The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-25

the controversy. IDasmuch the Court has listened 70
We must follow. Nor our fault that these appeals
Of this controversy; and follow the counsel Into
al that he has said Ia because think must be irrae
want this question sha only thai the case illustrates
sword shall peri.h by the sword" Mr. Devln began in
violence and blood, and be cannot complain that he ha
what the Law gives him. appears upon the proceedings
in this case tbs. Mr. Conove went into the Office and
executing under commission having upon the great
seal Of the State with the signatures OF the Governor and
Secretary Of ate that be ned out ignomiuously
by armed mob, who kept the city In commotion for
three four days. and we with al our efforts from
June have only been able to get tho case thus far
owing the most perth acions most uDust liable leg al
S not
who have had to do with will have much to say to nst
fy their own honor and their own conduct. With this
/ leave that part or the case and / shall
ask your Honor's attention to nothing but the legal
question: reservipg what have 10 say about the miscon
where intend to say about II what think, and what
consider the community should know Now, air. upon
this question Of habeas corpus, what are to do No
question ts made that the warrant Is good in FORM The
only question, therefore, is his-When the warrant was
signed, had Mr. Justice Peabody acquired Jurisdiction to
learned Judge-one OF the Su reme Court-the highest
court original jurisdiction In the State one that supervses
all inferior tribunals the Court OF Common Pleas included
controlling them by mandamus prob bon and the like has
decided matter Of law that he had jurisdiction. And
though may be true th. every other court or tribunal
high low, has legal right TO inquire into the ursdic
ton of every other tribunal no high yet the comfy
of courts and their due subordnaon require that
should respect the judicial decision Of another especially
OF superior Judge Judge Of the Supreme Court is Of
the same authority as the first Chancellor Would II have
been thought proper for the first Judge of Court of Com
Pleas to cit review Of the decision OF the Chancellor
thaugh made in special proceeding? Would not the rst
Judge rather have said" Ny opinion might have been
different II the question new, but defer TO the Opin
ion Of the Chancellor" "A Judge OF the Supreme Court
cannot exercise inferior off &C. He cannot be COM
hold any other office or public trust (Art. g. sec s.
Hill, 10; DEMO, 1885, Herman, 40e) If, there
fore, the learned Judge Of the Common 4 Pleas cas-
Supreme Court had not, what he decided he hal
jurisdiction-h would be but opinion against opinion;
the opinion Of inferior Judge weighed against the
opinion OF superior, first delivered inversion OF ju
dicial order which hardly be supposed. But sup
pose the Judge here disregard entirely the decision
Of the Judge Of The Supreme Court upon the law he can
not disregard hts decision upon the facts. What facts
hen, had been alleged before Mr. Justice Peabody ana
passed upon by him. before he signed the warrantsS That
Mr.. Copover had been duly appointed by the Governor
and commissioned under the great seal of the State
the Office taken the OATH filed the bond and entered upon
the possession OF the franchise Devns counsel must
"Ss. " bs snnrss oU, the TO u,o
the circumstances for he had that power, then the
power TO issue the warrant followed though he should
have committed q thousand errors In issuing it, TO show
this they mus make good three positions neither OF which
hey nsn TEey cannot make good this fret position
Tfai the alesa that person has been duly appoint
cice does give Jurisdiction to qure whether
he has been thus duly appointed and then they must make
good this sec md posionThs under no conceivable cir
whatever could the commission OF the State;
under lis great SEAL signed BY the Governor and Secretary
make person TO the Office of Street Commission
That possession Of the franchise taken and enjoy ed
under q commission could give the person th
uon ia upienaele The claim Of due appointment gives
the right &c judge whether be so II is no answer to
say, that II legally impossible that due appointment
10 be decided and that Is judicial question, upon wh,h
me Judge m.st Pass one way or the other;
Jurisdiction. Mater OF Prime, ! Barb; Davis agt
Mayor in Superior Court and Court OF Appcals)
The second position is equally untenable. 1t Ii not
only possibe that tho Cover might, under
casiances, have the right to appoint the Street Comms
circumstances CT this Until 1871 be had the appoint
sub. Inc cri icism which has been made upon tn,
ls4e 10 altogether lusory The office OF Street Commits
soner Of the Offices Of the State Every public off,
is an ofncer Of The state II were Dot So the Mayor
meet not take the oath to support the constitution OF the
os Se S' the pea ssss 'n Of us
states" should Jake the oath 10 support It, Art Sec
81 So the State constitution (ari l2 requires Gall OH
GERS. executive AID judicial" to take oath II this
does rot include city officers, the Mayor need not
swear 10 support tae state constitution. The Revised
Statutes Il K S. 40, "a, sub. 9; l2l, SCI, 80,
sub o. include city officers among the officers Of
The Stale. Equally iusory Is the criticism upon the
Time during which the al int, an incumbent shall hold.
Mr. Conover can, In esent hold longer than Mr.. Tay
Tor could have held, and the Office had continued cleo
tive, last year. he could have held only Till the
frsi Of January. The words "uDul the commence
OF the political year next succeeding the first annual
on GERS could be BY law elected are words Of limitation
upon the Of the vacancy The language might
have been In this FORM with the same meaning
vacancy exists any oce In the STATE The Cover
Dor sba OIL Il for the unexpired term except that II the
ooe elective the electors Sha Ill II a the first annual
election, and the Governor Appointments shall be good
Sub. Ii-Ia6eed the discussion whi:b has been had
In In o,se las narrowed the questions dosn TO two--
bad Ma he iglt 10 he a. md