New York County NyArchives Court.....People, Ex Rel Alexander Shaler Vs. Mayor 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALEXANDER SHALER v. THE MAYOR, 
ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK.

Removal from office by the mayor of New York — grounds thereof — he is not 
precluded from so doing, where the act complained of is a crime, until a 
criminal conviction thereof.

The provisions of section 108 of chapter 410 of the Laws of 1882, the New York 
consolidation act, providing for the removal by the mayor, for cause, of the 
heads of all the departments of the city government, subject to the approval of 
the governor, authorize the removal of the president of the board of health of 
that city for a violation of the provision of the consolidation act, that no 
head of a department shall be interested in the purchase of any real estate 
taken by the corporation, and shall, on conviction thereof, forfeit his office 
and be punished as for a misdemeanor.

The mere fact that an officer guilty of such an offense thereby subjects himself 
to an additional punishment does not prevent his removal by the mayor for such 
act.

The cases holding that if an act is criminal, so that a conviction or acquittal 
in the court will determine the guilt or innocence of the accused, there must, 
before the removal of such party from office, be a conviction of the criminal 
act, but that otherwise there may be a removal without or independent of such 
conviction, are not dependent upon or decided under statutory provisions such as 
are contained in the New York consolidation act.

People ex rel. Fitzpatrick v. French et al. (32 Hun, 112), followed.

Certiorari to review the action of the mayor of the city of New York in removing 
the relator from the office of president of the board of health of that city, 
issued under an order made at the New York Special Term July 5, 1887.

Elihu Root, for the relator.

W. L. Turner, for the respondent.

Van Brunt, P. J.:

In June, 1886, the relator was president of the board of health, an office 
established by the consolidation act, relating to the city of New York, and, 
consequently, an officer of the corporation. While occupying this position the 
relator became interested in the purchase of real estate taken by the 
corporation, and for this cause, amongst others, proceedings were instituted 
against him and he was removed by the mayor.

In the above statement it has not been thought necessary to state the various 
other charges made against the relator, but to state simply and concisely the 
proposition upon which it is proposed to determine this application. By section 
108 of the consolidation act the heads of all departments * * * may be removed 
by the mayor for cause, after opportunity to be heard, subject, however, before 
such removal shall take place, to the approval of the governor, expressed in 
writing. There is no claim upon the part of the relator that opportunity to be 
heard was not given, or that the approval of the governor was not obtained. But 
it is claimed that no sufficient cause was alleged or proved, as against the 
relator, to authorize the mayor to make the removal. Although, upon this 
proceeding, the court cannot review the decision upon the merits, yet there must 
be some evidence upon which to justify removal; and unless some sufficient cause 
is alleged, and there is some evidence tending to establish the same, then the 
mayor is without jurisdiction and cannot make the removal. The question, then, 
is whether the violation of the provision in the consolidation act (§ 59), that 
no head of department or other officer of the corporation shall be or become 
directly or indirectly interested in the purchase of any real estate taken by 
the corporation, constituted a sufficient cause for removal. It is claimed that 
it did not, because that section provided a punishment in case its provisions 
should be violated. It provides that if any person shall, during the term for 
which he was appointed, become so accused, he shall, on conviction thereof, 
forfeit his office and be punished as for a misdemeanor. It is claimed that this 
punishment having been provided in the statute for the offense, no other 
proceedings could be taken against the relator under any other provision of the 
consolidation act.

In this we think there is a clear error. The mayor has power to remove for 
cause, and any violation of a law which restricts the powers and duties of heads 
of departments is a cause for removal. The mere fact that he thereby subjects 
himself to an additional punishment is no answer to the claim that such act 
constitutes a cause for removal. Suppose there had been no provision whatever, 
that upon conviction the officer should forfeit his office and be punished as 
for a misdemeanor, and there had been simply the prohibition. It is clear that 
the mayor would have had the power to remove the officer because of this 
violation of his duty, and simply because another and additional punishment is 
provided, in case he shall be convicted for having offended against this 
statutory provision, in no way renders it less a cause for the mayor to act.

The violation of the provision of the statute under which the officer holds his 
office is clearly a ground for the removing power to exercise its authority. 
That furnishes a cause, no matter what other punishment may follow or other 
methods of trial are provided to ascertain guilt, for the purpose of the 
infliction of this other punishment. It would be depriving the mayor of one of 
his most important powers. If an officer, in connection with his office, should 
commit a misdemeanor or a felony, the mayor would be utterly powerless to act, 
whereas, if the dereliction in duty did not reach the grade of a crime, his 
power would be ample, thus the graver the cause the less would be the power of 
the mayor.

In view of the provisions of the consolidation act, the offense of the relator 
was an offense in his capacity as the head of a department, and he, therefore, 
became amenable to the disciplinary power which the statute had conferred upon 
the mayor. The cases cited by the learned counsel for the relator, to the effect 
that if an act is criminal so that a conviction or acquittal in a court will 
determine the guilt or innocence of a party, there must be a conviction, but 
otherwise there may be a removal without or independent of a conviction, do not 
at all depend upon statutory provisions such as are contained in the 
consolidation act. And this claim seems to be disposed of by the case of People 
ex rel. Fitzpatrick v. French et al. (32 Hun, 112), where it is distinctly shown 
that the mere fact that the act which forms the cause for removal is capable of 
punishment as a criminal offense in no way shelters the official from the 
exercise of the summary power of the mayor, which was intended to meet every 
cause which could exist for the removal of a public officer named in the act.

The writ should be dismissed, with costs. 

Lawrence, J., concurred. 

Writ dismissed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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