New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-06-17
made to il in .h. act and which received additional

made 10 il in this act and which received additional
force by its resnactment In this connection
1t cannot be doubted that the word "immsdiafsly'
refers TO the first appointments to be made under the
act and that in terms, no other power OF appointment
is conferred except to fill the vacancies which may
happen among the persons 20 aRpol1fsd ana ,ne .ei%
expressly limited to the original term OF five years
with no authority given by this act to hold beyond the
expiration of that period.
As ample provision was made BY general laws for
the continuation of the BOARD and the rcappontment Of
the SUCCESSORS OF the first appontees injury to the
pnbc interests can follow II il IL held that the pow
OF the Controller has been exhausted when he IN
<diafsy npon the passage Of the act OF 1852 appoint
ed the relator and bic two colleagues to the Office OF
Commissioner Of Taxes No vacancies having Oc
CARED during the term of five years mentioned in the
act occasion occurred for invoking the other sole
power conferred on the City Controller by the act,
namely, that Of filling vacancies.
The powers thus conferred were at the expiration OF
said term Of five years fully and wholly exhausted.
IN matter Of HOliisr Bcak Of Buffalo, "a n Y. 393)
IL the Board could be kept in existence by the prov
sons Of law then existing and adequate power given
10 keep fhc Office full then no farther legislation was
imperativey demanded. and occasion presented for
any forced construction OF this act. To maintain tho
position this Court imply such continuous power In
the Controller TO make add ona and further appoint
ments the EFFICIENCY might arise from time to time
the principles announced by this Court In the case of
Wed v. Tucker % n. V, 422), are confidently up,
peaed TO- IL il TO be remarked that that case referred
10 power conferred to make contract 90 10 enter uto
contract" n publish paper on The part Of the state
one contract had been made and the term for which
had 10 run had expired, and the officers authorized TO
make tho contract originally. entered into new ana
further contract No provision was made ny law Tor
anv new or further contract unless the same could Do
inferred implied from tho terms of the act OF from
the circumstances Of The case II IA believed that II
has been already shown that the doctrine Of tins case Is
authority for tho disposition OF the ons ut par ana
does not control it, The point decided did not relate
10 appointments 10 Office, but to the making of con-
tracts.
The reasoning Of tho opinion Of the learned
Chief Judge Of this Court IN the case of
Uu5 v Taoker (slPrG) IL lnappioablo to the
one now nndcr consideration. The cases referred
10 BY hun AS analogous that, were where there was no
gene raj provision Of law applicable, where the power
first conferred had been exercised and was exhausted
Those cases showed that rom necessity the authority
conferred was not temporary eXigency which was in
tended 10 be provided for. but the establishment Of
permanent system respecting that portion of tie public
business The rclator therefore, continued to hold the
Office Of Tax Commissioner Notwithstanding mis- term
of Office had expired and was entitled 10 Lod the same
until the Governor aud Senate should appoint his sue
cessor aud such successor had duly qualified. IL fo
lows that the defendant had legal title 10 the office IN
Question, and judgment of custer must be rendered
against him The Judge at the circuit, therefore, erred
in Ls refusal to charge as requested, and charging
did and the exceptions To such refusal and charge
were well taken.
The Judgment appealed from must be reversed. and
Judgment rendered for the plaintiffs that the defendant
has usurped the said office OF Commissioner Of Taxes,
ana that he be Ouscd hereTon and that the reaior
declared entitled TO the said Office and the fees and
eolumens thereof and that tho record bc rcmItted TO
the Supreme Court with directions that judgment BE-
entered therein accordingly. and that reference be
70 take an account u the fees and cmou nent
Of said Office received by the defendant 10 which the
rclator was entitled. and that on the coming in and
confirmation of the report Of the referee. the said re-
la,or have Judgment for the amount found due with
eofis OF this hction.