The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-08-15
is THE MAYOR A COURT?
If Not Where Is the Authority for
the Issue Of the Writ
A "HOLD.OYER" OFFICER
Commissioner WheeIers Counsel Claims
that He Cannot Be Removed

oers. before Judge Van Brunt, yesterday morning
in anticipation of the argument the writ of pro-
hbiton recently obtained against the Mayor to
vent the contemplated removal of Police Commits
sioner Wheeler. There only two cases
before it the calendar. aud only . short time
elapsed after Judge Van Brunt took his seat the
bench until he called in loud, clear tones:--
wheeler against Cooper"
There response
.'What is the matterg' was an exclamation from
many mouths. just then Corporation Counsel
whitney's spectacles emerging through
the and threading their way into the enclosure
reserved for the Bar. Mr.. Elihu Root was not far
behind but owing to the hardness of counsel horse
intervened. and the political animal COM
PEELED to wait. At length however. both the Court
andthe counsel ready. and Mr.. Whitney started
the ball with motion to quash the writ
'As this" he said, sis the return day the order
to show cause why the writ of prohibition should
not be made perpetual, and as intend to move to
quash the writ. suppose have the right to the
door to make such motion"
The grounds upon which this motion was made
we're as follows-
Fnst-The writ of prohibition can only be issued from
superior prohibit inferior from
ing Jurisdiction which does not belong et Such
guage Of the statute this State the
iii. s"sfs Ss
Secoa~Ths writ will not go to The suSordnass tribunal
in arising of it's until the
any process hence
rigdy adhered Of which is that this process shall
remedy. te.f
Bustain ts Issue ct writ of prohibition IL it legally
runs against the Mayor of the city.
The Corporation Counsel then said that his
motion he would have the affirmative. but that he
was perfectly willing to put in the answer Of the
Mayor and argue both together. This legal readi-
rather startled REALTORS counsel. and glancing
1t the array of authorities contained in Mr.. Whit
neys brief which lay carelessly the table before
nin Mr. Root arose.
II suppose" he said 1--WE entitled to some
reasonable time to put in an answer If we have to
proceed to any sort OF trial?'
Judge Van Brunt cut the colloquy short by over
ruling the motion and directing the answer to be
putin.
the facts disputed. the must proceed as in
, case of alternative mandsmus.'
Judge Van Brunt-H the return is demurred to
brings the whole question up.
THE MAYORS RETURN TO THE WRIT.
Mr.. Whitney then read the OF the Mayor
10 the writ OF prohibition, as follows:-
,Ss relation Si De VII Wheeler Edward Cooper
The answer Of Edward Cooper TO the alternative writ of
the s"a Edward Cooper do and return
fork, having duly elected that manner
ii ns ~ Sf 5 It 0 an. hswi
s Mayor s s a hs city, ON May
nitted Aldermen the following commani.
.c,.x n "Ex y ys Dr y
TO Tue HosoRAsLk. rmK BOARD OF ALDKnxES
ion IS II q
mate eos Soss S Ss ~ and w
Il New York for iail term in place Of De Wit, Clinton
wheeler WHOSE '''"' nus Smith ELY. Dr.. Mayor
Which was by the Board Of Aldermen said May 7.
1873 referred to the Committee ON Police and Health De-
Nay q 1873 a, stated session Of the Board Of
Health psp.rtmsn.s DID rspor. as iollows ;;,.
whom referred the annexed message from His Honor
the Mayor nominating George Jones Tor confirmation
'HS i
aa an has ~ M ,cns. on that they s
M ne. the ps.sy Of %
accepting the office. they would Incompatible with
Tally newspaper that under these
tered But duty, remains your commit
% tue n ct
confirmed BY your body YOUR Committees
.s s's'''s'' ''" ''s '''': SHESS 8. sub
.J6ME }. M s5ESLS'
COMMITTEE Police and Health Departments"
md George '
has, t Ss em the o no Sueh
Sas q N.s YSsl Ssy and S'%.y q Nss rs,4. ED
FOREGOING return e true Of mis-
to those matters he believes IL to be ,,,
Sworn to before me this 18th day OF august is7y-E
HESRr LAooxsk, Notary Public. New York county.
OPENING THE ARGUMENT.
Mr.. Eliza Root then argued the in behalf of
the relator. He said the affidavit upon witch the
writ of prohibition is issued shows that Mr..
wheelers term of office expired May 1873.
year ago. and he then referred to the charges upon
(which the Mayor seeks to remove him Police
pport of william Pitt Sherman. Commissioner OF
accounts. and three afdavts annexed to the affidavit
upon which the writ is issued, relating to the
clothing aud equipment Of the Police Depart
ment. Upon receipt of the Mayors citation
applied for and allowed and Mr. Root argued that il
ought be sustained upon these facts relating Mr.
he cannot be- removed In the way contemplated by |
The Mayor. g The alleged causes were not causes |
upon which to remove any Police Commissioner. !
whether his term has expired or not
In support OF his position Mr.. Root quoted from |
the case OF Quimbo Apo, the Chinese murderer. !
IN unauthorized power than correct the injury
Akr IL has been committed.
II the Mayors citation, he went on, (Which |
putorts to contain causes for removal, plea
ihburt Il could not be more certain as II Affects the
tctor In Its judicial aspects II has the stamp OF
lWcial jurisdiction upon 1t. The Mayor is the tri-
nhal before which the Police Commissioners IL to DO !
Nod. He assumes u jurisdiction which we deny.
Lld consequently this writ can do no harm IL he
does possess the jurisdiction which he claims.
THIS writ was intended for precisely the kind of
court which the Mayor sets up 1t is the province
of writ Of prohibition to restrain inferior
courts Now unless there is special or peculiar
form which Is 10 surround the court to be
restrained rather than to be prevented before
this writ can issue IL Is idle to does not apply
TO Mayor Cooper in his dealings with Police Com
missioner Wheeler In this II this pro-
cecdng intended solely to protect the private and
personal rights OF AIR. Wheeler even then the writ
would lie, but 1t Is case where the rights OF the |
public also involved. Where the Mayor Is
usurping authority lac does possess are we to
wait Tor the contamination of the wrongful act be-
fore can have any redress? In this matter
he has no jurisdiction. Ii Is absurd to talk
OF removing officer who IL already out
OF Office by force OF law, subject only to
the provision that he shall continue to exercise the
functions OF his Office until his successor is APP
TLIra ias sann In z~.is-