People ex rel. Lyndes v. Comptroller of the State

By the Court, Nelson, Ch. J. If the commissioners are to be regarded as holding an office within the constitutional meaning of the term, there can be no reasonable doubt of the existence of the competent power to remove them. The 16th § of the 4th article of the constitution provides, that “ where the duration of any office is not prescribed by the constitution, it may be declared by law j and if not so declared, such office shall be held during the pleasure of the authority making the appointment.” The duration of office here obviously refers to the period of time the incumbent shall hold, that being the proper measure of it. This period had been previously prescribed in the constitution in [598] respect to many of the offices ; and the scope of the section is to provide for the case of officers whose term of office is left at large, as well those that might be created by statute, as those to be found in the constitution. That the provision applies to the former, is apparent from the 15th § of the same article of the constitution, which provides for the election or appointment of all officers thereafter to be created by law, who it is but reasonable to conclude were, among others, intended to be referred to, and regulated by the succeeding section, as they come fairly both within its reason and general terms. Assuming, then, that the commissioners are to be regarded as holding an office, which I am inclined to think they should he, within the intent of the legislature, being recognized as such twice in the statute, § 5 and 9, it is clear, according to the above exposition, as there is no fixed period of time during which they are to hold, they are removable at the pleasure of the appointing power ; and as that power is vested in the governor, secretary of state, and comptroller, for the time being, they are removable by them. But even if we were to reject the idea that the commissioners hold an office, the result must necessarily be the same. In such case, they are individual agents employed on behalf of the government, whose rights, like other ordinary employees, mus* depend upon the contract, express or implied, under which the service is performed. If no time is fixed therein, either of the contracting parties may terminate it at will; the commissioners cannot claim to extend the time beyond the agreement of their employers. This is too obvious to require argument. It is conceded that no time is prescribed in the terms of appointment, or xn the provisions of the statute under which it was made; but it has been argued that both indicate an engagement for the superintendence of the entire job—-the event of finishing the work is said to be the limit of the contract, subject to the control of the legislature. I cannot think so. The statute prescribes the duties of the commissioners while acting as such; they are to devise a plan of the building, subject to the approval of the governor I [599] contract for and superintend the erection of the same • draw the necessary funds from the comptroller, pay the workmen, &c.; for all which they receive three dollars per day for the time actually engaged. The tenure by which they were to perform the service was not in the minds of the legislature, nor is there any thing in the act bearing at all on the subject, further than simply to provide for their employment. It must depend, therefore, as before said, in the aspect we are now viewing the case upon the contract, and in that we perceive nothing binding upon either party to continue the service beyond the consent of each-Certainly, the commissioners were under no obligation to go on with the work, and might have surrendered the trust at any moment, in despite of their employers, having engaged for no definite time, or even until the work should be finished; and the • contract must be regarded as mutual. Besides, putting the case upon contract, and not on the footing of office, even were we to consider it for any reason as extending to the completion of the work, it is not perceived how a specific performance could be enforced; if broken, the remedy, as in most cases of a breach of personal contract, must be sought for in damages. There are but few exceptions, and those the subject of chancery jurisdiction. It is urged that the power of the governor, &c. is exhausted in the appointment already made. This I cannot admit. The object and purpose for which it was conferred require its continuance, otherwise the whole enterprise may fail in case of vacancy by death, resignation, &c. Indeed, not only the continued existence of the power, but the right to exercise it by removal and new appointment, at the pleasure of the donees, seem indispensable, as well to insure the execution of the work, as the service of competent and faithful agents for the purpose. If the governor, &c. cannot fill vacancies, or displace incompetent agents, if such should happen to be appointed, no other body can, short of the legislature. The necessity of the power is apparent, and it seems to me that it clearly exists. Believing, therefore, that the relators have been lawfully [600] removed, it follows that we cannot compel the comptroller to place the funds claimed in their hands. The above conclusion makes it unimportant to notice other questions raised on the argument. Motion denied.