1544 PUBLIC OFFICE AND OFFICERS. A text book writer has said 221 "that incompatibility exists.220 incompatibility in offices exist where the nature and duty of the two offices are such as to render it improper, from consideration of public policy, for one incumbent to retain both." Offices are usually considered incompatible and inconsistent so as not to be executed by the same person when, from the multiplicity of business in them, their duties cannot be executed with care and ability or when, from the different nature and character of the duties, the presumption exists that they cannot be as between them executed with impartiality and with honesty.222 The holding of two offices, though they may not be incompatible, may be prohibited by law and the acceptance of one office and the performance of its duties will operate as a resignation or vacation of all other official positions held by a person.223 Such statutory See, also, 23 ber of legislature. Am. & Eng. Enc. Law. p. 333, and cases cited. 220 Smith v. Moore, 90 Ind. 299; State v. Feibleman, 28 Ark. 424; People v. Green, 58 N. Y. 296. 221 Mechem, Pub. Off. § 422; State 222 People v. Green, 58 N. Y. 295, 223 United States v. Saunders, 120 U. S. 126, 7 Sup. Ct. 467; State v. Hutt, 2 Ark. 282; People v. Sanderson, 30 Cal. 160; Attorney General v. Connors, 27 Fla. 329, 9 So. 7. Fla. Const. 1885, art. 16, § 15, does not prohibit the performance by a sheriff of a county of the duties of city marshal, the latter not being a state office within the meaning of the provision stated. Crovatt v. Mason, 101 Ga. 246, 28 S. E. 891; Dickson v. People, 17 Ill. 191; Dailey v. State, 8 Blackf (Ind.) 329; Creighton v. Piper, 14 Ind. 182; Kerr v. Jones, 19 Ind. 351; Chambers v. State, 127 Ind. 365, 26 N. E. 893, 11 L. R. A. 613; Bishop v. State (Ind.) 48 N. E. 1038; Smith v. Moore, 90 Ind. 294; Foltz v. Kerlin, 105 Ind. 221; State v. Plymell, 46 Kan. 294, 26 Pac. 479; Goodloe v. Fox, 16 Ky. L. R. 653, 29 S. W. 433; Keating v. City of Covington, 18 Ky. L. R. 245, 35 S. W. 1026; State v. Taylor, 44 La. Ann. 783, 11 So. 132; Oliver v. Jersey City, 63 N. J. Law, 96, 42 Atl. 782; People v. Drake, 43 App. Div. 325, 60 N. Y. Supp. 309. One accepting a commission in the United prohibitions may apply only to a "civil office," "place of trust or honor" 224 or "office of trust or profit," and the state prohibition is frequently found applying to the holding of a Federal office.225 § 635. Termination of official life through removal. The power to remove is usually held to be co-extensive with the power to appoint where official authority is derived from an appointment.226 Removals from an office may be arbitrarily made States army forfeits his position as superintendent of the water department of the City of Buffalo under N. Y. Laws, 1891, c. 105, § 475. Rowland v. City of New York, 83 N. Y. 373; McNeill v. Somers, 96 N. C. 467, 2 S. E. 161; State v. Thompson, 122 N. C. 493, 29 S. E. 720; Gaal v. Townsend, 77 Tex. 464, 14 S. W. 365. Construing Const. Tex. art. 16 § 40. State v. Brinkerhoff, 66 Tex. 45, 17 S. W. 169; Brumby v. Boyd, 28 Tex. Civ. App. 164, 66 S. W. 874. But see Bryan v. Cattell, 15 Iowa, 538; State v. Somnier, 33 La. Ann. 237. People v. Woodbury, 38 Misc. 189, 77 N. Y. Supp. 241. The provision of the N. Y. City charter forbidding any pensioner of the city or any of its departments to hold an office, employment or position under the city, is unconstitutional, being in violation of Const. 1894, art. 1 § 1. State v. Somers, 96 N. C. 467. 224 Saunders v. Haynes, 13 Cal. 145; Crawford v. Dunbar, 52 Cal. 36; State v. Wilmington City Council, 3 Har. (Del.) 294; In re Corliss, 11 R. I. 638. 225 People v. Leonard, 73 Cal. 230, 14 Pac. 853; Searcy v. Grow, 15 Cal. 117; People v. Turner, 20 Cal. 142; Packingham v. Harper, 66 Ill. App. 96; State v. Kelly, 80 Miss. 803, 31 So. 901. Miss. Const. § 226, does not apply where the right to a state office is contested. Lindsey v. Attorney General, 33 Miss. 508. A pension agent of the United States is not disqualified from holding a state office under that provision of the state constitution which prohibits an officer of the general government from holding an office of trust or profit under this state. State v. Merry, 3 Mo. 278; State v. Clarke, 3 Nev. 566; Davenport v. City of New York, 67 N. Y. 456; Doyle v. City of Raleigh, 89 N. C. 133. The night watchman of a federal postoffice building does not hold an office of "trust or profit' under the United States. De Turk v. Com., 129 Pa. 151, 18 Atl. 757, 5 L. R. A. 853; State v. De Gress, 53 Tex. 387. A retired army officer holds a lucrative office and one of trust and profit within the meaning of the Texas Const. and, therefore, ineligible to hold a civil office within the state. But see People v. Duane, 55 Hun, 315, 8 N. Y. Supp. 439, affirmed 121 N. Y. 367, 24 N. E. 845. A retired officer of the United States army does not come within the prohibition of New York Laws 1888, c. 584, providing that the aquaduct commissioners appointed by the mayor of the city of New York "shall hold no other, federal, state or municipal office." 226 Taylor v. Kercheval, 82 Fed. 497; City of Mobile v. Squires, 49 Ala. 339; Patton v. Vaughan, 39 Ark. 211; People v. Hill, 7 Cal. 97. without reason or cause where the official holds the office at the pleasure of some appointing power. 227 And this action if within the limitation of a statutory or constitutional power will not arbi The constitutional right to remove at pleasure cannot be abrogated by an act providing for removal only in a certain way or for a specified case. People v. Shear (Cal.) 15 Pac. 92; Smith v. Brown, 59 Cal. 672; Lamb v. People, 3 Colo. 106, 32 Pac. 618; City of Savannah v. Grayson, 104 Ga. 105, 30 S. E. 693; Carr v. State, 111 Ind. 101, 12 N. E. 107; City of Madison v. Korbly, 32 Ind. 74. Where the power to appoint exists in a city council by a majority vote, the power of removal is also possessed by a like vote. State v. City of South Bend, 154 Ind. 693, 56 N. E. 721; Peters v. Bell, 51 La. Ann. 1621, 26 So. 442; State v. City Council of New Orleans, 107 La. 632, 32 So. 22; Hooper v. Farnen, 85 Md. 587, 37 Atl. 430; Chandler v. City of Lawrence, 128 Mass. 213; State V. Schram, 82 Minn. 420, 85 N. W. 155; Newsom v. Cocke, 44 Miss. 352; State v. Smith, 35 Neb. 13 52 N. W. 700; Mathis v. Rose, 64 N. J. Law, 45, 44 Atl. 875. The power of removal as found in the city charter cannot be restricted by the passage of an ordinance fixing the term of an appointive office at a definite period. Sweeney v. Stevens, 46 N. J. Law, 344; People v. Dalton, 23 Misc. 294, 50 N. Y. Supp. 1028; People v. Henry, 47 App. Div. 133, 62 N. Y. Supp. 102; People v. City of Brooklyn, 149 N. Y. 215, 43 N. E. 554; State v. Archibald, 5 N. D. 359, 66 N. W. 234; Williams V. Boughner, 46 Tenn. (6 Cold.) 486; People v. McAllister, 10 Utah, 357, 37 Pac. 578; Richards v. Town of Clarksburg, 30 W. Va. 491, 4 S. E. 774. See, also, 25 Am. Law. Rev. 199, note, on the right of removal of public officers by J. R. Berryman. 227 Handlin v. Wickliffe, 79 U. S. (12 Wall.) 173; Nolen v. State, 118 Ala. 154; Sponogle v. Curnow, 136 Cal. 580, 69 Pac. 255; Fitch v. Sup'rs City and County of San Francisco, 122 Cal. 285; Carter v. City of Durango, 16 Colo. 534; People v. Carver, 5 Colo. App. 156, 38 Pac. 332; State v. Johnson, 30 Fla. 433; City of Savannah v. Grayson, 104 Ga. 105; Heffran v. Hutchins, 160 Ill. 550. Baxter v. Town of Beacon, 112 Iowa, 744, 84 N. W. 932. The contract with a town council to act as marshal being ultra vires, the appointee may be discharged by the mayor without subjecting the town to any liability for an alleged breach of contract. South v. Sinking Fund Com'rs, 9 Ky. L. R. 478, 5 S. W. 567; Riffe v. Tinsley, 20 Ky. L. R. 281, 45 S. W. 1046; Johnson v. Cavanah, 21 Ky. L. R. 1246, 54 S. W. 853; Campbell County v. Trapp, 23 Ky. L. R. 2356, 67 S. W. 369; State v. Rost, 47 La. Ann. 73, 16 So. 776; Townsend v. Kurtz, 83 Md. 331, 34 Atl. 1123. Construing Md. Code, Pub. Gen. Laws, art. 23, § 121, relative to removal of state insurance commissioner. Field v. Malster, 88 Md. 691; Attorney General v. Cahill, 169 Mass. 18, 47 N. E. 433; Attorney General v. Common Council of Detroit, 112 Mich. 145, 37 L. R. A. 211; Brandau v. City of Detroit, 115 Mich. 643; Townsend v. Common Council of trarily be reviewed by the courts. 228 The validity of an appointment may sometimes be made dependent upon the endorsement or confirmation of a designated officer or official body,220 and although the officer possessing the power of appointment may remove one of his appointees, the removal is not effectual until the approval by such confirmatory body of his successor.230 The Sauk Centre, 71 Minn. 379; State v. Alt, 26 Mo. App. 673; Gibbs v. Morgan, 39 N. J. Eq. (12 Stew.) 126; Uffert v. Voght, 65 N. J. Law, 377, 47 Atl. 225; Mathis v. Rose, 64 N. J. Law, 726, 49 Atl. 1135; People v. Tierney, 31 App. Div. 309, 52 N. Y. Supp. 871; Mack v. City of New York, 37 Misc. 371, 75 N. Y. Supp. 809; People v. Nixon, 158 N. Y. 221, 52 N. E. 1117; State v. Archibald, 5 N. D. 359, 66 N. W. 234; Day's Case, 124 N. C. 362, 32 S. E. 748, 46 L. R. A. 295; Walser v. Jordan, 124 N. C. 683; Miller v. Alexander, 122 N. C. 721; Greene v. Owen, 125 N. C. 212, 34 S. E. 424; Field v. Girard College, 54 Pa. 233; Houseman v. Com., 100 Pa. 224; Lane v. Com., 103 Pa. 481; State v. Williams, 6 S. D. 119, 60 N. W. 410; Nehrling v. State, 112 Wis. 637, 88 N. W. 610. Where the power is vested in an official board it is not necessary that more than a majority shall act in cases of removal. 228 State v. Graham, 25 La. Ann. 73. The fact of a removal is presumptive evidence that it was made for a proper cause. State v. Rost, 47 La. Ann. 53; State v. City Council of New Orleans, 107 La. Ann. 632, 32 So. 22; Attorney General Berry, 99 Mich. 379; State v. Archibald, 5 N. D. 359, 66 N. W. 234; Cameron v. Parker, 2 Okl. 277, 38 Pac. 14. V. 229 State v. Breidenthal, 55 Kan. 308, 40 Pac. 651. The syllabus of the case is given by the court. "In 1891 an act of the legislature was passed providing for the organization of banks, the regulation of the banking business, and authorizing the appointment of a bank commissioner. The act was passed in the closing days of the legislative session, and did not take effect until a few days after the legislature had adjourned. It provided that the governor should appoint, by and with the advice and consent of the senate, a bank commissioner, whose term of office should be four years and until his successor was appointed and qualified, but made no provision for the filling of vacancies that might occur in the office. On March 21st, 1891, J. was appointed by the governor, and the senate not being in session the appointment was not confirmed. He qualified and took possession of the office, and continued to perform all the duties thereof until his successor was appointed and had qualified. At the next session of the senate, in February, 1893, B. was appointed, and his appointment was confirmed by the senate. Held, that the appointment of J. was only provisional and temporary, and the commencement of the official term began to run from the appointment of B., and that he is entitled to hold the office for four years from the time of that appointment." State v. Powell, 40 La. Ann. 241, 4 So. 447. 230 City of Macon v. Shaw, 16 Ga. 172; Parish v. City of St. Paul, arbitrary power to remove an appointive official does not exist. where, by law, a fixed tenure of office is provided.231 (a) Civil service or other provision. In respect to certain offices although appointive in their character, the legislature may impose restrictions upon an arbitrary right to remove.232 These limitations are based upon the theory that a proper performance of official and public duties is dependent upon a feeling of security in the possession of an office except in case of a negligent, lax or dishonest performance of such duties by the incumbent. Removals from office can, therefore, be made only for cause and after the making of charges by the proper body or official, duly considered 84 Minn. 426, 87 N. W. 1124; State v. Heinmiller, 38 Ohio St. 101. 231 People v. Jewett, 6 Cal. 291; State v. Chatburn, 63 Iowa, 659; Jacques v. Little, 51 Kan. 300, 33 Pac. 106, 20 L. R. A. 304; State v. Mitchell, 50 Kan. 289, 33 Pac. 104, 20 L. R. A. 306; Brown v. Grover, 69 Ky. (6 Bush) 1. Where the constitution has fixed the terms of an office and declared upon what grounds and in what manner an incumbent may be received, it is beyond the power of the legislature to remove or suspend from office for any other reason or mode than thus prescribed. Field v. Malster, 88 Md. 691, 41 Atl. 1087: Speed v. Common Council of Detroit, 97 Mich. 198, 56 N. W. 570; Attorney General v. Corliss, 98 Mich. 372, 57 N. W. 410; State v. Smith, 35 Neb. 13, 52 N. W. 700, 16 L. R. A. 791. Where a public officer is elected or appointed for a definite term and removable only upon cause, it is necessary for charges to be preferred of which he shall have notice and an opportunity to be heard in his defense before he can be legally removed. Peal v. City of Newark, 66 N. J. Law, 265, 49 Atl. 468, reversing 66 N. J. Law, 105, 48 Atl. 576; State v. Com 233 mon Council of Duluth, 53 Minn. 238; Markley v. Borough of Cape May Point, 55 N. J. Law, 104; Ter. v. Ashenfelter, 4 N. M. 85, 12 Pac. 879; Ewing v. Thompson, 43 Pa. 372; Collins v. Tracy, 36 Tex. 546. 232 People v. Orr, 22 Colo. 142, 43 Pac. 1005; Sherman v. City of Des Moines, 100 Iowa, 88; Trainor v. Board of Auditors, 89 Mich. 162, 50 N. W. 809, 15 L. R. A. 95. Under How. St. § 483, subd. 17, certain public officials can be removed by a board of supervisors for incompetency without charges, notice or hearing. Attorney General v. Cogshall, 107 Mich. 181; People v. Keller, 31 App. Div. 248, 52 N. Y. Supp. 950; People v. Van Wyck, 34 App. Div. 573, 54 N. Y. Supp. 675. The limitation may be one of time. 233 Croly V. Trustees of Sacramento, 119 Cal. 229; Trimble v. People, 19 Colo. 187; People v. Martin, 19 Colo. 565, 24 L. R. A. 201; Vason v. City of Augusta, 38 Ga. 542; Todd v. Dunlap, 99 Ky. 449, 36 S. W. 541; State v. Donovan, 89 Me. 448, 36 Atl. 982; State v. Common Council of Duluth, 53 Minn. 238, 55 N. W. 118. The term "sufficient cause" as used in the Duluth City charter providing for the removal of members of the board of |