In re Guden

• Decision Date: 20 June 1902
• Citation: 171 N.Y. 529,64 N.E. 451
• Parties: In re GUDEN, Sheriff.
• Court: New York Court of Appeals Court of Appeals

171 N.Y. 529

64 N.E. 451

In re GUDEN, Sheriff.

Court of Appeals of New York.

June 20, 1902.

Appeal from supreme court, appellate division, Second department.

In the matter of the application of Charles Guden, sheriff of the county of Kings, to compel delivery to him of books and papers, belonging to the office of sheriff, in the possession of Norman S. Dike. From an order of the appellate division (75 N. Y. Supp. 794) reversing an order of special term refusing to deliver up such books, relator appeals. Affirmed.

Charles Guden, the petitioner, was elected sheriff of Kings county at the election in 1901, and thereafter duly qualified, and took office. Subsequently, charges having been presented against him, alleging acts of misconduct committed prior to his election, the governor, after a hearing, ordered his removal from office, and appointed Norman S. Dike in his stead, who, acting under his certificate of appointment, took possession of certain books and papers appertaining to the office of sheriff. The petitioner, asserting that his removal was violative of the provisions of the state constitution, and so ineffective, instituted this proceeding.

Benjamin F. Tracy, Jerry A. Wernberg, Charles H. Hyde, and Levi W. Naylor, for appellant.

G. D. B. Hasbrouck, for respondent.

PARKER, C. J.

There resides in the people of this and every state an absolute power to prescribe rules of action through legislation, to enforce rules of action, and to transact generally the affairs of government, through executive acts, and to determine controversies between, enforce rights belonging to, and redress wrongs done to, citizens of the state, through the courts. This power of the people is uncontrolled except as the people themselves have sought to restrain it either by the constitution of the United States or by the constitution of the particular state in which the act is done, the rule adopted, or the judgment pronounced. Cooley, Const. Lim. 205. These powers, the people of this state have by a written constitution separated, and distributed among the three departments of government created by it-the executive, legislative, and judicial-carefully enumerating the powers and defining their limits; and the constitution must be so construed as to preserve, rather than to destroy, the powers of the co-ordinate branches of the government, thus securing the full exercise of all the powers conferred by the people.

In this country the power of removal is an executive power, and in this state it has been vested in the governor by the people. Const. art. 4, § 1. The constitution further specifically provides-and has since 1821 in effect, and since 1846 in precisely the same words-that ‘the governor may remove any officer, in this section mentioned, [sheriffs, clerks of counties, district attorneys and registers in counties having registers], within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.’ Article 10, § 1. It does not require argument to persuade the mind that the power thus conferred is executive, not judicial, and that it was intended to be vested exclusively in the governor.

If the intent of the framers of the constitution were not plainly apparent from the language of the clause, all doubt would be removed by an examination of the debates of the constitutional conventions of 1821 and 1846. Prior to the constitution of 1821, the office of sheriff had not been an elective but an appointive one. Under the constitution of 1777, the appointments were made by a council consisting of the governor and one member from each of the four great senate districts of the state. The manner in which this power was exercised became the subject of such grave abuse that the convention of 1821 set about accomplishing a needed correction. The final resuit was that the electors of the several counties were authorized to choose the sheriffs by ballot, and upon the governor was conferred the power of removal, in language substantially like that in existence in the constitution of to-day. An examination of the debates of that convention seems to indicate that the propriety of vesting the power of removal in the governor was not questioned. A difference of opinion did prevail as to the advisability of requiring notice and an opportunity to be heard before removal. Mr. Van Ness ‘was not in favor of the governor's calling the officer before him to answer to complaints or charges, or of assigning his reasons for such removal. There might be reasons of a delicate nature, such as moral disqualifications, to occasion such removal. And with this power of removal in the executive he was less opposed to the election of sheriffs and clerks by the people. Mr. Root wished the cause of removal might be known and assigned. He was no friend to gubernatorial delicacy. We had seen to much of it already.’ The proposition was then divided into two parts. ‘The question on the first part, relating to the removal of sheriffs, was taken and carried. The question was then stated to be on the second part of the proposition, requiring the governor to assign reasons for such removal and to give to the sheriff an opportunity of appearing in his own defense. Mr. Kent [Chancellor Kent] was opposed to the proposition on the ground that it might be expendient for the governor to remove sheriffs without assigning his reasons. * * * The governor was the great sheriff of the state, and the sheriffs should be considered in the light of deputies. Mr. Spencer [Chief Judge Spencer] approved of the proposition. No officer should be removed for arbitrary cause, nor without good reasons.’ Mr. Root ‘was not in favor of yielding the reputation of his fellow citizens to the delicacy of the executive.’ Mr. Tompkins voiced the sentiment which finally prevailed when he said, ‘If this clause is rejected, a sheriff may be displacedin secret without cause assigned, which may be merely a political one.’ Clark, Const. Conv. Deb. 1821, pp. 195, 196. The advantage of notice of charges and opportunity to be heard was apparently regarded as resting in the publicity which would result, enabling the people to judge of the necessity or propriety of a removal. Such publicity would ordinarily prove a sufficient check, if any check can ever be needed upon a man holding the commanding position of governor of a state. In the constitutional convention of 1846, the section of the proposed constitution relating to election and removal of sheriffs and other county officers being before the convention, Mr. Van Schoonhoven moved to so amend it as ‘to provide that the removal should be made by and with the advice and consent of the board of supervisors of the county in which said officer may reside.’ ‘This,’ he said, ‘would give the officers against whom charges were preferred an opportunity to be tried by their peers.’ ‘Mr Angel said the governor had already the power to remove sheriffs, etc., and he had not heard that there was any complaint against that power, which had not been very frequently exercised. Mr. Stow hoped, if the amendment prevailed, it would not be imposed upon the governor to see that the laws were faithfully executed. His powers had already been so restricted that he could not do much more than look on and wish that...