New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-05-01
The METROPOLITAN POLICE PuI.
ARGUMENT OF JUDGE EDMONps

OF Police Commissioners yesterday AFTERNOON. Tue
commence ent OF his speech was in defence OF The
counsel for the plaintiff and charging upon the other
side infanmatory appeals making unfounded s,s:s-
ments, and lodging the Tain question OF the copsi-
nationality Of the law. Th.nce the speaker procesed
TO inquire into the spirit q the makers OF the State
Constitution, which was ~ strip the Exc 'nive Of al
patronage. He coniendee Tor the invioabliy OF
county lines, and denied the authority of ths Leg-ia-
iure I. join counties 20 make new districts. Judge
Edmonds replied at considerable length 10 the argu-
ments Of Mr.. Moves 10 the regularity Of the mo-
ceedings, ard quoted formidable arsy of cases.
which he said noted impotan, changes made since the
authorities quoted on the other side
The hour being late, The Court decided IN hear W
Field in summing up this afternoon In the me sn.ina
he submitted the following, his points 20 the Court:
l. The Injunction ISSUED contrary 10 Law and j.
void because il not issued al General Term Of
the Supreme Court after notice 10 the deiendants n
is REQUIRED by the act OF July 10, 1851 chapter 49,
That act provides that whenever any duty ,hsll be
"deyolyed by law Of this State upon any Sas officer
or Board of officer injunction shall be- issued 70
"restrain such officer or Board, or any person
"ployed by them or 10 prevent the execution Of any
Z" such law unless the same be granted by the Sb
"preme Court sitting in the district IN which such
Board shall be located. or such duty shall be re-
Squired TO be performed, at General Term OF said
Court And second section requires az least eight
days notice to be given before the application
p An Injunction il not allowed by law IN al acton
Of quo ir0rr0no under any circumstances whatever.
This is peculiar and exceptional action IL i sab
sttute for the old writ of quo ,cdrTaRfo. and by the
terms OF the code. section ~ TIE
remedies il may furnish those given by The writ.
The language is too explicit TO be- mi>understood
The remedies heretofore obtaRdbe these forms may
be obtained by civil actions, under the provisions vi
this chapter" No remedy, provisional or final, can
be given, except such were before given and
these are limited by tbe provisions Of tkis chapter"
If all the provisions applicable TO civil actions il
general were applicable Ia the action of quo caTraR0,
then the section ABS providing for arrest was w.
necessary as also the section Az providing for
an injunction and receivers and this further conse-
quence would follow, that the plaintiff could bring the
action in the Supreme Court or Common Pleas, and
could unite with the claim 10 be admitted TO Office,
cam for the property taken and detained by defend
ants, and may have delivery by the Sheriff, or an
attachment. or receiver as in other actions snchs
construction contrary 10 tie letter OF the code, az
war with its spirit and with the rules of construction
heretofore known and applied in our jurisprudence.
(People agt. Jones. Is Wend., COL.
3. But if il was TO be- admitted that the provisional
remedies TO be applied to actions OF quo waLaHo
as 10 civil actions in general, the plaintiffs world s.ll
be unable to maintain this injunction, because The
complaint and affidavit fall far short OF making case
for an Injunction under the title of the Code regarding
provisional remedies The rst portion of section pig
does not warrant IT, because the complaint does not
ask az part of the relief that the defendants be re
strained from any act. In that respect the injunction
practically rectes the complaint
The second portion of the section does not warrant
the niunction because, first, the litigation was not
pending when the Injunction granted; and second
Il is not shown alleged that the defendants are doing
or about to do any respecting the subject OF the
action and tending 10 render the Judgment lnehectur
judgment excluding the defendants and admitting
the plaintiff to the Office would be just az efectual,
whether the defendants exercised the functions OF Their
office in the meantime not The provision in ques
tion however applies only to cases OF waste OF other
intentional injury to property which Is In controversy
between the htgants.
4. Even if the Court at Special Term had jurisdic
ton TO grant an INJUNCTION against the detendann and
if the action Of quo rarroato were to be treated like
civil actions in general and II the case made by the
complaint and affidavit would warrant the injunction
surprising the act establishing Metropolitan Police to
be unconstitutional every one Of which positions We
deny still the injunction must fall, because the act
constitutional.
Whoever attacks a law as unconstitutional must
make out plain Of unconsttutionality lie must
show beyond reasonable doubt, that the law Is
void CLARK agt The People leo 26 Wend. COG. New.
the act is not thus shown to be clearly unconstitu
tonal but that it is clearly and unquestionaby coz
stutiOnal and valid.
the act TO establish Metropolitan Police Disrc. any
constitutional obgation7 To answer this question we
have first to consider the effect of the act and then
the constitutional provision which it is supposed to
contrayene.
The act organizes body Of about fifteen hundred
men to keep the peace and enforce the laws in four
contiguous counties and places them in the charge Of
| FIVE State officers.
The constitutional provision which this act is sup
posed to cOntravere il the second section Of the 10th
article, which is as follows: GAN county officers
''whOse election appointment IL not provided for
by this Constitution, shall be elected by the electors
of the respective counties, or appointed by the
Boards of Supervisors other county authorities
" as the Legislature shall direct. All city town and
village officers whose election appointment is not
provided for by this Constitution shall be elected by
the electors Of such cities towns and villages or oil
some division thereof appointed by such author-
"tes thereof the Legislature shall designate for
"that purpose. All other officers whose election or
appointment not provided for by this Constitution,
A.. L,~.a ha
81 ted by law, shall be elected by the people ap-
pointed as the Legislature may direct"
Now il is very clear that these five officers, called
Commissioners Of Police are not County or City
officers, but State officers. They are appointed BY
the State and their duties are not confined " county
or city, This act does not therefore, directly or in
terms infringe the Constitution in so far as i makes
the Commissioners to be appointed by the Governor
and Senate.
ton because vests in these State officers duties
which are essentially local. and pertain to the counnes
or cities within the district
II becomes, therefore, necessary 10 examne-fus',
Whether the preser, Of order and the enforcement
of the laws is essentially @ county or city duty
Secondly Whether If II be essentially county OF
city duty the State may not nevertheless, axe u
itself this duty, whenever in the judgment On .he
Legislature, the counties or cities iaii ~ Po''"
duty Al. oao. and
Ii seems to me that the keeping of the peace quo
enforcement Of the laws are IN no cossnls:lon1 ~
sense county or city duiies msaseemen, of city
affairs and by q county officer understand one con.
nsstsd with sosss IF So sayd f city G
aarS are those Of the quasi corporation called
"n,!tv An officer il not county or city officer be-
cause he appointed BY county or city authorities nor
because he resides in the county or city but oecasse
- duties pertain to the affairs Of the county or city
n the ccnfoundng of this distinction which has led
10 the difficulty. .
The Constitution itself distinguishes between judi