legislature or senate where that body has jurisdiction, and in all these cases the power exercised is both executive and judicial. But it is more: the power is political in the highest sense, for it relates directly to the stability and administration of the government. The government must be administered through public officers, and if they prove to be incompetent or corrupt and unfit for the trust reposed in them, the sovereign power (in our case, the people) may, in the interest of self-preservation, demand the removal of the delinquent officers, and the substitution of others who will properly perform the official duties which may have been imposed upon them. The power of removal is an exercise of sovereignty, only a part of which has been vested in the governor.

The refusal of the court of appeals to review the governor's action on the merits is perfectly consistent with the assertion of judicial power under other cases of like high degree. Thus, while the constitutionality of laws enacted by the legislature has frequently been the subject of judicial attention, and many laws have been declared invalid for constitutional reasons, the power of the legislature has always been considered as involving primarily a question of jurisdiction, and its action in enacting a particular statute has always been considered from this point of view only. The courts have uniformly and consistently disclaimed any power to consider the propriety of proposed legislation, or the wisdom or policy of statutes. The rule is often asserted that the legislature has the sole power to determine questions of policy, but that the courts may inquire and determine whether the legislature has acted within the authority conferred upon it by the Constitution. The same principle is applied to the executive department; and while the executive power is not ab

solute, and its exercise is not wholly free from judicial scrutiny, such scrutiny, as in the case of the legislature, must usually be confined to questions of jurisdiction. Thus, the governor's jurisdiction to approve a bill passed by the legislature is subject to judicial examination, and a law may be declared unconstitutional not only because improperly passed by the legislature, but because not properly approved by the governor.

So, the exercise of the governor's pardoning power has been subjected to judicial review. People v. Potter (1846) 1 Park. Crim. Rep. 47; Re Whalen (1892) 47 N. Y. S. R. 313, 19 N. Y. Supp. 915; People v. Pease (1803) 3 Johns. Cas. 333, 27 Am. Dec. 104; Re Buchanan (1895) 146 N. Y. 264, 40 N. E. 883; People ex rel. Forsyth v. Monroe Court of Sessions (1894) 141 N. Y. 288, 23 L. R. A. 856, 36 N. E. 386; and in extradition cases. People ex rel. Corkran v. Hyatt (1902) 172 N. Y. 177, 60 L. R. A. 774, 92 Am. St. Rep. 706, 64 N. E. 825, affirmed in (1903) 188 U. S. 691, 47 L. ed. 657, 23 Sup. Ct. Rep. 456.

People ex rel. Faxton v. Parker (1843) 6 Hill, 49, involved the power of Governor Bouck to remove a sheriff appointed by Governor Seward, who had removed the sheriff elected by the people, and appointed a successor. It was held that Governor Bouck had jurisdiction to remove Governor Seward's appointee, but there was no inquiry into the merits, for the reason that the removal by Governor Bouck was without charges, which was authorized by the statute.

The extent of the authority which the courts may exercise over the governor's official action was considered in People ex rel. Broderick v. Morton (1898) 156 N. Y. 136, 41 L. R. A. 231, 66 Am. St. Rep. 547, 50 N. E. 791, involving the dismissal of a person employed in the de

partment of public buildings, and in which the court was asked to direct that a mandamus issue against the governor and the other trustees of public buildings, to compel the reinstatement of the person dismissed. It was held that a writ of mandamus could not be issued to the governor to compel the performance of a ministerial or executive duty. "The writ never issues to the executive or legislative branches of the government, nor to the judicial branch having general and final jurisdiction. The only way in which a mandamus can be enforced is by the commitment of the party who refuses to obey its commands as for a contempt. But the courts have no power to commit the governor for a contempt. They have no power over his person. He may be impeached, but there is no other way in which he may be deprived of his executive office."

A similar view was taken in People ex rel. Smith v. Hoffman (1901) 166 N. Y. 462, 54 L. R. A. 597, 60 N. E. 187, involving the validity of the removal of a military officer by the governor's order, based on the decision of an examining board, and it was there held that the supreme court had power to review the action of the examining board by the writ of certiorari, but that the governor was not a proper party to the proceeding, for the reason that his action was executive, and therefore not subject to review by the writ of certiorari, which is only directed to inferior judicial tribunals. The court say that, "while we cannot touch the person of the governor, we can pass upon the effect of his acts, and decide whether they are valid or invalid." As already pointed out, this judicial examination of the governor's action would doubtless be limited to questions relating to his jurisdiction, and would not embrace questions relating to the merits.

There is no appeal from a judgment of the court for the

trial of impeachments, nor from the action of the legislature or the senate in removing a public officer, but doubtless the courts may, even in these cases, where the title to an office is involved, determine that the judgment or order of removal was without jurisdiction. The exercise of this judicial power may be as necessary in these cases as in the case of a removal by the governor, and, in any case, an appeal to the courts may be the only means of preventing an arbitrary and unconstitutional exclusion from office. The governor's determination should be as conclusive on the merits as the determination of the court of impeachments, the legislature, or the senate under similar circumstances. This power of removal, when constitutionally exercised by the department of government possessing undoubted jurisdiction, must be conclusive on all other departments and on all the people; but jurisdiction must be established as the fundamental fact,-upon that the whole power rests.

The rule enunciated in the Guden Case-that the power of removal is executive, and not subject to judicial review on the merits applies to all cases, not only where the charges have their origin in circumstances occurring prior to the beginning of the official term, but to charges of actual official misconduct; and as to such prior causes the assertion of executive jurisdiction would probably be limited to conditions which, for their consummation, reach forward into the term; or which, as determined by Governor Odell, substantially vitiate the official oath, and, in effect, convict the officer of having taken a false oath.

I think the rule in this class of cases may be stated as follows: The governor's power of removal is executive, and he possesses exclusive authority to determine the sufficiency of the reasons which, in his judgment, justify the removal; and such determination is not subject to judicial review; but the courts may inquire into the proceedings

for the purpose only of ascertaining whether the governor had jurisdiction in the particular case, and whether the procedure was such as the Constitution and statutes require, especially whether the accused officer had notice of the charges against him and an opportunity to be heard in his defense.

§ 2. [Local officers, how chosen.]-All county officers whose election or appointment is not provided for by this Constitution shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct. All city, town, and village officers whose election or appointment is not provided for by this Constitution shall be elected by the electors of such cities, towns, and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct.

[Const. 1777, arts. 22, 29; 1821, art. 4, § 15; Am. 1826, relative to election of justices; Ams. 1833 and 1838, relative to mayors; Const. 1846, art. 10, § 2.]

This is known as the home rule section of the Constitution for the reason that it preserves the right of local self-government, especially as applied to the choice of local officers. The subject of home rule received a new development in the Constitution of 1894 by the addition of § 2 of article 12, relating especially to cities, which were vested with the power to approve or reject proposed legislation. In connection with the history of that section I have prepared an article on home rule which ap