New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1879-08-15

WRIT or PROHIBITION.
Arguments on the writ OF prohibition IN the
case Of Police Commissioner Wheeler against Mayor
Cooper heard yesterday by Justice Van Brunt IN
Supreme Court, Chambers EIhu Root appeared Tor
Mr. wheeler and Corporation Counsel W. c. Whitney
represented the Mayor
Mr.. Whitney made motion Quash the temporary
writ The motion being overuled, Mr. whitney read
the Mayors return TO the witt. 1t sets forth
that he Mayor Of the City Of New-York; that on May
Z. 1873 Smith Ely, jr.. his predecessor nominated
successor To Commissioner Wheeler, which nomination
was rejected by the Board Of Aldermen at the request
of the nominee and that the law indicates way for
Mr. Wheeler to rid himself OF the duties Of tue 0nice'
viz by gnng the same but that no such resignation
has be. n received.
Mr. Root addressing the Court abref outline or
the history of case leading the Issuing of the
writ of prohibition. The letter OF Mayor Cooper to MT
Wheeler, inviting hearing the charges against the
latter was read together with tile several specifications
which it contained, after whc Mr. Root proceeded to
argue his points
upon receipt Of this communication from the
Mayor" said Mr.. Root, NJ. Wheeler applied to your
Honor Tor wit Of prohibition, which was allowed
This writ based upon two grounds First that the
term of oico having pirCd there provision of
law under which the Mayor mad jurisdiction to act ana
second the socaled charges causes or removal
upon which he required by Mayor TO appear and
heard for which the Mayor has juris
term Of office has expired This written paper.
which contains what purports to be OF removal,
comes 10 us with judicial stamp upon II.
The pretence that the Mayor, sitting IN Judgment
upon the question whether there is JUST cause
Tor removal of this Police Commss Oner does not con-
stute Court and just the kind Court Tor winch the
writ was originally intended will seem absurd. The
very objcc' OF The wit Of prohibition that inferior
Jurisdictions should DE restrained within their limits
and power applies to Just tee kind OF Court which tho
Mayor constitutes in this proceeding,
'But this officer has been removed by force OF law.
D. Than
the 1t day of May ISIS. Mr. Wheeler term OF
Office expired. H. was at mat ume removed office
by force ofthe statute subject however to the require
Of the law that he should continue TO discharge
the duties Of his Office uutl person duly ap-
pointed IN his place There Il vacancy In the Of
ce. and 1t Is the duty Of the MAYOR nominate sue
cessor Yet he proposes to remove Mr. wheeler from
The statute provides that within ten days from the
time vacancy he shall nominate, ana by and
with the consent OF the Board of Aldermen. appoint
to that vacancy. The statute cannot have contem-
plated that the Mayor should exercise he powers mat
he arrugates 10 himself concerning officer whose
has expired. because the Mayor can exercise tins
power only IN Violation OF the statute. lO-lty tne
Mayor calls upon Police Commissioner 20 respond 10
alleged causes ior HE removal, when me mayor himself
that makes il possible for MIN To do So
Upon this point the Mayor replies that his predecessor
IN the Spring N 1878, sent 10 the Board OF Aldermen
the nominal ION mau VINO was un wiling 10 accept
tnc Office. /, was the duty Of Mayor Cooper on com.
Ing INTO Office, To nominate "a man w1Om toe Board OF
Aldermen would confirm Every day mat be permits TO
pass without max such nomination, lac violates the
statutes aId comllts nlsdenealor' ~ TINS GoI5e -
pursued b. the Mayor one OF two results VIII follow
ny the Board of deruen. OF mat he VAL at his option
al al times he al liberty 10 reduce tic number OF the
Board If Police IRON four To three or three Ia two, ac
cordug TO the political eXigences of tue moment;
ASK It is thu intent Of the statute tha tho Board OF
Ponce s to ne IN the Hollow OF the hand OF this or any
otArr MayOrP
The speaker hen took up the alterations contained in
Mayor Coopers letter to Mr. Vine. ler resp9clng the
handling by me latter of the moneys or the Bureau or
Equipment Under the law which provided for the uni
forming police, he claimed the receipt aid
handling Oh TIE moneys Was an independent
wheeler as a Police Commissioner had nothing TO do
Suppose" he said, Mr. Wheeler were not as he ls
n0'ent he Inninta med thar his bondsmen as Treas
urer of the Board could be held liable g. A. the concu
zion OF his argument Mr Root SAID: 81 believe that
TINS Police Commissioner litigation, throwing into dis
order aud confusion, as 1t does tue most important de
partmcut OF the cty government, should now receive
aufhorltaye judicial Diet, rmuation which Will put
is O of the
Mvor and the rights Of public officers and that VIII nut
an end forever to such spectacle have had pre-
scnted 10 us WITHIN the past four mOuth5tnat o the
office OF Police Commissioner being held de-
pendent upon the exieences OF political party and
subject 10 the viii vi political magnates"
M Whitney, III reply expressed regret that the eoun
M the subject OF the which led the removal
He contended that Mr. heeer. ny continuing TO nod
the Office receiving the salary attached the same
was liable for his acts " hod-oyer' officer
Passing on TO his argument in opposition to
the motion for tue writ, he claimed that
"the writ of prohibition can only DO issued
from superior court prohibit inferior court from
exercising a jurisdiction which does not belong
TO It, The issuing Of the writ in tins case
rs wholly unauthorized by law, whether the am
d4yts upon which it Is granted true or false"
He cited number OF cases In support OF this point
and contended that the Mayor did not occupy the posi-
ton Of court III the present 1t is undoubtedly
true" he SAID that almost every executive admin
stratlye act involves determination Of something
which calls play the same faculties exercised by
Judge Oh the bench 1t Is admitted that il it Is not found
that Mayor Cooper is judicial tribunal the writ OF pro-
hibition does not lie against MIN"
AT the conclusion OF Mr.. MAtuey's argument, Mr..
Root said 81 would like TO ASK my friend question
I'm regard TO the construction OF the statute,
and That is whether. within the intent OF the
atatute, IL the Mayor should remove hold
over officer he would nave the power fill the vacancy
which would be created by that removal without the
confirmation Of the Board OF Alderman a.
Mr. Whitney-Tnat is question have never yet coa-
sidered do not suppose he has the power 10 NIL
without the confirmation OF the Board OF Aldermen.
MIR RoOt-lhen there would be 10 vacancy
Mr. Wditney-Yes, there Is a vacancy created by re-
moyal. / not know how the question Is pertinent
here -.
Mr. Root-It pertinent here because any answer 10
that question leads 10 Il absurd conclusion.
MIR Wmtuey-The statute says that he has power 10
remove all persons appointed under that section, and
CommissiOuer Wheeler is one Of them
Mr. Root asked until the close OF this week 10 put ID
his brief. . ,.
should decided with little delay possible but as
seuted TO the request.