The Providence news. (Providence [R.I.]) 1891-1906, 1892-10-10
NEWS OF OLNEYVILLE.
The Legal Aspect Of the Removal Of
Mr.. WaIch.
The LAW INVOLVED IN THE CASE.
Does the Apro Uniting Power Carry the
Power OF Removal = The Tenure of
once Act-wss the Meeting OF the
Council Regular.

n
Office of highway commissioners bv the
Town Council of Johnston has caused a
great difference of opinion as to the legal
fly of the councils action and the issues
1t involves
The councils action recalls that OF
Mayor Goodwin OF Pawtucket, and has
been compared to It.
Mayor Goodwin deposed license COM
missioner on charges preferred by HIM
sclf The commissioners demanded a
hearing which was granted. Mayor
Goodwin presided at the hearing, and
acting as judge admitted and rejected
what testimony he pleased, and after
wards as Jury declared the charges proven.
He entered Judgment OF removal from
Office OF the commissioners.
Similarly the Town Council preferred
charges against Mr.. Walch aud setting In
judument 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
. writ of certiorari Among the numer-
ous causes Of error assigned Tor the
granting of the writ were: First-That
there was no legal cause for the removal
Of the petitioner from his Office. Second
That there was no evidence TO substan-
tiate the charges. Fifth-That the Mayor
was Incompetent to try the case because
he had made the charges aud had ex-
pressed an opinion thereon.
The Supreme Court in its opinion dis
missing the petition says, with reference
TO the errors assigned the court, Is of
opinion: First-That the charges made.
II sustained. constituted legal
cause for removal Second-Theree
was evidence In support Of some OF
the charges, although as TO other char ges
there was none. The respondents find"
ing did not cover all the charges, but IL
specified some grounds OF removal which
were not included in the charges origin
ally made Leaving these out OF consid-
GRAFTON, the first cause of removal set
forth BY the respondent In his finding,
that of improper conduct as a license
commissioner Is a competent cause, and
the sufficiency of proof thereof is not re-
viewable by this court, as the record dis
closes testimony tending TO prove the
charge; 5th, the authority to remove
commissioner Is expressly committed by
Public Laws, Chap. sic. Sec. 8. to the
mayors Of cities. The respondent, there
FORE was the only person who
could exercise this power The So
called preferring Of charges was sim
ply giving to the petitioner
= statement or notice or the ground upon
which the proposed action would be based
for the purpose of enabling him to meet
them In defence. 1t did not disqualify
the mayor from hearing the testimony
and acting thereon. The expression of
opinion appears to have been previous
letter OF removal without notice or hear.
ing, which the mayor recalled. From
these considerations it follows that as a
legal cause for removal supported by
competent testimony is disclosed by the
record, q sufficient warrant for the action
Of the respondent appears and the pro
cecding cannot be quashed. even though
there may have been error in other re-
spects. The petition for the writ must
therefore oe dismissed.
1t follows from this decision that an
executive or administrative Office or body
may remove any officer whose tenure OF
of1ce In fixed whose creature he is, on
any charge supported by whatever evi-
dence said off1cer or body may deem COM
petsnt, whenever such removal is author
ised by statute. said action of removal
being nnal and the sufficiency of such
testimony 10 not to be passed upon by the
conr:s.
The uppermost question in the average
mind IL the application of this opinion TO
the case Of Mr.. Walch. Lawyers are di-
opinion VII bear upon this case There
are several Interesting points to be de-
cidsd, and very probably they will be
raised.
II II stated by some lawyers that the
opinion would be imperative here. That
In the case OF Mayor Goodwin the APP
pointment Of license commissioner aud
his removal was expressly conferred by
law. But the highway Commissioners is
not appointed by the council. Such Off
cer 10 elected by the people, and they fail
1ng 20 DO 80. by the council under pro.
Vision OF the statutes. Iu other words.
the highway commissioner is not the
- N n
body elect that officer under the above
Uentioned provision of law.
In the case of Howard VS.. the United
states the Court held that The power to
appoint includes the power to remove or
euspend unless some provision OF law in
terferoe with its free exercise" Again In
the case Re Eaves 30 Fed Rep. 81 the
court held that the power of removal is
Incident to the power OF appointment
whore no definite tenure Of Office is fixed
by law.
A the highway commissioner is ap-
pointed for one year, which is definite
tenure Of Office the question arises would
this come under the exception noted in
the opinion stated.
The real question: at issue in the case
ID whether the power conferred upon the
Council TO appoint carries the power TO
romove 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
oficer whose tenure of Office is fixed.
Primarily must be decided whether the
action OF the Council in calling the meet
ing at which Mr.. Waich was removed was
. regular proceeding.
IL the Courts decide that the council
does not have the power TO remove. il
Woula eppesy that Mr.. Walch Is commits
eioner under the law laid down I'm the
Stclon which says when the appoint
tng hcSy has not the power Of removal, il
the power to appoint has been once ex.
ercised II is irrevocable ana the appointed
Will hold Office during the term.
The council has once exercised the
power to appoint, notably at the time
Mr. Walch was appointed falling his
election by the people.
The Statute reads that the town coun-
els shall have power TO remove highway
surveyors. Whether commissioner OF
highways is TO be construed a highway
surveyor Is TO be decided
The trial Of the case will differ from
that Of Mayor Goodwin. That was heari
on process Of eertiorari; this will be on
appeal
IN certiorari the court will not 20 into