The New York herald., 1879-08-09

fully and plainly. substantially and formally de-
scribed to him. This enters essentially into the
justice OF the case and into the character OF fair
trial, that it ought never to be dispensed WIN
without it the party does not know what to defend
against, nor can another body to which there may
be an appeal ascertain the applicability or the effect
of the evidence" In twelfth Pickering the Court.
per Shaw c. j., describes the OF procedure 10
be observed by body empowered to remove per-
from office (page 263) I'll. monltion or
citation of the party TO appear. 2 charge given
him.. which he is TO answer, called hpei. .. a
competent time assigned for the proofs anu
answers. L. A liberty Tor counsel to defend
his and to except against the proofs aiii
witnesses g. solemn sentence after mesrs 9. IN stca a
quotes these rules from = Burnes Ecc Law
l45, and then adds:-"It is not to be insisted on
that in exercising the powers vested III new Juris
dction, where forms prescribed. any precise
To forms must be efOilowed. but these rules
indicate the course which mnst in substance De pnr
sued by every tribunal acting judicially upon the
rights of others. I" t'It 'A |-Ai.-ff' ' ~
Incidentally. in the opinion of Judge Allen. in
People ex rel. Munday vs. Fire commissioners
~ Y. Y, 4i5). the rule is recognized for the
Judge tpage 449D. in speaking of the partys right
either of excusing any delinquency apparent
neglect or incapacity-that Is explaining the I'M
favorable Appearances or disproving the charges"
II the conduct of the Mayor in the removal OF Mr.
Nichols be tested by the we'll established course OF
procedure to be observed in of that character
It very clear that it cannot be upheld. There was
no specific statement of charges the aid of counsel
denied the proofs against the accused were not
taken IN his presence nor was he informed OF the
witnesses was AFFORDED. and, in short. no.
single right. except to appear and
secured by the law. was accorded. 1t possible that
the Mayor acted upon what he supposed was per-
the official executive head. it might be taken by
him evidence; but 1t is most obvious that he
might have been mistaken. and the clear right
of the accused to explicit statement by the
Mayor of that supposed knowledge. to the end that
if he in error, previously formed opinions
might be corrected and removed by proof.
r4 sIrp
This brings us to the consideration OF the last
question presented-Can this Court review the ac-
AZ to the right to issue the writ to the Mayor
there can be doubt. 1t has been often decided
tna Il is no % ums M
rectly in point People ex REL Bancroft VS..
Weygant l6 Hun. 5i6 The People vs. the Board OF O,
w. The Board of Police and Excise OF
the city Of Brooklyn. 80 N. Y. 46S; The People ex
York. = Y % liS; The People @ ex rel Munday vs..
The Board Of Fire Commissioners OF the city OF New
York. "a N. Y AS As to the Governor the question
is not free from difficulty for there cases. and
notably that of Southerland vs.. The Governor (29
Michigan 320), which holds that the action OF the
questioned by the courts. The argument against
the power of the courts, to state it in the
language Of the Attorney Generals brief submitted
this mo oton IL :"Tho powers OF the State govern
ment are by the constitution divided into three
ordinate Observation-Disclosures, judicial and ex-
ecutive-each independent of the other. exceptin
FAR subordinated by the constitution. and, there
fore, the conclusion follows that the one cannot
question or review r,. the action of the other,
eral sense sound, and yet sometimes 1t is
not true. The courts must. when. their
enforce and protect public and private rights under
it, They have not it is true the power to prescribe
and define executive action in matters OF public
policy political expediency or matters vested in
simple executive discretion. nor to dictate to- the
Legislature the course of legislation. but
they can and frequently do Interfere with
executive action, which, contrary to the law,
they expound 1t, wrongfully interferes with
the persons or rights OF individuals and they can
and do frequently declare legislation though it has
been enacted in the manuer prescribed by the con-
stitution be contrary to the Fundamental law and
void. 1t is. has already been said the constitu-
tional prerogative of the Judicial Department
Of the government to- declare what the
law s Smf' s the Instance Of If
the public Of private parties to enforce all it's
remedies aud afford all its protection In arepubli-
person beyond ID jurisdiction of the courts for
there is none above the law. Will il be seriously
seizes % an individual and detains him that
into the detention. and. il Illegal. reisase
him? II the Governor, contrary to law. though pro-
Tossing to in conformity herewith. by virtue OF
his office, takes mans properly. are the courts
fully prevents person from dischargpg the duties
OF an Office of which he Is the rightful incumbents
the doors OF the courts barred to him when us
suitor for Justice. the party interiered with
seeks relief? And when the Governor is
clothed with Judicial functions decide
question. which any other person could as well
have been authorized to determine he. is his
ton incapable of review while that OF any other
officer or individual is? These questions can have
but one answer unless the Chief Executive is above
and hey md the law which will contend. The
jurisdiction of courts cannot be controlled or limited
by the official position OF any one. When they
issue u mandate commanding an act they do not
because the person commanded - their legal infe
rior but because the law is his superior and its com
mandments must be obeyed, and when they restrain
action is because the law Restraints. There be
no clashing between the executive and judicial de-
partments of governments when to the formers COM
tted all discretionary governmental. political aud
executive action and to fhe latter the Interpretation
OF law and the administration of justice under it.
The checks and balances OF government are better
preserved by conceding to each department thereof
its appropriate sphere of action than by limiting the
general jurisdiction of the one by the official grade
OF the individual filing another. These general
principles well sustained by adjudged cases.
,o In &C.. Gommonweasm vs. s wv .a
the Office OF Probate Judge OF Hampton county was
questioned by quo warranto. In answer to the
point distinctly made. that the action OF the Execu
tive alone questioned. the Court page 30 said =
'The other objection Is that an Information OF the
nature Ss00 an us ossr m this nS Ss
supreme executive authority OF the
monwealth. And it is said that as the Executive
have exclusively the right to determine when
cancy in office exists, the filling OF which appertains
to that branch St ane ,h ,he eaeenmye
wealth equally independent with the Judiciary.
Our government is founded on principles not
known to the laws or any other country
The sovereignty of the commonwealth
mains in the people. The several departments
of the government the Legislative. the executive
and the udciaare the agents OF the people in their
respective spheres When the Legislature enact a
authorized by the constitution it s the part
and the duty of the Judiciary to declare 1t void
When the Executive, in an act or appointment. over
leaps the bounds prescribed to it by the consttu-
ton aud the laws II alike the part and the duty OF
the judiciary to pronounce such act or appointment
null and void.
III POINT
To precisely the effect are the following
cases. each presenting the identical question decided
in the Massachusetts, case e:-Morton vs. The Mayor.
New York Daily Regster," OF November Is. 1878
Hogan VS.. Carbcrry. ''Cincinnati Lac Baaetm. vol.
L. No. ., March, 1879 Qn tins last the Governor
had removed officer and appointed another; the
Court held his action void) Page VS. Hardin ID.
Monroe L. and Equity hep. CAS-.
The famous case OF Marbury w. Madison Il Cranch
1877 fully sustans the positions taken In this opin-
ion. Chief Justice Marshall comedies that "by the con
of the United states the President is in
vested with certain important political powers, in
tho exercise of which he IL to use his own dis