The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-07-27
Marine Court
Before Hon. Judge Mccarthy.

Marine Court
Before Hon. Judge Mccarthy.
THE DISPUTED CLsRKsHIPs OF THE DIsrRICr COURTS
THIS NOMINEES OF THE COMMON COUNCIL sUs.
TAINED-THs ACT OF THE REPUBLICAN, LEaIsLA-
@UFE DECLARED UNCONSTITUTIONAL.
Abel &i'son, assignee Of John Z. Amber, u.s. the
Xssor, stc Of New York The plaintiff, - assignee OF
Amber brings this suit to $780, for one months
salary clerk Of tho Seventh Judicial District Court OF
shs city.
The pa ntif proved that Amber duly appointed as
s1ch cerh in Jare 1885, that he fe6 the proper bond
and entered ppou and discharged the duties Of the Office
until u 9 present time
The COUNSEL for paintf-Judge vanv
that she Of March 81 1884, creating the oOe ~ which
piaatG WAC appointed provided that he (the clerk)
shond hold his office for the time q, now prescribed
by law for the clerks Of the other) district courts RI
July provided that such clerks should hold
ieir slcss for years The act Of 1895 provided that
tsse rxs shouia be appointed by the Mayor and
jofity Of members OF the Board Of Aldermen Ia con.
vsn.oa, and IN case shss si:sr sien. days nouce'
N sbst the majority OF the Board OF Alderman could
proceed end make such appointments The act Of 1867
vded het ths clerks Of these courts shall be appointed
aad hold t1ice the manner prescribed by
sw and vacancies Ia their office shall % filed II like
courts who shall DO in Office q the nexs election OF
for raid cours shall hold their Offices for tbs tine
the Jrsces ben elected " (Session laws, 1851 The
plaintiffs counsel further contended tnat Aoler having
originally been legally appointed TO oifce and NO success
having been legally appointed 70 sucssed him. he hes
lgnr continue In, ard discharge the duties Of the
sfnce Until bic successor appointed
For the Defence Mr.. r. Lawrence nested that the
plaintiff could not recover becsuse, on the Ssh OF Decem
Der, 1867, the Mayor and Aldermen met n convention
md appointed Michael McCAnn clerk OF the Seventh
District O. take effect from and after 1st Of Janusry
bond required by law from ouch clerk and has been
ready and willing TO discharge the duties OF
oos aud also that me act Of 1857 passed by me vgs
clerks, unconstitutional and void.
The Court held that the evident intent OF the Legsla
sure that the terms Of all the clerks Of the district
this city sSould expire simultaneously no.wjth
standing the Office Of Amber creaed in lS54 that
there poshny she objection OF piaipnss counsel,
Mat no notice had beon given 70 the Msyor 10 attend
Convention appoint the clerks IN Decsmner 1851
H enough for the purposes of this suit to know that be
did attend and act in Dis official capacity and the pre-
sumption Is he did so upon proper notice; and
notice had been given he alone could take advantage OF
directly conflict with article TO- section q OF the cous
tution Of 1916, which proviies-
An county eacers whoss sIss.oa Or appSin!@snt not
elecors Ct the respective counties appointed Bosds
Of Sspsr or other county AuthorIes as the
hon sppon Is provided for BY tais
ages seT s or spSoned By such .a
hores thereof IS he lesslssue shall dessns.e or that
a provided by hits constitution, and All officers whose
ihe people appointed IS the Legislature msy dres~
From this section II s plain that ne duration OF
IN sas see us. ps,.a Tune LOT wnen shall &C
appointment election. The language Of the constitution
" clearly applicable ~ the oice itscl wholly and
treIy dacobDecied aad separse from the officer. An
sc 70 be within the provision of the constitution
regulating the term Of the eice such, that 10
prescriopg simply s durstoo dieconnece ed fro the
ofcer must be general to Affect the office Itself,
irrespective Of the incumbent, and depend for its
efficacy upon me office scs OF any particular
should be such az 10 enable aoy person who
should become euttled 70 the oficc by proper
appointment or election 10 reap the beue d. of them
n be M
with constitutional oGe, the shoe must fall TO euc
dale these proposioos, suppose the provso 10 question
aHe;ied that b. residing in the First district, ID,
resdirg 10 the Second district, should bold the office Of
clerk n said courts IN their respective districts for the
,irae, &c - this would he clearly void, because
L. wOuId DO cess apo ntrnenl Of perrona 10 the ONCE
and The term wc0,d DO q mere Incident q The term
inopefzive could not aGec. them by reason OF the
uvalidy or their appointment Or, the p-oviso bad
directed shat parpcl'ar description OF person. Wit the
Police Court Clerks Of the let 3D. Sd 4h 9th, 9th aud TN
police 6trcts who shoaid be in Office tho election
Of JUDGES for said district should hold the Office
OF r,erE Of district their ai
trictr foe the same time 80 . the same resul, oud
follow To apply these principles 10 this caee1 The ~ IL
not FOR the Office Of one Of heso clerks had been
vacant by Death other 1t the time OF the election
the could not apply 70 that office The person sab6e
qpently appointed to oil It, IL IL consequently per-
soua leesson, having for It's sole obc. the benefit Of
particular individuals and In effect mere r.atute OF
appointment The defendant claims that this Is not
statute OF appointment because the persons 70 whom
local authorities. AS 10 thnl The oct you'd apply "
officers de faco well a. de ure and consequently would
apply 20 persons not appointed. II the act does not
operate the term except by particular
particular class OF persons thnp neces-
ssyy appointment Ibis &c, does not ope
eIoer, By fuch refeienoe The proyio Is not an oct In
relation 70 the duration OF Office /. The Jassce's
krm Of ooo was SIX PEARS from the ls Of January next
succeeding his election laws of 1851, SEQ 1851 BY
act the clerks 10 hold sher Offices for the
period tho Justices TIE rroviso ena<ges
nor dim neher this term leaves the same, viz six
years lis only effect allow particular clsAs o, per
sons 70 the exclusion OF all other members OF the commu
havrg been previously cstsbhci) and to extend ths,
term ~ before suggested offices had
been vacant a, the time OF eecon the
subeeQre1ty appointed 70 l the vacancy could not hold
tbs act but would have to hold ender the previoGs
act here cannot be acts exsenco at aud the
sane Time regulating the term Of the same Office IL rs
the benefit " the clerks htn In oce aad not called toe
~ even intended for sny pubic utility. Tos rs species
Of les station which cannot be copntepenced for
by any court tor " the legislature could evade the
spirit and intent Of the constitution by continuing in Office
pveo they oOud d. no for twenty years. for bis
therefore order judgment for defendants, with costs
ACTION AGAINST tbs MAYOR FOR ALLEGED LILLE
GAL ARREST.
Hvoi Ntfl1s ~ DdEiei r. 1ismdnn, Nayor.-Ths was
IN arrn brrght ag.ns The Mayer 20 recover $500 ia
images alleged bcen rufintnei By the plaintiff In
having been Illegally arr.s'os and mprsoocd n ne city
prson ,n-se dsyr Mr. Doncney for plaintiff stat
cd that Nei bad BEEN arrested BY order Of the Mayor
for ononnrerirg the sidewalks ~ exposing Umbrellas
sse. aud had oecn by him. imprisoned Cor three dsys
IN default Of pay ment 6Io OF So The defendant In
ns ceuieo the ersy Of tho and i prison.
ment, and tverfed BY way ~ Justification that tue plain
Tin had 0ien Tefea the 18th OF June las ba police
scor Of bis city upon the complaint OF one Merrill for
vclston q the cry ordinances In selling umbrellas IN the
stree. without cerre ans was brought before ibc de-
fercsnf ss MAYOR, b. whom he was tried fouud
guilty AID fined %; and. In default Of the pay
ment of thet sum, conmi1et TO the city prison for
the sps-e u thfce days A m ,tion male by the
PLAINTIFF counsel 10 strike out the OF tue de-
fndabte, tie ground ,hs. The Mayor bad power W
try nre, mrrsor for ouch offsn.es, which motion
ssn,ed by the Court sod the facts having been
ceded the Court upon motion OF Mr. Iasrence. Assistant
Corporation Counsel dismissed the complaint aad render
81 tucrmeut for defendant, with costs. Tho learned
Judge, IN dsnssipg the complaint, he,d tha WAS per
fecty competent Tor the Mayor 10 try parties committing
v'oaiicns Of the peDs ordinances Of the city tnss ne
power 10 pafs such had granted 10 the
C5rporsOn py the charters OF Dopgan and AontDmere,
bad been continued 10 tbem by all the charters sub
seqdenty srspted and passed that by VI acts Of 1888
and 1898 TIE violation OF every penal ordinance OF the
Corporation vas made misdemeancr, for which offence
she Msgor bad the porer 10 n.y. ard upon conviction 10