Field v. People (3 Ill. 79, 1839)

Wilson, Chief Justice,

delivered the following opinion :

This case was brought into this Court by appeal. It is an information in the nature of a quo warranto, filed by John A. McClernand against A. P. Field, to know by what authority he holds and exercises the office of Secretary of State of the State of Illinois. The facts of the case are, that Field was legally appointed Secretary of State, in 1829; and has continued in the discharge of the duties of said office ever since. On the second Monday of August, 1838, Thomas Carlin was elected Governor of the State of Illinois, and on the 1st day of April, 1839, by virtue of his authority as Governor, he appointed John A. McClernand Secretary of State, in the room and place of A. P. Field, the then acting Secretary.

The question presented for the opinion of the Court, is, whether A. P. Field, the appellant, or J. A. McClernand, is entitled to the office of Secretary of State. To the parties immediately before the Court, the case is of some interest; but it derives its great importance from the fact, that the fundamental principles of the government are drawn in question. In deciding who is entitled to the office of Secretary, it becomes necessary to decide whether the Governor of this State possesses the constitutional power of dismissing from office the Secretary of State, and appointing a successor, at his will and pleasure. For, upon the validity of the Governor’s claim to this power, depends the appellee’s title to the office of Secretary of State, which he claims under an appointment from the Governor.

The case, then, resolves itself into the single question, Does the Governor possess the constitutional power of removing from office the Secretary of State, and appointing a successor, at will ?

In deciding this question, recurrence must be had to the Constitution. That furnishes the only rule by which the Court can be governed. That is the charter of the Governor’s authority. All the powers delegated to him by, or in accordance with, that instrument, he is entitled to exercise, and no others. The Constitulion is a limitation upon the powers of the legislative department of the government; but it is to be regarded as a grant of powers to the other department. Neither the executive nor the judiciary, therefore, can exercise any authority or power, except such as is clearly granted by the Constitution.

In deciding upon the powers of the Governor, it will be necessary to enquire how far the provisions of the Constitution relied upon in support of his claim of power, have received a practical exposition by the several departments of government. An exposition of the Constitution, so made, and long acquiesced in, as to the powers of the several departments and functionaries of government, must prevail, unless it can be clearly shown to be founded in error.

The political axioms of other governments, have been referred to by the counsel for the appellee. The practice of other governments analogous to ours, in the objects of their creation, in their form, and in their constitutional grants of executive power, are certainly entitled to respect, in settling the unsettled practice of ours. But it must be obvious that the practice and maxims of governments widely different from ours in their character, and the theory and principles upon which they are constituted,- must be incongruous with ours, and inapplicable to a question involving the powers and duties of its functionaries.

The practice, therefore, of the general government, which is relied upon, and the maxims derived from the British government, that the power of appointment to, and removal from office, is an executive function, can be no further applicable to our government, than it is made so by the provisions of the Constitution.

The general government differs from ours in its powers and attributes ; and although we have adopted the common law of England, we have neither adopted the form of that government, nor recognised the principles upon which it is founded. According to the theory of that government, the king is the sovereign power of the State. When a question of prerogative, therefore, arises there, recurrence is had to the charters of the people’s rights and liberties, to ascertain whether the right in question has been surrendered by the king to the people ; and if the grant cannot be shown, the right is adjudged to the king, upon the principle that all rights of which he has not divested himself, by express grant to the people, come within his prerogative. But upon the principle of our government, that the sovereign power of the State resides in the people, and that only such powers as they have delegated to their functionaries, can be exercised, where a claim of power is advanced by the executive, the question is, not whether the power in question has been granted to the people, but whether it has been granted to the executive ; and if the grant cannot be shown, he has no title to the exercise of the power.

As the right of the Governor to remove the Secretary must be granted by the Constitution, or it does not exist, it therefore devolves upon those who advocate the claim of the executive power, to show the grant upon which it is founded ; to point out the clause and section of the Constitution from which it is derived. How has this been done ? Has any express grant been produced ? No ; it is not pretended that any express grant is to be found in the Constitution. But it is contended that the power in question is granted to the Governor by implication. That from the grant of other powers, this one of removing the Secretary from office is necessarily implied, as the means of rendering those grants available ; and the following clauses of the Constitution are relied on in support of this position :

“ Art. 1. Sec. 1. The powers of the government of the State of Illinois shall be divided into three distinct departments, and each of them be confided -to a separate body of magistracy, to wit : Those which are legislative to one, those which are executive to another, and those which are judiciary to another.”

“ Sec. 2. No person or collection of persons, being one of those departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.”

“ Art. 3. Sec. 1. The executive power of the State shall be vested in a Governor.”

“ Art. 3. Sec. 7. He [the Governor] may require information in writing from the officers in the executive department, upon any subject relating to the duties of their respective offices, and shall take care that the laws be faithfully executed.”

“ Art. 3. Sec. 20. The Governor shall nominate, and by and with the advice and consent of the Senate, appoint a Secretary of State, who shall keep a fair register of the official acts of the Governor, and, when required, shall lay the same, and all papers, minutes, and vouchers relative thereto, before either branch of the General Assembly, and shall perform such other duties as shall be assigned him by law.”

These are the provisions of the Constitution, from which it is insisted the Governor’s power to remove the Secretary is implied. It is also claimed, upon the principle assumed, that the power of removal is incidental to the power of appointment; and again, that it is an executive function, and as such, belongs to the Governor.

It may be proper to observe, that there is some discrepancy between the views of some of the counsel for the appellee and those of the Circuit Court. While they all insist upon the authority claimed in the case, they do not agree as to the source from which it is derived ; nor do they all carry the practical application of the principles assumed, to the extent claimed for them by the Circuit Court. While some contend, with the Court below, that the Governor’s power of removal extends to all the officers in the executive department, others limit it to the Secretary. As the opinion of the Circuit Court has been published, and referred to by counsel, I will, in the examination of this question, advert to it, as containing the doctrine of the advocates of the power of removal.

I will examine the provisions of the Constitution relied on, and the positions assumed, in the order in which they are stated.

The first enquiry, then, is, can the power claimed by the Gov-\ ernor, be implied from the foregoing provisions of the Constitu- 1 tion ? That other powers than those expressly granted, may be, and often are, conferred by implication, is -too well settled to be doubted. Under every Constitution, the doctrine of implication must be resorted to, in order to carry out the general grants of power. A Constitution cannot, from its very nature, enter into a minute specification of all the minor powers, naturally and obviously included in, and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule, that when a Constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one, or the performance of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient. By an application, then, of these rules, to the constitutional grants of power to, or injunctions of duty upon the Governor, considered separately, or in connexion, we can determine whether the authority to remove the Secretary is essential to the exercise of any powers conferred, or the performance of any duties enjoined on the Governor, or whether the exercise of such a power is contemplated by.the Constitution.

The first and second sections of the first article of the Constitution divide the powers of government into three departments, the legislative, executive, and judicial, and declare that neither of these departments shall exercise any of the powers properly belonging to either of the others, except as expressly permitted. This is a declaration of a fundamental principle ; and although one of vital importance, it is to be understood in a limited and qualified sense. It does not mean that the legislative, executive, and judicial power should be kept so entirely separate and distinct as to have no connexion or dependence, the one upon the other ; but its true meaning, both in theory and practice, is, that the whole power of two or more of these departments shall not be lodged in the same hands, whether of one or many. That this is the sense in whicffthis maxim was understood by the authors of our government, and those of the general and State governments, is evidenced by the Constitutions of all. In every one, there is a theoretical or practical recognition of this maxim, and at the same time a blending and admixture of different powers. This admixture in practice, so far as to give each department a constitutional control over the other, is considered, by the wisest statesmen, as essential in a free government, as a separation. This clause, then, is the broad theoretical line of demarcation, between the three great departments of government. But we are not therefore, when a question arises as to the extent of the powers of either, to confine our views to this general clause, which confers no specific powers. We should look to the division as actually made, to see what powers are clearly granted ; for such only can be exercised. As no power, then, is granted to the Governor by these sections, it necessarily follows that none can be implied. A power by implication, can only be claimed as necessary to the exercise of one expressly granted.

The next grant of power relied on, is, that “ The executive power of the State shall be vested in a Governor,” This clause is treated by the Court below, as conferring numerous and ample powers upon the Governor. All that are usually denominated executive powers, by theoretical writers, are supposed to be included in this grant to the Governor, except such as are expressly conferred upon other departments. This, I think I shall be able to show, is a mistaken view of the subject. This clause, like the preceding ones, is a declaration of a general rule ; and the same remarks are applicable to this, as a grant of power, that have been made in reference to them. It confers no specific power. What would have been its operation, if the Constitution had contained no specific enumeration of executive powers, is a very different question from that now presented, and might have admitted of a different answer. But it has been settled by the Supreme Court of the United States, that an enumeration of the powers of a department of the government, operates as a limitation and restriction of a general grant. It has also been laid down by the same high authority, “ That the general principles contained in the Constitution, are not to be regarded as rules to fetter and control, but as matter merely declaratory and directory ; for even in the Constitution itself, we may trace repeated departures from the theoretical doctrines that the legislative, executive, and judicial powers shall be kept separate and distinct.”

This departure from the general theory, is much greater in our Constitution than in that of the United States. The reasoning therefore of the judge of the Supreme Court of the United States, must apply to it with a correspondingly increased force, and exclude all claim of power from this general declaration.

The authority of the Governor to require information from the officers in the executive department, relative to the business of their respective offices, and the obligation of the Secretary to keep a register of his official acts, are relied upon, in connexion with the injunction that the Governor shall see that the laws are faithfully executed, as implying an authority in him to dismiss the Secretary. Let it be conceded that the Secretary is one of the executive officers of whom the Governor may require information, does this imply a right to dismiss him from office ? If it does, then by the same rule the General Assembly may dismiss the Governor from office ; because he is under a constitutional obligation to give them information of the state of the government; and the obligation upon him to give the information, implies a right in them to demand it. The object of the information is the same in both cases. It is intended to aid the legislature in their deliberations, and the obligation to communicate it, is as imperative upon one officer as the other. The same reasons, therefore, that would subject the Secretary to removal, under this provision of the Constitution, will apply, with equal force, to the case of the Governor. The Constitution has made no distinction, and recognises no executive standard of obedience or responsibility to its precepts.

If the right to require information from an officer, implied the right to remove him, the legislature would have the power not only to remove the Governor, but a power, concurrent with him, to remove all the officers in the executive department; for the legislature has, under its general powers, authority to call on all of them for official information.

The Governor’s authority to call upon the Secretary and other officers in the executive department, is indisputable ; and his authority to enforce a compliance with his call, is equally clear. But to do this, he must have recourse to the mode prescribed by law ; he cannot, at discretion, adopt means unknown and unauthorized by law. The performance of a duty enjoined by law, may be enforced by its process ; and the rule, that when an instrument gives a power, it also gives, by implication, the means necessary to its exercise, is intended to render available those grants of power, which, without its application, would be inoperative and nugatory, , by reason of the means necessary to their exercise not being also J provided. But when the means of enforcing a given power arej) furnished by law, the rule does not apply. It cannot, therefore, apply in the present case. The duty of the Secretary to give the official information required, and to register the official acts of the Governor, is a legal injunction ; and the law has provided ample means for enforcing its observance : first, by a private action, for any private injury that may possibly result from his neglect of duty; and secondly, by a mandamus, by which a specific performance of the duty may be enforced ; and, lastly, if his contumacy should be thought to deserve it, he may be impeached, and, upon convicdismissed from office.

These are the means, in addition to an oath of office, and where pecuniary responsibility is involved, an official bond, which the law has provided for the purpose of securing the performance of the official duties of the officers in the executive department. They are the usual and appropriate remedies for official delinquency ; and being specially provided by law, they are, in contemplation of law, adequate to the end proposed, and all others are rejected. All the duties of the Secretary are assigned by law, and may all be enforced by its mandate, without recourse to an executive power which has not been given by express grant, or by necessary implication ; for the implication must be a necessary, not a conjectural, or even a convenient one.

But these remedies, which the law has expressly prescribed as the means of securing an observance of official duty, the Circuit Court considers inadequate to insure that despatch and prompitude which the executive may demand, and the interest of the public require ; and, by way of illustration, supposes the case of the Secretary refusing to put the seal of State to the Internal Improvement Bonds, or to keep a register of the official acts of the Governor, and enquires whether, in such cases, the Governor must submit to the law’s delay ? I think it may be safely answered that he must; that in a government of laws, all are bound to submit to the law ; and neither the executive, nor any other functionary, can stretch his powers beyond it, in order to obviate an imaginary inconvenience or defect. The forms of the law are the outworks, by which the citadel of liberty and the rights of person and property are defended ; and when they are broken down, the fortress itself must soon surrender.

Official responsibility is essential to a correct administration of the law ; and if that object is not effected by the remedies already provided, it is the province of the legislature to provide such as are more ample and efficacious. But this is alike beyond the remedial powers of the executive and the judiciary. Their appropriate functions are to expound and execute the law. In the exercise of the first of these functions, it is laid down as a rule of great importance in reference to a Constitution, “not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous.”

The arguments in favor of the Governor’s power of removal, in the extreme cases of official abuse of trust by t.ie Secretary, Auditor, and Treasurer, that are instanced, apply with equal force to other officers.

If this prompt remedy of dismissal from office may be applied to these officers, because a mandamus or impeachment would be too dilatory a proceeding to suit the exigency of the case, why should it not be applied to State’s attorneys and judges. Suppose a State’s attorney should refuse to perform his duties, or a judge to hold courts ; the Constitution which requires a speedy administration of justice, would be violated, and the end and object of government defeated. But it cannot be contended that the Governor may apply a remedy, by dismissing these officers for neglect of duty, and appointing others. Yet the injury to the public is at least as great as any that can result from the Secretary’s neglect of his duty ; and the means of redress are at least as tardy and as remote. Again, suppose the Governor should refuse to put his signature to the commissions of officers legally appointed ; upon the happening of such an event, the machinery of government would be stopped, or greatly retarded, for the want of officers to execute the laws. But where is the remedy, except by address or impeachment ? What do these examples, and many others that might be instanced in addition to these, and those put by the Circuit Court, prove, but that every delegated trust is more or less liable to abuse, and that if we elect to be governed by the permanent and known rules of a Constitution, rather than the capricious and arbitrary will of one, or more, we must wait the time necessary to carry them into operation ? That according to the principles of law and justice, a conviction for crime or delinquency, must precede punishment, we must delay its infliction until the accusation is legally proven ? In despotic governments, where the will of the ruler is the law of the lahd, there is no delay between its promulgation and execution. The quickening influence of fear, the principle upon which such governments are founded, reaches every department, and keeps the head of every functionary, from that of the Bashaw to the Cadi, always in danger.

Upon a doubtful question, where the scales are equipoised, policy and convenience may be allowed a preponderating influence ; but they cannot be regarded as the legitimate source of power, without violating the settled rules of construction, and subjecting the Constitution to fluctuate and change, with the changing opinions of men, of times, and of parties. This would defeat the objects of its creation. It was intended as a fixed and permanent rule of government, and without the attribute of certainty it would be of no value ; we could not tell from what has been decided, how the same question would be decided again.

But does policy sanction a concentration of power in the hands of one man, to be used at discretion ? This doctrine is contrary to the opinions of the ablest writers upon government, and is also opposed to the Constitution, which has divided and subdivided the powers of government, and as far as practicable, made one a check upon another. And upon the principle that arbitrary, discretionary power is more liable to abuse than that regulated by law, the Constitution has made the law, and not the will of the executive, the rule to which all its officers are bound to conform and to which they are amenable.

But it is argued from the Secretary’s obligation to register the official acts of the Governor, and when required, to give him official information, that such an official intercourse of confidence must exist as to imply an authority in the Governor to remove the Secretary.

This is assuming the existence of a confidence, which ought to be established before any conclusion is drawn from it. Where is the evidence of any intercourse between these officers, of a character so confidential, as to render one dependent upon the other for his official existence, as the means of securing his fidelity ? It is not to be found in the nature of the duties enjoined upon the Secretary, or the information which he may be required to give ; nor does it receive any countenance from the Constitution or the laws. They both relate to public, not private matters, such as are recorded for the information of the public, and being enjoined by a public law, all idea of privacy or confidence must be excluded. I can imagine no other foundation for the idea of confidence, than a supposed analogy between the officers in the executive department of our government, and those in the executive department of the general government ; but there is no analogy between the legal obligations of the officers of the respective governments, or the relation in which they stand to the respective executives.

The President may require the opinion of the heads of departments, their views, counsel, and advice, relative to the legality or policy of measures. In this exercise of the right, he calls on one or more, according to the difficulty or importance of the subject; but whether the consultation is separate, or in cabinet council, it is always private and confidential, and is so regarded, not only by the officers, but by the law also ; for none of the officers, or their clerks (who are sworn to secrecy) can be required to give testimony of transactions, or matters of a confidential character. But neither in contemplation of law, nor in fact, is there any official confidential intercourse between the Governor and the Secretary, or other officers of the executive departments. He may call upon them for information relative to matters connected with their offices. He may, for example, enquire of the Treasurer, what amount of money is in the Treasury, of the Auditor, what amount of warrants are outstanding, and of the Secretary, what are the kind and number of commissions to which he has put the State seal; or whether the laws are all distributed, &c. These are all public matters, in reference to which there can be neither secrecy nor confidence, and it is only in relation to such that the Governor can require information. He has no right to the opinion or advice of the Secretary, as to the legality or propriety of measures of any kind ; and as all the duties of the Secretary are prescribed by law, and as it is only in relation to them that he can be required to give information, there cannot, therefore, in the nature of things, be any implication of confidence from communications relative to a public law, or to matters of fact recorded for public information.

The reasoning in favor of the Governor’s authority to remove the Secretary, because of the latter’s duty to register his official acts, might be applied with great propriety to the Governor’s secretary, but it can have no application to the Secretary of State ; an officer whose office is created, and whose duty to keep a register of the acts of the Governor is prescribed, by the Constitution. In the performance of this, as of other duties, he does not act as the Governor’s officer, subject to his control and direction, but as the officer of the Constitution, bound to the performance of such duties only as have been assigned by that instrument and the law.

Why, it is asked, require him to keep a register of the official acts of the Governor, if it was not intended to give the executive a control over him ? To do this, would defeat the object of the requisition. The Constitution has placed him beyond the control of the executive, that he might keep a true and faithful record of the official acts of the executive. The authority claimed for the Governor would be incompatible with the performance of this duty. In giving a construction to one clause of the Constitution, we should also take into view such other parts as have a bearing upon the subject, and if possible, give to it such an interpretation as will allow all its parts, an operation in harmony with the whole instrument. For what purpose, then, is a register of the official acts of the Governor required to be kept, and laid before the General Assembly, when called for ? Clearly for the purpose of informing them of his official conduct. And when it is recollected, that ours is a government of checks and balances, and that to the representatives of the people, and to them alone, is delegated a direct authority to enquire into his official conduct, and if he has corruptly abused the authority confided to him, or by transcending the limits prescribed by the Constitution, usurped that not delegated, to call upon him by impeachment, to answer at the bar of the Senate, the charges of official misconduct which they may prefer against him. Is it not the manifest intention of this provision to perpetuate in a legal, authentic, and responsible form, the evidence of the official acts of the executive, tobe recurred to at all times, by those who have a constitutional right to animadvert upon their legality, and the motives which originated them ? For what other object could it be intended ? It can serve no other purpose. And that it was intended for this, is also proved by the fact, that it is only at the instance of the General Assembly, not of the Governor, that this register is to be laid before them. It is not by his authority that it is made. He has no right to command or forbid the reading of his acts. He cannot say what shall be set down, or what shall be omitted. The Secretary acts under the imperative injunction of the Constitution, and the obligation of an oath. As the Governor, therefore, has no right to direct how the duty shall be performed, it would seem preposterous to give him the power to dismiss the officer for not conforming to directions which he has no authority to give.

If this view, relative to the object and intention of this provision of the Constitution, be correct, the authority claimed for the Governor would counteract and defeat it. What security, or even prospect would there be, for the representatives of the people obtaining the record evidence of executive abuse, or usurpation of power, when by giving him absolute control over the officer who is to make and keep the record, you put it into his power, by a word or look, to suppress it ? If he could be guilty of acts that would merit impeachment, can it be supposed that he would suffer the evidence of them to be placed upon record, and laid before the legislature as the means of his conviction, by an officer whose official conduct he has the means of controlling ? Would he not rather, if the officer’s sense of duty were stronger than bis love of office, dismiss him from it and appoint one whose principles would not interfere with his subservience to the will of the executive ?

As the opinion that the Secretary is a confidential officer receives no countenance from the Constitution, or the nature of the official intercourse between him and the Governor; all reasoning founded on that assumption must be fallacious. No authority to remove the Secretary, can be implied from his registering the official acts of the Governor; but on the contrary, his obligation to perform this duty affords a strong implication of his independence of the executive control, because that is necessary to a faithful performance of the duty. The rule relied upon in support of the Governor’s claim of power, that every injunction of duty includes, by implication, the power necessary to its performance, applies, also, to the Secretary, and would be violated by subjecting him to executive control. I have shown that the discharge of the duty enjoined by the Constitution, may render the Secretary obnoxious to the displeasure of the Governor; such a construction of jt, therefore, as would render him obnoxious to his authority, would defeat its obvious intention.

. The injunction, that the Governor shall see that the laws are \ faithfully executed, it is also urged, gives him the control, and consequently the power of removal of the officers of the executive department. This inference is not justified by the premises. It has neither the sanction of authority nor the practice of other State executives; both of which are opposed to it. The practice of the President, as I will show, is founded upon other grounds, and his power does not extend to the removal of any officers whose offices are created by the Constitution, and whose duties are regulated by law. But as this position has been earnestly urged, and relied upon, I will examine it more fully than I should otherwise consider necessary. This clause of the Constitution, like those dividing the powers of government, and declaring the attributes of each, is, the declaration of a general principle, which is “ not to be regarded as a rule to fetter and control, but as matter merely declaratory and directory.” It confers no specific powers, “nor does it enjoin any specific duty.” “ This power of general supervision,” says an able commentator on American law, “ is a duty enjoined on the federal and State executives.” “It would be dangerous, however, to treat this clause as conferring any specific power which they would not otherwise possess. It is to be regarded as a comprehensive description of the duty of the executive to watch with vigilance over all the public interests. ” The Governor is not to execute the laws himself, but is to see them executed. This duty is performed by lending the aid and power of the executive arm, to overcome resistance to the law. The history of the federal and State governments, affords practical expositions of this clause of the Constitution, in conformity with this construction. The executive is to see the laws executed, not as he may expound them, but as they may be expounded by those to whom that duty is intrusted. To the legislature is delegated the authority to make the law, to the courts the authority to expound them, and to the executive the authority to see them executed, as they are thus interpreted. His interpretation is proper only when specially required by law, or where the ordinary means are inadequate to the object of their design. But to assume the power of expounding, and also that of executing the law, would be a usurpation of the functions of the judiciary, and concentrating, in one department, powers expressly declared, by the Constitution, to belong to two separate and distinct departments.

The manifest intention of the Constitution, and the authority cited in the absence of all precedent and principle militating against it, would seem to be conclusive against the executive claim of power, under this provision, to direct the Secretary how he shall execute the duties assigned him by law ; and if he has no power to direct him how be shall execute his duties, he certainly has no power to dismiss him for not conforming to his directions.

But it is, notwithstanding, insisted that this clause of the Constitution confers the power of dismissing not only the Secretary, but all the other officers in the executive department. If it confers the power of supervision and dismissal as to one officer, it also gives the same authority over every other one in the government (except, perhaps, the judges) upon whom the performance of a duty may be enjoined by law. The injunction to see the laws executed, is general, and sufficiently comprehensive to embrace every law, and every officer ; and if under it the Governor may dismiss from office the Secretary, Auditor, Treasurer, and Attorney General, which is claimed for him, I cannot see why he may not dismiss every other one, without regard to the manner of their appointment, or the tenure of office ; and thus, by the construction of one clause of the Constitution, bring all the officers, and the operation of all the laws of the State, under executive control. This would counteract the whole scope and design of the Constitution, by substituting the changing and capricious will of one man, for the fixed and known rules of the law.

From this consequence I can see no escape, if the principle contended for be adopted. The argument in support of executive power, limits it to the removal of the officers in the executive department; but where is the authority for the discrimination? It is not to be found in the Constitution. It confers no authority over them that can be brought in aid of this construction, but, on the contrary, it would conflict with the performance of the duties assigned them, particularly that of registering the acts of the Governor, required of the Secretary. The language of the Constitution is general, and embraces all the officers, as much as part. If the executive, therefore, may say to one officer how he shall execute a law, and dismiss him if he does not obey, he may say so to another. He may not only direct the Auditor what warrants he shall issue, and the Treasurer what ones he shall pay, or refuse payment of, but he may direct the Attorney General and State’s attorneys whom they shall prosecute, the Court what judgment it shall render, and the sheriff in what manner he shall execute it. This power, in the hands of any ruler, would leave to the citizensmo safety for life, liberty, or property.

Although these consequences would, I believe, be alike deprecated by all, they are such as must flow from an exposition of this clause that would give to the executive, authority to direct how an officer should execute a law, and dismiss him from office if he did not obey the direction. It is no answer to say that the Governor has no right to violate the law, but only to see it executed. The right to direct how a law shall be executed, presupposes the right of exposition. How else can its meaning and intention be known? To direct an officer in the performance of his duty, he must decide what that duty is. This power, also, includes the right to decide upon the validity of the law ; for if it is in violation of the Constitution, it is no law, and cannot legally be enforced. But it is useless to talk of constitutional restraints, if the executive may decide upon the law, and the duty of the officer, and enforce his decision, it must prevail, right or wrong.

This construction of the Constitution is incompatible with the legal obligations of the officers of government, with the supremacy of the law, and with well settled principles. It is not denied that all the duties of the Secretary, and other officers, are prescribed by law; and the principle is also conceded, and relied upon, that when the law imposes upon an officer the performance of a duty, it also confers the power necessary for its performance. Its injunctions would be nugatory and idle, if they did not imply authority to enforce them. But how could the Secretary, or other officer, perform the duties enjoined upon him by law, in the manner the law prescribes, if the Governor might interpose his authority and suggest a different mode ?

With every disposition that his directions should conform to the law, the Governor may err, unless we impute to him infallibility; and then, the same liberal concession must be extended to the Court, or there may be a difference of opinion between them. And which is to prevail ? Will executive authority be a justification to the officer ? Can he plead that in his defence when prosecuted for a violation of his official duty ? Certainly he cannot. In what situation, then, does this executive authority place the officer ? If he prefers his duty to executive dictation, he may be dismissed from office. If he submits to it, he incurs the penally imposed by law for a violation of its injunctions, and may also be impeached, and dismissed from office ? A construction of the Constitution involving consequences so absurd and unjust, must be rejected as altogether inadmissible.

But this question is settled by the adjudication of the highest judicial tribunal in the nation. In the case of Marbury v. Madison, the Supreme Court of the United States decided, that where the duty of an officer is prescribed by law, he is bound to conform to the law, and not to be guided by the will of the President. In the performance of a duty prescribed by law, he acts under the authority and direction of the law, and not under that of the Executive. This case was an application to the Supréme Court for a mandamus to compel the Secretary of State to deliver a commission withheld by direction of the President. In delivering the opinion, the Court remarked, in reference to the President’s authority to control the Secretary in the performance of the duty which the law enjoined upon him : “ This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course, accurately marked out by law, and to be strictly pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.”

This decision requires no comment. It is based upon the supremacy of the law, alike over the officer who administers it, and the President who appoints him. It is made directly upon the question under consideration, and under constitutional provisions, in some respects identical, and in others more favorable to executive authority than those of ours. I must, therefore, consider it decisive against all claim of executive authority to control an officer in the performance of a duty prescribed by law. The Constitution of the United States declares the executive power to be vested in the President; it confers the right to require the opinion of the officers in the executive department; and like ours, it enjoins upon the executive the duty of seeing the laws executed. And as the President cannot, under any or all of these provisions, control the Secretary of State in the performance of a duty enjoined by law, it follows, conclusively, that the Governor’s title to such a power over the Secretary of this State, must be equally invalid ; and as he has no right to direct him how he shall perform the duties assigned him, he can have no right to dismiss him for a non-compliance with an unauthorized assumption of authority. As he has no right to command, he has no title to obedience.

I The office of Secretary of State is created by the Constitution, /without any limitation of duration being provided. It is therefore contended that the incumbent of this office holds it at the pleasure of the appointing power; and a rule laid down by Judge Story, that an officer, the tenure of whose office is undefined, holds at will, is relied upon in support of the position. But if this rule is admitted to apply to the officers under our Constitution, and to confer upon the authority to whom the appointment of such officers is given, the power of removal, it would not establish the Governor’s right to remove the Secretary, because he alone does not confer the office upon him. That is done by the advice and consent of the Senate ; their advice and consent would, consequently, be necessary to his removal.

But this rule is not applicable to the officers of our government; nor is it so applied by Judge Story. It is laid down in a treatise upon the Constitution of the United States, and as applicable to the officers under it. The Constitution of the United States created no office the tenure of which is not provided for; and the judicial officers alone are to hold during good behavior ; the inference, therefore, is, that all others that may be created shall hold during pleasure, unless Congress shall provide a different tenure.

But under our Constitution, a large proportion of the offices which it has created, are unlimited in duration ; and not only the judicial officers hold during good behavior, but all militia officers until sixty years of age. For some of the offices to which the Constitution fixes no tenure, (County Commissioners, for example,) the legislature is required to provide one, while no tenure is required to be given to others.

What, then, is the most reasonable and natural conclusion to be drawn from these constitutional provisions ? Are all these officers intended to be upon the same footing ? Certainly not. The tenure of one class of officers is intended to be beyond legislative control, while that of others is left to be fixed by the legislature, as may suit the changing exigencies of time and circumstances. But as the offices are created without limitation as to time, they remain so, until the legislature provides one.

That the legislature has a right to limit the tenure of the office of Secretary, and that of all other offices to which no tenure is given by the Constitution, I have no doubt. No proposition is better settled, than that a State Constitution is a limitation upon the powers of the legislature, and that the legislature possesses every power not delegated to some other department, or expressly denied to it by the Constitution. The creation of offices, the delegation and the regulation of the powers and duties of officers, and prescribing the period for which they shall be exercised, are legislative functions, and no restraint upon their exercise, in reference to the tenure of the office of Secretary, is imposed by the Constitution. There can be no objection, therefore, to giving such limitation to that office as the interest of the State may require. And that it is the intention of the Constitution that those officers, the tenure of whose office is not fixed by the Constitution, should hold without limitation, until a limit was given by law, is strongly inferable from the fact, that the appointment of some of them is given, not only to the legislature, but to the people. It cannot be supposed that the Convention which formed the Constitution intended to confer upon the people or any department of the government, a right which could not be exercised. But that mockery must be imputed to them, by the adoption of the rule contended for.

Suppose the legislature had given no tenure to the office of Auditor, or of County Commissioner, how could the legislature in the one case, and the people in the other, remove the officer whom they had elected ? Such a proceeding on the part of the legislature, or the people, would be unprecedented, and in the case of the people, impracticable. But this objection does not exist in reference to any of the officers of the general government whom the President may remove.

The rule, laid down by Judge Story, is an inference from the Constitution of the United States. But our Constitution, being entirely different in relation to the tenure of its officers, and the appointing power, warrants a different inference ; and the inference that an officer under our Constitution, the tenure of whose office is undefined, holds, until the law provides a limit, is in accordance with the rule of the common law, and has been so decided in another State, which, like ours, has adopted the common law. In the case of the Fayette county lawyers, the Supreme Court of Pennsylvania, after remarking that the office of an attorney was one recognised by the Constitution and law of Pennsylvania, lays it down as the rule of the common law, “ That the grant of an office without limitation, being taken more strongly against the grantor, endures for the life or good behavior of the grantee.” This rule may admit of exceptions under our government ; but where the grant is intended for the benefit of the people, and the power conferred is to be exercised to promote their interest, I am not aware of any exception. In such a case, a liberal interpretation of the grant is for the benefit of the people-; inasmuch as the power granted cannot, if retained by them, be used for their benefit, but may. be so used by the functionary to whom it is so delegated.

The federal government not having adopted the common law, its courts are not bound to the rigid observance of its, rules that the courts of this State are. But it is not the rule relied upon by the Circuit Court that gives the President the power of removal. This power he has in the case of superior officers, in virtue of his right of supervision and control over them, and his consequent responsibility for them. And that the rule is a deduction therefrom, seems evident from the fact, as generally conceded, that Congress cannot, by giving a tenure to the office of these officers, abridge the President’s power of removal.

The President’s right to remove the inferior officers of the government, is given by law.

The rule that an officer whose tenure of office is undefined, holds at will, having been early adopted in reference to ambassadors and heads of department, the courts of the United States have, in conformity with that rule, decided that other officers, whose tenure of office was undefined, should hold, subject to the same rule, without regard to the authority that conferred the appointment. But these decisions do not conflict with the rule we have adopted, because our Constitution admits of no such deduction as that of the Constitution of the United States, upon which these decisions are founded ; and the legislature has enacted no law defining the tenure of the office of Secretary of State. On the other hand, the rule that an officer, the tenure of whose office is undefined, holds during good behavior, has been recognised by every department of this government. In applying this rule, therefore, to the present case, we conform to the principle which governed the United States courts, in the cases adverted to. We adhere to, and carry out, the interpretation invariably given to the Constitution of this State, as the courts of the federal government adhered to the legislative interpretation, which had been given to the Constitution of the United States. Nor can I perceive any good reason for making the tenure of an office the rule by which to subject the officer to, or exempt him from, executive authority. The power of removal from office, is intended as the means of putting aside corruption and imbecility, and of compelling a performance of the duties prescribed. These are the legitimate causes for the exercise of this power when it exists, and they may occur in any office for one year, as well as one for life.

The rule that an officer, the tenure of whose office is undefined, holds during good behavior, until a limit is provided by law, is also established by judicial and legislative expositions of the Constitution of this State. The first case in which that principle was recognised by this Court, was that of Street v. County Commissioners of Gallatin county. That case was an application for a mandamus to restore a clerk who had been dismissed by the Court without cause shown ; and it was allowed by the unanimous consent of the whole Court. And again, in the case of Matheny y. Mobley, this Court decided that a judge of the Circuit Court had no power, under the Constitution, to remove, at will and pleasure, a clerk. In my apprehension, that case is not distinguishable, in principle, from the present one. The office of clerk and of Secretary are both created by the Constitution, without any limitation of tenure. The appointment of clerk is given, by express grant of the Constitution, to the Court, and that of Secretary to the Governor, with the advice and consent of the Senate ; and no power to remove either is granted by the Constitution. Upon the principle that the clerk is entitled to hold his office during good behavior, until a different tenure is provided by law, it would seem that the Secretary would be entitled to hold his upon the same terms. This is virtually admitted by the Circuit Court, in its effort to prove the principles upon which the case of Matheny y. Mobley was decided to be incorrect. If they were not applicable to the present case, the comments of the Circuit Court would have been gratuitous, and if they were applicable, that Court should have been governed by them.

In delivering the opinion, as published, the Circuit Court says : “ I feel constrained to say, that I cannot accord with them (the Supreme Court) in all the doctrines and principles of that case, and therefore cannot apply them to this.” As he cannot accord with the Court in the principles laid down, he cannot apply them. The doctrine, before this decision, was considered well settled, that when the supreme judicial tribunal of a State had declared what the law was on any point, when the same point came again in litigation, all other courts were bound to conform to its decision. A different rule would destroy all that stability and uniformity in the rules of law, which is so essential to the administration of justice, and the safety of the citizen. If every judge can decide according to his private sentiments, without regard to precedent and authority, there may be as many rules of decision as there are circuits ; and the decision of one day would furnish no rule for the decision of the next. " Judges,” says the Circuit Court, “are hound, in deciding a point of law, to follow a preceding decision upon the same point. Yet if such decision is founded in error-, they are not bound by it.” The correctness of this principle cannot be controverted, when applied to a court of equal or superior authority with the one deciding the point. But is it not obvious that the judge has misapplied the principle, in assuming for the Circuit Court authority to reverse a decision of the Supreme Court? Who does not see that such doctrine is subversive of the fundamental principles of the government ? It is reversing the order of authority prescribed by the Constitution and the law, and rendering nugatory the right of appeal. ' It will readily be admitted that an erroneous decision ought not to prevail, but who has the right to declare it so ? This authority includes the right of supervision and control, and if the Circuit Court has it, in reference to a decision of the Supreme Court, upon the same principle, a justice of the peace will have it, in reference to a decision of the Circuit Court; and one step further will give the right of supervision to the parties in the cause ; thus resolving all authority back into the original elements. This would be the consequence of carrying out the position assumed.

The correctness of the opinion in the case of Matheny v. Mobley, is tested by the rule adverted to, that when the tenure of an office is undefined, the officer holds at the will of the appointing power. I have shown that this rule is not only in contravention of that of the common law, but that it is one not warranted by our Constitution; and could not, therefore, be applied to a clerk, or other officer under it. It is also objected to the opinion delivered in that case, that the Court said, that if the clerk is to be considered the officer of the judge, and not of the law, that upon a vacancy occurring in the office of judge, the clerkships would, under that rule, be vacated also. Is not this true ? Is it not a consequence necessarily flowing from the nature of the tenure by which the officer holds his office ? It has been always so considered, and is well settled. An officer, or an estate, held at will, is terminated by the demise, or other act of either party, that can be considered a determination of bis will. This is the universal operation of the rule. In England, all the officers who hold at the will of the king, go out of office upon his demise, because this is very naturally considered a determination of his will, which, alone, continued them in office. But the Circuit Court thinks the will or act of the judge continues in full force, after he ceases to be judge, by death or otherwise, and that a clerk appointed by him continues in office, and bound to the performance of his duties by his official bond. That he so continues, and is so bound, is evidence that he does not hold his office at the will of the judge appointing him. If he did, his office would terminate with that of the judge ; and his bond, which is given for the performance of his official duties, would not be obligatory for acts performed after the termination of his office.

For the purpose of obviating the inconvenience incidental to the rule of an officer holding his office at the will of the authority that confers it, statutes have generally been passed, where the rule exists, continuing the officer in office after the termination of the authority that appointed him, until he is superseded by the appointment of another. This was done in England, where the judges held at the will of the crown. And the same precaution is generally observed here, for the purpose of preventing an interregnum in offices held for a limited period. But as no such provision is made in relation to officers who hold by an unlimited tenure, it may be fairly inferred that they are not considered as holding their offices at-the will of the power that confers them, or that they are liable to terminate with the termination of that power. Otherwise, the same regulation would be necessary to continue a clerk or Secretary of State in office, after a vacancy, by death or otherwise, in the office of judge or Governor, that was necessary in England to continue the judges in office after the death of the king ; and as it is necessary here to continue in office a sheriff or other officer, appointed for a limited time, till a successor can be appointed and qualified.

The authority of the case of Matheny v. Mobley is also impugned, upon the ground of policy and convenience. Authority in the Court to dismiss its clerk, is considered necessary to secure his subservience, and to promote the dignity and usefulness of the Court. I admit, without hesitation, that the Court should possess every power necessary to secure these objects. But an argument to prove the necessity of such power, might be addressed with much more propriety to the legislature than to the Court. The rule already slated, that a given power is not to be enlarged, by construction, beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischievous,” forbids the Court the exercise of any discretion. It has been well remarked, that the duty of the Court is to follow and obey. Now, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice, than mere policy and convenience ? “ Men, on such subjects, complexion-ally differ from each other. The same men differ from themselves at different times.”(1)

But does policy or necessity require a more absolute control over the clerk than the law has given ? According to the opinion of the Circuit Court, its authority is altogether inadequate to insure the respect of the clerk, or his obedience to its mandates ; he may, it is thought, contemptuously question the correctness or justice of the judgments of the Court, and refuse to enter them ; or he may be too ignorant to perform the duties of bis office ; and although they are left unperformed, the power of the Court is inadequate to correct the mischief. “ It is no answer,” it is said, “ to say the clerk may be removed on complaint. Who is to make the complaint ? Is it, when made, to be tried by a jury ? Might not a disobedient or refractory clerk be, notwithstanding, so popular as to prevent a verdict against him ? ” If this description of the impotency of the Court were correct, it certainly might, with great propriety, claim an extension of its authority. But is it correct ? Has the Court no power to punish the clerk for a contempt of its authority, or for refusing or neglecting to perform the duties of his office ? And is the fact of his delinquency to be ascertained by the verdict of a jury ? This view of the authority of the Court is totally unlike that which the law has conferred. It has provided that if any clerk of the Circuit Court shall neglect or refuse to perform any of the duties enjoined upon him by law, or shall in any manner be guilty of malfeasance in office, he shall be removed from office by the Court, upon proper complaint being made to the said Court or judge, and the said complaint being proved true to the satisfaction of the said Court or judge. Here, express authority is given to the Court to remove the clerk for refusing or neglecting to perform any of his official duties. Incapacity is also a sufficient ca