New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1909-03-06
AHEARN CAN FIGHT ON
SEVERAL COURSES OPEN.
appellate Divisions 4dUerse Opin-
ION Only on Point Of Lac.

Although the Appellate Division OF the Supreme
Court, n opinion ~ the quo warranto proceed
ings to test the right OF John r Ahearn TO hold
the Office of President Of the Borough Of Manhat-
tan declared yesterday that his election by the
members OF the Board OF Aldermen from Manhat-
tan was Illegal null and void" the Borough
President mas q number of moves open to him to
delay another removal from the office.
The decision Of the Appellate Division expressed
in an opinion written by Justice Scott. Justice
Houghton alone dissenting. was not hLal because
# was based contention over a point OF Jaw
and not Of fact Attorney General Jackson began
quo warranto proceedings 10 test the title or BOT
olgh President Ahearn early in 1903, following his
reinstatement by the aldermen from Manhattan
after his removal by the Governor A demurrer
was fnterposed by Martin ". BttletOn, counsel for
Mr.. Ahesrn. which argued in April In July
Justice Mccall rendered an opinion sustaining the
demurrer An appeal taken from this decision was
argued before the Appellate Division in February
of this year by Deputy Attorney General Prentice
The Appellate Division reversed yesterday the
decision Of Justice Mccall, with costs, overruleo
the demurrer and granted leave 20 the defendant
to withdraw his demurrer and put in answer to
the complaint of the state within twenty days If
President Ahearn decides to do this the acton
must then proceed 10 trial, because the code pro-
vides that an action Of this kind must be tried as
a matter Of right, by jury.
But Nil Ahearn may take appeal from the de-
cision the Appellate Division overruling the de
nurrer the Court Of Appeals. II Mr. Litteton
decides that is the best course to pursue mat
probably would take longer and would better serve
the purposes Of dragging the case out so that II
would the period of Mr. Ahearn's term, which
expires on January I.
In its decision yesterday the Appellate DIVISION
did pass the constitutionality OF the pro-
vision of the charter giving the Governor the right
TO remove President Ahearn, which Deputy Attor-
ney General Prentice was anxious TO have settled
Regarding this point. Mr.. Prentice said last night;
The court apparently does not pass on the ques-
ton whether The removal by the Governor was
valid. whether the provisions Of law regarding
the removal are constitutional And this would
make il possible for the defendant TO raise
those questions at some later stage Of the pro-
ceedngs I do not believe that it will be held that
the Governor mad not the power OF removal. and
that It was not legally exercised But such ques-
ton can. course. be raised unless il has already
been passed on by the court Governor Hughes. in
his opinion this phase of the case said:
In my Judgment there is warrant for an at
a prohibition of legislative authority to provide for
the removal OF the Mayor or other local officer.
assume that this legislative power exists. which
for long period has been deemed not only salu-
but essential, and has been exercised without
question"
In view Of the opinion expressed in the decision
Of the Appellate Division yesterday that the re-
election Of President Ahearn illegal. lawyers
last night said they did not see how he had leg
to stand to go before jury, although the law
gave him that privilege II he decides to fight II
preferred case and brought trial within three
months and decided probably within a few days
as the facts are largely admitted. If defeated in
this action the Borough President then might raise
the constitutionality question.
II an appeal the demurrer question is taken
to the Court Of Appeals, the argument might be
heard there the April or May term on question
of preference.
After discussing the terms OF the charter, which
provide for the removal Of Borough President
after trial charges the opinion of Justice Scott
says:
To permit the immediate reinstatement Of the
same person zone who has been removed TO the
same office for the term would nullify the
constitutional provision for removal II So It is
clearly Illegal
Il is impossible to believe that the trainers OF
the constitution and the people who adopted IL.
after providing carefully for the removal OF an
unfit officer, intended that such removal should be
rendered nuGatory by the immediate reappcintment
of the same person to I'LL out the uneXpired term
from which he had Just been removed. The dill
gence of counsel and our OWE research have re-
suited In finding case in this state. and very
few elsewhere, in which this precise question has
arisen