The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-25
the STREET COMMISSIONER DIFFICULTY.
The Custody Of mr.. Deviin- Argument on
Return 10 the Habeas COrpus-Mr. sickles'
Argument Cone iuded.
COURT OF CONsoN PLEAs-spECrAL THIN.


Before Hon. Judge Ipgraham.
In The Meter If Charles Derlin-rhe Argument 10 ths
case resumed yesterday morning, at II O'Clock.
CONCLUSION or Mr.. scIIEs' ARGUMENT.
Mr. Sickles resumed his argument:-May Il please yooS
Honor at the adjourn yesterday was socu; proceed
ing to consider the seventh and last point made on behalf
of the defendant Before doing so now, however, Deg
refer the Court section of the chatter Of 1857 which
omitted, and which has a bearing the power Of op-
pontment which discussed under the sixth point
:Grp0raon .sg AID srowS By he 1 q; Ne. q
York" shah continue 10 be hofy poll IT, ana sorporais N
asl With "a ali ss srsns powers and
heretofore had 'ne Mayor Aldermen an comHonay Of
the city of New York.
regard this bearing directly the Argument Of the
power Of app ,ment veetsd In ths city; because 81
though the concluding section repeas the previous acts
amendatory Of the charter Inc two actions taken to-
ge'her-th the ht perpeuatpg all The grants powers
and had and joyed by the corpora
ton ng the two sections together the apg clause
only Affects the ramewo and mode OF proceeding OF the
city government the mode and In which It's
powers are to be execisedth OF the govern,
mept, and not liz substance. The grahb and p
vileges belonging TO the corporation, which has
CURED from time to time, by successive charters.
continued, and vested the city. 1 think omitted also
to refer to Sd Jobnsons Cases. the re pile aganst the
poration of New York Although this case was decided
before the stante which Judge Peabody acted Vac
paased, suppose II az plicabe because DO not
gard that changing the law settling the mode OF appoint
another Of tho ordinance besides the quoted
in eeard TO npg vacancies refer TO ordinance 90,
rec All
ns vsc,rcy ID ONCE shy of the heads OF
byrcaon he Msyor with the sdvce and cosssot
same. who shall hid his Office for the uueIpred tie Of 'h
person In whose place he shall be appointed
wish Also In reference the olse Of Stree, Commis-
soner to show something of s history, and the period
when organized, how long Il has lasted AMI hat IS
WAS prior to the constitution Of 1876 office of the Cor
poraOn refer to the ordinance OF 1885, page 46 (pased
9th May, 1880 There shall be created orgaiz
department be known and called Street )omms-
soners department - so to title g. page &c. OF the samo
volume, with reference TO the Assistant Deputy sxees
Commissioner, where your Honor viii hot ample pro-
vision made for filling vacancy made In the head OF tie
Street department The eighth secten provides ~ scl-
lowe -
He shall AID and assist he Street oopm...ver il The dis.
e. ent OF the ssd office becoming yscaa' OF the ,,snsss
win ali The DO vera and shall perform daie. Of sSe
said Street Comm ss,oner during such sickness.
This Is also the point OF the provision made by the
ordnapces which have the effect Of laws 10 Gaze OF
vacancy. II shows that there vacancy really
curing, except for mpercepube and inapprec able
period OF time, 10 tnStGntcr on the death OF Vavlr,
Deputy Turner became Street Commissioner, acting de o
snd therefore there moment period of vacancy,
when Devn acquired, could have acquired.
Of the books, such contemplated the statute
under which they proceeded.
Mr. Pield-The Law Of 1857 does not authorize The ap-
pojnlmept OF o De ,uty Street Commissioner
MIR. Scses-But tayb that the existing ordinances,
except when Inconsistent with the charter shall have
Ell and II s not inconsistent with the charter 70 have
Deputy Street Commissioner, that ordnance remains n
FUN force and eject weregard as specially Important
tend, Mr.. Conover, In his petition, does not show,
m he WAS bound 70 show. In order 70
Justice Peabody that Devn had come toto possession Of
books and papers during vacancy In the Office There
was regular succession 10 the Office, contend no:
an Interruption for al nsantnot the slightest Interrupt
ton In matter Of law The instant Tsy or died Turner be-
came Street Commissioner, filing all ia duties, and his
functions only ceased tue AZ pon,men Of Devu ,ooE
effect, upon his being nduc,ei ioo the ONCE oy the
rate authorities, q, appears he ws-the corporate
thoriies alone possessing the poSer Of appoIp"uI
proceed TO look nj We say II IL void
It's lace that the process In such proceeding must rsc
ali the facts essential TO sho~ jirsd ,uon In the ocer
ssarding IT, (Boxers the People, John r 2S2;
6ermond VI. the People, Hill, 3t3.) Tbs s especially
the case, we say, where warrant emsnstes from see
cia Jurisdiction, such Judge Peabody exercte5 thst
every ttep every takes must 20 gGe BY
and step by sep Win the statute, and musi bear On
Us face fun and complete Qualification, 80 a.
10 furnish perfect just hcauop to parties artng der
or upon H. Nov let whA, the warrant OF NJ JAZZ
oe Peabody does re-ie The p'el mipary part OF no
warrant contains recital In the usual firm, OF cer3n
,eIs taken before Judge Peabody. { coma here the
ront a. 10 the statement Of the a. idcasn OF Jddgs Pea
body, which Ia embodied and upon shcn tho order OF
imprisonment goes Aer rectlng tina. Mr. Conover csmo
before him. and that certain had hat ho
prevented petition settling forth that Couoyer cis q cd .he
tfice ~ Rppointee OF the Governor and ibs Jsvln
claimed, unde, an appointment of the Corporaon &c tie
Judge goes on TO Say,
uy delivered The said Como er Toe ssi usp- sooks pa
Sss sps SsT % ss and 'sgeITS as se ssa %, Seoa
'sd nev.n on Ne s,d refvcs 70 deiyr - se sans hess
presents are h.rrfore 70 command 'ou, he sh-rr Ac 70
jail ac
We "a, In ne ars, place tina, Judge Peabody does IN.
dertske, In and by this ~srant TO sidRe and declare
that CoDover Ia the Office suee, Con.
missioner and thereby does decide The que,tou ~ TITO,
which be petition showed n be the pfeser tad ny Mr.
Conover FOR bis adjudication; and although learned
friends on the other eide careful to .cze every
occasion 10 That he di rot neud 10 decide the queon
OF ure yet tneir paper, presented 10 Judge Pea
body hey make up an s,ue Of title 10 tho on and
when they draw warrant for mia signature they
fu in the a distinct celebration by tho
uibsnai that Conover To the street COMMITS
.Ioners Office, whs, more q your nor please could
the supreme Court DO on quo than TO say that
Daniel Conover successor W the rect Cnmn onev1
Tha, would be ,he language Of the Court tnsy would
have the hsrdhtod 10 seek ,uch Judgment, AMI the fcr
tune W get it-ope Of wbish n likely N happen
the other. That n the gay ia which hey
veuid present the question the sutreme oourt,
alone i could be presented asd en'er,a ned VIVA.
have read may please your honor emoodies all 10
warrant except What = mere history emb0des all apon
~hch the tribunal predicass and fonpas warrant OF
arrest and mandate {, thessherin '"And Appearing
hst the said books, &c, are still withheld " Now ne
second ground OF objection ~ the Ia tia, do-s
not show that any rooh papers The pcs
session Of Devn belonging that Office. u Zoe, Dot
show that The Judge founi such at does tho re
cinl show ihs, they alleged any sucn fso. Nos yov
honor please The most essential fact that Judge Peacofy
w@ Obliged TO hod coocediug that he had rsicJon or
the Gaze, OF tie parties and Of ire ,upj-ct msller Vas
this-h not possible Tor b proceed one step, by
vbuc Of warrau, Of aud search variant uul be
declare the fact that Devn had Ia hts pososon csran
books ed papers sppcrtsnrg ths, once You
tajsdg, iha. a man has ~itbhes tnog and punish him
for Wit holding H. unu1 you have first folnd MIN
putty o. possessipf H. keeping or takinf Il; er rsher
taking u ard having 10 his possession. Tuese
must pr, ceJ he a unfolding and keeas Tue Judge
saw 10 appearns Sc, that "the said Devu omits ant
rea,e- IN enve- up the same" sc. why, he mi "a, ~
ven be convicted Of MOI wing up the City Hail. the Who
House OF Warrington any thing else he possessed
TIE mss, show tia be posseesed them AMI THAI
De- wnstold ihom. All these things must occur,
all apTear N me warrant Nor IL this dnculiy q nero
accidental one; II is mere technical cri,icism II =
net that could be corrected they had she og10r-
nifty 10 make out pes warrant, because the jadg snept
order on which " Ia founced does and the fact Of
sbtb this deficient rne judgment order OF Me- Jusscc
Peabody, does NOT Ind adjudge that these books
pagers came into the possesson Of Mr. Devfp and that
sf having 20 come Into his possession be refused 10 give
up, snd vitbhed he same say therefore, that tho
pettop and on the judgment o,des yell 10 the
rant In All IN go OF bese essential stages Of the proceeding
bef-re Mr. Justice Peabody, there Ia tiis fatal de
An frnrn hs uarrant Irr,a p..hrsar