New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-05-26

lAgllafule self as well the individual ciuLen
eonracts therefore, as delegations OF power, ana o.
statutes higher than acts Of ordinary legsauen, ~
are the subjects Of judicial construction and oil uu.
action. The Judges, too, are specially s"o,n, ~,
only 10 interpret, but To support tneui-i IN
almost say, night or wrong. With the WISDOM ~
pediency Of q constitutional provision the Judges
no concern. Stat pro ratOne voluntas pop9n -;
are patiently and impaTtially to seek ont ue inSe
and when found 10 give il effect, even II pecSG'
necessary 10 ovenule statute. In case OF CONN., JIM
one must yield-and of the lower 10 me nieNS
law. $3.50. .L
Ard as with the Constitution 80 with the statute the
Court has nothing To 90 with IL fitness. 49,.
The question, in either aspect Is hot one oil
e1peditncy, abstract night. On all tho-e consa.la
lions the decision of the people in the ConsI'u.uII
and Of the Legislature in the statute was hnaii anu
without appeal, except TO the ballot box. Inc -
latuie, however, went further. They raised VIZ
ton Of constitutional competency, ana aeciueu ~,
a. they had right 10 DO i'll the rst instance IN ISl
own favor, but subject to appeal both 10 the oaiO'
and the bench.
such an appeal is now taken. 1t il in the name OF
the people Of the State, and il addressed 10 me oI
prene Court of the State. The Attorney Geheiai'
speaking ne has right to do, FOR the people, CON
tends that the act il unconstitutional usuIpauOn'
and demands that il be declared null and Void in0
thru article Of the Constitution declares that;
'the Leg1iatrre poper OF this State " giving no
direct definition of the term" shall be vested IN
Senate and Assembly" Such grant, stand
ing alone, all will admit to he sufficiently eompenen
a Board Of Police Commissioners, prescribing 'neH
mode Of appointment, and defining their powers
and duties But the grant does not STAND
alone. 1t is accompanied or followed ny
numerous restrictions, express or IMPLIED. Anu
here il should be observed that restrictions do no
necessarily require the of negative terms: pos
tive direction to do an act in particular man
ner implies and carries with 1t prohibition
against doing the act any other different manner
A Constitution is not thing Of letters and syllaoes
but of ideas II is to be literally construed, with
view to substantial objects, and the Convention tha'
framed il not to be treated az mere cantor f9f"H
Ioruta The Judges, in particular, should seek ouI
ard enforce the spirit OF the w political testament OF
which they are made ministers -. =.
Among the implied restrictions of the Constitution
are those contained in the lUh article, which declares
that all CITY and County officers, whose election or
appointment not otherwise cOnstitutonay provided
for shall be chosen directly by the electors OF the
respective cities and counties, or appointed Dy
authorities thereof" as the Legislature may direct
II will thus be seen that the Legislature, although
allowed in some cases an option between
direct and indirect appointment OF the omcers
Of cities and counties was prohlbIed from uaIS'er
ing the power TO the central authorities oi the state
In the enumerated and of course most important ILL.,
stances they were not allowed this limited option
"Sherifs Clerks of Counties, including the Register
" and Clelk of the City and County OF New-iork
CoIouers and District Attorneys, sh"a Ge chosen Gays
"the same artcle by the electors Of the respective
counties" Decentralization, IT will thus be seen
whether wise or unwise is the principle clearly estao
lisled and its opposite as clearly repudlated.
But the Legislature, it Is contended, are only re-
striced in the cases of county, city, town and village
Offices they may, by law, create other offices Of
fees other than those enumerated and specially proNu
ed for and may direct, In such cases OF new"
offices that the incumbents shau De eiecteu w no
people or appointed" they, Athe Legislature may
deem most expedient. Such undoubtedly Is the IAN
puape of the Constitution. And II presents tnere-
fore the question whether the newly created Com
mi.sioners and their appOintees are or are not
oitv and ! /
the Legislature had power to take the selection or
appointment from both the electors OF the cry or county,
and the authorities thereof AS originally introduced
the bill, it Is admitted was obnoxious 70 'his ONCE
ton II was confined exclusively to the City Of New
York and vet the appointments as now, were 10 De
made by the Governor of the State, who, although IN
one sense an authority OF the city, is clearly not 80 IN
the sense Of the Constitution. That Dll, however,
welding TO the constitutional difficulty referred to, was
abandoned by its authors, and the present. creating
Board with jurisdiction over district Oh iour COUNTIES
substituted in its place. And the question Is, can
hin Tins copfessedly framed to avoid constitutional
G;fi;cues or as the plaintiffs counsel contend, 10
evade constitutional inunctions, be sustained by the
Courts. .,,,o,,ra. M oIroo5,, s,.tad l.,
American jurisprudence, that, where Constitution
and statute in conflict, the latter must yield to
the former-the lower to the higher law. And II Is
equally well settled and was 30 Long before the adOP
ti1n Of the Constitution Of lSi1 that appeal In such
cases and in such only, lies from the Leglsla-
i've 10 the Judiciary department Such an appeal, II
il nresuIned cannot be taken away even by express
enactment For, although the Legislature under the
new Constitution, have power tArt. o. to alter and
regulate the jurisdiction ana proceedings OF the Courts,
it is only " the same power lin that respect as they
heretofore possessed.
To test. then the validity of the present BILL let
take AS an illustration tie of Sheriff. The Gov
ernor OF the State il must be conceded could not be
authorized by the Legislature to appoint Sheriff,
either by that any Other name. Sherlts, says the
CONSTITUTIONS shall be CHOSEN by the electors OF the
Az fherpt nre nj
Sberiffs should from thUceforth be called narshals
or commissioners and flat as marshals or commits
soners they should be appointed by tue Governor,
would be clearly void The mere ceremony, however
high and however solemn. Of new baptism by the
senate and Assembly, would not save it. The Con
stitution intended something more than name IL
reouiied that certain undiOns OF Government should
lie discharged by certain bcGl officers OF local origin
1t cid not intend that the doctors OF the sUuu
enoy the barren privilege of choosing two syl1bles;
What then in the yea 1871, was the legal ana
well understood acceptati0 Of the term Sherh
Sherifs or Shire Reeves they were once called,
are defined in the old swIooks to be the chlef OIL
Gers under the King, OF Their respective shres having
the custody keeping, command and government III
some sort of the respective Localities coilu''eu ~
their charge with power serve process 10 return
uies TO make execution, and 10 Keep Tue Pea me-
Coke Lit l6S DALI, Sh., ~ And TO TINS e9o tney
might appoint as many deputies as they should thnk
proper Il IL. s., 379.) sub, in general, were the
iunftiops of Sheriffs and nch therefore, III making
| those officers elective d! IN PeoP,,e', -
tons which the Constitution intended should be dis
charged by the immediate nominees OF the local elect
ors as distinguished from the more remote recipients
of central patronage DO, then, the functions oil the
newly created and appointe, Police Commissioners
correspond. in their substare and general outline,
with those above described asconSttuting inc elective
| Office of Sheriff With tn, exception oi returning
nrors and serving civil process there is in their gem
eraI attributes no substantial difference. Nor Is
there any as to the power II appointing deputies
both superior and Inferior regular t and sPec tS
:. "D Whole Of the said The Metropolitan District
Their authority, it is true, MT confined to county