The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-06-17
the TAX COMMISSIONERS CASE.


the TAX c0MMlSSl0MERS CASE.
Dseisio. Am Regard TO APpssls-Judse
Davies Opinion.
7As People Of tks state Of New York in relation of
Josiah W. Brovs Appellant vs CAviskpAer W Wood
v1 Respondent This has becn for hearing before
the Court of Appeals On the Sd day of May 1882 the
reiator appointed by Robert r Haws then Comp
trolIer of the city Of New York. ths once Of Commits
Of Taxes and Assessment for said county city
Of New York On the 5th Of May, 1884, Matthew T.
Brennan then Comptroller appointed defendant to the
once q Tax Commissioner On the day Jonathan
w. Anen was reappointed by said Comptroller IN said
oface, and George H Purssr in place Of Amor J. viii
Hanson az such Commissioner OF Taxes The Justice
charged the jury In favor Of defendant and verdict
was given accordingly at general term Tho has
now come before the Court Of Appeals The material
question for the consideration Of the was as to the
validity and legality Of the appointment ofhe defendant
by the Comptroller Of City New York on the 9TH day
Of May 1884, the relator having been duly appointed to
said office the Sd OF May 1852 thenceforth holding
and exercising all its oces The 18th section Of the
legislative act authorized the Board Of Supervisors ap
point three persons tax ccmmissoners who were
spectiveiy 70 hold once until December 81 1851 Dece-
Der 81 1852 and December 81 1863 according TO clAssn
cation n was the duty OF the Board OF Supervisors to
years within thirty days previous TO the expiration Of
the term Of once q said commissioners In 1867 another
act passed declaring that In the city Of Now York
there should continue be three tax commissioners IL
also declared that the persons then holding Office should
continue to do SO until the first Monday Of July 1850
Before this into operation act passed
empowering the Comptroller TO form a new board Of
who should hold Once ono Tor the period Of
peaIs the Of April 49, 1857 In conformity witfthe
authority conferred by this act the then Comptroller Of
the city Of New York Robert Haws on the Sd Of May
1852 appointed the relator of d tax commissioners
and he duly qualified and entered upon the discharge Of
the duties said once By the s1S 81 vs o. the
until the Sd day Of May, 1884. -
The learned Chancellor and the Supreme Court Of
opinion that can Office cannot be said 10 be vacant while
any person Is authorized TO act in IL and does act"
The Office of Tax Commissioner filed by the reator prior
no Way % be- eS by the The learned
Judge fully stated all the legal points relative to the
Suboined are fcw extracts from his argument
Happy in the present instance, not forced 10
resort TO the field OF speculation or conjecture Of egsa
tive intent obvate the anticipated evils which have
been supposed would result from holding that this power
Of Of those officers exhausted by
Comptroller with tho efux Of the period Of five years
mentioned in tho act Of 1859 The office Of Tax Com
missioner was created by law after tho adoption Of the
constitution OF 846 1t therefore competent for the
Legislature to declare the manner Of the appointment
by appointment by any authority either local general
OF by the Legislature ITSELF as it might deem just and
proper and the Legislature might, In like manner,
change from time TO time the mode OF appointment or
The Legislature might we'll have been satisfied to
tnue In ONCE the app0ntees of the Comptroller made
under the act OF 1885, and the absence Of any
satien prescribing mode for making new appointments
shows Enthusiastically an intent on the part Of tho
Legislature that they should 90 continue until the
action Of the appointing power then authorized TO act
sho,fd do 60 SO long as they continued 70 act and
no injury-nay the Legislature HAY have sup
posed that 1t would be best promoted BY tho retcn-
ton Of experienced officers IN the discharge Of the
fail TO be seen that tho laws. thcn in existence.
folly provided for the continuance Of the board and
No further legislation was called for the Legislature
did not desire 70 change tho incumbens Of these oces
unless Il was to oil vacancy which might arise rom
meated But every contingency which could arise was
fully met and provided for by section T. Of article Il
sons of this question in the Supreme Court to have
treiy escaped observation II is in these words-"Eyery
officers the mode Of whose appointment not prescribed
by the constitution OF IL not shall not be prescribed
by law, shall be nominated by the Governor and ap,
pointed by him, with the consent OF the Senate
These officers fall within tho purvcw Of this
section and thoRefore adequate provision was made
by law for their reappointment upon the expira.
p Of S their Of number oSS after Ss comS
ers power fll the Same was exhausted or for the
appointment Of their successors II the appointing power
OCCASION therefore, TO resort to any sraned unnatural
or forced construction Of the act Of 1859 TO confer by
implication upon tuo NQHipuohos Po"oa NV ="
him by the terms Of the act to prevent any OF the ap
pretended mschiefs which have been suggested was
competent for the Legislature to authorize the appoint
ment of these officers In tho FIRST instance by the
Governor and Senate and II the Legislature hao
omitted to prescribe any mode for their appoint
mcnt originally or the mode which they did
prescribe became exhausted, or otherwise map
propriate this general provision OF law, which was
intended 70 meet all cases. would have been ample for
this contingency. Where the mode OF appointment was
not or should not DO prescribed by law then this
OF appointment be invoked properly as the mode OF
appointment Of these ofcers and IL also can be done
where the mode prescribed BY law shall have been OK
hsted ceased TO be applicable II IL not denied that
the legislature In terms prescribed the mode OF appoint
ment OF these officers for tho term Of five years only but
IL IL urged that they must have intended TO have con
tnued the mode In the absence of any other prov
sion for O further continuous appointment It Is seen
that the quotation from the Revised Statutes just made
entirely overhrows this argument by the fact that mode
the exgency and relieves the question from all embar
rssm.rt
The Judgment appealed from must DO reversed and
Judgment rendered for the pans that the defendant
has usurped the said ooc OF Commissioner Of Taxes &c
and that he be ousted thcroom and that the reator 70
declared entitled the ssd once and TO tho fees and
emoumens thereof and thai the record be remitted 70
tho Supreme Court with directions that JUDGMENT DO
entered therein accordingly and that reference DO
Of said once received by the defendant 70 which the
relstor was entitled and that the coming in and
rmaton OF the report OF The referee the said rclatcr
have Judgment for the amount 30 found due With costs
OF this action
Court OF Appeals.
AruAwv yunA 1a0k