The New York herald., 1864-06-07

brought Up on n Writ or CerttOrari
Before the supreme Court General
Term.
ne TAX Commissioner imbrogio still remains un-
.s.sd, although il IS the general belief that the
@rYoptees viii be firmly installed in Office before the
se o. days, and that the business pertaining TO
.ss oflce Will be resumed as usual.
saiso Barnards opinion, egalzing the appointment Of
loCpFoiler Brennan, flied yesterday, reads ~
ms compainanis ask that Jos ab W. Brown and Amor
= Hanson, ate Commissioners of Taxes, &c be com
Y-!a1 % deliver 70 them their in office.
lie cooks and papers pertaining 70 said Office. have
sysn he questions arising upon the papers and made
speA Ae argument that complete ard deliberate exami-
pa.lou which the public interests demanded, and will
hres state the conclusions to which examination
- 81 me- my other duties preventing me from giving
2.cEa elaborate opinion at this time
irsihers can be no question that the term Of Office
y .own and Williamson had expired at the time Of the
iN'nh lment or the Rppoants. The act under which
-sy appointed 10 terms limited the Office In dura-
- p the term o. i've years. That was the term Of
-.aco and The provision for continuance Ia Office until
1.les shout be appointed in their place had respect 70
a9 nuolc interests snd desgned to guard against
5soute vacancy tho Office but did not exceed the
torm of the oce dxed by the statute The contest
an were appointed and entered the duties OF their
o19 tho Sd Nay 1859 and on the Sd Of May 1854
ke Term Of Office expired. Rut they continued legally
= aGcrese the duties of ihe:ace under their appoint.
raen until the oh o. Nay, when the applicants were ap
2stvi.dI cannot entertain a doubt that the appoint
n5-t y the applicants 70 succeed 70 the office bv the
fr Inc conestsns whc they conceded that their
& ehce haa expired and that the law cou,empated the
Tonlment Of others ID their places, did not attempt
az sn With whom the power ot appointment was lodged,
eos Morey insisted that Il not wth the Comptroller
sas lsssn 9 the statute . very evident y was to pro
ac or permanent system Tor assessing and collecting
Sae xes and assessments in the city Of New York and
No. ,o serve temporary purpose or to meet
seety The Board q Commissioners vas established as
branch Oi The government AMI the business OF the
department. was . be transacted by Commissioners
Aycettsd FOR limited term With provision for filing
x Yacences during the term OF Office, hut with
5sicn for ang o. vacancies by DEATH &c after the
expiration or The form. While the Office OF Comm,s
steiner be permanent the title the ncumneu
not be permanent but he hold his Office by
.ae same terms and with the sarne statutory limitation as
% time other officers The clearly for the
appointment of Commissioners At the expiration Of the
I've years for which The nrst commissioners ap
pointed, and the power OF appointment vested in
,Ee Comptroller That power, lodged with him for public
purposes and TO subserve the public interests.
exhausted 10y single or il Although the DO
70 make any but the hrst appointment s not IN terms
conferred il within the reasonable intent o the
snd necessary TO give effect 70 the plainly
q ne legislature 70 keep ~ operation hs important
sysrch OF the city government Ihe prnc,?c Involved
1are was well settled in Weed vs. fucker t9th New YORK
~, The reasoning of Justice DEMO, unanimously
sQccurred by al tho Judges Of curt ApreaIs
we rs the and analogous statutes cited nv
ear1sd Judge establish yory coDcusiyey The regularity
u me appontnen. Of tho applicants by The Tomptroer
~sire--Ihe applicants having iaken The oain .! Office
nAse demand Of the books aaa papers the contest
4n.s ard were then ii coalition 10 make IN aopica.
ION under tho statute, While IN this proceeding the
,,s ID the oflce capuot be determ med il ioes moi fo
oT Shat the officer to whom the Application Is made
may not incidentally examine into the light OF the
respective claimants He must do this incidentally
e called upon TO make the order TO show cagse and
re must 10 80 when ne passes The question finally
n assertion of right b he person withholding tie
cYd be OF but little avail, any the applicant
rcui be driven 20 action TO establish his title the
1nce. party Is in pcssession OF 5ce and officer
fSo when he is commissioned by the proper authority
At has taken tbs oath oNoce and given security when
tsclry is required No other induction Necessary
possible The fact that uaurper has possessed hmse
4 re books and papers OF the Office los not acct the
person legally appointed deprive him c any q III
zhls as an officer IL ftco in possession of the Office
ysoh e but franchise,
Although the right to the oce cannot be determined
lron ins application any than the title TO real pro
oecty could 81 common law De determined in merey
1osassory action, but only suit Of right the right
y Inc possession OF tue books &c msy aud necessarily
must, 10 determined IN this proceeding. TIE parties
wil not be concluded BY the result IN action 10
w. sh the title eGn be tried n tho applicant makes
. .rsasG fdce case, and the contestant Is clam us
s,ihout color Of legal authority, matter how stou,
nay 20 hs assertion * right the applicant is entitled g
he relief asked Such s the result o. the cases. in
every case with single exception the question Of right
10 e possession has been considered passed by
tie oce ln the excepted case the Judges of tho 81
Court had divided In opinion TO the right the
ot1cs and Judge Kent, acting Circuit Judge, VERY
propsTy declined passing upon u. Sote to People VS.
s.eYcns, Hin, 6l6. IN The matter Of Davis, dow s67
ls 10 matter Of Whiting, Barb 5l3 Abbott, 10; H.,
s3l Hsrb., so; baro, BIS; How, 36i II How. +ls
in Of the the Judge inquired and passed
ugoa tbe authority Of The body which the appoint
mert oroanefed and 10 others upon tho right and regu
sy Of removal OF the incumbent well the appoint
OF toe successor clearly Of the opinion that
this proper FOR the OF the power
BY the statute that the utestants withhold.
aV he books from The applicants unIa wfy and without
q right, and that tue pcoc interests require that
sAs books and papers should be delivered once the
tn3 that tho important duties devolved upon Com
ssionars o Taxes, &c, NAV he prepared within the
.re prescribed by law THE uubjpc interests vii, suner
contestants permitted sv withholding the books
fera Il OR prevent The proper aud
.gecuon of The avs for making The assessments the
psy, The usual warrant 70 commit 10. contestants
eus, togethor win search ara Tor the books and
xaeEs necessary.
TIE CERIIoaARI PROCEEDINGS.
sUrRFsS COURT GENERAL
Before Judges orke Leonard Barnard aud Sutherland
igss s--ln no matter of &c Application 81 Joaa'han
" Saen. eeo, RI. Fvrser and 9. q. Woodruff acaias
I-stss W. Byoua and An.0r J. Waliamsoa.-The Court
having rendered number q DECISIONS Judge Leonard
Soqured the writ o. osrtcrsr This case wac MOI re-
ssfnsble that day.
Exygdge Allcn--7hero IA mperious necessity your
8uors that this case should he heard AZ once ns the
ps2ors here, and believe thos arc We should pro.
sd at g the argument of tho upon ss merits
9 novo that We proceed at once.
Nr. McKconI will bo ready 20 proceed with the argn.
nsot 70 morrow. csnnos 20 on to-day.
sx.ypdso Alen- have an afdayii In sny hand which,
read viii show tbe necessity for proceeding with
,aai Argument It
Ar Eoyes--f have not tbe opinion of Judge Tar.
xAsd get and, until ye have road II, don't think we
vIi ~ read 70 proceed WITH The sguuent There sas
necessity for such hurry n . proceeding which vns
LAken in the ordinary uay
AZ Judge Aicr-i souiS Ike TO read This AFFIDAVIT,
y.r Honors aud thea you viii tie necessity Of near
aog this matter Immediately. W the lave " the state
Ire books and papers Of toe Tax commissioners Office
are necessary 70 make auf prepare the assessment
roils for The year 1894, ana copies ~ the same west
10 selvered 70 the Board of Supervisors or tnc Grst
Acphay IN July. Now Il " utterly Impossible
ac comply with the law unless immediate authority IS
tsen 70 recover and coHc theso books, which We arc
soormed, are scattered al city and 10 the hands
81 Irresponsible parties. understand that sr. William
9n SEQ, ns brother nlav around the city To collect the
ooss pu' Where they are now II is hard 10 say lnsf
may be IN Baltimore for ougnt Nc tnov n should be
aosermned ?, once who arc the Tax Commissioners or
Use mere WIN ne great difficulty experienced collect
naIterl ano can 90 on with the argument 10 day
~ ~el ss io-m'rrcw, We are resdy TO pro.
s~ad 70 argue the upon tie merits although
might heye oheoted % the writ ~ cerorari ss pre
The ground That the order Iuhrn