The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1845-06-16
NEW YORK, MONDAY MORNING, JUNE Is. ls45

tics or the Clerk or the City and County
OF Ncvv-York.
The Court Of Errors has been for two or three days
past occupied with OF the highest importance to
the people of this city and county involving as it
does, some of the most valuable rights secured to
them by successive Charters and confirmed by the
Constitution of the State in 1921.
| Tins the one recently decided lin favor of
the people) by the Supreme Court of the State, and
involves the office, rights and duties Of the Clerk Of
the City and County of New-York; an officer who,
by the terms of the Constitution, Is elected 10y the
people every three years. and the rights Duties priv
eges, emoluments, &c OF whose office consequently
the property of the people and at their sole dispo
sal.
The clerk Of the city and county of Ncw-York,
is an officer coeval with the earliest form of our
City Government, under the Colonial jurisdiction of
Great Britain. BY the charter of Gov. Dongan Of
1856 Court of Common Pleas was established in
this city, to be held before the Mayor, Recorder and
Aldermen and the town clerk, clerk of the Mayors
Court, or clerk of the city and county Gall being
vested in one and the same personl was made the
clerk of this Court Of Common Pleas; and from
that time April, l543 he has exercised all the du
ties thereof. Formerly and at the time of the adop
ton of the Constitution in 1921, this County Clerk
or Common Pleas Clerk was appointed by the Gov
ernor and Council but by the 9Th section of the 4th
article Of the Constitution, the appointment of this
highly important office Gas well as ShTlHs and our
County RegiseD was claimed by andvested in the
people and il was declared that The County Clerks
should for after be chosen by the electors of the
| respective counties once in every three years.
With this arrangement the whole community re-
! manned perfectly satisfied it worked remarkably
well, and no one ever dreamed that it would be al
tered until in the session of the Legislature OF lS43
| During that session. some curious movements were
| set on foot, (whether or not very extraordinary
means were used, we say not at presently and act
was pushed through the Legislature, called simply
san act relating to the Court of Common Pleas for
the CITY and County Of New York" This was
passed April 10Th, lS43, and from the vagueness of
! its title, the community was completely deceived,
and one but those IN the secret had any idea that
this act proposed to strip the people OF this city OF
some of their most valuable chartered and constl tn
! tional rights.
But, on inspection, was found that this act pro-
posed to take away all the powers duties, emolu-
ments, &c, of the cerkshp of the Court Of Com.
mon Pleas from the peoples officer, the County
(Which powers, duties, NC, the people had espe-
cialIy reserved to themselves under the constitution
Of 1927 and to give them all to new officer OF their
| own creation a special clerk OF the common pleas,
and that he 70 be appointed by the First Judge
Of that court and his two associates, without consult
ing the Mayor, Recorder, orAdermen, who, by the
charter of the City, and constitution OF the State,
| are also Judges of the Court of Common Pleas
This garngly unconstitutional act ofthe Legislature
| of course created great excitement in the minds of
ourctizens, as well deep indignation Three ofthe
Judges of the Common Pleas at that time, Messrs
Ushoefer, Ingraham and lnglis,* however, took the
responsibility of appointing under that act Mr.. An
Pleas, thereby giving TO him all the most important
duties, rights, emoluments, &C., belonging to the
peoples own officer, the County Clerk, leaving to the
latter office the mere shadow of power, stripping
Of all that rendered it valuable and important,
grossly insulting the people OF the city and county,
and endeavoring by this unjust usurpaton to snatch
from them their chartered rights and constitutional
privileges and comforting them all on creature Of
their own creation, who thus realizes from $4,000 to
$4,000 year, and over whom the people have no
control whatever. AS matter OF course, proceed
ngs were instituted against Warner as an intruder
on the peoples rights, and the case came up in the
Supreme Court. Aftervery able and very full argu-
ments on both sides, the Court deliberately decided
that the acof lS43 was unconstitutional, when Chief
Justice Bronson delivered the following opinion:-
The People, rel Conner .fndrep Wa'ner.-
Opinion Of the Courf-BRoNsoN J.lt will not be
to recite portion ofthe Charter early laws
relating the City of New York for it is not and
be denied that at the time the constitution franz
cd and adopted, there Court of Common Pleas for
the City and County of New York. and clerk of the
City and County who the clerk of that court The
clerkship OF the court was not mere incident to the
ps S Of s
vdes that "Sheris and clerks of counties, including
the Register and Clerk City and County of New
York. shall be chosen by the electors Of the respective
countless. Nrt. Nv. 81 Under this provision the
Clerk Of the City and County of New York has been
adopted and has been clerk of the Court of Common
Pleas down to the time when he defendant appoint
section of that act provided that the clerk Of the Court
of Common Pleas for the City and County of New York
shall be appointed by the Court; and this officer
shall be and act as the clerk of the County Court The
question is whether the legislature had the constitution
alpower to pass such a law think it had not In Ell
feet this statute divides the Office Of the Clerk of the City
and County Of New York into two parts and to the
largest share in point duty and emoument takes the
choice Of the officer from the electors OF the county and
gives the appointment to the court II this be right
fully done do not any security for the residue
the office. The Legislature may take that also and give
the appointment of the officer to court, the
Governor and Senate and thus the constitutional provi
sion for choice by the electors would be completely
nullfed. do not doubt that the Legislature regu.
late the duties and reduce take away the fees of the
oSer ana may perhaps abolish the office But SO long
choice officer belongs to the electors of the
ty They cannot be deprived OF their right by changing
the Of the officer, by dividing it into parts
transferring the selection Of one Of the officers another
body If the Office may be divided and the duties be
signed to two officers both must be chosen by the elec
tors OF the county No other rule win give full effect to
the constitution.
Judgment for the people.
From this decision Mr.. Warner appealed and carried
tho case up to the Court of Errors; where it
gued Friday and Saturday last which argument will
be concluded to-day, by MIR. Wood Mr.. James T. Bra
dy and Mr.. George Wood counsel for Mr.: Warner
and John Van Buren,, Esq, Attorney General, and MIR.
| +. b. Cutting, are counsel for the people.
but whether was that he conscious he had very
bad case to sustain or not he certainly made but very
Indifferent argument and much inferior able ones
he usually does deliver before this of last
Mr. BRADY conended that the Legislature had right
to pass this Act violating the charter and the constitution
without two-third That the Legislature had the
power regulate the Office of County Clerk and that
tey could regulate IL hey couiu take away any OF It's
ices duties do any thing that they pleased with it
That the Court of Errors could not sit in judgment the
discretion ofhe Legislature That the Legislature can
they please make the office of County Clerk salared Of
hcc That they can uiionaly pass law deprvng
the Chancellor Of many OF his duties, privileges and
luments although he is named n the constitution That
they reduce the emolument to SO fthey please
That the Clerk Of the City and County Of New iork must
be put under the control OF the Legislature, else he
stands in his integrity tact and immaculate That
Warner was Clerk Of the Common Pleas at the time the
Act of si3 passed That if the Legislature could order
County Clerk to keep deputy they could take away
his emoluments and give them to officer of their
creation to be appointed in any they pleased That
the city charter recognized but Court Of Record,
Qhe Mayors Court) which monopozed all judicial bust
| ness. That the establishment Of the Superior Court
took away much of the County Clerks emouments, and
yet perfectly constitutional and that there
practical difference between that act and the Act OF S43
now complained OF. That the OF the People the
Mayor of New York, % Wendell. disposes of this