New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1881-04-07

tim OF progressive anu lnCulhoic holtthlHS WI
the BRAN. The Governor has communicated
with the Senate. touching removal of the
Incapacitate1 officer SO that the post may be
filled anew. Leading lawyers are reported as
shaking their heads IN grave doubt whether n
removal will be constitutional. Apparently,
they view the question thus: Either the
Judge Is sane or no is insane. II hc d sane.
the supposed ground of removal does not
exist. BIT If he is insane. he cannot he re-
moved, because no person may be tried on
charges while in a state of insanity. We will
not contend against the doubts OF the lead
ing lawyers II they are limited to the posi-
tion that the specific provision Of the safe
Constitution (adopted 1860 for removal by
the Senate. on the recommendation of the Gov
ernor, NAV not bc applicable to the ease of III
sanity. Before adoption OF this provision
Impeachment was in this State as throughout
the country, the chiel WAY OF ousiing an uu-
fit Judge. impeachment is founded upon the
idea OF some offence committed 1t Is a cum
brous proceeding requiring discussion and vote
III the Assembly, and lengthy criminal Trial
b fore the Senate; and it results in penal
sentence which may include entire di~quallii-
cation for Office. Apparently, the purpose In
1869 vas TO superadd simpler, bneirr mode,
by which. Tor any adequate cause the judicial
, ficcrs embraced might be removed BY this
mode no vote in the Assembly Is ncedul. nor
need the time Of the entire Senate be en-
crossed by lengthy tnal. But. "a the pro-
vision requires that the officer shall be served
with the charges and have an opportunity Of
beng heard. "leading lawyers may be right
in doubling whether this specific amendment
affords mode of removing an insane Jud e.
The unlearned mind might suggest that cvrry
year persons are tried by inqui,ition To de-
termine whether they are sane or not. aud their
liberty ana property are siakcd on the de-
cisi0n, yet no one objects thar the inquiry Is
unlawfu l because the subject. If insane. j. un-
able 90 defend himself.
But does the amendment of S59 determine
the whole question Before tina, time. this
State had no removal by Governor and
Senate Such mode is not known. we think.
to the constitutions OF many other States. 1t
was intended rs an additional proceeding to
those already existing. Are there not other
powers IN the Constitution adcq laic 10 the
emergencyY Legislative and executive pow
ers are conferred, III broad and general terms,
upon the Assembly aud the Governor rcsprri-
lively. The Governor is directed to recommend
such measures 20 the Legislature a. he shall
deem expcdient, and TO take cure TINT the
laws are faithfully executed And it j. declared,
AZ a matter quite independent of removal upon
charges. how vacancies in the Office oi the
jndgeS, occurring otherwise than 10y expiration
ot term. shall be fi.led.' This long phrase
occurring otherwise than 10y expiration
fairly imports that there may be several
causes of "A vacancy. and that all could moi
certainly be forcscrn 10y the draughts men of
dietary Committee, TO which the Govern
or, suggestion, tho me iicd certificate.
and the doubts Of the learned LAWYERS.
bad. at last accounts, been referred,
may we'll inquire whether there IL not power.
when an officer has fallen under complete ana
irremcdiablc personal Disability. TO declare the
oiiice vacant. On the death OF an officer no
one suggests that the post cannot toe flied
anew. because the dead man cannot bc served
with "a copy Ot the charges. or given au OPP
poriunity Of being hclrd(D II the death
we're uncertain. no one would dispute the
authority of the State Government Ia ascer-
tam the tact Suppose the ca,e-such cases
have happcncd-of q judge disappearing He
has started on & journey. does not reach his
destination, and has not been beard from
Must his post stand ulfilled indefinitely be-
cause he cannot be served with charges7 Il
there not power to ascertain the probability
that he is dead. or to declare hls persistent
absence, If living, q cause OF vacancy
Even resignation may give rise to Questions.
recent instance in the Federal Courts WIS
treated in q cOmmon-sense way. An army
officer protlered his resignation. Ii was held
under 8dvisement for awhile owing 10 doubts
of his sanity, but was at length transmitted
to the President, who appointed his
successor. He afterward sued for his
pay on showing that he was, IN
fact, insane. But the Court of Claims
held. and the Supreme Court has lately AZ
6rmed the Judgment, that the insanity did not,
under the circumstances, prevent the resigna-
ton and new appointment from taking full
effect. The law has allowed and learned law
yers have defended some fiction which have
less show of reason than it would be to cay
that there is an implied resignation when an
officer becomes totally incapable of acting ana
even of formally resigning. Common sense
would be satisfied, and justice promoted. in
these cases OF inability equivalent TO death, by
declaring the Office vacant, aud proceeding to
till 1t as vacancies are filed.
So niue for tho fear Of doing injustice to
the unfortunate incumbent With respect TO
another suggeston-the fear that the title of
any successor will always be open to ques-
tion--the learning in the books on the subject
Of officers de EOsO Is Of httiA nAA2 u Gnes