The New York herald., 1879-08-09

mo. unless by consent-that is not unless those
opposing Mr. Nichols should be satisfied that the de-
cision of Judge westbrook could not be reversed
and they were willing 10 the city expense
Have you any apprehension that Mayor Cooper
will not make any return to the writ when it is
issuedy
IL hardly think that possible. However. when re-
turn was made by the Mayor to the order to show
cause returnabe the LIST of June last. Mr.. Harri
son. as his counsel stated to the Court as one OF the
grounds on which the writ should be refused that
the Mayor unable to make the return because
the original had been sent to the Governor and
lett with him. 1t was on that ground mainly that
pressed upon the attention oil the Court the advis
ability of granting writ also to the Governor. This
point urged with force upon the Attorney General
as the ground for pressing the application against
the Governor. and l assured by him that he
would advise the Governor to return the papers to
the Mayor. where they properly belonged. II this
has been done there could be no ground for the
Mayors refusal to obey the writ
''Supposing the highest court sustans Judge
Westbrook, what would be the process by which Mr..
Nichols would 90 back?
"Under such circumstances it might be effected
without much formal action. But. in of neces-
sity. the Attorney General would likely take action
by quo warranto.
GENERAL SMITHS CASE IDENTICAL.
"If you successful in your will it not be q
perfect precedent for the revision of General Smiths
case?" e- "~-'
II look upon the two cases as Identical
"Then the Board would be composed of Messrs.
Wheeler French smith and Nichols instead of
.what will then be tine probabilities in the case of
Mr. Wheeler against whom it is said. the Mayor in
tends preferring charges?'
THAT being purely political you probably know
Ibid you pay any attention to the reasons pub
lshed yesterday which Governor Robinson gave tor
approving the action of the Mayor?"
'Of course read the document, but much prefer
Judge Westbrooks opinion to that. 1t looked to me
very much like document gotten up for an emer-
gency. Most ut his promises know to be in
correct. and Judge Westbrook says that his law
is bad. 1t is a little surprising to
closely in the footsteps his predecessor Governor
Tden in most all his actions. should havewan dered
SO far away from the position taken by tnat gentle
in his expression of views as to the powers ana
duties of executive when applied to by the Mayor
for the approval OF his action in tho removal of
public officers"
T11pEN vs. ROBINSON
"what case do you refer to?" asked'the reporter.
Il refer to the of the Fire Commissioners
when Mayor Wickham attempted to remove
them. In the case of Nichols Governor Robin
virtually adopts the theory advanced by
Wickham to the effect that the Governor is
check on the logical processes of-thc Mayor aud
upon nothing else. Governor Robinson virtually
says that all that is necessary to constitute good
ground for removal is statement of the Mayor
that he knows his charges against the officer com
planned OF correct. In his reply to the letter OF
Mayor Wickham Governor Tilden criticised such
theory most severely He says in speaking of
the power given to the Governor, There is
not one word limiting in any manner the.Governor's
method OF arriving at the conclusion
whether or not he ought to approvea particular re-
moval. He is free to inform himself and to judge,
when he writes approved on bin sent him by
collect from some source the materials for
judgment so that when he writes 'ap-
proved it may be the truth aud not false
hood, is quite clear. The theory, which is supported
by the long and elaborate augmentation of your let
ter. is that in forming his judgment. the Governor
is limited to such information the Mayor may
choose to give him: that he is shut out from all
other knowledge; that he must take every state
ment of fact made to him by the Mayor as
established and indisputaDle truth; that his
own function is confined TO the narrow
act of deciding whether the thing charged assuming
all alleged facts to be true, is sufficient
OF q removal. This Governor Tilden criticised q
novel theory which has no support III law. reason
a,AiG nfIIfnA Inv
the statute. of which it is a construction. >"
Mr.. Townsend read the quotation from Mr. Til
the resemblance between what Mr.. Tilden refuted
and Mr.. Robinson now holds. with still greater sat
isfaction, and then satd:-"Probably the Governor
let 20 OF Tildens hand tor the moment. perhaps to
get firmer hold and lost his balance. He certainly
could not have had in view the following paragraph
which closes the letter referred 10 Of Mr. Tden to
Mr.. Wckham:-
MY decision is that the Governor is not limited
by law to the consideration of such facts may be
communicated to him by the Mayor. but that, on
the contrary, it is his right and his duty to accept
and if needed to all information necessary to
enable him to decide whether he ought to give or
withhold his approval OF an act OF removal initiated
by the Mayor under the law. which defines their re-
spective powers and obligations in such cases.
Had he considered this. continued Mr.. Towns
end. .he would not in the case OF Mr. Nichols. have
every captain the police forte aud OF the patrol
man who had charge in the different wards of the
streets generally had been kept in proper order by
Mr.. Nichols during his term of Office nor the affi-
the streets that the Mayor had intmated of his own
knowledge not III good condition, to the effect
that the streets had been cleaned and refuse
oftcner removed than ever before. Neither would
he have ignored schedule. prepared by the treas
surer's bookkeeper Of the Police Department.
that more work had been done at less
expense during Mr.. Nichols administration
chairman Of the Street Cleaning Bureau than at
this. saying that all these facts should have been
shown before the Mayor. when he knew positively |
sapfs spcl Fact W hen haf le md ha
accepted q mere statement OF the Mayor which
absolutely denied by Mr.. Nichols that one or two
condition the Mayor said that the statute re-
quir,d That is absolutely all the evidence offered
in the Of The Police Commissioners
MR.. WILLIAM wHITSEY's OPINION.
Mr.. William G. Whitney, Corporation Cour sci and
saamst the ssy"r and overnop in answsr
to questions last evening, szid:"It Is an unfortu-
circumstance that no brief has been before the
Judge in behalf of the Mayor. MIR. Harrison. who |
appeared for the Mayor, understood that the printed
brief prepared in behalf of Nichols and sup-
upon him and he to have AN opportunity
then to prepare and submit brief. Before leaving
town about week since tor the wcst he wrote to
the counsel Mr. Townsend, and the Judge. that ON
receiving such brief he would prepare and file one
In reply. received note from the Judge about
since that he did understand ii, and
requesting brief from me, which thereupon wrote
i would prepare and submit. but the Judge seems
not to have waited for It, know of no provision
or law or remedy by which Mr.. Nichols be in-
stalled prior the ad Indication upon the certiorar
The next step probably Will be- return to the writ
by the Mayor. The writ doubtless commands the
Mayor and Governor to return the proceedings. ana
when they have been duly adjudcated upon comes
the Judgment way the other"
Two points that made were:-l That the
Mayor could not return the record of the proceed
ings. 1t having been transmitted to the Governor.
2 THAT the writ would not lie against the Governor.
These technical objections aside from the /
merits.
POLICE HEADQUARTERS.
Police Headquarters were as quiet NJ q churchyard
all day long. Commissioner MscIean came early. /
lsatan IN nI-lV
self that there prospect of meeting.
departed in his buggy. Commissioner /
Morrison sat at his table in the office of his prode
cessor, wondering where that gentleman might be /
found. 1t Is week to-day since there was meeting
OF the Board of Police Com mnssoners.
COMMISSIONER WHEELEGS CASE.