The Providence news. (Providence [R.I.]) 1891-1906, 1892-10-11
NEWS OF 0LNEYVILLE.
The Legal Aspect Of the Removal
of Mr.. Walch.
THE LAW INVOLVED IN THE CASE.
Does the Appointing Power Carry the
Power Of Removai-The Tenure Of
once Act-was the. Meeting of the
Council Regular.

Ine uepOslIlOu oi Joup NeiCu iIoih bio
office of highway commissioners by the
Town Council of Johnston has caused a
great difference OF opinion as to the legal
ity OF the councils action and the issues
10 involves.
The councils action recalls that Of
Mayor Goodwin OF Pawtucket, and has
been compared TO 10.
Mayor Goodwin deposed license COM
missioner on charges preferred by him
self The commissioner demanded II
hearing, which was granted. Mayor
Goodwin presided at the hearing, and
acting AS Judge admitted and rejected
what testimony he pleased, aud after
wards as jury declared the charges
proven. He entered judgment OF re-
moval from Office OF the commissioners.
Similarly the town council preferred
charges against Mr.. Walch, and Sc ting
in judgment on them declared Mr.. Walch
as guilty of having committed certain
offences and deposed him from his office.
The officer whom Mayor Goodwin re-
moved applied TO the Supreme Court for
a writ OF certiorari.
Among the numerous causes of error
assigned for the granting OF the writ
were: First-That there was no legal
cause for the removal OF the petiti oner
from his office Second-That there wa,
no evidence To substantiate the charges.
Fifth-That the mayor was incompetent
TO try the case because he had made the
charges aud had expressed an opinion
thereon.
1t follows from the decision that an
ext cutive or administrative Office or body
may remove any officer whose tenure OF
Office is fixed whose creature he is. on
any charge supported by whatever evil
dence said oliic n or body may deem COM
petent. whenever such removal is author
lied by statute. said action or removal
being final aud the sufticency of such
ties imony is not TO be passed upon by the
courts.
II is stated by some lawyers that the
opinion would be imperative here. That
in the case Of Mayor Goodwin the aD-
pointment of license commissioner and
his removal was expressly conferred by
law. But the highway commissioner 1,
not appointed by the council. such Off
Ger is elected by the people. and they fail
ing to do so, by the council under "A pro-
vision of the statutes. In other words.
the highway commissioners is not the
ere ture of the council, even though such
body elect that officer under the above
mentioned provisions of the law.
In the case of Howard VS.. the United
States the court held that The power to
appoint includes the powa- to rem owe or
su- pend unless some provision OF law in
IeIItTtS Win us lItC tACIClSS. AEalu
the case Re Eaves 80 Fed. Rep. 81 the
court held that tie power of removal is
incident To the power of appolntment
where no definite tenure OF Office is fixed
10y law.
As the highway commissioner is APP
pointed for Que year, which is a defnite
tenure OF Office the question arises would
this come under the Exception noted in
the opinion stated
The real questions at issue in the case
is whether the power conferred upon the
Council to appoint carries the power TO
remove him from Office, or whether such
power remains vested in the people, and
whether, IL the Council does have power
To remove, it can do SO in the case of an
officer wnose tenure of Office is fixed.
Primarily must be decided whether the
action OF the Council in calling the meet
ing at which Mr. Walch was removed was
n regular proceeding.
If the Courts decide that the council
does not have the power TO remove, 1t
would appear that Mr.. Walch is commits
sioner under the law laid Gown in the
opinion which says when tue appoint
ing body has not the power OF removal, il
the power to appoint mas beel once ex-
ercised it is irrevocable and the appointed
will hold Office during the term"
Tue couIcil has once exercised the
power TO appoint, notably at the time
Mr.. Walch WAS appointed falling his
election 10y the people.
lhe Statute reads at the town coun-
ellis shall have power to remove highway
surveyors Whether a commissioners of
highways is to be construed highway
surveyor is to be decided.
The trial of the case will differ from
that of Mayor Goodwin. That was heard
on process of certiorari; that will be on
appeal.
In certiorari the court will not go into
the merits of the case. Hearing an APP
peal the court will review all proceedings
That have been taken in the case by the
body which exercised its given authority.
The Case Assigned.
In court in chambers yesterday after
noon, before Judge Tillinghast, Town
Solicitor Herbert Il. Wood, representing
the town council of Johnston. appeared
in support of his motion to dismiss the
appeal of John Walch from the decision
oil the town council.
Mr.. Wood said he had not had time to
file brief, and continuing he said that
an appeal does not lie in matters of this
kind, aud he would ask that the petition
be dismissed for want OF jurisdiction.
Judge 1illinghast stated that hearing
on questions to dismiss for want of juris-
fiction should come before the full bench.
He could not decide it, His decision
could be overruled by the full bench.
u.
the hearing now. His object was to call
the Gaze TO the attention OF the court that
it might be assigned for hearing before
the jury were called.
Junge Tillinghast called attention to
the fact that the docket had been ar
ranged. He could only set it down for
hearing subject TO the assigned cases
After some discussion the cas- was see
down for Thursday, at the foot OF the
calendar.
B. NJ. Bosworth. who appeared for Mr..
Walch, ia answer to Mr.. Woods state
ment thai an appeal does not lie in mat
ters OF this kind, stated that the RHODE
ISLAND reports were full of cases where
the appeal had been SUSTAINED, aud he
quoted the statute which says when a
pers on is aggrieved by any act oil Town
Council he may appeal lherefrom within
forty days
AS TO the want of jurisdiction, Mr..
Bosworth called attention To the fact that
tue motion to dismiss was signed by
Wood and Fitch as attorneys for the ap-
pellee. aud called attention TO recent
similar case where the court remarked
tl at tue very fact OF the signing 4 such
n IN otion by the attorneys. was sufficient