The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1842-07-03
Court ror the Correction of Frror..
Inc Lieutenant Governor m lhe chain.

to the sixth Ward election and the continent of clerks
for the two boards, immense throng assembled in eff
forts to witness the proceedings but small proportion of
whom, may be readily supposed could obtain admit.
lance There about 1900 menholdngnhe cir situations
from the City Government, nearly $50 of whom had al
ready been ed and others appointed in their places
On this decision rested the validity of the and
the hopes and fears of those Immediately interested
srikngiy portrayed IN the anxiety marked in their
spectlve counenances.
The Chancellor opened the ball by reading written
opinion. He considered the subject possessing many
points doubt and he would be surprised witness
difference OF opinion among the members. He called
upon them TO decide without political bias and from the
records presented to them from the Court below He then
proceeded to examine the facts IN the Az Mr.
Crons the Chancellor considered that his having been
elected Is sufficient title 10 his taking possession of his
seat III rule OF law that person having sufficient
number Of votes is entitled to his office Notwithstanding
mistake on the part of the returning officer The OF
the rs district return was good why the
Veefs should not make return from the other three dis
trcts The Board OF Aldermen could have il back
had it not been correct This ia in conformity with the
mode pursued by the State canvaSers and illustrated
IN the election between Governors Clinton and Jaw The
Ward Of the 9th should have up their
turn from the materials presented them as was done BY
the OF the l2th who however erred in Dor
ton Of their duty, which the Chancellor pointed The
return, as possible was made and authorized the
ministerial officer to administer the oath agree
however with the Supreme Court that Recorder had
arigh TO administer tho oath previous to the meetingc
the board. The Montgomery charter pointed out part-
cular mode which continued in the revised charter
Even if the Mayor and Clerk refused do consider
IS valid. Crolius should have waited and hal the
Recorder present ready 70 act in the event OF
tered upon the duties Of his Office he alderman de facto
and could only be removed by writ of quo icarTanto
and his acts are valid regards third parties rTaylor
showed good prma facie evidence the Mayor OF his a
ponment and was entitled TO be in. In respect to
Mr. shaer have to the conclusion that his assert
cd right TO hold over cannot be sustained by the revised
charter That instrument says the members shall be
elected for one year. and that the election shall bo annu
ally can see no good reason for his holding over. Il
was intended 10 assimilae the legislature the city to
that of the State. Therefore conclude he had right to
hold over Mr.. Atw was elected and entitled 10 his
4 o hn
question OF is disposed of in the way DO
say thu power does not exist in the Common Council
does not deprive the Supreme Court OF right
look into the circumstances The REALTORS only
obliged to make out prima ace case to produce
erroneous opinion that he must have legal evidence the
election He was wrong For the reasons presented
VIII vote in airnance of the Court below all the
cases.
General Roof then rose. He said they were called
upon to avoid being influenced by party considerations
and this than any other in his recollection
calls upon the members firmly to do their duy. There
is an axiom that where parties equally divided judges
should decide The Government of New York is in theo
ry democratic one, the laws of which be enacted
by the people and to be carried by the people The
cutve are but its agents The Judges made independent
OF the people, SO that they may be circum
stances arise TO ehsnge their opinions earlessy TO
enforce the laws that the people This court is
constituted somewhat different where the last resort
the people should have their tribunal in which TO
correct the Of those independent Judges In that
way bound to the peoples will os they
have shown it in their social compacts If the peoples
rights have been trenched upon this Court should
rants on the ether. Judges should benigny act As a
democrat yesterday. to-day and forever feel bound to
protect the peoples rights They have way to show
their views but through the ballet boxes. That the
index through which is expressed In the 9th Ward il
proved clearly that Crolius elected Would YOU
have that election defeaed-counteracted by technical
rules and technical forms approve of preserving
proper rules if those forms doubtful as to law we
are to consrue them in favor Of liberty and the peoples
rights In Tayor's Crolius authorised ACT
and his appointment and swearing in by the Recorder
are correct dissent from the Councillors opinion in
that respect The Montgomery charter has had no in
nuence since the revolution law concerning oahs hav.
ing been passed early l77 l775. City officers and
all had to take oath, aljurng ealty foreign
powers and in favor of supporting the laws Of New York
gTeaai hGn SPOKE 2, o,ner ws among them that
ison on the other side Of the water oboken between
;ro Of the greatest lawyers tsamilion and Burr the
country. The new charter, il is true passed in the
orm OF sn amended Montgomery charter, but ii was
formed by convention of the people that stripped from
the Common Council all its judicial powers. 1t provides
that they should meet the legislature does and
members should bo sworn in by particular officers, but
did not my that they could be sworn in by others
The provision is merely that these ministerial officers
shall attend but not that the oath is invalid If taken be-
lore al, any 1ne else The board was properly constituted
iencc Taylor presented of his appointment as clerk
In regard to Mr. Williams II is said that Atwill did
have his seat But that shaer held In the revised
charter the hod-oyer clause is emitted and evidently
intended to make the duties conformable the new
constitution The Aldermen and Assistants to be
elected for year. and to hold legislative powers In the
two boards. shalers term of office had expired but
If the old charter had been in existence sbaler
could hold over, as Atwell was already elected /
shall vote for afirmance sir on all the cases.
Senator FuRNAN also presented his views He said that
the mandamus was the proper remedy II relates the
officer and his right to be sworn while quo
connected with the office to Dust person who improperly
holds There Is evidence to show that the Supreme Court
has right 10 jurisdiction and that such has been taken
away from the Common Council. Without the interview
ton Of the Supreme Court IN the present case the CITY
might have been left without government for the sue.
ceeding year. II is the election, and not the canvas
which gives authority, and although the law is precise II
VIII not permit the returning officers, through fraud
nadvertence to prevent the person elected from having
his office. IL would net have been proper to order
election An election is not intended TO show the
RICHNESS OF return, and is not necessary The
sers OF the Sixth Ward were bound to make to
the best of their ability; they called upon to
make riot loss Of votes cannot defeat an
election unless il be she's that they would have
the result which not here the case The Mavor
in error in supposng that there had been election
or void That for Judicial enquiry. Ha should
have satisfied himself beyond the return the Supreme
Court has done and administered the oath. The senator
entertained similar views with the Chancellor and Sena
tor Roo. to the hodover clause and thought the Re-
cordcr authorized 10 administer the OATH In technical
matter the refusal OF the Mayor is sufficient support the
idea of absence under the charter His remarks were
much extended. He declared himself in favor of affirm
all the
srvAroR FosrrR rose and made an able and highly
effective speech He thought the Supreme Court had
ed in drawing into this case any adavts than had
been placed before the Mayor previous his to
swear in the REALTORS He illustrated the point by sup
posing that man applies to the Court Of Copmon Pleas
but is refused action the ground Of producing
Gent Prima tdce evidence to sustain his and that
he collects matter and applies to the Supreme Court
for maudamus to compel the Common Pleas 10 proceel
Would II be proper for the Supreme Court receive that
new testimony, and grant the msndamus1 would not
be more likely that would tell the applicant return
to the Court below and lay the before s, he had
then prepared The Senator objected 10 precedent being
raised that the Supreme Court has right enquire into
collateral matter Ifhs allowed the officer might
as well apply to the Supreme Court once without say
ing any thing to the ministerial officer. The Mayor how.
ever he thought had sufficient prmd fdcie evidence be-
fore he refused to and administer the oath In that
refusal he considered that he erred and he would for
afrmencc
Senator DrcKEssov and the LrurHSasr GovrnvoH AFRO
presented their views in favor Of aifrmance ond the
cessy Of considering election instead Of technical
matteFst the basis which ministerial oicor should act
and that 1t was his duty to inquire into the facts Of the
The question then put in relation to the assessors
Messrs. Heath and Roome Sha 1.-The judgment of the SUI
preme Court be affirmed
The ayes and nays called when the vote
unanimous in favor OF confirming, being 81 to 0. The
Gu. 80. L..