Evening journal., 1891-12-30
THE CONTESTED CASES
Derby the Only Republican SEN
ator Declared Elected.
NEW YORKs SENATE DEMOCRATIC

ALBANY, Dec. sO.-The court Of appeals
chamber was filed Tuesday with lawyers,
politicians and state officers awaiting the
decisions m the election cases Chairman
Edw1d Murphy, OF the state Democrats
committee.
The court met precisely at 2 O'Clock and
handed down the decisions. Judge May
nard took them, together with the opinions,
and proceeded before the canvassing board,
where he read them. The general under
standing of the decisions was as follows; In
the Sixteenth district Derby, Republican, is
to be given the certificate. In the Twenty
fifth district John H. Nichols, Democrat, is
10 have the certificate.
In the Fifteenth district the Mylod Ger
tiicate rs declared right rs 10 form and as
TO manner of filing, but not as to face value.
The board of canvassers is to use it's discre-
ton. In the Twenty-seventh district, Sher-
! wood, Republican, rs declared ineligible, but
the STATE boaId is enjoined that it has no
power TO go behind the face Of the returns.
The only alternative given is a new election.
The Sherwood Case.
There ore twelve opinions in the election
cases handed down and they are all lengthy
In the case Of an order for q peremptory
mandanus to compel the state board Of can
vassers to return certificate Of ineligibility
Of Franklin B. Sherwood as senator in the
| Twenty-seventh district made by the county
board Of canvassers, Judge Earl says;
"This is an extraordinary order, What
possible official duty did the secretary OF
state have to return to the county Of
Steuben the papers mentioned in the orderi
They did not belong 10 the county canvass
ers or the county clerk of Steuben county,
and were not official papers. And what
right did the relator have that they should
be returnedl
''Tt is possible and quite probable that a
nandsmus issued in pursuance of this order
would do no harm But rs it can accom-
plsh no useful purpose and could be issued
only to compel the discharge of official duty,
for fear that it may form precedent, /
think the orders Of the special and general
terms should be reversed and the appiica-
ton for a mandamus denied"
As 70 His Ineiigibnity.
In the Other casa Of Sherwood, which
looks TO his inehgibiity, Earl says; "Ihere
can be no doubt, it seems to me, that the
relator holds a public Office. He was re-
quired to discharge duties for the public.
he was required 10 take the constitutional
oath of office and 10 give a bond for the
faithful discharge Of his duties, and he and
his associates were clothed with the power
Of eminent domain. That under such cir
cunstances he was public officer has never
been questioned anywhere, so far as l can
find"
The Judge also finds that Sherwood was
an officer under the Hornellsville city gov.
ernment within the meaning Of the consti
tuition and therefore not eligible to accept
the Office Of senator while he held the office
Of park commissioner. Judge Earl declares
that it is no answer to these views that the
powers and duties Of these commissioners
are regulated by law, and thus that they dc
not act under the direction and control OF
the city government or Of any OF its officers
and that therefore they are, in certain
sense, independent officers" In conclusion
Judge Earl says:
I An Absolute NuIiity.
$50 we reach the conclusion that the re
lator was not eligible under the constitu.
hon to the senate. The term eligible re-
lates to the capacity Of holding as well rs tc
the capacity Of being elected to the Office
Therefore he violated the constitutions
provision in seeking the votes Of the elect
ors, and they violated it in voting for him
ANY certificate the appellants could issue tC
him would DO an absolute nullity, and the
only use he could make Of it would be tC
violate the constitution and do a wrong by
intrusion into an Office which he has nc
. right for one moment 10 hold.n
, Judge Earl does not believe that the court
ought to grant mandamus to compel tbs
issuing Of a certificate of election to one whS
has no right under the constitution to thl
: Office, but the senate itself when it meet
can determine whether or not Sherwood
J was elegible and elected. The court simpl,
: determines that it wiz not aid him, and il
/ making such determination it in no way in
= fringes upon the jurisdiction confded 10 tn
g state. It simply exercises a jurisdiction
which he has invoked.
A New Election Possible.
7 Judge Earl decided that none Of the Off
!. GERS clothed with the duty to canvass vote
: derive any power in a case like this to pas
3 upon the eligibility Of candidates and to dis
{ regard votes cast for an ineligible candidate
: The action or nonaction Of the canvasser
( may be an obstacle in Sherwood's way, bu
g the court viii not by mandanus, where tn
: facts showing his ineligibility are undis
puted, assist him in removing the obstacle
i, If the senate shall agree that Sherwood
8 ineligible and find that his competitor wa
e not elected, the result viii be that new
= election viii have to be ordered.
The AfyIod Case.
The next most important decision is j
the case Of the Dutchess county returns
where the judges as a body, decide that tn
e Mylod certificate is properly filed and ma
e be used by the board, but depreciates il
e merits as an honest return.
The court declares that a county clerk
: duties are purely ministerial, and that b
cannot refuse to certify because the count
canvassers throw out votes.
4 In the case of Nichols Democrat, agains
! Il Peck, Republican, in the twenty-fifth di
d trict, the court, in opinions written b
Judges Ruger, Gray and O'Brien and di
sented from by Judges Peckhnm and Al
7 drews, decides that the inspector cannC
~ lawfully count ballots found in the boz
Z whichit was their duty to refuse when o
tered by the elector.
> Last evening the state board of canvas
ers declared Osborn, Democrat, elected
: the Fifteenth senatorial district; Derb,
Republican, elected in the Sixteenth, an
Nichols, Democrat, elected in the Twent.
fifth. The Twenty-seventh senatorial di
trict result was left to be determined by IL
!. senate. These decisions make the senai
Democratic.
The senate win now stand upon organic
q. tion sixteen Democrats, fifteen Republican
"a and one vacant seat to be settled by Il
j. senate. Even if the senate, in the face