The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1848-05-31
LAW Intelligence.

In the matter OF the application Of Edpard H. CorWin
as Chief Clerk Of the Aims House Of the city Of New
York to compel the delivery Of Books and Papers.-
His Honor, Judge Edwards, gave his decision as
the nth day Of May instant the Common Council of
the city of New York. by resolution duly passed by
them removed James S Hyatt from the office Of Chief
Clerk Of the House, and by another resolution,
passed on the same day. appsintcd Edward B. Corwin
his successor both Of which resolutions were approved
by the Mayor 1t also appears that the sixth day
of May Corwin took the oath of Office before the May
orr and that, since that time he has demanded of Hy.
att that he should deliver to him the books and pa
pers of the Office; which demand Hyatt has refused
The adavts the part Of the respondent do not de-
ny these actsbut they up that he has been
that although the respondent has kept set Of books
as Chief Clerk in the Aims House, still that the books
were provided and furnished to him by the Commits
sioner of the Aims and have been and remain
in the and custody Of the Commissioner, except
that they have been from time to time in charge OF the
and conducting his official duties in subordination
and pursuant, to the directions of the Commissioner
Upon these facts the petitioner asks for an Or
der to compel the respondent to deliver over
to him the books and papers appertanng
to the office of Chief Clerk of the Alms-House.
1t is admitted that the petitioner Is officer within
the meaning of the statute under which the applica-
ton lie made Il r. S. 124 350) But is denied that
the respondent has been legally removed from that
in question The first inquiry is as to the legality of
the petitioners appointment for it was admitted by
the petitioner and such is unquestionably the law
that he establish clear title to the office before
he obtain the relief which he asks. (See HILL GIG
63l note By the act OF 1918, u II. 81 4oS) winch
is the first statute to which my attention has been
called the Common Council authorized to appoint
five Commissioners of the Aims House, with the powers
and duties therein particularly stated and defined In
the year 1884 and while this statute remained in force
ordinance was passed by the Mayor, Aldermen, and
Commonalty, of the city of New York, for the
eanization Of the Aims House department This ordi
nance provided that clerk Of the Aims House should
be appointed by the Common Council and that his of
flee should be kept in of the rooms of the commits
soners Corporation ordinances, 122 S1l) On the
14th May 1845 the Legislature of the State of New
of the city of New York to nominate and appoint
to be of the thereof to be known
and distinguished the Commissioner of the Aims
House Department. and the act provides that the
person appointed shall have the powers and
authority now conferred by law upon the Com
missoners of the Aims House and Bridewe of the city
Of New York; and it further provides that, at the
next charter election for the ctw of New York and
nually thereafter, such officer, and with the like
Of the city of New York. claws, 1915, chap 2S3, p
1881 By this statute, commissioner was substi-
tuted in the place Of the five commissioners which ex
listed under the previous law and with the
they possessed Subsequent to the passage of the
act of 1S45 and the 10th day of June in the
year, the Common Council passed ordinance
thorzng the Commissioners to appoint chief clerk to
the Aims House Department" and requiring such
clerk to keep in set of books provided by the Com
missioner clear and distinct account" of the
penses and business of the department, and also
curing that the clerk should keep his books in the
Office Of the Commissioner" Corporation ordinances.
$685. 557) By ordinance passed June 2 lS47, it
provided that the joint committees charity and the
Aims House, should have power to appoint all such Of
hcers and agents employed in the Aims House
Department, and whose appointment was then vested
in the Commissioner Of the Aims House. Subsequent
ly by an ordinance passed April %, 1S4S the previous
ordinance repealed and it provided that the
powers conferred on the joint committee on charity
ind the Aims House should thereafter be and remain
in tho Common Council only. The question now to
be determined is whether the statute Of 1S45 vested
the power of appointing the Chief Clerk of the Aims
House in the Commissioner left 1t in the Common
Council. If it vested the power in the Commissioner
then the ordinance Of April rs. 1S4S, ia void and the
49,
Gil was made without lawful authority. The powers
of the Commissioner are not specifically defined in
the statute OF lsIa The act declares that he
now conferred by aw' upon the Commissioners of the
Alms,House The question then arises, whether the
commissioners at the time of the passage of this act
had the power to appoint the chief clerk of the Aims
House Department. 1t not contended upon the
argument that the statute of 1913 conferred such power
upon the commissioners created under shat act The
Corporation ordinance of 1884, has been already
expressly conferred that power upon the Common
Council and not upon the c commissioners They then
had power to appoint the clerk either by law of
the State, by any city ordinance; for there
other law ordinance the subject. except those
above cited But it contended on the part Of the
respondent, that the word now" used in the act of
1S45 referred to the time when the Commissioner of the
Aims House to be elected by thepeope and not to
the time OF the passage of the act There nothing in
the statute which shows any such intention aud such
is not the eaniug of the language used The ordinance
of the 10th June 1S45 be referred to for the
purpose of ascertaning what powers were granted to
the Commissioners by the act of the 14h May lS45-
There references made to the proceedings OF
the Common Council to show that they desired that
the legislature should by the act of lS45 confer upon
nate officers of the Aims House Department, including
the clerk. That may have been the wish of the Com
mon Council and reasons Of public policy may have
suggested such WISH but the law does not provide
II also contended the part Of the respondent,
that the Common Council having once parted with
their power by comforting it upon the Commissioner Of
the Aims House by the ordinance June IS S45 could
not. by subsequent ordinance, resume it the COM
missioner being the head of coordinate department
Of fha ifu pnVar nf Lnn nf mo nrin cnlp nj
law by which sch power once conferred could be-
come permanent vested power irrevocable by the au
thority by which it granted II was mere dele
CATION Of an authority for the period, not fixed and
like all similar powers, determinable at the will OF the
party comforting it. The conclusion to which | am
led then, is that the Common Council and they only
have the power to remove and to appoint the chief
clerk Of the Aims House Department and that the ap
pontment of the petitioner legal The respondent
however, contends that he has books and papers in
his custody chief clerk, and that the books which
he has kept have been and are in the custody OF
the commissioner. He does not pretend that he has
parted with the custody Of the books but this Is the
construction which he gives to the powers which he
has exercised that Is. that he has been merely an
officer to make entries in books which have been in the
custody and under the and control of the com
missioner think that in this respect he has mscon-
strued the nature Of his powers The ordinance which
defines the powers and duties of the chief clerk re-
qures that he shall keep his accounts in set of books
to be provided by the commissioner and that he shall
keep his books in the Office of the commissioner This
does not give the commissioner the custody OF the
books neither does it place them under his care
provided they become the books Of the clerk and
are so designated in the ordinance. The statute
under which this application is made refers to books
and papers IL the custody of officer, or In any way
appertaining to his office. The books and papers in
this cas- are In the custody Of the respondent or at
least appertain to his office within the moaning Of the
statute An order that the respondent shall deliver
up to the petitioner the books and papers in his cuso
dy, appertaining to the Office Of chief clerk will not
require him to them from the Office OF the com
missioner where the law requires them to be kept IL
will merely require him to relinqush hs control
them to the petitioner The last objection which was
taken to this application is that does not appear from
the petition that the nth which taken by the pc
ttoner before the Mayor had been filed In the office OF
of the county clerk IL does not appear on the con-
trary, that such oath had not been fled Neither was
the refusal Of the respondent to deliver up the books
and papers placed upon that ground And, although
Of opinion that this Is of those offices to which
the statute refers which requires his oath to be filed
still do not consider the fact that no such filing
is stated in the petition, sufficient for refusing
this annlicntion. Thc statutn the nettiOn fife