving violation of oath of office

Brief attention next must be given to some arguments in behalf of appellant based on facts and reasons which are believed to be at least indirectly opposed to the foregoing views.

Our attention is called to various eases in which the legislature has affixed as a consequence to conviction for certain crimes a disqualification to hold office, and to the provisions regulating the nature of the judgment on impeachment of a public officer and which provide that the defendant either may be simply removed from office or may be removed from office and disqualified to hold and en joy a particular office or class of offices or any office of profit, trust or honor, and because of these provisions of or for express disqualification it is argued that no disqualification can have been intended in the absence of express provision and that certainly a more serious consequence should not be attached to the proceedings under review than to those of impeachment where dis- ' qualification must be expressly provided for. Independent of any. other reply to this argument, the complete answer is

It is true that it is urged that if defendant’s removal is to be construed as having the effect of barring him from appointment to the vacancy, it must be regarded as having effected a general disqualification to hold any office. That argument does not require serious attention. The defendant was tried on charges affecting his administration of a certain office during a certain term, and as a punishment he was removed from that office. Because such removal barred him from immediate appointment to fill the vacancy for the unexpired term, it ought not to be seriously claimed that it disqualified him to take some other office or to be elected to a new term of the same office, neither of which were in any way involved in his trial and from neither of which he was removed.

But lastly it is said that if the vacancy caused by defendant’s removal were to be filled by an election by the people,

There is little chance that the principles actually involved in our decision will ever practically embarrass the right of selection by the people of whomsoever they desire, including the removed official. In nearly all of the cases which might arise, the power of temporarily filling the vacancy is conferred upon some appointing power and then the people elect for a full, complete term which could not be regarded as part of the unexpired term of office from which the official had been removed, but rather as a new term and for the election to which full term he would not be ineligible because of anything said here. Thus in the case of a removal of a sheriff as of other county officials the vacancy would be filled by temporary appointment and then an election would be held for a full entire term. While the election would be primarily occasioned by a vacancy arising from removal, the election could not be regarded as held for the purpose of filling a vacancy, but rather as held for the purpose of filling another term and, therefore, under the views hereinbefore set forth, while the official who had been removed would be prevented from taking the appointment to fill the vacancy in part of his original term, he would not be disqualified from accepting an election for what was treated as a new term. I fail to see any argument against this principle in the fact that the new term created by the Constitution might commence within the period covered by the original term from which an incumbent has been repioved. That is a mere matter of constitutional or statutory provision.

The action of State of Minnesota v. Dart ( 57 Minn. 261 ) dealt with a case where a county treasurer had been removed from office for malfeasance. Pending his suspension under charges and his final removal he resigned and thereafter and before his removal he had been appointed by the board of county commissioners to the vacancy caused by his resignation. The court held that his eligibility for the office during the remainder of the term for which he had originally been elected was involved in the removal proceedings and that having been removed on charges he was rendered ineligible for appointment to the vacancy, and that he could not avoid this result by a voluntary resignation pending his trial.

In State of Kansas ex rel. Coleman v. Rose ( 74 Kan. 262 ) it was held that where a mayor had been removed from his office on conviction of official misconduct he could not he re-elected to fill the vacancy caused by such removal. It is trae that in this case the judgment removing him expressly ousted him for the entire original term, but the court in making its decision affirmed the proposition that this provision for removal for the entire term was not essential to its decision ; that the removal under the circumstances without such special provision operated to deprive him of his office for the entire term during which he was removed.

The cases of State of lowa v. Welsh ( 109 Iowa, 19 ) and Matter of Advisory Opinion ( 31 Fla. 1 ) are also cited as sustaining the People’s position, and it is true that the opinion at least in the latter case does have that effect.

In the case of State ex rel. Tyrrell v. Jersey City ( 25

I find nothing decided by the court and nothing written by Judge Cullen in People ex rel. Devery v. Coler ( 173 N. Y. 103 , 112), urged upon our attention, which conflicts with the conclusions which have been reached. That case considered a statutory provision that the police commissioner of the city of Hew Y orle “ may, whenever in the j udgment of the mayor of said city or the governor the public interests shall so require, be removed from office by either, and shall be ineligible for reappointment thereto.” Judge Cullen was of the opinion that the provision rendering any incumbent who might be removed from the office of police-commissioner ineligible for reappointment was unconstitutional, and this view was entertained because such disqualification was “ of the most arbitrary character,” since the incumbent might be removed without those charges or that hearing which are required in the present case, and for that reason a removal did not involve any reflection on the

Passing beyond the decisions of courts, the attempt has been made to sustain the views urged in behalf of appellant by reference to the action of legislative bodies in passing on the cases of those who had been re-elected to fill vacancies caused by their expulsion and much importance has been given to the action of the English House of Commons in the Wilkes case. Wilkes was expelled for an offense of a political nature — a seditious libel — which does not appear to have been committed in any official capacity or to have involved personal turpitude or misfeasance in office, the House of Commons exercising a very broad power to expel for any cause which in its judgment unfits a member for parliamentary duties. (Story on Const. § 838.) It was at first determined by the House of Commons that this expulsion rendered Wilkes ineligible for election to fill the vacancy caused by his expulsion, but this action wTas subsequently rescinded. If necessary, it would seem that a substantial distinction might be drawn in resulting effects between a case of expulsion by a legislative body exercising very comprehensive jurisdiction over its own membership for political or other reasons not amounting to betrayal of official duties and where there may be no hearing and a case where the removal is based solely on official misfeasance and only occurs after a hearing. But it is unnecessary to consider this here for the legislative doctrine and practice adopted by the House of Commons in the Wilkes case if considered applicable to a case of expulsion for official misfeasance has been fairly rejected by our national House of Representatives upon facts which make the latter’s action a basis of very pertinent argument here.

In 1870 expulsion proceedings were instituted against one Whittemore for alleged sale of appointments to the naval and military academies. Pending such proceedings the accused resigned from his office, and he was then at a special election chosen to fill the vacancy caused by such resignation. When

House for crime. It was this feature of. crime which distinguished this case from those of Messrs. Giddings, of Ohio, and Brooks and Keitt, of South Carolina, who after receiving the censure of the House, had resigned their seats, and after re-election had been admitted to the House. The case of Mr. Matteson, of Hew York, who had been censured, was also different, because he had returned to a Congress succeeding that in which he had been censured, and which had no jurisdiction of the offense committed against its predecessor.” There is nothing in these remarks which does or can alter the fundamental facts directly involved in the action of the House of Representatives. These were that Wliittemore had been guilty of official misconduct; that proceedings were instituted for his expulsion and which he escaped only by resigning; that it was held that he could not escape the consequences of his

It is especially significant, as destroying the authority of the Wilkes case as an authority in legislative practice in this country, that it was cited in debate as an authority against the action then being taken, and its doctrine rejected. (Hinds’ Precedents of the House of Representatives, vol. 1, p. 487; vol. 2, p. 830, etc.) And in the debate full recognition was taken of the distinction between the Whittemore case and cases where members resigning after mere censure for causes political and not involving misfeasance had been re-elected, and also cases where the re-election had been to a Congress succeeding the one at which the member had been punished. In view of this action by one' branch of our highest legislative body, statements and opinions which have been cited of various constitutional and historical writers based on the doctrine of the Wilkes case seem to lose their value as authorities in this country.

The order should, be affirmed, with costs, and question certified answered in the affirmative.

Edward T. Bartlett, J. I concur in the opinion of Judge Hiscook.

This case on the conceded facts presents a single question of law, viz.: Can the defendant, John F. Ahearn, who was duly elected borough president of the borough of Manhattan by the electors of said borough for the term of four years, and duly removed from that office by the governor of the state, be reappointed by the board of aldermen of the city of Hew York, representing the borough of Manhattan, to fill the vacancy thereby created for the remainder of the unexpired term of about two years Í

The proposition of the appellant briefly stated is, in substance, that, as there is no affirmative provision in the Constitution or statute forbidding the appointment of a removed official to serve for the remainder of his unexpired term, the défendant is now in lawful possession of the office from which the governor removed him, by virtue of the action of the board of aldermen of the city of New York appointing him to fill the vacancy caused by his removal.

A borough president is originally elected by the electors of the borough, while a vacancy is filled by a so-called “election” made by a majority vote of the board of aldermen representing the borough. (Charter, § 382.) The word “ election ” as used in this connection is the equivalent of appointment. (Sturgis v. Spoford, 45 N. Y. 446 .) It is to be observed that the question of election by the people is not involved in this litigation.

If the proposition advanced on behalf of the defendant is sound, then the proceedings before the governor and the removal of the defendant from office were ill advised and a waste of time and money. There is, however, in my judgment, a complete answer to the defendant’s piosition.

The charter of Greater New York (§ 382) provides that a borough president may be removed in the same manner as the mayor; by section 122 the" mayor may be removed by the governor in the same manner as sheriffs. Article 10, section 1, of the Constitution deals with sheriffs, clerks of counties, district attorneys and registers. The closing sentence of this section reads as follows: “ The governor may remove any officer in this section mentioned, within the term for which he shall have been elected; giving to such officer a cop>y of the charges against him, and an opportunity of being heard in his defense.” The removal of this defendant by the governor, “ within the term for which he was elected,” involved, under the charter, the exercise of a power conferred upon him by

The vital question is whether the distinguished lawyers who framed the Constitution were dealing with substance or shadow ; whether they intended that an unworthy official should be removed for the balance of the term “for which he shall have been elected; ” or did they contemplate that he might be reinstated in his position, immediately after the governor’s adverse decision, by the board of aldermen, of which body he was a member at the time of his removal ?

This provision of the Constitution should be reasonably construed in view of the object sought to be accomplished. The manifest purpose, was to provide a summary way for removing from office for the remainder of his term an unworthy official, and the governor was selected as the representative of the people to exercise this important power after the defendant had been afforded a reasonable opportunity to be heard in his defense. This power to remove was undoubtedly limited in its exercise to the balance of the term to prevent any interference with the right of the borough electors to elect a successor after the expiration thereof.

The question now presented is whether the governor can duly remove the defendant from office on a certain day and the board of aldermen reinstate him the following morning. As was well suggested on the argument, if the defendant can be his own successor by appointment, his removal is plainly nugatory and meaningless. It needs no extended argument to establish that such a construction fails to give due force and effect not only t-o the definition of “ public

The power of removal vested in the governor is a meaningless provision unless “public office” implies more than mere title, power and compensation. Mr. Burrill, in his Law Dictionary, under the head of “ office,” gives this definition: “ The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, rights and powers, as well as that of duty ; a public station or employment; an employment confirmed by appointment of government.” This statement is cited with approval in People ex rel. Henry v. Nostrand ( 46 N. Y. 375 , 381). In Matter of Hathaway ( 71 N. Y. 238 , 244) Judge Allen said : “ Public office, as used in the Constitution, has respect to a permanent trust, to be exercised in behalf of the government, or of all citizens who may need the intervention of a public functionary or officer, and in all matters within the range of the duties pertaining to the character of the trust. It means a right to exercise generally, and in all proper cases, the functions of a public trust or employment, and to receive the fees and emoluments belonging to it, and to hold the place and perform the duty for the term and Toy the temore prescribed l)\y law.” (Italics not in original.) Many other authorities might be cited to this effect. The office to which the defendant was elected by the electors of the borough of Manhattan was the right to exercise all the powers and receive the emoluments of president of that borough for the term of four years.

I vote for affirmance.

Gray, J. The question may be considered close and debatable; but I am of the opinion that the statute should receive that liberal construction, which will effectuate the purpose to be fairly attributed to the legislative enactment.

That the People might, thereafter, nominate and re-elect him to a new and complete term of the same office does not affect the conclusion. The implied right to hold office, as an attribute of citizenship, is not negatived by holding that the official removed from office, for maladministration, under authority of a statute, may not be reinstated in his office by an exercise of the power of another department of the municipal government. The rights of citizens are subject to such limitations as the people may see fit to impose in the interests of good government and, therefore, of the public welfare. Such a restriction, as is now under consideration, consequent upon removal from office for official misconduct, is not an unreasonable one and I think it is fairly inferable from the provisions of the statute.

I, therefore, think that Judge Hiscock is right in the conclusions that he has reached and I will agree with him and vote for the affirmance of the judgment appealed from.

(dissenting). 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. Bocal 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 Baw (sec. 23) and the authority of the governor to act under these statutes has never been challenged.

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 seditions libel,” which undoubtedly was its prerogative. On the 16th of the same month lie 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 disqtialifica

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 oflSce, 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

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

Mor 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 j but executive. (Matter of Guden, 171 N. Y. 529 .) There-1 fore, if there is any distinction to be drawn from the effect of a removal in judicial proceedings, that distinction is immaterial here. j

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

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.

The principle underlying the general doctrine is : “ Where no limitations are prescribed, however, the right to hold public office under cur political system is an implied attribute of citizenship, those and those only who are competent to par. ticipate 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: “ Eor 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

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 bo reversed and the judgment of the Special Term affirmed, with costs in both courts.

Hisoook, 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.