The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-08-15
| misdemeanor for which determined he shall
be tried convicted and punished by line or imprson

..rhs nomination OF George Jones Tor Police Com
missioner. whom the Mayor knew and George Jones
knew he would not accept the Office was in itself
evasion of the statute. Mayor Cooper cannot shell
ter himself behind the wrongful act of Mayor Ely
Let MS consider this exercise OF the powers of the
statute by the evasion OF tho duties of the statute
There are always to be four Police Commissioners.
Is the Mayor to reduce the Board OF Police Commits
soners from four to three from three to two &C.
cordipp TO the political exigency? Is lie fail to
an vacancies in the Board because the Board OF
Aldermen has not tit to confirm OF his
nominees and. after leaving the Police Commission
ers to hold over. place them in his power has been
the effort in this instance Is his violation OF the
hand through the exercise Of the powers OF the
statutsp And 10 this thingto be done for some po-
litcal object? The only excuse for inficting upon
citizen the loss Of Office and Acknowledgement Tor
Office is the necessity 81 accomplishing some public
end. This proceeding before the Mayor whatever
its incidents. does no. and cannot furnish
citizen with the safeguards TO which he
is entitled before he can be punished.
action. In view of the injustice Of his policy it
is no wonder Mayor Cooper has written over his
".No lawyers wanted in this hotel
This attempt to inlet punishment and ignominy
upon citizen is without parallel in modern times.
The Mayors antipathy to the legal profession is
such that 1t is certain he does not call In the learned
Corporation Counsel until his action been taken.
No such Indictment as this against Mr.. Wheeler
would have emanated from the Corporation Couu-
sell s office in the first instance"
the Mayor assumed to be Mr.. Wheeler's judge had
Anything to do with his d. lies as q Police Commits
He enlarged upon the practice of the Police
Department providing for the equipment of the
force, quoting the resolutions passed by the Board
at different times. with Mr.. Wheeler transactions
in this matter tho Board really had nothing to do
oicialy These transactions did not enter into the
accounts. and were mere private affair
between the police force and the the goods
Suppose Mr.. Wheeler was not ready. as he is, with
ali the funds in his keeping to settle all these &C,
counts, is 1t to be assumed that his bondsmen MS
treasurer of the Police Department would be re-
sponsible?' Counsel next argued that the charges
were bad for want OF specification and directness.
Of the Court his constructon Of the
statute" he said, twas sound-f his construction
of the charges was sound. this was not to be
left for the contamination OF the wrong" He re-
ferred to Judge WestDrooks decision in the Nichols
case ana thought judicial decision ought to put
rest the claim of the Mayor for jurisdiction in mat
ters OF this kind ~ Ha
At the conclusion OF Mr.. Roots speech the Court
took recess for half an hour, and when 1t again
convened Corporation Counsel Whitney ut once
began his reply. He intended to pursue he said the
same line OF argument adopted by the other side,
although exactly the contrary to his original pur-
pose His argument would be in answer to the two
points IL. Whether the facts in the justify the
removal. g. Whether the Mayor has the authority
to remove the Police Commissioner These he con-
ceived to be legal questions. "In maintaining his
position Mr. Wheelers counsel puts aside good
many things he asserts in his afiidavits and depends
solely upon the assumptions of the want OF cause
and the want OF authority tor removal. The ques-
ton of cause was one," Mr.. Whitney said, (which
he did not like to argue His personal relations with
Mr.. Wheeler had always been excellent, but now that
the question had been brought before the Court 1t
was mis- duty TO state the facts in regard to it. In
1865 the Police Board desiring to secure uniformity
in police dress. directed that room should be set
aside for goods be sold to the force and placed
a clerk charge, who was to be paid commission
not exceeding Sloo per month. There was nothing
said about the of the Police Board and 1t
was not contemplated that he should have anything
to do with the transactions between the force and
the dealers But the Board . having given
of the dealers and the force. Mr.. Wheeler
stepped in ana took advantage Of it now
has some $4,000 in his keeping for which he has
accounted to nobody. 1t claimed that this
action does not affect the city 1t will scarcely be
denied that certainly such conduct is unbecoming
Police Commissioner and Is proper ground for re-
moval. The statute says the Police Commissioners
may be removed for cause. Nobody can say. il it be
true that there is resolution of the Police Board
authorizing Commissioner Wheeler to take into his
possession $4,000 which has not been accounted for
that there is not sufficient cause for his removal
As the charges read they say Mr.. Wheeler has been
guilty of conduct justfying his removal aud though
1t is to be hoped he may be able to show to the con-
trary certainly the duty Of the Mayor to- take
coguizancc of them and act upon them
''In regard to the point that Mr.. Wheeler is
'holdover officer the fact IL that within ten days
after the expiration of his term OF office Eomina
ton made. but the nominee was rejected by the
Board of Aldermen. There is no statute that directs
that any other nomination must be made. The ex
traordinary position assumed here is that Mr.
Wheeler is not accountable for his acts because he
only hold.over' officer. When man intrudes into
an Office without any right whatever he il RESPONSE
BILE the law the II he were legal officer
He cannot answer for his misconduct by saying he
was not the rghtful holder OF the ofiico. But Mr.
Wheeler Is not de Jdcto officer; he is Police Com
missioner dc jure. The other side made the surpris
ing declaration that there vacancy in the Police
Board whereas the fact is that Mr. Wheeler's term
under the does not expire until after his
cessor is appointed and has qualified.
A JUDICIAL OFFICE.
1.-The illusions to Mayor Ely do not belong to this
case-t is only effort to drag in Thousand things
which do not belong to it, Mr.. Wheeler. under the
charter is officer who may be removed by the
Mayor for cause His mouth Is closed against any
act or the Mayor. But even If / am wrong in both
my propositions, that the facts justify removal and
that the Mayor has authority to remove, il the
proper remedy writ or prohibition? IL the Mayor
is not either court or Judicial tribunal the writ
cannot issue. There is authority in England for
the issue OF this writ to restrain any one except
court Lord Bacon thus quantity defines the pur-
pose and scope Of the writ
As all extraordinary Jurisdiction whether ecclesiastical
civil is derived from the Crown and the admnistra
sn o
keep within tho limits and bounds OF their several jurs
rss% and for this purpose the writ Of wa.
aud which ont Of the saper9
be temporal ecclesiastical maritime military &C.
longs not 10 such courts; and they
Jurisdiction the officer who execute; the sensnee and in
courts punishable. sometim the suit of the King
Of both according to the naturcOf the case.
"But with u.s. when we desire to soc what the
province OF the writ is. must look to the statute
1t issues out of the Supreme Court and applies onl
to the Court and party to whom directed. Its prov
nce IL to restrain inferior court from any fur
Their legal proceedings In a before it. But the
other side claims that Mayor Cooper il performing
a judicial act-that he is court; that he In III
ferior branch of this court The thing is too absurd
to be talked about. Even Judge Westbrook has not
said that Mr.. Cooper is Judicial officer. Only that
his act IL semi-judicial. Because Mayor Cooper per
forms semi-judicial acts is reason why he Is q
judicial tribunal. He has none of the powers OF
attributes of judicial tribunal such rs to issue
process and subpoena Witnesses.
Mr. whitney then referred to Judge Westbrook's
decision saying that probably mis- attention not
called to the many decisions contrary to his own.
In conclusion he said the Mayor must assign cause
aud that Is all he is required to do before removing
inferior officer. II this writ applies to the Mayor
IL applies to all the heads of departments in remov
ing their subordinates. IL anybody could suggest
how the Mayor is to hold court, Mr.. Whitney said
the authorities quoted in his brief might not have
the weight he attached to them. Mr.. Root, how
ever seemed to think there some force in them.
and by consent he was allowed until Monday to ex.