The New York herald., 1879-08-07

each has thus been separately heard length
through able counsel in objection to my approval
of the Mayors action. 1t is not and cannot be
disputed, Of course, that the opportunity to be
heard contemplated by the charter is to be before
the Mayor aud is precedent to the removal. Ii
error has been committed there l not
final decision of all the questions raised am to
carry out perfectly possible the intention of
the Legislature. as embodied in the charter of 1873
Numerous rulings OF the courts in England
and in other States have been cited and are
claimed to show what the construction of the
act in question should be. But none of the Judi
cial decisions referred to have force or effect
where, in this case, the language OF the charter
is not ambiguous or uncertain but clearly expresses
the legislative Will by the act OF 1873 the Legsla
ture intended to establish for the city of New
York local government with powerful and
efficient executive head. recognizing the fact
that without this the charter would be worthless.
am OF the opinion that under the authority con-
ferred and the duties devolved upon the Mayor, as
above stated. the power OF summary removal for
cause was intended to be given. the Mayor. in
maintaining the vigilance the heads of depart
Commissioner in the perpetration of crime
it would be his duty forthwith to demand
OF him why he should not be removed therefor, and
If he refused to say thing explaining justify
ing his act it would be the Mayors duty to remove
him at once and forward certificate Of his action
and o statement of the reasons tor it to
the Governor. Yet it is soberly claimed be-
fore me BY these Commissioners that the
written charges and specifications. copy
upon the criminal offender give him time to en-
pioy as many counsel he chose. and then to
appear and refuse explanation excuse for his
conduct, leaving 1t to counsel to say not to say
whatever they please in his behalf 1t follows.
cording to this theory, that II the Mayor had
alone witnessed the crime. no matter how
heinous he would be compelled to allow the guilty
powers Of his Office for want of witness to testify
at q strictly formal trial before the Mayor whose
Judicial position would disquaiity his own testi-
mony. The, executive would thus be trans
formed into judicial officer. Regular issues
to be tried before him would be nee.
result. In majority OF the guilty party would
hold Office until ousted by conviction under inoict
ment since there is no power of suspension vested in
the Mayor and the cumbersome formalitles Of
criminal court would be less tardy than such hear
ing before executive officer. This would be pro-
power OF the government. The Mayor himself may
be removed for cause by the Governor, who may
OF any charges against him. But such power is
given to the Mayor over the Police Commissioners
or heads of departments and it evidently with
hold because thesLegislature intended to give hum
the very proper power of summary removal.
THE MAYORS DISCRETION.
After careful review of the statutes and the decis
ions cited, as well as many others bearing on the
question am forced to the conclusion that whether
the Mayer viii allow counsel in such cases as the
present is entirely matter Of discretion and not
not IA any sense judicial officer. His
acts are executive and ministerial. The object Of
this proceeding is not to obtain Judgment against
the officer sought to be removed, but simply in
sure the sxssgton OF the Laws For this reason the
every trial and every court the right to appear
and defend by counsel has no application
to this proceeding The clause Of the CON
stitution upon which the right to counsel
is sought to be founded is the which
treats Of legal trials in courts Of justice 1t has not
and cannot have the reinotest bearing upon the
action OF executive officer i'll ousting official
whose incapacity may, perhaps b. the only
of the very elaborate citation and discussion
OF authority on the part Of the learned coun-
sci does not bear upon the in hand because it
refers only 70 the right OF counsel in purely Judicial
proceedings, which such inquiries tho present
cannot be. But the entire argument on the
right to appear by counsel. protracted and
elaborate IS it has been. is now out of place.
The law assured to the Commissioners "op-
mad that Opportunity at the first hearing before the
Mayor But granting for the sake of argument that
they right in the position which they then
suined of refusing to answer except by counsel,
they are yet finally foreclosed from complaint by
their refusal to accept the second oppor-
no right to presume that he would not
afford them at the second opportunity every legal
right and in refusing N 70 appear before him mi. they
except to their chance of hearing. They have in
fact. had ad6aofs opportunity. and have no right
now to claim any Immunity on account Of their
failure to improve it. This question to the right
of counsel is the only important one raised as to the
regularity OF the Mayors proceedings. 'hfH
PROOF SUFFICIENT.
The next and vital subject OF review is the sufH-
cheney and the proof of the cause assigned for the
removals. The Mayors statement OF cause. con-
tanned in his letter to the Commissioners above
ferred to, Is as tolows:-
Sm-Under the Board of Police, Of which you
have lax and hs police foes has do
The Board OF Police. of wh'ch you Der. has
caused the be thoroughly cleaned from time
from the city daily and often as necessary all ashes
Ycn have negligent in the discharge the public
duties which you were bound to fulfil
proper exercise of the trust which you assumed
.s oar once
will give You an opponn,sy 70 be heard thersen at
the Mayors sod office. 49, - EDWARD cooPER Msyoi
OF the sufhclency of the facts stated to warrant
cause is sefevident and is not called in question
even by the counsel for the removed officials. Any
OF the charges is sufficient. il true, to sup
is admitted. verbally and in writing, by
Commissioner Erhardt. who chairman of
the committee having charge OF the discipline the
police force. As to the second charge the Mayor
states it to be true Of his knowledge and it is
nowhere properly denied. These two accusations
are the most weghty ones brought by the Mayor.
seem to far proved that not justified in
either disappearing the Mayors removal in send
ing the matter to commissioner to take further evil
dence The record of the proceedings truth
OF these charges in no doubt; ana do not, there
fore feel authorized to comply with the request of
considered matters which affect in common the
cases of al! three Commissioners. The
learned counsel for each one Of the
cused officials have urged upon my at.
tention some points in which the or each
officer Is claimed differ from those of the others
Each has asserted that whatever truth there was
in the charges he was himself not in fault aud could
not be held personally responsible for it. have
felt bound give careful Investigation to this claim
and have takcn up and considered the of each
Commissioner separately in the order Of their pre-
sentatioh to me.
NECESSARY DISTINCTION.
think there some marked distinctions be-
tween the cases. aud the claim OF counsel that these
re ieve their respective clients of personal
responsibility will be briefly considered.
The OF Commissioner Nichols was
first discussed, both before the Mayor and
the Governor. 1t asserted III his behalf
that he not responsible for the matters stated in
the charges that he had performed his duty head
of the Street Cleaning Department we'll he
could with the means placed at his disposal. and
better than his predecessors. and to the points
submitted Ivy his counsel before me he an
nexes many aihdavits claimed to show that
he is right in this particular The all this
is that II he desired to show these facts the place to
do IL was before the Mayor. The law does intend
that the hearing, or new trial, shall take place
before the Governor. Certainly the attempt
to annex parte aiidavits this subject
to the legal authorities submitted
tirey foreign to any proper presentation OF
his case before me. II anything appeared III the