The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-08-06

CHARGED FROM CUsToDY.-The contest for the
Office of the Street Commissionezship of this city
has ell along presented some OF the knottiess
pcints of legal difficulty that could possibly be
presented, but the discharge yesterday of Mr.
DE- Win from custody has made the matter mort
complicated still 1t would now puzzle the brain
of -he most IL genious lawyer or puzzle reader to
get the real clue 10 this web Of ENLARGEMENT and
to say who is the de .jurs or even the de .faoto
STREET Commissioner Of New York.
A owsory glance at tie history of the case is
~ ce cary for even partial understanding of its
present bearing, The last charter with wbico
the black republican Legislature ct Albany bless
ed this metropolis contained enc good clement
II changed the elective character of the Offices Of
heads Of bureaus aud reposed the power of ap-
pointment OF such officers in the Mayor, with the
consent of the Board of Aldermen. That was
much needed measure of reform, mas
much as it tends to make the Mayor directly
responsible for the proper execution Of the duties
OF The several departments of the city govern
ment The charter contained, in this connec-
ton, enc remarkable and extraordinary stipula-
ton. 1t was that the then incumbent Of the
Street Commissicnership should not be disturbed
until the close Of bis term of Office. Ia other
words, that the Mayor should not, in virtue of
his prerogative, remove the then incumbent
(who belonged to the American or Know No.
thing party and appoint man of his own selec.
ton. The stipulation was probably needed to
secure the votes of some Americans in the Legis-
lature in favor Of the ne charter.
But it is maxim old as true, that q man pro-
poses, GOD disposes." A power mightier than
Legislatures or Mayors removed Mr.. Taylor be-
fore the close of his official term. Death took
him of. The stipulation ceased to be binding.
1t had no more power or efficacy. By whom
then was the vacancy to be filled? Why, beyond all
peradventure, by the Mayor: not only because the
charter, fairly construed gave him the patronage,
but because, charters aside, the executive autho-
rity of every corporation has the inherent right,
when not otherwise provided, to appoint its su-
coordinate officers So thought the Mayor and
Aldermen of the city, and accordingly Mr.. Charles
Devlin was appointed and confirmed Street Com
sioner. So did not think the feed legal advisers
of the Governor Of the State; and accordingly
Mr. Daniel D. Conover was appointed by the exc
cutive at Albany.
1t is unnecessary to recapitulate the incidents
of the contest waged between the two appointees,
backed by the respective appointing powers.
Between ply steal fsticuffs and legal sparring the
fight has been an interesting one, and very huc-
tuatiDg. At last, however, Conover obtained q
temporary but fruitless triumph. Judge Peabo-
dy of the Supreme Court, acting as Commits
sioner, granted the application Of Mr.. Conover to
compel his adversary to deliver to him the books
and papers of the Office, and subsequently grant.
ed warrant of search and seizure
for the books, and warrant for the
arrest of Devlin, aud his commitment till
the books and papers should be surrendered
This was o temporary reverse for Mr.. Devlin
but he bore it bravely. He was lodged in Eldridge
street jail, but still he inched not, and did not
give up the fight. Mr.. Conover had the empty
satisfaction Of reigning q mock Commissioner
but al the means and appliances Of power were
consequently all the business Of that important
city office has ever since remained unattended to.
In the meantime writ of babeas corpus was
granted by Judge Ingraham, Of the Court of
Common Pleas, to test the authority on which
Mr.. Dcvlin was deprived Of his liberty. Long,
him on both sides Of the question: and be took
considerable time to give the case due considera-
ton. Decision was rendered yesterday The
authority for the commitment Of Mr.. Devlin was
declared insufficient, and he was discharged from
custody. This decision-which We publish in
that the appointment Of Conover was I'M
authorized, and conferred upon him no authority
to take or hold the Office.
Thus there have been two collateral, indirect
judicial decisions as TO who is the Street Commits
sioner. The direct question has not been brought
before or settled by either Judge Peabody or
Judge Ingraham. But on a side issuc-an appli-
cation for books and papers-the former decided
substantially that Conover was the DE- jure incum.
bent; and on another side issue-a habeas corpus
the latter decided that Devlin was How il
the question TO be virtually settled and placed al
by the ordinary legal measures; and we hope
that no recurrence to Illegal measures and brute
force will he had on either side. If the Cover.
nor would only have courage enough to back
out gracefully from the false position which he
has unfortunately taken, withdraw his commits
zion from Conovcr, and yield his claim to the
right Of appointment, the difficulty would be
all removed; and Mr.. Dcvlin might enter on the
duties of his Office and settle at leisure his claim
for damages for false Imprisonment. Without
such action on the part of the Governor II is
impossible to say where the difficulty is 10 end
TnE Police CoMNrssIoSERs.-The Police Com
missioners met again yesterday and went through
the third rehearsal Of the farce of baloting for
successor to Simeon Draper. They continued Of
IL for couple of hours, voting no less than 252