sage to the senate, dated February 21, 1878, transmitted charges of official misconduct against John F. Smyth, superintendent of insurance, in which, after giving a sketch of the misconduct alleged, the Governor says: "I, therefore, recommend the removal of the said John F. Smyth from the office of superintendent of the insurance department." Mr. Smyth was not removed, but the record does not give the vote.

Governor's recommendation.-This part of section II authorizes the senate to remove a judicial officer on the recommendation of the governor. This necessarily requires a preliminary proceeding before the governor, as the foundation of his recommendation. A complaint should be presented to the governor, and he should give the accused officer an opportunity to be heard in this preliminary proceeding, for the purpose of determining whether a case has been established, and whether a removal should be recommended. The senate has no original authority in the matter, and can only act on charges presented by the governor.

There has been some difference of opinion among the governors as to procedure, and as to the question whether the governor's recommendation should be absolute or only contingent. Thus, in the case of Judge Smith, Governor Fenton, in the original message, recommended his removal unless he disproved the charges against him. In the cases of Judge Prindle, Judge McCunn, and Judge Curtis, Governor Hoffman recommended only that the senate inquire into the charges, and if they should be established, that the judge be removed. He did not recommend a removal, except as a possible result of an investigation by the senate.

Governor Robinson took a different view of executive jurisdiction, and in the case of Mr. Ellis, and again, in the case of Mr. Smyth, made a positive recommendation

that the officer be removed. This recommendation required the concurrence of the senate, after an investigation by that body. Governor Robinson seems to have reached a more accurate result than his predecessors in construing the power conferred upon the governor by this section of the Constitution. The senate is required to "concur" in the recommendation of the governor, who should first be satisfied, after such investigation as he thinks proper, that the officer ought to be removed. The Constitution seems to require an absolute, rather than a contingent, recommendation. The removal is by the senate, but only on its concurrence by the required vote in the governor's recommendation.

Review of legislative action.—The power of removal vested in the legislature or the senate by this section, like the power of removal vested in the governor by other provisions of the Constitution, is executive, and is also political in the highest sense, for it is an exercise of the sovereignty of the people, acting through their chosen representatives. Originally, as already pointed out, the power possessed no judicial characteristics. The removal was to be by resolution, and need not have been supported by any expressed reason, nor was the accused officer entitled to a hearing; but since the amendment of 1845 a removal by the legislature or the senate must have been based upon a judicial investigation. It has already been observed that there is no appeal from an order of removal by the legislature or the senate, and, while the legislature or the senate in a given case is the sole judge of the sufficiency of an alleged reason for removal, and its determination of this question is not subject to judicial review, the courts, nevertheless, undoubtedly possess power to inquire into the validity of the removal, and may determine whether the legislature or the senate, in a particular case, has jurisdiction, and whether the power of removal was exercised in accordance with the requirements of the Constitution and the law. The power of removal is not absolute

and unconditional, but must be exercised in the manner prescribed by the Constitution and the statutes.

This subject is also considered in a note to article 10, section 1, on the governor's power of removal.

§ 12. [Compensation; age limit.]—The judges and justices hereinbefore mentioned shall receive for their services a compensation established by law, which shall not be increased or diminished during their official terms, except as provided in section five of this article. No person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age. No judge or justice elected after the first day of January, one thousand eight hundred and ninety-four, shall be entitled to receive any compensation after the last day of December next after he shall be seventy years of age; but the compensation of every judge of the court of appeals or justice of the supreme court elected prior to the first day of January, one thousand eight hundred and ninety-four, whose term of office has been, or whose present term of office shall be, so abridged, and who shall have served as such judge or justice ten years or more, shall be continued during the remainder of the term for which he was elected; but any such judge or justice may, with his consent, be assigned by the governor, from time to time, to any duty in the supreme court while his compensation is so continued.

[Const. 1846, art. 6, § 7; Jud. Art. 1869, §§ 13, 14; Am. 1880.]

COMPENSATION.

In 1835 the salary of the chancellor and of judges of the supreme court was fixed at $2,500. In 1839 it was increased to $3,000, and this was the salary received by these officers when they closed their business under the Constitution of 1846, and went out of office on the 1st of July, 1848.

Court of appeals.—The legislature of 1847 established the salary of the judges of the court of appeals under the new Constitution at $2,500. In 1857 the salary was increased to $3,500, and in 1869 to $6,000. The legislature of 1870, acting under the new judiciary article of 1869, fixed the salary of the chief judge of the court of appeals at $7,500, and of the associate judges at $7,000, and the members of the commission of appeals, created by the judiciary article, were to receive the same compensation as associate judges. Two acts were passed at the same session authorizing an allowance to judges of the court of appeals for their expenses. The first act, chap. 203, did not fix any limit, but subsequently, by chap. 408, the maximum allowance was fixed at $5 a day. The legislature of 1871 again modified the provision relating to the allowance for expenses by prescribing the payment of $2,000 annually to each judge in lieu of other expenses then allowed by law. In 1887 the salary of the chief judge was increased to $10,500, and of the associate judges to $10,000. In 1898 a further allowance of $1,700 was made to each judge for expenses. This makes the aggregate amount payable to the chief judge $14,200, and to each associate judge $13,700.

Supreme Court.-The legislature of 1847 established the salary of justices of the supreme court at $2,500. This was increased to $3,500 in 1857, and in 1869 the salary was further increased to $5,000. In 1870 the compensation of justices of the supreme court was fixed at $6,000 per year, and an allowance of $5 a day "for their reasonable expenses when absent from their homes and engaged in holding any general or special term, circuit court, or court of oyer and terminer, or in attending any convention to revise the rules of said court." In 1872 the allowance for expenses for justices of the supreme court, except in the first district, was fixed at $1,200.

This provision was construed in People ex rel. Bockes v. Wemple (1889) 115 N. Y. 302, 22 N. E. 272, where it was held that the grant of a fixed sum for expenses was a part of the judge's compensation. The court say that the term "compensation" means the sum which a judicial officer is entitled to receive from the state, and by this statute the judge became entitled to the whole of the $1,200, whether he incurred any expenses or not. Considering the substitution of a fixed sum for the per diem allowance previously allowed, the court say: "The law operated to increase the fixed compensation of the justices, while withdrawing any compensation measured and determined by time occupied." A judge whose term had been abridged by the age limit provision of the Constitution was held entitled to the $1,200 in addition to the $6,000 specifically described as compensation.

In 1900 a further provision for the expenses of trial justices was made, and each judge became entitled to receive his expenses, not exceeding $1,000, annually, incurred by him in holding court outside his home county, except in the counties of New York and Kings. Outside justices holding courts in these two counties received extra compensation under other statutes. Trial justices generally, except in the first and second districts, are entitled to receive $7,200 as a fixed sum, with a possible additional $1,000 for actual expenses while away from home.

Appellate division.-I do not find that members of the old general term received extra compensation for services in that court, except in the first district. The legislature of 1852 authorized the board of supervisors of New York county to pay the expenses of outside judges assigned to duty in the first district. This included the general term. The act of 1855 fixed the allowance for expenses at $10 a day, and in 1875 this was extended by giving members