In re Nichols

On April 5, 1879, Mr. Edward Cooper, the mayor of the city of New York, made an order purporting to remove Mr. Sidney P. Nichols, one of the police commissioners of said city, from office, which act was approved by the governor of the State, Hon. Lucius Robinson, on the 17th day of the same month. Mr. Nichols asks that a writ of certiorari may issue from this court to the said mayor and governor to review their action in the premises.

The power of removal of the heads of departments in the city of New York is given by its charter (Laws of 1873, chap. 335, § 25), and is in these words: “ The heads of all departments, including those retained as above, and all other persons whose appointment is in this section provided for, may be removed by the mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the governor expressed in writing.”

On March 14, 1879, according to the papers upon which this application is founded—and neither that nor any other fact stated therein is denied—the mayor caused a written notice to be served upon Mr. Nichols, which alleged that, under the management of the board of police, of which said Nichols was a. member, the police force had become lax in discipline and demoralized, and the cleaning of streets had been neglected ; that Mr. Nichols had been negligent in the discharge of his duties, had allowed personal dissensions to interfere therewith, and that his conduct had been unbecoming his office. To these charges Mr. Nichols was to answer at noon of Wednesday, March 19, 1879, at the mayor’s office.

On the return day of the notice, Mr. Nichols ap

After this paper had been read, considerable conversation occurred between the mayor and the commissioner, in which the mayor assumed to know the conditions of certain streets from observation, and in regard to which he wished to interrogate the commissioner. To all these interrogatories Mr. Nichols answered: “If the mayor will furnish to me specifications of the charges he holds, if any, against me, and will allow me reasonable time to reply to the same, I desire to be heard.” The mayor, however, insisted on a hearing then and there, and proceeded to repeat various questions concerning the streets, to all of which Mr. Nichols gave the answer above stated. After this had continued for some time, Mr. Nichols read a paper as follows : “I am, and have at all times been ready and willing to give the mayor full information upon every subject connected with the police department or its operations, but it is not proper for me, in a proceeding in which I am denied the right of counsel, and have not been furnished with charges or specifications, to make answer which would seem to recognize, in any way, the regularity of the proceedings against me.”

After the reading of this paper, a conversation of the same tenor was renewed, which finally resulted in the mayor’s signifying his willingness to receive any further statement from Mr. Nichols, in the course of twenty-four hours, and upon this announcement, the

To this communication Mr. Nichols answered at some length, criticising the mayor’s action and asking if he appeared whether he could have specifications of the charges against him ? whether witnesses against him would be produced % whether he would be permitted to refute by testimony the charges made against him, and whether he would be allowed counsel upon the hearing \

To this the mayor made no reply, and on April 5, as already stated, issued and sent to the governor a certificate that he had removed said Nichols for the following causes:—

“First.—That under the board of police, of which the said Sidney P. Nichols is a member, the government and discipline of the police force have become lax and incapable, the police force has deteriorated in efficiency, and it has become demoralized, and that no satisfactory explanation thereof, or satisfactory excuse therefor has been made by the said Sidney P. Nichols, exonerating either himself or said board from responsibility and blame.

“Second.—That the board of police, of which the

said Sidney P. Nichols is a member, as aforesaid, has not caused the streets of the city to be thoroughly cleaned, and has not removed from the city daily, and as often as necessary, all ashes, dirt, rubbish and garbage, and that no satisfactory explanation thereof, or satisfactory excuse therefor, has been made by the said Sidney P. Nichols, exonerating either himself, as a member of said board, or said board, from responsibility and blame.

“ Third.—That the said Sidney P. Nichols, as such, commissioner of police, had been negligent in his discharge of the public duties which he was bound to perform.”

On April 7, 1879, the governor notified Mr. Nichols that he would be heard on the 9th of the same month,on the subject of the removal. On that day Mr. Nichols appeared at the Executive Chamber in Albany, and protested against the proceedings, but nevertheless, the action of the mayor was approved by the governor, on April 17 ; but on what evidence, if any, the action of the governor was based does not appear.

This full history of the proceedings up to the time of the present application, which was on due notice to the mayor, governor, and the person appointed to fill Mr. Nichols’ place in the police board, Mr. Charles F.McLean, has been related to show that the mayor in the initiation of the proceedings for Mr. Nichols’ removal assumed that the charges were well founded; that on a notice of five days, without the aid of counsel, and without the presence of witnesses, Mr. Nichols was required to establish his innocence of charges, of the particulars of which he was uninformed, to a magistrate who had prejudged his case, and that the order of removal was made either upon the assumed accurate knowledge of the mayor, or upon evidence taken in the absence of the’ accused, of the character of which

The question which this motion presents is—Ought the writ of certiorari, which, if allowed, enables the courts to decide what power, if any, they possess in the premises, and whether the removal was legal or otherwise, to issue % Its simple allowance decides' nothing, except that the questions involved are so grave that they deserve settlement by the tribunal of ultimate resort.. Wide differences of opinion do exist even in professional minds as to the jurisdiction of the courts in cases of this character, and as to the mode and manner in which the power of removal, vested in the mayor of the city of Few York, and the governor of the State,- by the provisions of the charter hereinbefore given, should be exercised; and as the present application presents all fully, it would seem to be wise to so dispose of it that all doubts should be solved, and the course of procedure in future similar cases so well defined that proceedings which must, in the interest of the good government of the great metropolis, be sometimes taken, should not fail by reason of non-compliance with the terms of the statute. As, however, various points were discussed upon the hearing, it is proper that my own views on some of them should be presented.

The provision of the charter of the city of New York (Laws of 1873, chap. 335, § 25) above quoted, if will be remembered, authorizes the removal of the head of a department thereof “ for cause ” only. The meaning of those words, “for cause,” in the connection in which they occur' is too obvious to require extended comment. If it had been intended that the power of removal should exist in the mere discretion of the officers to whom it was confided, it would have been acbomplished by the conferring thereof generally, without the addition of any words of restriction. That

This view of the charter of New York, and of the same words when occurring, as they do, in other legislative and constitutional enactments, is not novel, but, on the contrary, has oftentimes been expressed by eminent statesmen and jurists. On February 17, 1875 (see “ The City Record” of Feb. 34, 1875), the Hon. Samuel J. Tilden, then the governor of this State, wrote to Mr. Wickham, then mayor of the city of New York, in regard to the attempted removal of the corporation counsel, as follows:

“ Removals for cause are distinguishable from removals which are in the arbitrary will of the officer' vested with the power, and which have generally followed the changes of the removing power or of party ascendency. . . The principle on which the whole system rests is, that a removal in such cases must be for a substantial, reasonable and just cause. The nature of that cause it is not now necessary to discuss.....The power therefore exists to give legal effect to a removal without obeying the rule which is binding on the conscience of the functionary making it. But a disregard of that rule would be none the less a violation of right and duty. It would be the immoral power to do wrong, because the law had not disabled the officer having the discretion. In the case of the governor such a violation, if committed in evi

dent bad faith or by a gross abuse implying bad faith, would doubtless render him liable to removal by impeachment. In the case of the mayor it would expose him to removal in the manner provided by the statute.”

It is proper to state that Governor Tilden, in the letter from which the foregoing quotation has been made, assumes that the action of the mayor and governor in a case like this is not reviewable by the courts, the soundness of which assumption will be hereafter considered; but, as a whole, it is eminently worthy of perusal for its clear definition of a removal “for cause,” and for its cogent exposition of the danger and wickedness of executive action which converts a power limited by such a phrase into one resting upon arbitrary will.

The point we are discussing, however, has been judicially settled in this State in People ex rel. Munday v. Fire Commissioners ( 72 N. Y. 445 ). The relator had been removed from the office of clerk in the fire department of the city of Hew York. Section 28 of the aforesaid chapter 335 of the Laws of 1873 provides for the appointment and removal by heads of departments of “all chiefs of bureaus (except the chamberlain), as also all clerks, officers, employes, and subordinates in their respective departments,” and declares: “But no regular clerk or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation.” The General Term of this court, for the First Department, on certiorari, reversed the action of the board of fire commissioners in removing Munday from office, and the court of appeals sustained such reversal. ' Judge Allen, who delivered the opinion of the latter tribunal (p. 449), said : “ The removal must be ‘ for cause,’ and the process of removal is prescribed by statute and must be pursued. The

The case before us is even plainer. Judge Allen, in defining what “cause” for removal meant, in the-section of the statute upon which that proceeding reviewed by him was taken, was compelled to construe-it as if the power of removal was expressly stated to be “for cause” only. By section 25, however, on which the action against Mr. Nichols was taken, the only authority conferred upon the mayor is “forcauseand if arguments in favor of Ms (Judge Allen’s) interpretation of the words used in section 28 can be drawn from the fact that that section required a statement of the reasons for the removal to be filed in the department,- the same are applicable to the case before- us, for section 25 also declares, “ when

It can hardly be necessary to pursue the further discussion of the proposition that the power to remove a person from office “ for cause ” means that a reason must exist which is personal to the individual sought to be removed, which the law and a sound public opinion will recognize as a good cause for his no longer' occupying the place. Many cases establishing the correctness of this view cán be found. If the meaning claimed is not sufficiently clear as an original proposition, sustained as it is by the opinion of an eminent statesman who once filled the chief executive chair of the State, the ’judgment of our court of last resort must foreclose and end all argument.

It is claimed, however, that the removal of Mr. Nichols was “for cause” within the definition given, and for that reason the order therefor was legal. It is a fact that the certificate sent by the mayor to the governor stated reasons which, if they be true, justified action, provided the steps which the law required to be taken in their ascertainment were followed. A criminal act will justify the punishment of its perpetrator only when conviction therefor has been had under and through the forms which the statutes provide, and a removal from office, to be effectual, must follow the process prescribed for it.

This brings us to the inquiry—What should have been the course of procedure in the case before us % In the discussion of this question, which relates to the manner of removing one of the heads of a very important department in a great city, and not to the ordinary summary dismissal of a laborer or clerk, the peculiar phraseology of the act must not be forgotten. The removal must be “for cause”—i. e., for some good reason, which actually exists, and not for a false

Judge Dillon, in his work on municipal corpora

The author cites many adjudged cases, both in England and in this country, in support of his positions, which are not referred to in this opinion. They will be found to fully justify his conclusions. There is a single case, however (Murdock v. Trustees of Phillips’ Academy), which was twice before the supreme court of Massachusetts ( 7 Pick. 303 ; 12 Id. 244) worthy of special attention.

Dr. Murdock had been removed from the position of professor in the seminary by the trustees. The charter gave the right to remove for' “gross neglect of duty, scandalous immorality, mental incapacity, or any other just and sufficient cause.” In the opinion re

In People ex rel. Munday v. Fire Commissioners ( 72 N. Y. 445 ), referred to above, it will be remembered (see p. 499), Judge Allen said: “ The party against whom the proceeding is taken must be informed of the cause

In People ex rel. Garling v. Van Allen and others ( 55 N. Y. 31 ), the court of appeals expressly adjudicates one question which this application presents— the right to be heard by counsel. The case brought up for review the proceedings of a court-martial, before which tribunal that privilege had been denied. The judgment of the military tribunal was reversed, and it was held that section 189 of the •“ General Regulations,” which forbade the appearance of counsel eo nomine, was unconstitutional and void, because section 5 of article 1 of our State constitution provides for the presence of counsel for the accused “in any court whatever.'1'’ It needs no argument to prove that any proceeding initiated to remove a person from a public office before a person or body having jurisdiction to decide upon the existence of “cause” for removal, is judicial in its character, and the tribunal to which it is presented is a court for that particular purpose, and that therefore the constitutional provision is applicable. In the face of that constitutional enactment, and of the decision of the court of last resort, the order of the mayor to the policemen to remove counsel from the room, in which they were lawfully present to guard their client’s rights, was, at least, singular and extraordinary.

If the conduct of the mayor in the removal of Mr. Nichols be tested by the well established course of procedure to be observed in cases of that character, it is very clear that it cannot be upheld. There was no specific statement of charges ; the aid of counsel was denied; the proofs against the accused were not taken in his presence, nor was he informed of the nature

This brings us to the consideration of the last question presented—can this court review the action taken %

As to the right to issue the writ to the mayor, there can be no doubt. It has been so often decided, that it is no longer an open question. The following cases, and many others to be found, are directly in point:— People ex rel. Bancroft v. Weygant, 16 Hun, 546 ; People v. Board of Police, 39 N. Y. 506 ; People ex rel. Folk v. Board of Police and Excise of the city of Brooklyn, 69 Id. 468; People ex rel. Clapp v. Board of Police of the city of New York, 72 Id. 415; People ex rel. Munday v. Board of Fire Commissioners of the city of New York, 72 Id. 445. As to the governor, the question is not free from difficulty, for there are cases, and notably that of Southerland v. Governor ( 29 Mich. 320 ), which hold that the action of the chief executive of the State cannot be reviewed nor-questioned by the courts. The argument against the power of the courts, to state it in the language of the attorney-general’s brief, submitted on this motion, is: “ The powers of the State government are by the constitution divided into three co-ordinate departments—legislative, judicial and executive—each independent of the other, except in so far as subordinated by the constitution,” and

These general principles are well sustained by adjudged cases.

In Commonwealth v. Fowler ( 10 Mass. 290 ), the appointment of Fowler by the governor to the office of probate judge of Hampden county was questioned by quo warranto. In answer to the point distinctly made, that the action of the executive was above question, the court (p. 301), said: “ The other objection is that an information of the nature before us in this case does not lie against an officer appointed by the supreme executive authority of the commonwealth. And it is said that as the executive had the exclusive right of appointing, so it must have exclusively the right to determine when a vacancy in office exists, the filling of

To precisely the same effect are the following cases, each presenting the identical question decided in the Massachusetts case: Morton v. Mayor, New York Daily Register, of November 15, 1878; Hogan v. Carberry, 4 Cincinnati Law Bulletin, No. 7, March, 1879 (in this last case the governor had removed an officer and appointed another; the court held this action void); Page v. Hardin, 8 B. Monroe, 648.

The famous ease of Marbury v. Madison ( 1 Cranch, 137 ) fully sustains the positions taken in this opinion. Chief Justice Marshall concedes that “by the constitution of the United States the president is invested with certain important political powers, in the exercise of which he is to pse his own discretion, and is accountable only to his country in his political character and to his own conscience.” Certain officers, too, appointed by the president, the learned judge declares, when they act by his orders, “in cases in which the executive possesses a constitutional or legal discretion,” are beyond the control of courts. “But,” he adds, “when a specific duty is assigned by law, and individual rights

In State of Ohio ex rel. Whiteman and others v. Salmon P. Chase, Grovernor, &c. ( 5 Ohio St. 528 ), one question involved was the power of the court to issue a mandamus to the governor. Upon that question the court, per Babtley, C. J., said: “Can the chief executive officer of the State be directed or controlled in Ms official action by proceedings in mandamus ? It is claimed, on the part of the defense, that inasmuch as the government is by constitution divided into the three separate and co-ordinate departments—the legislative, the executive and the judicial—and inasmuch as each department has the right to judge of the constitution and laws for itself, and each officer is responsible for an abuse or usurpation in the mode pointed out by the constitution, it necessarily follows that each department must be supreme within the scope of its powers, and neither subject to the control of the other for the manner in which it performs, nor its.failure to perform, either its legal or constitutional duties. This argument is founded on theory rather than reality. That each of these co-ordinate departments has duties to perform in which it is not subject to the controlling

The question of the power of the courts to interfere with and annul the action of the chief executive of the State, when such action affected private rights, was, by our own court of appeals, settled in favor of its existence, in People ex rel. Lawrence v. Brady ( 56 N. Y. 183 ). Lawrence had been arrested by order of the governor of this State to be extradited to the State of Michigan, on the requisition of its governor, and had been refused a discharge on habeas corpus in the lower courts. The court of appeals, however, reversed the prior decisions and discharged the prisoner, holding that the evidence upon which the governor issued his warrant of extradition was insufficient.

Upon reason and principle, then, it is held that when the governor of a State refuses to act as the law directs, or when he acts contrary to law to- another’s injury, or when he makes an error or mistake in the discharge of a judicial duty, which the statute might have authorized another to perform, in any of these cases the party aggrieved may seek the protection of' the courts, who, in listening to the complaint and in redressing the grievance, if any exists, usurp no executive functions, but simply assert and exercise their own.

It is assumed that the action which the governor of this State was called upon to take when the mayor transmitted to him the certificate of removal of'Nichols was judicial in its character. It is true he is an executive officer, but that fact does not make every duty imposed upon him one of an executive nature. He was called upon to judge and decide whether the reasons which the mayor gave for the removal were sufficient, and not only that, but he was bound (see letter of Governor Tilden referred to above) “ to take all information necessary to enable him to decide whether he ought to give or withhold his approval of an act of removal initiated by the mayor, under the law which defines their respective powers and obliga-

A careful examination of the questions which this application involves has led to the conclusion that the court has the power to review the action of both the mayor and the governor, and that, to use no stronger language, the facts require its exercise. Whilst, however, holding that the action of the chief executive of this State is, in a case like the present, reviewable by the courts, still, respect for the high office should induce judicial tribunals to be sparing in the use of their reviewing power, when process is asked to issue to or against him directly ; and they should not, therefore, • grant a writ of certiorari directed to him unless- there is no other remedy. In the present case all the rights of Mr. Nichols can be guarded by a review of the action of the mayor. If that be reversed and held for naught the approval of the governor falls with it, for the conclusion of both the mayor and governor must stand to make effectual the i’emoval. Besides, their action is separate and not joint. Each makes a separate and independent decision, and, in my judgment, each should be separately reviewed.

The writ asked for will be issued to the mayor and is refused as to the governor, not because his action is beyond review, but because it is unnecessary, and also because one issuing to both jointly might be held irregular.