The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-09

pontee OF tho Governor shall mold until the commence
ent Of the political year next succeeding Tie frst anrps
election at which such officer could DO by law elected"
can ever occur, and hence The time OF oihoo OF
The spponee yo s, . never 40 terminate 0s,ug la.
force all the ordinances relative to the departments,
continued IN force the ordinance OF ls4s which gave
the power 10 Mayor and In effect, cy containing the
ordinance IN express terms, perhaps enacted as sta
tute gavesn efect greater Than il woa have had
.uch an inheres 10 the city, by virtue Of It's general
powers, withors express provision on The taojecs
Oiled hSi Iurn ns,' the deputy being sfs mourn
benz, by virtue Of the ordinance to tina, e.
feet on the dsan % ICE Corner nca%ssn,
the respondent Some Of them certainly do great credit
he ingenuity and sk OF counsel az do the nens
both sides of this case to hoe VINO participates them
respectively merely state some OF the points u show
that there question 10 he tried, and although
to NOT difncut to decide where the appointing
power by Lave invested think that reasonable ques
ton Of title 20 he Office exists, aud that ouch question Is
proper be tried in this proSee ting 1t
tended by the Legislature to authorize justice Of this
court sitting here 10 decide ia effect the title to Office
Il there Is a reasonable doubt ss to who .s eutitsd
II should be decided in direct proceeding for the pu
US the substitute for tie old writ of tina, name
~ OF the books and papers incident 10 Office of
office se, and should not DO allowed 70 ans thas
end practically which would do II the books and
ne essary The functions an sce are TO be varded
party his ely showing title to the Office Itself In
u ne YES nc myser TssnneS ~ sathoy, AMI
R GIG, and the opinion OF Judge Kent reported a, rage
63I Of the same volume and that of Justice E!munds IN
the matter Of Whiting. am incued ho~ever 70 60 fur
Their than these cases, and 10 limit the caGor Of this
proceeding 20 csses OF possession merely My own Wow
Of this statute s that question OF title Office should
not be allowed TO be tried ia It at ALL that the ab
sIraet right or the applicant "a unimportant where
anred into at ali incidentally, further than, perh,ps,
too see' that, IL in possession he has color Of title;
that be.rg in the ece uoicr color Of right, be should
kauA MO ahpV IN hnOks md
and the other hand that having the best possible
right to An Office, should not have the possession Of
the books and papers by this proceeding. while is ap
parent he is not ia the occupancy OF office and
situation to exercise the functions OIL
has succeeded to the ofce-,ha. ho s in r~. he sue
such ocehat he 10, taot In the office, and
wen WHICH to perform The duties Of IT. Thew ara Sdens
to the ofce aud should attend 1t ever-shoud attend the
possession and exercise Of it, not the mere right 10 it, bow
clear appears that the right not accompanied BY
actual ipcumeency of IT, and that therefore the possession
of them would not enable him to discharge the duties Of tho
Office.
The possession Of these a. the means OF exercising
the functions Of the office is indispensable to tue officer
and the public and the object Of this statute put
them ioo possession Of the actual incumbent for actual
for The time being, not TO decide who 10 the abstract
Is entitled 70 them DC Suse ne Is emit sd - the Office to
pend the title to the office, and 20 think should the
right present possession depend on the fact Of present
possession OF the office TO which they appurenant
doubt much whether party not In possession OF Office
and therefore condition TO exercise the funoions
papers Of IL awarded 10 him IN this summary manner,
even II his title to we're perfect; and an inclined 10
color Of tile and performing The ines Of should have
them. The OF an oicer de dcto are valid in law
The policy Of the law Is that the actual incumbent
OF Office shah perform the duties Of it for the time
being tina, the functions OF an Office shall not cease
be suspended because OF doubt about the utlc Of
an incumbent and hence Is the policy Of tho lag and
OF this statute part OF tho system, that the Incumbent
shai have at all times the means Of performing these
dmes-fhe books and psfers W, rs the other means
hence the actual incumbent, the actual
to such office" rather than the person emitted
10 IT, apparent to my mind that ii Is not
intended the party enhled merely became no is
entitled The only proper mode Tor person entitled TO
an Office but not In possession OF to sssert his title ID
by the actoa Of QUO iodyranto In that action his title
may be established udicialy, and possession acquired
nd this being done he Ia condition 70 avail himself or
this proceeding To get possession OF the books AMI papers
incident TO the office. He Is In condition 10 use them,
and his adversary being busted be not IN such cond
tim. They IN that case accompany as think they should
always, the possession and user or the furniture.
From VIVA, has been said above appareat that the
suit OF this proceeding With must depend chiefly the
question OF possession Of by applicant Was
he In possession Of ny What the evidence that
subject u Ia proved tina hc received commisson that
made and died with the proper officer tho oath Of Office
that he made the proper bond snt hed with the proper
oflcer that be went into the department devoted 10 tho
faction OF the business Of The ONCE containing the
books, papers and phernaa OF the Office ella 10
be Commissioner and tho head Of the ONCE exhibited
his commission and proofs OF his title, asserted his
title authority the business clerks and employees
OF the establishment assumed for himself seat and desk
for the Transaction CT business aud announced himself
ready for orc.Al business and arualy performed
ofcial act in granting permit for snrne purpose He
Though the cay the hour Of closing the
oncs, and tn ther the morning renewing all
his claims ard ing his place at lis desk Tor the
action OF business and continued to ocury the pse under
his Office until renewed thence by force late In
thai cay. The day be returned aud peacd al his
claims language and acts, and remained again until he
again eecied by force and assured by the man
taking the lead in expulsion tina, his presence there
would be tolerated. and that AL efforts TO ROMAN would
sssnpg possession Of the Office aud claimed to bc 10 il
by virtue of his appointment To be sure Turner. the
Deputy Commissioner did not yield 10 him possession Of
the books and papers but refused W do under the in
sructops Of the Nayor 10 that effect and confined him
se TO transact the business of the Office as such deputy
and enpe ~ force eec ell hin from the apartments but
neither OF these acts o. the Mayor Turner Bennett
Affect the rights Of tie applicant They had oice TO
dispense Judgment 10 pronounce ON the claim OF the
applicant; had no power In the premises by
doing Withholding any action 70 create change
any tights OF the applicant their withholding or ylod
Ing their recognition assent 10 his claims could not
Affect any Increase or dimuuion q those rights The
occ Was vacant from the death Of Taylor Turner mere
~ had 10 yer Ia At Street Commissioner Of q
vacancy. CORP Ord, ed Of 1859, p 81, !. s3i "ln
csse OF vacancy 1.-The deputy
supplied by appointment" This did not make him
Street Commissioner Il certainly did not an the office
that no vacancy remained 10 be alcd. There Is
no Foundation for such . claim. II be "a, the
argument wAs) f,Ied the vacancy, what vacancy,
IN the language OF the ordnance, remained to be
supplied by ue- appointment There IS nothing 20
sueees such idea, and the very language OF the or
nance upder which the claim Is made 80 far from Au
ihozng excludes H. The possession OF this properly of
the Office thus withheld from HIM no, a, nil essential
to his poeseson Of the odce or franchise ,e and xhe
thor this asseri OF authority which he lacked tn, pbys
cal force MAINTAIN be deemed in Law amounting N
possession not, ia no important He was not the more
Street Commissioner u he had, the less " be
had not that possession Of the properly II seems
hardly nesessary add that whatever his
relations rights to the o1lce, Or the property
pertaining 90 ID, the forcibe removal OF hm
from the occupied for the OF the bust
ness oce aud from the presence the property
pertaining 10 II, cannot affect then. His rights the
same II he had remaiscd undisiurbed and md coon-
ued without interruption the he attempted 10
sue The ole. and he, with .sn and color
Of tile entered H. and assumed the rapclis. There
preenue that he gncd forfeited any right he
thus acquired u follows that ae IL now In possession Of
those rehts Re Is therefore Stfeet Commissioner DE-
fafio His title a. the office may be tesel IN the proper
proceeding. but, Enormously argued 10y tie
the argument The title or one in possession
der tile cannot be tried here For the " THIS
proceeding possession with color OF TIE snfic 10
il said in the once, because his boad
hvt no Nav Il ~