New-York tribune., 1909-10-30
MR.. AHEARN LOSES
ELECTION ILLEGAL.
SAYS HIGH COURT.
Judges DiUided- Decision per
Se Doesn't Dust Borough
President.

@1iNaiS' Oct. ZS.-John Z. Ahearn was ille-
s'hy elected to the office of President OF
.iie borough of Manhattan, New York City.
oy the Board of Aldermen after he had
been removed from office bv Governor
Hughes on charges, according to decision
by the Court of Appeals handed down to-
day.
Governor Hughes found Ahearn guilty OF
charses OF misconduct in office. Following
mis- removal, the Board of Aldermen re-
elected him for the term for which he had
teen originally elected Quo warranto pro-
ceedings were begun by the Attorney Cen
eral to GUST Ahearn from office. Supreme
Court Justice Mccall decided in favor Of
the Borough President but the Appellate
Division reversed Justice McCaIIs decision
and is sustained by the Court of Appeals.
President Ahearr's term expires on Decem-
ber 81 next.
SIMPLY LAYS DOWN THE LAW.
The Court of Appeals has gone no fur
ther than to lay down the law in the case.
and its decision does not of itself put
Mr.. Ahearn out of office Civic organiza-
tions in their complaint to the lower court
demanded his removal as Borough Presi-
dent on the ground that he could not be
elected TO succeed himself after having
been removed by the Governor.
Ahearn's lawyers demurred to this COM
plant on the ground that it did not state
a cause of action. and it is this point that
has been passed by the Court of Ap-
peals. The court points out that a cause
of action is stated in the complaint, and in
! doing so establishes the law that Ahearn
| could not be named to succeed himself
| after his removal by the Governor. Now
the proceeding to declare Ahearn's ap-
| pointment to succeed himself Illegal must
proceed as originally begun. 1t is there
fore possible that Ahearn may prevent
final judgment being entered until after
| his term expires.
| The Court of Appeals was divided in its
| decision, Judges Hiscock, Edward T. Bart
lett and Gray each wrote opinions affirm
| ing the order of the Appellate Division
| Judge Werner concurred with them. Judge
| Cullen wrote the dissenting opinion and is
concurred in by Judge Chase. Judge Will
ard Bartlett did not sit.
THE PREVAILING OPINION
/ Judge Hiscock. in the prevailing opinion,
says:
1t is, of course, plain that the Legislature
intended that the proceeding should be
serious one and an effective method of get
ting rid Of unfit public officials. 1t is
/ equally clear, and will doubtless be so con-
| ceded in anything which may be said or
that this purpose will be frustrated and
the administration of the law turned into
farce If under it official may be immedi-
ately reappointed and a removal turned
into a mere temporary suspension. In or
der to avoid such a result and keeping IN
mind the purposes of the statute, we are
justified in my Judgment. in constituting the
removal for which it provides as meaning
a permanent and lasting custer OF the in
cumbent from the office which he had oeen
filling and whose obligations he has been
found unable or unwilling to discharge.
Judge Gray says:
TO assert that the power to reinstate ex-
listed because not restricted in words is TO
make of the legislative act vain anu
foolish thing.
nate and re-elect him to new and COM
plete term of the Same ofnce does not al
feet this conclusion. The implied right TO
hold Cffice as an attribute CT citizenship IS
not negatived by holding that the oHclaI
removed from office for maladmlnlstratlon
under authority Of a statute may not be
reinstated in his office by the exercise or
power OF another department OF the mu-
nicipal government. The rights OF cltlz ms
are subject to such limitations as the peo.
ple may see fit to impose in the interests or
coed government.
Judge Edward 7. Bartlett says:
The manifest purpose was to provide
| summary way for removing from otice for
the remainder of his term an unworthy
official and the Governor was selected 10
exercise this important power.
JUDGE CULLEN DISsENTs.
Chief Judge Cullen, in a dissenting opin-
ion, says he has no doubt that the statute
under which the Governor removed Ahearn
from office is valid and constitutional but
holds that in the absence of a prohibition
prescribed by statute the courts should
not saw an elective officer is ineligible for
reelection.
he Of
against allowing an officer who has been
removed from his office to be again elected
or appointed thereto" says Chief Judge
Cullen. "They are cogent, but they should
be addressed to the Legislature, not to the
courts
He holds that for the court to declare a
disqualification not enacted by the Legls-
lature or by the constitution is mot to de-
clare the law, but to make tie law"
Despite the decision of the Court of Ap-
peals. which holds that Borough President
Ahearn was illegally elected, there is
strong probability that, through the laws
delays" he will serve out his term. Mar
tin w. Littleton is confident that Mr.. Aheara
will be in Office until the end of the year.
When seen last night he said:
1 expect Mr.. Ahearn will serve till his
term expires. l CerIainly snail take du-
vantage of all the available resources TO
enable him to serve out his term. One OF
these resources is the twenty days time
OF oIdlnarily accorded in which TO file reply
70 the entry of the order OF the court.
am sure that by the time all the forrnalltles
have been complied with the end Of the
wear will have been reached.
When the case IS sent back to the trial
term it is likely that | shall appeal for a
new trial Cn two points--nrst, that the
Governor had no constitutional right 10 re-
move Ahearn; and. second. that if the
Governor did have such right the allega-
tIon against Ahearn did not warrant such
action. These two points will have TO be
tried by a jury.
MR.. PRENTICE REPLIES.
When Ezra P. Prentice. Deputy Attorney
General, saw Mr. Littleton's statement he
said:
1t is possible that Mr.. Littleton will be
able 70 keep Mr.. Ahearn in Office until
the end Of the year. As soon as receive
a copy Of the opinion ] shall know whether
the court gives Ahearn twenty days time
on the entry of judgment. II IL does not
I shall move AT once for entry Of iudg-
the custc mary twenty DAYS and after that
he is likely to want another extension.
II have not been officially informed ot
the action of the Court of Appeals" said
the Mayor ''but If the service of the de-
cision removes Ahearn from Office my posi-
ton was good law at the outset. am un-
cer+,gp vbAtber the decision Of the Court -