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

and for the judge in relation to the charges, some of which referred to alleged official misconduct during the judge's previous terms, and others to alleged official misconduct during his present term. "The Constitution evidently contemplates that the truth and sufficiency of the charges in such cases as this shall be tried by your honorable body, and not by the governor. The final decision is to be made by you, and not by me. My recommendation is nevertheless necessary to bring the case within your jurisdiction. It would seem, therefore, to be the duty of the governor, if a prima facie case be made out before him, to send it to you for adjudication.

. I therefore recommend that you inquire into the charges so made, and if the truth and sufficiency thereof shall be established, that the said Horace G. Prindle be then removed from the office of county judge and surrogate of said county.'

The charges included various acts of alleged official misconduct. The senate met in extra session May 14, 1872. Following the precedent established in the case of George W. Smith, the accused judge was offered his election whether to be tried before the senate or before a committee of that body. He elected to be tried before the senate.

Judge Prindle had already held office two terms as county judge and surrogate, and had been re-elected in 1871 for a term which began on the 1st of January, 1872. He demurred to the charges, particularly on the ground that all of them except one related to alleged misconduct during the first and second terms. He denied the jurisdiction of the senate to remove him therefor, and claimed that he could be removed, if at all, only for misconduct during his present incumbency. The senate, by a vote of 18 to 3, overruled the demurrer, and thereupon proceeded to hear the case on all the charges. The proposi

tion for removal did not receive the necessary two-thirds vote in the senate, and the charges were thereupon dismissed.

The rule adopted by the senate in this case, that it had jurisdiction to entertain complaints of misconduct during a preceding official term, differed from the opinion expressed by the assembly judiciary committee in 1853, who held that an officer could not be impeached for offenses alleged to have been committed while holding the same or any other office under a previous election; but the reader cannot fail to observe that the difference between the two rules thus enunciated accentuates the policy intended to be established by the removal section, -namely, that an officer might be removed for causes. which would not be the subject of impeachment. Impeachment, according to the assembly judiciary committee, is a proceeding by which an officer is removed for actual misconduct during an existing incumbency, and while he is still in office. A proceeding for removal under section II involves the question of general fitness for the office, and the cause need not be confined to official misconduct.

John H. McCunn.-In 1872 the assembly judiciary committee investigated charges against John H. McCunn, a justice of the superior court of the city of New York. The committee transmitted to the Governor its report, including the charges and testimony, with a request that "it be recommended to the senate to take proceedings for the removal of said John H. McCunn from his office of justice of the superior court of the city of New York." Governor Hoffman thereupon convened the senate in extra session on the 14th of May, 1872. On the same day he transmitted to the senate a copy of the charges and testimony, and said: "I recommend that you inquire into the truth and sufficiency of the charges

so made, and, if the same shall be established, that the said John H. McCunn be then removed from office."

The proposition for removal received twenty-eight affirmative votes, and there were no votes in the negative.

George M. Curtis.-Governor Hoffman, on the 18th of June, 1872, sent the following message to the senate: "I respectfully transmit, herewith, charges and specifications presented to me by a committee of the Bar Association of the city of New York, alleging official misconduct on the part of George M. Curtis, a justice of the marine court of the city of New York, and asking his removal from office, in accordance with section II of article 6 of the Constitution of this state; also, the documentary proof submitted to me in support of the charges, together with the answer of Judge Curtis thereto, and the proofs submitted in support of such

answer.

"After examining the same and hearing counsel, I deem it my duty to present the same to the senate; and I recommend that you inquire into the charges so made, and if the truth and sufficiency thereof shall be established to the satisfaction of the senate, that the said George M. Curtis be then removed from the office of justice of the said marine court."

The matter was referred to the judiciary committee with instructions to serve copies of the charges and specifications on Judge Curtis, require his attendance before the committee on a day to be specified, and to settle the issues in the proceeding. This course was adopted, and Judge Curtis elected to be tried before the senate, rather than before a committee.

The prosecution asked to amend certain specifications, but the request was denied by the senate on the ground that no charges or specifications could be considered except those presented by the Governor. Judge Curtis asked that the proceedings be dismissed for lack of juris

diction, because the marine court was not a court of record. The senate held that the court was not "an inferior court not of record" within the meaning of the Constitution, and that it therefore had jurisdiction of the proceeding.

The senate voted "not proven" on all the charges against Judge Curtis, and the case was accordingly dismissed.

De Witt C. Ellis.-In the case of De Witt C. Ellis, superintendent of the bank department, 1877, charges were transmitted to the senate by Governor Robinson, accompanied by documentary evidence relative to the official conduct of the superintendent in relation to a certain bank alleged to be insolvent. Concluding his message, the Governor said:

"Upon these charges, and the proofs in support of them, which I transmit to you herewith, it becomes my duty to recommend to you, as I now do, the removal fron office of De Witt C. Ellis, superintendent of the bank department. This recommendation is made as a basis of action on the part of the senate, upon the assumption that the depositions annexed to the charges are true, and make out a prima facie case. It is due to Mr. Ellis to say that, upon my invitation, he has appeared before me and made explanations which seem to acquit him of any intentional wrong, but not, in my judgment, of culpable negligence. I submit the whole matter to the senate for such investigation and action as it may think proper for the protection of public interests."

The proposition for removal was adopted by a vote of 21 to 10. Following this vote, the senate, adopting Governor Robinson's view, passed a resolution expressing the opinion that Mr. Ellis had not been guilty of any intentional wrong.

John F. Smyth.-Governor Robinson in a special mes