New-York daily tribune., 1857-04-24

Dl
the section follows: In lS7 AL matters coan,ctsd
vith the p,Ise local. III. Constitution th.a
b1ro upOo them AZ such. Whether cfty county
,cer they local and fell within the former pan
e tho =sciOn At that time the police ent
wss in eSisteroe and the COatuton acted upon that
aa.e &C things.
Lnarew tfce As rvch does Il fl. within tn. I,tt-r
cls,e Of the Hection? These gentlemen are COMMITS
ionere tf Po,icc, with certain enumerated power.
There L. 10 new function. no new name, throughout.
The art of 1913 esiAbt les the police pOwerot this
city tia; Of ~ sppOnts Chief of Pocc. prov ides
6r ,be 81 Ipointnert removal and compensation
of Tulice TINT Of 1876 goes fully into details and
ccLfers tee prncps, portions Of the powers given
by the recent statute (rhsh Judge Edmonds proceed
Cd .O enCnsraei.
judge pavies aked If these acts were repealed by
the new statute.
Judge Edmopds-No farthsr than the general clause,
repeating Al inconsistent eos aud parts Of acts may DO
held 10 exterd.
In 1883 a Board of Police Commissioners. With
power 10 appoint and remove constituted. With
the siuge exception that the new Police Commission
seven in number instead Of three, these act.
everything provided Tor IN this statute. What,
then u there new in this matter, except the transfer
enoe of power from the hands Of three to seven'
Judge Davies-L not the main question in the Gaze
whether the ofiice Il a new one or not 7
Mr CuttiDg-Tbst ia an important one, doubtless;
but thero arc some half dozen in az.
Judge Edmopds-Does new Office mean a. old
ore with new name, exercised by new appOintees?
on something before unknown to our law
Another constitutional objection TO helaw is founded
upon that provision Of the statute T. Isl which en-
powers the Commissioners to take pos-ession Of the
telcgraphc apparatus and other property OF the CITY
now in the hands of the Police Departments. This j.
in fact dedication of private property, that OF the
Corporations OF the cities Of Brooklyn and New-iork
TO public uses, without making just compensation
There is an attempt TO evade that principle by the
provision that the ownership of the property shall re-
main in ,he cities. but such provision becomes nu
gh.ory when the whole scope Of the act is to depnve
the owners Of what alone makes property valuable.
Judge EdInonds apologzed, a. he sat down, for the
imperfect manner in which he had been obliged to pre-
sent the in consequence of a severe headache.
necessary par. of the plaintiffs argument subse
quently supplied more fully by Mr. OConor, who read
from hs points, at length The last point read states
the substance Of all and is as follows:
The Constitution, bys necessary implication, forbds
the Legislature TO erect for permanent purposes of
civil government new districts unknown to the funds
mental law.
l. If that power existed in the Legislature our cities
towns ard villages with their uninjured divisions
abolished ana all Courts and Offices therein, might be
abolished
9. The newly formed circles, arrondi,sements, de-
par,meDts cantons being unknown 10 the Constu
tion their tribunals of justice Judges offices and Off
being wholly unprovided for therein, ali the pro-
visions of the fundamental law regulating the seec
tion Of local officers would be inapplicable and that
greatness OF patronage, which it was intended to with
draw frum the central power would lie placed in the
hands OF the Governor and the revolutionary Legsla
ture, az the reward Of their usurpaton.
Mr. Eyarts replied. on behalf Of the defendants. in
al elaborate argument upward Of two hours IN length
which must necessarily be presented very mperectiy
SO the considerations presented and so
mastery the reasoning. Its general course will be
evident from the numbered points. The first was:
/. The plaintiff has no standing in Court for the re-
lief asked or any part OF H. The whole cause OF &C
tion and the whole remedy affects only pubic 8nd
general not private or personal interests.
The plaintiff describes himself a. Mayor, corporator
and TAXPAYER and in,mates rather than states that he
il acting in connection with the majority of the Com
III: D,t oftor, oil ha - MN md
Wood with the honorable title Of Mayor, the burden
some condition of taxpayer and the equal condition of
corporator. A piece OF the Corporation cannot bring
silit lie comes into court as Fernando Wood in the
individual sovereignty Of citizen, and hasn't even
the grace to present hs suit on behalf OF all taxpayng
citizens. Any citizen has the samc night to do this
that Fernando Wood has and that right survives,
whether Mr.. Wood be successful or not. There can
be no rts adjudcaio in the matter; citizen after citi
zen may haunt the courts with his constitutional OBJ
jection for years. decision in one case being no bar
TO fresh action.
Nor does our law recognize any distinction in the
protection ot property life limb, or the preser'a
ton Of good order between a TAXPAYER and anothe
citizen There Is no allegation that the private prop
erty Of Fernando Wood is endangered. There u n
sycmcnt Of priv ate fears; his fears are as broad
the population, common md vital to every man; hi
alarms are for the public. He sets up no special IN
iury 10 himself, actual or threatened what ne Say
in Iii complaint II: am n citizen; certain law has
been passed upon which constitutional doubts ciis;
ask the Court to interfere and stay action under mi
statute to avoid certain hre ntcned collisions and dan
ger TO peace and good order. An individual has no
right to stay the operation of law for the genera
cause of public peace and order.
q No action lies TO obtain judgment OF a Court upon
the constitutonaty Of statute of the State as the
object and end Of the suit
il is only as arising in, and affecting judgment IN
private public actions. that Courts pass upon tn;
constitutionality Of n statute.
To declare the charter OF private corporation void,
rcdires ess discretion than to impeach the Legsa-
ture for fraudulent evasion Of the Constitution as IL
ATTEMPTED here and yet it cannot be done. In the
case OF letters patent only the Attoneyieneral can
institute proceedings to avoid them. But here II -
contended that party file bill, the of which
is that law is unconstitutional and stop me eAeca-
ton of such in the Court of fs resort until his suit Is
determined.
g. No preliminary action to prevent the assumption
Of ofcc 10 enjoin the performance of official du-
ties, ie- even to the people through the Attorney
General or Otherwise
The only remedy for usurpaton of Office by action
of ono u0rr0htO by the Attorney y-General. This de-
tcnnes the title of the office and leaves the discharge
Of the functions uninterrupted ill Judgment Is gwen.
IL ia essential 10 the existence of government that It's
should be discharged and is not to be- tol-
rated that the discharge OF those functions should be
prevented while ali incumbent occupies the place.
This would be to leave the public without an acting
officer, and yet leave the office full.
Supposing the law to be constitutional l-supposing,
~ is plain from section 81 that after the organization
G, the new Board the former Police Commission is
annihilsed and all its efforts suspended The injunc-
ton may be powerful to destroy, but has power to
recreate what is destroyed. All controversies should
be limited to quarrel between two claimants, the
functions Of the office being eantime discharged BY
the incumbent de fdcto
4. Every law Is presumed TO be constitutional. and
every citizen and every officer before judicial decision
annulng the act must take the responsibility of obey
ing OF disobeying, Of acting refusing to act.
In the at bar, If thc act be constitutional
the whole power within its purview is in the Commis-