
    DEVLIN a. PLATT.
    
      New York Common Pleas;
    
    
      At Chambers, January, 1861.
    Certiorari.—Mew York Common Pleas.—Power of Associate Judge.—Acting Mayor.—Mayor’s Power to remove Officers.—Delivery of Books, etc.
    The Supreme Court have not power by certiorari to arrest a special proceeding,— e. g., proceedings to compel delivery of official books and papers, under 1 Rev. Stat., 124, §§ 50-53,—instituted before a judge of another court sitting at chambers, prior to any final determination being made of the matter involved.
    The legitimate office of the common-law certiorari is to review and correct decisions and final determinations, not to divest the inferior jurisdiction of the right of terminating the proceedings, nor to withdraw from it the question to be tried.
    Under the present enlarged jurisdiction of the New York Common Pleas and its judges, the provision of Laws of 1844, 30, ch. 32,—declaring that no habeas corpus or certiorari shall be allowed, removing a proceeding before judgment or final decision, from the Court of Common Pleas,—applies not only to proceedings in the court, but also to all such proceedings as by statute are authorized to be instituted before any judge of the court.
    Upon these principles, a certiorari addressed to a judge of the Common Pleas to remove proceedings to compel the delivery of books and papers belonging to a public office, before such proceedings have been brought to a determination, may be disregarded as a nullity by the judge to whom it is addressed.
    Under the various provisions of law relating to the New York Common Pleas, an associate judge of that court possesses the power conferred by the Revised Statutes upon the first judge of the county in respect to those proceedings.
    Under the charter of the city of New York, as amended 1857 (1 Laws of 1857, 874), in the absence of the mayor from the city, the president of the Board of Aldermen becomes mayor in fact for every purpose, and can exercise all his powers, including the appointment and removal of officers.
    The mayor has no power to suspend the chamberlain. The latter officer is only the chief of a bureau, and it is only heads of departments that he may suspend.
    Motion for an order for the delivery of the books and papers pertaining to the office of chamberlain of the city of Mew York.
    In December, 1860, during the absence of the mayor of the city of Mew York, from the city, the president of the Board of Aldermen, by virtue of his power as acting mayor, and with the concurrence of the Board of Aldermen, removed Platt from his office of city chamberlain; and with the consent of the Board of Aldermen appointed Devlin in his stead. The mayor on his return made an order suspending Devlin, and Platt accordingly refusing to deliver over the books and papers of the office, Devlin obtained an order, under the provisions of the Revised Statutes, requiring him to show cause why he should not deliver them.
    When the application came on to be heard before Judge Hilton, the counsel for Platt served upon the judge a writ of certiorari, which had been allowed cby a justice of the Supreme Court, requiring the removal of the proceedings into that court.
    
      John E. Devlin and Greene C. Bronson, for the motion.
    
      Edgar S. Van Winkle and James R. Whiting, opposed.
   Hilton, J.

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, by warrant, commit the person so withholding to the jail of the county, there to remain until he delivers over such books and. papers, or is otherwise discharged according to law.

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 a summons. By allowing a certiorari the superior tribunal would be assuming an original jurisdiction instead of a power to review and correct;” and in that case, Woodworth, J., in delivering the opinion of the court, remarked: “I have not met with any case where, in a civil proceeding before an inferior magistrate who has express jurisdiction by statute, a certiorari has been held to lie to remove the issue or question to be tried by the magistrate, to the Supreme Court;” and, indeed, he might have added, that according to the whole current of authorities from the earliest times to the present, the common-law writ of certiorari never lies before judgment. Thus, it is stated in Bacon’s Abr. (tit., Certiorari, 560), that it is a good objection against granting the writ, that issue is joined and venire awarded for trial in the court below. In Rex a. Nicholls (2 Strange, 1227), it was held that a verdict could not be removed by certiorari, from the sessions, before judgment. (See also Comyn's Dig., tit., Certiorari.) And in Haines a. Backus (4 Wend., 213), the late Supreme Court held to this view in a case in all respects analogous to the present. There, proceedings under the statute relative to forcible entry and detainer, were instituted before a county judge, who, upon complaint made, had issued a precept to inquire into the matters in question. The parties appeared, but previous to the jury being called, a certiorari, removing the proceeding into the Supreme Court, was served upon the judge, who, thereupon, suspended proceedings and made return to the writ. On motion to quash, the court, per Savage, Ch. J., held, “ that the certiorari was clearly premature : until inquisition found there was nothing to remove. The inquisition could not be found by the court, but could be obtained only in the method prescribed by the statute.” (See 2 Rev. Stat., 510.)

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 Court, in respect to this proceeding, is to be found in the Laws of 1844, 30, ch. 32, which declares that no writ of habeas corpus or certiorari shall be allowed, whereby any-cause or proceeding may be removed before a final judgment in such cause, or before a final decision in such proceeding, from the Court of Common Pleas into the Supreme Court,—except, that transitory actions may be removed, where a trial ought to be had elsewhere than in the city of New York. This statute, however, as I have already shown, was only declaratory of the existing law, hut was evidently intended to place the question beyond dispute.

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.

I believe it will be conceded that the present Court of Common Pleas may date its origin far beyond that of any judicial tribunal in this State. Beginning under the rule of Governor Stuyvesant, in 1653, it was known as the Court of Burgomasters and Schepens (see History of the Court, by Judge Daly, 1 E. D. Smith, 24); with several changes, more particularly respecting its jurisdiction, it continued until the Dutch formally surrendered the colony of New Netherlands to the English, when, in 1674, it was convened as the Mayor’s Court; and thus, though not without many alterations in its powers, &e., it remained down to 1821 (see Laws, 64), when it was changed to that of “ the Court of Common Pleas, or County Court of the city and county of New York,” and a first judge was authorized to be appointed to preside in it. In 1834 an associate judge was added (see Laws, 118, ch. 94), and in 1839 (see Laws, ch. 116), another; each possessing, however, all the powers and jurisdictions of the first judge, in any suit or proceeding. The Constitution of 1846 (art. 6), in reorganizing the judicial power of the State, did not interfere with the court as thus constituted, but on the contrary, by art. 14, sec. 12, expressly declared that it should remain with its then powers and jurisdictions, until otherwise directed by the Legislature, and the judges thereof should continue in office until the expiration of their terms, or until the Legislature should otherwise direct. In 1847 (see Laws, 279) the Legislature provided for the election of three judges of the court, who were to select one of their number to be the first judge, and declared that the judges so elected should have and possess the same powers and perform the same duties that the first and assistant judges then possessed, had, and performed. Language so plain as this would not seem to need a judicial interpretation, yet it was construed by the Court of Appeals, in Renard a. Hargous (3 Kern., 259), to continue in the present judges, not only all the powers and jurisdictions formerly possessed by the Court of Common Pleas, or County Court, or by the first and associate judges thereof, but'also the power of Supreme Court Commissioner, which the judges theretofore possessed virtute officio.

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, 330, § 36), the County Courts in the several counties of this State, except in this city, were organized with all the powers of the former Courts of Common Pleas, and the county judge was invested with all the powers and duties and jurisdiction of the former judges of such courts. The Code of Procedure, in 1848, somewhat limited these powers of the County Court, but continued them respecting all statutory proceedings like the present. Then,—and as it would seem, further to place the powers and jurisdiction of this court and its judges beyond a doubt,—in 1854 (see Laws, 464, ch. 198), a law was passed, declaring that the present Court of Common Pleas had power and jurisdiction to exercise in this city and county all the powers and jurisdictions then, or thereafter to be, conferred upon or vested in the County Courts in their counties, and also the power and jurisdiction which were vested in the Court of Common Pleas pribr to the enactment of the Code of Procedure in 1848; all this being in addition to the powers conferred upon us by the Code (§ 33), creating us a court of general jurisdiction in all actions and proceedings, whether at law or in equity, within the county of New York.

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 Wood, the elected mayor, left the City and State of New York, and did not return till the 27th of the month; during all which time Hr. Peck attended to the mayor’s office, and acted as the mayor of the city; and that during the time he so acted, Mr. Wood was not present at the office.

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-thirds of all the members elected, to remove any of the heads of department for cause, other than the comptroller and the counsel to the Corporation.”

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.  