Field v. People of State
| Decision Date | 31 December 1839 |
| Parties | ALEXANDER P. FIELDv.THE PEOPLE OF THE STATE OF ILLINOIS, ex rel., JOHN A. MCCLERNAND. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
THIS cause was heard in the court below before the Hon. Sidney Breese. It was very ably argued in this court.
CYRUS WALKER, JUSTIN BUTTERFIELD, A. P. FIELD, and LEVI DAVIS, for the appellant;
J. B. THOMAS, S. A. DOUGLASS, JAMES SHIELDS, and JOHN A. MCCLERNAND, and the attorney general, WICKLIFFE KITCHELL, for appellees.
The cause was argued before the appointment of the present Reporter, which fact will account for the neglect to cite the authorities presented, or a synopsis of the points made on the argument. None of the counsel have furnished him with their briefs, and the only argument furnished is a newspaper copy of Mr. Douglass', which is too long to insert here without occupying too much of the volume with a single case.
WILSON, chief justice, delivered the following opinion:
This case was brought into this court by appeal. It is an information in the nature of a quo warranto, filed by John A. McClernand against A. P. Field, to know by what authority he holds and exercises the office of secretary of state of the state of Illinois. The facts of the case are, that Field was legally appointed secretary of state, in 1829; and has continued in the discharge of the duties of said office ever since. On the second Monday of August, 1838, Thomas Carlin was elected governor of the state of Illinois, and on the 1st day of April, 1839, by virtue of his authority as governor, he appointed John A McClernand secretary of state, in the room and place of A. P. Field, the then acting secretary.
The question presented for the opinion of the court, is whether A. P. Field, the appellant, or J. A. McClernand, is entitled to the office of secretary of state. To the parties immediately before the court, the case is of some interest; but it derives its great importance from the fact, that the fundamental principles of the government are drawn in question. In deciding who is entitled to the office of secretary, it becomes necessary to decide whether the governor of this state possesses the constitutional power of dismissing from office the secretary of state, and appointing a successor, at his will and pleasure. For, upon the validity of the governor's claim to this power, depends the appellee's title to the office of secretary of state, which he claims under an appointment from the governor.
The case, then, resolves itself into the single question, Does the governor possess the constitutional power of removing from office the secretary of state, and appointing a successor, at will?
In deciding this question, recurrence must be had to the constitution. That furnishes the only rule by which the court can be governed. That is the charter of the governor's authority. All the powers delegated to him by, or in accordance with, that instrument, he is entitled to exercise, and no others. The constitution is a limitation upon the powers of the legislative department of the government; but it is to be regarded as a grant of powers to the other department. Neither the executive nor the judiciary, therefore, can exercise any authority or power, except such as is clearly granted by the constitution.
(1) Browne, Justice, being connected by affinity with the relator, declined sitting in this cause.
In deciding upon the powers of the governor, it will be necessary to enquire how far the provisions of the constitution relied upon in support of his claim of power, have received a practical exposition by the several departments of government. An exposition of the constitution, so made, and long acquiesced in, as to the powers of the several departments and functionaries of government, must prevail, unless it can be clearly shown to be founded in error.
The political axioms of other governments, have been referred to by the counsel for the appellee. The practice of other governments analogous to ours, in the objects of their creation, in their form, and in their constitutional grants of executive power, are certainly entitled to respect, in settling the unsettled practice of ours. But it must be obvious that the practice and maxims of governments widely different from ours in their character, and the theory and principles upon which they are constituted, must be incongruous with ours, and inapplicable to a question involving the powers and duties of its functionaries.
The practice, therefore, of the general government, which is relied upon, and the maxims derived from the British government, that the power of appointment to, and removal from office, is an executive function, can be no further applicable to our government, than it is made so by the provisions of the constitution.
The general government differs from ours in its powers and attributes; and although we have adopted the common law of England, we have neither adopted the form of that government, nor recognized the principles upon which it is founded. According to the theory of that government, the king is the sovereign power of the state. When a question of prerogative, therefore, arises there, recurrence is had to the charters of the people's rights and liberties, to ascertain whether the right in question has been surrendered by the king to the people; and if the grant can not be shown, the right is adjudged to the king, upon the principle that all rights of which he has not divested himself, by express grant to the people, come within his prerogative. But upon the principle of our government, that the sovereign power of the state resides in the people, and that only such powers as they have delegated to their functionaries, can be exercised, where a claim of power is advanced by the executive, the question is, not whether the power in question has been granted to the people, but whether it has been granted to the executive; and if the grant can not be shown, he has no title to the exercise of the power.
As the right of the governor to remove the secretary must be granted by the constitution, or it does not exist, it therefore devolves upon those who advocate the claim of the executive power, to show the grant upon which it is founded; to point out the clause and section of the constitution from which it is derived. How has this been done? Has any express grant been produced? No; it is not pretended that any express grant is to be found in the constitution. But it is contended that the power in question is granted to the governor by implication. That from the grant of other powers, this one of removing the secretary from office is necessarily implied, as the means of rendering those grants available; and the following clauses of the constitution are relied on in support of this position:
These are the provisions of the constitution, from which it is insisted the governor's power to remove the secretary is implied. It is also claimed, upon the principle assumed, that the power of removal is incidental to the power of appointment; and again, that it is an executive function, and as such, belongs to the governor.
It may be proper to observe, that there is some discrepancy between the views of some of the counsel for the appellee and those of the circuit court. While they all insist upon the authority claimed in the case, they do not agree as to the source from which it is derived; nor do they all carry the practical application of the principles assumed, to the extent claimed for them by the circuit court. While some contend, with the court below, that the governor's power of removal extends to all the officers in the executive department, others limit it to the secretary. As the opinion of the circuit court has been published, and referred to by counsel, I will, in the examination of this question, advert to it, as containing the doctrine of the advocates of the power of removal.
I will examine the provisions of the constitution relied on, and the positions assumed, in the order in which they are stated.
The first enquiry, then, is, can the power claimed by the governor, be implied from the foregoing provisions of the constitution? That other powers than those expressly granted, may be, and often are, conferred by implication, it is too well settled to be doubted. Under every constitution, the doctrine of implication must be resorted to, in order to carry out the general grants of power. A constitution can not, from its very nature, enter into a minute specification of all the minor powers, naturally and obviously included in, and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule, that when a...
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