The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-05-06
POLICE COMMISSIONERS, CONTROVERSY.
The Case h Now Pending Before he General
Term.
MEETING OF THE NEW POLICE COMMISSIONERS
Appointment Of Judge Whiting as Super.
intendent Of Police.


N~NN|>|<NN%NN<rN~~Nr|~<ONl
THK DECLMATlON OF CHIEF MATSEI.L.
SUPREME COURT-sPEClAL TERM.
Before Hon. Judge Peabody.
MAY 6-7he People ca REL Fernando Wood %. SYneom
Draper and oers-The complaint OF the plaintiffs In this
case by the Attorney General states thai at the tme Of
the passage OF pretended act OF the Legislature Of this
State, entitled Gan act to establish Metropolitan Police
District and 10 provide for the government thereof on
the 18th Of April 1867, the office Of Police Commissioner
public civil Office in the city Of New York. and that
the Office of head Of sald Police Department, was and is
public civil Office belonging to the Office Mayor Of said
city, &c-and that after that time, the I'D Of April
1857 defendants pretended Board Of Police under
said pretended act, without legal warrant intruded
and usurped the Offices Of Police Commissioners head Of
the Police Department &c. from theucebrth exercised
said Office Of Police Commissioners and head OF Police De-
Of said pretended act were conferred upon said Board
Of Commissioners Of Police and upon the Mayor,
&C., &c, the head OF police, and which re.
late 70 or connected with the police government,
appointments and discipline within said city, &C., aud
still do usurp and exercise sad Offices and all the power
and authority &c. &C. in violation Of the constitution and
laws Of said State and plaintiffs pray that defendants
show by what warrant they claim TO hold and use said
Offices, and they demand judgment against defendants,
that each of them be ousted from the power and authority
aforesaid that said relator be declared entitled hold
and exercise all the power and rights Of said Police Com
missioner and member Of said Board Of Police Commits
soners &C. &c. he Of right ought to do under the laws
Of the State existing and in force at the time first above
mentioned There is also before the court affidavit OF
the relaor the effect that he is actually Mayor Of the
city, and that by virtue Of various acts he and been
head and chief executive Of the Police Department and
such has custody and control OF large amount and number
of station houses telegraph apparatus books and other
property real and personal used for the Police Depart
ment; and also has the charge and direction Of the
men. That defendants have organized as a Metropo
itan Police Commission under said act; that deponent
has been advised said act Is unconstitutional and void
that he has been instructed by the Common Council
to resist all action of the Police Commissioners by
dinance to that effect and unless said commissioners
enoined from proceeding under said act and from
ing power said police force, the property Of the
department. the most serious consequences may ensue to
the peace OF the city and that is necessary to the rights
Of deponent and TO the good order Of the city, that said
Commissioners he enjoined until decision can be had
the suit On these papers order has been made by
csng any Of the functions Of Police Commissioners until
the further order Of the court On these papers, and In
GLIDING said order affidavit OF defendants that they have
been severally nominated by the Governor, and with
the of the Senate appointed Commissioners under
said act that they have taken the oaths OF oce and
sn a. ana and
and irremedabe injury will be done by the
continuance Of The Injunction; for that the com
plant admits that the defendants in Office and By the
terms Of the laws set forth in said complaint the moment
these defendants take Office all previous heads
Of police government viii be devoted alone the support
of the provisions OF the law under which the defendants
hold Office by the fiscal officers having charge Of them
The defendants move 10 dissolve the injunction.
Peabody, Jusce-In this case, which Is in substance
determine the rights Of the defendants ofces
o % s
derived their appointment They aege that the STATUTE
by virtue Of which the defendants claim that they
hold the Offices, In in conflict with tho constitution OF the
State, and therefore void and being they ask judg
Of this Court that effect and that defendants
this action and to this relief plaintiffs seem to be en-
titled IL the law be, as they aver rs, unconsuta'
temporary Snncou BY which aeisDaants shall b be re-
strained m exercising any OF the functions OF their Of
fees pending the litigation and until the decscn Of the
claim 70 bold To his end they have presented their a
plIcaton Justice OF this Court z part our prac-
don has sde su order restraining defeodsn,s from eser
cspg the rights performing the duties pertaining he
Offices above stated This order the defendants
mtvc TO vacaie, and they urge thcx motion several
That the claim OF plaintiffs tina, the law is uncons,,u
tiopa u not well founded, but that is the contrary
consistent with heccosttutiou and valid
That the remedy by injunction in an action OF this
kind v not authorized by law IN any case.
That II an Injunction issue at all In action CT
this kind the facts shown In this not sufficient
warrant H.
The first ground embraces the principal question a, issue
and to be determined in the sui-he Of
the hw-and nasmuch that question VIII very shortly
come before this court for decision the argument u
the whole case made by the plaintiffs u Is quite proper
that should refrain from passing upon now unless
shall become necessary for 10 do deciding this
mouon. Ine second ground on which this motion
Is one which relates 10 practice, aud having bearing
the general proposition which the final result Of the
depends, may be decided without reference anything
BY which tina, Will be effected. Is the relief by injunction
allowed In action Of qso by practice any
cascf That there IL preccdcn, tor action of this
KIND admitted on all hands But plaintiffs say that the
absence OF precedent furnishes little grounds for an mr..
guDent against their position; that Is easily accounted
for In manner not inconsistent with their claim
legitimate remedy. And u Is true, argued by
them, that prior TO the time OF constitution 1915 the
only cour in which action % this kind could be brought
were courts having only oommoa law powers, and beoce
no court having cognizance OF such a suit could
administer the exclusvey equitable relief Of Injunction.
And II Is slso true that unul the time OF Code
cedure s4s) suits OF this Kind were clascd among aud
deuominaied criminal rather than civil remedies and
courts Of equity had general rule OF relrsning from
reference in criminal matters Whereas this court al
now constituted has full chancery and powers
and having possession OF this suit FOR general purposes
can aid the plainur by injunction, II They entitled 10
tba, aid and snce the Code wcut into effect s<s OF
tbs Kind have been, and by Law now are sscd anons
and dcnomnaed civil remedies, that tho rule that
equity will not interfere IN criminal matters Is longer an
obstacle L. equitable relief in action OF this kiud r.
therefore, the absence o. machinery grant
functions IN the courts In which alone suits Of this nature
could heretofore be properly brought and the fact That
remedies o. this Kind called criminal the reasons
why relief by injunction has hitherto beeu known,
these reasons being done away there would be
longer any obstacles 10 that Kind OF relief Actions Of
kind, however, really criminal In their nature,
purposes effects foSmery than they now, although
by iuiuncoo WAS then As vel, Known. and AZ pr,cer .
principle and well adapted 10 the wants of Migsuts
this description OF actions, ~ MS although not,
IL true administered by the which had rrris.
dkton 10 Try the case Yet, u had been then proper
and desirable n could have been had by application
Court OF Chsncery which had power TO grant in AID OF
The legal remedy in proper case am no, sasnef that
hese Of convenience and habit OF the sag
eessed the real that this description OF relief
has been known In this country and in England
The contrary Am Inclined n eok for sub
stanta In their nature, and having better foundation In
principle or policy.
inclined 10 think that such relief has been
deemed consistent with the interest Of the safe, with
hgbtcned public policy, with the general principles
which must govern 70 ces emansiing IRON the
resa power, and hence hs, been adopted prsc
tee; that the public welfare has been deem
cd 10 require thai actual incumbent Of
an ofitce sbood not be forbidden 10 perform the
duties q ir the time being, even though his
title 70 the Office were doubtful that the pub.
lc should NOT be deprived &C the beneG, of Office
~ because was uncertain whether tho person and
ready 10 perform the duties OF there riehlly even
while the THE q the party assuming 20 act should I've
controversy. 10 restrain the action of the incumbent Is
10 restrain all the functions of the oce for he being
even " wronFnilly-mgst act. one can. And u ~