charge. This section of the law extends the senate's power of removal to officers appointed by the governor by and with the advice and consent of the senate. The statute provides that "if the senate shall reject a recommendation of removal, the clerk of the senate shall, by a writing signed by him and by the president and clerk of the senate, communicate the fact of such rejection to the governor. If the senate shall concur in such a recommendation, the removal shall take effect upon the passage of the resolution of concurrence, and duplicate copies of such resolution, certified by the clerk and president of the senate, shall be executed, and delivered by the clerk to the secretary of state."

The senate has, in several instances, investigated the conduct of judicial officers on complaints or charges presented by the governor, with an accompanying recommendation for the removal of the accused judge. An examination of the cases shows that the procedure in these investigations has not been uniform, and that there have been some differences of opinion among governors as to their powers and the extent of their jurisdiction.

George W. Smith.-The first case was that of George W. Smith, county judge of Oneida county. Governor Fenton, on the 14th of February, 1866, sent a message to the senate, transmitting charges and specifications alleging official misconduct on the part of Judge Smith. According to the message, as printed, the Governor said:

"I recommend that inquiry as to the truth of the charges be immediately made in accordance with the provisions of section II, article 6, of the Constitution. This section does not clearly define the details of procedure prior to final action upon the question of the removal of judicial officers, and there are no precedents within my knowledge to guide the action of the senate in this instance. I have presumed, however, to refer the entire case

to your consideration, without any preliminary examination on my part, with a view of forming correct conclusions as to the guilt of the party charged with malversation in office, or learning his defense, believing that this proceeding is wholly within your jurisdiction. In my judgment this section of the Constitution, by reasonable construction, invests the governor with the duty of makinga recommendation based upon an ex parte presentation of the case, and this course would seem essential to confer jurisdiction upon your body.

"I do, therefore, recommend that the said George W. Smith be removed from his said office if, in the judgment of the senate, he shall, upon a full and fair investigation, be convicted of the charges made against him."

The judiciary committee, to whom was submitted the Governor's message recommending the removal of Judge Smith, reported that it did not know of any precedent for the proceeding, "it being entirely novel." Referring to the procedure on an impeachment in which both branches of the legislature took a part, "the assembly as the accusers and prosecutors, and the senate as the judges," the committee say: "In the present case, however, as the senate are the judges, no members of it can properly be the prosecutors; and as it is evidently necessary that the part of prosecutor must rest somewhere, in order to a vigorous and full presentation of the charges and of the evidence in support of them, so it is necessary that the complainant and his counsel should be admitted before the senate or its committee, with the usual privileges of counsel. The like privilege must be awarded to the accused and his counsel." The committee further expressed the opinion that the proceeding might be prosecuted in either of two methods: "Either by a committee of the senate, who shall take testimony upon the subject, and report the same to the senate with their opinion upon the

case, or before the senate. It is submitted that the choice of these two methods should be left to the accused, as the party the most intimately affected by any result which shall be arrived at." Judge Smith elected to be tried before the senate.

The case was tried at an extra session of the senate, which convened June 12, 1866. At the opening of the trial, after the Governor's message had been read, Judge Smith, by counsel, moved that the proceeding be dismissed on the ground that the senate had no jurisdiction, "the Governor not having recommended the removal of the accused," that the "message in no wise indicates the opinion entertained by the Governor, but makes his recommendation for removal depend entirely upon the judgment of the senate, and upon its convicting the accused of the charges." The senate unanimously denied this motion.

The next day Judge Smith raised another question of jurisdiction, alleging that no recommendation whatever had been made by the Governor for the removal of the respondent, that "no such paper writing as that purporting to be a message from the Governor to the senate, and printed and set forth in senate document No. 48, has ever been communicated to the senate by the Governor, but the said writing, purporting to be a message, as aforesaid, is not a genuine message from the Governor;" and he offered to prove "that the message which was in truth and fact communicated or transmitted by the Governor to the senate, relating to the charges against him, was, on the day it was communicated to the senate, wrongfully and unlawfully abstracted from its files, and destroyed, or altered, and the said pretended message, upon which the jurisdiction of the senate is now claimed, was wrongfully and unlawfully substituted in the place thereof, and which said substituted paper writing, in so far as it rec

ommends the removal of this respondent, and in other respects, materially differs from that communicated by the Governor to the senate."

The counsel for the prosecution denied the right of the accused to impeach the journal of the senate, but the senate decided to take proof as to the genuineness of the message. Governor Fenton, Lieutenant Governor Thomas G. Alvord, James Terwilliger, clerk of the senate, George S. Hastings, the governor's private secretary, and George W. Demers, a reporter for the Albany Evening Journal, were examined as witnesses.

From the testimony it seems that the message transmitting the charges against Judge Smith was presented in the usual way by the private secretary and read by the clerk, that the Lieutenant Governor immediately took the message to the executive chamber, and suggested to the Governor that he make certain alterations in its form. A few words were erased, for which no others were substituted, and others were erased, and a substitution made. One sentence originally read as follows: "In my judgment this section of the Constitution, by reasonable construction, invests the governor with the duty of making a recommendation based upon an ex parte presentation of the case, and as this course would seem essential to confer jurisdiction upon your body, I must assume that the charges presented to me, and duly verified, are true.” In the corrected draft the word "as" is omitted, and also the last clause," I must assume that the charges presented to me, and duly verified, are true."

According to the testimony of the private secretary, the last sentence originally read as follows: "I do, therefore. recommend that the said George W. Smith be removed from his said office if, in the judgment of the senate, he shall fail to disprove said charges or establish a satisfactory defense thereto." In its final form the sentence, as

already quoted, reads as follows: "I do, therefore, recommend that the said George W. Smith be removed from his said office if, in the judgment of the senate, he shall, upon a full and fair investigation, be convicted of the charges made against him." The message so corrected was returned to the senate by the Lieutenant Governor. It was not again read, but was published in its corrected form the same day in the Albany Journal, and was entered in that form in the records of the senate. Judge Smith's counsel contended that this alteration of the message deprived the senate of its jurisdiction.

On Senator Folger's motion the senate, by a vote of 13 to 12, adopted the following: "Resolved, That by virtue of the message of the Governor, read at the desk of the clerk on the 14th day of February last, this senate has jurisdiction of the subject-matter, and has (the) right, at a proper time, to hear and determine the question of the removal of the respondent from his office;" and afterwards, on Senator Gibson's motion, amended the message by restoring "as" and the clause "I must assume that the charges presented to me, and duly verified, are true," and also by striking out the substituted clause at the end of the message, and inserting the clause "upon trial he shall fail to disprove the charges which are made against him," thus ignoring the Governor's alterations in the message.

On the question whether Judge Smith should be removed from office, the vote was 20 to 3,-not the two thirds required by the Constitution.

Horace G. Prindle.-The next case was that of Horace G. Prindle, county judge and surrogate of Chenango county. On the 20th of March, 1872, Governor Hoffman sent a special message to the senate, transmitting papers relating to charges against Judge Prindle. The Governor said he had heard the counsel for the petitioners