Private papers, letters and diaries: Order removing Henry A. Gumbleton from his office as County Clerk of New York

Date: 17 Mar 1879
Place: New York, USA

Public Papers of Lucius Robinson: Governor of the State of New York

Order removing Henry A. Gumbleton from his office as
County Clerk of the City and County of New York

State of New York:
Executive Chamber,
Albany, March 17, 1879

In the matter of the charges preferred against Henry A. Gumbleton, Clerk of the City and County of New York.

Charges of neglect of duty in office, malfeasance in office, malversation in office, and extortion against Henry A. Gumbleton, Clerk of the City and County of New York, having been formally presented to me, and a copy of the said charges and an opportunity of being heard in his defense having been given to the said Henry A. Gumbleton, and after hearing him in person and by counsel thereon, it appearing that the said charges are substantially true, it is ordered tht the said Henry A. Gumbleton be and hereby is removed from the said office of Clerk of the City and County of New York.
L. Robinson
By the Guvernor:
David C Robinson
Private Secretary

State of New York:
Executive Chamber
Albany, March 17, 1879
In the matter of the charges preferred against Henry A. Gumbleton, Clerk of the City and County of New York.

On the twenty-eighth day of January last charges were laid before me, accusing Henry A. Gumbleton, Clerk of the City and County of New York, with neglect of duty, malfeasance and malversation in office, and with extortion.

The charges were thirteen in number, and were duly verified on oath, by Artemas H. Holmes, Henry E. Knox, George DeForest Lord, Charles F. MacLean and J. Adriance Bush. The first five charges and the thirteenth relate to the neglect of the Clerk to keep such books as as he is required by the statutes of the State to keep, showing the amount of all fees, perquisites asnd emoluments actually received by him for any service done by himself or his assistants in his or their official capacity by virtue of any law of this State; and of all fees perquisites and emoluments which he was entitled to demand and receive from any person for any service rendered by him in his official capacity pursuant to law; and also to the neglect and refusal of the said Clerk to keep such books open for inspection at all times during business hours, by all persons desiring to examine the same.

The sixth, seventh and eighth charges relate to his neglect to transmit to the comptroller of the city of New York such a transcript of the accounts of the fees, perquisites and emoluments collected and received by him, as the law requires.

The ninth, tenth, eleventh and twelfth charges relate to the demanding and receiving of fees in excess of those allowed by law.

A copy of the charges was served upon the Clerk on the 29th day of January 1879, with an order to show cause before me on the tenth of February why he should not be removed from office, on which day he appeared in person and by counsel and presented his answer to the charges. The questions involved in the charges and answer were fully and elaborately discussed on that and the succeeding day. The following are the statutes alleged in the charges to have been violated by the clerk;

[Quoted sections 9 and 10, chap 432, Law of 1847 omitted]

It is very clear that the object of these statutes was to prevent any abuse of the powers conferred on the Clerk; to prevent any exactions by him of fees not authorized by law; to provide stringent measures to secure the payment into the city treasury of all the income of the office; to enable the public to know specifically what the income of the office and the compensation of the Clerk were; and to require the utmost publicity as the best means of reaching these end. The requirement that he should specify the amounts he was entitled to receive and the names of the persons paying for a given service was evidently designed to guard against any collusion between the Clerk and outside parties to evade the law. The inquiry now is, has the Clerk fully and fairly obeyed these statutes or has he either violated or evaded them.

1st. Has he kept the books of account required by section nine, chapter 432 of the Laws of 1847, showing an exact account of all fees, perquisites and emoluments actually received by him for any service done by him or his assistants in his or their official capacity and which he shall be entitled to receive from any person for any service rendered by him or his assistants in his or their official capacity pursuant to law, showing when and for whom such service shall have been performed, its nature and the fees chargeable therefor?

The books kept by the Clerk and purporting to contain the accounts required by the statute above cited were not shown to the persons making the charges, before those charges were presented. Upon hearing of the charges "specimens of the books" kept by the Clerk were produced, as stated in his answer, but they fall very short of the requirements of the law. Instead of giving the nature of the service in any action, they simply give the title of the cause with no reference whatever to the nature of the service. They give no account whatever of the fees and emoluments received by the Clerk and which he retains for his own compensation. They do not give the amount received and the amount chargeable. For numerous services and payments of the same day they show no account whatever. They do not show any receipts for searches. The act of 1853 provided that the Clerk should receive fees for searches for his own compensation, in addition to the salary to which he was entitled by law, but there is nothing in that statute, nor in any other, which I have been able to find, relieving him from the duty of keeping the account as required by the act of 1847. It was conceded, on the argument, that by far the largest amount of the emoluments of his office came from the searches. His counsel stated it to be at least nineteen-twentieths of all the receipts, yet no account whatever is made of them in his books of account. Consequently, notwithstanding the great care which the law has taken to allow the public to know what are the emoluments of this office, it is impossible to ascertain that fact. The statute upon which this subject, quoted above, clear and plain as it is, has been, and is, habitually disregargded. It is not possible for the citizens of New York to ascertain from these pretended accounts what amount is received by the Clerk which belong, and should be paid, to the public treasury, nor to ascertain, even approximately, the amount of compensation which the Clerk receive for his services. The law is thus disobeyed, and its whole object defeated.

2d. Have the books, such as they were, been "at all times during office hours kept open for the inspection, without any fee or charge thereof, of all persons desiring to examine the same?" The answer to this question is found in the undeniable fact that the citizens of New York, who present these charges, made repeated efforts to see the books, during business hours, in the Clerk's office, but were not permitted to see them until "specimens" of them, as stated, in the answer, were produced upon hearing of this case.

The excuses made by the Clerk, in his answer for his refusal to exhibit them, are wholly insufficient, and consist almost entirely of aspersions of the motives of the gentlemen who asked to see the books, charging upon them a political intrigue against himself. I know of nothing in the case to warrant any such imputation, except such unsupported assertions as have been made by, or in behalf of, the Clerk himself.

It is due to the committee to say that, so far as I have any knowledge, and so far as the proceedings before me are concerned, these stricures are wholly without foundation. The committee had a most ungracious task to perform. They had to grapple with abuses which had grown up through many years of endurance.

I have never heard from the gentlemen presenting the charges, directly or indirectly, a single suggestion as to who or what manner of man should take the place of the present incumbent, if he should be removed. But, if the allegations of the clerk in this respect were all true, they would avail nothing against the plain language of the law. It would give him no right to sit in judgment upon their motives in seeking to examine these books. The Clerk does not own the books, nor the office which he holds. The office and its contents belong to the people of the whole county, without distinction of party. Every citizen of the county has the right, under the law, to examine the books. The Clerk is but the agent and servant of the people, chosen to administer the duties of an office established not to benefit its occupant, but to accommodate the whole public. If any one believes or suspects that the Clerk is in anyy respect betraying his trust as such agent, that he is exacting fees to which the law gives him no right, that he is neglecting to account for them as the law provides, any such person has a right, at any time during business hours, to examine those books. The refusal to allow him to do so lest he should use the information which he may acquire against the Clerk, is no reason why they should be refused him. If the books are correct and the conduct of the Clerk has been right, the more they are examined, the better for him. His refusal to exhibit them is, therefore, not only a violation of the law but also a suspicious circumstance in itself.

3d. Does the Clerk transmit to the comptroller, monthly, a transcript of the accounts required to be kept by him and verified as required by section ten chapter 432 of the Law of 1847 above quoted?

The facts presented both by the charges and the answer, show that this requirement is habitually disregarded. The accounts and their verifications, which are returned to the comptroller are at best awkward and clumsy evasions of the law. The Clerk, himself, in his answer, diclains all responsibility for the faulty phraseology in which they are expressed. He claims that both are due to the person who held the office of comptroller in 1868, and that the same form and verification have been ratified both by the present comptroller and his immediate predecessor. The responsibility cannot thus be shifted from the Clerk to the comptroller, who is only authorized to direct the form of the accounts. With the verification the comptroller has nothing to do. Its substance is fixed by the law to which the Clerk is bound to conform. Besides, no such affirmative ratification by the two comptrollers last named is shown, and it is incredible that there should have been any. I assume that their attention was never called to the form and verification of these accounts, which are at the best a mere travesty of the requirements of the statute, and afford no justification to any Clerk. The verification is not only in direct violation of the law, but it is so evasive as to make it impossible to convict the person making it of perjury, however false it may be.

4th. Does the Clerk habitually charge and receive greater fees than are allowed by law for filing, indexing and recording notices of the pendency of actions?

It appears from the papers before me that such notices usually contain from three to five folios. The law authorizes the Clerk to charge ten cents per folio for recording them. His uniform charge for notices of the number of folios above mentioned is one dollar in each case, instead of thirty, forty or fifty cents, which is the legal rate.

The Clerk, for the purpose of justifying his charges for rrecording notices of the pendency of actions, claims the right to charge nineteen cents for filing and indexing such notices and twenty-five cents for a certificate. As to the certificate, it is never required and never given, and there is no law authorizing the charge for filing and indexing. For the purpose of answering in part the charges in regard to illegal fees for filing, indexing and recording notices of the pendencey of actions, the Clerk refers to the old chancery practice, rules of the Court of Chancery, and the fee bill of that court as originally established in the Revised Statutes. It is a conclusive answer to any such claim that the rules of the Court of Chancery were made by the chancellor himself; that when his court was abolished by the Constitution of 1846, its powers and duties were transferred to the Supreme Court, which made its own rules in lieu of those established by the chancellor, and thereupon the chancery rules became absolutely inoperative. The fee bill applicable to causes pending in the Court of Chancery necessarily followed the fate of that court, and was abolished with it. The charges which may lawfully be made by any Clerk in any civil action are fixed by section 312 of the Code as follows:

[Quote from section 312 of the Code omitted] The charge of ten cents per folio for recording notices, is fixed by the statute of 1864, requiring the record, and no other fee is authorized. The statute gives ten cents per folio in addition to any fees allowed by law, for filing, indexing and certifying the same. But there is no such "fee allowed by law" as appears from the section of the Code quoted above, and even if the charge for filing and indexing were allowed as claimed, the fees charged by the Clerk would, in most cases, be nearly double the amount allowed by law.

As this matter is submitted upon the charges and the answer, I do not consider the charge that the Clerk receives a commission on all moneys deposited in court, and that he makes illegal charges for administering the oath and giving certificate to notaries public, for the reason that I find it difficult to determine whether the answer amounts to an admission of the facts alleged or not.

The fees which the Clerk may charge in any action are those specifically named, and he is forbidden to receive any other fees whatever in such actions. This is plain, simple and direct. No one can misunderstand it. Much has been said about the uncertainty and confusion in the law in regard to Clerk's fees. I find no such uncertainty. The whole difficulty comes from the vain and useless effort to find some law to excuse illegal charges. There is no such law, and if Clerks confine themsleves to the fees fixed and allowed by the statute, they will get into no confusion. The only exception to this remark relates to the fees for searches, in regard of which there has been asnd is some division of opinion. The case of Curtis against McNair, in 68 N.Y., was referred to as expressing the opinion of the Court of Appeals that the law was very obscure and unsatisfactory in regard to the charges which Clerks had a right to make. But that case related simply and entirely to this one queston in regard to searches, and upon that question the court were divided, the decision being pronounced by a majority, Justices Allen and Rapello dissenting. The case has not the remotest bearing upon any point involved in this inquiry.

Much stress was laid upon the allegation that the Clerk does not charge more, and in some cases not as much, as his predecessors and other officers have charged. Whether this be true or not, is not material in the disposition of this case. The question is not what others have done, but what has the Clerk done and does the law justify him? Nothing can be worse than to excuse official abuses on the ground that they have been long practiced. Such pracitces never correct themselves. They grow worse as they progress. Relieved from the restraints of law, each new comer is tempted to improve upon the illegal exactions of his predecessor. He transfers his allegiance from the law to his pocket and drifts further and further from the restraints of his official oath. If public officers, sworn to obey the law and to discharge their sacred trusts in accordance with its provisions, wilfully and steadily disobey it for selfich ends, how can obedience to it be expected from citizens who are not in office.

It is not claimed that any officer, any more than any citizen. should be made to suffer for any trifling, casual or unintentional infraction of the law. But where a public officer stands out as a bold and habitual violator of the statutes of the State, and defintly justifies his guilt by that of his predecessors, a toleration of his course will naturally and surely lead to a of all law in the community and a state of anarchy.

The function of the Executive in dealing with such a case as this, is not that of a criminal court. He is not bound to remove except in his discretion, which is to be exercised with an eye to the higher charge of the Constitution that he shall "take care that the laws are faithfully executed." And even with all the record of past neglect of duty and violations of law on the part of the Clrek, it would yet, perhaps, be possible to escape the unpleasant duty of his removal, if, in his entire course since this investigation was commenced, he had given every indication that a proper discharge of official duty and observance of the law at his hands was not to be expected in the future. He has even attempted to justify the course which he has hitherto followed and openly declares his right and intention to continue it in the future. Inasmuch as it seems to me that in that course he has broken over almost every requirement of the law he was sworn to obey, it leaves but one possible course open to me. If the Governor, who is specially charged and bound by his oath to take care that the laws are faithfully executed, should, by a dismissal of these charges, give an implied sanction to the continuance of these unlawful practices, he would himself become a partner in them, and the hope of maintaining a government of law would disappear. There is no view which can be taken of this case which leaves me any alternative but the removal of the Clerk from the office which he holds.

Since writing the foregoing, I have received a letter from the counsel of the Clerk requesting a delay of my decision until they can carry to the Court of Appeals the points made by them against the granting of the mandamus by the Supreme Court compelling the Clerk to produce his books. As the proceedings before me are entirely independent of the mandamus and free from the legal rules applicable to the issuing of that process, and as the mandamus affects only one of the many points raised before me, I do not see that any decision of the court could change the result. I cannot find any justification for the delay asked for.

L Robinson

Public Papers of Lucius Robinson: Governor of the State of New York
17 Mar 1879

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