The sun. [volume] (New York [N.Y.]) 1833-1916, 1870-05-11
stpERyIsOR FOLEY'S CASE.
Judge Ingraham's Deci-isn-He Confesses
the Justice Of John FoIey's Claims. but
Thinks IL IneNpedient to Grant Him


Jude Ingraham has rendered the following re-
mnrklblc opinion in the matter Of the publication Of
John Foley for seat In the Board or Supervisors
uron the argument made several weeks a-o.
Gs reoF va sSRSGae I
zee se Sh
votes ny the statute, the Meyors directed TO appoint
number OF votes next 10 the voes received by the su
Is S,S M sAS Sen ecsa M s aG eo 5 e n
pursuance thereof the Mayor app2net Henry sith as
ne time Of the sl e o ana md so The eS1e Of THIS
ersfoE te Metropolitan Police District OF the state of
Tie Tciator claim. that all votes gwen FOR Henry
smith for anv other once whl'e he such Comnis.
sloner or within thirty days alter he shall have resigned
Tho re aior claimed TO be entitled to the appointment
The Msyor refused to make such appointment aud 70.
fused TO swcar him supervisor, alleging as rea.
for such rcusal that lac had then appointed Mr..
TiS relaOr now aGglcs for q n,aniSm.; directed to
the MAJ or COMMANDING him 10 appoint the relator to
i6c sToSad nOon which this claim founded M.
I'M, ttatqte lsxh scetion provdesi " Il any u the
sctec INV i" Se s "q pSSe s or
emClument or 20 shall during his term Of ohce be
ard shan not wlthn ten days succeeding inc sac Prh.
~ men vthrc5y 10 h. We 1eI hs r5uis.nr
and 20 have vacated his office ana all votes cast 70 any
towmis, oter or Nltal3 thirty ds AFTER he shall have
Thete IS no evidence before me to show whether
smith ~ over ruh'lcy nominated ne supervisor nos
II II was intended to the question Whittier Tie
9ihte o. is,t hal o. come vacant S 9nltuis "a
decline ne Iou!uatIon' 'u3se lieis should nave oeth
H. oi.ss0n 20 do SO prevents any ecsion on ina,
/ am, therefore, simply to d,cide whether the vot
Tor lr and issft rs ,ruoit im'nF rs tISNsyor -
whether ,hry not VOID m ldrsuEnce OF lac prov
| SOU Of the statute, before refyriyi 10.
There can be no douht upon ths question, so far "a
| ne etIIcacs shows saith Got only 10 have boon 4
sTS.i n 5 ocs and SScd t as uen dsehar Ia H.
lhc yocs rVcn fer him. ulGcr such circumstances
are ~ Ia, ayt a, cl4trd TO oe voin'
layH /. en- rylcoeG by tie eGayassers.
N ' S arg Son S % Or nGy TG5 q. n9 y2ia
any T5n', on M 2a & wS i9e{ SS Eye1 Tho
slCr h4yiae 'le hsGf,,t Pgla9er OF legal votes aer
Wrst OH "Sr Ta made ON Inc 10 IN. e S arrco
ton J. tna' tn sIPtpif 50 Tar ~ It dsIaE,s ne Not
siuncr TO Do void, is uncons. .tutionM,
me question y not iree from diiaculty lfthe ca
ETuis ~ Cowsl, iol Ii applicable 10 tls case. tue
nv GsSaI S6 sf GsSS S 'G By
we CoLst Hu9n % Wn2 r. not criminal IT. mat eL,e
ircy clear that the Legislature cannot establish arJ
requiring qualifications wn.eu the Constitution has not
Should have some hesitation in declaring an act nm
con titutonal IN proceeding ~ this character, w
A the present L. tsistSfe nave au act ABOLISH
ing the Board OF sIptsrS[s she, the oI arSnmsnt o.
the election la tins nl0nth am of tho opinion that II
would not be proper exercise of the discretion which
pertains to the issuing OF this writ Of 4idRiHs l.
| direct an appointment by the Mayor al the present
|
| ls effects would only he to continue q litigauor
| which could be productive Of no good results, ant
whiu Ould LOT N aay manner advance the proceed
| iur by which the rrlator must obtain the couueusa
| ton to which he would he entitled II the act unae
| which he claims inc office j. held 10 be valid.
| Even II the Mayor Fhuald now nahe the appoint men
the possession oi the ONCE could not be Obtained "
held by another app9inoe within the time that vii
eta Lefors the total abolition OF the Board OF supes
| yturs.
| Although am OF opinion that the rclator was pro
perry entitled TO the cert fcate from the canvas crs We
uuder ths circumstances above stated deem IL Inc q
| dent to grant this application.
| Motion denied without costs.