New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1906-01-16
SKSDEFINITE CHARGES
NO "FISHING" EXCURSION.
Gouernor's Aduiser Says Legislature
Can't Probe State Officials.
- rslesrarh % rhe Tribune. J

!By Telegraph The Tribune
Albany. Jan 1J-Taking up the repeated !
demands from various quarters for the re-
1noval of Superintendent Kiburp Of the State
Banking Departments and Superintendent Hen {
bricks of the State Insurance Department Gov
ernor Higgins tonight. in a memorandum pre-
pared by his legal adviser asks for definite
charges by responsible parties" Such charges
will be investigated promptly. he says Mean
while he adds that legislature has not me
power to conduct a general investigation OF the
conduct of executive officials. Nevertheless ti's
opinion is rather widely held that surerintend-
ent Hendricks will not be re-appointed when his
term expires next month
The repeated declarations made IL lne last
few days. that resolutions would be htToduceo
calling for q legislative investigation of the
state Insurance and Banking departments, we're
called to the Governors attention Tonight
Yes have seen those statements said he,
.but have no comment 70 make on them. eH-
cept to refer YOU TO my counsel. ex-senator
Pound 1 think he might have some information
for you in that respect
Ex-senator Pound had prepared the following
memorandum, setting forth the legal aspect Oh
the Governors attitude:
The general investigation of the conduct IN
office of executive public officials Is not a proper
legislative function. The legislature I Ltas III no
power to remove any such officer, ana llle otlS
action it can take is to enact appropriate leg
islation to prevent the recurrence OF any I uI9
covered Irregularities which could De preNclIteu
or rendered more difficult by Legislation. IN
Deacbment by the Assembly and trial OF m
peachments by the court Ior Lhe CllslI nc ~
removals by the Senate on the recolnIhe
of the Governor while not stflctly ieslSlttINe
acts, are based on well regulated ruleS o. plp
cedure, but an Investigation lnSututeu !ol tIe
mere purpose of investigation Is not a legislative
proceeding in any sense
POWER OF REMOVAL VESTED IN SENATE.
The Public Officers law vests the power OF
removal from office Of the Secretary OF StdtF'
Controller Treasurer, Attorney General or STATE
Engineer and Surveyor, or OF any oIhceI dg
pointed by the Governor by and win lne az
vice and consent OF the Senate, In the Senate
uDOn the recommendation of the Governor
With regard to the elective State officers the
Senate has the power on such recommendation
to conduct an investigation upon cnar5eS anu
upon notice to the accused officer. and the Gov
ernor may direct the Attorney General or may
appoint any suitable person to conduct the @ tfial
of such charges before lhe senate x "OiiO
officers Law, Sec. 22.)
The Governor before making a recommenda-
tiOn to the Senate for the removal OF any of1-
Ger may, in his discretion, take proofs 1or the
purpose of determining whether such recon-
mendation shall be made There must be some
charge of official misconduct or malversatlon on
the part of the officer. Persons deefnlng lhaC
there is cause for complaint against State
officer may, i'm the first instance. present thelr
charges to the Governor and he will, if the
complaint justifies such action on his part lnst-
tute an investigation for the purpose OF deter-
the Senate the removal of such ofhcer
During the present administration charges
have been preferred against the Superintendent
of Banks in connection with but Two cases. 10
wit the closing of the Merchants Trust COM
pany, of New-York, and the German man. E'slik @ - VI
Buffalo In the first case the deposftors were
paid 100 cents the dollar: in the second case
it appeared that the Superintendent OF BahkS
had acted in accordance with his best JUGS
nent and was not guilty of misconduct or NAL
versation in office such as would justify ms re-
roOvaI No charges have been filed against the
,arir1t nT16p of
Geffnite charges should be filed against such
officer by responsible parties they would De
promptly investigated by the Governor
GOVERNOR HAS REMOVED OFFICERS
Charges against Charles H Preston. Super
intendent of Banks were investigated by re
Governor in 1893 and again in 1888. Charges
against Austin Lathrop Superintendent of State
Prisons, investigated by the Governor in
1898. The present Governor under the COnstitu-
tionaI power to remove certain county officers
has removed q Republican Sheriff. a Republican
County Superintendent of the Poor and Demo-
cratic County Clerk. There is not the slightest
reason to assume that his Investigations would
not be thorough and impartial.
The courts have repeatedly held that the only
justification for legislative investigation is that
further legislation may be framed for the better
accomplishment of the purposes OF the law.
(People ex rel Mcdonald against Keller, 80
New-YOrk 463), people against Sharp, 107
New York 427).
If this only purpose of the investigation is to
satisfy the taxpayers of the State to the
truth of the charges or to relieve a department
from reproact, the legislature has no power to
institute ii.
While the legal presumption is that the inves-
tigation is for the purpose of aiding the les1s-
ature in its duties in reference to the enactment
of necessary laws the use OF such invest on
for the purpose Of seeking for misconduct or
malversatiOn in office is against the spirit OF the
constitution and improper, even though its
avowed purpose is legislation or impeachment
If a public officer commits any criminal act
the courts arc open for his prosecution as IN
the case of a private individual. II a pubic
officer commits any act which is cause for MS
removal from office. ample provision is made
therefor legislative fishing expedition. Tor
the purpose Of suggesting. or. If possible. dis
covering some official act deserving censure or
punishment or for the purpose of making po-
iitical capital by discrediting public othcer is
unwarranted. General irresponsible and relter-
ated charges of fncompetency and misconduct
against public officials before the forum or pup
liz; opinion are easily made and hard TO be satls-
factOry defended against.
Justice to the official demands that the accu-
sation be specific before the proper tribunal ana
1!pon notice and hearing. The accused may
then be convicted vindfCated as the factS
may Justify instead or remaining under unjust
suspicion or improper protection
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