The sun. [volume] (New York [N.Y.]) 1833-1916, 1891-12-30
4 CERTIFICATE FOR DERBY,
Hut He Must Still Take HIS Chances Before
the Senate Itself

the Senate Itself
This Is Judge Gray's opinion in the matter
OF the application Of the People OF the State Of
New York on the relation OF John Il. Derby.
respondent agt. Frank Rice ct al. composing
the Board OF State Canvassers. appellants:
In this matter on certain afiidavits an order
was made by the supreme Court at special
emptory mandamus. commanding the State
election in accordance with the certified state
IT, hsS Sa1 Ps S{ III ssS
heard saf ns ssa sestisa
VIA @hsts esesr relaspps said sscton or the
DISCRIMINATION Of said election. except the
ssate b. hs
Ct the counties composing the said Senatorial
s1 mayas WaSn
was granted set forth rssSutlon, passed by
rsesnt Election 70 the state ates5s;
nIa S
81 Pc
proofs and such further msst BE-
OF the statement Of tho County Board; ~ with the
the Pre-
objections. or statements refefre6d to S were
hsesss yi0i0as liz s''sSs
attsd the election in SSest aess These Sc
nave Teen Committed in the solicitation Of
votes within ten feet Of the polling PLACES in
ss 81 to ssd SfS s S S srs tie
returns to state the correct vote east. These
set IN an dsv tes
here. and no makes the oner to prove MS alie-
The affidavit Of the Secretary Of state.
member and the Chairman Of the state Board
of Canvassers, alleges that the Board had not
to act upon the st ten from
ceedings. and that 1t has not refused. neglect
ed. nor threatened to refuse or neglect to con,
aud allowed by law: that there has been no re:
tnsal TO issue eertiilsate to the oce Of
to any person. nor has said Board MOI, any
membsr thereof stated what said Board i IN =
& and IN
faith to the discharge 9f the duties Imposed BY
them by law Ne that No demand Inn has Gsen
herein that a certificate OF election should DO
II we were free to consider and to determine
ds 9 ist to ISSUE IN tits matter, we should not
hesitate to hold that it should not have beef,
rh by hs tho p%et f.
sPiDitH'' .s9ss sna
State officers engaged in the PERFORMING. Of.
about f. fha sI %ss Sy ear
the application was made had refused or neg
!scted to perform any duty imposed ny i ,l, 81
aes sSe svsa they Sad refused Tie
tor any legairig Hence there was no occa;
sn ss s
ministerial oicsrs 70 exercise their functions:
nas on sss
not conform to the law. or where some legal
right has been refused.
upon the. grounds exhibited by the moving
papers II It Is proposed to use it as q restrain.
ought 70 be subjected % ing same statutory
provision which imposes restret,on qP Sn, In o.
found in Section Jos Of the Code Of Civil Pro-
cedure. which reads that where duty Is inn,
Of state officers. any Injunction order to re-.
strain him or them from the performance OF
snp s e taa a n At General term thsreo ST.
S;ers i located or the duty required I" to be
There IS not enough IN the ease to overcome
tho legal presumption that the state officers
mus would not lie. Wo think that this pr9vis-
OF s e9de Il to az ases
State officers or boards while engaged In the
performance Of legal or statutory, duty; and
ing writ Of mandamus by the terms Of
which tho state officers are restrained.
Tho Inhibition OF the statute is iurisdictional,
and nm order not granted as prescribed Is a
! Of the parties which accompanied the record
| here and because Of the failure Of the defend
| ants to the proceeding to raise the objection:
. Jurisdiction and to determine the questions