Mr. Justice Terry concurred.
° The first section of an Act concerning notaries public, passed April 30, 1853, prоvides that “ the Governor shall have power to appoint and commission notaries public, etc., etc., who shall hold officе for two years, and until their successors are appointed and qualified.”
The case under consideration presents the single question, whether the Governor of this State can remove from office a notary appointed under the provisions of this Act, befоre his full term has expired.
In considering this question, it is to be borne in mind, that the Constitution of this State is a limitation upon the powers of the legislaturе, and a grant of power to the other branches of the government, and that neither the judiciary nor executive can exerсise any other than those
It is a familiar principle in l^,w, that the major includes the minor, and that the power that creates, can abolish or destrоy, in the absence of constitutional restrictions; and this principle has been adopted and applied to the political workings of both the State and National Governments.
At an early period in the history of our government, the doctrine of removal, at lеast where it was sought to be extended to appointments made by and with the advice and consent of the Senate, was questionеd, and only maintained by a majority of fourteen in the House, and the casting vote of the Vice President in the United States Senate. “That thе final decision of this question,” says Justice Story, “was greatly influenced by the exalted character of the President then in office, was asserted at the time, and has always been believed.”
It will be observed that the Constitution of the United States contains no limitation on the рower of removal, and it might well have been considered that the exercise of this power by the Federal Executive, was neсessary to a complete execution of the laws, particularly in eases where relations of confidence and trust еxisted between himself and his subordinates. But in cases where Congress has created the office and defined the term, it has been held, that the incumbent could not be removed at the pleasure of the Executive, for the obvious reason, that having power over the subject matter, they could designate in what manner it should be exercised. This principle was settled in the case of Morbury v. Madison, 1 Cranch, in whiсh it was held, that the Act creating justices of the peace for the District of Columbia, having fixed the term at five years, it was beyond the power of the President to remove such justices during their term.
The principle was afterwards affirmed by Mr. Justice McLean, in the case of The United States v. Guthrie, 17 Howard. Since that time the Senate of the United States have, by resolution, affirmed the power of the President to remove a territorial judge from office, where the duration of his term was fixed by Act of Congress, but on what ground, it does not appear from the journals.
But turning from these cases, in which there was no constitutional limitation, it will be found, that similar questions have arisen in the State Courts, which have been uniformly decided against the power where limited by the organic law of those States.
In the case of Page v. Hardin, 8 B. Munroe, the Supreme Court оf Kentucky held, that the Constitution having provided that a secretary of State “ should be appointed and commissioned during the term for whiсh the Governor was elected, if he shall so long behave himself well,” the term thereby became fixed, and the Governor had no right to remove him. See also Avery v. The Inhabitants of Framingham,
The Supreme Court of Illinois has. gone furthеr, and decided in Field v. The People,
The soundness of this decision may be questioned, but I apprehend that there can be no doubt that the power of removal by the executive of this State has been circumscribed, and can only exist in the cases enumеrated in the Constitution, section 7, Article XI, which provides as follows: “ Where the duration of any office is not provided for by this Constitution, it may bе declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment ; nor shall the duration of any office, not fixed by this Constitution, exceed four years.” The obvious meaning of which is, that in those offices the term of whiсh is not fixed by law, the incumbent may be removed at the pleasure of the appointing power; but where the tenure is defined, then the officer shall hold for his full term. The language, “ where the duration is not provided by law, shall hold at the pleasure of the authority making the aрpointment,” is to be taken in a negative sense, when the duration has been provided, and the rule ex-2>reasio unius est exclusio alterius must govern.
Whatever doubt may exist as to the рropriety of the decision of Morbury v. Madison, or the rule of construction adopted by the United States Senate, it is clear in the сase before us, that the framers of our Constitution have in express terms provided a mode in which the executive of the State shall be divested of the power of removal from office, as an incident to the appointing power; but whether this provision was wise or politic, it is unbecoming for us to say.
Judgment affirmed.