New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-14


power 70 fl vacancies whenever they shall cccar not
Cu il State ofioee proper such 20 those Of Attorney
General mud Treasurer bat Sin any OF The Offices OF
ibis state" hrd the Constitution. il must be ad-
nnttcd contains on this point no express exception.
II d. carcs IN broad general terms that "the Legs.
laiure ebell provide for filing vacancies in Office"
II u uLreGeesaIy-aud indeed It would be improper
ON mere application for a preliminary njuGctioH,
10 Weigh infinitely aud critically the arguments in sup
port OF the TIetensicns ot tho respective claimants
" il enough that case be made OF coed faith and
fur color Of title At the same time, should say
in justice TO Nj Deylin, that his claims in some de-
gree res statute Of the State more recent than
that Of lsi9 which provides that the Street Commis-
sioner II The city shall he appointed by the Mayor
with the advice and consent OF the Board o. Alder
men" To determine, however this question of :" the
mere right" a proceeding, as already stated, in the
nature Of ono T0rrario, is the appropriate method
Such proceeding will, 10 doubt soor be instituted;
ond the only question is, Which Of the two rival claim
ants shall 10 the meanwhile have the advantage Of
present possession Concyer, il appears, was first in
orcer of appointment His commission bears date sew
ersl days before that of Mr.. Devlin. lie first, he
SAYS. entered upon the duties Of the Office al
though he implicitly admits that Devln first OBJ
tanned possession Of the books. What constitutes
possession Of an ofiice-whch of course means
something different from mere room or apartment
may be at times difficult problem to solve. One
Of my colleagues in another form of proceeding has
had it before him, for several days in this very case
His published decision and the reasoDings with which
it was accompanied sufficiently show the embarrass-
ing nature Of the question. Shall ], then, Ou mere
interlocutoy motion, not affecting the ultimate right,
and addressed to the discretion Of the Court, open
the inquiry afiesh 1 may well say, in such case,
injandun jules rcnerarc dolorrm The public peace,
besides IA it to me- requires that should not
disturb the course Of that decision. 1t was
made by an officer Of co-equai powers, and
execution of il as a threatened trespass TO be pre-
vented by immediate Injunction, issued on mere
aidayits before final hearing, would be to lead
to disorder, and would be enrelyiat variancel with
the Difference due from one judicial functonary to
other; especially where both of equal grade and
both members of the same tribunal.
In ADDITION to these considerations it is proper to
state that preliminary pjunctOns, in cases of threat
eDed trespass TO personal property are seldom it ever
session. defend themselves, in the ordinary
of law against any illegal disturbance They can re-
sort if fey tight, TO the criminal magistrates orto
the sheriff and his deputes-and they are wrong and
are on that ground without the ordinary remedy they
should Of course not be aided in such case by ex-
traordnary Injunction. To warrant an extraordinary
inerpositOn in their favor they must show If not an
"unquesticned title. at least strong presumP,tive
one, ard danger Of "ireparabe injury Both these
conditions must concur. Such is the law even in refer
ence to threatened tresspasses on real property;
Johns. Chanoery Rep. 3l5. The of the rule is
still stronger when applied to mere movable chattels
not in possession Of the party sought TO be enjoned
but in The possession as this complaint virtually ad
mts, of the plaintiffs themselves On the assumption
that Mr.. Conovers title for the purposes of this mo-
ticn s to be taken to be good as Mr.. Devlins and
Mr.. Devlins as good az Mr. COnOver have no power
as vet to decide that issue between them what occasion
there for int rferencc AS to the custody Of
the books am to presume that il will be equally safe
to whichever Of the claimants it may be confided,
and to any threatened removal ia positively de-
MED under the defendants oath. The defendant also
Denies like manner any intention to take possession
Of them Except by the legal proceedings before Mr.
Justice Peabody" Whatever then may be the tech.
oh cf IN
even TO revise them by Injunction Is that either the
fit or the orderly mode Of review, one single judge
sitting in Judgment upon the action OF another single
Judge of the same court and with the same powers!
The public Dtercst-the interest OF oil persons hav-
ing business with the office in cOntrOveSsy-impera-
lively requires that until the question of title can be
decided there should be some one person recognized
in peaceable possession de facto OF the ofice and
Of of the munments necessary to the discharge
of its duties Whether that person. in the present case
shall be Mr.. Conover or Mr.. Deylin is of less conse.
quence The former is in possession-so, nj least,
Judge Peabody has decided-in possession, mean, OF
the Office Why them should enjoin him from inter-
ferng with the books Of the office
In the case of TaPpan aud Gray, the two contrasting
-four inspectors, an injunction issued by the Vice
Chancellor was dissolved in effect by the Chancellor,
ard the dissolution unanimously affirmed by the Court
above; 9th Paige, 507, and 18th Hill. "This Court"
said the Chancellor, "certainly ought not to assume
the jurisdiction to Dust an officer IN no way
connected with the administration Of justice. and
over whose appointment il has no control, from an
Office the duties of which he s discharging under
color Of an appointment from the Executive OF the
State, until his right to such Office has been settled
in the mode prescribed by the Revised Statutes for
the determination of his claim, that is, by proceed
ings in the nature of quo warranto. tray IN that
case ike Conover in this claimed under dsputes and
las the Constitution then stood, very doubtful Com
mission of the Governor, issued without the sanction
of the Senate; and, like Conover, Gray too was In
possession of the Office in respect of which he was
Sought TO be enioned. The two eases, Therefore
it to be-are perfectly analogous. am aware that
technically, the present application OF the city au
horities not bound by that decision and that had
the same evidence been before me might possibly nave
received ii in different light, and as consequence
ave arrived at different result. But although not
bound by the decision, rs an absolute res Judicaa,
am bound to respect it as controing considerauon
in matter addressed to my judicial discretion ana my
harmonious action of the judiciary was in substance
observed BY late distinguished Chancellor, are more
important than the rival CLAIMS however interestingly
the imme date parties, of two competing flour Luz
spe ciors Or Street Commissioners.
1t to be regretted that the question of title cannot
be promptly brought TO a final determination. HAD
forms been waived that question might have been
disposed of in much less time, and with much
slowed upon the merely incidental point Of present
possession. The facts necessary for ITS adjudication
are undisputed, and mey be stated IN few
lines. Ard the argumentsand authorities which
were deemed proper I'D Inc dtscussioh vi VI. iucs-
ton of "color,' and which extended over
several days, would, it is to be presumed, need
little expansion to settle the question Of SUBJ
stance" Under the circumstances, it would seem to
be the duty Of the Attorney. General to interpose
"Whcre several persons says the Code, sec. 4io),
claim TO be entitled to the Office franchise one
action (by the Attorney. General may be brought
against all such persons order TO try their respee-
tive rights to such Office or franchise"
The Court, it will be seen, might have disposed OF
the preseLt motion on single propOsltion-that
mere naked trespass Threatened apprehended Is no