The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-04-07

and according 10 the regulations Of The Departments OF
New York and Brooklyn, until after the hst meeting
of the Board Of Police under this act, when the
said police shall hold office and do duty unuer mo
provisions OF the act hereby enacted, and as men
bers the Metropolitan Police district hereby oorsti
tuted Tho pa,rolmen" mentioned In this Pfovis
evidently the policemen appointed under the act or
first meeting Of the Board and the direction
10 their conduct previous 10 such meeting Besides the
expressions that they should continue to do uy until that
meeting under previously existing laws when they should
hold Office and 10 duty uuder the act members Of the
Metropolis Police district thereby constituted, clearly
refer to- aud include, the policemen who in Office
when the rev act passed The defendants
tend that this a and legislative appointment Of
ofcers and that Legislature making il transcribed
its POWER The legislature has frequently appointed OFF,
newly created and probably has the TO do 30
when restrained (as ii moi in this instan,e) by the
constitution This however, does not purport 70 be new
appointment but is In terms Continuance 10 Office.
Tue officers designated continue TO do the du
ties before, and 10 hold N effect the same oc3, but
under different te The policemen under the old law,
and the peromeD under the new one, as was truly said
by Judge Davis officials of The same character possessed
by the powers and authorized to perform tue same
functions These ne most important particulars
connected with the Office, and in conjunction with the
uneQuvocai declarations IN the statute, sufficient to
indicate Continual IDENTITY Nor that identity dss
roytd by the changes the rules OF procedure or the
xtension she Tne alterations to the manner
IN which the duties 10 be discharged were princ,
pay formal and not greater than such as are ire
queDty adopted when there 10 no petence OF change OF
Office The enlargement Of a district merely extended
their sphere Of action The patromen not to be ap
pointed ndscrina,ey from the entire district but quotas
from the county OF New York might be determined
upon by its Board OF Supervisors-ss many from the
city OF Brooklyn should be determined upon by its
Common Counc-as many from the towns in the county
OF Kings might be determined upon by the Supervisors
of such many from each Of the counties Of
Richmond and Westchester as might be determined upon
by the Supervisors OF those counties respectively, and,
until otherwise provided for the quota OF patrol force for
the county Of New York and for the county Of Kings
should be Of the number of patrolmen then existing
law the cities OF New York and Brooklyn aud of
the localities thus specified the act was to pay for It's
e. SuDer vi QprS
Except in BROOKLYN, where the service was to be per-
formed by the Common CouuciD were to determine the
number 10 be appointed in their respective counties and
they were 10 be selected from and paid by their
counties that in consequence of these pro
visions, each county maintained its individuality as to
those affairs They may rot have been county officers
their mode Of appointments as was decided by this Court
in the Of The People Draper and as to the extent
Of territory in which their services to be performed
but they such IN all other important particuars and
therefore, the Legislature consistent in providing
that the occupants Of the old office should continue to hold
II, alough under a new designation.
IT, then the relator entitled hold the Office of pa
trolman when the of April i5, 1857 opera
ton, for NAL acceptance by him necessary The
act itself continued the official tenure. 1t has been
held could it be with any reason, that change
OF the Of The Office of its duties long they
remained substantially the same far ousted the
pant FROM flee require his direct his
storaion lie would sustain the Office (whle livng) until
the expiration of the term If there should any his
removal from IT. or his resignation, and possibly its
ceptaDce.
II was commended however, that the relator by his
conduct vacated the Office The Revised Statutes de-
declare in what cases an cfice shall be deemed
q 3 I22 sec "a They provide that every office
shall become vacant on the happening of either of the
following events ID The death Of the incumbent.
(2) HIS resignation. ~ His removal from Office 4) |
His ceGsing 10 be inhabtan OF the State, II the
)fce be local. of the district county, city
which he shall have been chosen or appointed or within
which The duties OF bs office are rronreJ IN be die
hareed (5.) his conviction OF an Infamous crime or
# any offence involving violation OF his oath Of Office.
81 HIS refusal neglect to take the oath of Office with
n the time required by law, or to give any II
bond within toe time prescribed by law. ~ The de-
,son Of competent tribunal, declaring void his
iol appointment. The only charges brought against
he elator independently Of the allegation as to his
which could true, bring his within this category
are FIRST that he neglected TO take the oatn Of Office with
in tire time required by law and second that he, in ef
II is be INFERRED although do not see it distinctly
stated il the special verdict, was it mentioned 10 the
charges preferred against the relaor before the Police
Board that be has taken the oath Of Office under the
Metropolitan Police act. II am right in supposng that
the continued his old Office no new oath of
the statute The inteth section provides that the Board
Of Police soan make suitable provisions for the taking by
the members OF the police force of oath OF Office and
the registry Of the same ia book TO be kept for that
purpose II does not appear very clearly whether this
permission has reference to all the MEMBERS only to
those who might he newly appointed The reasonable in
ference would be that included only those who
ferred 70 all they were not required by Law TO take the
oath until the Police Board had made suitable provisions
on the subject and had furnished book in which it
was to be registered, and it does appear, nor
Is alleged in The return by the defendants to aterna
tive mandamus that the board had performed either Of
these services There not therefore, any fault impu
table 10 the reator Ia his omission TO oath of
office.
TIE defendants do not directly allege that the relator
resigned the Office, but they that ne refused to take
DR. hod Office under the act under the board DO
lice thereo; established, which they probably deemed
provoes that member of the police force, under pc
nay Of foreitog the pay which may be due to him. shall
Withdraw resign from the police force uness he shall
have given mouths notice thereof in writing, TO the
General Superintendent Of the Police. This would
10 prescribe the manner in which, and in which only,
be made and there pretence that the
reator thus resigned 1t was contended, how
ever, that the relator had, by his conduct, alb
dicated the Office which was, in effect, q resgua-
ton and the case Of King James the Second OF England
cited TO show that the abdcaton created vacancy
But that and misguided monarch hal aoan.
ioned the country and ceased perform of his royal
FunctoDs and yet 4 doubted by many eminent men
of the time whether he had vacated the kngy Office and
supposed that the Parliament in resolving hal
acted rather from great State necessity than from any
well settled principle In the under consideration
Re cease 10 perform the actual duties Of his station In
Iced, 1t would seem from the special verdict that for
ong period sfr the passage of the act he could not
ave performed any police duty in his 1.-THE Fourteenh)
district IN any other The special verdict states,
that the members Of the old force including the reator
nder the command OF Captain Kissner, did the police
uty of the Fourteenth ward up to the last of June,
s57, and the only police force duty In the |
fourteenth wardp 1t was not in the power OF the re-
to reorganze the district and the omission to place
in proper cond on for the performance Of any duties
lnder The act was attributable TO the higher powers
MI w Tue ohiy charge WHICH was lDtenueu 10
brought against him before the Board was that had
neglected T. obey order TO report for duty at 88 White
tree, on the 18th day Of june at eight o'clock r. NJ II
had been named IL the charge, and had been proved
gapst him trial OF which he had been duly notified
md he had omitted TO make any defence such disobe-
Hence might have been sufficient for his dismissal
But has been already Indicated the rreguary of the
proceeding deprived Of all effect not in proof
hat the charge well founded. Besides, according TO
he decision in the case OF vanarsdale Husard I'D
Hi, 23) refUsa to serve, although without sufficient
eason, not per Sc forfeiture Of office. The Judge
red he al In that
quoted the decision in Lyon the Commonwealth I'D
,ibb, 430) and Rex Exeter Comb, 1917, that If an
f1cer should hey ond the district TO which his
flee related for The purpose Of temporary occupation
nd that even tor months If he had done 30 with in
enton to return, and continue his former domc that
would not Of itself have vacated bis office r. therefore,
be had shown clearly than does that the
ator bad neglected refused TO perform official
uty, that not have established the charge that he
lad a leo his office