New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-18
Id " IN2E'LLIGENCE.
THE STREET COMMIssIoNERSIIIP.
HE WARRANTS AGAINST MIR. DEvLrN REFUSED

In the matter of tho application Of D. Conoye ast Charles
Devln.
At II o'clock this morning, Judge Peabody. Judge
Davies being on the bench, read tho following de-
cision
PEABODY, J.-proceedings having been instituted
before me, under K. s., p. 1875 sec 80, to. compel
Mr. Devn to deliver TO Mr.. Conover the books and
papers pertaining 10 the office OF Street commissioner
of the City Of NewYork, the ground that the app
cant was successor to the Office to which they apper
taip and the parties having been heard from day to
day until the 9th day Of July, 1857, and my decision
having been announced on that day that the applicant
was entitled to the relief asked, that is to the war
rants provided for in that section one that the respon
dent be committed to the jail Of the county until ne
should deliver them, and the other that the Sheriff
search for said property and seize IT, that It might be
delivered TO the applicant therein provided, unless
the respondent should deliver them, an order to that
effect was accordingly made, reduced 10 writing, and
signed by me on the 10th day Of said July.
That order WAS Immediately served on the respond
ent, and delivery of the papers in compliance with it
demanded, which was refused.
This refusal followed by an immediate applica-
ton for the warrants contemplated by the act, to
which, by my decision embodied in the order had
determined he entitled. Pending this application,
and while discussion respecting the effect of an
Injunction then in force, restraining the applicant
from taking into his possession the books and papers
in progress wit OF ccrt0Tdr1 from the Supreme
Court was me commanding me to certify to
that Court my proceeding, in the premises The
Injunction has since been dissolved, and ] am now
asked to issue the warrants nOtWlthstandng tue ceTN-
orari. The fact that this writ from its operation
euspenGs the power Of the officer to whom it is adj
dressed is not denied by the applicant, but on the
contrary it is admitted as general proposition, but
that such is not the effect in this particular case is
insisted on several grounds-s0me OF which seem to
arrange themselves under the following heads and
which will proceed to consicer:
l. 1t is said that this proceeding IN Its nature, being
summary and intended TO confer present possession
merely not to determine the ultimate rights Of the
parties is not intended to be subject to the operation
Of this writ And there is much of good sense in the
suggestion that such proceeding should not be liable
to be suspended in this manner 1t does not determine
the ultimate rights of the parties, but leaves them to
be determined in more grave and formal proceeding
They depend the right to the Office, and for ascer
tanning that, ample provision was made before. The
ancient perogstive writ of quo 'corrantO gave con.
testing claimants mode of determining controversies
respecting Office conclusive in Its nature on oil the
parties Interested Intha writ in its day, since in
The action Of the name, the sovereign was the
nominal and real plaintiff while the person asserting
his rights to the office if there such claimant,
was made party incidentally under the title of re-
ator and in fact and Is practically plaintiff so far
as the assertion and protection of his own rights is con-
cerned; and the defendant who was called In by the
proceeding to show by what authority he held the
fice if unable to show sufficient warrant in law, aud
found not entitled to il was, in obedience to
the rights of both the plaintiff and the quasi
plaintiff Gf he was deemed entitled, ousted. The
State was thus freed from the wrong Of an I'M
lawful exercise of its franchise by intruder, and
vacancy was made into which guaSi plaintiff or relator
induoted if his title was approved aud if not the
Office remained vacant and ready for the occupation OF
the person who should be duly selected and qualified
to fll The right to the office being thus determined,
the tight TO the books and papers apprrianiDg to it
followed il as necessary and Inevitable consequence,
and thus in grave and dignifed manner the rights of
the parties ascerlaned and declared, aud after
ward by adequate process enforced.
This proceeding, however, was not thought sufhcl-
emily speedy to all purposes and c,ordlngly
to supply immediate and urgent necessities the satlte
under which am acting was enacted, by which, in
brief and summary manner, decision of the quss.
ton of succession in feat merely the incumbent should
be put possession Ct the books and papers for the
time being Thus until the title could be ultimately
ascerained by the only conclutve adjudication, the
person apparently in the anc use OF the fran
che with color of title should be placedin possession
of the books and papers incident to It's use.
mode of deciding between two contrasting claim
ants, much which should occupy uotil the title
could be determined, even a. that the Incumbent the
an and Occpying should have the means of per-
fornit the duties the place until the actually
entitled should be Judlcially ascertained There
wouo, there FORE seem 10 be propriety IN Limiting the
decision Of this question: in most cases To the maSs
tyate before whom il should originate, and be heard
in the first pstapce and that was, doubtless, the ill.,
en,ion Of the Legislature in all cases ordinarily arlsng
that vacuum, said to be abhOrent IN nature, should
not occur in the administration of the duties Of gov
erpment. The question Of temporary possession OF
books &c ssAIy to the performance OF the duties
Of office until the title can be determined, would
seem to be a very suitable one to be determined very
speedily and so this act seems to contemplate that
il shan be, and such is the course in practice But
that TO error, however papable, no ioJustlce. how,
ever gross should be corrected by revisory TRIBUNAL
in any case does not necessary nor to have been
the intent of the Legislature. All the usual means OF
prOcrastlnatiOn excluded. The time for appear
ing after service Of process the delays incident 10
formal adngs, TO formal trials in term time Indeed
all fornaiies dispensed with for the sake Of speed
in arriving at the result But one single mode Of re-
viewing ard correcting is Left and that by AID
of the writ of certiOTarhe venerable, hoay writ as
it was styled in the argument This wrt even, Is not
matter Of strict right but is always in the discretion
of the Court and is Only 10 be allowed in OF this
kind where the Cont sees that there Is proDaoiy
error and sees further that to review In this manner
WILL the whole, be likely to conduce to substantial
justice between the parties and further, that wiz
do no harm 10 the public This is the rule and where
it appeas that il Justice has probably been done,
ard that the error can be corrected ON cerordri,
without hardship 10 the party against whom Tue
writ is asked or detriment tO the public snouiu De
granted and in these only should It be granted,
say the authorities in effect, in cases found IN the
| books. Our reports abound in cases where, after
| solemn argument and grave deliberation, the writ
has been refused and Others, in which, after having
| been granted il has been quashtd by the aDles1
Judges On the ground that general justice and the
public interest did not call for il, perhaps seemed
opposed to it, Such il the OF the People, ex rel
Church ACT the Supervisors of Allegheny County 10
Wend., 1881; and numerous other cases are ,neie
that case the learned Judge Brorsopi treats 1t as
Wi, only to be allowed special cause shown anu
when in the discretion Of the Court, tappears that
substantial Justice between the parties requires, and
the public interest at least permits it, That was
motion TO qussh writ already granted, and the Court
allowed the motion entirely the ground that, on the
whole it ought no! to have been granted, the puDlc
interest seeming inconsistent with II, whether the Ie
lator had sustained wrong or not lie expressly eA-
cludes all inquiry into that aud virtually Tor tae pn
pose of the argument, assumes that be might lie
saws. HWbether the frlaOr has truth Sustained an