New-York tribune., 1870-04-16
THE COURTS.
SUPREME CoURT-sPEcIAL TERN.

The Croton Aquednct Contr0rerTsfTsD PEI DECISION t
Judge Brady in Jdcor 9 ne Retdtor-Ihe LeoS & 80 'f m
giving his decision favor Of the reator John Brad
lev in the controversy TO the Presidency OF the Croton
Aenednct Board has delivered the following decision
The only embarrassment which have felt In disposlng
OF tho proceeding arises from the apparent conflict he
c"grt Of fng SpPess and the order directing new
trial. These opinions refer to the act .,,,or OF
ity conferred by it, and 70 concede the existence
Of an Office known as the President OF the Croton
neu' iGn OF issS Nevsrtheess the act Of 1861 under
which the defendant claims, is declared
and his right 10 the office unassailable. Inc Iaet
to S"die'' the adoption Of the Constitution Of sis
on the former trial. and the relat0r having been advised
OF decision adverse to him. applied for an ortr chang
order for trial basing such application solely upon
the allegation that II an opportunity were 3ered nm ne ne
the Constitution OF 1916. The order was granted Inc
opinions delivered in the Court OF Appeals IL must De
referred to made and either OF the propositions
must my Judgment be adopted in reference " That
FIRST That the fact referred TO not having been cstab
shed, the Court had 10 right to consider tho question
Second That the Judgment pronounced by the Court,
and should be modified TO leave the fact aud ques
tiOn OPEN III the application for the ordef drecLHs
row fral had been general, the conclusions would De
ustifabie that the Court had granted it upon the prne
pie that the case not one which they assumed
that other facts proved which would chanse s
legal aspect but il not was predcatcd on the aOy
reaor prove the single fact stated and tho OPP
posing aldayt Of Mr. March went at Length INTO con
sidcraton OF the charge that the question Wnetr In
existing office of President Of the CrUton Aqeduct boaid
mentioned in the complaint was not an oco eH-
ting in substance and the time OF tho adoption
OF the Constitution Of 1886 was 5pecDcay Tbeu DcoIo
that Cout on tie hearing the appeal aud submitted to
that Court by both sdeS without objection from either.
Having arrived at this result the decision or tho Court
of hueals made upop the appea herein far IL re-
atcs to the question which presented as the additional
found becomes too uncertain 10 require from tls
rpa i
considered that General Term Of this Court has pro
that the decision OF the General Term is so al
fected by the determination made BY the Court
trolling authority; and, looking at the question as
notS, think the act Of 1867 Is IN .,
the following adjudcatoRs to sustain that propOsllon:
The People agt. Draper, Dewey ast The Mayer 20 \. T.
Reports 49i: The People agt Raymond 81 y Y Reports
Aldermen and COmmOnalty to organize departmeht
with fun powers for the management of the Croton
water Works and the distribution of water, Ia addition
TO the authority conferred, TO pass such bylaws
for the preservation and protection of all or
any OF The works connected with the supply
water and the Department aud Office OF President
thereof created under such authority ana c9hun
ued utn after the adoption Of the Constitution OF loiO
The fifteenth section of the to amend the charter oi
the City OF New York passed in l6i9 aws OF lo49 p
2s is substantially repetition of those provisions and
the act Of the Legislature OF the same year (aws OF
1si9 p. 53) is but formal and particular reeai
of the powers and duties involved and conferred
The President Of the CrOtOn Aqueduct Department
was an officer within the authority given by
the act OF 1912, and, having been designated
by ordinance under that act, the position was an ounce
created by act of the II gsature. IL was not destroyed
by act of l849 changed by its provisions thaJ s
identity lost Ii continued and was recognized Dy
that act and extended by it, II Is not enough TO take
case the provisions OF the Constitution that lne
uaIies of officers existing when the COnSuLutlDn WAS
adopted alerward changed by an act or the Lels
ture or that their functions are cOloraDiy mOdih,u
DeniO j. gt The People agt. Draper, supri Ana the
enlargement anp1catOu of duties BY act OF me Legs
laturc relating the subject imposed upon an Ccc
continued in purpose and by name VIII not nave sch ~
effect within the principle Of that case IT. may Dc ealu
in this case said in DeyOy aga. Ihe Mayor, Sup1u:
"Therc has becn however. no sub tH1'aI - a. -
OF Official title In the functions ana dltes vi no
Office" II il the In general design, the same IN
general scope OF authority and the same IN us oeSts
when ordained under the act OF 1872 Dy
the Mayor Aldermen and Commonaty that was ana Is
local Office does admit of doubt The object OF
the legislation which upon the subject in cOnnec-
tion with which tho Office designated, and as a
part OF the machinery by which that object was to be
cOnsummated to supply the City of Newly lork WITH
ring power were for that purpose. The Board
created was local and its President local officer
The authorities referred abundanty sustain the prop
ositOn that such office cannot be controlled by such
an act as that of 1851. thus generally stated my
views but yet think with sufficient particularly to eN-
press the reasons which have influenced and the con-
cusions which have arrived. think the relator en-
titled TO Judgment. ~
Abm Il. Lawrence ir. and John X Porter for reator;
John sOssOn and l.. H. Marsh for respondent.