People ex rel. Finlay v. Jewett

The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Terry concurred.

° The first section of an Act concerning notaries public, passed April 30, 1853, provides that “ the Governor shall have power to appoint and commission notaries public, etc., etc., who shall hold office for two years, and until their successors are appointed and qualified.”

The case under consideration presents the single question, whether the Governor of this State can remove from office a notary appointed under the provisions of this Act, before his full term has expired.

In considering this question, it is to be borne in mind, that the Constitution of this State is a limitation upon the powers of the legislature, and a grant of power to the other branches of the government, and that neither the judiciary nor executive can exercise any other than those [292]delegated; or which; "by express implication; are necessary to carry into effect the granted, powers.

It is a familiar principle in l^,w, that the major includes the minor, and that the power that creates, can abolish or destroy, in the absence of constitutional restrictions; and this principle has been adopted and applied to the political workings of both the State and National Governments.

At an early period in the history of our government, the doctrine of removal, at least where it was sought to be extended to appointments made by and with the advice and consent of the Senate, was questioned, and only maintained by a majority of fourteen in the House, and the casting vote of the Vice President in the United States Senate. “That the final decision of this question,” says Justice Story, “was greatly influenced by the exalted character of the President then in office, was asserted at the time, and has always been believed.”

It will be observed that the Constitution of the United States contains no limitation on the power of removal, and it might well have been considered that the exercise of this power by the Federal Executive, was necessary to a complete execution of the laws, particularly in eases where relations of confidence and trust existed between himself and his subordinates. But in cases where Congress has created the office and defined the term, it has been held, that the incumbent could not be removed at the pleasure of the Executive, for the obvious reason, that having power over the subject matter, they could designate in what manner it should be exercised. This principle was settled in the case of Morbury v. Madison, 1 Cranch, in which it was held, that the Act creating justices of the peace for the District of Columbia, having fixed the term at five years, it was beyond the power of the President to remove such justices during their term.