The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-12

mind by the perusal of Judge Denio's opinion,
must be that it is labored effort to apologize for
rather than TO justify, the judgment of the Court
of Appeals in favor Of the consttutionaliy of the
Metropolitan Police law. The most favorable
construction that can be placed upon it, is that it
acknowledges The law to be an evasion of the con-
s.ituticn. but denies the power of the court to
destroy it upon such grounds. The argument by
which this conclusion is reached is, of course, a
fair subject of criticism and we certainly believe
that the judgment of an intelligent public at the
ballot box will be recorded against that Of the
court as pronounced by the Chief Justice
Let us examine the reasoning by which Judge
DEMO arrives at the conclusion that the appoint
ment of the Commissioners of Police by the
Governor and Senate, is not violation of that
portion Of the State constitution which is intend
ed to secure to the people of county or of city
the privilege to elect their own local officers
either directly by popular vote, or indirectly by
giving the appointing power to such county OF
city authorities as are elected by the local consti
uency.
The second section Of the tenth article of the
constitution, which contains this provision, has
been so frequently cited during the discussion to
which the passage Of the Metropolitan Police bill
has given rise, that its language must be familiar
to the readers of the HERALD.
1t contains three distinct clauses The first
provides that all county officers whose election or
appointment is not specially mentioned in the
constitution, shall be elected, if elected at all,
by the people of the county, or appointed, if ap-
pointed, by the authorities of the county. The
second clause makes similar provision with re-
gard to all city officers The third clause pro-
yides that "aN officers whose offices are hereafter
crested by law shall be elected by the people, or
appointed as the Legislature may direct"
Judge DEMO, in considering this branch Of the
argument, says
Tbs principal question which arises this provision
is, whether the terms county officers ana city torn and rl:
ldoe ,cys limited TO such officers Whose Offices eyed
al III lime of The adoption of the constellation pursuant 10 the
laws of the State then in force, or whether they are
general description Of class OF officers whose functions
are relate the localities which mentioned, without
regard the question whether the offices then existed by
might thereafter be Instituted and thus embracing
both existing and future officers falling within that de-
scrirtion.
And he concludes that the first two clauses to
which we have referred are intended to embrace
only such county or city officers as were in actual
existence at the time of the adoption Of the con-
stitution. He Gays
When In this section the constitution speaks Of county
officers, and or city, tow and Village officers, whose election
or appointment mot provided for by the constitution and
decres that they shall be elected appointed by the
Ioca divisions which their offices appersain reies to
offices Instituted and existing under the actual laws of the
Ssts So in the next member OF the sentence where a
officers whose election &c, Is not provided for BY
this constitution, spoken Of, the reference IL equally
to existing Offices This becomes apparent by that which
folIows-And al officers whose Offices may hereafter be
BY law shall be elected By the people appointed
OH OFFICES Mscer to Be created, ,oadher er functions are
local or general.
Let us see where this will lead U.S. Suppose
the State Legislature should see fit TO
create any Office in New York that
should take entire control of the local
affairs of the city-the street cleaning and re-
pairs, for instance-and should make such Office
elective "by the people," under the last clause
of article 10, section 2, as Judge DEMO inter
prets it, the Legislature would then have the power
to give such election to the people Of the State,
instead of to the people of the city, and to make
the officer State officer, TO be nominated at
State convention, and elected on State ticket,
although his duties would pertain only to the
city of New York. No other construction can
be put upon the third clause, according to Judge
Denio's reasoning; for If the local officer created
by the Legislature can, under that clause, be APP
pointed, If appointed at all, by the authorities of
the State, be can be elected, If elected at all by
the people of the State.
Judge DEMO continues
Nv giving this third clause this 10 natural lnerprea-
taton and considering the previous clauses confined to
nou. but II these clauses are no, 50 limited there Is an
inevitable repugnancy ON the oppoie construction, we
have mandate that all existing locs Offices and all or
fees which may be thereafter Instituted, sha be filed by
local constituency and al the time direction that
ihose thereafter to be instituted shAoe filed rs the Icgs
lature Shall direct.
The inevitable repugnanc7" to be found in
these three clauses is created olely by the argu-
ment of Judge DEMO. The first two clauses set
forth how all county aud city officers are to be
elected, if elected, or appointed, If appointed.
They do not cay all county and city officers then
existing but oil officers whoe duties pertain to
certain distinct localities ami are intended to Sc
cure to. the constituency Of those localities the
choice, directly or indirectly Of their own local
officers. The third clause simply gives to the
Legislature the Discretionary power to say whe-
Their officers thereafter creaed shall be elected or
appointed and if elected, he former clauses set
forth how they shall be elcded-that is TO say, If
their duties pertain 10 the state at large, they
shall he elected by the p'ople Of the State at
large; if to counties by tb people of the county;
and if to cities, by the pople of the city. In
like manner the former cbuses get forth how OIL
GERS thereafter created by he Legislature shall be
appointed, if appointed--that is to say, if their
duties pertain to the Star at large they shall be
appointed by State authorities; II to county,
by the county authoritie and If to city, by the
authorities of such city.
In these clauses. thus interpreted in the Ian
guage OF common sens, there is no inevitable
repuppance:- but as costrued by Judge DEMO-