The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-05-26


meaning, 1na The terms ioo pl-ip, and tnar
meanns too Fstset. b. cali for crn~uart,a hat
the sa'noa, nsi, hat me ou.esa hsmsslsss
the hnrh y aing The enur. validity q The 0fcss,
and hpe1Ae MIR esai sxiss~ocs- tbea, a~ehag On
The uc nos rcsssa On ~ sFrumsut ths tse exitsoce
of The Gree n r-cysrh % onntrcversy h@re. where
for the furful - ssN so1a tbsr sxlssenos admitted,
thu reasof'. - M -ssi "a. already nsso 'nes, an
the arst pont ser'ing - NE f~rrA Fai fvsi
created ny tus act ~ the astes ~ Slices ami ,hs
~ses svsfa ma''es q re scl.io sh, mo sim,sl.fA
perry uaiirs q cogtig ~ tcal oasnn@nre exclusively
ard h.ne', so, thai me - oa. 80 thli
enoss lue atst ia D. ipVHssm "a ne rourgiu"u aaf
Ia iIsud Of a. And ~ sim~a tnsf tr q .charne
Of ms clas~ n ne atnse ~ rlv~rumeni asaay h.sa
irirn.ira n .e couuiy " hsaas, pa ,n. "a. eesn
the iaw on as fuejsci. ccn-ttutlns 90 cshsrsse anf
poihiE ~ NlQ nature "a Iosnr, winch rrniefs - al
II 10 TO ooun,y a. o.aer atl NJ du,, 81 tns saas o.
sovereignty Z, rore rslsral 20 comprehensive 10 ~
nature Ihan &c is Il pcservirg the p~~ns thro iTsa
rsrIens All ropsry. susrslvs ne yasfc se,is, ore
serNrE os ser ~ escoTs ard the oher nan ross duties
proyiccd for W hs Al, Lil etanei on thess orcers
il Fotefs L., "a Mace $50, Cushing, ~, ~ Pick
6ring isi) fbc nski q tbe pabhc aad ~ ears cxen
10 protection nom the esis ~ hxics- agercsao6 right
drey UPON 'he sovereign pcwcr, aud me fst shsi me
perform, the fucs uslrcuiy and through
mentality az s msmhsrs cerartmcnis, docs not ainn.
sh OF show hs ~a1. VI rg.er a ~. ss's " DO drecay
Nor Is the duty n 'hs sfats citsen. any
the duty OF one individual 10 apohss, dscnsrgci by
simply con.crrirs on rs Departments OF agents al.
bori,y 10 perform ~ II they fail 70 perform properly
(of which the state alon. Is jadge), Il 10 The pl2a
right, M wen ar The duty, Of the state 70 inter
eTe, aud directly 10y ia oSn right arm N nsce~esry)
afford It's czers the ~ oecton and security ~hch
pereaion for the natural rights they iadviduals
snrrender and Tho peeuniary and other barhens they
sumo by becoming subjects and rbcrs OF H. has
de,taken n guaranty Them. The Other ,h-cton Ia the
law relating TO the property ., the city in fcr police
the act for tho purpoes OF this dey~od Il all
the validity Of Il IA tina. parcu feature r the Ia
valid 10 respect TO that provision the res, OF IL 80 little
dependant ON that, ana ~ capable OF being cnfood
benehciaiy without H. that tho validity OF the gene
rally would not be controlled by decision Of the question:
as to that particular part OF u, either gay NE n-lu
sion, therefore, Is that tho act question, In M gensIa
eanres Is not reVugant 10 the constitution, asd Judgment
for the defendants on tho demurrer must be affirmed
DISSENTING OPINION.
ROOSEVELT, JThe legislature at lis last session, urged
no doubt by considerations Of what deemed sound
public policy, determined make entire change In the
local administration Of the city or New York and The three
d.cent counties They accordingly passed act, the
general object OF which Is well expressed In liz title To
establish Metropolitan Police District and 70 provide for
the government thereo :" Aud the question Is, tho
Legislature under the present constitution by species az
and counties Of the STATE through the Of coon
issorers appointed by the central executive and by tho
aid Of deputies and subordnaies appointed ny such
eest II to minds not familiar With legal histo
~ IN this seeming appeal from tn. legislative 10 the
dicary department The point, however has been long
aimee settled. Constitutions has been held, oompss
contracts the parties TO which the people, In their
sovereignty the hand, and the peoples delegated
function ares, through their onh OF ONCE, the other
corning its exercise AS laws they arc supreme-they
the direct viii ~ the people And ~ coaseqssn,
they are higher than the will OF the peoples representa-
uves They are law unto the Legislature Itself well
the individual citizen A. contracts, therefore, dele
cations power and ~ statutes higher than ac Of ord
nary legislation they the subjects OF Judicial construc
ton and OF judicial act on The judges TOO, specially
sworn, not only to Interpret, but 10 support them-I
might almost say right wrong With the wisdom or
pedency OF constitutional provision the judges have
concern sat pro yaiione Wianfds pcpsdt They are pa
tenty and mparsly TO seek out ,hs intent aui when
found TO give eieet n become necessary
rule statute. Ia case Of conflict one must yiedAnd Of
course the io~S 70 the higher law And as
Court has nothing TO do with It's fitness. In,
question: In either aspect " not one OF justice, OF
expedency on abstract right On all those considerations
the decision Of the people the constitution and of
legislature In tho statute dna aud without appeal
except to tho ballot box The legislature however, wen
further They raised question OF constitutional
tcncy, and decided IT, they had right do in the rs,
instance, in their favor but subject 10 appeal both
the ballot and the bench Sucn appeal Is now taken
IL * In The name Of the people Of the stale and a
10 the Supreme Court Of the State The Attorney General
speaking as he bad right to do for the people, contents
that the act unconstitutional usurpaton, and dem ADDS
that be declared null aud void The third article Of the
constitution declares that -
The legislative pos Of this State giving drec, definition
OF lie term shall be vested In a SenAe and Assembly.
Such grant, standing alone all will admi, to be sui
cspy comprehensive to the enactment OF bill
simply creating Board Of Police Commissioners pres rib
Ing their mode OF appolt tment, and defining their
powers and duties. But the grant does NOS staAi
alone. II Ia accompanied folio we'd by numerous re-
siricons. express or implied And here should be Oh
served that do necessarily require tho use
Of NJ gsiive terms. POSITIVE direction to do
particular manner implies aud carries with prohibition
against cong III. act any other or different manner
Thing hui If
IDEAS II - 10 no literally construed with vicw To- sub
staptal obcos and tho convention that framed u Ia
~ he treated as moro cantor formul1rpm. Tho ndgos
In PARTICULAR should seek out an enforce the spirit Of the
nes political testament Of which they made ministers
AM M the implied restrictions Of the constitution those
contained IN tbs 10Th article which declares that all city
and county officers whose election appointment not
Otherwise c0Isttuoualy provided for, shall be chosen
directly by the electors OF the respective cities and
tics or appointed by nsuthorities thereofD AZ the
leg tslature may direct Il will thus be thas
the fegn laiurc, although allowed In some cases
an option between direct aud Indirect appointment
Of the officers Of cities, prohibited from trsnsfc ring
the rover 10 the central authorities OF the state In the
cnunraed and oi course most important instances they
were not lowed this limited option sheriff.
Clerks Of countless including the Register aud Clerk Of the
city and county of New York, Coroners aud District A.
torneys, shall bc chosen Says the arcle) by tho
electors Of the respective countess Decsp,rsrz.on n
~l thus be secn whether wise unwse the principle
CLEARLY eablehed, and Ia opposite clearly repudstei
Rut the rg. atnre Is contended. only restricted
the Of county city, town and village Offices; they
may, by law. create other Offices Offices other than
tho-e enrneratcd and specially provided for and may
direct 10 such OF created Offices that the ncumbens
" hail be elected by the poop Q, appou,cd,n they,
the Legs aturr, may deem most expedient Such,
Is The language Of the consultation. And
prescDtr, Therefore, the question whether the newly
created Commissioners and their appoinues
created In substance city and county offcer' Ifthey
are, the legislature had power the selection
appointment, from both the electors OF the city county
and tsc authorities thereof" A originally inrofuced
The bill, Ia admittcd, obnoxious objection.
Gas confined excusivey 10 the city OF New York and yet
The appointments, now, 10 be made by the Cover
bur VI the Stale, who, although in authority
pf TIE city, Il clearly not in the Of the constitution
That bin however, yielding W the constitutional difficulty
referred IT, was abandoned by ts authors, and the
sent, creating Board with jurisdiction district OF
our counties, substituted place And the question H.
AN btu thus confcsedlv framed avoid constitutional
or a. the plaintiffs counsel coocnd evaas
njanciiopS be Sustained by the courta
.eH settled principle, as already stated, IN American
that where cpstituon and statute
n onntir tee latter must ield 10 the ormerhe lower
% the heher aF and " s equally wei. settlsd, AMI
10 ong before the adoption ~ constitution of lsi7 thai
IN appeal IN such csses AID In only lea from
he legislative 10 the judiciary department sucn ap yca
IL presumed, cannot be taken away, evca oy express
Enactment For, although the Legislature under the
have In