XXXVI.

ON the 3d of February, 1875, William H. Wickham, then mayor of the city of New York, wrote to Governor Tilden that he had removed the Corporation Counsel, Mr. E. Delafield Smith, because of "his failure in the performance of, and his personal unfitness for, the duty of prosecuting the city's claims against William M. Tweed and others; his refusal to institute proceedings to enforce the claim against Henry Starkweather and others, with the publication of his pretext for so doing; and his disregard of the rights of the city in cases where it is defendant, and which he has, by express consent or by neglect of opportunities for active resistance, allowed to be sent for trial before referees instead of before a jury, the appropriate tribunal." The Mayor, in another communication of the same date, assigned his reasons for the removal of Mr. Smith, and charged him with having been appointed to office in the autumn of 1871 "under extraordinary circumstances, and by persons, all of whom at that time stood charged with, and some of whom have since been proved to have been guilty of, literally stealing enormous sums from the municipal treasury," and that although three years have passed since the Ring suits were begun, he had made no real progress in prosecuting them.

Reference is next made to the alleged refusal of Mr. Smith to institute proceedings against Mr. Henry Starkweather, formerly head of the Bureau for the Collection of Assessments in the Street Department, to recover the sum of $130,000 of public moneys which he and his associates retained, and also to the fact that he sent cases in which the city was defendant to a referee instead of to a jury.

The Mayor also notified the Governor, in two communications dated February 3, that he had removed the fire commissioners for "cause."

The Governor replied to all the above communications on the 5th in a letter in which he stated that it was proper, always prudent, and might often be necessary that he should inspect all the allegations of the parties, the proofs, if any taken, and the documents which might throw light on the case. He therefore requested the Mayor to transmit all the papers to

him.

On the 10th the Mayor sent a reply to the Governor, in which he stated that he had performed his whole duty in the matter, and was advised that the Governor had no power to require more at his hands.

This challenge from the Mayor imposed upon the Governor the necessity of examining and defining the respective powers of mayors and governors in the exercise of the delicate and solemn duty of removing " for cause." The results of his examination were embodied in the following letter to Mayor Wickham.

THE GOVERNOR'S POWER OF REMOVALS FROM

OFFICE FOR CAUSE.

EXECUTIVE CHAMBER, ALBANY, Feb. 17, 1875.

Hon. William H. Wickham, Mayor of the City of New York: SIR, Your messenger delivered to me the papers in the removal cases, at my house, at about six o'clock in the evening of February 4. As he informed me he should return by the 2.40 train of the next afternoon, I told him if he would call at the Executive Chamber at 12 M. the answer would be ready. In the mean time I looked over the papers and saw that other information might probably be necessary, and at the time appointed gave him my letter of February 5. On the 11th instant I received a communication from you setting up the novel theory therein contained as to my duties. Desiring to reply to it at as early a day as my current official engagements would allow, and as was consistent with the necessity of my sending to New York for some papers involved in the discussion, which were yesterday received, I will now state my conclusions. The questions are two:

1. The nature of the removal for cause, as it exists under the Constitution and laws of this State.

2. The nature of the duty of the governor, in giving or withholding his approval of a removal, under Section 25 of Chapter 335 of the Laws of 1873.

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

Causes of removal.

the changes of the removing power or of party ascendency.

The system was devised in the Convention of 1821 by Daniel D. Tompkins, Rufus King, and other foremost statesmen of the time, specially for the case of sheriffs, and was applied also to county clerks. The Constitution of 1846 extended it to district attorneys and coroners. It has been applied by constitutional provision and by statute to many other cases. Its original object, doubtless, was to reconcile the necessary accountability to the State with a dispersion of the appointing power to the localities. Incidentally, it gave the minority a representation in public trusts, and exempted the mass of important local offices from change of their incumbents before the expiration of their terms on every fluctuation of party majorities in the State.

The council of appointment under the Constitution of 1777, consisting of the governor and four senators, had the appointment and removal at will of nearly all the local officers in the State, numbering nearly fifteen thousand, when our population was but one third of its present magnitude. That council became a public opprobrium, and was abolished by universal

consent.

To-day the one hundred and eighty sheriffs, county clerks, and district attorneys within the State, and at least two hundred and fifty other officers, are removable by the governor, subject to no restriction but "giving to such officer a copy of the charges against him and an opportunity of being heard in his defence." For fifty-three years this system has operated successfully in this State. These important officers have felt safe in the performance of their duties and in the tenure of their offices when the power of removal was in the hands of a political adversary, against whom they were waging an active political warfare. They have been free to exercise as fully as other citizens their rights in all party controversies.

The rule which binds the conscience of the governor in the exercise of this vast power has been hitherto respected. I do not intend to impair its authority, or in any other respect to lower the standard of official honor or public morality. 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.

It is true, as elaborately argued by you, that the judgment in such a case of the officers vested with the power of removal, as to the cause alleged, is not subject to review by the courts, for the purpose of reversing that judgment or reinstating the person removed. 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 evident 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. But inasmuch as in many instances removals might be wrong, without involving proofs leading to such consequences, a check on the removing power has been frequently established by requiring the concurrence of some other independent body or functionary. In many cases the concurrent action of the governor and Senate is required; in others the concurrent action of the Senate and Assembly.

I have been thus explicit in stating my views on this subject in order to illustrate the grounds of my dissent from a construction of my powers, and yours which would practically convert removal for cause into removal at arbitrary will. These conclusions, the reasons for which are now explained, have been stated to you on several recent occasions.

The charter of the city of New York provides that the removal of the heads of departments made by the Approval by the mayor shall be "for cause," "after opportunity

governor.

to be heard," and "subject, however, before such removal shall