New-York daily tribune., 1859-05-18
THE CITY INSpECTORsHIP.
DECISION AGAINST GEORGE W. MORTON.
-. fuaOa

The People rel Geo. w Mrt5n az. Daniel r. Ternann
On Tuesday morning Judge Alien rendered de-
eiion denying George w. MOrOns mo'loo fJr
peremp:ory mandanus to compel Mayor i,enlnn
~ couDterrign warrants for the payment Oh MORON
salary as City Inspector, during the rnouibs Oh Jan
nary ard February 1859. The following the opluon:
W j.. ALLEN, J.-This proceeding s ins'"u'"o 10
compel the fendant to counter the warrant o ne
Controller for the payment Uf the salary cai mel by
The r.la,or a. City Inspector for the months Of
January and February, 1882 Up1n the return 10 the
alternative Of mandau-, the releor, not cOn'ro
y.rtiLg the facts stated in such return, moves that
peremlaoy wit issue. There disputed facts in
The case. Aside IRON some clerical mistakes a. 10
dates which do hot misead and therefor inmate
rial the alternative writ presents every fact necessary
30 a deteru naion Of the controversy and The return
neher iraverses avoids any fact alleged IN the wnt
The parties differ only the legal results de!cible
from those facts. The reiaor, pior to the passage o
the act amending the charter Of the city in 1857, was
excited to the office Of City Inspector for the term o
three years and his Of office would have expired
on the sIst day of December, 1858. BY the art Of
fs57 the Of the city reDodeed, and among
other serations the mode Of appointment and the tenure OF
oee o. the Cy in,Pe,oi va a. e4nssG No app1iaagl, -
and reaor claim. that he 10 sn In Office by virtue Of his
BY upon hi. title the ofe Tnis prerosive wit
OIL, issue Dfce clear legal right TIE re!atoI nece.-A
Office upD The posses and me exercise Of is functions
:hsItffe continue. % b. ., % during Of
Jsnusy and February 1852 the City Inspector Of tbe City
eroulnet. thereof The salary and ices qGient 20 the
r.riIusc. Of acts done in sood in discnsrge
persons will b. permitted question the validity of mis-
h bis n.is to The oae a ras & ,nJrrsis % 'sq",e
spcted aud held valid third who have aiere in
iusin~ q Kent Com. 25 does follow nigh.
and enforced halt of acts merely
sicer De nTe individual claim. by the oc
OF the ucld, nts 70 ,he o ~ can esP 0y IsYsi s ap p
Sr dcne but Ssain. The gbic be converted into
ineael. Of the Office wei BE- that evey act Cf The re-
city bound hy al bis contract. and rngaseep prop Ty eneo
Into y, e b. entitled 70 claim anything more nan mere
isso .ncs the is o January 1859 Evidence
B.hiDs the fact that an officer issuing WIce'- is an
officer facto ia merely pnma facie evidence tina,
he I conclusive Tor the protection of niniste
% s 6rsr de- ico mere cm 10 BE- public ofcr and
executing the dutis Of t cic II m rnheien Ilrre must
pubic r such length Of time IA vii ano1e The Presnnp
ton colorsble election appointment Wcox ~
smith ". r. 23 Whether the rl.tor during tue pc
nod for which be claims bis salary City Inspector de .ro or
son u. Puo OF Ibe re- gy & n, @ , ,O ci
bs ed proceeding II So thrs he dridan is entitled
Judgment dsm.ns the WITT o Whether she If claimed
facto by ugt which would make hum such de re,
y imneIis 10 etsI case = i prof o ios he & !, an o
officer de- ure. An ticer de iaco Is presumed - be an
sse sob ts Ir pIe.ump,on i. conclusive bat it
only conclusive when the officer s 20 be protected in the dis
charge duties the rights Of third or the pubic
med So that does mol die with The Ieaor
cann the proceeding instituted by himself in other
words be preclude adversary from denying allie
rsh % he tried cateray as in action 20 com
Del acts founded the proceed
e, of an oaer who such He has right y decide
on the sci officer de co anjndg hrm tn be nu feo
rao ao that the Mayer niDteray in counersignng the
Controllers warrant the right OF tne oa;or 10 eau upou
The title not, therefore, coaeray questioned bat is d.
reey in issue and rs the Gny a[a a at' bT IN Tine % | o%
failure Of the Mayor 70 appoint an ofcT IN ms place a.
:s sp.'S Ss Sae Sl s i @ the os and snd to is
s., Ses ebeT Of ISL Know Of common law rule by
which public fcer sPPuted OF chosen i & IG'el @ Term,
hSy @ to appoint 81 eject a Ocs and P
copoTo who's 1prI$.slo & $ aiIusi in nags , % 6
txpraon yea When no successor has been apPoied
sS uey have continued act by the sgaerance OF
OF The c.porst So in municipal oorporation the sub.
ordinste ond officers re'e'Vns nti app % ~ 'b
n,ips body may perhaps hold Office beyond The term to
permitted TO sct they Sy ona , , o rsIls ari.S" .I
they The question hss III IN, ge,rad and a't tnr
very obvious dir melton such aud that of cs
& co,von Nh. case Of Mccall Byrsm Nj ,nua turing
Company u Con 42S, illustrates the point amr silnvv & oi
summons upon secretary c the company atcr 'e than
wear om the time election hsd elapsed was attempted 70
be- invadaied and the Court very csu'1ns 0pn sustained
the service bodmS that the ofhcer ahousn tne & @ , M
tended be- annual continued uut pedeo oy the
say neither the cser OF by'sws hunted tht on
DIAL Of the Secretary The uniform course OF "ss
BY viii Ii individual elected sppclnied 10 Office con.
unus In Office stcr che expiration OF the term hnea py
law aud until IL chosen and qualified usual
and we provision pubc charters that the officers direcd 10
he annually appointed shall continue IN Office until 9hs ~ Pr
the charter granted TO the Cuy Of NewrrS ~ 1850 sna
deemed necessary aud :" hcsuse it necessary 20 ense
the perform the duties Of his Office ar the expiration
by the this state for all the eases IN which has been
deemed wise suhonle persons III once Z" hs oNr D.
yond the fines for hich they appointed chosen
The act of 1924 Of 1924 SSp very general and
applied all ohceB who were duly com'nssioned ana
had entered the duties Of their rcEec'ye n, Ii9 ,Se
succe,sors commissioned and sworn The RvlS'd
Statutes the powers to officers 6uly app plnt'd
(othe than Justices Supreme Court ard 10 Sherhs AID
clerks counties ncuans Register OF the City and County
of NewNork. a X III, secs lO The Re'isor fcptd
section that the Of every other Officer
should be elected by the people and not reelected should
with the term which he should have been chosen Iis
enacted the doubtless that was not dctd
csunot BE- urged as evidence to tr
intended that the converse OF the proposed e 'o %
the lsw else why did the Legislature provide IL '.' i0i 'hr
continuance In Office OF sheh. aud Sk' sho "sre esa Os
the people and would have cot'nuSd IN once ht pr"
vision That provision is Yderce trsi try deemed me-
aud second that officers not named were ntcnaSa
cudod erprssio aHi Sc has never been supposed hs he
Of Assembly or stnstos would Lold over uPn He
failure Of the people eject ia ,lGS , . 80 @ O oSs sS"
until chosen apOt ted IN their places have qnshed
thc Lesislsiurc and legislative eSpi1 ol 'ls Tl ~
law upon this subject. Tue colonial charters oi the cy
Nv tbre aiy STONED uutil succesAs should be duIy
qushhed. Bat CRY ,Tcc'or was rot then kno"h' ana -
act Of 1881 the DoDSsn sud Monsouere Cnartei Is pre-
all amending the charter ana al laws
mt si ~h IIs ,S & 10 the once under ore Of the acts han
repeated. the rePesing took effect the Irner
ssScS s S'' All PSSer granted by the P1sed ,k
and all oomroa' LueSr soe ss w or,S @ 10 S Sn III,
Lad never existed except risu srcd and vested under
h. and the rish 10 hold gwen
char,er that al ohccrs ~ should b IL oce
tbcr Successors should b. duly qualified Davies City Laws, ae
6 which is bat another gisla'N. sSprl9n o. opnoa Hs
a. ,he n, such provision hk provi'ion TN ooaed
and p,sia