New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1866-03-02
Co. 10 Wend T6 People at Supervisors Of Chsnansc
hsenan 90 10 70 the least Of mater Of doukS

49, ~ 'us heAto Tor ths reasons which Will De heeaftss
!, olow. from the abov. proposition q correct tbs, tn,
right to demand so be cannot obtain the partial re
~eh re may be otherwe e1ttl.d ia party s&ka
dsned. People sg Supervisors Of Dutch.ss Hi 80 S.
. heh We ieAtI has any other remedy the writ does nct
24h Y, ia ~.
not however propose PIT the decision Of ,h. %
these technical r0uBds because upon the merits do uoH
think toe rsator entitled to the wit.
When the Controller paid tho money. raised and spps-
patedf the OF these officers to enohe person.
such hsd been appointed to the office the place a
.hs rrlLoI by The person. who had been sppomed a. Com
snd the duties oft The restor beng removed
the duties
These Commssoness then acting under color Of e made
we einoVs and their act, as officers Dc Jaee
whe IA the actual discharge Of the duties OF the Once are
valid far as the pub &c tnd persons hsvEs
tboys I'D e' + ,5 g9ye ag eI ~ a S
uinterisl oieer 10 sdudge the the Commission
elected Commissioners within the and in the scas
Msin,ry sgt Tsner J. R. i2s So an individual coming
into Office by color Of appointment Is oeeer de det
uu he i. removed although be conceded that h ecios
or appointment Illegal Wilcox asL Smith, Wend-
In tie People at s.esrn, SHIN. &C. Bronson j. eys b
regard TO this questions Having tits color Of title, hs yosi
ON the baong for Clerk aud int b. conceded he not a
NJ us JSs, sI as woe wa. no. az iD'ouss ;
persons. Nor could the til. Of these Deputy Tax Cois-
wend., 4sl.
For these reasons think It very apparent that the Conrs
Ter had right and So had power to institute "
curry into the legality OF their appointment 70 the par
ac in office. and they discharged the duties Il tbs cno9
dow 70 The time when the old Commissioners restores
to Office If he had refused the payment Of their salaries. th
Court woad have granted msndamu. to compel H. uaors
especially after the General Term mad decided that the new
Comnissionrrs were rightfuly in Office
his Is the Of claiming continue in ofncs
after the term has PRED who has occupied Office With
sny appointment and holding actual color q
and although lie may continue to exercise the duties he as
right the compensation In such application
to compel payment Of the salary properly be denied
People art. Tierancs. sAbb, p 3ss.
The Controller then bOund 10 refuse payment 70
these officer. while they dischsrng the duties Ct their
Office and until the new Commissioner were restored =
their Offices "a Commissioners OF Taxes and As.smeDt
he liable for any msppropia,ons Of the funds -
paid and ground for the argument that the moneys
raised by and for purpose be
can however good reason why. after the notice
served by the Tax Commissioners upon him. the Contos
should refuse pay the subsequent sccrns salary Thea
notice contained the names Of the persons who were Deputy
then bound recognize them duly appointed by the Com
missonerr who wrr. lawfully entitled to he ofce.
For thrse OF the opinion that s application
action san the parties who have received the 10
hs any rs to recover any salary during the period they
Order appealed om should be affirmed but without rr-o-
dice Application Special Term # the Controller
ro.uss payment siter August, 1903
BARNARD. j. Dinea.!ng: The reaor uskes 8 comp'sss
title the relief he asks for He wss prior June, 1864
y appointed Deputy Tax Commissioner Of the City and
County Of NewYork, and he has not since been removed
Hi. salary has been fixed in the and for the smOunt
provided by law Tie money for tie ssy the person who
nsEtluly entitled this particular cihcs bss been paid
treasury. and been paid 10 the resor 10
made IL, duty Of the Controller to paw the tout Of
comrel the performance OF thu duty by him u dicu 70
nov defense be made to the grAntas Of this wrs
with es facts remaining unquesoned by tie respondent
b., such defence Is ade upon the facts In the papers,
On the 5th day Of May 1904 the Controller believing tbsa
he had tie power b. law 20 do appointed two new Counts
sone OF IaIes and Asss.men and rearpo.ued one in The
places ,ho.. who then held the office these Couns-
Jne appointed Deputies In the place Of those who
pointed by the old Coz mi,sioner including the resor
upon the duties Of their several Offices and Continued perform
ing the for considerable portion Of the time o which
the Controller declared rul and void By the Court ef APP
and the old Commissioners, 80 removed were reins.e1
by Judgment Of that Court with gh the emoiIens Of
the Office during the time they had been displaced That the
Controller paid TO the sppontees Of the new Commissioners
tbs asrie, belonging to the Office aud that therefore,
there is no money in the treasury applicable to the
hf,e questions, Fist, Were these Commissioners and
their deputie. de faeso ohcersi Second; II they
were wha, defense does that feet furnish to the Controller 10
the present and Third VIVA effect has il relatora
claim that there ars msny cases 10 ding tie acts
tide good the public and third persons who have
interest the act done but examination Of these c~sss
Coias & Johnson r., so he'd thai the acts Of Coans
Oners Of Highways. day elected, could not be coser4y
saed by Town Clerk because they had not taken the oath
office. In McKins,ry set Tanner 70 }. r. 30 10 only
decided that defendant suit before ls,ice OF The
Peace duly elected could make ue that the Justos
VS.. munster OF the gospel The cas-. o. WleoH ss smith
IS Wendell 23 ac.iOn Of espass constable
who wa, protected by his execution, upoB proof that the
Justice had acted such and hst he had color " title. The
Of The People ephens decides that certificate
Of the OF an election gives color OF night to an
Office which gh: could not be ssaied cols'eray None
show these Commissioners to have bad color Of
tile In The People ag Conovef ~ Barbour 205 1t decided
that when Governor had power TO MI vacancy IN
Office he could beow the Outward signs and 81
the Office and tina; officer appointed by him could no, be
said IN office by Of title, aud Ministerial onceg
protected by the warrant OF such officer As TO the
1u.onf they tGeto officers does that pro-
lection Of ministerial agents Of de dee officers that the
night the particular Office cannot be led except by d.
acon. There is such here Salary aud ee9
incident TO the e and not 10 the colorado possession Of
Controller va, which could have in .ue before
psyuent them. People Treman 8Aboott. 35s These
not de Jaetc officers, and the Conroues
could have defended himself from payment 20 the %
10 tho office But finally assuming these Coninisssn-
to been dc feo officers and that defendant woad
protected his them against the city what
has do with REALTORS claim He is the de Ere officer
destroy b. night. The money him BY the cy paid
into treasury he seeks from the tressnry, and not from
The Controller Il defense g. bis c.si for the Con-
trosI has made mistake and bas pail It 20 The
wrong pcror The Controller could do act 70 des'rcy
rsos Claim to mony in the for his payments
hi. As TO Lin, the u yet in the
treasury These consequences think legally flow from the
decision the Court of Appeals No strongly
convinced than Of the power Of the Controller 70 maze
the appointment Of the Tax Commissioner bl has besD
decided otherwise by the highest Court and my duty
accept the decision therefore think that the ofdef Shouts
be reversed, with costs
p,;ladeIuhia Cattle Market.