The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-26
THE STREET COMMISSIONER DIFFICULTY

The STREET COMMISSIONER DIFFICULT ~,
.o~~~~No.~o~~oo.N~o~oo~o
Che Custody or Mr.. Charles DevliD-Argu-
ment on Return or the Aabeas Corpus by
VIM Curtis Noyes-Mr. Fields Further tie
ply to MIR. OCOnor's Points.
COURT or COMMON PLEAs-sPEorAL TERM.
Before Hon. Judge Ingraham.
IN ne Hotter Of Charles Dtriin The argumen. in this
case was resumed yeatercay morning the Of
the Common Pleas The crowd not croatia here
tofOre owing probably 10 the pro,raesed lie pro-
ceedngs, enough to weary the attention of tao mos. Gu
| rious.
Mr.. Field AT the opening OF the court asked permission
to make the following statement IN reply to the published
| points OF Mr. O Couor:-
Devn IT, in fact. not entitled prosecute the wri. OF
hebeas corpus all He detained by OF the final
judgment OF onpeebt rhupa Of civil urisdictiou -
OR 3C3, sec &c. sub the seth section aoplss only
10 he case of proce's not execution Of judgment The
order for DevDs commit nent and tho the
| DIAL Letter mir alton or Judgment as TO him
The l@esla ure never intended 70 give appeal from
l1fgment or he execution of Judgment by OF the
nspeas cor rus nor % constitute Commissioner APP
pelste tribunal 70 situpon final deter mnaon OF Judge
| OF the Supreme Court In specal proceeding.
r not necessary that the hus Of the street Com
mB TONER Should be snsacted IN the Hall OF Records II
may be transacted any where but the Commissioner must
have he books and papers of the Office.
The Common ourcil has not the power to prevent q
Street Commissioner, acting under lay OF the State aud
appointment Of The executive, pursuant to law from exc
cutting the IN les OF his office. and from having for that
purpoe tie official records If it otherwise the law
the Common Council would be stronger than the Of
the legislature "-'F
1t was no. alleged before Judge Peabody by Mr. Cono
yer, that he bat ever had possession OF the books and
papers the Office, rhe persistence Of the Counsel on
tie other side in making such en or piece
with what they have ssid In o'her narts of ths rase
Mr. Conovers claim for the Is on the nce not
claim his individual b. half but behalf OF the pub
c whose trustee and agent he h. His rgh to the
% bis 80 %ors n. Ss sss ~ sS%e1s he origin
vented for Furnishing for COME npt Of his autho.
rly by ~, sh0.ns that he wa, not Judge dc
Judge de Jdo, ne could punish for conh npt com nand
official records to be brought him, have pro
ceeded to 90 every thing far the public had an in
erest In his which judge de lure could have done
When an office is aled ia Oiled entirely Il cannot DO
cannot be entitled to keep the hooks while another has
he franchise in The public interests yequire that
every oRcer who ds Office, whether faco ejure
shoad be able IN 40 the public fol Justice IT, None OF
the referred ny the on the her aide give
the se hest coun'eDance TO another doctrine suppose
conferred election Of Sovernor, AMI the certificate 10 be
given to the minority candidate could he not obtain the
archives Of the Office renor CT subordinate officers, ap
Gallons Tor pardons official retnrns, &c supp~se
concerted cleo ion Of Secretary Of state, Comptroller
and the certitate TO be given 10 tie wrous
person. business of the ore remain nnexocutsi
TIL quo wdrrdno can be carried through all the cour;sY
IT ead that Conovers petition did not allrge that be
was In possession Of the franchise Whe so or
not wous be Of importance II he did 20 alepe bero
the warrants signed Bot the petition does so slegs
To assert that one has been duly APPOINTED, ar-
csped taken the oath Of Office. died the Official bond and
for exercising the duties Of the oi e. 10 assert
that he has the franchise in possessionh he IL officer
deJdto and Je jye Bow much evidence suficicn.
to make out tbese allegations question for Judge
Peabody A the statements OF the counsel on that point
TIE Argument counsel nv on the right of the CO.
vernon To appoint lv concluded by the assertion that
the Arguments on our side are enirey in harmony with
the norsepsoa character which pervades the whole
ment In support Of Conove'e appointment assertion
which, think only counsel in tbs State would have
made and that counsel me who II said pledged his
profess reputation that the Metropolitan Police act
unconstitutional. and asserted thai reputable lawyer In
the state could be found 10 say IN the contrary,
| ARGUMENT oP Mr.. NoYRs
NR Noyes tteu proceeded to address the Cour His
honor you'd think he was ASKING TOO mnch. II he wen,
all the pvopo ops which he'd been fully aud ably
Discussed ny bis leaned assocste He had selected only
two or three proportions which be proposed address
whether Hr Conover dniy appointed to the ON OF
Street Com missioner under the act Of 1879 He did 20
because, 10 biz Judgment that question did not sr,,e he
hat sbs'ared carefully In all tho dscussons which had
taken psce for the last three months. from considering
ase because the determination of questions unnecessary
TO Gaze always led 10 the making OF bad law In this
case, he question whether Mr. Conovsr Was or
not Street Commissioner could bs tried only by QUO
varranto That vas conceded by the osher side Th,
was not sn bv Mr.. oonover. A. private ne-son. The
proceeding before Judge Peabody was public
on In pursuance Of The statute TO whether Hr Como
the incumbent fw time beins, should have the
snd munimerts Of the o aud the Cur, could
10 the question or real title sside from the question e
f11o possessou OF the franchise. ha corpus
NJ reviev writ Of error II brought on ,nv two
questions. the Cont had decided the only he
soud cns der was whether JUICE Peabody hal iurlsdo
ton Copcedins thai 10 this case the hshess
was proper remedy 10 re'eve from imnrisouent the
question whether not fudsc Peabody had ursac
zion. This led tos reve~ or the crcumstanccs under
which that Judge acted when Mr. IN, lor died tho mover
of tho equity 81 act Commissioner cea.cd In sup.
port Of this he would cite ~ I'M. 6sI IN show
mat no man whom an appointment vested cnuld noppue
that po,sr snsr big decee exoep nv special enactment
Before the death OF Joseph TAYLOR the possession
hoks and papers vested in him alone: when he died
power be bsd given 10 his deputy died with him There
vas therefore, vacancy until the appointment ~ Mr.
'onover. wbo even N he mot officer De js, he
asan't the corroraon and until he Vas ouSed. ed
IN sion OF the book' and de
dto Anarchy snd tumult could be the result
person ~ho commended that he officer De s should
he allowed to take pessessiop from the officer 1 ao In
any way ether than BY QUO parnns. oouo-
AZ the public ..ey -s, CONCERNED onpover va, or,or IN
ion Of the franchise n the Office; thrust
out and nevn ru 10 pcssession ~ the books AMI
pers Tho question ~ the franchise or the Office the
only entered in,o hef Jnsge Peabody and NJ that
he certainly had fu and oomne'e vis con This power
given nv section 90 ~ tho Revised saiuss- H. sss,
sh ed Co1psel then proceeded in1rIre WIS, coust
iued ocer De fdco and on this subject cited vpcrs
Ahridsmen title "ocev and officers IN show tina, s'actr
by Officer de- f1co and not de- s are good; ne m
ore b.ipg created bishop, the former bishor being
presenston bis act 10 good and not svodabe for the s~
fsvors acts Of one in repued auhorv and the inferior
.bal reve- inquire y the authority be lawful whc-e
there but osce there could not he cnr,cr b
J,vs and an officer de- fdSo IN po~session at the
came line, spd the urceAou before judge Peabody
on y who de fdcto o~sess'on o. the franchise;
pro,eedine In reu temporary pc~.es.ion
NJ books s.d Nr Deviu snpesrei and failed
show cause and an order made Hts srsver showed
the, he bad the paper. that he could have delivered them
but be refused 70 do % bocausc he denied tho officers
right 10 maize the oder Trey bad only n show
facts 10 the Judge and fs de-'sion ther nnal
h,houb be horpe IN mind that TN. va. not reviev,
and his honor would be doing vhs, they said Judge Pes
body had donc-acfpe without au,hovv-if be turned
TIT, babess into vevev. He refeyred 10 he
OF ransn Heelow, whore vss held that iusticss
uds mept, though he hsd erred sufrien, ruppor
the process rnti reviewed snd rever-ei ccnsrsri
IN the preston Of Jurisdiction hs fn-her cicd other
tboritles " sho ihs az Only where there nsi
want of evidence shovn that the process NJ the rdes
you'd become void II the Judge erred that would
be fatal Hsv scqu'red jurisdiction IN the nrs instance
the dccsou OF the Court on the evidence fnal
Now vbat bad the Justice ~ The Supreme n de-
eide IN respect 10 the Who anpets Copover pre-
seDied himself, end the Court decided the auest VI