New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-29
LAW INTELLIGENCE
TIE STREET COMMIsSIONERsHIP.

AhE OIL OO@m
THE ARGUMENT CONCLUDED on THE HABEAs
CORPUS.
At II o'clock yesterday, Judge Ingrahsm took his
seat in the Common Pleas Chambers to hear the con-
GLIDING argunept Of Mr.. OConor in behalf Of the dis
charge of Mr.. Devlin from custody, on the writ OF
haLeas corpus. The argument occupied until Gear
3 O'Clock, when Judge Dgrahsm took the papers.
The following is an abstract Of Mr.. Corors, srgu-
men, and contains the legal points ccntended fer:
MIR. OConor contended that the statute authorised
the proceeding only against a predecessor who had
cult and surrendered the Office, against in pos
session of come book paper taken possession Of by
himself or other during vacancy. Admitting,
for the sake of argument that Daniel d. Conover was
duly appointed and in actual possession OF the office,
with its books aud papers. Is alleged by him before
Judge Peabody, then Mr.. Devlin was merely tress
passer. intruding upon him. and forcbly seizng his
rspers The statute did not apply to such acase The
proce ediDg before Judge Peabody was napPcsble TO
The case for two other reasons: Firsf,-Books and
papers used by the official agents OF corporation, and
iept in the rooms belonging TO such corporation we.e
not books papers in the custody vi an ocer OF 10
any way apperaining to his once, wtola inc sense
and mcarinng Of the act. In support Of this Mr.;
OConor cited T. s. 24 art. S; Frost ayt Brisoin ~
Wend ~; Laval ogt. De Liesserline, McCords X;
90, Il. Second,-1he statute was Admitted on all
hands to be applicable only to case where tne once
was lot in possession Of the applicant. % HILLS II.
syerred tscts showing legal title from which posses.
sion might be presumed or stated as fact taa ne had
actual possession Of the office: Third -Ihls de-
feet in the original complaint could rot be
lawfully supplied by proofs given subsequently to the
i.suug the order on Devlin to show cause but II II
could have been TO supplied, then the subsequent
theil express and implied admissions touching Dew
Inns acts and title, show case not within tue stat-
ute ia the following respects: COpoyers all iavits
disclosed the case of contested ession and that
Legally Illegally be was in fact, held out OF tue
office and denied the means of exercising any OF Its
functions, by sundry agents Of the Corporation.
Then lie was not officer de facto within any defni.
ton of that tenn known to the law. An ohicer de
facto was actually exercising the functions OF the
Office with the apparent acquescence OF the appoint
pg power, under color Of lawful election appoint
ment. The last affidavit, made by Conoyer himself,
on the 10th of July, 1857, expressly admitted that
all the books and papers were in their Iighttal
and proper places Of deposit They could not night
fully, lawfully or with safety to the public interests be
removed from those places and the fact asserted by
Coroyer that while in their proper places OF deposit
they were out Of his possession and beyond his
control was conclusive evidence that he was
not in possession of the office. This was never
Intended TO sanction the removal Of public papers
from their proper places Of deposit provided for
their safety and security by the public
ranto otherwise has acquired actual control OF the
office in the popular or physical sense Of that term,
this summary remedy cannot be applied, II 1t was
intended to operate as it has been used IN thi, ease
would not be confined to books and papers Ii would
extend 10 the public seals aud the various other phys
zeal implements without which the officer could not
act it would be extended to the public room, desks
&C., attached TO the office by law. Allowing this
statute to be used in the way Conover had employed
it, it would deprive the public OF all the dement's de-
signed by the common law doctrine OF de tacto While
enc claiI ant retained the ROOM the public seals &c,
the ether claimant by virtue Of summary S o.
and papers to another place. Neither could then per-
form any service for the public The official functions
would sfer total and complete paralysis. In such
CAGE rural Register or County Clerk would satisfy
any single Judge that he entitled to the offices all
Ia. records of such office might be transferred to
garnet in Mackerelyille exposed to imminent peru our
ing the tendency of qno oarrant0. mus an puonc
business connected with either ONCE might DC kept
at a stand still curing the same PERIOD
The doctrine that in this summary proceeding the
til to the Office could not be tried had been per-
veted in this case t. purposes precisely oppoe 20 us
end and AIM The dOctIne was that one IN possession
should not BE- ous.ed in this summary way ny reason
Of .ny suppcsed defect in his title. Inls was tue
whole length and breadt, of the doctrine OF officer De
)octo. IL was rightly argued before Judge reaooay'
by Mr. Dev Inns counsel that he b-ing rval claim
ant 10 the office could only be dspossessed therefor
of sby of the books and papers appetan ng thereto by
due judicial action in a quo aoaTdnto. 10 Hils
633 The principle was most Singusriy turned ,sa
was that although Mr.. Conovcr set forth
his title the record and showed 1t to be bad yet
that from brief, transient and contested occupancy
be officer de t0ctO, and should recover the
papers from him who, for aught the Judge knew, or
would W nture to decide, was the officer de JnTe. In
any view of the Conover was not officer de tact0
In support Of this Mr. Con0r cited Burke agf Elliot
4 IrecelPs Law r., 36l; Wilcox agt. Smith, Wend,
233 He coLtended that officer proceeding to en-.
foice his powers against an individual could never in
such proceeding sustain himself on the ground that
he is officer de fdet0 if it appear that he WAS not OIL
Ger de Jure Cummings agt. Clark, 10 Vermont, 657;
Cornish agt. Young, Ashmeads H. LOO ana note;
Fowler egt. Beebe, Mass x 235 ~. s. Dig, title
office ana officers, - to 25 1t was only - be-
tween third persons one both having acted on pos
session and apparent ght that the principle of officer
de tacto applies. When the officer was himself
party be must show that he is officer II Is mon
strt us perverson of the law on this head to say that
claimant after two or three days alleged possession
might 90 before justice, show that he had himself no
right or to the Office, virtually admit that the party
preceded against had good title 70 ~ ana that the
Justice might thereupon take the books and papers
from the hands Of the lawful officer and deliver them
to the illegitmate pretender.
Mr.. OConor contended that it was too plain pro.
position for serious argument that the appointment OF
Mr. Devlin was valid, aud that that OF DIR: Conover
was void The charter Of 1887 provided IN general
terms that the l., ads Of the departments mot elected
by the peope) shall be appointed by the Mayor,
with the advice ard consent VI the Board vi Alder
men," Section 49, There was nothing In any rule
of construction or in the OF the thing 70 lint
this power Of appointment to the sogle case OF va
caIcy created BY affux of time. The whole power OF
appoptment was vested in the city authorities.
Every ele elton Tor appoin.nent is to supply ava
cancy either actual anticipated. lPer Savage =.
j. People ait. Coutant, II Wendell l4l The amend
ed charter made special provision for vacancies 0cca:
sioped by casualty in elective Offices secs o. ana
2O.) This was necessary, and the vacancy was Ia
eve,y instance required to be filed by local or city
Anti ority. There was no necessity OF providing sPe
cialIy for vacaIcie in offices held by city appoint
meat. The sppointng power was always IN NE, ca
pable Of action, and s,s by tne Iers o' .s