5

8

The following acts have been held such breaches of official duty as to constitute a cause for removal from office: demanding and receiving illegal fees; receiving bribes; the persistent refusal by a county clerk to perform his duties as clerk of the board of county commissioners, although he believed that the action which they contemplated was illegal; the persistent refusal by a county attorney to prosecute violations of the liquor law, although he based his refusal upon his belief that the sentiment of the community was opposed to the enforcement of the law; the repeated removal of government landmarks by a county surveyor, although he claimed the right to do so for the purpose of rectifying the original survey; the use by superintendents of the poor of their official power and the poor fund to compel the recipients of their favor to vote under their dictation; the failure by the same officers to refund to the treasurer money repaid them by persons to whom they had given temporary relief; the action of the same officers in drawing orders on the county treasurer in favor of persons named therein, collecting the drafts themselves and compelling the payees to take from them goods at exorbitant prices in payment of the drafts; 10 the act of a county clerk in knowingly permitting a material alteration of his official records; 11 the certification by a board of State canvassers of an erroneous statement of the votes upon a constitutional amendment prepared by their clerk and not examined by them,12 and the false certification of fictitious records by a county clerk 13 without proof of corruption in either case; the false certification by a register of deeds over his official signature that he had examined a title and found it unencumbered although no statute authorized a certificate by him.14 A statute providing for the removal of a public officer for habitual intoxication or for voluntary intoxication in business 3 Brackenridge v. State, 27 Texas App., 513.

State v. Jersey City, 1 Dutcher, N. J. Law, 536.

5 State v. Allen, 5 Kansas, 213.

6 State v. Foster, 32 Kansas, 14;

S. c. 112 U. S., 201.

7 Minkler v. State, 14 Nebraska, 181. 8 Gager v. Board of Supervisors of

Chippewa County, 47 Mich., 167.

9 Ibid.

10 Ibid.

11 Commonwealth v. Barry, Hardin (Ky.), 229.

12 Attorney-General ex rel. Rich v. Jochim (Mich.), 58 N. W. Rep., 611.

18 Commonwealth v. Chambers, 1 J. J. Marsh (Ky.), 160.

14 State v. Leach, 60 Maine, 58; s. c. 11 Am. Rep., 172.

hours was held constitutional as providing for a removal from office for incapacity.15 Where an officer assumed duties which he was not required to perform, it was held that he might be removed for want of skill in their performance.16 It has been said that it is "proper to separate the character of the man from the character of the officer"; that " a very honest man may make a very indifferent clerk, and a man despicable for his vices may make an excellent clerk." 17 It was held in Kentucky, that the intoxication of a county judge while in the performance of his official duties when issuing letters of administration was not misfeasance in office,18 by a general term in New York, that the use of obscene and abusive language by a police-captain when off duty was not illegal, corrupt or otherwise improper conduct" for which he could be removed; 19 but it has been held misfeasance in office for a policeman to attack with his official club a private citizen when off duty and seeking redress for a private wrong.20 It has been held that an officer cannot be removed because he was ineligible or disqualified at the time of his appointment, the remedy being a quo warranto; 21 nor for an act previously performed, such as bribery of a voter before his election, which might be a ground for contesting the election,22 unless the act was a breach of official duty committed while in the same office during an immediately precedent term; 23 nor for failure to execute a bond required by law; 24 nor in the case of a postman for failure to attend the great court on four occasional meetings, and a meeting upon a stated day.25

66

15 McComas v. Krug, 81 Indiana, 327; s. c. 42 Am. Rep., 135. See also State v. Gilmore, 20 Kansas, 651; s. c. 27 Am. Rep., 189. But see Commonwealth v. Williams, 79 Ky., 42; s. c. 42 Am. Rep., 204.

16 People ex rel. Campbell v. Campbell, 82 N. Y., 247.

17 Commonwealth v. Chambers, 1 J. J. Marsh (Ky.), 108, 160, per Underwood, J.

18 Commonwealth v. Williams, 79 Ky., 42; s. c. 42 Am. Rep., 204. Contra, King v. Mayor and Burgeses of Glocester, 3 Bulstrode, 189; King v. Taylor, 3 Salkeld, 231; Commonwealth v. Alexander, 4 H. & M. (Va.), 522.

19 People ex rel. Lee v. Doolittle, 44 Hun. (N. Y.), 293.

20 Oliver v. City Council, 69 Ga., 165; People ex rel. Hayes v. Carroll, 42 Hun. (N. Y.), 438.

21 Commonwealth v. Lancaster, 5 Litt. (Ky.), 161; People ex rel. Clapp v. Board of Police, 72 N. Y., 415; Ellison v. Raleigh, 89 N. C., 125.

22 Commonwealth v. Shaver, 3 Watts & S. (Pa.), 338. People v. Merritt, see supra, § 93, note 33.

23 Supra, § 93, note 32.

24 Hyde v. State, 52 Miss., 665; Commonwealth v. Slifer, 25 Pa. St.,

23.

25 Rex v. Richardson, 1 Burr, 517,

§ 96. Removal of Judges.

Analogous to impeachments are proceedings for the removal of judges. In England judges can be removed by the crown upon an address by both houses of Parliament.1 There is no similar provision in the Constitution of the United States, which gives no remedy except impeachment for the misbehavior of a judge. The constitutions of several of the States have provisions similar or analagous to the English practice. In Massachusetts, judges may be removed by the governor and council or the address of both houses of the legislature.2 It has been the usual practice in Massachusetts to give the petitioners for the removal and the respondent a hearing, with permission to be represented by counsel and to offer evidence before a joint committee of both houses. In New York,

"Judges in the Court of Appeals, and justices of the Supreme Court, may be removed by concurrent resolution of both houses of the Legislature, if two-thirds of all the members elected to each house concur therein. All judicial officers, except those mentioned in this section, and except justices of the peace and judges and justices of inferior courts not of record, may be removed by the Senate, on the recommendation of the Governor, if two-thirds of all the members elected to the Senate concur therein. But no removal shall be made, by virtue of this section, unless the cause thereof be entered on the journals, nor unless the party complained of shall have been served with a copy of the charges against him, and shall have had an opportunity of being heard. On the question of removal, the yeas and nays shall be entered on the journal.

Similar provisions exist in nearly all the other State constitutions, and a number of State judges have been thus removed. The proceedings are usually judicial in their nature; but no case has

544. See on the subject of this section Mechem on Public Officers, book ii, ch. vi.

§ 96. 1 12 and 13 W. III.

2 Constitution

Ch. III, Art. 1.

of Massachusetts,

3 New York Constitution, Art. VI, Sec. 11. Similar provisions may be found in most State constitutions.

4 An account of a number of these proceedings may be found in the Appendix to this volume, infra. The Pennsylvania Senate held by a party vote in 1891 that it had no jurisdiction to remove an officer for an impeachable offense before his conviction upon impeachment or indictment. See the proceedings against Boyer and Me

occurred where an attempt has been made by the courts to review them for irregularity by certiorari or otherwise.

The most remarkable cases were two removals by State legislatures of judges for obedience to the Federal Constitution: that of Judge Loring in Massachusetts for the enforcement of the Fugitive Slave Law; and that of Judge Hindman in West Virginia for following a decision of the Supreme Court of the United States which overruled a decision of the State court of appeals and held a statute unconstitutional which disqualified attorneys for participation in the Rebellion.5

§ 97. Preliminary Proceedings on Impeachments. An impeachment is usually preceded by the presentment to the House of Representatives of charges against an officer, either by a message from the President, the petition of a private citizen,2 or the speech of a member of the House. Thereupon a committee is usually appointed to consider and report upon the charges, which takes testimony concerning the same. If the accused demands a hearing before the committee, that is usually accorded to him, although the committee has discretionary power in that respect. If the committee determines that the officer should be impeached, it makes a report containing a statement of the charges and a recommendation of a resolution that he be impeached therefor. On the adoption of the resolution by the House a committee is appointed to impeach him at the bar of the Senate, to state there that articles against him will be exhibited in due time and made good before it, and to demand that it take order for his appearance to answer to the impeachment. Thereupon, the Senate usually refers the resolution to a committee appointed for that purpose. This committee reports a preamble reciting the proceedings on the part of the House before the Senate; and a reso·lution: “that the Senate will, according to its standing rules and 8 As in Chase's Case (Smith's ed.),

5

Camant. Compare John Quincy Adams' Diary, vol. i, p. 255. The weight of authority, however, supports such removals. See Appendix, infra.

5 See Appendix, infra.

§ 97. 1 As in Pickering's Case, Annals of Congress, 1802-1803, p. 460. 2 As in Peck's Case, p. 1.

orders in such cases provided, take proper order therein, (upon presentation of the articles of impeachment), of which due notice will be given to the House of Representatives"; and that the Secretary of the Senate acquaint the House therewith; which is accordingly adopted.

§ 98. Articles of Impeachment.

The articles, as the charges are termed, are then prepared by a committee of the House of Representatives, and after they have been reported to and approved by the House, they are presented in a like manner to the Senate. It is customary to have them signed by the speaker and attested by the clerk of the House.

In Edmonds' case, the constitution of Michigan provided that no impeachment should be tried by the State senate until after the final adjournment of the legislature.1 A statute was passed authorizing the State house of representatives to empower the managers of an impeachment "to prepare and present articles of impeachment in accordance with the resolutions of said House."2 It was held against the objection of the respondent, which was ably argued, that the statute was constitutional and that articles prepared and presented to the senate by the managers after the house had passed a resolution of impeachment were sufficient although not presented to the house.3 In Barnard's case, the New York constitution provided that "The assembly shall have the power of impeachment by a vote of the majority of all the members elected."4 The assembly journal showed that the resolution of impeachment passed by the constitutional majority, but was silent as to the number who voted to adopt the articles, and did not set forth the articles at length. The articles were not authenticated by the signature of the speaker. The respondent filed a plea, that the articles were not adopted by a majority of the members elected to the assembly, to which the managers replied traversing this allegation. Against the objection of the respondent, oral testimony was admitted to prove that the articles were adopted by a majority vote and to identify the articles pre

• Belknap's Impeachment Trial, p. 8. § 98. 1 Constitution of Michigan, Art. XII, Sec. 3.

2 Michigan, Act of March 30, 1872.

8 Edmond's Impeachment Trial, pp. 86-184, 188, 1866, 1869-1879.

4 New York Constitution of 1846, Art. VI, Sect. 1.