Albuquerque evening citizen. [volume] (Albuquerque, N.M.) 1905-1907, 1905-09-02
GOVERNORS ACT
REMOVING FROM
Office BernaIillO Officials is
USurpatiOn Pure and
Simple.
50 SAYS ATTORNEY CHILDERS

NAt hieAAHFlbh Va INV t0'
ernor Otero attempting to remove
from Office the sheriff, treasurer and
ex-oficio collector, and school super
intendent Of Bernalillo county, | wish
briefly to discuss the claim of unlim-
tied executive power asserted by the
governor and by District Attorney
Clancy in the brief he filed with the
governor. | feel sure that this claim
will astound the legal profession and
all intelligent citizens of New Mexico.
The bold enunciation Of such a claim
of uni estricted executive control of
every office in the territory. now filled
by the votes of the people, transcends
in importance to the people of New
Mexico, any possible charges against
the incumbents of these offices. | do
not mean by this statement to admit
that the charges nave been sustained
by n evidence produced at the So
called hearings. The sufIiciency or
the truth Of these charges is entirely
irrelevant TO a discussion of the PIE
rogative claimed TOR the territorial eX-
ecutive. \ simple statement of that
claim will show that it is wholly i'm
material, as to the power to exercise
this prerogative, whether any charges
whatever were made or any evidence
adduced in support of them. What is
that claim? Read the orders made by
the governor, and it will be learned
that the executive bases mis- power
to remove on no specific law of the
territory or of the United States, but
we win quote the language OF the or
der removing the sheriff. /, is as fol-
lows:
THAT his continuance in his office
would make it impossible for me to
discharge the duty imposed upon me
by the legislation of congress that i
shall take care that the laws be faith
fully executed"
The power of removal is asserted
upon the same ground in the orders
in the other two cases, and 1t is the
only ground asserted. This is the law
upon which the district attorney based
his claim of the power of removal in
his brief. 1t is an assertion that the
power which the president of the
United States has to remove officers
appointed by him, is vested in the gov
ernor of the territory as to officers
elected by the people for a fixed term.
1t makes the governor the sole judge
of what act on the part Of a public
official would render it impossible for
the governor ito take care that the
laws be faithfully executed" 1t is
immaterial whether any act at all is
committed or omitted. 1t is imma-
terial whether any hearing is had or
any evidence adduced. This power
the president has as to certain classes
of officers, appointed by him. But
neither the president nor the governor
of any state or territory has ever be-
fore assumed to exercise any such
pnurar nvrpr on nfHcAr n1aptDI nv the
people. And I say this without the
fear of contradiction. 1t is a power
which the supreme court of New Mex
leo denied to the governor as to the
Office of district attorney, in the case
of Wade VS.. Ashenfelter, 4 n. NJ, SO.
This decision has never been over
ruled, and is based upOn and is sup
ported by cases decided by the high
est courts in the country. The act
of congress creating the territory and
defining the powers of the governor,
provides, it is true, that 'he snail
take care that the laws be faithfully
executed" Our supreme court has
quoted with approval the following
as to this pretended claim of executive
prerogative:
This clause is merely declaratory
and directory. 1t confers no specific
powers, nor does it enjoin any specific
duty. This power OF general super
vision, says an able commentator on
American law, e Walkers American
Law, 103), is a duty enjoined on the
federal and state executives. 1t would
be dangerous, however, to treat this
clause as comforting n specific power
which they would not otherwise pos
sess. 1t is TO be regarded as a COM
~prehensive description of the duty of
the executive to watch with all Wig
lance over the public interests. The
governor is not to execute the laws
himself, but to see them executed.
This duty is performed by lending the
aid and power of the executive arm
to overcome resistance to law. n
history of the federal and state gov
ernments afford practical exposition
of this clause of the constitution, in
conformity with this construction. The
executive is to see the laws executed
as they may be eXpounGed by those
TO whom that duty is entrusted. II
this clause confers the power of su-
pervision and dismissal as TO one Off
Ger, II also gives the same authority
over every other one in the govern.
ment upon whom the per-
Torrance of a duty may be enjoined.
Inc injunction 10 see me laws 6N-
ecuted is general, and sufficiently COM
prehensive TO embrace every law and
officer. If, under this clause, the gov
ernor may dismiss the secretary, 1t
cannot be seen why he may not dis
miss every other one without re-
gard to their manner of appoint
ment or the tenure of office, and
thus, by the construction Of m clause,
bring all the officers and the opera
tion of all the laws of the state, under
executive control. This would cOuu-
teract the whole scope and design of
the constitution, by substituting the
changing and capriciOus will of one
man for the fixed and known rules of
the law. From this consequence there
is no escape, if the rule be as con-
tended or.'-Wade VS.. Ashenfelter,
4 n. NJ, 1876.
The reasoning and conclusions eX-
pressed i'm this quotation are univer-
sally received as settled law by the
courts and writer's on constitutional
law i'm the United States. The power
of the president to remove from office
does not rest solely upon this same
language. which is found in the con-
stitutiou, and the difference between
the president and a governor has by
all the authorities been discussed and
defined. We cannot discuss them, I'm
a reasonable space-it is sufficient 10
point out one difference: The presi-
dent appoints the officer he remOVes-