New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-14
Ia " INTELLIGENCE.
THE STREET COMMISSIONERSHIP.
THE INJUNCTION DISSOLVED.
Further Argument before Judge Peabody.

At III o'clock yesterday, Judge Roosevelt took bis
seat in the General Term room beside Judge Peabody
and after the Special Term called to order he de-
vered his opinion on the molten of the counsel of the
City to make the injunction perpetual restraining
Daniel d. Conover from taking possession of the
books, papers &c, of the Street Commissioners
Office.
The following is Judge ROosevelts decision:
SUPREME coURT-srEc,M TERS-JyLY IS.
The Corporation Of the City Of Eew.Yoh agt Daniel D.
Judge Roosevelt said that in this case as the hot
season had advanced, and it was important that
some of the Judges should have an opportunity Of
going with their families to the rural districts, he
thought the better way would bo to dispose of the
case this morning, instead of waiting until the time
indicated for making decision There were other
reasons, perhaps to render that action desirable.
Owing to the peculiar character of the matter the
better way TO treat it, he thought, would be to make
it ineligible to the understanding. lie then
read the following decision;
ROOSEVELT, Ut is proper in the outset of the
present decision to correct very natural and very
prevalent msconcption as to the state OF the conrO-
versy. The question, whether Mr. ConOver or Mr..
Deylin shall be Street Commissioner Of the City of
NewYork, is not pending in three different modes
of procedure, in any mode before three separate
Judges or before any Judge of the Supreme Court
OF any Court. Neither of the three proceedings re-
ferred TO is adapted to the trial or determination ohe
the to the Office. An action, as it is now denomna-
ted of quo mdrronto by the AttOney-General, in the
name Of the State is the only recognized mode of set
Ting that issue. No such action has yet been COM
menced. The contest, thus far has been confined to
the question of immediate, buttemporary possession
a question: however, which, it must be admitted land
as the recent history of the Court itself has shown)
may be of very serious consequence to the respective
claimants. For should the usual and almost una
vodable delays attending the prosecution of regular
be infe m IA
most other instances, the immediate possession and
exercise of the powers OF theOfise, although COM
menced as temporary may be continued till the full
legal end OF the term Hence the determined struggle
and the various phases it has assumed.
The proceeding before MIR. Justice Peabody was not
q proceeding in Court, before Judge sitting as
Court 1t was instituted under special statute CIV
ing special power certain des grated functonares
including County Judges in of death or removal
from Office TO compel by warrant in summary man.
Der the delivery over to the successor OF tue pre-
vious incumbent " of the books and papers apper-
tanning to such Office" The Corporation of the City,
unless Mr. Devln can be considered as legally repre-
sentng them, were no parties to the proceeding The
order to show was not addressed to the CorPo
ration, but to Mr.. Devn. Technically speaking, ne
and he alen was heard; and he alone as 1t seems he
actually has done could by writ Of certiOrar, appeal
from the order made against him-not, however, to
another Judge Of the Court but to the Court itself,
sitting as and with all the powers and attributes OF,
Cout of general jurisdiction. For these reasons, no
doubt the Corporation was supposed by their counsel
to have had right to institute in their name, as
they have done, on independent action against Mr..
Conever complaining of alleged threatened inter-
ference on his part with their property-to wit the
books and papers relating to the streets of the city
and praying, the only relief needed that the defend
ant may, by the final decree Of the Court be perpet-
ually enjoined from carrying into effect his al
legged purpose. And the question presented IL,
can snch bill, under any evidence, admitting all
its allegations be ultimately sustained for if it
not then the preliminary order which has been asked
for on the ex paIte adavts presented by both sides,
and which is merely auxiliary to the final relief,
must of course he denied Code, I2l9).
The Office of Street Commissioner before the regu-
lar expiration of its legal term becsme vacant by
death Two claimants already stated, insist upon
filing the vacancy; one deriving his title OF sue
cessor from the great zeal of Me state, the other
from the comparatively lesser but, as il would seem
more appropriate seal Of the city. The former MI
Conoye il is said fret obtained the possession the
latter Mr. Devn), although subsequent III time, has
seized. il is also said, and maintained it since
As TO the ultimate right, each has TAR color oi
title The OF C shows decision OF the Ch'et magis
trae Of the State the other of the Chief OF
the City Claims thus Endorsed cannot on either side
be be treated ar frivolous mala fdc. The Constitu
ton it is true declares thht officers OF ciiy waers
not chosen by the electors Of such city shall be cp
ponted by the "auhorities thereof" And this spriI
Of decentralization is confessedy the spirit OF the
whole in trumert. But the Court Of Appeals have re-
Gently in effect laid down the rule that the spirit OF
the Constitution is not to be the guide OF the Courts
that is NOT for the Courts to create exceptions OF
restraints on the Legislature which arc not fairiy
-" contained In the Constitution az IL is rriffery ,
Under suoh rule Of construction, peopounded by tnc
highest judicial authority Of the Siate en- bound 70
cgard the commission Of tbe Governor given p"rS"-