The New York herald., 1879-09-16
POLICE board PROBLEMS.
Mayor Cooper Permanently Enjoinad from Pro-
tssdins Against Mr. Wheeler.
JUDGE VAN BRUNT'S DECISION,
The Mayors Return to the Mich
OILS Writ of Certiorari.

| "a
! very elaborate exhaustive opinion was given
yesterday by Judge Van Brunt in the of Police
| Commissioner Wheeler AS will be remembered the
| matter several weeks since before Judge Van
| Brunt in Supreme Court Chambers. q motion to
! make permanent writ of prohibition restraining
| the Mayor from removing him from ofice Mr..
| Wheeler appointed Police Commissioner on
the 3lst of December. 1875. in place Of George W.
Matsell. removed. whose term Of office would have
expired May 1. 1878. No person being appointed
fill the vacancy caused by the expiration of his term
| of Office Mr.. Wheeler continued to discharge his
duties Police Commissioner. one unsuccessful
effort having been made meanwhile to appoint
person his place. until the Of last july when
Mayor Cooper instituted proceedings for his re-
moval. The fulness given to the reports
of these proceedings before the Mayor rem
ders it unnecessary to again go over the facts
beyond that Mr.. Wheeler. claiming that his removal
was illegal. obtained alternative writ OF pro-
hibition In the Supreme Court. The question be-
fore Judge Van Brunt whether such writ should
be made permanent. AS will be seen by his opinion,
the main points of which are given below, he makes
| the writ permanent.
JUDGE BRuNr's OPINION
He says there are three questions to be deter
mined. the first being whether il the charges pre-
ferred against Mr.. Wheeler by the Mayor true
| there is sufficient ground for his removal; the
second being whether the Mayor could legally
remove Mr.. Wheeler, the latter's term of office
having expired and the vacancy existing in
| consequences not having been filed. and third.
| whether. if the Mayor had right to remove
Mr.. Wheeler writ of prohibition would be to pre-
vent the Mayor from attempting such removal. He
lays down the general principle that if incumbent
of an Office the Office means of doing wrong.
this fact forms certainly good cause for action by
the proper authorities. As to the second question
referred to above he says that its proper de-
pends entirely upon the construction given to the
twenty-hfth section Of the charter. In this
nection he says:-"The Board of Police
to consist of four members; and the Legsla-
ture seems to have been studousy anxious to avoid
the possibility of the happening of any contingency
by which the number Of persons authorized to act
Police Commissioners should be reduced. 1t
was the intention that the Board should be evenly
balanced and that the affirmative vote of three
fourths of the Board should be required before
action could be taken by it. This solicitude is
that in each case the person whose term Of
Office had expired shall hold his Office after
the expiration Of his term until person
charter Of 1878 the Mayor only had power to fill
consent consent Of the Board Of Aldermen. By tho "a net Of
1874 the Mayor. without the consent OF the Board Of
M arising & any Hass h
case OF vacancy arising from any cause other than
the expiration Of full term the statute gives
arises by the expiration Of full term
given that power because the statute had designated
who was to hold the Office until person to all the
hrmed by tho Board OF Aldermen. and this provision
having been made there was no danger Of there not
although a vacancy existed by the expiration Of the
term OF ofhce The Legislature having been SO care
full to provide tor the equilibrium Of the Board
the Mayor and Governor to destroy that which. with
SO much care. had been created by him.
POWER CONFERRED LEGISLATURE.
The fact seems to be clearly demonstrated that the
Legislature intended to give the Mayor power to
create vacancy by the removal Of an incumbent
when proper grounds existed for the purpose Of at
once. without delay. putting suitable person in
men being required in such case. But where
cancy existed by the expiration of term tho Legis
the city government should be deprived Of the right
to disapprove OF the nominees of the Mayor 1t has
been urged that in case the Board Of Aldermen would
| not confirm the mountainous of the Mayor. then the
Mayor would be entirely powerless to relieve the
city from the dereliction OF duty Of q hod-over
| officer. The answer to this suggestion seems to be
that when the Mayor makes a suitable nomination
the Board of Aldermen will confirm. and that If
sms 20 have w os sim' IN
tention that the Mayor should endeavor fill the
Office after an expiration Of term within reason-
able time and the making of one nomination with
out following it by single other nomination does
with the evident spirit of the statute.
1T is undoubtedly true that Mr.. Wheeler is liable
to all the penalties imposed by statute upon deiii,
IL proper existed, but this does not make him
liable to peculiar method OF procedure applica-
bic only to person whose term of Office has not
expired and which procedure Is for the pur-
pose Of creating vacancy when one does
therefore, that the Legislature never intended
to give the Mayor the power to remove o
hold-over officer; first because the removal OF an
officer authorized to u vacancy, aud where
a vacancy already existed there was no reason for
confirming the power; second, because il a hold
over officer is removed there is no method by which
the office can bc filled. which II pursued would not
over ocer and third because the Lesisatnre has
imposed penalty upon officer removed which
cannot under any circumstances apply to hold
over officer.
WRIT OF PRoHIBIr1os.
The remainder of the opinion is devoted to dis
power to remove Mr. Wheeler will q writ of pro-
hibition prevent him from attempting such removal?
He begins this portion Of his opiion by quoting ut
considerable length the definition given by Judge
Selden in the Quimbo Apo case of the nature and
other citations. and in this connection dwcls at
length upon the question OF Jurisdiction 1T
% is to bo observed" he says. that the
prohibition is. 1t nowhere prescribes what facts
must be before tho Court to authorize its issuance.
II contains not single restrictive word except that
the writ shall only be issued out OF the Supreme
Court. Tho Office of the writ of prohibition,
therefore, 1t seems to me. cannot be restricted
by rcsortng to a statute simply regulating the
practice upon its issuance. which statute nowhere
pretends TO intends to defend In which 1t
may be resored to-" After reciting numerous au-
thoritos bearing upon this point OF the case he
ceeds to discuss the question whether the Mayor,
in removing heads of departments or cause acts
jndicially The provision. he says. of the charter
giving the Mayor power to remove. is as follows:.
The heads OF all departments may DO re-
moved by the Mayor for and after opportunity
to be heard. The language of this section clearly
Indicates that the cause was not intended to be
merely political. because the history OF politics in
this country shows that when the executive has
the discretionary power OF removal difference In
political opinion has long been regarded sufficient
cause for removal. There must be some substan-
tial, reasonable and just cause. Such cause must
not only be alleged. but must exist"
"Tbe power of the Mayor to remove" Judge Van
Brunt continues sis for cause. after opportunity
| to DO heard. What does the opportunity to be
heard necessarily mpyY First that the party to be
removed shall DO I'M ormed of the cause. because he
mutt know what he is 10 DO heard about; and, Sec
ond, that lie shall have the right to prove by wit