New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-25
La " LNI,ELLIGEINCE.
THE STREET COMMISsIONERsHIP


TIE CASE OF Mr.. DEvIIN-PRoCEEDINGs IN
THE HABEAS CORPUS.
AT II O'Clock yesterday morning, Mr.. Sickles con-
Guided his argument before Judge Ingraham, on the
opplcation to discharge Mr. Deyln from custody on
| the suit Of habess corpus. He spoke from the con-
cludipg points contained in THr TRIBUNE of yester
| day.
Dir. Field then proceeded with his argument in reply
| TO Mr. Sckles His points are as follows:
First. The only question that can be raised is,
whether Mr. Justice Peabody had color Of Jun sdc,ion
Matter of Prime, Barb, 3il.)
Second Every jurisdictona fact necessary to
,sn the iursdicii is TO be deenod established for
the pdge issuing the warrant had exclusive authority
10 determine those facts.
Third The warrant Of search recites all the facts
necessary to justify it, ard those recitas cannot be
FourM IT, however, it were proper to go into proof
o tbe facts reced Of any other facts the respond
emit has satisfactorily shown the truth Of all the reci
tails and Of every fact necessary to establish the uris-
EIGI: What facts were necessary to confer ursdic-
ton Three only:
i That person Taylor elected to the office had
D That another lConoverl had become his success
3 That third Devn) had books or papers be.
longing or appertaLing to the Office.
Tbeee three facts were alleged and were proved.
Ard if they had not been proved the wrongful find
ing Of the facts could not be reviewed on habeas
corpus, p..;.;. .,;s n.. ..n, .ha oe;osr nav
have acquired jurisdiction at first, it was afterward
taken away because it appeared 10 the progress Of the
case that the books and papers did not come into Dev-
Inns hands during the vacancy in the office. This OBJ
lection has o foundation in law or in fact.
II has no foundation in law because jurisdiction
once acquired could not be thus taken away.
D. Il has 10 foundation in law, because the succss
scr to an Office has right to the summary remedy
pro, ded by the statute put him in possession OF the
books and papers, by whomsoever held or whomso.
ever taken The language of the act is general, that
if any books papers belonging or appertainngto
such Office" shall come to the hands OF any person. the
successor to such Office "may demand such books and
papers from the person having the same IN his pos
setsion," u X. S. 1875 Sec 56.
There is here qualification If the words dur
in the vacancy in the office" had been inserted after
the word "shal" On the contrary, 1t Is very clear
that suoh On interpret ation not intended for two
reasons: a. The policy Of the law was TO give to
new Incumbent the books and papers OF the office,
wherey they might be- found otherwise the original
purloiner might defeat the incumbent by delivering
The books which he purloined during the vacancy to
another perst so soon as the vacancy is filled.
A wicked deputy or clerk, who took the books on
tie death Of the incumbent being himself disappointed
Of the succession, might deliver the books to another
clerk and thus deprive the successor Of the means Ut
going on. ,
books to be taken from any place designated In the
taken to those places during the vacancy. When the
bo. ks ale brought before the officer, he inquiries II
they belong {, the Office and if So deliver them 10 the
successor whether they were taken during or after the
vacancy.
3. The objection has foundation in fact:
a. When Devlin got Tire books does not appear. lie
saws he got them on the lGtb but the Judge may have
had evidence satisfactory 10 him tnat levin so lhe
or some of them on the 18th.
%. But whatever may have been the time OF Dew
Inns getting them, there no pretense that Conover
ever had them. Indeed, the whole EVIDENCE showed
systemac persistent and successful effort on the
part of Turner Wood Devlin, Bennett and their ac
completes to keep Mr.. COnOver, not only from the
books aud papers, but from all the means Of iuy a1a
got posessiun Of the franchise, and was III the outer
foon Of the Street Commissioners apartments for
three days. but he never got into the innHrmost room
or third room, where were the most valuable BOOKS
and papers and was only part of one day in the
second room. .
(l. Mr. Conovers affidavit does not state or init
mate even that he had ever bsen in possession OF The
Deylin's second affidavit admits that Conover
bad of the books and papers, or the apart
ments, or the franchise.
about the possession.
Besides these afdavits, there were read the deposit
tons Of great many persons. Frofa the whole mass,
Mr. Justice Peabody arrived at the conclusion pro-
No question is made that the warrant is good in
foID. 49, ~,
The only question, therefore, Is this when the war
rant was signed had Mr. Justice Peabody ac CURED
jurisdiction TO determine whether ne shouid slSn Ut
not!
Now. that learned Judge-one of the Supreme Court
the highest court of original jurisdiction in the State,
one that suIeryses all inferior tribunals the Court OF
Common Pleas Included, controlling them by man-
damus prohibition and the the Gke-has decided as
matter OF law, that he had Jurisdiction.
And nor gh it may be true that every other court or
tribunal high or low, has legal right TO Inquire into
IN. ir, of every other tribuu8l however hlga,
yet the comfy of courts and their due subordinaon,
require that should respect the judicial decision OF
another, especially Of a superior Judge. Judge OF
the Supreme Court is OF the saue authority a. the
first Chancellor Would it have been thought proper
tor the first Judge of Court OF Common Pieas 10 SIT
in review Of the decision of the Chancellor though
made in special proceeding.
Would lot the first Judge rather have SAID, ny
opinion might have been different ii the question
were new, but defer to the opinion OF the Chancel
lOr."
A Judge Of the Supreme Court cannot exercise an
Inferior See He cannot r. .ba not held any
other office or public trust tArt. o. sec o. I'LL
10; . DEMO 335; Herman 4O6l.
If, therefore, the learned Judge OF the Common
Pleas should be OF opinion that the learned Judge Of
the Supreme Court bad not what he decided he had
jurisdiction it would be but opinion against oplnlon
The opinion of an inferior Judge weighed against the
opinion Of superior, first delivered; an Inversion OF
judicial order which can hardly be supposed;
But suppose the Judge here to disregard entreiy
the decision Of the Judge OF the Supreme Court upon
the law, he cannot disregard bis decision upon 'ne
facts. . 40, T.,
What facts then, had been alleged before Mr.. Jus
tice Pc sbody, and passed upon BY him, before he
signed the warrants ,n
That Mr.. Cobover had been duly appointed by the
Governor and commissioned under the great sea VI
the State as Street Commissioner Of the City OF new
York had accepted the office, taken the oatn n!ed
the bond, and entered upon the possession u VIZ
Franchise. .u...;o, Of