The New York herald., 1879-01-03
COUNTY CLERK GUMBLEToN.

PEREMproRY MANDAMUs GRANTED FOR THE
EXAMINATION OF HIS BooKs-THE OPINION
OF JUDGE DAVIS.
1t looks now as if the sharply contested legal
troversy over the question of the examination by
committee of the Bar Association of the books and
records in the County Clerks Office had reached it's
first stage in the courts The application for per-
emptory mandanus requiring Mr.. Gumbleton to
allow examination of his books was yesterday
granted by Judge Davis. The opinion of Judge Davis
given in full below, showing his for arriv
ing at this judicial determination:
OPINION OF JUDGE DAVIS.
This matter was brought before the Court by
motion founded upon petition and aidavits. 1t was
met at the outset by counter aidavits on the part of
the respondent. 1t is well settled practice that the
Court ON motions founded upon affidavits. has the
widest discretion in respect to the extent to which it
will receive supplementary afhdayits from either either
of satisfying itself whether the motion ought
to be granted denied. In the exercise Of
that discretion. in this case, the Court has
allowed both of the parties to. bring before
it all such aidavits and papers as the counsel OF
either have thought it proper to present and, ami
mated solely by the hope that what seemed to it to
be unreasonable and useless controversy might be
amcably terminated, it gave on its own motion, an
opportunity to the respondent to allow the books
mentioned in the statute to be examined with the
intention il such examination were allowed, to at
once terminate the proceedings The respondent has
refused to avail himself of such opportunity and
afdavts the part of the relator, showing such
fusal and the part OF the respondent seeking to
excuse the same have Also in the discretion Of the
Court been received.
WANT OF GOOD FAITH.
Upon all the papers and proceedings now before
the Court I unwilhngly forced to the con-
viction that the conduct of the respon-
evasve, with intent not to permit the books to be
examined but to prevent such examination so far
in his power. When the relators made their first
application the books should have been promptly
exhibited, as required by the statute. They were
not only not produced but their examination
was refused for various n h and s,r IN
violated and the right of the REALTORS
plainly denied 70 them. The subsequent written
attempt negotiations between the reators and the
respondent does not in my opinion, affect the right
Of the REALTORS founded upon the prior illegal OF
the respondent. because it is manifest that the delay
of the Respondent Iii sending his letter intAaftcr the
business hours OF the following day, and until after
the reators had prepared papers for this notion and
his refusal the morning before the motion was
made to allow the REALTORS to such examination
his letter rendered to them, show that his pro-
fessed willingness and offer to have the books ex
amined was neither real nor made in good faith
oFFICEns SERVANTS OF THE PEOPLE.
The duty OF the respondent under the statute was
too plain to admit discussion He chose to violate
it for not difficult to understand He stands
as public officer denying rights TO the relators
which the statute makes it his explicit duty to allow
all persons" to enjoy. All officers in this country
the servants OF he people, and whether the posi-
tion be conferred by popular ballot or by the ap-
relation is not changed An officer is never the rep
resentatiye of the majority that elects him or the
Office and enters upon its duties both by law and
under the lIeory OF system of government, his
services altogether due TO the people, and not to
any other body power. An ofhcer who does not
recognize this trurh orght not to accept the service
OF office; and IT, kng Aescpted he fails 30 Yecegnize
it, he sets above the law and againstthe spirit
OF our political institutions. Ai- asAi $40 iHo
A rEREMproRY REMEDY. A7
The Court with the kindcst possible intentions.
has cndeavored to relieve the respondent from the
of standing in that position. but he has
chosen deliberately to assume and keep it. The rem
edy ought to be certain and perempory 1t is urged
that the Court ought under the circumstances of the
case, to grant alternative mandamus That is al
ways the practice where material question of fact
remains to be tried. But in this moth
ing but imnateria question is presented.
and that question, If found in favor OF the
respondent, would not relieve the Court. in my
Judgment, from the duty OF issuing the peremptoiy
writ. For If ii found thar the respondent
did, by his letter, tender examination OF the
books in good faith that fact would be unavailing,
since he immediately. when such examination was
sought, refused it unjustihable grounds. His
conduct did not disarm the REALTORS of the rights
with which the previous direct refusal by himself
and his deputy had clothed them They were enti-
tied apply to the Court relief and upon all the
papers and proceedings that have since occurred
been presented it would be a mockery Of law to deny
it to them. The other questions in the dis
posed of by the former opinion The peremptory
writ Is therefore granted, with costs of the proceed
ngs The order will be settled upon one days notice.