New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-06-24
THE OPINION IN TIKI FIRE DE.
PARTNENT CASE.

| The opinion n which MT. JUSTICE DdNlS sou
forth the decision Of the Court Of Appeals in
the matter of the Metropolitan Fire Commis-
sioners covers good deal of ground, and goes
pretty largely into questions Of future as well
as of present interest. But tho point On which
the decision turned may be briefly stated. II
arose under the second section Of the tenth
article of the Constitution. which is a. follows:
IAN county officers, whose election or appointment
is not provided for by this Constitution shall be cleo ed
by the electors OF The respective counties or appointed
by the Board o! Supervisors other county authorities
the Legislature shall direct All city. town. and VII
age officers whose election or appointment Ii not pro.
vdcd for by this Constitution ala be elected by the
electors Of such cities towns villages. Of some
division thereof or appointed by such authorities tefe-
of as the Legislature snail designate for that purpose
All other officers whose election OF bppoi trneht not
provided for ty this Constitution. and all officers whose
offices shall hereafter be created b. law shall 10 elected
by the people. or appointed. ~ the Lessiiture nay
direct"
The case is different one from that which
arose under the act establishing the Metropol.
tan Board Of Police Commissioners. That act
included Brooklyn, aud so created new dis
trict, to which the Constitutional limitations
above cited did not apply, the Court holding it
competent for the Legislature to create new
divisions or districts for civil purposes, that
their establishment did not affect the rights
of existing municipalities, aid that officers for
such new districts might be appointed to dis
charge the same functions previously performed
BY municipal appointees. But in the present
case, the operation OF the act was limited 20 the
CITY of New-York, no new district was created,
Of AZ t.,fa mn ~
rest, if at all on different ground.
Inasmuch, therefore, as no now district Is
created by the act. the Court proceeded to con-
slider whether within the meaning OF the Con
stitution a new office is created. If there Is
neither u new district nor new Office, then
the direction of the act that tho Commissioners
shall be appointed by the Governor Is clearly
unconstitutional. But the Court holds that the
Office of Fire Commissioner is u new one, and
that the Commissioners are among thost
"nfioers whose offices shall hereafter he created
by law" and who may he "elected by the peo
pie, or appointed, as the Legislature may direct
! As stated by Mr.. Justice Davis the ques
I, ton Il,
whether the Offices created blythe act new In re
spec. TO their operative and Substantial unctons or II
n ger &C. that those functions not at the tmo u
tho adoption OF the Constitution, performed ~ persons
who officers under some name within the menrlns
of that term used In the second section OF article
! TO-" .. -.-
! Or still more specifically,
"Whether the functions conferred Substantially
public civil officers OF the time the Constitution wn'
adopted"
| And the answer IL that
"The Fire Department Of the City OF Nov. YoiA apd
the officers thereof whose existence and uncticns 90 i
az they relate to public interests, swallowed up in
the Metropolitah Fire Department we're not officers
when The CODsf tuition OF lh46 adopted. within
the meaning Of article 10 Of that instrument No gen.
eral statute has been brought 70 notice and none
has fallen under observation by which the Fire Do.
partment it's officers were ever called or recognized
az public or civil officers.
They were not entitled either in law or in
fact. to claim such relations 70 the public. Tho
Fire Department wss corporation, but
Neither the corporation itself nor the officers
elected under the provisions Of its charter were AT any
time, by reason Of any power derived through the
charter public or civil officers within the meaning Of
the Constitution The corporation wac mo- municipal
political body, aud neither 1t nor i,s Officers occupied
any greater official relation 20 the public than the OFF,
or managers Of the numeTous religious and char
table corporations OF the State. And II cannot DO
doubted that in Tar the officers Of the Fire De-
parrnent derived their authority under the act Of IN
corporation. they have been st all times since 1895
subject TO the control Of the Legislature OF the State
II competent for the Legislature ~ have repealed
the cb after ut any moment and that gone what basis
for Official existence would be left 70 The persons hold
ing the various offices under itr
And the Court remarks rather naively:
1t would astonish lifetime fireman OF New. York
10 be told that he Lad been all the while public officer
and II the Gremen were not themselves public oicers
Mother were the persons selected from themselves 70