New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1884-12-22
MIR. MASON'S APPLICATION DENIED
THE STATUTES AND TIE POLICE BOARD.
THE ATToRSEY-oENgRAL's REASONS FOR DECLINING
TO BRING SUIT AGAINST MR. NcLAVE.

TO BRING SUIT AGAINST Mr.. McLAVE'
ALBANY Dec. 81 The Attorney Gencrai mas
Just completed his opinion in tho matter OF inc
ton OF Joel W. Mason, who was succccdch III 'ho ~
OF Police Commissioners Of New-iork by hr my
The Attorney General says in tho course OF ms @
that under the provisions Sections lois ana lSo Vi
the Code OF Civil Procedure. the Attorney n"y
maintain an action upon his own Information VI IT.
the complaint OF aprivate individual as"nS' ' P'
who usurps, intrudes into or unlawiuIly holuS !"
cses within the state franchise or pubic ONCE c'i "a
military, or office in Il domestic corpor"'oh' az"
condition OF bringing such action the rclaor OF person
interested in the controversy must give sasacto9
cury to indemnify the people OF the State against no
costs or expenses OF suit .
In order 10 warrant such action the part of the At
torney General he ought to be able TO ahr' with ~
least some degree confidence that the person proceed
cd AGAINST has usrrped and intruded into or is unaw
fully holding public Office within the STATE il !. ~
proper TO bring such action for the purpose OF Se's
and determining dobatablc md mooted questions grow
ing out OF snguary vague and conflicting PROVISIONS Vi
the charter Of the City OF York, 1t would DC easy
enough TO find sufficient and Justification Tor inc
proceedings But this tho Attorney General thinks,
voud not be n proper and legitimate exercise OF the
power given By the stat ute 1t should be mao 10
appear with reasonable degree Of certainty that 'ho
party In OF the Office is In the wrong ana tha
suit TO Gust him would probably be successful or hefe
should exist considerations of public convenience or pup
lie safety which would render II important to settle ana
determine the provisions OF tho law out Of which the DIS
pute arises.
The declaration OF the statute that the term OF once
should bc six years and that II would begin on tho ISL
day OF May and the general provision that any person
who shall be appointed to Ill vacancy occurring by
reason OF the expiration Of of commissioner
or from any other cause shall hold his Office for the uex
prcd term Of his predecessor This last provision OF 'Ae
twonynfth section IS expressed in LANGUAGE not very
clear satisfactory but apparent after all tha o
raconcy there mentioned the condition OF things e1
listing by reason Of the expiration Of six years. not an ac
tua or absolute vacancy but vacancy IN the sense mat
the appointing had right TO act and dsplace the
person IN possession Of the office ana appoint another TO
succeed him Tie language vacancy occurring by fea-
son ~ the expiration OF the torn Of Office OF any oNcor
or from any other cansc"is comprehensive enouFh 10
cover al possible cases of vacancy mus II VIII I've ad-
nited tn n commissioners dc or rosign orr removed
m are carre s successot wou'd oiy 30 tppoin'ei for
tc tsWaHet 81 ms TN xrliti term II tine ina e
nebtss. hN, refH5n vNd sNili 10 H'roirci % '''i
fvsA 4 {aeaNe{ fN ABi Ne 6',lce f6t 'ht tHceiit
t-V ~ VA NfAresssaf" Y Hrttftr''t c6N'fr
tsH8a \ 55ag,el tH't NJ s's'a '.sl 49,.
G5.l f3at RI fit..ya rs4i'iifI iat-' KIN. Mid'ss'f
nlW 4At IAN sA9pip NN cn>sf"prN
meappageul payaiQy mHat Nr eA9'Hue' W F.'e9eNls
10 Tue other phases % iesisl4t'e "'er1 "''p ''"
toned, aud II must Do held ,Aat ihe e2pFesaion
' vacancy occurring by reason OF the expiration 81 %
term" means, not actual want Of an Incumbent but
The condition Of the Office when an appoin'meat Is per-
me statute provides that the mere expiration Of me
term of six years shall not work vacancy. IN DINER
words II must bo construed 10 mean that any person
who shall DE appointed TO III vacancy ~ Nh once S
occupied 10y an incumbent whose regular Term uI vH,e
has xlircl shah hold office for tie remainder oi ne
term enero4ehed np2p ny M pTe9Sea'Gf TP M fon
Ing over Ii IL sh'nl ue sAii 'h3I i' !, ~ ,nri ~ ,,
strnction that gives any meaning whacNeT 10 nne pr"
If it be true that tho appointment of q ,accessoc
his term Is exception and the ouy exception. - lno
general rule laid down lay the statute mat a." o4,l''s
made ont Of their regular order hold good only Tor ne
remainder Of WeXpired term. II might Follow win
l7 Win as 10 nafy the itcnt Of the Legislature
hat only man should go out OF once ~ any on
year and that the majority OF the HotrI sh"'u Ie on"
GERS of experience who had seen service IN tie QcU
mont In fact, tho contention IN behalf OF Mr. Mason,
and The construction he ASK, TO he ply upon ne statute,
would lead this result II Is not dicut io Imagine
case where all tho comm soneIs m sht be holding over
after the expiration OF their terms Il the constitution
contendcd for by Mr. Mason he a correct
o%T 'heI and tho s' Board ''' Of dcrmcn con-
lrn ON the same day four Commissonefs who
would each hold Office for six years. thus creating
board, all OF whom woald go out OF Office Oh the same
THE MEANING OF TIE LEGISLATURE.
There would lie an absolute notification Of the clear
intent Of the Legislature, and construction which
would lead to such "a result should it be adopted. Tho
Legislature meant what IL said when it declared that tho
term of Office should be six years that when oomus
sioner holds over after the expiration of his term lie
enoroachos upon another term of STA years and mat
be appointed for the remainder oi that term ehtludrhtd
upon and Or no longer period. Upon this construction
III Inc statute the ATTORNEY -GeueIa writes that hc
not affirm that Mr. MoClNo has usurpai, intiudtt Nib
OF unawuliy holds tho uioo OF Police tumu- sl0ntfi
nor can II hr said, under these circumstances, Win ANY
degree OF confidence, thai aliilauu h behalf az lAu
ftaie Ia Gust him from the olre would hH successful
These general uu,lusiOus alu reached without any
reference ~ the Consolidation apt at Lose Certainly
fu ia