from an office to which he had been subsequently elected is not the punishment for such violation of duty prescribed by any law of this state."

Attention is called, however, to Woods v. Varnum (1890) 85 Cal. 639, 24 Pac. 843, holding that the unlawful act had been committed during the present and not the prior, term, so as not to prevent its being the basis for removal of the officer, where, during the last month of the previous term, he had collected taxes not legally due, and, after entering upon the office for the second term, failed to pay them to the treasurer, no report or settlement having been previously made, and it being his duty, where he had not already done so, to account to the treasurer after the beginning of his second term for money previously collected.

In Re Advisory Opinion (1912) 64 Fla. 168, 60 So. 337, supra, it was held, under the Florida statute authorizing the governor to suspend from office officers guilty of "malfeasance, or misfeasance, or neglect of duty in office, for the commission of any felony, or for drunkenness or incompetency," that the governor had no power to suspend from office a member of the board of county commissioners because, during a previous term, he had accepted a bribe to influence his action as a member of the board. It was said that the power given to the governor to suspend the incumbent of an office was necessarily confined to the current term of the office.

And in dismissing charges against a public officer, the court in Conant v. Grogan (1887) 6 N. Y. S. R. 322, supra, said: "The court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When the people have elected a man to office, it must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave his faults or misconduct, if he had been guilty of any. It is not for the court, by reason

practically overrule the will of the people. We will not say that, on an application like the present, evidence of acts done prior to the term of office might not sometimes be admissible, where such acts would tend to characterize other acts committed during the existing term. In civil and in criminal actions there are a few rather exceptional cases in which proof of other acts of a party may be received in order to characterize the act which is the ground of action or defense, The object is generally to show intent or motive. But that doctrine should be very cautiously applied in such a case as the present. The inquiry should be limited to acts done during the existing term of office, unless some light can be thrown on those acts from previous conduct."

In Carlisle v. Burke (1913) 82 Misc. 282, 144 N. Y. Supp. 163, supra, the court, although saying that it was well settled that a public officer could not be removed for acts done prior to his present term of office, held that the fact that a superintendent of highways had been re-elected after the public had knowledge that his acts were under investigation did not prevent his removal, before he had entered upon the second term, for the remainder of his first term, under a statute authorizing removal for malfeasance or misfeasance in office.

Where a member of the common council was expelled for bribery in connection with his office, and was re-elected for the remainder of his term, it was held in State ex rel. Tyrrell v. Jersey City (1856) 25 N. J. L. 536, that the council could not suspend the exercise of his duties as a councilman; and the court was also of the opinion that the council had no power to expel him for acts committed previous to his re-election.

Under the Texas statute providing that "no officer shall be prosecuted or removed for any act he may have committed prior to his election to office," it was held in State ex rel. Rawlings v. Loomis (1895) Tex. Civ. App. 29 S. W. 415, supra, that acts committed by an officer prior to

his re-election were not ground for removal. In this instance it was held that an appeal from the judgment in favor of the officer should be dismissed where, pending the appeal, an election to fill the office had been held, the court saying that whether the officer had been chosen as his own successor, or whether another had been elected in his place, no inquiry need be made into the charges.

Bnt, under the above Texas statute, it was held in Brackenridge v. State (1889) 27 Tex. App. 513, 4 L.R.A. 360, 11 S. W. 630, that the wilful demand by a judge of illegal fees after his reelection, but before qualification for office, constituted a ground for removal, since such act was not condoned by the re-election.

And it was held, also, in Brackenridge v. State (Tex.) supra, that for the purpose of showing a knowledge on the officer's part that the fees demanded were not lawful, an indictment against him for a similar offense during his first term of office was admissible in evidence.

In Gordon v. State (1875) 43 Tex. 330, supra, the lower court held that a sheriff who, after removal from office, had been re-elected, was ineligible for the office during the term for which he was elected, and that, if eligible, he should be removed for the causes for which he had been removed previous to re-election. On appeal, although the only point discussed was as to eligibility of the officer for reelection, it being held that he was eligible, the court overruled the judgment of removal and dismissed the action, thereby apparently holding in effect that the previous charges were not grounds for removal.

On the principle that mere neglect of duty during a previous term, not involving moral delinquency, cannot serve as the basis for removal of an officer under a statute authorizing removal for "due cause," it was held in State ex rel. Gill v. Watertown (1859) 9 Wis. 254, supra, that a superintendent of schools could not be removed because, during a previous term of office, he had failed, as required by law, to submit reports to the

council, or to visit the schools, and had paid certain expenses of the board of education without the same being audited. The court, however, said: "We do not say that in no case could acts done during a prior term justify a removal. Thus, if, after a treasurer was elected, it should be discovered that during his prior term he had committed a defalcation, and been guilty of gross frauds in the management of his office, it might, perhaps, be just ground for removal. But where, as in this case, the charges show nothing more than a mere neglect of some formal duty which the law may have required, involving no moral delinquency, and which, if violations of duty at all, must have been well known to the appointing power, we do not think, where they relate entirely to acts during a prior term of office, that they constitute due cause in law for the removal of an officer. For such offenses, if offenses at all, his reappointment should be regarded as a condonation."

In State ex rel. Hill v. Henschel (1918) 103 Kan. 511, 175 Pac. 393, supra, it was held that under the Ouster Law in that state a public officer who is guilty of wilful misconduct in office forfeits his right to hold the office for the term of his election or appointment; but that the disqualification to hold the office does not extend beyond the term in which his official delinquency occurred. It may be observed that, in this case, the term of office during which the misconduct occurred had expired, and the defendant had been appointed for a new term before the ouster proceedings were begun; and the court said that the suit was begun to forfeit the defendant's right to the office for a term which had then expired, and that the alleged official misconduct had become a moot question ere ouster proceedings were begun.

Attention is called to Rex v. Doncaster (1729) 2 Ld. Raym. 1564, 92 Eng. Reprint, 513, where, under a charter by which chamberlains of the borough were chosen out of the capital burgesses, it was held that one who, as chamberlain, had received and

failed to account for money due the borough, could not be removed on that account from the office of capital burgess.

Conclusions in accord with the above have been reached by the New York assembly judiciary committee.

Thus, in 1853, the assembly judiciary committee in New York was asked to report "whether a person could be impeached and deprived of his office for malconduct or offenses done or committed under a prior term of the same or any other office." This question was answered in the negative, the committee saying that "neither by the Constitution nor by our laws is there any period limited in which an impeachment may be found; it is but fair, therefore, to infer that the intention was to confine the time to the term of office during which the offenses were alleged to have been committed; indeed, any other conclusion would lead to results which could not be sustained; for who can say but that the people knew of this malconduct, these offenses,and elected the individual notwithstanding?" The committee submitted, therefore, a resolution, which was adopted by the assembly, to the effect that a person holding an elective office is not liable to be impeached for misconduct before the commencement of his term, although such misconduct occurred while he held the same or another office under a previous election. 4 Lincoln, Const. History, 603, 604.

And while the trial of Barnard, J., in the New York court of impeachments is sometimes referred to in support of the view that one may be impeached for misconduct during a preceding term, and does apparently tend to support that doctrine, yet it seems that such misconduct was not the sole ground for impeachment.

Thus, regarding the impeachment of Barnard, J., the authority last referred to, on pages 605, 606, says: "The articles of impeachment against Justice George G. Barnard, in 1872, included charges of official misconduct during his first term, which ended December 31, 1868. That year he was

course adopted by the court in this case can scarcely be deemed an authority for an impeachment where all the alleged misconduct occurred during a previous term, for the reason that some of the charges on which the judge was convicted related to misconduct during his present term, and these charges were obviously within the jurisdiction of the court, and a conviction on them was sufficient to sustain its judgment. The opinion expressed by the assembly judiciary committee in 1853 has not yet been overruled, so far as it relates to the jurisdiction to impeach for misconduct wholly occurring during a previous official term."

The conviction of Barnard, J., for offenses committed during his prior term, was, however, said in State ex rel. Schultz v. Patton (1908) 131 Mo. App. 628, 110 S. W. 636, infra, II. b, not to be in accord with the great weight of authority on the matter.

It was held in Re King (1889) 53 Hun, 631, 25 N. Y. S. R. 792, 6 N. Y. Supp. 420, that in an action for removal of an officer under general charge of misconduct "since his present term of office began," acts constituting an alleged offense committed prior to such present term could not be made a cause for removal, although set out in the specifications accompanying the charge.

b. Misconduct in another office.

The rule that misconduct during a prior term of office is not a ground for removal of a public officer has been applied in several cases where

the misconduct was in a prior term, not of the same, but of a different, office. The same reasoning in general applies to the latter situation, although perhaps a stronger case is made out than where the officer is his own successor-in other words, is reelected or reappointed; since, according to some of the authorities, under the latter circumstances, the two terms might not be regarded as distinct and separate for the purpose of imputing prior misconduct, but the office might be regarded as held continuously. There would still, however, remain the doctrine of condonation through the re-election or reappointment, upon which the cases generally rely in holding that misconduct during a prior term is not ground for removal. Authorities to the effect that misconduct in a prior term of a different office is not ground for removal are: Speed v. Detroit (1894) 98 Mich. 360, 22 L.R.A. 842, 39 Am. St. Rep. 555, 57 N. W. 406; State ex rel. Schultz v. Patton (1908) 131 Mo. App. 628, 110 S. W. 636; People ex rel. Bancroft v. Weygant (1878) 14 Hun (N. Y.) 546.

In Speed v. Detroit (Mich.) supra, the court said: "There is no provision in the Constitution or in the laws which prevents a person from holding office for misconduct in another office which he held prior to the one to which he was elected or appointed. We have been unable to find any authority which justifies a removal for such previous misconduct. The misconduct for which any officer may be removed must be found in his acts and conduct in the office from which his removal is sought, and must constitute a legal cause for his removal, and affect the proper administration of the office. There is no restriction upon the power of the people to elect, or the appointing power to appoint, any citizen to office, notwithstanding his previous character, habits, or official misconduct.

This may be a proper subject for legislative consideration, but, until the legislature shall choose to disqualify persons from holding office

for such reasons, they can constitute no cause for removal."

As distinguishing this case from one where the officer is re-elected or reappointed to the same office, see decision of the same court in Hawkins v. Grand Rapids (Mich.) under III. infra.

In State ex rel. Schultz v. Patten (1908) 131 Mo. App. 628, 110 S. W. 636, supra, it was held that, under the Missouri statute authorizing the mayor and council of a city to remove an elective officer of the city "for cause shown," a treasurer could not be removed because of embezzlement by him while previously occupying the office of collector of revenue for the city, there having been no conviction of embezzlement. It was unsuccessfully contended that where the statute failed to specify the causes for removal, the question should be determined by reference to the character of the trust imposed by virtue of the office, and that, therefore, in this instance, because of the similarity of the offices, the treasurer should be removed because of his previous embezzlement of public funds. The court said: "It will be observed the statute fails to specify the particular dereliction for which a removal may be had. The proceeding is authorized thereby for 'cause shown;' and while it seems that the defalcation in the office of collector ought to be sufficient cause for removal from the office of treasurer within the contemplation of the statute, supra, the weight of authority indicates and supports the law to be that, unless the incumbent has been convicted in a court of law prior to such proceeding, the misconduct for which a removal is sought, in the absence of statutory specifications to the contrary, must be misconduct with respect to the execution of the particular office from which the incumbent is sought to be ousted, and such misconduct must constitute a legal cause for removal, and affect a proper administration of such office. The fundamental notion involved in this doctrine is that of condonation for past offenses; and it seems there is especial reason for its application

This

with respect to elective offices. must be true when we reflect that all presumptions go in aid of the incumbent, and that the constituency which has seen fit to confer the office by popular election is presumed to have knowledge of prior derelictions of the present incumbent in the former office, condoned his offenses, and subsequently awarded him a new commission by a free expression of the popular will."

But in State ex rel. Schultz v. Patton (Mo.) supra, the court said that a conviction for embezzlement would certainly constitute cause for removal, even though the offense was misconduct in the prior office.

And under a statute authorizing the mayor and council of a city to remove a marshal of the police force "for incapacity or misbehavior or neglect of duty," it was held in People ex rel. Bancroft v. Weygant (1878) 14 Hun (N. Y.) 546, supra, that a marshal could not be removed because, prior to his appointment, he had, as collector of taxes for the city, failed to account for and pay over to the city treasurer money collected by him. It was said that the incapacity, misbehavior, or neglect of duty must be established in respect to his present office.

III. Doctrine that misconduct in former term is ground for removal. Although, as above shown, there are many cases which hold that misconduct in a prior term of office is not ground for removal of a public officer, there is an almost equal number of cases to the contrary effect, that such misconduct may constitute a ground for removal or impeachment.

Georgia.-Tibbs v. Atlanta (1906) 125 Ga. 18, 53 S. E. 811.

Iowa.-State v. Welsh (1899) 109 Iowa, 19, 79 N. W. 369.

Louisiana.-State ex rel. Atty.-Gen. V. Lazarus (1887) 39 La. Ann. 142, 1 So. 361; State ex rel. Billon v. Bourgeois (1893) 45 La. Ann. 1350, 14 So. 28; State ex rel. Perez v. Whitaker (1906) 116 La. 947, 41 So. 218. ALLEN V. TUFTS (reported herewith) ante, 274.

Massachusetts.

Michigan. Hawkins v. Grand Rapids (1916) 192 Mich. 276, 158 N. W. 953, Ann. Cas. 1917E, 700.

Minnesota. See State ex rel. Douglas v. Megaarden (1901) 85 Minn. 41, 89 Am. St. Rep. 534, 88 N. W. 412.

Nebraska.-State v. Hill (1893) 37 Neb. 80, 20 L.R.A. 573, 55 N. W. 794 (obiter).

New Mexico.-Territory v. Sanches (1908) 14 N. M. 493, 94 Pac. 954, 20 Ann. Cas. 109.

New York. See People ex rel. Burby v. Auburn (1895) 85 Hun, 601, 33 N. Y. Supp. 165.

Tennessee.-State ex rel. Timothy v. Howse (1915) 134 Tenn. 67, L.R.A. 1916D, 1090, 183 S. W. 510, Ann. Cas. 1917C, 1125.

Under a statute permitting removal of certain officers "if sufficient cause is shown therefor, and it appears that the public good so requires," it was held in ALLEN v. TUFTS (reported herewith) ante, 274, that misconduct of a district attorney during his first term of office might be shown as a ground for removal, notwithstanding the fact that he had subsequently been re-elected. The court said that the single circumstance of a re-election was not enough to prevent inquiry into the acts alleged during the first term; that some of the charges related to matters involving moral obliquity and positive crime of great magnitude committed in connection with the office; and that if proven, they might be found to constitute sufficient cause why the person guilty of them ought no longer to hold the office; that defendant was his own successor, and in substance and effect the service was continuous.

In State ex rel. Timothy v. Howse (Tenn.) supra, the court admitted that possibly the weight of authority was the other way, but held that the better doctrine was that which permitted removal from public office for offenses committed during a prior term. There was a statute in that state "to provide for the removal of unfaithful public officers," and prescribing a method of procedure for that purpose. Provision was made for removal of officers who shall