11 Abb. Pr. 398 | New York Court of Common Pleas | 1861
This proceeding has been instituted before me under 1 Revised Statutes, 124, §§ 50, 51, 52, 53, on behalf of Daniel Devlin, claiming to have been duly appointed successor of Nathan C. Platt, as chamberlain of the city of New York, to procure the delivery of the books and papers appertaining to the office, and which are in his custody.
The sections of the statutes referred to, provide: That whenever a person shall be removed from public office, or his term shall expire, he shall, on demand, deliver over to his successor all the books and papers in his custody in any way appertaining to the office; and in case of neglect or refusal so to do, such successor may make application to any justice of the Supreme Court, or first judge of the county where the person so refusing shall reside; who, upon being satisfied by proper proof that any such books or papers are withheld, shall grant an order directing such person to show cause, within a short and reasonable time, why he should not be compelled to deliver the same. At the time appointed the officer must proceed to inquire into the circumstances, when, if the person charged shall make oath that he has truly delivered over to his successor all such books and papers, further proceedings shall thereupon cease. But, if such oath is not made, and it appears that the books and papers are withheld, the judge before whom the proceedings are had, shall,
Having, upon sufficient proof, granted the order to show cause: at the time appointed the parties appeared, and the counsel for Mr. Platt produced a writ of certiorari issued by the Supreme Court in this district, granted at a special term thereof, held by Hr. Justice Barnard, and claimed that by virtue of the writ all my powers were suspended and stayed, and this proceeding was removed into the Supreme Court.
My answer to this was, that although entertaining great respect for the tribunal from which the writ emanated, yet T did not consider it as possessing the power to arrest a proceeding thus instituted before me as a judge of the Court of Common Pleas, prior to any final determination being made of the matters involved. That if the writ had the effect claimed, its operation would be to remove a statutory proceeding, intended to be summary, before a judge sitting at chambers, into the Supreme Court at a general term—a tribunal possessing no power whatever to continue or complete it, or to give' any relief to the application thus removed in its incipient state.
On reflection, I see no reason to change the views thus expressed. There cannot of course be a doubt as to the power of the Supreme Court to review, by means of the common-law writ of certiorari, the final adjudications and determinations of all officers vested by the Legislature with power to decide upon the property or rights of any citizen, and who act in a summary manner, in a course different from that at common law. But, as the legitimate office of the writ is to enable the court to review and correct the decisions and final determinations of inferior officers and tribunals, and not to invest the court with the right to exercise the powers thus conferred by statute on special officers and tribunals, it necessarily follows, that the writ cannot, before trial and final determination, divest the inferior jurisdiction of the right to terminate the proceeding instituted before it, nor does it withdraw from it the question to be tried. As was said in Lynde a. Noble (20 Johns., 80, 83), “When this certiorari was granted, there had been no order, judgment, or trial; the magistrate had performed a ministerial act only; he had administered an oath and issued
Many other cases might be cited, but it seems unnecessary. They all tend, however, to recognize the writ as performing the same office to inferior tribunals or jurisdictions, that a writ of error formerly did to inferior courts of record, and that in its office of removing final adjudications for review, it possesses all the characteristics of a writ of error. (Stone a. Mayor of New York, 25 Wend., 517; Morewood a. Hollister, Pratt, J., 2 Seld., 309, 312; Birdsall a. Phillips, 17 Wend., 463, 468, and cases cited.)
But a conclusive answer to the right claimed by the Supreme
On the argument, counsel for Mr. Platt insisted that it related only to proceedings in court; but when it is borne in mind that at the time this law was enacted, the Court of Common Pleas existed only as a court of common-law jurisdiction, possessing no equity powers whatever, and therefore no right to entertain any special proceeding as a court, while on the other hand the judges were invested with almost innumerable powers in special statutory proceedings, it follows, I think, as an irresistible conclusion, that the law, to have any effect whatever, must have the interpretation that it relates to all such proceedings as by statute were authorized to be instituted before any judge of the Common Pleas. (See, also, 2 Rev. Stat., 389, §§ 2,14,16.)
Believing, for the reasons stated, that the writ thus served upon me,—and which it seems was procured ex parte, and upon that ground irregular (see Munro a. Baker, 6 Cow., 396), and might be treated as a nullity (Shotwell a. Daniels, 8 Johns., 341; Graham's Prac., 559),—was not only improvidently issued, but unauthorized by law, I concluded to disregard it, and directed the proceeding before me to continue; whereupon it was further contended on behalf of Mr. Platt, that as I was not the first judge of the Court of Common Pleas, or of the county, I was not possessed of any power or jurisdiction in the premises. This objection it is proper to say, was not accompanied by a reference to any statutes bearing upon the point; therefore, for the information of the counsel, I will briefly refer to the authorities under which each judge of the court is invested with all the powers of the first judge of the county, and can act as such in any statutory proceeding which may be instituted before such an officer.
This would seem, as it doubtless is, sufficient to justify me in entertaining jurisdiction of the present proceeding; but I may go still further. By the Judiciary Act of 1847 (see Laws,
Having for these reasons determined that I possessed the power conferred by the statute upon the first judge of the county, in respect to proceedings of this nature, I directed the 2)resent controversy to proceed before me. Counsel for Mr. Platt then presented his affidavit, denying that he had been legally removed from the office of chamberlain, or that Mr. Devlin had been legally appointed his successor. In opposition to this, a record of the proceedings of the Board of Aldermen upon the removal of Mr. Platt was produced, duly certified by the clerk of the Common Council (see Laws of 1832, 251, ch. 158, § 3), showing, that during the year 1860, Alderman William J. Peck was the president of the Board of Aldermen; that on December 24th, Mr. Peck, being then acting mayor of the city, removed Mr. Platt from the office of chamberlain, for certain causes alleged, and asked the board, to whom he addressed a written communication on the subject, to concur in such removal. It appears that the Board of Aldermen concurred, and thereupon a message was received from the' acting mayor, Hr. Peck, nominating Daniel Devlin to such office, and the board consented thereto. It was further shown to my satisfaction, that, on the 21st day of December, 1860, Hon. Fernando
Opposed to the appointment thus made, Mr. Platt alleges that the mayor has suspended Mr. Devlin from the office of chamberlain.
Assuming that the proof and claim on behalf of Mr. Devlin is sufficiently denied by Mr. Platt, it becomes necessary for me to look into the charter of the city for the purpose of determining whether the removal and appointment thus made is in conformity with its provisions. (Laws of 1857, 874, § 1.) By section 17, it is declared that whenever there shall be a vacancy in the office of mayor, or whenever the mayor shall be absent from the city, or be prevented by sickness or any other cause from attending to the duties of his office, or shall be removed, as in the charter provided, the president of the Board of Aldermen shall act as mayor, and shall possess all the rights and powers of the mayor during the continuance of such vacancy, absence, or disability.
Section 22 provides for a department in the city government, denominated the Department of Finance, the chief officer of which shall be called the comptroller of the city of New York. In this department there shall be a bureau for the reception and paying out of moneys belonging to the city, the chief officer of which bureau is called the chamberlain of the city of New York, who is required to keep certain books of account. This officer, by section 21, is to be appointed by the mayor, with the consent of the Board of Aldermen, and may be removed in the same manner with the heads of departments.
The power of removal is, by the same section, given in these words: “ The mayor shall have power to suspend, for cause, during any recess of the Common Council, and by and with the consent of the Board of Aldermen to remove, any of the heads of departments, except the comptroller and the counsel to the Corporation; which suspension, and the cause thereof, shall be communicated to the Common Council, if in session, and if not, then at the first meeting thereof. The Board of Aldermen shall have power, without the' consent of the mayor, by a vote of two-
It seems to me that provisions so plain and unambiguous require no comment or explanation. In the absence of the mayor the president of the Board of Aldermen becomes mayor in fact for every purpose, and can exercise all his powers. He may, with the consent of the Board of Aldermen, remove the chamberlain and appoint another in his place; but as this officer is only chief of a bureau in a department of which the comptroller is head, there is no power of suspension connected vnth him, that power being confined to the heads of departments.
The conclusion is thus forced upon my mind, unaccompanied by any doubt whatever, that, under the circumstances disclosed, Mr. Platt has been legally removed from the office of chamberlain, and Mr. Devlin has been duly appointed his successor, and as such, is entitled to have delivered to his custody all the books and papers in the possession of Mr. Platt appertaining to the office. (The People a. Stevens, 5 Hill, 616, 626.) I must therefore declare that it has.been made to appear to me that such books and papers are withheld by Mr. Platt from Mr. Devlin; and under the provisions of the statutes respecting proceedings of this nature (§ 53), I am constrained to issue a warrant committing Mr. Platt to the county' jail, there to remain until he shall deliver up such books and papers, or be otherwise discharged according to law.