Evening star., 1932-09-02
Judge Staley's Decision
In Walker Removal Case

To the Editor of The Star:
This communication is not concerned
with the personal or political fortunes
of Mayor Walker, nor does the writer
assume anything as to the guilt or in
nocence of the mayor respecting the
charges against him. Its sole purpose
Is to call attention to and question the
correctness of the following statement
appearing In the opinion Of Judge
Staley.
That the act or neglect justifying
the removal must have relation to the
administration of Office during the term
which the officer is serving .. The
application OF this principle precludes
the consideration Of charges dealing
with official acts or omissions occur
ring prior to the present term OF the
officer"
Section 122 of the charter of the City
Of New York provides: The mayor may
be removed from Office by the Governor
in the same manner as sheriffs." Sec
tion of article 10 of the Constitution
provides that the Governor may remove
sheriff within the term for which
he shall have been elected"
1t will be noted that this provision
makes no reference to the time when
were committed. The question. there
fore Is: Does this provision preclude
! removal for offenses committed by the
mayor in a previous term when he is
his own successor and there has been
no interregnum between his terms OF
office?
The authorities appear unanimous in
holding that public officer cannot be
removed from office upon charges based
| upon misconduct in another public Of
! fee held by him, nor upon acts done
before election and not affecting eligi-
bility, nor upon acts committed in q
prior term of the same office where
! there has been an interregnum between
! the terms of office.
The correct doctrine and that repre-
senting the weight of authority on this
question is stated in the cases Of State
VS.. Bourgeois. As La Ann. 1850. snC
| State vs. Walsh. 109. Iowa, 1879 N. w.
! 369. The former case was proceeding
by petition to remove the defendant
from his office as sheriff for acts oi
| malfeasance. nonfeasance. etc. In the
| petition some of the acts were alleged
| to have been committed by him during
| a previous term of Office as sheriff anc
! others during his present term. The
defendant filed exceptions to the peti:.
| ton, which were sustained as to thoSt
acts alleged to have been committed BY
| him during his previous term Of ONCE
The Supreme Court Of Louisiana, In
overruling this action of the lower
court on appeal by the plaintiff, said
among other things. pages 1854. 1859
The defendant sheriff has been un-
| interrlptedly in Office since the COM
| mission of the acts complained OF
| There was by his reelection no inter.
ruption in his official tenure. At M
| time was there an interregnum. HI
| was by the constitution to continue II
| Office until his successor was elected
I and qualified He was his own success.
| sor. the identical officer in both terml
| against whom charges are preferred
. 1t is immaterial therefore. whether
| they (the offenses) were committed
| during his present or immediate pre-
ceding term Of Office. His inability tt
| hold the Office results from the commits
sion of said offenses. and at once rem
ders him unfit to continue in ONCE. TIT
| fact that he has been reelected doe
not condone or purge the ofense."
In reply to arguments by counse
that a suit under article 201 OF the con
stitution cannot be asSimilated to pro
ceedings by impeachment, the cour
! said:
4 "The effect of the conviction may b.
different, but the laws applicable to tn
| commission of the offense are the same
| The great weight of authority is tha
an officer may be impeached while II
| office for acts committed in prio
| term. The trial of Judge Barnard
| Court Of Impeachment, New York; tria
of Judge John McGunn, Court of I'm
peachment, New York: trial of Judg
Prindle, Court of Impeachment, New
York.
| And in a later case. State VS.. Hill. s.
| N. w. 794, Supreme Court OF Nebraska
/ it is stated in the opinion OF the cour
that the ruling in the case OF Judg
Barnard during his second term 10
acts committed in his first term
once had been followed in the case o
Judge Hubble of Wisconsin and on IN
trial Of Gov Butler Of Nebraska. In tnl
case the Supreme Court OF Neorask
saws in its opinion:
"There was good reason Tor overrul
ing the plea to the jurisdiction in tn
three cases lust mentioned. Each re
| snondent was a civil of1icer at the tim
! he was impeached, and had been sucl
uninterruptedly since the alleged mis-
| demeanors in ONCE were committed
The fact that the offense occurred II
the previous term is immaterial. tn
object of the impeachment Is to remov
a corrupt or unworthy offlcer. II nj
term has expired and he is no longer Il
Office that object is obtained and tn
reason for his impeachment no longe
| EXISTS. but if the offender Is still al
officer he is amenable to Impeachment
although the acts charged were com
mitted in his previous term OF the sam
office." To like effect is the case Q
state VS.. Welsh, supra. which quotes Tn
above case extensively and approvingl
and holds that an officer could be re
moved during a term for which he ha
been reelected for official misconduc
or neglect of duty during his prevlou
term.
The foregoing is submitted for wha
1t may be worth and because OF IN
general interest in the Walker Gas
throughout the United States.
ALEXANDER SIDNEY LANlER.