formed by the attorney general, either directly or through assistants appointed in the several counties.

A district attorney was elected in Kings county in 1895. In 1896 the legislature, by chap. 772, provided that district attorneys in Kings county should be elected once in every four years, and specifically declared that the incumbent should hold office until the 31st of December, 1899. Construing the provision providing for a different term for certain officers in the counties of New York and Kings, the court say that until the legislature acted, the terms of county officers elected in those counties "must be deemed to be two years, which, as to future cases, may be extended to four years if the legislature shall so prescribe;" and in the absence of legislation the minimum period should be taken as the duration of the term. People ex rel. Eldred v. Palmer (1897) 154 N. Y. 133, 47 N. E. 1084. The same rule was applied as to coroners, construing Laws 1896, chap. 424; Re Burger (1897) 21 Misc. 370, 47 N. Y. Supp. 292.

SHERIFFS.

A sheriff elected to fill a vacancy holds for three years, and not simply for the remainder of the unexpired term. People ex rel. Gallup v. Green (1829) 2 Wend. 266.

The same rule was applied to a register elected to fill a vacancy in New York. Coutant v. People (1833) 11 Wend. 512.

Governor Seward in 1842 removed a sheriff and appointed a successor. In 1843 Governor Bouck removed this successor without charges, and appointed another person to fill the vacancy. In People ex rel. Faxton v. Parker (1843) 6 Hill, 49, it was held that the appointment by Governor Bouck was regular, and that he could remove Governor Seward's appointee without charges under the authority conferred by 1 Rev. Stat. 122, § 38, which provided that "all officers who are or shall be appointed by the governor for a certain time, or to supply a vacancy, may be removed by him." It will be observed that the constitutional provision requiring a copy of the charges to be delivered to an accused officer, and giving him an opportunity to be heard, applies only to officers elected by the people. The present statutory provision on this subject is found in the public officers law, § 23, which requires notice and an opportunity to be heard before removal in the case of officers appointed to fill a vacancy as well as to those appointed for a full term.

Construing the provision relating to the liability of the county for the sheriff's acts, Justice Ingraham, in Wolfe v. Richmond County

(1860) 19 How. Pr. 370, says that the true construction of this provision is that "for anything done by the sheriff in the discharge of his official duties, the county should not be liable." It has no application to an action for damages under the act of 1855, chap. 428, making the county liable for damages caused by mobs. Ely v. Niagara County (1867) 36 N. Y. 297.

The act of 1882, chap. 251, in substance made the Albany county penitentiary the county jail of that county, and the superintendent of the penitentiary was made the jailer. The superintendent was given the custody and control of all persons confined in the penitentiary. In People ex rel. McEwan v. Keeler (1883) 29 Hun, 175, this act was held unconstitutional. The superintendent was to be appointed by the board of supervisors. The court say that the Constitution does not permit the legislature to evade its provisions by taking away the powers and duties of an officer made elective by that instrument and giving them to some appointee, leaving the people the poor privilege of electing an officer who is such only in name. "The common law powers and duties pertaining to the office of sheriff could not be transferred to an appointed officer. . . The custody of the jail and of the prisoners confined therein is one of those powers and duties which, by common law, belonged to the sheriff, and which continued to belong to him down to the adoption of the Constitution."

In Pearce v. Stephens (1897) 18 App. Div. 101, 45 N. Y. Supp. 422, the court sustained the act of 1897, chap. 108, creating a board for the appointment of police commissioners in Richmond county, and making the sheriff a member of the board. The statute did not violate the provision prohibiting the sheriff from holding any other office. He was not, by the statute, invested with another office, but was only charged with the performance of an additional duty which might be imposed on him as one of the authorities of the county. "Although the sheriff may hold no other office, he may and is, by constitutional requirement, obligated to perform such duties as may be constitutionally imposed in his capacity as county officer, which are as clearly imposed and enjoined as is the obligation to perform the duties of sheriff."

GOVERNOR'S POWER OF REMOVAL.

Re Guden (1902) 171 N. Y. 529, 64 N. E. 451, involves an extraordinary exercise of the power of removal

by the governor, and establishes a new principle of executive jurisdiction under this section. At the general election in 1901 Charles Guden was chosen sheriff of Kings county, and entered on the duties of his office on the 1st of January, 1902. Soon afterwards charges against him were presented to the Governor, based upon acts alleged to have been committed by Mr. Guden prior to his election. The Governor entertained the charges, and on one of them the sheriff was removed. It appeared from the Governor's findings that, prior to his election, Mr. Guden had made an agreement with a third person to appoint the latter his official counsel in the event of his election, in consideration of his political support during the campaign, and this was deemed a sufficient reason for his removal. Justice Gaynor at Special Term ([1902] 37 Misc. 390, 75 N. Y. Supp. 786) held that the Governor had no jurisdiction to remove the sheriff on charges involving acts committed before the beginning of his term. The appellate division ([1902] 71 App. Div. 422, 75 N. Y. Supp. 794) held that Mr. Guden's agreement in relation to the appointment of counsel was a sufficient justification for the exercise of the Governor's power of removal, especially as it appeared that the agreement could not be performed until the sheriff had become vested with the title to his office.

It was conceded by counsel for both parties, and assumed by the court when the case was in the appellate division, that the Governor's power of removal was not absolute, but might be reviewed by the courts. Justice Willard Bartlett, writing the opinion of the appellate division, says he thinks "the charges to which this constitutional provision refers must be such acts of commission or omission as affect the usefulness of the incumbent as a public officer;" and expresses the opinion that "a corrupt promise, made before election, to exercise his official powers in

a particular way, affords a sufficient basis in law for the removal of the officer by the Governor." This decision is close to the border line, and it seems to be sustained only by the consideration that the usefulness of the sheriff was seriously impaired by the fact that his action as a public officer had already been discounted by the agreement made by him while a candidate, and also by the consideration that, by such agreement, the sheriff had deprived himself of the power to appoint the subordinates after coming into office. The court of appeals held that the Governor had jurisdiction, and therefore sustained the removal, but declined to consider the case on the merits, holding that the power of removal is executive, and therefore not subject to judicial review. What the decision of the court might have been if the act complained of related only to conduct prior to election, and which was not and could not be connected with the performance of any official duty after his induction into office, is not suggested.

In the chapter on the Commission of 1872, I have quoted the proposition submitted by Mr. Dudley to add to the section relating to the official oath a provision that any person who should swear or affirm falsely in his official oath should be removed from office, and have there suggested that the Governor, in the Guden Case, asserted the principle of the clause by removing a sheriff who was alleged to have taken a false oath. The power asserted by the Governor in this case, and sustained by the courts, is not likely to be exercised or invoked very frequently, for the Governor will doubtless be slow to act in a case where a removal would in effect nullify the decision of the people in their sovereign capacity in making choice of a citizen to perform the duties of a public office.

That the final act by which the governor removes a public officer is executive must be conceded. It is an ex

ercise of one of the highest prerogatives of government and one which, in a monarchy, is possessed and exercised by the Crown. Thus, during the colonial period the governor and executive council representing the Crown frequently exercised the power of removal, and it was the same kind of power that was exercised by the King in appointing and removing colonial officers. It was executive. The framers of the first Constitution were unwilling to vest in the governor of the new state all the powers possessed by the colonial governor, and as a substitute created the Council of Appointment and vested it with the power to appoint nearly all public officers. I believe, as I have tried to show, that it was the original design in creating the Council of Appointment to give the governor the exclusive power of nomination, subject to confirmation by the senate members of the Council. But the Convention of 1801 gave all the members of the Council equal power of nomination, and thereafter this power was freely exercised. The Council could remove without charges. I have elsewhere shown that, under the peculiar political conditions of that time, the Council finally became an obnoxious and intolerable political machine. But it exercised an executive power and was substantially the only appointing power in the state. When the destruction of this council was decreed, not only by popular opinion, but expressly, by the Convention of 1821, it became necessary to devise a substitute, or else distribute its powers among different departments of the government. The power of choice of the officers named in this section was transferred to the people; but it became necessary to prescribe a method by which such officers might be promptly removed in a proper case without the slow process of an ordinary impeachment; and the governor, as the executive head of the state, was vested with this