Nicholson v. Thompson

Bullard, J. The question which this case presents is, whe — 368 — ther the office of Master and Wardens of the Port of New Orleans, be determinable at the will of the Governor and Senate, or whether the iucumbents can be removed only by an address of two-thirds of both Houses of the General Assembly, or by impeachment. The office was created by the act of the Legislative Council of 1805. At that time, the Governor of Louisiana derived his authority from Congress, and that authority was little inferior to that of a Governor-General of a Spanish Province. He appointed to office without control, and without being obliged to take the advice of any one. The act creating the office, declares, that “ It shall be lawful for the Governor of this Territory to appoint, as often as shall be necessary, one fit and proper person to be Master, and three other fit and proper persons, to be Wardens of the said Port of New Orleans,” &c. It cannot well be doubted, I think, that this act conferred on the Governor alone the power of appointment, as often as he should think necessary ; and that he alone, was the judge of that necessity, previously to the establishment of the State Constitution. The original tenure of the office was, therefore, in my opinion, at the will of the executive. The incumbent might be superseded at any time, by a new appointment emanating from the Governor of the Territory. It appears to me equally clear, that the Senate must now, under the' Constitution, concur, with the Govern- or in the act of appointment, and consequently the concurrent opinions of the Governor and Senate, are to decide upon the question of necessity. That is clearly not a judicial question. It is a question which the judiciary can no more assume the right to decide, than the Governor and Senate would have to review a judgment rendered by this tribunal. The act of the Legislative Council creating the office in question was, in common with other acts of the Territorial Government, maintained in force by the Constitution, except so far as they were inconsistent therewith. See Schedule, sect. 4. And this leads us to the inquiry, how far the act of 1805 is repugnant to the Constitution, and how far the tenure of the office, as originally constituted, is modified by the Constitution. The clause which it is contended has taken away the powers from the executives make — 369 — a new appointment at will, or, in other words, to remove the incumbents, is art, vi., sec. 8. Tt is in the following words : “ The Legislature shall determine the time of duration of the several public offices, when such time shall not have been fixed by this Constitution; and all civil officers, except the Governor, and Judges of the Superior and Inferior Courts, shall be removable by an address of two-thirds of the members of both Houses, except those, the removal of whom, has been otherwise provided for by this Constitution.” ' It must be premised that, in relation to the office of Port Warden, the Legislature has never obeyed this injunction of the Constitution, by determining its duration, either for a term of years, or during good behavior. If it had done so, I have no doubt the Governor and Senate would have been without authority to remove the incumbent. Such a limitation of time would have been clearly inconsistent with, and repugnant to the act of 1805, which authorized a new appointment at the will of the executive, and would consequently have repealed it. An office limited by law, could not be determined by the mere will of the executive. The practice is certainly different under the Federal Constitution, but it is remarkable, that that instrument contains no provision on the subject of removal. The people of Louisiana have thought proper to separate the appointing from the removing power, except in reference to those offices which existed previously to the Constitution, and which have not since been limited by law. I therefore subscribe, in the fullest extent, to the doctrine that, under the Constitution of Louisiana, the Governor is without authority to remove an incumbent from office, whenever the duration of that office has been fixed and determined by law, whatever may be its duration, whether for a term of years, or during good behavior. But the question relative to the right of superseding the acting Port Wardens, by making a new appointment, by and with the advice and consent of the Senate, resolves itself, in my judgment, into this — is the act of 1805, declaring that office tobe at the will of the executive, repugnant to that clause in the Constitution, which authorizes the removal of public officers by an address of two-thirds of both Houses. The same rules, I apprehend, which govern in the construction — 370 — of statutes, are app'icable to the Constitution, when supposed to conflict with an act of ordinary legislation. The only difference between the two, is, the superior paramount authority of the former. In comparing the act of 1805 with the Constitution, in order to test their consistency or repugnancy, I would adopt precisely the same rule, as if, by a new act of the Legislative Council, instead of a Constitutional provision, it had been provided, that thereafter all officers, except the Governor and the Judges, should be removable by an address of two-thirds of the Council. If in that case, the authority of the Governor, conferred by the original act, to make a new appointment whenever he should deem it necessary, might well co-exist with the right also to remove, vested in the Council, then there is no inconsistency — no repugnancy ; both powers may be exercised concurrently, and the original act is not tacitly repealed by the second, iu consequence of any repugnance between them, The one does not necessarily exclude the other. The Governor may not think a new appointment necessary, and may desist from acting. The Legislature may think otherwise, and by a vote of two-thirds, even when the term of office has been limited bylaw, may require the removal, and render a new appointment necessary. I do not mean to say that the Governor and Senate may remove an officer, and make a new appointment, when the office has been limited by law. On the contrary, I am of opinion that they cannot. But I think, in relation 'to an office' originally within the discretion of the executive, and the duration of which, has not since been expressly limited by law, the power to create a vacancy by removal, exists at the same time in the Governor and Senate, and in the General Assembly, under the 8th sect, of the 6th art. of the Constitution. That the exercise of that power by either is not incompatible, or, in other words, that the Constitution has not repealed the act of 1S05, but has only modified it, by requiring the concurrence of the Senate when a new appointment is thought necessary. I do not mean to be understood, as saying that the Governor has, in any case, the right to remove, in the recess of the Senate. On the contrary, I believe we all agree that he has no such power under the Constitution. That he alone, cannot, in any case, create a vacancy ; nor can he make any original appointment, without — 371 — the advice and consent of the Senate. Fortunately, the people of Louisiana have guarded against arbitrary removals from office; and the chief executive magistrate cannot, alone, create any vacancy, nor appoint to office, without consulting the Senate, except when a vacancy may have occurred during the recess, and then only until the end of the next session. But it is argued, that the Constitution having declared all civil officers, with certain exceptions, removable by an address of two-thirds of both Houses, it is inconsistent therewith, that they should be removable by any other authority. But we must give some effect to the last section, which excepts those whose removal has been otherwise provided for by this Constitution. I will not go so far as to say, that the act of 1805, which provides for a new appointment when thought necessary, having been kept in force by the Constitution so far as not repugnant to that instrument, another mode of removal has been provided by the Constitution for the Port Wardens, by maintaining in force that act, and making it, as it were, a part of the Constitution itself; yet I am satisfied, that although in relation to offices to be created under the Constitution, the mode of removal by address or impeachment may be the exclusive one, still the original tenure of the office of Port Warden, remains unchanged, except as to the co-operation of the Senate in making a new appointment and superseding the incumbents. The word inconsistent, is not essentially different from repugnant, or incompatible. There may be different modes not inconsistent with each other, but concurrent and cumulative, there being no words of exclusion ; and public officers may well be removable, that is, be liable to be removed, in more ways than one, without any inconsistency that I can perceive. At the same time I admit, that if the Legislature had determined the duration of the office in question, according to the injunction in the Constitution, it would have been placed beyond the reach of the appointing power. The question of jurisdiction is, I think, easily disposed of. The judicial department does- not pretend to have the power of supervision over the proceedings or acts of the other co-ordinate branches of the government. It decides only upon the rights of parties, in controversies which have assumed a judicial form. — 372 — When the right of a citizen to enjoy the emoluments of a particular office, is contested by another, pretending to have a better right under the Constitution and laws, it appertains, necessarily, to the courts, to decide between them, according to the supreme law of the land. If in'doing so, they give effect to the Constitution, in preference to an act of the Legislature, as being repugnant thereto, under that clause of our Constitution which we have sworn to support, and which teaches us, in express terms, that “ all laws contrary to this Constitution shall be null and void,” (art. 6, sec. 25,) or pronounce upon an act of the executive as unwarranted by the supreme law; we do no more than is required of us as an independent and co-ordinate department of the government. Upon the whole, I conclude, that the office of Master and Wardens of the Port, is still at the will of the Governor and ¡Senate, subject, however, to the power of removal by address ; that consequently, the defendants have been constitutionally and legally appointed; and that the judgment ought to be reversed, and the injunction dissolved,