The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-06-25
NEW YORK HERALD, THURSDAY JUNE 25, 1857

Er Hrady-ls rot This ASA Ming range utterly unwsr-
raztsbef II my friend wishes u prove that Mr. Corover
dt ncs see mayor Wood and cid not approve his bonds
Mr. FisldI win prove Mr. ConOver's election from The
| OH &C Of Street Commissioner by mob.
Mr.. Brady-You wish to show that mob elected him
Mr. Feld-I wish prove hat be being in possession
was turned out by mob directed primarily by the Mayor
| that the Nay or dire tied the police.
Mr. Brady-You have not proved that Mr.. Conoyer
in the oce, and then is of no consequence who turned
| him out.
lhe Cour- by dnt OF violence he was elected he very
Mr. Brsdy-If he elected Il 10 consequence who
elected him The Mayor may decline 10 answer he NOT
Mr. Iied-yhen you object no, 70 my having this tes
| mony, but 70 ny having IL from this witness?
| Mr. Brsdy-So, sir; it is none Of your business who
elected him object to any inquiry 70 who put anybody
hss aes OF ev INTO s trial O. al these
possession and was turned out, We admit that his right
| conld not be thus taken away.
| The Court-The objection 10 TO the order.
After some further rambling discussion, the Court al
ou,ned with the Of all parties, II O'Clock this
morning.
| POINTS FOR RESPONDENT.
The following the points TO be argued by the counsel
First. This is proceeding to try the title to the office
Of Street Commissioner That trial be had in this
FORM Mr. Conover must proceed either by quo oGrrdu,
method Of giving possession Of office TO having
clear title TO it is not applicable here, where the party
proceeded against claims under formal appointment and
admitted be already in possession People ag Ste.
vens Hill, Gle. Natter Of Whiting, 2 Barb, 5l3 Nat
ter of Wsch, "a Barb $780, People sgt Corporation of
senond. Mr.. Conover shows no title to the Office of
Street Commissioner Of the city Of New York.
acts subsequently passed before 1857 conferred and
cognise the of the Corporation of tue city Of New
York to provide for the CONTROL regulation and govern
ment Of the by ordinances by the appointment Of
suitable officers otherwise These charters are CON
| tpued in force. Charter Of 1857, sec. 5i)
B. The charter Of April H. 1851 continues the corpora
ten, with ali the grants powers and privileges hereto
| fore held" (See charter Of 1857, sec. 1
/ mentioned
years ago By the appointment of Street Com missioner
for the city OF New York (see ordinances Of 1919,
D. Until the year 1919 he was appointed in the manner
prescribed by the charters viz by the Mayor with the
advice and consent OF the Legislative departments Of the
The only material change made by the charter of
1Si9 in reference to the Off 10 Of Street Commissioner
was 10 make an elective Office Charter of 1919,
| tons 1921
F. The 2Ch section Of that charter expressly provides
that in of vacancy Of any of said heads Of depart
mcnt, by removal from Office otherwise, the Mayor,
by and with the advice and consent Of the Board Of Al
derman, shall appoint person to ill the same until the
vacancy eha Allied by the electors at the next charter
election. The Street Commissioner Of the heads of
| the departments here referred to.
G. The 2st section Of the charter provides that
several executive departments and the officers and
| and control OF the Common Council so far the
| shsl not be inconsistent with this act"
H. The corporation under n, powers conferred upon
the executive departments In which, amongst other things
they provided for the appointment OF deputy Street Com
4
the department. should perform the duer of Street Com
/ missioner.
head OF the department should be fed by the Mayor,
with the advice and consent Of the Board of Aldermen
sec n charter OF 1851 q ordinances OF 1885, secs
| 227, and 234
L The charter Of 1857 has not altered the organization
OF the Street Department. the mode OF selecting OIL
GERS nor the control or regulation OF its action otherwise
l. 1t restores the power Of appointing the Street Com
missioner to the Mayor.
j. This charter does not deprive the Mayor of the power
to appoint Street Commissioner In the event OF the
becoming before It's term would expire by lapse Of
time.
l. The provision which was TO continue in Office the per-
who Street Commissioner when the charter of
1867 took effect cannot be taken have assumed that
no event other than lapse Of time would render his Office
vacant
q And although the charter does expressly provide
for the filling OF vacancy occurring otherwise than by
Quires it TO be so Interpreted term may expire the
happening Of any other event. well upon the coming
under The charter Of iss7 was conferred on the
Mayor 10 all cases, without any exception cannot be
that any SxTepon was 70 DC taken as In
10 appoint tina, officer for the city.
The charter negatives this Idea in its whole theory, and
in its details The 10th section declares that "the
tive Of the corporation shall be vested in the Mayor
and the executive departments" In the 10th section it
provides The other heads Of departments (oher than
Mayor Comptroller and Counsel the Corporaou shall
be appointed by the Mayor, with the advice aud consent
Tbird-Ths power claimed for the Governor is no. con
tered either by the constitution the charter Of 1851 or
any other law nor could be constutonaly given to him.
fs The ACT OF 1919 applies only ~ state officers, and
| such alone as are elective.
II is limited in terms, 10 officers OF the State -
ID The State officers named In the constitution on
the classification given in LIST Revised Statutes, o.
| Cd. The Street Commissioner is city officer.
the law Of isls the person appointed IS to hold his oce
"un the commencement OF the politsa year next
vacancy at which said officer could be by law elected"
fhe street Commits noner ceased to be elective by the
| provisions In the charter OF 1857.
This provision in the statute OF Io therefore be
applied 10 him, without producing this strange aud absurd
consequence, viz Mr. Conover would hold until the Gst
day Of Junuary that being the commencement of the
po cal year succeeding the first annual election
the happening Of the vacancy which election Street
Commissioner, the ONCE had continued TO be elective,
That would less than two years from the passage Of
the charter Of 1851 which pescrbes two years as the
| official term Of the Street Commissioner.
There would be, Of course another vacancy in the Office
| on the LIST OF January, 1858.
| Mayor could IN thai vacancy The Governor would
then appoint again. and the sppousee would hold the Office
| until the first day OF January, 1859.
II cannot be reasonably supposed that tie Legislature
| have made such n result possible.
inc @ oe ~ S prSvnes ,ns
prov Ted for by tho constitution shall be elected ny
the eeors OF such cities towns and villages OF
division thereof appointed by such authorities thereof
the Legislature shall esignate for that pu pose
the oct Of 1919 be construed giving the Cover
err, city officer, that act clearly UNCONSTITUTIONAL
l. But " such act valid and could operate
upon city Office and Office no, elective ye, does
apply to the vacancy which occurred By Mr. 1aylofs
death, because-
LIST The charter Of 1882 passed after the OF lsIe
giving the bis power vacancies, provided
already shown In these points, tina, vacancy TIL,
Office should be allied BY the Mayor, with the advice and
| consent OF the Board Of Aldermen
ID. When Mr. Taylor died, there n Deputy stree,
Commissioner who under existing ordinances bad legal
authority TO perform the duties f Street Commissioner
until one app ,inted Tappsn ag Cray Paige SO.
N. But II be held that the charter OF 1857 ri res the
Mayor power TO OIL vacancy occurring otherwise than
by spse OF time, In the Office Of Street Commissioner still
| that power belongs 10 the Mayor, because
LIST AZ already shown, the ordinance OF lsie gave
| him.
I'd That ordinance has been repealed.
ID. Il IN expressly adopted and confirmed by the 32d
section OF the charter Of 1857, which provides thai unu
Common Council shall otherwise direct the existing
dnances shall apply TO the departments hereu mentioned
90 far Is the same are applicable thereto, and no, In