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

she vacancy by virtue OF old ordinances hes support
Q.) he language Of csc ~ n united and guarded ne
ths "untl the Co Ccu ,cf shall Otherwise drst
existing exclusions shall spsy 70 The departments herein
mentioned far the same are Applicable thcreo esd
The depsr,msp hercr nentoDed DO no, mean thai hey
shaD desernne who are bold the departments OF
they to be appointed but how they shall exsss tnsr
l21 The old ordinAaoes are inoonsssns With the new
charter In this respehs, the latter takes from the NAV
Somm,s.o. once nm $50, While De orrsr ms 70
him In certain contingencies.
lsJ The words ssrntll the Commoa Council shs other.
wise Direct suppose that the Common Council has
troll over the subject Of the ordinances and 70
Common Council the right 70 continue the cnars
them % ATE, them o. 20 :, tspss snsm ~. Clearly so'
thoriy blu, prevent the confusion which might arise be
fore ordinances on the same subject could be passed
What the Common Council could NOS now ordAn s got 70
a. The ordnance OF 1st9, the subject OF vacsnces
in the Street Commissioners Department Is bat repeu.
of the act Of ls49 end copied wi ordinances for
convenience, Just parts OF the constitution Of sAe
sre copied into the Revised stAsurs (Rs) Bat they
nal from which they copied fAs the copy fall. viii
it, Tie charter OF ls40 specially repealed BY the present
charter should seem then mos, natural 70 con 'sss
while has intended to repeal the gna statute and has
manifested such intention in toe most pointed language
The third position is also unenable. Under the comma
sion Mr. Conover could become by possession, oeer de
faeto, he could not have become officer de jwe
People ss wso u Barb ss People s Sr:ne Is
Halliday, 10 Paige, 1872 Plymouth agt Painter, II Conn
$685. Weeks agt Ellis, 2 Barb, S24)
Nh Field, in cOuclusien, submitted the following brief
Frst-The only question that can be raised IT, whether
Mr.. Justice Peabody had color Of jurisdiction Matter Of
second-Every jurisdictona fact necessary to sutan
the Jurisdiction s TO be deemed established for the
Judge issuing the warrant had exclusive authority to de-
Thrd-rhe warrant OF search rectes all the facts
ceesary 70 justify IT, and those rectas cannoi be contra
dicted.
Fourth-f, however, proper to 60 into proof OF
the facts recd Of any other facts the respondent
every fact necessary establish the jarisdicton.
Fh-what fac.s we're necessary to confer uisdcton'
Three only
l. That person (raylor) elected to the Office had diod
@ That another (Conover) had become his successor.
That third (Devlin) had books or papers belonging
These three facts were alleged and proved. And
they bad not been proved the wrongful finding Of the
facts could not be reviewed on habeas corpus
Sixth-But il is said that though the officer may have
acquired jurisdiction at first, was afterwards taken
away because appeared N the progress Of the case that
the books and papers did not come into Devns hands
during the vacancy in the office. This objection has no
foundation In law or in fact
l. II has foundation in law, because jurisdiction
once acquired could not be thus taken away.
has no foundation In law, because the successor to
off ce right to the summary remedy provided by
the statute TO put him In possession OF the books aud
papers by whomsoever held or whomsoever taken The
language Of the act is general-that 81" any books or
paper belonging or appertainng to such ONCE shall come
may demand such books and PAGERS from the per-
son having the same In his possession" Il X. S. l25
There is here no qualification rs If the words "dur!ng
the vacancy In the office" had been inserted after the
word "sha On the contrary T. very clear that such
the policy Of the Law was to give to new incumbent the
books and papers Of the otce wherever they might be
found otherwise the original purloiner might defeat the
incumbent by delivering the BOOKS, which he pur,ned
during the vacancy to another person as soon As the va
A wicked deputy or clerk who took the books on
the death OF the incumbent, being himself disappont
ed Of the succession, might deliver the books tn an
other clerk and thus deprive tbs OF the
OF going on.
Second-The search warrant be issued commands the
books be taken from any place designated In the
rant, without, any qualification Of their having been taken
to those places during the vacancy When the books are
brought before the officer he inquiries II they belong
Office and deliver them 70 the SUCCESSOR whether
they were taken during or after the vacancy.
Q. The objection has no foundation In fact
got them the 6th but the Judge may hsve had evil
satisfactory TO him that Devn got hem or some of
them, on the 18th.
q But whatever may have been the time Of Devin's
getting them there pretence that Conover had
them. Indeed, the whole evidences showed syse matte
Wood Devlin Bennett and their accompnces to keep Mr.
q mover only from the books and papers, but from oil
The means OF fpy and " s ne s ns
In the outer OF the Street Commissioners apartment
for three days but he never got into the nnermost room
or third room where the most valuable books ant
papers, and was only part Of one day in the seeont
room.
s. Mr. Conovers affidavit does not state intimate
that he had been 10 possession OF the books snt
papers; - .a,.u, ,,,,,,, ,,,, c,,,,., n.,o, had
possession OF the books and papers, or the apartments OF
The franchise.
Ccpovers third AFFIDAVIT rei.eraes his statement abou
the possession.
Besiies these ain iavix there were read the depos
tons Of a great many persons. From the whole mass
Mr. Justice Peabody arrived at the pronounced
The Court on the conclusion OF Mr. Fields argument
adjourned 70 10 o'clock 70 Day when Mr. Ssyes w fol
are the points prepared by hr. 0'Conor-
Mr.. o'coSoR's POINTS.
First The statute authorizes the proceeding only
against VINO nas gun ana ~ r ,n
taken possession Of by himself or some other during
vacancy. Admitting, for the sake OF argument. ths
Daniel n Conover duly appointed and IN aJtual pos
session Of the Office with It's books and papers, as alleges
by him before Judge Peabody, then Mr. Deyln was mere
y respasscr, inrudlug upon him and forcbly sciz as
his papers Tho statute docs not apply 10 such cave.
second-The proceeding before Judge Peabody wal
inlppcable to the Gaze for two other rea ons:
Books and papers used by tue Official sgeus Of cor
Ioson and kept In the belonging TO such corpo
raiop, not "books papers In the custody Of an OIL
Ger or IN any way .Ppsns D.; 0 iai wiIniP ,ns
vs.. Brsbin, 10 weno. H. Laval vs. 10 hesserne, Nc
Cords r. 90, III
only where the Office was In possessi IN of ths
applicant q His 633) Yet Conovers original ecu
riant neither averred acu showing a legal title frou
that be had act ,a possession OF the Office.
III This defect In the original complaint could not b'
lawfully supplied by proofs given subsequently 10 the ssu
ing OF the order Devin 10 show cause but II could
haze been supplied, then the subsequent aiavH Of
Conover, especially when cor neced with their express
ana implied admissions touching Devlins acts ana till.
show no, within the statute, In the following re
srecis;-
l. Conovers davis disclose the case Of q coniestet
succession, and that legally Illegally he was, In fact
held ou Of the oce, and denied the means OF snf
any Of m functions by SUM ~ agents Of the corporation
Then Re was not officer de fcto, within any definition o
that term known 10 the law An officer de fIcto is one
actually exercising the functions Of the Office with the ap
aoquiescence Of the appointing power under eolo
/ Of . lawful cleo ion appointment
The Ast AFFIDAVIT, made by Conover himself on ths
10Th OF JAY 1857, expressly admits that all the books anc
rspers their rghuul and proper places Of deposit
They could no, rishuuly, lawfully with safety 10 IN,
public interests be removed from tho~e Races and III,
TACT serted by Conover that while 10 their proper places
Of deposit they we're OF bis possession and beyond hi
oonuol conclusive evidence that lac pos
session Of the Office
8 The into nded 10 sanction the rcmova
thotx Of