New Orleans: Crescent of Darkness- A Threads of Damocles "A" Universe


	The Impeachment of Mayor Fitzpatrick The case was allotted to Judge F. D. King and the trial began on November 8. The charges against the mayor were that he had "consented to and officially approved the Fischer belt railroad ordinance, adopted and signed in opposition to a general protest by citizens, and in flagrant violation of the law. It granted to a city official without demanding from him any benefit to the city [. . .] a practically unlimited privilege, [. . .] this privilege not having been offered to public competition by advertising, as the law directs. The statutes of the state were expressly defied in the enactment of this ordinance, which the mayor obeyed and which he subsequently signed, against the protest which was adopted at a public meeting and was subsequently presented to him by a delegation of citizens. [. . .] The mayor's failure to interpose his veto against any unlawful ordinance was to commit a wrong, but to sign it was a grave aggravation of that wrong." The mayor's failure to report to the council indicted officials "was in violation of a plain injunction of the law, and [. . .] councilmen are city officials in the meaning of that law." A third charge was that the mayor had consented "to the purchase of material and supplies and to contracts for labor of public works without advertisement or adjudication, as the law requires. The law is entirely explicit in declaring that no public work or supplies shall be contracted for or purchased except when such contracts shall have been advertised and offered for public competition, unless in case of emergency, when purchases up to the amount of $50 may be privately made. But in the face of this law the city officials, with the consent and approbation of the mayor, went ahead making contracts for large amounts with favored persons, without the slightest formality of advertising. [. . .] The mayor and the council applied to bills by heads of departments, regardless of amounts, the rule which the statute confined to bills not exceeding $50." The petition of impeachment then dealt with the mayor's relations with the plumbing business in which Mrs. Fitzpatrick was supposed to hold an interest. This was "a firm in whose business [. . .] the mayor was both directly and indirectly concerned. Even if the connection had gone no further than the fact that the mayor's wife is a partner in the firm, such dealings would have been unlawful, but his interest was greater than that. [. . .] The mayor actually encouraged and participated therein by approving ordinances making payment" to this company, and furthermore by approving contracts made "with this firm in his own department of city hall repairs, which required his approval before they could go to the council for payment." In reply, the mayor's attorneys held that interest and motive must be the determining factors in appraising an official act. "The character of an official act must be determined by the motive behind it. [. . .] The opposite side admits that the mayor is an honest man." The fact was cited that Mayor Shakespeare had approved ordinances providing for the construction of a belt railroad, on the ground that it conduced to the good of the greatest part of the population. The Fischer road would admittedly have been a great benefit to the city in developing the swamp lands in the rear of the city. The law requiring the advertisement of public franchises applied only to street railway franchises. With regard to the charge that purchases in excess of $50 had been made, it was submitted that they had been authorized only in order to take advantage of lowest market prices, and had been advantageous to the city. With regard to the mayor's connection with city contracts, it was pointed out that the rule on this subject in the city charter was general, and prescribed a course of action without reference to whether it was hurtful to the city's interests. Clearly it might be ignored when it was to the city's clear advantage. Judge King reserved his decision until March 14, 1895. He then found in all points in favor of Mayor Fitzpatrick. He held in a voluminous written opinion that the testimony was "in some cases false and perjured, in others insufficient, and in nearly all cases worthless to prove anything against the mayor," was "acquitted of every charge and in every particular." With regard to the ordinances relative to the payments on public contracts which had never been advertised as directed by law, the court held "in respect to violation of law, first, that an official has a certain discretion, to the extent of which under his own judgment he may depart from the law. And this power and right of official discretion being a matter wholly indefinable and unlimited in terms of any sort, must be tested by the intention with which the law is violated. If no evil intention be shown, then there must have been no wrongful violation of the law." The court held, also, that the mayor, violating the law by advice of the city attorney, was not guilty of wrongdoing. An important use was made throughout the decision of the right to follow precedent in disregarding the express letter of the law. "When unlawful practices had been repeatedly pursued with impunity by his predecessors in office, a succeeding mayor is excused in following the precedent, if not justified." With regard to the mayor's failure to suspend the indicted councilmen, Judge King's opinion was, that "the mayor honestly misapprehended the law, and in doing so committed an honest error of judgment and of law," in which he was wholly excusable. With regard to the relations with the firm in which Mrs. Fitzpatrick was a partner, the judge adopted the theory elaborated by the mayor's attorneys in their addresses at the close of the trial. "The respondent," said Judge King, "is not guilty of any act of malfeasance, gross misconduct, corruption, or favoritism." He was not, in fact, a partner in the firm in the sense in which the term was used in the law. In respect to purchases in excess of $50, the judgment held that the fact that Mayor Shakespeare had likewise approved of transactions wherein no advertisement had been made, and where the amount was in excess of the sum stipulated in the law, established a precedent which exculpated Mayor Fitzpatrick. With regard to the latter's failure to co-operate with the grand jury in its investigation of alleged irregularities in the various departments of the municipal government, it was regarded as sufficient to explain his attitude in the premises that the grand jury had not invited the mayor's co-operation. The citizens' case was a fiasco, but the local press did not hesitate to condemn the doctrine set up by the court. "As the people of New Orleans now know what protection they have under the judicial interpretation of their charter, it would not be astonishing and it would do no harm, if they were to assemble by thousands in indignation meeting in Lafayette Square, and perform a solemn auto da fe over their useless charter by publicly burning it. It is obviously not worth the paper it is written on." The Times-Democrat from whose editorial this quotation is extracted, hastened to add that it did not presume to question the "strict probity" of Judge King, or the "purity of his motives," but it could, nevertheless, not "look on the decision as otherwise than a public calamity." Under the judgment the citizens who brought the proceedings, were made responsible for all costs, and the right of the mayor was established to bring suits for damages against the members. Of this right, however, Mayor Fitzpatrick did not avail himself. Nor did the Citizens' Protective Association make any further effort to impeach city officials. Thereafter it directed its energies rather to the organization of an anti-administration party and preparations for the next election.

The Impeachment of Mayor Fitzpatrick

The case was allotted to Judge F. D. King and the trial began on November 8.

The charges against the mayor were that he had "consented to and officially approved the Fischer belt railroad ordinance, adopted and signed in opposition to a general protest by citizens, and in flagrant violation of the law. It granted to a city official without demanding from him any benefit to the city [. . .] a practically unlimited privilege, [. . .] this privilege not having been offered to public competition by advertising, as the law directs. The statutes of the state were expressly defied in the enactment of this ordinance, which the mayor obeyed and which he subsequently signed, against the protest which was adopted at a public meeting and was subsequently presented to him by a delegation of citizens. [. . .] The mayor's failure to interpose his veto against any unlawful ordinance was to commit a wrong, but to sign it was a grave aggravation of that wrong." The mayor's failure to report to the council indicted officials "was in violation of a plain injunction of the law, and [. . .] councilmen are city officials in the meaning of that law."

A third charge was that the mayor had consented "to the purchase of material and supplies and to contracts for labor of public works without advertisement or adjudication, as the law requires. The law is entirely explicit in declaring that no public work or supplies shall be contracted for or purchased except when such contracts shall have been advertised and offered for public competition, unless in case of emergency, when purchases up to the amount of $50 may be privately made. But in the face of this law the city officials, with the consent and approbation of the mayor, went ahead making contracts for large amounts with favored persons, without the slightest formality of advertising. [. . .] The mayor and the council applied to bills by heads of departments, regardless of amounts, the rule which the statute confined to bills not exceeding $50."

The petition of impeachment then dealt with the mayor's relations with the plumbing business in which Mrs. Fitzpatrick was supposed to hold an interest. This was "a firm in whose business [. . .] the mayor was both directly and indirectly concerned. Even if the connection had gone no further than the fact that the mayor's wife is a partner in the firm, such dealings would have been unlawful, but his interest was greater than that. [. . .] The mayor actually encouraged and participated therein by approving ordinances making payment" to this company, and furthermore by approving contracts made "with this firm in his own department of city hall repairs, which required his approval before they could go to the council for payment."

In reply, the mayor's attorneys held that interest and motive must be the determining factors in appraising an official act. "The character of an official act must be determined by the motive behind it. [. . .] The opposite side admits that the mayor is an honest man." The fact was cited that Mayor Shakespeare had approved ordinances providing for the construction of a belt railroad, on the ground that it conduced to the good of the greatest part of the population. The Fischer road would admittedly have been a great benefit to the city in developing the swamp lands in the rear of the city. The law requiring the advertisement of public franchises applied only to street railway franchises. With regard to the charge that purchases in excess of $50 had been made, it was submitted that they had been authorized only in order to take advantage of lowest market prices, and had been advantageous to the city. With regard to the mayor's connection with city contracts, it was pointed out that the rule on this subject in the city charter was general, and prescribed a course of action without reference to whether it was hurtful to the city's interests. Clearly it might be ignored when it was to the city's clear advantage.

Judge King reserved his decision until March 14, 1895. He then found in all points in favor of Mayor Fitzpatrick. He held in a voluminous written opinion that the testimony was "in some cases false and perjured, in others insufficient, and in nearly all cases worthless to prove anything against the mayor," was "acquitted of every charge and in every particular." With regard to the ordinances relative to the payments on public contracts which had never been advertised as directed by law, the court held "in respect to violation of law, first, that an official has a certain discretion, to the extent of which under his own judgment he may depart from the law. And this power and right of official discretion being a matter wholly indefinable and unlimited in terms of any sort, must be tested by the intention with which the law is violated. If no evil intention be shown, then there must have been no wrongful violation of the law." The court held, also, that the mayor, violating the law by advice of the city attorney, was not guilty of wrongdoing. An important use was made throughout the decision of the right to follow precedent in disregarding the express letter of the law. "When unlawful practices had been repeatedly pursued with impunity by his predecessors in office, a succeeding mayor is excused in following the precedent, if not justified."

With regard to the mayor's failure to suspend the indicted councilmen, Judge King's opinion was, that "the mayor honestly misapprehended the law, and in doing so committed an honest error of judgment and of law," in which he was wholly excusable. With regard to the relations with the firm in which Mrs. Fitzpatrick was a partner, the judge adopted the theory elaborated by the mayor's attorneys in their addresses at the close of the trial. "The respondent," said Judge King, "is not guilty of any act of malfeasance, gross misconduct, corruption, or favoritism." He was not, in fact, a partner in the firm in the sense in which the term was used in the law. In respect to purchases in excess of $50, the judgment held that the fact that Mayor Shakespeare had likewise approved of transactions wherein no advertisement had been made, and where the amount was in excess of the sum stipulated in the law, established a precedent which exculpated Mayor Fitzpatrick. With regard to the latter's failure to co-operate with the grand jury in its investigation of alleged irregularities in the various departments of the municipal government, it was regarded as sufficient to explain his attitude in the premises that the grand jury had not invited the mayor's co-operation.

The citizens' case was a fiasco, but the local press did not hesitate to condemn the doctrine set up by the court. "As the people of New Orleans now know what protection they have under the judicial interpretation of their charter, it would not be astonishing and it would do no harm, if they were to assemble by thousands in indignation meeting in Lafayette Square, and perform a solemn auto da fe over their useless charter by publicly burning it. It is obviously not worth the paper it is written on." The Times-Democrat from whose editorial this quotation is extracted, hastened to add that it did not presume to question the "strict probity" of Judge King, or the "purity of his motives," but it could, nevertheless, not "look on the decision as otherwise than a public calamity."

Under the judgment the citizens who brought the proceedings, were made responsible for all costs, and the right of the mayor was established to bring suits for damages against the members. Of this right, however, Mayor Fitzpatrick did not avail himself. Nor did the Citizens' Protective Association make any further effort to impeach city officials. Thereafter it directed its energies rather to the organization of an anti-administration party and preparations for the next election.