case of officers that have been appointed and in the case of officers that have been elected. If there is one single principle in the whole question it is this: that the power of selection and the power of removal are correlative things. The power that selects may remove. An officer who has appointed may dismiss by this rule. This is the normal case; there are some few abnormal cases. So the people who elect may alone dispose by the same rule. This is the normal case; there are some few abnormal cases. Upon the whole, the principle stands that the power to select involves the power to remove.

There are two sorts of removal: first, arbitrary, and second, judicial. The first sort is the ordinary case in centralized administration. The power of appointment and the power of dismissal are both inherent powers in an executive department of the centralized type, like the administration of the United States. Both the power to appoint at will and to remove at will are involved in the conception of the centralized administration. On the other hand, in a decentralized administration, like that of the states, as each of the different officers has his own place by election, any removal from that position by other officers will be an extraordinary case. When such a process is provided it will always be by some quasi judicial method for due cause shown.

This fundamental difference between the removal of appointive officers by the mere motion of the executive and the removal of elective officers by solemn adjudication of the administration, if at all, is seen in an opinion on the Removal of Officers, 16 Pa. Co. Ct. 305 (1895). One Curley held the elective office of Recorder of Deeds for the City of Philadelphia. He held that

Adm. Law-12.

office by interim appointment from the Governor. The question was whether the Governor could remove him at pleasure and appoint another in his place. It all turned upon whether he was an elective officer or an appointive officer.

The Attorney-General, MCCORMICK, advised the Governor: The officers provided by the constitution and the laws are either appointive or elective. As to the former except those specifically excepted-there can be no doubt of the Governor's power to remove; as to the latter except those as to whom specific provision is made they can be removed only by impeachment. Does the present incumbent become an appointed officer within the meaning of the constitution, because he was appointed to fill a vacancy in an executive office? I am of the opinion that the provision of the constitution giving the power to remove appointed officers means officers holding offices that are appointive in their character and not elective. Otherwise there would be possibilities not contemplated by the constitution.

Of these two forms of removal, arbitrary motion is the characteristic form in centralized administration; judicial amotion is the characteristic form in decentralized administration. Instant dismissal without the obligation to give reasons is the necessary situation in centralized administration; the arbitrary form of dismissal prevails there because upon the whole it is experience that in no other way can an administration be maintained in a high state of efficiency. What is indispensable in centralized administration is instant obedience, which can be enforced only by this power of instant removal. On the other hand, in a decentralized

administration, removal for cause only prevails. It is only necessary that good behavior should be shown by each separate officer. There is no obedience required other than this. The quasi judicial form meets that situation well enough.38

§ 50. Arbitrary.

That in a centralized administration the power of removal is involved was shown at the beginning of the working out of the details of the Federal administration in a debate on the Power of Removal, 1 Ann. Cong. 350 (1789), in the first session of the first Congress that met after the adoption of the Constitution. This arose upon the propriety of inserting in the statute establishing the department of foreign affairs this clause: To be removable by the President. Upon this question there was a difference of opinion in the House of Repre

38 REMOVAL OF OFFICERS.-Osgood v. Nelson, L. R. 5 H. L. 636; Hill v. Reg., 8 Moo. P. C. 138; Grant v. Secretary, 2 C. P. D. 445; Hammond v. McLay, 28 U. C. Q. B. 463; Stuart v. Gould, 16 N. S. Wales, 132; Ex parte Hennen, 13 Pet. 230; United States v. Avery, Deady 204; Ledbetter v. State, 10 Ala. 241; Kaufman v. Stone, 25 Ark. 336; Sponogle v. Curnow, 136 Cal. 580; Trimble v. People, 19 Colo. 187; Fairfield Co. Bar v. Taylor, 60 Conn. 11; Territory v. Cox, 6 Dak. 501; State v. Johnson, 30 Fla. 433; State v. Frazier, 48 Ga. 137; Wilcox v. People, 90 Ill. 186; Carr v. State, 111 Ind. 109; Brown v. Duffus, 66 Ia. 193; Lynch v. Chase, 55 Kan. 367; South v. Commissioners, 86 Ky. 186; Andrews v. King, 77 Me. 224; State v. Register, 59 Md. 283; Williams v. Gloucester, 148 Mass. 256; Attorney-General v. Detroit Common Council, 112 Mich. 145; State v. Peterson, 50 Minn. 239; Newsom v. Cocke, 44 Miss. 352; State v. Police Com'rs, 88 Mo. 144; Quinn v. Portsmouth, 64 N. H. 324; Stewart v. Freeholders, 61 N. J. L. 117; People v. Dalton, 158 N. Y. 204; State v. Hawkins, 44 Oh. St. 98; Brower v. Kantner, 190 Pa. St. 182; Johnson v. Hacker, 4 Cold. 431; Collins v. Tracy, 36 Tex. 547; Richards v. Clarksburg, 30 W. Va. 491; State v. Seavey, 7 Wash. 564.

sentatives; and later in the Senate there was one of the closest of divisions, the Vice-President casting the deciding vote. In the end the bill passed without the enabling clause upon the understanding that such a clause was unnecessary because the power belonged to the executive without it.

In this great debate Mr. MADISON is reported to have said: It is absolutely necessary that the President should have the power of removing from offices; it will make him in a peculiar manner responsible for their conduct, and subject him to impeachment himself if he suffers them to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct so as to check their excesses. Of the same opinion were other members of the convention that framed the Constitution. No higher evidence can be had.

For three-quarters of a century Congress acquiesced in this arbitrary power of removal by the executive. Then in 1867 the Tenure of Office Act was passed over the veto of the President. The effect of that act is seen in the opinion concerning Rollins, 12 Opin. 444 (1868). An officer, within the Tenure of Civil Office Act, tendered in writing to the President the resignation of his office, to take effect upon the qualification of his successor, nominated by the President and confirmed by the Senate. When his tenure of the office could be regarded as relinquished, was the question. Upon the event named in his communication, was his contention; but the President wished to remove him at once.

EVARTS, his Attorney-General, advised that he could not; the purpose of the Tenure of Office Act was to change

the doctrine and practice of the government, by which removal from office at the mere discretion of the President had been established as a proper, and, as had been thought, a necessary attendant of the executive duty and responsibility under the constitution to maintain the efficiency and fidelity of the public service in fulfilling the manifold and incessant obligations in administration and in execution of the laws. Mr. Rollins,

then, at the date of his letter to the President was entitled to hold the office of Commissioner of Internal Revenue until a successor should have been appointed by and with the advice and consent of the Senate and should have qualified.

Later the Tenure of Office Act was in effect repealed. Just how the matter stands in our constitutional law today is seen in Parsons v. United States, 167 U. S. 324 (1897). In 1892 one Parsons was appointed by the President and Senate, District Attorney for Alabama for four years. In 1893, he was removed from office by the President without explanation. In 1894, he sued for the balance of his salary in the Court of Claims. His contention was that his commission gave him his office for four full years; and that the President had therefore no power to remove him.

Mr. Justice PECKHAM said in substance: It would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. The executive power which by the Constitution is vested in the President over all officers appointed by him makes their tenure no more stable than his pleasure. We are satisfied that the intention of Congress was to concede to the President the power of re