New-York tribune., 1902-12-03
7EcrTTVE AND JUDICIAL FUNCTIONS

EXECUTIVE AND JUDICIAL FUAcIloAS-
The responsibility for the work OF the L ire
Department in this city rests upon MI. Aho0
Sturgis the Fire Commissioner. Admlnlstla'ioh
and control of it are nominally Vesteu Iii ILL
Actually however. powers, not Of review, out
of direct administrative COMMAND, seem ~ p0
vested in the Hon James Fitzgerald, one OF the
instices of the Supreme Court. The other DAY
after a trial and in the exercise of his legal au-
+bori+r Commissioner Sturgis removed on
charges Edward F. Croker, Chief or the [ lie
Depsrtuent The Chief applied to the supreine
Court nv writ of certiorari to review the pio
ceedings of his trial, see if the charges against
him were proved. and determine the LEGALITY u
his removal In addition. he secured sta!
which continues him actively Ia his command
in snite of the finding Of most serious Snort
comings in the performance OF his dutles pS HIS
sunerior This stay was granted on an eA
parte application at which the Guys interests
were not represented; and this stay, 1t Is saiu
will tie up the department until the App6hat7
Division approves the removal of Croker or re-
instates him. which may be in two months ana
may be in six
Now. we do not question the motives OF MI
Justice Fitzgerald in granting this stay Nof 90
We contend that he may not have had pfeee-
dents for his action. But they are preceoehtS
which stand for bad tendency IN our courts.
If is Incoming more and more the haolt OF ihe
judiciary 10 attempt to administer the executive
department of government, and 1t is ufhe 10
consider what it means. Already review oy tne
courts of the judgments OF ofncers upon tHei
subordinates has been carried to point "hlch
seriously hampers the execution OF peheueeh'
noIicies We are not at present concerned Win
the merits of the Croker case 1ndeed' we
think that the Commissioner showed lack OF
tact in handling II. But whether the re1no'ai
was lust or unjust. wise or unwlse, II was un-
ouestionabiy made under color OF right, ana
certainly the findings show strong prlna iacle
case against the Chief Under the law ne y GU
filled 10 review of his trial By the courts and
a reinstatement If the charges were not legally
nroyed. On that review both sides will have
a hearing: meanwhile the presumption is that
the city government is properly conducted, and
that the Commissioner. acting under color
of right has acted rightly. At least he should
he left to conduct his department and ENFORCE
discipline without interference until 1t POSITIVE
" appears that he has transcended his legal
authority.
Mr.. Sturgis has not been allowed to do this
Mr. Justice Fitzgerald, on a mere ex parte
statement, calmly shoves aside the constituted
authority and says that for the next tew
months one OF the powers of the head Of the
department as defined by law shall he shs-
pended. No such stay WAS necessary 10 pre-
vent irreparable injury TO the complaining Chiel-
If illegally removed he would be reinstated. and
get his back salary, as reinstated policemen
have done The only effect of the stay is TO tie
the Commissioners hands in the carrying OH oil
the work of his department and in the develop
rir He sri
the responsibility for that department, but his
power to take the charge of fire fighting from
n man whose mistakes and disobedience TO law.
he saws caused many deaths Is enjoined with
out hearing.
Let us see what such judicial interference
would mean in the Police Department. There
are loud complaints that Commissioner Par
fridge does not dismiss corrupt captains and n
feeling is growing that the tenure OF policemen
is too carefully guarded when the courts re-
duire proof practically sufficient TO convict OF
crime before jury to sustain the removal OF
an unfaithful incompetent man. The pres
ent difficulties faced By a commissioner In try
ing TO do his duty are almost unendurable.
What would they be II every act of the Com
missioner could be held up indefinitely by an
aggrieved subordinate with an eS parte stay:
Suppose Commissioner Partridge got track Of a
believed to exist. Suppose he suddenly dis
missed dozen or fifteen captains after trial.
They would. Of course, appeal and seek rein
statement. Meantime he would have them
temporarily at least off duty, and would break
up police partnership with crime by the aid of
trustworthy subordlnates. But IL a justice of
the Supreme Court to whom the corrupt cap
tains went. alleging that their trial was I'M
fair should interfere, and without examining
TO see if the trinl unfair-and indeed with
out power TO do so-should forbid the Commis
sioner TO displace them. we might have po-
lice department for months in the hands of
thieves and thugs, with the responsible head of
the police force tied hand and foot
That is what judicial interference to control
and overrule executive departments of govern
ment by ey parte orders means. No discipline
and no progress is possible under such circum-
stances.