The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-10-09

the Constitution of the United States or Statecon-
fers no vested interest in the sense that such an liz
terest is understood, as resulting from personal
obligation or contract. The authority which calls
the office into existence, may add TO, ulmlnlsi,
vary and modify its duties, compensation anu all
the incidents attaching to 1t. Nay, II may aDonsh
the office ITSELF and thus terminate 1t. These are
all acts OF legislation incident to the power OF ap
pointment, which implies that OF removal, IN tne
absence Of constitutional limitation or Testricton.
do notunderstand the case eX parte Henheh do
going farther. ,..
"a mere ministerial officer, appointed durante
bene placitO may be removed without any olne'
cause than that the pleasure OF those Wlo I al
pointed him Is determined anu II - S Tho
appointment of another to the ONCE Is suliiCle.it;
The right in these cases to remove Is iicuen'ai
TO that OF appointment" WILCOX, p. Zo5.
There is a manifest difference 10 be observed
where the time is limited by law. If 1t Is TO con-
tinue solely at the pleasure OF the appointing
power or the officer, as in Hennens case,l IL may
be terminated at the VIII OF &C., eg ttT is nre
scribed. its tenure may be changed either
by extension or dimlnution, by the authority
which originally fixed H.
In SmVth VS.. Latham, the court clearly re-
cognized the distinction between offices, the
term OF which was to exist only at pleasure, and
those where the tenure was fixed to determin-
ate period-and the fact as to the duration was to
be gathered from the language OF the statute
creating the particular ONCE
In Avery VS.. Inhabitants OF Tyringham,
Parsons, c. j., says: at is general rule that
an Office is holden at the will Of either party, un-
less different tenure be expressed IN the appoint
ment, or is implied by the nature OF the ONCE, OF
results from ancient usage" an.
In the case Of Butler VS.. Pennsylvania, the
question before the court was whether the orig,
inaI annointment for certain period entitled
the party during his continuance IN oICe, " n .e
COMPENSATION originally fixed, and wnlcn n was was
afterwards reduced by the Legislaeu[e aintsnt aT
from the Governor to an election by the people,
was not one OF the points submitted in the cause.
In fact while the act (Of 18th April, lS43 changed
the compensation, it was not to go into erect by
its provisions until the I'd Tuesday in January
following. The term, therefore, ofthe omcers re-
NAMED virtually untouched.
In Conner VS.. New York, 1t was held that the
term, the mode Of appointment, anu the compen-
sation may be altered at pleasure, by the Legisla-
ture, where the office was created by statute.
These are all legitimate acts incident to leglsla-
tive power. The term and the compensation
NAV be changed; the office may beabolshed be-
fore the expiration of the period for which the
incumbent was appointed, If no constitutional
inhibition prevents. To vacate an offce during
the term, and to provide for an election TO sup
ply the vacancy thus made is not an alteration or
the tenure That remains fixed. The duties pre-
sented continue as they existed before, and the
sole object and effect OF the act Is to remove the
officer.
act and where he holds, and is in the exercise OF
the offce, (as admitted here by the return) ne can
not be displaced without due observance OF
those safeguards which the law has provided as
check and restraint against unlawful authority on
the part of power, against one to some extent Oc-
cupying an inferior position, because position
originally bestowed from favor.
II the ordinance fixes the term or 0ffice al
though as an incident TO the appointment the
right OF removal Is by implication reserved, yet
as this is judicial act 1t must be exercised in due
conformity with the rules and regulations which
attach in the conduct Of controversy having in
it's attendants and consequences the characters
tics OF trial. II is not to be understood that the
same precision and nicely are to be exacted In
the mode and form in which the allegation Is to be
preferred, or in the manner OF conducting the in
yestigatiOn, as are demanded and observed In
courts OF justice, but the characterof the charge
should be made known to the accused, and the
opportunity OF defence afforded. The Council ap-
pear to have recognized and appreciated this OBJ
iigation for by the ordinance heretofore referred
to- while every officer was regarded as subject to
removal at any time by the votes OF nine or more
members OF the Council for such causes as to
them shall seem sufficient, 1t was not 10 be or
dered without full hearing or the case The
technical word cease" Is employed, ana near
ing implies q consideration OF the facts on which
the supposed ground may be based-the testimony
and the defence-and this is in the nature OF
judicial proceeding, with all the incidents belong
ing to 1t.
been expressed in the ordinance and IT. in fact, 1t
had contained no provision III regard to removal,
should yet hold that the assertion in the man
against law and common right.
a corporate officer cannot be removed with
out cause, though the charter says, generally,
"he may be removed"
In Murdoch VS.. Phillips Academy, 1t was held
"that the removal Of professor Is judicial pro-
ceeding, and to render it binding on him, there
must be q notice TO appear-a charge-opportu-
nity to submit testimony and defend himself"
An expulsion Of member without notice 10
him was held unlawful, though the charter prOvi-
ded that If any member should, for three months,
neglect to pay his arrcarages he should DC en-
PEELED.
'.In general the rule is that every onlcer, before
a motion, shall be summoned and heard In his de-
fence before the body in whom Is vested the
mower of a motion; but this rule Is subject to va
rious necessary exceptions arising from the pres
ence of circumstances which would make 1t USE
less to apply it." Grant on Corporations, 40.
"As where the party has abandoned the once, or
were present at the meeting OF the removing body
called for the purpose Of removing him, anu ne
defends himself before 1t, and where generally the
circumstances show that the party has waived IT,"
Grant, 246. Wilcox, 265.
In the King vs. Gasken a return ito a manda-
mus to restore) was held insufficient, because IL
did not state that the party had been summoned
to answer the charge before he was removed. ~,
Lord Kenyan, G. j., said: "lf we were to hold
this return to be sufficient, we should ueciue con.
trary to one Of the first principles OF justice"
"Andi alteram partem" ut Is 10 be lOunu, AT
the head OF our criminal law, tnat every inan
ought to have an opportunity Of being heard be-
fore he is condemned, and should trembe at the
consequences OF giving way TO this principle"
GrOse j. said: 1.-THE offences charged are abun-
dainty sufficient to warrant the removal; but the
present proceeding is informal, and the return to
the mandamus insufficient"
1t is contended, on the part Of the respondents,
that this rule il 1t exists at ALL is not applicable,
'because the cause Of removal Is entirely discon-
nected from the person OF the officer, his reputa-
tiOn character or conduct" and that Ut existed IN
the fact that the officer was elected In der0ga-
ton of the rights Of the board In office at the date
Of the ordinance"
Even IL this applied to Mr.. Hughes (who in fact
was elected in 1857 1t cannot change the princl.
elected, then representing the corporation, had
the right to hearing before motion.
1t is possible he might not have been able SO 70
INN -ess the body charged with decision, as TO
lead 20 h conclusion different from that whlch
thew attained, nor is it likely that In such an
event q resort to the court would have resulted in
env remedy which could have enured to his ben'
eff. but still am not satisfied that can sus.
tain the proceeding Of public body, acting IN At
least a quasi judicial character which condemns
o citizen without the opportunity 0i nearing
and defence. .,.,, -,
In nv Judgment the respondent gains no
strength from the act (No. 81 'regulating tne
tenure Of certain offices and appointments there-
to, and for other purposes" passed Oh l3th Aug
uSt, 1858. . ,,o,.o
IL is not necessary that / should express here
my opilion whether the said act was not intend
ed rather 10 extend than to restrict the tenure Oy
which .nc various offices to which 1t refers were
held ..or whethe, It Is to be considered as refer
ring alone to Officers whose 'eectlon Ut appoint
mentn is provided for under the neM ou'''a-
tion nor what effect is to be given to the words
''eectien or appointment and qualification ,0s &c,