The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-11-27
THE SUPERVlSORSHlP.

Foley Armed with Writ Of Mandamus
from the Supreme Court-Henry Smith En-
trenched Behind the Corporation Counseps
Opini0n-Jacob Cohen the slsirmish
Linc--N0 Perch for Victory Yet.
The fight for the appointment TO the Supervisor
ships on the second highest number OF votes cast s
at last commenced in earnest, and the prospects
that the counsel somewhere will make good fees.
and that some one or two OF the aspirants Will be
sorely disappointed. AT the first meeting OF the
Board OF County Canvassers John Foley and Jacob
Cohen each filed protests against the counting Of
any votes in favor OF Henry Smith, on the ground
that being at the time OF such election and still
holding the office OF Police Commissioner, he was
ineligible. The matter was referred TO Richard
O'Gorman, Counsel to the Corporation, for his opn
ion thereon, which he has already rendered, and
which will be found below. Meantime Iohn Foley
has obtained from Judge Cerke OF the Supreme Court
the following writ of mandamus, directed to the
Board:-
THE WRIT OF MANDAMus.
THE PEOPLE or THE STATE or NEW YORK TO THE
BOARD OF COUNTY CANvASsERS OF THE COUNTY
OF NEW YORK, GREErING:-
Whereas as we are informed by the complaint OF
John Foley, ana which complaint we nave adladgea
New York, on Tuesday succeeding the first Monday
OF November, 1869, John Foley, OF the city and
county OF New YORK. and an elector OF said city and
county, voted for ut such election for the Office
OF Supervisor OF SAID county, and that votes were
cast fSr Henry smith OF SAID a. ciy and county OF
Supervisor; and at the time or said election said
Henry Smith was one OF the commissioners OF the
Metropolitan Police District OF the State OF New
York, and had not resigned within thirty DAYS pre-
vlous the date OF the day OF said election and
claimed by said John Foley such votes are VOID and Of
no erect; and that Waiter Roche, OF said city and
county OF New York, was also voted for at said cleo
ton for the ONCE OF supervisor Of said county, and
received the highest number OF votes cast at said
for said ONCE. And whereas The statements
OF the canvass OF the votes in each election district
OF SAID county poed at said election Tor Tue once OF
Supervisor OF SAID county, duly certified and re-
turned In the manner prescribed by law by the can
vassers OF each OF said election districts, and have
Walter Roche received the highest number of votes
cast for the ONCE OF supervisor; that Henry Smith
received the next highest number Of votes and John
cast at said election for the office OF super
visor; and whereas you, IS we are In
ton OF law, the votes cast for Henry Smith,
aforesaid, OF the Commissioners OF the Metropol
tan Police District OF the state OF New York, which
votes are declared by law TO be void, and have re-
fused and neglected 10 determine That John Foley
was the person who received the highest number or
votes for supervisor next TO the votes received by
Walter Roche, the supervisor who received the
highest number OF votes cast at said election for
the office OF supervisor 10 the great damage OF said
John Foley, as we are informed by his complaint
Therefore we beng willing that full and speedy
justice In this behalf should be done TO said John
Foley command you nrmiy, enlo1nlng You that In
medlatey after the receipt OF Tins writ you do forth
with proceed to estimate and canvass the votes as
returned and certified TO you ana poed at
the county OF New YORK; that yon desist
and refrain from counting and canyassng the
votes certified ana returned TO you as cast for
Henry Smith Tor the Office OF Supervisor OF the
county Of New York, and that you strike out the
name OF said Henry Smith and The votes cast for
him from your returns. And we do further COM
mand you that after you have excluded the said
votes for henry smith you thea determine what PEE
elected to the once OF supervisor OF said county,
and also what person received the highest number
OF votes for supervisor next to the votes received
py the supervisor who received the highest number
OF votes. And further, that you make and certify
such statements as you are required by law 70 make,
and certify and attest the same, and that you
deliver copy OF said statement SO certified and
attested, to the Oierk OF the county OF New York,
to be recorded in the Office OF said clerk In the man.
ner prescribed by law, lest complaint shall again
come 10 us by your default. Aud IN what manner
this our command shall be executed make appear to
our SAID Supreme Court on the 18th day OF Novem
Der, 1861 at the Court House IN the city OF New
York, then ana there returning this our witt at
Witness-Hon THOMAS w. Clerke justice OF SAID
court, at the city Hall In said city, this 2etn day Of
November, 1869.
Allowed, this 2eth day OF November, 1869.
+. SMYTH, Attorney. ]. W. tbERhE.
The following is tue law under which II is claimed
that MIR. Smith Is ousted as supervisor and under
which also It is held that he may be thrown out OF
his influential ana lucrative Poilce commissioner
ship:-
SECTION . Section six Of the hereby amended shall
Any one Of the said any member of the
psos q public ns or @ Or who
shall during his term Of oce n Dc pa n a a.. nor ANY
succeeding the same pnoieJ sese ne saa s on
commission vacated his odcs and all votes
At elections for ay amer me be U ss 81 s ponce rec
signed such Office shall be void .,...,
SEC. 3 This act shall take effect Immediately
The following Is the
OPINION OF THE CORPORATION COUNSEL
Law DEPARTMENT, ]
OFFICE OF COUNSEL TO THE CoRroRATIoS,{
Nov. ~, 1869. J
To rHR BOARD OF SUPERVISORS ACTING AS
COUNTY CANvAssERs:-
GESrLEMRN-I have received two communications
in writing addressed to your honorable Board, con
tanning the protests OF Mr. John Foley and Mr..
Jacob Cohen against the counting by YOU, IN your
capacity OF county canvassers. OF ballots cast AT the
recent election for Henry Smith 5or the ONCE OF
Supervisor. Not finding any letter from you accom-
panyng these papers specifying me questions TO
which you desire TO direct my attention, can only
offer you advice on the points as 10 WHICH, suppose,
you wish to consult Inc.
The facts as set forth in the affidavit and protests
submitted to me do not sufficient TO bring the
case within the influence OF the law on which, the
contestants rely, as warrantng you In declining 10
canvass the votes cast for Henry smith, tSection ,,
chap S3s, Laws OF 1897 II Is alleged that said
Henry Smith having entered in the Office of Police
Commissioner on May 10, 1869, was, while IN sucn
ONCE publicly nominated for the ONCE Of Supervl-
sor; was candidate for said ONCE as the election
held on the "a November instant, and that votes
were cast for him as said election. IL does not
necessarily follow from these facts that said votes
were void. such public nomination would accord
ing 10 the provisions OF said section, have amounted
to resignation and vacation OF the Office OF Police
commissioner, unless such nomination had been
publicly declined wlthin ten days after The date of
such public nomination. IL nowhere appears on the
papers that such pubic declinatlon was made by
Mr.. smith. In default thereof the oAice OF Police
Commissioner held by him would have become, by
operation OF law. vacant on the expiration OF ten
DAYS after the date OF his public nomination for
the onice OF supervisor All votes cast for
him at any subsequent election for that
office would have been valid unless such
election had been held within thirty days alter such
vacation Of the ONCE or Police Commissioner, which
Is nowhere alleged 10 have been the TACT. see no.
thing, therefore, in the papers submitted BY you 20
me to warrant you In departing from your ordinary
practice, aud all ballots cast at said election snouu
In ms opinion, be counted by you In tue usua way.
The duties or SUPERVISORS in tins respect are rather
ministerial than judicial, and the facts being iouha
by you IL Is the Office OF the courts TO apply tue
rules OF law thereto II their interpretation be re-
CURED. -.
am the more inclined to this opinion in the pre-.