Ingraham, F. J.
—The petitioner is brought before me on the [302]*302return of a habeas corpus, allowed on his petition, and the sheriff returns that he holds him in custody by virtue of a warrant for his arrest issued by Mr. Justice Peabody, under the statute which authorizes proceedings for the delivery of the public boobs and papers in the office, to the successor of any one dying or otherwise vacating the office.
The • proceedings before Mr. Justice Peabody were instituted on the complaint of Daniel D. Conover, claiming to be the successor of the late street commissioner, Taylor. In his complaint he avers that he was appointed to such office by the governor of the State; that he has received the commission; that he has taken the oath of office and filed the necessary bond; and has done every thing necessary to qualify himself therefor. The section under which this proceeding was taken, is section 61, tit. 6, ch. 5, pt. 1, of 1 Revised Statutes (p. 115). This section provides that 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 thereinbefore prescribed, demand such books and papers from the person having the same in his possession ; and the same being withheld, an order may be obtained for such delivery. It also provides, that in case of omission of the person so charged to make oath of the delivery of all such books and papers so demanded, such person may be committed to jail, and a search-warrant issued, &c. The petitioner was arrested under such a commitment, and confined in close custody in the jail of the city of New York.
By section 43 of the act relative to writs of habeas corpus, the power of a judge on the return of such a writ is limited, and he is directed to remand the prisoner, except in certain cases therein specified. Those cases which are applicable to this petition are:
1. When the jurisdiction of the officer has been exceeded.
2. When the process has been issued in a case not allowed by law.
3. When the process is not authorized by any provision of law.
Although separately stated, these different cases are all included within the term “jurisdictionand the question which I am called upon to decide is, whether, upon the papers presented to Mr. Justice Peabody as the foundation of the proceedings [303]*303which resulted in the commitment of the petitioner, there were facts stated sufficient to bring the case within the provisions of the statute so as to authorize the justice in the proceedings which subsequently were taken therein.
This proceeding is a special one, summary in its character, severe in its operation, and as we have seen inThe late action of the Supreme Court in denying the petitioner an opportunity of reviewing the decision of the magistrate, conclusive in its re-' suits, and condemning the prisoner to a perpetual imprisonment if from any cause he is prevented from complying with the order directing the delivery. Being of this character, it should be construed strictly; there should be no doubt of the sufficiency of the facts to make out the jurisdiction, and there should be no presumptions entertained, other than the facts warrant to make out such jurisdiction.- If the papers do not show the matters stated in the law as necessary to obtain the order from the magistrate, then no jurisdiction was conferred on him which would sustain the subsequent proceedings.
What then is necessary for this purpose ?
1. The death of the incumbent. As to this there is no dispute.
2. That the books or papers shall come to the hands of any person. This is stated in the petition,as to the petitioner, although no time is stated when such books and papers came to his possession. It may well be doubted whether the mere possession is sufficient without showing that the possession was not obtained after the appointment of the successor. The words of the act are, however, so general that I should hesitate before adopting the conclusion that such defect was one that deprived the magistrate of jurisdiction. Whether, on the proof of the fact before him, it was proper to grant the warrant, it is not within my province to decide.
3. The appointment of a successor, the demand by him, and the withholding of the books and papers by the person charged, complete the facts necessary to make out a jurisdiction.
It is to the questions arising in regard to the matters stated as necessary under the third head, that the arguments of counsel before me have been principally directed, and it is to the examination of these questions that I shall confine myself at this time.
In the outset of the examination, the counsel for the respondent submits as an objection to any conclusion different from that [304]*304of Mr. Justice Peabody, that it is my duty to recognize his decision as the law of the case, and that inasmuch as he had decided that he had full jurisdiction of the matter, it is my duty to remand the prisoner forthwith, even if I was convinced that such jurisdiction was not established. I do not see in the opinion of Mr. Justice Peabody that the question of jurisdiction was distinctly passed upon by him in deciding this case. If not, then there is no force in the objection. But as the counsel has stated such to have been the case, I shall take it for granted that the question was decided by him. If such a course as is suggested by the counsel could with propriety be adopted by me, I should feel thereby relieved from the labor of further examining this case, and from the expression of any opinions which might con-. flict with those of that justice of the Supreme Court. The argument receives additional force in my own mind from the recollection that my decision in the first instance is sustained by the Supreme Court of this district. Upon more mature reflection, I have come to a different conclusion. The liberty of the citizen is involved in the application, the authority to entertain the proceedings for the delivery of the books and papers is placed by the same statute in the justice of the Supreme Court and the first judge of this court; either one in acting acts only as a magistrate out of court, and the decision of either is not to be regarded as the decision of the court to which he belongs, but of himself individually, as a magistrate merely, and not of a court. ISTor can I suppose that any magistrate would for a moment entertain the opinion that any want of that comity and respect which is due to his decisions is shown when another magistrate discharges a duty which is made obligatory by law, and from which he cannot depart without exposing himself to the highest censure. For my own part, I should be thankful if in any case like this, involving the close imprisonment of a citizen, any other magistrate, if convinced of my errors, should by his decision correct them.
In the case of the People v. Yates (4 Johns., 318, and S. C., 6 Ib., 333), it appeared that Tates was committed by the Court of - Chancery for contempt, and was discharged on habeas corpus by a justice of the Supreme Court; and although his decision was reversed by the Supreme Court, it was affirmed in the Court of Errors by a large vote. In that case also, by a second com[305]*305mitment by the Court of Chancery, Yates was again discharged from imprisonment by the same judge; and although the chancellor, who had originally committed Yates for the contempt, acted as a member of the Court of Errors on the review of the case, and complained of the powers conferred by the law on inferior magistrates, yet he never ventured the suggestion that such magistrates were bound to take the law of the superior tribunal and refuse to interfere, although satisfied that such decision was erroneous.
I am referred to the case of the People a. Orser, sheriff (12 How. Pr. R., 550), as showing that the justice of the Supreme Court refused to reverse the decision of a general term of the Common Pleas, where a person was committed for a contempt. In that case, however, the question was one of practice in the court, and the rules of practice are within the power of the court; Where the general term had settled by their decision what the practice should be, it could not with propriety be the subject of review on habeas corpus.
In the case of Yates, Judge Spencer, referring to the right of review, says, “ It has been intimated that the Court of Chancery is a court of such high jurisdiction that it was incompetent for a judge of this court either to intermeddle with its process, or question the legality of its proceedings.” With all due deference for such an opinion, I cannot subscribe to it. In every case arising on habeas corpus, the sole inquiry ought to be, “ Is the prisoner legally or illegally in custody ?” and not what court committed him. "He also says, “It will readily be admitted, that in reviewing a question which has been passed upon by one of the highest judicial characters in the State—a question involving a right to exercise a jurisdiction claimed by that officer—there ought to be a liberal courtesy: it should not, however, be indulged so far as to lead to a surrender of the prerogatives of another judicial department, nor to the demolition of personal liberty.” I am confident the learned judge who conducted the proceeding in this case would not thus limit the power of magistrates on this writ, and would ask no more authority for his decision than the respect which is justly due to it, both for his personal character and his position. There can, I think, be no doubt that a magistrate thus called upon by the law to decide as to the legality of the imprisonment of a citizen [306]*306is bound to examine into the case submitted to him, and if he becomes convinced on such examination that the imprisonment is unauthorized by law, to discharge such prisoner, even though in such examination he should arrive at a conclusion different from that of the committing magistrate.
This brings me to the question of jurisdiction, and upon the views that may be entertained of the construction'of the statute under which the prisoner was committed must rest the decision of the question. It is conceded by all the counsel, and the decisions are uniform on the subject, that the proceeding for the delivery of books and papers cannot be used for the purpose of establishing the title of any one to the office to which the books and papers belong. This can only be done on a quo w<wrcmto. The right of Conover to the office of street commissioner cannot be affirmed by any decision made therein, nor would the claims of Devlin be in any manner invalidated by an order to deliver over books and papers in his possession. Bor could the proceedings, in my judgment, be with any more propriety resorted to for the purpose of deciding between two claimants for the same office, who shall for the time being hold the books and papers. Until it is decided who is the party legally entitled to the office and its appurtenances, the statute is not to be resorted to, to give to one a control which is only to be obtained by taking it from the other. The point must be settled that the applicant is the successor before his petition can be acted upon; and where the complaint of the applicant shows either that his own title to the office is doubtful, or that the person from whom he claims the delivery of the books and papers also claims to hold the same office, neither is in a position by which he can take from the other books and papers under this statute until his right to be such successor is established : much less can one who shows a defective title to the office claim to take such possession. Such is the-decision of Mr. Justice Peabody in this case. He says : “It was never intended by the Legislature to authorize a justice of this court sitting here to decide in effect the title of an office. If there is a reasonable doubt as to who is entitled, it should be decided in a direct proceeding for the purpose.” Such was the opinion of Justice Bronson in the People v. Stevens (5 Hill, 615), where he says: “ The relator should first establish his title to the office by a direct proceeding for that purpose, and then his [307]*307right to the books and papers would follow as a matter of course and again, “ If the relator is in truth the clerk, he may apply to a judge and be put in possession without delay. If his title is clear, he has a complete remedy by applying to a judge for an order to deliver the boobs and papers.” So also thought Judge Kent in the same case, on a subsequent application to him for the books and papers, when he held the case was not one falling within summary jurisdiction conferred by this statute. He says : “ It is obvious to me that the Legislature never intended the judge should exercise this power to enforce the delivery of books and papers against an officer de facto, where the title of the applicant to the office is questionable. He must have a prima facie title to the office, free from reasonable doubt (People a. Stevens, 5 Hill, 615, note).” An officer acting under the statute in question has no right to grant the order prayed for, unless the title of the applicant is clear and free from reasonable doubt; and that learned judge considered that the fact of there being another claimant for the office, and that the judges differed in" their views of the claimant’s title, was sufficient evidence that the claimant’s title was not free from doubt, and denied the application. So, also, Judge Willard held in the matter of Carpenter (7 Barb., 57), where he says: “ If the petitioner has no title to the office, other objections are superfluous. Even if a reasonable doubt existed as to the title of the office, a judge at chambers ought not in this summary way to dispose of the question.” This proceeding was only intended to provide for cases where the applicant had a prima facie title to the office, and the defendants were clearly and incontestably wrong; and in the matter of Whiting (2 Barb., 518), Justice Edmonds says, if it could be made to appear that the governor and senate had no right under the constitution to make an appointment, then the complainant’s prima facie right to the possession would necessarily fall to the ground and his application be dismissed. I refer to these decisions as being all made by learned judges of the Supreme Court as to their powers under this statute, in all of which they agree that the statute was only intended to be used for a person having a clear and undoubted title to the office, and not where the claimant’s title to the office was doubtful, or where more than one claimed a right to the possession of the books and papers by virtue of. an appointment to the office.
[308]*308It is proper to add, that when those questions depend upon matters of fact to be proved before the officer, his decision upon them is conclusive, and cannot be reviewed by habeas corpus. With the decisions of Judge Peabody on matters of fact I cannot interfere, and over them I possess no power of review. It is only to the papers submitted to him as the foundation of the proceeding that I can look, in this inquiry after the jurisdiction necessary to sustain the warrant. If on those proceedings it appear that the claimant is not entitled to maintain them, the jurisdiction fails.
It has been urged that color of title was sufficient to sustain jurisdiction, and to some extent I concede that rule to be proper. If it appears by the application that the claimant had been appointed to the office, and was in possession thereof, and it did not appear that any other person claimed to have a right to the same office, such a state of facts would have been presented to the justice of the Supreme Court as to give him authority to institute an inquiry and try the same, if disputed, by taking testimony : his decision thereon, whether erroneous or not, could not be reviewed except on a certiorari, and a judge having the matter before him on habeas corpus would be bound toremand the prisoner. But in this case the claimant not only sets out his own title to the office, but also shows that the party in possession of the books and papers claims to hold the office himself, by virtue of an appointment which at least shows as much color of title as that of Conover, and upon the face of the papers presented to the judge there appears at once the defect which all the judges above referred to have pronounced to be fatal, viz.-, that the claimant has not a clear title to the office which he claims to hold, and therefore cannot obtain the order for the books and papers demanded.
The judge, in his view of the construction of this statute, seems disposed to exercise the power conferred by it in a case having less right even than color of title; for he says, I am inclined to go further than those cases, and limit the application of this proceeding to cases of possession merely, that the question of title should not be tried at all, and that the abstract right of the applicant is unimportant where possession is clearly shown. Such a view of the act is directly at variance with the decision of the judges to whom I have referred, and cannot, in my judg[309]*309ment, be sustained. If it be correct, it would allow any one who obtrudes himself into an office to obtain possession of the books and papers of the office without right or authority, and deprive the public thereof, to the great and manifest injury of the public interests. The successor to an officer who is deceased can only be the person legally entitled to succeed him. The fact of succession does not depend upon possession, but upon title, and the law can only know one legal successor, and that is the man entitled by law to hold the office which he claims. If he has not the right to the office, he is not the successor of the previous officer; he is a mere intruder, and whenever the right of the party to.the office is established, the intruder will be ousted, as having no right, and not entitled to any of the emoluments.
So far as third persons might suffer if this want of right extended to them, the law for their protection holds the acts of such a person while de facto in office valid, but no further, and no right or claim for himself or as between him and the public can ever be made good. As to every thing else but the acts performed by him with third persons during the time he was actually in the office, the law annuls and renders them of no effect. Such a person can never be called the successor of another. He is not the officer—he does not succeed as officer, and merely succeeding in the possession and not in the right to an office cannot give any authority to exercise the rights and powers which the law gives to the successor.
The question then arises, was Hr. Conover the successor of Taylor as street commissioner at the time of this application ? I have already stated as my opinion, that to be such successor within the meaning of the statute, he must have been legally appointed to the office, and that a mere possession of the office without such right, would not entitle him to the granting of his application. The complaint upon which Hr. Justice Peabody acted in granting the order, shows that Hr. Conover claimed the office of street commissioner by virtue of an appointment by the governor of the State of Hew York. Having stated in such complaint his title to the office, it becomes necessary to inquire whether the governor of the State possessed the power to make such appointment. If he did not, then the claimant showed affirmatively that he had no right to the office, but was a mere [310]*310intruder, and was not entitled to the books and papers which he sought to obtain; while, on the other hand, if such appointment was legal, Mr. Conover showed good title to the office, and showed also the possession of it sufficient to give the necessary jurisdiction.
The office of street commissioner is not a new office. So long ago as 1830 it was recognized by the ordinances of the Common Council of the city of Hew York, under the title of street commissioner. (See Revised Ordinances of the Common Council, 1839, 35.) The street commissioner was then a mere city officer, established by the local authorities, subject to their control, discharging his duties solely under their direction, limited to the county as to his powers and duties, and deriving his compensation from the city treasury. This office was not mentioned in the various charters granted previous to that of 1849. In the charter of 1830, the Common Council was directed to organize and appoint distinct departments to transact the executive business of the city. (Charter of 1830, § 21; Davies’ Laws, 302.) Shortly thereafter, in pursuance of such provisions, an ordinance was passed, organizing this department under the title of the Street Commissioner’s Department, and placing at its head the street commissioner. (See ordinances of the Common Council above cited.) This department was continued by the ordinance of May 9, 1839, after which the ordinances of the Common Council continued in force without being re-enacted triennially, as was formerly necessary. In the charter of 1849 the department is continued, with the same title and the same officer at its head, but with enlarged powers (see charter of 1849, § 19 ; Davies’ Laws, 207); and by an ordinance of the Common Council, passed May 30, 1849, the department was reorganized and the former ordinances were repealed. This office of street commissioner, as established by the Common Council as a city office, was repeatedly recognized by the Legislature as in existence under the city government, although not provided for by any statute. In 1830 (see Laws of 1830, ch. 2), the street commissioner was authorized to sell lands for assessments, and from that time numerous acts may be found down to 1849, in which the existence of the office is recognized. (See Laws of 1846, ch. 326; Laws of 1841, ch. 170, 230; Laws of 1843, ch. 235.) After 1849, the office became elective, but the same office was [311]*311continued with increased powers, and has so remained until this time.
It must he apparent from these facts that the office of street commissioner was a purely local office under the city government, depending for its existence on a corporation ordinance, and for twenty years and longer having no other source of existence, but as such recognized by various acts of the Legislature, until it was made permanent by the charter of 1849. The addition to the office of new powers and duties did not change its character. It still remained a city = office as originally established, calling for the performance of the duties originally charged upon it, increased with the growth of the city to its present magnitude and importance, but in other respects remaining the same office. Sustaining such a character, the provisions of article 10 of the constitution, section 2, apply, requiring that all city and county officers not otherwise provided for therein, should be elected or appointed by the local authorities as the Legislature should direct. ■
It is urged that section 5' of the same article, which says that the Legislature shall provide for filling vacancies in office, allows a different mode of appointment. That section must be read in connection with section 2 of the same article, that confines the appointment of local officers to the local authorities, and when the Legislature is required to provide for filling vacancies in office, they are required to. make such provisions in the mode and by the authorities to whom the appointment of local officers is to be confided.
It is not pretended that down to the year 1849 any power existed by which the governor of the State could make an appointment of street commissioner. In that year (Laws of ’49, ch. 28) an act was passed authorizing the governor, whenever any vacancies should occur in any of the offices of this State, where no provision was made by law for filling the same, to fill such vacancy until the commencement of the year after the next annual election at which such officer could be elected.
There are two objections to the application of this statute to the street commissioner’s office. One is, that it is not an office of the State. Ibis not recognized as a State office in the Revised Statutes (1 Rev. Stats., 96), which designates and classifies the various offices of the State, although in existence at the time of [312]*312passing the act, and is not in any statute recognized as a State office. The second objection is, that by the constitution such an officer can only be appointed by the local authorities or elected by the people, and the power to make the appointment cannot be vested in the governor. The opinions of the judges of the Court of Appeals, in the late case of the police commissioners, concedes this to be the case in regard to city officers, without any dissent. There is also force in the objection that the statute only applies to elective offices, as the period for which such appointee can hold office until the commencement of the year after the first election at which such officer could be elected. If the office is not elective, this provision would be a nullity.
But even if a contrary construction might be given to the act of 1849, I am forced to adopt the conclusion that, by the charter of 1857, other provisions are made for the appointment of this officer. By section 19 it is provided that the mayor, comptroller, and counsel shall be elected, and the other heads of departments shall be appointed by the Mayor, with the advice and consent of the Board of Aldermen. Under any ordinary construction this clause would vest in the Mayor and Board of Aldermen the power of appointment. But it was urged that the power so confided is only exercised by the mayor and aldermen elected under that act. I do not consider that charter to be so limited. It must be remembered that by section 54, all other charters except the Dongan and Montgomerie charters are repealed. If the powers conferred by the new charter are only to be exercised by officers who may be elected under it, we are forced to the conclusion that there is no authority for any city government. It is true, by section 51 the present officers are continued in their offices, but, unless under this statute, these officers (the aldermen and councilmen) could not pass any ordinances or do any legislative act. The Board of Councilmen is not included in either of the old charters, and possesses no powers not conferred by this charter, and I am not willing to suppose that the Legislature intended to terminate the city government, - or to suspend its operations until the next year. The rational conclusion is, that the Legislature intended, when they retained the Mayor and Common Council and heads of departments in office, also to give them power to discharge their duties, [313]*313not under -the charters which were repealed, but under the charter which continued them in office, and ratified that continuance down to the time when their successors should be elected and qualified. If the Common Council and heads of departments are authorized to act under this charter, there is nothing which prevents the mayor and aldermen from exercising the power conferred upon them. There is nothing in the statute expressly prohibiting the exercise of those powers, except the power of removal, and where the continuance of the powers of government to the public authorities of the city depend solely upon the new charter of 1857, there can be no other conclusion than that, the Legislature intended to confer all the powers provided for therein, which are not expressly prohibited, on the officers so continued. The argument on the part of the respondent is, that the power of appointment conferred by section 19 is confined to the mayor and aldermen to be elected under the charter, and not to those in office. If this be so, then the same argument applies to the aldermen and councilmen. Section 2 vests the legislative power in the Board of Aldermen and Councilmen, and section 3 provides for their election in entirely different districts from those now represented by these officers; no more power to act at this time under the charter is given to these officers than to the mayor and aldermen in regard to appointments, and the same section which continues the present aldermen and councilmen continues the mayor in office. Unless they can act under this charter, all legislation during the year is a nullity ; and if the Common Council can act and perform the duties provided for in this charter, the same right belongs to the Mayor and Board of Aldermen in regard to appointments.
In the opinion of Mr. Justice Rdosevelt on one of these cases,
It has been said that those ordinances provide for filling vacancies therein, and therefore apply to this office. There may be weight in this suggestion, but I prefer resting my construe- • tion of this charter upon the broad ground that the Legislature never intended to stop the government by repealing the old charters, without conferring new authority; but, on the other hand, when they repealed the charters of 1830, 1849, and the amendments thereto of 1851 and 1853, and at the same time continued in office the public authorities, they intended that their powers should be exercised in conformity to the new char-. ter of 1857.
With these views, therefore, I adopt the conclusion that the governor not only obtained no power under the act of 1849 to appoint a street commissioner, but that the power to make such appointment in case of vacancy was conferred by the new charter upon the Mayor and Board of Aldermen, who are retained in office by that charter, and whose powers can only be exercised in conformity therewith.
[315]*315I have, in the examination of these questions, come to the conclusion that the proceeding under which the prisoner was committed was not one in which the officer had jurisdiction, because the person claiming the office showed upon the face of his papera that his appointment was unauthorized, and conferred upon him no authority to take or hold the office, and because he sought on the face of his complaint to take such books and papers from another who claimed to hold the office by a better title than himself. That as the title of the claimant to the office cannot be tried and adjudicated in such a proceeding, the Legislature never intended that it should be used except in a case of a clear and undisputed appointment or election, and that as these facts appear upon the complaint submitted to Mr. Justice Peabody, for the purpose of giving the jurisdiction necessary to maintain this proceeding, they show the application to be made by a person having no right to institute it, and therefore conferred no jurisdiction.
It is perhaps not necessary for me to add, that I entertain great doubt as to the sufficiency of the demand stated in the complaint, and the same words as used in the warrant. The terms used—“ the books and papers appertaining to the street commissioner’s department”—appear to me far too general to warrant the commitment and imprisonment of any person who does not comply with the demand or order. The same terms are used in the warrant by which he is committed, and as that imprisonment is to continue until the order is complied with, some more specific description of the books and papera should be given, in order that the prisoner might know what he had to deliver, or might have some means of showing that he had complied with the terms of the order. Where a party is committed to close custody until he performs some act or complies with some order, the act to be performed or the order to be complied with should be sufficiently specific in its provisions to leave no doubt as to its requirements. That so general a description of the books and papers demanded cannot be sufficient, appears more clearly from the fact that the statute requires the magistrate to issue a search-warrant to seize the property, to be directed tó a sheriff or other officer. Can an officer be required to assume the responsibility of executing such a warrant? or if he do, can he execute it by taking those things which he thinks [316]*316belong to the street commissioner’s office? Section 11 of the Bill of Rights expressly provides that no search-warrant can issue unless it particularly describe the place to be searched and the things to be seized. I see no reason why this section is not . as applicable to a search-warrant for books and papers belonging to the street commissioner’s office as for any other property. The warrant to commit and the search-warrant should be equally specific in describing the property. In these conclusions I may have differed from learned judges who have expressed opinions on these questions, and if I entertained doubts upon them, I should be disposed to yield my own judgment to theirs; but I feel, also, that in all cases I am called upon to form my own judgment, and especially where a party is deprived of his liberty, I am not permitted to do otherwise than act upon the conclusions to which I have arrived. I have the satisfaction of knowing that any error can be corrected by another tribunal without injury to the public interests ; and if it exists, it is in favor of the liberty of the citizen, whose imprisonment might, under the circumstances, be perpetual.
The prisoner must be discharged.
The Mayor, &c. a. Conover, Ante, 171; see 181.