Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-06-08

United State, engrafted into the Federal
Constitution itself, to ascertain whether OF
not the ambiguous language of Article Y.
may be construed TO confer all these powera
upon the Executive.
In speaking upon this subject, desire to
say that this limitation which is contained in
the Federal Constitution, which is principle
In the government Of the States OF the Union,
} that there shall be guaranteed to the several
States republican form of government, sp-
plies as we'll to each individual case as it does
to the entire machinery Of government; so
If there be any limitation upon the powers Of
the State, that limitation must be held to go
throughout all the rsmi6cations Of the la~.
The provision of this State Constitution is
that the Governor shall have the power to
remove either of the Directors for miscon-
duct, incompetency or neglect Of duty, after
an opportunity TO be heard upon written
charges. Now l say, frat. if this were be-
f0r9 Court, that Court would never con-
strus this Constitution in such o manner as
to place upon the trainers OF the Constitution
and the pecpls an intent 10 this instance, to
violate the fundamental principles Of govern
ment; to give, n other words, TO the Execu-
tive the power TO hear sad determine, TO pass
judgm5ns, to become actor in the case, to file
charges, TO execute judgment after it had
heen rendered by himself; l say they never
would construs it to do that. becsuss it would
/ DC III OpDDnlAADl 70 tEOSG AlLuaul6GGai
principles which | haVs JUST named TO
your Honors. Where q provision of the
| Constitution contains language ambiguous
in its nature where it contains language
which in itself cannot be construed to be
positive and direct conferriny Of the power,
| Courts and officers authorized to coastrue the
Constitution will always construs it in such
manner as TO make it conform to settled prin-
| ciples and settled rules of procedure. The
oFf fbia ffouutikvIfOv, fs
l undertake to say that if the Legislature Of
this State in its wisdom had provided that
/ when the Governor desired to do so he might
file written charges before Court Of compe-
| tent jurisdiction that the charges should be
heard, and if found TO be true, the Governor
should then remove the party from office
that it could not be said that the law would
be in conflict with any direct and plain pro-
vision Of the Constitution, for the reason
that while this provision. in terms too
| direct, too plain, too unmistakable TO be sus-
/ ceptibie Of more than one construction, con.
| fers upon the Governor the power to remove,
! it does not say that that removal shall be
| after hearing before the Governor And in
the construction of this provision Of the Con-
! stitutioD, when we ask ourselves where was
! it that it was intended by the trainers Of the
| Constitution that parties should bs heard,
should have an opportunity 10 be heard, we
| look TO the other provisions Of the Constitu
| ti0rs st once, and we ask ourselves, upon
| whom, by this Constitution, was judicial
| power conferred! Aodhencs we refer TO that
/ part Of the C0nsti.uI1n comforting iudicisl
J power upon SEP arase departments OF the Gov
ernmeu , and conclude that it was the inten-
! ton of the frame "a OF the Constitution to give
| the party sn opportunity to be heard before
a Count ot Justice. Coart that has jurisdic-
ton TO determine such matters, a tribunal
possessing the powers hat must be exercised
/ bafore the Judgment Of the Governor can be
exerci. ed in the removal of an officer. | say
then thAs this provision Of the Constitution is
| susceptible OF two constructions; but if sus.
ceptible of a single construction. then that it
violates the Constitution of the United States,
which guarantees to every State a republican
form of government.
Judge Wallace-Let me interrupt you, to
make remark. In many cases ths power
exists to remove without investigation. In
cases where investigation is provided, does
that take away any of the authority
Mr. Hsrt-I answer that by saying that
in those cases the officer is appointed during
the will of the Executive. The Executive
says to him: II am through with your serv.
| icss and l remove you from office.n Your
Honor will remember that according TO the
common law an Office was al incorporeal
| heredi5ament. It Is aot at this time an in
| corporeal hereditsmslt. Il possesses the
same essential qualities Of property thst it
! possessed at the common law, except tha. it
/ cannot be inherited. 1t was thing that
was the subject then Of an action st law II
is thing which today is this sub
! jsct Of an action at law. It is p-op-
| erty because it possesses value, and
| possesses all the nature Of an inc0rporeal
hereditsment. except that It cannot be inher-
tied. An office which is to be held at the will
! Of the Executive is linissd to the will of the
| Executive. is limited by fhs will of the Execu.
tive, and the term expires upon the command
Of the ExaGutivs TIE term goes Gu. when
his viii directs that it shall DO so. But
where, by the Constitution, man is the pcs
sess0r of an office, in possession of an office,
| which by the Constitution has a term
affixed, he has a right Of p -opsrty in that
| office for the term, unless by the words OF
the Constitution or the laws creating the
Office he forfeits his property, or his right to
the possession of il. In this instance these
officers are entitled to this office for the term
fixed by the Constitution. But no Governor
is given the power to forfeit this right &c the
Office in such proceeding as this Aud your
| HOnors will notice that the Constitution in
this respect is mandatory, that the Governor
shall remove That he shall remove for mis-
conduct upon the determination Of judicial
officer, upon the determination Of the law
and the fact. Now say that II there Is in
This llSFAucey WHICH htltIe must De- according
to their theory, a combination in the Exscu-
tive Of the right to ldicially determine the
facs Of misconduct 10 office, and let the for
feiture of the offiee follow by the Executive
act of removal, thst it is 3 C sncentration ia
the hsnds of tie Executive of the powers es.
ssnHally belonging TO two coordinate depart
ments Of tie State Government.
Cooley, in bis work OF Constitutional Lin
i,ations, says: The power of the people 90
amend or revise their institutions is limited
by the Constitution Of the United States in
the following particulars l. must not abol-
ish the republican form Of government. since
such su Act would be revolutionary in its
character, and would call for and demand iu-
terveation on the part of the Government of
the I nited States.
In determining what are the essential Quail
tiles for the preservation of e republican form
of government, be says " The usual checks
and balances OF republican government, in
which consists its chief excellence. will be re.
tsinei. The most important Of these are the
separate departments for the exercise of leg
islative, executive snd Judicial power; and
these are to be kept SIS distinct and separate
rs possible, except in so far as the action Of
one is made 20 constitute restraint upon the
action Of the OthsTs. t. keep them in proper
bonnds, aud to prevent hasty and improvi.
dent action. Upon legislative action thereis
FIRST, the check of the Executive. who will
generally be clothed with qualified veto
power, and who may refuse to execute laws
deemed unconstitution and second, the
check Of the ju3iciAry, who may anuul uE-
constitutional laws. and punish those con.
earned in enforcing them. Upoajuiicial ac
ti1n there Is the legislative check, which con.
sists IN the power 10 prescribe rules for The
Courts, srd perhaps restrict their suthority
and the executive check CT rtfus ing aid in en-
iorcing any judgments which are believed
to be in excess Of jurisdiction. Upon exeeu.
tive action the Legislature has power Of
restraint. corresponding to that which It ex-
eTcisesupo Judicial scion and the judiciary
may punish executive agents for snv act in
excess Of executive authority. And tbs Lsg-
islative department hss sn important re-
straint upon both the executive and the Ju-
dietary, 10 the power of impeachment for lille
gal or oppressive action, or for any failure to
perform official duty, etc,
Thus il will be sesn thst the trainers OF the
Constitution Of the United States recognized
the necessity, ss the time Of the organization
Of the American Government, for the forma-
tio7 Of government in which eli power
could nos be placed in 8 single individual ;
recognized the necessity for . distribution
of the powers snong the several depart
msnts, snd they formed 8 government pos
sessing these powers distributed in
this manner, and denied to the several States
ths right to interfere ia any manner with
tha. theory OF government uader which the
I fathers OF the Reuuhli- sorrrhA the firm alton