
    In the matter of the application of D. D. Conover vs. Charles Devlin.
    To authorize an application under the statute (1 R. S. 125, § 66) for an order to compel the delivery of books and papers appertaining to a public office, it is sufficient that the applicant is in possession of the office, with color of title.
    Upon such an application, the court will not decide the question of title to the office. If there is a reasonable doubt as to who is entitled to it, it must be determined on a direct proceeding for the purpose, by action of quo warranto.
    
    
      As the title to the books and papers must ultimately depend on the title to the office, so the right to present possession depends on fact of present possession of the office to which they are appurtenant.
    Where an office becomes vacant, and an individual, with claim and color of title, enters it and assumes the duties thereof, he is to be considered the officer de facto, and in possession of the office. And the fact that he has been forcibly removed from the rooms occupied for the transaction of the business of the office, and from the presence of the property pertaining to it, will not affect his legal rights.
    Nor will the fact that a deputy of the former incumbent refuses to yield to the person claiming to be appointed to fill the vacany, possession of the books and papers, and continues himself to transact the business of the office as such deputy, affect the rights of the claimant, or his possession.
    THIS was a motion by the applicant, for an order compelling the respondent Devlin to deliver to him the books and papers appertaining to the office of street commissioner of the city of ¡New Tork. The motion was made under 1 R. >3. p. 125, § 56, which provides that when a person appointed or elected to an office shall die, and any books or papers appertaining to such office shall come to the hands of any person, the successor to such office may demand them, and on their being withheld, an order may be obtained, on application to a justice of the supreme court, for their delivery; and on the omission of the person to deliver them, a warrant may be issued, and the property delivered to the successor. The facts appeared to be that Joseph S. Taylor, the late incumbent of the office, was elected in ¡November, 1855, for the term of three years from the first day of January following, (1856.) He entered and continued in the office until the 9th day of June, 1857, when he died. On the 12th day of June, Daniel D. Conover was appointed by the governor, in due form, to fill the place. On the 13th of June he took the oath of office required by law, and filed it with the proper officer. He also executed, on the same day, and filed with the proper officer, an official bond, with two sureties, in the penal sum of $10,000. He then proceeded to the rooms belonging to the city, occupied as the office or place of business of the street commissioner, entered them, claimed that he was street commissioner, exhibited his commission to the employees and asserted authority over them and the business of the office, and locating himself at a desk, offered to perform, and did, in one instance at least, perform official business as street commissioner. He remained there, claiming to be in possession of the place and business, by virtue of his office, until the usual hour of closing the place for the day, when he left, as the place was closed. The next day he returned, resumed his place and official position, and remained some time there at his desk, at the place properly occupied by the head of the department, as he claimed to be. In the course of this day he was removed forcibly from the rooms. He returned next day, and was again removed by the same person. On these occasions his removal was without violence, but it was open and forcible, and with an expressed determination not to tolerate his presence there. The deputy street commissioner, who was rightfully in possession of the books and papers, and in charge of the business while the vacancy in the superior office continued, refused, throughout the time of the applicant’s presence, to recognize his claims to official character, and withheld from him the manual control of the books and papers belonging to the office.
    On the 16th of June, and after Conover’s last removal from the premises, the respondent having received the appointment of the mayor, with consent of the board of aldermen, filed in the proper place his official oath and bond, duly approved, and entered the rooms and took possession of the books and papers, claiming to be street commissioner by virtue of his appointment, and thence hitherto has so continued.
    On this state of facts the applicant demanded an order from the court, and a warrant by which he should be put in possession of the books and papers appertaining to the office.
    
      D. D. Field, W. Curtis Noyes and D. Field, for the applicant.
    
      First. Mr. Conover has been duly appointed to perform the duties of the office made vacant by the death of Mr. Taylor, the late street commissioner.
    I. The constitution of the state (Art. 10, § 5) has made it the duty of the legislature to provide for filling the vacancy occasioned by the death of the late incumbent, by declaring that “the legislature shall provide for filling vacancies in office.”
    II. The legislature, by the act of Feb. 3. 1849, provided that “ whenever vacancies shall exist, or shall occur, in any of the offices of this state, where no provision is now made by law for filling the same, the governor shall appoint some suitable person, who may be eligible to the office so vacant, or to become vacant, until the commencement of the political year-next succeeding the first annual election after the happening of the vacancy at which such officer could be, by law, elected.” At the time of the passage of this act, no provision had been made by law for filling a vacancy in the office of street commissioner. Indeed the office itself was not known to the laws of the state. It then existed only by the by-laws or ordinances of the city. Since then it has been established by law. Unless, therefore, there be a subsequent law, providing another means of filling a vacancy in the office, and to that extent repealing the law of Feb. 3,1849, the governor must fill it. And in determining the question of such repeal, we must bear in mind the well known rule, that repeals are to be clearly made out, and not admitted by implication, except in a clear case.
    III. There have been, it is true, several subsequent statutes, providing for filling a vacancy in this office, viz: the act of April 2,1849 ; the act of July 11, 1851; the act of April 12, 1853; and the act of June 14,1853. But these statutes were all repealed by the present charter. The only law, therefore, remaining to be considered, is that passed April 14, 1857. And unless that gives the power of filling this vacancy to another officer, the power of the governor remains in force.
    IV. The act of April 14, 1857, (the present charter,) does not provide for filling a vacancy occurring in June, 1857, in the office in question. There are two parts of the charter which have been supposed by some to have that effect. (1.) One of them is the 33d section, which declares that until the common council otherwise direct, the existing ordinances shall apply to the departments, so far as the same are applicable and are not inconsistent with the charter. But it is clear that this section cannot apply, unless the common council would have power, by ordinance, to direct how the vacancy should be filled; which is begging the question. (2.) The only other part of the charter which is supposed by any one to give the power is that which—after providing that the mayor, comptroller and counsel shall be elected by the people—declares that “ the other heads of departments shall be appointed by the mayor, with the advice and consent of the board of aldermen.” But this provision does not attach to the mayor till the 1st of January, 1858, nor to the office of street commissioner till the 1st of January, 1860. This limitation to the 19th section is given by the 51st section, which is in these words: “ The mayor, aldermen and couneilmen, provided for in this act, shall be elected at the first election for charter officers to be held after the passage hereof, which election shall take place on the .first Tuesday of December, 1857. All persons who shall have been elected under former laws, regulating or affecting the election of charter officers, and shall be in office at the time of the passage of this act, shall continue in office until the officers elected under this act shall take office, and no longer, except that the offices of commissioner of repairs and supplies, and of commissioner of streets and lamps are hereby abolished, and except that the persons now filling the several offices of comptroller, counsel to the corporation, street commissioner and city inspector, and the officers in the Croton aqueduct department, shall continue in office until the expiration of their several terms, and shall not be removed from office during such continuance, except for the cause and in the manner provided for in sections 20 and 49 of this act; and all other charter officers, and all school officers, and each governor of the almshouse, whose terms of office may expire with the present municipal year, shall also be elected on the day before provided for by this section.”
    
      Second. Mr. Conover having been duly appointed to the office, is entitled to a,n order for the delivery to him of the office books and papers, under the following section of the revised statutes: “ If any person appointed or elected to any office shall die, or his' office shall in any way become vacant, and any books or papers belonging or appertaining to such office shall come to the hands of any person, the successor to such office may in like manner as herein before prescribed demand such books or papers from the person having the same in his possession;’and on the same being withheld, an order maybe obtained, and the person charged may in like manner make oath of the delivery of all such books and papers that ever came to his possession ; and in case of omission to make such oath and to deliver up the books and papers so demanded, such person may be committed to jail, and a search warrant may be issued, and the property seized by virtue thereof may be delivered to the complainant, as herein before prescribed.” (1 R. S. 336, § 66, 4th ed. Matter of Whiting, 2 Barb. S. C. R. 518.)
    
      Third. The objection that Mr. Conover has not filed his oath of office and official bond, is not tenable. He has taken the oath, and, not being able to see the mayor, filed it in his office, with his clerk. He has executed a proper bond, with the requisite sureties, which the mayor refused to see, and it was therefore filed with the comptroller without the mayor’s approval. The mayor could not defeat the execution of the office by refusing to decide upon the sufficiency of the sureties. Mr. Conover performed all the acts which it was his duty to perform. A dereliction of duty by the mayor cannot deprive him of his office, nor the public of his services.
    
      Fourth. Nor is it a tenable objection that the constitution,' (Art. 10, § 2,) requires that such city officers as were then known to the law, should be elected by city electors, or appointed by city authorities.
    I. This was not an office established by law, at the formation of the constitution. Its first creation by law was in June, 1849.
    II. This section of the constitution applies only to permanent officers, and not to persons appointed to exercise the functions of an office till it can be regularly filled.
    III. The 2d section of the 10th article, and the 5th section of the same article, must stand and be construed together. While one provides that city officers shall be elected or appointed by city electors or authorities, the other directs that the legislature shall provide for filling vacancies in office. The construction which the constitution has heretofore received, accords with these views. In 1847, a law was passed, authorizing the governor to appoint a successor to Samuel Jones, on the bench of the superior court, although the constitution requires judicial officers in cities, to be elected by the city electors. (Laws of 1847, ch. 291.) So the law provides that persons to fill the offices of sheriffs, coroners, county clerks and district attorneys shall be appointed by the governor in case of a vacancy, though the constitution provides that all these officers shall be elected by the people of the counties. (Laws 1847, ch. 360. Laws 1848, ch: 4. Laws 1849, ch. 28. Tappan v. Gray, 9 Paige, 507. Snediker’s case, lately decided in the court of appeals.)
    
    
      R. Busteed, J. T. Brady and A. J. Willard, for the respondent.
    
      First. This is a proceeding to try the title to the office of street commissioner. That trial cannot be had in this form. Mr. Conover must proceed either by quo warranto, or as directed by section 432 of the code. The summary method of giving possession of an office to one having a clear title to it, is not applicable here, where the party proceeded against claims under a formal appointment, and is admitted to be already in possession. (People v. Stevens, 5 Hill, 616. Matter of Whiting, 2 Barb. S. C. R. 513. Matter of Welch, 14 id. 396. People v. Corporation of N. Y. 3 John. Cas. 79.)
    
      Second. Mr. Conover shows no title to the office of street commissioner of the city of New York. The charters of Dongan and Montgomerie, with the acts subsequently passed before 1857, conferred and recognized the power of the corporation of the city of New York to provide for the control, regulation and government of the streets by ordinances, by the appointment of suitable officers, and otherwise. These charters are continued in force. (Charter of 1857, § 54.) The charter of April 14,1857, continues the corporation, “ with all the grants, powers and privileges heretofore held.” (See charter of 1857, § 1.) The power above mentioned was exercised many years ago, by the appointment of a street commissioner for the city of New York. (See Ordinances of 1849, p. 35.) Until the year 1849, he was appointed in the manner prescribed by the charters, viz: by the mayor, with the advice and consent of the legislative department of the city government. The only material change made by the charter of 1849, in reference to the office of street commissioner, was to make it an elective office. (Charter of 1849, §§ 12-21.) The 20th section of that charter expressly provides, that in case of vacancy of any of said heads of departments, by removing from.office or otherwise, the may- or, by and with the advice and consent of the board of aider-men, shall appoint a person to fill the same, until the vacancy shall he filled by the electors at the next charter election. The street commissioner is one of the heads of the departments here referred to. The 21st section of the same charter provides “ that the several executive departments, and the officers and clerks thereof, shall be subject to the legislative direction and control of the common council so far as the same shall not be inconsistent with this act. The corporation, under the powers conferred upon them by charter, passed, in 1849, an ordinance regulating the executive departments, in which, among other things, they provided for the appointment of a deputy street commissioner, who, in the event of a vacancy in the head of the department, should perform the duties of street commissioner. The same ordinance provided that the vacancy in the head of the department should be filled by the mayor, with the advice and consent of the board of aldermen. (See Charter of 1849, §§ 19, 20 and 9; Charter of 1830, § 21: Charter of 1851, § 2; Ordinances of 1856, §§ 227, 234.) The charter of 1857 has not altered the organization of the street department, nor the mode of selecting its officers, nor the control or regulation of its action, otherwise than as follows : It restores the power of appointing the street commissioner to the mayor.
    This charter does not deprive the mayor of the power to appoint a street commissioner in the event of the office becoming vacant before its term would expire by lapse of time. 1. The provision which was to continue in office the person who was street commissioner when the charter of 1857 took effect, cannot be taken to have assumed that no event, other than lapse of time, would render his office vacant. 2. And although the charier does not expressly provide for the filling of a vacancy occurring otherwise than by lapse of time, yet reasonable and just construction requires it to be so interpreted. A term may expire on the happening of any other event, as well as upon the coming of a given day. And as the power to appoint a street commissioner under the charter of 1857 was conferred on the mayor as to all cases, without any exception, it cannot be fairly supposed that any exception was to be taken as implied, or that in any event the governor of the state was to appoint that officer for the city. The charter negatives this idea in its whole theory and in its details. The 15th section declares that “the executive power of the corporation shall be vested in the mayor and the executive departments.” In the 19th section it provides: “ The other heads of the departments, (other than mayor, comptroller and counsel to the corporation,) shall be appointed by the mayor, with the advice and consent of the board of aldermen.” 3. This power, claimed for the governor, is not conferred either by the constitution, the charter of 1857, or any other law, nor could it be constitutionally given to him. (1.) The act of 1849 applies only to state officers, and such alone as are elective. It is limited in terms, to “ officers of the state.” (2.) The state officers are named in the constitution, in the classification given in 1 R. S. 96. (3.) The street commissioner is a city officer. (4.) Where a vacancy is filled by the governor, under the law of 1849, the person appointed is to hold his office “ until the commencement of the political year next succeeding the first annual election after the happening of the vacancy at which said officer could be by law elected.” The street commissioner ceased to be elective, by the provisions in the charter of 1857. This provision in the statute of 1849, cannot therefore be applied to him, without producing this strange and absurd consequence, viz: Mr. Con-over would hold until the 1st day of January, 1858, that being the commencement of the political year next succeeding the first annual election after the happening of the vacancy, at which election a street commissioner, if the office had continued to be elective, might have been elected; That would be less than two years from the passage of the charter of 1857, which prescribes two years as the official term of the street commissioner. There would be, of course, another vacancy in the office on the 1st of January, 1858. According to- the position of Mr. Conover’s counsel, the mayor could not fill that vacancy. The governor would then appoint again, and the appointee would hold the office until the 1st day of January, 1860. It cannot be reasonably supposed that the legislature have made such a result possible.- The constitution {Art. 10, § 2) provides that “ all city, town and village officers whose appointment is not provided for by this constitution,- shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose.” If the act of 1849 can be construed as giving the governor the right, in any event, to appoint a street commissioner, who is a city officer,.that act is clearly unconstitutional. But even if such act were valid, and could operate upon a city office, and an office not elective, yet it does not apply to the vacancy which occurred by Mr. Taylor’s death, because, (1.) The charter of 1849, passed after "the act of 1849, giving the governor his power over vacancies, provided, as already shown in these points, that a vacancy in this office should be filled by the mayor, with the advice and consent of the board of aldermen. (2.) When Mr. Taylor died, there was a deputy street commissioner who, under existing ordinances, had legal authority to perform the duties of street commissioner until one was appointed. (Tappan v. Gray, 9 Paige, 507.) But if it be held that the charter of 1857 gives the mayor no power to fill a vacancy occurring otherwise than by lapse of time, in the office of street commissioner, still that power belongs to the mayor, because: (1.) As already shown, the ordinance of 1849 gave it to him. (2.) That ordinance has never been repealed. (3.) It is expressly adopted and confirmed by the 32d section of the charter of 1857, which provides that “until the common council shall otherwise direct, the existing ordinances shall apply to the departments- herein mentioned, so far as the same are applicable thereto, and are not inconsistent with this act.” If, therefore, the charter of 1857 is silent and ineffectual as to the vacancy by death, the ordinance which speaks on that subject is not inconsistent with the charter, and not being inconsistent, is continued in force by the act of the legislature, precisely as if in this respect it were written and embodied in that act. (4.) The power to appoint a street commissioner, irrespective of all legislation, resided in the corporation : and all legislation to the contrary being removed, that power revives. (5.) The constitution of this state prohibits the exercise of this power by the governor.
    
      Third. Mr. Devlin is the street commissioner of the city of New York. He has been duly appointed by the mayor, by and with the advice and consent of the board of aldermen, and having duly taken thé official oath, and given the official bond with sureties, is in possession of the office, with perfect legal right to hold it. , *
    
      Fourth. This application, for the above reasons, should be denied.
    
      D. D. Field, in reply.
    
      First. The criticism which has been made upon the words “ officers of this state,” in the act of’ February 3, 1849, is altogether illusory. The street commissioner is one of the officers of this state. Every public officer who holds his authority under this state as sovereign is an officer of this state. If it were not so, the mayor need not take the oath to support the constitution of the United States, for that constitution only requires that officers “ both oftheUnited States and of the several states” should take the oath to support it. (Art. 6, § 3.) So the state constitution (Art. 12) requires “ all officers, executive and judicial,” to take the oath. If this does not include city officers, the mayor need not swear to support the state constitution. The revised statutes (1 R. S. 120, § 24, sub. 6; 121, § 33, sub. 6) include city officers among the officers of the state. Equally illusory is the criticism upon the words of limitation which the same act contains, upon the time during which the ad interim, incumbent shall hold. Mr. Conover can, in no event, hold longer than Mr. Taylor could have held, and, if the office had continued elective, as it was last year, he could have held only till the 1st of next January. The words “ until the commencement of the political year next succeeding the first annual election after the happening of the vacancy at which such officers could be by law elected,” are words of limitation upon the continuance of the vacancy. The language might have been in this form, with the same meaning. .Whenever a vacancy exists in any office in this state, the governor shall fill it for the unexpired term; except that if the office he elective, the electors shall fill it at the first annual election, and the governor’s appointment shall be good only till then.
    
      Second. Indeed, the discussion which has been had in this case has narrowed the questions down to two: first, had the mayor the right to fill the office ? and second, did the mayor, by refusing to decide upon Mr. Conover’s bond, defeat his right to the possession of the papers of the office ? The constitutionality of the act of July 3,1849, its applicability to the vacancy in question, and the appropriateness of this proceeding to obtain possession of the papers, are too well settled or too clear for further argument.,
    ■ Third. Had the present mayor the right to appoint a successor to Mr. Taylor, the late street commissioner t The right of a mayor, elected under the new charter, to appoint a street commissioner under that charter, need not be disputed. The dispute is whether a mayor, elected under the repealed charters can now, before the terms of the old officers are expired, appoint a new street commissioner to hold under the new charter. We say that he cannot.
    I. The new charter was passed on the 14th of April, and took effect as a law on the 1st of May. But there are some parts of it prospective, and others present in their operation. For example, when the second section declares that the legislative power shall be vested in a board of aldermen and a board of assistants, it refers to future aldermen and assistants. So the 3d, 4th and 5th sections refer to future officers only, and the 21st section refers to future officers.
    II. Take now the 19th section, which is in these words: “ The mayor, comptroller, and counsel to the corporation, shall each be elected by the electors of the city; the mayor for the term of two years, the counsel to the corporation for the term of three years, and the comptroller for the term of four years. The comptroller shall be voted for upon a separate ballot. The other heads of departments shall be appointed by the mayor, with the advice and consent of the board of aldermen. The board of aldermen shall have the power to confirm or reject all nominations of officers made by the mayor; and whenever any person nominated by the mayor shall be rejected by the board of aider-men, the mayor shall immediately nominate another person.” It is perfectly certain that the comptroller and counsel to the corporation mentioned in this section are not the present comptroller and counsel. They were elected in 1856 for three years each. If the present comptroller and counsel are not included, in what rule of construction can it be thought that the present mayor and the present heads of departments, other than the comptroller and counsel are included 1
    
    III. When the departments are not re-organized, the charter was thus expressive : “ there shall continue to be an executive department,” &c., as in the 24th and 25th sections, referring to the Croton aqueduct and almshouse departments.
    IV. A distinction is made by the act between officers created by the charter, and those holding offices under it. The 49th section declares that the grand jury may present any officers created by or holding offices under this charter. The government of the city, up to the 1st of January next, is wholly carried on by officers created by the charter. After that period it will be carried on by officers wholly elected by the people or appointed by the mayor, and holding under the charter— though as to the offices of comptroller, counsel, street commissioner, city inspector, and of the Croton aqueduct department, it will still be carried on by officers created by the charter, until the first day of January, 1860, when the whole machinery of the city government will be worked by officers elected and appointed, and holding under the charter.
    V. The 51st section provides for carrying on the-city government through these several periods: “ § 51. The mayor, aldermen and councilmen provided for in this act shall be elected at the first election for charter officers to be held after the passage hereof, which election shall take place on the first Tuesday in December, 1857. All persons who shall have been elected under former laws regulating or affecting the election of charter officers, and shall be in office at the time of the passage of this act, shall continue in office until the officers elected under this act shall take their office, and no longer, except that the offices of commissioners of repairs and supplies, and of commissioners of streets and lamps are hereby abolished, and except that the persons now filling the several offices of comptroller, counsel .to the corporation, street commissioner and city inspector, and the officers of the Groton aqueduct department shall continue in office until the expiration of their several terms, and shall not be removed from office during such ordinance, except for the cause and in the manner provided for in sections 20 and 49 of this act; and all other charter officers and all school officers, and each governor of the almshouse, whose terms of office may expire with the present municipal year, shall also be elected on the day before provided for by this section.”
    VI. At the death of Mr. Taylor, on the 9th of June, the office which he held was held solely under the new charter. The old charters under which he had been elected were all repealed. He could exercise no authority under them. His power was derived solely from the new act, and this act made him a street commissioner', and his office a statutory office, to expire on the 1st of January, 1860. In truth, there is not a single city office now held under the authority of the old charters from 1830 to 1857. Every officer, high or low, must justify his acts by the new charter, or he cannot justify them at all.
    VII. It follows clearly from these considerations, that the present mayor cannot appoint or remove any head of a department until 1858, and that the mayor then elected cannot appoint or remove a street commissioner, city inspector, or officer of the Croton aqueduct department, till the expiration of the terms for which they were elected under the old charters.
    VIII. The notion that the mayor has now the power to fill the vacancy by virtue of the old ordinances has no support. (1.) The language of section 32 is limited and guarded. It is that “ until the common council shall otherwise direct, the existing ordinances shall apply to the departments herein mentioned, so far as the same are applicable thereto, and are not inconsistent with this act.” The words “ apply to the departments herein mentioned,” do not mean that they shall determine who are to hold the departments, or how they are to be appointed, but how they shall exercise their functions when appointed. (2.) The old ordinances are inconsistent with the new charter in this respect—that the latter takes from the mayor all right of control over, or interference with the street commissioner’s office till 1860, while the former gave it to him in certain contingencies. (3.) The words "until the common council shall otherwise direct,” suppose that the common council has control over the subject of the ordinances, and reserve to the common council the right to continue them, to re-enact them, to alter them, or to repeal them. It was clearly not intended to give to the ordinances any extraordinary authority, but to prevent the confusion which might arise before new ordinances on the same subject could be passed. What the common council could not now ordain, is not retained as an ordinance of the past. (4.) The ordinance of 1849 on the subject of vacancies in the street commissioner’s department is but a repetition of the act of 1849, and copied with the ordinance for convenience, just as parts of the constitution of our state are copied into the revised statutes. But they derive no force from being thus copied; and, when the original from which they were copied falls, the copy falls with it. The charter of 1849 is specially repealed by the present charter. It would seem then most natural to conclude that the legislature has retained, by copying, the ordinance, while it has intended to repeal the original statute, and has manifested such intention in the most pointed language.
    
      Fourth. By refusing to decide upon the sufficiency of Mr. Conover’s bond, the mayor did not defeat his right to take possession of the papers of the street commissioner’s office.
    I. The commission issued by the governor in the name of the people, under the great seal of the state, constituted Mri Conover the successor of Mr. Taylor, and thus brought him- within the terms of the act under which this application is made.
    II. No question is made regarding Mr. Conover’s oath of office. If there had been, it would have been unavailing, for his oath was duly taken and duly filed. (Const, art. 12. 1 R. S. §22. New Charted, § 39.)
    III. The objection as to the bond, if it can be considered at all, amounts to this, that because the mayor did not examine it, and so did not approve it, it is insufficient. The first answer to the objection is, that there is no statute which prescribes what security is to be given, or by whom executed, or by whom approved. The only statute referring to the subject is the new charter, which in sections 30 and 45 declares that the common council shall require from all disbursing officers sufficient security, which shall be annually renewed. Until the common council act, by ordinance passed after this charter, no security can be required from the street commissioner ; and the law, 1 R. S. 120, § 25, which declares that “ when any officer is required by law to execute any official bond, he shall cause the same to be filed in the proper office within the time prescribed for filing his oath of office, does not apply to this office.” In the sense of this statute Mr. Conover was not required to execute an official bond.
    IV. If, however, a new ordinance was not necessary, and the old ordinances might be resorted to, by force of section 32, “ so far as the same are applicable,” and “ not inconsistent” with the new charter, the ordinance of 1849, the only one upon the subject, is inconsistent with the new act. The words of the ordinance are that: “ The street commissioner, before entering upon the duties of his office, shall execute a bond to the corporation, with at least two sureties, to be approved by the mayor and filed in the office of the comptroller, in the penal sum of $10,000, conditioned for the faithful performance .of the duties of his office.” This ordinance contemplates one bond for the whole official term—the new charter requires an annual bond.
    V. If, however, the old ordinance were not inconsistent with the new act, and were applicable to the office in question, it must be deemed unreasonable and void. All by-laws or ordinances of corporations must be reasonable. (Ang. & Ames on Corp. §§ 347, 357. Davis v. Mayor, in the Superior Court.) This by-law is not only unreasonable but positively unlawful. If it be valid, the common council can nullify any appointment of the governor. This very ordinance would enable the mayor to prevent an appointee of the governor from ever executing the office. A mandamus to the mayor would do no good; for although it might require him to decide upon the sufficiency of the sureties, it could not require him to approve them. If this ordinance be valid, the common council might pass one that the street commissioner appointed by the governor, before entering upon the duties of his office, should execute a bond approved by the common council, or by the former deputy street commissioner, or by any other person whom the common council should designate, and in that way defeat the appointment and obstruct the execution of the law. The ordinance made the law inoperative, and must, therefore, be illegal.
    VI. But if the ordinances of 1849 be in force, be applicable, be consistent with the neAY act, and be in all respects legal and valid, it does not create a condition precedent to the right of Mr. Conover to have the books and papers of the office. It is directory upon the officer, and at most amounts to a condition subsequent. So the revised statutes expressly provide in respect to all cases of this kind. (1 R. S. 121, § 31.) “ If any person shall execute any of the duties or functions of any office without having executed and filed in the proper office any bond required by law, he shall forfeit the office,” &c.
    VII. If the execution and filing of the bond were a condition precedent, the approval of the bond is not so. The language of the section of the revised statutes just quoted, is, “ Avithout having executed and filed” the bond required by law. The bond required by law has been executed and filed. The certificate of the mayor’s approval would be only evidence of its sufficiency, which is abundantly proved by other evidence. Without such certificate the bond is valid and binding on Mr. Conover and his sureties. Suppose, however, the bond approved by the mayor be a condition precedent, the performance of that condition has been prevented by the mayor, who, in this respect, is "the agent of the state; and the performance of. any condition is excused if it be prevented by the act of the sovereign imposing this condition, or any of his agents or servants. To this point there are numerous authorities. (The People v. Manning & Condit, 8 Cowen, 297. Carpenter v. Stevens, 12 Wend. 589. The People v. Bartlett, 3 Hill, 570.)
    VIII. The conduct of the mayor was fraudulent and contumacious. He is the party who seeks to defeat a rightful appointment by the governor. To nullify the appointment and obstruct the operation of the law, he refuses to examine the bond, that he may gain time; he keeps out Mr. Conover by force, and puts an intruder in his place, seeking thus to retain possession of the office and its patronage by an incumbent de facto, who cannot be ousted by the ordinary action of quo warranto, till the autumnal elections are over. To allow such conduct to succeed, would be to bestow a premium upon fraud and violence. If Mr. Conover’s appointment were legal, no language can be too harsh for the conduct of the mayor. And this question of the sufficiency of the bond must be examined on the assumption that the governor had the power to appoint, and the mayor had none. Looking at the mayor’s conduct in this point of view, it was as bad as it should be unavailing.
    IX. But if every one of our previous positions upon this head are untenable, the objection that there was an insufficient bond, or no bond at all, would still be unavailing to Mr. Devlin, because no party but the state can take advantage of a failure of an officer to file his official bond. In a quo warranto against Mr. Conover the state could urge that objection, and in no other proceeding could it be urged, and when urged in that way it would be a sufficient answer on the part of Mr. Conover that he had done every thing on his part required, and that the only delinquency was a grave delinquency on the part of an officer, agent, or servant of the state. (Matter of Mohawk and Hud. R. R. Co., 19 Wend. 142. Matter of Chenango Co. Fire Ins. Co., Id. 636. People v. Fisher, 24 id. 215. Greenleaf v. Law, 4 Denio, 170. Weeks v. Ellis, 2 Barb. 320. U. S. Bank v. Dandridge, 12 Wheat. 64. Angell & Ames on Corp. § 285. Tupper v. Newton, 25 Eng. L. and Eq. Rep. 336. McNutt v. Lancaster, 9 S. S & M. 587. Hastings v. Turnpike Co., 9 Pick. 80. Bac. Abr. tit. Offices and Officers.) “ If an officer be created by letters patent, he is a complete officer before he is sworn or before any investiture.”
   Peabody, J.

The exact function devolved on me by the statute under which I am called to act, being ascertained, much of the difficulty of deciding the case before me will, I think, be overcome. To this inquiry, then, I will direct my attention first.

The section of the statute (1 R. S. 125, § 56) provides, in effect, that if a person elected to an office die, and any books or papers appertaining to the office shall come to the hands of any person, the successor to the office may adopt this proceeding to get possession of those books and papers. This is a very brief statement of the substance of that section, as far as it is applicable to this case. A person has been elected to the office of street commissioner of the city of New York. That person has died, and books and papers belonging or appertaining to that office, have come to the hands of a person (the respondent.) Thus far the case before me comes within the statute. These facts are not seriously cpntroverted, and these having occurred, a certain person, or rather a person sustaining a certain character, is authorized to adopt this proceeding before me. “ The successor to such office may,” and he alone of all the world may, through this statute, invoke my aid in this proceeding to obtain possession of such books or papers. The applicant says he is the successor of the deceased to that office, and he produces .what he claims is evidence of his title, to wit, a com- . mission showing his appointment to the office by the governor of the state. The effect of this is a matter of controversy between the parties. The applicant asserts that it confers on him the office, and the respondent denies that it does this, and the power of the governor to fill the office by appointment is at once in issue between the parties. On the decision of that question must the ultimate rights of the parties to this proceeding mainly depend.

The respondent claims the office by virtue of an appointment from a different source—-the mayor, with consent of the board of aldermen—but his title is not necessarily to be examined here ; for if the applicant’s claim is- good, the respondent’s is, of course, bad; and if the applicant’s is bad, it is not important to examine that of the respondent, for this proceeding can only be maintained on the strength of the applicant’s claim. If, therefore, the applicant’s claim be not well founded, he must fail, and the relief sought here must be denied, even though the claim of the respondent should seem to be equally defective.

The only question, then, of all those raised and discussed on the argument of this case, which I need to decide, is whether the applicant is the successor to the office of street commissioner. The power of the governor to make the appointment depends entirely on the act of February 3, 1849, which provides that “ whenever vacancies shall exist, or shall occur, in any of the offices of this state, where no provision is now made by law for filling the same, the governor shall appoint some suitable person, who may be eligible to the office so vacant, or to become vacant, until the commencement of the political year next succeeding the first annual election after the happening of the vacancy, at which such officer could be by law elected.” An objection was made on the argument, that this statute did not apply to this office, this being a city and not a state office. I think it is a city office; that is, that it belongs to the class ealled city, as distinguished from the classes called county, town, village or state offices; but these denominations are used to distinguish the several classes of offices from each other, for purposes of convenience chiefly, and perhaps wholly; and the fact that an office comes within the class denominated county, village or city offices, as distinguished from those usually known by the more generic name of state offices, does not prove, or tend to prove, that it is not in fact a state office; or, in the language of the act. not one of the offices of this state.” On the contrary, city, county, town and village offices are all of them offices of this state, in the more general and comprehensive sense in which the language of this statute is evidently used, and this, though a city office, is nevertheless an “ office of this state,” and embraced in the terms of this statute.

This statute was passed to carry out a provision of the constitution (Art. 10, § 5) which directs, in most general, terms, that the legislature shall provide for filling vacancies in office;” and neither the constitution, in using the terms “ vacancies in office,” nor the statute, in using the terms “ vacancies in any of the offices of this state,” seems to look to a provision for vacancies in a particular class of offices—quite the reverse. This statute provides for filling this office, if no other provision was then (“is now”) made by law for filling it. To the application of this statute to this case, several other objections besides this are made by the respondent.

First. That if it applies to city offices, it is, in a certain aspect, repugnant to the constitution, (Art. 10, § 2,) which provides that all city officers whose appointment is not provided for by that constitution, shall be elected by the electors of such cities, or appointed by such authorities thereof as the legislature shall designate for that purpose.

Second. That the act of February 3,1849, cannot, from its nature, be applied to this office, it being not elective. That act provides that the appointee of the governor shall hold “ until the commencement of the political year next succeeding the first annual election at which such officer could be by law elected,” and, as this office is not elective, no such election can ever occur, and hence the term of office of the appointee would never expire.

Third. That the charter of 1857, (§ 32,) in continuing in force all the ordinances relative to the departments, continued in force the ordinance of 1849, which gave the power to the may- or ; and in effect, by continuing the ordinance in express terms, perhaps enacted it as a statute, and gave it an effect greater than it would have had as an ordinance merely.

Fourth. That the power to appoint to such an office inheres in the city, by virtue of its general powers, without express provision on the subject.

Fifth. That there was no actual vacancy to be filled, Turner, the deputy, being the incumbent, by virtue of the ordinance to that effect, on the death of the former incumbent.

I do not attempt to enumerate all the objections raised by the . respondent. Some of them certainly do great credit to the ingenuity and skill of counsel, as do the arguments on both sides of this case, to those who participated in them, respectively. I merely state some of the points to show that there is a question to be tried; and although.it may seem to me not difficult to decide where the appointing power is by law vested, I think that a reasonable question of title to the office exists, and that such a question is not proper to he tried in this proceeding.

It was never intended by the legislature to authorize a justice of this court, sitting here, to decide in effect the title to an office. If there is a reasonable doubt as to who is entitled, it should be decided in a direct proceeding for the purpose, an action of quo warranto, which is with us the substitute for the old writ of that name. This is a proceeding to get present possession merely of the books and papers incident to an office, not of the office itself, and it should not be allowed to answer that end practically, which it would do if the books and papers necessary to the functions of an office are to be awarded a party on his merely showing a title to the office itself. In these views I find myself sustained by authority, and among others by the case of The People v. Stevens, (5 Hill, 616,) and the opinion of Judge Kent, reported at page 631 of the same volume, and that of Justice Edmonds, In the matter of Whiting, (2 Barb. S. C. R. 513.) I am inclined, however, to go further than these cases, and to limit the application of this proceeding to cases of possession merely. My own view of this statute is, that the question of title to the office should not he allowed to be tried in it at all j that the abstract right of an applicant is unimportant, where possession is clearly shown ; that it should not be inquired into at all, further than, perhaps, to see that if in possession he has color of title; that being in the office under color of right, he should have this proceeding to get the books and papers ; and, on the other hand, that having the best possible right to an office, one should not have the possession of the books and papers by this proceeding, while it is apparent he is not in the occupancy of office, and not in a situation to exercise the functions of it.

This whole proceeding is on the idea that the applicant has succeeded to the office—that he is, in fact, the successor to such office ”—that he is in the office, and needs the books and papers as means or instruments with which to perform the duties of it. They are incident to the office, and should attend it ever—should attend the possession and exercise of it, not the mere right to it, however clear, if it appear that the right is not accompanied by actual incumbency of it, and that therefore the possession of them would not enable him to discharge the duties of the office.

The possession of them, as the means of exercising the functions of the office, is indispensable to the officer and the public; and the object of this statute is to put them into possession of the actual incumbent for actual use for the time being, not to decide who, in the abstract, is entitled to them because he is entitled to the office to which they pertain. The title to them must ultimately depend on the title to the office, and so I think should the right to present possession depend on the fact of present possession of the office to which they are appurtenant. I doubt much whether a party not in possession of an office, and therefore not in a condition to exercise the functions, should in any case have the possession of the books and papers of it awarded to him in this summary manner, even if his title to it were perfect; and I am inclined to think, on the other hand, that a party in an office with color of title, and performing the duties of it, should have them. The acts of an officer de facto are valid in law; and the "policy of the law is, that the actual incumbent of an office shall perform the duties of it for the time being; that the functions of an office shall not cease or be suspended because of a doubt about the title of an incumbent; and hence it is the policy of the law, and of this statute as a part of the system, that the incumbent shall have, at all times, the means of performing these duties—the books and papers, as well as the other means.

This statute is for the actual incumbent—-the actual “ successor to such office”—rather than the person entitled to succeed to it. It is apparent to my mind, that it is not intended for the party entitled, merely because he is so entitled. The only proper mode for a person entitled to an office,, but not in possession of it, to assert his title, is by the action of quo warranto. In that action his title may be established judicially, and possession acquired, and this being done, he is in a condition to avail himself of this proceeding to get possession of the books and papers incident to the office. He is in a condition to use them, and his adversary, being ousted, is not in such a condition. They in that case accompany, as I think they should always, the possession and user of the' franchise.

From what has been said above, it is apparent that the result of this proceeding with me must' depend chiefly on the question of possession of the office by the applicant. Was he ever in possession of it ? What is the evidence on that subject? It is proved that he received a commission; that he made and filed with the proper officer the oath of office; that he made the proper bond and filed it with the proper officer ; that he went into the department devoted to the transaction of the business of the office, containing the books, papers and paraphernalia of the office, claiming to be street commissioner and the head of the office, exhibited his commission and proofs of his title, asserted his title and authority over the business, clerks and employees of the establishment, assumed for himself a seat and desk for the transaction of business, and announced himself ready for official business, and actually performed an official act,.in granting a permit for some purpose. He remained there through the day, to the hour of closing the office, and returned thither the next morning, renewing all his claims and resuming his place at his desk for the transaction of business, and continued to occupy the place, under his claim of office, until removed thence by force, late in that day. The next day he returned and repeated all his claims, in language and acts, and remained there until he was again ejected by force, and assured by the man taking the lead in his expulsion, that his presence there would not be tolerated, and that all efforts to remain there would therefore be unavailing. He did all he could do toward assuming possession of the office, and claimed to be in it by virtue of his appointment. To be sure, Turner, the deputy commissioner, did not yield to him possession of the books and papers, but refused to do so, under the instructions of the mayor to that effect, and continued himself to transact the business of the office as such deputy ; and Bennett, by force, ejected him from the apartments; but neither of these acts of the mayor, Turner or Bennett can affect the rights of the applicant. They had no office to dispense, no judgment to pronounce on the claim of the applicant: had no power in the premises by doing or withholding any action to create or change any rights of the applicant, and their withholding or yielding their recognition or assent to his claims could not affect any increase or diminution of those rights. The office was vacant from the death of Taylor. Turner merely had power to act as street commissioner in case of a vacancy. (Corp. Ord. ed. of 1856, p. 52, § 234.) “In case of vacancy * * * the deputy shall act as street commissioner until the vacancy shall be supplied by a new appointment.” This did not make him street commissioner. It certainly did not fill the office so that no vacancy remained to be filled. There is no foundation for such a claim. If he (as the argument was) filled the vacancy, what vacancy, in the language of the ordinance, remained to be supplied by a new appointment?” There is nothing to suggest such an idea, and the very language of the ordinance under which the claim is made, so far from authorizing, excludes it. The possession of this property of the office thus withheld from him was not at all essential to his possession of the office or franchise itself; and whether this assertion of authority over it which he lacked the physical force to maintain, be deemed in law as amounting to possession or not, is not important. He was not the more street commissioner if he had, or the less so if he had not, that possession of the property. It seems hardly necessary to add that whatever were his relations or rights to the office, or the property pertaining to it, the forcible removal of him against his will from the rooms occupied for the transaction of the business of this office, and from the presence of the property pertaining to it, cannot affect them. His rights are the same as if he had remained undisturbed, and had continued without interruption the course he attempted to pursue. The office w'as vacant, and he, with claim and color of title, entered it, and assumed the franchise. There is no pretense that he has resigned or forfeited any right he thus acquired. It follows that he is now in possession of those rights. He is therefore now street commissioner defacto. His title to the office may he tested in the proper proceeding: but, as was strenuously insisted by the respondent, on the argument, the title of one in possession under color of title cannot be tried here. For the purpose of this proceeding, possession with color of title is sufficient. It is said that he was not in the office, because his bond was not approved by the mayor. This is one of the questions to be tried in the suit for testing the title to the office, and must he referred to that forum. It is replied to this question, among other things: 1. That no bond is required by law. 2. That the approval, being merely a mode of determining its sufficiency, is not indispensable, the sufficiency being shown otherwise. 3. That the efforts of the applicant to get the approval of the mayor, and his refusal to attend to it, excuse the omission, even if it were otherwise necessary. 4. That if an approval was necessary, and nothing had been done to excuse the want of it, still the applicant was in possession, even if the entry without the approval was wrongful.

Here are several grave questions arising, by no means free from difficulty, and not at all proper to be tried here. He claimed to be in the office. He claimed, also, to have complied with all the legal conditions of the appointment, and for this he shows ample color. What these conditions were, and whether they were precedent or not. and whether they had been fulfilled, and if not, whether the fulfillment is excused by the facts urged to that end; and if not excused, what the effect of non-fulfillment is to be, are all questions fairly arising on the facts in this case, and to be considered whenever the question of title shall be fundamentally decided. They cannot be properly examined in this informal and summary proceeding. The fact of actual possession does not necessarily depend on the decision of that, and, as I have before intimated, wherever the fact of the possession of an office can be discerned, as in some cases it can easily, and in others, like this, only with great difficulty and very indistinctly, this fact, fortified by color of title, should direct the course of the books and papers. At the time he assumed the office the vacancy in it was undisputed. Ho one even claimed to be in it. The title of Mr. Devlin, whatever it may be confessedly, had its origin some days afterward. His appointment bears date several days after that on which the applicant assumed possession by virtue of his appointment, and after his removal by force, not from the office, for an unauthorized force could not divest him of possession of the franchise, but from the rooms and property dedicated to the uses of it, in the discharge of its functions by the incumbent. The rights of Conover, acquired by prior possession, can only bo divested by legal measures. These measures have not been applied, and his rights remain. Being in possession, he was the officer defacto, and will continue to be, until ejected, which can only be done by process of law. He has all the rights incident to possession, and with color of title. My conclusions are, that Conover entered the office and took possession; that he has not been removed by legal warrant or authority, or left it himself, and consequently that he is still in and for this purpose entitled to possession; and consequently, that the respondent, as the office can have but one incumbent, is not legally in possession. It follows that Conover is entitled to possession of the books and papers, and to have them delivered to him under this proceeding.

[New York Special Term,

July 8, 1857.

Peabody, Justice.]  