chosen." The meaning of the term inhabitant, as employed in these provisions, has been somewhat discussed. That it was intended to express something different from the word resident, is apparent from the fact that the latter word was in the original draft of the constitution, and was stricken out by the convention, and "inhabitant" inserted. It would seem that the framers of the constitution were impressed with a deep sense of the importance of an actual bona fide residence of the representative among the constituency-a residence in the sense of actual living among them and commingling with them, and therefore employed the term inhabitant in the sense of living or abiding, and not in the sense of technical residence. This view of the subject was sustained in an elaborate report made to the House of Representatives, in 1824, in case of John Bailey of Massachusetts, who was elected a Representative from that State while he was a clerk in the Department of State, at Washington, D. C., and temporarily residing in that city while in the discharge of his official duties. He was held not entitled to the seat. (Clark & Hall, 411.) The conclusion reached in that case was that an inhabitant of a State, within the meaning of these clauses of the constitution, is one who is bona fide a member of the State, subject to all the requisitions of its laws, and entitled to all the privileges and advantages which they confer.

§ 250. The case of one who is abroad, representing the government at a foreign Court, was held to be different from that of a person employed in the domestic service of the government, out of the limits

of his own State. The foreign representative carries with him the sovereignty of the government to which he belongs; his rights as a citizen are not impaired by his absence; children born in the house he occupies, are considered as born within the territory and jurisdiction of the government in whose service he is; he does not possess the capacity by residence in the foreign country, to become one of its citizens, or to lose his allegiance to the country from which he comes. None of these things attach to those persons who are employed in the home service of the government. It was accordingly held by the Committee of Elections, in the case of John Forsyth of Georgia, (Cl. & H., 497,) that a person can be chosen a Representative in Congress while absent from the country, as a minister to a foreign Court, and that this case did not conflict with the case of John Bailey, supra.

§ 251. Where the constitution of a State authorizes the Governor to fill vacancies that may happen in certain offices during the recess of the Senate, by granting commissions, &c., such Governor has no power to create a vacancy by a declaration that one exists, and granting a commission to fill it. The decision of the Governor in such a case that a vacancy exists, is not conclusive as to the rights of others, and if, upon a judicial investigation, by a Court of competent jurisdiction, it is determined. that no vacancy existed, the appointment by the Governor is void, and must be set aside. (Page vs. Hardin, 8 B. Mon., 648.) The judiciary must, where individual right is involved, decide upon the legality of an act of the Supreme Executive power,

as well as upon the validity of legislative acts. (Ibid.)

§ 252. Where the constitution prescribes, the qualifications for an office, the legislature cannot add others not therein prescribed. It was accordingly held, that where the constitution provided that "all civil officers of the commonwealth at large shall reside within the State, and all district, county or town officers within their respective districts,” it was not competent for the legislature to require the Secretary of State to reside at the seat of government. (Ibid.) In the same case it was further held that, by the common law, ministerial officers may generally appoint deputies to act in the name and place of the principal, and whose acts within the scope of their appointment, will be held valid.

§ 253. An office may be abandoned by removal from the State, county or district to which the officer is restricted by the law of his office; or by accepting an incompatible office; or by the relinquishment of any express qualification; or by the assumption of any absolute disqualification, or by resignation, (Ibid.)

§ 254. Where an officer is commissioned for a certain term of years "if he shall so long behave himself well," he cannot be removed for misbehavior without notice and a trial. The conviction of misbehavior in our government implies a right to notice, defense, and proof, on the part of the officer, and is a judicial question. The executive, therefore, cannot determine that the Secretary of State, or any other officer, holding during good behavior,

has been guilty of misbehavior and thereupon remove such officer.

[Ibid.]

But See State vs. Doherty, 25 La. Am. 119, where the power of the executive to decide in such a case, uncontrolled by any other branch of the government, is maintained.

§ 255. The doctrine of Page vs. Hardin, was approved and adopted by the Supreme Court of New Jersey, in the recent case of The State vs. Prichard and others, (Am. Law Register, New Series, Vol. 12, p. 514.) And in this latter case the Court went further, and held that even if the incumbent of an office be convicted of an infamous crime, this does not, ipso facto, work such a forfeiture of his office as to make it vacant. It was determined that in the absence of any statute expressly declaring that such conviction shall create a vacancy in the office, it is not within the power of the executive to give it this effect, and to appoint a successor to the person convicted. The right to remove a public officer for misbehavior in office does not appertain to the executive, but such is a judicial act, and belongs to a Court, -in New Jersey to the Court of Impeachments. Because the conviction of an officer of an infamous crime deprives him of the right to testify as a witness and of the right to vote, it does not follow that it also deprives him of his office. Says the Court in the case just cited: "Because as a punishment the law has denounced a loss of two of the rights of citizenship, it does not follow that a third right is to be withheld from the delinquent. Indeed, the reverse result is the reasonable deduction, because it is clear on common principles that no penalty for crime but that which is expressly prescribed, can be exacted. The fact that severe penal consequences are annexed by statute to the commission of a breach of

law, cannot warrant the aggravation, by the judicial hand, of the punishment prescribed." It may not be out of place here to remark, that while the law is no doubt as laid down in the case just cited, it would, as the judge delivering the opinion clearly intimates, be well for the legislatures of the several States to provide by statute that the conviction of a public officer of any official delinquency, or of the commission of any infamous crime, shall ipso facto work a forfeiture of his office, and that the record of such conviction by a court of competent jurisdiction shall be sufficient to authorize the proper authority to declare and to fill the vacancy. For it is plain that in the absence of such legislation, according to the law which seems well settled, a convicted felon may, for a time at least, continue to exercise the functions of a public office, unless indeed by imprisonment, he be deprived of the power to do so.

§ 255a. It seems to be settled, that the power of removal from office is incident to the power of appointment in those cases only where the tenure is not fixed by law, and where the office is held at the pleasure of the appointing power. (Collins vs. Tracy, 36 Tex., 546.)

§ 255b. The record of the proceedings of a City Council removing an officer for misconduct, must state the specific acts complained of, so far as necessary to show the jurisdiction of the Council. The jurisdiction must appear, and it will not be presumed. [State vs. Lupton, 64 Mo., 415.]

256. The constitution of Kentucky provides that, "any person who shall after the adoption of this constitution, either directly or indirectly, give, accept, or knowingly carry a challenge to any person or persons to fight in single combat with a citizen of this State, with any deadly weapon, either in or out