The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-07-04
Mr.. Havcmeyer's Defiance OF Law.
What Will Governor Dix Do
About IT.

IempCeO reappOlnLment OF the TWO coHVicIeu
Police Commissioners must convince Mayor
Havemeyer that his action has been impolitic
as well as disgraceful. 1t has driven out OF
sight the partisan animus that In the COM
mencement Influenced the prosecution OF
Messrs. Charlick and Gardner, and has
turned away from those persons the sympa-
thy that in some quarters was extended
toward them. If they had submitted to the
penalty prescribed by law for the offence of
which they were found guilty, and if the
Mayor had filed their forfeited offices with
good men, opposed to Tammany Hall, there
would have been reaction against the poll
icians who procured their Indictment As it
is, the people regard their reappointment as
public insult and as defiance Of the law.
of the Tammany leaders as the prosecutors
Of the convicted officers, and will demand not
only that the so-called Police Commissioners
shall be restrained from attempting the per-
Torrance of an official act, but that the re-
naming indictments against them shall be
brought to a speedy trial, and that the Mayor
shall be made to answer for his outrage upon
the city and for the insult he has offered to
the Governor of the State.
1t is uncertain at present what action may
be taken to protect the people and test the
legality of the Mayors appointments, but
there is little doubt that the convicted Com
missioners will be restrained on Monday from
exercising any official authority until o legal
decision as to their status has been reached.
The question to be presented to the Courts
will be simple one, despite the attempts of
the Mayors legal advisers to compicate it
with side issues. 1t is, whether an officer
found guilty of nisdemeanor in having
violated law he was sworn to faithfully OBJ
serve can, after his Office has been officially
declared vacant, be Immediately reappointed
to the same Office? We are aware that the
Mayor and his counsel claim that the resigna-
tons of Messrs. Charlick and Gardner created
the vacancies in their Offices but the claim
seems too absurd to require attention. The
Assistant Corporation Counsel in his remark
able opinion says ''Inasmuch as Mr.
Gardner and Mr.. Charlick have placed their
designations in your hands, the question
whether their conviction caused vacancies in
the Offices held by them has now but little
practical Importance" It is singular in
depreciation of law to hold that after q
vacancy has been created, under the statutes,
by q conviction in court of an infamous
crime, or Of any offence involving
violation Of ON oath of Office, the
person convicted can resign the position he
no longer holds and render the provision of
law of ''but little practical Importance The
Courts will probably hold that the designations
were of no practical Importance, inasmuch as
the men were out of Office before they re-
signed. Messrs. Charlick and Gardner sent
the papers called their designations to the
Mayor after their conviction and punishment
and the Mayor accepted them, or pretcnds to
have accepted them the same day they were
received The official notification subse-
quently served upon him by the Governor of
the State that the vacancies had been created
by the conviction of the incumbents of mis-
demeanor involving violation Of their oath
of Office blotted out of official existence the
designations and their acceptance. The reap
pointments must therefore have been made to
the vacancies created under the provis-
! ions Of the Revised Statutes, and, as we have
said, the question will be whether the vacancy
declared by the Revised Statutes is or is not q
forfeiture of Office by the party convicted
There seems to be no doubt that the party
committing the offence forfeits his Office;
/ that, in fact, he is deprived Of Office as pun
ishment for his CRIME misdemeanor. In
that case it is absurd to suppose that he is
eligible to reappointment, since that would
nullity the law. Probably not even the As
sistant Corporation Counsel will argue that if
Mr.. Charlick is legally incapacitated from fill
ing his own term as Police Commissioner he
may be legally appointed to fill another term
in the same Commission.
II the person FORGETTING his Office because Of
a conviction for misdemeanor can be legally
reappointed, then the person FORGETTING his
Office in consequence of conviction for an
infamous crime can also be legally reappoint-
ed, for the penalty in the one case is identical
with the penalty in the other AS the Gov
ernor possesses the pardoning power. he might
under this Interpretation of the law, pardon
public officer who had been found guilty Of
forgery or burglary, and Immediately re-
appoint the criminal to the Office he filled be-
fore conviction Would any person hold that
this is the intent and meaning of the law?
But there is legal doubt, say the Mayors
counsel whether the misdemeanor of which
the convicted Commissioners were found guilty
did really involve violation Of the oath OF
Office. Let us concede that there can be
question MS to whether public officer who
violates law he is sworn to obey and enforce
does or does not violate his oath of office, and
what follows? The officer removed has his
remedy in the Courts, or can refuse to give up
his Office and bring his right to hold it
to legal decision at once. 1t certainly does