New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-25

under the circuu stances OF this case Until ism ht
bad the appointment even OF the Mayor.
Sab. ]. he criticism which has been made upon the
worr Officers Of this State in sse sst s Of REP. 8
missioner Is one Of the Offices Of the state Every
public officer who holds lis authority under this State
sovereign, is officer Of tho State. II were not
go the Mayor need not take oath to support the Con
siiuon OF the United States for that Constitution on
requires that officers both Of the United States and OF
"the several States" should take the oath to support
il. Art. 6, Sc 81
So the State Constitution Art. II, requires all
officers, executive and Judicial" to take OATH II
this does no. nc,ude city Officers the Mayor need not
swear 10 support tie State Constitution. The Revised
Statutes II K S. 100, sec. "a, sub. 6; l2i, 80 sub.
g. include city officers among the officers OF the
State Equally lusOry is the criticism upon the words
OF limitation which the same act contains, upon the
time during hic the I'D interim incumbent shall hold.
Mr. Cobover can, in no event, ho'd longer than MI:
Tayor could have held and if the office had continued
elective as il last year, he could nave neid only
till the LET of next January.
The words until the commencement OF the poll
teal year next succeeding the first annual election
" after the happening OF the vacancy at which such
officers could be by law elected are worcs Oh nm,
tnton upon the continuance Of the vacancy Tne
language moht have been in this form, with the same
meaning: Whenever vacancy exists In any once
in tho State the Governor shall fill 1t for the unex'
pred term; except that if the office be elective the
electors shall fill il at tho first annual election, and the
Governor appointments shall be good only till then.
Sub. II. The rs ht of the Legislature to provide
for filing vacancies in the city offices, ny the
Governor, is settled BY judicial decisions Tappan
agt. Gray, Paige; People agt. Fisher snedekers
case, 4 kerbaD).
Sub. ILL., Had the present Mayor the right to ap.
point to Mr. Taylor, the late Street Com
missioner The right CT Mayor, elected under the
new charter, to appoint Street C9mmssio1er under
whether a Mayor, elected under the repealed
charters, now, before the terms ofthe old officers
are expired, appoint a new Street Commissioner 10
hold under the new charter. We Say that he cannot
/. The new charter was passed on the Nth of April
and took effect law on the 1st of May. But there
are some parts Of il prospective, and Others present
in their operation. For example, when the second
section declares that the legislative power shall be
AZ IT, it refers to future Aldermen and Assistants. 50
tie third fourth and fifth sections refer to future Off
only and the twenyrst section refers to future
officers.
= Take now the nineteenth section, which Il IN
these words:
The Mayor Controller and Counsel to the Corporation shall
each by the ector. of the city the Mayor for the
term years Counsel to the Corporation for the term
Of years and the Controller for the term Of four years
The Controller shall be voted for upon separate ballot The
with the advice and Of the Board Of Aldermen
Board Aldermen shall have the to confirm reject
any nominated the Mayor shall be rejected BY the
Board Of Aldermen, the Mayor shall immediately nominate
another
1t is perfectly certain that the Controller and
Counsel TO the Corporation mentioned in this section,
are not the present Controller and Counsel. They
were elected In 1856 for three years each Ii the pres
ent Controller ana Counsel are not included IN what
rule Of construction it be thought that the present
Mayor and the present Heads Of Departments, other
than the Controller and Counsel are included
g. When the departments are not re0rganiZed, the
charter was thus expressive: There shall continue to
I" be an executive department. &c., rs IN the 2ith
and 2j,h sections, referring to the Croton Aqueduct
and Alushouse Departments.
T. distinction is made b. the act between officers
created by the charter and those holding Off ;es under
it. The 10th section declares that the Grand Jury
may present any officers created by or holding ofhce
under this charter The government OF the city up
to the first Of January next, is wholly carried on o.
officers eated by the charter. After that period it
will be carried wholly by officers elected by the
people or appointed by the Mayor, and holding uGder
the charter; though to the offices OF Controller,
Counsel Street Commissioner, City Inspector ana OF
the Croton Aqueduct Department, it will stll be car
ried or by officers created by the charter until the
first day Of January 1860, when the whole machinery
of the City Government will oe worked by officers
elected ard appointed and holding under the charter
S. The 5st section provides for carrying on the CITY
Goverbmen Mt through these several periods:
81 The Mayor Aldermen end Comedian prS,asd o tHl
GERS 10 be held ser passage hereof which election shall
take place first Tuesday In Decsmbr eighteen hundred
aud fifty All person. who shall have been elected under
former regulating affecting The election OF charter OH
Gers. aud shall be in office at the time Of the passage Of
under this se. shall take thr Office and no longer ex
I hs s OF an rS
ard except that the now filling the several oces oil
and City Inspector and the o. ofh Coton Aqneduet De-
ratnent shall contnue in office until the expiration OF their
ordpance except the and 10 the provided for
in sections y and 50 Of ths act aud all other charter officers
whore terms may expire with the present. muncP,
year. shall also be elected On the day before provided for by this
section.
6. At the death Of Mr.. Taylor, on the 9th Of June,
the Office which he held held solely under the new
charter The old charters under which he had been
elected Were all repealed; he could exercise no
authority under theul His power was derived solely
from the rev act, ard this act made him Street
Commissioner, and his Office a statutory Office, to
expire the let Of January lS6O In truth, There Is
not single city office held under the authority OF
the old c6arteri from 1880 to 1857 Every officer, high
or low must justify his acts by the charter, or he
cannot justify them at all.
Z. Il follows clearly from these considerations, that
the present Mayor cannot appoint or remove any head
of department. until 1858, and that the aayor then
elected cernOt appoint or remove q Street Commis-
sontr City Inspector officer Of the Croton Aquedact
Department till the expiration OF the terms for which
they were elected under tie old charter.
s. The notion that the Mayor has now the power ID
fill the vacancy by virtue Of the old ordinances has no
III The language of section 80 is limited and
guarded 1t is that until the Common Council shall
otherwise Greet the existing exclusions snali apply
"to the departments herein mentioned, so far as the
came are applicable thereto and are not inconsistent
with this act" The words "appy to the depart.
ments herein mentioned do not mean that they sosll
determine who are to hold the depart nens, or how
they are to be appointed but how they shall exercise
their functions when appointed. -, =,
e. The old ordinances are inconsistent with the
new charter in this respecthat the latter takes from
the Mayor all right Of control over, or Interference
with the Street Commissioners office TIL 1901 while
the former gave it to him in certain contingencies.
49, The words, until the Common Coanc %o snan
otherwise direct, suppose that the Common Coqnch
has control over the subject of the ordinances and re-
serves to the Common Council the right to continue
them to reGract them to alter them, or to repeal