New-York tribune., 1903-01-07
DEVERY OUT TO STAY.
HIS REMOVAL UPHELD.
But He May Sue for Pension g
Retired Chief Of Police.

hefT6d Ing " ot'o-
Albany. Jan 6-In decision handed down
to-day the Court of Appeals upholds the re-
movaI of William S. Devery from the ONCE VI
Chief of Police of New-York City early III iSoi-
II will be recalled that the Legislature of that
wear passed law abolishing the Board OF 70
lice Commissioners. then composed OF f'rh'
Sexton Hess and Abel, and the Office of Chiet
of Police. then filed by Devery. the statute pro-
viding for a single Police Commissioner, VINO
was also to be Chief The law provided further
thai the Commissioner should be appointed by
the Mayor but the power of removal to be ex-
ercised at the pleasure of either official, was
placed in the hands of the Governor and the
Mayor.
Devery made formal protest against his re-
movai contending that the new law was oh-
constitutional, and, hoping to preserve Whatever
legal rights he might have in the matter. de-
clined to accept any salary while serving as
Deputy Police Commissioner. an office TO whlch
he was appointed by Commissioner Murphy he
began suit to test the constitutionality of the
law and the validity of his removal, and the
Appellate Division of the Supreme Court. First
Department, decided against him. 1t was this
decision that was affirmed to-day by the Court
OF Appeals which, however. holds that Devery
may sue to recover a pension of $1,000 year.
which he claims The Court is unanimous in
reaching this decision. but disagrees on the
question of the constitutionality of the law
creating the singIe-headed Police Commission
The opinion of the court was written by Judge
Cullen. and in it Chief Judge Parker and AS
sociate Judges Martin. Bartlett, O'Brien, Hafght
and Vann concur except the question of the
constitutfonalfty of the law. Judge Haight. in
a nnemora ndrIr1, expresses the -concurrer as
follows:
We concur in the, opinion of Judge Cullen, ex-
cept as TO the parts thereof In which he holds
that the provision of the act giving the Gov
ernor power TO remove the commissioner when-
ever in his opinion the public interests SIdli 50
require and that he shall not be eligible for re-
appointment. are unconstitutional. 90 NOT pc
Iieve it necessary OF wise now to determine these
questions for if the provisions of the act should
be held invalid as to these questions. 1t would
not impair or render void the remaining pro-
visions Of the act
Judge Cullen in his prevailing opinion says:
The law seems to have been drawn with
constitutional provision prohibiting the passage
of certain local bills by the legislature con-
stantIy in the mind of the draughtsman with IN
tention that. at whatever cost of perpiexlty, tne
constitutional mandate should be complied WITH
The next attack on the validity OF the statute
IS that it violates the federal constitution, III
that it impairs the obligation of contract
Under conditions Heretofore existing, Chlef Dew
cry. if he remained chief. would at the e&pra-
ton of twenty years service be enuJled 10
be retired an annual pension OF S5.UUU. L
will not discuss the question whether the pen
sion laws constitute in any respect contract
between the city and the police force. The stat
ute does not pIrport to abrogate any right Of
the relator to a pension. II ne mas Vesteu
rights beyond the power Of legislative inter
ference he may assert them In an action to re-
cover his pension, or for damages
If we assume that the REALTORS right TO a pen
sion is contractual and also assume that tne
pension scheme was such that it was not pos
sible for. the legislature subsequently to abolish
the relators office without violating that con-
tract il does not follow that the statute now be
fore iS as
stitution-
Judge Cullen discussed at length his conten-
ton that the law is unconstitutional in It's
provisions which give the Governor the power
TO remove the New-York Police Commissioner
from Office but on which the other judges of
the court decline to pass. He says:
The fact that the legislature may Gust an in
cun1bent from office does not at all tend TO prove
that as a result of such power it may authorize
some officer other than the appointing oIHcer
to remove him from office Ihat the ts foiiC
Commissioner is a city officer cannot be denied
The Commissioner being a local ofncer dIl9
required by the constitution to be appolhtesu
by some local officer, the question presented @ 70
ms for determination is this: IS an unquallned
and absolute power of removal Vestec IN one
officer inconsistent with the eHeiclss % oL 'ii
. nower of appointment by another ofhcer! l
IF the power were given to one local authority
10 anpojnt and TO another local authority 10
ar.ay.e +bare would he no constitutional obJec-
ton to such statute, for the legislature hds :
the power to make the concuIrent deCioti H;t -
hotb local authorities necessary for appoint
ment. - 49, oo,,,er of
In the case before us, however. the power pS.+ VI
removal Is given to the Governor of the'S 'State.
IN zhony if the office is local one, the poMed
of appointment could not be conferred. IN ne :
! Craetion before us is very different from tnat
Thioh would be presented by a provision that AZ
tho Governor might remove for MISCONDUCT III
Office after notice and nearing.
! 1-rbira concluding that the provision of the
J present law is unconstitutional Judge
! says:
-. orenared TO assert that a statute
+,nizire az the Governor to remove a local OF
ser for misconduct charges and aIIeI d ni,
/ ing could not be justlhed u"oer 'i7
/ ton.
1udge Cullen also concludes that the provision
- the law which renders any incumbent "ho
NAV he removed from the office of Police Oon, ON
.;ssiorar ineligible for reappointment IS also
unconstitutional
,ov phTIENT AT LARGE.