New-York tribune., 1902-03-23
GAYNOR DECIDES FOR GUDEN.
HE CALLS GOTERNOR ODELLS ACT OF REMOVAL UNCONS7E
TUTIONAL AND VOLD-ORDERS DIXIE TO TACATE OFFICE.
WANTS TO PROTECT GUDEN.
usTICE HOLDS HE CANNOT Re RE
MOVED FOR ACTS BEFORE HE
TOOK OFFICE.


charles Guden. who removed from the
,47ce Of Sheriff of Kings County by Governor
odeu. IS still Sheriff, according to opinion
handed down last night by Justice Gaynor. of
tbe Brooklyn Supreme Court. The opinion was
rendered in granting an application of Guden
for a peremptory writ Of mandamus to compel
Norman 5. Dixie. who was appointed to succeed
cpde, 70 turn over 20 him all the books and
naners Of the Sheriffs Office. Mr.. Dixie. under
tbe commission of the Governor. and spurred on
bv his commands. forcibly took possession of
.ba Sheriff's office last Monday, elected Guden,
and took charge Of ali the books and papers.
II is understood that Mr.. Dixie will get stay
nj Justice Gaynor's order at once and carry the
ease to the Court Of Appeals. Justice Gaynors
decision is:
IT IS found that the act Of removal Of the
elected Sheriff by the Governor was without
Jurisdiction. unconstitutional and void. and that
he is still Sheriff
The Justice reasons that the Governor has no
right to remove Guden for acts that he may
have committed prior TO his taking Office, any
more than he would have the power TO remove
q man because he had been atheist or sa-
loonkeeper before he became an official. He
speaks Of the certificate Of removal, which.
through a clerical error, stated that Guden had
been removed for "malfeasance and misfeas-
ance in Office" and said that II was untrue ana
that q court had a right to go behind the word
ing of the certificate and inquire as to whether
or not the charges it alleged we're true.
Mid censure is bestowed on Mr.. Dixie for
ejecting Guden when the case had already been
placed under the jurisdiction of the court. On
this point the opinion says:
such d lack Of respect for law and order and
such lawlessness should not be allowed to pass
unroticed in the disposition Of this case for If it
should be generally followed established gov
ernn7ent would become degraded. It is only
few weeks a go that policemen Of this city took
sides in a dispute about title TO office. and law
lessly pulled city magistrate from the bench.
II such things could be tolerated established
government could be pulled down and super
seded in a day. It is however, fair to say Of
Mr Dixie who has a fine character in this COM
rnunity, that it was stated that he acted, and
he presumably did act. under what he deemed
controlling advice or authority
SAYS GUDEN MUST BE PROTECTED.
Justice Gaynor first says that 1t is a 'pecul-
iarly irksome and delicate task to enter into
investigation OF act of the Governor of the
State and decide whether he exceeded his con-
sttusional powers: then he proceeds to justify
himself for doing it. He says:
Al the threshold Of the discussion it is urged
with force and earnestness that there is no
power in the judiciary TO pass upon acts Of the
Governor affecting individual rights at all, but
that victims Of such acts, however much they
may be in excess Of the power given to the Gov
ernor by the people through the constitution
and laws. absolutely without protection or
redress in the courts If that would
be living under a despotism. and not under a
free government. But il is not O. Such a claim
sounds most extraordinary in this day and gen
Grafton. II any considerable number shared in
IL, il would be proof that the liberties which
finally attained and handed down TO n
priceless heritage, and for the preservation OF
which careful limitations We're set official
power. are already growing dim in mems minds
and in process Of decay. 1t is a common occur
renee for the courts TO declare statutes void. It
Is true that no suit or direct proceeding may be
taken in the courts against the legislature and
Executive 10 annui such laws: but the question
OF their validity may, nevertheless, be raised
and decided in any judicial action or proceeding
between individuals. or between the State and
ar indi vidual. involving individual rights
In the same way and on the very same prin-
ciple any act Of the Executive alone may be
brought in question The Governor or King
cannot be called account by the courts, but
his acts can be questioned there
Justice Gaynor disrnisses the contention that
GGden is morally unfit for office by saying:
The personality and character of Guden sink
into irsignifcance in comparison with the vital
constitutional question involved in this case. To
refuse him protection and redress If he be en-
titled thereto would be worse and far more
dangerous TO society than anything he ac-
cused n before the Governor"
QUESTION ONE OF JURISDICTION.
The opinion then recites the history Of the
hearing before the Governor, saying that the
Charges embraced nothing against him pertain
Ing n the duties of his office or that occurred
after he went into office; therefore the question
10 be settled was as to whether the Governor
had jurisdiction TO remove Guden for alleged
acts before Guden went into Office. Discussing
this Justice Gaynor says:
Nevertheless. because the nature Of the re-
CURED charges is not specifically defined the
GAIN is SCI up that any kind of a charge-that
Is charge Of anything the Governor may
deem sufficient and done by the accused at any
llne IN his life. whether before after he came
INTO ofhce-wlll suffice. II does not seem posi-
DE 10 entertain doubt that the Governor is not
gwen any such sweeping and dangerous power
as ms To interpret the words of the const-
loton as conferring power the chief eXecu-
i've not only 10 remove officials chosen by the
people for breaches Of official duty committed
N their Offices but also to remove them for any
,,hlhg else he may fit, whether committee
before or after they got into their offices, would
te contrary 10 the development and history OF
our system Of government, and to the law and
practice n similar cases from the earliest times.
The argument on the application for manda-
mts was heard In Brooklyn last Monday, and
was made by General Benjamin F. Tracy for
Nuden and g. d. B. Hasbrouck. judge of the
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