The New York herald., 1879-08-09
SIDNEY ?. NICHOLS SUIT.
Judge Wsstbrook Decides to Certio-
rari Mayor Cooper.
REASONS FOR THE WRIT.
The Accused Commissioner Should Not Have
q Been Removed Unhsard.
BASIS OF THE DECISION.
REASONS FOR THE WRIT.
BASIS OF THE DECISION.
Removal for Cause Only" and
What It Implies.
NEW COMPLICATIONS AHEAD

Judge westbrook yesterday rendered his decision
In the case Of Police Commissioner Nichols. who 1t
Will be remembered. applied in June last for writ
Of certiora to review the proceedings of the Mayor
and the Governor removing him from office. The
decision is very exh austive one and will attract
widespread interest all the State in of the
nerce struggle now going on between Tapmany and
sntTammany for the control OF the Police Board.
The following is the decision in FULL
~ THE DECISION. ~
SUPREME CoURr-Albany special Term, June
1S7y-In the matter OF the application of sidney p.
Nichols for writ of certiorari to review the pro-
ceedings OF the Mayor of the city OF New York and
the Governor Of the State Of New York removing
him from the office OF Police Commissioners of said
city.
Mr.. John D. Townsend for motion; Mr.. Burton N.
Harrison for Mayor Cooper; Mr. A. Schoonmaker
Jr.. Attorney General, tor the Governor. Before
Judge Westbrook. ~ rs4tt4
iOa the 9TH day of April 1879. Mr.. Edward Cooper.
the Mayor of the city OF New York, made order
purporting to remove Mr.. Sidney P. Nichols. one OF
the Police Commissioners of said city, from office.
State. Hon. Lucius Robinson the 17th day of the
same month. Mr.. Nichols asks that writ OF Ger
ttorari may issue from this Court to the said Mayor
and Governor to review their action in the premises
The power OF removal OF the heads of departments
ip the city Of New York . is given cy its charter
Chapter 1886 of Laws 1873 section 25). and is in
these words:-"The heads OF all departments. in
cluding those retained above. and all other per-
sons whose appointment s in this section provided
for, may be removed by the Mayor for cause. aud
after opportunity to be heard. subject however. be-
fore such removal shall take effect. to the approval
OF the Governor expressed IN writing"
On the l4th day OF March, 1879. according to tho
papers upon which this application is founded
and neither that fact stated therein is
denied-the Mayor caused q written notice to be
served upon Mr.. Nichols. which alleged that under
the management of the Board of Police OF which said
Nichols was member, the police force had become
lax in discipline and demoralized aud the cleaning
OF streets had been neglected. that Mr. Nichols had
been negligent in the discharge OF his duties. had
allowed personal dissenslons to inter- ere with the
had been unbecoming his Office. TO these charges
Mr.. Nichols was to answer at noon OF Wednesday,,
March 10. 1879, at the Mayors Office.
On the return day of the notice Mr.. Nichols
peared before the Mayor with counsel and desired to
Be heard through them. which the Mayor refused.
Mr.. Nichols in writing protested against the assup-
ton Of the Mayor contained in the notice served,
that he WIS guilty Of acts justiiying his removal
before = hearing had been had, and also that the
charges not specific, and no sufficient opportu
nifty had been given him to be heard. He further.
generally aud specifically all charges contained IN
MR. NICHOLS pxsRE TO BE HEARD
After this paper had been read considerable con-
versxtion occurred between the Mayor and the Com
missioner in which the Mayor assumed to know
and in regard to which he wished to inerrogate the
Commissioner. TO all these interrogatores Mr..
me- specifications of the charges he holds. If
any, against me, and Will allow me reA-
Ss"ts :rs to be hesrd rha Mayor howeSsr insisted
upon hearing then and there. and proceeded to re-
PEAT various questions concerning the streets to all
OF which Mr. Nichols gave the answer above stated.
After this had continued for some time Mr.. Nichols
read paper folows:-"1 am and have ut all times
been ready and willing to give the Mayor full In
formaaion upon every subject connected with the
Police Department or its operations but 1t is not
proper Tor me. i'll proceeding III which am denied
with charges specifications, to make answer
which would seem to recognize IN any way tho regu-
larity OF the proceedings against me-"
After the reading OF this paper conversation OF
the same tenor renewed. which finally resulted
any further statement from Mr.. Nichols in the
course OF twenty-four hours. and upon this an
nounccment the Mayor said:-"rhe matter Is closed
to Mr. Nichols" On the Sd day of April, how
ever. the Mayor enclosed printed copy OF the Ste
n,osrnpsners lsa notes OF the interview Of, Of March
foregoing statement Is made) accompanied with
anote declaring he would give Mr.. Nichols further
opportunity to be heard on April g. 1872 aud that he
1.-THE Mayor would then receive any statement, ex
pasnstion or argument in writing" The Mayor
further wrote-"In the absence of further
or explanation by you and upon the statements OF
cause heretofore made by me to you. IL the record
shall remain unchanged, I shall transmit the same
together with certificate Of your removal from the
ONCE OF Police Commissioner. to the Governor for
his approval
10 ,his communication Mr.. Nichols answered at
some length. criticsing the Mayors action and ask
tng II NE appeared whether he could have spec.iica
tfons or the charges against him? Whether wit
nesses against him would Dc proauced? Whether he
would he permitted to refute by witnesses the
charges mAue against him? And whether he would
be allowed counsel upon the hearingY
Tc this the. Mayor made no reply, and on the 9th
OF April. as already stated. issued and sent 80 tine
Governor certificate that he had removed said
Nichols for the following causes:-
Ix-That under the Board of Police. of which tho said
pine 81 the police force have become lax aud
the police do,erorased in efficiency
tons therso therefor
q said Board irsn aud blame
ss~ssLIhs. the hoard OF Police OF which the said s,d
wsets et tna city Oe thoroughly cleaned aud has
sshss Dirt ana gafcsse aud no sassfactory
ssen mss s % sa ar has
either himself member of said Board, said Board
IIdT"s;, ,I, sad siaasy r Nichols such co%nI
sonsr OF Pocc has Dcen Negligent In discharge OF the
public duties which he was bound To perform.
COMMISSIONER REMOVED.
On the 7th ot April, 1879, tile Governor notified Mr..
Nichols that he would be hoard tho 9TH Of tho
month the subject of the removal On that
day Mr.. N.chols appeared ut the Executive Chamber
neless the action the mayor approy led
by the Governor On tho 18th OF April; bnt on what
evidence. II any. the action OF the Governor was
This full history Of the proceedings up to the time
Of the preseut application. which WAS ON due notice
to the May and the person appointed to
AL Mr.. Nicnos' place IN the Police Board. MIR.
Charles Macean. has been related to show that the
Mayor I'm the initlatIon the proceedings tor Mr..
Nichols removal assumed that the charges were
we'll founded that "a notice D. nvo days. without
the aid OF counsel and without the presence OF wit
nssses Mr. Nicnois required to establish his iii-
nocence of charges, of the particulars of whicn he
was uninformed. to magistrate who had prejudged
his case, aud that the OF removal was made
either upon the assumed accurate knowledge or The
Mayor or upon vidence taken in .he aoscnce of the
accused, OF tho character OF when he was unln-
formed and TO rebut which, by reason OF Its careful
conccalment was simply impossible.
The question winch this motion presents IL,
Ought the writ of certiorari which, IL allowed. en-
abes tho courts to decide what power IL any. they
possess In the premises. and whether the removal
was legal or otherwise, to issuep Its simple allow
Ance decidos nothing, except that the questions In
volvsd are SO grave that they deserve settlement by
the tribunal OF ultimate resort Grave differences of
opinion do exist even i'll professional minds Us TO tile
jurisdiction v the courts in oi ths character.
and as to the mode ana mauLer in which the power
of removal vested in the Mayor OF the city of New
York. and the Governor OF the State, by the provi-
OF the charter Lerenbeiore given should be
ercIsed and as the present application presents all
fully, IL would seein tosDe vase to dispose OF II
that all doubts should be solved aud the or
procedure IN iuturc similar cases we'll defined
that proceedings which must, IN the interest Of the
good government OF the great metropolis. be some
times tax en-, should not fail by on non-com-