The New York herald., 1879-08-09

! the others must be conceded. But this indepen-
dence arises not from the grade Of the officer per-
forming the duties. but the nature of the authority
exercised. Under our system OF government no
; ohcer Is placed above the restraining au
thoriiy OF the law. which is truly said
ing 1t homage, the least as feeling its
care and the greatest as not exempt from
iis powers; and 1t is only where the law has au-
thorized that the restraining power OF one
OF these coordinate departments can be brought to
operate as a check upon of the others. .
| While the authority of the Governor is supreme in
the exercise of has political and executive functions.
which depend on the exercise of his own judgn
or discretion. the authority of the Judiciary of the
State Is supreme III the determination of all legal
questions involved in any matter judicially brought
before 1t. Although the State not be sued there
isnothIng i'll the nature OF the office of Governor
which prevents the prosecution of suit against the
Is fully sust lined by the analogy of the doctrine of
the Supreme Court OF the United States in the
OF Marbury Madison Il Cranch 17O)."
THE COURTS HAVE THE lsrERposE
The question OF the power OF the courts to inter-
eutive of the state, when such action affected the
private rights, was, by our own Court of Appeals
settled in favor Of its existence in People rel Law
renee vs. Brady t56 New York. 1881 Lawrence had
been arrested by order of the Governor of this
State to be extradited to the State OF Michigan on
the requisition OF its Governor, and had been
fused discharge on habeas corpus in the lower
courts. The Court OF Appeals. however. reversed
the prior decisions and discharged the prisoner,
holding that the evidence upon which the Governor
Issued his warrant of extrauition insufficient.
In the matter of Briscoe (5l Howard. 422). the
writer of the present opinion discussed the same
question (pages 328-2930} and reached the
conclusion. That opinion is however. only referred
to for the purpose or showing that the views herein
expressed to the authority OF the courts to inter
fere with executive action not new to him. but
formally expressed. They also sustained in the
matter of Manchester. 5California. 237; in Hartman
Arcline (Su preme Court of Indidna), IL Western
Jur.. 20o and in Wilcox Nolze Supreme Court Of
Ohiol. Is Western Jur., 300.
Upon reason and principle, then. it is held that
when the Governor OF u State refuses to act the
law directs. or when he acts contrary to law to
anothers injury. or when he makes error or mis-
take in the discharge Judicial duty. which the
statute might have authorized another to perform,
in any OF these the party agsrieved seek
the protection of the courts who, listening to the
complaint and in rcdressing the grievance, If any
exists, isurp executive functions, but simply
assert and exercise their own. s
1t is assumed that the action which the Governor
of this State called to take when the Mayor
transmitted TO him the certificate OF removal of
Nichols Judicial in its character 1t is true he is
an executive officer, but that fact does not make
every duty imposed upon him one of an executive
nature. He was called upon TO judge and decide
whether the reasons which the Mayor gave for the
removal were sufficient and not only that. but he
bound (see letter OF Governor Tden referred to
above to take all information necessary to enable
him to decide whether he ought to give
withhold his approval of an act of removal in
itiated by the Mayor, under the law which defines
their respective powers and obligations in such
cases" In short. he was to determine for himself
whether there cause for the removal; or. to
the language OF Judge Allen. in People w. Fire
Commissioners az N. u. 449) 'Some dereliction
general neglect of duty. or incapacity to perform
the duties some delinquency affecting his general
character and his fitness for the Office" 70 argue
that the Investigations OF such questions and their
determination is not the exercise OF judicial power
woula be a frivolous discussion.
Will ISSUED MAYOR.
A careful examination OF the question which this
application involves has led to the conclusion that
the Court has power to review the action Of both
the Mayor and the Governor, and that. to
stronger language, the facts presented require its
exercise. Whilst however. no ding that the action
OF the Chief Executive or this State is, in o
like the present RENEWABLE by the courts. still
spect for the high Office should induce judicial tr
grant a writ Of certiorari directed to him un-
less there Is no other remedy. In the pres
ent case al the rights of Mr. Nichols can be
guarded by review OF the action of the Mayor
II that be reversed and held for naught the approval
of the Governor falls with it, tor the conclusion OF
botn the Mayor ard Governor must stand to make
ehectual the removal. sides. their action is
separate and not joint Each makes separate and
independent decision, and. in my Judgment, each
should be separately reviewed.
The writ asked for will be issued to the Mayor and
is refused as to the Governor not because his action
is beyond review but because it is unnece sary, and
also because one issuing to both Jointly might be
held irregular.
SIDNEY p. NICHOLS VIEWS.
When the HERALD reporter drove up to Stetson's,
in the Park between nlne and ten O'Clock last
ing. Mr.. Sidney r. Nichols and Coroner Flanagan
found enjoying themselves over y comfortable
dinner the piazza overlooking the conservatory.
At the risk OF disturbing them the reporter an
no unced to Mr.. Nichols that Judge Wes tbruok had
granted favorable opinion i'll his case. Coroner
Flanagan put down his upraised champagne glass.
while Mr.. Nichols laid aside his knife aud fork and
gaZed ut the speaker tu minute without saying
u word, as il he had not fully comprehendcd him or
doubted the truth of what was said.
''You had not heard OF it? the reporter repeated
in surprise.
'No." was the deliberate answer. Mr.. Nichols
began to recover from his establishment ''rhis Is
the first have heard of it, Is it really true? am
greatly puzzled that the HERALD should have the
you sure it is true? he again quered, doubtingly.
There is no doubt OF It." was the reporters re-
sponse. Then he asked In what position does this
leave your cascy'
..My case went before Judge westbrook in the
for of application for writ OF certorari in June
last review the proceedings had before the Mayor
and Governor which was removed.
'.Hsve You had no intimation OF the nature of
None whatever. knowing him to be- an able
lawyer and just judge was willing to wait and
abide the result
where does your case go now?'
81 suppose it goes to the General Term OF the
Supreme Court tor review. don't know much
about legal Practice, but believe that Is the course
1t takes"
Judge westbrook having decided in your favor
thus far what Will be your next step. may asky'
"HaviIg been illegally removed. 1 shall certainly
demand my seat in the Police Board at once"
suppose Commissioner HacIean will refuse to
abdicate, what them"
IL don't think Mr.. MacLsan of sufficient
courage to defy the mandate OF the Supreme Court;
and besides that his training as lawyer under the
master tutclage of the sage OF Granercy Park has
been too thorough to allow him to do such an i'm
polite thing. to call it by no harsher name"
"If you take your seat ut once suppose there
will be thorough reorganization OF the isoard?'
There eau be possible doubt OF tnat.'
''Then suppose may congratulate you being
again Commissioner of Poiicey' the reporter re-
mark ed interrogatvely ID
You may with suilc) If have boon illegally
removed. why itstands to common sense reasoning
that am still Commissioner of Police.
HAS the work OF the Street Cleaning Bureau been
more thoroughly and economically performed since
your retirement. the condition OF the streets having
been made the basis of the charges on which you
removedY
.rhe condition Of the streets in regard to cleanli-
no better now than 1t was last year a this
time. In respect to the amount OF money EXPENDED
may say that there Is no visible reduction in tho
volume OF expenditure TO put the whole matter
in u nutshell the dirty streets pretext the fim-
siest in the world for such summary action my
removal. The objective point Was old Tammany.
and not tho dirty streets.
MAYOR COOPER RErICENr.
In relation To this decision u reporter of tho
HERALD visited the Mayor last night, and lac said:-
II have no knowledge OF what you tell me. but
think that writ ot certiorari simply gives op-
portunty for arguing the question. 1t settles moth
lnx--on.y gives occasion tor discussion. l have