The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-02-11


The Mayors Power OF RemovaL
In accordance with our custom of introduc
ing lawyers OF high standing to discuss in oul
columns the legal aspects of such politica
questions as turn upon points of law as vel
as on considerations of public expedieucy,
the HERALD prints this morning very able
communication relating to the authority Of
the Governor of the State in the removal Of
the heads of municipal departments. Every
lawyer who reads it will perceive that it is by
no ordinary hand, and must concede that its
reasoning and copious citations of pertinent
authorities corroborate our statement that it
is from an eminent member of the profession.
1t is document which deserves the deliberate
perusal Of Governor Tilden, who will find in
it matter which it would cost him and his
together and arrange, if they should under
take this investigation without our learned
correspondents assistance.
1t is the purpose of the communication to
define, with legal accuracy, the extent and
limitations OF the Governors authority in the
removal of city officers by the Mayor. 1t shows
by careful examination of the provisions of
the charter, and by numerous judicial decis-
ions on analogous subjects, that the function
OF the Governor and the function of the
Mayor in cases of removal ore quite distinct
and essentially different The Mayor and the
Governor do not, by any means, possess
JOINT and coordinate authority in questions of
removal According to the charter, re-
movals are acts of the Mayor and not acts Of
the Governor. The Governor is empowered
to decide whether the reasons stated by the
Mayor to justify removal are sufficient, but
it is no part of his function to inquire into the
facts by which the Mayors charges against an
officer are supported. The charter does not
provide for two successive investigations Of
the facts, one by the Mayor and the other by
the Governor, but only for one investigation
of the facts by the Mayor alone. The charter
does not give the inculpated officer right to
be heard in his defence before the Gov
ernor, but only before the Mayor. The
Mayor is not required to make tran
script of the evidence and forward it to the
Governor, but only to forward to him writ
ten statement of his reasons. Whether those
reasons are supported by proofs it belongs to
the Mayor alone to decide, and the only duty
of the Governor is to judge whether the
charges are valid cause of removal. For
the sake of illustration, let US suppose that
the charge against the head of depart
ment is wilful violation of low. The Mayor
examines witnesses, takes other evidence and
finds that the charge is sustained by the facts
He thereupon communicates the charges to
the Governor, whose sole duty is to
decide whether those charges which he must
take to be true, are an adequate reason for
removing the officer. The charter gives him
no authority to institute q new investigation,
give the defendant new hearing, go over the
facts second time and take testimony, as be
would be bound to do if he were clothed with
the power Of removal. The charter provides
for but one investigation, and that is ON in
vesIgation by the Mayor It entities the
accused officer to but one hearing, and that is
a hearing before the Mayor. 1t makes the
Mayor the sole judge of the evidence by
which the charges are supported, requiring
linn to communicate merely the charges, but
not the evidence, to the Governor. The Gov
ernor must act on the Mayors reasons, and
he has no legal authority to review
the evidence in support of them.
This is made SO clear by our correspondent
that we suppose no lawyer who reads and
weighs his cogent communication can enter
tain any doubt on the subject. And the law
on this point conforms to common sense 1t
is fit that the Investigation be conducted on
the spot, where oral testimony can be taken
without putting witnesses to inconvenience,
and by an officer whose knowledge OF persons
aud acquaintance with city affairs qualify
him to judge of its credibil1ty and its bear
ing. 1t would be absurd to call the same wit
nesses to Albany to repeat their testimony.
The Governor will, nine times out of ten, be a
citizen Of some other part of the State, and
must be very inferior to the Mayor as judge
of facts connected with the city government
and of the credibilty of local witnesses. He
may be an equally good judge of the gravity
of the charges, but not OF the evidence by which
their truth is established. But be this as
it may, it is certain that there is no provision
of law which either permits the Governor to
re-examine the facts or requires the Mayor to
forward to him anything but the charges,
apart from their evidence. The only point
for the Governor to decide is whether the
charges, supposng them to be true, justify
the removal The charter requires the Mayor
not only to communicate written statement
of his reasons to the Governor, but also, on
the demand Of the removed officer, to '.make
in writing O public statement Of his reasons
therefor" Precisely the same language is
used in both requirements but nobody can
suppose that it binds the Mayor to lay the
evidence before the public and if not before
the public, then, by strict logic, not before