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Many of the courts have held that they are in the nature of criminal actions and have applied such rules of criminal law as that the guilt of the accused must be established beyond a reasonable doubt (5); while others have held that at least in matters of review and pleading (6) they are to be treated as civil actions. The specification of causes for removal precludes the court from removing for other cause.

§ 57. Impeachment. Impeachment is the old constitutional method of removal for cause derived from English precedents, but it is seldom used. The provisions in many of the state constitutions are similar to that of the Federal Constitution which provides that all civil officers of the United States shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors (7); that the lower house shall impeach and the upper house try (8); and that judgment shall not extend further than to removal from office and disqualification to hold office under the United States, but that the party convicted shall, nevertheless, be liable to indictment, trial, judgment, and punishment according to law (9).

§ 58. Removal for cause by executive act. But it is very common for the constitution or the laws to provide for removal for cause by the executive. "Statutes authorizing the removal of public officers for cause usually

(5) State v. Tally, 102 Cal. 25.

(6) In re Curtis, 108 Cal. 661; in re Burleigh, 145 Cal. 35.

(7) Art. II, sec. 4.

(8) Art. I, sec. 2, § 5, and sec. 3, § 6.

(9) Art. I, sec. 3, § 7.

declare what cause shall be deemed sufficient. This cause is often defined with much exactness, but more frequently general terms are used such as official misconduct, maladministration in office, breach of good behavior, wilful neglect of duty, extortion, habitual drunkenness, and the like" (10). Notice of the charges and opportunity to be heard in his defense must be given the accused, and where the causes are not specified the courts will determine whether the grounds of removal constituted "legal cause." It is a general rule that when a statute specifies certain causes of removal, it impliedly excludes removal for any other cause and it was urged that this rule should be applied in a case where a general appraiser had been removed by President McKinley without charges (11). As the act of Congress simply stated that such an officer might be removed for inefficiency, neglect of duty, or malfeasance in office, it was claimed that under the above principle the removal was improper; but the supreme court held that as it had become well settled in absence of constitutional or statutory restrictions that the President had the power of removal, the right would exist if the statute contained no word on the subject and it would require plain language to take it away. The court said that if the removal was for one of the causes specified, notice and hearing were necessary, but that removal without notice or charges raised a conclusive presumption that the removal was not for one of these causes and therefore could not be regarded as the least im

(10) Mechem, Public Officers, sec. 457.

(11) Shurtleff v. United States, 189 U. S. 311.

putation on the removed officer's character for integrity or capacity.

§ 59. Removal on charges and after hearing. A distinction was made between removal for cause, and removal on charges and after hearing, in the case of In re Guden (12). A sheriff had been removed by the governor after notice and hearing, but the former claimed that the charges did not constitute "good cause" and asked the court to compel the appointee to deliver to him the books of the office. Where the removal can be only for good cause the general rule is that the court will go into the question as to whether the charges are sufficient, but the court said that in its nature the power of removal was executive, that the suggestion that removals should be given the character of judicial proceedings had been repudiated in the constitutional conventions, and that accordingly the power to decide whether Guden should be removed from the office of sheriff and the responsibility for a right decision rested solely with the governor. Chief Judge Parker said: "The suggestion that, if the courts do not interfere, some chief executive may proceed in disregard of those principles which courts of impeachment 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. The attempt to safeguard the rights of the official or the clerk should not be carried to such an extent as to override the

(12) 171 N. Y. 529.

interests of the public, for the public business is of paramount importance."

§ 60. General power to remove: State practice. Where the general power to remove is given, the removing power is not subject to the control of the courts nor does notice or hearing have to be given. The desirability of this general power is seen from the quotation from Chief Judge Parker's opinion given above, but its express grant is comparatively rare so that resort must be had to implication and as we have seen in Field v. People (§§ 32-33, above) the supreme court of Illinois held that the constitutional provision that the executive power of the state shall be vested in the governor conferred no specific powers on him and that for the executive to have right of appointment or removal it had to be specifically conferred. This view was also the one expressed by Chief Justice Marshall of Kentucky (§§ 5455, above) and it has been generally followed in the states.

§ 61. Same: Federal practice. The practice in the Federal government, however, has been different. In the case of Parsons v. United States (13) a district attorney was removed by the President and his successor appointed by and with the advice and consent of the senate, but he claimed that as his appointment had been for four years he had a legal right to it for that time. The supreme court reviewed the history of the right of removal in the Federal government, showed how the first session of Congress under the Constitution had considered this power to lie with the President, referred to the

(13) 167 U. S. 324.

controversy arising out of the removal of Secretary of the Treasury Duane by President Jackson and the concession of Daniel Webster that the practice of the government had settled that power in favor of the President, cited numerous opinions of attorneys-general, and finally referred to the struggle between President Johnson and Congress, the enactment of the tenure of office acts by Congress limiting the power of removal, and their subsequent repeal. The practice for over a hundred years, the court considered, left the power of the President to remove, at least in absence of statutory restriction, no longer open to question. From this it results that the President is really responsible for the enforcement of the law, whereas in the states, as intimated by Chief Justice Marshall of Kentucky, that responsibility lies principally with the courts. The far reaching importance of this power in the control of administration will be seen later (§ 94, below).

§ 62. Power of removal incident to power of appointment when tenure of office not fixed by law. "Offices, even though appointive, are usually created to be held for a definite time, as for a given number of years, or during life or good behavior. In some cases, however, no such tenure is fixed by law, and the officer must hold, either expressly or impliedly, at the will or pleasure of the appointing power, or his tenure must be indefinite and subject to no will but his own, a construction which is entirely inconsistent with the spirit of our institutions. Where, therefore, the tenure of office is not fixed by law and no other provision is made for removals, either by the constitution or by statute, it is said to be a sound and

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