The People v. Parker.

ment, because the provision against his being put twice in jeopardy has happened to find its way into the constitution? (See 2 Inst. 183.)

It is clearly settled that an award or assessment of a sum to be paid by one to another, pursuant to a public or private act of parliament, forms the subject of an action of assumpsit, The case of Bell v. Burrows, reported in Bull. N. P. 129, Lond, ed. of 1788, is in point, and has never been questioned, at least not directly. Debt may, for aught I know, be equally proper ;(a) but that action is often concurrent with assumpsit. (See Rann v. Green, (Cowp. 474; also Doug. 402.) A justice's judgment is perhaps an exception. (Pease v. Howard, 14 Johns. 479.) But clearly the analogy of this to an as essment should not operate to enlarge it into a general rule. Such an effect would place it in conflict with doctrines that this court could never have thought of disturbing.

Judgment for the plaintiff.

(a) See Lebanon v. Olcott, (1 N. Hamp. Rep. 339,) and Bigelow v. The Cam. bridge & Concord Turnp. Co., (7 Mass. R. 202.)

THE PEOPLE, ex rel. Faxton, vs. PARKER.

Where a sheriff elected by the people is removed, and a person appointed to discharge the duties of the office pursuant to 1 R. S. 124, § 49, the governor may, at any time before a new sheriff is elected, remove the person so appointed, though no charges are preferred against him, and appoint another in his place.

INFORMATION in the nature of a quo warranto. The information was filed in June, 1843, and alleged that the defendant had, for the space of three months and longer, used and executed the office of sheriff of the county of Oneida, and still claims to use the said office, without any lawful warrant or authority whatever, &c. That Theodore S. Faxton, the relator, was rightfully entitled to the said office during all the time aforesaid, and still is entitled to the same. That one David MoulVOL. VI.

7

The People v. Parker.

ton held and exercised the said office on the 19th of December, 1842, and for a long time before, to wit, from the 1st of January, 1841, having been duly elected thereto by the people of said county for the term of three years from the 1st of January aforesaid. That afterwards, to wit, on the 20th of December, 1842, and during the term for which the said Moulton was elected, he was in due form of law removed from the said office by William H. Seward, then governor of the state; and a vacancy having thus occurred, the governor on the next day appointed the relator to execute the duties of said office until the vacancy should be supplied by a new election. That the relator thereupon took the oath of office &c., caused the requisite bond to be executed and filed, and procured and served on said Moulton the proper certificate that he, the relator, had duly qualified and given the security required by law: whereby the relator became authorized &c. to execute the duties of said office of sheriff until the same should be supplied by a new election; and that said office has not yet been supplied by a new election &c.

The defendant pleaded that, while the relator was so executing the duties of the office of sheriff under and by virtue of his appointment, as alleged in the information, to wit, on the 11th of January, 1843, William C. Bouck, then being governor, did, under the authority vested in him by the constitution and laws of the state, remove the relator from the said office to which he had been appointed; and the same having thus become vacant, the said William C. Bouck afterwards, and on the day last mentioned, in due form of law appointed the defendant to said office, and commissioned him to discharge the duties of the same until the vacancy should be supplied by a new election. That thereupon the defendant, after having taken the oath of office and filed the bond required by law, procured and served on the relator a certificate that he, the defendant, had duly qualified and given the requisite security: whereby the defendant became authorized &c. to execute the duties of said office of sheriff until the same should be supplied by an election; and that said office has not yet been supplied by an election &c.

The People v. Parker.

Replication, that no charges were made or presented to the said William C. Bouck, governor &c., against the relator, nor did the said William C. Bouck serve or cause to be served upon the relator a copy of any charges &c.; and that the relator had not been guilty of any misfeasance, malfeasance or nonfeasance in office &c.

The defendant demurred to the replication, assigning the following causes, viz. 1st, That it seeks to put in issue whether any charges were presented to the governor against the relator, or served upon him, whereas this is altogether immaterial, as the governor had the power to remove without charges; 2d, Because the replication seeks to put in issue whether the relator was guilty of any misfeasance, malfeasance or nonfeasance &c., this being also immaterial. Joinder in demurrer.

C. Comstock & S. Beardsley for the defendant.

C. P. Kirkland & D. Cady, contra.

By the Court, NELSON, Ch. J. The eighth section of the fourth article of the constitution ordains, that sheriffs shall be chosen by the electors of the respective counties once in every three years, and as often as vacancies shall happen; that they shall hold no other office, and be ineligible for the next three years after the termination of their offices; and that the governor may remove such sheriff at any time within the three years for which he shall be elected, giving to him a copy of the

charges against him, and an opportunity of being heard. (Const. of N. Y. Art. 4, § 8.)

It is quite clear from the above provision that the office of

sheriff,

known to the constitution, is one to which the in

cumbent must be elected by the people, and which cannot be filled by an appointment through the executive or any any other appointing power. But on the happening of a vacancy in the office by death or otherwise, during the constitutional term, the necessity of the case requires that it should be temporarily filled by other means than an election; and those

The People v. Parker.

means, as well as the time the temporary incumbent shall hold, must be left to the legislature. That body have accordingly provided that, when a vacancy shall occur, the under-sheriff shall execute the duties of the office until a sheriff shall be elected or appointed. In case there be no under-sheriff, the coroner may discharge the duties; and, upon his neglect or refusal, some other suitable person may be designated for that purpose. (1 R. S. 379, to 381, §§ 72 to 82.)

These several statutory provisions secure a supply of any vacancy that may occur, immediately on the happening of the event, and guard effectually against every contingency by which a county may be left temporarily destitute of an officer to discharge the duties of sheriff. They were, however, designed to meet the immediate exigency only; not to supply the vacancy until a sheriff should be elected. That is provided for in another part of the revised statutes.

By 1 R. S. 124, 49, it is enacted that in every case where a vacancy shall occur in the office of sheriff, except where such vacancy shall arise from the death of the incumbent, the governor shall appoint some fit person who is eligible to the office, to execute the duties thereof, until it shall be supplied by an election; and the person so appointed, after taking the oath of office and giving the requisite bond, is clothed with all the authority and subject to all the duties and obligations of the officer so removed. The governor's power of appointment was subsequently extended to the case of a vacancy occurring by death. (Sess. L. of 1830, p. 64 2.) By 1 R. S. 128, § 8, it is provided that all vacancies in the office of sheriff shall be supplied at the general election next succeeding the happening thereof; but when the term of service will expire at the end of the year during which the vacancy shall occur, no person shall be chosen to supply it, but the usual election shall be held for a new officer to hold during the constitutional term.

The power of the governor, therefore, to supply the vacancy by appointment, is confined to the interval occurring between the time the vacancy happens and the filling of the office at the next general election, which in no case can exceed the period

The People v. Parker.

of one year, and may not exceed one month. But between the happening of the vacancy, and the supply by election, be the time longer or shorter, the power is complete and absolute. Under this power the relator received his appointment from Governor Seward to supply the vacancy occasioned by the removal of Moulton.

The power under which the relator was removed is given expressly by 1 R. S. 122, § 38, as follows: "All officers who are or shall be appointed by the governor for a certain time, or to supply a vacancy, may be removed by him." The relator, having been appointed to supply the vacancy occasioned by the removal of Moulton on the 20th December, 1842, was of course subject to removal by Governor Bouck within the very terms of the foregoing provision.

It has been argued, however, that Governor Bouck could not remove the relator, because of the want of constitutional power to fill the vacancy by appointment. We admit the vacancy cannot be constitutionally filled short of an election. But from the necessity of the case the legislature may provide for devolving the duties of the office temporarily upon some one to be selected by the governor or otherwise; and this they have accordingly done.

It was insisted also that the power of the executive to appoint is exhausted by the exercise of it in the first instance after a vacancy has occurred. This argument is drawn from the latter clause of the section conferring the power of appointment, which is as follows: "The person so appointed &c. shall possess all the rights and powers, and be subject to all the dutics and obligations of the officer so removed." (1 R. S. 124, § 49.) The counsel for the relator suppose that the above clause of the forty-ninth section conflicts with the provision in 1 R. S. 122, 38, and that the former, being subsequent in the order of enactment, must control. flict exists between the two provisions. The clause of the fortyninth section relied upon was intended merely to define, in a brief and comprehensive manner, the powers, duties and obligations of the appointee. Besides, the argument proves too For unless the power of removal exists under the thirty

much.

The answer is, that no necessary con