The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-01-08
FAIRCHILD's NOMINATION.

A LEGAL sQUABBLE OVER THE VACANT CANAL
.coMMIssIoNERsHIP-wn WAS THE OFFICER
NOT VOTED FOR IN NOVEMBER LAST?
[BY TELEGRAPH TO THE HERALD
ALBANY, Jan. Z, 1875.
Tho dispute regarding tho Canal Commiss onership
has resolved itself into positive contest between
Attorney General Schoonmaker and ex-At,orney
General Farchild on the simple question OF which
construed correctly comparatively ancient stat
ute. II the present Attorney General 10 right there
should have been an election Tor Canal Commissioner
last November, In which case the existing hiatus In
canal administration would not have occurred. On
the other hand is well understood that The Deputy
Secretary Of State then acting. Mr.. Z. K. Apgar did
include in the notices for the general election the
Office OF Canal Commissioner because Attorney Gen.
opinions that, inasmuch as tho Canal Comm DR.,
whose term was about 10 EXPIRE would hold over un-
Ill replaced, together with his colleagues BY
stsllasion OF Superintendent OF Public Works there
was no necessity Tor popular election.
RuoGLEs' OPINION
Tho theory OF Fairchiids OPINION Is directly CON-
batted by Assistant Attorney General Rugglcs who
was interviewed to-day IN the absence OF his chief
Mr. Ruggles said:-'Tho statute says whenever n
vacancy occurs is untitled during session of
the Legislature tile Legislature shall Gil II. A
cancv exists now and the Legislature Is In session.
TIE law says that the Legislature shall act when
from any cause The cause OF the va
to elect The old statute providing for
officers holding over indefinitely until their SUCCESS
sors qualify applies only TO nppointive offices. Com
missioner rhayer wax elected by the people, not ap-
pointed, consequently the statute does not apply to
his case and, his term having expired, be Is out OF
ONCE and there Is an existing vacancy This is the
point on which TIE Attorney Generals opinion was
asked by the Auditor. As TO the method OF filing
statute and the opinion Of the Attorney General not
refer TO any specific mode OF nliingi My own opinion
that ,hcro should have bcon election last Tall Tor
Canal Commissioner"
THE LAW OF THE sUnJRcr.
The law relating 10 the filling OF vacancies in the
office OF the Canal Commissioner, passed November
l3 1884, 10 the statute controlling the question as
the present vacancy, caused by the expiration OF
Thaycrs term The republicans rely rs position
OF section one, as giving tho Legislature power to
elect while the democrats insist that the latter por-
ton OF the section limits the legislative action strictly
to the contingency OF an unexpired term becoming
vacant through resignation. death disability Of the
incumbent.
Tho statute Is as iollows:--
An Act to provide for filing vacancies In the Office Of
SECTION l. Whenever from any cause the Office of Caua
Commissioner shall become vrcant nc or during
= period when the LEGISLATURE shall be in SOS
such vacancy in the same manner as IS now pre-.
cause the office Of Canal commisoner shs S iSn s
not shall BE- anS T hereby ' made the
do OF the Governor tor person acting
such appointment to be duly filed In the Office
OF the Secretary Of state, and the person ap.
provided 'sf s e snsr s a. the
eges and subject to all the duties and Habili.
safa until .ucs ss s
snnua election after ths happening OF the which
n WITCH s pS Il hs be-
I'LL shall continue so long.