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§2, chapter 5, of the former vests in the House of Representatives "the sole power of impeachment," and in the Senate "the sole power to try all impeachments," and when sitting for this purpose the Senate "shall be on oath or affirmation"; that when the President of the United States is tried, the Chief Justice shall preside; that the concurrence of twothirds of the members present shall be necessary to a conviction; and in §3, chapter 6, that judgment "shall not extend further than to removal from office and disqualification to hold any office of honor, trust, or profit, under the United States." If we substitute the word "governor" for "President," we find almost identical provisions in the state constitutions, except that in New York and some other states the judges of the Court of Appeals sit with the senators as a court for the trial of impeachments. When the governor is being tried, the lieutenant-governor, being an interested party, is not allowed to sit in the court. After articles of impeachment have been filed against a judicial officer, he is not allowed to exercise his office until he shall have been acquitted. The case of Andrew Johnson is the only attempt to remove a President of the United States by impeachment, and it is fortunate that in this case a sense of duty and respect for law triumphed over intense partisanship. As a means for removing judges, impeachment has been pronounced by many a dead letter, but it was very effective in the case of Judge Archbald of the Commerce Court.

104. Recall. The method of removing public officers by a popular referendum denominated the recall

has already been considered as applied to judges; and most of the reasons there urged in opposition to it hold as regards other than judicial officers, though not with the same force.

105. Resignation. The resignation of a public officer may be either express or implied. When the former it may be either oral or written, and need not be under seal even though the statute requires the appointment to be under seal.32 When the resignation is by implication, as in the case of accepting an incompatible office, or where residence is necessary, a permanent change of residence, the right to the office may be regarded as forfeited; and the acceptance of the resignation may also be by implication, as by regarding the office vacant and appointing or electing another to the office.33 In order to warrant an implication of resignation from non-user, it must be total and complete: 3 "Non-user may be so greatly prolonged, especially where it is accompanied with other acts, as to indicate conclusively an abandonment of the office; and in that case no removal or judicial declaration is necessary.

34

1935

106. Acceptance of resignation.-Whether the resignation is express or implied, the common law rule is that it must be accepted by the appointing power in order to sever the official relation; 36 but as stated above, the acceptance may be either express or

32 Gilbert v. Luce, 11 Barb. 91 (N. Y.).

33 Phillips v. Boston, 150 Mass. 491.

34 People v. Green, 5 Daly 254 (N. Y.); Page v. Hardin, 8 B. Monroe 648 (Ky.).

35 Throop, Public Officers, § 422.

36 Regina v. Lane, 2 Ld. Ray. 1304 (Eng.).

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by the appointment of another to the office. The American cases are conflicting. In United States v. Wright, Justice McLean laid down the doctrine that a public officer may resign at pleasure, without the consent of the appointing power. In his opinion in the above case, which was an action in the circuit court on the official bond of a collector of internal revenue in which the defense was that the breach occurred after the collector had presented his resignation, the Justice said: "There can be no doubt that a civil officer has a right to resign his office at pleasure, and it is not in the power of the executive to compel him to remain in office. It is only necessary that the resignation be received to take effect, and this does not depend upon the acceptance or rejection of the resignation by the President. And if Fogg had resigned absolutely and unconditionally, I should have no doubt that the defendant could not be held subsequently as his surety." This doctrine has been followed by the courts of New York, Indiana, Iowa, California, Nevada, Virginia, and Nebraska. But the courts of the other states refuse to follow this doctrine, and it has been overruled by the United States Supreme Court in the case of Edwards v. United States.38 After reviewing the English decisions, Justice Bradley, delivering the opinion of the court in this case, says: "In this country, where offices of honor and emolument are commonly more eagerly sought after than shunned, a contrary doctrine with regard to such offices and, in some states,

37 1 McL. 509 (U. S.).

38 103 U. S. 471.

with regard to offices in general, may have obtained; but we must assume that the common law rule prevails unless the contrary be shown." Which view will be taken, depends of course upon the view taken of the obligation to accept a public office. Those who answer this in the affirmative are of course driven to the conclusion that a resignation does not sever the official relation until accepted by the proper authority for it would be a travesty upon logic to say that one may be compelled by mandamus to accept an office, if the officer may immediately thereafter tender his resignation and by so doing render the office vacant.

BIBLIOGRAPHY.

Constantineau, A., De Facto Officers; Mechem, Floyd R., Law of Public Officers; Throop, M. H., Public Officers; Wyman, B., Public Officers.

PARLIAMENTARY LAW

BY

JOHN H. PERRY, A.M., LL.B.*

CHAPTER I.

INTRODUCTION.

1. Preliminary statement. Parliamentary law may be divided into two parts, the equivalents of common and statutory law.

Common parliamentary law, in its origin, was founded upon the practice of the English Parliament but has little at present, except its name, to suggest that origin.

Before Jefferson, early in the last century, wrote his manual, American parliamentary law was principally a collection of English precedents, which were admired because they were precedents and not because they were admirable. Parliamentary law cannot yet be said to be perfected, but it has acquired a practical efficiency beyond which little is to be desired or expected. Of course many questions still arise about which authorities seem to differ and the practice to vary. These, however, are, in the main, non-essential, and this lack of petrification is characteristic of living, as distinguished from dead, systems in all fields of learning.

* Lecturer on Parliamentary Law, Yale University.

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