New-York tribune., 1879-09-16
TIE MAYOR ENJOINED.
DECISION OF JUDGE VAN BRUNT ~ THR wHRRr
CAsE-IHE WRIT OF PROHIBITION MADE AB
LITE

DECISION or JUDGE VAN BRUNr ~ rHE WHEELER
cASE-IHE WHIT OF rEOHIBlroN MADE ABsc-
LUTE.
The argument upon the writ OF prohibition
restr Ming Mayor Cooper from continuing the proceed
ing Tor the removal OF Police Conm.-soncr DoWitt c.
Wheeler made BET fore Juare Van BrEt more than
month ago. Judge Van Brunt rendered his decision
yesterday making writ absolute His statements of
the facts OF the briefly that Mr.. Wheees
oi office expired May l. ls1s, but he has continued in
Office, 10 one having been appointed Ia MIS- place.
nomination made IN May. 1873 hut the nominee
would not accept The place. No nomination has been
made by Mayor Cooper since he came iuto Office
last January. Wren charges were preferred against
Commissioner Wheeler he up the plea that the Mayor
had no jurisdiction over his case, and under ;i. plea
obtained the writ Of prohibit Judge Van Bruut,
his decision. holds ~ follows:
In considering the questions arising upon this motion
shall follow the order marked OUt by tie counsel IN
their arguments. These questions arc Fir,t-DO the
Gsos preierie ~ ts % % @ ,SaSe ,Hs %
respondent OF the r-ator from object Seconds tho
roiator subject To removal ~ the respondent his term
OF Office having expired and vacancy existing IN said
Office iy OF such expiration Ot term. which can
of ihc Board Of Aldermcnl Thlfi-I the respondent
had power TO remove the rctor vii writ Of pro-
LiDlOn e To prevent the respondent from attempting
nd M a e ae an s M CHARGES sS eps as frs 9
The Mayor against Mr. Nheoci are not drawn with that
technical accuracy which we have rghi TO expect IN
IN indictment pendng The drawer Oi TIE charges
does not seem to have kroNn exactly now the alleged
offences ought IN be stated. tUt they sufficiently snow
IL The dcrecti0n of duif complained oE II mer
DC true that the acts ha-ed dIh NOT come nmt-
Po,ce Comm ssoner, hut The act that le occupied
the position oi iulcc ,ii i'htI 1l""'n nm 1" per
pr,rate TIE WRONGS alleged against lm. aud hs cuu,d
iayc Lad n0 possible theTea ith Do he faG not
filed office. II an noHml-lt of an olce uses he
office u- means oi doug "t"uE, is tact Iofhs et-
fafliY good cause Tor action los the proper nutLorts.
In ctcl Oy th learned counsel for the rriator
uo olh,r or different rde s li ""Nn. II ne"E Simply
held so ths.' ,lsrs that .an 'nr' cannot oe removed
foil IN .ce 5rau-e Of pr Noua iefect ons ~ cny in
arothr oi e. Ine char-' iA'.,i .., " ,g, tIn l,s &
fl- p poses OK iiis motto 10 lAl tl'1 %. assume 80 n.
tra seem Ice sufficient 10 justly tue action OF
! t4e Mayor.
LIMITATIONS or TIE Mayors POWER.
Til brings uc 10 tae second point involved; Is tho
roito su ct to removal by "a. resp c hi tenn %
osa,e having xlircd. am vacancy existing ia sam
office b, reas n cf such expiration o term. which
only be foi by te spondcn by ard with Che CONSENT
0r fhc Board of Ndermcnt Toe solution ut th.s qies-
fion Gsge,ds Cuircly upon tle construction wllch s
,.,. ~ .e f-,rntr-ftn section of On, charter very
fr.' examination OF tho wording ot ih' section
chaotic as it Is It's construcuon ken Ia connection
Mil e cOmul-l0n OF The Pulcc Board, seems 10 saYc
Ite uht as 90 what the int Uiion ot tie Legislature
wls The Board of Police Was 20 consist oi lour nem-
hars and tl stature seems 70 been siudiDusy
ANXIOUS avoid tfc possibility or the haprc- oi "
cont oacy bl which the number oi persons adlh"i yea
yns o. Intention that tine board should be evenI bn',
nnce nnd ila- te nnnaif vote Oh tIiesou rs m %.
taken hy H. Ius soic ufe l. painly i"aaLe" py tne
son v ,osc term ~ office expired snal hold his Office
! ff. e.
| ~ under toe Revised > atus5 10 conid hs.s held
y@es that the MAYOR shall hereafter "appoint. wifn-
out confirmation OF the Board OF Aldermen person or
rersYrs 10 III ANY vacancy vacancies Whicl now cN-
f or may hereafter occur, from death, resignation, or
csusc other tan the ezprdio" ei iie il iem ~ any
oGae 10 when ho is empowered io appoint bS dAi "lt
| 49, VS. 7-S tbe M9vor ony lid power to nj
vacncy sing from any 10y and win hc con-
eepf 10 tc Bnasd o. Aldermen Iy te net OF ISfl tie
Nvor without the consent Of tlc Board Of Aldermen,
/ l. .1N a..
r pganu of the iuil term. lu tie case o a vacancy
ari.n from any cause other than The expiration Of the
@il lin m. utc gives the Mayor he power I'll
Tor tnc residue the term; hut whore vacancy ar'cs
bg inc expiration of flli term, the Mayor has no
,,r TO npfo.nt ana he rot given tnat power BE-
cause the statute had de.ienated VINO was To hold rae
Office until person 10 il tis ohi ,houiI ~, nqiheu
bv fhe yor and confirmed by the Ioard ot Aldermen,
and THIS provision having been made theie was no dancer
nf there being In existence eftOn dusholAc 10 ACT
although vacancy existed hy Tue expiration oi term
TIE BALANCE OF THE BOARD.
The legislature having been careful % provide for
e eal brium Of the Board could have intended
TO have put the power or the Mayor and Governor
10 destroy that which. With so much care, had been
created hy very brief examination OF one or two
points in the statute seems to place ths Interpretation
beyond question IL directing the manner in which
vacancies SHALL be flied, the Charter provides
tnat any nomination to MI any Yacancy
Which shall cieafter occur by reason ot tie expiration
AZ tie term of Office ~ ANY OH er shall De made, tci
thus treating once vacant after The expiration
Of ull term OF Office atnouSh he ge.on WLose leInl
OF Office expired may sun De PERFORMING the dues
# fnat tt.ls
removals must read 20 gve the Mayor power to
remove from oce Tor the purpose OF creating
,erorn he duties Under the charter OF 1873 the
Mayor had no authority 10 m any vacancy without the
consent ol The Board of Aldermen there was no Ne
cessy of giving any power 10 the Mayor To rrmONe az
officer whose ern o. Office had expired "s te rtDg ri
sell Effected the removal OF tne Incumbent and no IN
terprcfauo Of hc act of lo can ,And the po"or OF
removal a. given by the charter Oi 1873.
IN az s sord TO- nad i1 every way against the
ftuiff nj
m r ap ,vo e. h",di1 over after EXPIRATION OF term
such balance be destroyed, temporarily, At least
because the Mayor has 10 powtr 70 ,p Nap"Iht VIII
crpt for an unexpired term. and consequently
the Office II the Mayor has power or removal must re-
drIned by the Board OF Aldermen. which nomination
and confirmation, without any act OF removal "ouIu OF
Snmerous csseS have been cited by the learned conn
sci to the Corporation to snow mat an ono s DO. %
vacant although the term or Office ~ the incumbent
has expire- II the incumbent continues 10 discharge
TIE duties OF tho Office under tae pr.y-lon o. law. ins'
statute winch expressly treats I'm suc cnse te once
i ." -. ,, ,rovt,. at no ulccr 50 removed sGail
be again appointed t. tie sane o'c during tAc sam
Application 20 the case of man whose term Of once has
expired. Mr. Wheeler. II removes would DC nhns- %
quoted lmYoso, u penalty upon parties against whom
lls Mayor legally gr vLlcA Pe"aJ 'a-"V' p'S'iOs
upuy 70 4 Lo.dpser oflcer
1STrNIIoX II TIE LEGISLATURE.
This fact seems 20 clearly demonstrae that the Legs
ature iutcuded to give the Mayor power to create
vacancy by the removal OF an Incumbent where proper
grounds existed FOR the purpose o. at once without
delav uu,t,ng suitable person IN the office cOudrm
alton hy the Board vi Aldermen being required ID suc
But whore vAcauc! existed D me .1Prslion ol
frrn, th -gt..tre intend that the Legislative
branch OF the city government should be deprived OF
fhe right 10 dsappreyo OF Tie nominees ~ tho MAYOR
II ha. bceu urged that In the Board of Aldermen
woud NOT confirm the Of tue Mayor, then the
sa,or wonI be entirely poweress 70 relieve tho
cty from m. dereCrion of duty OF h0ldoVer 0rhcer
Tn. nupNrr o tins suggestion seems tO be thar the Law
espnn..s that when the Mayor makes a suitable nOul
unon N, BOARD OF Aldermen will confirm, ana that II
one nomn ation rejected, others will be sent IN Tor
action THIS Intention l. clearly expressed by the pro-