While no authority has been found
which precisely deals with the question
of whether a state legislature has the
power to impeach officials of the state
unless granted such power by the con-
stitution, it would appear that impeach-
ment power is conferred rather than
inherent. Thus, the power to impeach
is not the prerogative of the legislature,
but must be conferred upon it by the
people through the state constitution.
Legislatures have not been looked
upon as the only depository of impeach-
ment power. In several states, including
Nebraska and Missouri, impeachment
cases are tried before the state supreme
court, pursuant to state constitutional
provisions. As stated in Corpus Juris
Secundum, "constitutions or statutes
may provide for impeachment by spe-
cial judicial proceedings had, not be-
fore the legislature, but before some
court to which jurisdiction has been
given."2 When the federal Constitution
was adopted, some authorities proposed
that impeachment power be conferred
upon the Supreme Court.
Justice Story in his commentaries
on the constitution of the united
states discusses early proposals which
would have entrusted trial of impeach-
ment cases to the Supreme Court, rather
than to Congress.3 As Justice Story
points out, it was first agreed at the
Constitutional Convention that the jur-
1 This article was prepared for the Constitu-
tional Convention Commission by Wilbur E.
Simmons, Jr., B.A., 1961, and LL.B., 1963,
University of Maryland; LL.M., 1965, Yale
University; member of the Maryland Bar.
2 67 C. J. S. Officers § 68 (a) (1950).
3 3 J. story, commentaries on the con-
stitution of the united states 554
(1891).
334
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isdiction of the national judiciary should
extend to impeachments of national
officers. Afterwards, power to impeach
was given to the House of Representa-
tives with jurisdiction over the trial
of impeachments being given to the
Supreme Court. Ultimately, of course,
the latter jurisdiction was assigned to
the Senate. Story speaks of the "vesting
of the power of impeachment in the
House of Representatives" and of the
Senate as being "the most fit deposi-
tory" of the power to hear impeachment
cases.4 However, as pointed out by
Story, the grant of power to the Senate
to hear impeachment cases was vigor-
ously debated "with an abundance of
zeal" and even attacked as "incom-
patible" with the functions of the
Senate.5 It would thus appear that the
framers of the federal Constitution did
not view impeachment as an inherent
power of Congress but rather as a mat-
ter to be conferred upon Congress for
the lack of a more appropriate forum.6
If impeachment powers are conferred
upon the legislature by the people
through the constitution, it would there-
fore seem to follow that unless the
people take such action, impeachment
power is withheld from a legislature.
This proposition has been stated as fol-
lows in the case of In re Investigation
of Circuit Judge, in which it held that
a judge could not be disciplined for
alleged unprofessional conduct, other
than by methods provided for in the
state constitution:
4 Id. at 514, 548.
5 Id. at 547.
6 See also 67 C.J.S., supra note 2, wherein it
is stated that a legislature, in impeachment pro-
ceedings, exercises a judicial, not a legislative,
power "conferred on it by the constitution".
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