New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-09

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The emOe W. .en,s With which 70 perform the dutic
means ~ se incident TO the office aud sdouid at
wM a,s5-should attend the possession aad exercise
,na s ~, he mere right to it, however clear ap2t
OF H. hc' s@ht Is not accompanied by actual iocguoen'
thslt - and that therefore, the possession Oh tuen
y,d not enable him to discharge the duties OF '"'
Office. n. of exercising
tbe functions of the Office is ndpensaoe 20 =, t
81 The pub,c and the object of this sts'ue 20 ,ai
then into possession Of the actual r. ,he ab
nse for the time being not to cecue WV U,ed IN the
eraot is entitled to them becsuTSg ,e 70 them must
tmee ~ SS' on the title to the Once anu 10
fink should the right to present psseST oa tn which
the fact of present ioubt much whether party
,ney gre Of an office, and therefore NOT IN
no ~ =, exercise the functions: shoula III auy o.se
baye The possession OF inc oo"hs "nu pap on s bis
naNo "a 70 him in this summary manner, even u MS
awaroe ere ne,fect: and am inclined to thiok, on
title 20 p.nd that party in office with color OF
& md performing the duties OF it should have theh
IN acts of an officer dc fac'o are valid IN law.
n nolicv of the law is that the actual incumbent
IF an oce shall perform the duties OF it for the time
being that the functions OF an ONCE SHAH mol cease OF
be suspended because OF doubt ABOUT tue TUE o' q"
~ fhis statute ga part of the system, that the ncuh
bent shall have at all times the means OF petiorm.ns
these dnties-the books and papers, as well as tue
other means hence, ...,
This statute is for the actual incumbent the actual
0successor to such Office" rather than the person
entitled to succeed to it. 1t is apparent 70 my mqa
that il Is not intended for the party en.,uuu
person entitled TO an office but not IN possession OK IT,
10 assert his title is by the action OF ga9 arraao
In that action his title may De estaosnea Jauifaay
and nosse,son acquired and this being done he Is In
CONDITION 10 avail himself of this proceeding to get
possession Of the books and papers incident 70 tne
Office He is in a condnion to use them, ana M
adversary being ousted, he is not IN such condition.
They ia that case accompany, think they should
always the possession and user OF the furniture
From what has been said above it is apparent tha'
the result Of this proceeding with me must depend
chiefly on the question OF possession OF the ofhce oy
the applicant. Was he ever in possession OF 1t
What is the evidence on that subject 1t is proved
that he received commission; that he made and hlei
with the proper officer the oath OF once thst ne msae
the proper bond and filed it with the proper oficer;
that he went into the department devoted to the trans
action of the business OF the ONCE, containing tne
books papers and paIaphernalla OF me once, c'ai
office exhibited his commission and proofs OF his tite
asserted his title and authority over the business;
clerks and employees of the establishment, assumed
for himself seat and desk for the transaction OF pus
ness and announced himself ready for official bnsi'
mesa al actually performed an official act in granting
q permit for cone purpose He remained there through
the day TO the hour Of closing the ohce and returned
thther the next morning, renewing all his claims ana
resumpg his place at his desk for the transaction OF
business and continued to occupy the place under his
claim Of office until removed thence by force late IN
that day The next day he returned ana repeated al
again until he was again elected by force aud
assured by the man taking the lead in his ex-
pulsion that his presence there would not be tol,
Grated, and that all efforts to remain mere woad
assuming possession of the office and claimed TO De In
it by vitue of his appointment To be sure Turner,
the Deputy Commissioner did not yield to hm posses
sion Of the books and papers, but refused to do so I'M
der the instructions of the Mayor to that effect and
cortpued himself to transact the business OF the ONCE
az such deputy; and Bennett, BY force, elected him
from the apartments but neither OF these acts OF tne
Mayor Turner Bennett affect the rights OF the
applicant They had Office to dispense, no Judg.
ment to pronounce on the claim of the applicant; had
no power the premises by doing or withholding any
action TO create or change any nights OF the applicant
and their Withholding yielding their recognition or
assent to his claims could not effect any increase or
dminuon of those rights. The Office was vacant
from the death of Taylor. Turner merely had power
TO act as Street Commissioner IN case OF vacancy;
corp. Ord ed. Of 1856, 81, sec ga I'm case OF
"ss Street Commissioner until the vacancy shall be
Supplied by new appointment. lhls ala no,
make him Street Commissioner. Ii certainly oo
not fill the Office az that no vacancy remained TO De
filled. There is no foundation for such claim II
be las the argument was filled the vacancy what
vacancy in the language of the ordinance, re-
NAMED to "be supplied by a new, appoint
ment !" There is nothing to suggest such an idea,
and the very language of the ordinance under
which the claim is made so far from autnor r
excludes it. The possession OF this properly OF
the Office thus withheld from him was not az ai essen
tiaI 70 b;s of the Office franchise itself;
and whether this assertion OF authority when ne
lacked the physical force 10 maintain be deemed In
law as amounting to possession or not not import
art He was not the more Street Commissioner if he
had or the essso he had not that possession of the
property. II seems hardly necessary to add that
whatever were his relations or rights to the office,
the property pertaining to it, the forcble removal OF
him from the rooms occupied for the transaction of the
business of this office and from the presence OF the
property pertaining to it, cannot AFFECT them. his
oh no mo- a
and had continued without interruption the course he
ATTEMPTED TO pursue. The office vacant, and he
with claim and color Of title entered it, and assumed
the franchise There is no pretense that he has re-
signed or forfeited any right he thus acquired. Ii
follows that he is now in possession of those rights
He ia therefore now Street Commissioner de fdcto.
His title to the Office may be tested in the proper pro-
oeedng; but as was strenuou4ly argued by the re-
spondent on the argument the title of one in possession
III der color Of title cannot be tried here For the pur
pose Of this proceeding possession with color OF title
is sufficient. II is said that he was not IN the once,
because is bond was not approved by the mayor.
This is one of the questions TO be tried IN the SUIT Tor
testing The title to the office aud must be referred to
that forum. II is replied to this question, among o'her
things:
THAT no bond is required by law.
2. That the approval, being merely mode of deter
mining It's sufhcency, IS not Indispensable, the suf.
fcency being shown otherwise.
g. That the efforts Of the applicant to get the ap-
prevail Of the Mayor and his refusal to attend to it,
excuse the omission, even II il were otherwise
sery.
4. That if an approval was necessary, and nothing
had been done to excuse the want of it, still the app
cant was in possession, if the entry without the
approval was wrongful.
Here are several grave questions arising by no
free from difficulty and not at all proper to be
tried here. He claimed to be in the office. He claimed
also 10 have complied with all the legal conditions of
the appointment. What these conditions were and
whether they were precedent not and whether they
had been fulfilled and if not, whether the fufllment