New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1889-05-09
TAMMANY'S MAN ON TOP.
THOMAS f; GILRoY GUSTS D. LOwBEB
SMITH.

BE RECOGNIZED by THE OTHER
NEUTRALITY-SUSPICIOUS. +,
MARTIN APPOINTED
DEPUTY.
Judge Barrett yesterday handed down MS ue-
cision in the case OF Thomas I. Gliroy ds"inoV
ID. Lowber Smith, involving the vltai queSU'on
of which Of the contestants was the esaI OoA
missioner Of the Department OF Puone noENS'
II was speedily known that Mr.. Glnoy n"o "on
and that the Judge had signed the oruer fepui,
ing Mr. Smith to turn over the once anu reeolNS
to Mr. Gilroy, and had also signed an a'eE
writ of commitment to Ludlow Street jan al
case MIR Smith refused to obey the mandate OF
,ha Co,,,, w Bourke Cochran and William Fl.
Clark. of Mr., Gilroys counsel placed the oruer
and writ in the hands of Under-Sherif John b.
sexton and Order-of-Arrest Clerk bernard E.
Martin, with the Judges inSuuc"oH'
service and arrest IL necessary.
D,n ,,,.narations had been made by Shenn
r1achr in antjcipaton OF the Judges decision, ana
fortv ahle-bodied deputies had been detained iof
nossible service They accompanied Messrs' oeAVon
and Martin. and Mr. Clark went along 70 interpret
tho Iaw on doubtful points. The posse soon
.oaohna ,ba Denarttnent Of Public Works Their
,rrsard march was not opposed, and they were
,.ha,od into the office of the Commissioner, where
Mr. Smith sat calmly smoking a cigar. mr
Gilrov with Messrs. Carter and Cochran, had
closely followed the procession to No. 81 Cham-
hsrsst and was already within the building
r. ,yas not room in the Commissioners office
70, the pntire crowd, and those who could not get
inside stood in the ante-rooms and stairways.
ACCEPTING THE INEVITABLE.
NJ Smith seemed somewhat surprised by the
multitude of his visitors. but recovered himself
- Wall gentlemen. what
| do for your
Mr. Clark, who carried most of the legal docu-
ro.nts handed to Mr.. Smith Judge Barretts
order, which the hold-oyer' Commissioner read
carefully.
Il suppose that settles it, he said. Where
is Mr.. Gilroy2'
Mayor Grants appontee was soon found. and
on entering the Office cordially greeted oy NIT
Smith In reply TO Mr.. Gilroys formal de-
nand. Mr. Smith replied that in his opinion lhe
decision Of the Court must lie obeycd, anG TINT
he uould turn over the office 10 Sir Gilroy with 10
further objection. He handed the key MS
desk and OF his Office door TO his success 4, ana
taking his hat and overcoat babe the assembly
good-day.
Mr.. Gilroy and MIR. Clark passed through the
several bureaus and took formal possession m"st
Of the old employees congratulated Mr. Ullroy ana
assured him that they were glad that ne hau
succsedcd The new Commissioners Office was
visited oil day by o constant string OF Vlsi'orS'
prominent Tammany men being In the MAJORITY
N CONGRATULATE the successful competitor.
Ex-Commissioner Smith, with James W. Boyle
and T. IsfFin Kellogg, visited his counsel ln the
Mutual Life Building, TO arrange IVr n s.euULns
QUO warranto proceedings before the AVVorheS-
General
THE JUDGES DECISION.
~, ~, l.; lie decision states the case as
follows: 49,. ,.o.oo. month tho com.
nlaInant Gilroy, was appointed by mayor "Id'' " VI"
office OF Commissioner Of Public works Tor tne "r Va
,on, wears from the first day of May. 1883 Win uS
,rnointment Mr. Gilroy comes before me ana eonSihS
mat the respondent Smith who previously heu ~
mice and whose term &c is claimed eSpfeu On INC ~
day OF May refused TO deliver over 70 MN 'e o
and papers appertnIng the Office. Upon THIS com
n,ant Mr Giroy under the provisions Of the keN'ssu
statutes entitled proceedings 70 compel the oe'ef'
Of books and papers by public oncefs 70 Sei ouS
eessorsH asks for q warrant 10 compel Saeh oeuVuy
NJ Gi,roy presents clean and perfect tue uhoer inc
III, ,e,,er n, Section 1o6 the Consolidation ACT
The relevant part that section reads a. foIo"s
terms OF oHce Of all such heads OF uep@f.hiehS o'"
persons whensoever actually appointed, snSl U'Bn'
nm the first day Of May in the year In Which the "
=; m.s 81 their predecessors expire but the Controller
Fermentation Counsel and Commissioner OF PUBIC "oIhs
10 be appointed the expiration OF the terms Oh oV
o, the present incumbent in December 1884 saa hou
their Offices until four years rom VIC "i'S N~' - '
succeeding such month";
Under this provision Commissioner OF PuOhc WORKS
gas appointed in December. 1854 lie was ~ Spp'in'0N
Tor the precise specified In the act namely, TOT i0u
vaa,s from the nrst day Of May succeeding Deeemoef
ss1that f. for four years from May 1, 1885 Section
81 OF the act commands that person appointed 70
any Office under the city shall receive eefunc"Ve oi
,pointent designating the term for which such person
has been appointed. This complied with, ana the
spesiaed term was duly embodied in the certificate
mus the act was fully executed The appointment
was made express direction ana Tor the Term "
n,eily DESIGNATED That expired on the hrst Gay
a, the nresent month and IL would seem to be Demon
straed that Mr. Smiths unexpIed term then enoeo ana
Mr. Gllroys term ct once commenced
REVIEWING MR.. SMITHS CLAIM.
The Judge states Mr. Smiths claim as follows:
M, Smith seeks 10 break of this statutory
seouenee by an attack upon tile low itself He says In
effect that the Legislature erred when speaking OF the
Controller Corporation Counsel and Commissioner OF
Public Works Is officers 'to be appointed on the ex
prstion Of the term ONCE Of the present incumbent
Ia December, 1884, This he contends. leSiS-
latve mistake. The Of onlee of the then ineuTn
bents not 10 expire IN December 1884. There was
no Corporation Counsel Commissioner OF Public Works
70 be appointed in December, 1884 Ergo the appoint
fnent under the void the term inaugurated
BIZ the void and the line Of Commissioners hold
ing since then precise compliance with the act were
simple oSeers de facto under color Of title Looking for
de lure ne goes behind provision Of
the Consolidated oct (thus ignored invalid and In his
smdayit AYERS under the Of 1878 the terms
of once the Corporation Counsel and Commissioner OF
Public Works expired the first day Of May, 1888 ;
that the next term 70 which one appointed, ex
pired May l. 1887 and that the present term to which
no one was appointed until December a. 1885, when
he Smith was appointed enjoy what left Of IT,
expires May 1. 1891"
CLOSING ARGUMENTS.
Justice Barrett says that the question presented
by . this somewhat grotcsque reasoning is
whether the right OF Mr.. Gilroy is free from rea-
sonable doubt, and he holds that IL is. He de-