New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-05-06


al the functions Of the office for he ing Uneven
wTongfuly-must act, or no one And il Is not q
oil difficult 10 see that in very many and most
the public interest would require that the duties of
flee should lot be suspended and it, functions cease
Until the matter Of personal right between rival claim
| ants could be determined.
This then, take 10 be the reason that no cases o
lie Kind are TO be found in the repors-thet the wis
q am Of the times has not approved of the principle
val ich such remedy is allowed, or has not deemed Il
die eet TO adopt such practice, and that therefore
has y, 'yer prevailed Thompson ag Commissioners o.
Canal Fund Abbott's Rep. PAS.
fib; be the reason the absence of precedent is i'm
rortapt al entitled TO weight in considering this ques
ton. IA.
CIsrcaror fths State, in TsppSn vs.. Gray reported
in OH Psiee 5U, and by the judgment of the Court Of
Fr, in he anne case, reported in Hill 25a In that
case The Char eOr refused 10 interfere, nciden-
,an,, erEn IL igation 10 the title 10 the Office 10
rroiecf the fund arising from the emolument of the
,ce in favor ~ plaintiff whom he pronounced enti-
tied to it, against insovent intruder exercising the
powers and receyn X the fees tor the time being and
be IN, hi. refusal ON the ground that the public ntcres,
rcred tho dutie q, the office To be performed BY the
Incumbent whether in it rghttuly not aud with
much delcaoy did he egard the interest oil the public
in the matter that he declined TO interfere even with
the emoluments of the o uSe IN "hVh uie Puohc hau
no interest lest such ine Terence should interrupt n-
cidertslly tha discharge O, the duties of IT, in which
the public interested.
The Court of Errors then our court of lss+ resort
unanimously affirmed this de- ioh ana so iar rs opin
ions expressed, affirmed IL Tor the same reasons
given by the Chancellor. 80
At the time of the adoption o. the Code, then ls4s,
no such practice had been sahcuonea, ana the
principle upon which if Mt all, must prevail. haf
BEEN not only thus negatively, ut IN the cass have
cited, if no other, affirmatiH ely rel '@'ia'eu:
But it is said that public officers have OFTEN been re-
strained in the performance Of acts nder the wsant
of their Offices when those arts haN 'e been shosn to
be unauthorized by law. Doubtless 'hey have Been,
and will continue to bs very proper " But restrain
ing person from doing particular est because me
act itself is not proper TO be done Is very dinetsm
thing from restraining the entire nct rss OF putc
{ flee On the ground that though tn e discharge 81
those functions is necessary 10 the puber welfare ~
il by law declared TO be, and one else but th'
incumbent for the time can dischsrs ttems stiI az
there is doubt whether the ncursb, mt the proper
person for the place. he shall refrain from aerng and
the public dispense with the benefits o tfe ohsee -
I'll the question OF title can be decld o me 'calouS
process Of law. 1t may very well ee thot man.
being public officer, may be restrane isa proper
case from doing particular act OF an otcis, cGrac-
ter, but 1t by means follows that pmblc ofscer
may be restrained from dispensing Its oanet1sfo she
pubic That is very different matter. The prasti-
cal utility or benefit to the public of office oaroot
be questioned before Court. The law, by cTetisg
it, has settled that question, and from that decision
Courts of Justice entertain no appeal. The ofses T.
self is not only emanatiOn from Sovereignty pat
represents and in embraces the prlci2e ct
sovereignty itself Courts therefore, will not uraer
take 10 restrain one action operation Of IT. Witch
they would in effect do if they should restrain gt.Ier
ally the incumbent he Of necessity being nor the
time the only person through whom the public s'n
have the benefit of the functions OF the Office
IL is not understand pretended That this rtsnefy
has been given of late by any express enactsnelt
There is pretence that it II expressly provided tn
in cur present system of practice.
The claim is raheY thsi nothing m orr present syt
ten orbds it, and that there is no COED in thu
nature of things why this and the Other provisional
remedies in the Code should not Be available IN
plaintiff in this suit az in others. have endeavoIed
to show that there good why should not tA
is in casss of this kndthst it is opposed to and III
consistent with principle, and enlightened poacy,
and if have succeeded in this effort, nye show
soieens reason why its existence shoaAi not be NJ
idea AND might stop hsre. But GLANCE at th,'
statute Nv which the present action OF quo warants
was created to take the piece of the iorneE W OF the
same que, and information in the nature Of 1t, will
not be Improbable.
The arst remark on thu subject of this ae.on, it's
usee AMI powers aSe ms follows Code Of Prociare
-: Aa- 'nho nd;es hot nhtapah l,''these
- TOMS meaDlrg wilts al quo warrSnto, SS, which
" may be obtained by civil actions und rtts provisions
- Of this chapter" " RI sscS heretofore oktssped
" Mese forms mar be obtsiaed, &C., &C., unter the
provisions of this chapter" This remedy have
shown was not therefore abtainabc under the forms
there referred to- and this language ia far from sug
gestng that anynew were to be created. heed,
il not 0ry.says chat the odd may, but BIZ .mpica
ton = suggests that only those Therefore obtanabe
may be obtainsd under tia provisions of that chap
ter.
Tie language 10 be srse il affirm Stye-ths ertan
rem oaes may hereafter 10 obtaiaedJ but 1t pregnant
with the suggestion Of negative aat other rensdies
were not generally to be had thereu adler.
Other sections Of the Code, in expressly proThng 1
for .hs ard other of e provisional remedies IA GER
Ia i cases in this action strengthen the Presumption ]
HI u neither this nor the other divisional reiIsedies
ar intended ~ be es Bile 10 except "Aere they
are express y declared in terms tfsbe so; and On the
Aoe am satisfied taai it is not authorized ~ that
system. Sse ABS, providing Tor arrest IN certain
oecifed caser and SEQ. a. &C.
The Cole affords many Othep eVldensss that its
general provisions alto actions jo not apply to the
action treated Of in .his chepteE, to Jacos
and ono 1a1lTGHto.
IL NAV b. said III IT. Of tins reasons n does not
,pply To- case in which the validity Of the oces Is IN
controversy. It. is NO. sssgy that : should, Tor
Ibis is not such a case. a.
IN tbs st and the title Of the defendants TO them is
alone Ia. question: Ny conclusion is, that an iuIunc.
tion restraining generally the fanctionsS f 0fccrs -
!, case Of this kli, is not Authorized oy law Lie
onsd sstion os the other points made ny deiendants
becoIyes unnecg ssary in the zlew nave akeh Lne
iniun aion mubt be dissolved.
slrREME Gargr-GzxzaAl TsRyeNlY d-BeSore
Judges MITCHELL, EscsxsELT and PEABODY.
Tn. People o. tLe relation Of Fernando Wood ss simeon
Drspsret al.
The arguAslt upon tia quo WaTxaRt0 "as tAit nn'
ished today Mr.. OCoaar speaking on. behalsot the
pIaintiff AID N.Y. Van C0ti for the defendants. Ihs
Arguments OF Mr.. Cots sides having been so fss5
presented IN our columns heretofore, We deem rePso
ton thereos unnecessary. Counsel. are limited tovo
hours ea.h. Both gentlsmen spoke with force Is.nd
fervcr.