New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-06-29

tanned by the Charter Of 1887 the Deputy was 70 MI
the Office Of Street Commissioner IN case OF avacancyi
Therefore there never was tdne wnen mere "asa va
eanry; because as Judge Nelson decided, an ohee u
not vacant go long there IL person IN IT capable OF
fulalhug its duties and who does fuhll them.
ii the Legislature had passed an act that, in gases
of vacancies every city officer should be appointed
bv the Governor IL would have been uncOnstitu
oonal; and as all city officers could not be so 40.
pointed no officer could. Therefore. ns we are bound
10 suppose the Legislature did not intend to pass an
UNCONSTITUTIONAL act the Legislature did not intend to
empower the Governor to I'LL the office in question
III Mr. Conovcr were appointed under the act OF 1919
he could only hold Office until the ls Of January next
and there would then be another appointment Again.
as the act provided that persons so appointed shah
hold until the LIST Of January after the hrst amman
election az which such officer may be chosen, 1t to
lows that the office would be perpetual. To enable
the Governor to make the appointment under the law
OF IS49 il was necessary that il should be officer
Of the State appointed; that the officer should be
elective that the Office should be vacant and that no
other provision should have been made by law for the
appointment None Of these conditions existed in this
CASE In all the city charters provision was made for
filing the office. The right to fill II was inherent IN
the Corporation; it existed under the Dongan and
Nontgonere Charters and was equal in force TO tsle
State Constitution it part OF the executive
power of the Corporation, which had always existed,
and was continued by the Charter of 1857.
1.-THE assertion be true that the Charter of 1857 does
not effect the present Mayor and Common Council,
and the repeating clause Of the Charter takes effect
mnediately, the consequence would be that between
the LIST of May, 1887, and the LIST OF January lc9S
there would be no Charters affecting the Mayor and
Common Council at all The same Legislature had
regarded the Mayor and Aldermen as fit to appoint
at the expiration Of Mr.. Taylors term of office Why,
then were they not competen. TO appoint for the un'
expired term of his Office The act of 1857 provides
that the incumben,s of the Offices of Corporation
Counsel Controller and Street Commissioner should
continue in Office TO the expiration of the terms
Office This was an extraordinary piece of Legislation
Ifthese were new Offices the Legislature had right
to appoint. The provision for the appointment by the
Mayor and Aldermea must, therefore, be read as II 1t
were that they should make appointment whenever
one was be made The Legislature never intended to
allow this appointment TO vacillae between the Mayor
and the Governor in this dancing.jack way The test
mony as to the election Of Mr.; Conover, Mr. Brady
deemed irrelevant, because it all occurred before Mr.
Devlin took possession. He was opposed by the
Deputy Superinten dent, Mr.. Turner, and the Mayor
very properly had supported Mr. Turner in defending
the possession of the city property. Mr.. Devlin was
legally appointed and in possession, and had been
Recognized by Mr.. ConOver. The proper way, there
FORE for Mr.. Conover, was to appeal toa quo war
ranto, which would readily be facilitated by the At
prpey General the part Of Mr. Conover and not on
fhe part of Mr.. Devin.
The Court adjourned TO Monday, at ii a. m when
Mr.. Field will reply orally or in writing