New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-06-29
la " INTELLIGENCE
THE STREET COMMISSIONERS QUESTION.
ARGUMENT OF Mr. BRADY.


SUPREME CouRT-yssr r.-Befor. Judy PsAsoov
In the meter Of the ,ep::i0n ss ef D. D. c0s'vs''s
At the opening Of the Court this morning. Mr. y. ID.
Field r stated that his father who was injured ~
to be here his surgeon recommending that he should
stay at home.
Mr.. Brady read letter from Mr.. Field ststing that
his surgeon laid it would not be safe for him 10 appear
today but if he Mr.. Brady would go on with tho
srgunle he would have notes taken and would reply
Oh Monday If he was not able TO reply orally, be
would either make his reply in writing or ask oae o.
his associates 70 reply for him. Mr. Brady sad, rs he
had other engagements on Monday, he would make
his argument to-day.
Mr.. BRADY's ARGUMENT.
Mr.. Brady commenced by remarking upon the I'M
portance OF these proceedings, aud of the Office Of
Street Commissioner, TO the citizens. The Office had
always been held under charters, and legislative acts
assisting charters. The proceedings resoted 10 here
were never intended 10 reach any such case. Ths
books and papers Of the office were the private prop
erty Of the Corporation, and II this Court should grant
the order asked for the city could bring an setion In
the nature Of repevn 10 recover possession OF tho
property. The books belonged neither TO Devo nor
to Conoyer but to the city, there only right 10
use them Street Commissioner. II this were
State Office the books might be demanded ana gwen
up but as Corporation office, the Corporation
which owned the books had Of right voice In the
matter.
The facts established are:
I. That when Mr.. Taylor died Mr.. Turner Deputy
Street Commissioner entered upon the performance OF
the duties of Street Commissioner, aud continued to
act Street Commissioner until the appointment Of
| Mr.. Bsvlin.
3. That M. Devlin was appointed by the Mayor,
with the consent of the Board OF Aldermen on the
10th of june 1857 and that day duly subscribed aud
filed his oath Of Office and filed his official bond with
| suretes in due form and approved by the Mayor.
3. That he immediately took possession OF tho
offices usually occupied by the Street Commissioner.
| and of all the books, records. maps, documents,
papers and furniture connected with the Office Of
Street Commissioner, and has kept exclusive possess
sion Of them since, the furniture being however,
subject to certain leves made by the Sheriff, under
execution sgainst the city.
4. That Dcylins title possession and office ~
Street Commissioner have been recognized by the
Cooperation and all its officers including the Controller.
S. That Mr.. Conover has not fled EN- official bond,
approved, "a required by law.
8. That he never had possession Of the Street Com
nssoners rooms nor OF any OF them nor OF the iar-
niture, books, maps, records documents or papers
thereof, connected with the office. nor OF any OF
them
Z. That he has not been recognized as Street Com
missioner by any OF the Corporation officers, nor BY
the Corporation but his claim under the Governors
appointment has been expressly and unquaifcdy
pudated aud denied by such officers and Corporation.
8. That Copover claiming under the Governor, and
Devln snder the corporate appointment, there Is
disputed question OF title to the ohce OF Street CON-
missioner.
9. The eIpulsions Of Conover from the Street Com
missouers apartments took place before the appoint
mept of Deylin, ard were made under the orders OF
Mr. Turner the Deputy Street Commissioner, 10 quit
his posse OF such apartments and enable him 10
perform the duties OF the Office
no. Devlin took peaeeable and unquestioned posses
sion Of the Office, books, sc. This possession was
recognized by Conover, who applied to him to suren-
| der The Office to him tConover).
N. DeyLD'a refused 10 surrender HRs made peace
uy, under claim Of title to the Office set up in good
aith.
10 The ordinance Of the Corporation giving 30 the
Mayor the power to fill a vacancy In the of'ioe Of
Street Commissioner, with the advice and consent Of
the Board Of AlpcrmeD, was in force when the Char
ter Of 1851 took effect and has not since been repealed
| or altered.
Mr. Brady proceeded to elaborate his points, hero
| tofOre published.
This proce edipg involved the claim Of tina Governor
Of the State TO obtain control the property Of tho
Corporations and IL corporation or any OF its officers
could be deprived of property without trial BY Jury,
the Constitution was mere rope OF sand. Heshould
think would strike his opponent that II was treating
the City Of NewYoIk very unfairly 10 attempt to de-
pive II of property without making IL party 10 tho
When 40 grave question As conf ct Of power be-
tween the Governor Of the State and no Cooperation
was involved he thought something other than this
summary proceeding should have been resorted ~.
Mr. GpDOver ought to have sought mo varranto for
his remedy that the rights Of all parties might be set
tied The claim that the Mayors neglect 10 approve
| the bond a neglect Of duty ws futile. Tor tho
Mayor could not be called upon Ut TO attend to an
ofceholder when mere pressing business was before
him.
Mr. Brady referred TO the insirnation thai he was
unwilling to submit to laws which had not been de-
clared unconstitutional. On tina. subject he would
only say that he never had never would. counsel re-
sisianee 10 any aw-the Metropolitan Police Act In
eluded-until i has been declared unconstitutional
He present, not as partisan, but as friend OF
Mr.. Deyln, who had befriended him in his early po-
ica lie proceeded to the main questions OF
law involved. The repeating clause Of the hew char
ter merely goes to the machinery Of tie city govern
ment but another clause resssyes to the city ell is
| powers, &c. Another clause continues the operation
| Of the Dongsn and Moptgomsris Charters. When tho
Constitution Of 1876 adQpted, the Street Commits
sOner was being, the Office having been created in
directly by the Charter Of 1880. The creation Of the
Office by the Corporation by an ordinance, Yas un-
der the general enabling clause OF the charter equvs-
| lent 10 4 creation by the Legislature Undsr the
clause Of the Constitution fart 10 y referred to,
the LegsL1iure could OILY se.eet a. between dele
! horiris,, the power OF appoint uent.
Ii y zkisied that tbs apples only to permanent Of
fceIs, and not to PERSON APPOINTED 10 discharge ths
Thsre is nothing IN this Distinction The Governors
appointment ttyies Mr.. CosOyer Street Commissioner;
ard why is he MT such, his appointment goes for
eby Ding The absurdi:y Of suppoting that, though
tie Governor cond cot sppoint the Street Commits
ioner at the siose Of bis predecesors regular term
| Of Office he might should that predeccrsor die "a
hour after his election is maDit. The case insfanced,
Il the appointment q Justice ofthe Superior Coud,
70 lot IN point, aimee he cannot BE considered oy
l but State officer. SO, also, sheriff y btsts Of
I fcer. There is no way Of overhesrng Ne provision
Of the Constitution tina, county or city officers must
be chosen by the electors " such cityo county, or
MI Brady passed TO the discussion Of SnedekerA
\ case. He read Judge Depio's opinion. IL sppiied
he ssd ouiy TO the act of 1889 which no amount OF
sophistry OF stupidity tosh extend % any but sat:
officers The deesios Ia the Of Snsdtker did not
touch the question, because II was dscided only on
the ground that the Office was rSt affected by the
Constitution Of 1896 This sS the case with The
| o66ee Of Street Coznissioner.
He next referred 10 the city ordinance, prastding
lhat the Deputy Street Copxi shall. IN ease OF
vacancy exercise the duties Of Street Commis.soser