shall have been elected; giving to such officer a copy of the charges against him, and an opportunity to be heard in his defense." What the nature of the charges must be, or what charges will suffice, is not in such clause or else where specifically prescribed, and that is what gives rise to the question in dispute. The officers mentioned in the said section are sheriffs, county clerks, registers and district attorneys, all county officers. But by sections 97 and 122 of the charter of the city of New York the governor is given in so many words power to remove the mayor and comptroller of that city "in the same manner as sheriffs." Thus all that we have is that the governor is given the power to remove these high officers, and the only manner prescribed is by this clause of the Constitution, viz., he may remove an officer "within the term for which he shall have been elected," after giving to such officer a copy of the charges against him, and opportunity to be heard." 66 These are clear words of limitation on the power given. Concededly, to remove without any charges being made, or without a hearing, would be unconstitutional and void. On the very same principle, if the charges filed are of facts which cannot in law be charges at all, they give no jurisdiction, and to remove' on them would be an unconstitutional and void act. Could it be contended that charges that the official had kept before coming into office, or was keeping, a liquor saloon, or that he had been or was an agnostic, would give the governor jurisdiction to remove? Nevertheless because the nature of the required charges is not specifically defined, the claim is set up that any kind of a charge, i. e., a charge of anything the governor may deem sufficient, and done by the accused at any time in his life, whether before or after he came into the office, will suffice. It does not seem possible to entertain a doubt that the governor is not given any such sweeping and dangerous power as this. There is nothing in the words used to indicate it, and during the eighty years that this provision has been in the Constitution, no governor or anyone else up to the present time has claimed, or, so fas as known, supposed, that such power existed. To interpret the words of the Constitution as conferring power on the chief executive not only to remove officials chosen by the people for breaches of official duty committed in their offices, but also to remove them for anything else he may see fit, whether committed before or after they got into their offices, would be contrary to the development and history of our system of government, and to the law and practice in similar case from the earliest times. tion in question are looked to closely, they are found to confer no such power, but the contrary. They give the governor the power to try and remove officials, but require as a condition precedent to his exercise of such power, that "charges" be first presented against them. The clause does not in so many words say that such charges shall be of acts or omissions in office. Nor does it say they may be of acts committed before the official came into the office. That it means acts or omissions in office, however, we all know. But on what does the claim rest that it means more than that, i. e., that it also means acts committed before the official came into the office, i. e., that his whole life is subject to attack and trial before the governor? We all know that it means acts in office. To hold that it also means acts committed before the official came into office, would be to read into the clause something which is not there, and which would be most astonishing in this or any other free State if it were there; for it would allow an appeal from the people who elect their officials to the governor on the question whether the officials of their choice should serve or not. The plain purpose of the provision is only to make the official responsible as an official, i. e., for his conduct in office, to the governor, and not to make him responsible or answerable at all in his private character. And the words used forbid the idea that they confer the power claimed. The power given is to remove on charges an official "within the term for which he shall have been elected." If the intention was to empower the governor to remove for acts committed in the man's past life, the governor would not be thus limited to action "within the term," i. e., after the official had come into office. On the contrary, the governor would have been empowered to hold his court and try elected officials in advance of the beginning of their terms, and exclude them from entering therein, and a regular court for that purpose by the governor after each election would be in order. And there is broader ground to stand upon. The clause of the Constitution in question has to be interpreted in harmony with our theory and system of government, and also with the law and practice in like case as it had existed up to the time of its enactment. To interpret it contrariwise would not only be unreasonable but contrary to settled rules of construction. The words used had a settled meaning at the time they were put in the Constitution. They had not been theretofore taken to mean a power of removal for anything done by the official before he came into the office. The common-law power of removal was for neglect or misconduct in office only, as will be seen later on, except for inWhen the words of the clause of the Constitu- dictment and convictions of a crime so infamous as to render the offender unfit to hold any office. It was in this light that this clause was framed, and it was this power and no other that was intended to be put in the Constitution. The meaning which such general words had at common law was continued in the Constitution. This is in accordance with a settled rule of construction (Sutherland on Stat. Constr., sec. 291). To now interpret such clause, so framed and intended, as conferring the unrestrained and unlimited power of removal contended for, would be to substitute a meaning which a general power of removal never had from the beginning. The power of removal for neglect or misconduct in office had been exercised from time immemorial, and needed to be lodged somewhere, and the people lodged it in this instance through the Constitution with the governor. That they should confer such power in respect of neglect or misconduct in office was in accordance with our system of government, its history and traditions, and established law and practice. That they should mean to go further, and extend such power to the removal of officials at the will of the governor for anything he saw fit, whether committed by them before or after they came into office, is an idea so contrary to our theory of government, its history and traditions, and immemorial common law and practice, that it cannot be entertained since it is not expressed by the people in unmistakable words. The setting up of such an appeal from the electors to the governor was never dreamed of. In England the common law on the subject was clearly stated by Lord Mansfield for the court in Rex. v. Richardson (1 Burr. 517). The sum and substance of what was there laid down on that head (p. 538) was that where the power of removal existed in general terms, as is the case here, the particular causes for removal not being specified, the power could be exercised only for offenses committed by the official in office, and against the duties of his office, except for other offenses either outside or inside of his term of office of so infamous a nature as to disqualify him for office, in which case there had first to be an indictment and conviction. This latter ground of removal no longer exists in this State, for the reason that by provision of statute any sentence of imprisonment in a State prison ipso facto forfeits and vacates any public office held by the person sentenced (Penal Code, sec. 707). In this country the decisions of courts are equally clear (Speed v. Common Council, 98 Mich. 360; The State ex rel. v. Walker, 68 Mo. Ap. 110; The State ex rel. v. Com. Council, 25 N. J. L. 536; Commonwealth v. Shaver, 3 Watts & S. 338; The State ex rel. Hart, 53 Minn. 238; The People ex rel. v. Weygant, 14 Hun, 546; People ex rel. v. McGuire, 27 App. Div. 596; Throop on Pub. Of., ch. 16). In the first of these cases the language of the court is as follows: "It is very well settled in this country that the misconduct for which an officer may be removed must be found in his acts and conduct in the office from which his removal is sought, and must constitute a legal cause of removal and affect the proper administration of his office." The other cases cited are also quite as explicit. The foregoing was of course said in respect of a general power of removal for cause, without any causes being specified by law. When the causes for removal are specified by law, the present question cannot arise at all. In the second case cited, in addition to laying down the general rule that misconduct in the office and not previous misconduct is necessary to give jurisdiction for removal, the court says: "There is no restriction upon the power of the people to elect, or the appointing power to appoint, any citizen to office, notwithstanding his previous character, habits or official misconduct." It has been discussed to some extent during the last twenty-five years whether in case an official succeed himself in office, his derelictions during his first term may not suffice for his removal from his second term, the two terms being deemed continuous and as one term; but principle and authority are against it, though there seems to be one case for it (State v. Walsh, 79 Northw. R. 369). That case does not seem to have been much considered by the court, and the decision does not seem in harmony with the statute under which it arose. But the point has no application to the present case. 4. Light is shed on the true construction of the clause of the Constitution in question by reference to the construction of contemporaneous statutes of the same kind and tenor. The statute preferring and protecting veteran soldiers and sailors as appointees and employes in the public service, as it read up to 1896, provided in the same general terms that they could not be removed except for cause shown after a hearing had," but did not specify what causes would suffice; and it is almost if not quite as indefinite in its present amended form. A similar general provision is and has long been in the charter of the city of New York in respect of policemen, and similar provisions exist in the charters of other cities. So far as appears such statutes have been uniformly construed as meaning acts of the incumbent after he came into his office or place. If a new construction is to be established in the present case, it must be a general one, and affect the entire civil service of the State. The result of that would be easy to foresee. 5. Although no charges whatever against Guden in his office were made before the governor, as has already been seen, the governor nevertheless certifies in his certificate of removal that such charges were made. The certificate is signed by the governor and sealed with the seal of the State, and is as follows: 'Charges of malfeasance, misfeasance and neglect of duty in office having been preferred against Charles Guden, the sheriff of the county of Kings, by Thomas O. Piper and another of said county, and a copy of such charges having been served upon him and an opportunity given him to make a defense thereto, and he having thereafter been | heard before me at the executive chamber, in the city of Albany, in person and by counsel, and the witnesses produced by him having been duly examined; now, therefore, it appearing to my satisfaction that the usefulness of the said Charles Guden in the office of sheriff of the county of Kings is at an end, it is hereby ordered that the said Charles Guden be and he hereby is removed from the office of sheriff of the county of Kings." This certificate is untrue in alleging that charges of malfeasance, misfeasance and neglect of duty "in office" were preferred; but the question is presented whether it must be taken as true and binding, and whether, therefore, a court may go behind it, and look at the charges filed, in order to get the truth, i. e., that charges such as are mentioned in such certificate were never preferred. If this applicant is foreclosed by this untrue certificate, he is in evil case, indeed. But he is not in such case. The charges themselves may be looked into to find the truth. The certificate and charges are the judgment-roll, so to speak. If, for instance, no charges at all had been preferred, would this false certificate be unassailable? No authority for such a proposition has been suggested; and the case actually here is no different, for charges not sufficient to give jurisdiction are in fact and in law no charges at all. The charges in this case were no more effectual to confer jurisdiction than charges that Guden was or had been an infidel, or kept or had kept a liquor saloon, would have been. 6. The decision of the Court of Appeals in the case of Matter of Brenner, rendered since this proceeding was begun, leaves no doubt of the right to go back of a certificate of appointment to office in a proceeding like this, and inquire whether it be void, although fair on its face. That was a proceeding like this, and it was there held that the certificate of appointment of one of the parties, and the act under which he was appointed, could be assailed and declared unconstitutional and void. And so in this case the certificate of appointment of the governor's appointee may be gone back of, and the act of the governor in making it declared unconstitu tional and void. The position of the governor is no better or different than if he had acted under an unconstitutional statute. 7. Though this proceeding was begun to test the right of Mr. Dike, the governor's appointee, to such books and papers of the office as he had already got possession of, he refused to await a hearing and decision after the notice and papers herein had been served upon him, and violently broke into the sheriff's office in this court-house, where the Appellate Division of the Supreme Court for the Second Judicial Department, the seven Trial Parts of the Supreme Court, and the two Trial Parts of the County Court sit, and seized the books and papers there, and put the incumbent out, as was stated and conceded on the argument. Such a lack of respect for law and order, and such lawlessness, should not be allowed to pass unnoticed in the disposition of this case, for if it should be generally followed, established government would become degraded. It is only a few weeks ago that policemen of this city took sides in a dispute about title to office, and lawlessly pulled a city magistrate from the bench. If such things could be tolerated, established government could be pulled down and superseded in a day. It is, however, fair to say of Mr. Dike, who has a fine character in this community, that it was stated that he acted, and he presumably did act, under what he deemed controlling advice or authority. In conclusion, it is found that the act of removal of the elected sheriff by the governor was without jurisdiction, unconstitutional and void, and that he is still sheriff. The application is granted. Notes of Cases walks. In the case of Mischke v. City of Seattle, Liability of Municipality for Obstructions in Sidedecided December 16, 1901, by the Supreme Court of Washington (67 Pac. Rep. 357), it is held that a city having the exclusive power over its streets, cannot escape responsibility when it authorizes obstruction for a private purpose. Where a pedestrian carrying an umbrella in front of him as a protection against a storm sustained injuries by falling over the doors of an open hatchway in the sidewalk, the court held that the question of whether or not he was negligent was for the jury to determine. The court said, in part: "It is insisted that the circumstances testified to by the appellant in this case show contributory negligence as a matter of law, and the argument is that he precluded himself from seeing the open cellar way by carrying his umbrella in front of him in the manner described; that it is the duty of pedestrians upon sidewalks to keep their eyes open, and notice where they are stepping; that when they fail to do this they cannot recover for any injury sustained by reason of any defect in the sidewalks; and that, the facts being undisputed, no error was committed by the court in granting the motion for nonsuit. But it must be borne in mind that it is not sufficient to justify the court in taking the case from the jury that the facts be undisputed, but it must also appear that there is no room for a difference of opinion as to the inferences and conclusions to be drawn from admitted facts. Once it is understood by a juror that sidewalks are made for the use and travel of pedestrians, and that the pedestrian has a right to assume that the city has done its duty in so maintaining such sidewalk, it might not be illogical for such juror to draw the inference that no contributory negligence was proven by the testimony in this case. It is a matter of common observation and experience that during storms and squalls of wind it is frequently impossible for a person to protect himself without carrying an umbrella in front of him to such an extent that it would greatly impair his vision, and it seems to us that reasonable men might reasonably differ in reaching a conclusion in this case as to whether or not the appellant was guilty of contributory negligence. It is not the duty of the pedestrian on a sidewalk to bear constantly in mind dangers which may beset him by reason of an imperfect sidewalk. If the rule contended for by the respondent should be enforced, one would not dare to turn his head to the right or to the left in traveling a street, but he would be compelled to constantly notice the sidewalk in front of him." Criminal Law - Confessions.- In Cook v. State, decided by the Supreme Court of Georgia in February, 1902 (40 S. E. 703), it was held that a jury, in passing upon a confession or an incriminating admission, may, if they see fit, accept a part thereof as true and reject a part thereof as false. The court said in part: 'On the main question - Was the evidence, the same being entirely circumstantial, sufficiently strong to show beyond a reasonable doubt, and to the exclusion of every other rational hypothesis, that Tankersly was murdered by Jack Cook? — we are of the opinion that it was. There were threats on the part of the accused indicating an intention to do the deceased great bodily harm. There was Cook's own free and voluntary statement to the effect that he did beat Tankersly almost to death, drawing from him a considerable quantity of blood. This statement was corroborated by the physical fact that blood was found before the house, and traced up to it. The body of the deceased was found, not under the room in which was located the bed on which Cook said he had laid Tankersly after beating him into a state of helplessness, but amid the ruins of another and distinct part of the house. It is a wellsettled rule of law that, in passing upon a confession or an incriminating admission, the jury may believe a portion of the same and reject the balance as false. Bearing this in mind, and taking into consideration all of the physical facts above recited, our conclusion is that the jury were warranted in finding that Tankersly was actually murdered; that the crime was committed by Cook; that the latter told a part of the truth as to his connection with the homicide, and in other respects made false statements concerning the same. It is a fair and reasonable inference from the testimony as a whole that the accused, after beating Tankersly until he was unconscious and unable to move about, conveyed his body into the shed room, and then burned the house for the purpose of concealing the crime; and that he did not lay Tankersly on the bed, minister to his sufferings, and then go home with a view to procuring other means of alleviating his condition. "It was strenuously argued that, as Cook was under no constraint to divulge anything about the matter, he should be given credit for telling the whole truth. This by no means follows. No man can tell what a guilty conscience may impel a criminal to do. Apparently, Cook was under great mental constraint to tell something about the tragedy, but in so doing the principle of self-preservation may have restrained him from truthfully relating all that occurred. The verdict necessarily embraced a finding that some of his statement was true and other portions of it false. It was within the province of the jury to thus deal with the statement, and we are unable, after careful deliberation, to say that the conclusion they reached on the whole matter was not duly established by legal testimony, or that the trial judge abused his discretion in approving their finding." A BIRDSEYE VIEW. The late unlamented legislature which adjourned without day on March 28th, left the governor the customary large legacy of work upon which he is now busily engaged. One, and a very necessary part of this work, is the search for "little jokers.” After having taken a view (not necessarily a Birdseye view) of the field, Governor Odell promptly announced his purpose to knock out one "little joker" in the form of an appropriation of $20,000 for the purchase of about 1,500 copies of Messrs. Baker, Voorhis & Co.'s edition of the Revised Statutes, Codes and General Laws prepared by Mr. Clarence F. Birdseye, which was slipped into the supplementary supply bill in the last hurried moments of the session. Fortunately, the present occupant of the executive chair is no dodger of the responsibilities that properly devolve upon him, and the prompt announcement of his purpose to circumvent the plan to make the State treasury pay a large profit on this law book venture shows that the governor is far above and beyond the contaminating touch of even an octopus. THE VERDICT OF THE LADIES. millions of dollars. In the work before us the author has conscientiously sought to cover all forms (Minister Wu says that women should be tried of compensated suretyship, such as official and pri only by juries composed of their own sex.) The ladies of the jury Gazed at the fair defendant; Her hopes took the ascendant. The lawyers were objecting; The lady was expecting. About the testimony - Went to the jury quarters, "Well, such a dowdy bonnet!" And out-of-date' upon it." Now, didn't it look wilty?" They went and then suggested - Josh Wink, in Baltimore American. New Books and New Editions. A Treatise on Guaranty Insurance. By Thomas Gold Frost, Ph. D., of the New York Bar. Boston: Little, Brown & Co., 1902. 66 This may perhaps be properly called a pioneer" treatise on a very important branch of the law. Its object is to present both the theory and practice of all the various branches of guaranty insurance law, which may be said to have had its entire development within the past quarter of a century, and chiefly within the past ten years. Before 18.40 there were no companies organized for protection against loss by the dishonesty of employes, even in England, and before 1880 none in this country. Now there are more than forty large companies. having general offices in this country with agencies in all of the cities and towns of any prominence, and doing a business amounting to hundreds of vate fidelity bonds, building bonds, court bonds, and credit and title insurance. Mr. Frost brought to his difficult task not only a clear and well-trained mind, but a large experience covering a long period of years with litigation involving contracts of guaranty insurance. He has studied the decisions carefully, and has in the main succeeded in admirably deducing the rules and principles which make the law as it is to-day. The book cannot fail to meet a real want; it seems to us one of the few treatises of the present day for which there is not merely a reasonable excuse, but a sure place. The book is printed in the best style of the University Press and bound in the best law sheep. This is the second edition of Mr. Crawford's excellent little work. It contains the full text of the law as enacted, together with copious annotations. These are not merely a digest and compilation of cases, but indicate the decisions and other sources from which the various provisions of the statute were drawn. They will be found a very valuable aid to an intelligent understanding of this very important statute. In this second edition the notes have been amplified and citations to all the decisions in all the States wherein the law has been enacted some fourteen or fifteen in all, we believe have been added. This edition also contains citations to all the reported cases which have arisen under the act. The Mastery of the Pacific. By Archibald R. Colquhoun. New York: The Macmillan Company, 1902. The author of China in Transformation" has here given us the results of several years close study of the great game that has been going on for many years in which the stakes players are the leading nations of the world, and the stakes the " mastery of the Pacific." It is a curious feature of the new world politics that, at the beginning of the new century, the young powers of the world have demonstrated their ascendency by their action in the east. Mr. Colquhoun points out that of the countries concerned, Australia is the youngest, Russia the oldest - as a world power she is but some two centuries old. England, the old Titan past his prime, feeling the beginning of a decline after a century of supremacy, no longer leads in the Orient. The alliance with Japan is already regarded with doubt by many of her serious thinkers, and other |