The sun., 1879-03-24
MAYOR coorER.s I1LEGAL CONDUCT
OPINION OF Mr.. George TIcLnor Curtis.

Ircgard the conduct Of the Mayor as ex-
ceedngly Objectionable. and hnve seen with
regret u statement to the effect that he acted
under the advice ot the Corporation Counsel.
| do not know that the statement Is correct. but
| cannot CONCUR IN the view, OF his duty or
authority that WIS taken by the Mayor, under
whatever ADVICE he acted.
l. has been suggested that this removal Of
public officers is an executive act. and not at nll
n Judicial proceeding. In my opinion the dis
tin'tion IS not well taken in the sense and with
the Consequences claimed for H. II must be re-
momherrd that under the charter ot this city
the heads Of departments may be removed by
the Mayor for cause and after opporfunity 10
be henrd. subject. however before such rc-
moval shall take eject 90 the approval o. the
Governor EXPRESSED Ia writing. And in order
termlulns iu ull cases whr'hor sufficient cause
exists. tho Mayor is required to lHy his reasons
for the removal before tho Governor in writing.
Ihes" provisions ~ effect establish q tribunal
30 two bran hes. Ia the ilr-t us'nu' 'c the Mayor
is Co mud mo existence oi cause. and In Ind
ing u he Is T. SlNr ihe olhcrr an opportunity 10
bs h"Nri. The tlnding having been luid before
thr Governor lac Is % approve the removal be-
fore i cHu take eG'ct.
Now the aci ot romovnl ~ public officer Is
Undoubtedly hn executive act; hut the proceed
ulnu "A hearing Is beyond all question in my
judgment. u' % judicial nature. He is not 10 act
upyn caprice. he Is not 90 net upon political
ht is 90 find cause. This cause can bc non"
other than uuttuess for the discharge ot the
duties and iu iuling the existence of such a
caus" the Mayor must exercise ludgment, anu
honestly and truly certify the results of his
judgment. Opportunity 70 Toe heard necessarily
implies thW mo accused ollccr or Ia" person
whose removal IL in contemplation shall be
allowed 10 adduce anything Whatever that is
material o. true and sound Judgment upon
The ecyidrnce OF the alleged cause.
The sixth section ot the first article of tho
w6 Is "amm6niy 1 1o ced Gn G B oi s gTs@ns e
braces tho following provision: Ana in any
tirial IN any court whatever ne party accused
shall he allowed 10 appear and defend IN person
| and with counsel RS in civil actions" This pro-
vision is found in company with those other
great securities OF personal rights which the
! Constitution has established Tor all parsons
| whnt'vrr. who dwell or are present within the
limits Of the Statr. cannot doubt that the pro-
cecding before the Mayor. by which he is 10 as
| certain. rs II preliminary stop for the action Of
| the Governor. tho existence Of cause for re-
| moving n head Of one OF the city departments,
| is "A trial in "a court within the meaning OF this
| constitutional provision.
Tho Legislature. in my opinion. has not made
| and cannot make u law which will authorize
one executive officer 70 remove another for
! cause, without allowing such officer 10 be- heard
! constitutional provision is too broad and per
| cmptory 90 allow of the exercise Of such power.
! IL is to be observed TINT the language Of the
! consitutonal PROVISION does not c9nilhe 1t 10
| proceedings usually called criminal. or 10 pro-
| ecelings IN criminal courts. The language is.
III any trial IN any court Whatever court
mnrtiAl for example. or a military court Of in
quiry. j. not necessarily a criminal court. The
/ proceeding may be- instituted for something
| less than punishment Tor crime, yet no ono
/ would probably claim ;hat an H'cu~cd person
| can ho made 10 defend in a court martial or n
military court oi inquiry. without being allowed.
/ in some form the ald ui counsel.
Wherever there is a party ucrus"d NJ anything
standing before any Kind Of tribunal which has
/ the power to iufict upon him any penalty.
/ whether il bee loss Of liberty or Of PROPERTY or
| of office. he must ba allowed to defend by cOun-
/ sci or tine Constitution will be- violated
| ! DO not know whether the public properly
| appreciates the nature OF tn" privilege which
the law secures 10 the members oi the legal prl-
| irssion 1t is not a privilege of a merely per
sonHl nature. bestowed for their own udNan-
tugo, but IL Is trust with which they are clothed
! tor the security and safety of their fellow men.
The order oiqnon who are described In the bill
/ of rights as counsel are persons who are set
| apart hy the hw To defend their fellow citizens
| against every kind Of public accusation that
! may Dee brought Hsunst them in any tribunal
! Whatever and m alTtrlbunals where there Is "A
| public accusation of any kind to be heard and
| determined counsel have the same rights of
! speech and action that they have in all civil
/ tribunals In which they appear 10 claim or de-
icnd any civil right
r. pretend that this privilege. can be with
| held Nr denied in a proceeding which is essen
! tlally judicial I'm ts nature, hecause that pro-
| "eedinE when perfected may result in the rN-
/ c'utiNe act Of removing u public officer, seems
/ 10 bee position entirely untenHble. Mayor
| Cooper, perhaps unconscously, has dono u
great wrong