The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-06-16

Wnen /
The mode in which process shall be issued, but the
right and the law of the case are settled for me-
The Supreme Courl has decided that the nine AL
dermen and Assistant Aldermen who have acted il
This matter sconstitute legal Boards for the transac
ton of business;' y and that the Clerks respectively
appointed for each branch of the Common Council
were duly appointed Beyond this decision cannot
look
The Supreme Court is the great common law iri-
bunal'of the State-the great controlling power IN
The administration of Justice and unless It's unlver
sal adndlcations are received as the io o. me and
we shall be without law and be thrown IN ntter an
archy and confusion And, while such Is the view.
with which ! think the whole community shall re
gard the Supreme Court more especially do consi-
der II required Of the Circuit Judge, who Is subor-
dinae officer, OF all others the most ameneble TO ls
authority, and the most bound TO obey and execute
its decisions.
What is an office 1t is defined to be right to
exercise public function or employment IN which
the people have an interest Il there were any rule
principle which restricted this general definition,
as applicable to the provisions OF the Revised sta
uies, find special directions in those laws which
seem unequivocally to declare the Comptroller TO be
officer within their meaning.
The provisions therefore, on which this arpllca-
ton Is founded, do IN my opinion, embrace the office
OF Comptroller of the city OF New York.
81. But was argued. with great force that those
enactments for compelling the delivery of books and
il appears, as was commended, that Mr.. Smith is the
officer dc flcto, while Mr. Williamson is, at most,
only the officer dc iure.
In one construction of the statute, Iagree with the
Counsel for the respondent.
The Statute compes only the delivery of " books
and papers" The words occur very frequently in
the six sections of Article Sth, but never with any
additions, or variations OF phraseology, which au-
thorizc the compulsory delivery of any thing bur
" books and papers" | agree moreover with the
counsel ON both sides that the Circuit Judge was
never intended by this Statute 70 be invested with
the power of trying the thh TO office The old and
well known proceedings by Qao ,ca7anto and Man
dGmvs the peculiar and appropriate modes of de-
terming the right TO office, are recognized, pre-
served and regulated by the Statutes, and it is by
the regular tribunals Of general jurisdiction that
the processes under these wrlts are TO be con.
Quoted.
NWith the right to try title, then,I am not invested
prima facie title only This is conceded, and indeed
it was also conceded by the Counsel that | mol
compel the delivery of any public property, other
than books aud papers-,r.nor the insignia OF office
like the seal-nor the Office itself, meaning now by
the term the local habaton' of the removed Off
Ger, which is frequently appointed by law. These
deficiencies may be undersigned, but are apparent,
and lrremediabe defects in the statute; and hence,
was struck on the argument by the force OF the re-
mark, that while his papers may be delivered, the
public rooms occupied by Mr. Smith, can not be de-
livered over in possession to Mr.. Williamson; nor
can any application be made to the Circuit Judge
affecting those subordinate officers of the Common
Counc-such as watchmen for ample--who hold
property OF the Corporation indeed. but books
or papers. | cannot compel the Treasurer of the
city to deliver over money. The process pointed
ont by the statute is not an eiectmenf, nor a ,pii
Of replcrin TO take property but strictly limited to
the objects designated The absence of further
powers may be regretted, but they are certainly
absurd
But in the most important point do not agree
with the counsel OF the respondent: rather in the
case before me 1 consider, under the decision OF
the Supreme Court, Mr.. Williamson as the officer dc
facto And it appears to me to be the case, coming
within the 55th section, providing "wheneyer any
person shall be removed from Office. he shall on de-
mand deliver to his successor all the books and
paIers in his custody as such officer" Who the
officer dc jurc is have not the right TO inquire.
look only to the ostensible title
regard the statute as a remedial statute-not re-
strlcted. as counsel contend, TO the case, when
person having fully entered into his ofiiceevcn the
locality provided for the transaction of his business
finds some or all of his papers or books taken
away by his predecessor. The statute makes
more general application offs provisions: ! can lot
so restrict the article which is preyed in the sta
tute with the tile proceedings 10 compel the aeirc
~ Of books or pcpers by Pnbhc O5fces to Their sue
ccssors"
Under such considerations, a warrant must be
granted after preliminary inquiry shall be had be-
fore me- The necessity of which was conceded by
the counsel who opened the argument for the claim
ant, and in fixing day for this inquiry have en-
deavored to adapt the performance OF duty to the ex-
listing circumstances of the case.
The Statute, in directing warrant for commit
ment to prison, does not clearly point out the mode
o. discharge oil the prisoner; and 10 oDvlate Wha
might be a serious evil, it was admitted that the
warrant shall designate the books and papers which
are withheld, and shall be delivered.
The petition before me is entirely indefinite, and
it is suggested by the counsel for the claimant that
the parties shall attend before me, and enquiry
be had of what books and papers delivery shall be
compelled.
In fixing this day, have considered the fact that
the Supreme Court has by order stayed the proceed
ings on the Mdnd0mus, and the case on the Man
damus will now probably be argued within few
days before the Court for the Correction of Errors
appoint the day for this enquiry fortnight hence.
by which day we may hope for the decision of the
Court of Appeal. If it afiirms the decision of the
Supreme Court, the warrant will then enforce inn
mediate obedience TO its decision; while if the
decision of the Supreme Court shall be reversed the
basis on which this opinion rests will be taken
away.
have appointed this day after careful considera-
A. Smith seems harsh proceeding, when the final
adjustment OF the great question Is so immediately
al hand. but also. because if he were imprisoned,
and his papers orcibly delivered to Douw d. VIII
lial on and the Court of final resort shall declare
the decision Of the Supreme Court incorrect. there
is no process in the Statute by which his papers
could he compusorily re-delivered. lam enabled
also bv This adjournment To be temporarily absent
from the city on urgent private business which
should indeed yield to public business did not
believe the appointment OF the day designated
was dictated by discreet exercise of the appointing
power.