New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1870-04-04
THE COURTS.
THE CONTEST FOR SUPERVISOR

vasser and that the Mayor shall appoint as supervisor
This OF course means legal votes. Upon afdayts that
one OF two candidates for Office had majority ony
by means Illegal votes the Court granted Dnndamus
to corporation admit and swear In the other VINO
APPEARED upon the afdays to have the greater hune
and into the office, there being no Olher spee,
or at least no other such mole u
the whole number OF votes ior
the office Of supervisor were iiS'4oS OF whch 1900
alter Roche received '''''''''
Il,DT T SS
Walter Roche was declared elected At the time Of the
election Henry Smith holding the office OF rolce
Commissioner aud the act OF April y, 1892 section
laws OF 1862 vol page 1850, provides that all vote,
Police Commissioner shall be void All the votes cast
more legal effect than many blank yotes or &
than no votes at ALL They were as they were NOT ny
Court teke no cognizance Of votes which the whole
people OF the State through solemn act OF LEGISLATION.
have declared to be absolutely void Henry sin re-
ceiyed no votes but void votes and IN ne
eye of the law ho had no all Aud all the votes
for Smith being void it follows from the iacs aireau
votes to those for walter Roche and Foley was legally
entitled to be appointed Supervisor by the Mayer sGa MIR
before the fourth Wednesday or December iooy, WI.
Foley duly demanded to be so appointed put to o W
refused TO perform his duty aud pretehded 70
the said Henry Smith instead We see by me stsesn
the facts and the references to the law
had clear right to the office, ,,,... 6, r,o,ber
mandamns IA the true aud proper remedy. He quoted
large number OF authorities to prove lhas /" "a'' ""o
1t may DO contended that action in the nature OF
quo ra,Tdno would DO our more appropriate fe1tuy On
the allegation that the involves question OF tue 10
Office. IL has been said that you cannot ny ute 10
office by mandamus Indeed. this expression mas oiIen
been used but. apprehend generally without avery
precise understanding OF ITS meaning; Tor IN soneon
s II the o fRs as Been and
been determined. l conceive the remark TO be prop
e to- be- decided is that Of title to office. and
not in cases where that question Is merely inci.
dental GareiI exS%RaoP Of the the obeccn
| that title to office cannot be tried ny MAN
sively settled by the decision in Err Heath tried in
the Supreme Court Of this state IN 1912 The opinion In
decision was subsequently unanimously affirmed by the
Court Of Appeals The bore strong resemblance,
elected Assessors Of the Sixth Ward in this city, and
had requested the Mayor TO swear them IN but he had
commanding him to administer the oath OF office. IL
argued In opposition that the exclusive cognhanee
neutrality-suspicious. assessorsbeonged TO the CITY COun-
ell Judge Ccwsn after expressing TOnG aOu1t ot
said But. take 1t to be an express enactment saying
tiTey clear that it does not extend collateral ques
tons. especially 10 our power OF issuing Haniamus
| and thus commanding Oaths to be administered by
proper persons 10 such officers OF the City Corpora
ton Of u riglfu election may, it is true be to
tain extent, Involved in such proceeding but that ae
cidcutal." @ Hill, SD And the mandamus was Issued
1t IL c0nended that Foley cannot be appointed because
smith already in. Let MS look at that In the first
place is Smith INF Is he supervisor what makes
man SUPERVISOR After the candidate VINO has the
highest number Of two things must occur to make
another candidate Supervisor They are frat. that he
has the next highest number OF votes and second tna
highest humber of lie had it is true, according to
the count, large number Of votes; but all those votes
outweigh IGoOUO0 void What would the right OF
suffrage lie worth if the doctrine were once to be judi.
vod votes Its effect would be to dsfranchse all the
lawful voters Of the state e0et6s more en
Sra act and without any seaey oa e ectf what
except when bestowed upon tue particular per
pointed out by the statute the candidate having the
next highest number OF votes 1t is more IN the nature
OF commission than OF an appointment and is not,
think very properly called appointment 1t does
admit Of the exercise of any discretion A. all the votes
for smith were void. his appointment by the Mayor
Ihe app9inment OF any other man IN the community
OF man who received no votes at alwOuld have been
So the appointment goes for nothing We are told tat
the Mayor must he governed by the returns in making
appoin men That true but he is to be governed by
less way He is to read them in the light Of the law and
read, tho returns OF the votes for Henry Smith pre-
thus: Henry smith received SisS5 void votes" Would
the Mayor thnk OF appointing him ON such returns
effect But 1t is said that Smith has been in. Well.
SO long as he was not legally elected and not legally
appointed, cannot see that swearing helps his case
There said to be number of ambitious gen
tlemen IN this city who have been taking oaths for
weeks past whole stacks OF Bibles for rho sake
getting INTO Office but have not yet heard that the pro-
w. smith sitting at the board has not made him Super
visor suppose one OF the reporters were 10 in aud
vsOri do not think, therefore, that correctly speaking,
Henry smith can be said 10 he IN the office although he
pretends 10 be, ana undoubtedly is very anxious be-
But even II he Is IN. under title only colerable-and
hardly even cOOraDe for there color OF right
N-that VIII not help his IL is the
Mayor 10 make the appointment Mr.. Foley requested
the Mayor To appoint him pre- the fourth Wednes
day IN December 1869. says Mr. Justice COweu Er Pare
Hedh and others Nothing Is better settled a general
rule, than that where "A statue requires
BY an officer within certain time, for public purpose
the statute shall be taken 10 be directory and
though lie neglect his duty by allowing the precise time
To go by II he aerward perform. tho public shall not
suner by the delay, lil az; lsee, also, People Al
Iel Nend 3SG and cases there cited; Colt agt Eyes
u Conn Rep 243 253 to ass, aud ced) To yUur
decisions have shown. not less learned the man
damus. the rclator confidently commits his easeeauay
important TO himself aud 10 the people.
Mr. Vanderpoe Tor the Mayor sand the facts sim.
ply that within the time prescribed by the law Board
OF County Canyassers, the tribunal provided law TO
asudcate and determine upon the an election
for the Office OF Supervisor did adudge and determine TO
the officer who or was claimed the other side was
ministerial officer In that behalf that Henry Smith had
received the second highest number OF office
or supervisor That thereupOn he not being judicial
officer having any power TO determine "a was
sesscd by the Court upon writ OF quo ua,Tano fulfilled
the duty which the law pointed out to hlm and made
within the time prescribed by law the appointment OF
smith as Supervisor and thereafter stated in the rel
a0rs Hidavits Smith has entered upon the Office and
continued TO exercise its duties and has received TO his
own use the fees and emouments and still does execute
the duties OF the Office. On that state of facts his
Honor was asked IN proceeding to which Henry
smlth was not party to direct that new appoint.
ment and commission shall be made out by the Mayor to
another person state OF facts which Henry smith
mas power to conrovert He claimed that the
could only be reviewed quo ,cayranto aud there
lore ne would NOT go into the question OF fact