
    The Commonwealth ex rel. Reynolds against Bussier.
    
      Friday, January 8.
    The power of appointing to, and removing from, the office of inspector of salt provisions for the city, county, and port of Philadelphia, is vested in the Governor,
    The tenure ot ministerial offices in general, is during pleasure, unless the law establishing the office orders it otherwise.
    Quo Warranto.
    THIS was a rule upon Daniel Bussier, to shew cause why an information in nature of a quo warranto should not be filed against him, on the relation of Benjamin Reynolds, calling on him to shew why he exercised the office of inspector of salt provisions for the city, county, and port of Philadelphia. A rule of the same kind had been granted against Benjamin Reynolds at the relation of Daniel Bussier. Both were now argued together, in order to obtain the decision of the Court on the question, which of them was entitled to the office.
    
      J. R. Ingersoll and Ingersoll, for Reynolds.
    
    
      Benjamin Reynolds was appointed to the office of inspector of salt provisions, on the 18th April, 1807, by Gov. M‘Kean, to hold “ until that appointment and commission should be by him, or other lawful authority, superseded, and annulled.” On the 30th January, 1807, a commission of the same tenor was given to Mr. Reynolds by Gov. Snyder: and on the 4th March, 1818, by Gov. Findlay. On the 21st October, 1819, a commission for the same office was issued by Gov. Findlay in favour of Daniel Bussier. Both are now executing the office: and two questions arise.
    1. Is this such an office as the Governor has the right to appoint to ?
    2. If so, does the officer hold during the Governor’s pleasure?
    1. We contend, that the Governor had no right to supersede Mr. Reynolds, the power of appointment not being vested in him, but in the legislature. The office was created by the act of assembly of the'18th August, 1727, 1 Car. & Bio. Laws, 218. By that act, Nathaniel Griffiths was appointed to execute the office, and it was enacted, that “ if the said N. 
      
      Griffith, or other person hereafter appointed to be the officer aforesaid, shall by any accident be rendered incapable, or neglect to execute the said office, or shall happen to die, before or after the time of putting this present act in execution, then, and so often, and from time to time, it shall and may be lawful to and for the mayor, together with any two aider-men of the city of Philadelphia, to supply his place, by some other fit and capable person, who shall thereupon be the officer for putting this -act in execution, until the assembly appoint another.” On the 12th March, 1789, 3 Sm. L. 475, a supplement was passed to this act, in which, although other parts are altered, no change is made in the mode of appointment or tenure. The 12th section of the act of 1789, then proceeds to repeal only so much of the act of 1727, as is altered or supplied by that act: so that whatever is not altered or supplied is in effect ratified. The constitution of 1776, 5 Sm. L. 428, authorised the president and executive council to appoint all officers, excepting “ such as are chosen by the general assembly or the people, agreeable to this form of government, and the laws that may be made hereafter.” It made no change in the existing mode of appointment. The act of 28th January, 1777, Purd. Dig. 1, revives and puts in force former acts. The present constitution also provides, that “ all laws of this Commonwealth in force at that time, and not inconsistent therewith, shall continue.” Schedule, sect. 1. The act of 1727, is not inconsistent with the powers of appointment given to the Governor by the present constitution, established in 1790. The power given to him by the present constitution is, <e to appoint all officers whose offices are established by this constitution, or shall be established by law, and whose appointments are not herein otherwise provided for.” This power embraces two classes of ■offices. 1. Those established by the constitution, and whose appointments are not otherwise provided for; such as judges, prothonotaries, recorders, &c. 2. Those which might be thereafter established by law. But there is another class embracing those office's which were' established by law prior to the constitution, and are not provided for. These are not given to the Governor, Of this class, is the office now in question : and as the law of 1727 is not altered or abolished, but revived by the schedule, the appointment remains in the assembly. Other laws similar to that of 1727, were passed from time to time after it. The first inspector of staves was appointed by the legislature, under a law passed in 1759. 1 Sm. L. 224. The office of inspector of shad and herring was created by a law passed in. 1774, the provisions of which are similar to the act of 1727. 1 Sm. L. 420: although that office was, in 1810, merged in that of inspector of salt provisions. 5 Sm. L. 123. So, the inspector of flour was named in the act passed in 1781; and the vacancy was directed to be filled by a majority of the justices of the city of Philadelphia or any county, till the assembly appointed another. 1 Sm. L. 528. The more recent inspection laws expressly vest the power of appointment in the Governor: as that of flour in the western country, 3 Sm. L. 52, 1791. Of gunpowder, 3 Sm. L. 245, 18th April, 1795. Of butter, 4 Sm. L. 104, 7th January, 1804. Of ground black oak bark, 4 Sm. L. 194, 3d April, 1804.
    2. Supposing the Governor to have the power to appoint, yet he cannot remove the officer at his pleasure. By the act of 1727, there must be a vacancy occasioned by disability, neglect, or death, before a successor can be appointed. The constitution of 1790, does not give the Governor the power of removal, even as to officers of his appointment. Much less has he such power, where the tenure is fixed by law, as is the case with this office. It was decided by this Court in The Commonwealth v. Sutherland,
      
       that the power of appointment to office by the Governor did not carry with it the power of removal: and that the legislature might fix the duration of the office, and modify the power of removal. None of the events having happened, which are mentioned in the act of 1727, as. sufficient to justify a removal, Mr. Reynolds being able and capable, the Governor has no right to appoint a successor to him.
    
      T. Sergeant and J. Sergeant, for Bussier,
    
    submitted that the principles on which this case must be decided were important : but by no means new. They have been well considered, determined, and acted upon for upwards of SO years. During that time, the Governor has always appointed and removed in offices of this description, without objection. The principles settled in The Commonwealth v. Sutherland,
       apply only local trust or stations: they do not embrace those which are properly, offices within the meaning.of the constitution, and concern the public at large, such as offices of inspection, which are intended to maintain our trade with foreign nations and uphold the credit of our com* modifies abroad. They contended, 1. that the appointment to this office belongs, by the constitution, to the Governor. 2. The tenure of the office is during pleasure.
    4. The constitution, of 1776, and the law as construed and acted upon under it, formed the basis on which the constitution of 1790, was erected. By the constitution of 4776, sect. 20, and the practical construction given to.it, the appointment to the office in question, and others of the same description, was finally determined - to be vested in the supreme executive council, the executive branch of that government. This power had become a subject of. dispute : and two instances are to be found after the year 1776, of the assembly’s exercising it. On the 19th September, 1780, James Rowan was appointed inspector of salt provisions by .the general assembly, on the petition of divers.inhabitants of Philadelphia, and was commissioned on the 21st September, by the supreme executive council. On the 24th November, 1780, John Linington was appointed, by the assembly, inspector of staves and heading. These are the only instances. On the other hand, on the. 8th .April, 1777, Jacob Plankenhorn was appointed inspector of flour by the supreme executive council. This subject formed an important item in the discussions of the. Council of Censors, which met in this city, for the first and only time, on the.10th November, 1783, to examine into the exercise of power by the various branches of . government under the constitution of 1776. That body censured the assembly for usurping appointments. Min. of Council of Censors, 139, 140. In consequence of their report, an act of assembly was passed on the 4th April, 1785, declaring, that the appointment to such offices was in the supreme executive council. And accordingly, on the 22d April,±7^5, the latter appointed James Read inspector of flour, and on the 28th June, 1785, they appointed Thomas Prichett inspector of salt provisions, and John Linington inspector of staves and lumber: and from that time to the constitution of 1790, and ever since, the executive has appointed to these offices, and others of a similar kind, at his pleasure, frequently removing the incumbents. [The counsel gave a detail of the appointments and removals in the offices of inapectors of salt provisions, flour, lumber, staves and heading, from the 28th June, 1785, to the present day.] J
    
    . _ , .. .. r This office then was established by the constitution or 1790, as it subsisted at that time. The law of 1727, vesting the appointment in the assembly, had so far been' repealed by the constitution of 1776, and the declaratory act of 1785, that it was not “ in force” in that respect, in 1790. The schedule to the constitution, reviving former laws revived the act of 1727, only as explained and subsisting at that time. The constitution of 1790, formed after much experience, and many struggles under the former system, meant to provide for all appointments to office. It did not intend, that the legislative branch should make any appointments to office but those which were expressly given to it. The supreme executive power is conferred on the Governor, to whom are given all appointments to offices established by the constitution or by law, which are not distributed elsewhere. In this spirit, the third section of the schedule declares, that all officers in the appointment of the supreme executive council, shall continue until the 1st September, 1791, “and no longer, unless re-appointed and commissioned by the Governor.” Hence there is no instance of an appointment to such office by the legislature under the' constitution of 1790: but uniformly by the Governor, under four administrations. This has been the practical construction of thirty years, under those who framed the constitution, confirmed by the opinion of learned men. Indeed the assembly, as it existed undér the former systems, consisting of one branch, is extinct and gone: it has left nothing related to it. The legislative power has undergone an entire change; the people" resumed their whole power in 1790, and distributed it anew. When the assembly appointed in former times, it did so by resolution. See Votes of Assembly, 1737, vol. iii. p. 143, 4. 6. appointment by resolution of collectors of excise. Such a mode of appointment now, would be a novelty.
    2. As the Governor appoints, so he has power to remove at pleasure: and instances of such removal by him are numerous. All ministerial offices are held during pleasure, unless otherwise ordered in the constitution or the law creating them. When the constitution intended an office to be for good behaviour or a less time, it says so. The constitution-declares, that “ the supreme executive power shall be vested in a Governor.” Art. II. and that “ he shall take care that the laws be faithfully executed.” It is of the essence of an executive power, that it should possess the power of appointing, controuling, and removing those entrusted with the execution of the laws. It was upon clauses of the same description in the constitution of the United States, that the first Congress decided, that the President alone had the power of removing certain officers, though the power of appointing them was vested in the President and Senate. Mr. Madison’s speeches in that body contain a luminous exposition of these principles. See Report of the Debates in the First Congress. The Minutes of the Council of Censors also evince the opinions under the constitutions of 1776, on this point. The power of impeachment is an engine of too much importance and expense to be used in every inferior office : and would be too slow in its operation to answer the required purpose. The objections made to the legislature’s power of appointment, apply to their power of removal; for they are connected in the same clause. They have never exercised it. Even the relator derives his commissions from the respective Governors: and objects with an ill grace to the power of appointment being vested in the Governor. They cited John v. Nicholls.
    
    
      
       3 Serg. & Rawle, 145.
      
    
    
      
      
         2 Dall. 184.
    
   The opinion of the Court was delivered by

Tilghman C. J.

This case comes before us, on a rule to shew cause why an information in nature of a quo warranto, should not be granted against Daniel Bussier, for exercising the office of “ Inspector of salted provisions for the port of PhiladelphiaIt is of importance, because a constitutional point is involved in it, and has been very well argued. The counsel for Benjamin Reynolds the relator, have endeavoured to establish two positions. — 1. That the general assembly and not the Governor, have the right of appointing to this office. — 2. That even if the Governor has the right of appointment, he has not the power of removal from office. Each of these positions shall be considered.

1. It appears somewhat singular, that the Governor’s right of appointment should be denied by Mr. Reynolds. He has received appointments from three successive Governors: first from Gov. M‘Kean, in the year 1807, then from Gov. Snyder, in 1809, and last from Gov. Findlay, in 1818, so that he has held this office, and exercised its duties, without question for twelve years and a half, when he was removed by Gov. Findlay, who appointed Mr. Bussier in his place. And what is more singular, Mr. Reynolds still continues to claim and to exercise the office. Nevertheless, if he has at length discovered that all this was error, he has a right to bring his case 'before the Court, and they are bound to do him justice. The right of appointment, as well as of removal, depends on our Constitution, adopted 2d September, 1790. By the 1st sect, of the 2d article, the supreme executive power of the Commonwealth, is vested in the Governor; and by the 8th section of the same article, the Governor is to appoint all officers tvhose offices are established by this Constitution, or shall be established by law, and whose appointments are not therein otherwise provided for. It must have been the intent of the Constitution to provide for the appointment to all offices then existing, and not inconsistent therewith, or which should thereafter exist. And the words which were made use of, seem adequate to the purpose; for there could not be any existing office, which, if established at all, was not established by the Constitution; and as for future offices, they could only be established by law. When I speak of the Constitution, I include the Schedule which is to be taken along with it. Now by the 1st section of the Schedule, “ all laws of the Commonwealth in force at the time of making the alterations and amendments introduced by the Constitution, and not inconsistent therewith, were continued, as if the said alterations and amendments had not been made.” Then, as all offices in existence at the time of adopting the Constitution, must have been established by law, it follows that they were all recognised and established by the Constitution, unless inconsistent with some of its provisions. It is to be understood, that in what I have said, I do not mean to include certain offices, (so called, when that word is taken in its largest sense) of a local, limited, or a corporate nature, which have not been supposed to be comprehended in the Governor’s power of appointment. But it is unnecessary to embarrass the present question with the consideration of those inferior offices, as it is conceded, that the office of inspector of salted provisions is of a general and important nature. This office was established by an act of assembly, passed in the year 1727; and there is no provision in the Constitution, for an appointment of the officer by any other person than the Governor. Why then shall not the Governor appoint him ? Because, say the counsel for the relator, the act of 1727, which establishes the office, give the right of appointment to the general assembly, and that act being continued by the Schedule annexed to the present Constitution, the whole law is in force, and consequently the appointment of the officer remains in the Legislature. The argument is ingenious, but not quite sound; because it may be, that so much of the act of 1727, as relates to the appointment of the officer, had been abrogated, and if that was the case, there would be no pretence for saying that the Constitution of 1790 revived what had been abrogated. Let us examine then, how this matter stood on the 2d September, 1790. By the act of 18th August, 1727, this office was established, and Nathaniel Griffiths, was appointed to execute it; and it was further provided as follows. “ And if the said Nathaniel Griffiths or other person, hereafter appointed to be the officer aforesaid, shall by any accident be rendered incapable, or neglect to execute the said office, or shall happen to die, before or after the time of putting this present act in execution, then, and so often, and from time to time, it shall and may be lawful to, and for the mayor, together with any two aldermen of the city of Philadelphia, to supply his place, by some other fit and capable person, who shall thereupon be the officer for putting this act in execution, until the assembly appoint another.” It would seem, that it was the intent of this act to reserve the appointment to the assembly, without the Governor’s participation; but we have no evidence in what manner the appointments were made, from the year 1727, to the. revolution in 1776. By the Constitution of Pennsylvania, formed in the year 1776, the supreme executive power was vested in a President and council; in whom was also vested the power “ to appoint and commissionate Judges, naval officers, Judge of the Admiralty, Attorney General, and all other officers civil and military, except such as are chosen by the general assembly, or the people, agreeable to this frame of government, and the laws that may be made hereafter, and shall supply every vacancy in any office occasioned by death, resignation, removal, or disqualification, until the office can be filled in the time and manner directed by law, or this Constitution.’’ — The appointment of certain specified officers, is given to the general assembly, and of others, to the people; but no particular mention is made of the office in question, or of other similar offices, such as the inspector of flour, of lumber, &c. By the evidence which has been laid before us, it appears, that concerning the right of appointment to those offices, there was a difference of opinion between the general assembly, and the supreme executive council. For, on the 8th April, 1777, the inspector of flour was appointed by the council, and on the 19th September, 1780, the inspector of salted provisions was appointed by the general assembly. But this difference was remedied, after the meeting of the council of Censors in the year 1784, who were of opinion that according to the true intent of the Constitution of 1776, the supreme executive council had the right of appointing to all offices, not plainly given by that Constitution to the general assembly or the people. In this opinion, the Legislature acquiesced, as appears, by an act passed the 4th April, 1785, for the express purpose of setting this important question at rest. By this act, after a preamble, in which is recited the opinion of the council of Censors, “ that the appointment of the revenue, and all other officers, not expressly assigned to the house of assembly, or to the people by the Constitution, which had been exercised by the general assembly, was a deviation from the Constitutionit was enacted as follows: that the choice of the Speaker of the house, clerks, and other officers and servants of the same, proper andbefitting the general assembly as a legislative body, the delegates to represent the State in Congress, the Treasurer of the State, Registers of wills, and for granting letters of administration, and the Recorders of deeds, Trustees of the loan office, and a concurrency of votes with the members of the supreme executive council, in the election of President and Vice President of Council, as mentioned in the Constitution of the State, are, and shall be, carefully reserved to the general assembly for the time being; and that all other officers necessary to the execution of the laws of this Commonwealth, (such as are specially reserved for the choice of the people, or plainly directed by the Constitution to be otherwise chosen and appointed, only excepted,) shall be deemed and taken to be, and the same are accordingly by this act, declared to be in the nomination and appointment of the executive council, subject however £0 times and manner of holding the same which the Constitution and laws do, or shall prescribe.” In April, 1785, very soon after the passing of this law, the executive council, (John Dickenson being President,) appointed an inspector of flour, and on the 25th June, 1785, they appointed Thomas Prichet, inspector of salted provisions, (the office in question.) And in November, 1787, by the same authority, (Benjamin Franklin being President,) there was another appointment to the same office, and to the office of inspector of lumber. In November, 1787, the council appointed another inspector of lumber. Nor have we had any evidence of an appointment to any of these offices by the general assembly, from April, 1785, to September, 1790. So that we have the construction of the Constitution of 1776, fixed, by the council of Censors, whose special duty it was to interpret it, by the general assembly, and by the supreme executive council, with Benjamin Franklin at their head, who is supposed to have had a preponderating influence in the formation of that Constitution, and must therefore have understood it. We see then, that at the time of the formation of the Constitution of 1790, there was the best authority for the opinion, that the act of 1727, so far as respected the appointment of inspector of salted provisions, was virtually repealed by the Constitution of 1776, and that the right of appointment was no longer vested in the legislative power, but in the executive. It follows very clearly, that the Schedule of the Con¿titution of 1790, which continued the act of 1727, continued it, as it then stood, that is to say, with the exception of that part, which gave the appointment of the officers to the general assembly. It is therefore the opinion of the Court, without doubt, that by our present Constitution, the power of appointment is vested in the Governor.

2. But granting the power of appointment to be in the Governor, it is denied that he has the power of removal. This denial is founded on two reasons. 1. That the Constitution does not give the Governor the power of removal, even in cases where he has the express power of appointment. 2. That the tenure of this office, is, during good behaviour.

As to the tenure of ministerial offices in general, there can be no doubt but it is during pleasure, unless the law by which the office is established, order it otherwise. This is not a new question. It engaged the attention of the Congress of the United States, soon after the formation of the federal Constitution, by which the President nominates and appoints by and with the advice and consent of the Senate. There was some plausibility in the argument, that the tenure of officers should be at the pleasure of the President and Senate, because the President could not appoint, without the consent of the Senate ; and the Constitution is silent as to the power of removal. Yet it was determined with general approbation, that the pleasure of the President was the tenure of office. A main reason for this opinion was, that the President being vested with the supreme executive power, was bound to carry the laws into operation, which can only be done through the intervention of officers. If these officers are not removable at his pleasure, he is relieved from that responsibility to which it is for the public good to hold him. An officer is not appointed for his own sake, but for that of the public. If he misbehaves, the sooner he is removed the better, because the country suffers every moment that he continues in office. It would be well, if every judicial officer could be removed in the moment of misbehaviour. But the public are deeply interested in their independence, and it is necessary, in order to secure that independence, that they should retain their offices until conviction. Every argument in favour of the President’s power of removal, applies a fortiori to the Governor of Pennsylvania; because he appoints without the controul of the Senate, and in him also is vested, the supreme executive power. There is no other person, at whose pleasure the officer can hold ; and therefore he must either be removable at the pleasure of the Governor, or hold during good behaviour; a tenure extremely injurious to the country, and contrary to all our habits, customs, and manner of thinking. Our ancestors brought no such law with them from the country from which they emigrated; nor did they see cause for adopting it afterwards; for never was it supposed in Pennsylvania, either before or since the revolution, that it was proper for ministerial officers to hold by any stronger tenure, than the pleasure of the persons from whom they receive their appointment, except in special cases where by law it was provided otherwise. This long continued custom is powerful evidence of the law; particularly in the United States, where every freeman stands on the same proud footing, where offices are sought with avidity, and there is neither inclination to submit to executive oppression, nor danger in resisting it. The argument from custom, applies not only to ministerial officers in general, but to those offices of inspection in particular — for the Governor has exercised the power, both of appointment, and removal, ever since the adoption of our present Constitution. There can be no doubt, but many members of the Convention who framed it, were afterwards in the Legislature, yet we hear of no- attempt to make an appointment, nor any petition to that effect, from any candidate. — The conclusion is irresistible. — The law was considered as settled. — But as some arguments have been drawn from the act of 1727, in favour of a tenure during good behaviour, of the office immediately in question, I will consider their force. — The act authorises the mayor and any two aldermen, in case the officer shall by accident, be rendered incapable, or neglect to execute the office, or happen to die, to supply his place until the assembly shall appoint another. The mayor and aldermen, have no power to act, but in certain cases. This is all very well. The assembly did not choose to delegate power, but in cases of emergency. But where is the restraint on the assembly itself? There is none — on the contrary, the representatives of the people, who had frequent struggles with the Proprietary and his Governors, on this very subject of appointment to office, have in the present instance, adroitly contrived to keep the power in their own hands: for, having the express right of appointing in the specified cases, and the tenure of the office, not being limited to any particular time, it might well be contended, that the assembly might remove him at pleasure and appoint another, without consulting the Governor.

Upon the whole, it is the opinion of the Court, that Benjamin Reynolds was lawfully removed from office, and Daniel Bnssier lawfully appointed in his place.  