The New York Herald Newspaper, May 26, 1857, Page 1

WHOLE NO. 1573. ne nes OUR CITY TROUBLES. perenne. The Police Question in the Supreme Court and Common Council. Opinioas of Judges Roosevelt, -Iditchell and Peabody. ‘TWE CASE T@ GO TO THE COURT OF APPEALS, nannnnnnes THE MANPAMUS AGAINST JUDGE RUSSELL ann MIPORTANT MESSAGE OF MAYOR WOOD, NEW DAY AND SIGHT WATCH, a 7 * &e., &e. ‘The thirty-eight black republican Cossacks of Governor King, billetéd'dpéw the municipal prosperity of this city bya hungry partivan Legislature, make but small pro- gress in their ‘Campaign against the chartered rights of the oy of New York. The noise, mischief, and nefarious Character & their proceedings have, indeed, created ah slrandantsiarm and excitement, but the chance of their gajwing any practical foothold rapidly reaches the certainty of their reduction toa well circumscribed pre- tepce. Tre more pertinacions and dangerous squad—the Police Gemmissitners—encountered two materials checks Yesterdey. “The members of that Board had in the most ‘unecrupulous end selfish manner forced upon the men of ‘the Police Department of the city a movement towards ‘foreatalling tne decision of the Supreme Court of the State— ‘that Board would make them a sort of collateral jury— vend = insist ‘that their roll-call should not only be ‘an expression ef rcadiness for duty in their precincts, but ‘also a diviéon.upon the question as to the constitutionality -of a new and extraordinary act of the Legislature. Today ‘that question divides three ot the sitting Judges of the Supreme Court, and tho strictest construction of the opi- ‘uion which supports the new Board does not actually more ‘than make a technical decision in their favor. ‘The tw6 Boards of Commissioners took no action of an “official naturé in relation to the Police Department, yester- day. Those efflcers and men who had been dismissed from the murtcipal service took formal leave of that ser- ‘vice, and surrendered the city accoutrements, whore they . Sergeant Johns, of the Broadway squad, surrendered his star, &c., and had a» duo receipt ‘therefor at the Chief's office. The new Commission had & anecting, and caused fresh orders to be drawn yp Yor distribution af the station houses, these orders bDeing prepared Upon some relation to the’ deci- the Supreme Court. It would appear from every indication in the bearing of the members of the “Albany commission that they will take their course more in view of an appeal to the Legislature again, eee tare of their bill, ea ey ayy ral of % give up pretty near! of achievin, pe ON, of the pr haat and its ween | and will take their measures with an eye to a call for a special sessi by Gov. jon ‘The action the City Council last night carries the poval of the Beard of aldermen for a chy watch beaks g zation of the police, to a which not only leaves that to be merely @ matior-of a few days celay, but it indicates the close of the entire campaign in its bearings, upon a speedy and payment of the men and the regular Geacioent the municipal from the State organization. Sean eaian LCLY Gaversunens, Thon the pended , decisions, the of the Counci}, and all the other matters which can be regarded ‘es bearing upon the issue, it is evident that the police campsign must now resolve itself into the establish Ment of two independent - <3 me municipal police at the e: ae ie Uhose of the Blate at the expense Ne of the State. Such is the interest wit h the preceedings against the city are regarded Ty ait eto that cach day brings Wmcreased evidence of the tremendous record which is ac- cumoiating in the popular reeentment aginst those who ak. with the enemies of our municipal liberties. Jastevenivg, at another meoting of the citizen volunteers, Beory Wileb, their commander. was summarily me oe ead = ; locred f his stead. ‘Proceedings on tho e ‘dmarked expression of the spirit of the: chizen ro" Junteers, and their determination to stand by the char- tered rights andthe executive officers of the wy. in the of these and mat- present emergency. A full re ters of like bearing will be published to-morrow. Supreme Court—General Term. Present, Judges Mitchell, Roosevelt aud Peabody. ‘The reading of the decisions on the constitutionality of the new Police law attracted a crowded and noticeably io. ‘telligent audience in the Supreme Conrt room yesterday. Judge Mitchell delivered the majority opinion, Jndge Roosevelt the minority, and Judgo Peabody reading his last. The greatest interest was apparently manifested. JUDGE MITCNELL’S OPINION. In the argument of this case there was scarcely any (if any) difference of opinion as to the rules by which the constitution of our State is to be interpreted. The rule under the federal constitution is inapplicable. That instru- ment was framed with the view to confer only certain de- fined and limited powers on the general government. Ge- neral legislative power was not given to Congress, but special powers only, and those carefully enumerated in seventeen subdivisions, This alone would have limited it Qo thoe enumerated powers and such as were necessarily implied from them; but, #0 jealous were the people at that ‘ime of the federal government, that among the ament- ments proposed at the first session of Congress under the ‘constitution, and afterwards adopted, was tbe one declar ing that “ the powers not delegated to the United States by tbe constitution, nor prohibited by it to the States, were ro- served to the States respectively or to the people.”’ The reverse rule a to the State Legislature. There must be some! in which a power of legislation shall reside competent to meet all the varied and changing wants of the community, and unlimited except ‘by such restrictions as may be specially named. He, therefore, who would sustain the power of Congress to do any particular act, must find in the constitation of the Unived States the clause which gives tae power—but when a law is by the State Legislature it is to be med valid, untileome clause im the constitution of the State is poivied out which forbids it. The language of the State constitution leads to the same result. It is that sor the ralt springs, or to give or loan the credit of the State when it is vested in a an in other instances—or it may be im “yy declared that “sheriffs, clerks tng the resister and clerk ‘of tho New York, coroners and district 9 ae the Tegislature of cil ge designate for that par- “by requiring such officers to be cleowd by the authorities, negatived the power of the Legialature to ibe any other mode of election oF a| nteaent; and it would follow, it the officers consideration: low: fot provided for by ais eatedre whone oltiee may hereafter be by_ law, shall be elected ly the people, or appointed as the Legis: i ature irect, This clause expressly ro-establishes in he re tall power to direct ois of oo nent of all oflicers vhese election or appointment is not orovided for by the’ constitution; and of ail other Coerr whose olives «howe be thereafier created by law. 'f the Police Commissi Were are not county oflicers, or if the offices which they Sk Aave been created since the ‘Onsiitution took eect, ANd Aid not exist before, the Logis Mare had unquemi to direct the mode of heir appointment as it saw G!. Whether the law be ox ent or inexpedien’, the judiciary cannot inquire, but it ae all othvw citizens must. Thus far, there ts ity ef opwwion. It was said in the argu- rnsef, Dut not pressed, that the police be appointed so that certain persons be she police for the city of New ore Kinga county, certain and ce; tain othere for Westchostor {was axgued that the police were the act is mot 80—it creates one Motro- consisting of thoe four contigaous ve Commiasioners of Police, wh Now York and Brooklyn, ‘aunhorises the Board to £ 3 i g I ie ; i i I fie z : Ey 32 EELE g F and y: jie: °F F 2 HI EG 3 Fi i Hi 3 3 7 i : 7 i H of the county ef New York is t> determine how po shall be appointed as a quota of the patrol force, to 4 for by said county; the Common Council of Brook - OO a eceey uball be appointed as a quota to ho paid by hat city; the Supervisors of the towns of Kings, except those of ‘Brooklyn, how many shail be appointed as a quota to be paid ged those towns, and the Supervisors: of Richmond and Weetchester, respectively, how many shall be appointed as a quota for those counties, and to be by them respectively, But the whole control or the whole police force, the designation of the per sons to act in any part of the district, and of the number 0 to ast, and the times and places when, is under the control of the Bowrd of Police, and of their Sa- rintendent and other officers appointed by it. Sec. 6. @ district is to be divide into precincts, without regard to county or ward boundaries, and one inspector or captain of police and four sergeants are wo be assigned to such precinet. Sec. 10. They may be assigned from day t day or from month to month; they are not appoluted for @ particular precinct ; they (like military olfigers) are. #s- 8)gned to a parti sular station, to remain there ouly so long as the head of the department may see fit. Each county ig to furnish its quota of the fund necessary to pay the body of police, but is not to pay it to or for apy particular part of that body, but it all passes into the treasnry of tho State, and is thence to be disbursed for the general pur- poses of the act, Sec, 27. It is true that the duties to be performed by this police force have heretofore beea por- formed through ceunty,or town,jor ward oilicers. Bat there is pothing in the constitution which prevents the 1- gepsare in its sound ciscretion from transferring the per. formance of those particular duties from one class of officers to another. At common lay, and at the time of the adoption of this constitutien, in mos, if not all the counties, the Sheriff was, in some sensé, head of the ae and it was bis special duty to preserve the peace. logis an officer who is recoguized by the constitution, and ‘whose election is there specially provided for, yet that part of his duties could ungue madly be taken from him and be performed by othere, ae by the Mayor of a city, or the or onpcle. Bie) does the on ieiod Sere necesrarily imply that duties appertaininy e law aa it then mood. to @ particulay office, sbouid feed remain either as srpertananl to that oflice, or to some other office of end inited local extent. The office of Sheriff could not oy of ali its duties, and thore duties be all transferred to another officer, but this implied prohibisien applies ag well to a new officer within the same county as to a new officer whose power should extend over teveral counties. In neither case could atransfer be made of all the duties; and it is as much within the competency of the Legislature to make @ transfer of those dutics to officers who shall bave control over ecveral counties, a3 itis to make jt to one who sball be limited toa le. county, The lap; e of constitution was not adopted by the framers of the constituiion without discrimination ‘ag to the words they used. It is, that ‘all county officers —all city, town and village officers,” shall be elected or , &o., by the local Itia not that all ties theretofore performed by those officers shail, be thereafter performed by county officers. But knowing and intending that the Legislature should regulate the du- ties of oflicers as it shouid find expedient from time to time, the framers of the cons :itution left to the Legislature uprestrained power in that respeci. It might be that the conductors of railroads would become so negligent of the safety+ of passengers that fines and penalties would be- come necesgar) to have a public officer accompany each train to see that the needful regulations were observed. It might also be that the property carried on those roads would be se frequently stolen that it would be expedient to have an officer attend cach freight train. 80, It would become the duty of the Legislature to afford that means of protection to the citizen and his proper- ty; and the most effectual means of accomplishing it might be to organize a police force, to be appuiuted by commissiovers, with superintendenta under them; and it would be necessary to appoint them not for a single county, nor by the local authorities, but by some body of men who should nave contr i over ‘tae whole route of the road, as per the Erie road, or our great Central road, or the Mudeon river road, of the Harem and Albany rou. A eimilar necessity might arise on our canals, River thieves on the waters around and {n the vicinity of the city of New York have long been complained of. They may extend their — fons (and itis said that they have) to the neighboring counties. An ordinary solice furce is ipsufficion’ against them. ‘The most eilicient means to overcome them might be a foree of meu sppointed for New York and its neighboring counties, with one bead and equal power in every part of the district. The consti- tution shows no design to cripple ths Legislature of its ere. of aifording such a remedy. — In ail taese cases the force would be, aa this is, a police force; yet it would not ‘be unconstitutional, although the officers were not appoint- ed for or by local authorities. The poor were at oae tine su gported by towns, the overseers elected or appointed for those towns. That responsibility was ia some cases shifted from the sejarate towns to the whole county. As yetit has not ‘been extended further as a general rule. Can it be that if it should become expedient in some ipstances toconstitute to or more counties into one district, for the poor of those counties and to have the overseers elected or Fp een for the whole district, this could not be done? If the power may be exercised in any of these cases, then officers—for new districts com posing several counties—i ‘ming duties formerly may be elected by the tore may direct. Then officers for districts not before known, although perform ing duties formerly performed by ¢o inty or town officers, may also be appointed as tho islature has directed. The illustrations that have been Pme veg 4 (and more might be furnishe@yand others are re! to in the defend. Ant’s points in acts already pareed) show that there were g00d reasons why this power should have been allowed to the Legislature, and that it is thus either the probable intent of the constitutor—and as the power is within the express and liberal words of the constitation—which ap- plies to al! offices therein created, and this office was there- after created; it follows that the letter of the constitution concur in sustaining the law now under consideration, The journal of the convention which framed the present constitution, and the address made by the members of that body, have been referred to, to prove that a car dinal object of that insurement is “to reduce and decentral ize the pat ronage of the executive government,” and that accordingly, in the language that address, ‘the most im it State officers are made elective by the people of the State, and most of the officers of cities, towns and counties are made elective by the voters of the local they serve.” The address thas speaks of the consti as it is, and refers to i: to show in what instances thig principie is carried out—and speaks of it as a limi not av unlimited, pricciple—it ap plauds the constitution, not fur any implied restraint Which it contained on the power of tho Logiala ture to erect now officers and w coutrol the mode of their appointment, whether by the Governor and Senate, or by districts or localities—but for the clear and unambiguous provisions by which it was ex pressly declared tha} certain officers who were name! in the constitution should be elected or appointed by tho Jocal authorities, is referred to those thus named, and called on the people for approbation of their labors, be cause those special povitious were made, and not under the idea that ete oe for some cases of deoon- tralization they had ‘eby infaged into the constitation a _ which must extend |: to others. They accordingly distinguigh, and in the clause last quoted speak, not of all, but of mbet of the county, town and city offices, and of their being elective. The framers of the coastitation, in specifying the instances to which this principle was ap plied, acted on the wise and contrary rale of the elemental law in particular cases, the effect of which was plain to their perception—not on’ some broad theoretical idea, whore extent with its sequences and results mast be left to time or chance to discover. The appointment of officers for districta smalier than towns or larger than counties they left at large to the Legisiature, in Wee ot caies in a ptr the bors may rely, wi , Upon a re, one part which {+ annually elected: or wit! have the remedy in their own hands at @ succeeding eection. It is said that the law attempts to transfer the police y belonging to the cities of New York and Brooklyn to the new Board of Police— (Sec. 16.) If is di, that would not avoid the whole avt. The section (16th) in which this supposed transfer is made is a distiact one, and may be ejected, and yet the reet of the act be effectual. The case of Warren ve. Tne City of Charlestown, (2 Gray, 181,) states a sensible rule, which is, substantially, that when the parts of an act are'so blended tagethor that the unona- stitutional part cannot be struck out without theroby leaving the act in such a condition that it would defaar the intention. of the Legislature, or when the unconstitutional part was manifestly the very object of the law, there the whale must fall it. So it would follow here, that if all this law be unconstitutional but the part repealing statutes in consistent with it—that repealing clause must fall also. as to property it a Remy unim- the act. Ite great object to ‘and efficient organtzation ot police for the section, however, expressly de y referred to and jing to the ordinances of two cities respectively. If held by those cities under an obligation or for police purposes, it may be acting for the use of of the special term in favor of the de he affirmed with costs, to be paid by the OPINION OF JUDGR PRAAODY. Pranopy, Jvstice.—The claim of the plaintife herein is, that the defendants have usurped the offices of Poli Com nissionerr, and are exercising the powers of those offices in certain territory of the State, In violation of law; and they ask to have them ousted therefrom, by the Judgment of this court. They also ask to have the relator adjudged cutitled to bold the office of such Commissioner, which he did hold antil removed by the usu! ion of de fendanta. ‘The defendants anawer, iat waa! toon oot of the Legislature of the State of New York, passed Apri 16, 1857, entitled “An act to establirh a Motropolitan Po- Hee district, and to provide for the government thereof,” they were, by the Governor, with the consent of the Senate, nted Commissioners of Police, and thereby be- came and still are authorized to the duties eajoine 1 by eatd act. To this anewor plaintifls demur, aod to sustain their demerrer rely on the unconstitationality of the act. They say that the act, in its general reove effect, = Variance with the spirit and purposes of the constita First—That it fe eo in creating a now district or division of the State, unknown to the constitution, for government purpores. Second—That it conflicts with the spirit of decentraliza- tion which pervades the constitation in o@aforring on the Execotive of the State the power of appointing Commis- sioners to these offices, comparatively ja] their character. Third—That the act i# unconatitutional in giving to the use of the (emmiasiopors the public potiog property of the i : Hi i i ag HH : a The ju fendants lator. 3 MORNING EDITION—TUESDAY, MAY 26, 1857. city of New York, which it is said is the private property | of the city, By this act the counties of New York, Kinge, Richmond and Westobester are constituted @ “Metropolitan Lohoe Dee trict,’ and the Governor, with the consent of the Sepate, is autboriged to appoint live comminsioners to the olfloes held by the defendants, whose duty it shall be to wke charge of the polive of gaid district, appoint aad remove members of the corps, and generally \o uke entire control and direction of the adminytration of police throughout the territory constituted sucl police distriot, Thus ths lag | erects, it is raid, @ new govermental district unkuown to the ’fundamental law. fhe constite tion having recogoizoa all the cisil govermontal districts of the State, gave them, it is argued, perpetuity by itd sanction, and by nosessary impllcat Lagisiature to crect for any purpose of © permanent districts unknown to it, The coms recognive certain governmonial :dirtric shen existing. It does this incidentally, more than once. Tt does no more thn recognise them, howev It does wet | ct, or expressty sanction them, They o- | constitution and were net disturbed by it, ed to remain as they bad been heretoiore The eon: tion, therefore, has bad nothing to do with them or the fact of their existe tently to tolerate them, and per eration of ome of them under | certain circumstances. These distriots are countien, witier, towns and villages. They existed prior to the constitation, and were by it Jest, without other sanction than what may be implied’ trom expressions no more sign'‘tcant Aaa mere reference to them by generic terms la tho dustri- bution of the powers of government. Nothing in the mode of re! noo iivdivatet that they must remaia as they were, or that they may not be altered i thetr form or extent, or that tho territory which then eon- stituted one of these districts a couuty, city, town or village was expectet to continue 0, On the crntrary, as wo rome of them, the po ger to alter them in recognized ia that fandamental jaw; and as to the others, there is no- thing on the fave of that instrument to suggest the impro- priety or impracticability of alter@ions, But suppose that it had enacted, and so created these districts of the extent and proportions they Low possess; and suppose it had gone: further, and ordained that they should remain intact, and as they were made, until altered or abolished by some power of equal digsity with that which onacted them, and that no such alteration had beon made; when for some purpose, to acquire some benefit, or sveid some evil commen to two or three, or four of thom adjacent to each other, they unite, or are united by legisiative enact: ment, for that single purpose—to supply a Want poculiar to that particular section of territory embraced in them; would sush a law be invalid, as violating the sprit of tho constitu tion, by infringing those divisions they recognized in It as existing for general governmental purposes? The four counties embraced in this district are cortainly peculiar, im embracing and Jing contiguous to the great metropo lis of the western hemidyhere. From this circumstance, if for no other, they roust have wants and interests peou- Narto themselves ‘and common to them al!. Their situa- tion in this respect, it is mnt, must call for an ad- ministration of police, which woald bo quite unnecesary and inexpedient in most, and in al! other parts of the State, ‘Tho countids, a8 such, are not dissolved—as governmental departments sanctioned ‘or resoguized by overnment or recogu! ry foe constitution are not violated, but remain in their in- tegrity. A law applicable to the territory ambraced in four of them i# made to supply a want at once common ‘and peculiar te them aloue, of all the State. Indeed, as the constitution recognises the divisiona of the State into counties, ahd ia said thereby to bave sanctioned them, 60 does this act recognise the districts of territory em. braced in these counties respectively as constituting the samo governmental departments as before, and in this reepective it may be said, in some sense, to lend its sanction to their existence and continuation for exist in several contiguous counties—a vi ery for instance, which required legislation for its eservation or management—it weuld haruly ve claimed ‘as is Claimed here) that a legislative enactmont on that subject, applicable to those counties alone, was hostile to the rpirit of the constitution because it was vo applicable to more than one county and less than the whole State, Dut we are unable to see why 1t migbt Lot ba claimed with equal propriety. This act provides @ system of po- lice aominietration for a certain section of the Stats, in which the Legisiature have decided that a peculiar system was required. We see nothing more than this in the act ey to the objection we are pow eonsideriug. The t that the section of country thus provided for lies in one or more counties. or embraces the whole of a county, or more Wan one, Cannot, we think, be important ia de- termining the question raised by thi point. Ttis not pre tended that there is anything expressed in be consutation inconsistent in this respect withthe actin question. Tho claim of the plaintiff i oniy that the coustituuen, ba ing recognized and thereby sanctioned certain governmental divirions, counties, towns, cities and villages, &o , other divisiops tor governmental are inconsistent with its interest, unauthorized, and by implication forbid den by it. ‘Phis ar ent would seem to have more force if the constitation had assumed to divide the Siaw for general porposes of adminictraticn, either by declaring new, oF exprersly ratifying the old districu. It might then be argued with more force that the people, with whom is the sovereign power, by their convention had eutered on that field of duty, and baving established or declared certain divisions of thetr territory, muat be bold to have exhausted the subject by making’or declaring all the divisions they deemed expedient, and that a negative, or restriction on the power of their bumbier servants, the Legislature, was theoce to be inferred. But this they have not done. The constitution does no} enter on that fiel4 of Inbor at all, either to originate divisions or decla those alrealy mate. It does not take up the s treatment, or treat it at all; and the fact that in the distri butiow of powers by it certain powers of loeal administra- tion are couferred in there divisions, aud the divisions in that manner recognized, and perhaps Sanctioned by it, are not sufficient to authorize the inference of a restriction effect Nothing om he context evgpenta « mare tmitet meaning, afd the tree ore too pitin, aad potent, te call for the plainut tit that the are not legally cometiuted fheir argument sesas t the og 46 ailing the eoure validity of the offices, ABs diepubiog Who ir legal exicimmee We 10 .Lit, Bob | Fomed on the argument, What the exidteace of the gffice 8 hot proper!y 1a comtroveray bere, where, for the yurpere of thin ocr om, their existence te admutted, the Pearor'n, @ Uhh jane has elena y bene medly an ewered ip the ons ber jart of this opmon, @ sombertng = ' s the GPS pow! treated rewmting to the terris rial ¢ created hy thes act Bet the dunes whole eultirct matter of the Bon of police perly matters of eo and bende, Rin se ONOtWB! Mus ima wt» im frat of ot Ame it of thos clara of the ar nes of government bar usaally tatrosted to the for reqeone of the inw om pothing in Mipint ation 6 Ach WtO tho COMPTY other diwtrict soveraignty \ more ceneral af DAWG thal the duty of preeerwing its territory, of pene ering Order at ew proviced for Wy chile act, (BL Petere, Loc) 5 Manes 4, 640; 7 Coang. Cring. 184.) The right of ume probe, sud to ;rowowien from the eei)s of neler directly upon the sowereicn power, State tins been aecwc nme! to bemkow thie perform thee ¢oues inaireetty and the Mentality of i Member: or departments, net dima web oF Som ths wast of power 1 ho Mate to 00 8 Genet when, tu ile it pecestary oF expelioat Nor is the duty of the Maw to ite cltivens, any more then the duty of ‘gee individual to another, simply conferring om its departments or aa thority to perform i. If they fail to perform i -y- 4 (of whieh the State alone ts jadge), & is placa Bight, ey the duty, of the State te inter. lere, and direct! ite © bt arm if necessary eaora ite CuiZeDR ab eweton ao reourity which, as 2 compensation fur the watural ri render, and the pecuniary sume subjects ‘an devtaken to guaranty ‘them, law, relating the property of the city in use for purpor @s, it Is HOt necesary to consider. The of the net for tho purpo:es of this eave does net depend at all on the validity of it. that particular featare valid In respect to that provivion, no erga and ts Fo e! < sion, thé re, 1 that the act in question, in its al Teatires, is not repagant to the constitution, gies for the defendants oa the demurrer must be DISSENTING OPINION. Roosrvart, J.+The Legisiature at its last session, urged no doubt by considerations of what was deemed sound public policy, determiaed to make an entire change in the local administration of the city of New York and :bethros adjacent counties, They accordiogly passed an act, the general abject of which is well expressed in its title “ To establish & Police District and to ike for the government .” Aud the question ean the Legislature under te present constitution, by a federative uniou, provide for ‘the government” cities appoit aid of deputies and subordinates: missioners. A ry, in this seeming dicary departinent rince Feitled, Constitutions, it or contracts ; the parties to which sovereignty on the one hand, and the function arres, through thetr oath of They are alo powers of attorney conferring authority but conf ning its exercite, As laws they are supreme—they are the aireet will of the 0, Aud as & cousequen ce, they are higher than the will of the Ce ame en tives. They are a law unto the Legislature as well as the individual citizen. As contrace, therefore, as gations of power and as atasutes higher than acts of bary legislation, (bey are the subjects of judicial Hon and of judicial action. ‘The judges, Woo, are fworn, Sot only to Interpret, but w “support” Might almort say right or wrong. With the wisdom or ex- ed “sl yeaa wlan pp pat’ they are con A tenuy 4 ienpaees to eeek out the it found to give it effet, even if it become rule a statate, lucase of conflict one course the w the higher jaw with the constitution so with Court has nothing to do with its fiuess, question, in either aspect, is mot one of justice, expediency or abstract right, On all those coustderations the decision of the in the constitution and of the except to the ballot box. ‘The Leg farther. They raised a question of coaatitational compe- teney, and é¢ecided it, as they had a right to the first instance, ia their own favor, but subject to appeal both to the ballet and the bench. Such an appeal is now taken, It is in the game of the people of the State, aad i4 addressed to the Sup speaking as be bad that the act is an unco from waking any other divisions not in their own nature posits ely consistent with those existing. But we are una le, ip any view of the subject, to consider this act as cre- ating a new governmental district of the character which would be inconsistent with any general division of the Thowe divisions are general, aod for general go A county, for instance, isa quasi State. vernmontal purpoves. corporation, and, as such, has many powers ‘of self go- verum pt. ‘Ibis one of several divisions of the same cua- il of which taken together make ap apd compose They are members, so to speak, of the State. is an attribute or feature of the State. It has, by classes of powers. Many of the attributes of sovereignty by our Jaw, are vested in counties as such, Tho division of State int» counties is not for any one purpore, or any cular number or classes of purposes, This tor the g parpoees of govprnment. The origin and history of th: governmental division, as well as modora legislation, have given to the term a definite meaning, and wherever the jurisprudence of a country is derived from the common law, the term is believed to be in familiar use, and to have a signiication very similar tw that it has with us. This stamnte, on the contrary, so far from creating any Dew governmental divirion ef the State for genera. purposes, (which it is sald the Legislature tx not autho rized to do,) merely enacts a law on one particular sub j eb, for a district of territory embraced in foor counties, Umiting ite operation to that district. If, from the gene ral spirit of the cunstitulion, & negative is to be implied, oa tbe power of the Logisiature to make new goverumental departments, or divisions of she State, the principle tas n> Application to @ case like this. ‘This act is not ¥ hia ths ‘spb it of the argument on that mubject The district creat +d by It is but a section of territory of the State designated and distingniehed from. ite other territory for the purpose of the application of this law, aud in no just eeuse a general governmental diet i6t, which is the oply kind of division to which the reasoning of the plaintit is applicable. Tho recend objection to the constitu: of the aw— thet based on the idea that vesting power of ap Poiptwent to there in the general executive cf the Sta‘e js contrary to the spirit of decentraliza. | tion pervadiog that justrament—bas been carefully ovn ed. ‘That spirit does appear, on examination of instrument, to have been active in ing direc. tion and toue to the legislation embraced in it. As to local offices, they are very generally filled by electiva of ap tn the lcalty for wh on they are constituted, efor counties are generally filled by appointment or election within the county. A county fs a general govern mental division, the largest known in our State. It ha ‘jate officers for transacting ita own business. Its orn. supervisors, eheriif and other officors are realy for ure, for the purpoee of cooducting an election of mak- ing aD riktoa oon Tt basa regular permanen: organiza- tion for ita ure, for Porponece of the kind generally, when ever action by it in such matters ts catied for, and ar to such districts, local election or Intment is practicable and convenient. It bas always at the machinery for making its own officers, either by election or appointment; end the courtitudon, tn amerdanee with ite general tone and spirit, provides expressly (Art. 10, eee. 2) that— All county officers whose election oF appointment is not pro vided for hy thts constitution ahall be elected hy the eloetora rated by the boarda of of the respective counties, or ap, ervincee, oF ker county batho ‘as the Legisiature shall Whhbout pursuing the inquiry as to the extent to which the constitution earries the of decentralization, and without augwering the question whether that rpirit, as exhibited, 1 eo dominant ax to controt the » #0 that, inthe absence of express provision on this subject, the | jatmre would be imhibited by it from the power of appointment to ench an office as these on the executive 0” the State, we proceed to an express fon of the instrumentgwhich seems to us to control in this int, PiTho last sentence of articla 10, rection 2, after pro- viding for city, town and village officers, proveeds as follow All other offcors whose Alon or appotn'ment f# not vided for iy this conatituton, and ail oitiencs whows offhes may berealier be cren'ed by law, shall be elected by the peo pie, of appointed ae the Legislature may direct, ‘ere is found express authority for the Lagisiatare to determine ay to al! oficers, wheve offices should be created by law, whether they ehou) be elected or appotated, and we thiok author ily further to decide how they should Be so elected or appointed, Now, if these offices have been created by jaw, since the adoption of the constitation this proviayt authorizes the Legivature to direct the tiling of them by ction oF appointment, at their pleasure. The act in question became a law ten years after the adoption of the constivution. The offices created by It, therefore, must have been created long after the date of the cogstitutioa Bot while, as hag been said, it ia very certain that these offices have been created (if they have any valid exit pom spew the constitution went effect, it seems equally clear that they are aot gty, town, or vilinge aifioes, within the meaniay of there terms, as used there, aa t that the provisions in regard to offices of trons classes there. | fore coes not apply to them, What particular aijective | would expr ¥s the territorial extent of thoir jorisdionon it ie not, perhaps, very easy to say, aud it is not at all im portant for us to determine, ahe provisions of the cons 1 beartvo a0 ite Tertoe ieaport, and to brace i aly al to emi eral ¥ pillces created by law, afer the constintion wont into of the term) shall be vested im a Senaie and Assembly. Such @ great, rtavding alone, all will admit to be enf. ficiently core prehensive to warrant the enactment of a bill simply creating & Board of Police Commiseioners, pres -rib. ing their mode of appoittment, and defluing their powers aod dutier. But the grant does not staad alone. Iti eceompanied or followed by numerous ro- ftrictions, express or implied, And here tt should be ob Ber ved that restrictions do not necessarily require the use of negative terms, A positive direction todo an actin ® particular manner implies and carries with it a prohibition against doing the act in any other or differeat manner A Constitution 8 Rota thing of letters and sylinbies, but of ideas. itis to be literally construcd with @ viow tosub. stantial objeow, and tho convention that framed {tis not to bo treated as & mere cantor formularum. The jrdgos, in parti ir, should seek out and eaforce piritof the new politics! tewament of which they are made ministers. Anu bg the implied cestrietions of the constitution are those in the 10th article, which declares that all city onty officers whose election or appointment is not otherwise Cobetitutionally provided for, «ball be choven directly by the electors of the respective cities aad coun let, Or appoiuted by “wuthorities thereof,” as the legwlatore may direct. It will thas be seen tha: Tegwiatare, although allowed in some cases between a direct aod an indirect appointment cers of cities, was prohibited from transte-ring to the central authorities of the State. In the the » of counties, including the Register aad Clerk of the city and my tran York, Coroners aud District At- torneys, sball be chosen (Says the same article) by the electors of the respective cuunties.”” Decomtralization, it will thus be reen, whetber wise or unwise, 1+ the principle clearly establiebed, and ite opposite as clearly repudiated Pot the leg latere, it ts contended, are ovly restricted in the cates of county, city, town and village offices; they may, by law, create * other offices ’’. other than those envmerated and for, and may the Legisiature, may doabtedly, is the language of the conatitution. And it presents, therefore, the question whether the newly created Commirsionera and their appointees are or are pot created in substance city and county officers? If they are, the Legisiatare bad no power to take the selection of appointment from beth the electors of the city or way and te “authorities thereof.’’ As origina:ly introduced, the bi.|, it is admitted, was obnoxious to this ybjection, Tt was confined exclusively to the city of New York and yet the appetntments, a now, were to be made by the Guver. bor of the Stale, who, one seuse an authority of the city, i¢ Clearly Dot so in the sense of the constitution. That bi"!, however, yiekling w the constitutional difficulty referred t», was abandoned by its authors, aml the pre- sent, creating @ Board with Jurisdiction over a district of four counties, sabetituted in ite place. And the question is, can a bill tha confemediy framed to avoid constitutional aifficnhies, of, as the plaintiff's counsel contend, to evade comUtotionsl iajanetions, besudained by the corte Tt is a sell settled principle, as already stated, in American Jurieprogence, that where « cvmstitation and a statute are in confict the latter must yteld to the former—the lower to the higher law; and it is ‘equally well settled, ant was fo long before the adoption of tae coustitution of 1847, thet “I. wrote ek Awd in such cases only, lie from ve judiciary deparumest Such ao ap veal, it ie presumed, cannot be taken away, evea by express enactment. For, although the under the new constitution have power (Art. 6) to alter and regalate the jurisdiction and Vet panne of the courte, it is only the fame power in that respect as they heretofore pos somed ‘To test, then, the validity of the present bill, let ut tke aa fn itlostration the case of a . The Governor of the State, it must be conceded, could not be authorized by the Legislature to appoint @ either by that of any other bame, Sheriffs, says the the electors of the rer, therefore, that Sheriffs from thenceforth be called marstais or Commissioners, and that aa marshals or com- missioners, they should be appointed by the Governor, would be carly void. The mere ceremony, however bigh and however solemn, of a new baptism, by the Senate and Ai ly, would not eave it. 3 con stitntion intendes thore than a name it required that certain 3 of government should function be disebarged Lj certain local oilicers of local origin. nh aa = inten Ne a ghd the county should enjoy barren ‘lege of choosing two sytin bies. What theo, in the year 1817, was th: Nant we understood acceptation of the term Sheri ifs, or Shire Reeves, am Were once called, are defined in the old law books to be chief officers, under the King, of their respective shires, having tho custody, keeping, command and govern: in somo sort, of the respective localities committed fo their charge, with power to serve process,’ to re, to make ex on, and to keep the peace. ( 6 168; Dait., Sh. ‘And to this end they might int as many deputies as they should thitk proper (LR. 8., 378.) Such, in general, were the functions of Sheriff’; and such, therefore, in making those aun elective by the people, were the functions which constitution the im. yp a by the im. | eMcct the jatent of EKRALD. from the more remote recipients of central patronage. Do, theo, (he faeehous of the Bewly created aad appointed Po- hee Commiesoners correspond, in their substance aud generol ootlee, with those above described as constituting the eleetive effee of Sberitt? With the exception of re- ©e jerome and rerving civil process, there is in f geveral aterrbetes no substantial differenge, Nor © bere ery & to the power of appointing deputies, bec. buperior and inferior, regular and special, under the name of the “police forge, for the whole of the aaid, tho Metropohtan Mivtrict.”* Theirauthority , it la true, is’ not comm@ed fo “county lines,” and the deputy of ono may ant a cher of the foor tier. Bat itwilt hardly be epeicbded (hat the Legirlatare cond consistently with tho Come titet_oe take from the people the election of sheriits, merely by creating rhe for two, or three, or even four Gown ies, instead of one, and theo calling them com- mitoners and Commineioner'4 deputies instead of sheriff ahd eberil's dep utes. Sceh a mode of evaring a private contract ve court could ranction. And if it be “tho duty of th@ courts of justice, a revived statutes declare it shall be, im (he voretruction of every private written con- tract reinting only to a more foot of real estate, to carry into Parties so far asfuch {ntent can be collected trem the whole ietrument,’ how much more is it thee duty t do fo when construing and enforcing the great contract which expresrses the intent of the peo- ple on one vite and obligations of their repre- feptativer on the other, in regard \o the entire gov- erumest of the body politic? | bave referred in the exain- pt Ay bert, are properly elect- ve offiters of comptier. vod of the of New York only sen ® stated will equally apply to as such—the Mayor, Recorder, Chief of Folica, and thelr subordinaten, ‘act 8 question, so far aa it relaten to adminis- substaat | tt the Re- ‘aces five Commissioners, appoint. rope etes: appe! ‘aa tberitien' * by anwher tne called a‘ Gouoral Superin- * to be eppetnted by the Governor's Commixsion- ‘sort of political decapt: people's fumctionaries. the new Board (sec. 31) all the conferred by law upon the Mayor, Recorder and City Judge E eis ig t o Fe ta apmeagmeny ole par nee] the department of are wide and ae a "Ustaiea in their stead. s a 5F 4325 ibe # i i i = i 5 Wd a: ! : i 2 f i i rite ae. Hf af Fite bss af Re = s 32 ii Fy Fs L } ; , bet re : é ' i inqairy—It @ private citizen wamoe evade the lawful will iteclf, by any like ound , alike of the Legisiature and of the courte? Ido set mean by this suggestion to intimate that the members of the He. nate and Asscrubly, ip adopting the new Police bill, had any actual intention of evading the implied protubitions of the constitution. Judges, know, have sometimes (both in aud out of the Legislative balla) been ebarged with that fin; and the Distory of English statutory jurisprudence, conta ns several noted exam pies to illustrate the deca ional Justice of the accusation. But po such intent can justly be imputed to legislators, We may may, however, wi it offence, that the effect of the act wader consideration, if carried out, and if the views I bave expressed are correct, would be the as that of an intentional evasion, and of the prominent as ticles of the constity tion, toray nothing of the entire scope and epiritet the whole inetroment, bo better than idle formalary—oos preerea nihil. CONCLI#ION®, First. The general purpose of the hew constitution is to popularize, a# far ae practicable, and in every event w decentralize power Seco extent of that porposa, av the defendant nd manner hich it » be om oem kee If It makes the ¢ It makes ail the euumerated county officers elective ant all county and town officers net enumerated, elective, ox cept as the Legislature may direct them to be appointed by the local authorities. It leaves all village cers to be elected at large or by divisions, oF to be appout ed_by local authorities as the Legisiature may direct Third, The constitution does not ay or wtend that all officers whose efiices may thereafter created by law, shall be eleoted by the ple pr appointed as the Iegisia- ture may direct; uit a “other” than county, ety, town and village oflicers, aud “other’’ than the specially enumerated Fate officers, Although, therefore, the Legivlatore may have the power to create a Lew county er city office, It has not the power to render such cilice, when created, the subject of execa- Live appointment. The constitation ts peremptory Unat all’ such officers shall be either elected by the voters of the rane localiios, or “appointed by the authorities root.” Fourth, The legislative }, ike an individaal citizen, cannot Go indirectly that which it l¢ probibitet from doing directly ; it canpot, by uniting couaties, divert tbe “au reot’’ of their consti:utioaal jurisdiction and trensfer it, under another name, to the cenwal Exec ve. Such a conrolidation it at variance with the letter and with the whole scope avd spirit of the constitution, the favorite perpose of whawe framers, wine of unwine, ‘was to erect not a consolidated but a sort of coafederated government. ‘The Mandamus Against the City Judge. Ts reoris on HE KMATON OF FHOANDO Fou” ANRAM D. KUMMLL, CMY Je The judgment of special term in favor of defendant, aMirmed, with costs to be paid by the relator—Judge Rooeeve!t lineenting. The mandamus in the same cave, returnable at general term, was also affirmed in favor of the defendant—Judge Roce cvelt dissenting. Board of Counctimen. IMPORTANT MESSAGE FROM THR OR ON THR BA TABLISHMENT OF A DAY AND MIONT WaToR—' OTTARSON READS JUPTION FRABODY's oFtw AMID GREAT CONFUSION—MR. JONES INFORMS THE BOARD AS TO THR JUSTICR'S HISTORY —REPORT OF THR 1 PORTANT RESOLUTIONS SPERCH OF COUNCILMAN JONES ON THE PRESENT CRINIB, Efe., ETC. ‘This Board met last crening, pureuan. to adjournment, Jonepn N. Phillipe, Beq., President, presiding. As soo as the minutes of (he previous meeting were ree! and ap proved, the following message from bis Honor the Mayor was read — IMPORTANT COMMUMICATION FROM THE MATOR. Maron's Ovvice, New Youx, May 25, 1867 To rie Howonance re Boar of Covxenway— GaxtumEs — Every political commanity shoal have ovr tain inherent right: of domestic poles, other authority whatever. ‘ already an established principle of eeif government for municipal purposes, a] ficiently civilized and liber of law. In this country it haa The ceded independence jation of ite local police was tirmiy fixed, under the colonial , . more liberal»: pair thore rights. Whi powers to the states in the and whilet States to the general govern ‘ the original chartered privileges of Ears abet inet. 1 ae Se instance im the ‘ited States where incorporated cities, existing as such prior to the Revolution, with charters aang ‘airsetiy from the crown, have lost that a ancient rights which gave them the of their own ex lutive ly comestic regulations fy he preservation of tae pew e Tn this State g s : this ie emphatical Sea genetinahly tre, The charters of ine sets of New Y: earanued to the bodies politic of a cehea not been, and, in my any acts of the ple, of the propert was Ned James 1686, Thomas |encan, vben Erenrewaat’ covertes of r id Ton wes re afirmed Wo Jubn dentgomerie, large additional privi- PRICE TWO CENTS. leges, in 1730. These have eince been recognized aa one charter, and are known asthe Dongan and Montgomerte charters. Until 1840, justone hundred yeara after the Montgomerie grant, and fifty years after the Revotutton, bo change, amendments or alterations in them were made or thooght of; nor was it supposed that the transfer of the government from the mouarchial to the republican had impaired to the least extent the pesidie) enscanines thus vouchrafed to the city of New York. ‘Mate had twice altered its covaiitution, adapting it to ita tmproving com- mercial and more liberal political con: tion, but the char- ter of this city was looked upon as an almost acre instras ment, not to be touched, even though the necessity for it in many reepects seemed ov apparent; and when in 1836 the Legislature adopted ¢ stain additional provisions, they were only ag amendmonts to the Dongan and Montgomerie charters, the princtpal elements of which were retained in their original force, with al! the ‘franc rants, powers and privileges” left unimpaired, s0( OM acts in 1549 and 1€03 were also amendments, and the char- ter just passed, tho. gb it repeals all the previons ones, re- affirms in direct terms the Dongan and Montgomeria charters. Thus bas the Legis cognized wit our ancient chartered rights, which through a series of legislative enactments, for iifty years, bad been frequently interfere1 with, too often by pliant yielding upon the part of the people themselves. Under this grant, now re-ailirmed, we find eutticient authority for the city New York to regulate ita own police affairs independent of ‘State interference or control, Upon a close examination of its provisions, aided by the evidence of ita able oom~ montator, Chancellor Kent, it ia impossible to come to any other conclusion, Section I4of the Dongan and Montgo- merie charters confers upon the Mayor, Aldermen and Commonalty, and their successors seme most ample and exclusive powers, veefol or necessary e Tules and government of the city. ChancelloPNiant saya, (see 29th Lote, Kent's notes and iMustrations), com ing on this section, * it would seem to contain a grant of ample powers sutticient for all the purpores of a well or~ dered police and for the goad government of the city Ia ite complicated concerns” Asin, in note 31, he #aye:— “ ene ver and wherever the statute provisions do not apply preciso and adequate authority in the given instance, the Common Connell can always resort to the never failing power under this charter, which gives broad authority commensurate toevery caso charter powers have been so frequently and so fully confirmed, Joginlauve acu, detined, enforced and specially apy poh that there seems to be no want of juriadiciion from ono #ource or the other for every exigency” But the powor of the Common Couscil to establish a municipal watch or police is clearly conferred by the twenty second rection. It grants to Mayor, Aldermen and Commonalty of the city full yp and authority to license or int watchmen, warrant, uader the common sealof the city, and to displace them and put othe rs tn their room, and to add to or diminwh the num- ber o: them. The duty and power to pay the persons thos appointed is incident in the power granted to appoint. The twenty third rection gives them power to or tho persons thus appointed to arrest and take up all and any Togues, ragabonds, lers and idle and sus- appoint and diminish at ploasure control and regulation of the city watch, li ap- pointment and regulation of cartmen and porters, very interesting and valuable deposit of municipal power, and om to the peace, security and good government the city.”” If there sections do not confer upon the Common Councit the power to create a municipal police, then | know of n0 words in the English language that can confer such power. There caunot be doubt on the subject. Indeed, this power is fully recogoized and confirmed by the charter recently An, genera re-enactment of the Dongaa and ie Tn the firet section of that act it is declared that “the and commonalty of the city of New York find aha ‘otect property of ite citisens now for the first. time called in question. If any complaint has been made against them, it was for not exercising their — wo ie fullest extent, for the on.ission to exert its aut ity rather- than tbe waut of it, The Doogan’ aod Montgomerie charters now occupies & higher position Ito the city than it haa occupied at any time ai , and may be regarded as the or- je law—the Charta—of our city, whereby the berty of the Santee protected. The repeating clause of the charter recently passed, in the firat piace ropeats all charters and amendments to charters previously passed by the xevera' Legisiatares, so that anything con- fected, maitsed or repeated any part of tho Doogan. ant moiidied or r the Montgororie charter was rem ofthe way in tho recond place, it ai laws or parts w inconais~ wth an oat wor section contained within itself ‘be clearly inconsistent if it did ropeal, m ar or in any manner affect the and charters beware ine tba FO clared that nothing im ite own enactment should be strued ae repealing, modifyng or in any manner affect! the Dopgan snd Montgomerie charter, and the act further: a ‘Uhat sald charter shall continue aed remain in full oe. It is clear, therefore, that there exists sulfciest power inberent in Our own original act of incorporation, which hae not been repealed, rescinded or given up, to extablieh all that le required for domestic police goveroment. We TCqUIFe po State Jetelation togive us the authority. We Pareees it Bot only without State permission, bat in de- fanee of ita enactments to the contrary without our con- sent. It no answer to way that tho charter and Metro. @ bills recently parsed repeal all ia ea incon- the former expressly firme the Dengan and Montgomerie charter; but even if it did not, the eatablichment of — city day’ and night watch | not incomsistent with the Metropolitan Police bill, which it authors declare is a State and pot a loca’ ma- Bicpallaw. Lf ite commoners are city or county officers they are within the exclusions of the constitution; if they are State or ai oftoers, their duties are got inconsistens with tho which may devolve I~ the head of a day aod ngbt wateh for thie city. We have anthority and preeedest for two police organizations of a similar cha- racter. In D844 the Ieginiatore passed an ac! establishing @ police department in this city, the first section of whi aboliehes the wateh department as then organized, and in tea thereot created a police department. This ‘section m the power of the Common ob and organise another watch depart cipal polloe, baton the comrrary, the validity law creating the f te Re coplane y Commun Co ing the right of the lature paws mMatute, and it remained dead letter. The Com mon Couveil then proseeted, acting unnder the gene ral powers conferred upon them by the Dengan and Movtgomer\e charter, to organive & municipal police, and an or cn to taat effect wan (See vol I 4. proceedings ¢f Common ( sequently by Use Logivlature accopted Himes amended, penerally according to the suggestion of thowe who were at the hear of the police, for the of adapting \t more wearty to the wants of the city, and to Perfect .@ provirions as experience from tune to Umo pointed out ite defi te The lolice law of 1844, at the time of its acceptance by the Common (ourel!, was found tw be defective in somo of tte previnion, 0 that it could pot be carried ints prac heal operateg end atthe sane thine confer upon citizens: thowe benefie whi!) the wuthoritios designed The Login lature was Bot in reerion, ved the law itelf could not be emended The Common Coon i acting under ite geaeral powers, on the 4 of June, inthe yoar 164, parsed ordinance which was drafted by James T toethen Corporation Counsel, by which they the defects and provided for carrry tg on the the Police department more perfectly than did law. Thi ordinance i etl! in force, and forms a part the euther ity by which the police department of the ci i lr ag z f <8 Aree Re Pobice dureaas, one of of ordi. be ‘This ord) boreant of potice, . ord ns Tht ordinance war ‘rawn by the inte David Graham, brq abd cap be focod \@ page 2S of (he printed ordiannces organ ring the d-partmest of the eo ernment ihe Sty of Now! Yara, ad prone bing thee rare ad Toe, Fepealing classes ie these acts do net refer te or repeal any of the ordinances of the Comman Coane! eta. > RA They repeal ail laws aod Jers of Ines poonmietent eth tows nets aed if the ord! ances of be Common Connet! are to be embraced 'o that category ell the ore nance referred to \s onafected, for + Ws Dot Beonsetegt Lb the tan Pouce Detrict act. Th 8 well Known feet, (hat land they Rave ertad lwhed by Ponce, aad that it ie who re- ortve thew . ant, +iguine ae hen the Me pate rod. ey, cater ane Hi, aRbregh we trem Now ine, om. a, ture, 2 pinent the ety of | onde ection worthy of mainre tion whether or pet the police of thie city does get con. tinve ite existence by vuloe of the ordinance | o 1849, sete thetantiog the power bance, and it w) | not be \meomsiateet im ite the Metropolitan police, if the courte ba) ny =a ofgapizatios to )¢ planted in oor tutat, whch of courwe I (conTONURD OW mouTH race)