The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-12-25

JOHN f. DEvELIN.
Decision on the Mayors Veto Power-The
Commissioners OF Deeds 20 be Sworn IN,
SUPREME CoURT-sPECIAL TERM,
Before Hon. Judge Davies.
DEC 2i-ln tie Moaer Of The Application Of JGEius N
Aehley for Manddnis, DC. 10 Il. B. ConnOsiy Esq,
Can,y CrL-The applicant in this case claims TO have
been appointed by the Common Council uf the city OF
New York Commissioner OF Deeds and alleges that he
has applied to Mr. Connolly the County Clerk, TO ad-
minister 70 him the usual oath Of ooe and which he
has declined to do. mandamus Is asked for TO compel
him TO administer such oath.
DAVIS, Justice-By the act OF March T. 1913 (LA VI
Of ls48, Chap 76) IL declared that Commissioners Of
Deeds In the cities ofths State shall be appointed by the
Common Council Of such cities respectively" II thus
tcat the act confers the power OF appointment
the Common Councils Of the respective cities OF
this State exclusively without the concurrence
or cooperation OF any other body. IN relation
m w ana Tor 'ns cy
council OF this city, and who compose It, Section Of
the amended charter Of 1880 (Davh Laws, 1897 de.
Ares that the Board Of Aldermen and the Board OF A.
ss,ans shall together form the Com Council Of the
city" Scot on Of the amended OF 1858 Davis
Laws 2l0) declares that the Board Of Aldermen and
the Beard OF Councimen shall together form the Com
mon Council OF the city, rs would therefore, to
be quite clear without any negative words thar the
Common Council Of this city was COMPRISED only Of the
Board OF Aldermen and the Board OF Couucimen But II
Will be reooected that previous to the amended charter
OF 1850 the Mayor and Recorder OF the city, by OF
the then existing charter were members Of the Com mon
Council and rat with the Aldermen and Assistants when
Davis Laws p rs BY section IS OF the amended
charter Of 1880 Davis Laws 2ol) Is declared thu.
shall be . member OF the Common Council thereof after
the second TUESDAY Of May l63lv THIS express prohi
billion, coupled with she declaration 10 The amended
charter, would seem to make 1t clear beyond qres.
ton that the Common Council Is solely composed Of
the Board OF Aide and the Board OF CouIcmen and
that the Mayor cannot be regarded any sense as part
OF tbe Common Council and Il follows that wnen at
OF the legislature declares certain appointments shs
made by the Common Councii, II means the Common
Courcl only, without the approval OF the Mayor know
o. no rule TO the construction OF which
would authorize such reading OF tha; now under con
sderaton. 30 as to require the OF any
body II seems to mo tha, the power OF appoln
conferred BY the lsws exclusively upon the Common
Council 70 be exercised by them irrespective Of
cuErence or los Of the Mayor any
fIcsonary. The exercise Off power OF appointment
10 ece purely executive net and when the authority
confer has beea exercised Is aoa for the term Of
the appointment. That the power 20 make appoat.
iurt rs tbe exercise OF executive authority, apoasent
from section Of tho amended charter Of 1874 DAVIS
Laws, ZOO By that section Ii provided that no com
nee or mem Der VI the Common Council oh.i perform
any executive business whatever except such shall
especially imposed on them by the laws OF this state and
except those, the Board OF Aldermen msy approve or
reject the nominations made 70 them 1creuser pro
ytoed The power 10 appoint {, o1lce 10 regarded Q
political ulys power to be exercised By the per-
son authorized TO execute according to his discretion
tMarbrry Vs. hadrlne, Cranch l37 Chief Justice
Martha. N that case says3-"When be (the Psesd MT
power. ana bis discretion has been completely applied
TO the care II by law, the officer be removable at tee
VII Of The President, then q appointment may be
Immediately made AMI rights OK the officer are ter
mra.ed Bat N o fact which has existed, cannot be
made never 10 have existed tie appointment cannot be
amh.Ned. Ard, conss quenily the officer is by law
not removable 81 the will Of the President the rghB ne
has acquired protected by law, and
pie % TIE President THEY cannot be BY *
rent Therefore, that the exercise o, the promise
OF appointment 10 oshce 10 10; a legislative oct
efi n AZ q
laws, rspealable IT the will OF tie law maker,
subject 20 the Inhibition in the constitution OF the
United ases, that 10 law soa be passed iclpartng
the OBJ cation Of contracts. We have that such
power exists In reference to appointments oice. When
shall luther says the ABOVE c;ted N. Mating
then since mis- American MIsson signed by the Pres.
and the laws creating the Office gave the officer right
10 hold for ave years Independent OF he executive the
appo- en was not revccabe bet rested 10 ne o.eers
eea rights which protected by the Avs OF hs
try" Il vas claimed gu The Argument, that no, 9Th.
SANDING the appointment yiver extensively = the
crmcr council and thu; the Mayor vs not q mem Der
thereof yet the &C ion q the Common Council was s.b
lect 10 ais approval 'e'ee on the two boards had
communicated 70 each oiler their acton upon this SUB
lect N the form o. resolution and eoiioo ~ OF the
Charter o. ESQ requires that say ac ortnanes or re-
sorton wch shall have passed The two Boards OF the
Common Corno before shail tako eject, shat be pre-
serte 70 the Mayor for his apprcvaf be- approve DO
snail sgn It he disapProves, he ,hai fe:srn u within
ten days 10 the Board 70 which gaale5, With bis 90
iectors BY section is, y s provided that he Bn.-d 10
which such resolution act or ordinsacs returned
should occ cd 10 reconsider the SAGE aad n soriy
~ tho members slec.ed should yeP1H 4, tie same
should Dc 10 the orey Bard where The same Was
10 DO reco3sdered and H. tbcrerPcn Ike ma oriy ap
proved fhSreo. then the ,houd stake effect
act o. law q ire Corporsior b. scsou la,h OF the
charter Is PROVIDED thai the MAJOR should noi
rs.arn nny at ofaGaa1e or reso.sa.a 80 pfe7eass 70
take eject n he same manner that IS AS act or Law
Of The Cooperation, as ne hai rgrdt By secuen
the members elected % earh ard required TO rcpns
any act resolution or ordlnancc whoa shall have boen
returned oy the Mayor With his objections By reference
10 section OF the amended charter o. $780, will be
seen that the legislative power o. me Corporation Of
the city Of New York /. vested y The Board Of Alder
and Board Of Assistants, now Boa'd Of Council
men. . apparent, IRON these premises OF The char.
ter that the action o. the Mayor confined 70 such mat
ters - shall have passed both Boards, And Viii a,
with without bis sanction. you'd 'taxe eject - an
act or law o. the Cooperation We hare seen that the
ssu.s q Deed, isyoyed ~ srs,ess upop he Com mon
Council, not the Corpor atom OF the city The
act or resolution o. appointment bccaua IN vet or Aw OF
the Com Council and not an act resolution OF tae
Corpos op and e only IN latts- that
the co operation OF the Mayor .nvcsed The MAJOR as
the erecntN. OF the raton, 10 caief oioer, has
dipancs or resolution which = 10 take eec. act
sw @ The cor?or,ton but dccs no, tonov rom tbs
driies dtvolved By av upoo the Common CoIncl
was conceded N the rgumsni hat, Z tie Common
C,uDcl bad met In Jnt n seting Of the too Boards,
and made The sppor. ne,is, the Mayor would hare
hsi 10 authority or right % have inter posed. !
canpc, gee that the iorm Of comnuneaton which
the two Boards have adopted 70 commcnca.s % each
other his deierm nation u reference 70 tnese ap-
portments, changes Or sGccts IN the east the
powers or rights u any Or The Departments Of tbs
city govern men The Bosrds might have communicated
with each other By letter committees o. messenger
What the law lured u, that ory Of each should
concur an appointment AMI when such .s
Ascerisned, the appointments become absolcte. Irevo
cable and complete Tor the term 81 the sprontee The
Boss have adopted the form OF resolution for the pur
pose Of more easily or conveniently com nuucatng with
each other cannot IN way alter or Affect the legality
OF their proceedings aud render nehoa,e o. neccctca
what would otherwise be complete ana dnal Tho result
OF examination s that the appointment Of the applicant,
Julus Achley, became complete By The acton OF the
nosr6s Of the Common Council without the concur
OF the Mayor and the; his dissent "a ereto
way shec " va dlty. Inst vas the duty OF
the County Clerk being furnished n be has been with
the certified copy Of he proceedings OF both Boards OK
The Common Council, showing said srro'rtueut
To sdrn.p stnr to him the usual oatn OF oalce.
Jpon sch refusal, II q vel seated that Il the up
picsni 10 entitled The Oh CO. the eusy Of this court
10 mandamus W the proper ONCE authorized 70
scmbister The oath 81 ocoe re wing MIN " " do ~