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otherwise than for the payment of eers, for sale at public auction. the coupons.

Upon the trial evidence was given No trust having been created in showing adulterations in said teas, the case at bar plaintiff, in order but upon the evidence given on to maintain his action, was then both sides the learned judge who at least bound to show that he tried the case made, and the judg. parted with a valuable considera- ment rendered wholly rests upon, tion on the faith of the deposit, the following findings of fact, viz.: for an appropriation not amount “I find that sufficient evidence ing to a declaration of trust will has not been produced before me not be held in equity irrevocable to prove that the said tea is, by unless made for valuable con reason of said adulterations or sideration. 89 N. Y.,

89 N. Y., 537. But otherwise, dangerous to haman plaintiff gave no such proof. life or detrimental to health and

Judgment affirmed, with costs. unwholesome, or that the injunc

Opinion by Freedman, J.; tion prayed for is needed to preSedgwick, Ch. J., and Van Vorst, vent serious danger to human life J., concur.

or detrimental to health, or that

the said teas or the selling or ofSANITARY LAWS. INJUNC

fering for sale of the same is a

nuisance.” TION.

W, P. Prentice, for applt.

G. H. Forster, for respts.

Held, That the burden of proof
The Health Department of N.
Y. City, applt., v. James Purdon the teas complained of were, in

was on the plaintiff to show that et al., respts.

point of fact, unwholesome or delDecided Dec. 1. 1884.

eterions to health, and in the

absence of such proof the learned An injunction will not lie under the State judge below could not extend the

of ports of teas in original packages, though statutes of this State, under which such teas be adulterated, unless they be plaintiff proceeded, so as to reach shown to be unwholesome or deleterious to imports of merchandise offered for health.

sale in original packages. By the Appeal from judgment dismiss. Constitution of the United States ing plaintiff's complaint upon the the power to regulate commerce merits.

with foreign nations, and in the The action was brought to re- several States, is conferred upon strain defendants from offering for Congress, and while a State may sale or selling or disposing of 3,563 enact sanitary laws, and, for the packages of Pingsuey teas which purpose of self-protection, estab . had been placed by the defend- lish quarantine and reasonable inants, Purdon & Wiggin, with spection regulations, it cannot, beJohn H. Draper & Co., auction- yond what is absolutely necessary

for self-protection, interfere with Opinion by Freedman, J.; Sedg. the powers of Congress. Neither wick, Ch. J., and Van Vorst, J., the unlimited powers of a State to concur. tax nor any of its large police powers can be exercised to such an

STATUTES. TERM OF OFFICE. extent as to work a practical as- i sumption of the powers conferred N. Y. SUPREME COURT. GENERAL by the Constitution upon Congress.

TERM. FIRST DEPT. 95 U. S., 465; 13 Wall., 29; 92 U. S., 259; id., 278; 107 id., 59. It

The People ex rel. Edward T. is true, as has been affirmed on

Wood v. E. Henry Lacombe. several occasions, that there are Decided Jan. 28, 1885. many powers conferred upon Congress which, until exercised by it, Where the term of an executive or adminis

trative office is declared by statute to be are regarded as dormant and which

for one or more years from a designated may therefore be exercised by the day the language must be construed to States within their limits in the mean until the hour of the same day at meantime, 50 N. Y., 326 ; 60 id.,

which the successor becomes duly qualified

to assume its powers. 10 ; but this doctrine is subject to

When the term of an officer is declared by the qualification which has always statute to be two years, commencing on the been recognized, that it is not first day of January next after his election, enough that there is no expressed

and a subsequent statute is passed declar

ing that the term of his successor shall prohibition upon the States, but

commence at noon on the first day of Janthat it must also appear that there uary succeeding the latter's election, this is no repugnancy or inconsistency subsequent statute has the effect of definin the exercise of the power by

ing the hour of the expiration of the the States.

term of the existing officer as well as the

commencement of that of his successor. Under the circumstances of the The provisions of 1 R. S., Chap, V., Title case it appears the exercise of the 6, Art. 1, Sec. 9, familiarly known as the power contended for by plaintiff

“ Holding Over Act,” apply to the office of would conflict with the policy of

Mayor of the city of New York, and con

sequently no vacancy would accrue in that the government of the United

office by the expiration of a term. States in allowing the importation Section 2143 of Chap. 410, Laws of 1882, deof the teas in question and collect

claring that said act should not create a

vacancy in any office, prevented the creaing duties thereon. Moreover,

tion of a vacancy in the office of Mayor of Congress has acted in the premises

the city of New York, by reason of the by passing the act of March 2, fixing by said act of the hour at which the 1883, entitled "An act to prevent

term of the mayor of said city elected

under such act should commence. the importation of adulterated and

The only vacancy in the office of Mayor of spurious teas." By that statute

the city of New York which the president Congress decided that teas actually of the board of aldermen is empowered to on shipboard might be imported. fill by $ 32 of Chap. 410, Laws of 1882, is

one that occurs during an unexpired term The power to import includes nec

by death, resignation, or the other causes essarily the right to sell.

which produce a vacancy according to the Judgment affirmed, with costs. statute defining vacancies.

Vol. 20.-No. 15b.

Section 32, of Chap. 410, Laws of 1882, em of January 1st, 1885, on the powering the president of the board of ground that a vacancy existed in aldermen of New York City to fill a vacan

the office of mayor during that cy in the office of mayor does not in any event constitute him the mayor of the period, and assuming to exercise city, but, at most only empowers him to the sole power of appointment to act as mayor ; and the power given to the office given to the mayor by Chap. mayor by Chap. 43, Laws of 1884, of ap: 43, of the Laws of 1884, which took pointment to office without confirmation by the aldermen cannot be exercised by a

effect January 1st, 1885, appointed president of the board of aldermen, elected the relator counsel to the corporabefore the passage of said act, while acting

tion of the city of New York. The as niayor. It was the intention of the leg: defendant, who had been appointislature that the sole power of appointment conferred upon the mayor of New York by ed to that office for a term which Chap. 43 of the Laws of 1884, should be expired on December 10th, 1884, exercised only by a mayor subsequently was, at the time of the alleged elected.

appointment of the relator, holdCase agreed upon on submission ing over and discharging the duof a controversy without action. ties of the office, pursuant to a

Franklin Edson was elected in statute of the State, until his sucNovember, 1882, mayor of the city cessor should be lawfully appointof New York, under Chap. 756, 87, ed or qualified, and he refused to of the Laws of 1873, which pro- acknowledge the validity of the vided that the term of office of appointment of the relator and to mayor should be for two years surrender possession of the corpofrom the first day of January next ration counsel's office to him . Subsucceeding the election. Subse sequently, Grace, after coming quently Chap. 410 of the Laws of into the office of mayor, appointed 1882, was enacted, which provided the defendant corporation counsel. the mayor should hold his office The controversy over the title to for the term of two years, com the office was thereupon submitmencing at noon on the 1st day of ted to the General Term. January next after his election ; David Dudley Field, George and, under this law, Wm. R. Bliss, Robert Sewell, George H. Grace was elected mayor in No Foster, and Hugh L. Cole, for vember, 1884, to succeed Edson. relator. Edson assumed that his term of Charles F. Southmayd, James office expired on the 31st day of Carter, and Thomas Allison, for December, at twelve o'clock mid defendant. night, and at that time surrender Held, That no sound reason can ed possession of the mayor's office be given to sustain the assertion in the City Hall. Thereupon Wm. that the term of office of Mayor P. Kirk, president of the board of Edson necessarily terminated at aldermen, claimed to be empower- midnight of Dec. 31, 1884. That ed by law to perform all the func- the language of the statute detions of mayor between midnight mands no such construction, and of December 31st, 1884, and noon neither analogy, nor public policy,

nor the usages nor necessities of commence, also operated by necesthe office, or the interests of the sary implication to fix the time at people demand it. That the office which the term of Mayor Edson is, in all cases, a continuous one, should terminate, and that it was and the intent always is that the not unconstitutional as operating term of one incumbent shall close to extend the term of an elective as another commences, and that office. at no time shall the trusts of the 46 N. Y., 57, distinguished. office be idle or inoperative for That, even if Mayor Edson's want of an agent to exercise them. time expired at 12 midnight of DeHence, when the term of an exe

cember 31, there was no vacancy cutive or administrative office is in the office of Mayor which the declared to be for one or more President of the Board of Alderyears from a designated day, the men was em powered to fill, for the language must be construed to provisions of the R. S., familiarly mean until the hour of the same known as the holding-over act," day at which the successor be applied to the office of Mayor of comes duly qualified to assume its New York City; and, consequentpowers.

ly, in that office, no vacancy would That usage has established the accrue, either legally or physichour of noon as the time for the ally, by the expiration of a term. assumption of office by a newly 18 Wend., 518; 9 Paige, 507; 45 elected officer and the resignation N. Y., 816. . of it by the incumbent in the case That, however, $ 2143 of Chap. of the City of N. Y., as well as in 410, of the Laws of 1882, expressly those of the Governor of the State provided that the act should not and the President of the U. S., create any vacancy in any office, and also in the case of the sur- and, consequently, if any vacancy render of real property by an out- would or could be created by the going tenant. 9 Wend., 346-8. designation of the hour at which That, therefore, offices which

offices which the new Mayor should take office, terminate as that of the Mayor: this section interferes to prevent alty of N. Y. formerly did, do such a result.

not necessarily expire at midnight, That $ 32 of Chap. 410, of the

but may lawfully remain in the Laws of 1882, only empowers the incumbent until such convenient President of the Board of Alderhour of the day upon which a new men to fill a vacancy in the office term commences and at which, by of Mayor which occurs during an properly qualifying for the place unexpired term by death, resigthe successor may lawfully take. nation, or the other causes which 25 Wend., 697.

produce a vacancy according to But that, if this is not so, then the statute defining vacancies; and the change made by Chap. 410, that he was not authorized to take Laws of 1882, of the time when possession of the Mayor's office the term of his successor should even if there was a vacancy of a

few hours by reason of an inter PARTNERSHIP. ESTOPPEL. regnum in the office for the pur

N. Y. COURT OF APPEALS. pose of making appointments to office.

Durant, applt., v. Abendroth, That the defendant was entitled impld., respt. to judgment.

Decided Oct. 7, 1884. Opinion by Davis, P. J.; Daniels, J., concurred, and also held

On the formation of a limited partnership the

usual certificate was filed, but the special that the power of appointments to

partner paid in his share of the capital by office without the necessity of con.

check, which was afterwards paid. Held, firmation by the Board of Alder That the misstatement rendered the special men, conferred upon the Mayor

partner liable as a general one for the firm

debts, but that the partnership was in by Chap. 43, Laws of 1884, was

form a limited one and liable for the firm intended by the Legislature to be

debts. exercised only by the Mayor him. One of the general partners instituted proself, and that S 32 of Chap., 410,

ceedings for voluntary bankruptcy of the

firm., to which the special was not a party, of the laws of 1882, did not in any

and the firm was duly adjudged bankrupt. event constitute the President of

Held, That the decree was not conclusive the Board of Aldermen, while fill as to any fact in a subsequent proceeding ing a vacancy, the Mayor, but at

between the creditors and the special part

ner, and that the fact that the creditors most only empowered him to act

proved their claims and accepted a dividend as Mayor, and that while so acting, in the bankruptcy proceedings did not a president of the Board of Alder estop them from litigating as against the men elected before the passage of

special partner any fact litigated or involved

in such proceedings. Chap. 43, of the Laws of 1884, could not exercise the power of This action was brought against appointment conferred apon the A., G. & W., as co-partners, dealMayor by said act.

ing under the firm name of G. & Brady, J., also concurred for W., to recover a balance due from the reasons advanced by Davis, that firm to C. & Bro., and assignP. J. and Daniels, J., and ad- ed to plaintiff. The defendant A. vanced as an additional reason alone defended, claiming that the why judgment should be rendered partnership was a limited partnerin favor of defendant that it was ship formed under the statute, in the intention of the Legislature, which he was the special partner, evidenced by the postponement and G. & W. were the general of the time when statute should partners. It appeared that when take effect, that the power of ap- the certificate and affidavit requirpointment conferred upon the ed by the statute (1 R. S., 763, § 1) Mayor by Chap. 43, of the Laws of authorizing the formation of 1884, should be exercised only by limited partnerships were filed, A. a mayor subsequently elected with had not actually paid in in cash special reference to the exercise the sum to be contributed by him, by him of that power.

but had given his check for such sum payable several days later

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