The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-24

govefumeot present
from the Sd Jobpscns Case. " the lae volumes a Bsr
bour ports full Of rsfasas by the Courts
te's'n such questions In any summary form, either
by mandamss, or In any other mode than by quo war
ranto remedy specially adapted 70 the case, where all
the merits here party has the rgnt OF tris
by juyhe right Of trial by jury, wisn mt which
cannot he deprived Of office ami oaehtn TO be
This petition also defective In other respects 90 which
lrha presently call the attention OF the Court fo' does
mot bring the within the sixty sixth section OF the
statute in respect To the time and circumstances under
which books and papers int the po'sesnion o.
a party to render him smebabie its provisions IL re
qurcs that ,uch possession shall have been acquired
during vacancy in the office No such allegation u
made Aud bear in mine also, II your Honor p,ea,e,
boofs papers, except possession incident to the
office witch he claims. h was at charged with such
session Of them would have existed had ihef
beeu possession OF q clerk officer Of this court
any private citizen. The only possession OF them sug
Re.ted pon he petition IL possession Incidental and up
perts ming the claim or office which he asserted; ao
manual pt session not that they we're In his pock st no
that they in bis house; not that he had them locked
serted constructive posseeeiop OF them iu,idenL To
the Office which he elaine tight to hold Now need
cation to such q that? Most obviously 1t was In
tended TO take the books papers, maps or other OF an
office, fro persons ~ho had acquired them IN come msn
other different from the claim Of possession which
is incident 70 incumbent OF an ofice-from
some clerk In whose hands to whose house
peri ether than the actual incumbent Of the Office
matter who he may be or how his possession WAS &C
CURED the theory Of the matter being that the books aud
papers OF public office material and necessary to the
oice-pecessary To the discharge Of its duties that
gent necessity arise ami exist for the use
Of those books for the publ; interest and welfare Now,
please your Honor, this Is precisely the view OF
this statute which has always been taken by the courts
that has no application at all to disputed question be-
tween par 10 the right TO the office, and whore the
possession Of the property as Is suggested, merely In
cidenal and dependent the OF the or the
other In maintaining his right TO that Office No pre-
endsNr COnover in his petition, does not pretend-thst
Mr. Deylin asserted any other description OF claim to the
ownership or possession Of those of them
er COnOver
says himself, In many words, that Dsvlin claims the
custody of the books for that reason and upon that rea
only not ca ming that he ~ned them not claiming
any exclusive right IN them but that they we're in
the Office in the apartment which he lped a. pios
he asserted upon his OATH before Justice Pea
body that he the Street Commissioner that he had
upon The duties Of the Office certaia day-by these
Conover asserted and sho we'd himseob be
just fully and completely IN of the books and
papers Of the OH Devu could possibly be, provided
thtr could he any of truth In theory fact In t1e
allegations he set forth in the petition respecting
his own appoatnen What I mean to say Is this:
that nasmuch Devlir, according to the petition,
asserted only q right I, the possession OF those
books and papers as incident TO the office he
claimed-ihe office being the principal clam-that
nasmuch that was showu by the petition TO be the
case, Corover alleging the same right to the Office was
Dav Inns only constructive and in denal possessi
and Co lover's equally constructive aud incidental
and for that reason defeated by his own act he was pre-
Guided by those allegations from any successful At
temps to invoke the jurisdiction OF Mr. Justice PEABODY
because the answer was obvious: Why sir, II you are
entitled 10 the office, enter upon II and discharge the du
ties and 90 If you claim this Office, an some one
else in il, who claims be rghfally appointed, the law
gives you but one remedy, and tina. is the remedy OF
quo wdrrano this view Of that statute, whs,
elaborated doubt than necessary, has been
frequently presented to the courts, and WIS well put
in the Of The People Stevens. (5,h Hill, page
62s [Counse quoted from the decisions Of Judges Mel
son ard Bronson to SHOW that where the occupant of
public office 10 possession, under color of rgnt RENE
dy by mandamus should be dered and the ONLY remedy
allowed by the statue was that OF quo ioarranto Now,
where You may form issues OF fact may ha Trial. and
may invoke exercse and claim the protection OF al the
20 .err Of the Court much higher and more dgoned
proceeding than the summary described In this sta
tue; an fortori II writ or mandamus Is NOT allowed
TO supesede the writ OF qo 'odyr unto in matters OF pnoc
Office where there color OF right no court viii ever ALLOW
this almost mechanical Gel, which Judge u,
cficio, permitted 10 do under this statute, 10 so-
pcsese the Of the writ OF quo o1rrdnto.
The authority says the reator under cir.
cumssnces rst have decided his right to the Office,
and then tho books ar papers WIN follow - matter Of
done. They should, when they found Mr.. Devtn was In
Office induced into Office by the Corporation, recognized
when Mr. found that TO be the case and that he
rested the abstrac, claim OF right TO be the incumbent
o. he once ne o IL, ne , m o. opo
that could be presented 70 any lawyer aud Alter he
had presented his writ Of quo warrsnto, and had esao
hshed udciay his right Of ue 10 the oce-when that be-
matter Of record then person her than himself
In the Office ut-uder-the verest trespaser In
tie wurld-a there without Jor or shadow vcsge
right proprieiy and any possession that he might have
Assert books and papers would not be respectable
and late claim or Incident to the right
OF Office but wou,d be possession which, II not eIdhous,
would be Al least quasi criminal, and would be such one
this statute intends to take away Next we that he
had gtt to proceed r the matter upon the petition,
because disclosed other title to the Office 10 the ap
plicant than alleged appointment by the Governor TO
ion issued by the overno- he claimed that the
Justice shoud proceed and pct him possession OF the
books an papers Now that the Governor had no
right 70 confer the appointment on Mr.. Conover,
and for that reason the Justice had jurs-
diction TO proceed. We say thai the petition OF NJ.
Corover showed that he dsr, ed his clAm the Office
from q so.ce v hich according t the constitution and
the laws OF State, had power whatever confer
upon him. ard that by The Constitution AMI laws Of the
sate the pow TO ali he Office )sessy vested Ia
else than the Governor TO sit, the Mayor and
Aldermen az the city OF New York, ana that therefore,
Of color claim Of RICH, whatever the jurisdiction OF
Justice Peabody Counsel went on IN show thstt oice
oonequery by section TO- art Of the tuition, that
officer shpu be elected by the electors appo 'tct by
sucb authorities OF the city the Legsla,ure should
tgnate Now we shall show, be oontioued, under
the second branch OF the argument this question
o. the power Of appointment that the Legislature did de
sepaie he Authorities that the Les' ature under this
power In the constitution, did designate the municipal
authorities which should OIL this Office OF slrest Commis
soner 20 that there could be possible grouod
OF mistake 10 lsse they provided that the Street Com
missioner sh Jud be elected, and by he charter or 1867
they provided that be ,honi be sppon ed. Nov, may
please your Honor, this provisin OF the sit -n has
received bish JUDICIAL consucon sssly applicable
10 tai. case me receut decision OF the Court OF Appea
shh reference W ne hcVopohAn romeo qussuou Inc
orinion OF the Court 10 that case IL cear and ex-
plicit the point thai II the Metropolitan Police
ssoners rsht'uy 70 be regarded A. city ON ,ers
there ould be doubt 70 uocoastitut )nsnty Of
the appointment shch they claimed through the Legsls
ture; and that because, By the term Of the act,
they the officers OF a city bat OF district
prsog several cities and psrts OF several couu les.
only by virtue Of that machinery 10 the act tina, those
Commissioners we're taken out OF the ess, aud opcrai on
Of that clau-e In the Constitution, nut tnst-(such Ia the
ve~ taken BY the Court)-poth'ns could be clearer
more certain than that neither the legislature nor Cover
nor any authority excep, the authorities Of hs locality
belf, can n any instance appoint city, town or village
officer We claim that v s1judicauon expressly In
point upon very ella Of the Constellation and 10
CT 70 n mupcpsl on 'er and has ali tbs effect aud
force that could have that hsa been the very pon,
sajudicaso n fact, may say was the very point II
for the Court TO that very question
10 shether they city officers not; Tor II
disputed That they city Ocers they c,uli
bold derive hcr appointment from the executive
authority Nor II be said your honrr, ihat this cJn