The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-02-13
The Street Com missioner Controversy.
SUPREME COURT-GENERAL TERN.


Before Hon. Judges Davies, Clcrke and Sutherland.
FEB l2.-THK Quo WARRASro-The People Of the State
of New York and Charles Depn, appellant, Daniel d.
tonorer, Respondent-rhs il the argument the action
in the nature Of quo ,carrdnto brought by the Attorney
General and Charles Devn against Conover the
title TO the Office Of the Street Commissioner II comes I'D
on appeal from Special Term, judgment there entered
pro forma in favor Of Conover, demurrer the
paint The principal points of counsel for Mr.
Devlin are that the appointment of the appellant
w@ valid, and that Of Mr.. Conover void. The
charter Of 1857 provides in general terms that the heads
Of departments (not elected by the people, shall
be appointed by the Mayor, with the advice
and consent of the Board Of Aldermen. Tho
amended charter makes special provision for vacan.
cies occasioped by casually 10 elective Offices This was
necessary, and the vacancy in every required
to be ed by local city authorities There was no ne
cessiy for providing specially vacancies in offices held
in life capabe Of action, and by terms the char
ter distinctly pointed out The attempt by fancul and
Tar fetched construction Of section 81 TO withdraw the
fervai between the enactment Of the the
1st Of January 1852 from the operation of the appointing
power provided by section l9 and thus to leave the
OF vacancy in the cheftainshp of department wholly
upprovded for except by strained and unnatural app
cation Of the OF the law Of lsse prevail Judge
Peabody declined TO adopt this or 10
any opinion the title OF Conover Judge Davies avoided
exp easing any opinion It. Judge Roosevelt ntir,ated
an opinion against it, Therefore, far the Judiciary
cdncerned this coDcet is without support The inappli
caNy Of the law of ls4o its details the case OF an
tfce held by appointment conclusive against the right
The construction of this section az prohibiting death or
resignation, entirely In harmony with toe character
which pervAded The whole argument in support Of Como
vers appointment The constitution in authorizing the
legislature 70 I'LL vacan In Office requires that body 10
dkcrmu ate between elective Offices and Offices held by
appointment
The argument will be resumed on Monday
suPRLME coURr-N cHANBKRs.
Before Hon. Judge Sutherland.
In the Mater gf tie duplication Of DdHiei d. Como
r~r rs. Charles Datin.-Mr James T. Brady on behalf
Charles Devin, moved days since for a certiorari
to be directed to the Hon. Chas A. Peabody late one of
the Justices OF this court directing him 10 certify 10 this
court the proceedings bad before him in his matter and
the record thereof together with the testimony taken be-
po-ed The mouon, ON the ground that Mr. Pesbodys term
OF once having expired the ceruorar cannot 20 10 bm,
and II old the return thereto would DO void Judge
delivered 40 elaborate opinion holding that the
gocet dmgs before Judge Peabody though Is
~ un.e, c9u" reviewed and that there Is probable
behaving that there in those proceed
ns Juoge Sutherland concluded by saying Certainly II
not legally bave bee made, without passing upon the
respective legal titles Of the parties 10 the office,
qu ston OF such magnitude and interest 10 the public
spd o the psres and which has been learpedly and
ably discussed only In these proceedings but in other
legal proceedrgs and which has not yet been decided
ought not deny Mr.. Devln right 70 review the pro.
ceedipgs in which the order was made by Judge Pea
Ightfuy have been made without a clear legal title In
CLOver the tfce, aid without adjudication 10 that
effect by Juf Peabody for the purposes OF these pro-
oeedinss The o.rtiorarl Is allowed.
The eject OF this decision will be 10 reye the decision
OF Judge Rabody before the General Term.