The New York herald., 1874-09-15

that tue chief in authority snail watch over the
taas sae.r fSnctions are iaitSfuiY exc.
cuted. IL his province TO direct the proper
legal otiicer TO frame and submit charges on
| cause, instead OF leaving service pertaining
to his own sphere OF duty TO be performed by other
only common interest with all others IN the
proper management Of the public affairs. In this
case the CHARTER OF the city made 1t the Mayors
special duty to keep himself informed OF the donRs
oil the several departments. and 10 be vigllant ana
nances 70 be enforced To refuse TO investigate
alleged deilnquencles or malieasance on the part
OF nis supordnates, without specinc enarse, aiv n
external sources, is not only to be unathu 10 tIe
obhgatons expressly imposed on MN oy Jaw anu
accepted by ms oatn OF once put 10 Violate ever
received maxim OF Official duty. even wnere
no sUcn obligations are speclaiy enJoineu.
refusal to Institute an eXamlnatoa IN a
case OF nagrant violation or law or OF gross
abuse OF oifcial trust the sole ground that
formal charges mad not been presented by "thers,
would unques tionably Justify the EXECUTIVE eX-
ercisng the power OF correction confdeo to HIM
by the constitution. But IN his answer to TINS por.
tIon OF the charge the Mayor cites the reports OF
the Board OF Health. embracing the whole period
during which the Police Commissioners had been
charged with the duty OF street cleaning. and
bearing testimony to the enicient manner IN winch
10 had been performed. 1t Will not be cOntended
that the opinion OF the Committee OF the Assembly
or the resolution OF the Board Of Aldermen made
II obligatory on him to reconstruct the Board OF
Police or TO investigate Its conduct in respect 10
the exercise OF which great latitude is allowed;
ana 1t must be conceded tnat the reports oil the
not been IN so clean condition for many
years as they were during the summer or 1873
a1orded reasonable ground or declining to III
stitue formal investigation of the conduct OF the
Police Board In this respect, IN the absence OF
specinc allegations OF misconduct H. some aouses
mitted the Mayor declares that he had taken
pains TO ascertain their truth and tnat there was
evidence that tney existed by the wu suffer.
ance OF the Commissioners or that the latter were
not prompt to discharge anu punish those guilty
or the abuses whenever made aware OF their exist
reason there may be TO doubt the thoroughness or
the Mayors examination, there appears TO me to
be no Just ground for Executive lnterposition
under THIS branch OF the accusation OF neglect or
duty. The other branch of this charge involves
CONSIDERATIONS OF GREATER IMPORTANCE.
Oliver Charllck and Hugh Gardner, two OF the
Commissioners of Police, were brought to trial on
the election law oil 1872 by removing an inspector
OF election without the previous no.ice required
by that act. settlng forth the reasons tor the le-
moval Oi tins offence they were convicted on
the following day, and on the 26tn they were SEN
fenced to pay nne o. $3.50 each: 1t was my
opinion, on consu tatlon with the Attorney Gen.
erars department, that they had been convicted
OF msdemeanor involving violation of their
oalhs OF Office and that their conviction created
vacancies IN their offices; and on the Ist OF July
addressed to the Mayor. as the proper authority
tor filing the vacancies the notice re-
qured by law. 1t appears that on the
27th OF June they had resigned, aud
Mayor-ChariicE ytr to Gardner's VACANCY and Gard.
ner to Charlicks. In his certificates OF reappoint
ment the Mayor does not state III what manner
the vacancies were created, whether by convlc ton
or resignation, but declares that he has ''been oi.
cially satisfied that legal vacancy, Tor legal
their reappointment bOtE OF these Commissioners
were under three other indictments found against
them on the goth OF May Tor violations of the Eiec.
ton law. and set down for trial IN october next.
AS his justification for making these reappoint-
P. Andrews, Who styles himself ASSISTANT Coun-
sci TO the Corporation" and whose conclusions,
on a review of the laws which he considers appli-
! cable to the case, may be briefly stated as lol-
| lows
/. That If the Commissioners had not resigned
| il would have been necessary for the Mayor. on
receiving notice from the Governor that the va
cancles had been caused by the conviction, "to
consider whether the offence OF which they were
J convicted involved violation OF their oaths Of
Office, and thereby caused vacancies winch would
ton relieved him rom tue necessity OF consider
| ing this question at all.
:. That II the convection OF the commissioners
did ''cause vacancies their respective offices,
this was the only effect thereby produced;' and
8. That there was no provision OF law which
BILE to reappointment to the offices OF pohce Com
mlssioners,' and that the Mayor had IN MS dis
cretion tine power and Lawful right to make such
Mr.. Andrews, subordinate in the of1ice of the
Counsel OF the Corporation appointed by ms prln-
cipal was not acting under the responsibility OF
an oricer elected by tine SURFACES oil the people
and 1t would be natural TO suppose that the Mayor
IN a conflict of opinion witi the chief magistrate
OF the state in regard 10 the cause oi the vacan.
cies, wouit, in the absence OF the chie oil tue law
depar iment OF the city, nave consulted with the
experienced District Attorney, or some OF the
eminent Judges IN the First JUDICIAL DepaT tmeHt.
decent respect for the Executive OF the state,
whose action was ignored by the Mayor on
the opinion OF subordinate IN department
OF the city government, who was not even
the chief Of bureau, and who mas 10
of1cial status recognized by law, but was merely
retained and authorized py the Counsel OF the Cor
poration to perform his duties In his absence. 1t
Is not contended that the opinion OF the Governor
is final in sucn case and tnat IL may not oe judi
cially reviewed. but II might very properly have
| created pause in the action OF the Mayor and q
/ n q
ADVERSE judgment. such an act would have been
OF far more value than all the professions OF re-
spect with which his answer abOunds But the
opinion OF the Executive was not deemed worthy
or being considered Tor single day IL must have
been received on the morning OF the I'd OF July,
and the reappontments were made before night.
or the eighty pages OF the Mayors answer fifteen
are devoted to an argument In support OF the po-
sitions taken by Mr.. Andrews. The degree OF
credit to which these positions are entitled VIII
OF the Attorney General OF the State. which was
asked Ur by me on the day alter heard OF the re-
appointment OF Messrs Cnarilck and Gardner:
TINS opinion maintains two propositions directly
In conflict with those OF Mr.. Andrews and the
Mayor, VIZ -
l. That the convection OF the Commissioners was
for misdemeanor involving violation OF their
Oaths OF office: and,
2. That they are not re.eglDle TO the 0nlces 10
which tney were reappolnted.
Tnis opinion renders 1t needless to enter into
anv examination OF the Mayors arguments which
are not less ,nleicitous than the Illustrations, by
which he seeks to paate the failure OF the Police
Commissioners to give 10 an inspector ol eiection ,
AS an analogous case the nomination OF Mr.. A. ].
Stewart by President Grant at the commence
ment OF his administration to the ofhce OF Secre
tary OF the Treasuary In violation OF section eight
OF the act OF congress OF the I'd september, 1889.
entitled IAN act to establish the Treasury De-
partment,m providing that no person appointed to
any ONCE Instituted under IL should be directly or
indirectly Interested in carrying on the business
OF trade commerce. &c. 1t is diff
cult to find two cases more unlike. The
mistake OF the President was made under
an act OF Congress- which was more tnan eighty
years old, which mad allen into oblivion, and
which was nearly overlooked by the Senate. Tne
omission Of the commissioners was under an act
oil the Legislature passed the previous year-an
act OF general notoilety, applicable TO constantly
occurring transactions. framed 10 put AN END to
scandalous frauds and prescribing strict rules o
conduct Tor all officers having any agency IN con
ducung elections. The violated rule was one o.
the most vital Of the safeguards against the very
abuses which the act was intended 70 prevent. II
was real and not as mas been suggested tech
ncal offence The other Illustration Is even less ap
n q O ;