The New York herald., 1874-07-03


prisonmeDt in . county jail not exceeding one
year or by nne not exceeding $780, sr by both
that the maximum punishment to which Mr.. Card
and Mr.. Charlick were liable was one years
inprlsonpsnt and $3.50 hne: His Honor Judge
was no evidence before the Court that the defend
ants mad acted from wicked or corrupt motives,
and In passing sentence he stated that he did not
think the Court would be Just1ed In INJECTING any
punishment BY Imprisonment, and he therefore
Section 40, as above cited, is the only law under
which Mr. Charllck or Mr.. Gardner can be punished.
OF the ence d
those gentlemen were indicted shall thereby
disqualified rom appointment or reappentment to
any 0nice In the absence OF such Affirmative pro-
eVsr SA that sr. fS Gardner and ND SeD % cpar1iex
OF Police COMMISSIONERS; and 1t is because
such affirmative expressions are necessary to eX
them when intending that city onicers VINO in.
fringe charter prohibitions shall be directly dis
It has been suggested in some OF the news.
papers published In this city that under the pro.
visions OF the charter OF 1878, Mr.. Gardner and
ing or holding any office under the city
government. Such statements have un-
tSs sasa In candnep
Mr. Charck were not indicted for any offence
prohibited by the charter. nor have the provisions
officers OF the city government, Tor violations
of its provisions. any application whatever TO the
under the above cited provisions Of the Revised
Statutes, and the punishment for the onence OF
Revised Statutes, and they certainly cannot be
punished for an offence for the commission OF
which they have not been convicted, nor even
indicted.
Inasmuch as Mr.. Gardner and Mr. Charck have
placed ther resignations In your hands, the ques-
tlon whether their conviction caused vacancies in
the offices held by them has now but little practi-
cal imp0rtance; but. as previous to receiving such
designations, you requested my opinion on this
point also, briefly refer to the provisions OF law
bearing upon the subject. section 81. OF article
vtsed statutes prescrbes in what cases onices
shall become vacant, aud one OF these provisions
Is that every ONCE shall become vacant on
crime of any offence involving violation OF his
oath Of ofice." Il Edmonds' Laws, page ll2) It
is further provided in sections 80 and 49, that
whenever any oficer shall De convicted Of an in.
famous crime or of an offence involving violation
conviction Shall be had shall immediately give
notice thereof to the Governor, stating the cause or
diately give notice OF the vacancy created by such
conviction to the body, board or officer IN which
the appointment to the ONCE is vested, or whose
duty 1t may be, by law to order or give notice OF
an election to supply the vacancy. Under these
provisions the vacancy in the office Is, IN my
the action OF the Court giving notice thereof to the
Governor, nor by the action OF the Governor
question whether IN any gwen case vacancy has
6isnut been caused oy conviction must IN case OF
usual manner. Ihe Revised Statutes declare
tnat "the term infamous crme' shall be construed
as including every offence punishable with dea
but there s no definition OF what shall constitute
an offence involving violation of an official oath.
is convicted OF an onence other than
infamous crime, and claims tnat such
an offence does not involve violation of his
oath OF onice, and refuses to surrender or vacate
such once, the only way In which the question could
/ be lawlully determined would be through proper
proceedings In the courts. II, therefore. Mr..
Gardner and Mr.. Charlck had not resigned, and
the Court had given notice to the Governor and
the Governor had given notice to you, as provided
in the statute, 1t would have then been necessary
for you to consider whether the offence OF when
they were convicted involved violation OF their
which 1t would be your duty to fill. Their resig
nations, as above stated, relieve you rom the
You will observe that even II the conviction Of
Mr.. Gardner and Mr. Cnarlick did, in fact, cause
only effect thereby produced; and that, while the
statute declares that offices shall become vacant
crimes and offences, it contains no provision ex
pressly lmpliedy indicating that the officers sc
removed are thereby disqualified to hold the same
l. therefore, advise you that there is no provision
| of law which renders Mr. Gardner and Mr.. Char
lick nelieible to reappOintment to the office of Pc
lice Commissioners aud that you have, In your dis
cretion, the power and lawful right to make sucf
reapponJment. l am, sir. with great respect
'~A- GEORGE P. ANDREWS,
Assistant Counsel to the Corporation.
| HoCUs FOCUS NUMBER ONE.
! whereas, Chapter 800 secton three) Of the Laws
OF 1874 being "An act to amend chapter 1886 of the
a OF s Of the M N
April 80, 1873, and the acts amendatory there
o." authorizes the Mayor Of the city
Ges cies winch mich may ma occur cur from death. reslgaa
tion, causes opner than the expiration o
sons nS Of the twenty fifth section Of chapter ss5
the Laws Of 1879 the Mayor Of the city OF New iorl
was empowered TO appoint, by ana ana with the con-
Whereas, l, William F. Havemeyer, Mayor Of the
city OF New York. have been officially satisfied that
existing IN the ONCE OF Police Commissioner OF the
city OF New York, lately held by Hugh Gardner,
90 hereoy appoint ,vrp cu.p,1cx
Police Commissioner Of the city OF New YORK,
to fill that vacancy and to hold office until the
first day OF May, 1876 the same being until the eX
piratlon of the term OF ofIlce for which said Hugf
Gardner was first appointed and confirmed
And in pursuance or such power | do hereby
issue this certificate OF appointment, and have
caused the seal OF the Mavoralty to be athxe(
hereto this second aSy g q iHly; HEyyFThyER HsIt
Mayor Of the ny OF New York.
| HocUs PoCUs NO. TWO.
whereas chapter 300 (section - OF the Laws o
1874, being IAN act to amend chapter 335 or tht
Laws OF 1873, entitled An act to reorganzc the 10
cal government of the city New York, passed Aprl
80, 1873. and the acts amendatory thereof'n au
tnorizes the Mayor OF the city OF New York to I'LL any
vacacy or vacancies which may occur IRON
Death ion or causes otner c shan m the exp
the provisions OF the twenty fifth section OF chap
ter s5 OF the Laws OF 1873 the Mayor OF the city
| New York was empowered to appoint, by and Will
| the consent OF the Board of Aldermen; and
Whereas l, William +. havemeyer, Mayor Of tht
city OF New York, have been officially satisfied tha
legal vacancy for legal cause Is now legal.
existing in the 0flce of Police Commissioner OF the
city OF New YORK, lately held by Oliver Charlick,
| de hereby appoint
HUGH GARDNER,
| Police Commissioner of the city OF New York, u
I'LL that vacancy, and to hold office until the hrs
day OF May 1878. the same being until the expira
tion of the term OF office for which said olive
Charlick was first appointed and confirmed.
And In pursuance OF such power do hereD
issue this certificate OF appointment, and nav
caused the seal of the MayOralty to be afxe
hereto. this second DAY OF July, 1874.
| W.T.. HAVEMEYER,
Mayor OF the City OF New York.
Governor Dix's Views.
The Governors arrival in town yesterday wa