therefore refer itself to the judicial department of the government, if not otherwise disposed of by the constitution or the laws. . If it is conceded that the constitution is not to be considered as prescribing exclusive modes and tribunals for the removal of officers, still the function of trial and judgment is essentially judicial, and the function of prescribing the modes of proceeding and the cases to which they apply is legislative. And it would seem, therefore, that any remaining power on the subject should result rather to the legislative and judicial departments, than to the executive, except so far as the legislature might refer the case of any particular officer to the action and judgment of the governor, or to some other officer or tribunal.”

§ 55. Power to remove for cause not included in grant of executive power. Further, in the above case, the court said: "A power, the obvious and necessary tendency of which is thus subversive of the fundamental principles of official tenure and responsibility clearly established by the constitution, must be regarded as inconsistent with that instrument, and cannot be sustained upon any mere inference as to the extent of the executive power granted to the governor, nor upon any idea of convenience or fitness, however developed or confirmed by experience. If we go out of the constitution and laws for ascertaining the executive power, it would be difficult to find its limits. It is in our government just what the constitution and laws have made it. It is not the power of using all means which may be deemed expedient for ensuring a due execution of the laws, but the power of doing such acts and using such means, at the discretion of the officer, as

the constitution and laws have placed in his hands for securing the due execution of the laws and the regular operation of the government. The governor is responsible for the selection of competent and faithful officers. But he is under no further responsibility for the faithful discharge of their duties but as he may be authorized by the constitution or laws to direct and control them. The duties of public officers, and especially of the secretary, are prescribed by the laws, and to be performed by the officer under his responsibility to the laws And if it be conceded that the relation of the secretary to the governor, as the recorder and attester of his acts, would render it highly convenient that the governor, having full opportunity of knowing whether these and other duties of the secretary are performed with the requisite diligence and skill, should have the power of removing him for failure or defect in these or other particulars; and if it were further conceded that such a power, or even the power of removal at will, would not be inconsistent with the object of placing such an officer near the governor, as evidenced by the requisition that he shall communicate his register, etc., to the legislature when required (as to which we need not decide), still the mere inference, founded on notions of convenience and fitness, must, as already shown, yield to the higher principles of the constitution."

§ 56. Removal for cause by courts. The power of courts to remove from office, except on conviction of crime, is principally statutory. The proceedings are somewhat in the nature of impeachment proceedings (4).

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.

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.

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