a county officer leaves the county with his family, with the intention not to return, or goes to another state with the intention of there making it his home, he is held to have vacated his office.13 Voluntarily enlisting in the military service of the United States will produce the same result.14 When a maximum age limit is provided, as for army officers, the statute may provide that the passing of this limit will operate automatically to create a vacancy or merely make it a sufficient cause for retirement, as in the case of justices of the Supreme Court of the United States. Where a public officer becomes insane, this does not, apart from statutory provision, render the office vacant, but is of course sufficient cause for removal, just as it would, if known in advance of his taking the office, have been sufficient to disqualify him. This is in accord with what has been called the "common political law."'15 In case of officers removable only by impeachment, where the only grounds of impeachment are "high crimes and misdemeanors," the question of the removal because of the officer's becoming insane is a very interesting one. The question arose in the case of Justice Pickering, but, before action was taken, he died. Where the appointing power has also the power of removal, the question is a simple one, as insanity is recognized as sufficient cause for removal.

99. Removal at will.-The power to appoint does not necessarily carry with it the power to remove.

13 Mechem, Public Officers, § 439.

14 State v. Allen, 21 Ind. 517.

15 Cushing's Leg. Assemblies, § 56.

This is of course the case where other provision is made for removal, as in the case of federal judges, who are appointed by the President, but may be removed only by impeachment. It is true also of officers appointed for a fixed term. But where the nature of the service is advisory, as a member of a cabinet, or confidential, as a private secretary, the office is generally considered as one to be held at the discretion of the appointing power, and he may remove without assigning any cause for so doing. Thus, in the Matter of Hennen,16 the Supreme Court of the United States sustained the removal of a clerk by a circuit judge, notwithstanding the fact that the judge stated "unreservedly that the business of the office had been conducted promptly and uprightly and that in appointing Mr. Winthrop to succeed him, he had been actuated purely by feelings of kindness towards one whom he had long known, and between whom and himself the closest friendship had ever subsisted. And that, as his capacity to fill the office cannot be questioned, he felt that he was not exercising any unjust preference, in bestowing on him the appointment."

100. Removal for cause.-At common law, an officer was removable for cause only and was entitled to a hearing.17 Also there are decisions in this country holding that, in the absence of statutory provisions, the common law rule applies to an officer of a municipal corporation.18 Where the constitution

16 13 Pet. 230 (U. S.).

17 Baggs Case, 11 Coke 93b (Eng.); Rex v. Coventry, I Lord Ray. 391 (Eng.).

18 State v. Common Council, 9 Wis. 229.

confers upon the appointing power the authority to remove at will officers whose term is not fixed by law, this is held by implication to make removable for cause only those whose term is fixed by law.19 And where a statute requires that officers appointed for a fixed term can be removed for cause only, it cannot be evaded by a failure to fix the term, whether the failure be due to design or negligence, and a removal under these circumstances, except for cause, is void.20 Where the term is during good behavior, the officer cannot, even though he misbehave, be removed without notice and hearing.21 Where "notice" is provided for in the statute, it implies an opportunity to be heard and the taking of testimony, but "explanation" does not.2

22

101. Sufficiency of cause.—Where the statute provides that an officer is removable for cause only, without specifying any particular act or omission, it has been held that the cause "is to be some dereliction or neglect of duty, or incapacity to perform the duties, or some delinquency affecting his fitness for the office. The cause assigned should be personal to himself, and implying an unfitness for the place." 23 The determination of the question of sufficiency of cause is in its nature judicial, but it is not unusual for the constitution or statutes to provide for its determination by the executive.24 So though the proceeding

19 People v. Jewett, 6 Cal. 291.

20 State v. Police Com'rs., 88 Mo. 144.

21 Page v. Hardin, 8 B. Monroe 648 (Ky.).

22 People v. Thompson, 94 N. Y. 451; also see Dullam v. Willson, 53 Mich. 392, LEADING ILLUSTRATIVE CASES.

23 People v. Fire Com'rs., 72 N. Y. 445.

24 Mechem, Public Officers, § 457.

is judicial in its nature and reviewable by certiorari, a statute vesting in the governor the determination of the question whether cause exists for the removal of county officers is not unconstitutional as conferring judicial functions upon an executive officer, since the power of removal is also political in its nature.25 Where certain causes are enumerated, this impliedly excludes the removal for other causes, and if an officer is removed without the notice and hearing required in case of the enumerated causes, it will be presumed that he was removed for other causes.20

102. Suspension.-Although the power of removal and the power to suspend are intimately related, the former does not necessarily include the latter.27 The reason for this is that when an officer is removed a vacancy is created, the filling of which may be compelled by mandamus, but this is not true of a suspension, which might thus be used for the purpose of preventing the performance of the duties of the office and so defeating the aim of the people or legislature in creating the office. As said by the Supreme Court of New Jersey in the case of State v. Jersey City:28 "Suspension from the duties of the office creates no vacancy; the seat is filled but the occupant is silenced. The charter vests no such power in the council; it would be extraordinary if it did. The power is to expel, not to suspend."

A like conclusion was reached by the Court of Appeals of New York in the case of the suspension

25 People v. Stuart, 74 Mich. 411.

26 Shurtleff v. United States, 189 U. S. 311.

27 Metsker v. Neally, 41 Kan. 122.

28 25 N. J. L. 536.

of an officer by a board authorized to remove him. Justice Peckham, delivering the opinion of the court, said: "There is nothing in the nature of the power to remove or expel which necessarily and in all cases would include a power to suspend; for in some instances the power to suspend would seem to be very different in its nature from the power to remove, and not necessarily a minor power included in the power of expulsion. Whether the power to remove includes the power to suspend must depend, among other things, upon the question whether the suspension, in the particular case, would be the exercise of a power of the same inherent nature as that of removal, and only a minor exercise of such power, or whether it would work such different results that no inference of its existence would be indulged in, based only on the grant of the specific power to reThere are decisions which conflict with this view,30 and the Supreme Court of New Hampshire, in Shannon v. Portsmouth,31 says, with a degree of positiveness bordering upon dogmatism, that "it does not seem to require any argument to show that the power to remove must include the power to suspend." But the rule laid down by the New Jersey and New York courts in the cases just cited is in accord with the weight of authority in this country.

move." 20

103. Impeachment.-Removal by impeachment is provided for in the Constitution of the United States and the constitutions of the various states. Article I,

29 Gregory v. Mayor, 113 N. Y. 416.

30 State v. Lingo, 26 Mo. 496.

31 54 N. H. 183.