The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-04-07

new one, the p /cenen were guheos.;l 70 a serious
dilemma. "Ay acknowledged The authority OF the old
Board and should torn out that the of 1857
censutunoua/ they were in Imminent peril of losing
their post on, aud they acknowledged the authority
OF The \ ew Beard, and the act constituting II should
be adjrhged upconst tutonal, they would encounter
TIE SANE peril Under such tauces il would
10 be a harsh rule bold them responsible for simple
judgment 1t might be that public necessity might
require prompt action by the board against the
cusants in that case they could apply the remedy of
trials and removals But they neglect to organize dis
tric under the law and thereby reduced the police
necessity either Of being idle or Of acting
der and those officers chose 70 act under the
old law pursusnt the advice Of their superior officers
and honest belief that such advice was correct
until final decision Of the question which OF the
Boards they owed obedence and when that decision
pronounced promptly offered submit to the recognized
Board TO me that although their conduct not
strictly ustfabe yet was excusable and that would
imperativey call for their election from oNce-cer-
tanly, it would not amount to forfeiture, without
trial
II appears from the special verdict that the reator per
formed actual duty policeman n patroman until
Sd Of july 1857 and tina, he then promptly rendered hs
services a paroman to the Board which we're de.
cned BE received his pay TO the 26tn OF june 1857
but has received none since He IT, think fairly entitled
TO restoration office from whish he has been ire
gule-y elected and 10 the emoluments appertanIng TO
such Office
have not deemed it necessary to advert to the ordi-
nance of the Common Council Of New York establish
bureau Of day and night watch, Municipal Police ap-
proved the % of June, 1867 nor to the collision
tween the two conts ndng bodies the 10th the
month as does not appear that rela,or actsd
the ordinance or participated in the conflict II the rea-
tor has been wroDgiuy elected in fact, from Office
which be vs. legally entitled, mandamus would seem "
appropriate remedy The question such cases
whether the applicant may have come other remedy
for the whole or part OF his grievances but whether he
can obtain any other that would be equally prompt and
efcacous II the Metropolitan Board had rendered a
judgment against him without sufficient warrant tnat
might have been renewed by cerorari But there
judgment against him. while he has been actually elected
from office cerfiora wou0 not therefore reach has
Where s refused Office to which entitled
there is no actual claimant aganst whom proceeding in
the nature OF quo warrapto be instituted, manta
mus furnishes the appropriate remedy Thus it was
marked by Lord shed, In Rex VS.. Barker (3d Bur
rows, r. l,247), that wrts of mandanus have been
granted to admit lecturers clerks, sections and
vepgers to restore an alderman to presidency, aud
IN attorney 10 practice in inferior court. IN Rex
We Blooer cd Bur- r., 043) such writ allowed TO
restore one to the Office Of curate of chapel and Rex
We The Vice Chancellor OF Cambridge (3d Bur r. l460)
IT was allowed 10 admit the last OF Hardwck the oi3e
OF High Steward Of the University Of Cam bridge when
its authorities had declined 10 from doubts The
validity OF his election The writ is also allowable where
public body officer refuses 10 pay the legal Official
remuneration. II would undoubtedly be n sufficient OBJ
lection TO the writ 1t appeared clearly there had
been sufficient for the removal of the reator
was decided in the Of Rex the Mayor &c. of
Uxbridee but then the officer implicated had declared
the corporation over and again. that he would do
no more OF their business In this there has been
such declaration; has the officer expressed any
unwineness to perto his duties, but his actions prove
the contrary.
The judgment awarding the mandamus must be af
frmed