New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1847-05-18
Right of Appointment under the Reformed
Eor.sftutiou

Right of Appointment under the Reformed
Constitution.
Before Judge EDMONDs Ia the matter OF complaint
arains. Henry P Hanmaker late Public Administrator,
for not delivering books and papers Of Office to his
successor.
As the question argued and decided in this case
is one raised under the new Constitution, and en-
braces in It's range almost every officer appointed
or elected since the first Of January, lsl7, we lay
before our readers the points raised on the argu-
ment Of David Dudley Field Esq the counsel for the
complainant and in full the decision Of Judge Ed
rnonds whose prompt and clear exposition Of the ques
! ton it is believed will command general respect
Mr. FIELD discussed on Saturday the whole subiectin
very able arguing not only the question as to
the rsppgadacy between the statute and the Constu-
ton but tracing into every locality and branch OF the
State Government the consequences OF such consTuc-
ton sought to be given 0y the respondent IN this
The propositions laid down By Mr. Field briefly
as follows enforced By variety OF Illustrations, and
! with great power Of argument
| / Mr. Wapmskor's appointment as Public Admins
traitor was not any particular term, but during the
| pleasure Of the Common Council OF the CITY OF New
York The tenure of the Office has not been changed.
The Common Council therefore had he power to remove
him. and having himse in consequence OF the removal,
no farther right the custody of the books snd papers
of the Office, he cannot be permitted to withhold them
/
/ receive them.
The appointment of successoris therefore no, neces
/ sary involved in this section.
,. Mr. Thayer il the duly appointed successor OF Mr..
WaDmskcr. He has been appointed by the Common
Council aud has qualified according to law The power
OF the Common Council TO appoint IS Denied seems,
/ but on insufficient ground
They have had the power by virtue Of various stat
u'es of the Stale since lel5 the new Constitution hhs
taken II away. 1t saves and continues IN force AL
statutes previously in existence except such As are re
pugnaut 10 It, Art l. Sec. II. Is the statue respecting
the Public Administrator rePugnant to the new Consti'
tuition The only part OF the new Constitution 70
which IL 10 said To be repugnant IL the ~ see OF Ar 10
And that provides that cry o'0s sbaH be oecied by ne
Electors Of such cics Of drisiJa hcreg or 0p
pointed by such aHlhOrs Nrco) as he Legislature shiI
designate for that pUposs' THERE'S no repugnancy be-
| tween this and ths statute.
The statute Is not repusraut TO the Constitution III
might be- rccnecej under 1t. That Il might be so'is
| beyond dispute
contrary construction would strike out Of existence
| not only this statute but many other statutes which
| every considers in force. According 70 H. Pr
WanmaheT did not continue In Oihce day alicT tne
first of January last and all his acts since have been
void. The late election in our City would have been
void because the time OF the election was not prescrb
ed by the present Lceislaturc-Ar TO- sec. 10 There
would have boon Justices Of the Peace IN the coun
! try-Art g. See u; Art a sec. H. lhs Legislature
could no; have appointed Regent OF The University,
as they have within few days. Various othei CASES
may be put.
The question may be considered slrosdy settled I'M
der the late Constitution. The general manufacturing act
held be IN force, although reeoacted IN IT, nut
whsandng the nh section OF the 1h Article 20 Oh re-
lisiOus and literary corporations.
The Judiciary Committee of the Senate, In report
adopted by the Senate Winter took the Ike ground
Judge EnNoNDs delivered the following opinion
yesterday morning
The Office OF Public Administrator is created by sta
tute which enaets the mode OF appointment and De.
ciaTes thGt the tha be during the pleasure Of
the Common Council.
The Common Council have declared their pleasure
that Mr. Wanmakers tenure shall cease, and IN the eX
ercise OF the farther authority conferred by the statute
have appointed Mr. Thayer who has taken the oath Of
Office and given the necessary bond and ia therefore ID
that statute Is still in force, now the only Public Admin
istraior.
The question before me is whether that statute Is
still Ia force The Constitution declares that such
of the Legislature now in force shall 10 and
nue the law of this State except such acts parts Of
acts repugnant to that instrument
The statute under which the present proceeding is
hsd before is that whenever any person shall 10
removed from Office his term expire he shall de.
msnd deliver to HE successor 81 the books aud
papers sc. q Rev. stat 1859
s Ills pretended have been able TO discover
anything in the Constitution repugnan 10 thG part OF the
statute which coniers upon the Common Council the
power OF removal At pleasure They have exercised
that power in this and Mr. Wsnmskor has there.
fore ceased to be the Public Administrator. Something
more, however Is necessary to enable me 10 act
successor must DO duly appointed Mr.. Thayer claims
that he is such successor and that was the only question
r discussed before me
\
statute authorizing the Common Council 10 appoint Is
repugnsnt to the Constitution which declares that the
officer shall be elected appointed as the Legislature
shall desig
The repugnsncy meant In the Constitution is such al
opposition Inconsistency in the different parts tina,
both cannot stand, such will void deeds grants H.
dicments &c. not mere wsnt OF verbal coincidence
but r,pEs malta aversion opposition conrarety such
is the sense IN which IS now used and defined In al
the Dictionaries have had an opportunity 10 refer 70
Bailey, Walker Crsbb, Jacob, Boyer, Richardson and
TrFf,1fp n stehf fhaz in xrha "a urfr
sally used and understood in the law.
lcannoidiscern between the Statute snd the Constiu
tOn any such rcpugnancy nothing Indeed 10 prevent
them both from standing and operating al the same time
and with the utmost harmony.
The legislature may make the Office elective, may
direct hstt may Dc hled by the appointment OF such
OF the City authorities they may designate. They
have already designated the ComIno tCOuncf such
authority, and the same instrument which gives then
this power declares that their pas action shall be snc
, continue until altered by them.
Il isA universal AID unbending rule OF construction
that instrument must be construed tha; If possible
all its parts will stand The application Ct this rule ia
6 this instance viii enable both Of these provisions o.
r the Constitution to operate. An opposite construction
l. would render uu.sory IN great measure. che a The
/ provisions and that not only in this bat in vss
/ number OF al local organization and lOca govern
ment Such ought 10 be the determination unless
rendered necessary by clear and uncqgIvOcal language
and least Of all where i would have Inevitable ten
dency TO resolve oil government, into re original oe
n nents.
> But n3epc ndent Of Al such resscnins u is evident
= that IL the intention Of the Constitution % continue
the Government then organized both generally and
In reference % local and special provisions excepting
only lar The Constitution iiselt altered u o. - tae
Legislature might aiteFwAgd n tie exercise OF thei;
power. alter Il
This intention when evident; must control judicial
action, and controls 10 compel ne 10 declare
that Mr. Thayer is duly qualified 10 execute the oitcs
OF Public Administrator, and is entitled TO the ortei
he asks for.
To fghi agar sl rspel. drive back resist q
Withstand place sci against 70 oppose 10 b entra
~ To- 10 corgrAdic 70 6e ulfsicioy TO- non-eompiyn.
l. win aha ds0H.
~ ARTHUR MARTIN; or, the Mother Trla
= BY CHARLEs BrEpETT. This has been jest publishes
by the HSrpers one of thei- series OF the Firesid
" Library L interesting Tale Of zeal everyday oe
euTrencss, wTiien in that causes il 70 stir u
the feelings Of the reader laughter deeI