New-York tribune., 1874-07-03
THE APPOINTMENTS LEGAL.

CEPTANCE OF THE RESlGNAIiON'
Below will be found the opinion of the
Assistant COrporation-AtOrney upon WHICH the Mayors
action was baseds:
The Hon. WILLIAM F. HAvEEEYER, Mayor Of the CITY Of
NeU York
SIR: You have submitted 10 MS the designations OF
Hugh Gardner and Oliver Charhck from Their offices OF
Police Commissioners ot the City of New-York with
letter explaining why such designations are made and
you requested my opinion whether the recent
viction OF Nj. Gardner aud Mr. C1arlick of misde-
those gentlemen Ineligible TO reappOlntment 10 the
offices from which they have resigned. TIE Indictment
against Mr. Garduer and Mr. Cndrlck was found un er
Section 80, of Title G. Of CAapter l. OF Part w. OF the
Revised Statutes OF this State, which provides as
Where the Performance Of act prohibited BY statute and
containing prohibition, other section statue
the doing such act shall b deemed DsdmesnO Ses Bdmonds
The prohibited act alleged in the Indictment to have
been performed by Mr. Gardner and Mr.. Charlck TO
be found in OF Chapter G75 Of the Laws OF 1872
That section among other PROVISIONS contains the fol-
All Inspectors o. Election sni Poll Clerks in the City and County Of
New fot snail hereafter be selected ana by he Board
transfers. and f s which from
The Of ecton apon ed under provisions Of h, act
shall hold once Tor one year unless sooner removed for w. requisite
Inspector actually duty, registration
ton ocer 'Sa oa Be made after noie %hns sought
be removed which notice shall set orh clearly aud distinctly the
1t was charged in the indictments that Mr. Gardner
and Mr.. Charlck. IA Commissioners Of the Board OF
Police, removed certain Inspector OF elections with
out giving him the nouce IN writing required by the
ria had Court OF Oyer ana Terminrr before
his Honor Mr.. Justice Brady and ajury. Mr. Gardner
and Mr. ChaIlck convicted ana sentenced To pay
fine OF $3.50 each ana such fine was thereupon PAID by
those gentlemen reSpecuveiy. YOU Nil observe that
The section ABOVE c!ed, under which the Indictment
against Mr.. Gardner aud Mr. Charlick was found does
moi pTescrbe anv punishment for the ofanse which was
thereby declared To be misdemeanOr. This being the
case the provision Of law prescribing The punishment
for such inisdemeauor and under which tno sentence
was imposed, is TO be fouud IN Scti 49, of Tue6, OF
Chapter J., Of Part w., OF the Revised Statutes, ana
that section is ms follows:
Eyery Ierson memeaoor the punb
which is not prescribed OF some other statute s e
DOE eIceedng $3.50, both such hne OnmeDt
1t will thus be that tue IN ,xinun punishment to
which Mr.. Gardner and Mr Cnarlck were tbe was one
years imprisonment and $3.50 line. His Honor Judge
Brady in bis charge 10 the y stated that ncro was no
evidence before the Court tna c defendants had aced
from wicked or corrupt motives aud IN passing sen
tence he stated that he dd not hnk the Court would e
Justified IN infctlng anv punishment imprisonment
aud he therefore simply fined tue DEFENDANTS as above
der which Mr.. Crlick Mr. Gardner can be punished.
There statute of tRis Stale whicn provides that
inen were indicted shall he thereby disqualified from
appointment, or reappontment, 10 any Office In the
absence of sucn affirmative provision Of law, there Is
no doubt whatever tnat Nj Gardner ana Mr.. Charlck
are eligible 10 reap2onmeut to the 0ihces OF Police
Commissioner: and u because such affirmative
pTessons necessary 10 exclude from rcappoinnent
that the Charter them intending uat city Of
fcers who infringe Charter prohibitions snail be directly
has been suggested in some of the newspapers pub
sed this city that, under the provisions OF tue Char
ter OF 1873 Mr. Gardner ana Mr. CharicK were forever
excluded IRON receiving holding any Oice under tue
civ Government; such statements have undoubtedly
originated in q misrepresentation Of the matter. MI.
Gardurr and MIR Cnarllck were not indicted for any
ouse prohibited b. the Charter, have the prOvi
sious Of the Charter, IN relation To the conviction OF
Gcers of the City Government violations of
visions any application whatever TO the cases OF those
gentlemen. They were jJdcted under the abOVe-cted
provisions OF the Revised Statutes, and the punishment
Tor the oiense OF which tbey were convicted Is pre-
scbed by Revised Statutes and they certainly can
not be punished for an onense 1or te commission OF
which they have not been convicted nor even indicted
lnasmuch as Mr.. Gardner and Mr. Cnaflich have
placed their resignatlOnS IN your hands, the question
whether their conviction caused vdcdDcrs ~ Tue Onces
held by them has but little practical Importance;
but previous TO receiving such rslRhaOns you re-
0uested my opinion this point also, Will briefly
refer TO the provisions Of law bearing upon the Subject
Section OF Article T. of Chaper o. OF Part L. ol the
Revised Statutes presOrDeS in Nhat cases Offices shall
become vacant, and one Of the PROVISIONS ~ " that
every Office snail become vacant ON iBe cOnVcilon OF
The incumbent Of an infamous crime or or any Onsnse
involving violation Of hs oath Oi Office" u Edmondss
Laws! page ll2) ls further provl ied IN Sections 80
and 49, that whenever any officer shall be convicted Of
an infamous crime, or OF an ofense involving viola
tOn his oath OF Office the court before which such con-
yctiOn shall be had shall immediately give notice
thereof TO the stating the cause OF such con-
yctiOn and that the Governor sbaI Immediately give
notice of the vacancy created by such conviction TO the
body board officer in which the appointment 10 the
Office is vested, or whose duty 1t may be- by law 70
order or give notice Of an election 10 supply the
vacancy Under these provisions the vacancy ~ the
office s IN my opinion caused by the conviction Itself,
and not by the action Of the court in giving notice
thereof 20 the Governor nor by the action Of The Gov
ernor giving notice to the appointing power But tue
question whether, in any given case NacaI:cy mas
been caused by convicton must IN case OF dispute
be determined by the courts IN the usla ndhheT Ine
Revised Statutes declare that the term infamous
crime shall be construed as including every ofsnse
punishable with death or imprisonment IN STATE
prison, and other, but there IS no definition OF What
shall constitute offense involving violation OF an
Official OATH II, therefore, the incumbent OF any once
s convicted OF oense other than an infamous CRIME
and claims that such offense does not involve viola
ton Of bs oath OF Office ano refuses to surrender or va
cate such Office, the only way III W1lch the question
pporeedngs In the courts H. therefore, Mr. Gardner
and Mr. Charlck had not resigned, aud the Court had
given notice to the Governor, and lne Governor had
eyen notice To YOU provided tho statute. II would
have necessary for you 10 consider whether
aton Of oaths Of office, and thereby caused vacan-
cies which would be your duty TO f Their reslgna.
tOns above stated relieve you from the necessity OF
considering this question at all. -
Gardner and Mr. Charek did, IN TACT, cause vacancies
in their respective Offices, this the ony effect
thereby produced and that while the statute declares
that offices shall become vacant upon the conviction OF
their incumbents of certain crimes and onenses con
ans groyCp are or taer sd m
hold the or other Offices therefore, advise you
Grdner and Mr. tharncE ineligible reappontment
10 the Offices OF Police Commissioners, and that you
have in your discretion the power and lawful right to
MAKE such reappoinment am Sir, with great respect
your obedent servant 30 the eSrporop
Eeo York, June 20, 1874
The Mayors acceptance OF the designations OF the
Commissioners will DO found below
MYtDEAR SIR: have received note OF Saturday,
the 27th inst rendering resignation OF your office
as one OF the Police Commissioners OF the city, and the
communication which accompanied II. assigning your
communication ME 10 THIS office, do not consider 1t
proper at this time " refer 10 the proceedings
which induced you take tins step, or to express any
| opinion respecting them. The motives winch prompted
t6e prosecution referred 10 In your note must satisfy
every person who shall take the pains to examine and
crltcise that, whatever may nave Deen me luds
ent OF the Jury under the instructions or the Court no
| far.mlnded man in this community Will heeate TO
attribute the annus behind that prosecution 70 some
other cause desire TO protect the Interests OF the
people from official wrongdong, or to secure the puIlt
| OF Inc ballot-bOx Yours truly,
| erYork, June 20, 1874 ". F. HAyEMErRR, Mayor.
The certificate of appointment iof Hugh Gardner fol
| lows that Of Oliver Charlick being similar TO II.
nherlns Chnnter 900 lSecton D Of The Laws OF ls7l