The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-05-18
Supreme Court.
Before Hon. Judge Allen.

Supreme Court.
Before Hon. Judge Allen.
CITY NEUTRALITY-SUSPICIOUS. FOR MANDAMUs
AGAINST THE MAYOR DENIED.
NAY 1.-THE People at the RIalioncf George W. Norton
Daniel r. Tkmann, Moyor-Motion for peremptory
mandamus denied, with COSTS The following Is the de
csen Of the Court
W. ]. AIESJ This proceeding Ia instituted to compel
the defendant to countersn the warrant the Compro
er for the Of the salary claimed by the reaor
getty Inspector for the months January and February,
1859, Upon the return the alternative writ Of manda
mus, the reaor not conoverng The facts stated in such
eturn, moves that perempory writ issue. There
disputed facts in the Aside from clerical
mistakes to dates which do not msead and there
fore immaterial the alternative writ presents every fact
necessary to determination Of the controversy, aud the
return neither traverses or avoids any fact alleged IN the
writ Tie parties differ only as 70 the legal results dedu
chile from those facts. The reator, prior TO the
rage of the act amending the charter OF the city
1857 elected to the office Of City Inspector for the
term Of three years. and his term OF office would have ex
pred the 3st day Of December 1858. BY the act Of
1857 the government Of the city was 70 modelled and
among other alterations the mode OF appointment and
the tenure of office OF the City Inspector changed.
No appointment the Office has been made under the pro-
visions Of the new charter relator claims that he
He bases his claim to the remedy by mandamus up
on hs title to the office This prerogsve writ can only
issue 10 enforce clear legal right The reator necessa
rly rendered issue upon the legal title, his mere
right fhe Office not upon the possession and the exer
|
the facts he says that therefore continues be and
st is, and during the months Of January and February
1859 the City Inspector OF the city OF New York. and
entitled all the salary fees perquistes and emoluments
thereof" The salary and fees are incident 70 the
title and not the usurpaon and colorado possession OF
an Office An officer de acto may protected in the per-
formance Of done faith in the discharge OF the
will not be Permitted TO question the validity Of his acts by
impeachng his title to the office Public interests require
that acts Of public officers who are such de dco should
be respected held valid to third persons who have
an interest them and the public In order to
prevent failure Of justice. q Kent Com 295 But II
does follow that right can be asserted and enforced
on behalf who acts merely under color Of office,
without legal authority he were officer d: jure
When Individual claims by action the office or the incl
dents TO the Office only upon proof of title
Possession under color Of right well serve as shield
for defence but against the pubcbe converted
into weapon Of attack the fruits of the usurpa
ton and the incidents Of the Office 1t may well be that
every act Of the reaor as City Inspector hitherto done by
him NAV be valid and the city bound by all his contracts
engagements properly entered into and yet he not be
entitled to claim anything more than mere projection ana
immunity from action as an officer de taeto since the
the LIST of January, 1859. Evidence establishing
the fact that an officer issuing process is an an
he is 1t is conclusive for the protection OF min
sera officer required TO execute such process but to con
sttute person officer de fdcto mere claim TO be
public officer and executing the duties othe Office tsuf
cent There must be colorado right ofohlc or an
acquescence the part Of the public for such length OF
time as will authorize the presumption of at least color
able election appointment (Wilcox W. smith o W. r.,
he claims his salary, City Inspector de facto, what
rights or liabilities result from bis acts either TO third
ber a'H T s By the relaor that the title
to an Office cannot tried in this proceeding 80, then
the defendant entitled 70 Judgment dismssng the VIII
which would make the reaior an officer dc fdco or by
that witch would make him such de jue, is mmatsai
pr shr Sss Is IS0l nha degree that be- is
de jure An officer de faco 10 presumed to Ss ,,, an
vs.. Smith, the presumption ia conclusive out
is only conclusive when the officer Is 70 be pro
third persons, the public interests are concerned
it does not lie with the reatof who bases his right
action upon title, say that scch title cannot be tre
in the proceeding sstituted by himself in other words
IS he cannot preclude his adversary from denying any allie
sstnn of fact material to his case Il is true that ordns
ry right to ce be tried colaersy as in an az
ton TO compel oesr 70 perform acts founde
He as no rigkt TO decide On OF officer de fa
70 or adjudge them to be null, people Vs. Collins,
and that ths Mayor nnsteraly in countesgnng th
comproles warrant he right Of the reator to call uPo
title not therefore, coateray questioned but direct
in iasce and is the only material fact in the case
faiirre Of the Mayor appoint officer in his place
the expiration Of his term OF office he held over and
is moiunents This think depends upon the true con
srucoD OF the amended charter Of 1857. know OF nc
law rule BY which public od ns ba
term upon the failure Of the proper body to appoint OF
elect successor Ofcersand agents Of private corpora
tos whose appointment annual have think, as az ANS
tho corporatcns been held to continue in office after thu
expiration Of the year when successor has been ap
II
permission Of the corporation. So too in muncpa
corporation the subordinate agents and officers receiyn
their appointments from the local government and actin
The Servants and agents Of the appointing body ma
perhaps hold office beyond the for which they wei
ted to they may bind the corporation in whose beha
they act The question has, Ii ink generally arisen wne
be rights OF thru party nave been concerned nn az
ana tnat OF claim by the ,cec to continue TO act
mater Of right and as ag .ns the CORPORATION; IT
1ZS illustrates the point II service Of summons up
inc secretary Of the comp any afer more than ye
to be nvadated and the Gov TT int very cautious opnc
sustained the service holding shat.he Off GER although
office was intended to be, and annuel continued un
superseded by the appontm ent Of ano ther In his paf
The Court is, however, very careful say that Meth
the charter or by laws lsite III Official existence OF
secretary The uniform SO Of egislaton is very biz
, evidence that there is rude Of the common law
which an individual elected or apo inted TO office cont
in Office after the expiration q the term limited
law and until successor Is chosenE I'D qualified. ''It
usual and wise provision in public cH ers that the Office
directed to be annually appointed 81 all continue in OF
until other tit persons rhan be appo nted and sworn
their places This was the case in tho charter granted
the city of New York in 1886 and 1902 (2Kent Conn.,
note Al is ''usua because it is dee med necessary
"wse;" because necessary cradle the ofe to
form the duties of bis Office after the EXIT ation
prescribed by law. Very careful provso a. s made by
laws Of this State for all the cases in hich has be
deemed wise to authorize persons office to hold over
yond the times for which they were appo nted chose
The act Of 1924 claws of 1924 p 3SO was We gen era
applied to all officers who were duly comm hston
and had entered upon the duties of RESP ectve oce
and enacted that they should continue ola e unit the
successors were commissioned and sworn. rhe evte
| Statutes restrict the power to officers duly app NM
oher than Justices Of the Supreme Cour and 10 sh e
and clerks Of counties, including the Regist Of
city and county Of New York Il r. 8. III se s. 70
The Revisor reported section to the effect that a
powers Of every other officer who should be ella cted
The people and not elected should with Ii tel
for which he should have been chosen. This as n.
enacted for the reason, doubtless that not eeo
necessary. cannot be urged evidence that tn Le
gsature intended that the of the pron osed
enactment should be the law, else why did the Lgsa lure
provide In terms for the continuance Office OF shs IFS
and clerks who elected the people, would ha
continued in office without the provision That provision 10
evidepce-hrst that they deemed necessary and second
that officers not named intended to be excluded az
presto nius, &c. has been supposed that Mem
pers OF Assembly Senator's would hsd upon tho
failure Of the people TO elect So too town ON.
with specified exceptions hold their one year.
and until others are chosen appointed their places