The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-06-16

Speeches Of Ez-Judge Allen, John Coch-
rane, Wsldo Hutchings and
William II. Evarts.
The Decision to be Rendered nj
an Early Day,
&C., &C., 60.
Court or Appeals.
Chief Justice DEMO, Presiding.


The Pop'e Of tie STAT. cr Neo Yar+, respondents, rs
Charles e. Fnek'ey ond Others, appellants The Fire De-
rartment controversy s fast drawing a close and In
the course OF few days will be determined who viii
have the right to ''run the machine" and cxtngush
fires in the city Of New York. The argument on the
constutlonalty OF the law set down to-day
by mutual consent and attracted good deal Of
tion. John Cochrane Attorney General; VIM. NJ Evarts
and Nelson j. Waterbury app ared for the people, and
exJndge Allcn, John IL Patt and Waldo Hutchngs for
the Commissioners. Chief Enyineer Decker and a
few Interested fremen from New York In attend
This, it will be recolected, appeal from
the decision Of tbs Supreme Court general term declar
ing the law unconstitutional, the ground that the bill
was local and not metropolitan In its character and
intended exclusively for the management Of the
New York Fire Department
THE CAFE FOR TUE NEW COMMISSIONERS.
Ex Judge Allen opencd the argument for the Com
missopcrs He commenced by rcading the Fire Depart
mcnt bin itself, and then made q statement
Of the proceedings in tho lower courts in
reference TO its constitutionnty. In his opn-
ion the question turned upon the construction Of
article ten, section two, OF the constitution OF 1876
The requirements of that section that all county
officers then in existence, whose election or appointment
is not provided for by that constitution shall be elected
by the electors of the respective countes appointed
by the Board Of Supervisors other county authorities
AZ the Legislature sha! direct He conended that the
old Fire Commissioners were not county officers but
agents OF the Corporation, and could claim protection
under tho act OF isaS Fire commissioners were not
thought OF at The time OF the o. the act OF 1886
They were frs: appointed to office in 1855 and have
since been mere agents OF corporation In reference
to the Fire Department charter Of 1898 all he had to
was that IL was intended more for charitable
purposes than for the sxtinguishment Of nres
upon close examination IL would be found that
IL charitable act and had reference officers
ton in the cty Of New York for the extinction o. ares
which In existence the time Of the passage the
law O. 1906, dates It's existence only from 1888, and
therefore, could not be affected by the OF 1S46
vlonsly referred IN. The counsel then to say
that could not be claimed that tho Legislature hnd the
power 10 create officers. The Metropolitan Police,
Central PARK and TAX Conmiss bills created new
officers, and no doubts their legality. So with tho
Metropolitan Fire Department lawt croatcs new Office
nder article tcn section of the constitution There
restriction Limitation 10 the constitution upon
the power OF the Legslatur to create officers
for parpcse and direct to their appointment
election. They the sole judges Of the necessity
proprey o. change in the political organzst Of
srnmcnt whether county, town, city. The only
sriction In this respect found in article en
two, relied Upon By the plaintiffs and this restriction
only rclaes TO olc then in existence An Office which
combines and unites the and duties OF several
officers finctions and powers VIII, we're before exer
cscd by differ mt agencies cnpls I'd by different
branches OF tho government, is md Il be conceded
he office, under the oLsigoi II is not enough
TO bring case within tho nitato 4 the legislat
power that the public dntios to H. performed bv
ihc new officer have bee;i In soiSc way and by
somc agency fore them rarfcru,vd, so that the
luhc may not navo su'nred The functions and
diiies must pertain TO some Office, and bc per-
formed hv some officer known 10 the law The Legisa.
,nrc have The right to VIII any given public agency
shall be changed and by what Offices and officers dnr
ent exc utve ana minstcria duties shall he performed
There nothing In the People Draper decided by this
court In conflict with this proposition; but that case is
support OF this position The statute books are full Of
laws commencing the year following the adoption Of the
constitution tho consu'ionality and validity of which
,ha h nn',,m m % ~. ,h ns I'm ne. ~. ol,e % ano n,Ing
anthorites may DO said OF all these acts that the
duties OF the officers created were not NV In the
Foh9e that thcy were not within the range OF du
.hat might have been and WIRE actually performed
py some oher agency or officer In existence In ls46
me Central Park commission ia a well known example
OF the creation Of new officers and providing for appoint
ent 10 thcu Tor the performance of duties in relation
1919 ncssorms1 a. to ererv ",h nh ap m'on % IN IN
tn city by ordinary officers u the city govcrnment
the Metropolitan Fire law IL local and relates .rcnsvcv
to tie cv Of New YrK bs con,endeS sbo, ne no
Com,sson, r. had control over the Trookyn
Also 7, WINS no, necessary ths, iha s.m. yr. shua
be executed by the oY,cay. over sy.ru n,,, s h n
6re dsirict Tho Iegss,,.nro wsro ~ r sn,o nt a
inayes in th., re.n.c, aS h a 'e ,a anu paoie'
ye,. upon the erc,se M ~. ,.,,.,,ra S,.rr., e.
long A. some duties and those OF substantial haactcr
were perrcrmed Within bob ,bc sorn.r o,.a, St,
IONS OF he state embraced within rho nev s,r,c, !.
bsantIa Jurisdiction is conferred mon m. nsw ocsr
over the entire district and The CASE conld NOT he dsn
ruisbcd rn,n the case OF Iran,r n vou,d csrain n.
ndecate for the court 10 ray that Tho Icvs,ainra an
serted colorado provision ard ono hay and
10 have no prnctcaI e ct morcv % tars ,hs or,
OF the provieou OF tho cons,tion m, conrs ,v,,i
not 20 out Of ~ way 70 mncach the Lnsis,ainrc and
nulfy tn scts There have been ,mes and these times
may recur when tbs eoptroi of ~. p,ooki~n r,.s n
rAnent NAV be essential for the preaervation Of he
city of New York from d.struction bv 0rc The r,os
or 1893 NAV be verrred 10 M one syeh occ..ion a.
the case may be reversed and BROOKLYN NAV mad the
aid from Now York which the act enable. them Ia et
through the metropolitan Fira Commissioners and the
now dspar,men, Nav Yoyk and practivn .,s n". go
city IN all their interest and exposures They are ono
in police orranixstiou aud are now made sssen,inIIv
ono organization for tho cxtinsuishm OF Arcs.
and tho truo policy Of the s,aD as wall AZ Of Tho
two cities units them in every organ xaon pertain
Ing 70 the Of civil affairs a. far and as fast
as Courts ought no, 10 stand In the wav f
or in an oudy uannr crc,se any Legislative scs
In this direction The Ia remedial Is called FOR by the
public interests of the two ties and Shot receive from
tho court favorable consideration.
.ur go,
...-0.v CO., $500, svn 'hs rnorLh'
~ =, @ opcns1 we caae TOT tne
pec. nc sso tns. tne rl'e Dopnrtmnn OF tho city OF