New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-09

presence there.
The Deputy Street Commissioner, who We right
fully in possession of The books and papers, and 10
charge Of the business while the vacancy 10 the supe-
rior ice continued, refused throughout the lime q
the applicant IN sns Il S% S S
actual manual control Of the books and papers belong
Z On the 10th Of June. and after CcnOvers last re.
mova from the premises ;bs T MS"p ,b nsSg ~
the Board Of Aldermen, filed IN the proper place hs
official oath and bond duly approved, and enered 1s
ROOMS aud took possession Of the books and papers,
claiming TO be Street Commis.ioner oy Sl.ae ., ais
enpcinirnent and thence hitherto has 80 continued
On this state Of facts the applicant demands an ordt
from me. and warran, by which he shall be put IN
possession of the books aud papers sppera'nng 70 ne
Cffice. 49,, - ~,
OppCsed-Messrs. Brady, Busted and Willard.
Judge Peabody-Thc exact function deyoived on
being ascertained much of the difficulty of deciding
the case before will, l think, be overcome 10
this inquiry, then, will direct my attention hrst
The section of the statute q R. s. i25 see: Sol pro
and any books or papers sppertsining 70 the once
shall come to the hands Of any person the successor
40 the Office may adopt this proceeding 10 get posses
sion of thoee books aud pspers Ihis is very ORE
Statement of the substance Of that section az far as
is applicable to this case.
person has been elected to the Office OF Street
Commissioner Of the City Of NewaSIx ,nS' enIs0a
tanning 10 that Office have come TO the hands OF per.
sop the respondent. Thus far the case before me
comes within the statute.
These facts not seriously contfo'er'Su "ou nee
having occurred certain person, or ra,ner Peison
certain character Is authorized 20 aaoit
this proceeding before me. Inc successor " SUN
office may" and he alone OF all the word, may,
through this statute invoke my aid In this proceeding
10 obtain possession Of such books or papers. ihs
applicant saws he is the of the deceased to
that cce and he produces what he claims ID evidence
of bis title, to wit, commission showing MS apP2ut'
nent TO the office by the Governor OF the SAFE Inc
effect of this is matter OF controversy between the
parties. .s
fee, and the respondent denies that II d9es '1s anu
the power of the Governor to ill the office by APP
pontment is at once in issue between the parties.
On the decision Of that question must the ultimate
rights of the parties to this proceeding manly de-
The respondent claims the Office by virae Of an APP
pioptment from different source-the Mayor, WIZ
consent of the Board Of Ademen-but his title Is 40.
necessarily TO be examined here, iot Tue pa "a
claim is good the respondents is OF course, BAD ana
;f the APPLICANTS is bad, it is not imporant 10 eA-
anime that of the respondent for this proceeding can
only be maintained Oh the strength OF the apphcans
claim II. l, -. IN
If, therefore, the applicants claim be not Wen
founded he NUT fail and the relief sought here must
be de led even though the claim OF the respondent
should seem to be equally defeGtiye. -, 49,, a..
cussed on the argument Of this case, which Ineed 70
decide whether the applicant is the successor to the
ofiice of Street Commissioner. The power OF the
Governor to make the appointment depends entirely
on the act of February g. 1919, which provides that
heneyer vacancies hall exit or shall occur in any
Of offices Of this State, where no provisionis now
appoint some suitable person who may be eligible to
"the Office 20 vacant, or to become vacant until the
CONNIE ncement of the political year next succeeding
the first annual election after the happening Of the
tseh sxtah AHra he ~ In ~
elected"
An objection was made on the argument tina. this
statute cid not apply TO this Office, this being city
and not State office. think it is city ofce that
is that it belongs to the class called city distin
guished from the classes called county town, village
State Offices but these denominations are used to
distinguish the several classes of Offices from each
other and for purposes of convenience chiefly, and
perhaps wholly; and the fact that office comes
within the class dencminated county, village or city
Offices, a. distinguished from those usually known by
the more generic rane Of State office does not prove,
OF tend TO prove that it is not in fact State office or
in the language of the act, not one of the offices OF
this State" On the ccnirary-city county, town and
village offices all of them offices Of this State in
the more general and comprehensive sense in which
the language Of this statute is evidently ID and THE,
though city Office is nevertheless office Of this
State and embraced in the terms used in this statute.
This statute was passed to carry out provision Of
the Constitution Tart TO- sec s., which directs, in most
general terms that the Legislature shall provide for
filling vacancies in Office and neither the Consti-
tuition in using the terms vacancies in Office" nor
the statute, in using the terms vacancies in any OF
the Offices of this State" seem to look provision
for vacancies in particular class Of ocesquite the
reverse.
This statute provides for filling this office, if no
otker provision then ' is money! made By law for
filing it. To the application Of this statute 70 this case
several other objections besides this are made by the
respondent.
FIRST That if applies to city Offices it lie, in Ger.
tain aspect repugnap to the Constitution Tart TO- Sec
q which provides that all city officers whose appoint
ment not provided for by that Constitution shall be
elected by the electors Of such cities appointed BY
such authorities thereof as the Legislature shall desg
nate for that purpose
Second That the act of February 3, 1899, cannot.
Iromlts nature be applied to this Office, ii being not
elective. That act provides that the appointse OF the
Governor shall hold " until the commencement of the
political year next succeeding the first annual cleo
ticn at which such officer could be BY law elected
and as this office Is not elective such election can
ever occur, and hence the time Of Office of the ap-
pOintee would never terminate.
Third That the Charter Of 1857, sec 80 in coutinu-
ing in force all the ordinances relative to the depart
ments, continued in force the ordinance Of lS49 which
gave the power to the Mayor; and IN effect BY
con'lhuiig the ordinance in express terms perhaps
enacted it as statute, and gave it effect greater
Than 1t would have had ~ an ordinance merely.
Fourth That the power to appoint such officer
, ,r in the city BY virtue Of ;s general powers
ftfh: That there actual vacancytD be filed,
Turner, the deputy, being the incumbent, by viure
Of the ordinance to that effect on the death of the
former incumbent.
l do not attempt to enumerate all the objections
raised by the respondent. Some of them certainly do
great credit TO the ingenuity and skill of counsel as
DO the arguments on both sides Of this case TO those
who participated in them respectively. / merely
STAKE come OF the points to show that there ques-