New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-06-05
IN INTERESTING LEGAL QUESTION:

THE MEANING or rUE TERM "OrrICER' ARGUED
BEFORE THE COURT OF APPEALs N SUIT or
THOMAS NELIIGAN AGAINST TIE CITY OF NEW
YORK.
ALBANY June A question of cOnsidera-
bic In terest TO persons cmpOyed IN the different depart
ments Of the NowYorS City Government. and in fact TO
all holding government positions throughout the country
was argued today in the Court Of Appeals. Ii turned
chiefly on the point, "What constitutes public ocerl
the decision in the will auhoritatively settle
that question Thomas Nrllignn appointed clerk Of
the Board Of Aldermen of the City OF NewYOr. by the
clerk Of the Council pursuant 20 resolution Of
the Common COupcil 10 that effect. He brought suit
against the Gay OF NewYork for balance Of salary due
him as such clerk fer the - three months OF 1871 ard
recovered Judgment at the special and General Terms OF
the Court Common Pleas. The brought here
by the city appeal.
Mr.. Dean who represented the city, argued to-day,
that the Judgment Of tie court below erroneous, be-
cause the time the plaintiff wa appointed the Com
Council and heads Of Departments were prohibited
by an act OF the Led-ldurc from creating any new
ofces that the plaintiff took oath OF office and that
il the act did not rearh the paintih IL was utterly VOID
OF meaning ard force.
william :. Mcnamara. counsel FOR plaintiff. contenced
nat tine eli had failed the question properly by
not getting mp the pleading but waving the tech
nicality. he argued tina, the words at the end
Of tho prohibitory act. except as provided
power to the Common Council The plaintiffs
position az clerk not an office He was
merely a emplOy6 to perform certain SPECIFIC duties
without anv specified term. subject To removal ar any
moment IN Office, strictly spe King n distinguished
from a mere employing must Lave ler1anent iurd-
ton and ii 1ed term. cOltalH- duties ana Official anu
legal Spou ,lhtrs. An office Wa duty, charge,
trust exercised for public purpose. Ii was the iunc-
exercises duties he performs tiat makes an
officer The respondent had nothing to do WIN the pun
lie lie employed TO index books; he had none OF
rhe attributes Of power and exercised no authority All
officer exercises some political function of the govern
ment he must discharge somo independent duties.
public employ mcnt that was orca7"nil anu
in support oi this meaning OF the term Oheer ana
analvLrd the charters Of the city TO show that the lrgs
lature rccoc distinction between clerks ana 0c,rs
ia IL various .er!cns II The construction put upon the
prohbitor, act by the APPELLANT was correct IN claiming
that all clerks in the City a0tenHent were ohters, ne
warned them that the large number 81 additional Clerks
that were cnpIOved the Corporation Counsel and CON
trollcr since 1870 had il ,al appointments, ana that
the increase Of salary OF The counsel VINO represented me
cry present ca-e-wllci Wds made since IroJ,
bv the head OF the Law Departing nt-wS also
ple gaI because II would come wiihln tho
proyison OF the sam0 act IL w?s unnecessary Tor
the Legislature ~ pass act prohibiting the common
C"unrl rom creating a new Office. the state
Constitution already prohibited 1t. Nor was II cosstehs
with ANY reasonable theory OF government TO claim that
the Legislature meant ncddle with the employees OF
the Common Council The Legislature gave the 'otn-
unn Gnunc the whole control the departments or
fbe civ Government IT. streets and moneys and was
appo ing Z, li,.re clerk. II the plaintiff was not APP
pointed gu Oice 1t WAS not necessary Tor MN 10 ttAe
the oath or Office.
Tho Dc, sion of the Court reserved.