New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-06-17

l mr.
onIv extended TO filing the same for The BALANCE OF the
Term a. for which such commissioners are appointed.
He had power authority therefore TO MI any va
cancy except that caused by the death, &C. OF one OF
the then Commissioners He was authorized by that
act 10 appoint and such appointment could not DE made
acr the OF the term Of five mentioned
in that act We have seen that by the terms of that
act the Controller authorized 10 appoint tnree Com
nssioners who shOnld hold their Office for the term OF
five Years This all he authorized TO do, except
to fiji any vacancy which might happen during that
7 term. aud that only. Ths limitation OF has power
clearly indicates 10 my mind. that the Legislature IN
tended 10 provide only for the single exercise Of this
power by the Controller for single occasion, and only
Tor a specified period of time. In other words, the
Legislature deposited with him this power OF appoint
men for the period Of five years. and ut the expiration
Of that time by the fair ntendment and construction
of that act the Legislature either intended 10 renew
the power make continuous appointments or provlue
another depostary for that authority think this
view of the statute which is an obvious one and would
40 strike any mind on its perusa mus. DE- conceded
Indeed il is not seriously contrOv bGt II is stren
ousiv urged that infer that the Legislature n'
tended that this power should be continuous or else
two evils either OF which are serious ana greatly 70 De
depored and utterly Inconsistent with our republican
form Of government and the genius OF our INSTITUTIONS
must follow -
troer would hold The Office perpetually or during life
Second That if the Controller could not. under the
Laws Of 1859 make and further appointments the
offices the expiration OF the terms oil those nrst up
pointed wond become vacant, and there could he no
successor selected If the power TO make ne" appoint
ments is not vested IN him. and thus mo most serious
consequences woud be entaed upon the community
To obvatc these alarming and startling results. is
conended that to imply and infer an intent on
the part cf the Legislature 10 have tho power lodged IN
the Controller in the first instance remain with anu 10
be exercised by him, whenever the eugency should
arise which might call for H. tbs dangerous prlncl'
pie 70 Imply power when is not conferred by Lesis
atiye authority in clear and distinct terms IL ~ a.
WAYS competent for the Legislature To speak clearly
and without equiyocaton and II IL SAFER ior the Judcai
department 10 follow the plain intent and obvious mean
ing IN act rather than TO speculate upon what might
have been the views OF the Legislature II the emergency
which may hare arisen. II is wiser and safer 10 leave
to tho Legislative Department 10 supply supposed or
Actual otaissas Than attempt ~ 90 Dy ludlchl
construction Happily in the present instance we arc
not forced 10 the field OF speculation or con-
lecture Of Legislative intent obvi,tc the anticipated
evils which have been supposed won'd result from
holding that this power OF appcnr nn,ro E y,,S
the eftrx Of the period of five years mentioned IN
the ACT of le59 The Office Of Tax Cominis
sioner created by law, after The adoption o. we
Constitution Of le46 IL therefore competent Tor
the Legislature declare the manner OF the appoint
mcni ether through the agency of an election DS ihe
people u by appointment by any anihory. elmer ioc
or general or BY the Legislature itself, rs 1t might
deem inst and proper. and the Legislature mneht IN
like manner, change from time TO time the hoae 1i a
poipnen, or election These principles were luly ana
ccncnsyey settled in the ease Of me pope " D,ap@
4 as n w. 53r) and resiirmed In the opinion Of nKNio
Ch j. in the OF TIE Peopie V. Bfieteor l22 n
1879 H. the latter case be says referring 70 me
opinion ia the former But though they are cry OF
cers yet II their offices have been created SINCE the
formation Of the Constitution the Legislature is lee
NAV think expedient TO make the appointment r'~n
selves The of Office Of these oitcors. and fhef
mode and manner Of appointment tbereupon en-
tirey under the control Of the Legislature it was com
peie, for that body TO prolong their term OF once, D.!
emitting to provide Tor the appointment o.
the the" case Of The p.opte " Bacssior (.upyaJ In
that the power of appointment Of clerks OF the
Justices Courts IN the City of New-fork was vested
IN ,rr Mayor Aldermen and by the ACT Of le5 the
ners,ns "a Appointed To hold their Offices Toy the
Term Of six years. by subsequent legislation the
terms Of office Of the persons 50 appointed were OK
tended for several years aud the question presented IA
that case was whether the Legislature was pIeelndedDf
the constitutional provision IN article ten section 40
which requires all city officers to be appointed by the
authorities thereof from thus extending the terms Of
those officer. In that the officers were city OF
Icers. and il was conceded that tie CONSTITUTION re-
quired their appointments to be made by some Authority
thereof AID in tbs respect unlike the officers whose
title is under consideration in the present. action In
that case II was urged that the Office could not b.
legally held beyond the time Of the original term eAccps
, by virtue OF some new appointment. Judge stLbfS
answers hi, argument by The quotation OF sec rib
OF TIE Rev Stat. already adveItcd TO. and says that
tLis statute 10 10 be taken in connection with that
which specially conferred the appointing power upon
wss 10 authorize officers to appoint for the pre-
scribed period, and until successor shond De uuly
appointed and qualified Hence. the force OF ther ap
poinInent would not necessarily cease Of the eIpra
Ton of The speciasd term. Z. No one. think.
can doubt the power OF the Legislature 10 "thdIA"
entirely pospone the eIetcise oi an au'hotly con
ferred bv itself slono upon the Msvor and Aldermen
prov sion OF the Constitution contains any esIc
tion u on this power" II II was competent Tor me
LEGISLATURE by legislation. to continue IN Once beyond
the specified term Of Office city officers which II had
10 authority 10 appon' or 10 direct the ma ner oi ie
appointment except by some city authority dc' hhcu
for that purpose tOrfi0yi II was copoent i"r u W
do 80 ia respect to class of officers WhOse appoint.
mept was wholly within its control and discretion
The Legislature might well have been s.tlshed 10 con
tinGe in Office the spp0intee- OF thc AObt'"'ioi
I made under the act Of l-J9. and the abseoce
of any further legislation prescribing anode ioI making
new appointments. shows unMisiakcap! on hlert on
| ~ NJ 10
until tho action VI the appointing power theh uuthof
lied 20 &C, should do so long as they continued 10
aot. and gerc competent TO act IN, pupic lnNlett
gould suffer injury nay, even the Legislature Mey
have suppOrcd that 1t would be best promoted W the
retention OF experienced officers IN the dscla g. 81 Tue
peculiarly important duties OF TINS once IL couid NOT
fa 10 be seen the the laws, then IN existence iuy
for the continuance OF the board ana the com
pete and active discharge Of all It's functions No far
ther legislation called for, if the Legislature did
nc, sesir 10 change the incumbents of these Offices
unless il to t.l vacancy when might arse from
,ny OF the causes enumerated IN section 40 above
enumerated But every contingency when oouId arse
was tuly met and provided for by section y oil article
n q Rev Stat, 9TH ed. p 400 whch seems III ,no US
cussons OF this question IN the supreme Court 10 nave
entirely es.arpd observation. II is III tfcse oIds,
every officer The mode Of whose appoint nent Is not
prescribed by the Constitution or Is not or SHAH DC
prescribed by law. shall DO nominated " ne EVFeinr
and appointed By him, with tic conSeu' oil 'ho 0eh'
These officers fall within the purvew Of this section.
and therefore adequate provision was INA e n law ior
their roGppoint nent upon the expiration OF hor Term
OF Office the filing Of any vacancies IN their NUMBER
aher the Controllers power to MI tne Same was Ok
hausted OF 70. the appointment :" sIei 1 n
cumbcns There IL occasion therefore, 10 Iesoit 10
any straned unnst Or forced construction OF tue ac
ofle5s to confcr BY implication upo. ie oono r
Vent any Of the unprecedented mischief which have been
1t competent for the Legislature 10 au'
the appointment OF these officers In TIC hrat IN
stance by the Governor and Seuate and II The Legsa'
ture Mad omitted TO prescribe any mode for their