The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-10-18
THE , NICHOLS CRR7IORARI.
Argument on Appeal Before the Supreme
Court, General Term.
CONFLICTING JURISDICTIONS
Mayor COOper'S Action Claimed TO Be Judicial,
but Illegally Conducted.

The controversy growing out of the attempt made
by Mr. Sidney p. Nichols to have reviewed by the
Supreme Court in certorari proceedings the action
of Mayor Cooper dismissing him from the office OF
Police Commissioner up for hearing yester-
day before the Supreme Court General Term. Judges
Davis, Brady and ingalls, being the bench The
hearing was on two appeals. one by Mayor Cooper
from the order Of Judge Wcstbrook directing
the issuance OF writ OF certorari in the case and
the other an appeal from the order of the
Judge vacating the stay of proceedings granted by
Judge ingalls,, and directing filing of the return.
Corporation Counsel Whitney and Mr.. F. ~ Bangs
appeared on behalf of the Mayor. and Mr.. Nichols
was represented by Mr.. William Allen Butler and
Messrs John d. Townsend and John W. Weed.
After giving history of the Mr.. Bangs PRO-
ceeded to give the legal grounds why. in his opinion
the appeals on behalf of the Mayor should he sus-
tanned His first point that no other order
than has already been made was or is necessary
to enable the Court to hear the first appeal:
and that il there is any defect i'll any of the
proceedings taken for the purpose Of perfectng an
appeal. such proceeding is amendable and should be
amended. He next raised the point that the appli-
cation to Judge Brady August 80 for extension
of time to file return, and tho granting by him of
that application, involved no waiver of the appeal
He further urged that the filing Of the return was
not waiver OF the appoals already TAKEN; that
the return was filed under the compulsion
of the orders and Of threats to enforce those
orders by attachments for contempt. and that
the return expressly reserved appeals and objections
already taken. He insisted that in case the Court
should consider tho orders now under review to be
erroneous, and the appellant entitled to have
them reversed, thore could be no practical difficulty
in giving effect to the reversal by directing all pro-
ceedings hal while they remained in force. incud-
ing the writ and the return to be vacated Upon the
merits Of the appeals he contended that the power
and jurisdiction of the court exceeded.
or if not indscreetly and improperly exercised
in the making of the first order complained Of. The
presumption of law, he further urged must be that
the Governor would correct the Mayors errors ii
any were committed, and would commit none OF his
own The interpretation Of the Court at that stage
would be extra jurisdictional, because needless
and because the Mayors duty to submit
the to the Governor is express and
inevitable, and the interpretation of the court
would involve him in censure tor doing his duty,
and because the Governors office and function
would be intercepted and suspended upon baseless
apprehension OF some wrong-dong. certiorari to
the Mayor at that stage, if effectual, would be
equivalent to an injunction upon the Governor.
Upon this presumption, he claimed. no Judgment
of this court could be effectual.
CONFLICT OF AUTHORITY.
Tho Governor had properly before him the ques-
ton of approving the Mayors action. Power to APP
prove is. by law conferred upon him, and he cannot
party. While this Court was engaged in disapprov-
ing he might be engaged in approving. Then two
sn bs yssns ne Of Do o.
dction in the Governor Is equivalent to
depriving this Court Of jursdction-at least until
the Governor has acted The record. clearly, cannot
be in two places at once 1t cannot be in this Court
and in the Executive Chamber at the time. If
it has gone the Executive Chamber this Court has
no jurisdiction. The papers show that there is but
record. and the Mayor is not its custodian Ho
commenced the proceedings and RENTED the record
aud history Of them to the Governor. The Governor
continued the proceedings. consummated the
until the conr hears rom nm
hears nothing Of which 1t has jurisdiction
to take notice. He contended In conclusion that
the second of the two orders appealed from Is liable
to all the objections made to the rst and to Others
besides that the objections stated involve ques-
ton of Jurisdiction of discretion or reg
ularity merely; that tho Mayor committed error
of law fact in the proceedings before him, far
as they appeared Oh the application for certiorari
and that the orders appealed from should bo re.
versed and all proceedings Hereunder should be
Gated. or the matter RENTED to the Special Term
with directions to vacato all proceedings after the
first order. the latter being reversed.
THE POINTS FoR NICHOLS.
The argument on behalf of Mr. Nichols was equally
lengthy and technical. 1t was claimed in respect to
the appeal from the order allowing the writ of
in the sound discretion of the Court. The Court. it
claimed. was possessed of the fact that y return
had been made to the writ and that the issues or
at the Special Term for equity cases and Of
law. the proper tribunal according to the recent
decision in this case OF the Extraordinary General
Term. Every question sought to be raised by the
present appeal can. and properly should be. raised
on that hearing, it argued An appeal from an
order allowing writ OF certiorari is unusual, IL
not unprecedented. The proper practice, us
shown by all the reported cases. is to raise all
questions relating to the rights OF the reator and
the action of the Court not by appeal from tho
order allowing the writ. but by motion to supersede
or quash. The defendant is not prejudiced, but
will De greatly benefited by pursuing the ordinary
he can raise every possible objection to the writ
the hearing the return. The present
appeal should therefore not be entertained by this
Court. The appeal should be dismissed or the order
affirmed on the ground that ii not appesable or
il appealabe that the order is not here
i'll the presence OF the fact that return has
been made and that the whole merits now the
authorities uniform in holding that the question
o, .ne o, inc reaa,or 20 tne VIII. anu also the
reviewed by it are proper subjects for review