Matter of Nichols.

the words, the signification of which we are discussing, were added as a limitation upon the power lodged with the mayor, shows that the "cause" of removal should be found in some act of omission or commission by the officer in regard to his duties, or affecting his general character, which the law and a sound public opinion will pronounce to be sufficient to justify a forfeiture of the office, and not in the political bias or personal dislike of the city's executive chief nor in his leanings toward another individual for whom the place is desired.

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. 24, 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 disThe 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

cuss.

Matter of Nichols.

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 New 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

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party against whom the proceeding is taken must be informed of the cause of the supposed removal, and be allowed an opportunity of explanation. This necessarily implies that the 'cause' is to be some dereliction or general neglect of duty, or incapacity to perform the duties, or some delinquency affecting his general character and his fitness for the office. The cause assigned should be personal to himself, and implying an unfitness for the place, and such cause being assigned, if unexplained, the removal may be made. An explanation may consist either of excusing any delinquency, or apparent neglect or incapacity—that is, explaining the unfavorable appearances, or disproving the charges; that some other man is a better man than the accused, or more congenial to the appointing or removing power, is not a cause which the incumbent can explain in the sense in which that term is used, and is no cause of removal within the statute. That something substantial is intended by the statute is more evident from the fact that the 'true grounds' of the removal are to be entered upon the records, and ‘a statement showing the reason therefor,' filed in the department.". |

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 "for cause;" and if arguments in favor of his (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

Matter of Nichols.

ever a removal is so effected the mayor shall, upon the demand of the officer removed, make in writing a public statement of the reasons therefor."

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 can 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. 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.

A

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

Matter of Nichols.

reason, which the removing power honestly but mistakenly believes to be true. The right to investigate is necessarily conferred upon the individual or body, who or which is authorized to act in a given direction upon the existence of certain facts, which furnish the only basis for proposed action; and when such action taken will affect the rights of another, he, who is to be so affected, must be heard upon an investigation, which is to ascertain the truth of alleged facts, on which depends the power to act to his injury. Quite early in the jurisprudence of this State (Hickock v. Scribner, 3 Johns. Cas. 311-315), RADCLIFF, J., said: "I consider it a maxim of natural justice and of universal law, an axiom, not now to be proved, that no man ought to be affected in his rights by the judgment or decree of any court without an opportunity of being previously heard in his defense." The principle thus clearly stated must also be applicable to any tribunal which has power to judicially decide a question affecting the rights of another, whether it is a court in name or not, because the reason on which it is founded applies to both; and this "opportunity to be heard," required not only by an axiom of the law, but, in the proceeding against Nichols, demanded by the positive words of the statute on which it was based, involves, necessarily, a definite and specific statement of the charge, a reasonable time to answer it, the right to hear and examine the evidence by which it is attempted to be sustained, to produce testimony to show its falsity, and the aid and advice of counsel in the conduct of the examination. All this seems to be so elementary in the minds of persons living under the common law that citation of authority to sustain it is perhaps unnecessary labor. If, however, the soundness thereof is questioned, the following authorities will remove all doubt.

Judge DILLON, in his work on municipal corpora