New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1881-04-13
MOTIONS TO DISMISS THE CHARGES.

and took seats at long table at the north end OF
the room, where they were joined in few minutes
by their counsel. George Bliss appeared for Com
missioner French, Elihu Root for Commissioner
Mason, and Willard Bartlett and Henry w. Book
staver for Commissioner Nichols. The Mayor had
been present for time engaged in earnest con-
versation with the Assistant Corporation Counsel,
Mr. Andrews. Ex-P,lice Commissioner Wheeler was
surveying the scene calmly, apparently ndulging in
"reminiscences Corporation Counsel Whitney came
in later, as did also Captain Williams.
At quarter past IL, Mayor Grace, who had been
talking TO Mr.. Andrews wheeled around his chair so
that he faced the Commissioners and their counsel.
Are all the gentlemen here I" he asked.
Here responded Commissioners French, Nichols
and Mason.
" Are you prepared with your replies, gentlemenV
Mr.. Bliss responded to this by reading. on behalf
of Commissioner French a statement denying the
jurisdiction of the Mayor on the ground that he had
preferred the charges against the Commissioners and
was now acting as their Judge; and no man cOuld
act in both capacities under the laws and cOnsitu
tion of the State Of New York. Mr.. Root and Mr..
Bartlett also nterposed the same pleas on behalf OF
their clients.
the fact but prepared to prove it unless il is
admitted.
The Mayor-what is the fact that you pre-
. We nre prepared 70 prove that the Mayor pre-
ferred these charges against the Commissioners and
that he now assumes fhc responsibility Of acting
both prosecutor and judge, and We therefore OBJ
ject To this as Illegal
am advised that that plea is unsustainable, and
! therefore Oyerrule that objection"
Mr. 5artlett-Do understand yOu to say that
you 0vcrrule our plea without giving Ms chance to
be heardf
II am willing to hear you."
Mr. Bartlett then said IL was an uDgracious task
20 argne what had already been decided by the
courts. The objection, however. which ne made on
l.l.a lf.l( fafp uaQ I'm A.
constitution and the law. and IL was principle the
justice Of which was thoroughly recognized by all
mankind. He then cited number of cases which
sustained his view. II not uncommon for judges
tO become disqualified O ait In particular cases. he
Mayor, unfortunately or otherwise had become dis
aunlihed i'm this case aud he Ought to dismiss the
Commissioners. IL was formerly an idea entertained
i'm the Mayors Office that proceeding like the one
in progress was executive and not judicial. some
things had been learned, however, and that idea had
been abandoned.
Mr. Bliss and Mr.. Root announced that they coin
cidrd in Mr.. kartletts views.
The Mayor have carefully considered tins
objection and override IT,.
Mr. Bliss declared that he wanted his protest
recorded and Mr.. Bartlett and Mr.. Root protested
also.
THE FIRST PLEA.
The Mayor-What have you to say in reference to
the point in question:
Mr. Root wish 10 present some considerations,
which the Commissioners and the counsel for the
Commissioners think should lead your Honor to dis
miss some Of your charges and 10 modify Others.
will move therefore not 10 be formal that the first
charge and first specification under IL he stricken
ont The charge says that the Commissioners have
not perfOrmcd the duty which they had exclusive
authority Ia perform. and the specification enumer-
atrs the streets which have not been properly
cleaned from September |, 1880 10 March /, lSNl
think this charge shOuld he dismissed because tho
Commissioners are charged with failure 10 perform
a duty which does not come within their JuriSdic-
tion The language used shows that the Mayor had
i'm mind only the act of 1872. which gives the Com
mssioners the power and charges them with keeping
the streets clean. But they ale not now acting
under the act Of 1872 they are governed by that
Of 1873 y this, the duties OF the Board OF Iolice
and of the Commissioners of Police are changed IN
toto II is their duty according 10 this law, simply
Ia supervise the work of . competent officer whom
they shall appoint and whose duty IL is 10 Keep the
streets clean. This change III the duty OF the Com
mssioncrs leaves the charge of the Mayor utterly
void. The Commissioners have power only 10 super
wise the work OF thclr Snpcrntenden ana even thiS
powcr hy the law of 1873, IL divided with the
Board OF Health. II this duty is not properly per
formed it is the duty Of your Honor to hnd ont
whether the Board Of Health or the Police Conmls-
siuners are at fault And not only this, but the In
spcctor Of the leaning Bureau has his work
not only inspected by the Board OF Health ana me
Police Board but by the Finance Department OF the
city, 10 which he has 10 render an account or ms
expenses Now, ] submit that the commissioners
have NOT neglected their duty If they appointed an
Inen,nrtor whom they believed 10 be competent and
have watched his work properly. they nave done
their duty. suppose that they selected man whom
thpV believed competent IN their Dcht
suppose that he did his work well for a while, Dnt
aft.rward became negligcnt must they be charged
with the first heap of garbage found IN the streets
Suppose the Inspector is Jed away by ms Irenus pr
no1itics and does not do his work properly. sub-
mir that your Honor cannot remove the ComIils-
soncrs for this until the fact has been called 70 thr
attention and they have failed to correct or to ds-
miss their superintendent The error which your
Honor has fallen into Is in charging the Somnls-
sioners with having failed to do the Tork, whcn
properly belongs 10 their assistants. Will also
move that the second specification under chirge
first. which SAYS that yOu as Police COMMISSION
crs have failed 10 perform the duties imposed upon p
Won bc dismissed. / submit that You cannot claim
that the Commissioners have failed to act properly
when the negligence of their assistants was brought
10 their notice. IL. A..
Mayor Grace-liaVe you any moIo ho"'"' '"
Wr. Bljss-There will be more motions, but / do
not propose to present them until these nave peen
Mayor Grace-Thesc objections have been well
considered. consider the Commissioners inorai'I
as well ns legally bound TO perform these dutieS'
therefore deny the motion. . o..
do understand you TO say that you propose 10
sit here as Judge of morals, and maj 20. Poce
grant the motion on the ground that the Ioho'
Commissioners are morally responSipue
"Thc motion IL oYerrnlcd." -, ,,-,
a." desire the stenographer 70 record tho ""Soi
remark about moral responsibility"
THE SECOND CHARGE
The second charge and the first specification uhdcr
IL arroipn the Commissioners for not having eh-
forced the Sanitary Code Mr.. Root again spoke
move that this charge and specification be
stricken out but will suggest, before argSniIng SlIg
that pou that Il Honor to pf for IN rs a" TO hear
tbe Arguments of the prosecution. II
is is exceedingly difficult to argue I, against against
whispered counsel for the other sde ~, IL tnS SGose
iSI t5I 1reer to address him il he tho
caSe and your Honor TO decide It, should like to
he matter of keeping filth and garbage separate
was only an experiment tried when the contraet1rs
Brown, Devoo and Kemp Kept the streets Oh tho
besr since. But In the clause creating the Board Of
Health and prescribing its duties it is expressly
stipulated that II shall not Interfere with, or direct