Evening star., 1932-08-22
WALKERS COUNSEL
WARNS Of CONFLICT
Curtin Expresses View In
voIving Violence as Court
Adjourns Session.
Continued From First Page)


to time to rephrase Curtin's statements
and say:
is that what you mean?"
Curtin discussed section l22 OF the
New York City charter which pro-
vides for the removal of the mayor by
the Governor.
Cites Home-Rule Pr0viso.
''Now that act" Curtin said, "if it is
any good at all, will have to be good
under section 7. article 10 OF the con-
stitution" (the home-rule provision:
1t says the Legislature shall provide
by law for the removal for mlSconduct
Of officers whose duties are not Local
or legislative and who are not elected
at general election. The attorney
added that Walkers duties ere local.
s'Whet Is removal?" Curtin asked.
"What kind OF jurisdiction is required?
I don't think anybody will question
statement that it Is either judicial or
an executive act.
AN executive couldn't remove With
out some kind of hearing, and OF
course the proceedings are judicial.
When a judicial hearing is over. the
executive issues an order and that's
where the executive angle comes In.
Council Powers Cut.
Beginning in l777. the scheme in our
State seems to have been centraI
council that made all the appointments
and finally was granted power OF re.
noval. The council had about 1900
emploves. and both Cows. Clinton and
Jaw complained about the evils grow
ing out of the patronage"
In 1921. Curtin said. constitutional
convention took away some OF the vast
powers OF the central council and placed
removal in the Legislature.
Section 7 of Article 10 of the consti-
tuition as 1t now stands waj adopted by
the convention of 1846, Curtin observed.
"At that time there were in New
York only nine incorporated cities, Al
bany. Brooklyn, Buffalo, Hudson.
Rochester. Schenectady. Troy, Utica
and New York City" he continued.
Before the section was adopted
list of these incorporated cities, was
sent for. indicating it was certainly In
tended that the mayors should be ex-
empted. Up to that time there was was
no cne given the power to remove. But
in the constitutional convention OF 1867
there was an attempt made.
Quotes Convention Minutes.
Quoting from the minutes OF that
convention, cne of the speakers, curtin
said. declared:
why, sir, you virtually would put
the cities of this State in the power
Of the Governor"
The removal clause was lost, curtin
pointed out.
THE audience in the court room
laughed and so did Justice Staley, when
Curtin exclaimed: Now, your excel-
lency-I mean your honor-lts gettihs
tn be a habit-it all hinges on whether
section T. article 10, was grant Oh
power or a liplitation OF power:
n section 122 is unconstitutional, the
Governor has no more rights in this
case than the average man In the
streets. If, therefore, he conoucts
bearing and attempts to remove the
nneyor. we have recourse to the courts
Curtin said. Mo man Is above the
law. no matter what his position
Hearing Held Necessary.
Assuming the Governor Is acting
within. his jurisdiction" the mayor S
counsel continued, IT submit my second
point. We contend that unless the
Governor has allowed the mayor Ger
tain rights, even before such near
ing is started, he can't act"
He held the whole matter Of the Gov
ernor's Jurisdiction should have been
argued and settled in the courts before
the hearing began.
Curtin contended the mayor had
not been given an opportunity to face
his accusers.
Even in a summary court-maitlal,
the soldier who might be shot IN an
hour has a right TO be conironteo py
his accusers," he cried.
MY demand was, and now Is, tnaI
if you have witnesses upon whose testi-
mony YOU expect to make an oroer-
produce them. bring them in' ana ie'
us have a look at them.
Governor Files Brief.
A brief fled with the Supreme Court
by the attorney generals ONCE repre-
ssntinR Gov. Roosevelt in the oouple
attempt of Walker and Bronx county
man to. halt the proceedings, defnltely
CHALLENGED the right of Justice Staley
to stop the Governor from acting.
The brief, made public last night by
Epstein, said:
1T is the unqualified position Of the
Governor of the State CT New York that
the court has no jurisdiction over the
person CT the Governor in the exercise
of his official duties and, furthermore
no jurisdiction over the performance OF
an executive act, which Is the subject
matter of the instant proceeding Cthe
application for an order CT prohibition
to stop Roosevelt from continuing action
in the case).
III we perversely or corruptly do an
intentional wrong, the Constitution has
provided the only remedy, which is i'm
peachmcn
The argument was prepared not only
TO answer the plea of Sidney s. Levine,
counsel for George Donnelly OF the
Bronx Chamber Of Commerce on Fri
day for an order Of prohibition, but TO
meet with some degree the similar ap-
plication Of Curtin.
Based on Two Points.
Mr.. Epstein. who prepared his brief
after a long conference with the gov
ernor. rested his case on only twc
points the challenging OF the right OF
the courts to act and the assertion thal
the removal proceedings undertaken by
Mr.. Roosevelt were entirely legal. IN
confcrmance with the Safe constltu-
ton and the Greater New York charter
Levine declared that it was not th'
intention of the trainers OF the State
constitution to allow removal power tc
rest with the governor, but that II wa
supposed to repose in the people anc
that they mad not By enactment Of any
law. relinquished that power to tbs
governor.
The section Of the Greater New Yorl
charter. on which Roosevelt'S counse
rested his argument, Levine said. hat
been superseded and repealed by al
amendment to the State constitution
which precluded removal of the mayo
by the governor.
The governor, said Levine, is not i'm
mune from court action to prevent hin
being restrained from acting
GIRL, 5, HURT IN FALL