In re Theofel
| Decision Date | 04 May 1932 |
| Citation | 258 N.Y.S. 61,143 Misc. 666 |
| Parties | In the Matter of Charges v. and a Petition for the Removal from Office of JOHN THEOFEL as Chief Clerk of the Surrogate's Court, County of Queens. |
| Court | New York Surrogate Court |
Application for removal of clerk of Surrogate's Court.
This is an application for the removal of the chief clerk of the Surrogate's Court of Queens county on charges which are unverified and which involve the said clerk's fitness and qualifications for office and for acts or omissions committed prior to his entry into said office. There is no charge of misconduct in his present office.
The chief clerk of the Surrogate's Court can be removed only for cause after trial upon charges duly served upon him and an opportunity to be heard (Surr. Ct. Act, § 22).
Moreover the great trend of authority in this country and in England is opposed to any inquiry into acts committed before a public officer's entry into office, and a removal to be justified must be for something causing prejudice to the public rights or seriously interfering with the discipline of the office or the department.
In view of the unverified charges, all of which are denied by respondent, the utter lack of anything showing a breakdown in the administration of the office, the absence of the receipt of any complaint by the surrogate of any act of malfeasance misfeasance, neglect, inefficiency or discourtesy on the part of any of the staff of the Queens County Surrogate's Court, and the surrogate's personal observation of the respondent's conduct in the office, the charges must be dismissed on the merits.
HETHERINGTON S.
Charges signed or subscribed with the names John Haynes Holmes chairman, Stephen S. Wise, vicechairman, were filed with the surrogate on March 18, 1932, against John Theofel, clerk of the Surrogate's Court of Queens county. Accompanying said charges was a letter on the letterhead of the city affairs committee of New York, likewise signed or subscribed with the names of the two gentlemen mentioned. From the similarity of the handwriting, the indications are that these are subscriptions, no doubt fully authorized, rather than signatures. Said charges ask for the clerk's removal. They are not verified. Personal knowledge of the truth of the allegations therein contained is nowhere claimed. The inference is that they are made on information and belief, though not even that is stated. A copy of the charges was served by the surrogate on the respondent, and he has filed his answer.
The charges filed are eight in number, of which two, the fourth and eighth, relate directly to respondent's fitness and qualifications for the office of clerk of this court. The charges, briefly summarized, relate (1) and (2) to acts or omissions of respondent in 1928 when he was treasurer of the campaign committee of his party; (3) to the amount of his deposits in bank in 1930, for a considerable portion of which, it is alleged, 'he could give no reasonable or credible explanation; ' (4) 'That John Theofel is unfamiliar with the duties of the office of chief clerk of the Surrogate's Court, is incompetent to discharge such duties, and unqualified to hold the position of chief clerk of the Surrogate's Court.' (5), (6) and (7) relate to his connection with, and/or financial interest in, a concern selling automobiles, to the fact that respondent was chairman of the executive committee of the Queens county committee of his party and that he influenced business in favor of said automobile concern from office holders and others. The sixth charge sets forth details of a transaction or combination of two transactions involving said alleged interrelation between appointment to office and the patronizing of said automobile concern, and No. (7) states very concisely a rule of public policy as to which there can be no debate, viz.: 'That the use of the power of public patronage for the benefit of a corporation in which the leader of the dominant political party has a financial interest is contrary to sound public policy, and constitutes conduct unbecoming a public official.' Charge No. (8), in the form of conclusions, quoted verbatim, is as follows: 'That, by reason of the foregoing, it has been demonstrated that John Theofel has violated the statutes of this state; that he is guilty of conduct unbecoming a public official; that he is incompetent to perform the duties of chief clerk.'
It will thus be seen that the surrogate is asked to consider not only the question of respondent's fitness and competency for his office, without mention of a single specific act or omission, but he is asked also to remove respondent for acts and omissions before his appointment.
There is no charge of misconduct in his present office.
The respondent, in his answer, contends that the surrogate has 'no legal right or power to consider any of the charges except perhaps the fourth,' dealing with incompetency, but said answer also discusses the merits, denies the truth of each of said charges and adduces proof in support of his denials. If respondent's first contention be sustained, it would remove from the surrogate's consideration the allegations as to respondent's alleged acts in other capacities than that of clerk of the court.
While it is to be noted that in a recent case Governor Roosevelt exercised the absolute and unqualified power of removal given him by article X, section 1, of the State Constitution, this provision does not restrict the Governor's power of removal to 'cause shown,' but leaves it entirely to the discretion of the chief executive of the State to remove certain so-called constitutional officers on any grounds that appeal to the conscience or good judgment of the Governor. The Governor's action was an executive, not a judicial, act and, therefore, not reviewable by the courts (Matter of Guden, 171 N.Y. 529); whereas the surrogate's power of removal of the chief clerk is found within the four corners of section 22 of the Surrogate's Court Act, which provides in part: 'Each such chief clerk shall hold office for five years unless sooner removed by the surrogate for cause, after trial, upon charges duly served upon him and an opportunity to be heard.'
The basis for the restriction of the surrogate's power of removal is set forth by Chief Judge CULLEN, in People v. Ahearn (196 N.Y. 221, at p. 253) as follows: 'But for the courts to declare a disqualification not enacted by the legislature or by the Constitution is, to use the language of Lord CHATHAM, not to declare the law, but to make the law.'
The legal meaning of the phrase 'for cause' has been repeatedly and widely interpreted.
The present chief justice of the United States, when Governor of this State, wrote: (Public Papers of Governor Hughes, 1907, p. 279.)
Judge GAYNOR, in the Guden Case (37 Misc. 390), held that 'the acts for which the Governor may remove an officer must have been committed by him in office and must be neglect or misconduct in office,' and he supports it in his trite manner by calling attention to the fact that despotic power has been finally done away with in this country; that government here is by the people through laws and limitations on official power, and no citizen, however humble, is subject in any of his rights to the arbitrary power of any official, from chief executive down. The official is responsible as an official, i. e., for his conduct in office.
It is true that Judge GAYNOR was reversed in the Appellate Division (71 A.D. 422), but the principle of his decision was sustained. Judge WILLARD BARTLETT of that court, discussing article X, section 7, of the State Constitution as to removals of certain elected officials, to wit, 'all officers, except judicial, whose powers and duties are not local or legislative,' being careful to note, as...
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