Cole v. Territory of Arizona ex rel. Wilson , 5 Ariz. 137 ( 1897 )

HAWKINS, J.

(after stating the facts).—The only question in this case is, Had the governor the power of removal? We think he had. Paragraph 2978 of the Revised Statutes of 1887, providing for the office of territorial treasurer, and for the commissioning of the incumbent, fails to fix the tenure. And paragraph 3049 of the Revised Statutes provides that every officer whose term is not fixed by law holds at the pleasure of the appointing power. This was the statutory regulation pertaining to this office when Cole took the appointment, and is decisive of the question. Nothing in the Organic Act for this territory prohibits such law. The power to remove is incident to the power of appointment, unless expressly prohibited by law. In re Hennen, 13 Pet. 230. This doctrine has become so well settled that it is now the text-law of this country. Story on the Constitution, secs. 1538-1544; Black on Constitutional Law, pp. 105, 106. It is followed by most of the states. Welch v. Cook, 7 How. Pr. 282; Trimble v. People, 19 Colo. 187, 41 Am. St. Rep. 236, 34 Pac. 981; People v. Fisher, 24 Wend. 216; People v. Snedeker, 14 N. Y. 52; Territory v. Cox, 6 Dak. 501; Sprague v. Brown, 40 Wis. 612; Cameron v. Parker, 2 Okl. 277, 38 Pac. 14 et seq.; State v. Benedict, 15 Minn. 158 (Gil. 198); State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228; Galbraith v. McCollum, 98 Mich. 219, 57 N. W. 115. It is also the rule in cases of appointments under laws of the United States by the President. McAllister v. United States, 141 U. S. 174, 11 Sup. Ct. Rep. 949; Wingard v. United States, 141 U. S. 201, 11 Sup. Ct. Rep. 959. No one has a right of property in an office such as will bar the executive from removing him. State v. Hawkins, 44 Ohio St. 98, 5 N. E. 234; Cameron v. Parker, 2 Okl. 277, 38 Pac. 14, and authorities there cited. Most of the cases relied upon by the appellant were decided either where the constitution or laws of the state made no provision for the governor to remove, or where the incumbent had a property in his office, and that he could not be deprived of his office without a judgment of a court. This latter view is supported by the common law, which regarded an office as an hereditament, but no such doctrine has ever had any force in this territory. This territory also has an act (Laws 1891, p. 96) which provides that the governor has power to remove from office any territorial officer appointed by him or his predecessor, or who has been so appointed by and with the advice of the legislative council, when, in his judgment, the best interests of the public service shall be subserved thereby; and an official letter to the effect that it is the desire of the governor that the office be vacated constitutes sufficient notice to the incumbent. This law is absolutely conclusive of the question. It is not contrary to the Organic Act. That act nowhere prohibits such a law. It is silent on the subject, and what is not prohibited therein on all rightful subjects of legislation is permitted. The judgment is affirmed.

Bethune, J., and Rouse, J., concur.