The evening world., 1891-12-11
EDITION.
State SENATORIAL APPEALS.
They Call a Big Crowd to the
Chamber of the Highest Court
Distinguished Officials Present-Tho
Briefs All Ready.
fBY ASSOCIATED PRESS. !

ALBANY, Dec. 11.-Never In recent years
has such large crowd OF Interested parties
throhged the Court OF Appeals chamber as
was the case this morning on the occasion OF
the arguments in the four disputed Senatorial
districts.
Among those present OF counsel for the Re-
puolican5 were Joseph II. Choate, william A.
sutherland. Matthew Hale, j. Rider Cady,
col George Bliss, Of New York, and MIR.
Parkhurst, while on behalf OF the Democrats
appeared Deputy Attorney General Maynard,
Delos McCurdy, OF New York, and Louis Mar.
shall, OF Syracuse.
Others presen; included the state officers,
several candidates from the disputed dis
tricts and prominent lawyers and politicians.
The four cases on the calendar OF the court
argued to-day were the five appeals on be.
halt Of the State Canvassing Board awarding
ing certificates OF election in the Fifteenth,
sixteenth, Twenty-titth and Twenty-seventh
Senatorial Districts.
| The briefs In these cases on behalf OF the
Democrats were prepared by Deputy Attor-
! ney-General Maynard and DeloS McCurdy.
| separate Republican briefs on all four appeals
were prepared by Matthew Hale and William
! A. sutherland, j. Rider Cady submitting Q
! brief having to do with the controversy In
! DutChesS county.
| The two appeals in the Sherwood case were
| first called. the arguments being opened by
| DcloS McCurdy on behalf OF the Democrats.
The counsel said 1.-The question presented
| Is, Was the relator at the time OF his election
or within 100 days previous IAN oflicer under
any city government, as contemplated by
! the CONSTITUTIONS"
After reading the act OF the Legislature
creating Park Commission IN HorIellsville,
he said:
"Thcse Commissioners so to be appointed
by the Mayor are authorized and empowered
To exercise portion OF the functions OF the
| Government and they possess every attn.
come within every accepted definition"
Several such were quoted with several
decisions OF the court. which bore out the
lawyers reasoning and led him to say:
The rule TO be deduced from all the cases
is that where the officer Is appointed BY, and
may be removed by, the city government,
tiuguished from the functions OF general
state government, he Is n city oficer.
The relator was then an officer under tho
city government Of HornDllsville at the time
or his election, or within 100 days previous
thereto, and consequently ineligible to the
Oifice OF senator.
"The electors had notice and knowledge OF
the f1ct that the relator was not eligible to
the Gnlce OF senator prior to and at the time
OF the election. VIII the Court require actual
notice OF the ineligibllity declared by the
Constitution TO be given each voter before 1t
Will assume that his vote is nullity?
" The law presumes absolutely, on the part
, or every one charged Win tle performances OF
any political duty, all the knowledge and
mental capacity necessary for It's complete
aud Intelligent discharge, and such Fpresump-
ton canloI De rebutted. II the relatnr is iI.
eligible to the ofiice OF Senator. every vote
given Tor him at the election is absolutely
vCid.
"Ihe Constitution declares the candidate
Ineligible, and the Ballot Reform law [sec-
ton 81 declares that his name shall be con-
sidered as having been erased from the
| official ballot"
Mr. McCurdys argument consumed nifty
! five migUteS
| Judge Maynard said he had given Mr.. Mo-
Curdy part OF his lime, as he himself In
! tended to argue the other three cases, which
would take tut a short time.
! His arguments on the appeal IN the Peck
| case were Ia substance:
The reator was not entitled to per.
emptory writ against the State Board,
because there is No proof or showing or
tending to show, that the Board had refused
10 act, or had acted without authority OF law.
Mandamus Is never granted in anticipation
oi II supposed omission OF duty. He must
show that the state Board is actually In DE-.
fault IA the performance ot legal duty at
time OF service OF motion papers, but this has
, not been done"
Referring to the appeal in the Derby case
JuGge Maynard made Il similar argument.