The New York herald., 1879-08-10

Ia ,llc N. "
volved not upon Mayor Cooper. but upon Mayor
Ely within ten days after Mr.. Wheeler's term ex-
pired. OF course Mr. Wheeler has a great advantage
in being in possession and under the protection of
the writ but still believe that some way Will bo
found of investigating his case speedily.
But to return to Judge Westbrook's decision
The weakest point in ii TO the ono he
makes about opportunity to be heard. Leaving out
the question of whether there was proper oppor
tunity the first time. it must be remembered that
TO the Mayors repeated questions Mr.. Nichols
constantly replied avowing his readiness to an
in the Mayors letter of April 3. he gave him
another opportunity for answer. explanation
excuse without any limitation. After falling to
avail himself of this second opportunity to appear
and answer personally. and having answered the
the conclusion that Mr. Nichols lacked opportunity
to be heard. The claim that accused Official
hold on to Office by merely refusing to plead seems
absurd. believe that the Court OF Appeals will
the cuse of Chief Engineer Camp
and ovcrrule Judge wcstbrook's decision
The citation made by Judge wesbrook from Gov
ernor Tndens letter Mayor wickham does not
seem to me to be fairly applicable to the to
which the Judge puts 1t. Governor Tiden claimed
the right for his own infornation to consider evil
denco not in the record submitted by the Mayor.
He did not claim that tho Executive was
obliged to do 50, or could not content him
sufficient. In point OF fact. however. Governor
Robinson received Mr.. Nichols papers and heard all
admits that the Ttldcn precedent tells against
and not for him. when lie admits that it assumes
thai the action OF the Mayor and the Governor III
like this is not renewable by the courts"
Ex-JUDGE DIrTESHoEFEks VIEWS
Ex-Judge Dittenhoefer said THE opinion Of
Judge Westbrook is entitled to great respect and
consideration being the expression Of the indi-
vdual views of excellent able and experienced
jurist. 1t is not, however authority on any
question it discusses. excepting that writ of
tiorar may properly issue to review the decision Of
the Mayor ana Governor in any proper case in otler
words far 1t holds that the decision of Mayor
and Governor involving the removal OF an official
from Office is renewable in the Supreme Court, it is
authority and precedent. lu what 1t says about
the mode and method procedure and trial on sucha
hearing before . Mayor and Governor and kindred
subjects. is what lawyers call ober dictathat is
the individual views OF. the Judge not necessarily
involved in the determination OF the matter before
him. and therefore not to be treated as settled law
1t the final argument on the merits OF the question
the entire record, as returned into the court in
obedience to the writ of certorar were had before
Judge Westbrook and the same views were expressed
by him in delivering Judgment they would be
thoriy and law instead OF obiter dcd, because then
those questions the mode of procedure, &C., before
the Mayor would be necessarily involved in
the determination. In fact believe Judge West
brook makes that distinction himself in the opin-
ion The Judges views, therefore. as expressed in
the opinion, need not be followed by any other
Court precedent and authority. and very likely
will not be unless they commend themselves to the
intelligence and judgment of such other tribunal.
"Then Judge westbrook's opinion cannot affect in
Wheeler?"
''No. 1 do not say so. What mean to say is. that
it does necessarily affect the Of those Com
missioners except in this, that it settles that de-
cision averse to them may be reviewed on writ of
certorari in the Supreme Court 1t does not settle
that on such review it will be held by the Supreme
Court that the Mayors proceedings Illegal,
either for want of jurisdiction or for failure to
give the Commissioners what may be called judicial
hearing. Whenever the views now enuncated by
Judge Westbrook are rcathrmed by Court in pass
ing judgment writ OF certorari. and not until
then, will 1T be held that such proceedings were
Illegal for the reasons aforesaid.
..But is it settled that writ of certiorari
issue?"
'If Judge Westbrook's decision issuing the writ
is not appealed from. or II appealed be not reversed
it will be held to be settled SO far as like cases are
concerned"
NOT AN ISOLATED CASE.
"Do you remember any similar case in which
these questions have been passed uponY'
Eyes and do not find it cited in the opinion 1t is
the old of the people on the relation Of Nathan
c. Platt against Andrew V. stout, then now, pres
ident of the Shoe and Leather Bank. He was
moved from the Office of City Chamberlain by the
Mayor with the consent OF the Board Of Aldermen.
which in that was required. and Piatt
was appointed in his place. The charge
the funds of the city in his hands, apd he
insisted that his removal was illegal because hesas
not required by ordinance to pay interests tina. he
never notified of any charge against him in his
official capacity that no opportunity was afforded
him to be heard III his defence, and that his removal
was IN iacs Thoas any esa cause @ an ana for snsse
of the Office from Stout, procured quo warranto
and the questions came up for decision before the
New YorK General Term, June, 1860. composed OF
Judges Sutherland, Leonard and Bockes. David
Dudley Field counsel for Platt. and William
Curtis Noyes, William NJ. Evarts James L. Brady
were counsel for the defendant. The opinion OF
the Court is condensed in the following head note to
the report of The found in volume 10 OF How
ards Practice Reports-
Where the right a public officer is vested by
legislative or constitutional enactment in particular
appeal review has been expressly given
Sto the ertnn eseresed by sac or 70 body or
in any manner to review such removal Therefore tho
New York being by the charter conferred the Mayor
this authority discretionary judicial nature aud
is not the subject of examination or review by other
existence or in any respect whatever
"Th.s case went to the Court Of Appeals. but Mr.
Stout having in the meantime withdrawn from the
contest it affirmed by default"
COUNTY CLERK TIosfPsoNs OPINION.
Hubert o. thompson. the present County Clerk
said II do not think the decision OF Judge Vest
brook Will affect the ultimate result at all. In my
opinion neither General Smith nor Mr. Nichols viii
ever be re -tated. OF course 1t will cause some
trouble and annoyance as litigation invariably does
but that s ali. have read the whole thing carefully
and conversed with good many people the sub
jcci. and. while am not very well versed in the
law, there is no gainsaying the fact that the
Governor is the highest executive power in the
State and it's perfectly clear that the Mayor has the
power Of removal anu that power cannot he over
thrown by any whims Of lawyers or qubbles OF
judges. The is almost parallel with my own
There good deal of noise when took possess
sion of my office in the way did, but knew that
unless did take possession in that way the oppo-
sition would harass and annoy me. but am firmly
enrenched. and. in my opinion. Commissioners
MacLean and Morrison are a.so.'
BARTfErTs INTENTIONS.
Mr.. W. o. Bartlett the counsel for General Smith,
said TO a HERALD reporter yesterday that upon his
return from Name where he has gone to escape the
excessive heat he would advise General Smith to
his place in the Police Board. General
Smith has not boen legally removed he said.
THAT the Supreme Court will hold / have
doubt. and the decision will be sustained. The
charter under which Mayor Coopers action
taken is disjointed instrument. and removals under
IL are anomalous. Aud shall make another point
that removal can take place without trial by
jury. The offences charged are niisdemeanors. and
IL would be great wrong II one man should be al
lowed to oust another from Office and blast his rcpu
tat on s sought to be done ia this II Mayor
Cooper try General Smith the Legislature can
authorize him to try any other alleged Offenders.
In view of all this the only thing for General Smith
il to quietly resume his office"
''But If Mr. Morrison resistsY'
'Oh. then IL will be like any other Of forcible
entry"
''Whea will General Smith return?"
81 DO not know. had letter from him this
morning. but he does not speak the time when he
will be back shall telegraph him To return US soon
as possible"