The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-08-04
The Disputed Judxeship.

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The Disputed Judgesfip.
MOTION ON BEHALF OF JUDGE PEABODY TO COMPEL
THE ATTORNEY GENERAL TO BRING SUIT TESTING
HIS RIdHT TO THE SEAT OF JUDGE DAVIES.
suPREME couRT-srEcAL TERM.
Before Hon. Judge Harris.
ALBANY, Aug. /, 1s56-Soon after Judge Pea
bodys retirement from the Bench, in order to have
suit brought to test his right to sit in the Supreme
Court, he made formal application to the Attorney
General to institute such suit, accompanying his
application with draft complaint sworn to by him,
stating the grounds of his claim In his complaint
he AYERS that all the votes cast for the udgeship
rendered vacant by the death Of Robert ii. Morris
were cast for himself, Judge P. Subsequent to the
application made by Judge Peabody to the Attor.
ney General, the latter officer addressed letter to
to one Of the Judges counsel declining to institute
any suit in the premises, and giving it as his
opinion that Judge Davies was fully entitled to his
seat. This motion was then made before Judge
Harris for a mandamus to compel the Attorney
General to institute proceedings in the nature of
quo scarranto, for the purpose Of having Q
final trial and adjudication upon the rights
Of the contestants. Charles OConor and Henry
l.. Clinton, Esqs., of New York, appeared
for Judge Peabody. The Attorney General was
represented by John X. Porter, Esq, Of Albany.
The argument was opened by Mr.. Clinton. He
stated that he could cite instances where courts
had compelled an Attorney General to institute
suit to try the title to judgeship in case like the
present. for the reason that no Attorney General had
before taken upon himself the responsibility of
refusing to institute such proceeding. He pro
posed to show that the Court of Appeals had in
Judicial district. He did not contend that they had
decided the question In terms but that that an
inevitable result OF the decision made in the case
before them. He cited the various provisions of the
constitution and the statute together with the OPT
nion OF Judge johnson, OF the Court Of Appeals,
showing that the electors were called upon to fill
vacancy ana that the person elected to that vacancy
bad rig hit to his seat soon as the election
was concluded and the votes officially canvassed.
The learned counsel maintained that tue reasoning
OF the Court OF Appeals in relation to the Morris
vacancy equally established the point contended
for in relation TO the vacancy occasioned by the
death OF Judge Edwards. He then proceeded to
show, by the citation OF numerous authorities,
that o mandamus was proper remedy In this case,
End quoted the provisions Of the statute requiring
the Attorney General to bring q quo icdrTanfo
wherever any person ntruded into the Office" &c.
The word may used in the statute, he argues,
meant should" Owavius on Stat p. 60l. John,
Z. r. 4l3.) He cited from Blackstone and other
thorities the doctrine "that every right when with
held must have a remedy, and every injury its pro-
per rt dress and that a mandamus was proper
remedy, 'in oil cases where the party hath right
to have anything done, and hath no other specific
means Of compelling its performance" lie referred
10 ~ Johnsons reports, p. AIS; Sd Johnsons cases,
p. 10; 20 Barbour, 3Oj; Tapping on Mandamus, PIP.
27, 2S; Cole on Information Tancrcd on quo tcdr.
ranios and other authorities. He quoted the Lat
r. s. l7y, Sec. requiring the Attorney General to
prosecute and defend all actions In which the people
interested and cited the various provisions OF
the code specifying the cases In which Attorney
General was required TO bring quo rarrdnfo,
contt nding that In O case like the present,
a quo rdrranfo was matter OF course.
lie argued that the theory Of our judiciary was,
that every party having any well founded claim
had right TO an adjudication thereon by a compe-
tent judicial tribunals and the Attorney General not
being judicial officer, had no power to decide
case like the present. and that even upon establish
ing prima faeie case, the right to trial clear
In this case there was no doubt whatever Of Judge
Peabody's right to the remedy sought, which would
ultimately result in placing him In the seat now oc
cuped by Judge Davies.
Mr.. Porter followed for the Attorney General,
commenting upon the various propositions contend
cd for by Mr.. Clinton, and maintained that while
the law cited by him was generally correct he had
made wrong application Of IL 10 the facts OF the
present case. lie urged that il was inconsistent
that the people having ousted Mr.. Cowles and
placed Mr.. Davies in his scat should no turn round
and seek to reject him. The decision in the Court Of
Appeals cited by his learned friend, cynclusivey
established the right Of Mr.. Davies TO his seat;
that the people being parties to II, they were
bound by It. There were many wrongs, he said,
where no remedy in point Of law existed, and he
cited several instances He maintained that, wheth
CT or not to bring action like the present, rested
entirely in the discretion OF the Attorney Generals
that whether the Attorney General was correct or
not In bis decision, that decision was binding; that
the court had no power to alter it, and that even II
" were matter OF discretion, the Court ought not
to grant the motion. lie insisted that Mr. Peabody
guilty OF idches; that he should have preferred
his claim with Mr.. Davies and had the matter set
tied in the Court OF Appeals long SINCE !.
Mr.. OConor replied. He commenced with q re
sumo of the history Of this controversy and stated
that no question as to the facts Of the case was
raised by the adavits upon the other side for while
they stated that no specimen ballots Of Judge Pea
bodys bad been returned, except from one district
yet the ballots in that district designated Judge
Peabody specifically for the Morris vacancy. There
was 0 mere omission in the other districts TO
return specimen ballot, for which Judge Peabody
vas not responsible. He contended that upon
these facts, and the decision Of the Court Of Ap
peas, there was not shadow Of doubt Of Judge
Peabrdy's right to seat on the bench. He con
trasted the course Of Judge Davies and the present
Attorney General with that of Judge Cowles and
the former Attorney General the latter alfordnr
every facility for Immediately testing the question
IN respect to Judge Cowes right TO bis seat, which
was decided by the court of last resort within
month or two after the commencement Of the pro
ceedngs. Had not Judge Peabody met with many
obstacles, the question as respects him might have
finally been set at rest months since. Mr.. O'Conor
proceeded to argue the various points raised by Mr.
Porter. He discussed at length the nature Of the
high prerogatve rights Of q,o vdrranto, mandomus
and prohibition, oil OF which issued only In .ex-
traordinary cases, and were all In the name Of
the people. Az matter OF form, II was necessary
that the writ Of quo ,coryanto should emanate from
the Attorney Generals Office In conclusion, Mr..
O'Conor referred TO the case Of lansing (6th Of
Johnson) and TO the various authorities and argued
the que tons of Law involved in the Gaze.